Dismissed

M/S Ambarwadikar and Co. Engineers and Contactor Aurangabad v. Ashok Leyland Finance Ltd. Chennai and Anr.

Bombay HC24 Nov 2011WP/8252/2011

Case brief

AI extract

What is this about?

Petitioner challenged orders returning Section 34 petitions to be presented before the Bombay High Court where Section 9 proceedings were pending. The Court held that the Bar under Section 42 of the Arbitration Act makes the Bombay Court the sole forum, preventing Aurangabad court from entertaining the Section 34 prayer.

What did the court decide?

No interference with impugned orders; no order as to costs.

M/S Ambarwadikar and Co. Engineers and Contactor Aurangabad Vs… — Arbitration | Bombay HC (2011)

¶1

1 W.P.No.8252/11 with W.P.No.8254/11

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

¶5

WRIT PETITION NO.8252 OF 2011.

¶6

M/s Ambarwadikar and Co.,
Engineers & Contractors,
A Registered Firm through its
Parnter, Shri Vitthal Rangnathrao
Ambarwadikar, Age 68 years,
Occ.Business, R/o 2121 Samarth
Nagar, Aurangabad. ... Petitioner.

¶7

Versus

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1. Ashok Leyland Finance Ltd.,
A Company incorporated under
the Provisions of Indian
Companies Act, 1956 having
its Office at
Sudarshan Building, Chanies
Road, Chennai, which is
presently known as Indusind
Bank Ltd., Indusind Bank Ltd.,
Kandi Tower, Besides Vyankatesh
Gas Agency, Aurangabad.

¶9

2. Shri S.K.Gowthaman,
Advocate (Arbitrator),
Age major, R/o New No.49,
224, B IV, Cross Street,
Natesa Nagar, Viruganbakkam,
Chennai (T.N.).

¶10

(deleted as per Court's order
dt.21.10.2011, extended
as per order dt.11.11.2011.)... Respondents.

¶11

2 W.P.No.8252/11 with W.P.No.8254/11

¶12

WITH WRIT PETITION NO.8254 OF 2011.

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M/s Ambarwadikar and Co.,
Engineers & Contractors,
A Registered Firm through its
Parnter, Shri Vitthal Rangnathrao
Ambarwadikar, Age 68 years,
Occ.Business, R/o 2121 Samarth
Nagar, Aurangabad. ... Petitioner.

¶14

Versus

¶15

1. Ashok Leyland Finance Ltd.,
A Company incorporated under
the Provisions of Indian
Companies Act, 1956 having
its Office at
Sudarshan Building, Chanies
Road, Chennai, which is
presently known as Indusind
Bank Ltd., Indusind Bank Ltd.,
Kandi Tower, Besides Vyankatesh
Gas Agency, Aurangabad.

¶16

2. Shri S.K.Gowthaman,
Advocate (Arbitrator),
Age major, R/o New No.49,
224, B IV, Cross Street,
Natesa Nagar, Viruganbakkam,
Chennai (T.N.).

¶17

(deleted as per Court's order
dt.21.10.2011, extended
as per order dt.11.11.2011.)... Respondents.

¶18

Mr.A.K.Gawali, advocate for the petitioner
Mr.S.S.Deshmukh, advocate holding for
Mr.S.S.Gangakhedkar, advocate for Respondent No.
1.

¶19

3 W.P.No.8252/11 with W.P.No.8254/11

¶20

Respondent No.2 deleted.

¶21

CORAM : S.V.GANGAPURWALA,J.

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 Date : 24.11.2011.

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PER COURT :

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1.Heard.

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2.The petitioner has filed an application
U/s 34 of the Arbitration and Conciliation Act,
1996 against the award passed by the sole
arbitrator. The Principal District Judge,
Aurangabad, returned the said petition to the
present petitioner for presenting the same to the
Court in which the same should have been
instituted. The said orders are assailed in the
present petitions.

¶26

3.Mr.A.K.Gawali, learned counsel for the
petitioner submits that the learned Principal
District Judge has rejected the petition U/s 34
of the Arbitration and Conciliation Act, invoking

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the powers U/o 7 Rule 10 of the C.P.C., solely on

¶28

4 W.P.No.8252/11 with W.P.No.8254/11

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the ground that proceedings U/s 9 of the
Arbitration and Conciliation Act, 1996 have been
initiated by the present Respondent before the
High Court at its Principal seat at Bombay in its
ordinary original Civil jurisdiction. According

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to the learned counsel, the proceedings U/s 9
are not maintainable before the Court at Bombay,
as it does not have territorial jurisdiction to
entertain the same. No part of cause of action
has arisen at Bombay. The transaction has taken
place at Aurangabad and as no part of cause of
action has arisen at Bombay, the High Court at
its principal seat at Bombay does not have
jurisdiction to entertain Section 9 application.
The petitioner has also raised the issue of
jurisdiction in the said Section 9 proceedings
but unfortunately the same have not been decided.
In such circumstances, this Court in its
jurisdiction under Article 227 of the
Constitution of India, can decide about the
jurisdiction of the Court at Aurangabad to
entertain Section 34 petition vis-a-vis the non-
maintainability of the petition at Bombay for
lack of territorial jurisdiction. The learned

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5 W.P.No.8252/11 with W.P.No.8254/11

¶32

counsel relies on the judgment passed by the
learned Single Judge of this Court in following
matters :

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i)"Oil and Natural Gas Corporation Ltd. Vs.

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Jagson International Ltd." reported in 2005 (3)
Mh.L.J.1141;

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ii)"Kotak Mahindra Finance Ltd. Vs. T.Thomas
Educational Trust, Chennai and others" reported
in 2004 (1) Mh.L.J. 1112;

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iii) "Kotak Mahindra Bank Ltd., Mumbai Vs.
Sharma Crane Service, Raipur and another"

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reported in 2010 (1) Mh.L.J.814.

¶38

4.Mr.Deshmukh, learned counsel for the
Respondent supports the order and submits that in
view of the pendency of Section 9 proceedings at
Bombay, the District Judge at Aurangabad can not
entertain the petition U/s 34 of the Arbitration
and Conciliation Act, more particularly, in view
of Section 42 of the Arbitration and Conciliation
Act.

¶39

5.Section 42 of the Arbitration and

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6 W.P.No.8252/11 with W.P.No.8254/11

¶41

Conciliation Act reads as under :

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"42. Jurisdiction - Notwithstanding

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anything contained elsewhere in
this Part or in any other law for
the time being in force, where with
respect to an arbitration agreement
any application under this Part has
been made in a Court, that Court
alone shall have jurisdiction over
the arbitral proceedings and all
subsequent applications arising out
of that agreement and the arbitral
proceedings shall be made in that
Court and in no other Court."

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6.It is not disputed that proceedings U/s
9 for interim measures are filed by the present
Respondents before the High Court at Bombay in
its ordinary original Civil jurisdiction. In the
said proceedings even interim orders have been
passed from time to time. Though, it appears
that in the affidavit, the present petitioners
have raised the issue of jurisdiction in

¶45

7 W.P.No.8252/11 with W.P.No.8254/11

¶46

Section 9 proceedings, the said issue is not yet
decided.

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7.The Court at its Principal seat at
Bombay in its ordinary original Civil
jurisdiction is seized with the matter,it would
be inappropriate for this Court to decide about
the jurisdiction of the Court dealing with
Section 9 proceedings, more particularly, when
the same is subjudice before the said Court.

¶48

8.In such circumstances, when Section 9
proceedings have been filed long back and the
same are pending before the Court at Bombay, the
bar of Section 42 of the Arbitration and
Conciliation Act would come into force. Even the
learned Single Judge of this Court in a case of
"Eskay Engineers, Mumbai Vs. Bharat Sanchar Nigam
Ltd., Mumbai reported in 2009 (5) Mh.L.J.565, has
held that where application under part I has been
made in a Court with respect to arbitration
agreement, that Court alone shall have
jurisdiction over the arbitration proceedings, no
other Court would have jurisdiction.

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8 W.P.No.8252/11 with W.P.No.8254/11

¶50

9.The judgments in a case of "Oil and
Natural Gas Corporation Ltd. Vs. Jagson
International Ltd.", "Kotak Mahindra Finance Ltd.
Vs. T.Thomas Educational Trust, Chennai and
others" and "Kotak Mahindra Bank Ltd., Mumbai Vs.
Sharma Crane Service,Raipur and another" relied
by Mr.A.K.Gawali, learned counsel for the
petitioner deal with the different situation.
Therein proceedings U/s 9 were decided and it was
decided that the Courts where Section 9
proceedings were filed did not possess the
territorial jurisdiction. It is in said

¶51

circumstance, the learned Single Judge of this
Court held that bar U/s 42 of the Arbitration and
Conciliation Act would not apply. In the present
case, the proceedings U/s 9 are still pending
with the Court at Bombay in its ordinary original
Civil jurisdiction and in such circumstances, the
Principal District Judge at Aurangabad could not
have exercised the jurisdiction and has rightly
passed the order returning the petitions for
presentation in proper Court.

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10.In view of the above, no interference

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9 W.P.No.8252/11 with W.P.No.8254/11

¶54

is called for in the orders impugned. The Court
where the petitions would be presented shall
consider the time spent in prosecuting the
proceeding. However,there shall be no order as to
costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp8252.11

M/S Ambarwadikar and Co. Engineers and Contactor Aurangabad v. Ashok Leyland Finance Ltd. Chennai and Anr.

Case brief

What is this about?

What did the court decide?

M/S Ambarwadikar and Co. Engineers and Contactor Aurangabad v. Ashok Leyland Finance Ltd. Chennai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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