Disposed

M/S.Good Will Enterprises v. M/S.Feron Life Science (P) Ltd.

Kerala HC22 Feb 2013AR/25/2012

Case brief

AI extract

What is this about?

The High Court held that an agreement conferring exclusive jurisdiction on Delhi courts covers applications for appointment of arbitrators. The application filed in Kerala was therefore not maintainable and was disposed of, with directions to file in Delhi.

What did the court decide?

Arbitration request disposed of; application returned to petitioner to be presented before the appropriate court in Delhi within 30 days.

M/S.Good Will Enterprises Vs M/S.Feron Life Science (P) Ltd. — Arbitration | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

¶4

FRIDAY, THE 22ND DAY OF FEBRUARY 2013/3RD PHALGUNA 1934

¶5

AR.No. 25 of 2012 ()

¶6

PETITIONER(S):

¶7

M/S.GOOD WILL ENTERPRISES, A PARTNERSHIP FIRM, FUNCTIONING IN THE ADDRESS ARANGATH BUILDING, NEAR PULLEPADY OVER BRIDGE, COCHIN. REP. BY ITS PARTNER P.J.PAUL, S/O. OUSEPH PANJIKARAN HOUSE, POYYA, MALA, THRISSUR.

¶8

BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.RENI ANTO KANDAMKULATHY

¶9

RESPONDENT(S):

¶10

M/S.FERON LIFE SCIENCE (P) LTD., HAVING REGISTERED OFFICE AT 203, 2ND FLOOR, AKASH DEEP BUILDING, 26, BHARAKAMBA ROAD, NEW DELHI-110001.

¶11

R1 BY ADVS. SRI.SHIRAZ ABDULLA

¶12

SRI.JOJO PAPPACHAN SRI.Y.MOHAMMED NASARULLAH SRI.VIJENDRA KUMAR

¶13

THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 22-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶14

AR.No. 25 of 2012 ()

¶15

APPENDIX

¶16

PETITIONER'S ANNEXURE

¶17

ANNX.I:	A COPY OF THE NOTIVE SEND DATED 30.08.2011.
ANNX.II:	A COPY OF THE NOTICE SEND DATED 16.09.2011.
ANNX.III:	A COPY OF THE NOTICE SEND DATED 22.11.2011.
ANNX.IV:	A COPY OF THE REPLY ISSUED DATED 07.12.2011.
ANNX.V:	A COPY OF THE AGREEMENT DATED 16.03.06.

¶18

RESPONDENT'S ANNEXURE: NIL

//TRUE COPY//

P.A TO JUDGE

LSN

ANTONY DOMINIC,J

A.R.No.25 of 2012

¶24

Dated this the 22^nd day of February, 2013

¶25

ORDER

¶26

Heard the learned counsel for the petitioner and the

¶27

learned counsel appearing for the respondent.

¶28

This is an application made under Section 11(5)

¶29

of the Arbitration and Conciliation Act, 1996(hereinafter referred to as 'Act' for short) praying for an appointment of an Arbitrator to resolve the disputes between the petitioner and the respondent. Annexure-AV is the agreement between the parties. Clause 15 of the agreement provided for jurisdiction and dispute resolution. This provision reads thus:

¶30

“ 1. All suits, actions and proceedings under this agreement shall be subject to exclusive jurisdiction of courts in Delhi.

¶31

2. The parties hereto shall endeavour to settle amicably and promptly any and all disputes, controversies and differences,

¶32

A.R.No.25 of 2012

¶33

: 2 :

¶34

which may arise among the parties out of or in relation to this Agreement or for the breach hereof. In case such disputes are not resolved within 30 days of receipt of notice from a party, then such disputes shall be settled by arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996. The venue of the arbitration shall be Delhi. The arbitration proceedings shall be conducted in English.”

¶35

Disputes arose between the parties. Therefore, Annexure-AI notice was issued on behalf of the petitioner demanding payment of Rs.7,19,136/-. To this notice, Annexure-II reply was issued disputing the claim made by the petitioner. Thereupon by Annexure-AIII notice, the petitioner suggested the appointment of an Arbitrator and demanded concurrence of the respondent. On receipt of the notice, Annexure-AIV reply notice was issued declining to agree to the Arbitrator suggested by the petitioner and suggesting an Arbitrator from Delhi. It was thereupon that this application was filed seeking

¶36

A.R.No.25 of 2012 : 3 :

¶37

appointment of the Arbitrator.

¶38

In the reply filed on behalf of the respondent, the claim that amounts are due to the petitioner is denied. The respondent also contends that having regard to the provisions contained in Clause 15 of the agreement, the Arbitration Request filed is not maintainable and according to the respondent only the Chief Justice of the Delhi High Court has jurisdiction to entertain such an application.

¶39

Thus the only issue that arises for consideration in this case is whether this petition is maintainable in view of the provisions contained in Clause 15 of the agreement.

¶40

On behalf of the petitioner, it was contended that the agreement as reflected in Clause 15 of Annexure-AV agreement only deals with the filing of suits and other applications and not an application under Section 11(5) of the Act. It is also contended that the further agreement

¶41

A.R.No.25 of 2012 : 4 :

¶42

in Clause 15 is regarding the venue of arbitration. Therefore, according to the learned counsel for the petitioner irrespective of Clause 15 of the agreement, the petitioner is at liberty to file an application before the Chief Justice within whose jurisdiction cause of action or part of the cause of action has arisen. On the other hand, respondent contended that Clause 15 of the agreement reflects an exclusive conferment of jurisdiction on the Courts at Delhi and therefore, any suit or other proceedings including an application under Section 11(5) is maintainable only before the Chief Justice of the Delhi High Court.

¶43

Section 11 of the Act provides for appointment of Arbitrators. Insofar as this case is concerned, reading of Clause 15 of the agreement shows that there is no agreed procedure for the appointment of the Arbitrator. In such a case, an application is to be made to the Chief Justice in terms of Section 11(5) of the Act. The expression, the

¶44

A.R.No.25 of 2012

¶45

: 5 :

¶46

Chief Justice mentioned in Section 11(5) should be understood in the light of Section 11(12)(b) of the Act, which is extracted below for reference.

¶47

“ (b) Where the matters referred to in sub-sections(4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause(e) of sub section(1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.”

¶48

In order to understand the scope of Section 11 (12)(b), it is necessary to make reference to the definition

¶49

of Court contained in Section 2(e) of the Act, which is extracted below for reference:

¶50

“Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having

¶51

A.R.No.25 of 2012

¶52

: 6 :

¶53

jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

¶54

Reading of both these provisions show that if the Civil Court at Delhi has jurisdiction to entertain suits over the subject matter in question, the Chief Justice of the Court within whose jurisdiction such Civil Court is situated is the Chief Justice mentioned in Section 11(5) of the Act. Therefore, one has to examine whether the Civil Court in Delhi has jurisdiction to entertain a suit in respect of the matters covered by the agreement. As already stated, the case of the petitioner is that they are entitled to make application before the Kerala High Court for the reason that part of the cause of action has arisen within the jurisdiction of the Kerala High Court. This necessarily means the remaining part of the cause of action has

¶55

A.R.No.25 of 2012 : 7 :

¶56

arisen within the jurisdiction of the courts in Delhi. Thus, the situation that emerges is that even according to the petitioner both the Kerala Courts and the Delhi Courts have jurisdiction. If more than one court has jurisdiction over a particular subject matter, parties are at liberty to agree on one of those courts.

¶57

Therefore, what remains to be seen is whether Clause 15 of the agreement reflects such an agreement. Reading of Clause 15(1) and (2) shows that all suits, actions and proceedings under the agreement shall be subject to the exclusive jurisdiction of courts in Delhi. Although, the counsel for the petitioner contended that application under Section 11(5) of the Act is not covered by this provision of the agreement, the right to make an application under Section 11(5) arises out of Clause 15(2) of the agreement where the parties have agreed for Arbitration. Therefore, I am unable to agree with the learned counsel for the petitioner. If that be so, there is

¶58

A.R.No.25 of 2012 : 8 :

¶59

an agreement between the parties to confer jurisdiction on the Delhi Courts to the exclusion of the Kerala Courts. If that be so, in view of the provisions contained under Section 11(2)(b) and Section 2(e) of the Arbitration and Conciliation Act, the application under Section 11(5) should be made before the Chief Justice of the Delhi High Court. For that reason, without expressing anything on the merits of the claim raised and leaving it open to the petitioner to seek appointment of the Arbitrator in accordance with law, this Arbitration Request is disposed of.

¶60

The application will be returned to the petitioner for presentation before the appropriate court within 30 days from today.

¶61

Sd/- ANTONY DOMINIC, JUDGE

¶62

M/S.Good Will Enterprises v. M/S.Feron Life Science (P) Ltd.

Case brief

What is this about?

What did the court decide?

M/S.Good Will Enterprises v. M/S.Feron Life Science (P) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.P.Varghese & Another Vs State of Kerala and Others

M/S.Anappuram Steels (P) Ltd. Vs Asst.Commissioner of Central Excise

John Mathai Vs the Chief Manager, State Bank of Travancore

Georgi Mathew Vs a.Gopakumar

V.P.Siddique Vs Authorized Officer, State Bank of India

P.Haridas Vs Authorised Officer, Bank of India