# M/S Amit Engg. Mainpuri v. Superintending Engineer, Lko

- **Citation:** (2024) 5 ILRA 1233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Matter Under Article 227 No. 1834 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-amit-engg-mainpuri-v-superintending-engineer-lko-52026
- **Pages:** 10

## Headnote

Civil Law - Arbitration and Conciliation Act,
1996 - Sections 2(e), 11(6), 11(6-B), 20,
34 & 42 - Petitioner entered into contract
with
respondent
for
construction
of
independent feeders on turnkey basis
within stipulated time - Disputes arose
between them, petitioner filed application
u/s 11 before High Court at Allahabad,
allowed and Arbitrator appointed - Award
was declared, direction to respondent to
pay
to
petitioner
a
sum
of
Rs.1,20,43,129.00 along with interest at
the rate of 8% p/a from 06.07.2020 till the
date of award, also rate of interest was
10% p/a from date of award - Respondent
challenged
award
before
Commercial
Court, Lucknow - Objection by petitioner
on territorial jurisdiction - Rejected -
Impugned order - Held, the Arbitrator
appointed by High Court at Allahabad is
residing at Aligarh, on first hearing, the
Arbitrator mentioned that till any suitable
arrangement is made, the venue of arbitral
proceeding will be at Aligarh - Neither
parties had agreed for seat/venue on the
arbitration, nor had Arbitrator passed
order to this effect - Filing of application
u/s 11 at Allahabad would not create a bar
u/s 42 against the exercise of jurisdiction
by Commercial Court - No illegality,
dismissed. (Para 3, 6, 8, 9, 10, 32)

Petition dismissed. (E-13)

List of Cases cited:

## Text

5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1233
have to apply its mind to the facts pleaded in
the case. Once Mr. Naresh Chandra
Agarwal, in a judicial proceeding while
applying for bail, himself admitted that he
was not in any manner the Manager of the
Temple, there was no occasion for a tenant
to raise a title dispute as a third party, to nonsuit the plaintiff in SCC case. The defendant/
petitioner admittedly is a tenant and he has
not raised any title dispute as to his status.
Therefore, it becomes a question how a
tenant can non-suit the plaintiff in an
eviction suit on the ground that someone has
instituted a suit for injunction. Even if
remotely some dispute is there, if accepted
for argument sake, the tenant does not get a
right to stay back in the tenanted premises
opposing the eviction suit.

30. In view of the above, I do not see any
error apparent on the face of record or any
such manifest error otherwise committed by
the trial court and the court sitting in
revision in dismissing the application under
Section 23 of Small Cause Court Act which
may warrant interference in my supervisory
and
superintending
jurisdiction
under
Article 227 of the Constitution.

31. Petition fails and is accordingly
dismissed.
----------
(2024) 5 ILRA 1233
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 1834 of 2024

M/S Amit Engg. Mainpuri ...Petitioner
Versus
Superintending Engineer, Lko.
 ...Respondent
Counsel for the Petitioner:
Puneet Sahai Bisaria

Counsel for the Respondent:
Neera Yadav, Mayank Sinha

Civil Law - Arbitration and Conciliation Act,
1996 - Sections 2(e), 11(6), 11(6-B), 20,
34 & 42 - Petitioner entered into contract
with
respondent
for
construction
of
independent feeders on turnkey basis
within stipulated time - Disputes arose
between them, petitioner filed application
u/s 11 before High Court at Allahabad,
allowed and Arbitrator appointed - Award
was declared, direction to respondent to
pay
to
petitioner
a
sum
of
Rs.1,20,43,129.00 along with interest at
the rate of 8% p/a from 06.07.2020 till the
date of award, also rate of interest was
10% p/a from date of award - Respondent
challenged
award
before
Commercial
Court, Lucknow - Objection by petitioner
on territorial jurisdiction - Rejected -
Impugned order - Held, the Arbitrator
appointed by High Court at Allahabad is
residing at Aligarh, on first hearing, the
Arbitrator mentioned that till any suitable
arrangement is made, the venue of arbitral
proceeding will be at Aligarh - Neither
parties had agreed for seat/venue on the
arbitration, nor had Arbitrator passed
order to this effect - Filing of application
u/s 11 at Allahabad would not create a bar
u/s 42 against the exercise of jurisdiction
by Commercial Court - No illegality,
dismissed. (Para 3, 6, 8, 9, 10, 32)

Petition dismissed. (E-13)

List of Cases cited:

1. Inox Renewables Ltd. Vs Jayesh Electricals
Ltd., (2023) 3 SCC 733

2. BBR (India) (P) Ltd. Vs S.P. Singla
Constructions (P) Ltd., (2023) 1 SCC 693

3. Zapdor-Ubc-Abnjv Vs U.O.I., 2022 SCC OnLine
All 594

4. Emkay Global Financial Services Ltd. Vs
Girdhar Sondhi, (2018) 9 SCC 49
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Indus Mobile Distribution (P) Ltd. Vs Datawind
Innovations (P) Ltd., (2017) 7 SCC 678

6. BGS SGS Soma JV Vs NHPC Ltd., (2020) 4 SCC
234

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri K. K. Arora Advocate, the
learned counsel for the petitioner and Sri
Mayank Sinha Advocate, the learned
counsel for the respondent.

2. By means of the instant petition
filed under Article 227 of the Constitution of
India, the petitioner has challenged the
validity of an order dated 07.03.2024 passed
by the Commercial Court No. 2, Lucknow in
Arbitration Case No. 126 of 2023, under
Section
34
of
the
Arbitration
and
Conciliation
Act,
1996
(which
will
hereinafter be referred to as 'the Act').

3. Briefly stated, facts of the case
are that the petitioner had entered into a
contract
with
the
respondent
for
construction of 33 KV independent feeders
emanating from 132 KV primary sub-station
Amawan (Raebareli), 220 KV primary
substation Sonik (Unnao) and 33/04 KV
substation
at
District
Courts
Raebareli/Unnao on turnkey basis within
stipulated time in compliance of order
passed by Hon'ble High Court, U.P. on
29.06.2019.

4. Clause 16 of the General
Requirements of Specification mentioned in
the contract entered between the parties
provides as follows: -

"16.0- JUDICIAL JURISDICTION:
All the dispute arising out and
touching or relating to subject matter of
agreement contract shall be subject to
jurisdiction of local courts of Lucknow and
Lucknow bench of High Court of Judicature
at Allahabad only."

5. Clause 38(A) of the General
Conditions for the supply of plant and the
execution of works in connection with
schemes
in
Uttar
Pradesh
Power
Corporation Limited (UPPCL) provides that
"any action taken or proceedings initiated
on any of the term of this agreement shall be
only in the court of competent jurisdiction
under the high court of judicature at
Allahabad..."

6. Certain disputes arose between
the parties, which led to the petitioner filing
an application under Section 11 of the Act
before this Court sitting at Allahabad, which
was allowed and Justice Ifaqat Ali Khan, a
former Judge of this Court was appointed as
the sole Arbitrator for adjudicating upon the
disputes between the parties.

7. The learned Arbitrator has held
the first sitting of the arbitration proceedings
on 30.08.2022 at his residence at Aligarh.
The Rules of procedure and other incidental
matters were decided on the first date and it
was recorded in the aforesaid order that: -

"it is also made clear that till any
other suitable arrangement is made, the
venue of the arbitral proceeding will be as
follows:
"4/4 H1 Aftab Apartment Opposite
Ek Minar wali Masjid, Qila Road,
Shamshad Market, Civil Lines, Aligarh
(U.P.)-202001"

8. It appears that no further suitable
arrangement could be made and the
arbitration proceedings continued to be held
at the aforesaid place and ultimately an
award was declared on 26.08.2023 directing
the respondent to pay to the petitioner a sum
5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1235
of Rs.1,20,43,129.00 alongwith interest at
the rate of 8% per annum from 06.07.2020
till the date of the award and the rate of
interest will be 10% per annum from the
date of award.

9. The respondent filed an
application under Section 34 of the Act
challenging the aforesaid award before the
Commercial Court no. 2, Lucknow, which
application
has
been
registered
as
Arbitration Case No. 126 of 2023.

10. The petitioner filed an
application (C-12) raising a preliminary
objection
regarding
the
territorial
jurisdiction of the Commercial Court at
Lucknow, stating that the entire arbitration
proceedings took place at Aligarh without
any protest of the respondent and the
arbitration award was also passed at Aligarh,
which falls within the territorial jurisdiction
of this Court sitting at Allahabad. Therefore,
the Courts sitting at Lucknow have no
jurisdiction to entertain the application
under Section 34 of the Arbitration Act.

11. The respondent filed objection
against the aforesaid application inter alia
stating that as per Clause 16.0 and 38(A) of
the Contract referred to above and also
keeping in view the fact that the contract
was signed at Lucknow, the contract was for
certain works to be carried out in the District
Courts at Unnao and Raebareli and the
respondent is situated at Lucknow, the
Courts at Lucknow have jurisdiction to
entertain the application under Section 34 of
the Act. The Courts at Aligarh will have no
jurisdiction in the matter merely because the
Arbitrator held sittings at Aligarh, as per his
convenience.

12. The Commercial Court rejected
the petitioner's preliminary objection by
means of the impugned order dated
07.03.2024 and held that a combined
reading of Clause 16 and 38(A) of the
Contract makes it clear that all the disputes
arising out of and touching or relating to
subject matter of agreement contract shall be
subject to jurisdiction of local courts at
Lucknow. The mere fact that arbitration
proceedings took place at Aligarh cannot
oust the jurisdiction of the Commercial
Court at Lucknow.

13. Assailing the validity of the
impugned order, the learned counsel for the
petitioner has submitted that in the present
case, the seat and venue of the arbitration
was at Aligarh and the award was also
passed at Aligarh and, therefore, the Courts
at Aligarh only will have jurisdiction to
entertain the application under Section 34 of
the Act.

14. In support of his contention, the
Learned counsel for the petitioner has
placed reliance on the decisions of Hon'ble
Supreme Court in the cases of Inox
Renewables Ltd. v. Jayesh Electricals
Ltd., (2023) 3 SCC 733, BBR (India) (P)
Ltd. v. S.P. Singla Constructions (P) Ltd.,
(2023) 1 SCC 693 and judgment rendered by
a coordinate Bench of this Court in ZapdorUbc-Abnjv v. Union of India, 2022 SCC
OnLine All 594.

15. Per contra, Sri Mayank Sinha,
learned counsel for the respondent has relied
upon the judgment of Hon'ble Supreme
Court rendered in the case of Emkay Global
Financial Services Ltd. v. Girdhar
Sondhi, (2018) 9 SCC 49, in which it was
held whether more than one courts have
jurisdiction to decide the dispute and the
parties have entered into an agreement to the
effect that any dispute will be referred to the
courts at a particular place, the courts at that
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
place alone will have jurisdiction over the
matter.

16. I have heard learned counsel for
the parties and gone through the record. It
will be appropriate to look at the relevant
statutory provisions, before proceeding to
decide the matter.

17. The relevant part of Section
34(1) and 34(2)(a) of the Act provides as
follows: -

"34. Application for setting aside
arbitral award.-(1) Recourse to a court
against an arbitral award may be made only
by an application for setting aside such
award in accordance with sub-section (2)
and sub-section (3).
(2) An arbitral award may be set
aside by the court only if-
(a) the party making the application
furnishes proof that-
(i) a party was under some
incapacity; or
(ii) the arbitration agreement is not
valid under the law to which the parties have
subjected it or, failing any indication
thereon, under the law for the time being in
force; or
(iii)
the
party
making
the
application was not given proper notice of
the appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
(iv) the arbitral award deals with a
dispute not contemplated by or not falling
within the terms of the submission to
arbitration, or it contains decisions on
matters beyond the scope of the submission
to arbitration:
Provided that, if the decisions on
matters submitted to arbitration can be
separated from those not so submitted, only
that part of the arbitral award which
contains decisions on matters not submitted
to arbitration may be set aside; or
(v) the composition of the Arbitral
Tribunal or the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of this Part from
which the parties cannot derogate, or, failing
such agreement, was not in accordance with
this Part; or
(b)..."

18. Section 20 of the Act provides
that: -

"20. Place of arbitration.-(1) The parties
are free to agree on the place of arbitration.
(2) Failing any agreement referred to in subsection (1), the place of arbitration shall be
determined by the Arbitral Tribunal having
regard to the circumstances of the case,
including the convenience of the parties.

(3) Notwithstanding sub-section (1) or subsection (2), the Arbitral Tribunal may,
unless otherwise agreed by the parties, meet
at any place it considers appropriate for
consultation among its members, for
hearing witnesses, experts or the parties, or
for inspection of documents, goods or other
property."

19. The parties had entered into an
agreement providing that "all the dispute
arising out of between the dispute arising
out and touching or relating to subject
matter of agreement contract shall be
subject to jurisdiction of local courts of
Lucknow and Lucknow bench of High Court
of Judicature at Allahabad only." The
agreement further provides that any action
taken or proceeding initiated in terms of this
agreement, shall be only in the court of
competent jurisdiction under the High Court
of Judicature at Allahabad.
5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1237
20. In Indus Mobile Distribution
(P) Ltd. v. Datawind Innovations (P) Ltd.,
(2017) 7 SCC 678 the Hon'ble Supreme
Court held that: -

"9...We are of the opinion, the term
"subject-matter of the arbitration" cannot
be confused with "subject-matter of the
suit". The term "subject-matter" in Section
2(1)(e) is confined to Part I. It has a
reference and connection with the process of
dispute resolution. Its purpose is to identify
the courts having supervisory control over
the arbitration proceedings. Hence, it refers
to a court which would essentially be a court
of the seat of the arbitration process. In our
opinion, the provision in Section 2(1)(e) has
to be construed keeping in view the
provisions in Section 20 which give
recognition to party autonomy. Accepting
the narrow construction as projected by the
learned counsel for the appellants would, in
fact, render Section 20 nugatory. In our
view, the legislature has intentionally given
jurisdiction to two courts i.e. the court
which would have jurisdiction where the
cause of action is located and the courts
where the arbitration takes place."
(Emphasis added)

21. The Hon'ble Supreme Court has
clearly held in Indus Mobile Distribution
(P) Ltd. (Supra) that the Court at the place
where the cause of action is located, will
also have jurisdiction over the matter.

22. Indus Mobile Distribution (P)
Ltd. (Supra) has been followed in Emkay
Global Financial Services Ltd. v. Girdhar
Sondhi, (2018) 9 SCC 49, wherein it has
been held that where the agreement between
the parties provided that the courts in
Mumbai have exclusive jurisdiction, it is
clear that it is the Mumbai courts and the
Mumbai courts alone, before which a
Section 34 application can be filed. The
arbitration that was conducted at Delhi was
only at a convenient venue.

23. In Inox Renewables Ltd.
(Supra) relied by the learned Counsel for the
petitioner, a purchase order dated 28-1-2012
was entered into between M/s Gujarat
Fluorochemicals Ltd. and the respondent
Jayesh for manufacture and supply of power
transformers to wind farms. The arbitration
clause contained in the purchase order
provided that the venue of the arbitration
shall be Jaipur. In the event of arbitrators'
award being not acceptable to either party, the
parties shall be free to seek lawful remedies
under the law of India and the jurisdiction for
the same shall be courts in the State of
Rajasthan. Pursuant thereto, the learned
arbitrator passed an award dated 28.07.2018,
in which it was inter alia stated that "as per
arbitration agreement, the venue of the
arbitration was to be Jaipur. However, the
parties have mutually agreed, irrespective of a
specific clause as to the venue of the
arbitration would be at Ahmedabad and not at
Jaipur". A Section 34 petition was filed by the
appellant in Ahmedabad which was resisted
by the respondent referring to the business
transfer agreement and stating that the courts
at Vadodara alone have jurisdiction.

24. The Hon'ble Supreme Court held
in Inox Renewables Ltd. (Supra) that the
parties had specifically shifted the venue/place
of arbitration from Jaipur to Ahmedabad by
mutual agreement. The parties may mutually
arrive at a seat of arbitration and may change
the seat of arbitration by mutual agreement
which is recorded by the arbitrator in his
award to which no challenge is made by either
party.

25. The judgment in Inox
Renewables Ltd. (Supra) was given in the
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
peculiar factual background of that case and
is not applicable to the facts of the present
case, where the parties have entered into an
agreement that the Courts at Lucknow only
will have jurisdiction in the matter and there
was no agreement shifting the seat or venue
of the arbitration. The arbitrator had held
sittings at his residence at Aligarh as an Adhoc arrangement till some other suitable
arrangement was made.

26. In BBR (India) (P) Ltd.
(Supra) relied by the learned Counsel for the
petitioner, the issue before the Hon'ble
Supreme Court was "Whether conducting
the arbitration proceedings at Delhi, owing
to the appointment of a new arbitrator,
would shift the "jurisdictional seat of
arbitration" from Panchkula in Haryana, the
place fixed by the first arbitrator for the
arbitration proceedings?" The arbitration
clause was silent and did not stipulate the
seat or venue of arbitration. The contract and
letter of intent were executed at Panchkula
in Haryana. The corporate office of the
respondent is also located at Panchkula. As
disputes arose between the parties, the
matter was referred to arbitration, and Mr
Justice (Retd.) N.C. Jain was appointed as
the sole arbitrator and he held that the venue
of the proceedings would be H. No. 292,
Sector-6, Panchkula, Haryana. Neither party
had objected to the place of arbitration
proceedings as fixed by the Arbitral
Tribunal. Subsequently Mr Justice (Retd.)
N.C. Jain recused himself from continuing
as the arbitrator. Thereupon, Mr Justice
(Retd.) T.S. Doabia took over as the sole
arbitrator. The first procedural order dated
30.06.2015 stated that the venue of the
proceedings would be Delhi. Thereafter,
hearings were held and the award was
signed and pronounced at Delhi on
29.01.2016. Thereafter, two proceedings
were initiated. The respondent filed an
application Section 9 of the Act before the
Additional District Judge, Panchkula, on
07.05.2016. The appellant filed a petition
under Section 34 of the Act before the Delhi
High Court on 28.04.2016. The petition filed
by the respondent under Section 9 of the Act
at Panchkula, was dismissed on the ground
of lack of territorial jurisdiction vide order
dated 14.12.2016, recording that the
jurisdiction to entertain the application vests
solely with the Delhi High Court, where a
prior petition under Section 34 had been
filed, and was pending. The petition under
Section 9, being a subsequent petition,
would be barred under Section 42 of the Act.
This order was set aside by the High Court
of Punjab and Haryana vide order dated
14.10.2019.

27. The Hon'ble Supreme Court
held in BBR (India) (P) Ltd. (Supra) that
subsequent hearing of the proceedings at
different location other than the place fixed
by the arbitrator as 'seat of arbitration
should not be regarded and treated as a
change for relocation of the jurisdictional
seat.' The seat once fixed by the arbitral
tribunal under Section 20(2) should remain
static and fixed, whereas the venue of
arbitration can change and move from the
seat to a new location. Venue is not constant
and stationary and can move and change in
terms of sub Section (3) to Section 20 of the
Act. Change of venue does not result in
change of relocation of the seat of
arbitration.

`28. In BBR (India) (P) Ltd.
(Supra) also, the agreement between the
parties did not provide that the Courts at any
particular place will have jurisdiction
whereas the position is otherwise in the
present matter. Hence, BBR (India) (P)
Ltd. (Supra) is not relevant for decision of
the present case.
5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1239
29. The learned counsel for the
petitioner has also relied upon a judgment
rendered by a Co-ordinate Bench of this
Court in Zapdor-Ubc-Abnjv v. Union of
India, 2022 SCC OnLine All 594, in which
the petitioner had invoked the Arbitration
clause and an Arbitral Tribunal comprising
of three officers of the Railways conducted
the arbitral proceedings and they signed and
delivered an Award at New Delhi. The
respondent filed an Application under
Section 34 of the Act before the Commercial
Court at Lucknow along with an Application
for Condonation of Delay. Subsequently the
Petitioner
preferred
an
Execution
Application under Section 36 of the 1996
Act before the High Court at Delhi. This
Court had framed the following four issues
to be decided in the case: -

"a) Whether this petition under
Article 227 is maintainable?
b) Whether Cause of Action or
subject matter of the Suit would determine
the Court which could exercise supervisory
jurisdiction to decide the Section 34
petition?
c) Whether it would be the 'Venue'
or the 'Seat' of Arbitral proceedings which
would determine the Court which can
exercise supervisory jurisdiction over the
Arbitral proceedings?
d) Whether in the absence of a
specific mention in the contract agreement
regarding 'Seat' of Arbitration, the conduct
of parties would determine the 'Seat' and
therefore act as an exclusionary clause for
Courts at all other places to exercise
supervisory control over the Arbitral
proceedings?"

30. Relying on BGS SGS Soma
JV v. NHPC Ltd., (2020) 4 SCC 234, this
Court held in Zapdor-Ubc-Abnjv (Supra)
that a petition under Article 227 of the
Constitution is maintainable against the
order rejecting an application for return of
Application under Section 34 of the Act of
1996. On issues no. b, c and d, this Court
held that: -

"The contract being governed by
the Tender Paper ELCORe, It was open for
the parties, more specifically the Railways,
to determine the place of arbitration by way
of written agreement. Instead of any
written agreement or conditions in the
Contract or even in the correspondence
between the parties, specifying the seat of
arbitration,
the
Railways
agreed
to
participate in the arbitration proceedings
at New Delhi without any protest. The
Railways Hence can be said to have waived
their right to object and by their conduct
determined the venue of arbitration at New
Delhi to be also the seat of the arbitration
proceedings. Issues b, c, and d consequently
are also decided in favour of the petitioner
and it is held that failure to specifically
mention
a
Seat
of
Arbitration
and
participation in Arbitration proceedings at
New Delhi by the Railways without any
protest shall be considered as determination
of the Venue of arbitration as also the Seat,
giving exclusive jurisdiction to the Courts at
New Delhi to supervise the Arbitral
proceedings including any attack on the
Award."
(Emphasis added)

31. In Zapdor-Ubc-Abnjv (Supra)
the parties had not entered into any written
agreement specifying the seat of arbitration
and it appears that there was no agreement
regarding restricting the jurisdiction to the
Courts situated at any particular place,
whereas in the present case, the contract
between the parties provides that the Courts
at Lucknow only will have jurisdiction over
the matter.
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
32. The Arbitrator appointed by this
Court sitting at Allahabad is residing at
Aligarh and in the order passed on the first
date
of
hearing,
the Arbitrator
has
mentioned
that
till
any
suitable
arrangement is made, the venue of the
arbitral proceeding will be at Aligarh.
Therefore, it is clear that neither the parties
had agreed for the seat/venue on the
arbitration, nor had Arbitrator passed any
order to this effect. The Arbitrator had
merely made an ad-hoc provision for venue
of the arbitration till a suitable arrangement
was made. Somehow, it so happened that
suitable arrangement contemplated by the
Arbitrator could never be made and the
arbitration
proceedings
continued
and
concluded at Aligarh.

33. Section 20 of the Act provides
that the parties are free to agree on the place
of arbitration. The parties had agreed that
"all the dispute arising out of between the
dispute arising out and touching or relating
to subject matter of agreement contract shall
be subject to jurisdiction of local courts of
Lucknow and Lucknow bench of High Court
of Judicature at Allahabad only, but they did
not agree for the venue or the seat of
arbitration proceedings. The Arbitrator also
did not determine the place of arbitration
and it merely passed an order making an Adhoc arrangement stating that till any suitable
arrangement is made, the venue of the
arbitral proceeding will be at Aligarh. This
order for Ad-hoc arrangement will not
amount to a determination of the place of
arbitration and this Ad-hoc arrangement will
not prevail upon the agreement of the parties
regarding jurisdiction of the Courts at
Lucknow only.

34. Although, Clause 16 of the
contract between the parties provides that
the dispute between the parties shall be
subject to the jurisdiction of local courts at
Lucknow Bench and High Court of
Judicature at Allahabad, the petitioner filed
an application under Section 11 of the
Arbitration and Conciliation Act before this
Court sitting at Allahabad. The learned
counsel for the petitioner has submitted that
the respondent has participated in those
proceedings without raising any objection
regarding jurisdiction of the Court and,
therefore, all subsequent applications have
to be filed within the territorial limits of this
Court sitting at Allahabad in view the
provision contained in Section 42 of the Act.

35. Section 42 of the Act provides
as follows: -

"42.
Jurisdiction.-
Notwithstanding
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."

36. The word "Court" used in
Section 42 refers to the "Court" as defined
under Section 2 (e) of the Act, which reads
as follows: -

"2. Definitions.-(1) In this Part,
unless the context otherwise requires-
* * *
(e) "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 jurisdiction to decide
the questions forming the subject-matter of
the arbitration if the same had been the
5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1241
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;"

37. It would be appropriate to have
a look at Section 11 (6) and (6-B) of the Act,
which read as follows: -

"(6) Where, under an appointment
procedure agreed upon by the parties,-
(a) a party fails to act as required
under that procedure; or
(b) the parties, or the two appointed
arbitrators, fail to reach an agreement
expected of them under that procedure; or
(c)
a
person,
including
an
institution, fails to perform any function
entrusted to him or it under that procedure,
the appointment shall be made, on
an application of the party, by the arbitral
institution designated by the Supreme Court,
in
case
of
international
commercial
arbitration, or by the High Court, in case of
arbitrations
other
than
international
commercial arbitration, as the case may be
to take the necessary measure, unless the
agreement on the appointment procedure
provides other means for securing the
appointment.
(6-A) * * *
(6-B) The designation of any person
or institution by the Supreme Court or, as the
case may be, the High Court, for the
purposes of this section shall not be
regarded as a delegation of judicial power
by the Supreme Court or the High Court."

38. Appointment of Arbitrator
under Section 11 of the Act is made by "An
arbitral institution designated by the High
Court" and not by a "Court" as defined in
Section 2 (e) of the Act. It is further clarified
by Section 11 (6-B) of the Act, which
provides that designation of any person or
institution by the High Court for the
purposes of this section shall not be regarded
as a delegation of judicial power by the High
Court.

39. When the authority designated
by the High Court to make appointment of
Arbitration under Section 11 of the Act has
not been delegated any judicial powers by
the High Court, filing of any application
under Section 11(6) of the Act before 'An
arbitral institution designated by the High
Court' would not amount to filing any
application under Part I of the Act in a Court.
Therefore, the filing of an application under
Section 11 at Allahabad would not create a
bar under Section 42 of the Act against the
exercise of jurisdiction by the Commercial
Court at Lucknow.

40. Indus Mobile Distribution (P)
Ltd. (Supra) lays down that the legislature
has intentionally given jurisdiction to two
courts i.e. the court which would have
jurisdiction where the cause of action is
located and the courts where the arbitration
takes place and Emkay Global Financial
Services Ltd. (Supra) lays down that the
Courts at a particular place have exclusive
jurisdiction, an application under Section 34
of the Act can be filed before the Courts at
the place alone. The arbitration that was
conducted at Aligarh only for the same of
convenience.

41. As in the present case, the
agreement between the parties provides that
"all the dispute arising out of between the
dispute arising out and touching or relating
to subject matter of agreement contract shall
be subject to jurisdiction of local courts of
Lucknow and Lucknow bench of High Court
of Judicature at Allahabad only", as per the
law laid down by the Hon'ble Supreme
Court in Indus Mobile Distribution (P)
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Ltd. (Supra), which has been followed in
Emkay Global Financial Services Ltd.
(Supra), the Courts at Lucknow alone will
have the jurisdiction to adjudicate upon an
application under Section 34 of the Act and
the respondent has rightly filed the
application under Section 34 of the Act at
Lucknow.

42. In view of the aforesaid
discussion, I am of the considered view that
there is no illegality in the impugned order
dated 07.03.2024 passed by the Commercial
Court No. 2, Lucknow in Arbitration Case
No. 126 of 2023 rejecting the petitioner's
objection regarding lack of territorial
jurisdiction at Lucknow.

43. The petition lacks merits and is
hereby dismissed.
----------
(2024) 5 ILRA 1242
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matter Under Article 227 No. 2199 of 2023

M/S Devi Dayal Trust & Ors. ...Petitioners
Versus
M/S Rajhans Towers Pvt. Ltd.
 ...Respondent

Counsel for the Petitioners:
Sri Manish Goyal, Sr. Adv., Sri Nikhil Mishra

Counsel for the Respondent:
Sri Munna Pandey, Sri Harshit Pandey

Civil Law - Constitution of India,1950 -
Article 227- Arbitration and Conciliation Act,
1996 - - Sections 11, 34 & 42 - Petitioner-
Commercial Court's order holding lack of
territorial
jurisdiction
to
adjudicate
application under Section 34 of the Act
challenged- Section 42 of the Act- Once an
application filed under Part I of the Act in a
court- Subsequent applications pertaining to
the same arbitral agreement to be made
before
the
same
court-
Principle
of
jurisdictional exclusivity- ensures uniformity
in
adjudication
of
arbitral
matters-
Applications under Sections 8 and 11 are
exception to the bar placed by Section 42-
Venue cannot be exalted to the status of
seat- Doctrine of forum non conveniens not
applicable- Application under Section 34 to
be filed before Gautam Buddh Nagar Court-
Article 227 of the Constitution of India- High
Court can set aside the order passed by
Commercial Court- Petition allowed. (Paras
8, 10, 16, 17 and 20)

HELD:
Section 42 of the Act encapsulates the principle of
jurisdictional exclusivity. It stipulates that once an
application under Part 1 of the Act is made in a court
with respect to an arbitration agreement, all
subsequent applications under Part 1 of the Act will
have to made before that court only. By vesting
exclusive jurisdiction in a single court, Section 42 of
the Act obviates the possibility of conflicting
judgements and ensures uniformity in the
adjudication of arbitral matters. (Para 8)

As such, the argument presented by the
Respondents that since the application under
Section 11 of the Act was made before the High
Court of Delhi, all subsequent applications will
have to be made before the High Court of Delhi,
is devoid of any merit and is rejected. The
rationale underlying this exception lies in the
recognition
of
the
distinctive
nature
of
applications under Section 8 and Section 11 of
the
Act,
which
necessitate
specialized
adjudication
and
prompt
intervention.
Furthermore, since the arbitral clause between
the parties, provides for only a venue and not a
seat, it is not open for the respondent to argue
that the venue in the instant case should be
exalted to the status of seat. This is due to the
bar placed by Section 42 of the Act, since an
application under Section 9 had already been
filed before the District Court at Gautam Buddh
Nagar. (Para 10)

The question that remains now is whether this
Court in exercise of its powers under Article 227