# Saxena v. Union of India and others

- **Citation:** (2009) 2 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-01
- **Case number:** First Appeal From Order No.794 of 2009
- **Bench:** S.K. Singh, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saxena-v-union-of-india-and-others-41388
- **Pages:** 4

## Headnote

Act-Section-42-Jurisdiction
of
court-arbitration
clause
26.4
specifically excluded the jurisdiction of
any court- other than courts at Mumbaicause
of
action
partly
are
within
terrestrial limit of Jhansi Court- held no
jurisdiction.
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Held: Para 12

In view of the aforesaid facts and
circumstances and the reasons given we
are of the considered view that the
jurisdiction of the court at Jhansi to
entertain an application under Section 9
of the Act in relation to a subject matter
which is governed by the arbitration
clause stand completely ousted by virtue
of clause 26.4 of the agreement and the
courts
at
Mumbai
alone
have
the
exclusive
jurisdiction.
Therefore,
the
courts below has committed no error in
passing the impugned order and in
relegating
the
appellant
to
the
jurisdiction of the Mumbai court.
Case Law discussed:
(2006)11 SCC 521

## Text

2 All] Anis & General V. State of U.P.
379
telegram, as is evident from the order
dated 01.07.2008, passed by the court
below in bail application no. 2115 of 2008
(Annexure-3).

7. It is also submitted that the
applicant used to sell bangles in Aligarh
and police wanted to engage him for
mukhbiri, for which the applicant was not
inclined and hence being annoyed, he has
been falsely roped in this case.

8. It is further submitted that the
applicant is young boy and he will be
ruined in the company of hardened
criminals, if detained further in jail.

9. AGA has opposed the bail
application
contending
that
stolen
licenced revolver and sim card of the
complainant have been revered from the
possession of applicant and he should not
be released in this heinous crime.

10. Having given my thoughtful
consideration to the rival submissions of
the parties counsel, in this heinous crime,
the applicant does not deserves bail, as
stolen licenced revolver and mobile sim
are said to have been recovered from the
applicant's possession, for which there is
sufficient prima facie evidence.

11. In my considered opinion, the
applicant can not be admitted to bail on
the basis of the period of detention in jail
also. In this regard, reference may be
made to the case of Pramod Kumar
Saxena Vs. Union of India and others
2008(63) ACC 115, in which the Hon'ble
Apex Court has held that mere long
period of incarceration in jail would not
be perse illegal. If the applicant has
committed offence, he has to remain
behind bars. Such detention in jail even as
an under trial prisoner would not be
violative of Article 21 of the Constitution.

12. For the reasons mentioned
herein-above, the bail application of the
applicant Anis @ General is hereby
rejected.

13. The trial court concerned is
directed to conclude the trial of the
applicant within for months, if possible,
applying the provisions of section 309 Cr.
P.C.
and
avoiding
unnecessary
adjournments.

14. The Office is directed to send a
copy of this order within a week to the
trial court concerned for necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2009

BEFORE
THE HON'BLE S.K. SINGH, J.
THE HON'BLE PANKAJ MITHAL, J.

First Appeal From Order No.794 of 2009

NKC Projects Pvt. Ltd. and another

...Appellants

Versus
Utility Energytech & Engineers Pvt. Ltd.
and another

 ...Respondents

Counsel for the Appellants:
Sri A.K. Gupta
Sri O.P. Lohia

Counsel for the Respondents:

Arbitration
Act-Section-42-Jurisdiction
of
court-arbitration
clause
26.4
specifically excluded the jurisdiction of
any court- other than courts at Mumbaicause
of
action
partly
are
within
terrestrial limit of Jhansi Court- held no
jurisdiction.
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Held: Para 12

In view of the aforesaid facts and
circumstances and the reasons given we
are of the considered view that the
jurisdiction of the court at Jhansi to
entertain an application under Section 9
of the Act in relation to a subject matter
which is governed by the arbitration
clause stand completely ousted by virtue
of clause 26.4 of the agreement and the
courts
at
Mumbai
alone
have
the
exclusive
jurisdiction.
Therefore,
the
courts below has committed no error in
passing the impugned order and in
relegating
the
appellant
to
the
jurisdiction of the Mumbai court.
Case Law discussed:
(2006)11 SCC 521

(Delivered by Hon'ble S.K. Singh, J.)

1. The short point involved in this
First Appeal From Order is whether in
view of the arbitration clause 26.4
contained in the agreement providing
Mumbai to be the place of arbitration and
that arbitration shall be subject to
jurisdiction of the courts at Mumbai only,
the Jurisdiction of the courts at Jhansi to
entertain an appliance for interim measure
under Section 9 of the Arbitration and
Conciliation Act, 1996 (hereinafter for
short 'Act).

2.

The
appellant
moved
an
application under Section 9 of the Act
before the District Judge, Jhansi seeking
interim protection that the respondents be
restrained from en-cashing the bank
guarantees furnished by the appellant as
securities for the purpose of civil contract
awarded to be carried out at Jhansi. The
said application which was registered as
Misc. Case no. 31 of 2009 after notice to
the other side was disposed of by the
order impugned with the direction than
the Court at Jhansi has no jurisdiction in
view of the arbitration clause 26.4 of the
contract agreement and therefore, the
appellant may prefer the application
before the principle court at Mumbai.

3. Heard Sri A. K. Gupta and Sri
O.P. Lohia, learned counsel in support of
this appeal and perused the record.

4. The submission of the learned
counsel
for
the
appellant
is
that
irrespective of the jurisdiction conferred
upon
the
Mumbai
courts
by
the
agreement, the application for interim
protection under Section 9 of the Act is
maintainable even at Jhansi where at least
part of the cause of action had arisen.
.

5. To test the above submission let
us first examine the arbitration clause
26.4 of the agreement, the relevant part of
which is reproduced below:

"The venue of arbitration shall be
Mumbai and the language of arbitration
shall be English. The arbitration shall
subject to jurisdiction of the courts at
Mumbai only."

6. This clause not only provides that
Mumbai shall be the place of arbitration
but also that the courts at Mumbai alone
shall have jurisdiction in respect to
arbitration
between
the
parties.
Admittedly vide clause 26.4 of the
agreement
all
disputes
concerning
arbitration between the parties have been
subjected to the exclusive jurisdiction of
the courts of Mumbai only. It is a
recognised principal of law that whenever
there is a specific clause in the agreement
conferring jurisdiction on particular court
to decide the matter then it automatically
ousts the jurisdiction on the other court.
Therefore, in the instant case the
2 All] NKC Project Pvt. Ltd. & another V. Utility Energytech & Engineers & another
381
jurisdiction of any other court other than
of courts at Mumbai in respect to
arbitration stand excluded and arbitration
or any proceedings in relation thereto are
supposed to be maintained in the courts at
Mumbai only.

7. Now Section 9 of the Act
envisages movement of an application for
interim measure/protection before a court
not only during the arbitral proceedings or
after the declaration of the arbitral award
but also before the initiation of such
arbitral
proceeding,
which
are
in
contemplation.

8. Learned counsel for the appellant
accepts that during the course of the
arbitral proceedings and subsequent to the
making of the award an application for
the interim protection under Section 9 of
the Act can be maintained in the Courts at
Mumbai only. He also accepts that even
an application under Section 11(6) of the
Act, if necessary, for the appointment on
an arbitrator would lie in the courts at
Mumbai i.e. before Bombay High Court.
The question therefore is whether an
application under Section 9 of the Act for
interim protection in contemplation of
arbitration proceedings can be maintained
before any other court other than the
Courts of Mumbai.

9. The answer to the above question
is contained in Section 42 of the Act
which
provides
that
notwithstanding
anything contained elsewhere in law
where an application 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
proceeding shall be subject to that court
only and in no other court. This clearly
means that the intention of the legislature
is to confer jurisdiction with regard to the
subject matter of arbitration in one
particular court and where two or more
courts may be having jurisdiction, the
court wherein any application is made
first shall alone have jurisdiction over the
matter. The purpose of enacting Section
42 of the Act is obviously to avoid
institution of simultaneous proceedings at
two places or in two different courts and
to have all matter arising out of a
particular arbitration agreement decided
by one court. Thus, eventually when
during the courses of arbitral proceedings
and after making the arbitral award it is
accepted that the courts at Mumbai alone
have jurisdiction, it does not appeal to
reason
to
confer
the
same
very
jurisdiction to any other court particularly
to courts at Jhansi to deal with the same
subject matter before the commencement
of the arbitral proceedings. Therefore, we
are of the opinion that in view of the
arbitration proceeding clause 26.4 of the
agreement, the jurisdiction of courts at
Jhansi stand impliedly excluded and it is
only the courts at Mumbai that are
empowered to take cognizance of the
subject matter not only during arbitral
proceedings or after the making or arbitral
award but even before the initiation of
arbitral proceedings so that the uniformity
in
the
forum
of
adjudication
is
maintained.

10. The view which we have taken
above also finds support from the decision
of the Apex Court reported in (2006) 11
SCC 521 Jindal Vijaynagar Steel (JSW
Steel Ltd) Vs. Jindal Praxair Oxygen
Co. Ltd., wherein it has been observed
that the rule of forum convenience is
expressly excluded by Section 42 of the
Act which mandates that all future actions
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
be filed only in the court where the first
application with regard to an arbitration
was filed. The necessary corollary of the
same would be that when the court in
which future actions in the matter is to be
taken is known with certainty before hand
then in that case the initial action ought to
be confined to the said pre-determined
court only. Therefore, where the parties
themselves have chosen a particular place
to be the place for arbitration and
proceedings connected thereto (refer
clause 26.4 of the agreement) and the
agreement specifically provides for a
dispute resolution meeting to be held at a
particular place and for the proceedings
thereafter to be within the jurisdiction of
the courts of that particular place, we are
of the view that by virtue of the mandate
of section 42 of the Act all proceedings in
connection with the arbitration shall lie
before that particular court only.

11. Therefore, even in the part of
cause of action, covered by arbitration
clause, arises at Jhansi as per the
definition of the Court contained in
Section 2 (e), Section 9 and Section 42 of
the Act to make the scheme of the Act
workable lead us to hold that the court
having
jurisdiction
to
entertain
applications under Section 9 of the Act
during the arbitral proceedings or after the
making of the award alone would have
exclusive jurisdiction over such an
application even if it is moved before the
start of the arbitration proceedings.

12. In view of the aforesaid facts
and circumstances and the reasons given
we are of the considered view that the
jurisdiction of the court at Jhansi to
entertain an application under Section 9 of
the Act in relation to a subject matter
which is governed by the arbitration
clause stand completely ousted by virtue
of clause 26.4 of the agreement and the
courts at Mumbai alone have the
exclusive jurisdiction. Therefore, the
courts below has committed no error in
passing the impugned order and in
relegating the appellant to the jurisdiction
of the Mumbai court.

13. Accordingly, the appeal lacks
merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 60707 of 2008

Sher Singh and others ...Petitioners
Versus
Dy.
Director
of
Consolidation,
Bulandshahar and others ...Respondents

Counsel for the Petitionerst:
Sri Brajesh Kumar Solanki
Sri S.P. Singh

Counsel for the Respondents:
Sri Jai Singh Chandel
Sri V.K. Singh
S.C.

Consolidation of Holding Act 1960-48
Chak allotment at the S.O.C. Stage
finalized- petitioner being satisfied not
preferred any revision-D.D.C. altered the
chak-
after
knowledge
filed
recall
application denying the institution of
revision-nor the order sheet bears his
signature
rejection-without
taking
handwriting
expert
opinion-held-not
proper.

Held: Para 7