GIRDHAR SONDHI Vs. EMKAY GLOBAL FINANCIAL SERVICES LTD.

JUDGEMENT

(1.) This appeal is listed today for directions inasmuch as by dictation of judgment in open Court on 9.10.2017 the appeal was allowed by holding that courts at Delhi had territorial jurisdiction in view of the Constitution Bench judgment of the Supreme Court in the case of Bharat Aluminium Company and Ors. etc. v. Kaiser Aluminium Technical Services, Inc. and Ors. etc. (2012) 9 SCC 552 and which aspect was taken with the fact that admittedly arbitration proceedings were held at Delhi. Another aspect decided was as regards the merits of the matter and it was decided to remand the matter to the court below for deciding the objections under Section 34 of the Arbitration and Conciliation Act because the impugned judgment dated 22.9.2016 was not a speaking judgment and it did not deal any issues on merits which arose between the parties.

(2.) During the course of correction of the judgment in chamber and refining the same, it transpired that the issue was not of whether Delhi courts had jurisdiction but that even if Delhi courts had jurisdiction yet the courts at Delhi would not exercise territorial jurisdiction because as per the contract between the parties, it was the court at Mumbai which had exclusive jurisdiction. This issue was not addressed by the counsels before this Court and since I had not signed the judgment, I listed the matter in Court today for directions. This can be done in view of the judgment of the Supreme Court in Kushalbhai Ratanbhai Rohit and Ors. v. The State of Gujarat 2014(9) SCC 124.

(3.) During the course of hearing today, it is seen that decision of the objections under Section 34 of the Arbitration and Conciliation Act filed by the appellant as regards the issue of existence of territorial jurisdiction, and which issue arose on account of defence of the respondent herein that Delhi courts had no territorial jurisdiction in view of the exclusivity clause in the contract of courts at Mumbai having jurisdiction, was decided without allowing parties to lead evidence on this disputed question of fact. The issue of territorial jurisdiction is a disputed question of fact because whereas the appellant/objector pleads and argues that part of cause of action has accrued at Delhi, the respondent counters this to contend that neither whole nor part of cause of cause of action has arisen in Delhi and in any case part of cause of action has arisen at Mumbai and the exclusivity clause of Mumbai courts having jurisdiction would bar the courts at Delhi from exercising territorial jurisdiction vide Swastik Gases P. Ltd. v. Indian Oil Corporation Ltd (2013 )9 SCC 32.