TATA INTERNATIONAL LIMITED Vs. TRISUNS CHEMICAL INDUSTRY LIMITED

JUDGEMENT

(1.) THE petitioners have a foreign Award in their favour. They have applied to this Court under section 47 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as; "act"), for enforcement of the Award as a deemed decree under section 49 of the Act. Respondents had appeared and filed objection to the maintainability of the petition on the ground that considering the explanation to section 47 of the Act, as no part of cause of action in respect of the subject matter of the Award has arisen within the jurisdiction of this Court, this Court would have no jurisdiction. The petition as filed it was contended, is before a Court having no jurisdiction and consequently application must be rejected. The petitioners have thereafter sought leave under Clauses 12 of the Letters Patent. It is their contention that the cause of action in respect of the subject matter of the arbitral agreement under reference as well as the subject matter of the Award arose within the jurisdiction of this Court. A part of the cause of action has arisen outside the jurisdiction of this Court. In these circumstances, by way of abundant precaution, petitioners have applied for leave under Clause 12 of the Letters Patent. This is without prejudice to their contention that leave is not required. The respondents have again opposed this application on the ground that no part of cause of action has arisen within the jurisdiction of this Court. It is their contention that the offer made by the petitioner was accepted at Gandhidham. A contract therefore, was entered into at Gandhidham or came into existence there. The goods were shipped from Kandla Port (Gujarat) and sent to France directly. In terms of the invoices, it was a stipulation that money was to be paid to the respondents bankers, State Bank of India overseas branch, Ahmedabad (Gujarat ). In fact for the goods shipped from Gujarat to France, the payment was credited in the respondents account maintained with their bankers at Ahmedabad. The petitioners, it is contended, have their head office at Gandhidham and branch office at Ahmedabad. They have no office within the jurisdiction of this Court. It is also contended that leave under Clause 12 cannot be sought after the application had been filed. The leave had to be sought before filing of the application. The application for leave therefore, ought to be rejected on this count alone.

(2.) THE first question therefore, which has to be considered a whether leave under Clause 12 is required to maintain a petition under section 47 of the Act, to enforce a foreign Award. Explanation to section 47 defines the Court to mean the principal Civil Court of Original Jurisdiction in the district and includes High Court in exercise of its Ordinary Original Civil Jurisdiction, having jurisdiction over the subject matter of the Award if the same had been the subject matter of the suit. This is for the purpose of Part II of the Act including Chapter I which cover foreign awards. In so far as Part I of the Act which covers domestic arbitrations, the Court has been defined under section 2 (e) to mean the principal Civil Court of Original Jurisdiction in the district and includes High Courts in exercise of its Ordinary Original Civil Jurisdiction having jurisdiction to decide questions forming the subject matter of the arbitration, if the same had been subject matter of the suit. Therefore, both the explanation to section 47 and under section 2 (e), Court means the principal Civil Court of Original Jurisdiction in the district and includes High Court having Original Jurisdiction. Considering the pecuniary limits and the amount involved in the present petition, it will be the High Court which will be the Principal Civil Court of Original Jurisdiction in so far as present Award is concerned. Expression Court came up for consideration before me in (R. J. Shah and Co. v. Konkan Railway Corporation Ltd.), by judgment dated 31st July, 2001. On the consideration of the expression District Court and principal Civil Court, it has been held that it would be the principal Civil Court having jurisdiction over the subject matter and not the District Court even if it will be principal Civil Court in the district unless the jurisdiction to try suits had been conferred on such District Court. The jurisdiction of this Court as a chartered High Court is regulated by Clause 12 of Letters Patent. Under section 120 of the Code of Civil Procedure, provisions of sections 16, 17 and 20 shall not apply to the High Court in exercise of its Original Civil Jurisdiction. Clauses (a) to (e) of section 16 are in respect of suits where the subject matter is immovable property. The only exception is Clause (f) which provides for recovery of movable property actually in distress or attachment. Section 17 again provides for filing of the suit to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts. Section 20 provides for cases in respect of other suits. Clause 12 of the amended Letters Patent of this Court read as under:

(3.) IN my opinion therefore, once the power has been conferred on this Court to entertain the application either under Part I or under Part II, Clause 12 would be attracted and as such would include the power to grant leave to a party who seeks to invoke it. The Act of 1996 confers power on this Court in the exercise of its Ordinary Original Civil Jurisdiction. To understand what is its Ordinary Original Civil Jurisdiction, one has to refer to the amended Letters Patent. In my opinion, therefore, the judgment in Harishankar firstly was under the Arbitration Act, 1940 but secondly did not consider the provisions of section 120 of the Code of Civil Procedure. That judgment therefore, will have no binding effect warranting reference of the issue by this Court to a larger Bench of this Court. It is further made clear that it is only when there is conflict in the ratio decendi as culled from the judgments can it be said that there is conflict. If the ratio culled discloses that the judgment was passed by ignoring provisions of the Act which confer jurisdiction then that ratio of that judgment cannot be said to be binding. Law of Precedents is the ratio decendi of the judgment. Judicial consistency must be in respect thereof. A judgment ignoring relevant provisions of law would not be a binding precedent.