TEXMACO LTD Vs. TIRUPATI BUILDERSTATES PVT LTD

JUDGEMENT

(1.) An objection on the ground of territorial jurisdiction pertaining to a request under Section 11 of the Arbitration and Conciliation Act, 1996 is more of an avoidable irritant, since in such proceedings, unlike in a full-fledged action, the only thing that a Chief Justice or his designate is required to do is to make a decision on whether there are live claims to go to arbitration and, if so, set up the arbitral tribunal. Yet, judicial propriety demands that the Chief Justice or his designate receiving a request under Section 11 of the Act keep within the bounds of authority.

(2.) The two points canvassed by the respondent here, though of similar ultimate effect, question the authority of the Chief Justice of this Court or his designate, in varying degrees, to take up this matter. The respondent says that since the disputes between the parties relate to a land which is situated in Delhi, no Court in this State could have received an application pertaining to the proposed reference and, as a consequence, the Chief Justice of this Court or his designate would not have the authority to receive a request under Section 11 of the Act in respect of such proposed reference. The other challenge is on the ground of Section 42 of the 1996 Act. The respondent says that since there was, admittedly, a petition filed under Section 9 of the 1996 Act pertaining to this arbitration agreement before the Delhi High Court, all subsequent applications in respect of the agreement have per force to be carried to the Delhi High Court. Though, In the ultimate analysis, the petitioner failing on either count of challenge will have the identical effect, the two objections are qualitatively different. In the second case, there is a fundamental challenge thrown to the authority of the Chief Justice of this Court or his designate to receive the request. In the other case, the challenge has more to do with whether the authority under Section 11 of the 1996 Act can, on facts, be exercised by the Chief Justice of this Court or his designate.

(3.) It is, thus, that the second challenge urged by the respondent has to be taken up first since, if it is found that the Chief Justice of this Court or his designate did not have the authority to receive the request, the matter would end there without any assessment being required as to whether the nature of the disputes would make the reference a suit for land. In support of the respondent's contention on such ground, a Division Bench judgment (Visva Bharati v. Sarkar and Sarkar, 2008 AIR(Cal) 1934) is placed. A recent Single Bench judgment (Ranjita Apartment Owners Association v. Prabir Kumar Chakraborty, 2011 AIR(Cal) 82) is also cited. The respondent suggests that in view of the Division Bench judgment and the more recent opinion of a single Judge of this Court, the position as recognised in a previous Single Bench judgment (Apeejay Oxford Bookstores Private Limited v. Hotel Leela Venture Limited, 2007 3 CalLT 43) is no longer good law.