TAPAS KUMAR BHUNIA Vs. JAGADISH PATRA

JUDGEMENT

(1.) The facts are not much in dispute. An agreement was entered into between the parties in 2012 that provided for some money being invested in a partnership business and the partnership business being conducted in a particular manner. The agreement contained an arbitration clause, without indicating the procedure for the appointment of an arbitrator. The agreement did not provide for any seat for the arbitral reference nor did the agreement contain any forum selection clause.

(2.) Upon disputes and differences arising between the parties, the appellant herein sought an arbitral reference and, upon the parties failing to agree on the composition of the arbitral tribunal in the absence of any procedure being specified in the arbitration agreement, a request was carried to this High Court under section 11 of the Arbitration and Conciliation Act, 1996. Such request was disposed of by an order dated August 26, 2016 appointing an arbitrator. The arbitrator has rendered his award on March 8, 2018. The appellant herein challenged such part of the award that went against the appellant by way of a petition under Section 34 of the said Act in this Court. The appellant's petition challenging the award, or a part thereof, was filed on June 6, 2018. However, prior thereto, on May 2, 2018, the respondent herein applied under Section 34 of the Act before the District Judge, Purba Medinipur at Tamluk for setting aside the arbitral award.

(3.) The preliminary question that arose before the arbitration Court here was whether the appellant's petition for challenging a part of the award could have been received in this Court. By the judgment and order impugned dated July 18, 2018, the petition under Section 34 of the said Act was rejected on the ground that this Court did not have the jurisdiction to entertain the same. The reasons indicated in the judgment impugned are, inter alia, that an earlier petition under Part-I of the said Act was carried to a competent Court in Purba Medinipur, that an execution application of the appellant herein was rejected by a coordinate Bench on the ground of lack of territorial jurisdiction and that that the dictum in a Supreme Court judgment reported at (2017)7 SCC 678 (Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited) was not applicable since the Indus Mobile matter dealt with a situation where there was a clause governing the seat of the arbitral reference and, in the present case, there was no choice of such seat indicated in the matrix contract or in the arbitration clause contained therein.