ORISSA STAVEDORESP Vs. HINDUSTAN FERTILIZER

JUDGEMENT

(1.) This revision is directed against the order of the learned Subordinate Judge of Bhubaneswar passed in Misc. Case No. 197 of 1984 in which injunction was prayed for against the present opposite parties to restrain them from taking any steps for entrusting the work of handling the vessel 'M. V. Alkar' to any other agency other than the petitioner at Kakinada Port and for a further direction to assign the work of handling the said vessel to the petitioner as the clearing and forwarding contractor.

(2.) AN objection was raised by the Stamp Reporter that the impugned order being one under Order 39, Rule 1, C. P C, the same is appealable and no revision would lie. By order dated 27 -4 -J985 this Court deferred the consideration about maintainability of the revision to be taken up at the time of final hearing of the Civil Revision. The opposite parties rightly did not press the point relating to the maintainability of this revision inasmuch as the impugned order is really one under Section 41(b) of the Arbitration Act read with the second Schedule appended to the said Act. Thus it is not being an order included in Section 39 of the Act, no appeal would lie to this Court. Hence this revision is maintainable. After discussing the facts. His Lordship observed : 6. Admittedly the terms and conditions of the contract entered into by the petitioner with the Hindustan Fertilizer Corporation Ltd. (opp. party No. 1) describe the period of contract to be one year from 1 -6 -1984 with the reservation that the General Manager (Marketing) of opp party No. 1 has the right to extend the period of contract for a further period of one year on the same terms and conditions. It is no body's case that after expiry of the period of one year there has been any extension of the term as stipulated in the contract. Therefore, the question as to whether the petitioner would be entitled to an injunction in respect of the ships or vessels which would reach Kakinada Port in future would be academic after the expiry of the period of the contract. In this view of the matter it would be unnecessary to decide as to whether the petitioner's prayer for injunction is available to be granted in view of the provisions of Specific Relief Act and as also on merits. The only question that comes up for consideration is as to whether the learned Subordinate Judge, Bhubaneswar, would be the competent Court to entertain any proceeding under the Arbitration Act. As has been already stated, the petitioner has filed a suit under Section 20 of the Arbitration Act and thereafter filed an application under Section 41 of the Act praying for injunction against the opp. parties. The learned Subordinate Judge in the impugned order has held that in view of the terms of the agreement between the parties no proceeding under the Arbitration Act is maintainable in the said Court. The correctness of the said finding would evidently affect the suit pending before him under Section 20 of the Act. Thus the discussions would be confined to the aforesaid question only. 7. It is well -established proposition of law that jurisdiction cannot be conferred on a Court or taken away from it by an agreement between the litigating parties. But where two Courts or more have been conferred with jurisdiction by law to try a suit or a proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is neither contrary to public policy nor contravenes Section 28 of the Contract Act, Vide A.I.R. 1971 S. C. 740 Hakim Singh v. M/s. Gammon (India) Ltd. If by agreement between the parties they agree that one of the several Courts having jurisdiction is to adjudicate the dispute, such a stipulation can operate as estoppel against the parties, but cannot take away the jurisdiction of the other Courts. If such a stipulation ousting the jurisdiction of a Court is oppressive, unfair, causes hardship or unworkable, the Court whose jurisdiction has been ousted can relieve the parties and entertain the dispute for decision. This being the accepted principle of law, it is to be analysed as to whether the learned Subordinate Judge is competent to entertain the dispute between the parties. 8. Clause 15(b) of the agreement reads as follows : '15(b). The venue of all arbitration proceedings shall be in the city of Calcutta.' The learned Subordinate Judge while interpreting this clause came to hold that arbitration proceedings mean all proceedings under the Arbitration Act either before the Court or before the Arbitrator. He thus concluded that the Subordinate Judge Bhubaneswar would not entertain any application under the Arbitration Act in view of the stipulations of Clause 15(b) of the agreement.

(3.) Ordinarily a suit for compensation may be instituted where the cause of action wholly or in part arises or where the defendant or each of the defendants where there are more than one, actually or voluntarily resides or carries on business or personally works for gain at the time of commencement of the suit. The opp. party No. 1 has got its marketing division at Calcutta. Thus any action could be brought in the appropriate court at Calcutta against the opp. party No. 1. Keeping aside the effect of the stipulations in Clause 15(b) of the agreement, there is no dispute between the parties that the Subordinate Judge Bhubaneswar is also a Court having jurisdiction to entertain the suit under Section 20 of the Arbitration Act and the proceeding under Section 41 of the said Act. It has been argued by the learned counsel for the petitioner that in the context the clause 'arbitration proceeding' appearing in the agreement would mean arbitration proceeding only before the Arbitrator and not the proceedings before an Court it has been argued that there having been no reference to any particular Court in the city of Calcutta in Clause 15(b) of the agreement it would be improper to hold that the parties intended to have the arbitration proceedings in the Courts only at Calcutta. According to the petitioner, it would work hardship and oppressive to direct the parties to go to the Court of Calcutta for decision of every dispute which is neither convenient nor economical to the parties. It is no doubt correct to say that the proceeding before a Court under any of the provisions of the Arbitration Act is an arbitration proceeding and the said phrase cannot refer to the proceeding before the Arbitrator alone. Thus the grammatical meaning of the Clause 15(b) of the agreement would mean that the place of action of all proceedings either before the Court or before the Arbitrator shall be at Calcutta. The ordinary rule of construction of the agreement would be the plain grammatical meaning which it conveys and the intention of the parties is to be gathered therefore. The language of Clause 15(b) is clear and unambiguous that the parties intended to have the arbitration proceedings in the city of Calcutta and not at any other place. In the facts and circumstances already discussed, the appropriate Court at Calcutta will be a Court having jurisdiction to deal with this matter. It has already been stated that though the parties by mutual agreement cannot confer jurisdiction upon a Court which it does not possess nor can oust the jurisdiction of a Court otherwise possessed by it they can however choose one of the several Courts having jurisdiction, which is neither opposed to public policy nor does it violate Section 28 of the Contract Act. It therefore fellows that such an agreement is enforceable as between the parties to the agreement.