TIMBER PVT LTD Vs. SIKANDIA INSURANCE CO LTD

JUDGEMENT

(1.) THIS appeal under Section 39 of the Arbitration Act, is directed against an order of the learned Single Judge (Mr. Justice Mian Jalal -ud -Din) of this court dated August 19, 1972, allowing the preliminary objection of the respondent and holding that in view of the warranty "Q" forming part of the agreement namely the Insurance Policy taken out by the -appellant, the Bombay courts alone had jurisdiction in the matter.

(2.) MR . S. P. Gupta appearing in support of the appeal has not in view of the Explanation II to Section 20 of the Code of Civil Procedure and the decision of their Lordships of the Supreme Court in Hakam Singh V. M/S Gammon (India) Ltd. A.I.E. 1971 S.C. 740, questioned the validity of the warranty clause of the Insurance Policy which runs as under: "That in case of any claim arising in respect of the property hereby insured the same shall be settled and paid in Bombay and the entire cause of action shall be deemed to arise in Bombay and further that all legal proceedings in respect of any such claim shall be instituted in a competent court in the city of Bombay".

(3.) THE learned counsel has however, contended that the order passed by the learned Single Judge is erroneous and cannot be sustained as his client had not signed the agreement nor had agreed to the said warranty. This submission, in our opinion, is wholly mis -conceived and cannot be allowed to prevail. In the first instance the plea is wholly new and cannot be allowed to be raised at this stage. Secondly, the warranty forms an integral part of the arbitration agreement which though should be in writing is not required to be signed by both the parties (see Union of India V. A. L. Ralia R -m, A.I.R. 1963 S.C. 1685).