Order

SLP (Civil) No. 7589 of 2011

1. Leave granted. Admittedly, a raising agreement with regard to the mines located in Goa was entered into between the parties at Raipur on 9-4-2007. The first appellant operates mines in Goa. Under the raising agreement, the respondent is an exclusive purchaser of the ore from the mines of the appellants. The disputes having arisen between the parties, the respondent (hereinafter referred to as “CIL”) made an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short “the 1996 Act”) for interim protection before the Court of the District Judge, Raipur. The present appellants (hereinafter referred to as “Simoese”), who were the respondents in the application, raised the objection, by way of an application, about the jurisdiction of the District Judge, Raipur. It was submitted by Simoese that the District Judge, Raipur has no jurisdiction for three reasons: (i) the subject mines are located in Goa, (ii) the agreement was also made in Goa, and (iii) the place of residence of Respondent 2 is Goa.

2. CIL, on the other hand, responded to Simoese' objection by stating that although the subject mines are situated in Goa, the working of the company is in Raipur, the cause of action also arose in Raipur and, therefore, the District Judge, Raipur also has jurisdiction to try and entertain the matter.

3. The District Judge, Raipur elaborately noted the arguments of the parties, but curiously first observed that it would be possible to decide the issue of jurisdiction only when Simoese filed a reply to the petition under Section 9 of the 1996 Act and then dismissed the application whereby Simoese raised the objection of lack of jurisdiction.

4. Aggrieved by the order dated 6-10-2010 passed by the District Judge, Raipur, Simoese preferred appeal before the Chhattisgarh High Court. The High Court did not interfere with the order of the District Judge, Raipur and observed that the question of jurisdiction could only be decided by the District Judge after the reply was filed to the application under Section 9 of the 1996 Act. The High Court observed that the District Judge shall decide the application under Section 9 and so also the objection regarding territorial jurisdiction afresh within thirty days from the date of the filing of the reply and after hearing the parties.

5. We have heard Mr Rafiq A. Dada, learned Senior Counsel for the appellants (Simoese) and Mr Nikhilesh Krishnan, learned counsel for the respondent (CIL).

6. Clause 13 of the raising agreement dated 9-4-2007 reads as under:

“The courts at Goa shall have exclusive jurisdiction.”

7. It is not disputed by the learned counsel for CIL that Goa courts have jurisdiction, but his submission is that Raipur court also has jurisdiction and since the question of jurisdiction has not been finally decided by the District Judge, Raipur, the District Judge, Raipur must be allowed to decide the question of its own jurisdiction. In support of his arguments, the learned counsel for CIL relies upon decisions of this Court in Michael Golodetz v. Serajuddin and Co. AIR 1963 SC 1044 and Bhatia Coop. Housing Society Ltd. v. D.C Patel AIR 1953 SC 16, 1953 SCR 185.

8. On the other hand, Mr Rafiq A. Dada, learned Senior Counsel for Simoese, submits that the parties have agreed that the Goa courts shall have an exclusive jurisdiction and, thus, by their agreement the jurisdiction of the Raipur court has been ousted. He submits that in view of the jurisdiction clause in the agreement, now the Raipur court has no jurisdiction at all. In support of his arguments, the learned Senior Counsel for the appellants, relies upon two judgments of this Court — (i), Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 and (ii), State of W.B v. Associated Contractors (2015) 1 SCC 32 decided on 10-9-2014.

9. In Swastik Gases (P) Ltd. (2013) 9 SCC 32, the three-Judge Bench of this Court had an occasion to consider the issue as to whether in a contract that specifies the jurisdiction of particular courts at a particular place and such courts have jurisdiction to deal with the matter, whether the parties had intended to exclude the other courts?

10. In Swastik Gases (P) Ltd. (2013) 9 SCC 32, in the lead judgment, one of us (R.M Lodha, J., as he then was) referred to the earlier decisions of this Court in Hakam Singh v. Gammon (India) Ltd. (1971) 1 SCC 286; Globe Transport Corpn. v. Triveni Engg. Works (1983) 4 SCC 707; Angile Insulations v. Davy Ashmore India Ltd. (1995) 4 SCC 153; New Moga Transport Co. v. United India Insurance Co. Ltd. (2004) 4 SCC 677; Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia (2005) 10 SCC 704; Rajasthan SEB v. Universal Petrol Chemicals Ltd. (2009) 3 SCC 107; Balaji Coke Industry (P) Ltd. v. Maa Bhagwati Coke Gujarat (P) Ltd. (2009) 9 SCC 403; A.V.M Sales Corpn. v. Anuradha Chemicals (P) Ltd. (2012) 2 SCC 315 and culled out the legal position in para 32 of the Report as under: [Swastik Gases (P) Ltd. case (2013) 9 SCC 32]

“32. … It is a fact that whilst providing for jurisdiction clause in the agreement the words like ‘alone’, ‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties—by having Clause 18 in the agreement—is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor is it against the public policy. It does not offend Section 28 of the Contract Act in any manner.”

Madan B. Lokur, J., while writing a separate judgment, concurred with the above legal position.

11. In a very recent judgment delivered on 10-9-2014 in State of W.B v. Associated Contractors (2015) 1 SCC 32, the three-Judge Bench (speaking through one of us, Rohinton Fali Nariman, J.), noticing the decisions of this Court in FCI v. A.M Ahmed & Co. (2001) 10 SCC 532 (SCC para 6); Neycer India Ltd. v. GMB Ceramics Ltd. (2002) 9 SCC 489 (SCC para 3) with reference to Section 31(4) of the Arbitration Act, 1940 and the decisions of this Court in Jatinder Nath v. Chopra Land Developers (P) Ltd. (2007) 11 SCC 453 (SCC para 9); Rajasthan SEB v. Universal Petrol Chemicals Ltd. (2009) 3 SCC 107 (SCC paras 33 to 36) and Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 (SCC para 32), held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 (of the 1996 Act) contains a non obstante clause wiping out a contrary agreement between the parties. On the basis of the above decisions, it was further held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction.

12. In light of the legal position exposited in Swastik Gases (P) Ltd. (2013) 9 SCC 32 and Associated Contractors (2015) 1 SCC 32 and having regard to Clause 13 of the agreement, as noted above, the jurisdiction of the District Judge, Raipur is ousted and, therefore, he cannot be said to have any jurisdiction in dealing with the matter. The only competent court of jurisdiction is the court at Goa.

13. In what we have discussed above, we do not think that it is necessary to send the matter back to the District Judge, Raipur for determination of the jurisdiction as contended by the learned counsel for the respondent. In our view, relegating the parties to the District Judge, Raipur to determine the question of jurisdiction will be unnecessary and futile exercise.

14. The impugned order is, accordingly, set aside. The civil appeal is allowed as above with no order as to costs.

SLPs (Civil) Nos. 7836 and 8011 of 2011

15. Leave granted. For the reasons stated by us while allowing Civil Appeal No. 8933 of 2014 [arising out of SLP (Civil) No. 7589 of 2011], B.E Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd., these civil appeals are also allowed and the impugned order is set aside.

16. No costs.