Valmiki J. Mehta, J.:— This appeal is listed today for directions inasmuch as by dictation of judgment in open Court on 9.10.2017 the appeal was allowed by holding that courts at Delhi had territorial jurisdiction in view of the Constitution Bench judgment of the Supreme Court in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.., Inc., (2012) 9 SCC 552 and which aspect was taken with the fact that admittedly arbitration proceedings were held at Delhi. Another aspect decided was as regards the merits of the matter and it was decided to remand the matter to the court below for deciding the objections under Section 34 of the Arbitration and Conciliation Act because the impugned judgment dated 22.9.2016 was not a speaking judgment and it did not deal any issues on merits which arose between the parties.
2. During the course of correction of the judgment in chamber and refining the same, it transpired that the issue was not of whether Delhi courts had jurisdiction but that even if Delhi courts had jurisdiction yet the courts at Delhi would not exercise territorial jurisdiction because as per the contract between the parties, it was the court at Mumbai which had exclusive jurisdiction. This issue was not addressed by the counsels before this Court and since I had not signed the judgment, I listed the matter in Court today for directions. This can be done in view of the judgment of the Supreme Court in Kushalbhai Ratanbhai Rohit v. The State of Gujarat, (2014) 9 SCC 124.
3. During the course of hearing today, it is seen that decision of the objections under Section 34 of the Arbitration and Conciliation Act filed by the appellant as regards the issue of existence of territorial jurisdiction, and which issue arose on account of defence of the respondent herein that Delhi courts had no territorial jurisdiction in view of the exclusivity clause in the contract of courts at Mumbai having jurisdiction, was decided without allowing parties to lead evidence on this disputed question of fact. The issue of territorial jurisdiction is a disputed question of fact because whereas the appellant/objector pleads and argues that part of cause of action has accrued at Delhi, the respondent counters this to contend that neither whole nor part of cause of cause of action has arisen in Delhi and in any case part of cause of action has arisen at Mumbai and the exclusivity clause of Mumbai courts having jurisdiction would bar the courts at Delhi from exercising territorial jurisdiction vide Swastik Gases Private Limited v. Indian Oil Corporation Limited, (2013) 9 SCC 32.
4. Accordingly, since the impugned judgment decides the disputed question of fact without allowing parties to lead evidence i.e. depositions supported by documentary evidence, and without opportunity to the other side to cross-examine the witnesses who give depositions, it is necessary that the disputed questions of fact as regards existence of territorial jurisdiction of the courts at Delhi be decided by the court below after framing an issue to this effect and permitting the parties thereafter to lead evidence on the same.
5. I may hasten to add that I have not made any observations one way or the other, for or against any of the parties herein, on the aspect of territorial jurisdiction, and this issue of territorial jurisdiction will be decided by the courts below after parties have led evidence keeping in mind that if part of cause of action is proved to have arisen in Mumbai and there is an exclusivity clause conferring territorial jurisdiction of the Mumbai courts, then even if Delhi courts otherwise have jurisdiction, possibly the courts at Delhi would not exercise territorial jurisdiction.
6. Parties to appear before the District and Sessions Judge, East Karkardooma Courts, Delhi on 7 November, 2017 and the District and Sessions Judge will now mark the objections under Section 34 of the Arbitration and Conciliation Act to a competent court for disposal in accordance with law and the observations made in the present order.