IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5430-5431 OF 2002

Rajasthan State Electricity Board …Appellant

Versus

M/s. Universal Petrol Chemicals Ltd.      …Respondent  

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Being  aggrieved  by  the  common  judgment  and  order  dated

17.04.2001 passed by the  Division Bench of  the High Court  of

Calcutta  in  Appeal  Number 462 and 463 of  1992,  allowing the

appeals filed by the respondent against the judgment of a learned

Single  Judge,  these  civil  appeals  have  been  preferred  where

special  leave  was  granted.   Since  both  these  appeals  involve

similar  questions  of  law  and  facts  and  arise  out  of  the  same

impugned order, we propose to dispose of both these appeals by

this common judgment and order.     

2. The  appellant  Board  which  is  having  its  base  and  operation  at

Jaipur placed an order for supply of 50 kiloliter of transformer oil

with the respondent Company which is having its registered office

and  manufacturing  unit  at  Calcutta  vide  purchase  order  No.

RSEB/SE/Proc.I/TN-1261/U/Petrochemical/937  dated  23.9.1985

for an amount of Rs. 6,09,144/-.  In terms of clause 5 of the said

purchase order, the respondent was required to deposit security in

the form of bank guarantee for an amount equivalent to 2 per cent

of  the  contract  value.   In  addition,  the  respondent  was  also

required to furnish a performance guarantee equivalent  to 5 per

cent  of  the  contract  value  for  satisfactory performance  and due

execution  of  the  said  contract.   Subsequent  to  the  aforesaid

purchase order,  an agreement was also entered into between the

parties on 16.10.1985 at Jaipur.

3. Subsequently the appellant  Board placed another  purchase order

vide  No.  RSEB/SE/Proc.I/TN-1312/202  dated  02.12.1987  for

supply of  150 kiloliter of  transformer oil  for  an amount  of  Rs.

19,50,000/-.  Similar to the previous purchase order, in the present

purchase  order  also  the  respondent  was  required  to  furnish  the

bank  guarantee  equivalent  to  2  per  cent  of  the  contract  value

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towards  security  deposit  and  equivalent  to  5  per  cent  of  the

contract  value  towards  performance  guarantee.   Accordingly  an

agreement was also entered into between the parties on 16.12.1987

at Jaipur.

4. In  terms  of  the  abovesaid  two  purchase  orders  and  agreements

thereon the respondent was required to furnish bank guarantee to

the tune of Rs. 1,79,200/-.  In compliance to the said condition

with respect to the bank guarantee the respondent furnished four

bank  guarantees  for  amounts  of  Rs.  12200/-,  Rs.  30500/-,  Rs.

39000/- and Rs. 97500/-.  These guarantees were executed by the

Allahabad Bank at Jaipur Branch on behalf of their Main Branch

at Calcutta.   

5.  Before  we  proceed  further  it  would  be  appropriate  for  us  to

extract herein the relevant clauses with respect to adjudication of

the disputes, if any, which were common in both the agreements.

Clause  30  of  the  General  Conditions  of  the  Contract  inter  alia

stipulates as under:-

“30…..The contract  shall  for all  purposes be construed according to the laws of India and subject to jurisdiction of only at Jaipur in Rajasthan Courts only………..”

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Clause 31 of the General Conditions of the Contract, which is

an arbitration clause, reads as under:-

“31.    ARBITRATION

(a) If  at  any  time  any  question,  dispute  to difference  whatsoever  which  may  arise  between the Purchaser and the Supplier upon or in relation to Contract, either party may forthwith to the order a  notice  in  writing  of  the  existence  of  such question(s)/dispute(s)  differences  and  the  same shall be referred to the Chairman, RSEB, Jaipur or any  person  appointed  by  him  for  the  purpose (herein  referred  to  the  ‘Arbitrator’).   Such reference shall  be deemed to be a submission to the  arbitration  within  the  meaning  of  the  Indian Arbitration  Act,  1940  and  the  statutory modifications made thereof.

(b) The award of the Arbitrator shall be final and binding on both the parties.

(c) Upon  every  or  any  such  reference,  the  cost incidental to such reference and an award shall be in  the  discretion  of  the  Arbitrator  who  may determine the amount thereof and direct the same to be borne and paid.

(d)  Work under the Contract  shall,  if  reasonably possible,  continue  during  the  arbitration proceedings and no payment due or payable by the Purchaser  shall  be  withheld  on  account  of  such proceedings.”

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In  the  second  purchase  order  which  is  dated  02.12.1987,  in

addition  to  the  above  mentioned  clauses,  a  clause  was  also

incorporated which is with respect to the jurisdiction of the Court in

case of disputes:

“DISPUTES

All  disputes,  differences  or  questions  whatever  which may arise between the Purchaser and the Supplier upon or  in  relation  with  or  in  connection  with  the  contract shall be deemed to have arisen at Jaipur (Rajasthan) and no Court other than the Court at Jaipur (Rajasthan) shall have jurisdiction to entertain or try the same.”

A clause, namely, Clause 7 was also incorporated in the bank

guarantee  which  is  with  respect  to  the  jurisdiction  of  Courts  for

adjudication of disputes arising under the bank guarantee.  The said

clause reads as under:-

“All disputes arising in the said Bank Guarantee between the Bank and the Board or between the supplier or the Board pertaining to this guarantee shall be subject to the courts only at Jaipur in Rajasthan.”

6. Somehow the disputes arose between the parties.   The appellant

alleged that the respondent  has failed to perform his part  of the

contract  inasmuch  as  the  respondent  has  supplied  defective

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transformer oil  and as such on receipt  of such supply, the same

was rejected by the Board requiring the respondent to replace the

same.  Thereafter  the appellant  took steps  for  invocation of  the

bank guarantees in view of the fact that the respondent has failed

to  adhere  to  the  aforesaid  requirement  and  also  neglected  to

replace the defective transformer oil.   

7. The  respondent  being  aggrieved  by  the  actions  taken  by  the

appellant filed a petition under Section 20 of The Arbitration Act,

1940 (for short the “Act”) in the nature of a suit in the High Court

at Calcutta being Special Suit No. 70 of 1990.  In the said suit, the

respondent also moved an application under Section 41 of the Act

seeking  interim  reliefs.   The  appellant  herein  contested  the

aforesaid suit.  By an Order dated 06.03.1991, the learned Single

Judge of the High Court dismissed the petition and also vacated

the interim order which was passed earlier.   

8. On  appeal  being  filed  by  the  respondent,  the  said  order  of

06.03.1991 passed by the learned Single Judge was set aside and

the matter was remanded back for fresh consideration.

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9. Consequent upon the aforesaid order of remand, the learned Single

Judge again heard the suit and passed a similar order dismissing

the petition  filed  by the  appellant  under  Section  20 of  the Act.

Being  aggrieved  by  the  said  final  order  passed  by  the  learned

Single Judge,  two appeals were filed before the Division Bench

which  were  heard  together  and  the  same  were  allowed  by  the

Division Bench under the impugned order dated 17.04.2001.  

10.The said impugned judgment and order is under challenge in both

the appeals on which we heard the learned counsel appearing for

the parties who had taken us through the relevant documents.   By

the  impugned  order,  the  Division  Bench  of  the  Calcutta  High

Court  held  that  the  forum selection  clause  as  appearing  in  the

agreements between the parties would not operate in view of the

specific prohibition under Section 31(4) of the Act.  It  was also

held that since the respondent had made an application before the

Calcutta  High  Court  having  competent  jurisdiction  to  try  and

decide the proceedings, the said Calcutta Court would be entitled

to exercise jurisdiction and that all subsequent applications would

be made to that Court only as first application was made in that

Court by the respondent.  Consequently, the appeals were allowed

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and the judgment of the learned Single Judge was set aside.  The

matter was directed to be listed before the Single Judge for passing

consequential  orders  in  terms  of  the  directions  issued  by  the

Division Bench.

11.Contentions  that  were  raised  on  behalf  of  the  appellant  in  the

present appeals before us, revolves around the issue of territorial

jurisdiction  of  the  Calcutta  High  Court  in  entertaining  the  said

petition under Section 20 of the Act.  

12.According to the appellant, the Calcutta High Court would have

no jurisdiction to entertain and decide the aforesaid petition under

Section 20 of the Act and that it is only the Court at Jaipur which

would have territorial jurisdiction to entertain and decide any such

petition filed by any of the party, in view of the specific intention

of the  parties  as disclosed  from the stipulations  in the purchase

order and agreements entered into between the parties.

13.The  learned  counsel  for  the  respondent,  on  the  other  hand

submitted before us that the provision of Section 31 of the Act is

clear and in terms thereof and in view of the specific prohibition

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therein  any  proceeding  between  the  parties  would  have  to  be

instituted within the jurisdiction of the Calcutta High Court and

therefore the  impugned judgment  and order passed by the  High

Court of Calcutta is legal and valid.

14.In the light of the aforesaid submissions made by learned counsel

for both the parties, we proceed to decide the issues as to whether

or  not  the  Calcutta  High  Court  had  territorial  jurisdiction  to

entertain the petition filed by the respondent under Section 20 of

the Act as also the application filed under Section 41 of the Act

seeking interim orders and also as to whether it is the Jaipur Court

only which will have territorial jurisdiction to entertain any such

request.  For proper appreciation of the points at issue, it would be

appropriate to set out the abovementioned legislative provisions of

the Act, which are as under:

20. Application to file in Court arbitration agreement. -(1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the  matter  to  which  the  agreement  relates,  that  the agreement be filed in Court.  

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(2)  The  application  shall  be  in  writing  and  shall  be numbered and registered as a suit between one or more of the parties  interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the  parties,  or,  if  otherwise,  between  the  applicant  as plaintiff and the other parties as defendants.  

(3)  On  such  application  being  made,  the  Court  shall direct  notice  thereof  to  be  given  to  all  parties  to  the agreement  other  than  the  applicants,  requiring  them to show cause within the time specified in the notice why the agreement should not be filed.  

(4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of  reference  to  the  arbitrator  appointed  by the  parties, whether  in  the  agreement  or  otherwise,  or,  where  the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court.  

(5) Thereafter the arbitration shall proceed in accordance with, and shall  be governed by, the other provisions of this Act so far as they can be made applicable.

41. Procedure and powers of Court.  -  Subject to the provisions of this Act and of rules made there under-

(a) the provisions of - the Code of Civil Procedure, 1908, (5  of  1908.)  shall  apply  to  all  proceedings  before  the Court, and to all appeals, under this Act, and

(b)  the  Court  shall  have,  for  the  purpose  of,  and  in relation  to,  arbitration  proceedings,  the  same power  of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court:

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Provided  that  nothing  in  clause  (b)  shall  be  taken  to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters.

15.There is no dispute with regard to the fact that the parties entered

into  various  agreements  which  are  referred  to  above.   The  said

agreements  admittedly  also  contained  forum  selection  clauses

between the parties  whereby and whereunder  the  parties  agreed

that the said contracts and agreements, in relation to any dispute or

difference would be subject to the jurisdiction of courts at Jaipur

in Rajasthan.  

16. Therefore,  the  issues  which  we  are  required  to  address  here  is

whether the ouster clause in the agreement between the parties will

also be applicable in ascertaining the competent court for making

an application for reference under section 20 of the Act.  As per

Section  41  (1)  of  the  act  the  provisions  of  the  Code  of  Civil

Procedure,  1908,  (for  short  “the  Code”)  shall  apply  to  all

proceedings before the Court,  and to all  appeals,  under the Act.

Section 20 of the Code, which is with respect to the jurisdiction of

courts for institution of suit, reads as under:  

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20.  Other  suits  to  be  instituted  where  defendants reside or cause of action arises.

Subject  to the limitations  aforesaid,  every suit  shall  be instituted  in  Court  within  the  local  limits  of  whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at  the time of the commencement of the suit,  actually  and  voluntarily  resides,  or  carries  on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the  time of  the  commencement  of  the  suit  actually  and voluntarily resides,  or  carries  on business,  or  personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or  carry  on  business,  or  personally  work  for  gain,  as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation.-A corporation shall be deemed to carry on business  at  its  sole  or  principal  office  in  India  or,  in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

17. There are number of decisions of this Court wherein it was held

that where there may be two or more competent courts which can

entertain  a  suit  consequent  upon  a  part  of  the  cause  of  action

having arisen therein, if the parties to the contract agree to vest

jurisdiction in one such court to try the dispute which might arise

as  between  themselves,  such  agreement  would  be  valid  and

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binding.  In A.B.C. Laminart (P) Ltd. v. A.P. Agencies [(1989) 2

SCC 163], this Court stated thus;

“21. From the foregoing decisions it  can be reasonably deduced that  where such an ouster  clause  occurs,  it  is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific  accepted  notions  of  contract  would  bind  the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like “alone”, “only”, “exclusive” and the like have been used there may be no difficulty. Even without such words in appropriate  cases  the  maxim  “expressio  unius  est exclusio alterius” —  expression of one is the exclusion of  another  — may be  applied.  What  is  an  appropriate case shall depend on the facts of the case. In such a case mention  of  one thing  may imply exclusion  of  another. When  certain  jurisdiction  is  specified  in  a  contract  an intention to exclude all others from its operation may in such cases  be  inferred.  It  has  therefore  to  be  properly construed.”

18. The  said  decision  also  referred  to  and  relied  upon  an  earlier

decision of this Court in Hakam Singh v. M/s. Gammon (India)

Ltd. [1971 (1) SCC 286].  The said decision was rendered in the

light of facts of a similar contract where clause 12 of the tender

provided for arbitration whereas clause 13 provided;

“Notwithstanding  the  place  where the  work  under  this contract is to be executed, it is mutually understood and agreed  by  and  between  the  parties  hereto  that  this Contract shall  be deemed to have been entered into by the parties concerned in the city of Bombay and the court

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of law in the city of Bombay alone shall have jurisdiction to adjudicate thereon.”

The question which fell for consideration of this Court in the

said case was whether  the Court  at  Bombay alone had jurisdiction

over the  dispute.   In that  context,  it  was held  that  the Code in  its

entirety applied to proceedings under the Arbitration Act by virtue of

Section 41 of that Act and that the jurisdiction of the Court under the

Act  to  entertain  a proceeding for  filing an Award was accordingly

governed by the provisions of the Code.   Reference was made to the

provisions of Section 20 of the Code, with all the terms of Section 20

(a)  of  the  Code  read  with  explanation  thereto,  the  respondent

Company which had its  principal place of business at Bombay was

liable to be sued at Bombay.     

It  was  further  held  that  where  two  or  more  courts  have

jurisdiction  to  try  a  suit  or  proceeding,  an  agreement  between  the

parties  that  the dispute between them shall  be tried in one of such

courts was not contrary to public policy and that such an agreement

did not contravene the provisions of Section 28 of the Contract Act.  

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19. Similar  view was also reiterated in  Angile  Insulations v.  Davy

Ashmore India Ltd. and Another [(1995) 4 SCC 153].

20. In Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. [(2004)

4 SCC 671],  it  was  held by this  Court  that  where  two or  more

courts have jurisdiction under the Code, it is permissible to have

an agreement between the parties restricting the place of suing to

any one of them and if such restriction is placed in the agreement,

the same cannot be said to be contrary to public policy and does

not contravene Section 28 of the Contract Act.  It was however,

made clear  that  such restriction  cannot  be made and the parties

cannot  by  agreement  confer  jurisdiction  on  a  court  which

otherwise it does not possess under the Code.

This Court also considered the scope of Section 20 of the Code

in the said case and by referring to the said provision it was held that

when  ouster  clause  is  clear,  unambiguous  and  specific,  accepted

notions of contract would bind parties and unless absence of ad idem

can  be  shown  courts  should  avoid  exercising  jurisdiction.   While

arriving at the said finding this Court followed the ratio laid down in

A.B.C. Laminart (P) Ltd. (supra).  

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21.The aforesaid legal proposition settled by this Court in respect of

territorial jurisdiction and applicability of Section 20 of the Code

to Arbitration Act is  clear,  unambiguous and explicit.   The said

position is  binding on both the parties  who were contesting the

present proceeding.  Both the parties with their open eyes entered

into the aforesaid purchase order and agreements  thereon which

categorically provide that all disputes arising between the parties

out  of  the  agreements  would  be  adjudicated  upon  and  decided

through the process of arbitration and that no court other than the

court at Jaipur shall have jurisdiction to entertain or try the same.

In both the agreements in clause 30 of General Conditions of the

Contract it  was specifically mentioned that the contract shall for

all  purposes  be  construed  according  to  the  laws  of  India  and

subject to jurisdiction of only at Jaipur in Rajasthan Courts only

and in addition in one of the purchase order the expression used

was  that  the  Court  at  Jaipur  only  would  have  jurisdiction  to

entertain or try the same.

22.In the light of the aforesaid facts of the present case, the ratio of all

the aforesaid decisions which are referred to hereinbefore would

squarely  govern  and  apply  to  the  present  case  also.   There  is

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indeed an ouster clause used in the aforesaid stipulations stating

that the courts at Jaipur alone would have jurisdiction to try and

decide  the  said  proceedings  which  could  be  initiated  for

adjudication and deciding the disputes arising between the parties

with or in relation to the aforesaid agreements through the process

of arbitration.  In other words, even though otherwise the Courts at

Calcutta would have territorial jurisdiction to try and decide such

disputes, but in view of the ouster clause it  is only the courts at

Jaipur which would have jurisdiction to entertain such proceeding.

23.The Division Bench of the Calcutta High Court was aware of the

clauses and stipulations in the agreements and was also aware of

the  abovementioned  decisions  of  this  Court,  but  the  Division

Bench  held  that  the  said  forum selection  clause  agreed  to  and

entered into between the parties would not apply in view of the

specific provision of Section 31(4) of the Act.  The said provision

as well as sub-Section (3) are extracted below:-

“31. Jurisdiction.

(1)…………………  

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(2)…………………

(3)   All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court.

(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been  made  in  a  Court  competent  to  entertain  it,  that Court  alone  shall  have  jurisdiction  over  the arbitration proceedings and all  subsequent applications arising out of that reference, and the arbitration proceedings shall be made in that Court and in no other Court.”

24.Having  noticed  the  aforesaid  provision  of  Section  31(4),  the

Division Bench held that since the aforesaid provision starts with a

non-obstantive clause, the said provisions would only apply and

would come into operation.  The Division Bench finally held thus:

“The  said  argument  cannot  be  sustained  after  a  plain reading of Section 31(4) of the Act.  It is clear from the language used therein that where in any application has been made in a court, competent to entertain, in that case that court alone shall have jurisdiction.  The requirement is not that the application should be allowed.  Since in the instant case admittedly an application under Section 20 has been made, which is an application in a reference, Calcutta High Court will have jurisdiction.”

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The  said  findings  were  rendered  by  the  Division  Bench

upsetting the findings of the learned Single Judge who had held that

the non-obstantive clause appearing in sub-Section (4) of Section 31

would not  be attracted in the present  case where the parties  by an

agreement had agreed to a particular forum having jurisdiction over

the dispute between the parties for adjudication.

25. Section 20 of the Code will apply in respect of deciding the issue

with  regard  to  territorial  jurisdiction  of  a  court  in  respect  of  a

matter relating to arbitration also, for in  Hakam Singh (supra), it

was  held  that  the  jurisdiction  of  the  court  under  the  Act  to

entertain the proceeding for filing an Award was governed by the

provisions of the Code.  We also at this stage may appropriately

refer to the definition of the word “Court” as appearing in Section

2(c) of the Act wherein the expression “Court” is defined to mean

“a Civil Court having jurisdiction to decide the questions forming

the subject matter of the reference if the same had been the subject

matter of a suit, but does not except for the purpose of arbitration

proceedings under Section 21, include a Small Cause Court.”

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26.Sub-section (3) precedes sub-Section (4) of Section 31 of the Act.

The said sub-Section provides that all applications regarding the

conduct of arbitration proceedings or otherwise arising out of such

proceedings shall be made to the Court where the Award has been

or may be filed and to no other court.  Sub-Section (4) on the other

hand states that where in any reference any application under the

Arbitration Act has been made in a Court competent to entertain,

then that Court alone would have jurisdiction over the arbitration

proceedings  and  all  subsequent  applications  arising  from  that

matter and arbitration proceedings shall be made in that court and

in no other court.  

27.An analytical  look at the provisions of sub-Sections (3) and (4)

will make it explicitly clear that any application in any reference,

meaning thereby even an application under Section 20 of the Act

could  or  should be filed  in  a  court  competent  to  entertain  such

proceeding  and  having  jurisdiction  to  decide  the  subject  of  the

reference.  Such jurisdiction would or could be restricted by the

agreements entered into by and between the parties.  The parties

have clearly stipulated and agreed that no other court, but only the

court  at  Jaipur  will  have  jurisdiction  to  try  and  decide  the

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proceedings arising out of the said agreements, and therefore, it is

the Civil Court at Jaipur which would alone have jurisdiction to

try and decide such issue and that is the court which is competent

to entertain such proceedings.  The said court being competent to

entertain such proceedings, the said Court at Jaipur alone would

have  jurisdiction  over  the  arbitration  proceedings  and  all

subsequent  applications  arising  out  of  the  reference.  The

arbitration proceedings have to be made at Jaipur Court and in no

other court.

28.In  our  considered  opinion,  the  learned  Division  Bench  of  the

Calcutta High Court misread and misinterpreted the provisions of

sub-Sections  (3)  and  (4)  of  Section  31  of  the  Act  and  thereby

arrived  at  a  wrong  finding  to  the  effect  that  by  virtue  of  the

aforesaid  provision  of  Section  31(4)  the  Calcutta  High  Court

would have jurisdiction in the matter.  

29.In view of the aforesaid findings and conclusions arrived at by us

holding  that  it  is  only  the  Court  at  Jaipur  which  will  have

jurisdiction to try and decide the arbitration proceedings between

the parties and also entertain a petition of the aforesaid nature i.e.

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Section 20 of the Act, we set aside and quash the judgment and

order of the Division Bench of the Calcutta High Court.  Both the

appeals are allowed to the aforesaid extent.  The Registry of the

Calcutta High Court is directed to transfer the petition filed by the

respondent under Section 20 of the Act alongwith all the records

to the District Judge, Jaipur, as expeditiously as possible but not

latter than four weeks from the date of receipt of this order. The

District Judge, Jaipur on receipt of the said petition alongwith the

transmitted  records  shall  allocate  it  to  the  competent  and

appropriate Court, which would thereafter issue Notice to both the

parties. The concerned Court shall thereafter deal with the matter

in accordance with law.   

30.The registry of this Court is directed to send a copy of this order to

the  Registrar,  Calcutta  High  Court  and  also  to  District  Judge,

Jaipur for necessary action.  

       ………………………..J. (Tarun Chatterjee)

..………………………J.                 (Dr. Mukundakam Sharma)

New Delhi,

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January 12,2009

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