Morgan Ventures Ltd. v. Golden Dreams Builtcon Pvt. Ltd.

This review application has been filed against the judgment of the Division Bench dated 18th January 2010 dismissing the Letters Patent Appeal No.59/2009 filed by the present applicant.

It appears that on account of a dispute relating to the property, between the applicant and the respondent, the applicant {2} herein invoked the arbitration clause in the agreement and accordingly filed arbitration proceedings and an Arbitrator came to be appointed. Meanwhile, it appears that, the present respondent filed an application u/s 9 of the Arbitration and Conciliation Act before the District Judge at Aurangabad on the ground that the property in dispute was situated within the territorial jurisdiction of the Court at Aurangabad. Certain interim order came to be

passed. Ultimately, the proceedings were challenged before the learned Single Judge of this Court, who dismissed the same. The applicant, being aggrieved by the order of the learned Single Judge dismissing the writ petition filed by the applicant, approached the Letters Patent Bench by filing Letters Patent Appeal.

Before the Division Bench it was specifically contended by the learned counsel for the applicant that the Court at Delhi alone would have the jurisdiction to entertain an application u/s 9 of the Arbitration Act and the Court at Aurangabad would ceased to have any jurisdiction. For that purpose reliance was placed on clause 17 of the agreement, which provided that the agreement would be subject to the jurisdiction of the Court at Delhi. It was contended on behalf of the applicant that the parties had agreed for ouster jurisdiction of all other courts excepting the court at Delhi. In that light it was submitted that the application filed by the present respondent u/s 9 was not maintainable in the court at Aurangabad. Reliance was placed on section 20 of the Civil Procedure Code to further buttress the contention that the {3} application u/s 9 was not maintainable at Aurangabad on the ground that the Corporate as well as Registered office of the applicant company was at Delhi.

On behalf of the present respondent, it was urged before the Division Bench that the dispute pertains to the right to and interest in immovable property and hence an application could only be filed in Court within whose local jurisdiction the property was situated and admittedly the immovable property was situated within the territorial jurisdiction of the Court at Aurangabad. Reliance, on behalf of the respondent, was placed on section 16 of the Code of Civil Procedure.

The Division Bench, after examining the definition of the term “Court” in section 2 (1) (e) of the Arbitration and Conciliation Act and upon perusal of section 9 of the Arbitration and Conciliation Act, came to the conclusion that the application filed by the present respondent was in respect of immovable property, which was situated at Aurangabad, which was agreed to be sold by the present applicant to present respondent. The Division Bench, ultimately, at para 10 of its judgment came to the conclusion that the Court competent for the adjudication of the application u/s 9 of the Arbitration Act would be the District Court at Aurangabad, as the property was exclusively situated within the local limits of the jurisdiction of the Court at Aurangabad. In respect of the contention of the applicant that as per section 20 of {4} the Code of Civil Procedure, the application would not be maintainable, the Division Bench came to the conclusion that section 20 of the Civil Procedure Code was a residuary section and could be applied only in the event sections 15 to 19 were inapplicable. The Division Bench came to the conclusion that section 16 (d) of the Civil Procedure Code would be applicable and in that light of the matter, the Court at Aurangabad would have the necessary jurisdiction. The Division Bench also concluded at para 14 that clause 17 would not amount to ouster of the jurisdiction of the Court at Aurangabad, even if the Court at Delhi had the jurisdiction.

Mr.V.J.Dixit, learned senior counsel for the applicant, has urged before us that the judgment of the Division Bench of this Court is required to be reviewed on two grounds viz (i) that the Division Bench has held that the Court at Delhi did not have the requisite territorial jurisdiction and (ii) the ratio laid down by the Supreme Court in “Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd.,” AIR 2005 SC 4446 (1) had not been applied properly by the Division Bench while deciding the Letters Patent Appeal. In order to support the aforesaid two grounds, the learned senior counsel for the applicant, has referred to the judgment of the Supreme Court in “Harshad Chimal Lal Modi V/s D.L.F. Universal Ltd”. According to the learned senior counsel for the applicant, the ratio of the aforesaid judgment is to be found at para 17 of the judgment, which lays down that since the relief was {5} sought by the original plaintiff was for specific performance of the agreement and for the execution of sale deed and to deliver the possession to the original plaintiff, the order of the trial court holding that the suit was covered by clause “D” to section 16 of the Code was correct and the proviso to section 16 had no application. Learned senior counsel for the applicant has further relied upon the judgment of the Supreme Court in “Adcon Electronics Pvt. Ltd., V/s Daulat and Another” AIR 2001 SC 3712 and on the judgment of “Wimco Limited V/s Matoshree Shelters Pvt. Ltd.” an unreported judgment of the Division Bench of this Court. Learned senior counsel for the applicant has referred to the other judgments, to which it is not necessary to advert to at this stage.

Mr.V.D.Hon, learned counsel for the respondent, has urged before us that the grounds urged in the review application are not good grounds for reviewing the judgment of the Division Bench of this Court, which had upheld the order of the learned Single Judge, which in turn had maintained the order passed by the District Judge u/s 9 of the Arbitration and Conciliation Act. The two grounds urged by Mr.Dixit, do not constitute good ground for coming to the conclusion that there is error, apparent on the face of record, requiring this Court to exercise jurisdiction to review. Misapplication of the ratio of the judgment would not be a ground for holding that there is error apparent on the face of record. Similarly, though the observations of the Division Bench that the Court at Delhi did not have the jurisdiction, is a passing {6} reference yet ultimately the Division Bench came to be conclusion that the Court at Delhi and the Court at Aurangabad would have the jurisdiction. In any event, question was not posed before the Division Bench as to whether the court at Delhi had the jurisdiction or not. The sole question which was posed before the Division Bench was whether the Court at Aurangabad had the jurisdiction, which was answered by the Division Bench in affirmative.

Upon consideration of the submissions advanced before us, according to us, no case for review is made out and consequently this review application, being sans merit, is dismissed with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/ra50-10 {7} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.13014 OF 2010 IN REVIEW APPLICATION NO.50 OF 2010 IN LETTERS PATENT APPEAL NO.59 OF 2009 Morgan Ventures Ltd., APPLICANT VERSUS Golden Dreams Builtcon Pvt. Ltd., RESPONDENT Mr.V.J.Dixit, Senior Counsel i/b S.R.Deshpande, for applicant Mr. V.D.Hon, Advocate for respondent ....... ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 6th October 2010 PER COURT:

1. In the light of dismissal of the Review Application, this civil application does not survive and hence dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/ra50-10