OCD 11 v. GHANSHYAM SUNDERDAS NAGDEV & Anr.

“13.5 ARBITRATION AND JURISDICTION All the disputes are differences arising between the Parties hereto as to the interpretation of this Agreement or any covenants or conditions thereof or as to the rights, duties, or liabilities of any Party hereunder or as to any act, performance or non-performance of any act, deed or thing as agreed under this Agreement or matter or thing arising out of or relating to or under this Agreement (even though the Agreement may have been terminated,) the same shall be referred to a sole Arbitrator to be appointed by the EFL (Lender), according to the provisions of Arbitration and Conciliation Act 1996, and rules there under and any amendment thereto from time to time. The Language of arbitration shall be English. All cost of arbitration including the arbitrator's fees, advocate fees, travailing cost other miscellaneous expenses shall be borne equally by the Parties hereto. The award of the arbitrator shall 4 be a speaking award and shall be final, conclusive and binding on all the Parties whether on question of law or of fact. In the event of death, refusal, negligence, inability, incapability of the persons so appointed to act as a sole arbitrator, a new arbitrator shall be appointed by the EFL (Lender). The venue of arbitration shall be Pune or such other place that the Lender may in the sole discretion determine and Courts in Pune or such other place shall have exclusive jurisdiction. This Agreement shall be governed by and construed in all respects with Indian laws and the Parties hereto agree that any matter or issues arising hereunder or any disputes hereunder shall, at the option/discretion of the EFL (Lender), the subject to the non-exclusive jurisdiction of the courts of the city of Pune. This shall not however limit the rights of the EFL (Lender) to take proceedings in any other Court of competent jurisdictions.”

10. Part of the cause of action took place within Kolkata as stated in the various paragraphs of the said application.

11. There is sufficient indication that the exclusivity of Pune as the venue has been taken away by the incorporation of a further provision that the lender may in its sole discretion also choose a venue/place for arbitration. Thus, the venue cannot be read as a seat and Pune cannot have exclusive jurisdiction to entertain any application arising out of the subject agreement. Moreover, the overall jurisdiction of Pune courts have also been taken away by giving the lender a further choice. The respondents also did not raise any objection with regard to choice of venue.

12. Under such circumstances, this Court allows the application by appointing Mr. Sourojit Dasgupta, learned Advocate, Bar library Club as the learned Arbitrator, to adjudicate the disputes between the parties. This appointment is subject to compliance of Section 12 of the Arbitration and Conciliation Act, 1996.

13. The learned Arbitrator shall fix his remuneration as per the Schedule 5 of the Act.

14. All objections with regard to jurisdiction, arbitrability, admissibility and limitation etc, are left open.

15. The application is, accordingly, disposed of. B.Pal (SHAMPA SARKAR, J.)