In determining jurisdiction for the appointment of an arbitrator, the court must consider the place where the cause of action arose, not just the place of residence or business of the respondent.

( 1 ) THIS is an application under S. 11 of the Arbitration and Conciliation Act, 1996.

( 2 ) BY making this application, the petitioner wanted intervention of this Court to get an appointment of the Arbitrator.

( 3 ) ACCORDING to the petitioner, a letter was written by the petitioner to the respondent on 20th August, 1998 being Annexure 'c' to the petition asking the respondent to appoint an Arbitrator within 30 days failing which the appropriate jurisdiction of the Competent Court of law will be invoked.

( 4 ) NOW, the question arose before this Court, which should be Competent Court of law ?

( 5 ) THE respondent company has its office at 1, Shakespeare Sarani, Calcutta - 700 071, within the jurisdiction of this Court. No leave under clause 12 of the letters patent was sought for by the petitioner possibly on the basis of the fact that the sole respondent carrying on business within the jurisdiction of this Court. However, cause title does not say as to whether the respondent is carrying out business within the jurisdiction or not but simply describe that the respondent company has its office within the jurisdiction. Therefore, a relevant question arose before invoking the jurisdiction of this Court as to whether such office has any nexus or connection with the cause of action in between the parties herein or not.

( 6 ) THERE is no averment in the petition about place of execution of the contract.

( 7 ) THERE is an averment that performance by way of construction is to be made by the petitioner at Rajgir, District Nalanda in the State of Bihar.

( 8 ) AS per Annexure 'b' to the petition correspondence were executed by or between the petitioner at Patna and the respondent at Rajgir (Bihar) for the purpose of payment. Therefore, the same implies that money is also due and payable at Bihar.

( 9 ) MR. Hiranmoy Dutta, learned Senior Counsel, appearing for the petitioner has given emphasis on an unreported judgment delivered by this Court on 17th June, 1999 in A. P. No. 117 of 1999 (M/s. Inland Construction Company v. Union of India (CPWD) to establish that cause of action of the application is refusal or failure on the part of the authority to give concurrence as to notice of appointment of Arbitrator within 30 days from the date of notice. Since there is a failure at Calcutta on notice, this Court has jurisdiction to entertain, try and determine the application.

( 10 ) HE further relied upon a judgment reported in 1996 (2) SCC 216 : (AIR 1996 SC 942) (State of Orissa v. Damodar Das) to state that cause of arbitration arises, like cause of action in civil suit, as soon as dispute or differences arise in an unequivocal denial of claim of one party by the other party as a result of which claimant acquires right to refer the dispute to arbitration.

( 11 ) SUCH proposition of law is inapplicable herein. For the purpose of application of such principle, as clear and unequivocal denial must be present there which is not available herein. At best a deeming provision might be applicable by necessary implication herein provided 30 days period as givenin the notice is over. Moreover, it is crystal clear from the notice of the petitioner dated 20th August, 1998, that in case of failure to take appropriate steps within 30 days, the reference to arbitration will be routed through the Competent Court of law. Therefore, the question arose before the Court whether this Court is competent enough to entertain, try and determine the proceedings or not. Unless such aspect is clear from the averment in the petition Court cannot suo moto assume it's jurisdiction.

( 12 ) 'failure' means failure in a particular place where it has properly communicated. Such communication in the particular place can be construed as place of denial to the claimant either unequivocal or by necessary implication. But such place ought to be the place of the petitioner not the place of respondent in this respect and the petitioner's place of carrying