The issue of territorial jurisdiction and the Arbitral Tribunal's constitution and jurisdiction should be raised before the Arbitral Tribunal itself, and not at the stage of appointing the Arbitrator.

Subhro Kamal Mukherjee, J.

1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996 seeking an order for appointing an Arbitrator. Admittedly, a contract was entered into between the petitioner and the Steel Authority of India Ltd. regarding loading and transportation of iron ore lumps and removal of rejects by dump trucks. The said agreement contains an Arbitration Clause being Clause 46 of the said agreement. It has been provided in the said Clause that the notice regarding invoking of the Arbitration Clause should be served by registered post addressed to the Deputy General Manager, Steel Authority of India Ltd., Raw Materials Division, Bolani Ore Mines, Bolani. However, the authority vests with the Director, Raw Materials Division.

2. Since disputes and differences arose between the parties, the learned advocate for the petitioner, by his letter dated March 3, 2002, made a demand to the Deputy General Manager for payment and intimated him that failing which the petitioner would take recourse of law as might be available to him. A copy of the said letter was forwarded to the Director, namely, the appointing authority with request either to make payment or to enter into reference to settle the claim by arbitration in terms of Clause 46 of the general condition of contract within 15 days of the receipt of the copy of the notice. The Deputy General Manager replied to the said letter by his letter dated April 26, 2002 intimating that the matter was under examination.

3. Since, however, no step was taken to appoint the Arbitrator, the petitioner has come with this application before this Court on October 9, 2002.

4. Mr. Narayan Chandra Bhattacharjee, learned advocate, appearing for the respondents, submits that this Court lacks territorial jurisdiction in view of Clause 41 of the Agreement. Mr. Bhattacharjee, further, submits that only the civil courts in the District of Keonjhar in the State of Orissa have the jurisdictions in view of forum selection clause agreed by and between the parties. Mr. Bhattacharjee, in support of his contention, has referred to the said Clause 41 of the agreement and, also, cited the decisions in the cases of Modern Malleable Casting Works Limited vs. Star Iron Works Limited & Ors., reported in 1995 (II) CRN 433 and Shriram City Union Finance Corporation Limited vs. Rama Mishra, reported in AIR 2002 SC 2402. The aforesaid decisions have been cited for the purpose that it is open for the parties to choose anyone of two competent courts to decide their disputes. Mr. Bhattacharjee, finally, submits that the application is premature as there was no request before the proper authority for appointing an Arbitrator.

5. It is for the person aggrieved to give notice to the Deputy General Manager at Raw Materials Division of Steel Authority of India Ltd. at Bolani, but the appointing authority was the Director, having his office at Calcutta. The letter dated March 3, 2003, as I have already indicated hereinabove, has been addressed to the said Deputy General Manager. A copy of the said letter was forwarded to the General Manager with a request either to make payments or to enter into reference. Undisputedly, the petitioner waited for more than thirty days after the request and, thereafter, he has approached this Court.

6. The question of territorial jurisdiction of the Court to entertain the application under section 11 of the Arbitration and Conciliation Act, 1996, in my view, cannot be gone into at this stage. This Court is not adjudicating upon any dispute including the question of jurisdiction. The Apex Curt in the case of Konkan Railway Corporation Ltd. & Anr. vs. Rani Construction Private Limited, reported in (2002) 2 SCC 388, observed that section 11 of the said Act did not contemplate a decision on any controversy that the other party might raise by the Chief Justice or his designate. The question whether the Arbitral Tribunal has been constituted improperly or w