An agreement between the parties restricting the jurisdiction to a particular court is valid and binding, provided that the court has jurisdiction in the matter to which the reference relates.

( 1 ) M/s. Raunaq Intetnational Ltd. , petitionet herein, enterrid into an agreement dated March 8, 1977 with M/s. Mini Sea. Foods respondent no. I for promotion of export of sea foods to U. S. A. , Canada, all European countries, Australia, Japan, etc. for sale/resale in the aforesaid territories. The said agreement contains an arbitration agreement between the parties reading as follows :

"in case of any dispute of difference arising out of this agreement or out of any matter connected therewith, the same shall be referred for adjudication to the sole arbitrator to be appointed in accordance with the provisions of the Indian Arbitration Act of 1940. The arbitration proceedings shall take place in Delhi and in accordance with the provisions of the Indian Arbitration Act of 1940. Any court proceedings shall take place in Delhi and in accordande with the provisions of Indian Arbitration Act of 1940. Any Court proceedings will also be confined to the jurisdiction of Delhi, to the exclusion of all other courts. "

( 2 ) CERTAIN disputes and differences having arisen between the parties, the petitioner invoked the arbitration agreement and issued notice dated April 10, 1980, whereunder the petitioner nominated and appainted Shri S. N. Andley, Retd. Chief Justice of High Court of Delhi as Sole Arbitrator and requested the respondents to signify their concurrence within 15 days of the receipt of the notice dated April 10, 1980. The respondents did not concur in the appointment of Shri S. N. Andley. Hence this petition under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as the Act) for directing the arbitration agreement to be filed in Court for appointment of an arbitrator and for reference of the disputes mentioned in para 9 of the petiton to the appointed arbitrator. The petition is registered as a suit.

( 3 ) IN the written statement filed by the respondents a number of objections have been raised. However, there is no dispute about the existence or validity of the arbitration agreement between the parties and of the fact that certain disputes and differences have asisen between the parties out of the agreement. The main objection is that the agreement dated March 8, 1977 was negotiated, entered into and executed at Cochin ; that the agreement was to be performed at Cochin ; that the delivery of the goods were to be made at Cochin ; that all the payments were to be made at Cochin and that no part of the agreement was to be performed outside Cochin. The stand taken is that this Court has no jurisdiction to entertain and proceed with this petition. It is submitted that in agreement between the parties cannot confer jurisdiction upon a Court which it has not got. The plea further is that the petitioner has waived the jurisdiction clause of the agreement by implied conrent by taking criminal action against the respondents in Cochin courts and thus the parties agreed to annual the jurisdiction clause in the agreement.

( 4 ) THE following issues arose between the parties and framed :

"1. Whether this court has jurisdiction to entertain the proceedings? OPR 2. Whether the clause in the agreement is in restraint of the legal proceedings and void under Section 28 of the Contract Act, 1872 ? OPR 3. Relief. "

( 5 ) THE parties were directed to lead evidence by way of affidavits and counter affidavits. The same have been filed. I have heard the arguments of the learned counsel for the parties.

( 6 ) THE affidavit filed on behalf of the petitioner deposes that the petitioner is a Public Limited Company incorporated under the Companies Act, 1956 und having its registered office in New Delhi within the jurisdiction of this Court at Allahabad Bank Building, 17 Parliament Street, New Delhi. There is no denial to this averment in the counter affidavit. In fact, in the reply to the petition the plea taken by the respondents is that the mere fact that the petitioner has its Head Office or Registered office at Delhi, th