SANJIV KHANNA, J.

( 1 ) BY the present Order, we will be deciding the question of territorial jurisdiction.

( 2 ) ON 30th October, 1996 an Award was passed by Mr. K. D. Thite, Retd. Chief Engineer, Central Water Commission. On 21st February, 1997, the appellants-M/s. National Projects Construction Corporation Ltd, who are questioning the jurisdiction of this Court, filed objections to the said Award under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter referred to as the Act, for short ). After about 9 years when the matter was finally being heard by the learned Single Judge, the appellant herein raised objection to the territorial jurisdiction of this Court. The learned Single judge noticed that the objection did not form part of the pleadings and held that it was too late for the appellants to raise the same. It was further held that this Court did not lack inherent jurisdiction and therefore the parties by consent or by act of omission and commission had waived their right to object to lack of territorial jurisdiction. Learned Single Judge also noticed that though the works were executed in the State of Himachal Pradesh but the contract between the parties was executed at New Delhi and therefore courts, both at Himachal Pradesh and Delhi, had/have jurisdiction to take cognisance of the proceedings under the Act.

( 3 ) LEARNED Additional Solicitor General while questioning the Order passed by the learned Single Judge submitted that Section 34 (1) of the Act is an over-riding provision and as proceedings for appointment of arbitrator had been initially initiated in the High Court of Himachal Pradesh, parties by consent or acquiescence or by act of omission and commission could not have conferred jurisdiction on this Court. It was argued that the present case is one of lack of inherent jurisdiction. In this regard, he relied upon two decisions of the Supreme Court in Kumbha Mawji v. Dominion of India, air 1953 SC 313 and Guru Nanak Foundation v. Ratan Singh and sons, (1981) 4 SCC 634.

( 4 ) PER contra, learned counsel for the respondent submitted that the appellants had voluntarily invoked and unconditionally submitted to the jurisdiction of this Court by filing objections under Sections 30 and 33 of the act. It was pointed out that the issues in the case were framed on 14th september, 1998. Reference was made to Section 41 of the Act and Section 21 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short ). Reliance was placed upon the following judgments: National aluminium Co. Ltd. v. Pressteel and Fabrication Pvt. Ltd and another (2004) 1 SCC 540, Hira Lal Patni v. Kali Nath, AIR 1962 SC 199, Pathumma and others (daughter of Koopilan Uneen) v. Kuntalan Kutty (son of Koopilan Uneen), AIR 1981 SC 1683, Koopilan uneen's v. Koopilan Uneen's, AIR 1981 SC 1683, M/s. Savani transport Pvt, Ltd v. Gangadhar Ghosh, (1986) 1 CHN 443, Mazid Ali (deed.) through LRs v. Shri Lakshman Rabidas and others, AIR 1992 guahati 91, Punjab National Bank and others v. M/s. Millen Sales corporation and others, AIR 1997 Rajasthan 151 and Shri Prasun roy v. The Calcutta Metropolitan Development Authority and another reported in 1987 (4) SCC 217.

( 5 ) FACTS relevant for deciding the question may now be noticed. On 18th august, 1986, an Agreement was executed between the appellant and the respondent at Delhi for execution of works contract in the State of Himachal pradesh.

( 6 ) DISPUTES and differences arose between the parties and the arbitration clause was invoked by the respondent. In May 1989, the respondent had filed a Petition under Sections 8 and 20 of the Act before the high Court of Himachal Pradesh at Shimla for filing of the arbitration agreement and appointment of an Arbitrator. However, it appears that before the filing of the Petition, the appellant had appointed a sole Arbitrator and on 19th October, 1989 when this fact was brought to the notice of the high Court of Himachal Pradesh at Sh