The interpretation of the Memorandum of Association, the bar on jurisdiction of other courts, and the precedence of special statutes over general statutes were central to the court's decision.

JUDGMENT

Sanju Panda, J.

1. This writ application has been filed by the petitioners challenging the order dated 13.7.2009 passed by the Debts Recovery Appellate Tribunal, Kolkota in Appeal No. 11 of 2009 dismissing the appeal.

2. The opposite party-Bank filed O.A. No. 187 of 2008 before the Debts Recovery Tribunal, Cuttack Bench, Orissa for recovery of loan amount advanced to the petitioner No. 1-Company. In the said proceeding, the present petitioners filed Misc. Application Nos. 566 and 567 of 2008 raising the plea of lack of jurisdiction of the Debts Recovery Tribunal, Cuttack to adjudicate the claims in O.A. No. 187 of 2008 in view of an arbitration clause in Clause-35 of the Loan Agreement to refer the claims for arbitration as per Section 8(1) of the Arbitration & Conciliation Act, 1996. The Debts Recovery Tribunal, Cuttack without considering the matter in its proper perspective, by its order dated 20.1.2009 rejected the applications holding that it had jurisdiction to proceed with O.A. No. 187 of 2008 and did not refer the matter for arbitration. Challenging the said order, the present petitioner No. 1-Company filed Appeal No. 11 of 2009 before the learned Debts Recovery Appellate Tribunal, Kolkata under Section 20 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. However, the Debts Recovery Appellate Tribunal also dismissed the said appeal on 13.7.2009 confirming the order dated 20.1.2009 passed by the Debts Recovery Tribunal, Cuttack.

3. Learned Counsel for the petitioners submitted that Clause 34 and 35 of the Loan Agreement dated 21.1.2002 have been specifically referred to in the Memorandum of Association and Articles of Association of petitioner No. 1-Company. Clause 35 of the Loan Agreement specifically states that the Borrower shall forthwith and from time to time as may be required by the Bank make such alterations or additions to its Memorandum and Articles of Association as may be necessary to conform the above agreement. The Memorandum of Association of petitioner No. 1-Company is the charter of a Company which deals with the main objects of a Company as it cannot exceed the powers conferred by its Memorandum of Association. Article/Clause 19 of the Memorandum of Association of the Company speaks of referring of all questions, disputes and differences arising between the Company and any other person whosoever in connection with or in respect of any matter rejating to the business or affairs of the Company to arbitration. The opposite party-Bank had the knowledge about the said arbitration clause and never raised any objection that such clauses were not in conformity with the Loan Agreement dated 21.1.2002 or the Supplemental Agreement dated 31.3.2005. The Bank had agreed sub-silentio to such arbitration clause in Article of the Memorandum of Association of the Company. Therefore, the Bank did not choose to exclude the said clause in Clause 38 of the Loan Agreement or any where in the Loan Agreement dated 21.1.2002 or the Supplemental Agreement dated 31.3.2005 or any time thereafter till filing of O.A. No. 187 of 2008. By its conduct, having agreed to such clause, now the Bank is estopped from pleading the contrary or raising any objection for referring for arbitration the subject-matter of the dispute covered under O.A. No. 187 of 2008. In support of his contention he cited the decisions reported in AIR 2008 SC 357 Bharat Petroleum Corporation Ltd. v. Great Eastern Shipping Co. Ltd.; AIR 2001 SC 3381 Vessel M.V. Baltic Confidence v. State Trading Corporation of India Ltd. & AIR 2006 SC 2422 Group Chimlque Tunisien SA v. Southern Petrochemicals Industries Corporation Ltd. Further, he submitted that if any two specially enacted laws are having non obstinate clauses and there is a jurisdictional dispute about which law shall prevail or have an overriding effect, then the subsequent legislation having non obstinate clause shall prevail/will have the overriding effect. Therefore, the non ob