Territorial Jurisdiction – Printed clause on the invoice pertaining to jurisdiction is binding.

Mr. Amit Rawal, J.: (Oral) - CM No. 5941-CII of 2016

C.M. is allowed.

Annexures R-1 to R-3 taken on record.

FAO No. 6133 of 2015 (O&M)

2. The appellant is aggrieved of the dismissal of the objections filed against ex-parte award on the premise that the purchase order is a contract and therefore the entire proceedings before the arbitrator are vitiated in law, much less the arbitrator does not have jurisdiction. In support of his contentions he has relied upon the judgment rendered by Delhi High Court in M/s Tripack Ltd.and others Vs. Ram Kishore Nagar Mal, 2007 (3) ArbiLR 402, thus urges this Court that the objections were within the parameters of Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘1996 Act’). All these aspects have not been noticed by the objecting court.

3. Mr. Sonam Sharma, learned counsel appearing on behalf of the respondent submits that Annexure R-1 and R-2 enclosed with the miscellaneous application show that the appellant had written two letters to the arbitrator challenging the arbitration proceedings but thereafter absented and in view of the provisions of Section 16 (2) of the 1996 Act, the jurisdiction of the arbitrator cannot be assailed for the first time by filing objections under Section 34 of the 1996 Act. In support of his contentions he has relied upon the judgment rendered by this Court in Octave Apparels Vs. Store One Retail India Ltd. 2012 SCC Online P&H 952 where a similar controversy with regard to the interpretation of terms and conditions of the printed invoice came up for adjudication and it was held that it was binding contract. In essence there was consensus ad idem by relying upon the ratio decidendi culled out in the judgment rendered by Hon’ble Supreme Court in Fair Air Engineers Pvt. Ltd. Vs. N. K. Modi (1996) 6 SCC 385. He further relies upon the judgment in Gas Authority of India Ltd.and another Vs. Keti Construction (I) Ltd.and others (2007) 5 SCC 38 to contend that where a party has received notice and does not raise a plea of lack of jurisdiction before the Arbitral Tribunal, he must make out a strong case why he did not do so, thus, urges this Court for dismissal of the appeal.

4. I have heard learned counsel for the parties and appraised the paper book and of the view that there is no substance in the plea of learned counsel for the appellant, for, this Court in Octave Apparels’s case (supra) had an occasion to deliberate upon the terms and conditions of the invoice containing arbitration clause. For the sake of brevity, paragraphs 4 to 6 of the judgment reads thus:-

“Having heard learned counsel for the parties, I find that the disputes between the parties in respect of overdue amount require adjudication by an Arbitrator. Though the terms of trade have been settled on 08.06.2007, wherein there is no clause for resolving the disputes by an Arbitrator. But the fact remains that each of the invoices through which the petitioner has supplied goods to the respondent, there is a printed arbitration clause. Once the goods have been received by the respondent in terms of the invoices issued, the terms on the invoices constitute a binding contract. In Fair Air Engineers Pvt. Ltd. and another Vs. N.K.Modi (1996) 6 SCC 385, the Hon’ble Supreme Court returned a finding that there was consensus ad idem, when a quotation with the conditions enumerated thereunder and a counter-offer is made giving technical details. But in disputing any of the conditions enumerated in the quotation, it was held that it was a case of consensus ad idem. It was observed as under:

“6. :.The State Commissioner expressly has gone into the question and held that by operation of clause (12) of the quotation there is an arbitration agreement brought into vogue between the parties. It envisages reference to arbitration and thereby there was consensus ad idem. It is seen that when the quotation was offered with the conditions enumerated thereunder, the respondent merel