THE HON’BLE SRI JUSTICE T. VINOD KUMAR AND THE HON’BLE SRI JUSTICE PULLA KARTHIK CIVIL REVISION PETITION No. 882 of 2019

ORDER

1. This Civil Revision Petition is filed aggrieved by the docket order dated 31.12.2018 in Memo. S.R. No.6041 of 2018 in C.O.P. No. 84 of 2018 passed by the Commercial Court Judge – cum –

XXIV Additional Chief Judge, City Civil Court, at Hyderabad.

2. Heard Sri P. Sri Harsha Reddy, learned counsel for the petitioner and Smt. Manjari S. Ganu learned counsel representing Sri Sunil B. Ganu, learned counsel for the respondent No.1 and perused the record.

3. The respondent No.1 herein filed the aforesaid C.O.P under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act, 1996’) challenging the Arbitration Award dated 16.04.2018. The petitioner herein is the respondent No.1 before the court below.

4. The petitioner herein, filed the underlying memo raising a preliminary objection that the Commercial Court, Hyderabad did not have jurisdiction to entertain the subject O.P. under Section 42 of the Act, 1996, since previously the 1^st respondent herein had filed A.O.P. No.402 of 2016 before the District Court, Khammam under Section 9 of the Act, 1996. The Respondent No.1 herein filed his reply memo contending that Hyderabad is the seat of arbitration, since the arbitral proceedings were conducted and the award was also passed in Hyderabad. The petitioner thus contended that the courts located at the seat of arbitration had jurisdiction to deal with the award passed by the arbitral Tribunal.

5. The Court below placing reliance on the decision of the Supreme Court in Indus Mobile Distribution Pvt Ltd., Vs.

Datawind Innovations Pvt Ltd.

1, dismissed the said memo holding that an application under Section 34 of the Act, 1996 is to be filed where the arbitration took place and where the arbitration place is fixed. The present revision is preferred aggrieved by the said order.

Contentions of the Petitioner:

6. Learned Counsel appearing for the petitioner contends that, Section 42 of the Act, 1996 which starts with a non – obstante clause provides that once an application is filed before a Court

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seeking relief under Part I of the Act, 1996, such Court alone shall have jurisdiction to deal with all subsequent applications arising out of the arbitration agreement including the arbitration proceeding; and since, the Respondent No.1 herein had filed A.O.P. No.402/2016 before the Principal District Judge at Khammam under Section 9 of the Act, 1996 seeking injunction restraining the petitioner herein from encashing the bank guarantee, therefore any subsequent applications would lie to the very same Court by virtue of Section 42 of the Act, 1996.

7. It is further contended that, the Commercial Court at Hyderabad, cannot assume jurisdiction on the ground that the arbitral proceedings were held and the award was passed at Hyderabad, when the tender conditions specifically vest the Courts at Khammam with exclusive jurisdiction; and that the Courts in Hyderabad would have jurisdiction by virtue of the award being passed in Hyderabad, had the earlier application vide A.O.P.

No.402/2016 not been filed before the District Judge, Khammam.

Contentions of the Respondent No.1:

8. Per contra, learned Counsel for the respondent No.1 contends that, though the tender conditions vide Enq. No.

E1313O0427 dated 24.02.2014 clothes the Courts at Khammam to have jurisdiction, since the petitioner herein had chosen the place of arbitration and conducted the arbitral proceedings in Hyderabad, the Courts at Hyderabad had jurisdiction to deal with the challenge under Section 34 of the Act, 1996.

9. By placing reliance on the decision of the Supreme Court on Indus Mobile’s case (supra) and Hindustan Construction Company Ltd Vs NHPC Ltd & Anr

2, it is contended that the moment a seat of arbitration is fixed, the same amounts to conferring exclusive jurisdiction on the Courts located at the seat of arbitration to supervise t