1 W.P.No.8252/11 with W.P.No.8254/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8252 OF 2011. M/s Ambarwadikar and Co., Engineers & Contractors, A Registered Firm through its Parnter, Shri Vitthal Rangnathrao Ambarwadikar, Age 68 years, Occ.Business, R/o 2121 Samarth Nagar, Aurangabad. ... Petitioner. Versus 1. Ashok Leyland Finance Ltd., A Company incorporated under the Provisions of Indian Companies Act, 1956 having its Office at Sudarshan Building, Chanies Road, Chennai, which is presently known as Indusind Bank Ltd., Indusind Bank Ltd., Kandi Tower, Besides Vyankatesh Gas Agency, Aurangabad. 2. Shri S.K.Gowthaman, Advocate (Arbitrator), Age major, R/o New No.49, 224, B IV, Cross Street, Natesa Nagar, Viruganbakkam, Chennai (T.N.). (deleted as per Court's order dt.21.10.2011, extended as per order dt.11.11.2011.) ... Respondents. 2 W.P.No.8252/11 with W.P.No.8254/11 WITH WRIT PETITION NO.8254 OF 2011. M/s Ambarwadikar and Co., Engineers & Contractors, A Registered Firm through its Parnter, Shri Vitthal Rangnathrao Ambarwadikar, Age 68 years, Occ.Business, R/o 2121 Samarth Nagar, Aurangabad. ... Petitioner. Versus 1. Ashok Leyland Finance Ltd., A Company incorporated under the Provisions of Indian Companies Act, 1956 having its Office at Sudarshan Building, Chanies Road, Chennai, which is presently known as Indusind Bank Ltd., Indusind Bank Ltd., Kandi Tower, Besides Vyankatesh Gas Agency, Aurangabad. 2. Shri S.K.Gowthaman, Advocate (Arbitrator), Age major, R/o New No.49, 224, B IV, Cross Street, Natesa Nagar, Viruganbakkam, Chennai (T.N.). (deleted as per Court's order dt.21.10.2011, extended as per order dt.11.11.2011.) ... Respondents. ... Mr.A.K.Gawali, advocate for the petitioner Mr.S.S.Deshmukh, advocate holding for Mr.S.S.Gangakhedkar, advocate for Respondent No. 1. 3 W.P.No.8252/11 with W.P.No.8254/11 Respondent No.2 deleted. ... CORAM : S.V.GANGAPURWALA,J. Date : 24.11.2011. PER COURT : 1. Heard. 2. The petitioner has filed an application U/s 34 of the Arbitration and Conciliation Act, 1996 against the award passed by the sole arbitrator. The Principal District Judge, Aurangabad, returned the said petition to the present petitioner for presenting the same to the Court in which the same should have been instituted. The said orders are assailed in the present petitions. 3. Mr.A.K.Gawali, learned counsel for the petitioner submits that the learned Principal District Judge has rejected the petition U/s 34 of the Arbitration and Conciliation Act, invoking the powers U/o 7 Rule 10 of the C.P.C., solely on 4 W.P.No.8252/11 with W.P.No.8254/11 the ground that proceedings U/s 9 of the Arbitration and Conciliation Act, 1996 have been initiated by the present Respondent before the High Court at its Principal seat at Bombay in its ordinary original Civil jurisdiction. According to the learned counsel, the proceedings U/s 9 are not maintainable before the Court at Bombay, as it does not have territorial jurisdiction to entertain the same. No part of cause of action has arisen at Bombay. The transaction has taken place at Aurangabad and as no part of cause of action has arisen at Bombay, the High Court at its principal seat at Bombay does not have jurisdiction to entertain Section 9 application. The petitioner has also raised the issue of jurisdiction in the said Section 9 proceedings but unfortunately the same have not been decided. In such circumstances, this Court in its jurisdiction under Article 227 of the Constitution of India, can decide about the jurisdiction of the Court at Aurangabad to entertain Section 34 petition vis-a-vis the non- maintainability of the petition at Bombay for lack of territorial jurisdiction. The learned 5 W.P.No.8252/11 with W.P.No.8254/11 counsel relies on the judgment passed by the learned Single Judge of this Court in following matters : i) "Oil and Natural Gas Corporation Ltd. Vs. Jagson International Ltd." reported in 2005 (3) Mh.L.J.1141; ii) "Kotak Mahindra Finance Ltd. Vs. T.Thomas Educational Trust, Chennai and others" reported in 2004 (1) Mh.L.J. 1112; iii) "Kotak Mahindra Bank Ltd., Mumbai Vs. Sharma Crane Service, Raipur and another" reported in 2010 (1) Mh.L.J.814. 4. Mr.Deshmukh, learned counsel for the Respondent supports the order and submits that in view of the pendency of Section 9 proceedings at Bombay, the District Judge at Aurangabad can not entertain the petition U/s 34 of the Arbitration and Conciliation Act, more particularly, in view of Section 42 of the Arbitration and Conciliation Act. 5. Section 42 of the Arbitration and 6 W.P.No.8252/11 with W.P.No.8254/11 Conciliation Act reads as under : "42. Jurisdiction - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court." 6. It is not disputed that proceedings U/s 9 for interim measures are filed by the present Respondents before the High Court at Bombay in its ordinary original Civil jurisdiction. In the said proceedings even interim orders have been passed from time to time. Though, it appears that in the affidavit, the present petitioners have raised the issue of jurisdiction in 7 W.P.No.8252/11 with W.P.No.8254/11 Section 9 proceedings, the said issue is not yet decided. 7. The Court at its Principal seat at Bombay in its ordinary original Civil jurisdiction is seized with the matter,it would be inappropriate for this Court to decide about the jurisdiction of the Court dealing with Section 9 proceedings, more particularly, when the same is subjudice before the said Court. 8. In such circumstances, when Section 9 proceedings have been filed long back and the same are pending before the Court at Bombay, the bar of Section 42 of the Arbitration and Conciliation Act would come into force. Even the learned Single Judge of this Court in a case of "Eskay Engineers, Mumbai Vs. Bharat Sanchar Nigam Ltd., Mumbai reported in 2009 (5) Mh.L.J.565, has held that where application under part I has been made in a Court with respect to arbitration agreement, that Court alone shall have jurisdiction over the arbitration proceedings, no other Court would have jurisdiction. 8 W.P.No.8252/11 with W.P.No.8254/11 9. The judgments in a case of "Oil and Natural Gas Corporation Ltd. Vs. Jagson International Ltd.", "Kotak Mahindra Finance Ltd. Vs. T.Thomas Educational Trust, Chennai and others" and "Kotak Mahindra Bank Ltd., Mumbai Vs. Sharma Crane Service,Raipur and another" relied by Mr.A.K.Gawali, learned counsel for the petitioner deal with the different situation. Therein proceedings U/s 9 were decided and it was decided that the Courts where Section 9 proceedings were filed did not possess the territorial jurisdiction. It is in said circumstance, the learned Single Judge of this Court held that bar U/s 42 of the Arbitration and Conciliation Act would not apply. In the present case, the proceedings U/s 9 are still pending with the Court at Bombay in its ordinary original Civil jurisdiction and in such circumstances, the Principal District Judge at Aurangabad could not have exercised the jurisdiction and has rightly passed the order returning the petitions for presentation in proper Court. 10. In view of the above, no interference 9 W.P.No.8252/11 with W.P.No.8254/11 is called for in the orders impugned. The Court where the petitions would be presented shall consider the time spent in prosecuting the proceeding. However,there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp8252.11