R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 Date of Decision: December 4, 2009 ICICI Bank Limited …..Petitioner Vs. M/s Garg Acrylics Limited & others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Ashok Aggarwal, Senior Advocate with Mr. Piyush Kant, Advocate for the petitioner. -.- M.M.S. BEDI, J. The petitioner Bank has filed this application under Order 47 read with Sections 114 and 151 CPC seeking review of the order dated October 9, 2009 passed by this Court. Vide order dated October 9, 2009, the revision petition filed by the petitioner had been partly allowed and partly dismissed and the adverse R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 [2] observations made against the petitioner pertaining to territorial jurisdiction had been set aside. Mr.Ashok Aggarwal, Senior Advocate, has contended that the main contention of the petitioner in the revision petition was that in view of clause 13 (b) in the ISDA Master Agreement, the plaint filed by the plaintiff- respondents was liable to be returned as the Courts at Ludhiana had no jurisdiction to entertain the same as it is the competent Court at Mumbai which has got the exclusive jurisdiction. He argued that though the contention of the counsel in context to Para 13 (b) of the Master Agreement had been noted but while holding that the suit filed by the plaintiff- respondents is maintainable at Ludhiana as well as Mumbai, the observations of the trial Court that it is only the Civil Court at Ludhiana and only Ludhiana will have jurisdiction to entertain the suit, was set aside. Learned counsel argued that this Court had inadvertently while duly taking note of clause 13 (b) of ISDA Master Agreement has not given effect to the same after arriving at the finding that Mumbai Courts too had jurisdiction in the matter at hand. The inadvertent error is apparent on the record as such the prayer has been made for reviewing the order dated October 9,2009 and an order has been sought to the effect that application annexure P-5 in the main petition under Order 7 Rules 10 and 11 read with Section 151 CPC filed by the defendant- petitioner should be allowed and plaint should be ordered to be returned to the plaintiff- respondents for presentation at Mumbai. R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 [3] I have heard counsel for the petitioner. The rights of the Bank to take the legal remedy available to it at Mumbai has been considered in the order in page 11 of the judgment, wherein it has been held by this Court as follows:- “Taking into consideration the ratio of the above said judgments, the petitioner bank has got an independent right to file application under Section 19 of the Act before the DRT or any other suit or proceedings before the High Court of Mumbai, on the basis of the Master Agreement entered into between the parties. At the same time, the plaintiff- respondents have also got a legal right to bring a suit of civil nature on its own choice at its own peril, howsoever frivolous the claim may be unless it is barred by a statute. There is no provision of law which debars the plaintiffs-respondents to file a suit for declaration and injunction as per the provisions under Sections 34 & 38 of the Specific Relief Act.” The scope and considerations for adjudication on an application under order 7 Rule 10 CPC are different from the considerations under Order 7 Rule 11 CPC but the defendant- petitioner had filed an application under Order 7 Rules 10 and 11 CPC. The said application has been considered in the light of the provisions of Order 7 Rule 10 CPC which provides for return of the plaint to be presented to the Court in which R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 [4] the suit should have been instituted. Once the Court had arrived at a conclusion that both the civil Courts at Ludhiana and Mumbai have jurisdiction, the plaint could not have been ordered to be returned. Clause 13 (b) (i) of the Master Agreement, no doubt requires both the parties to the agreement to submit to the jurisdiction of High Court of Mumbai in India but a sub-clause added to clause 13 (b) enables one of the parties i.e. Bank to bring proceedings in any other Court, Tribunal or appropriate forum in other parts of the Country having jurisdiction. As the ouster clause that “each party to the agreement would submit to the jurisdiction of High Court of Mumbai” in India, cannot be construed to mean that it is the Court at Mumbai “alone” because this clause is not qualified by such words like “exclusive” or “only” or “alone”. If this clause 13 (b) (i) is read with the sub-clause relaxing the condition to move any other Court for bringing of proceedings in one or more jurisdictions to party B i.e. the Bank, the said relaxation cannot be deprived to the other party. Such a construction of clause 13 (b) of Master Agreement would not only be unconscionable but would be contrary to the public policy. Considering the prayer in the application of the petitioner in context to Order 7 Rule 11 CPC the circumstances of the case do not bring the suit within the ambit of Order 7 Rule 11 (d) CPC. The suit does not appear, from the statement in the plaint, to be barred by law. Vide order dated October 9, 2009, the interests of the petitioner Bank have been safeguarded to approach the concerned Courts at Mumbai R.A.-CR-136-CII of 2009 in C.R. No. 2590 of 2009 [5] to avail the legal remedy available to it. The rights of the petitioner Bank have not been prejudiced. In view of the observations made above, the application for review though is held to be maintainable but does not deserve to be allowed for the reasons mentioned hereinabove. Dismissed. December 4, 2009 (M.M.S.BEDI) sanjay JUDGE