* 1 * CRA 1809/2001 11.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1809 OF 2001 M/s Kamalapur Sugar & Industries .... Applicants Limited (Ori. Deft. no.1) Vs. 1. Kay Bouvet Engineering Pvt. Ltd. .... Respondent no.1 (Ori. Plaintiff) 2. Corporation Bank ..... Respondent no.2 (Ori. Defendant no.2) * * * * Mr. Chirag Balsara a/w Mr. C.D. Patel and Mr. D.D. Mehta i/by M/s A.S. Dayal & Associates for applicants. Mr. Nitin Bhutekar h/f Mr. Uday Warunjikar, Advocate for respondent no.1. * * * * Coram : SMT. R.P. SONDURBALDOTA, J. Date : 11th October, 2010. P.C. 1. This revision application arises out of the order dated * 2 * CRA 1809/2001 11.10.2010 21st July 2001 passed by the Court of Civil Judge, Senior Division, Satara in Regular Civil Suit No. 512 of 1999. The applicant who is original defendant no.1, filed an application to the trial Court that the preliminary issue of jurisdiction be framed under Section 9-A of Code of Civil Procedure. The suit filed by respondent no.1 is for appointment of Arbitrator. The applicant contends that such a suit in the civil court, as under Section 11 of Arbitration and Conciliation Act, 1996, an application for the purpose can be made only to the Hon’ble Chief Justice, High Court. 2. There were four contentions raised by the applicant relating to the jurisdiction of the Court. They were (i) the suit was barred under the provisions of the Arbitration and Conciliation Act, 1996; (ii) the suit for appointment of the Arbitrator or Arbitral Tribunal was not maintainable in the Civil Court and was required to be filed only under Section 11 before the Hon’ble Chief Justice of the High Court; (iii) * 3 * CRA 1809/2001 11.10.2010 the Courts at Satara had no jurisdiction and (iv) the parties had agreed that for resolution of the dispute, the forum would be at Calcutta and therefore no other Court had jurisdiction for resolution of the dispute. The contentions at no.2 and 3 need to be considered only if the respondent is able to establish that the suit for appointment of Arbitrator or of Arbitral Tribunal is maintainable in the civil court. The trial Court by its lengthy order dated 21st July 2001 has held that the civil court at Satara has jurisdiction to try and entertain the suit. The impugned order essentially considers the contention only as regards the territorial jurisdiction of the Court. It, does not consider the contention based on Section 11 of Arbitration and Conciliation Act, 1996. 3. Provision of Section 11 of Arbitration and Conciliation Act, 1996 reads as under : 11. Appointment of arbitrators “ . (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub- section(6), the parties are free to * 4 * CRA 1809/2001 11.10.2010 agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub- section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators, shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub- section (3) applies and- (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made upon request of a party, by the chief justice or any person or institution designated by him. (5) Failing any agreement referred to in sub- section (2), in an arbitration with a sole arbitrator if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice of any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or * 5 * CRA 1809/2001 11.10.2010 (c) a person, including an institution, fails to perform any function entrusted him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (7) A decision on a matter entrusted by sub- section (4) or sub- section (5) or sub section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief' Justice or the person or institution designated by him, in appointing arbitrator, shall have due regaled to- (a) any qualifications required of the arbitrator by the agreement of the parties and (b) other considerations as are likely to secure the appointment of an independent, and impartial arbitrator. (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub- section (4) or sub- section (5) or sub- section (6) to him. (11) Where more than one request has been made under * 6 * CRA 1809/2001 11.10.2010 sub- section (4) or subsection (5) or sub- section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub- section shall alone be competent to decide on the request. (12) (a) Where the matters referred to in sub- sections (4), (6), (7), (8) and (10) arise in an international commercial arbitration the reference to" Chief Justice" in those subsections shall he construed as a reference to the" Chief Justice of India." (b) Where the matters referred to in sub- sections (4), (5), (7), (8), and (10) arise in any other arbitration, the reference to" Chief Justice" in those sub- sections shall he construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub- section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief justice of that High Court.” . Bare reading of this provision is enough to hold that the suit as filed is not maintainable. The only manner in which respondent no.1 could have sought appointment of Arbitrator is by filing application under Section 11 of Arbitration and Conciliation Act, 1996 to the Hon’ble Chief Justice of this Court. In the circumstances, the revision application is allowed. The impugned judgment and order * 7 * CRA 1809/2001 11.10.2010 dated 21st July 2001 passed by the Court of Civil Judge, Senior Division, Satara in Regular Civil Suit No. 512 of 1999 is set aside. The preliminary issue of jurisdiction is answered in favour of the applicant and against respondent no.1. The suit is dismissed as not maintainable. (SMT. R.P. SONDURBALDOTA, J) (SMT. R.P. SONDURBALDOTA, J)