IN HIGH COURT OF CHHATTISGARH AT BILASPUR Arbitration Aopeal No.01/2011 X CASENO,25-AOF201Q Appellant Petitioner 1. Versus Respondent Mrs. Barbara Elizabeth Simoese Von Staranburg Niedenthai, Daughter of Late Wilfred O Simoes, aged about 46 years. Through her duly constituted attorney and sister Mrs. Virginia Maria Simoes, R/o House No.241, Gotnamordi, Tilamol, Quepem, Goa. Also at: House No.D-3, Marigold Housing Socsety, Chandrawadoo, Fatrods. Margoa. Salcette, Goa-403705. Mrs Vjrginia Maria Simoes, Daughter of Late Wilfred O Simoes. R/o House No. 241, Gotnamordi, Tilamol, Quepem, Goa. Also at : House No.D-3, Marigold Housing Society, Chandrawadoo, Fatroda, Margoa, Salcette, Goa- 403705 M/s Sarda Energy & Minerals Limited (Formeriy known as M/s RaipurAlioys and Steel Ltd.) Having its Head OfRce at: Industrial Growih Centre, Siiiara, Raipur, Chhattisgarh-492007 Registered Office at: 73/A, Centrai Avenue, Nagpur, Maharashtra440018 Appellant Petitionsr Arbitration Appeal No.02/2011 IN CASENQ.24^0F2010 1. Mrs. Barbara Elizabeth Simoese Von Staranburg Niedenthal, Daughter of Late Wiifred O Simoes. Through her duly constituted attorney and sister Mrs. Virginia Maria Simoes, R/o House No.241, Gotnamordi, THamol, Quepem, Goa. Also at: 2. Versus Respondent House No.D-3, Marigold Housing Society, Chandrawadoo, Fatroda. Margoa, Salcette, Goa-403705. M/s Virginia Maria Simoes, Daughter of Late Wilfred O Simoes, R/o House No. 241, Gotnamordi, Tilamol, Quepem, Goa. AIso at : House No.D-3, Marigoid Housing Sodety, Chandrawadoo, Fatroda, Margoa, Salcette, Goa- 403705 M/s Chhattisgarh Investment Limited Having its registered office at: P-49, Industriai Area-Urkura,Raipur (CG) Arbitration Appeal No.03/2011 ~®~ CASEM0.26.AOF_2010 Appellant Petitjoner 1, Versus Resoondent Mrs. Barbara Elizabeth Simoese Von Staranburg Niedenthal, Daughter of Late Wilfrect O Simoes. Through her duly constituted attorney and sisfer Mrs. Virginia Maria Simoes, R/o House No.241, Gotnamordi, Tilamol, Quepem, Goa. Alsoat: House No.D-3, Marigold Housing Society, Chandrawadoo, Fatroda, Margoa, Salcette. Goa-403705. M/s Virginia Maria Simoes, Daughter of Late Wilfred O Simoes, R/o House No. 241. Gotnamordi, Tilamol, Quepem, Goa. Aiso at : House No.D-3. Marigoid Housing Society, Chandrawadoo, Fatroda, Margoa, Salcette, Goa- 403705 M/s Sarda Energy & Minerals Limited (Formerly known as M/s Raipur Alloys and Steel Ltei.) Havmg its Head Office at: Industrial Growth Centre, Siltara, Raipur, Chhattjsgarh-492007 Registered OfRce at: 73/A, Central Avenue, Nagpur, Maharashtra 440 018 ^^im '%.. Kiilll% ^&s^yJ w < ORAL ORDER ^L01.2011T The following judgment of the Court was delivered by Dhirendra Mishra, J. With the consent of learned counsel for the parties, the matters were heard fmally. 2. Arbitration appeal Nos. 01/2011, 02/2011 and 03/2011 are being disposed of by this common judgment as in all these appeals common question of law and fact is involved. 3. For the purposesof this judgment reference is being rtiade to the facts of Arbitration Appeal Np.1/11. 4. Briefly stated, the facts of the case are that an agreement of Annexure-1 was entered into between the parties at Raipur for sale of entire iron ore to the respondent M/s. Sharada Energy and Minerals Ltd. The aforesaid agreement was finally terminated by the appellant herejn on 11.03.2010. The agreement dated 27.04.2007 contains arbitration dause 15.3.2. After 3 months of termjnation of the agreement, the respondent filed an application under Section 9 of the Act along with an application under Order 39 Rule 3 react with Section 151 of CPC before learned District Judge, Raipur. Learned District Judge, vide order dated 18.06.2010 (Annexure 4), atlowed the application ofjthe respondent under Order 39 Rule 3 read with Section 151 of CPC and passed an interim ex-parte order cljrecting the parties to maintain the status quo. Upon receipt of the notice, the appeltant filed an application before leamed District Judge and raised an objection withjrespect to the jurisdiction to entertein, try and dispose of the petition under the Act and also for recalling the order 18.06.2010. ;ii:S». MBI'i?'^ ^Xii3:'%. ^sysi^. s •:Sei-<^ <N^I»>. The above application has been dismissed by the impugned order dated 06.10.2010. This appeal is directed againstthe aforesaid order. 5. Smt. Fouzia Mirza, leamed counsel for the appellants submits that under Clause-16 of the agreement, parties have voluntarily agreed to submit themselves to the exclusive jurisdiction of Courts at Goa. The agreement is with respect to the mines, which are located at Goa and appellant No.2 also resides at Goa. Thus, leamed District Judge did not have temtorial jurisdiction to entertain, try and dispose of the petition under the Act. 6. Learned District Judge, referring to various decisions cited by learned counsel for the respondent, observed that th@ respondent has shown his resjdence and office at Raipur. Sjnce the cause of action had arisen at Raipur, the instant application for interim relief under Section 9 of the Act has been filed. In view of the provisions of the Contract Act, 9part from Courte at Goa, the Courts at Raipur have also the territorial jurisdiction to hearthe matter. Relyjng; upon the decisions oftfie Supreme Court in the matters oif A.B.C. Lamlnart Pvf. Ltd. &anotfier vs A.P. Agencies, Salem reported in AIR 1999 SC 1239, Globe Transport Ceuporation vs. Triveni Engfneering Worirs and another reported in (1983) 4 SCC 707 and Balajf Coke Industry Pvt Ltd. vs. Maa Bhagwati Coke Gujarat Private Umiteff reported in (2009) 9 SCC 403 and Rafasffian St^ite ElGcliicity Board vs. Universal Petr^l Chemicals Ltd. reported in (2009) 3 Supreme Court Cases 107, Rlte Approach Group Ud. vs. Rosobo^on fifport reported in (2006) 1 Supreme Court Cases 206 and Shree Baldyanath Ayurved Bhawan vs. Praveen Bhatfa & others reported in (2009) 8 Supreme Court M^y'i^^;. yM ^ Vtii:::: H ^g||||i'iij., ^ •^9f Cases 779, it was argued that where there is more than one forum, where the suit can be filed, it is open to the parties to agree upon and select a particular forum and exclude all other forums, in which the proceedings may be filed. In the jnstant case, by agreeing to submit themselves to the exclusive jurisdiction of Courts at Goa, the parties have voluntarily outstead the jurisdictjon of other Courts. 7. It was further argued that tearned District Judge wrongly applied ratio of law laid down by the Gujarat High Court in the matter of Rajasthan Goldien Transport Co. Pvt. Ltd. vs. The Un'itedl Flre <S General Insurance Co. LttS reported in AIR 1980 Gujarat 184 and Snehalkumar Sarabhai vs. Economic Transport Organizathn & Ors reported in AIR 1975 Gujarat 72 as in the aforesaid judgments, considering the peculiar facts of all those cases, the High Court ignored the exclusion and ouster clause in the agreement. 8. Shri Ratan K. Singh with Shri M. Rajshekhar, counsel appearing for respondents/Caveatprs argued that the instant appeals under SectiOn 37 of the Arbitration and Condliatjon Act, 1996 (hereinafter veferred to asjtKe 'Act') are not majntainable as they are not directed against anyfjnat ordor passed under Section 9 oftheAct. 9. Learned counsel for the respondent further submiits that the appeal is premature. From perusal ofthe impugned order, it would be evident that since the appellants have not filed reply to the application under Sectionj 9 of the Act, the appellants' objection regarding the territorial jurisdiction has been rejected with an observation that prima facie, it does pot appear that the Court has no territorial jurisdiction and it could b&justified to pass order on merits only after reply is filed. \fc\ 10. Heard learned counsel for the parties. Perused the impugned order. 11. I do not find any substance in the argument of learned counsel for the respondent that these appeals are not maintainable under Section 37 of the Act. Section 37(1) (a) clearly mandates that an order granting or refusing to grant any measure under Section 9 js appealable under Section 37 of the Act. In the instant case, learned District Judge vide order dated 18.06.2010, allowing the application under Order 39 Rule 3 read with Section 151 of CPC passed an ex- parte interim order directing the parties to maintain status.quo till the next date of hearing and thus, has already exercised jurisdiction under Section 9 of the Act. 12. However, from perusal of the jmpugned order, l find that the appellant has not filed her reply to the application under Section 9 of the Act. 13. In these circumstances, without entering into the merite of the case, the appeals are disposed of in the following terms:- > The appellants shall file their reply to the application uncter Section 9 of the Act on the next date of hearing, > Learned District Judge shall thereafter decide the above appljcation as also the objection regarding the territorial jurisdiction raised by the appellants afresh within a period of 30 days from the date of filing of reply after affording opportunityof hearing to the parties. No order as to costs. Priya Sd/- Dhirendra Mishra Judge ':3i!^&SiSiSSIi^^SB^SSSS^^S^S