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2005 DIGILAW 706 (DEL)

LARSEN AND TOUBRO LTD v. K. S. BAIDWAN

2005-07-05

S.K.AGARWAL

body2005
S. K. AGARWAL,j. ( 1 ) PETITIONER has filed objections under section 34 of the Arbitration and Conciliation act, 1996 (for short, the Act ) for setting aside the arbitral award dated 11. 12. 2003 passed by the first respondent. The second respondent has raised a preliminary objection as to the territorial jurisdiction of this Court, pleading that objections are wholly incompetent/ thus, not maintainable. Petitioner has filed a reply submitting that the objection as to the forum selection under clause 12 of the agreement between the parties has been waived by the second respondent, by invoking jurisdiction of the delhi courts in other matters. Question which requires consideration is whether the courts at Delhi have the territorial jurisdiction, to entertain objections under the Act, in relation to the contract concluded, performed and allegedly breached, giving rise the disputes, forming subject matter of the arbitration, at ghaziabad (UP)? ( 2 ) BRIEF facts, for appreciating the above question, are as fellows. On 27. 2. 1999, petitioner entered into an agreement for construction of the college building, by the second respondent, at Ghaziabad {hereafter, the Agreement }. Clauses 11 and 12 of the agreement provide that all payments by the employer under the contract shall be made only at Ghaziabad; that all disputes arising out of or in any way connected with this agreement, shall be deemed to have arisen at ghaziabad, and only Courts at Ghaziabad shall have the jurisdiction to determine the same. Clause 33 of the agreement provides that all disputes or difference any kind whatsoever, which may at any time arise between the parties touching or concerning the said work, execution or maintenance of the contract, foreclosure or breach thereof, shall be adjudicated by the sole arbitrator to be appointed by the appointing authority. It also provides procedure for appointment of the appointing authority for appointing sole arbitrator to adjudicate the disputes between the parties and filling up of the vacancy, if any. The dispute between the parties arose while construction was in progress, giving rise to claims and counter claims. ( 3 ) ON 24. 8. It also provides procedure for appointment of the appointing authority for appointing sole arbitrator to adjudicate the disputes between the parties and filling up of the vacancy, if any. The dispute between the parties arose while construction was in progress, giving rise to claims and counter claims. ( 3 ) ON 24. 8. 2001, second respondent filed a civil suit (No. 288/2001) for injunction against the petitioner, restraining them from entering or taking forcible possession of any portion of the college building at Ghaziabad, pleading therein, that the Agreement for construction was signed at Delhi that defendant is having its office at Delhi and that the threats were also extended in Delhi, hence court at Delhi has territorial jurisdiction to entertain the suit; ex-parte injunction was obtained. Petitioner s case is that on 14. 9. 2001, second respondent withdrew this suit expecting jurisdictional objection by them. ( 4 ) IN the meantime, in terms of Clause 33, dr. N. Mohanan (third respondent) was appointed as the Appointing Authority, who in turn appointed Justice K. Ramamoorthy, former Judge of this Court, as the sole arbitrator (hereafter, the arbitrator ) on 4. 1. 2002. Petitioner filed statement of claims before the learned arbitrator, inter alia pleading that the respondent being well aware of the restrictive clauses in the contract conferring jurisdiction only upon the courts within ghaziabad, filed above noted Civil Suit (No. 288 of 2001) against the petitioner on 24. 8. 2001 before the court of the Senior judge, Delhi, seeking permanent injunction for restraining the petitioner from entering, trespassing and taking forcible possession of any portion of the College building of the respondent. They also obtained ex-parte order of injunction or 28. 8. 2001 by suppressing material facts, including the lack of jurisdiction. The petitioner entered appearance in the said suit and took time for filing a counter. However, anticipating jurisdictional objection from the petitioner the said suit was withdrawn on 14. 9. 2001. ( 5 ) THE arbitration proceedings commenced with the appointment of the arbitrator on 4. 1. 2002. In August, 2003 second respondent made some allegations of legal misconduct against the learned arbitrator and requested the Appointing Authority to appoint another arbitrator. By letter dated 29. 8. 2003 the appointing authority informed the petitioner about the respondent s grievances, asking them to agree for appointment of a new arbitrator, for which three names were also suggested. 1. 2002. In August, 2003 second respondent made some allegations of legal misconduct against the learned arbitrator and requested the Appointing Authority to appoint another arbitrator. By letter dated 29. 8. 2003 the appointing authority informed the petitioner about the respondent s grievances, asking them to agree for appointment of a new arbitrator, for which three names were also suggested. The petitioner vide letter dated 3. 9. 2003 refuted the allegations and refused to select any name out of the suggested panel. However, vide letter dated 19. 9. 2003 sh. K. S. Baidwan, first respondent was appointed the new arbitrator, who entered reference and rendered the award dated, 11. 12. 2003, which is under challenge. There is dispute about the date of appointment of the new arbitrator, but it is not necessary to refer to the allegations arid counter allegations, for the purpose of deciding the preliminary objection, about the territorial jurisdiction of this Court. ( 6 ) IT may be noted here that petitioner had also filed a civil suit (No. 308/2003) in the court of Senior Sub-Judge, Delhi, for injunction restraining the Appointing Authority (third respondent) to appoint new arbitrator in terms of the letter dated 29. 8. 2003, pleading that substantial part of the cause of action for filing of the suit arose at Delhi, and that suit relates to the conduct and continuation of the arbitration proceedings, having its venue at Delhi, therefore, the court at Delhi has the territorial jurisdiction to entertain the suit. It was also pleaded that second respondent, by conduct, gave up forum selection clause between the parties. The second respondent filed an application dated 9. 9. 2003 under Order VII Rule 11 read with section 151 of the Code of Civil Procedure (for short, "code") for rejection of the suit. On 24. 9. 2008 the defendants in the suit were directed not to appoint any new arbitrator till the next date of hearing. However, respondent s case is that vide letter dated 19. 9. 2003 new arbitrator was already appointed, who entered reference on the same date, and rendered the aware: on 11. 12. 2003. Petitioner filed the present petition against the said award on 16. 2. 2004 in which second respondent filed an application under Section 9 of the Act, for stay of petitioner s suit (308/2003) pending disposal of their objection petition. 2003 new arbitrator was already appointed, who entered reference on the same date, and rendered the aware: on 11. 12. 2003. Petitioner filed the present petition against the said award on 16. 2. 2004 in which second respondent filed an application under Section 9 of the Act, for stay of petitioner s suit (308/2003) pending disposal of their objection petition. Proceedings in the petitioner s injunction suit were stayed. It appears that as the new arbitrator had rendered the award on 11. 12. 2003, therefore, petitioner s suit for injunction became in fructuous; the application, was accordingly not pressed. ( 7 ) ON the basis of the said award dated 11. 12. 2003, second respondent filed a petition for execution, for recovery of the awarded amount before the District Judge, ghaziabad and got petitioner s bank account attached. Some time in the year 2004, Justice ramamoorthy also rendered his award, awarding certain amounts in favour of the petitioner. The second respondent also filed objections against the said award before the district Judge at Ghaziabad. Petitioner s applications for review etc. , were dismissed by the learned District Judge. ( 8 ) AGAINST the orders passed in the said execution and objection petitions, petitioner filed two transfer petitions before the Supreme court for transfer of the proceedings, to the court of competent jurisdiction at Delhi (TP (C) no. 44-45/2005}. In these transfer petitions, petitioner has also pleaded the waiver of forum selection clause 12 of the agreement, by the second respondent. The proceedings before the Ghaziabad courts were stayed. On 19. 4. 2005, learned counsel for the petitioner argued that in the transfer petitions, petitioner has specifically pleaded waiver of the forum selection clause, by the second respondent, therefore, order of the Supreme Court on the transfer petitions, would have a direct bearing on the preliminary objection of the second respondent. In view of the same, hearing of the preliminary objection, was deferred till final decision by the Supreme court on the said transfer petitions. However, on 10. 5. 2005, learned counsel for the parties submitted that the Supreme Court vide orders dated 4. 5. 2005 adjourned the transfer petitions for eight weeks and has directed that the issue of territorial jurisdiction will be decided by this Court. It was argued that matter is likely to be listed for hearing the supreme Court some time in July-August 2005. 5. 2005, learned counsel for the parties submitted that the Supreme Court vide orders dated 4. 5. 2005 adjourned the transfer petitions for eight weeks and has directed that the issue of territorial jurisdiction will be decided by this Court. It was argued that matter is likely to be listed for hearing the supreme Court some time in July-August 2005. Copy of the order was also filed. Accordingly, I have heard learned counsel for the parties only on the question of territorial jurisdiction. ( 9 ) SH. MADAN Bhatia, learned senior counsel appearing on behalf of second respondent argued that the tenders for construction of college building were invited at Ghaziabad; petitioner submitted its tender with draft articles of agreement and specific conditions of contract at Ghaziabad; the offer was accepted and the contract was concluded at ghaziabad; the construction of building was undertaken at Ghaziabad; petitioner stopped construction in violation of the agreement and committed the breach of agreement at ghaziabad; all payments under Clause 11 of the Agreement were to be made only at ghaziabad; thus, entire subject matter of reference is at Ghaziabad, and, that if these questions had arisen in the suit, only the court at Ghaziabad would have the jurisdiction to entertain the same and that the court at delhi have no territorial jurisdiction. In addition, it was argued that jurisdiction of courts, other than the courts at Ghaziabad, is excluded b, clause 12 of the agreement. Learned counsel argued that consistent view of this Court has been that only the courts where "the subject matter of reference" is located would have territorial jurisdiction to objections for setting aside the award under the Act. In support of this contention, reliance was placed on the following decisions of this Court: " (I) In Kamalpushp Ent. Vs. M. G. , Gas auth. of India, 1995 RLR 56 , Hon ble mr. Justice R. C. Lahoti (now Chief Justice of India), held that for deciding the question of territorial jurisdiction in the arbitral proceeding, the court has to ask two questions: (i) what are the questions which form the subject matter of reference of arbitration?"and " (II) if these questions had arisen in a suit, which is the court which would have jurisdiction to entertain the suit? the law laid down in M. Venkatasamiappa Vs. the law laid down in M. Venkatasamiappa Vs. Srinidhi Ltd. , 1950-1 MLJ 709 (DB), was followed, wherein it was held: (a) The Arbitration Act does not contemplate nor does provide the Court having jurisdiction as the Court within the limits of whose territorial jurisdiction any of the parties reside. Had it been so then the Legislature could have sufficiently and simply employed such expression; (b) The jurisdiction of the court is made to depend not on the place where the parties dwell or carry on business or personally work for gain, but solely or subject matter; there is no reference to any other circumstance in section 2 (c) or Section 31 (1) of the act At least one good reeson why the court having jurisdiction night depend on the accident as to who first raised the dispute or decided to tile a suit; (c) it is only when the subject matter of the dispute itself makes the jurisdiction dependant on residence that the question of residence need arise all; (d) section 2 (c) and Section 31 (1) of the act do not contemplate the place in which the agreement was entered into being relevant for deciding territorial jurisdiction of the Court. "" (ii) In Sushil Ansal Vs. Union of india, AIR 1980 Delhi 43, it was held. "the questions forming subject matter of the reference to arbitration are the various question which were raised before the arbitrator. All such questions and claims before arbitrator related to compensations, refund of excess recovery, payment for work done, cost of arbitration proceedings, and amount of final bill, for the contract performed at kanpur. All these questions thus arose at Kanpur only as the work under the contract was done at Kanpur. The contract in question was accepted at lucknow and the place of performance of the work was at Kanpur. if the suit is to be filed on the basis of these questions, it cannot be filed under section 20 (c) of the Code of Civil procedure in the court at Delhi. " (iii) In B. B. Verma Vs. National projects Construction Corporation ltd. , 80 (1999) DL T 498 (DB), the division Bench comprising of Hon ble mr. Justice S. N. Variava (now Supreme court Judge) and Hon ble Mr. " (iii) In B. B. Verma Vs. National projects Construction Corporation ltd. , 80 (1999) DL T 498 (DB), the division Bench comprising of Hon ble mr. Justice S. N. Variava (now Supreme court Judge) and Hon ble Mr. Justice s. K. Mahajan (as His Lordship then was), while upholding the findings of learned single Judge that petition under sections 14 and 17 of the Arbitration act, 1940 was not maintainable for want of territorial jurisdiction held as under: "before parting we may, however, point out that while holding that this court has no territorial jurisdiction to entertain the petition, the learned Single Judge has held that the petition under Sections 14 and 17 of the Arbitration Act was not maintainable. In our view, after a finding has been given by the Court that it was no. jurisdiction to entertain a petition, the proper course would have been to return the petition for presentation in the proper Court. While, therefore, dismissing this appeal, we direct the petition under Section 14 and 17 of the Arbitration Act to be returned to the petitioner for presentation in proper Court. " (iv) In B. S. Virdi Electric Works Vs. Union of India and Anr. 97 (2002) DL T 89, it was held: "so far the second contention of the petitioner that this court shall have territorial jurisdiction to entertain the present proceedings, in view of the fact that the Arbitrator conducted the proceedings in Delhi, is concerned, the same cannot be accepted and stands rejected in the light of the decision of this Court in Sushil Ansal Vs. Union of India, reported in AIR 1980 Delhi 43 and also in the light of the decision of the Supreme Court in Patel Roadways ltd. , Bombay (supra ). In the case of sushil Ansal (supra) it was held that the delhi Court has no jurisdiction to entertain petition under section 14 and 17 notwithstanding the fact that the arbitrator was appointed at Delhi and he made award at Delhi and that the union of India had its headquarters at delhi. " (v) The same view was taken by hon ble Mr. Justice Vikramjit Sen in cement Corporation of India Vs. S. Sultan and Anr. . 2004 DL T 919. Emphasis was also laid on the observations made in Vissamseth chandra Narasimham Vs. Mis. Ramdaval Rameswaralal and Ors. " (v) The same view was taken by hon ble Mr. Justice Vikramjit Sen in cement Corporation of India Vs. S. Sultan and Anr. . 2004 DL T 919. Emphasis was also laid on the observations made in Vissamseth chandra Narasimham Vs. Mis. Ramdaval Rameswaralal and Ors. AIR 1966 AP 134 (V 53 C 45), wherein it was held : "the intendment of this provision is explicit and is consistent with the definitions heretofore stated. That is to say, an award has to be filed in the court in which a suit would regard to the subject matter of reference. This is a statutory requirement and cannot possibly be. circumvented by any agreement between the parties. In other words, if there was an agreement that would be against the statute and cannot be given effect to. So the plea that the parties had an agreement stipulated for the award being filed before the High Court of Calcutta would not avail. The circumstance that in fact the agreement had been acted upon would not also avail, as there cannot be an estoppel against statute. "( 10 ) ON the strength of above decisions, learned counsel argued that it stands firmly settled under the Arbitration Act that jurisdictional competence of the court is to be decided by looking to the "subject matter of reference" and not on the basis of residence of the parties or the arbitrator or the appointing authority or the place of holding arbitration proceedings; and even if there is no agreement between the parties conferring exclusive jurisdiction on a particular court, the subject matter of reference (arbitration) is the deciding factor and the existence of forum selection clause in the agreement can only be an added reason. ( 11 ) DR. A. M. Singhvi Learned senior counsel for the petitioner in reply firstly argued that the above noted decisions are based on the interpretation of definition of the court given in Sec. 2 (c), Sec. 31 (1) dealing with jurisdiction and Sec. 4 1 providing procedure and power of the Court under the Arbitration act, 1940 (hereafter, the 1940 Act ); and that in the present case: the Arbitration and conciliation Act, 1996, is applicable and. the decisions rendered under the old Act would not strictly apply, as there are material changes under the new Act. Mr. Madan Bhatia. learned senior counsel, argued to the contrary. the decisions rendered under the old Act would not strictly apply, as there are material changes under the new Act. Mr. Madan Bhatia. learned senior counsel, argued to the contrary. ( 12 ) IN order to appreciate the rival contentions, it is necessary to refer to therelevant provisions of the 1996 Act as well as the 1940 Act. Section 34 (1) of the 1996 act lays down the procedure for entertaining objections against the arbitral award. It reads: 34. (1) Application for setting aside arbitral award - (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3 ). (2) An arbitral award may be set aside by the Court only if (a) and (b) - xxxx (3) and (4) xxxx" ( 13 ) CLAUSES (a) and (b) of sub-section (2) of section 34 enumerates the grounds on which award may be set aside. Section 2 (1 ) (e) of 1996 Act defines the "court" to mean the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject-matter of a suit. In the 1940 Act, sub-section (c) of Section 2 defined "court" to mean a civil court having jurisdiction to decide the questions forming the subject matter of the reference: if the same had been the subject matter of a suit. In sub-section (e) reference has been defined to mean reference to arbitration . Mere comparison of these definitions shows that definition of court given in 1996 Act is pari. materia with the definition of the court in 1940 Act. There is no material difference in the definitions of the court in these Acts. In view of the same, there is no merit in the contention that ratio of the decisions under the old Act dealing with territorial jurisdiction of the, courts to entertain objections against the award would not apply to the arbitration proceedings conducted under the 1996 Act. ( 14 ) LEARNED counsel for the petitioner next argued that the contract dated 27. 2. ( 14 ) LEARNED counsel for the petitioner next argued that the contract dated 27. 2. 1999 was signed in Delhi, the tenders were sent from the office of the petitioner at Delhi, the information of acceptance of tender was received at Delhi and, therefore, Delhi courts have the territorial jurisdiction. Learned counsel argued that basic principles of the code are applicable to all proceedings under the Act; that to determine the question as to which Court will have jurisdiction to entertain proceedings under the Arbitration Act; provisions contained in Section 20 of the code would apply. In support of this contention, reliance was placed on a Full Bench decision of this Court in Sri. Ram Rattan bhartee Vs. Food Corporation of India and anr. , 1978 ILR DL 308, wherein it was held as under:- " In view of our discussion on the various points noted above, Our answer to the reference is that apart from a court having jurisdiction to entertain the proceedings under the Act within whose jurisdiction the cause of action to sue arises, the Court within the local limits of whose jurisdiction the defendant or each of the defendants at the time of the commencement of the suit actually and voluntarily resides or carries on business, or personally works for gain, will also have jurisdiction to entertain proceedings Under the Act in terms of clauses (a) and (b) of Section 20 of the Code. " ( 15 ) LEARNED counsel argued that the Full bench decision was not referred to in any of the above noted decisions. It may be so, but there are other hurdles in accepting this argument. As noted above, learned counsel for the petitioner is seeking to invoke the territorial jurisdiction of this Court, on the premise that a part of cause of action had arisen in Delhi, as defined in Section 20 (c) of the Code. In the Full Bench decision, the applicability of sub-clause (c) of Section 20 was not considered, and the reference was answered, only in respect of clauses (a) and (b) of Section 20 of the Code, which deals with jurisdiction, where the defendant or defendants actually and voluntarily reside or carry on business or work for gain etc. In the Full Bench decision, the applicability of sub-clause (c) of Section 20 was not considered, and the reference was answered, only in respect of clauses (a) and (b) of Section 20 of the Code, which deals with jurisdiction, where the defendant or defendants actually and voluntarily reside or carry on business or work for gain etc. Further, while reaching the above conclusion, the Court relied upon Section 41 of the 1940 Act, which provided that provisions of the Code shall apply to all proceedings before the Court, and all appeals under the Act; this has been deleted under 1996 Act. However, Section 19 of the new Act, mandates that arbitral tribunal shall not be bound by the Code of civil Procedure or the Indian Evidence Act. This apart, law in this regard has been settled by the recent Supreme Court decision in national Aluminium Co. Ltd. Vs. M/s. Pres Steel and Fabrications Pvt. Ltd. and anr. , 2003 (10) Scale 1062, wherein it was held: "in regard to the forum before which the application for modification or setting aside the award is concerned, we find no difficulty in coming to the conclusion that in view of the provisions of Section 34 read with Section 2 (e) of 1996 Act that it IS not this Court which has the jurisdiction to entertain an application for modification of the award and it could only be the principal civil court of original jurisdiction as contemplated under Section 2 (e) of the Act, therefore, in our opinion, this application is npt maintainable before this Court. " (empnasis supplied) ( 16 ) THERE appears to be a typing error in the above quotation; 2 (e) should be read as 2 (l} (e}. In short, section 2 (l} (e> of the 1996 act defines court to mean principal civil court of original jurisdiction in a district, having jurisdiction to decide questions forming subject matter of arbitration if the same had been subject matter of the suit. The questions forming subject matter of arbitration being at ghaziabad, therefore, only the courts at ghaziabad would have the jurisdiction to entertain objections under Section 34 for setting aside the award. The questions forming subject matter of arbitration being at ghaziabad, therefore, only the courts at ghaziabad would have the jurisdiction to entertain objections under Section 34 for setting aside the award. ( 17 ) LEARNED counsel for the petitioner next made two alternative submissions: (I) that the second respondent has waived forum selection clause 12 of the Agreement, by invoking jurisdiction of the court at Delhi time and again; and (ii) that the statutory provision conferring territorial jurisdiction, does not go to the root of the competence of the court; it does not reflect inherent lack of jurisdiction and is only Procedural and hence can be waived. In support of this submission reliance was placed on the Supreme Court decisions in Bahrein petroleum Vs. P. J. Pappu (1996) 1 scr 461 , Sushil Kumar Vs. Gobind ram (1990) 1sc 193, Neycer India vs. GMB Ceramics (2002) 9 SCC and seth Hira Lal Patni Vs. Sri Kali Nath, (1961) 2 SCR 747. The emphasis was laid on the. following: ". . In the instant case, when the plaintiff obtained the leave of the Bombay high court on the original side, under Cl. 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of the Court, raised by him in his written statement. It is well settled that the objections as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. " ( 18 ) IN reply to the petitioner s alternative submission, Shri Madan Bhatia, learned senior counsel appearing for the second respondent first argued that there cannot be a waiver against the statute. Only where more than one court have the jurisdiction, parties to the contract can waive jurisdiction in one of them and not otherwise. The defect in the jurisdiction whether pecuniary or territorial, strikes at the very authority of the court and cannot be cured even by consent of the parties. Reliance was placed on the following supreme Court decisions: (i) In A. B. C. Laminatt Pvt. Ltd. and anr. Vs. The defect in the jurisdiction whether pecuniary or territorial, strikes at the very authority of the court and cannot be cured even by consent of the parties. Reliance was placed on the following supreme Court decisions: (i) In A. B. C. Laminatt Pvt. Ltd. and anr. Vs. A. P. Agencies, Salem, AIR 1989 SC 1239 , it was heid:- "thus it is now a-settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen there within, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Ss. 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the Statute, mercantile Law and practice permit such agreements. " (ii) In Superintendent of Taxes Vs. O. N. Trust, AIR 1975 SC 2065 , it was held (para 68) - "furthermore, the waiver, even where both sides have agreed to waive the operation of the statutory provision, cannot extend to a case in which the effect may be either oust the jurisdiction conferred by the statute or to confer jurisdiction which according to the statute is not there. And in Karan Singh Vs. Chaman Pas wan, AIR 1954 SC 340 , it was held - "a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of the parties. " ( 19 ) NOW coming to the judgments cited by learned counsel for the petitioner- In Sushil kumar Mehta Vs. Govind Ram Mehra, (1990) 1 SCC 193 , It was held that the doctrine of waiver does not apply where the court inherently lacks jurisdiction. The observations made in Seth Hira Lal Patni s case (supra) were distinguished. " ( 19 ) NOW coming to the judgments cited by learned counsel for the petitioner- In Sushil kumar Mehta Vs. Govind Ram Mehra, (1990) 1 SCC 193 , It was held that the doctrine of waiver does not apply where the court inherently lacks jurisdiction. The observations made in Seth Hira Lal Patni s case (supra) were distinguished. It was noted that there the suit was instituted on the original side of the Bombay High Court for recovery of certain arrears, out of transactions taking at Agra, after taking leave of the Court under clause 12 of the Letters Patent (the part of cause of action having arisen there The defendant took objection about The territorial jurisdiction of the Bombay High court in the written statement; but, before the same could be decided, the dispute was referred to arbitration by the consent of the parties. The award was in favour of the plaintiff and it was made rule of the Court. In the executing court, defendant again raised objection about the territorial jurisdiction of the Bombay High court. In this context, it was held that defendant is "estopped" from challenging the jurisdiction of Bombay High Court and authority of the arbitrator to render the award. And in The Bahrein Petroleum Co. Ltd. v. P. J. Pappu and Anr. , it was held observed "as a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But s. 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognizable by the Courts under the Code may be waived under this section. The waiver under S. 21 is limited to objections in the appellate and revisional Courts. " The ratio of the decisions cited by the petitioner is not applicable in this case, as the objection is being taken at the earliest stage. ( 20 ) IN view of the above, it is held that the statutory provisions contained in Section 34 read with section 2 (l) (e) of 1996 Act, laying down jurisdiction to entertain the application for modification of the award, could not be waived. ( 20 ) IN view of the above, it is held that the statutory provisions contained in Section 34 read with section 2 (l) (e) of 1996 Act, laying down jurisdiction to entertain the application for modification of the award, could not be waived. ( 21 ) ON facts, it is not necessary to examine the petitioner s plea of waiver of the forum selection clause 12 of the agreement by the second respondent after recording the above findings. However, as the learned counsel for the petitioner had strongly canvassed this submission therefore, the same is being briefly considered. Learned counsel has relied upon three collateral litigations - (a) the suit for injunction filed by second respondent, against the petitioner, restraining them from taking forcible possession of the building, pleading that the agreement was executed in Delhi, the defendants have their office at Delhi, and that the threats were received at Delhi; (b) the suit for injunction filed by petitioner against the third respondent restraining him from appointing the flew arbitrator fn terms of the letter dated 29. 8. 2003 and second respondent s application under Order 7 Rule 11 of the Code for rejection of the suit and (c) application of the second respondent under section S of the Act before this Court for stay of petitioner s injunction suit pending disposal of the objections. Placing reliance on the Supreme Court decision in Exphar Sa and anr. Vs. Eupharma Laboratories Ltd. and anr. (2004) 3 SCC 688 , learned counsel argued that when an objection of jurisdiction is raised by way of demurer and not at the trial, the objection must be considered on the basis that the facts as pleaded by the initiator of the impugned proceedings are true and not based on the defence of the respondent. It was thus argued that the stand taken by the petitioner about the territorial jurisdiction of the courts at Delhi in its claim filed before the arbitrator (which has been noted above) should be ignored. ( 22 ) LAW governing the doctrine of waiver is settled by the Supreme Court decision in waman Shriniwas Vs. R. B. and Co. , AIR 1959 SC 689 , wherein it was held- "waiver is an abandonment of a right which normally, everybody is at liberty to waive. ( 22 ) LAW governing the doctrine of waiver is settled by the Supreme Court decision in waman Shriniwas Vs. R. B. and Co. , AIR 1959 SC 689 , wherein it was held- "waiver is an abandonment of a right which normally, everybody is at liberty to waive. A waiver is nothing unless it amounts to a release It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied (Chitty on Contract 21st Ed. p. 381 stackhouse Vs. Barnston, (1805) 10 veg 453,456: 32 ER 921 ). But an agreement to waive an illegality is void on grounds of public policy and would be unenforceable. " ( 23 ) KEEPING aside the last condition about illegality, let us apply the other principles to the facts at hand. The first suit for injunction by the second respondent was filed on the cause of action that threats were extended by the petitioner in Delhi to take forcible possession of the building in question. It was filed before the appointment of the arbitrator Petitioner s own case, as set up in the statement of claim is that the suit was withdrawn because the courts at Delhi had no Jurisdiction. The jurisdiction was invoked because threats were received in Delhi. It was withdrawn within three. weeks of its filing. The second suit for injunction by the petitioner was against the appointing authority not to appoint the new arbitrator, in terms of the letter dated 29. 8. 2003. The second respondent moved an application for rejection of the suit stating that the same was not maintainable and the last is an application under section 9 of the Act for stay of the petitioners suit pending disposal of his objection petition before this court. In none of these proceedings, the issues which formed subject matter of arbitration orreference" were in question. In view of the same, petitioner s intention to abandon and not to insist upon the forum selection clause of the agreement regarding subject matter of arbitration can be deduced or implied, which is an essential requirement of law. ( 24 ) FOR the foregoing reasons, it is held that this Court has no territorial jurisdiction to entertain objections filed by the petitioner. The Registry is accordingly directed to return the same to the petitioner, for seeking relief in the appropriate court. ( 24 ) FOR the foregoing reasons, it is held that this Court has no territorial jurisdiction to entertain objections filed by the petitioner. The Registry is accordingly directed to return the same to the petitioner, for seeking relief in the appropriate court. ( 25 ) THIS petition and all pending applications stand disposed of. --- *** --- .