JUDGMENT Hon’ble Amitava Lala, J.—This appeal has been preferred by the appellant upon being aggrieved by and/or dissatisfied with the judgment and order of the District Judge in-charge, Jhansi dated 13th February, 2008 rejecting the application for ad interim injunction under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter in short called as the ‘Act’) passed in Misc. Petition No. 1 of 2008 (M/s. Magnum Builders & Developers and Chawala Constructions v. Ircon International Limited and another). However, Ircon International Ltd. and another, the respondents herein, have filed cross-objection. Therefore, both have been heard analogously. 2. The order impugned passed by the Court below is distinctly divided into three parts i.e. (a) jurisdiction; (b) maintainability; and (c) merit. Since the question of jurisdiction is involved, we have called upon the learned Counsel appearing for the parties to make their respective submissions on that score, but Mr. S.M.A. Kazmi, learned Senior Counsel appearing for the appellant, wanted to make a composite argument in respect of all the points and left the matter to the Court for due consideration. However, according to us, jurisdictional point is to be considered at first. Therefore, we make it clear that if we come to the ultimate conclusion that the Court has no jurisdiction, the Court will obviously conclude the finding therein instead of making unnecessary discussion on merit, otherwise the Court will deal with other points. 3. The dispute is in respect of territorial jurisdiction. On an earlier occasion when an appeal was preferred before this Court, the Court held that irrespective of the order for the time being passed on 17th January, 2008 the question of jurisdiction and maintainability will be considered by the Court below at first on an issue that Delhi High Court has considered the matter on merit and passed an order, which was concealed by the contesting respondent therein. However, following such direction of this High Court, the Court below has considered the point of jurisdiction and drawn an inference that the Court below has jurisdiction to entertain, try and determine the application on the following grounds : “1. There is no dispute that the work place for the construction of 294 doubling units in Marid Accommodation Project lies in Jhansi. 2. There is no dispute with regard to the fact that subordinate office of the opposite parties is situated in Jhansi. 3. There is no dispute that the work place for the construction of 294 doubling units in Marid Accommodation Project lies in Jhansi. 2. There is no dispute with regard to the fact that subordinate office of the opposite parties is situated in Jhansi. 3. For the work of 294 doubling units tender notice was published in Jhansi. 4. The agreement/contract dated 16.8.2005 between Ircon International Ltd. Palika Bhawan Sector-XIII, R.K. Puram, New Delhi and the petition was executed by Addl. General Manager, Married Accommodation Project, DH/1/13, Virangana Nagar, Jhansi. The agreement indicates that Addl. General Manager, Jhansi was acting for the opposite parties. 5. The agreement also indicates that both parties and witnesses had signed the agreement in Jhansi. 6. The tender acceptance letter dated 26.4.2005, issued by the opposite parties, indicates that the petitioner was requested to furnish performance security for an amount of Rs. 86,01,087/- to Addl. General Manager/Civil/PH/Jhansi. 7. The termination notice of the contract was given in Jhansi and was received by the petitioner in Jhansi. 8. After termination notice the opposite parties had issued revival letter dated 20.2.2007 at Jhansi. 9. The petitioner had carried out certain works on trial basis in view of revival letter in Jhansi. 10. Fresh legal tenders have also been issued from subordinate office of opposite parties at Civil Lines, Jhansi.” 4. Factually, M/s. Ircon International Limited, a Government of India undertaking, the respondent herein, has its Corporate Office at Palika Bhavan, Sector-XIII, R.K. Puram, New Delhi-110066. It has a Project Office at DH-1/13 Veerangana Nagar, Jhansi-284128. On 28th February, 2005 notice inviting tender was issued by the respondent company from its office at New Delhi inviting bonafide firms/companies/joint ventures having requisite experience and financial capacity for execution of the work at Jhansi, Uttar Pradesh. On 26th April, 2005 the respondents accepted the tender of the appellant by treating the letter as contract subject to completion of formalities of agreement for execution of work within the specified date at Jhansi. Special Conditions of Contract, General Conditions of Contract, Particular Technical Specifications, General Technical Specifications, Relevant Codes and Standards, Drawings and Bill of Quantities have been made part and parcel of the conditions. Special Conditions of Contract, General Conditions of Contract, Particular Technical Specifications, General Technical Specifications, Relevant Codes and Standards, Drawings and Bill of Quantities have been made part and parcel of the conditions. Under the General Conditions of Contract, there is an arbitration clause, which is as follows : “72.2 Conciliation/Arbitration 72.2.1 It is a term of this contract that Conciliation/Arbitration of disputes shall not be commenced unless an attempt has first been made by the parties to settle such disputes through mutual settlement. 72.2.2 If the Contractor is not satisfied with the settlement by the Employer on any matter in question, disputes or differences, the Contractor may refer to the Managing Director of the Employer in writing to settle such disputes or differences through Conciliation or Arbitration provided that the demand for Conciliation or Arbitration shall specify the matters, which are in question or subject of the disputes or differences as also the amount of claim, itemwise. Only such dispute(s) or difference(s) in respect of which the demand has been made, together with counter claims of the Employer shall be referred to Conciliator or Arbitrator as the case may be and other matters shall not be included in the reference. 72.2.3 Managing Director of the Employer may himself act as Sole Conciliator/Sole Arbitrator or may at his option appoint another person as Sole Conciliator or Sole Arbitrator, as the case may be. In case, Managing Director of the Employer decides to appoint a Sole Conciliator/Sole Arbitrator, then a panel of at least three names will be sent to the Contractor. Such persons may be working/retired employees of the Employer who had not been connected with the work. The Contractor shall suggest minimum two names out of this panel for appointment of Sole Conciliator/Sole Arbitrator. Managing Director of the Employer will appoint Sole Conciliator/Sole Arbitrator out of the names agreed by the Contractor. 72.2.4 In case, the Contractor opts for settlement of disputes through Conciliation at first stage and if the efforts to resolve all or any of the disputes through Conciliation fails, the Contractor may refer to the Managing Director of the Employer for settlement of such disputes or differences through Arbitration. The appointment of Sole Arbitrator shall be done by the Managing Director of the Employer as per the procedure described above. The appointment of Sole Arbitrator shall be done by the Managing Director of the Employer as per the procedure described above. No disputes or differences shall be referred to Arbitration after expiry of 60 days from the date of notification of failure of Conciliation. 72.2.5 The Conciliation and/or Arbitration proceedings shall be governed by the provisions of the Indian Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the conciliation and arbitration proceedings under this clause. 72.2.6 The language of proceedings, documents or communications shall be in English and the award shall be made in English in writing. 72.2.7 The conciliation/arbitration proceedings shall be held at a place decided by Conciliator/Arbitrator. 72.2.8 The fees and other charges of the Conciliator/Arbitrator shall be as per the scales fixed by the Employer and shall be shared equally between the Employer and the Contractor.” Under the said General Conditions of Contract there is a forum selection clause as under Clause 72.7, which is as follows : “72.7 JURISDICTION OF COURTS : Jurisdiction of Courts for dispute resolution shall be New Delhi.” Even under the Special Conditions of Contract there is a clause for settlement of disputes, which is as follows : “31.0 SETTLEMENT OF DISPUTES : (This clause supercedes the clause ’72.0 of General Conditions of Contract). All disputes or differences of any kind whatsoever that may arise between the Employer/Engineer and the Contractor in connection with or arising out of the contract or subject matter thereof or the execution of works, whether during the progress of works or after their completion, whether before or after determination of contract shall be referred by the Contractor to the Employer in writing for resolving the same through mutual discussions, negotiations, deliberation etc. associating representatives from both the sides and concerted efforts shall be made for reaching amicable settlement of disputes or differences.” 5. Even under the Special Conditions of Contract also, there is a clause being Clause 31.2, which speaks about the forum selection clause, as follows : “31.2 JURISDICTION OF COURTS : Jurisdiction of Courts for dispute resolution shall be only at New Delhi.” 6. Mr. Even under the Special Conditions of Contract also, there is a clause being Clause 31.2, which speaks about the forum selection clause, as follows : “31.2 JURISDICTION OF COURTS : Jurisdiction of Courts for dispute resolution shall be only at New Delhi.” 6. Mr. Kazmi has contended before this Court that neither of the parts of contract, either execution or performance or payability of any sum, arose within the jurisdiction of New Delhi, where the Head Office of the respondents is situated. The Court below considered this issue relying upon a Supreme Court judgment reported in AIR 1992 SC 1514 , M/s. Patel Roadways Limited, Bombay v. M/s. Prasad Trading Company, which he also relied upon herein. Such decision arose in an appeal arising out of civil suit, whereunder the scope and ambit of Section 20 of the Code of Civil Procedure, 1908 (hereinafter in short called as the ‘C.P.C.’) was considered. Section 20 with explanation of the C.P.C. is as follows : “20. Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction— (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation.—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.” 7. Relevant part of M/s. Patel Roadways Limited (supra), as in paragraph-15 therein, which has been referred herein, is quoted hereunder : “15. Relevant part of M/s. Patel Roadways Limited (supra), as in paragraph-15 therein, which has been referred herein, is quoted hereunder : “15. In this view of the matter since in the instant two cases clause (c) is not attracted to confer jurisdiction on Courts at Bombay and the appellant has admittedly its subordinate offices at the respective places where the goods in these two cases were delivered to it for purposes of transport the Courts at Bombay had no jurisdiction at all to entertain the suits filed by the respondents and the parties could not confer jurisdiction on the Courts at Bombay by an agreement. Accordingly no exception can be taken to the findings in this behalf recorded by the trial Court and the High Court in these two cases.” 8. In such judgment the Supreme Court mainly based on the Explanation to Section 20 of the C.P.C. to come to a finding on the basis of the facts and circumstances of that case. According to us, the explanation as aforesaid speaks that the corporation may be deemed to carry on business at principal office or in case of cause of action at a subordinate office, at such place. In this case, so far as the first part is concerned, admittedly the principal office of the respondents is situated at New Delhi. Therefore, the question arises about the cause of action as to whether the same partially or fully arose within the jurisdiction of New Delhi at all or not. Admittedly, the tender was invited and the contract was executed at the head office at New Delhi subject to formal execution of agreement to be made at Jhansi, Uttar Pradesh. Therefore, it cannot be said that the Court/s at New Delhi is/are complete ouster to the question of jurisdiction regarding the contract. In case of dispute regarding territorial jurisdiction, nature of the dispute is required to be understood to come to a definite conclusion. For example, a dispute with regard to immoveable property has to be entertained by the Court having territorial jurisdiction over and in respect of such immoveable properties following the principle of “suit for land”. Such jurisdiction is statutorily fixed leaving aside few exceptions, which are not required to be discussed hereunder. For example, a dispute with regard to immoveable property has to be entertained by the Court having territorial jurisdiction over and in respect of such immoveable properties following the principle of “suit for land”. Such jurisdiction is statutorily fixed leaving aside few exceptions, which are not required to be discussed hereunder. But in case of territorial jurisdiction regarding contractual obligations three elements are required to be seen i.e. : (a) where the contract was executed; (b) where the performance was made; and (c) where the money is due and payable. 9. A suit or proceeding can be initiated at any of the places. In the instant case, admitted position is that performance was made at Jhansi, Uttar Pradesh. Therefore, there is no dispute with regard to territorial jurisdiction about performance. So far as the payment part is concerned, the stand of the respondent authorities is vacillating. Learned Counsel appearing for the respondent authorities is not sure about the payment, whether the same is made or to be made at Delhi or at Jhansi. Under such circumstances, it is duty of the Court to find it out whether the dispute is primarily arising out of the execution of the contract or performance of the contract or payment due and payable arising out of the contract. In the instant case, the dispute is with regard to repudiation of the contract due to non-completion of work and/or making supplementary agreement to complete the work as per the approval of the corporate office of the respondent authorities at Delhi. Therefore, we have to see as to whether the jurisdiction of Delhi has a nexus and connection with regard to such part. Acceptance of offer was made at Delhi by treating such acceptance as contract. Subsequent supplementary agreement is found to be existable only with the approval of the corporate office of the respondent authorities at Delhi. Therefore, the jurisdiction of Delhi cannot be said to be a complete ouster. At the time of entertaining a proceeding the Court will look into the dispute to find out the territorial jurisdiction of the Court as per the contract. In case two Courts are available under the contract and choice of forum is agreed upon by the parties as per the contract to go to any particular Court eliminating other, such condition cannot be said to be illegal at all. In case two Courts are available under the contract and choice of forum is agreed upon by the parties as per the contract to go to any particular Court eliminating other, such condition cannot be said to be illegal at all. Statutory bar is lying only with third Court. Formation of forum, when there is no forum available as per the statute, is illegal. But after having two forums as per the statute if the parties by agreement choose one out of such forums, there is no bar by virtue of forum selection clause available in the contract. For example, if an agreement was executed at Kolkata, works are to be performed at Delhi and the payments will be made either at Kolkata or Delhi, then the parties by agreement can choose either of the forums at Kolkata or at Delhi for adjudication for various reasons inclusive of convenience, availability of material records and multiplicity of proceedings. But if under such contract between two parties at Kolkata and at Delhi, third place for example Allahabad is prohibited as per the statute. But there is no prohibition under the statute if there is one choice of forum out of the aforesaid two places as per the contract. In the present case, only question is available as to whether the head office or corporate office at Delhi has a nexus or connection with the jurisdiction or is a complete ouster. This has to be seen from the nature of the dispute arising out of such contract. So far as the contractual part is concerned, as soon as the offer was accepted at Delhi by treating the same as contract, the jurisdiction of Delhi cannot be given a go-bye only on the ground that formal documentation by way of agreement was made at Jhansi, Uttar Pradesh. Therefore, the judgment of M/s. Patel Roadways Limited (supra) is factually distinguishable from this case. In that case, the Courts of Bombay had no jurisdiction at all either wholly or in part to attract Section 20 (c) of C.P.C. In such circumstances, the Supreme Court drawn an inference that cause of action at the head office was complete ouster to the available jurisdiction for considering the cause. 10. The appellant contended that by a letter of the respondents dated 15th February, 2007 a fresh contract was executed. 10. The appellant contended that by a letter of the respondents dated 15th February, 2007 a fresh contract was executed. The contents of the letter are as follows : “Representative of M/s. Magnum Builders & Developers has made an appeal to MD/IRCON vide their letter dt. 25.1.2007 followed by their letter dt. 31.1.2007 (copies enclosed), wherein they requested for revival of their terminated contracts at Jhansi and Bhopal. They have also requested that to prove their capability and credentials they are ready to work on the same rates of their agreement and have stated that they may be tested for a period of 3 fortnights initially and their contracts be revived if they give successful performance during these 3 fortnights. Appeal of M/s. Magnum Builders has been examined in Corporate Office and MD has accorded in principle approval for the said arrangement as a special case. MD’s orders (copy enclosed) in this regard are as under : “(i) In principle approval is accorded; (ii) There should be a close procedure for monitoring to see that the objective is achieved. Preferably an agreed one.” You are requested to take further necessary action in the matter accordingly and direct the contractor to start the work on trial basis for a period of 3 fortnights. Before issuing the order to the contractor to take-up the work for 3 fortnights on trial basis, following additional measures may also be taken, which has been advised by Consultant (Arbn.). (i) Contractor be asked to withdraw all the Court cases unconditionally; (ii) He should withdraw all conditions put forward by him earlier vide his earlier letters dt. 1.12.2006, 10.1.2007 and 11.1.2007; (iii) A supplementary agreement incorporating all the conditions in the approval note of Corporate Office and vide (i) and (ii) above may be drawn with the contractor. Any other precautionary measure to safeguard the interest of IRCON may also be taken before issue of order to the agency.” 11. From the plain reading of the aforesaid letter it appears that no fresh agreement was executed but supplementary agreement, if any, is executed. When Mr. Vinay Khare, learned Counsel appearing for the respondents, opposed formal execution of agreement, Mr. Kazmi, learned Senior Counsel appearing for the appellant, contended that the appellant has already withdrawn several proceedings and acted upon on the basis of such terms as available in the letter treating the same as fresh agreement. 12. When Mr. Vinay Khare, learned Counsel appearing for the respondents, opposed formal execution of agreement, Mr. Kazmi, learned Senior Counsel appearing for the appellant, contended that the appellant has already withdrawn several proceedings and acted upon on the basis of such terms as available in the letter treating the same as fresh agreement. 12. Firstly, the letter, from its plain reading, does not seem to be an expressed formal agreement. Implied, if any, is supplementary in nature and subject to approval of the corporate office. Therefore, under any stretch of imagination it cannot be held that the corporate office at Delhi has no jurisdiction over and in respect of the cause of action. 13. Now let us consider the cause from a different angle. The respondents herein themselves have withdrawn a proceeding from the Court of Delhi but the appellant proceeded with his case in the Court of Delhi and obtained an order under Section 9 of the Act on 14th February, 2007, as follows : “Petitioner was awarded work by the respondent. It appears that the respondent has terminated the contract and it has taken steps to award the balance work to the third party at risk and cost of the petitioner. In this petition, filed under Section 9 of the Arbitration and Conciliation Act, 1996, the petitioner is seeking relief to the effect that the respondent be restrained from awarding the balance work at the risk and cost of the petitioner. This prayer cannot be allowed as interim measure in Section 9 of the Arbitration and Conciliation Act proceedings. If it is the case of the petitioner that the contract is wrongly rescinded by the respondent or that respondent cannot claim the amount from the petitioner after getting the balance work from third party, it would be open to the petitioner to raise this disputes in arbitration proceedings. Once the work is rescinded, the respondent cannot be restrained from getting it executed from third party. The petitions are therefore dismissed.” 14. Therefore, the appellants have submitted to the jurisdiction of the Delhi High Court with the presumption that such Court has jurisdiction to entertain, try and determine the proceeding. 15. Section 42 of the Act speaks about the jurisdiction, which is as follows : “42. The petitions are therefore dismissed.” 14. Therefore, the appellants have submitted to the jurisdiction of the Delhi High Court with the presumption that such Court has jurisdiction to entertain, try and determine the proceeding. 15. Section 42 of the Act speaks about the jurisdiction, which is as follows : “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. Therefore, when an application was adjudicated by a Court of competent jurisdiction of Delhi, all subsequent applications in respect of an arbitration agreement have to be made in that Court alone. Hence, the appellant has no other alternative remedy but to go before the Court of competent jurisdiction for the purpose of adjudication of the case. 17. Incidentally, Mr. Vinay Khare, learned Counsel appearing for the respondents, contended before this Court that special conditions of contract will prevail over general conditions of contract as per the above clause itself. Special conditions of contract do not provide any arbitration clause, therefore, proceeding under the arbitration cannot be held to be maintainable. 18. We are of the view that both the conditions have forum selection clause, therefore, the forum selection cannot be avoided irrespective of having arbitration clause or not, that can only be adjudicated by the Court which has a jurisdiction to entertain, try and determine the case. 19. Therefore, we do not make any comment with regard to maintainability or merit of the cause in this case. The order impugned to the extent of jurisdiction cannot be held to be sustainable and is set aside only to that extent. Thus, the appeal is dismissed and cross-objection is allowed only on the ground of jurisdiction. 20. No order is passed as to costs. 21. The plaint and/or application will be returned immediately to the respective party to file it before the appropriate Court. 22. We make it clear that since we have not interfered with other points inclusive of merit, parties are at liberty to redress their grievance after invoking jurisdiction of the appropriate Court. Hon’ble Shishir Kumar, J.—I agree. 21. The plaint and/or application will be returned immediately to the respective party to file it before the appropriate Court. 22. We make it clear that since we have not interfered with other points inclusive of merit, parties are at liberty to redress their grievance after invoking jurisdiction of the appropriate Court. Hon’ble Shishir Kumar, J.—I agree. ————