Judgment :- 1. This Original Application is filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, “the Act”) praying for an injunction against the Respondents from recovering any liquidated damages from the amounts due to the Applicant in respect of Contract C.S.No.160 of 2007 read with Rider Agreement dated 24.2.2009 pending disposal of the arbitral proceedings. 2.1. The Applicant is the manufacturer of Mono Block Sleepers and was awarded by the Respondents/Railways, based on a tender notification issued by it, the contract for manufacture and supply of Mono Block Prestressed Concrete Sleepers. Accordingly, an Agreement was entered with the Respondents on 13.11.2008 for supply of 45,000 Prestressed Mono Block Concrete Sleepers at the agreed rate of Rs.1,132/- on condition that the supply should be completed within four months from the date of issuance on the Acceptance Letter. 2.2. By a subsequent Rider Agreement dated 24.2.2009, which was entered on the same conditions, the Respondents have increased the quantity of Sleepers to be supplied by 1,10,000, bringing the total number of Sleepers to be supplied to 1,55,000 and the Applicant was required to deliver the Sleepers within 31.10.2009. 2.3. It is stated that the Applicant has started manufacturing the additional quantity, however due to the strike of the workers from 22.4.2009, which is stated to have continued for three months, the manufacturing process has stopped which was intimated to the Respondents on 21.4.2009. By Letter dated 26.8.2009, the Applicant has explained the said circumstances and requested that due to force majeure the remaining quantity of 87,213 Sleepers may be offloaded without any financial implications and also suggested alternatively that they may be permitted to manufacture through their associate concern situated at Bommidi. However, the Respondents, as per the Letter dated 16.9.2009, refused to accept the above said proposal made by the Applicant and advised that the Applicant should start production within 14 days, failing which action will be taken as per the terms of the contract. 2.4. The Applicant is stated to have made subsequent representations on 5.10.2009 and 9.10.2009 to the Respondents expressing that the situation is beyond their control and requested them to allow the remaining quantity to be manufactured by their associate concern. 2.5. In the meantime, the Respondents have floated a new Tender on 10.11.2009 and finalised the same for a rate lower than the current contract. 2.5. In the meantime, the Respondents have floated a new Tender on 10.11.2009 and finalised the same for a rate lower than the current contract. Since the terms of the Agreement contemplate that in cases where by virtue of new Tender the price offered is lesser, the quantity in the current Tender shall be reduced and vice versa if the price is higher, the Applicant has sent Letter on 20.11.2009 requesting that undelivered quantity in the subject contract will be short closed and therefore, requested the Respondents not to take further action pursuant to the Letter dated 16.9.2009. 2.6. Subsequently, the Applicant has received a Letter dated 18.11.2009 from the Respondents on 30.11.2009, by which the Second Respondent has initiated action as per the terms of the contract for recovery of damages and the Second Respondent has taken action to terminate the contract and recover the liquidated damages. 2.7. Since a dispute has arisen, the Applicant addressed a Letter to the second Respondent on 30.11.2009 invoking the Arbitration clause of the contract, seeking the Second Respondent to appoint an Arbitrator. In spite of it, the Second Respondent is taking steps to collect the liquidated damages from the Applicant. In these circumstances, the present Application is filed on the grounds: (i) that the non-supply was due to force majeure; (ii) that as per the clause in the Agreement, the Respondents should have reduced the quantity up to 30%; (iii) that the notice dated 16.9.2009 sent by the Respondents directing the Applicant to commence production within 14 days is unreasonable and therefore, the date for supply should have been extended beyond 31.10.2009; and (iv) that the Respondents have failed to consider that even as per the terms of the contract if by new Tender the price has been reduced, consequently the quantity also has to be reduced in making such a claim and the Respondents failed to consider the representation of the Applicant in its proper perspective. 3. This Court, by an order dated 18.12.2009, has granted an order of Interim Injunction, which stood continued. 4.1. In the Counter Affidavit filed by the Respondents, the Respondents have taken a preliminary objection about the maintainability of the Application under Section 9 of the Act before this Court for want of jurisdiction. 3. This Court, by an order dated 18.12.2009, has granted an order of Interim Injunction, which stood continued. 4.1. In the Counter Affidavit filed by the Respondents, the Respondents have taken a preliminary objection about the maintainability of the Application under Section 9 of the Act before this Court for want of jurisdiction. By referring to Clause 24 of the Agreement, it is the case of the Respondents that the Tender document and acceptance were issued by the First Respondent at New Delhi and therefore, the Courts at New Delhi alone have jurisdiction to entertain such dispute and the Applicant being a manufacturer of Sleepers for the past 22 years supplying to the Respondents is aware that the Agreement has been issued from New Delhi. 4.2. It is also stated that as per the terms of the agreement, the supply has to be made and if the contractor fails to deliver within the period except in case of force majeure, the Respondents have a right to cancel the contract and according to the Respondents, the allegation of strike of the workers of the Applicant-Company cannot be treated as force majeure. By referring to Clause 17 of the Agreement, it is stated by the Respondents that the strike by the labour does not come under any one of the categories of force majeure. 4.3. It is stated that the Applicant has not taken proper steps and therefore, notice was given by the Respondents directing the Applicant to start production. It is stated that by the Rider Agreement dated 24.2.2009, the quantity of Sleepers to be supplied was increased on the same terms and conditions which were accepted by the Applicant and in fact, the Applicant has commenced production as per the said contract. It is further stated that due to the conduct of the Applicant there has been a shortfall in supply of Sleepers and the Applicant has stopped the production abruptly from 22.4.2009, viz., six months before expiry of the currency period and in spite of their repeated advice to make good the shortfall, there was no improvement in production. 4.4. It is further stated that due to the conduct of the Applicant there has been a shortfall in supply of Sleepers and the Applicant has stopped the production abruptly from 22.4.2009, viz., six months before expiry of the currency period and in spite of their repeated advice to make good the shortfall, there was no improvement in production. 4.4. It is stated that the Railway Board has issued direction in the Letter dated 10.11.2009 to terminate the contract imposing liquidated damages at 5% for the unsupplied sleepers as per the terms of the contract, based on which the termination has been effected and the Applicant’s request for appointment of Arbitrator to adjudicate the issue has been referred to the Railway Board and the same is in process. It is stated that since the contract was already terminated, the conditions in the board letter dated 19.11.2009 are not applicable. 5.1. Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the Applicant would submit that the non-supply as per the terms of the contract was not international and it was due to the unforeseen circumstance of strike by labour which took some time. 5.2. It is his submission that after termination of the contract when a fresh tender was floated, the Applicant was awarded the fresh contract for a lesser price and therefore, as per the terms of earlier contract entered with the Applicant, the Applicant is entitled to claim short closure and that has also not been considered. 5.3. While referring to the objection raised by the Respondents regarding jurisdiction, it is the case of the learned Senior Counsel that a reference to Clause 24 relating to jurisdiction of Courts should be construed to mean that even though the tender was called for by the First Respondent from New Delhi, the same was issued to the Applicant at Chennai and in fact, all subsequent correspondences were with the officials of the Second Respondent at Chennai and it is his submission that in these years all litigations have been made only within the jurisdiction of Chennai, since the Applicant Supplies Sleepers only to the Railways. He brought to the notice of this Court an instance where the Respondents have filed an Application under Section 34 of the Act before this Court challenging an award and contends that it is not open to the Respondents to now raise the issue of jurisdiction. 6. He brought to the notice of this Court an instance where the Respondents have filed an Application under Section 34 of the Act before this Court challenging an award and contends that it is not open to the Respondents to now raise the issue of jurisdiction. 6. On the other hand, Mr. V.G. Suresh Kumar, learned Counsel appearing for the Respondents would submit that the tender papers and all other documents relating to the issuance of tender were issued only by the Railway Board at New Delhi and the Agreements were signed at New Delhi and all actions have been taken only as per the decision of the Railway Board and therefore, by applying Clause 24 of the agreement, it is only the Courts at New Delhi which can have jurisdiction. He would submit that the said clause by which the jurisdiction of other Courts has been ousted by consent cannot be said to be invalid. He would rely upon the judgment of the Supreme Court in Rajasthan State Electricity Board v. Universal Petrol Chemicals Limited, 2009 (3) SCC 107 . 7. I have heard the learned Senior Counsel for the Applicant and the learned Counsel for the Respondents and given my anxious thought to the issue involved in this case. 8. Inasmuch as an issue of maintainability of the Application before this Court has been raised on the basis of the jurisdiction, it is relevant to consider the said issue first. 9. In this regard, two clauses in the agreement which are relied upon by the learned Counsel for the Respondents are important, which are as follows: “Clause 23.2: Irrespective of the Place of delivery, the place of performance or the place of payment under the order, the order shall be deemed to have been made at the place from where the acceptance of tender has been issued. Clause 24: jurisdiction of Courts: The Courts of the place from where the Tender documents and acceptance of Tender has been issued shall alone have jurisdiction to decide any disputes arising out of or in respect of the order.” 10. It is seen that the tender based on which the contract has been entered with the Applicant was issued by the First Respondent on 12.9.2009 from New Delhi. It is seen that the tender based on which the contract has been entered with the Applicant was issued by the First Respondent on 12.9.2009 from New Delhi. Pursuant to the said tender in which the Applicant has participated, the agreement was entered on 13.11.2008 between the Principal Chief Engineer of the Southern Railway Administration, representing the President of India, at Chennai and the Managing Partner of the Applicant-Company. A reference to the agreement shows that the same was entered at Chennai. There are also various correspondences to show that based on such agreement which has been entered between the Applicant and the First Respondent at Chennai, several Letters have been exchanged through the Senior Assistant Executive Engineer (CS), Southern Railway, Thiruvalam. 11. Based on the letter of the Applicant dated 24.12.2008, it is true that the quantity of Sleepers to be supplied was enhanced from 45,000 to 1,55,000 and an amendment was issued to the Letter of acceptance by the Railway Board at New Delhi on the same terms and conditions of the original agreement entered on 13.11.2008, as state above. Even a reference to the Rider Agreement entered between the Respondents and the Applicant pursuant to the said Railway Board’s Letter dated 27.1.2009 has been entered between the Principal Chief Engineer of the Southern Railway Administration, on behalf of the President of India, at Chennai and the Managing Partner of the Applicant-Company and in fact, as in the original Agreement dated 13.11.2008, in the Rider Agreement dated 24.2.2009 also the Principal Chief Engineer, Southern Railway, Chennai has only signed on behalf of the Respondents/Railway and there is no difficulty to conclude that both the Agreements were entered only at Chennai, even though the Tender was floated by the First Respondent from New Delhi. As stated above, even during the course of execution of the contract, the Respondents have communicated with the Applicant only from Chennai. 12. However, the terms of the contract, especially Clause 24, to which the Applicant is a consenting party, confers jurisdiction only to the Courts situated where the tender documents and acceptance of tender have been issued, thereby impliedly ousting the jurisdiction of other Courts. 12. However, the terms of the contract, especially Clause 24, to which the Applicant is a consenting party, confers jurisdiction only to the Courts situated where the tender documents and acceptance of tender have been issued, thereby impliedly ousting the jurisdiction of other Courts. While it is true that the agreements, as stated above, have been entered in Chennai, within the jurisdiction of this Court, it is unassailable that the tender documents as well as the acceptance of tender have not been made at Chennai, but they were made by the First Respondent at New Delhi, pursuant to which the agreement came to be entered at Chennai. On the specific ouster of jurisdiction of other Courts to which the Applicant has specially accepted as per the terms of the contract, it is not possible to accept the contention of the learned Senior Counsel for the Applicant that the term “issued” stated in Clause 24 should be deemed to be the place where the Agreement has been issued. 13. It is well settled that when the parties by consent have agreed to oust the jurisdiction of the Court by conferring jurisdiction only to one Court wherein the cause of action has arisen, in the present case it is the place of issuance and acceptance of tender, it is only that Court which has jurisdiction. That was also the dictum laid down by the Supreme Court in its latest judgment in Rajasthan State Electricity Board v Universal Petrol Chemicals Limited, 2009 (3) SCC 107 . By referring to Section 20 of the Code of Civil Procedure, 1908 in the context of the Arbitration and Conciliation Act, 1996 regarding jurisdiction, the Supreme Court has held as follows: “34. An analytical look at the provisions of sub-sections (3) and (4) will make in explicitly clear that any Application in any reference, meaning thereby even an Application under Section 20 of the Act could or should be filed in a Court competent to entertain such proceeding and having jurisdiction to decide the subject of the reference. Such jurisdiction would or could be restricted by the agreements entered into by and between the parties. 35. Such jurisdiction would or could be restricted by the agreements entered into by and between the parties. 35. The parties have clearly stipulated and agreed that no other Court, but only the Court at Jaipur will have jurisdiction to try and decide the proceedings arising out of the said agreements, and therefore, it is the Civil Court at Jaipur which would alone have jurisdiction to try and decide such issue and that is the Court which is competent to entertain such proceedings. The said Court being competent to entertain such proceedings, the said Court at Jaipur alone would have jurisdiction over the Arbitration proceedings and all subsequent Applications arising out of the reference. The Arbitration proceedings have to be made at jaipur Court and in no other Court.” 14. I am, therefore, of the considered opinion that there is no scope to accept the contention raised on behalf of the Applicant that such application should be entertained by this Court only because some other proceedings are pending, especially when the clause in the Agreement stated above specifically confers jurisdiction on the Court where the tender documents and acceptance of tender have been issued, which is undoubtedly at New Delhi, as it is seen on record, thereby impliedly ousting the jurisdiction of other Courts. In such view of the matter, leaving it open to the Applicant to work out its remedy in the Court of appropriate jurisdiction as per the terms of the agreement, this Application stands closed.