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2012 DIGILAW 4049 (MAD)

R. D. Textiles v. S. S. Mani

2012-10-01

P.R.SHIVAKUMAR

body2012
Judgment :- P.R.SHIVAKUMAR, J. This application has been filed for the rejection of the O.P.No.514 of 2011 filed under Section 34 of the Arbitration Act, 1996 on the ground that it should have been presented before the proper Court at Mumbai. 2. Due to the disputes and differences between the applicant and the respondent in the application, the respondent made a claim against the applicant for a sum of Rs.29,13,197/- with interest and approached the Confederation of Textile Trader Associations, Mumbai to refer the dispute to the arbitration committee. The Confederation of Textile Trader Associations forwarded the reference papers with annexures to the applicant herein with a request to appoint an arbitrator for him from the list of Arbitrators and to file a written statement. The applicant, besides filing a written statement on 24.12.2010 making out the plea of defence, also sent a letter on 29.12.2010 requesting the Confederation to appoint any of the arbitrators from the panel. As such the second respondent, Mr.Trambak Lak D.Shah was appointed as the sole arbitrator, which appointment was also accepted by the first respondent. The case was taken on file in Arbitration Case No.7/2010-2011 by the arbitrator. 3. The arbitrator conducted arbitral proceedings and passed an award upholding the claim of the first respondent herein and holding the applicant herein liable to pay a sum of Rs.29,13,197/- within fifteen days from the date of receipt of the copy of the award and to make payment of an interest at the rate of 18% on the said amount from the date of award till payment or realisation, in case the said amount was not paid within 15 days after the receipt of the copy of the award. The award also directed the applicant herein to render account for a sum of Rs.3,00,000/-deducted by the applicant towards lorry freight charges for the returned goods within 15 days from the date of receipt of the copy of the award and directed to pay the said amount together with interest at the above said rate in case of default of payment of the said amount within 15 days from the date of receipt of the copy of the award. The applicant was also directed to pay a sum of Rs.3200/- being the cost of the arbitration proceedings which had been paid by the respondent to the confederation. The said award was passed on 10.06.2011. The applicant was also directed to pay a sum of Rs.3200/- being the cost of the arbitration proceedings which had been paid by the respondent to the confederation. The said award was passed on 10.06.2011. The same was communicated by the Confederation of Textile Trader Associations by Registered Post to the parties to the arbitration. A copy of the award was sent to the applicant with a covering letter of the confederation on 24.06.2011. On receipt of the copy of the arbitration award, the respondent herein filed a original petition in O.P.No.514 of 2011 on the file of this Court challenging the arbitration award and seeking an order setting aside the arbitration award dated 10.06.2011 passed in Arbitration Case No.7/2010-2011. 4. The present application has been filed by the applicant, who is the first respondent in the above said arbitration original petition, for the rejection of the arbitration original petition on the ground that the said arbitration original petition is not maintainable in this Court. The said contention has been raised by the applicant on the premise that this Court does not have jurisdiction to entertain the original petition and only the Court in Mumbai does have the jurisdiction to entertain the same. The said contention is raised on the strength of Clause 10 (c) and 14 of the Rules and Regulations of Confederation of Textile Trader Associations, Mumbai which envisage that the Court in Mumbai alone shall have jurisdiction and also on the basis of the fact that invoices raised in respect of the transactions also indicate that the Courts in Mumbai alone shall have jurisdiction and even the receipts issued by the respondent in the application indicate that the Courts in Mumbai alone shall have jurisdiction. It has also been contended by the applicant that by making a false allegation that the goods were sold and delivered at Chennai, the respondent had chosen to file the original petition in this Court and that even assuming that the said allegations are correct, in view of the arbitration clause preferring only the Mumbai Court and excluding the jurisdiction of the other Courts, the original petition challenging the arbitral award ought to have been filed in the Mumbai Court and not in this Court. Based on the above said averments made in the affidavit filed in support of the application, the applicant has prayed for the rejection of the original petition presented on the file of this Court to be presented in proper Court, namely the Court in Mumbai. 5. The respondent has filed a Counter affidavit contending that the present application is not maintainable as O.P.No.514 of 2011 has been filed before this Court as the proper Court. It has also been stated in the counter affidavit only after the filing of the original petition challenging the award on the file of this Court, the applicant chose to file an application under Section 9 of the Arbitration and Conciliation Act before the Bombay High Court, Mumbai and that as per Section 42 of the Arbitration and Conciliation Act, 1996, if any application in respect of an arbitration agreement is made by a party to a Court having jurisdiction, the other Courts, except the said Court, shall not have the jurisdiction to entertain any further application. The respondent has also contended that since the original petition was filed before this Court earlier in point of time and the application under Section 9 was filed by the applicant herein before the Bombay High Court subsequent to the filing of the original petition in this Court, the said application filed before the Bombay High Court was barred by Section 42 of the Arbitration and Conciliation Act 1996 and that hence, the present application for rejection of the original petition or for return of the same for presentation of the same before the proper Court should be dismissed as not maintainable. 6. The point that arises for consideration in this application is as follows:- "Whether this Court does not have the jurisdiction to entertain the Arbitration Original petition and hence, the same is to be either rejected or returned for present before proper Court?" 7. The arguments advanced by Mr.K.Bijai Sundar, on behalf of the applicant and by Mr.R. Ponnusamy, on behalf of the respondent were heard. 8. The arguments advanced by Mr.K.Bijai Sundar, on behalf of the applicant and by Mr.R. Ponnusamy, on behalf of the respondent were heard. 8. The admitted facts are as follows:- In a business dealing between the applicant and the respondent, the respondent M/s.R.D.Textiles made a claim against the applicant and since the claim was not accepted by the applicant, a dispute arose and the same was referred for arbitration to the sole Arbitrator Mr.Trambak Lak D.Shah, who is shown to be the second respondent in the arbitration original petition, namely O.P.No.514 of 2011. The sole arbitrator took the case on file as Arbitration Case No.7/2010-11 and passed an award on 10.06.2011 directing the applicant herein to pay a sum of Rs.29,13,197/-within 15 days from the date of receipt of the copy of the award with a further direction that the award amount shall carry an interest at the rate of 18% p.a from the date of award if the award amount is not paid within 15 days from the date of receipt of the copy of the award. The award also directed the applicant herein to render account for a sum of Rs.3,00,000/-, deducted by the applicant towards lorry freight charges, within 15 days from the date of receipt of a copy of the award with a rider that in case of failure to do so, the applicant herein should pay the said amount together with an interest at the rate of 18% p.a from the date of award till payment or realisation. The award also has directed payment of Rs.3,200/- towards the cost of the arbitral proceedings. 9. It is not in dispute that the respondent is doing business in Mumbai. It is also not in dispute that the arbitral proceedings were conducted and the arbitral award was passed in Mumbai. The award also has directed payment of Rs.3,200/- towards the cost of the arbitral proceedings. 9. It is not in dispute that the respondent is doing business in Mumbai. It is also not in dispute that the arbitral proceedings were conducted and the arbitral award was passed in Mumbai. However, contending that the residence or place of business of a party to the arbitral proceedings shall not be the sole factor based on which the jurisdiction of the Court to entertain a petition under Section 34 of the Arbitration and Conciliation Act, 1996 shall be decided and on the other hand, such a petition can be entertained by a Court on the basis of arisal of cause of action within its jurisdiction either in part or in full and that the arbitral award can be challenged in such Court, the respondent has chosen to file the original petition on the file of this Court. In the original petition, the first respondent has stated that the agreement between the applicant and the respondent was entered into at Chennai on 25.11.2009 and thus, the cause of action for challenging the arbitral award has arisen at Chennai. On the basis of the said contention, it has been argued on behalf of the first respondent that though there may be more than one Court having jurisdiction to entertain a suit or petition, the plaintiff or the petitioner, as the case may be, can invoke the jurisdiction of any one of such Courts and that the respondent has rightly invoked the jurisdiction of this court, which is one of the Courts having jurisdiction to entertain the petition under the Arbitration Act challenging the arbitral award. 10. On the other hand, it is contended on behalf of the applicant that when more than one Court can lawfully entertain a suit or proceedings and the parties themselves by way of a clause in the agreement agree that out of several Courts having jurisdiction, only one shall have jurisdiction to the exclusion of all other Courts, such agreement shall be perfectly valid as the same cannot be termed an agreement against public policy. It is the further contention made on behalf of the applicant that though this Court in Chennai and Bombay High Court in Mumbai are the Courts which have jurisdiction to entertain the Arbitration Original Petition, since there is a valid contract containing a clause selecting the jurisdiction of one of the said Courts, the agreement between the parties can be specifically enforced and hence, the present Original petition, namely O.P.No.514 of 2011 has to be returned to be presented before the Bombay High Court. 11. Per contra, it is contended on behalf of the respondent that when more than one Court do have jurisdiction to entertain a petition under the provisions of the Arbitration and Conciliation Act, 1996 and one of such Courts is approached at the first instance with a petition or application, thereafter, as per Section 42 of the Arbitration and Conciliation Act that Court alone shall have exclusive jurisdiction to entertain a petition or application in respect of such arbitration and no other Court shall have jurisdiction to entertain any application and that since O.P.No.514 of 2011 was filed earlier in point of time, the application filed by the applicant before the Bombay High Court under Section 9 of the Arbitration and Conciliation Act, 1996 should be construed to be one filed in a Court without jurisdiction as the jurisdiction of the Bombay High Court stood ousted by virtue of the provisions contained in Section 42 of the Arbitration and Conciliation Act. 12. 12. As an answer to the above said contention of the respondent, it is argued on behalf of the applicant that an application or petition filed before a Court having jurisdiction alone shall attract the bar under Section 42 of the Arbitration and Conciliation Act, 1996 and in case an application is filed in a Court, which does not have jurisdiction or whose jurisdiction is ousted by the agreement of parties, the same will not be a bar for approaching the Court having jurisdiction; that the parties to an agreement can opt for conferring exclusive jurisdiction to one of several courts having jurisdiction; that a party to such agreement cannot frustrate that clause by approaching the Court whose jurisdiction was ousted by a clause in the agreement; that since the jurisdiction of all other Courts, except the Court in Mumbai, has been ousted by the clause in the agreement, the filing of the original petition on the file of this Court should be construed to be one filed with the intention of frustrating that clause and that therefore, the same cannot be construed to be a bar for approaching the proper Court, namely the High Court of Bombay. It is also pointed out on behalf of the applicant that the filing of arbitration Original petition, namely O.P.No.514 of 2011 was cited as a defence before the Bombay High Court in Arbitration petition No.685 of 2011 filed by the applicant herein under Section 9 of the Arbitration and Conciliation Act, 1996 and the said contention was rejected and that such an order came to be passed on 13.02.2012 by the Bombay High Court in Arbitration Petition No.685 of 2011. 13. A meek attempt was made on behalf of the respondent to show that no part of the cause of action did arise within the jurisdiction of Bombay High Court and hence, even if there is an agreement to the effect that only the Courts in Mumbai shall have jurisdiction, the same cannot have the effect of ousting the jurisdiction of this Court. In other words, the contention of the respondent seems to be that though the parties are free to select the jurisdiction of one Court among several Courts having concurrent jurisdiction, by such agreement, the parties cannot confer jurisdiction on a Court which does not have the jurisdiction to decide the dispute between the parties but for the agreement. In other words, the contention of the respondent seems to be that though the parties are free to select the jurisdiction of one Court among several Courts having concurrent jurisdiction, by such agreement, the parties cannot confer jurisdiction on a Court which does not have the jurisdiction to decide the dispute between the parties but for the agreement. By referring to the above said proposition, learned counsel for the respondent made an attempt to show that though there is a printed clause in the invoices that they are subject to the jurisdiction of Mumbai Courts alone, since no part of the cause of action arose within the jurisdiction of Bombay High Court, the said clause in the invoices would not have the effect of taking away of the jurisdiction of the Chennai Court and conferring jurisdiction on Mumbai Courts. 14. In this regard, we may refer to the relevant provisions of law dealing with the jurisdiction of the Courts. Section 2(e) of the Arbitration and Conciliation Act, 1996 while referring to the Court having jurisdiction to entertain the proceedings under the Act defines "Courts" as follows: “(e) Court means the Principal civil Court of jurisdiction in a District and includes the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction to decide the question forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil Court of a grade inferior to such Principal civil Court or any Court of small Causes” A reading of the above definition of "Court" found in Sub-clause (e) of Section 2 of Arbitration and Conciliation Act will show that the Court to which the party shall have recourse to challenge the award would be the Court having jurisdiction to decide the questions forming the subject matter of the arbitration, if the same had been the subject matter of a suit. Therefore, the test to be applied is whether the Court in which the award is sought to be challenged could have entertained a suit in the absence of arbitration agreement. If the answer is in the affirmative, then the same shall be the Court having jurisdiction to entertain the petition challenging the award. If it is in the negative, then the award cannot be challenged in that Court. If the answer is in the affirmative, then the same shall be the Court having jurisdiction to entertain the petition challenging the award. If it is in the negative, then the award cannot be challenged in that Court. The Apex Court in P.AnandGajapathi Raju V. P.V.G.Raja reported in AIR 2000 SC 886 has held that the Court, as defined in Section (e) Section 2 of the Arbitration and Conciliation Act alone, shall be the Court to which recourse shall be made to challenge the award and not to the Court to which an application under Section 8 is made. 15. Chapter VII of the Arbitration and Conciliation Act, 1996 deals with the recourse against arbitral award. Section 42 provides for limitation of jurisdiction when more courts can be approached. It says where with respect to an arbitration agreement, an application under this part, namely part (1) of the Act 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 only in that Court and in no other Court. For proper understanding the entire section is reproduced hereunder: "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" Section 42 refers to the Court in which an application under part 1 of the Arbitration and Conciliation Act, 1996 has been filed. There is no express exclusion clause excluding the judicial authority referred to in Section 8 and the Chief Justice's authority to appoint arbitrator under Section 11. Even in Section 11, subclause 12(b), the reference made in that Section to "Chief Justice" shall be construed as a reference to the Chief Justice of the High Court within whose legal limits the Principal Civil Court referred to in Clause (e) of Sub-clause 1 of Section 2 is situate. The Court referred to in Sections 9, 34 and 42 are to be understood to mean the Court as defined under Section 2(1)(e). The Court referred to in Sections 9, 34 and 42 are to be understood to mean the Court as defined under Section 2(1)(e). If the definition found therein is to be adopted, then the test to be applied is whether the said Court would have entertained the suit in the absence of the arbitration agreement. Parties may agree to have the venue of arbitration at any place, but the same will not be enough to confer jurisdiction on the Court within whose jurisdiction the venue of arbitration comes. Then we have refer to Code of Civil Procedure. Sections 16 to 20 of the Civil Procedure Code deal with the place of suing. Section 16 deals with the suits in respect of immovable properties. Section 17 deals with suits relating to immovable property which situates within the jurisdiction of different courts. Section 18 deals with the place of suing where local limits of the jurisdiction of the Courts are uncertain. Section 19 deals with place of suing for compensation for wrongs to person or movables. Section 20 deals with the Court in which other suits can be instituted. 16. For the purpose of the case on hand, it shall be sufficient to refer to Section 20 alone. It recites three jurisdictional facts; 1) where the defendant or each one of the defendants, when there are more than one, actually or voluntarily resides, or carries on business or personally works for gain at the commencement of the suit; 2) where there are more than one defendant, suit can be filed in a Court having jurisdiction over the place wherein one or more of the defendants actually and voluntarily reside or carry on business or personally work for gain provided in such cases either the leave of the Court is obtained or the defendants who do not reside or carry on business or personally work for gain within the jurisdiction of such Court acquiesce in such institution of the suit; and 3) where the cause of action arises wholly or in part. For better appreciation, Section 20 of the Civil Procedure Code is extracted hereunder: "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. 17. Similarly, Clause 12 of the Letters patent deals with the Ordinary original jurisdiction of the High Court. It reads as follows: "12.Original jurisdiction as to suits.-And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court; or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees." 18. A conjoint reading of these provisions with the definition of the Court in Section 2(1) (e) of the Arbitration and Conciliation Act, 1996 will show that the Court referred to in the said Sub-section shall be the Court in which a suit could have been brought in respect of subject matter of arbitration, if there had been no such arbitration agreement. Arisal of cause of action is one of the jurisdictional facts conferring jurisdiction on the Court. But, there are also other jurisdictional facts. Place where the defendant or all the defendants reside or carry on business or work for gain, place wherein some of the defendants alone reside, carry on business or work for gain provided the Court grants leave or the other defendants who do no reside/carry on business / work for gain in that jurisdiction acquiesce in the institution of the proceedings in the jurisdiction. 19. We need not trouble ourselves regarding the acquiescence referred to in Section 20 (b) because the same is not relevant for the purpose of our consideration which comes at a later point of time than the date of institution of the suit. In the above background, we have to consider whether this Court or the Court in Mumbai or the Court at both the places do have jurisdiction to decide the question forming the subject matter of the arbitration, if the same had been the subject matter of the suit. Pointing out the fact that the stamp paper had been purchased in Chennai in Tamil Nadu in the name of the applicant, the learned counsel for the respondent argued that the agreement was made at Chennai and the goods were delivered at Chennai and the entire cause of action arose only at Chennai. Per contra, learned counsel for the applicant would submit that no doubt the stamp papers were purchased at Chennai and after purchasing the stamp paper, the respondent came down to Mumbai and there the document was executed. A perusal of the said agreement titled as "Understanding Deal" will show that the place of execution and date of execution of the document have not been written. With the said document alone we cannot come to the conclusion that the entire cause of action arose either in Chennai or in Mumbai. 20. A perusal of the said agreement titled as "Understanding Deal" will show that the place of execution and date of execution of the document have not been written. With the said document alone we cannot come to the conclusion that the entire cause of action arose either in Chennai or in Mumbai. 20. Even assuming that the agreement came to be executed in Chennai, we cannot come to the conclusion that no cause of action arose in Mumbai. As per the agreement, the goods were despatched from Mumbai to Chennai and they were received by the respondent in Chennai. The applicant has produced copies of a number of invoices, which were prepared at Mumbai. The receipts for the payment made by the respondent were also issued in Mumbai. Therefore, we have to accept the contention of the applicant that part of the cause of action has arisen in Mumbai. On the basis of the place of arisal of cause of action, both the Courts in Mumbai and Chennai shall have jurisdiction to decide the question forming the subject mater of arbitration if the same had been filed as a suit. Even assuming for argument sake that the entire cause of action would have arisen only in Chennai and not in Mumbai, that alone shall not be enough to hold that the Court referred to in Sub-section 2(1)(e) of the Arbitration and Conciliation Act, 1996 does not include the Principal Civil Court in Mumbai. The place of arisal of cause of action is only one of the three jurisdictional factors. The other factor, namely the residence/place of business/place of work for gain shall also be taken into consideration to decide whether the Court in Mumbai has jurisdiction to decide the question forming the subject mater of the arbitration, if the same had been made the subject matter of a suit. 21. Admittedly, applicant carries on business in Mumbai and the principal place of business of the applicant is Mumbai. Hence, a suit could have been filed in respect of the subject matter of arbitration by the respondent in the Bombay High Court, Mumbai. As such, we have to come to the conclusion that both the Courts in Chennai and Mumbai are the courts of Ordinary civil jurisdiction to entertain a suit in respect of the dispute between the applicant and the respondent relating to the transaction concerned in the subject arbitration. As such, we have to come to the conclusion that both the Courts in Chennai and Mumbai are the courts of Ordinary civil jurisdiction to entertain a suit in respect of the dispute between the applicant and the respondent relating to the transaction concerned in the subject arbitration. Therefore, the contention raised on behalf of the respondent that Mumbai High Court, having no jurisdiction, could not have been conferred with jurisdiction by the act of parties, has to be rejected as untenable. When two Courts are competent to entertain a suit in respect of a suit between the parties, then the parties can chose any one of the Courts among such Courts to be the Court having exclusive jurisdiction to entertain such dispute. Such a clause in the agreement cannot be termed to be an agreement against a statutory provision or an agreement against public policy. This has been held so by the Apex Court in A.B.C.LaminartPvt. Ltd., and another Vs.A.P.Agencies, Salem reported in AIR 1989 SC 1239 . Following are the observations made in the said case by the Supreme Court: "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 therewithin, 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 Section 23 and 28 of the Contract Act. " 22. In the case on hand, it is the case of the applicant that part of the cause of action arose in Mumbai as the goods were dispatched pursuant to orders placed by the respondent with the applicant in Mumbai, that the invoices were prepared in Mumbai and that on delivery of goods, payments were made in Mumbai and receipts were prepared and issued in Mumbai. When any dispute arises between two and such dispute is instituted as a suit by one party against the other party in a particular Court that can also be taken as a jurisdictional factor to decide the jurisdiction of the Court to entertain the suit. When any dispute arises between two and such dispute is instituted as a suit by one party against the other party in a particular Court that can also be taken as a jurisdictional factor to decide the jurisdiction of the Court to entertain the suit. As such, the applicant has clearly established that in the absence of any agreement to the contrary, both the Courts at Mumbai and at Chennai would have got jurisdiction to entertain a dispute between the applicatnt and the respondent in respect of the subject matter of contract if a suit is filed. 23. It is the further contention of the applicant that there is an agreement to oust the jurisdiction of Chennai Courts by preferring the Courts in Mumbai to be the Courts having exclusive jurisdiction to try the dispute. In support of the contention of the applicant, the applicant relies on all the invoices wherein it has been printed in bold letters as follows:"subject to Mumbai jurisdiction only". The respondent does not dispute that the invoices issued by the applicant do contain such a printed clause. Even the receipts issued by the applicant to the respondent, copies of which have been produced by the respondent at Pages 13 to 18 of the typed-set of papers produced by the respondent in the application, the same message "subject to Mumbai jurisdiction only" is found printed. The respondent seems to have accepted the goods and made payments and got the receipts without raising any objection regarding the said clause. The same will show that the respondent accepted the selection of jurisdiction. In addition to the same, at the foot of the invoices, the following condition has also been printed:-"Terms: This transaction is subject to Rules and Regulations of the confederation. This transaction is deem to have taken place at Mumbai and if any dispute arises in respects thereof, the same will be referred to arbitration of Confederation of Textile Trader Associations". 24. It is also pertinent to note that for the reference made to arbitration by the Confederation of Textile Trader Associations at Mumbai, the respondent did not raise any objection. 24. It is also pertinent to note that for the reference made to arbitration by the Confederation of Textile Trader Associations at Mumbai, the respondent did not raise any objection. In the claim statement made before the arbitrator, clear averments were made that various transactions of sale of textile goods were carried out by the applicant in Mumbai with the respondent and on reconciliation of accounts, the defendant in writing at Mumbai agreed to pay a sum of Rs.29,12,197/-and also to furnish accounts for Rs.3,00,000/- deducted towards lorry freight charges. Clear averments had been made to the effect that the transactions took place at Mumbai and the agreement referred to by the respondent as the "Understanding Deal" dated 25.11.2009 was signed at Mumbai. The same was not disputed and denied in the written statement filed by the respondent before the arbitrator. Now only, as an afterthought, the respondent has taken a stand that the said understanding deal was entered into in Chennai and entire cause of action arose in Chennai. The same is untenable and liable to be discountenanced. At the cost of repetition, it is again pointed out that the transaction between the applicant and the respondent was claimed to be made at Mumbai in clear terms in the claim statement and the same was not disputed in the written statement filed before the arbitral Tribunal. Payments were made at Mumbai and the copies of receipts issued by the applicant from Mumbai have also been produced by the respondent. The invoices prepared and sent by the applicant are also said to be made in Mumbai and the invoices contain a specific clause printed in bold letters at the top of the invoices itself to the effect that the same was subject to the jurisdiction of Mumbai only. In addition, a foot note also has been printed to the effect that the transaction would be deemed to have taken place at Mumbai and if any dispute would arise, the same would be referred to arbitration of the Confederation of Textile Trader Associations. 25. If all these aspects are taken into consideration, the only conclusion that can be arrived at is that part of the cause of action arose at Mumbai and hence, Bombay High Court at Mumbai does have the jurisdiction to decide the dispute, which is the subject matter of the arbitration concerned in this case. 25. If all these aspects are taken into consideration, the only conclusion that can be arrived at is that part of the cause of action arose at Mumbai and hence, Bombay High Court at Mumbai does have the jurisdiction to decide the dispute, which is the subject matter of the arbitration concerned in this case. As such, the preference of Courts at Mumbai, as the Courts having jurisdiction to entertain the dispute between the parties to the transaction is perfectly valid and the same cannot be successfully challenged as a conferment of jurisdiction on a Court which otherwise does not have jurisdiction. What the parties have done is to select one out of more Courts having jurisdiction as the Court preferred by them to have exclusive jurisdiction to decide the dispute between them. Therefore, the contention of the applicant that by exclusion clause the jurisdiction of this Court or any Court other than the Courts in Mumbai stands ousted has got to be countenanced. The Bombay High Court also had entertained a petition under Section 9 as Arbitration petition No.685 of 2011 and passed an order in favour of the applicant herein, not accepting the contention of the respondent herein that the petition filed in this Court will be a bar for such a petition before the Mumbai Court as per the provision of Section 42 of the Arbitration and Conciliation Act, 1996. The same is in tune with the above said opinion expressed by this Court. 26. For all the reasons stated, this Court comes to the conclusion that the applicant has made out a clear case that this Court's jurisdiction stands ousted by a valid agreement between the parties whereby they have preferred the jurisdiction of the Courts at Mumbai being one of the several Courts having jurisdiction to entertain the suit. Therefore, the Original petition filed in this Court in O.P.No.514 of 2011 has got to be either rejected or returned for presentation in the proper Court. When proceedings are filed in a Court having no jurisdiction, it shall be proper to return the same for presentation in proper Court rather than dismissing or rejecting the same. Hence, this Court comes to the conclusion that O.P.No.514 of 2011 filed under Section 34 of the Act on the file of this Court deserves to be returned for presentation in the proper Court, namely Bombay High Court, Mumbai. 27. Hence, this Court comes to the conclusion that O.P.No.514 of 2011 filed under Section 34 of the Act on the file of this Court deserves to be returned for presentation in the proper Court, namely Bombay High Court, Mumbai. 27. In the result, Application No.1394 of 2012 is allowed and the office is directed to return the original petition No.514 of 2011 for presentation before the proper Court, namely Bombay High Court. The time for presentation before the Bombay High Court is four weeks from the date of receipt of a copy of this order.