Judgment : 1. This application has been taken out by the applicant, under sub-sections (5) and (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) read with the Scheme of Appointment of Arbitrators, 1996, for appointment of an Arbitrator. 2. The sum and substance of the case is that on 11.10.2006 the applicant had entered into a joint development agreement (in short, agreement) with the respondents for developing an extent of 30,500 square feet of land in Vibhuthipura Village, Krishnarajpuram Hobli, Bangalore East Taluk. In the agreement, the parties thereto agreed to amongst other terms as follows:- The applicant to develop the property and would be entitled to 62.40% and the respondents would be entitled to 37.60% of the super built area as well as the undivided interest in the property. 3. After entering into the agreement, the applicant started working in terms thereof. However, the respondents in breach of the terms of the said agreement failed to perform their part. As such there has been a dispute between the parties. Ignoring the arbitration agreement contained in the agreement (clause-25 thereof) the respondents have filed a civil suit (O.S.No.2045 of 2013) against the applicant before the City Civil Court (CCH No.7), Bangalore City, Bangalore, seeking perpetual injunction restraining the applicant from interfering with the peaceful possession and enjoyment of their property. The applicant is and has been in continuous possession of the property from day of handing over the same to it. It is stated that the applicant is contemplating to file application under Section 8 of the Act in the said suit. It is also stated that the applicant has filed an application opposing proceedings of the plaint, under Section 8 of the Act. In view of the above act and conduct of the respondents, the present application has been filed to invoke my jurisdiction under Section 11(5) & (6) of the Act. 4. It is stated in the application to invoke my jurisdiction the agreement out of which the disputes to be adjudicated by the Arbitrator, have arisen, has been executed within the territorial jurisdiction of this Court. The arbitration clause (clause 25) in agreement specifically provides that seat of the arbitral tribunal shall be at Hyderabad. 5. The respondents appeared in the matter and filed a counter taking the objection as follows. The arbitration clause (clause 25) in agreement specifically provides that seat of the arbitral tribunal shall be at Hyderabad. 5. The respondents appeared in the matter and filed a counter taking the objection as follows. I have no territorial jurisdiction in any sense. It is denied fact that the agreement was executed within the territorial jurisdiction of this Court as mentioned in the Act, so much so I can entertain this application. In paragraph 8 of the counter it is emphatically asserted that the applicant has falsely stated in the application that the agreement has been executed within the territorial jurisdiction of this Honble Court, rather it was executed and registered in Bangalore. The agreement is in respect of immovable property situated in Bangalore and as the respondents are residents of Bangalore, it was executed before the Sub-Registrar, Krishnarajapuram, and registered in the said office of the Sub-Registrar. The property being located at Bangalore and the contract having been executed at Bangalore, the jurisdictional Court, either for appointment of an Arbitrator or for arbitration or adjudication of civil proceedings, would be a Court at Bangalore alone and not any other Court. It is also stated therein that no part of cause of action arose at Hyderabad at any point of time. Further, in the cause title there is no mention nor any statement in the pleadings that the applicant is a registered partnership firm under the Indian Partnership Act, 1932 (hereinafter referred to as the Partnership Act). Hence, the instant proceeding is clearly non-entertainable and clearly barred under Section 69(2) and (3) of the Partnership Act. 6. An affidavit in reply has been filed by the applicant. From reading of paragraph 4 thereof, it appears to me that there has been no denial of the fact, as asserted by the respondents, that the joint development agreement was executed and registered in Bangalore. However, it is emphasized that since the joint development agreement was registered in Bangalore the jurisdictional Court for appointment of arbitrator would be a Court at Bangalore, is incorrect. It is asserted that I have jurisdiction for appointment of an Arbitrator as, according to Clause 25 of the agreement, the seat of arbitral Tribunal is at Hyderabad and as per clause 26.3 the Courts in Hyderabad have jurisdiction over the agreement. 7. Mr. It is asserted that I have jurisdiction for appointment of an Arbitrator as, according to Clause 25 of the agreement, the seat of arbitral Tribunal is at Hyderabad and as per clause 26.3 the Courts in Hyderabad have jurisdiction over the agreement. 7. Mr. S. Ravi, learned Senior Advocate appearing for the applicant, contends that as far as the objection as to my jurisdiction on the ground of territoriality is concerned, should be overruled in view of the judgment of Constitution Bench of the Supreme Court in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. ( (2012) 9 SCC 552 ), as per Clause 25 of the agreement, the seat of the arbitration shall be at Hyderabad, and the arbitration proceedings shall be governed by the Act. As far as the plea of non-registration of the applicant firm in the context of filing the present application is concerned, it is not a suit and the bar mentioned in Section 69 of Partnership Act is not applicable in this case and more over if the aforesaid provision of the Partnership Act is looked into, it has no manner of application to this case. Besides this, the point involved is a mixed question of fact and law and could be subject matter of arbitration itself. 8. Learned counsel for the respondents submits that the ratio decided by the Constitution Bench of the Supreme Court in Bharat Aluminium Company case (supra) is totally inapplicable and I can assume jurisdiction only on pre-conditions of jurisdictional fact mentioned in the Act are satisfied. He submits that since issue of legality and validity of the agreement itself is before Civil Court, invocation of Clause 25 of the same is absolutely inappropriate. Admittedly, as on today, no action under Section 8 of the Act has been brought. The Civil Court itself can decide the issue touching above. As a point of fraud has been taken Civil Court is the only forum, not the forum for alternative dispute resolution. He submits, placing reliance on the Division Bench Judgment of the Delhi High Court in the case of Vanita Gambhir and Others v. District Judge and Others (2005 (1) Arb. L.R. 166 (Delhi))that the proceeding of this nature is barred under Section 69 of the Partnership Act as there has been no dispute that the applicant firm is an unregistered one. 9. L.R. 166 (Delhi))that the proceeding of this nature is barred under Section 69 of the Partnership Act as there has been no dispute that the applicant firm is an unregistered one. 9. In view of the aforesaid contentions and rival contentions, the following points are required to be decided in this matter. (i) Whether I have territorial jurisdiction in view of the undisputed factual position as recorded above in the context of the judgment of the Constitution Bench of the Supreme Court, cited above, or not ? (ii) If so, whether I can take up the issue for appointment of an Arbitrator in view of the civil suit having been filed in relation to the joint development agreement ? 10. As I understand the contention of Mr. Ravi, learned Senior Counsel appearing for the applicant, the provisions of the Act in relation to territorial jurisdiction for maintaining the instant application is so to say explained by the Supreme Court judgment in the above case enabling me to entertain this application on the concept of situs of arbitration proceedings. It appears to me the Constitution Bench of the Apex Court in that case was concerned with applicability and non-applicability of Part-I of the Arbitration and Conciliation Act, in case of foreign arbitration, i.e., jurisdictional seat outside India. In Paragraph 125 of the said judgment, Justice Nijjar (as His Lordship then was), speaking for the Bench, ruled as follows: 125. We are unable to accept the submission that the use of expression notwithstanding anything contained in Part I, or in the Code of Civil Procedure, 1908, in Section 45 of the Arbitration Act, 1996 necessarily indicates that provisions of Part I would apply to foreign seated arbitration proceedings. Section 45 falls within Part II which deals with enforcement proceedings in India and does not deal with the challenge to the validity of the arbitral awards rendered outside India. Section 45 empowers a judicial authority to refer the parties to arbitration, on the request made by a party, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44. It appears that inclusion of the term judicial authority in Sections 5 and 8 of the Arbitration Act, 1996, has caused much confusion in the minds of the learned counsel for the appellants. It appears that inclusion of the term judicial authority in Sections 5 and 8 of the Arbitration Act, 1996, has caused much confusion in the minds of the learned counsel for the appellants. In our opinion, there is no justification for such confusion. Such use of the term judicial authority, in Section 5 and Section 8 of the Arbitration Act, 1996, is not a recognition by Parliament that Part I will apply to international commercial arbitrations held outside India. The term judicial authority is a legacy from the 1940 Act. The corresponding provision of Section 34 of the 1940 Act, which covered purely domestic arbitrations, between two or more Indian parties, within the territory of India, also refers to judicial authority. It is nobodys contention that by using the term judicial authority, Parliament had intended the 1940 Act to apply outside India. In our opinion, the term judicial authority has been retained especially in view of policy of least intervention, which can not be limited only to the Courts. This is clearly in recognition of the phenomenon that the judicial control of commercial disputes is no longer in the exclusive jurisdiction of Courts. There are many statutory bodies, tribunals which would have adjudicatory jurisdiction in very complex commercial matters. Section 5 would be equally applicable to such bodies. The use of the term judicial authority in no manner has any reference to arbitrations not held in India. It is in conformity with Clause (v) of the objects and reasons for the Arbitration Act, 1996, which has been given statutory recognition in Section 5. Thus, it is clear the aforesaid authority nowhere said the statement of law laid down therein would also be applicable in case of domestic arbitration, namely where both parties are Indian and the venue chosen within India. It is also not the authority to follow that chosen venue of arbitration is any factor to oust jurisdiction of natural civil forum. 11. I accordingly overrule the contention of Mr. Ravi that the aforesaid judgment of the Apex Court is decisive factor on the issue of territorial jurisdiction and this has to be decided necessarily under the provisions of the Act. 12. In Clause 25(f) of the agreement, the parties have reiterated that the arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996. Ravi that the aforesaid judgment of the Apex Court is decisive factor on the issue of territorial jurisdiction and this has to be decided necessarily under the provisions of the Act. 12. In Clause 25(f) of the agreement, the parties have reiterated that the arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996. While examining this aspect, I notice the provisions of sub-section (12) Section 11 of the Act, relating to appointment of arbitrators, which is reproduced hereunder: 11 (12) (a). (b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to Chief Justice in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court. The above clause (b) of sub-section (12) of Section 11 of the Act refers to clause (e) of subsection (1) of section 2, relating to definition of Court, which reads as follows: 2(1)(e). Court means 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, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes; Therefore, the test is, going by the statement and averment made before me, whether the subject matter of arbitration would have been the subject matter of a suit, and Principal Civil Court of Original jurisdiction as mentioned in the said definition Section could have entertained such suit. In this case, Principal Civil Court at Hyderabad is the Court as defined above within the territorial limits of Hyderabad. Obviously my jurisdiction is invocable with reference to the said Court. The subject matter of the arbitration appears to be assertion of development agreement, as disclosed by the applicant. 13. The next test in this case is whether cause of action wholly or partly has arisen within the territorial limits of this Court or not. Obviously my jurisdiction is invocable with reference to the said Court. The subject matter of the arbitration appears to be assertion of development agreement, as disclosed by the applicant. 13. The next test in this case is whether cause of action wholly or partly has arisen within the territorial limits of this Court or not. In this case Section 20 of the Code of Civil Procedure (for short, the Code) is applicable by reason of the fact that all the respondents carry on business or dwel outside territorial limit of this High Court. Hence, Clause (c) of Section 20 of the Code is applicable. Section 20 of the Code provides 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. (emphasis supplied) Undisputedly, the agreement was executed and registered in Bangalore and performance or nonperformance or alleged breach thereof cannot in any stretch of imagination take place within territory of this State, consequently within my jurisdiction. The land is situated within Bangalore. The performance and/or non-performance of the development agreement or breach of the terms and conditions thereof are relatable to the land also locates at Bangalore, outside the territorial limit of this Court. I, therefore, unhesitatingly hold that no part of cause of action has arisen to invoke my jurisdiction. 14. The other points raised in the counter affidavit, namely, the applicant is not a registered partnership firm etc., are not required to be considered as I have no jurisdiction to entertain this application. 15. In view of the foregoing discussion, I dismiss this application.