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2017 DIGILAW 2013 (RAJ)

Jain Bulk Carriers v. Smtel Glass Ltd.

2017-09-07

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : SANJEEV PRAKASH SHARMA, J. The matter comes upon an application filed by the respondent-company wherein objection has also been raised with regard to jurisdiction of this Court relating to the present company petition. 2. Learned counsel for the respondent-company is invited attention of this Court towards the contract entered into between the parties wherein a clause governing the agreement was laid down as under : “All disputes are subject to the Court of the having jurisdiction at Delhi.” 3. In the application, the respondent has also raised objection on the ground that there is an arbitration clause, however, the same has not been pressed at the time of arguments. 4. Learned counsel also submits that in view of an exclusive agreement relating to jurisdiction having been entered into between the parties, the present company petition filed at Jaipur is not maintainable and the jurisdiction to decide the company petition would lie exclusively with the High Court at Delhi. In support of his submissions, learned counsel relies on the judgment passed by the Apex Court in the case of Swastic Gases Private Limited v. Indian Oil Corporation Limited, (2013) 9 SCC 32 . 5. Per contra, learned counsel for the petitioner submits that the present company petition is preferred with a prayer that the respondent-company be would be and for winding up proceedings in terms of the Companies Act, 1956 (for short “the Act of 1956”), jurisdiction of this Court would lie as the registered office of the respondent-company is situated at Jaipur. In this regard, he has taken this Court to the provisions of Section 10(a) of the Act of 1956. 6. Learned counsel also points out that the proceedings in the present company petition were initiated in the year 2012 and at several occasions, the respondent had appeared and had even proposed for entering into a compromise as is apparent from the order-sheets dated 5th February, 2016 and 11th March, 2016. It is only after he matter could not be compromised that the present objection has been taken up. Learned counsel also submits that objection is frivolous and with the purpose to delay the proceedings and the same be rejected. It is only after he matter could not be compromised that the present objection has been taken up. Learned counsel also submits that objection is frivolous and with the purpose to delay the proceedings and the same be rejected. Learned counsel further points out that in relation to an existence of arbitration clause, when a company petition had been preferred, objection was raised of there being an arbitration clause, and the petition would not entertainable, the matter was taken into consideration by the Supreme Court in the case of Haryana Telecom Ltd., (1999) 5 SCC 688 , wherein it observed that the Companies Act was exclusively dealt with winding up matters and arbitration clause would have no effect relating to winding up of the company. 7. Having heard the learned counsel for the parties, this Court finds that while where is a clause relating to examine any dispute, which may arise between the parties, was made subject to the Court of law having jurisdiction at Delhi, the said clause would not take into its ambit, matter relating to winding up. 8. In the case of Haryana Telecom Ltd. (supra), the Apex Court has observed as under : “The claim in a petition for winding up is not for money. The petition filed under the Companies Act would be to the effect, in a matter like this, that the company has become commercially insolvent and, therefore, should be would up. The power of order winding up of a company is contained under the Companies Act and is conferred on the Court. An arbitrator, notwithstanding any agreement between the parties, would have no jurisdiction to order winding up of a company. The matter which is pending before the High Court in which the application was filed by the petitioner herein was relating to winding up of the Company. That could obviously not be referred to arbitration and, therefore, the High Court, in our opinion was right in rejecting the application.” 9. So far as the judgment of Swastic Gases Private Limited (supra) cited by the learned counsel for the respondent-applicant is concerned, the same exclusively dealt with the effect of clause relating to jurisdiction. That could obviously not be referred to arbitration and, therefore, the High Court, in our opinion was right in rejecting the application.” 9. So far as the judgment of Swastic Gases Private Limited (supra) cited by the learned counsel for the respondent-applicant is concerned, the same exclusively dealt with the effect of clause relating to jurisdiction. The facts of the case before the Apex Court were that in the application under Section 11 of the Arbitration & Conciliation Act, 1996 (for short “the Act of 1996”) had been referred before the Rajasthan High Court for appointment of an arbitrator in relation to dispute arising out between the parties and in relation to such application, the issue relating to territorial jurisdiction was raised before the Supreme Court and it was pointed out that the Rajasthan High Court lacks the territorial jurisdiction in dealing with the application under Section 11 of the Act of 1996 as the agreement has been made subject to all the disputes of jurisdiction before the Court at Kolkata. In such facts and circumstances, the Supreme Court reached to the conclusion that the jurisdiction would lie at Kolkata alone. In the case of Swastic Gases Private Limited (supra), the Supreme Court held thus : “55. It will be seen from the above decisions that except in A.B.C. Laminart where this Court declined to exclude the jurisdiction of the courts in Salem, in all other similar cases an inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words “only”, “alone” or “exclusively” and the like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of courts other than those mentioned in the clause concerned. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties.” 10. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties.” 10. It would be relevant to quote the provisions of Section 11(5) of the Act of 1996, which reads thus : “11(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other parties to so agree with the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court.” 11. While Section 10(a) of the Act of 1956 specifically mentions of the High Court having the jurisdiction in relation to the place where the registered office of the company concerned is situated. Thus, Section 10(a) of the Act of 1956 excludes all other High Court except the High Court where the registered office of the company concerned is situated to have jurisdiction to decide winding up petition. 12. The present company petition being winding up petition moved under Sections 433 and/or 404 of the Act of 1996 and the registered office of the respondent-company is admittedly situated at Kota which falls with the jurisdiction of the Rajasthan High Court, Jaipur Bench, the company petition would be adjudicated by this Court alone in terms of Section 10(a) of the Act of 1956 and it being a statutory jurisdiction, an agreement between the parties cannot exclude or take away the jurisdiction provided under the Act of 1956. Accordingly, the application filed by the respondent-company is rejected. 13. Let the matter come up before this Court on 5th October, 2017.