Neilan International Co. Ltd. vs Powerica Limited

TRANSFER PETITION (CIVIL) NO.32/2020

Neilan International Co. Ltd. Petitioner(s)

VERSUS

Powerica Limited & Ors.

Respondent(s)

ORDER

1. The Petitioner has filed the present Transfer Petition

seeking the transfer of Comm. A. S. No.09/2019 filed by

Respondent No.1 under Section 34 of the Arbitration and

Conciliation Act, 1996 (‘Act’) before the CCH83 LXXII Addl. City

Civil and Sessions Judge (Commercial Court) at Bengaluru,

Karnataka to the Hon’ble Bombay High Court or any other court Signature Not Verified Digitally signed by Rachna Date: 2022.07.06 16:48:33 IST of competent jurisdiction in Mumbai, Maharashtra, in light of Reason:

Petitioner having filed Arbitration Petition No.416 of 2019 before

1 the Hon’ble Bombay High Court under Sections 47 and 48 of the

Act for the enforcement of arbitral award dated 27 September,

2018 passed by Arbitral Tribunal in ICC International Court of

Arbitration Case No.19933/TO in London under the ICC Rules

2012.

2. Learned counsel for Petitioner argued the principle of

exclusive jurisdiction to be applied in this case to avoid

multiplicity of views arising out of the same agreement between

the same parties and urged this Court to determine the

jurisdiction of the cases filed in the subject proceedings,

particularly when these matters are identical in nature as it

would be possible for two courts to arrive at conflicting findings

and turning the proceedings to an empty formality. Further, the

Petitioner also contended that no prejudice will be caused to the

Respondent if proceedings under Section 34 of the Act are heard

in Mumbai as its head office is in Mumbai and even the

promoter is based there. Learned counsel has also submitted

that the Seat of arbitration was in London and the law of Sudan

was to be applied. Based on the same, the Parties have clearly

2 excluded the application of Part I of the Act and as such the

Respondent is not entitled to file a petition under Section 34 of

the Act in the courts of Bangalore or anywhere else. Lastly, a

submission was made that even if it is to be presumed that the

courts in India hold jurisdiction, the same would not vest with

Bangalore Principal City Civil Court as it has no jurisdiction to

entertain an award passed in the International Commercial

Arbitration. In such a case, the jurisdiction ought to lie with the

Hon’ble High Court.

3. Per contra, the learned counsel for Respondent submits

that the plea regarding the lack of jurisdiction of the Bengaluru

Court to entertain the petition under Section 34 of the Act filed

by Respondent No.1 cannot be taken in a transfer petition filed

before this Court. To canvass the same, attention of this Court

has invited to the order dated 2 nd August 2021 passed by this

Court in Transfer Petition (C) No.953/2021 titled as ‘Naivedya

Associates v. Kirti Nutrients Limited’. He further submits that

the areas of operation of petition under Section 34 of the Act and

a petition under Sections 47/48 of the Act are wholly different.

3 Thus, the argument of Petitioner qua commonality of issues

between both the proceedings is without any foundation.

Further, it was contended that mere convenience of the party is

not a good ground to exercise the power of transfer under

Section 25 of the Code of Civil Procedure, 1908. He also

maintains that the Act is a self­contained code of Arbitration and

relief cannot be sought under the provisions of the CPC,

particularly under Section 25 in this instance.

4. After having heard both the sides, I infer that the primary

issue for consideration before this Court at this juncture is

whether the plea of territorial jurisdiction or the lack thereof can

be entertained by this Court in its jurisdiction under Section 25

of CPC. In this regard, this Court vide its order dated 2 August,

2021 passed in Naivedya Associates v. Kirti Nutrients Limited

(Transfer Petition (C) 953/2021) has held as follows:

“In these circumstances, I do not think there is much scope for going into the question as to whether the Court in which the suit is instituted has territorial jurisdiction to try and determine the suit or not in a petition for transfer of a suit invoking Section 25 of the Code of Civil Procedure. This point is required to be

4 urged before the Court in which the suit is pending. I accordingly decline the plea of petitioner for transfer of said suit”

5. Apropos, it is no longer res integra that there is limited

scope vested in this Court while exercising its jurisdiction under

Section 25 of CPC and the same cannot be extended to

determine the question of territorial jurisdiction of the

proceedings before it as the plea of jurisdiction or the lack of it

can be prompted before the Court in which the proceedings are

pending.

6. In view of the foregoing, the main argument raised by the

Petitioner is bereft of merit, however, in my considered opinion

other arguments are also of no substance warranting to exercise

the jurisdiction to transfer the case as prayed for. Accordingly,

the transfer petition filed by the Petitioner is bereft of any merit

and hence dismissed.

.….………………………J. (J.K. MAHESHWARI)

New Delhi;

July 06, 2022 5 6