Srei Equipment Finance Limited vs Seirra Infraventure Private Limited

For the Petitioner : Mr. Swatarup Banerjee, Adv.

Mr. Dripto Majumdar, Adv.

Mr. Saubhik Chowdhury, Adv. Mr. Jishnujit Roy, Adv.

For the Respondent : Mr. Rohit Das, Adv. Mr. Aniruddha Bhattacharya, Adv.

Last Heard on : 25.08.2020.

Delivered on : 07.10.2020.

Moushumi Bhattacharya, J.

1. This is an application under section 9 of The Arbitration and

Conciliation Act, 1996, in which the petitioner/finance company has sought

an injunction restraining the respondent/hirer from dealing with the assets

leased by the petitioner to the respondent under a Master Lease Agreement 2

entered into between the parties on 15th March, 2018. The petitioner has

alleged outstanding rental dues as on the date of termination of the

Agreement and has sought for appointment of a Receiver to take possession

of the assets together with an order directing the respondent to furnish

security to the extent of Rs. 75,19,388/-.

2. The respondent has raised a point of maintainability of the application

on the ground that this Court does not have territorial jurisdiction to

entertain the application as would be evident from the pleadings and

documents as also the relevant provisions of The Arbitration and

Conciliation Act, 1996.

3. According to Mr. Rohit Das, learned counsel appearing for the

respondent, no part of the cause of action has arisen within the ordinary

original civil jurisdiction of this Court as the entire transaction has taken

place at the petitioner's Head Office in Sector V, Salt Lake and at the

respondent's registered office in Sector II, Salt Lake. Counsel relies on the

arbitration clause and the exclusive jurisdiction clause in the contract which

refers to the greater city of Kolkata and does not refer to the High Court at

Calcutta. Counsel relies on Golden Edge Engineering Private Limited Vs.

Bharat Heavy Electricals Limited in A.P. No.191 of 2020; Debdas Routh Vs.

Hinduja Leyland Finance Limited reported in AIR 2018 Cal 322 and M/S

Sunil Hi-Tech Engineers Ltd. Vs. M/S Bharat Heavy Electricals Ltd. in G.A.

No.3647 of 2016 with AP No. 966 of 2016. Counsel submits that even

otherwise the parties could not have chosen the seat of arbitration to be that 3

part of the city which is within the jurisdiction of this Court when no part of

the cause of action has arisen within the territorial jurisdiction of this Court. Counsel relies on Hakam Singh Vs. Gammon (India) Ltd. reported in AIR

1971 SC 740, A.B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem reported in

AIR 1989 SC 1239, Khazana Projects & Industries Pvt. Ltd. Vs. Indian Oil

Corporation Ltd. in F.M.A. No.2748 of 2016 for the proposition that parties

cannot confer jurisdiction on a court where there is an inherent lack of

jurisdiction.

4. Mr Swatarup Banerjee, learned counsel for the petitioner, places

emphasis on the conduct of the respondent in failing to pay the lease rentals

which caused the petitioner to approach this Court. Counsel submits that

the averments in the petition are clearly to the effect that the cause of action

has arisen within the jurisdiction of this Court and that the jurisdiction

clause in the agreement as well as the seat of arbitration in the relevant

clause also clothed this Court with the jurisdiction to deal with the dispute.

Counsel relies on Swastik Gases Private Limited Vs. Indian Oil Corporation

Limited reported in (2013) 9 SCC 32 to submit that if parties have consented

to a particular court and if that court otherwise has jurisdiction then that

court would be entitled to adjudicate the disputes between the parties. Bharat Aluminium Company Vs. Kaiser Aluminium Technical Services Inc.

reported in (2012) 9 SCC 552 is cited for the proposition that if two courts

have jurisdiction, the court where the arbitration takes place can decide the

dispute. Indus Mobile is placed to submit that where the parties consented 4

to accept a particular situs for arbitration, that situs would confer

jurisdiction on the court under section 2(1)(e)(i) of The Arbitration and

Conciliation (Amendment) Act, 2015. It is submitted that once the parties

have chosen 'Kolkata' as the situs for arbitration, this Court being the

highest civil court having ordinary original civil jurisdiction in the District of

Kolkata under section 2(1)(e)(i) of the 2015 Act is the only court which is

competent to receive, try and entertain the disputes between the parties. BGS SGS SOMA JV Vs. NHPC Limited reported in (2020) 4 SCC 234 and

Hindustan Construction Company Limited Vs. NHPC Limited and Anr.

reported in (2020) 4 SCC 310 are shown to urge that the seat of arbitration

would determine the jurisdiction of the court which can receive, try and

entertain proceedings under the Amendment Act of 2015.

5. I have considered the arguments of counsel. To put the point of

adjudication in perspective, the petitioner urges that this Court has

jurisdiction to grant the reliefs in this application under section 9 of the

1996 Act while the respondent says that this Court does not, as no part of

the cause of action related to the dispute arose within the jurisdiction of this

Court.

6. The preliminary point taken by way of objection to the maintainability

of the application falls for consideration in this decision.

7. It should first be clarified that although an application under section 9

of the Act is in the nature of interim relief where the substantive relief 5

arising out of the dispute is considered by the Arbitrator, section 2(1)(e)(i) of

the Amendment Act of 2015 - defining "Court" - brings within its fold the

proper court in which such application may be filed. The language used in

section 9 is "Interim measures, etc., by Court" and in 2(1)(e)(i) the court

'having jurisdiction' hence the issue of territorial jurisdiction of a court

becomes relevant. The extent of significance would be evident from the

relevant part of the section which is set out below.

"Section 2(1)(e) "Court" means -

(i) in the case of an arbitration other than international commercial arbitration, 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;"

8. In order to see whether this Court has jurisdiction to entertain the

present application, the probative value of pleadings and corroborating

materials relied on by counsel should be weighed in context.

9. The contentions of the petitioner : says that this Court has jurisdiction :

i. The respondent approached the petitioner at its corporate office at 6A

Kiran Shankar Roy Road, Kolkata 1, within the jurisdiction of this

Court for taking on lease of various assets for use in the

respondent's business.

6

ii. The parties entered into a Master Lease Agreement on 15th March,

2018 at the petitioner's corporate office at 6A Kiran Shankar Roy

Road, Kolkata 1, within the jurisdiction of this Court. The

Agreement has been annexed to the petition.

iii. Pursuant to the above agreement, three Rental Schedules were

executed between the parties at the petitioner's corporate office at

6A Kiran Shankar Roy Road, Kolkata 1 within the jurisdiction of

this Court. The Schedules have been annexed to the petition.

iv. The Master Lease Agreement was terminated by a Notice dated 28th

February, 2020 issued by the advocate of the petitioner from 5,

Kiran Shankar Roy Road, Kolkata 1, within the jurisdiction of this

Court. The Notice of termination has been annexed to the petition.

v. All the records in connection with the transaction are available at the

petitioner's corporate office at 6A Kiran Shankar Roy Road, Kolkata

1, within the jurisdiction of this Court.

vi. Besides the pleadings, the petitioner has relied on clause '18 k' of the

Agreement by which the parties agreed to submit to the exclusive

jurisdiction of the Courts in Kolkata.

vii. Reliance is also placed on clause '18n' which states that the venue of

Arbitration will be Kolkata.

[

10. Do the documents annexed corroborate the stand of the petitioner? 7

a. The Master Lease Agreement dated 15th March, 2018 mentions the

registered office of the petitioner at 86 Topsia Road (South) Kolkata 46

together with its corporate office at 6A Kiran Shankar Roy Road,

Kolkata 1, in the Recital. The last page of the Agreement shows that

the parties have 'signed at Kolkata on...' but does not specify the exact

location in Kolkata where the agreement was executed.

b. The Schedule to the Agreement containing the rental schedule also

shows that the parties signed 'at Kolkata' without specifying the exact

location.

c. Even though the Notice of termination of the Agreement was issued

from the office of the petitioner's lawyer at 5 Kiran Shankar Roy Road,

Kolkata 1, the material fact would be where such Notice was received

by the addressee. Notably, the registered office of the respondent

mentioned in the Notice is Sector II Salt Lake City, Kolkata 91. Hence,

this document cannot assist the petitioner for deciding the point of

jurisdiction.

11. Contentions of the respondent : says that this Court does not have

jurisdiction.

i. The entire transaction between the parties took place between the

offices of the petitioner and the respondent located at Sector V and

Sector II, Salt Lake, respectively.

8

ii. The registered office of the respondent is at Topsia, outside the

jurisdiction of this Court.

iii. All correspondence was exchanged between the offices of the parties

located in Salt Lake.

iv. There has been no physical visit or transaction by any employee or

officer of the respondent at the Kiran Shankar Roy Road office of

the petitioner.

v. Clause 18k, being the exclusive jurisdiction clause, refers to Courts

in the City of Kolkata and does not specify the Calcutta High Court.

vi. Clause 18n specifying that the venue of arbitration will be Kolkata

cannot confer jurisdiction on this Court to decide the present

dispute.

12. Do the documents relied on corroborate the contentions of the

respondent?

a. The letters issued by the petitioner on 30th April, 2019 with regard to

the revised repayment schedule mention the Head Office of the

petitioner as Sector V, Salt Lake City and the respondent's address as

Udaipur, Surguja, Chattisgarh.

b. A series of correspondence between the respondent and the petitioner

from 9th August 2017 to 13th March 2018 including emails

exchanged with a third-party vendor related to the transaction based 9

in Pune. An e-mail of 10th January, 2018 shows the beneficiary Bank

branch is located at Raghunathpur, Kolkata.

c. All the emails and letters exchanged mention the address of the

petitioner as Sector V, Salt Lake City and not the office at Kiran

Shankar Roy Road.

13. With reference to the above documents, although the address of the

petitioner has been mentioned as the Salt Lake address in all the

communications, the documents cannot be taken as unimpeachable

evidence of the transactions having taken place wholly outside the

jurisdiction of this Court or that not even a single transaction was carried

out at or from the petitioner's Kiran Shankar Roy office. Further, although

the respondent has denied the averment of the Agreement having been

signed at the petitioner's office at Kiran Shankar Roy Road, there is no

supporting document to specifically corroborate the denial. The Agreement

states that one of the petitioner's offices are located at Kiran Shankar Roy

Road and the parties are shown to have signed the Agreement at Kolkata.

The document is buttressed by the pleading at paragraph 3 of the

application that the Master Lease Agreement was executed at the corporate

office of the petitioner at 6A Kiran Shankar Roy Road. To rebut the

presumption that the Agreement has been signed at the petitioner's office

within the jurisdiction of this Court, the respondent would have to bring

evidence in the form of contemporaneous documents/correspondence to

assert that the parties executed the Agreement at Sector V/Sector II, Salt 10

Lake or at a place outside the jurisdiction of this Court. In other words, a

denial simpliciter of the statement that the agreement was signed within the

jurisdiction of this Court is not enough, the respondent has to adduce

something more to upend the presumption in favour of the petitioner in

totality.

14. The 'exclusive jurisdiction' and 'venue' arguments are being separately

dealt with.

15. Clause 18k : The exclusive jurisdiction clause is set out below:

18.k) This agreement shall be governed by and construed in accordance with laws of India. Parties agree to submit to the exclusive jurisdiction of the Courts in the City of Kolkata."

The respondent's objection that the clause is vague and lacks

necessary particulars to only mean the Calcutta High Court to the exclusion

of all other courts in the city of Kolkata merits consideration. It is correct

that many of such clauses suffer from a generalised brush-stroke to broadly

include any court within a given territorial boundary. The vagueness

particularly comes to the fore when there are multiple courts in a city like

Kolkata and particularly after The Commercial Courts Act, 2015, under

which at least 2 courts in 'Kolkata' are contemplated and a total of 4 courts

within the extended territorial boundaries of the city. As much as this Court

finds such generalised clauses to be misleading and insufficient for the

purposes of designating a court with the jurisdiction, an application under

section 9 of the 1996 Act must be placed in context.

11

16. Under section 6 of the Commercial Courts Act, a Commercial Court

shall have jurisdiction to try all suits and applications relating to a

commercial dispute of a specified value arising out of the entire territory of

the State over which it has territorial jurisdiction. Under section 7, the

Commercial Division of a High Court shall have similar jurisdiction over

commercial disputes of a specified value filed in the High Court having

ordinary original civil jurisdiction. Under section 10(2), the Commercial

Division of a High Court shall hear and dispose of applications and appeals

arising out of arbitrations other than international commercial arbitrations

and filed in the original side of the High Court provided the dispute is a

commercial dispute of a specified value. A Notification dated 16th January,

2019 set up 4 commercial courts including 2 such courts in greater Kolkata;

namely at Alipore and Rajarhat. By a subsequent Notification dated 20th

March, 2020, the pecuniary jurisdiction in terms of the value of the

commercial disputes was specified. Commercial Courts within the territorial

jurisdiction of the City Civil Court at Calcutta would have exclusive

jurisdiction of commercial disputes with a specified value from 3 lakhs to 10

lakhs and would have concurrent jurisdiction with the Commercial Division

of the High Court at Calcutta for disputes in excess of 10 lakhs to 1 crore

while the Commercial Division of the High Court would have a pecuniary

jurisdiction exceeding 10 lakhs. The petitioner has stated in paragraph 44 of

the application that the valuation of the subject matter of the reference

exceeds Rs 10 lakhs. Hence, if the Commercial Division of this Court has

concurrent jurisdiction with the Commercial Court within the jurisdiction of 12

the City Civil Court in terms of the specified value, then the petitioner must

be given the option of approaching either of these two courts. The petitioner

has chosen to come before the High Court at Calcutta.

17. Clause 18n: Kolkata was designated as the venue of arbitration. The

relevant part of the clause is set out below:

"18. n) .......

It is made clear that the venue of Arbitration proceedings will be Kolkata and no objection shall be entertained from any parties in this regard.

The Award of the arbitrator shall be final, conclusive and binding on all the parties."

The petitioner's argument is that since the parties have designated

'Kolkata' as the chosen situs for arbitration, this court is the highest Civil

Court having the requisite jurisdiction under section 2(1)(e)(i) of the

Amendment Act, 2015, and would hence be the only competent court to

receive and entertain the present application. Notably, clause 18n fixes

Kolkata as the 'venue' of the arbitration proceedings as opposed to 'seat'.

18. Although, for the purposes of the present matter, the factum of the

cause of action having arisen within the jurisdiction of this Court marks the

territoriality issue in favour of the petitioner and the 'seat' of arbitration

becomes secondary and alternative to the first argument, this Court wishes

to dwell briefly on the 'seat' point. The Supreme Court has explained the

difference between venue and seat in several decisions where the former was

seen as a place which could be fixed for holding the meetings of the 13

arbitration according to the convenience of the parties and could hence be

changed as and when the parties deemed it fit. The expression 'seat'

however had a connection with the local law which would be the governing

law for the conduct of the arbitration proceedings. Hence, 'seat' remains

rooted to the place agreed upon by the parties in the clause pertaining to

arbitration since it has a bearing on the applicable curial law governing the

conduct of the arbitration proceedings. The interplay between seat and

venue was reiterated in BGS SGS SOMA where the Supreme Court held that

in cases where the parties had not defined the seat, the venue agreed upon

could be construed as the seat. It must be mentioned however that the

concept of seat assumes significance where the parties have consented to a

seat in a country which is different to the country where an application in

relation to the arbitration agreement or the award is made. The issue which

naturally falls for adjudication in such cases is identifying the proper court

for taking up the challenge to the agreement or the award. In paragraph 48

of BGS SGS SOMA, the Supreme Court trained its lens on cases where there

was a fight (for space, as it were) between Part I and Part II of the Act over

claims on the court which would supervise the arbitration proceedings. In

the cases discussed in that decision, the question was whether the chosen

seat of the arbitration could be by-passed in deciding the law governing the

arbitral proceedings. Relying on passages from Enercon (India) v Enercon

GmbH; (2014) 5 SCC 1 and Shashoua v Sharma; (2009) 2 Lloyd's Law Report

376 and C v D 2008 Bus LR 843, the Supreme Court held that once the seat

of arbitration is chosen, it would amount to an exclusive jurisdiction clause 14

insofar as the courts at that seat are concerned. The illustration given in

paragraph 49 of BGS SGS SOMA shows that the Supreme Court was

considering a case where the cause of action had arisen in multiple courts

including the court connected to the seat chosen by the parties and where

the intention of the parties would be defeated if the remotest court was

allowed to assume jurisdiction in the matter. In the cases cited including

Videocon Industries Limited vs. Union of India reported in (2011) 6 SCC 161,

the provisions of Part I of the Act were pitted against those of Part II of the

1996 Act; in other words the question was which was the competent court

to receive applications in connection with the arbitration agreement. The

underlying principle was more than party autonomy, it was to prevent

parties aggrieved by different parts of an award rushing to two different

courts or alternatively, a satisfied party approaching Court A for enforcing

an award while the aggrieved party goes to Court B for setting aside of the

award.

19. It should also be pointed out that the choice of the court where any

application under Part I of the 1996 Act may be filed is governed by section

2(1)(e)(i) in conjunction with section 42 of the Act. Section 2(1)(e)(i) lays

down the tier (in the hierarchy) of the court taken with the territorial and the

jurisdiction parameters for making it competent to decide the questions

raised in the application. Section 42, on the other hand, is a safeguard

against multiple applications involving the same subject-matter being taken

to different courts after a party to an arbitration agreement has approached 15

a particular court having the requisite jurisdiction. The first court

approached by a party for an application under Part I thus becomes the

exclusive forum for receiving subsequent applications in relation to disputes

arising out of the arbitration agreement.

20. The decisions shown on behalf of the parties should be placed in the

background of the territorial issue urged. First, the decisions cited by

counsel for the respondent who asserts that the present application must be

filed elsewhere. There is no dispute in the present case that there is a valid

arbitration agreement between the parties or that the dispute is covered by

the said agreement. In Golden Edge Engg, the Learned Single Judge came to

the specific finding that the respondent did not have any office at 57 Park

Street, Kolkata for conferring jurisdiction on this Court to hear the

application under section 9 of the Act. In the appeal, the Division Bench

proceeded on the stand of the appellant (petitioner before the Single Bench)

that this Court did not have territorial jurisdiction to entertain the

application. The petition filed under section 9 in Sunil Hi-Tech admittedly did

not contain any averment that any part of the cause of action had arisen

within the jurisdiction of this Court and this was taken note of by the

Learned Judge before dismissing the matter. In Khazana Projects, the

Division Bench was considering a challenge to a decision of a court at Purba

Medinipur by which the appellant's application for setting aside of an award

had been dismissed. The Court reiterated the principle that parties cannot,

by consent, confer jurisdiction on a court which does not otherwise have 16

jurisdiction to entertain the matter. The Court also noted the contention of

the appellant that the courts in Delhi were vested with the necessary

jurisdiction since an execution application had been filed in Delhi, which

was also the stand of the respondent in that matter. Neither of the parties

herein have urged anything to the contrary to the principle laid down in

paragraph 3 of Hakam Singh, namely that parties cannot, by agreement,

confer jurisdiction on a court which the court does not possess under

section 20 of The Code of Civil Procedure, 1908.

21. BALCO and Indus Mobile Distribution Private Limited Vs. Datawind

Innovations Private Limited reported in (2017) 7 SCC 678 cited on behalf of

the petitioner proceed on the basis that the situs of arbitration will confer

jurisdiction on the court attached to the seat. Both BGS SGS SOMA and

Hindustan Construction Company are authorities for the proposition that the

seat of arbitration would determine the court which would be empowered to

receive, try and entertain the proceedings under the 1996 Act. The issue

before the Supreme Court in BGS was the significance of the seat of

arbitration for filing an application for setting aside of an award under

section 34 of the Act. Paragraph 59 of BGS clarified that an application

under section 9 may be preferred before a court in which part of the cause

of action arises in a case where the parties have not agreed on the seat of

arbitration and the earliest application made in such a case would then be

the exclusive court under section 42 which would thereafter have control

over the arbitral proceedings. This dictum was followed by the Supreme 17

Court in the recent decision in Hindustan Construction. Swastik Gases

construed the effect of a jurisdiction clause in the agreement and the use of

words such as "alone", "only", etc., for conferring exclusivity to one place in

exclusion of all other places. The Supreme Court held that by making a

provision that the agreement is subject to the jurisdiction of the courts at

one particular place, the parties have excluded the jurisdiction of other

courts by implication.

22. Debdas Routh has been relied on by both the parties. The Division

Bench of this Court construed several decisions passed by the Supreme

Court and the High Courts on the interpretation of section 2(1)(e) of the

1996 Act- "Court"- the focus being on that given by the Supreme Court in

Indus Mobile. The Division Bench was of the view that the operative words in

section 2(1)(e)(i), post-amendment, require the court/courts to be identified

on the basis of where a civil suit involving the same subject matter would

have been filed akin to place of suing under sections 15 to 20 of the CPC or

the Letters Patent in the case of a High Court exercising ordinary original

civil jurisdiction. The Division Bench recognised the importance of a forum

of choice provided the chosen court has the jurisdiction otherwise to receive

the civil action. The Court held that the extent of party autonomy is subject

to the rules of public policy as recognised in sections 15 to 20 of the CPC in

line with the principle elucidated in Hakam Singh vs. Gammon (India). After

construing the effect of party autonomy in the matter of choosing the seat of

arbitral reference as opposed to the forum of choice, the Court concluded 18

that the ratio in Indus Mobile has to be read down in the light of the dictum

in Hakam Singh, namely, that in a domestic arbitration when parties to an

arbitration agreement choose a seat for the arbitral reference as well as a

particular court at the same place as the seat, that court becomes the court

of exclusive jurisdiction for all application under Part I of the Act subject to

the caveat that the said court is otherwise clothed with the authority to

receive the action under the section 2(1)(e)(i) of the Act read with sections

15-20 of the CPC or Clause 12 of the Letters Patent as the case may be. On

consideration of the facts in that matter, the leave granted under Clause 12

in one of the appeals was revoked and the finance company which had filed

the application under section 9, was directed to carry it to the appropriate

court.

23. The principles enunciated in the decisions cited can be structured

thus; that an application under section 9 can be filed where a part of the

cause of action has arisen or where the seat of arbitration has been chosen

by the parties with the definitive caveat that the court determined, otherwise

has the jurisdiction to receive and adjudicate the disputes between the

parties. As discussed above, the petitioner has stated that part of the cause

of action as pleaded in paragraphs 2, 3, 9 and 43 of the application has

arisen within the jurisdiction of this court. It must also be borne in mind

that the parties have consented to the jurisdictional clause-18(k) as well as

the seat of arbitration as provided in clause 18(l). Both these clauses point

to "Kolkata". The objection is to the interpretation of the outer limits of the 19

city of Kolkata and whether the clause can be stretched to include the

greater city of Kolkata. Section 2(1)(e)(i) of the 1996 Act designates the

principal Civil Court of original jurisdiction in a district including the High

Court in exercise of its Ordinary Original Civil Jurisdiction having

jurisdiction to decide the questions forming the subject-matter of the

arbitration for the purpose of applications in matters of domestic arbitration

under Part I of the Act. The discussion would have been different had the

issue in the present case been one where the petitioner would be left to rely

only on the seat/venue of arbitration without the assistance of an exclusive

jurisdiction clause also pointing to Kolkata. Section 2(1)(e)(i) as well as the

effect of The Commercial Courts Act, 2015 have fortunately come to the aid

of the petitioner to anchor the proceedings to the High Court at Calcutta as

the only available court to decide the matter. The presumption of the

contract having been signed at the office of the petitioner situated within the

Ordinary Original Civil Jurisdiction of this Court also tilts in favour of the

petitioner.

24. Unlike a challenge made to the territorial jurisdiction of a court in a

suit where the court decides on the issue of rejection of a plaint on a

meaningful reading thereof, the assessment of the jurisdiction issue in an

application under section 9 of the 1996 Act stands on a different footing. An

application under section 9 for interim relief urged in the background of an

arbitration agreement between the parties is time-sensitive where the court

has to decide on a prima facie assessment of the materials available before 20

it. Hence, such applications are antithetical to leading evidence for deciding

the issue of jurisdiction. The Court must therefore proceed on a conjoint

reading of the averments, the documents and the strength of the rebuttal of

such by the party who asserts that the petition must be taken elsewhere.

The first principles of the burden of proof under The Indian Evidence Act,

1872, would also come into play in such cases; namely that whoever asserts

the existence of certain facts to a legal right, must prove that those facts

exist. In this case, since the respondent has asserted that this Court does

not have jurisdiction to entertain the application, the respondent must

discharge that burden by adducing evidence which would dislodge the

factual statements and evidence shown by the petitioner for conferring

jurisdiction on this Court to decide the matter. The respondent has not

been able to discharge that burden on the strength of the documents placed

before the court.

[

25. For the reasons as stated above, the preliminary objection of the

respondent with regard to the jurisdiction of this Court, fails. The

application under section 9 of the 1996 Act will proceed for hearing on

merits before an appropriate bench within a fortnight from date.

Urgent Photostat certified copy of this Judgment, if applied for, be

supplied to the parties upon compliance of all requisite formalities.

(MOUSHUMI BHATTACHARYA, J.)