1. Heard Sri G.C. Sinha, learned counsel for the applicant and Sri S.M. Singh Royekwar, learned counsel appearing for the opposite parties.
2. By means of the present application, the applicant has prayed for appointment of an Arbitrator to settle the dispute between the parties as referred to in the request letter dated 10.10.2017, a copy of which is Annexure-4 to the application.
3. The case set forth by the applicant is that the grandfather of the applicant had started the retail sale of petrol and petroleum products in Lucknow about 100 years back. The licence for dealing with the business was granted to the grandfather of the applicant and thereafter to the father of the applicant under the Indian Petroleum Act which was renewed from time to time. Earlier, the grandfather of the applicant was selling the petrol and petroleum products of the then company known as ''Burma Shell' and in the year 1969-71, the Government of India had taken over the entire business of petroleum products and established its own companies to run the business and consequent thereto the business of Burma Shell came under the Bharat Petroleum Corporation Limited i.e. the respondents (hereinafter referred to as the Corporation).It is also contended that the Corporation renewed the earlier licence and named it as ''Dispensing Pump and Selling Licence'. The licence given to the father of the applicant by the Corporation was renewed from time to time, last renewal having been done w.e.f. 4.6.2005 vide agreement dated 10.7.2008 for a period of 15 years as given to the firm namely M/s Sheo Narayan & Sons in which the applicant is a working partner. Copy of the licence/agreement is Annexure-1 to the application.
4. It is contended that on 27.4.2017, a police team raided the petrol pump of the applicant and after claiming short delivery from the dispensing unit, the authorities seized the dispensing unit and lodged a first information report and thereafter by means of an order dated 20.6.2017, the dealership of the applicant's company was terminated. A copy of the termination order dated 20.6.2017 is Annexure-3 to the application.
5. The applicant claims that as per the agreement between the applicant and the Corporation, there is a clause for arbitration to redress the dispute between the parties. The arbitration clause is contained in Clause 18(a) of the agreement dated 10.7.2008. Keeping in view the said arbitration clause, the applicant requested the Corporation to appoint an Arbitrator of independent status to settle the dispute between the parties and a question of determination was also forwarded to the Corporation on 10.10.2017, a copy of which is Annexure-4 to the application. The Corporation not having proceeded ahead for appointment of an Arbitrator, consequently the present application has been filed for appointment of Arbitrator.
6. A counter affidavit has been filed by the Corporation in which a preliminary objection has been taken pertaining to the jurisdiction of this Court to entertain and decide the present application.
7. Sri S.M. Singh, Royekwar, learned counsel for the Corporation has argued that in terms of the agreement between the parties, it was specifically provided as per Clause 18(g), 19 and 20 that the parties had agreed that the Courts in the city of Kanpur alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under the agreement. Further, in case of any dispute or suit action or proceeding arising out of the agreement, the dispute or suit action or proceeding shall be instituted or adjudicated upon or decided in Kanpur and that the agreement shall be deemed to have been made in Kanpur. Thus placing reliance on the aforesaid clauses of the agreement, it is contended that once all claims etc. are to be instituted at Kanpur, consequently even the present application that has been filed in terms of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) would not be maintainable before this Court sitting at Lucknow, rather as Kanpur falls within the jurisdiction of this Court at Allahabad, as such the application for appointment of Arbitrator would only be maintainable at Allahabad. In this regard, learned counsel for the Corporation has placed reliance on the judgments of Hon'ble Supreme Court in the case of Swastik Gases Private Limited vs. Indian Oil Corporation Limited reported in (2013)9 SCC 32, Hakam Singh vs. M/s. Gammon (India) Limited reported in 1971(1) SCC 286 and a judgment of the Madhya Pradesh High Court reported in 2016 SCC OnLine MP 1613 In re: Star Mineral Resources Pvt. Ltd. vs. Madhya Pradesh State Mining Corporation Ltd.
8. On the other hand, Sri G.C. Sinha, learned counsel for the applicant, while replying to the preliminary objection raised by the learned counsel for the Corporation, has contended that once the petrol pump is itself situated at Lucknow and the cause of action has arisen to the applicant to prefer the instant application for appointment of Arbitrator on account of termination of dealership vide order dated 20.6.2017 and the consequences of the said termination order has fallen on the applicant at Lucknow, consequently it is this Court at Lucknow which would have jurisdiction to entertain and decide this application under the provisions of 1996 Act. It is also argued that no cause of action has arisen at Kanpur and consequently even if as per the agreement it is provided that only the Courts at Kanpur have jurisdiction to entertain and decide the dispute or suit action etc., as such, mere mentioning in the agreement that only the Courts at Kanpur would have jurisdiction, would not render the jurisdiction at that place at which no cause of action has arisen. Accordingly, once the Courts at Kanpur would have no jurisdiction, the present application would be maintainable before this Court at Lucknow. In this regard, reliance has been placed by the learned counsel for the applicant on the judgment of the Rajasthan High Court in the case of HCL Infosystems Limited, New Delhi vs. Compucom Software Limited, Jaipur reported in AIR 2017 (NOC) 1074.
9. Heard on the preliminary objection raised by the learned counsel for the Corporation.
10. The undisputed facts arising in the instant application are that the parties have bound themselves in terms of the agreement dated 10.7.2008 entered into between the applicant and the respondents, a copy of which is Annexure-1 to the application. Clause 18(a) of the said agreement contains the arbitration clause which for the sake of convenience is reproduced below:-
"18(a). Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter-claim or set off of the Company against the Licensee or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this agreement shall be referred to the Sole Arbitration of the Director (Marketing) of the Company or of some Officer of the Company who may be nominated by the Director (Marketing). The licensee will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the Company or that he has dealt with the matters to which the contract relates or that in the course of his duties as an Officer of the Company, he had expressed view on all or any other matters in dispute or differences. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, the Director (Marketing) as aforesaid at the time of such transfer, vacation of office or inability to act may in the discretion of the Director (Marketing) designate another person to act as arbitrator in accordance with the terms of the agreement to the end and intent that the original Arbitrator shall be entitled to continue the arbitration proceedings notwithstanding his transfer or vacation of office as an officer of the Company if the Director (Marketing) does not designate another person to act as arbitrator on such transfer, vacation of office or inability of original arbitrator. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director (Marketing) of the Company or a person nominated by such Director (Marketing) as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration & Conciliation Act 1996 or any statutory modification or re-enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause.
11. Clauses 18(g), 19 and 20 of the agreement which pertain to the jurisdiction of the Courts are also reproduced below:-
"18(g). The parties hereby agree that the courts in the city of Kanpur alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under this agreement and any award or awards made by the Sole Arbitrator hereunder shall be filed (if so required) in the concerned courts in the city of Kanpur only.
19. It is hereby expressly agreed and declared that this Agreement shall be deemed to have been made in Kanpur (name of the city) and that any dispute or suit action or proceeding arising out of this agreement or breach thereof or in respect of any matter or thing herein contained and any claim by either party against the other shall subject to the rights conferred upon the company under clause 15 of this agreement to evict the licensees and/or servants and agents be instituted or adjudicated upon or decided in the first instance by the appropriate court in Kanpur (name of the city).
20. It is hereby expressly agreed and declared that this agreement shall be deemed to have been made in Kanpur (name of the city) and that any dispute or suit action or proceeding arising out of this agreement or breach thereof or in respect of any matter or thing herein contained any claim by either party against the other shall be instituted or adjudicated upon or decided in the first instance by the appropriate court in Kanpur (name of the city).
12. Apart from the deeming clause of the agreement deeming the agreement to have been made in Kanpur as per Clause 20, the agreement has also been witnessed and signed at Kanpur and has been stamped at Kanpur Nagar as per the stamp visible on the agreement. Upon a query of this Court as to why the agreement was executed at Kanpur despite petrol pump of the applicant situate at Lucknow, a supplementary affidavit dated 14.8.2018 was filed by the Corporation duly indicating that as per the organisational structure of the Corporation, all licences for retail outlets, known as Dispensing Pump and Selling License are issued by the Territory Manager who exercise supervisory control over the functioning of the retail outlets falling under his territory. At the material point of time in 2008, when the applicant obtained the licence for his retail outlet at Lucknow, the concerned territory office was at Kanpur and the Territory Manager (Retail) also used to sit at Kanpur and thus the agreement was also executed at Kanpur. The Kanpur territory was catering to 13 districts which were having 267 retail outlets including the retail outlet of the applicant at Lucknow and that the Lucknow district was managed by the Kanpur Territory office. It is contended that it is only recently in May, 2018 that a territory office at Lucknow has been established but as the present dispute arose before establishment of territory office at Lucknow, hence the office at Lucknow would have no role in the matter. It is also contended that the termination order dated 20.6.2017 (Annexure-3 to the application) pertaining to the termination of dealership of the applicant has been issued by the Territory Manager (Retail) at Kanpur who is the competent authority and consequently the cause of action has arisen at Kanpur. Thus it is argued by Sri Royekwar that the cause of action has arisen at two places, namely, at Lucknow where the dispensing unit of the applicant is situate as well as at Kanpur from where the termination order dated 20.6.2017 has been issued. However, in terms of Clause 18(g), 19 and 20 of the agreement, the parties have agreed amongst themselves that all disputes between the parties shall be subject to jurisdiction of the Courts at Kanpur. Further as per Clause 19 of the agreement, it is clearly provided that any dispute or proceeding arising out of the agreement i.e. the agreement dated 10.7.2008 shall only be instituted in Kanpur. Thus, it is argued that the parties have consciously entered into the agreement for settling all their disputes at Kanpur and the dispute has also arisen from the said agreement and the arbitration clause is also contained in the agreement.
13. Having heard the learned counsels for the contesting parties and having perused the records, the question, which is to be considered by this Court, is the jurisdiction of this Court to entertain the present application taking into consideration the agreement entered into between the applicant and the respondents for settling the disputes at Kanpur.
14. The question pertaining to jurisdiction of the High Court-whether at Lucknow or at Allahabad is no longer res integra having been settled beyond doubt by the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Nasiruddin vs. State Transport Appellate Tribunal reported in AIR 1976 SC 331. The Hon'ble Supreme Court, while adjudicating upon the issue as to the question framed by a Full Bench of this Court which, so far as the present controversy is concerned, would be the 4th question framed by the Full Bench which was as to what is the meaning of expression "in respect of cases arising in such areas in Oudh" used in the first proviso to Article 14 of the High Court (Amalgamation) Order, 1948. The Hon'ble Supreme Court, while considering the said question, held that the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. For the sake of convenience, the relevant observations of the Hon'ble Supreme Court are being reproduced below:-
".....Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.
Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh areas.
....."
15. When the facts of the instant case are tested on the touchstone of the law laid down by the Hon'ble Supreme Court in the case of Nasiruddin (supra), what this Court finds is that it is the cause of action which would govern the filing of a petition before the Lucknow Bench or the Allahabad Bench. In the instant case the dealership of the applicant is situate at Lucknow while the cancellation order has been passed at Kanpur. Thus cause of action has arisen at both the places inasmuch as the consequence of cancellation/termination order of the dealership passed at Kanpur has fallen upon the applicant at Lucknow. In case there was no agreement dated 10.7.2008 amongst the parties then the applicant had a choice of instituting the proceeding in terms of the arbitration clause contained in the agreement either at Lucknow or at Allahabad. However, taking into consideration the agreement dated 10.7.2008 whereby both the parties i.e. applicant and the respondents have bound themselves/agreed amongst themselves that it is the courts in the city of Kanpur alone which shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under the said agreement and that any dispute or suit action or proceeding arising out of this agreement or breach thereof shall be instituted or adjudicated upon or decided in the first instance by the appropriate court in Kanpur, meaning thereby that with respect to any cause of action, in terms of the agreement, the parties have bound themselves for instituting such claim for adjudication at Kanpur and thus it is the High Court at Allahabad which would have jurisdiction to entertain and decide the present arbitration application, as Kanpur falls within the jurisdiction of Allahabad High Court.
16. In this regard, this Court may also refer to the judgment of the Hon'ble Supreme Court in the case of Swastik Gases Private Limited (supra). In the said case before the Hon'ble Supreme Court was a matter in which the IBP Company Limited, which stood merged with the Indian Oil Corporation Limited (IOCL) and which was engaged in the business of petroleum products had appointed Swastik Gases as its consignment agent. Swastik Gases had its registered office at Jaipur in Rajasthan. An agreement was entered between the Swastik Gases and IOCL appointing Swastik Gases as its consignment agent for marketing lubricants at Jaipur, Rajasthan. On account of a dispute having arisen between them, Swastik Gases sent a notice to IOCL invoking the arbitration clause. The IOCL did not nominate its arbitrator which led the Swastik Gases to prefer an application under Section 11 of the 1996 Act in the Rajasthan High Court for appointment of Arbitrator. The IOCL contested the application by raising a plea of territorial jurisdiction in Rajasthan High Court by taking a plea in terms of the agreement that the agreement had been made subject to jurisdiction of the courts at Kolkata and therefore, the Rajasthan High Court lacked territorial jurisdiction in dealing with the said application under Section 11 of the 1996 Act. The Rajasthan High Court, after considering various judgments of the Hon'ble Supreme Court, dismissed the application on the ground of not having territorial jurisdiction and hence the civil appeal was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court, after considering the agreement entered into between the Swastik Gases and the IOCL and considering that part of cause of action had arisen at Kolkata held that the intention of the parties was clear and unambiguous that the courts at Kolkata alone shall have jurisdiction and accordingly upheld the judgment of the Rajasthan High Court leaving it open to Swastik Gases to pursue its remedy before the Kolkata High Court. For the sake of convenience, relevant paragraphs of the said judgment are reproduced below:-
"28. Section 11(12)(b) of the 1996 Act provides that where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an arbitration other than the international commercial 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 Section 2(1)(e) is situate, and where the High Court itself is the court referred to in clause (e) of sub- section (1) of Section 2, to the Chief Justice of that High Court. Clause (e) of sub-section (1) of Section 2 defines ''Court' which means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary 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.
29. When it comes to the question of territorial jurisdiction relating to the application under Section 11, besides the above legislative provisions, Section 20 of the Code is relevant. Section 20 of the Code states that subject to the limitations provided in Sections 15 to 19, 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 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.
30. The explanation appended to Section 20 clarifies that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded?
32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like ''alone', ''only', ''exclusive' or ''exclusive jurisdiction' have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement - is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner."
17. Likewise, this Court may also refer to the judgment passed by the Hon'ble Supreme Court in the case of Hakam Singh (supra) wherein the Hon'ble Supreme Court while considering the provisions of Section 41 of the Arbitration Act, 1940 has held as under:-
"3. Section 41 of the Arbitration Act 1940 provides in so far as it is relevant :
"Subject to the provisions of this Act and of rules made thereunder
(a) the provisions of the Code of Civil procedure, 1908, shall apply to all proceedings before the court, and to all appeals under this Act."
The Code of Civil Procedure in its entirety applies to proceedings under the Arbitration Act. The jurisdiction of the Courts under the Arbitration Act to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By cl. 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay. In any event the, respondent have their principal office in Bombay and they were liable in respect of a cause of action- arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene s. 28 of the Contract Act."
18. Similarly, the Madhya Pradesh High Court in the case of Star Mineral Resources Pvt. Ltd. (supra) with regard to a similarly controversy of an application under the provisions of Section 11(6) of the 1996 Act to be filed either at the Gwalior Bench or the Bhopal Bench of the High Court of Madhya Pradesh in terms of the agreement, after placing reliance on the judgment of the Hon'ble Supreme Court in the case of Swastik Gases Private Limited (supra), has held as under:-
"3. Shri Sameer Kumar Shrivastava, learned counsel for the petitioner, contends that true it is that the agreement was entered at Bhopal and clause 9 thereof provides for jurisdiction of the Bhopal in respect of any dispute between the parties, but as the subject matter of the agreement related to mining operation for the territories falling under the territorial jurisdiction of the Bench at Gwalior, therefore, cause of action for filing application under Section 11 (6) of the Act has arisen. Therefore, in view of Section 20(c) of CPC, this Court has jurisdiction for entertaining the application for appointment of arbitration tribunal under Section 11 (6) of the Act. That apart, application under Section 11 (6) of the Act cannot be filed at Bhopal, as Section 11 of the Act authorizes the Chief Justice or his designate for appointment of an A.C. No.10/2015 (Star Mineral Resources Pvt. Ltd. vs. Madhya Pradesh State Mining Corporation Ltd.) arbitrator under Section 11 (6) of the Act.
4. Having heard learned counsel for the parties, in the light of the law laid down by the Hon'ble Supreme Court in Swastik Gases Private Limited (supra), in the opinion of this Court, clause 9 of the agreement, which provides that all disputes shall be subject to the jurisdiction of Bhopal, is a valid clause. As Bhopal District falls within the territorial jurisdiction of the Principal Seat of High Court of M.P. at Jabalpur, therefore, the application under Section 11 (6) of the Act though not maintainable at Bhopal, but the same, in the opinion of this Court, shall be maintainable at the Principal Seat at Jabalpur and not at Bench Gwalior. Incidentally it may also be taken note of that earlier the petitioner had approached the Principal Seat at Jabalpur for redressal of his grievance against respondent under Article 226 of the Constitution of India vide writ petition No.2047/2015 and the same was heard and disposed of. Accordingly, the instant Arbitration Case is found to be not maintainable. Hence, it is dismissed. However, liberty is granted to the petitioner to approach the Principal Seat at Jabalpur."
19. When the facts of the instant case are tested on the touchstone of the law laid down by the Hon'ble Supreme Court in the case of Swastik Gases Private Limited and Hakam Singh (supra), what this Court finds is that the parties have consciously bound themselves in terms of the agreement for invoking the jurisdiction of the courts at Kanpur. The cause of action in the instant case has arisen both at Lucknow and at Kanpur. However, the parties have consciously bound themselves in terms of the agreement for preferring any dispute or suit action or proceeding in the courts at Kanpur, meaning thereby that for the cause of action the applicant would have to file the proceeding in the Allahabad High Court. Consequently, taking into consideration the agreement dated 10.7.2008, it is apparent that this Court would not have jurisdiction to entertain the present application filed under Section 11 of the 1996 Act and it would be open for the applicant to pursue his remedy before the High Court at Allahabad.
20. So far as the judgment cited on behalf of the applicant of the Rajasthan High Court in the case of HCL Infosystems Limited (supra) is concerned, it has been argued that the Rajasthan High Court, after considering the judgment in the case of Swastik Gases (supra), has distinguished the same by considering the observations made in paragraph 31 of the judgment in Swastik Gases (supra) wherein it had not been disputed by Swastik Gases that part of cause of action had arisen at Kolkata by contending that in terms of the agreement in the case of HCL, it was only the courts at Delhi which had jurisdiction. The Rajasthan High Court, thus, held that no cause of action had arisen so as to maintain an application under Section 11 at Delhi inasmuch as the entire cause of action had arisen in Rajasthan. The said case is clearly distinguishable inasmuch as in the instant case, this Court has already considered the fact that the termination order of the dealership of the applicant was passed at Kanpur though the dealership of the applicant is situated at Lucknow and as such the cause of action had arisen at both the place namely at Kanpur and Lucknow and that as the parties have agreed amongst themselves and made themselves subject to jurisdiction of the Kanpur courts, consequently for the said cause of action, which has also arisen at Kanpur, the applicant would have to approach the Allahabad High Court. Hence the judgment in the case of HCL Infosystems Limited (supra) shall not be applicable in the facts of the instant case.
21. Keeping in view the aforesaid discussions, this Court holds that in terms of Clause 18(g), 19 and 20 of the agreement, which provide that all disputes shall be subject to jurisdiction of Kanpur courts and as Kanpur falls within the territorial jurisdiction of the Allahabad High Court, therefore, present application under Section 11 of the 1996 Act, is not maintainable before this Court here at Lucknow.
22. Accordingly, the preliminary objection raised by the respondent is upheld. The arbitration application is dismissed. However, liberty is granted to the applicant to approach the Allahabad High Court.
Order Date :- September 28, 2018 Rakesh (Abdul Moin, J.)