BALAJI COKE INDUSTRY PVT. LTD. versus M/S MM BHAGWATI COKE (GUJ) PVT. LTD.

Citation: [2009] 14 S.C.R. 241 · Decided: 09-09-2009 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Case Allowed

Judgment (excerpt)

[2009) 14 (ADDL.) S.C.R. 241 
... ~ 
BALAJI COKE INDUSTRY PVT. LTD. 
A 
v. 
M/S MM BHAGWATI COKE (GUJ) PVT. LTD. 
(Transfer Petition (Civil) No. 78 of 2009) . 
SEPTEMBER 9, 2009 
B 
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] 
.Ji 
Constitution of India, 1950 - Article 139A(2) - Transfer 
petition - High Seas Sale Agreement between parties -
Express clause therein that sale contract subject to Kolkata c 
jurisdiction - Dispute between parties - Application u/s. 9 of 
the Act before Bhavnagar court, Gujarat by respondent since 
part of the cause of action purportedly arose in Bhavnagar -
~ Appellant seeking transfer of application pending in 
Bhavnagar court to Calcutta High Court - Held: Transfer D 
petition to be allowed - Parties knowingly and voluntarily 
agreed that sale agreement subject to Kolkata jurisdiction -
E.ven if courts in Gujarat also had jurisdiction to entertain 
action arising out of agreement, disputes decided in Kolkata 
by Arbitrator in Kolkata will be valid - Arbitration and E 
Conciliation Act, 1996 - s. 9 - Code of Civil Procedure, 1908 
_ 
_...... 
-s. 25. 
, . 
The appellant and the respondent- company entered 
into a specific High Seas Sale Agreement. It was 
F 
specifically provided in the agreement that the sale 
agreement would be subject to Kolkata jurisdiction. 
Dispute arose between the parties. Respondent filed 
petition u/s. 9 of the Arbitration and Conciliation Act; 1996 
before the Principal Civil Judge, Bhavnagar (Gujarat) 
G 
since a part of the cause of action purportedly arose 
-+ 
within the jurisdiction of the Bhavnagar Court. Hence, the . 
present transfer petition by the appellant seeking transfer 
of the arbitration application pending in the court of the 
241 
H 
242 
SUPREME COURT REPORTS [2009) 14 (ADDL.) $.C.R. 
' ' 
A 
~~-
Principal Civil Judge, Bhavnagar (Gujarat) to the Calcutta 
j 
High Court. 
! 
Allowing the transfer petition, the Court 
B 
HELD: 1.1. In the instant case, the parties had 
I 
knowingly and voluntarily agreed that the contract 
t 
arising out of the High Seas Sale Agreement would be 
~ 
subject to Kolkata jurisdiction and even if the courts in 
,IL 
Gujarat also had jurisdiction to entertain any action 
c 
arising out of the agreement, the agreement to have the 
disputes decided in Kolkata by an Arbitrator in Kolkata, 
West Bengal, was valid and the respondent-company 
had wrongly chosen to file its application· under section 
9 of the Arbitration and Conciliation Act before the 
Bhavnagar Court (Gujarat) in violation of such agreement. 
)--
D [Para 18] [251-F-G] 
1.2. It is accepted that the invoc:ation of the 
jurisdiction of the Principal Senior Civil Judge, 
~ 
Bhavnagar, Gujarat, was contrary to the express terms 
I 
E of the High Seas Sale Agreement; that the respondent 
had deliberately, with mala fide intention, failed to 
,+...-
·' 
disclose the specific High Seas Sale Agree·ment in the 
~ 
application u/s. 9 of the Act and the agreement to sell was 
disclosed; that when the venue for arbitration had been 
F expressly agreed to between the parties to be Kolk~~' 
L
West Bengal, and also having regard to the fact that the 
Arbitrator to be appointed was to be a person based in 
Kolkata, it is only the Courts at Kolkata which had both 
pecuniary and territorial jurisdiction to entertain all 
G applications in con·nection with the High Seas Sale 
j-
Agreement; that the Principal Senior Civil Judge at 
-+-
Bhavnagar (Gujarat), neither has the territorial nor 
,,. 
pecuniary jurisdiction to entertain or determine any 
' •' 
dispute between the parties arising out of the agreement; 
H 
.. ,...4. 
BALAJI COKE INDUSTRY PVT. LTD. v. MAA BHAGWATI 243 
COKE (GUJ) PVT. LTD. 
that no part of the cause of action had arisen within the 
A 
jurisdiction of the Bhavnagar Court in Gujarat so as to 
enable it to assume jurisdiction in respect of the 
transaction arrived at in Kolkata and the parties had 
agreed under the agreement clause that the sale contract 
would be subject to Kolkata jurisdiction; and that it was s 
in such circumstances the petitioner was impelled to file 
the transfer petition for transfer of the pending case in the 
Bhavnagar Court to the Calcutta High Court. It is directed 
that the Arbitration Application pending in the Court of 
Principal Civil Judge, Bhavnagar (Gujarat) be transferred c 
to the Calcutta High Court. [Paras 7, 8, 9, 11 and 19] [246-
F-G· 247-A-D· 248-E-F· 252-B] 
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A.B.C. Laminart (P) Ltd. vs. A.P. Agencies 1989 (

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