At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE P.K. BAHRI
For the Appearing Parties: Arun Mohan, H. Devarajan, J. Lal, Manish Kochhar, Advocates.
P. K. Bahri, J.
(1) IN this petition filed under Section 8 of the Arbitration Act seeking removal of respondent 2 and 3 as arbitrators and for appointing fresh arbitrator.
Following issue was framed: ' Whether this Court has jurisdiction to try this case?
(2) THE undisputed facts of the case in brief, are that vide agreement dated April 1, 1976 entered into between. the petitioner and respondent No. 1. the petitioner was appointed as intending agent respondent No. 1 and was entitled to commission @31/2% on The aggregate amount of basic price of Shangrila Biscuits realised by the company for all the directed indirect sales of Shangrila Biscuits effected by the Indenting Agent within the territories which are detailed out in clause 3 of the agreement. The claims set up by the petitioner in which reference to the arbitrator was sought was with regard to certain sales made by the respondent No. 1 in those territories which resulted in depriving the petitioner of his agreed commission. The agreement provided that only courts at Bombay shall have jurisdiction to entertain and try the disputes which may arise between the company and the intending Agent to the exclusion of all courts at other places and clause 16 was the arbitration clause which also provided that the arbitration shall take place at Bombay only and at no to, her place. Bx R2 (collectively) are the copies of the addendum dated August 5, 1977, and September 15, 1977, which detail out modes of supplies to be made by respondent No. 1. to the petitioner. However, these addendums clearly mention that other terms and conditions of the original agreement will remain un-charged. If the contents of the agreement and the contents of the addendum are kept in view it is evident that Delhi Courts have no jurisdiction to try the matter. However, counsel for the petitioner has vehemently argued that vide invoces Ex. P1 to P2 certain supplies have been made to the petitioner which incorporated the clause 15 to the effect that Delhi Courts alone will have the jurisdiction and the said clause would amount to modifying the original. terms of the agreement with regard to the jurisdiction of the Bombay Court. There appears to be a fallacy in this argument. The petitioner has been appointed as an Intending Agent and was entitled to only get the commission regarding the supplies which may be made by respondent No. I in respect of the said territories mentioned in the agreement. It is evident if the petitioner as Indenting Agent has placed certain orders on respondent No. 1 and supplies have been made by respondent No. 1 to various customers on the basis of those orders, the petitioner would become entitled to the commission on the basis of the said supplies made. However, where the respondent No. 1 has made supplies not through the petitioner it is the claim of the petitioner that he is also entitled to have the commission on the amounts realised by respondent No. 1 on the basis of the said supplies made in the said terrioriecs. Obviously the petitioner has to take resort to the provisions of the original agreement in order to succeed in his claim, if any. It is also to be kept in view that the copies of the invoices Ex. PI and P2 clearly indicate that supplies have been made to the petitioner himself. The petitioner as per these invoices is the purchaser of the goods. Obviously he has not acted as Indenting Agent for the purposes of these supplies made to himself. Be that as it may, Clause 15 appearing in these two invoices which is to the following effect : "delhi Courts alone will have jurisdiction in respect of disputes arising with regard to goods supplied and payments are agreed to be made in Delhi" clearly show that if any disputes arise with regard to supplies made as per these invoices only then Delhi Courts will have jurisdiction. This clause does not in any manner supersede or change the terms of the original agreement by which the petitioner has been appointed at Intending Agent. Hence, the petitioner and respondent No. I would continue to be bound by the terms contained in the original agreement which clearly contemplated that Bombay Courts alone would have jurisdiction in respect of the disputes arising out of the said agreement. It is not the case of the petitioner that the disputes which are sought to be referred for the arbitration arise out of the invoices of P1 and P2. It is admitted that the disputes sought to be referred to arbitration arise out of the original contract between the parties. So the terms of the said contract remain enforceable.
(3) HENCE, I
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hold that Delhi Courts have no jurisdiction to try this suit. The issue is decided against the petitioner. (4) COUNSEL for the petitioner prays that a date may be fixed before the Prothonotary and Senior Master, Bombay High Court, on original side for appearance of the parties where he would present the petition. I order that the petition be returned to the petitioner for being presented to the Bombay High Court and the parties are directed to appear before the said authority on January 11, 1991.