T.P.S.Chawala, J. - (1.) -
(2.) PHONENIX Cotton Tape Factory, Delhi, the name and style in which, at all material times, a Mr. S. Aggarwal carried on business as sole proprietor. He is the petitioner in this case. In 1963 he submitted a tender to the Director General of Supplies and Disposals at the latter's office in Bombay for certain goods required by the Union of India. The tender was accepted and a letter of acceptance was issued. In the contract operative between the parties there was an arbitration clause which provided that disputes arising under the contract would be "referred tu the sole arbitration of the Director General of Supplies and Disposals or of some other person appointed by him." Disputes did arise, and in 1967 an arbitrator was appointed- It appears that the Arbitrator originally appointed was replaced by others, but nothing turns on that. All of them wished to hold the proceedings in Bombay. The petitioner wanted the proceedings to be held in Delhi. Consequently, he applied a number of times to the arbitrators for change of the venue from Bombay to Delhi. His applications were invariably rejected. Mr. P. H. Ramchandani was the Arbitrator in 1970. He issued notices requiring the parties to appear before him in Bombay on 4th May 1970. On that day no one appeared before him on behalf of the petitioner. Previously, Mr. Ramchandani, also, had rejected an application by the petitioner for change of the venue. An application dated 3rd February 1970 filed by the petitioner, for review of the earlier order, was pending on 4th May 1970. Mr. Ramchandani found that there were no grounds for reviewing his earlier order, and considered the application for review merely "another instance of their Clhe petitioner's) dilatory tactics". In the last paragraph of his order corded on 4th May he said : "This is an old case which was initiated in July 1967. Thus the case has been hanging on for the last about 3 years. Therefore, having due regard to all aspects of the matter, I am of the view that it is apparent that the claimant is not interested in going on with this matter. In view of this, the claimant's claims are dismissed for non-prosecution.". A copy of this order was sent to the petitioner by the Arbitrator under cover of a letter dated 7th May 1970. No award was made by the Arbitrator. Soon afterwards the petitioner moved an application under Sections 14 and 17 of the Arbitration Act 1940 (Suit No. 191-A of 1970) praying that the Arbitrator be directed to file his award. The Union of India opposed the application on two main grounds : (i) that this court had no territorial jurisdiction to try the application, and (ii) that the application was not maintainable as the Arbitrator had not made any award. At the hearing it was conceded on behalf of the petitioner that the order dismissing his claim for non-prosecution made by the Arbitrator was not an award. So by an order made on 13th January 1972 the application was dismissed on that ground and the objection as to territorial jurisdiction was not decided. Whilst that application was still perding, the petitioner moved a petition under sections 5 and 12(2)(b) of the Arbitration Act. That is the petition now before me. The respondents are the Union of India and Mr. P. H. Ramchandani, the Arbitrator. In this petition it is alleged that the Arbitrator has misconducted himself and the proceedings in that he has failed to deliver an award as he was bound to do, and has instead dismissed the claim of the petitioner for non-prosecution which he had no power tc do. Leave to revoke the authority of the arbitrator is prayed for, and also an order that the arbitration agreement shall cease to have effect with respect to the differences referred. Apart from joining issue on the merits, the Union has once again raised the point that this court lias no territorial jurisdiction to try the petition. According, the following issues were framed: 1. Whether the Delhi Court has jurisdiction to try 'the application? 2. Whether the arbitrator was empowered to dismiss the claim of the petitioner for non-prosecution? 3. Whether the arbitrator was bound to make the award in the case ? 4. Whether the arbitrator has misconducted himself and the proceedings ? 5. Whether the petitioner has a cause of action ? 6. Whether the authority of the arbitrator is liable to be revoked on the facts and circumstances of the case ? 7. Relief. Territorial jurisdiction is sought to be founded in this court on the basis of an alleged term in the contract that only the courts at H Delhi would have jurisdiction; and, alternatively, on a term that the goods would be delivered in Delhi. As to the first limb of the argument, it is not without significance that in its reply to the petition the Union has not specifically controverted the allegation of the petitioner that the contract contained a term vesting exclusive territorial jurisdiction in the courts at Delhi. There is, of course, a general denial in the form of an objection as to territorial jurisdiction. In amplification of this plea the Union has said that the contract was concluded in Boombay as the tender was submitted to and the acceptance issued from the office of the Director General of Supplies and Disposals, Bombay; and, also, that the arbitration proceedings were held in Bombay. Thus, it is contended, that only the courts at Bombay have jurisdiction. But, the allegation in the petition that there was a term in the contract that the courts in Delhi alone would have jurisdiction elicited no reply. I make that observation as of relevance to the inquiry whether there. was in fact such a term or not. The tender comprised a whole set of documents variously entitled. These very documents coupled with acceptance ultimately became the contract between the parties. Some preliminary matters need to be noticed. Clause 7 of the "Schedule to Acceptance of Tender" provides that the general conditions of contract D.G.S.andD-68, as amended up-to-date, shall apply. Clause 11 (a) reads : "Terms of Delivery- F.O.R. Delhi." That accords entirely with what was written in hand by or on behalf of the petitioner in another document entitled "Schedule to Tender," not to be confused with the "Schedule to Acceptance of Tender". From-which it is reasonable to infer that what was written by or on behalf of the petitioner in the tender documents was taken note of by the officers of the Union and incorporated in the contract. After the specification of goods in the "Schedule to Tender" there are three notes marked N. B. The third of these enjoins : "Tenders are requested to complete in full the questionaire 1 to 14 on the reverse of D.G.S.and D.-100B with particular reference to Q. No. 1 failing which their quotations likely to be ignored. Deviation, if any, should be clearly indicated." The form D.G.S.and D-100-B referred to in this note is the "Schedule to Tender" itself. Yet another document is entitled "Special Instructions attached to Invitation to Tender". Paragraph 4 of these instructions is most important. It reads : "4. Jurisdiction : All questions, disputes or differences arising under, out of or in connection with the contract, if concluded, shall be subject to the exclusive Jurisdiction of the court within the local limits of whose Jurisdiction the place from which the acceptance of tender is issued is situated". Just where this paragraph ends, the words "At Delhi" have been written in ink. The petitioner maintains they were written before the tender was submitted. No suggestion has been made on behalf of the Union that the petitioner's allegation is false- Nor has any evidence been led or sought to be led to falsify that allegation. I must, therefore, proceed on the assumption that the words "At Delhi" existed in the tender at the time that it was submitted. It was argued for the petitioner that by inserting those words he had indicated that the courts at Delhi would have exclusive jurisdiction in matters arising under, out of or in connection with the contract. Since the deviation which he had thus proposed was not rejected by the Union, he contends, it became a term of the contract. In support of this argument I was referred to the definition of "the contract" in clause l(i)(c) of D.G.S.andD.-68 which expressly includes "the instructions to tenderers". On this reasoning I was invited to hold that the parties were ad idem that the courts in Delhi should have exclusive jurisdiction.
(3.) IT seems to me that the crucial question is what, if any, meaning is to be attached to paragraph 4 of the "Special Instructions" qualified by the words "At Delhi" appended thereto in hand. IT is a well-known " principle of construction of documents that hand-written or type-written matter is to be given preference over what is printed : See Messrs Sha Moolchand Kesarimull by its partner. Presumably that is for the reason that what is inserted in hand or type-written in a printed form may be taken to show a particular application of mind, whereas it is not always sure that the printed matter was fully read and understood by the parties, more especially where, as here, the document is unwieldy and complicated. I perceive no reason why that principle should not apply here. Although the two words-"At Delhi"-written after paragraph 4 of the Instructions do not in themselves make even a complete senfence and are unir.can ingful in isolation, I think, there is no real difficulty in comprehending what they were intended to convey juxtaposed as they are to that paragraph. Obviously, the person who wrote those words meant that paragraph 4 was to have effect subject to this that exclusive jurisdiction was to vest in the courts at Delhi and not in the court determined in accordance with the printed words. Any person with a modicum of intelligence reading that paragraph of the instructions alongwith the hand-written words would be led to that conclusion. " At Delhi" is the elliptical answer to a supposed question, which courts would have jurisdiction? That is the question which would naturally arise in the mind of a tenderer reading paragraph 4. Hence that was the right place to indicate the deviation. Counsel for the Union was unable to suggest a more appropriate place for doing so in the tender documents- I think, the officers of the Union well understood what the hand-written words implied, notwithstanding the laconic style. That explains their inability to repudiate the allegation of the petitioner that the contract contained such a clause. If any doubt existed in their minds, they would have questioned the petitioner. Nothing of that kind ever happened. It was vaguely suggested in the discussion that perhaps the officers of the Union had not noticed the handwritten words and had allowed them to pass muster unwittingly. There is no plea to that effect, let alone evidence; and, certainly, I can make no such assumption. Reading paragraph 4 of the Instructions in this way, I have reached the conclusion that on its true construction it embodies a term in the contract that the courts in Delhi would have exclusive territorial jurisdiction. If the view that I have expressed be mistaken then the meaning of that paragraph of the Instructions has been rendered uncertain by the hand-written words. It is impossible to know what the parties meant. Thus, that printed paragraph, on the contents of which the Union itself relies for founding jurisdiction in Bombay, becomes void for uncertainty and of no effect. That puts it out of the way. So far as I am aware, there is no principle of law by which the hand-written words can be entirely ignored. On the possibility that paragraph 4 is void for uncertainty, territorial jurisdiction must be determined in accordance with the principles which prevail when there is no special term in the contract. That leads to the other limb of the argument for the petitioner. Counsel for the petitioner urged that the courts in Delhi would still have jurisdiction because the term of delivery was "F.O.R. Delhi", which signifies that delivery was to be given at Delhi.He cited Gappulal s/o Chandarlal v. H Kanderwal Brothers, Metal Deptt., AIR 1955 Madhya Bharat 96(4) and G. Venkatesha Bhat and others v. M/s. Kan-ilapet Motilal and others, AIR 1957 Madras 201(5) in support of his proposition. Those cases do establish his contention. Recently, Mr. Justice V. D. Misra, in a case entitled Basheshar Nath and Co. v. Union of India Suit No. 250(A) of 1969 decided on 6th September 1973, has taken similar view. In that case, too, an objection to territorial jurisdiction was raised, and it was held that in view of the term of delivery-"F.O.R. New Delhi"- the place of delivery must be taken to be Delhi and. in consequence, the court at Delhi had jurisdiction. ;