- (1.) This appeal is at the instance of a defendant in a suit for declaration and consequential relief and is directed against an order dated June 30, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of the 2 suit by directing the defendant to refer the disputes involved in the suit to Arbitrator in accordance with the agreement between the parties. Being dissatisfied, the defendant has come up with this appeal under Clause 15 of the Letters Patent. Mr. Mitra, the learned Advocate appearing on behalf of the plaintiffrespondent, at the outset, has taken a preliminary objection as to the maintainability of this appeal on the ground that by the order impugned the learned Trial Judge having in reality passed a direction under Section 8 of the Arbitration and Conciliation Act, 1996 ("Act"), no appeal lies against such order under the Act. In support of his contention, Mr. Mitra has relied upon a decision of a Division Bench of this Court in the case of Surekha Steel Limited vs. Union of India,1998 CWN 287. Mr. Bose, the learned Advocate appearing on behalf of the appellant has, however, opposed the aforesaid contention of Mr. Mitra and contended that by way of the forum selection clause contained in the selfsame agreement between the parties where there is a provision of reference to arbitrator, the jurisdiction of the Trial Judge having been excluded, the order impugned was passed by a Court having no territorial jurisdiction to pass even such an order under Section 8 of the Act and thus, the present appeal is maintainable against an order passed by a Court lacking territorial jurisdiction, particularly, when the learned Trial Judge has accepted the position that by virtue of the forum selection clause, the 3 jurisdiction of the Calcutta High Court has been excluded. Mr. Bose, thus, prays for setting aside the order impugned and allowing the appeal.
(2.) Therefore, the preliminary question that arises for determination is whether the present appeal is maintainable After hearing the learned counsel for the parties and after going through the materials on record, we find that after entering appearance in the suit, the appellant, at the very first opportunity, prayed for revoking the leave granted under Clause 12 of the Letters Patent pointing out that in view of forum selection clause, the jurisdiction of the Calcutta High Court has been excluded and that there was also a clause in the agreement for reference to arbitration and thus, prayed for vacating the interim order. The Court also accepted the said position and vacated the interim order. But the plaintiff maintained that if the Court had no jurisdiction to entertain the dispute in view of the arbitration clause, in that event, the matter should be referred to arbitration in terms of Section 8 of the Act.
(3.) The learned Single Judge has accepted the said submission of the Plaintiff and after revoking the leave granted under Clause 12 of the Letters Patent, nevertheless, passed an order of reference in terms of Section 8 of the Act. The learned Single Judge has, however, specifically clarified by recording that "the leave granted under clause 12 stands revoked not on the ground of lack of 4 territorial jurisdiction, but to hold the plaintiff to it [sic] bargain in terms of the forum selection clause".;