SANJIB BANERJEE,J - (1.) THE first respondent has seriously questioned the propriety of this court to receive the petition under Section 9 of the Arbitration and Conciliation Act, 1996 only at the very last stage of the final hearing. But it cannot be said that such ground was not indicated earlier.
(2.) IT is evident that the first respondent expressed his reservation on such aspect when he was represented for the first time in course of the proceedings. The ground is also squarely taken in the affidavit filed by the first respondent. However, the minor matter as to territorial jurisdiction was relegated to the back-burner upon a startling allegation being made by the first respondent against the receiver appointed in the matter and the objection appeared to have been given up till resurrected just at the end. The undisputed facts are that the petitioner financed the acquisition of two assets by the first respondent. The second respondent guaranteed due payment of the money due under the agreement. The first respondent defaulted in the payment of a few instalments whereupon the petitioner sought to terminate the agreement and recalled the entire amount due thereunder. Upon AP No. 831 of 2010 being received, an initial order was passed on January 12, 2011. The petitioner sought and obtained the ex parte appointment of a receiver to be in symbolic possession of the two assets financed and make an inventory thereof. The usual order of injunction was also passed. The first respondent was represented when the matter was next taken up on June 14, 2011. The ground of jurisdiction was urged and the forum selection clause in the agreement was cited. The court also noticed the following allegation of the first respondent: " ... Counsel for the hirer submits that the equipment/equipments are not in the possession of his client as some agent of the petitioner has taken possession of them forcibly from the hirer. " The court observed in the order of June 14, 2011 that the receiver could not be directed to take physical possession of the asset before the issue as to the authority of this court to entertain the petition was resolved. Directions were given for filing affidavits. Affidavits were thereafter filed.
(3.) THE matter was next taken up on November 17, 2011 when a direction was issued for a police investigation to be conducted "as to whether the excavator and rock-breaker claimed by the respondents to have been taken away from the respondents still remain with the respondents or persons known to the respondents. " THE order was modified on December 23, 2011 by requiring the Commissioner of Police, Asansol-Durgapur Police Commissionerate, to conduct the investigation. THE report was directed to be filed when the matter was to appear next on January 19, 2012. THE report was filed on the due date, copies of the report were directed to be obtained by the parties, the matter was adjourned for three weeks and the parties were left free to take appropriate steps in respect of the report. On March 14, 2012, when the matter next received attention, it was submitted by the petitioner that baseless and scurrilous allegations had been levelled against the receiver by the first respondent in his affidavit affirmed on July 6, 2011. THE first respondent was directed to be examined as to the contents of his affidavit on April 12, 2012. THE first respondent has been cross-examined on the contents of his affidavit on July 4 and July 6, 2012. THE matter has, thereafter, been heard on several occasions. It is only on September 24, 2012 that the first respondent earnestly urged the objection as to the propriety of this court receiving or deciding the petition under Section 9 of the 1996 Act. THE petitioner has also applied, by way of GA No. 488 of 2012, for taking steps against the first respondent for the alleged perjury committed by him. Since a charge has been levelled against a receiver appointed by this court in course of the present proceedings, such aspect of the matter has to be conclusively dealt with herein even if the objection on the ground of territorial jurisdiction is upheld. But it is the objection as to the authority of this court to receive the petition, based on a forum selection clause contained in the agreement, which has first to be assessed.;