S.B. Sinha, J. - (1.) An application has been filed for vacating the orders of stay dated 6.9.95 and 12.9.95 passed by a learned Single Judge of this Court. Mrs. Mukherjee appearing on behalf of the applicant/respondent No.4 in support of the application has principally raised two questions. Learned counsel firstly submits that having regard to the facts of the case it would appear that no part of the cause of action has arisen within the territorial jurisdiction of this court. Learned counsel points out from the tender notice which is contained in Annexure 'E' to the application for vacating that tender was issued from New Delhi. Clauses 3 and 6 of the said tender which read as follows : 3. Eligibility of tenderers : Tenders are invited only from firms who are actually engaged in the manufacture of Calcium Propionate and who can undertake the supply within a reasonable period of receipt of supply orders (see Clause 9). Tenders submitted by commission agents/traders/interdiaries or those having no manufacturing capacity of their own for supply of the same will not be considered. Tender form obtained from the company on payment will only be considered. 6. Last date of receipt of tenders : The tenders will be received by the Company upto 1400 hrs on 24.5.95. The tenders will be opened at 1500 hrs on the same date at the address mentioned above, in the presence of those tenderers who are present on the spot. Tenders received after. 1400 hrs on 24.5.95 shall be ignored. The Company shall not entertain any complaints for late receipt of tenders due to any reason. It would also show that the said tender would have to be submitted at New Delhi. Learned counsel further points out that there exists an arbitration clause as contained in: clause 22, from a perusal whereof it appears that all arbitration and court cases relating to disputes arising out of the contract, the territorial jurisdiction would be at New Delhi or Delhi, Learned counsel, therefore, relying on or on the basis of the decision of the Supreme Court of India in the case of Oil and Natural Gas Commission v/s. Utpal Kumar Basu & Ors., reported in : (1994) 4 SCC 711 the decisions of the Court in the case of S.S. Jain & Co. Anr. v Union of India & Ors., reported in, 1994(1) CHN 445 and in the case of In re: Rajendra Prasad Agarwal, reported in 99 CWN 307, submits that this court should not entertain the writ application at all. Learner counsel further submits that if this court has no jurisdiction, the interim order passed by this court is a nullity and reliance in this connection has been made in the case of Board of Trustees, Calcutta Port v/s. Bombay Flour Mills Private Ltd. & Anr. reported in, 1994(3) AIR SCW 4855. It is further submitted that even in this case the records of the case are lying at Delhi, and in that view of the matter, this court cannot issue any Writ of Certiorari. It is further submitted that in any event, the petitioners having opted for submitting themselves to the jurisdiction of the, court at Delhi, are estopped and precluded from contending that this court has jurisdiction to entertain this writ application. Reliance in this connection has been placed in the case of A.B.C. Laminart Pvt. Ltd. and Am. v/s. A.P. Agencies, Salem, reported in : AIR 1989 SC 1239.
(2.) Mr. Mukherjee appearing on behalf of the writ petitioners however, submits that the petitioner No. 1 company is a Government of West Bengal Undertaking and it had been receiving contract for supplying a chemical known as Calcium Propionate for the last 9 years on the basis of negotiations after the tenders were opened. According to the learned counsel, the tender was submitted on 24.5.95 and the negotiation was to be held on 20.6.95, but in the meanwhile on 22.6.95 a letter by way of Fax was sent by one Mr. Sharad Yadav. Member of Parliament addressed to the Minister -in -charge of Public Undertakings, Government of West Bengal, in terms whereof it was suggested that the petitioner No.1 being a public sector undertaking should not quote a price below the cost of price pursuant whereto comments were sought for by the State of West Bengal and the petitioners replied thereto in terms of its letter dated 3.7.95. Learned counsel contends that in this background the negotiation was cancelled and the tender of the applicant Messrs. Calpro Food (Pvt) Ltd., was accepted. It is submitted that this court has territorial jurisdiction in view of the fact that the conspiracy was hatched as against the petitioner, a part whereof took place in Calcutta, in as much as, while forbidding the petitioners from attending the negotiation, behind its back the tender of the applicant/respondent No. 4 was accepted.
(3.) Mr. Chowdhury appearing on behalf of the respondent Nos. 1 to 3, however, submits that in the instant case the arbitration clause shall apply, and in support of his aforementioned contention has relied on a decision of Delhi High Court in the case of M/s. Raipur Alloys & Steel Ltd. v/s. Union of India, reported in : AIR 1988 Delhi 53. Learned counsel points out that from the writ application itself it would appear that the writ petitioners had been lowering the rates to a great extent and keeping in view the fact that negotiations used to take place by way of exception and not as a matter or rule, and further in view of the fact that this time the company received a legal advice that no such negotiation need be taken recourse to, the tender of the applicant Messrs. Calpro Food (Pvt.) Limited was accepted. It is submitted that the allegation of conspiracy as against the respondent Nos. 1 to 3 has no substance at all.;