PHIBRO GMBH Vs. CONSOLIDATED FIBERS AND CHEMICALS LTD
HIGH COURT OF CALCUTTA
CONSOLIDATED FIBERS AND CHEMICALS LTD.
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S.K.Mookherjee, J. -
(1.)This is an appeal arising out of an interim order, granted by a learned single Judge of this court, whereby the present appellants, who were defendants in a suit instituted by the sole respondent, had been restrained from pursuing the cause filed by them in a foreign High Court until further orders. From the impugned order it appears that the learned trial Judge proceeded on the basis of uncontradicted averment's made by the plaintiff in its application before the trial court as because, on behalf of the appellants / defendants, no affidavit in-opposition, had been filed but merely a question to the absence of jurisdiction in the trial court to pass such order had been raised as a question of law.
(2.)From the copy of the application, made before the learned trial Judge, annexed, on behalf of the appellants to the application now preferred in connection with the present appeal, it appears admitted that all the parties to the litigation entered into a contract, the identity of which, however, was in dispute between the parties. The plaintiff contended that the concluded contract between it and the defendants did not contain any restrictive covenant as regards the jurisdiction of court or venue for legal proceedings as was contended by the defendants/appellants. Accordingly, it was contended on behalf of the plaintiff/respondent before the trial court that the jurisdiction of the court was to be determined by application of the statutory provisions, as in force in this country, and on such application the trial court cannot be said to have no jurisdiction. According to the defendants/appellants binding contract, by its clause No.16, incorporated in full the terms and conditions, as set forth in the appellants general terms and conditions as set forth in the appellant general terms and conditions and one of the terms, included in the general terms and conditions, which related to jurisdiction of court, provided as follows:- Each party expressly submits the jurisdiction of the High Court of England without recourse of arbitration.
(3.)In contra-distinction to the above factual contention, on behalf of the plaintiff, reliance was placed on a clause, which stood as follows:
"Arbitration shall be performed under the Rules of conciliation and arbitration of the International Chamber of Commerce, Paris, by three (3) arbitrators in accordance with the said rules. Both Buyer and Seller shall appoint one (1) arbitrator each and these two arbitrators shall appoint third arbitrator to act as an umpire ?............Arbitration shall take place in Calcutta, India, unless any other location is mutually agreed. The arbitration award shall be final and binding on both parties."
This order shall be governed by and construed in accordance with the laws of India.
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