VINOD K.SHARMA, J. - (1.) BY way of present revision petition, the petitioner has challenged the order passed by the learned Additional Civil Judge (Senior Division), Faridabad vide which his application filed under Sections 14 and 17 of the Arbitration Act, 1940 (for short the Act) for filing the award dated 29.3.1994 in the Court has been dismissed for want of jurisdiction with liberty to the petitioner to present the same in the competent Court in Delhi.
(2.) THE brief facts leading to the case are that the petitioner is a private limited company having its registered office at G-13, Saket, New Delhi and Shri O.P. Chopra is the Managing Director of the said company. It is the case of the petitioner that an agreement was entered into between the petitioner and respondent No. 1 on 16.3.1999 and at that time respondent No. 1 was residing at 764, Sector 29, Faridabad. The petitioner in terms of the said agreement had agreed to construct a plot bearing No. G-13, Saket, New Delhi and Housing Complex and had agreed to further finance the entire construction and other ancillary expenses from his own resources. The relevant clauses of the said agreement which would require consideration in the present case are reproduced below for ready reference : "11. In case of any dispute arising between the parties in this respect, the matter shall be referred to the Sole Arbitrator for his valuable decision and his decision shall be final and binding on both the parties. 20. That in case of any dispute arising between the parties in respect of these presents, the same shall be referred for arbitration to the sole arbitrator Shri Damodar Sharma, 5-11/35, NIT Faridabad shall be the sole arbitrator and his decision shall be binding on both the parties. 21. The agreement has been entered into between the parties at Faridabad and the Faridabad Courts only shall have the jurisdiction in case of any dispute between the parties to the said agreement". In terms of the said agreement, respondent No. 1 vide his letter dated 20.8.1992 requested for a reference to the named Arbitrator. It is also the case of the parties both the parties appeared before the named Arbitrator and sought time. The Arbitrator is said to have entered the reference on 20.2.1994 by notifying the hearing vide his letter dated 28.1.1994. However, as respondent No. 1 failed to appear before the Arbitrator, the award was signed and delivered at Faridabad on 29.3.1994. The petitioner had filed an application under Sections 14 and 17 of the Act for filing the award in the Court to make it rule of the Court. Notice of the said application was given to the respondents, and respondent No. 1 appeared and filed objection. Objection with regard to the jurisdiction was also taken.
(3.) LEARNED counsel for the respondents contended that respondent No. 2 issued notices dated 24.8.1992 fixing the date of proceedings as 5.9.1992. However, when the counsel reached the residence of respondent No. 2 on the date fixed neither the petitioner nor respondent No. 2 had turned up at the appointed venue and no response was received from the respondents and it was also the case of the respondents that after the expiry of four months of entering the reference the Arbitrator had become functus officio. It was also the case of the respondents that an application under Section 20 of the Act for filing the arbitration agreement in Court has been filed in the High Court of Delhi and a request was accordingly made for not proceeding with the matter in view of the pendency of the proceedings in the Hon'ble High Court of Delhi. It is the case of the respondents that in spite of above said letter having been issued to the Arbitrator he still chose to proceed ex parte. It was also the case of the respondents that the petitioner had filed a suit for permanent injunction in the Court of learned Senior Sub Judge, Delhi and sought intervention of the civil Court for adjudication and decision of the dispute. Thus the award being in violation of the provisions of law, the same could not be made rule of the Court. Reply to the objections was filed, where the stand taken in the objections was controverted by the petitioner. An application was also filed under Section 31(4) of the Act by respondent No. 1 for the transfer of the proceedings to the Court at Delhi to which reply was filed. The learned trial Court on the basis of pleadings of the parties framed the following issues : 1. Whether the award dated 29.3.1991 (29.3.1994 ?) is to be made rule of the Court ? OPP 2. Whether Award dated 29.3.1994 is nullity as arbitrator had become functus officio ? OPP 3. Whether arbitrator had no jurisdiction to entertain the matter as the matter was sub-judice before the Court of Delhi ? OPR 4. Whether arbitrator has mis-conducted himself and with the proceedings by passing the award dated 29.3.1994 ? OPR 5. Whether this Court has got no territorial jurisdiction to entertain this matter in view of pendency of matter between parties before the Court of Delhi ? OPR 6. Relief. The learned trial Court considered the preliminary Issue No. 5 as well as the application under Section 31(4) of the Act together and held the Court had no territorial jurisdiction to entertain and try the present application and the petition was ordered to be returned to the petitioner for presenting in the Court at Delhi. The learned trial Court took note of Section 31 of the Act to come to the conclusion that the award is to be filed in the Court having jurisdiction in the matter to which the reference relates. A notice was also taken of the provisions of Section 31(4) of the Act which reads as under : "(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising our of that reference, and the arbitration proceedings shall be made in that Court and in no other Court". ;