P.K. Balasubramanyan, C.J.
1. The parties to these two applications are the same the contracts involved are also similar in nature and the parties are also the same. Hence, these applications are being disposed of by this common order.
2. These applications are under Section 11(6) of the Arbitration and Conciliation Act, 1996 calling upon the Chief Justice of this Court to appoint an arbitrator to arbitrate upon the disputes between the parties which have arisen in view of the claims made by the petitioner.
3. Admittedly, there is an arbitration clause, Clause 2900 in the contract involved. But, the parties by way of Clause 2703, have dealt with jurisdiction. I extract paragraph-2703 herein :--
"Jurisdiction of Court.--The Courts of the place from where the acceptance of tender has been issued shall alone have jurisdiction to decide any dispute arising out of or in respect of the contract."
4. The petitioners have approached the Chief Justice of the Jharkhand High Court with their applications under Section 11(6) of the Act on the plea that a part of the cause of action arose n Jamshedpur, within the jurisdiction of High Court of Jharkhand, and hence the Chief Justice of the Jharkhand High Court or his nominee, has jurisdiction to appoint an arbitrator in terms of Section 11(6) of the Act. Counsel for the respondents, on the other hand, submits that the acceptance of the tenders submitted by the petitioners was at Chittranjan, within the jurisdiction of the High Court of Kolkata, and in view of paragraph-2703 of the contract between the parties quoted above, the jurisdiction to appoint an arbitrator vests solely with the Chief Justice of Kolkata High Court or his nominee. Counsel for the respondents also referred to Section 11(12) of the Act in support of his contention that the Chief Justice of the High Court, which has jurisdiction, can exercise power under Section 11(6) of the Act.
5. There is no dispute that the Courts both at Jamshedpur within the State of Jharkhand and Chittranjan within the State of West Bengal, have jurisdiction over the subject matter of the contract. But what is contended on behalf of the respondents is that when more than one Court has jurisdiction, it is open to the parties to confine the jurisdiction to one of the Courts, even though the parties cannot by agreement confer jurisdiction on a Court which otherwise has not jurisdiction. This proposition cannot be doubted, especially in the context of decision of the Supreme Court in A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239. Therefore, as far as the present case is concerned, the parties have clearly confined the jurisdiction to the Courts at Chittranjan in the State of West Bengal including the High Court at Kolkata. What is argued on behalf of the petitioner is that in an application under Section 11(6) of the Arbitration and Conciliation Act, no adjudication by the Chief Justice is involved and it is only the occasion for the exercise of an administrative power to appoint an arbitrator. The decision of the Supreme Court in Konkan Railway Corporation Ltd. v. Rani Constructions Pvt. Ltd., (2000) 8 SCC 159, is relied on. The further argument is that when once the Chief Justice who is moved finds that a part of the cause of action arose within the purview of his High Court, even if another High Court has jurisdiction, it is open to the Chief Justice to appoint an arbitrator under Section 11(6) of the Act, since the Chief Justice is not expected to enter into an adjudication on the question whether the exclusion clause relating to jurisdiction entered into by the parties, is valid or not. In other words, what is submitted is that once there is no inherent lack of jurisdiction in the Court at Jamshedpur and that district is within the jurisdiction of High Court at Ranchi, the Chief Justice here, would automatically have jurisdiction to appoint an arbitrator. This is sought to be met by counsel for the respondents by pointing out that once it is held that the parties can validly confine the jurisdiction to one of the Courts out of the two Courts which have jurisdiction, the jurisdiction of the High Court would be that of the High Court within whose jurisdiction the concerned place chosen by the parties falls. In this case that was the Kolkata High Court and it was obvious that the Chief Justice of Kolkata High Court or his nominee alone could deal with an application under Section 11(6) of the Act.
6. Going by the decision in Konkan Railway, it may be true that the Chief Justice is only to exercise an administrative power and no adjudication is involved in deciding an application under Section 11(6) of the Act. But, at the same time, the definition of Court contained in Section 2(1)(e) of the Act read with Section 11(12) of the Act obliges a Chief Justice, who is moved under Section 11(6) to consider whether he could exercise the administrative power under Section 11(6) of the Act in a given case. When on such a scrutiny he finds that the parties have validly confined the jurisdiction to one of the Courts which is not within his jurisdiction, it appears to me that it would be proper for him to decline jurisdiction or refuse to use his administrative power. May be, an objection to territorial jurisdiction, could be waived. It may be that an application under Section 11(6) of the Act could be allowed even without notice to other side, as laid down in Konkan Railway case. But, once it is consonance with the principles of natural justice, the Chief Justice who is moved decides to issue notice and issues notice to the opposite party and the opposite party appears and at the threshold raises and objection that the Chief Justice has no jurisdiction to pass an order under Section 11(6) of the Act, in my view, it behaves the Chief Justice to consider that objection at least for the limited purpose of deciding whether he could exercise his administrative jurisdiction under Section 11(6) of the Act. In that process, the Chief Justice cannot ignore the existence of a valid exclusion clause in the contract between the parties. Therefore, I am not in a position to agree with the contention of learned counsel for the petitioner that since I am not expected to enter into the merits and interpret the scope of the exclusion clause relating to jurisdiction, I must go ahead and appoint an arbitrator. I think that in a situation like the present, the Chief Justice has to take note of the objection and once he finds that there has been a valid exclusion of the jurisdiction of the territory within the jurisdiction of the High Court over which he presides, he may have to decline the exercise power under Section 11(6) of the Act, leaving the parties to move the appropriate Chief Justice in terms of Section 11(12) of the Act. No doubt, counsel for the petitioner is justified in submitting that it is the arbitrator, who should look into this objection in the light of the decision in Konkan Railway case. But does it mean that a Chief Justice, who is moved and before whom at the threshold an objection to his jurisdiction is taken, is helpless in deciding that question or that he should shut his eyes to such an objection and leave the party to raise it before the arbitrator in. terms of Section 16 of the Act. It must be noted that the objection now is to the Chief Justice of the Court acting under Section 11(6) of the Act and it should be the duty of the Chief Justice to decide that objection. It is not an objection to the arbitrator.
7. Learned counsel for the respondents pointed out that it will be a futile exercise to send the matter to the arbitrator when the legal position is clear in the light of the decision of Supreme Court cited by him and the confining of jurisdiction by the parties to the Courts within the jurisdiction of the High Court of Calcutta,
8. I think that it will be too wide an approach to ignore such an objection and proceed to appoint an arbitrator when the objection raised is to the jurisdiction of the Chief Justice or his nominee to appoint an arbitrator under Section 11(6) of the Act. That objection should be decided or could be decided only by the Chief Justice. The ' arbitrator may not be able to say that the Chief Justice, who appointed him did not have jurisdiction to appoint him. Even if he can, it will be an incongruous situation.
9. In the light of the position thus emerging, I hold that I have no jurisdiction to entertain these applications and direct the return of these applications to the respective petitioners for presentation to the appropriate Chief Justice or his nominee.