M/S Jindal Aluminum Ltd v. M/S Encon Thermal Engineers Pvt Ltd

ARCHANA ARORA 2016.04.29 15:34 I attest to the accuracy and authenticity of this document


    


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6 - " %   7Having heard learned counsel for the parties, I find that the disputes between the parties in respect of overdue amount require adjudication by an Arbitrator. Though the terms of trade have been settled on 08.06.2007, wherein there is no clause for resolving the disputes by an Arbitrator. But the fact remains that each of the invoices through which the petitioner has supplied goods to the respondent, there is a printed arbitration clause. Once the goods have been received by the respondent in terms of the invoices issued, the terms on the invoices constitute a binding contract. In Fair Air Engineers Pvt. Ltd. and another Vs. N.K.Modi (1996) 6 SCC 385, the Hon'ble Supreme Court returned a finding that there was consensus ad idem, when a quotation with the conditions enumerated thereunder and a counter7offer is made giving technical details. But in disputing any of the conditions enumerated in the quotation, it was held that it was a case of consensus ad idem. It was observed as under:

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"6. :.The State Commissioner expressly has gone into the question and held that by operation of clause (12) of the quotation there is an arbitration agreement brought into vogue between the parties. It envisages reference to arbitration and thereby there was consensus ad idem. It is seen that when the quotation was offered with the conditions enumerated thereunder, the respondent merely made a counter7offer giving technical details of a part of the offer as counter7offer and when it was accepted by the appellant, the parties agreed for that offer and the counter7offer. In other words, they became an integral part of the contract of the parties. Thereby, clause (12) of the agreement became an integral part of the contract. Thus, there is an arbitration agreement between the parties."

Similar issue came up for consideration before me sitting singly in RSA No.655 of 2006 titled "M/s Neel Kanth Tubes Private Limited Vs. M/s Classical Tubes Private Limited" decided on 02.09.2009. It was held that printed clause on the invoice pertaining to jurisdiction is binding.

"Before this Court, learned counsel for the appellant has vehemently argued that the printed clause in the invoice is not binding clause so as to confer jurisdiction on the Courts at Chandigarh. It is also argued that on the basis of independent evidence on record, it is apparent that the Chandigarh Courts do not have any territorial jurisdiction to entertain the suit. It is also sought to be argued that the present suit is barred by limitation, therefore, no decree could have been passed by the learned first Appellate Court.

 The Hon'ble Supreme Court in A.B.C.Laminart Pvt. Ltd. Vs. A.P.Agencies, Salem, AIR 1989 Supreme Court 1239, has held that where there are two or more Courts competent to entertain the suit, then the parties may by contract vest jurisdiction in one of such Courts to try the dispute which might arise as between them.

In view of the said judgment, the finding of the learned first Appellate Court that the parties have agreed to submit their disputes to the jurisdiction of the Chandigarh Courts and, thus, the Chandigarh Courts have the jurisdiction to entertain the suit, cannot be said to be erroneous."

In view of the said judgments, the argument that there is no arbitration agreement between the parties is not tenable."

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