“3 Interpretation clause. - In this Act, unless there is something repugnant in the subject or context-
“immovable property” does not include standing timber, growing crops or grass;”
8. The above definition is not of much help to us but the relevant provision to us is sub-section (26) of Section 3 of the General Clauses Act, 1897, which reads as under:
“3. Definitions. - In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context-
(26) “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.”
9. In view of the above, anything attached or permanently fastened to earth becomes “immovable property”. There can be no dispute that the subject matter of the present dispute is “hydraulic compressor” which is fastened to earth in Delhi, which is hence an immovable property in Delhi. Therefore, under Section 16 of the Code of Civil Procedure the courts which will have the jurisdiction to decide are courts in Delhi, as the property which is an immovable property is in Delhi.
In the High Court of Uttarakhand at Nainital
(Before Sudhanshu Dhulia, J.)
Sri. Hanuman Trust v. Indian Compressor Limited,
Arbitration Petition No. 32 of 2014
Decided on March 26, 2018,
Citation: 2018 SCC OnLine Utt 211
The Judgment of the Court was delivered by
Sudhanshu Dhulia, J.:— This is an arbitration petition under subsection (6) of Section 11 of the Arbitration and Conciliation Act for appointment of arbitrator. According to the petitioner, a contract was executed between the petitioner and the respondent at Delhi for leasing out of eight Hydraulic Compressors already installed at various sites in Delhi. The agreement admittedly had an arbitration clause. Since there arose a dispute between the parties, notices were given to the respondent. As the respondent failed to comply with the notice, the petitioner has filed the present arbitration petition, before this Court for appointment of an arbitrator.
2. Counter affidavit has been filed on behalf of the respondent though belatedly. It raises objection to the maintainability of the arbitration petition on various grounds, primarily on ground of jurisdiction. In addition to the point of jurisdiction, it has been apprised by the learned counsel for the respondent that regarding the same subject matter, the respondent had filed a suit before the court at Delhi, which is pending before the Saket Court, New Delhi, in which application was moved by the petitioner for referring the matter to the Arbitrator under Section 8 of the Arbitration and Conciliation Act, 1996, which has been dismissed, vide order dated 27.05.2017.
3. Be that as it may, the fact remains that the proceedings under Section 8 of the Arbitration and Conciliation Act are independent to the proceedings under Section 11(6) of the Act. Moreover, application under Section 11(6) of the Act was filed prior in time before this Court than the suit before the courts in Delhi. All the same, after the Constitution Bench decision of the Hon'ble Apex Court in the case of S.B.P. & Co.v. Patel Engineering Ltd. reported in (2005) 8 SCC 618, appointment of an arbitrator is a judicial order and one of the aspects which has to be looked into by this Court before appointment of an arbitrator is the very jurisdiction of the Court.
4. Admittedly, the contract was executed in Delhi. The respondent, i.e. the defendant also resides in Delhi. The subject matter of the dispute which are “hydraulic compressors” are also installed in Delhi.
5. All the same, the learned counsel for the petitioner relies upon Section 20 of the Code of Civil Procedure and argues that an arbitration petition under Section 11(6) of the Arbitration and Conciliation Act is maintainable before this Court, inasmuch as the courts in Uttarakhand i.e. at Haridwar have a jurisdiction in this matter as the registered office of the petitioner company is at Haridwar and, therefore, “part of cause of action”, arose in Uttarakhand.
6. It is trite to state that a cause of action is a bundle of facts. Undoubtedly, where a suit has to be filed is given in Part - I of the Code of Civil Procedure. The relevant sections would be Sections 15, 16, 17, 18 and 19, which lay down as to where a suit is to be instituted in case of immovable property.
7. The subject matter of the suit is “hydraulic compressors” which is admittedly an “immovable property”. We have to look at first Section 3 of the Transfer of Property Act, 1882, which reads as under:
“3 Interpretation clause. - In this Act, unless there is something repugnant in the subject or context-
“immovable property” does not include standing timber, growing crops or grass;”
8. The above definition is not of much help to us but the relevant provision to us is sub-section (26) of Section 3 of the General Clauses Act, 1897, which reads as under:
“3. Definitions. - In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context-
(26) “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.”
9. In view of the above, anything attached or permanently fastened to earth becomes “immovable property”. There can be no dispute that the subject matter of the present dispute is “hydraulic compressor” which is fastened to earth in Delhi, which is hence an immovable property in Delhi. Therefore, under Section 16 of the Code of Civil Procedure the courts which will have the jurisdiction to decide are courts in Delhi, as the property which is an immovable property is in Delhi. Section 20 of the Code of Civil Procedure, on which reliance is being placed by the petitioner is a residuary provision. Meaning thereby, in case the cause of action does not fall within the purview of Section 15 to 19 of the Code of Civil Procedure, only then the recourse of Section 20 of the Code of Civil Procedure is to be taken. This has been held by the Hon'ble Apex Court in the case of Harshad Chiman Lal Modi v. DLF Universal reported in (2005) 7 SCC 791 as under:
“19. Plain reading of Section 20 of the Code leaves no room of doubt that it is a residuary provision and covers those cases not falling within the limitations of Sections 15 to 19. The opening words of the section “subject to the limitations aforesaid” are significant and make it abundantly clear that the section takes within its sweep all personal actions. A suit falling under Section 20 thus may be instituted in a court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain or cause of action wholly or partly arises.”
10. In view of the aforesaid, this Court is of a considered view that this petition for appointment of Arbitrator under Section 11(6) of the Act, would not be maintainable before this Court on the ground of territorial jurisdiction.
11. Consequently, arbitration petition is liable to be dismissed and is hereby dismissed.
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