Tarlok Singh Chauhan JUDGMENT
Tarlok Singh Chauhan, J.
1. This petition, under Article 227 of the Constitution of India, takes exception to the order passed by the District Judge, Solan, whereby the objections filed by the petitioner, have been ordered to be dismissed and warrants of attachment of his property have been issued.
2. Brief facts of the case are that pursuant to the award passed by the Arbitrator in favour of the respondent/decree holder, an execution petition was filed before the court below. The petitioner primarily raised two objections; one with regard to the territorial jurisdiction of the Arbitrator and the other with regard to the amounts paid by him from time to time having not been accounted and reflected in the statement of accounts by the respondent.
3. It is vehemently argued by Mr. Ajay Sharma, Advocate that the entire loan was disbursed within the State of Himachal Pradesh and even the possession of the loaned vehicle was taken within the State, therefore, it was the Court/Arbitrator in Himachal Pradesh alone, which could have jurisdiction to entertain and adjudicate upon the proceedings and, therefore, the award being quorum non judice was liable to be set aside in the execution petition as it is settled law that a decision rendered without jurisdiction is a nullity. He would further contend that the petitioner has paid huge amount, but the same has not been accounted for by the decree holder.
4. I have heard the learned counsel for the parties and have gone through the record of the case.
5. The Clauses pertaining to law, jurisdiction and arbitration are contained in Clause 23.0 of the loan agreement dated 20.1.2006 (Annexure R-1/A) and reads thus:
"23.0: Law, Jurisdiction, Arbitration
a) All disputes, differences and/or claim arising out of or touching upon this Agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any statutory amendments thereof and shall be referred to the sole Arbitration of an Arbitrator nominated by the lender. The award given by such an Arbitrator shall be final and binding on the Borrower and Guarantor to this agreement.
b) Dispute for the purpose of Arbitration includes default committed by the Borrower as per clause 14 of this Agreement. It is a term of this agreement that in the even of such an Arbitrator to whom the matter has been originally referred to dying or being unable to act for any reason, the lender, at the time of such death of the arbitrator or of his inability to act as arbitrator, shall appoint another person to act as arbitrator. Such a person shall be entitled to proceed with the reference from the state at which it was left by his predecessor.
c) The venue of Arbitration proceedings shall be at Chennai
d) The arbitrator so appointed herein above, shall also be entitled to pass an Award on the hypothecated asset and also on any other securities furnished by or on behalf of the Borrower/Guarantor.
e) All notices and other communications on the lender and the borrowers shall be to the following address:
For Lender: Corp. Off - Retail: Indusind Bank Ltd. 86 Sudarsan Building Chamiers Road, Chennai-600 018.
For Borrower: The residential address stated in the schedule or the property address described in the schedule.
6. It is trite and settled principle of law that parties by mutual consent cannot confer jurisdiction on a Court, which it does not have (Refer: ABC Laminart Pvt. Limited vs. A.P. Agencies, Salem, MANU/SC/0001/1989 : AIR 1989 SC 1239 and Patel Roadways Limited vs. Prasad Trading Company, MANU/SC/0280/1992 : 1991 (4) SCC 270
7. However, the moot question is: whether by referring the matter for arbitration at Chennai, has the respondent really violated territo........