M/S Anand Granites Exports Private Limited, v. Mr.Prabhudayal Agrawal,

Order

dated

29.09.2015 passed by the Government of Odisha, Steel and Mines Department - Odisha Show Cause Notice dated Address of the respondent: B.N.Lal Odisha Nature of Document Address of the parties disclosed Place

of execution or Place of origin

17.10.2022 issued by the respondent to Mr.S.B.Goutam for cancelling his Power of Attorney dated 10.05.2010 House, Chotisadak, Baidyanath Chowk, PO.-PS.Dist.-Sambalpur, Odisha Address of Mr.S.B.Goutam: Near Jagannath Mandir, Thana Chowk, Koira District: Sundargarh, Odisha Letter dated 08.11.2022 sent by the respondent to the Director of Mines, Odisha requesting them not to entertain Mr.S.B.Goutam, the Power Agent with regard to the subject Mining Lease Address of the respondent: B.N.Lal

House,

Chotisadak, Baidyanath Chowk, PO.-PS.Dist.- Sambalpur, Odisha Odisha Tantra

Bauxite

Mine represented

by Mr.S.B.Goutam's letter to the respondent requesting for withdrawal of the Show Cause Notice issued by the respondent Address of Tantra Bauxite Mine represented by Mr.S.B.Goutam 'A.T.-TANTRA, P.O - TENSA - 770042, DIST. SUNDARGARH (ODISHA)'. Address of the respondent: B.N.Lal House, Chotisadak, Baidyanath Chowk, PO.-PS.Dist.-Sambalpur, Odisha Odisha Legal Notice sent by the respondent dated 18.11.2022 to S.B.Goutam intimating him that the Power of Attorney dated 10.05.2010 executed in his favour is cancelled Address of the respondent: B.N.Lal

House,

Chotisadak, Baidyanath Chowk, PO.-PS.Dist.- Sambalpur, Odisha Address of S.B.Goutam: G4, Fourth Floor, Kiran Plaza Building, No.84, District Centre, Chandrashekarpur, Bhubaneswar, Odisha Odisha Reply dated 24.11.2022 sent by Tantra

Bauxite

Mine represented by Mr.S.B.Goutam to the respondent Address of the Tantra Bauxite Mine represented by Mr.S.B.Goutam: 'A.T.-TANTRA, P.O - TENSA - 770042, DIST. SUNDARGARH (ODISHA)'. Address of the respondent: B.N.Lal

House,

Chotisadak, Baidyanath Chowk, PO.-PS.Dist.- Odisha Nature of Document Address of the parties disclosed Place

of execution or Place of origin Sambalpur, Odisha Notice of Invocation of Arbitration 04.02.2023 as per the

Arbitration

Clause contained in the Raising Contract Agreement dated

18.03.2010 sent to the respondent Address of the applicant: 58-12-2, Municipal High School Road, Santhapeta, Ongole, Prakasam District, Andhra Pradesh Address of the respondent: B.N.Lal House, Chotisadak, Baidyanath Chowk, PO.-PS.Dist.-Sambalpur, Odisha Andhra Pradesh Reply dated 07.02.2023 sent by the respondent through email that he is unable to recollect having signed any such Raising Contract Agreement dated

18.03.2010

and

hence requested for a scanned copy of the same. - Odisha Another Notice sent by the applicant dated 10.02.2023 to the respondent Address of the applicant: No.19, Nungambakkam High Road, Chennai - 6000 034. Address of the respondent: B.N.Lal

House,

Chotisadak, Baidyanath Chowk, PO.-PS.Dist.- Sambalpur, Odisha - Letter sent by the applicant dated 24.02.2023 to the respondent Address of the applicant: No.19, Nungambakkam High Road, Chennai - 6000 034. - Reply dated 02.03.2023 sent by the respondent to Mr.Sridhar Anand, Managing Director of the applicant. Address of the applicant: Municipal High School Road, Santhapet, Ongole, Prakasam District, Andhra Pradesh 523 001. Address of the respondent: B.N.Lal House, Chotisadak, Baidyanath Chowk, PO.-PS.Dist.-Sambalpur, Odisha - Order dated 18.11.2022 passed by the High Court of Orissa at - Odisha Nature of Document Address of the parties disclosed Place

of execution or Place of origin Cuttack in W.P. (C) No.28227 of 2022 in a Writ Petition filed by the respondent against the State of Odisha and others Writ Petition was filed seeking direction to the State of Odisha to drop the Proceedings initiated under Rule 20(1) of Mineral Concession Rule, 2016 vide Annexure-10 Order dated 05.12.2022 passed by the Orissa High Court in W.P.(C) No.32854 of 2022 in a writ petition filed by the respondent against the State of Odisha and others. Writ Petition was filed to show cause and to quash the Incorporation Certificate of Tantra Bauxite Mine - Odisha Order dated 31.03.2023 passed by the High Court of Orissa at Cuttack in W.P. (C) No.9549 of 2023 in a Writ Petition filed by the respondent against the State of Odisha and another. The writ petition was filed seeking to quash the Notice dated 21.03.2023 issued by the State

of

Odisha

to Mr.S.B.Goutam. - Odisha Plaint filed by the respondent in the Suit C.S. No.2703 of 2022 on the file of Senior Civil Judge, Bhubaneswar filed against S.B.Goutam seeking to declare that the Power of Attorney dated 10.05.2010 - Odisha Nature of Document Address of the parties disclosed Place

of execution or Place of origin granted by the respondent in favour of S.B.Goutam is cancelled Order dated 25.02.2023 passed by the Court of Civil Judge (Senior

Division), Bhubaneswar in C.S. No.2703 of 2022 allowing the impleading application filed by M/s.Ananda Granites Exports Private Limited, the applicant herein and they were permitted to be impleaded as a party respondent in the Suit C.S. No.2703 of 2022 filed by the respondent against S.B.Goutam - Odisha Appeal filed before the High Court of Orissa, Cuttack by the respondent against the Order dated 25.02.2023 permitting impleadment of M/s.Anada Granites Exports Private Limited (applicant herein) - Odisha Tripartite Agreement dated

18.03.2010

between

a) respondent

b)M/s.Gayatri Mining Private Limited and M/s.Anand Granites Exports Private Limited (applicant herein) Address of the respondent: B.N.Lal House, Chotisadak, Baidyanath Chowk, PO.-PS.Dist.-Sambalpur, Odisha Address of the applicant: Municipal High School Road, Santhapet, Ongole, Prakasam District, Andhra Pradesh 523 001 Address of M/s.Gayatri Mining Private Limited: HIG-1, Phase-1, BDA Colony, Pokhariput, PS. Air Field, Bhubaneswar - 751 020, Odisha - Deed of Agreement dated

18.03.2010 entered into Address of the applicant:Municipal High School Road, Santhapet, - Nature of Document Address of the parties disclosed Place

of execution or Place of origin between M/s.Gayatri Mining Private Limited and M/s.Anand Granites Exports Private Limited Ongole, Prakasam District, Andhra Pradesh 523 001 Address of M/s.Gayatri Mining Private Limited: HIG-1, Phase-1, BDA Colony, Pokhariput, PS. Air Field, Bhubaneswar - 751 020, Odisha Payment receipts and Bank Transactions for the period from 01.09.2021 to 30.09.2021 and from 01.01.2022 to

31.01.2022 discloses that the applicant has transferred funds to various parties from its account with State Bank of India, Ongole Branch, Andhra Pradesh - Bhubaneswar, Orissa Demand Drafts purchased by the applicant from the Indian Overseas

Bank, Nungambakkam

Branch, Chennai 600 034 favouring a)Compensatory Afforestation Fund

(CAF)

for Rs.2,75,00,000/-,

b)State Pollution Control Board for Rs.1,25,000/- and c)Chief Executive Space Applications Centre for Rs.1,16,752/- - - Account Statements in respect of the Bank Account maintained by the applicant with the Indian Overseas Bank, Bhubaneswar

disclosing certain payments made which according to the applicant is made in respect of the subject mining lease --

12.It is clear from the above mentioned documents/orders filed by the applicant/petitioner themselves that no part of cause of action for filing these applications arose within the jurisdiction of this Court for the following reasons: All the agreements between the respective parties were never entered into within the State of Tamil Nadu. None of the agreements disclose the Chennai address of the applicant. The Arbitration Invocation Notice dated 04.02.2023 was also sent by the applicant disclosing its Andhra Pradesh address only. All the replies sent by the respondent to the letters addressed by the applicant were sent only to the Andhra Pradesh address of the applicant. Admittedly, no payments were made by the applicant to the respondent. The Bank Statements reveals certain payments made to M/s.Gayatri Mining Private Limited and other Statutory Authorities by the applicant. Even those payments were made only from its Bank Account maintained with Indian Overseas Bank, Bhubaneswar, Orissa. From the remittances, it cannot also be ascertained that the said payments were made only towards the subject Mining Lease at Odisha. The applicant has also not produced any iota of evidence before this Court that the payments were made from Chennai towards the subject Mining Lease at Odisha. Even the three Demand drafts, which the applicant claims to have taken from its Chennai Bank Account does not reveal that the said demand drafts were taken only towards the subject Mining Lease at Odisha. The applicant is having its registered office at Andhra Pradesh, which address has been disclosed in all the agreements entered into with the respondent. Excepting for certain communications sent after the Arbitration Invocation Notice dated

04.02.2023, which discloses the Chennai Address of the applicant, all the previous exchange of correspondences between the applicant and the respondent disclose only the Andhra Pradesh Address of the applicant. The respondent has also addressed all its communications to the applicant only to the Andhra Pradesh address of the applicant. Only as an after thought, in order to falsely bring the dispute within the jurisdiction of this Court, the subsequent communications sent by the applicant after the issuance of the Arbitration Invocation Notice dated 04.02.2023 would disclose the Chennai address of the applicant. Even the exchange of Communication between S.B.Gowtam, representing M/s.Tantra Bauxite Mining Limited and the respondent discloses only the Odisha address of both the parties. The suit and the writ petitions have been filed by the respondent only at Odisha. Even though the applicant may claim that several meetings between the applicant and the respondent took place at Chennai, no iota of evidence has been placed on record to prove the same. The respondent has also categorically denied the same and therefore, it can be inferred that no meetings between the parties to the dispute took place at Chennai. The present applications filed before this Court having no jurisdiction is an abuse of process of law and Court as the applicant knowing fully well that no part of cause of action took place at Chennai or within the State of Tamil Nadu has filed these applications seeking for injunction and for appointment of an Arbitrator by this Court.

13.The judgment relied upon by the learned counsel for the applicant in BBR (India) (P) Ltd., v. S.P. Singla Constructions (P) Ltd., reported in 2023 1 SCC 693 has no bearing to the facts of the instant case as no part of cause of action has arisen within the jurisdiction of this Court and further 'forum non conveniens' will also deter this Court from exercising its jurisdiction in these applications. In the aforesaid decision, the Hon'ble Supreme Court has held that whenever the seat of the Arbitration is not fixed, the Court having a part of cause of action can entertain an Application under Section 9 of the Arbitration and Conciliation Act and such a Court could have control over the Arbitration Proceedings and would be the exclusive Court for the purpose of Section 42 of the Arbitration and Conciliation Act, 1996. But in the case on hand, no part of cause of action has arisen within the jurisdiction of this Court and even if a miniscule part of cause of action is found to have taken place within the State of Tamil Nadu after trial, the interim relief being a discretionary relief, the Forum non conveniens doctrine will deter this Court from exercising jurisdiction.

14.The interim injunction relief sought for by the applicant is a discretionary relief. Being a discretionary relief, Forum Conveniens plays an important role for deciding as to whether injunction can be granted or not by this Court. Even if a miniscule part of cause of action is found to have taken place within the jurisdiction of this Court by the Arbitral Tribunal, once the same is constituted, Forum non conveniens will deter this Court from exercising jurisdiction in these applications.

15.Before deciding whether the Court is a "Forum non conveniens", the usual tests to be applied to determine "Forum Conveniens" are as follows: a)Ease of access to such evidence; b)Interest of the two parties in their connections with the respective Forums; c)The petitioner's chosen Court would be burdensome to the respondent; d)If a Court finds this factor to be true, then that is ofen sufficient to dismiss the case and accept a Forum non conveniens claim; e)Ease of obtaining witnesses; f)Enforceability of judgment;

16.As seen from the aforementioned factors, the Courts will have to invoke the doctrine of "Forum non conveniens" if it satisfies the following conditions: a)The Court is seriously an Inappropriate Forum; b)There is substantially more appropriate Court that is available for the petitioner's claim;

17.In the instant case, as seen from the agreements/ documents/ orders filed by the petitioner themselves before this Court, it is clear that all the agreements/documents/orders, does not have its origin within the State of Tamil Nadu and has its origin either at Andhra Pradesh or in Orissa where major part of cause of action arose as the subject mines are located only in Orissa. The entire evidence pertaining to the subject Mining Lease and availability of the witnesses, who may have to be examined in case an Arbitration takes place are available only in the State of Odisha. Therefore, it is clear that this Court is an inappropriate forum for deciding these applications. Admittedly, there is a substantially more appropriate Court that is available for adjudicating the applicant/petitioner's reliefs that have been sought for in these applications.

18.During the pendency of these applications, if any undertaking was given to this Court by the respondent not to do certain acts, that will not imply that the respondent has acquiesced to the jurisdiction of this Court. The said undertaking if at all given would have been given by the respondent without prejudice to his rights questioning this Court's jurisdiction and therefore, it will not have any bearing on the final outcome of these applications and it shall not deter this Court to hold that these applications are not maintainable before this Court on account of lack of jurisdiction.

¶19For the foregoing reasons, since these applications have been filed by the applicant after knowing fully well that no part of cause of action arose within the jurisdiction of this Court, this Court is of the considered view that the applications filed before this Court are an abuse of process of Court and law. Hence, the applicant is liable to pay costs to the respondent for the same. This Court quantifies the costs at Rs.1,00,000/-.

20.Since these applications are dismissed for want of jurisdiction, there is no necessity for this Court to decide other issues, which arises for consideration including the issue of limitation. Since this Court is accepting the respondent's defence that this Court does not have jurisdiction to decide these applications, as no part of cause of action has arisen within the jurisdiction of this Court, there is no necessity for this Court to discuss the decisions relied upon by the learned counsel for the respondent.

21.In the result, these applications are dismissed with costs of Rs.1,00,000/- payable by the applicant to the respondent, which shall be paid within a period of one month from the date of receipt of a copy of this order.

16.08.2023 Index: Yes/ No Speaking order / Non speaking order vsi2/ab/vga oARB.oO.P.o(Com.oDiv.)oNo.215oofo2023oandoO.A.oNo.364oofo2023 ABDULoQUDDHOSE,oJ. vsi2/ab/vga Pre-deliveryoorderoin ARB.oO.P.o(Com.oDiv.o)oNo.215oofo2023 and O.A.oNo.364oofo2023

16.08.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 03.08.2023 Pronounced on :16.08.2023 CORAM: THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE ARB. O.P. (Com. Div. ) No.215 of 2023 and O.A. No.364 of 2023 M/s.Anand Granites Exports Private Ltd., Rep. by its Authorised Signatory Kadapa Moulali Sahib ... Petitioner vs. Prabhudayal Agrawal ... Respondent Prayer : Arbitration Original Petition (Commercial Division) filed under Section 34 of the Arbitration and Conciliation Act, 1996 to appoint an arbitrator to adjudicate the disputes between the petitioner and the respondent in terms of the Agreement, dated 18.03.2010. For petitioner : Mr. P.V. Balasubramaniam Senior Counsel for M/s.BFS Legal For respondent : Mr. Akash Singh COMMON ORDER The preliminary issue that arises for consideration in this matter is whether part of cause of action for filing these applications arose within the jurisdiction of this Court and even if part of cause of action had arisen, whether this Court is having the "forum conveniens" for adjudicating these applications. O.A. No.364 of 2023 has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for an order of injunction to restrain the respondent from in any manner disturbing or interfering with the day to-day administration of the applicant with regards the Raising Contract Agreement, dated 18.03.2010 entered into between the petitioner and the respondent. Arb. O.P. (Com. Div.) No.215 of 2023 has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 seeking for appointment of an Arbitrator to adjudicate the disputes between the petitioner and the respondent arising out of the Raising Contract Agreement, dated 18.03.2010. 2.Since both the Section 9 Application and the Section 11 petition arise out of the same Raising Contract Agreement dated 18.03.2010, they are disposed of by a common order. 3.Under the Raising Contract Agreement, dated 18.03.2010, the respondent is having a mining lease over the area of 262.27 Acres or 106.128 Hects., situated at Tantra (Khata No.35), Rengua (Khata No.31) and Bandhal (Khata Nos.30 and 39) Villages under Bonau Sub Division of Sundargarh District in Orissa. 4.The petitioner/applicant has been appointed by the respondent as the Managing Agent under Rule 8(A) of Metalliferrous Mines Regulation, 1961, to excavate Bauxite and other minerals from the aforementioned lands, under the Raising Contract Agreement, dated 18.03.2010. According to the petitioner, pursuant to the Raising Contract Agreement, dated 18.03.2010, they have invested more than Rs.14 crores. In the affidavit filed in support of O.A. No.364 of 2023 and the petition in support of Arb. O.P. (Com. Div.) No.215 of 2023, they have stated as follows: a) They have discharged the dues of M/s.Gayatri Mining Pvt. Ltd., who had earlier entered into a similar Raising Contract with the respondent; b) They have discharged the dues of M/s.Anjani Cotton Pvt. Ltd., who had entered into a Joint Venture agreement with the respondent; c) Both M/s.Gayatri Mining Pvt. Ltd., and M/s.Anjani Cotton Pvt. Ltd., were unable to obtain the statutory permits; d) The respondent executed a Tripartite Agreement with M/s.Gayatri Mining Pvt. Ltd. and the applicant / petitioner, wherein the applicant / petitioner will have to pay a sum of 14 Crores to M/s.Gayatri Mining Pvt. Ltd., which the respondent owes them; e)The major portion of the aforesaid payments were made from Chennai by the applicant /petitioner. The Corporate Office of the applicant /petitioner is at Nungambakkam, Chennai; f) The seat of arbitration is not fixed in the arbitration clause contained in the Raising Contract Agreement, dated 18.03.2010; g) Since a part of cause of action arose at Chennai, this Court is having the jurisdiction to appoint an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 and is having the jurisdiction to decide the Section 9 Application. 5. The petitioner with regard to the merits of t