In the present case, the parties have agreed that the “venue” of arbitration shall be at Bhubaneswar. Considering the agreement of the parties having Bhubaneswar as the venue of arbitration, the intention of the parties is to exclude all other courts. As held in Swastik, non-use of words like “exclusive jurisdiction”, “only”, “exclusive”, “alone” is not decisive and does not make any material difference. The aforesaid has been established by the High Court of Jammu And Kashmir And Ladakh while adjudicating the case of Supinder Kour v. MDN Edify Education Pvt. Ltd. and others [AA No. 5/2020] which was adjudicated upon b y a single judge bench comprising Justice Tashi Rabstan on 20th August 2021.
The facts-in-brief are that an agreement of franchisee dated 06.12.2007 was entered into between the petitioner and the DRS Vidya Samiti, a society incorporated under the Society Act, whereby, the appellant agreed to be appointed as franchisee of the DRS Vidya Samiti to establish and operate pre-school under the brand name “DRS Kids” within 3 kms radius of Trikuta Nagar, Jammu. Thereafter, the petitioner-appellant was appointed as the Master Franchisee by DRS Education Pvt. Ltd. vide contract dated 13.12.2008 vesting in petitioner the rights to identify potential areas for establishing new DRS Kids pre-schools within the whole erstwhile State of J&K. As per the agreement, the life of the master franchisee was fixed for 10 years from the date of agreement which was extendable for a further period on mutually agreed terms and conditions. The instant appeal has been preferred by the petitioner under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as „the Act‟) against the order dated 29.02.2020 passed by the learned 2nd Additional District Judge, Jammu, whereby the court below without touching the merits of the case dismissed the petition of appellant herein filed under Section 9 of the Act on the ground that it lacked jurisdiction to adjudicate upon the matter. Before the court below, the petitioner-appellant herein was seeking to grant temporary prohibitory injunction restraining the respondents from appointing a new Master Franchisee of DRS-Kids for the UT of J&K in place of petitionerappellant herein as well as from interfering in petitioner‟s functioning as Master Franchisee of DRS-Kids for whole of erstwhile State of J&K.
The court perused the facts and arguments presented. It was of the opinion that “When the parties have agreed to have the “venue” of arbitration at Bhubaneswar, the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the Act. Since only Orissa High Court will have the jurisdiction to entertain the petition filed under Section 11(6) of the Act, the impugned order is liable to be set aside. Thus, the judgment of Apex Court clearly clinches the issue. As such, looking to the facts and circumstances of the present case and the case law on the subject, the judgments cited by learned senior counsel for appellant are of no help to the appellant. Therefore, in view of what has been discussed above, the order impugned passed by the learned 2nd Additional District Judge, Jammu does not require any interference. Accordingly, the appeal fails and the same is hereby dismissed along with connected CM. Interim direction shall stand vacated forthwith.”