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High Court Appeal No.62 of 1974, decided on 2nd May, 1984.

---S.20, Explanation II--Original civil jurisdiction--Section 20, Explana tion II, C.P.C., held, would not apply to High Court in exercise of its original civil juridiction.

---Ss.8 & 20--Civil Procedure Code (V of 1908), Ss.20 & 120--Appointment of arbitrator--Jurisdiction of Court--Application under Ss.8 & 20, Arbitration Act can be filed at place where contract should have been performed in whole or in part.

Abdul Majeed for Appellants.

Syed Mamoon Hassan for Respondent.

Date of hearing: 2nd May, 1984.

--This is an appeal against the order dated 5-8-1984 passed by a learned Single Judge of this Court in Suit No.238/73, ordering filing of agreement for arbitration and appointing late Mr. Justice Feroze Nana Ghulam Ali as the sole Arbitrator. The brief facts leading to the filing of the above appeal are that the appellant agreed to sell 600 bales of cotton to the respondent under the following 4 contracts.

Particulars of Particulars of. The Mill Date of

contract. Goods. concerned shipment

Contract No.TEZ/ for 200 bales From 15-10-1972

LCM/EXP/327/Y-9 of 12/1 cotton Lyallpur

dated 30-9-1972. yarn hanks. Cotton

Mills.

Contract No. TEX/ for 100 bales From -do-

FTM/EXP/247/Y-6 as above. Fauji

dated 30-9-1972. Textile Mill.

Contract No.TEX./ for 200 bales From ur Oct.'72

LCM/EXP/327/Y-10 as above. Mills.

dated 5-10-1972. Cotton

Contract No.TEX/ for 100 bales From Oct. '72

FTM/EXP/247/Y-7 as above. Fauji

dated 5-10-1972. Textile Mills.

It seems that the two of the above contracts mentioned at Sr.Nos.(a) and (b)

were fulfilled by the appellant but the remaining two contracts were cancelled by them through their letter dated 27-12-1972 sent by them from their Rawalpindi office to the respondent at his Karachi address. Thereupon, the respondent filed an application under sections 8 and 20 of the Arbitration Act, which was registered as above Suit No.238/73. The above application was resisted by the present appellant. However, the learned Single Judge by his aforesaid order allowed the above application. The appellant being aggrieved by the above order dated 5-8-1974 has filed the present High Court Appeal.

2. (a)

In support of the above appeal, Mr. Abdul Majeed Khan, learned counsel for the appellant has contended as follows:-

(i) That since the appellant is a corporation in view of the explanation No.2 to section 20, C.P.C., application could have been filed in the District Court at Rawalpindi and not at Karachi in the High Court.

(ii) That the Arbitration clause did not cover the dispute.

(iii) That the respondent's claim for the refund of Rs.25,000 could not have been the subject-matter of the Arbitration proceeding as the above amount was paid by the respondent as a security deposit before the signing of the above four contracts. (b) On the other hand Mr. Syed Mamnoon Hassan, learned counsel for the respondent has urged as follows:-

That by virtue of section 120, C.P.C. the application of inter alia section 20, C.P.C. has been excluded to the High Court.

That the above second and third contentions of the learned counsel for the appellant involve the questions which fall within the jurisdiction of the Arbitrator and, in any cause, the same are devoid of any force.

3. Adverting to the first contention of Mr. Abdul Majeed Khan, it may be observed that he has referred to explanation No.2 to section 20, C.P.C. which provides that a corporation shall be deemed to carry on business at its sole or principal office in Pakistan or in respect of any cause of notice arising at any place, when it has also a subordinate office, at such place. In this regard reference may be made to section 120 of C.P.C. which provides that sections 16, 17 and 120 shall not apply to the High Court in exercise of its original civil jurisdiction. It cannot be denied that the respondent's above application was entertained by this Court in exercise of its original civil jurisdiction. In this view of the matter, proviso No.2 to section 20 cannot be pressed into service by the learned counsel for the appellant. Since admittedly part of the cause of action accrued at Karachi, namely, contracts were signed by the respondent at Karachi, under the terms of the contract the price was to be paid at Karachi and the letter of cancellation of the two contracts was received by the respondent in Karachi, the respondent's above application could have been filed in this Court.

In this regard reference may also be made to the case of Messrs Hussain Bros. v. Punjab Vegetable & General Mills Co. and another PLD 1961 (W.P.) Kar. 14, wherein a learned Single Judge of the earstwhile High Court of West Pakistan, Karachi Bench, held that a suit on a breach of contract can be filed at a place, where the contract should have been performed in whole or in part, and if the price, ofl the goods was payable at Karachi, the Courts at Karachi would have jurisdiction.

We are, therefore, inclined to concur with the learned single Judge that the respondent's above application under sections 8 and 20 of the Arbitration Act was competently filed in this Court.

4. As regards the above two other contentions of Mr. Abdul Majeed Khan, it suffices to observe that we would not like to express our opinion definitely on the sum as the appellant can raise these two points before the Arbitrator. However, we are of the view that prima facie it can be urged that because of the above two contentions the respondent's above application was not competent.

5. Since Mr. Justice Feroze Nana Ghulam All since then has expired, we would appoint Mr. Justice (Rtd.) Dorab Patel in his place as the sole Arbitrator who will fix his fee in accordance with the Arbitration Act and the schedule thereto. With the above modification, the above appeal is dismissed with no order as to costs.

M.A.K. Appeal dismissed.