Pushpendra Singh Bhati, J. - The matter comes up on an application for recalling/review of the order dated 16.09.2019 passed by this Court in S.B. Civil Misc. Appeal No.398/2004, whereby this Court had dismissed the Civil Misc. Appeal against the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) on account of the fact that final arbitration award has been passed on 31.01.2006.

2. Mr. K.V. Vishwanathan, learned Senior Counsel assisted by Mr. Anil Kaushik and Mr. Sajjan Singh Rajpurohit, for the applicant-appellant has relied upon the precedent laws laid by the Honble Apex Court in Ultratech Cement Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited,2018 15 SCC 210, the relevant portion whereof reads as follows:

"7. As to whether the orders passed by the different Courts, which culminated in the two orders, extracted hereinabove, dated 13.12.2013 and 14.03.2014, would continue even after the passing of the arbitral award, in our considered view, would depend on the nature of the prayer made by the Appellant, when the application Under Section 9 was filed, before the concerned Court. We have extracted hereinabove the prayer made by the Appellant in its section 9 application. A perusal thereof reveals, that the interim injunction was sought "...till adjudication of the dispute arises between the parties by appointing the arbitrator by the applicant as per Clause 9 of the agreement dated 15.10.2004 signed by and between the applicant and the Respondent, passing of the award by the arbitrator, and also till enforcement of the said award...". It is therefore apparent, that the interim prayer made by the Appellant Under Section 9 of thein the very first instance was till the enforcement of the award. It is undoubtedly apparent from a perusal of Section 9 of the Act, extracted above, that the enforcement of the award can be effected only Under Section 36 of the. The aforesaid stage has not yet emerged. The stage presently is of the interregnum, between the passing of the award, and the enforcement of the award Under Section 36 of the.

8. We are of the view, that the prayer made by the Appellant clearly included the period, after the pronouncement of the award by the arbitral Tribunal. In the above view of the matter, it is not possible for us to hold, that the proceedings pending before this Court, have been rendered infructuous. In any case, it is now imperative for us to determine whether or not the impugned interim order, should continue till the proceedings Under Section 34 of the(presently pending before the District Judge) are concluded. We are satisfied in directing, that the Appellant shall, with effect from the date of the commencement of the arbitral award, pay for the fly ash taken by it from the Respondent at the rate of Rs. 245/- per metric tonne (i.e., in consonance with the arbitral award), till the determination of the proceedings Under Section 34 of the. We however clarify, that in case, for any reason, the arbitral award is set aside or modified, as prayed for by the Respondent - Nigam, the Appellant would be liable to pay the higher amount, as the Respondent would have been able to procure, as disclosed by the auction already held in 2011 (for the period with effect from 2012). Likewise, in case the Appellant before this Court succeeds, and is held to be entitled to pay a lesser amount, the payment with effect from 2012 would be regulated by the said determination."

3. Learned Senior Counsel for the applicant-appellant has further relied upon the precedent law down by the Honble Apex Court in Indus Mobile Distribution Private Limited Vs. Datawind Innovation Private Limited, (2017) 7 SCC 678 , relevant portion whereof is reproduced hereunder:

"19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction - that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21 of the Code of Civil Procedure be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties."

4. Reliance has also been placed on Brahmani River Pellets Limited Vs. Kamachi Industries Limited,2019 SCCOnline 929, relevant portion of which reads as under:

"18. Where the contract specifies the jurisdiction of the court at a particular place, only such court will have the jurisdiction to deal with the matter and parties intended to exclude all other courts. 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.

19. 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. 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."

5. Learned Senior Counsel for the applicant-appellant has referred to Section 42 of theof 1996, which reads as follows:

"42. Jurisdiction.- Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."

6. Learned Senior Counsel for the applicant-appellant, thus, submits that unless the issue of jurisdiction, which was there before this Court in the aforementioned Civil Misc. Appeal, even at the stage of Section 9 of theof 1996 is dealt with on merits, the proceedings going on before the learned courts below shall not be able to attain finality.

7. Learned Senior Counsel for the applicant-appellant further submits that once the issue of jurisdiction is finally decided by this Court in Civil Misc. Appeal, the proceedings can be finally heard, and it can culminate into a defined lawful judgment, or otherwise the preliminary issue of jurisdiction shall keep awaiting the verdict of the Court.

8. Mr. Narendra Singhvi, appearing in person for the respondent submits that the issue of jurisdiction is in favour of the respondent, and unless the objections filed under Section 34 are finally decided by the learned court below, the dispute would not come to an end, and the respondent will continue to suffer holding of the goods of the appellant-company, even at the cost of his hardship.

9. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court, while adjudicating the limited ambit of recalling the application, finds that looking into the precedent laws cited as well as peculiar facts and circumstances of the case, where the jurisdiction issue is having an impact on the complete proceedings, it would be appropriate to hear both the parties on all the issues without prejudice to the aforesaid observations and decide the Civil Misc. Appeal on merits.

10. This Court reserves its rights to adjudicate the whole matter on merits in Civil Misc. Appeal, and since the order dated 16.09.2019 was virtually a non-speaking order, because it was given to understand by both the parties that the matter has become infructuous, the reopening of the same in light of todays submission would be appropriate. In the interest of justice, it would be appropriate to hear both the parties on merits and decide the Civil Misc. Appeal accordingly.

11. Since there was no opposition on that date, the order dated 16.09.2019 was passed to the conclusion that the appeal has become infructuous, therefore, the order was merely a cryptic disposal. Now since sufficient reasons have been given by both the parties for the matter to be adjudicated, therefore, a detailed order needs to be passed in the matter, even if it has to be an order of declaring it as infructuous or any other conclusion.

12. In light of the aforesaid observations, the recalling application is allowed and the order dated 16.09.2019 is recalled. It is needless to say that the main appeal stands restored with all its orders passed.

13. Let the main Civil Misc. Appeal be listed for final hearing on 29.01.2020.