Case: Citation Infowares Limited Vs. Equinox Corporation

but that does not effect the jurisdiction under Section 11 which falls for Part I which has been specifically held applicable in Bhatia International (cited supra). 18. The learned Judge, deciding the Indtel Technical Services case (cited supra) also has taken into consideration this aspect and has expressed in Paragraph 36 as follows: The decisions cited by Mr. Tripathi and the views of the jurists referred to in NTPCs case support such a proposition. What, however, distinguishes the various decisions and views of the authorities in this case is he fact that in Bhatia International this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996 indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of another country, the parties would be entitled to invoke the provisions of Part I of the aforesaid Act and consequently the application made under Section 11 thereof would be maintainable. 19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion. 20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected. 21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1. I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable. 22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part I. The law laid down, therefore, is clearly binding. 23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed. 24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows. 25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter. 26. In so far as the Bay Hotel and Resort case (cited supra) is concerned the reliance is placed on paragraph 35 of the said decision to the following effect: Two points in the speech of Lord Wilberforce are notable here. First, he said that in the normal case where the contract itself is governed by English law, any arbitration would be held under English procedure. Secondly, he said that the mere fact that the arbitrator was to set either partly or exclusively in another part of the United Kingdom, or, for that matter, abroad, would not lead to a different result; the place might be chosen for many reasons of convenience or be purely accidental; a choice so made should not affect the parties rights. The passage in his speech is at page 616 of the report. These observations apply to the normal case which is not a case here. 27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part IThe law laid down, therefore, is clearly binding23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy.