M/S. INOX RENEWABLES LTD. versus JAYESH ELECTRICALS LTD.
[2021] 4 S.C.R. 376, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Facts
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   [2021] 4 S.C.R. 376
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M/S. INOX RENEWABLES LTD.
v.
JAYESH ELECTRICALS LTD.
(Civil Appeal No. 1556 of 2021)
APRIL 13, 2021
[R. F. NARIMAN AND HRISHIKESH ROY, JJ.]
Arbitration and Conciliation Act, 1996: ss. 20(1) and 34 –
Venue/place of arbitration – Shifting of – Held: By mutual agreement,
parties can shift the venue/place of arbitration – It cannot be said
that the change could only be by a written agreement – On facts, by
mutual agreement, parties specifically shifted the venue/place of
arbitration from Jaipur to Ahmedabad – It is clear that the parties
have, by mutual agreement, entered into an agreement to substitute
the venue at Jaipur with Ahmedabad as the place/seat of arbitration
u/s. 20(1) – Once the seat of arbitration is replaced by mutual
agreement to be at Ahmedabad, the courts at Rajasthan no longer
vested with jurisdiction as exclusive jurisdiction is now vested in
the Courts at Ahmedabad, given the change in the seat of arbitration
– Thus, the parties are now referred to the courts at Ahmedabad for
the resolution of the petition u/s. 34.
Disposing of the appeal, the Court
HELD: 1.1 It is clear as per paragraph 12.3 that by mutual
agreement, parties have specifically shifted the venue/place of
arbitration from Jaipur to Ahmedabad. This being so, the
submission that this could only have been done by written
agreement and that the arbitrator’s finding would really have
reference to a convenient venue
and not the seat of arbitration
cannot be accepted. [Para 11][381-F-G]
1.2 This case would show that the moment the seat is chosen
as Ahmedabad, it is akin to an exclusive jurisdiction clause,
thereby vesting the courts at Ahmedabad with exclusive
jurisdiction to deal with the arbitration. It is clear that the parties
have, by mutual agreement, entered into an agreement to
substitute the venue at Jaipur with Ahmedabad as the place/seat
of arbitration under Section 20(1) of the Arbitration and
Conciliation Act, 1996. [Para 13][384-F-G; 385-A-B]
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1.3 The venue being shifted from Jaipur to Ahmedabad is
really a shifting of the venue/place of arbitration with reference
to Section 20(1), and not with reference to Section 20(3) of the
Arbitration and Conciliation Act, 1996, as it has been made clear
that Jaipur does not continue to be the seat of arbitration and
Ahmedabad is now the seat designated by the parties, and not a
venue to hold meetings. The arbitrator has recorded that by
mutual agreement, Jaipur as a venue has gone and has been
replaced by Ahmedabad. As clause 8.5 of the Purchase Order
must be read as a whole, it is not possible to accept the submission
that the jurisdiction of Courts in Rajasthan is independent of the
venue being at Jaipur. The two clauses must be read together as
the Courts in Rajasthan have been vested with jurisdiction only
because the seat of arbitration was to be at Jaipur. Once the seat
of arbitration is replaced by mutual agreement to be at
Ahmedabad, the Courts at Rajasthan are no longer vested with
jurisdiction as exclusive jurisdiction is now vested in the Courts
at Ahmedabad, given the change in the seat of arbitration.Thus,
the impugned judgment cannot stand and is set aside. The parties
are now referred to the courts at Ahmedabad for the resolution
of the Section 34 petition. [Paras 17 and 18][386-E-H; 387-A]
Videocon Industries Limited vs. Union of India & Anr.
(2011) 6 SCC 161 : [2011] 8 SCR 569 – distinguished.
BSG SGS SOMA JV vs. NHPC Limited (2020) 4 SCC
234 : [2019] 17 SCR 742; Indus Mobile Distribution
Private Limited vs. Datawind Innovations Private
Limited, (2017) 7 SCC 678 : [2017] 4 SCR 744; Bharat
Aluminium Co. v. Kaiser Aluminium Technical Services
Inc. (2012) 9 SCC 552 : [2012] 12 SCR 327 – referred
to.
Case Law Reference
[2019] 17 SCR 742
referred to
Para 8
[2012] 12 SCR 327
referred to
Para 13
[2011] 8 SCR 569
distinguished
Para 16
[2017] 4 SCR 744
referred to
Para 17
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.1556
of 2021.
From the Judgment and Order dated 09.10.2019 of the High Court
of Gujarat at Ahmedabad in R/Special Civil Application No.9536 of 2019.
Sachin Datta, Sr. Adv., Sahil Chopra, Nitin Gupta, Atif Suhrawardy,
Anvit Seemansh, Syed Mehdi Imam, Advs. for the Appellant.
Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. Deepa
Gorasia, Jitendra M. Malkan, Alok Kumar, Ms. Neha Ambashtha, Ms.
Nandini Chhabra, Advs. for the Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. The present appeal arises out of the impugned judgment dated
9th October, 2019 passed by the High Court of Gujarat at Ahmedabad in
which Special Civil Application No. 9536 of 2019 filed by the appellant,
Inox Renewables Ltd. [“Appellant”] against the order dated 25th April,
2019 passed by the Commercial Court, Ahmedabad was dismissed,
holding that the courts at Jaipur, Rajasthan would be the courts in which
the Section 34 petition could be filed.
3. The facts of the case are as follows :
A purchase order dated 28th January, 2012 was entered into
between M/s Gujarat Fluorochemicals Ltd. [“GFL”] and the respondent
herein, Jayesh Electricals Ltd. [“Respondent”] for the manufacture
and supply of power transformers at wind farms. The arbitration clause
is contained in clause 8.5 of the purchase order which reads as follows:-
“8.5 All the dispute[s] and
differences if any shall be settled by
arbitration in the manner hereinafter provided.
Arbitration shall be conducted by three arbitrators; one each to
be nominated by you and the owner and third to be appointed as
an umpire by both the [arbitrators] in accordance to the Arbitration
and Conciliation Act, 1996. In case either party fails to appoint an
arbitrator within sixty days after receipt of notice from the other
party invoking the arbitration clause, the arbitrator appointed by
the party invoking the arbitration clause shall become the sole
arbitrator to conduct the arbitration.
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The venue of the arbitration shall be Jaipur.
The decisions of the majority of the arbitrators shall be final and
binding on both the parties. The arbitrators may from time to time
with the consent of all the parties: extend the time for making the
award. In the event of any of the arbitrators dying, neglecting,
resigning or being unable to act for any reason, it shall be lawfully
binding for the party concerned to nominate another arbitrator in
place to the outgoing arbitrator.
The arbitrator shall have full powers to review and/or revise any
decision, opinion, direction, certification or valuation in accordance
with the agreement and neither party shall be limited in proceedings
before such arbitration to the evidence or arguments for the
purpose of obtaining the said decision.
During settlement of disputes and arbitration proceedings, both
parties shall be obliged to carry out their respective obligations
under the agreement.
In the event of arbitrators’ award being not acceptable to either
party, the parties shall be free to seek lawful remedies under the
law of India and the jurisdiction for the same shall be courts in the
State of Rajasthan.”
4. A slump sale of the entire business of GFL took place in favour
of the Appellant. This took place by way of a business transfer agreement
dated 30th March, 2012 executed between the Appellant and GFL to
which the Respondent was not a party. Clause 9.11 and 9.12 of this
business transfer agreement designated
Vadodara as the seat of the
arbitration between the parties, vesting the courts at Vadodara with
exclusive jurisdiction qua disputes arising out of the agreement.
5. On an application being filed by the Respondent on 5th
September, 2014, under Section 11 of the Arbitration and Conciliation
Act, 1996, to appoint an arbitrator under the purchase order, the High
Court of Gujarat at Ahmedabad passed the following order :-
“Learned advocate for the parties jointly submitted that matter be
referred for arbitration of sole arbitrator. I request Shri C.K. Buch
(retired Judge of this Court) to act as a sole arbitrator to resolve
the disputes arising between the parties arising out [of a] contract
dated 28.01.2012.”
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD. [R. F. NARIMAN, J.]
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6. Pursuant thereto, the learned arbitrator passed an award dated
28th July, 2018 in which the Respondent was awarded as sum of Rs.
38,97,150/- plus Rs. 31,32,650 as interest on the awarded amount from
10th March, 2017 till the date of the award plus Rs. 2,81,000/- as quantified
costs. Future interest was awarded at 15% from the date of award till
the date of payment. A Section 34 petition was filed by the Appellant in
Ahmedabad which was resisted by the Respondent referring to the
business transfer agreement and stating that the courts at Vadodara
alone have jurisdiction. The Commercial Court at Ahmedabad vide
judgment and order dated 25th April, 2019, accepted the case of the
Respondent by referring to clauses 9.11 and 9.12 of the business transfer
agreement and stated that the courts at Vadodara alone would have
exclusive jurisdiction, the Ahmedabad courts not being vested with such
jurisdiction.
7. The Appellant filed Special Civil Application No. 9536 of 2019
against the aforesaid order. The High Court referred to the arbitration
clause contained in the purchase order as well as what it termed as the
“exclusive jurisdiction clause” qua the courts in Rajasthan and then held
that even assuming that Ahmedabad would have jurisdiction, if one is to
go by clause 8.5 of the purchase order, exclusive jurisdiction being vested
in the courts at Rajasthan, the appropriate court would be the court at
Jaipur. However, despite
this finding, it found no error in the Ahmedabad
Court’s decision dated 25th April, 2019 and dismissed the Special Civil
Application.
8. Shri Sachin Datta, learned Senior Counsel appearing on behalf
of the Appellant, drew our attention to the purchase order and argued
that the business transfer agreement not being between the Appellant
and the Respondent was irrelevant in the present case as was correctly
held by the impugned judgment. However, the impugned judgment failed
to consider that the arbitrator had recorded in the arbitral award that the
venue/place of arbitration was shifted by mutual consent to Ahmedabad,
as a result of which, the place of arbitration or seat of arbitration became
Ahmedabad, resulting in courts at Ahmedabad having exclusive jurisdiction
and relied heavily upon this Court’s judgment in the case of BSG SGS
SOMA JV vs. NHPC Limited, (2020) 4 SCC 234 [“BGS SGS”].
9. Shri Purvish Jitendra Malkan, learned counsel appearing on
behalf of the Respondent, argued in support of the impugned judgment.
He relied upon the judgment in Videocon Industries Limited vs.
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Union of India & Anr., (2011) 6 SCC 161 [“Videocon”] and Indus
Mobile Distribution Private Limited vs. Datawind Innovations
Private Limited, (2017) 7 SCC 678 [“Indus Mobile”] for the
proposition that even if the place of arbitration is shifted by mutual
agreement, it cannot be so done without a written agreement between
the parties. In any event, he argued that the vesting of exclusive jurisdiction
with the courts at Rajasthan, being independent from the arbitration clause
stating that the arbitration is to be held at Jaipur, would indicate that the
courts at Rajasthan alone would have exclusive jurisdiction. He also
argued that the arbitrator’s finding that the venue was shifted by mutual
consent from Jaipur to Ahmedabad has reference only to Section 20(3)
of the Arbitration and Conciliation Act, 1996 as Ahmedabad was in reality
a convenient place for the arbitration to take place, the seat of the
arbitration always remaining at Jaipur.
10. Having heard learned counsel for both parties, it is first
necessary to set out what the learned arbitrator has held in the award
with respect to the venue/place of the arbitration. In para 12.3, the learned
arbitrator holds thus :-
“12.3 There is no controversy as to the constitution of the Tribunal
between the parties and the parties have agreed to get their dispute
resolved by a sole arbitrator. As per arbitration agreement, the
venue of the arbitration was to be Jaipur. However, the parties
have mutually agreed,
irrespective of a specific clause as to the
[venue, that the place] of the arbitration would be at Ahmedabad
and not at Jaipur. The proceedings, thus, have been conducted at
Ahmedabad on constitution of the Tribunal by the learned Nominee
Judge of the Hon’ble High Court of Gujarat.”
11. What is clear, therefore, as per this paragraph is that by mutual
agreement, parties have specifically shifted the venue/place of arbitration
from Jaipur to Ahmedabad. This being so, is it not possible to accede to
the argument made by learned counsel for the Respondent that this could
only have been done by written agreement and that the arbitrator’s finding
would really have reference to a convenient venue and not the seat of
arbitration.
12. In BGS SGS (supra), this Court, after an exhaustive review
of the entire case law, concluded thus :
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD. [R. F. NARIMAN, J.]
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“32. It can thus be seen that given the new concept of “juridical
seat” of the arbitral proceedings, and the importance given by the
Arbitration Act, 1996 to this “seat”, the arbitral award is now not
only to state its date, but also the place of arbitration as determined
in accordance with Section 20. However, the definition of “court”
contained in Section 2(1)(c) of the Arbitration Act, 1940, continued
as such in the Arbitration Act, 1996, though narrowed to mean
only principal civil court and the High Court in exercise of their
original ordinary civil jurisdiction. Thus, the concept of juridical
seat of the arbitral proceedings and its relationship to the jurisdiction
of courts which are then to look into matters relating to the arbitral
proceedings - including challenges to arbitral awards - was unclear,
and had to be developed in accordance with international practice
on a case by case basis by this Court.
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48. The aforesaid amendment carried out in the definition of
“Court” is also a step showing the right direction, namely, that in
international commercial arbitrations held in India, the High Court
alone is to exercise jurisdiction over such proceedings, even where
no part of the cause of action may have arisen within the jurisdiction
of such High Court, such High Court not having ordinary original
jurisdiction. In such cases, the “place” where the award is delivered
alone is looked at, and the High
Court given jurisdiction to supervise
the arbitration proceedings, on the footing of its jurisdiction to hear
appeals from decrees of courts subordinate to it, which is only on
the basis of territorial jurisdiction which in turn relates to the “place”
where the award is made. In the light of this important change in
the law, Section 2(1)(e)(i) of the Arbitration Act, 1996 must also
be construed in the manner indicated by this judgment.
49. Take the consequence of the opposite conclusion, in the light
of the facts of a given example, as follows. New Delhi is
specifically designated to be the seat of the arbitration in the
arbitration clause between the parties. Part of the cause of action,
however, arises in several places, including where the contract is
partially to be performed, let us say, in a remote part of Uttarakhand.
If concurrent jurisdiction were to be the order of the day, despite
the seat having been located and specifically chosen by the parties,
party autonomy would suffer, which BALCO specifically states
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cannot be the case. Thus, if an application is made to a District
Court in a remote corner of the Uttarakhand hills, which then
becomes the court for the purposes of Section 42 of the Arbitration
Act, 1996 where even Section 34 applications have then to be
made, the result would be contrary to the stated intention of the
parties - as even though the parties have contemplated that a
neutral place be chosen as the seat so that the courts of that place
alone would have jurisdiction, yet, any one of five other courts in
which a part of the cause of action arises, including courts in
remote corners of the country, would also be clothed with
jurisdiction. This obviously cannot be the case. If, therefore, the
conflicting portion of the judgment of BALCO in para 96 is kept
aside for a moment, the very fact that parties have chosen a place
to be the seat would necessarily carry with it the decision of both
parties that the courts at the seat would exclusively have jurisdiction
over the entire arbitral process.
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53. In Indus Mobile Distribution (P) Ltd., after clearing the air
on the meaning of Section 20 of the Arbitration Act, 1996, the
Court in para 19 (which has already been set out hereinabove)
made it clear that the moment a seat is designated by agreement
between the parties, it is akin to an exclusive jurisdiction clause,
which would then vest the courts at the “seat” with exclusive
jurisdiction for purposes of regulating arbitral proceedings
arising
out of the agreement between the parties.
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82. On a conspectus of the aforesaid judgments, it may be
concluded that whenever there is the designation of a place of
arbitration in an arbitration clause as being the “venue” of the
arbitration proceedings, the expression “arbitration proceedings”
would make it clear that the “venue” is really the “seat” of the
arbitral proceedings, as the aforesaid expression does not include
just one or more individual or particular hearing, but the arbitration
proceedings as a whole, including the making of an award at that
place. This language has to be contrasted with language such as
“tribunals are to meet or have witnesses, experts or the parties”
where only hearings are to take place in the “venue”, which may
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD. [R. F. NARIMAN, J.]
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lead to the conclusion, other things being equal, that the venue so
stated is not the “seat” of arbitral proceedings, but only a convenient
place of meeting. Further, the fact that the arbitral proceedings
“shall be held” at a particular venue would also indicate that the
parties intended to anchor arbitral proceedings to a particular place,
signifying thereby, that that place is the seat of the arbitral
proceedings. This, coupled with there being no other significant
contrary indicia that the stated venue is merely a “venue” and not
the “seat” of the arbitral proceedings, would then conclusively
show that such a clause designates a “seat” of the arbitral
proceedings. In an International context, if a supranational body
of rules is to govern the arbitration, this would further be an indicia
that “the venue”, so stated, would be the seat of the arbitral
proceedings. In a national context, this would be replaced by the
Arbitration Act, 1996 as applying to the “stated venue”, which
then becomes the “seat” for the purposes of arbitration.
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98. However, the fact that in all the three appeals before us the
proceedings were finally held at New Delhi, and the awards were
signed in New Delhi, and not at Faridabad, would lead to the
conclusion that both parties have chosen New Delhi as the “seat”
of arbitration under Section 20(1) of the Arbitration Act, 1996.
This being the case, both parties have, therefore, chosen
that the
courts at New Delhi alone would have exclusive jurisdiction over
the arbitral proceedings. Therefore, the fact that a part of the
cause of action may have arisen at Faridabad would not be relevant
once the “seat” has been chosen, which would then amount to an
exclusive jurisdiction clause so far as Courts of the “seat” are
concerned.”
13. This case would show that the moment the seat is chosen as
Ahmedabad, it is akin to an exclusive jurisdiction clause, thereby vesting
the courts at Ahmedabad with exclusive jurisdiction to deal with the
arbitration. However, learned counsel for the Respondent referred to
and relied upon paragraphs 49 and 71 of the aforesaid judgment. Paragraph
49 only dealt with the aspect of concurrent jurisdiction as dealt with in
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services
Inc., (2012) 9 SCC 552 [“BALCO”]which does not arise on the facts
of the present case. Paragraph 71 is equally irrelevant, in that, it is clear
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that the parties have, by mutual agreement, entered into an agreement
to substitute the venue at Jaipur with Ahmedabad as the place/seat of
arbitration under Section 20(1) of the Arbitration and Conciliation Act,
1996.
14. Learned counsel for the respondent relied heavily upon
Videocon (supra) for the proposition that any change in seat could only
be by a written agreement signed by the parties. A close look at the
judgment in Videocon (supra) would show that it contained paragraph
34.12 which dealt with “venue and law of arbitration agreement” and
paragraph 35.2 which dealt with “amendment”, as follows :
“34.12. Venue and Law of Arbitration Agreement. — The venue
of sole expert, conciliation or arbitration proceedings pursuant to
this Article, unless the parties otherwise agree, shall be Kuala
Lumpur, Malaysia, and shall be conducted in the English language.
Insofar as practicable, the parties shall continue to implement the
terms of this contract notwithstanding the initiation of arbitral
proceedings and any pending claim or dispute. Notwithstanding
the provisions of Article 33.1, the arbitration agreement contained
in this Article 34 shall be governed by the laws of England.
35.2 Amendment. — This contract shall not be amended, modified,
varied or supplemented in any respect except by an instrument in
writing signed by all the parties, which shall state the date upon
which the amendment or modification shall become effective.”
15.  Given the above,
this Court concluded :-
“20. We shall first consider the question whether Kuala Lumpur
was the designated seat or juridical seat of arbitration and the
same had been shifted to London. In terms of clause 34.12 of the
PSC entered into by 5 parties, the seat of arbitration was Kuala
Lumpur, Malaysia. However, due to outbreak of epidemic SARS,
the Arbitral Tribunal decided to hold its sittings first at Amsterdam
and then at London and the parties did not object to this. In the
proceedings held on 14-10-2003 and 15-10-2003 at London, the
Arbitral Tribunal recorded the consent of the parties for shifting
the juridical seat of arbitration to London. Whether this amounted
to shifting of the physical or juridical seat of arbitration from Kuala
Lumpur to London? The decision of this would depend on a holistic
consideration of the relevant clauses of the PSC.
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD. [R. F. NARIMAN, J.]
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21. Though, it may appear repetitive, we deem it necessary to
mention that as per the terms of agreement, the seat of arbitration
was Kuala Lumpur. If the parties wanted to amend Article 34.12,
they could have done so only by a written instrument which was
required to be signed by all of them. Admittedly, neither there was
any agreement between the parties to the PSC to shift the juridical
seat of arbitration from Kuala Lumpur to London nor was any
written instrument signed by them for amending Article 34.12.
Therefore, the mere fact that the parties to the particular arbitration
had agreed for shifting of the seat of arbitration to London cannot
be interpreted as anything except physical change of the venue of
arbitration from Kuala Lumpur to London.”
16. The aforesaid judgment would have no application to the facts
of the present case as there is nothing akin to clause 35.2, which is the
amendment clause which was applied to the facts in Videocon (supra).
This being the case, the parties may mutually arrive at a seat of arbitration
and may change the seat of arbitration by mutual agreement which is
recorded by the arbitrator in his award to which no challenge is made by
either party.
17. The reliance placed by learned counsel for the Respondent on
Indus Mobile (supra), and in particular, on paragraphs 18 and 19 thereof,
would also support the Appellant’s case, inasmuch as the “venue” being
shifted from Jaipur to
Ahmedabad is really a shifting of the venue/place
of arbitration with reference to Section 20(1), and not with reference to
Section 20(3) of the Arbitration and Conciliation Act, 1996, as it has
been made clear that Jaipur does not continue to be the seat of arbitration
and Ahmedabad is now the seat designated by the parties, and not a
venue to hold meetings. The learned arbitrator has recorded that by
mutual agreement, Jaipur as a “venue” has gone and has been replaced
by Ahmedabad. As clause 8.5 of the Purchase Order must be read as a
whole, it is not possible to accept the submission of Shri Malkan that the
jurisdiction of Courts in Rajasthan is independent of the venue being at
Jaipur. The two clauses must be read together as the Courts in Rajasthan
have been vested with jurisdiction only because the seat of arbitration
was to be at Jaipur. Once the seat of arbitration is replaced by mutual
agreement to be at Ahmedabad, the Courts at Rajasthan are no longer
vested with jurisdiction as exclusive jurisdiction is now vested in the
Courts at Ahmedabad, given the change in the seat of arbitration.
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18. For all these reasons, it is clear that the impugned judgment
cannot stand and is set aside. The parties are now referred to the courts
at Ahmedabad for the resolution of the Section 34 petition.
19. Vide order dated 12.12.2019, this Court stayed the execution
proceedings in Execution Petition No. 117 of 2019 on the condition that
the Appellant shall deposit an amount of Rs.40,00,000/- in this Court,
which has been so deposited. This deposit will now be transferred to the
appropriate forum at Ahmedabad by which the Section 34 petition will
be decided. The execution proceedings shall remain stayed till the disposal
of the Section 34 petition unless the appropriate forum at Ahmedabad
varies this interim order.
20. The appeal is disposed of in the aforesaid terms.
21. Pending applications, if any, stand disposed of accordingly.
M/S. INOX RENEWABLES LTD. v. JAYESH
ELECTRICALS LTD. [R. F. NARIMAN, J.]
Nidhi Jain
Appeal disposed of.