R.F. NARIMAN, J.

1. Leave granted.

2. Signature Not Verified Three appeals before us raise questions as to maintainability of ap- Digitally signed by R NATARAJAN Date: 2019.12.10 peals under Section 37 of the Arbitration and Conciliation Act, 1996 17:44:59 IST Reason: (hereinafter referred to as “the Arbitration Act, 1996 ”), and, given the 1 arbitration clause in these proceedings, whether the “seat” of the arbi-

tration proceedings is New Delhi or Faridabad, consequent upon which a petition under Section 34 of the Arbitration Act, 1996 may be filed dependent on where the seat of arbitration is located.

3. At the outset, the facts in SLP (Civil) No.25618 of 2018 are set out as follows. On 16.01.2004, the Petitioner was awarded a contract for construction of Diversion Tunnels, Coffer Dams, Concrete Gravity Dams, Plunge Pools and Cutoff Walls of Subansri Lower Hydroelec- tric Project on river Subansri, with an installed capacity of 2000 MW, stated to be the largest Hydropower project yet in India. The project site is located in the lower Subansri districts in the States of Assam and Arunachal Pradesh. Clause 67.3 of the agreement between the parties provides for dispute resolution through arbitration. Clause 67.3 reads as follows:

dian Arbitration and Conciliation Act, 1996 , or any statutory amendment thereof. The arbitral tribunal shall consist of 3 arbitra- tors, one each to be appointed by the Em-

ployer and the Contractor. The third Arbitra- tor shall be chosen by the two Arbitrators so appointed by the Parties and shall act as Presiding arbitrator. In case of failure of the two arbitrators, appointed by the par-

ties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding arbitrator shall be appointed by the President of the Institution of Engineers (India). For the purposes of this Sub-

Clause, the term “Indian Contractor” means a contractor who is registered in In-

dia and is a juridic person created under Indian law as well as a joint venture be-

tween such a contractor and a Foreign Contractor.

(ii) In the case of a dispute with a Foreign Contractor, the dispute shall be finally set- tled in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996 and read with UNCITRAL Arbitration Rules. The arbitral tribunal shall consist of three Arbitrators, one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties and shall act as Presiding arbitrator. In case of failure of the two arbitrators appointed by the parties to reach a consensus within a period of 30 days from their appointment on the Presiding Arbitrator to be appointed subsequently, the Presiding arbitrator shall be appointed by the President of the Insti-

tution of Engineers (India). For the pur-

poses of this Clause 67, the term “Foreign Contractor” means a contractor who is not registered in India and is not a juridic per-

son created under Indian Law. In case of any contradiction between Indian Arbitra-

tion and Conciliation Act, 1996 and UNCI-

TRAL Arbitration Rules, the provisions in the Indian Arbitration and Conciliation Act, 1996 shall prevail.

(iii) Arbitration may be commenced prior to or after completion of the Works, provided that the obligations of the Employers, the Engineer, and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.

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(v) If one of the parties fail to appoint its arbi-

trator in pursuance of sub-clause (i) and (ii) above, within 30 days after receipt of the notice of the appointment of its arbitrator by the other party, then the President of the Institution of Engineers (India), both in cases of foreign contractors as well as In-

dian Contractors, shall appoint the arbitra- tor. A certified copy of the order of the President of Institution of Engineers (India), making such an appointment shall be fur-

nished to each of the parties.

(vi) Arbitration Proceedings shall be held at New Delhi/Faridabad, India and the lan-

guage of the arbitration proceedings and that of all documents and communications between the parties shall be English.

(vii) The decision of the majority of arbitrators shall be final and binding upon both par-

ties. The cost and expenses of Arbitration shall be borne in such a manner as deter-

mined by the arbitral tribunal. However, the expenses incurred by each party in con-

nection with the preparation, presentation etc. of its proceedings as also the fees and expenses paid to the arbitrator appointed by such party on its behalf shall be borne by each party itself.”

4. On 16.05.2011, a Notice of Arbitration was issued by the Petitioner to the Respondent, in regard to payment of compensation for losses suf- fered due to abnormal delays and additional costs as a result of hin- drances caused by the Respondent. A three-member Arbitral Tribunal was constituted as per clause 67.3 of the agreement under the Arbi- tration Act, 1996. Pursuant thereto, the Petitioner filed its Statement of Claim seeking recovery of an amount of INR 986.60 crores plus CHF 1060619. Between August 2011 and August 2016, seventy-one sit- tings of the Arbitral Tribunal took place at New Delhi. The Tribunal then delivered its unanimous award at New Delhi on 26.08.2016, by which the claims of the Petitioner aggregating to INR 424,81,54,096.29 were allowed, together with simple interest at 14% per annum till the date of actual payment. On 04.10.2016, in view of certain computational and typographical errors in the arbitral award, 5 the figure of 424,81,54,096.29 was rectified to INR 424,70,52,126.66.

On 03.01.2017, being aggrieved by the arbitral award and the rectifi- cation thereto, the Respondent filed an application under Section 34 of the Arbitration Act, 1996 seeking to set aside these awards before the Court of the District and Sessions Judge, Faridabad, Haryana. On 28.04.2017, the Petitioner filed an application under Section 151 read with Order VII Rule 10 of the Code of Civil Procedure , 1908 (here- inafter referred to as the “ CPC ”) and Section 2(1)(e)(i) of the Arbitra- tion Act, 1996, seeking a return of the petition filed under Section 34 for presentation before the appropriate Court at New Delhi and/or the District Judge at Dhemaji, Assam. In November, 2017, after the con- stitution of a Special Commercial Court at Gurugram, the Section 34 petition filed at Faridabad was transferred to the said Gurugram Com- mercial Court and numbered as Arbitration Case No.74 (CIS No. ARB/118/2017).

5. On 21.12.2017, the Special Commercial Court, Gurugram allowed the application of the Petitioner, and returned the Section 34 petition for presentation to the proper court having jurisdiction in New Delhi. On 15.02.2018, the Respondent filed an appeal under Section 37 of the Arbitration Act, 1996 read with Section 13(1) of the Commercial 6 Courts Act, 2015 before the High Court of Punjab and Haryana at Chandigarh. On 12.09.2018, the impugned judgment was delivered by the Punjab and Haryana High Court, in which it was held that the appeal filed under Section 37 of the Arbitration Act, 1996 was main- tainable, and that Delhi being only a convenient venue where arbitral proceedings were held and not the seat of the arbitration proceed- ings, Faridabad would have jurisdiction on the basis of the cause of action having arisen in part in Faridabad. As a result, the appeal was allowed and the judgment of the Special Commercial Court, Guru- gram was set aside.

6. Dr. Abhishek Manu Singhvi, learned Senior Advocate appearing on behalf of the Petitioner in SLP (C) No.25618 of 2018, has assailed the impugned High Court judgment on both counts. According to him, on a combined reading of Section 13 of the Commercial Courts Act, 2015 and Section 37 of the Arbitration Act, 1996, it becomes clear that Sec- tion 13 of the Commercial Courts Act, 2015 only provides the forum for challenge, whereas Section 37 of the Arbitration Act, 1996 - which is expressly referred to in the proviso to Section 13(1) of the Commer- cial Courts Act, 2015 - circumscribes the right of appeal. He con- tended that this when read with Section 5 of the Arbitration Act, 1996, 7 makes it clear that only certain judgments and orders are appealable, and no appeal lies under any provision outside Section 37 of the Arbi- tration Act, 1996. He contended that the High Court was manifestly wrong when it said that the present appeal was appealable under Section 37(1)(c) of the Arbitration Act, 1996 as being an appeal against an order refusing to set aside an arbitral award under Section 34 of the Arbitration Act, 1996. According to Dr. Singhvi, an order which allows an application under Section 151 read with Order VII Rule 10 of the CPC can by no stretch of the imagination amount to an order refusing to set aside an arbitral award under Section 34 of the Arbitration Act, 1996. For this proposition, he strongly relied upon on our judgment in Kandla Export Corporation & Anr. v. M/s OCI Cor- poration & Anr. (2018) 14 SCC 715. On the second point, he read out the impugned judgment in detail, and stated that the ultimate con- clusion that New Delhi was only a “venue” and not the “seat” of the ar- bitration was incorrect, as the parties have chosen to have sittings at New Delhi, as a result of which it is clear that the Arbitral Tribunal con- sidered that the award made at New Delhi would be made at “the seat” of the arbitral proceedings between the parties. He further added that it was clear that even if both New Delhi and Faridabad had 8 jurisdiction, New Delhi being the choice of the parties, the principle contained in Hakam Singh v. M/s. Gammon (India) Ltd., (1971) 1 SCC 286, would govern. He referred in copious detail to many judg- ments of this Court, including the Five Judge Bench in Bharat Alu- minium Co. (BALCO) v. Kaiser Aluminium Technical Service, Inc., ( 2012) 9 SCC 552, Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited & Ors. , (2017) 7 SCC 678, and various other judgments to buttress his submissions. According to him, the recent judgment delivered in Union of India v. Hardy Ex- ploration and Production (India) Inc. 2018 SCC Online SC 1640 queers the pitch, in that it is directly contrary to the Five Judge bench decision in BALCO (supra). It is only as a result of the confusion caused by judgments such as Hardy Exploration and Production (India) Inc. (supra) that the impugned judgment has arrived at the wrong conclusion that New Delhi is not the “seat”, but only the “venue” of the present arbitral proceedings. He, therefore, in the course of his submissions argued that this confusion should be re- moved, and exhorted us to declare that Hardy Exploration and Pro- duction (India) Inc. (supra) was not correctly decided, being contrary to the larger bench in BALCO (supra).

7. Dr. Singhvi in the course of his submissions also referred pointedly to paragraph 96 of BALCO (supra), and argued that not only was the example given in the said paragraph contrary to the theory of concur- rent jurisdiction propounded therein, but was also contrary to subse- quent paragraphs in the said judgment, in which it was clearly held that a clause in an agreement stating the “seat” of arbitration is akin to an exclusive jurisdiction clause, which would put paid to any theory of concurrent jurisdiction. As a matter of fact, two subsequent decisions have understood the ratio of BALCO (supra) to be that once the “seat” is indicated in an arbitration agreement, it is akin to an exclu- sive jurisdiction clause, which would oust the jurisdiction of courts other than courts at the seat. For this purpose he expressly referred to and relied upon Reliance Industries Ltd. v. Union of India (2014) 7 SCC 603 and Indus Mobile Distribution Pvt. Ltd. (supra).

8. Shri Arunabh Chowdhury, appearing in SLP (Civil) No. 25848 of 2018, argued that unlike the first SLP argued by Dr. Singhvi, in his case, the Notice for Arbitration was sent to the Assam site-office of the Respon- dent, and not routed through the Assam office to be sent to the Head Office at Faridabad, thereby making the observations based on Sec- tion 21 of the Arbitration Act,1996 in the impugned judgment inappli- 10 cable on the facts of his case. He supported Dr. Singhvi’s argument that the appeal filed under Section 37 of the Arbitration Act, 1996 would not be maintainable, and cited several judgments, which will be dealt with a little later.

9. Shri Ankit Chaturvedi, appearing in SLP (Civil) No. 28062 of 2018, stressed one important difference in the facts of his case, which is, that the arbitral award made in his case expressly referred to Section 31(4) of the Arbitration Act, 1996, and stated that the place of arbitra- tion, as determined in accordance with Section 20 of the Arbitration Act, 1996, was New Delhi. Therefore, this being the “seat” as deter- mined by the Arbitral Tribunal in this case, a challenge under Section 34 of the Arbitration Act, 1996 could only be made in the courts at New Delhi.

10. Smt. Maninder Acharya, learned Additional Solicitor General, sup-

ported the judgment under appeal. She first argued that the reasoning of the impugned judgment, that an order passed under Section 151 read with Order VII Rule 10 of the CPC would amount to a refusal to set aside an arbitral award, is correct, and relied heavily upon a Divi- sion Bench judgment of the Delhi High Court in Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd. 2018 SCC Online Del 9338 for 11 this purpose. On the second point, she argued that the arbitration clause did not expressly state that either New Delhi or Faridabad was to be the seat of the Arbitral Tribunal. Therefore, the arbitration clause only referred to a convenient venue, and the fact that the sittings were held at New Delhi, therefore, would not make New Delhi the seat of the arbitration under Section 20(1) of the Arbitration Act, 1996. Ac- cording to her, since the agreements in the present case were signed in Faridabad, and since notices were sent by the Petitioners to the Respondent’s Faridabad office, part of the cause of action clearly arose in Faridabad, as a result of which the courts in Faridabad would be clothed with jurisdiction to decide a Section 34 application. She stressed the fact that in BALCO (supra), even assuming that New Delhi was the seat of arbitration, both New Delhi and Faridabad would have concurrent jurisdiction - New Delhi being a neutral forum in which no part of the cause of action arose, and Faridabad being a chosen forum where a part of the cause of action has arisen. When read with Section 42 of the Arbitration Act, 1996, since the Court at Faridabad was first approached by filing an application under Section 34 of the Arbitration Act,1996, that Court alone would have jurisdic- tion, as a result of which the impugned judgment ought to be affirmed. 12 Maintainability of the appeals under Section 37 of the Arbitration Act, 1996

11. Section 37(1) of the Arbitration Act, 1996 reads as follows:

12. Section 13 of the Commercial Courts Act, 2015 reads as follows:

vision of that High Court within a period of sixty days from the date of the judgment of order:

der or decree of a Commercial Division or Com- mercial Court otherwise than in accordance with the provisions of the Act.”

13. The interplay between Section 37 of the Arbitration Act, 1996 and Section 13 of the Commercial Courts Act, 2015, has been laid down in some detail in the judgment in Kandla Export Corporation (supra). The precise question that arose in Kandla Export Corpora- tion (supra) was as to whether an appeal, which was not maintain- able under Section 50 of the Arbitration Act,1996, is nonetheless maintainable under Section 13(1) of the Commercial Courts Act, 2015. In this context, after setting out various provisions of the Com- mercial Courts Act, 2015 and the Arbitration Act, 1996 , this Court held:

14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Divi- sion of the High Court that are specifically enumer- ated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifi- cally enumerated under Order 43 CPC would, there- fore, not be appealable, and appeals that are men- tioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appel- late Division of a High Court.

15. Thus, an order which refers parties to arbitration under Section 8 , not being appealable under Section 37(1)(a) , would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an ap- peal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commer- cial Courts Act .

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20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. , (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it en- acted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provi- sion contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in 15 para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. , (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not men- tioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitra- tion relating to appeals arising out of commercial dis- putes, would obviously not apply to cases covered by Section 50 of the Arbitration Act.

21. However, the question still arises as to why Sec- tion 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self-contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act , Parliament thought, in its wisdom, that it was necessary to em- phasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Inciden- tally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act , namely, a category where an order is made under Section 8 refusing to refer parties to arbi- tration. Parliament may have found it necessary to emphasise the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, not be appeal- able under Section 13(1) of the Commercial Courts Act. Whatever may be the ultimate reason for includ- ing Section 37 of the Arbitration Act in the proviso to Section 13(1) , the ratio decidendi of the judgment in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jin- dal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] would apply, and this being so, appeals 16 filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone.

22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of for- eign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left “to the Court authorised by law to hear appeals from such orders”. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.

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27. The matter can be looked at from a slightly differ- ent angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, en- forcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d'être for the enactment of the Commercial Courts Act is that com- mercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs 1 crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy en- forcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs 1 crore or more, if the appellants are correct, enforce- 17 ment of such award would be further delayed by pro-

viding an appeal under Section 13(1) of the Commer- cial Courts Act . Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act viz. speedy resolution of disputes of a commercial na- ture involving a sum of Rs 1 crore and over. For this reason also, we feel that Section 13(1) of the Com- mercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doc- trine of harmonious construction of both statutes, it is clear that they are best harmonised by giving effect to the special statute i.e. the Arbitration Act , vis-à-vis the more general statute, namely, the Commercial Courts Act , being left to operate in spheres other than arbi- tration.”

14. Given the fact that there is no independent right of appeal under Sec- tion 13(1) of the Commercial Courts Act, 2015 , which merely provides the forum of filing appeals, it is the parameters of Section 37 of the Ar- bitration Act,1996 alone which have to be looked at in order to deter- mine whether the present appeals were maintainable. Section 37(1) makes it clear that appeals shall only lie from the orders set out in sub-clauses (a), (b) and (c) and from no others. The pigeonhole that the High Court in the impugned judgement has chosen to say that the appeals in the present cases were maintainable is sub-clause (c). Ac- cording to the High Court, even where a Section 34 application is or- 18 dered to be returned to the appropriate Court, such order would amount to an order “refusing to set aside an arbitral award under Sec- tion 34”.

15. Interestingly, under the proviso to Section 13(1A) of the Commercial Courts Act, 2015, Order XLIII of the CPC is also mentioned. Order XLIII Rule(1)(a) reads as follows:

16. This provision is conspicuous by its absence in Section 37 of the Arbi- tration Act, 1996, which alone can be looked at for the purpose of fil- ing appeals against orders setting aside, or refusing to set aside awards under Section 34 . Also, what is missed by the impugned judg- ment is the words “under Section 34 ”. Thus, the refusal to set aside an arbitral award must be under Section 34 , i.e., after the grounds set out in Section 34 have been applied to the arbitral award in question, and after the Court has turned down such grounds. Admittedly, on the facts of these cases, there was no adjudication under Section 34 of the Arbitration Act, 1996 - all that was done was that the Special 19 Commercial Court at Gurugram allowed an application filed under Section 151 read with Order VII Rule 10 CPC , determining that the Special Commercial Court at Gurugram had no jurisdiction to pro- ceed further with the Section 34 application, and therefore, such ap- plication would have to be returned to the competent court situate at New Delhi.

17. Shri Anurabh Chowdhury referred to a number of judgments in which a well-settled proposition was elucidated, i.e. that an appeal is a crea- ture of statute, and must either be found within the four corners of the statute, or not be there be at all. In support thereof, he referred to Mu- nicipal Corporation of Delhi & Ors. v. International Security & In- telligence Agency Ltd. (2004) 3 SCC 250 (at paragraphs 14 and

15), and Arcot Textile Mills Ltd. v. Regional Provident Fund Com- missioner and Ors. (2013) 16 SCC 1 (at paragraph 20). He also re- ferred to a recent Delhi High Court judgment reported as South Delhi Municipal Corporation v. Tech Mahindra EFA (OS) (Comm.) 3 of 2019, in which the Delhi High Court held that an order of a Single Judge, which directed the deposit of 50% of the awarded amount, would not be appealable under Section 37 of the Arbitration Act, 1996 20 read with the Commercial Courts Act, 2015 . In the course of discus-

sion the Delhi High Court said:

18. Shri Chowdhury also referred to another Delhi High Court judgment reported as Hamanprit Singh Sidhu v. Arcadia Shares & Stock Brokers Pvt. Ltd 2016 234 DLT 30 (DB), in which a learned Single 21 Judge of the Delhi High Court allowed an application for condonation of delay in filing a Section 34 petition. The Division Bench, in holding that an appeal against such an order would not be maintainable under Section 37 of the Arbitration Act, 1996, read with the Commercial Courts Act, 2015 held:

der Section 34 . We are unable to accept this proposi- tion. By virtue of the impugned order, the arbitral award dated 10.09.2013 has not been set aside. Nor has the court, at this stage, refused to set aside the said arbitral award under Section 34 of the A&C Act. In fact, the appellant in whose favour the award has been made, would only be aggrieved if the award were to have been set aside in whole or in part. That has not happened. What the learned single Judge has done is to have condoned the delay in re-filing of the petition under Section 34 . This has not, in any way, impacted the award.” 22

19. The reasoning in this judgment commends itself to us, as a distinction is made between judgments which either set aside, or refuse to set aside, an arbitral award after the court applies its mind to Section 34 of the Arbitration Act, 1996, as against preliminary orders of condona- tion of delay, which do not in any way impact the arbitral award that has been assailed.

20. However, Smt. Acharya relied heavily upon the Division Bench judg- ment of the Delhi High Court in Antrix Corporation Ltd. (supra). On the facts of that case, on 28.02.2017, a learned Single Judge of the Delhi High Court ruled that Antrix’s petition under Section 9 of the Ar- bitration Act, 1996 before the Bangalore Court was not maintainable, and that Devas’ petition under Section 9 was maintainable, the bar under Section 42 of the Arbitration Act, 1996 being inapplicable. The order also held that consequently, Antrix’s petition under Section 34 of the Arbitration Act, 1996 before the Bangalore City Civil Court would not be maintainable, inasmuch as Devas’ petition filed in Delhi under Section 9 was filed earlier. The learned Single Judge then listed the matter for hearing on merits and directed Antrix to file an affidavit of an authorised officer, enclosing therewith its audited Balance Sheets, and Profit and Loss Accounts for the past three years. Antrix then ap- 23 pealed against this order, to which a preliminary objection was taken, stating that this appeal would not be maintainable under Section 37 of the Arbitration Act, 1996. After setting out Section 13 of the Commer- cial Courts Act, 2015 and Sections 37 and 42 of the Arbitration Act, 1996, the Division Bench noticed Hamanprit Singh Sidhu (supra) in paragraph 39, without at all adverting to paragraph 10 of the judgment (which is set out hereinabove). Thereafter, the Court held as follows:

der Section 9 , because the reason that those details are sought are only to seek consequential or follow up relief in the event of the respondent's failure to fur- nish securities. Therefore, an order mandating a party to disclose his assets or file his accounts would also be an interim measure within the meaning of Section

9. In this case, through Paragraph 57 of the im- pugned order, the Learned Single Judge had directed Antrix to file an affidavit of an authorised officer, en- closing therewith its audited balance sheets and profit and loss accounts for the past three years. Keeping in mind the view of the Court in Samson Mar-

itime (supra), which this Court is in agreement with, this would also in effect be a Section 9 order as those details are sought for the purpose of adjudicating whether consequential relief could be given to Devas of securing the amount due from the arbitral award against Antrix. Moreover, this Court cannot take a doctrinaire and unbending approach in this matter, when it is clear that Antrix has suffered all but one re- maining blow through the impugned order, and there- fore, the Court should not wait till it suffers the final blow (that of the final Section 9 order) before it can assume jurisdiction over the appeal. The court's di- rection to Antrix furnish an affidavit along with the par- ticulars sought, is to aid its order with respect to a possible distraint, attachment or further such conse- quential order towards interim relief. Such an order would not be made unless the court directs this as a prelude, or important step towards the inevitable in- terim order, which would be just consequential. Therefore, the Court finds that Antrix's appeal against the impugned order is maintainable.

44. This court also finds merit in Antrix's argument that as regards the single judge's observations that the Bangalore court cannot proceed with the matter, the impugned order is really final. It precludes in ef- fect, Antrix from proceeding with its Section 34 peti- tion before that court (in turn based on the pending Section 9 petition before that court). If Antrix were to accept the ruling, the effect would be to denude the Bangalore court of jurisdiction. It was contended-and correctly, in this court's opinion that whereas a court acts within jurisdiction in deciding whether it has or does not have jurisdiction over a cause of a matter, the declaration by it about the lack of jurisdiction of another court, based on the appreciation of the matter before the latter court is undeniably an adverse order. Allowing that to stand would prejudice Antrix for all times.”

21. It can be seen that the reasoning in this judgment would have no ap- plication to the facts of the present case. The Division Bench held that directing Antrix to file an affidavit, enclosing therewith its audited Bal- ance Sheets and Profit and Loss Account for the last three years, is it- self an interim order passed under Section 9 of the Arbitration Act, 1996. The further reasoning of the Court that the direction to Antrix to furnish an affidavit is to aid a future interim order, which would be just consequential, does not commend itself to us. A step towards an in- terim order would not amount to granting, or refusing to grant, any measure under Section 9 of the Arbitration Act, 1996. The case is also distinguishable for the reason that, as regards the Bangalore Court, 26 which cannot proceed further with the matter, the impugned order therein is really final and would, therefore, also be appealable under Section 37 . For all these reasons, this judgment is wholly distinguish- able and would not apply to the facts of the present case. We may also advert to the fact that our judgment in Kandla (supra) was deliv- ered on 07.02.2018, and was missed by the Division Bench in Antrix Corporation Ltd. (supra), as the Division Bench had reserved judg- ment on 06.12.2017, even though it ultimately pronounced the judg- ment on 30.05.2018. The judgment in South Delhi Municipal Corpo- ration (supra) was decided after reference was made to Kandla (supra), resulting in a deposit order being held to be not appealable under Section 37 of the Arbitration Act, 1996.

22. It is clear, therefore, that the appeals filed in the present case do not fall within Section 37 of the Arbitration Act,1996 and are not maintain- able.

23. We now examine the second part of the challenge made by the Peti- tioners to the impugned judgment, which relates to the determination of the “seat” of the arbitral proceedings between the parties. The im- pugned judgment of the Punjab and Haryana High Court referred to BALCO (supra) and Indus Mobile Distribution Pvt. Ltd. (supra), 27 and other judgments of this Court, in order to arrive at the conclusion that the arbitration clause in the present case does not refer to the “seat” of arbitration, but only refers to the “venue” of arbitration. Con- sequently, the impugned judgment holds that since a part of the cause of action had arisen in Faridabad, and the Faridabad Commer- cial Court was approached first, the Faridabad Court alone would have jurisdiction over the arbitral proceedings, and the courts at New Delhi would have no such jurisdiction. The correctness of these propositions has been vehemently assailed before us, and it is there- fore important to lay down the law on what constitutes the “juridical seat” of arbitral proceedings, and whether, once the seat is delineated by the arbitration agreement, courts at the place of the seat would alone thereafter have exclusive jurisdiction over the arbitral proceed- ings.

The juridical seat of the arbitral proceedings 28

24. The Arbitration Act, 1940 did not refer to the “juridical seat” of the arbi- tral proceedings at all. Under the scheme of the Arbitration Act, 1940 , Section 14 stated as follows:

son claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, to- gether with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. (3) Where the arbitrators or umpire state a special case under clause (b) of Section 13 , the Court, af- ter giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of, the award.

25. When the award was signed and filed in Court, a judgment in terms of the award had then to be made as follows:

26. It was in this setting that “Court” was defined by Section 2(c) of the Ar- bitration Act, 1940 as follows:

matter of a suit, but does not, except for the pur- pose of arbitration proceedings under Section 21 , include a Small Cause Court;”

27. Section 31 , which dealt with the Court in which an award may be filed then stated as follows:

ter to which the reference relates.

(2) Notwithstanding anything contained in any other law for the time being in force and save as other- wise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the 30 agreement- or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court.

(3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such pro- ceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court.

(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application un- der this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdic- tion over the arbitration proceedings-, and all sub- sequent applications arising, out of that reference, and the arbitration proceedings shall be made in that Court and in no other Court.”

28. It will be noticed that in this statutory setting, the “place” in which the award is made is not referred to at all. Given this fact, the “Court” was defined as any Civil Court having jurisdiction to decide questions forming the subject matter of the reference to arbitration if the same had been the subject matter of a suit.

29. The UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985) (hereinafter referred to as the “UNCITRAL Model Law”) was then adopted by this country. The UNCITRAL Model 31 Law introduced the concept of “place” or “seat” of the arbitral pro- ceedings as follows:

xxx xxx xxx Article 2. Definitions and rules of interpretation xxx xxx xxx

(c)“court” means a body or organ of the judicial sys- tem of a State;

xxx xxx xxx Article 6. Court or other authority for certain func- tions of arbitration assistance and supervision The functions referred to in articles 11(3) , 11(4) , 13(3) , 14 , 16(3) and 34(2) shall be performed by ... [Each State enacting this model law specifies the court, courts or, where referred to therein, other au- thority competent to perform these functions.] xxx xxx xxx Article 20. Place of arbitration (1) The parties are free to agree on the place of arbi- tration. Failing such agreement, the place of arbitra- tion shall be determined by the arbitral tribunal having 32 regard to the circumstances of the case, including the convenience of the parties.

(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for in- spection of goods, other property or documents. xxx xxx xxx Article 31. Form and contents of award xxx xxx xxx (3) The award shall state its date and the place of ar- bitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place.”

30. The Arbitration Act, 1996 repealed the Arbitration Act, 1940 . As is stated in its preamble, the Arbitration Act, 1996 adopted provisions of the UNCITRAL Model Law, as they had made a significant contribu- tion to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial re- lations.

31. The Arbitration Act, 1996 refers to “the place” of arbitration and de- fines ‘Court’, and indicates which Courts have jurisdiction in relation to arbitral proceedings in several sections in Part I. Section 2(1)(e) and Section 2(2) of the Arbitration Act, 1996 are as follows: 33

xxx xxx xxx

(e)“Court” means-

(i) in case of an arbitration other than interna-

tional commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having ju- risdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbi-

tration, the High Court in exercise of its ordi- nary original civil jurisdiction, having jurisdic- tion to decide the questions forming the sub- ject-matter of a suit if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear ap-

peals from decrees of courts subordinate to that High Court;

xxx xxx xxx (2) This part shall apply where the place of arbitra- tion is in India.

Provided that subject to an agreement to the contrary, the provisions of sections 9 , 27 and clause (a) of sub-section (1) and sub-section (3) of Section 37 shall also apply to international commercial arbitration, even if the place of arbi- tration is outside India, and an arbitral award 34 made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.

32. Sections 20 , 31(4) and 42 of the Arbitration Act, 1996 read as follows:

(2)Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the ar- bitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (3)Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing wit- nesses, experts or the parties, or for inspection of documents, goods or other property.” “31. Form and contents of arbitral award.-

xxx xxx xxx (4)The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.” “42. Jurisdiction.- Notwithstanding anything contained elsewhere in this Part or any other law for the time be- ing in force, where with respect to an arbitration agree- ment any application under this Part has been made in any Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceed- ings shall be made in that Court and no other Court.” 35

33. It will thus be seen that the new provisions contained in Sections 20 and 31(4) of the Arbitration Act, 1996 are a replication of Articles 20 and 31(3) of the UNCITRAL Model Law, in which pride of place is given to the juridical seat of the arbitral proceedings. However, the definition of “court” in Section 2(1)(e) of the Arbitration Act, 1996 con- tinues the definition contained in the Arbitration Act, 1940 , but re- places any and every civil court by only the principal civil court of orig- inal jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction. Section 42 of the Arbitration Act, 1996 also substantially follows the drill of Section 31(4) of the Arbitration Act, 1940.

34. 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 Sec- tion 2(1)(c) of the Arbitration Act, 1940 , continued as such in the Arbi- tration Act, 1996, though narrowed to mean only principal civil court and the High Court in exercise of their original ordinary civil jurisdic- tion. Thus, the concept of juridical seat of the arbitral proceedings and 36 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.

35. Some of the early decisions of this Court did not properly distinguish between “seat” and “venue” of an arbitral proceeding. The Five Judge Bench in BALCO (supra) dealt with this problem as follows:

sides, Redfern and Hunter (Eds.), Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009).] This, how- ever, does not mean that all the proceedings of the arbitration have to take place at the seat of the arbi- tration. The arbitrators at times hold meetings at more convenient locations. This is necessary as arbitrators often come from different countries. It may, therefore, on occasions be convenient to hold some of the meetings in a location which may be convenient to all. Such a situation was examined by the Court of Ap- peal in England in Naviera Amazonica Peruana S.A. v. Compania International de Seguros del Peru [(1988) 1 Lloyd's Rep 116 (CA)] wherein at p. 121 it is observed as follows:

ted that Section 2(1)(e) , Section 20 and Section 28 read with Section 45 and Section 48(1)(e) make it clear that Part I is not limited only to arbitrations which take place in India. These provisions indicate that Arbitration Act, 1996 is subject matter centric and not exclusively seat centric. Therefore, "seat" is not the "centre of gravity" so far as the Arbitration Act, 1996 is concerned. We are of the considered opinion that the aforesaid provisions have to be interpreted by keeping the principle of territoriality at the forefront. We have earlier observed that Section 2(2) does not make Part I applicable to arbitrations seated or held outside India. In view of the expression used in Sec- tion 2(2), the maxim expressum facit cessare tacitum, would not permit by interpretation to hold that Part I would also apply to arbitrations held outside the terri- tory of India. The expression "this Part shall apply where the place of arbitration is in India" necessarily excludes application of Part I to arbitration seated or held outside India. It appears to us that neither of the provisions relied upon by the Learned Counsel for the Appellants would make any section of Part I applica- ble to arbitration seated outside India. It will be appo- site now to consider each of the aforesaid provisions in turn.

96. Section 2(1)(e) of the Arbitration Act, 1996 reads as under:

ing jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.” We are of the opinion, the term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)

(e) is confined to Part I. It has a reference and con- nection with the process of dispute resolution. Its pur- pose is to identify the courts having supervisory con- trol over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the pro- vision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recog- nition to party autonomy. Accepting the narrow con- struction as projected by the Learned Counsel for the Appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given ju- risdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be re- quired to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as be- tween a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an in- terim order Under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the Courts of Delhi being the 41 Courts having supervisory jurisdiction over the arbi- tration proceedings and the tribunal. This would be ir- respective of the fact that the obligations to be per- formed under the contract were to be performed ei- ther at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject matter of the suit is sit- uated and the courts within the jurisdiction of which the dispute resolution, i.e., arbitration is located. xxx xxx xxx

98. We now come to Section 20 , which is as under:

(2) Failing any agreement referred to in Sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Notwithstanding Sub-section (1) or Sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appro- priate for consultation among its members, for hear- ing witnesses, experts or the parties, or for inspection of documents, good or other property."

A plain reading of Section 20 leaves no room for doubt that where the place of arbitration is in India, the parties are free to agree to any "place" or "seat" within India, be it Delhi, Mumbai etc. In the absence of the parties' agreement thereto, Section 20(2) au- thorizes the tribunal to determine the place/seat of such arbitration. Section 20(3) enables the tribunal to meet at any place for conducting hearings at a place of convenience in matters such as consultations 42 among its members for hearing witnesses, experts or the parties.

99. The fixation of the most convenient "venue" is taken care of by Section 20(3) . Section 20 , has to be read in the context of Section 2(2) , which places a threshold limitation on the applicability of Part I, where the place of arbitration is in India. Therefore, Section 20 would also not support the submission of the extra-territorial applicability of Part I, as can- vassed by the Learned Counsel for the Appellants, so far as purely domestic arbitration is concerned.” (emphasis supplied)

36. The Court then went on to refer to several English judgments and specifically italicised several parts of the judgment in Roger Shashoua & Ors. v. Mukesh Sharma [2009] EWHC 957 (Comm) as follows:

37. Finally, the conclusion drawn in paragraph 116 was as follows:

38. Also, in paragraph 123, the Court held as follows:

39. The Court then concluded in paragraph 194 as follows:

cation to international commercial arbitration held out- side India. Therefore, such awards would only be 45 subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accor- dance with the provisions contained in Part II of the Arbitration Act, 1996 . In our opinion, the provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermin- gling of the provisions contained in Part I with the pro- visions contained in Part II of the Arbitration Act, 1996 .

40. A reading of paragraphs 75, 76, 96, 110, 116, 123 and 194 of BALCO (supra) would show that where parties have selected the seat of arbi- tration in their agreement, such selection would then amount to an ex- clusive jurisdiction clause, as the parties have now indicated that the Courts at the “seat” would alone have jurisdiction to entertain chal- lenges against the arbitral award which have been made at the seat. The example given in paragraph 96 buttresses this proposition, and is supported by the previous and subsequent paragraphs pointed out hereinabove. The BALCO judgment (supra), when read as a whole, applies the concept of “seat” as laid down by the English judgments (and which is in Section 20 of the Arbitration Act, 1996), by harmo- niously construing Section 20 with Section 2(1)(e) , so as to broaden the definition of “court”, and bring within its ken courts of the “seat” of the arbitration1.

1 Section 3 of the English Arbitration Act, 1996 defines “seat” as follows: 46

41. However, this proposition is contradicted when paragraph 96 speaks of the concurrent jurisdiction of Courts within whose jurisdiction the cause of action arises wholly or in part, and Courts within the jurisdic- tion of which the dispute resolution i.e. arbitration, is located.

42. Paragraph 96 is in several parts. First and foremost, Section 2(1)(e) , which is the definition of “Court” under the Arbitration Act, 1996 was referred to, and was construed keeping in view the provisions in Sec- tion 20 of the Arbitration Act, 1996 , which give recognition to party au- tonomy in choosing the seat of the arbitration proceedings. Secondly, the Court went on to state in two places in the said paragraph that ju- risdiction is given to two sets of Courts, namely, those Courts which would have jurisdiction where the cause of action is located; and those Courts where the arbitration takes place. However, when it “In this Part “the seat of the arbitration” means the juridical seat of the arbitration designated—

(a)by the parties to the arbitration agreement, or

(b)by any arbitral or other institution or person vested by the parties with powers in that regard, or

(c)by the arbitral tribunal if so authorised by the parties, or determined, in the absence of any such designation, having regard to the parties’ agreement and all the relevant circumstances.” It will be noticed that this Section closely approximates with Section 20 of the Indian Arbitration Act, 1996. The meaning of “Court” is laid down in Section 105 of the English Arbitration Act, 1996 whereby the Lord Chancellor may, by order, make provision allocating and specifying proceedings under the Act which may go to the High Court or to county courts.

came to providing a neutral place as the “seat” of arbitration proceed- ings, the example given by the Five Judge Bench made it clear that appeals under Section 37 of the Arbitration Act, 1996 against interim orders passed under Section 17 of the Arbitration Act, 1996 would lie only to the Courts of the seat - which is Delhi in that example - which are the Courts having supervisory control, or jurisdiction, over the ar- bitration proceedings. The example then goes on to state that this would be irrespective of the fact that the obligations to be performed under the contract, that is the cause of action, may arise in part either at Mumbai or Kolkata. The fact that the arbitration is to take place in Delhi is of importance. However, the next sentence in the said para- graph reiterates the concurrent jurisdiction of both Courts.

43. This Court has held that judgments of Courts are not to be construed as statutes, neither are they to be read as Euclid’s theorems. All ob- servations made must be read in the context in which they appear. This was felicitously put in Amar Nath Om Prakash v. State of Pun- jab (1985) 1 SCC 345, where this Court stated:

rems, nor as provisions of a statute. These observa- tions must be read in the context in which they ap- pear.” We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judg- ments. They interpret words of statutes; their words are not to be interpreted as statutes.

In London Graving Dock Co. Ltd. v. Horton [1951 AC 737, 761 : (1951)-2 All ER 1, 14 (HL)] Lord MacDer- mott observed:

44. More recently, this Court in Union of India v. Amrit Lal Manchanda (2004) 3 SCC 75 held as follows:

45. In any case, a judgment must be read as a whole, so that conflicting parts may be harmonised to reveal the true ratio of the judgment. However, if this is not possible, and it is found that the internal con- flicts within the judgment cannot be resolved, then the first endeavour that must be made is to see whether a ratio decidendi can be culled out without the conflicting portion. If not, then, as held by Lord Den- 50 ning in Harper and Ors. v. National Coal Board (1974) 2 All ER 441, the binding nature of the precedent on the point on which there is a conflict in a judgment, comes under a cloud.2

46. If paragraphs 75, 76, 96, 110, 116, 123 and 194 of BALCO (supra) are to be read together, what becomes clear is that Section 2(1)(e) 2 In Harper (supra), the decision in Central Asbestos Co. Ltd. vs. Dodd (1972) 2 All ER 1135, a House of Lords judgment, had to be applied. It was found that two learned Law Lords decided the question of law in favour of Dodd, whereas two learned Law Lords decided the question of law against Dodd, stating that his claim was barred. As Lord Denning stated, the fifth Law Lord, Lord Pearson, was the odd man out, in that he agreed with the two learned Law Lords that the law did not support Dodd’s case, but agreed with the minority judges that Dodd’s claim was not barred. This being the case, Lord Denning spoke of the precedential value of Dodd’s case as follows:

47. It was not until this Court’s judgment in Indus Mobile Distribution Private Limited (supra) that the provisions of Section 20 were prop- erly analysed in the light of the 246th Report of the Law Commission of India titled, ‘ Amendments to the Arbitration and Conciliation Act, 1996 ’ (August, 2014) (hereinafter referred to as the “Law Commission Report, 2014”), under which Section 20(1) and (2) would refer to the the reasoning of a minority of two — Lord Simon of Glaisdale and Lord Salmon — on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lard Morris of Borth-y-Gest were correct: because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct: because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.” 52 “seat” of the arbitration, and Section 20(3) would refer only to the “venue” of the arbitration. Given the fact that when parties, either by agreement or, in default of there being an agreement, where the arbi- tral tribunal determines a particular place as the seat of the arbitration under Section 31(4) of the Arbitration Act, 1996, it becomes clear that the parties having chosen the seat, or the arbitral tribunal having de- termined the seat, have also chosen the Courts at the seat for the purpose of interim orders and challenges to the award.

48. This Court in Indus Mobile Distribution Private Limited (supra), af- ter referring to Sections 2(1)(e) and 20 of the Arbitration Act, 1996, and various judgments distinguishing between the “seat” of an arbitral proceeding and “venue” of such proceeding, referred to the Law Com- mission Report, 2014 and the recommendations made therein as fol- lows:

delete the word "place" and add words "seat and venue"

delete the word "place" and add word "venue". [NOTE: The departure from the existing phrase "place" of arbitration is proposed to make the wording of the Act consistent with the international usage of the concept of a "seat" of arbitration, to denote the legal home of the arbitration. The amendment further legislatively distinguishes be- tween the "[legal] seat" from a "[mere] venue" of arbitration.] Amendment of Section 31

17. In Section 31

(i) In Sub-section (4), after the words "its date and the" delete the word "place" and add the word "seat".”

18. The amended Act, does not, however, contain the aforesaid amendments, presumably because the BALCO judgment in no uncertain terms has referred to "place" as "juridical seat" for the purpose of Section 2(2) of the Act. It further made it clear that Section 20(1) and 20 (2) where the word "place" is used, refers to "juridical seat", whereas in Section 20 (3) , the word "place" is equivalent to "venue". This being the settled law, it was found unnecessary to expressly incorporate what the Constitution Bench of the Supreme Court has already done by way of construc- tion of the Act.

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 arbitra- tion 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 54 courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an ar- bitration 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 Sec- tion 16 to 21 of the Code of Civil Procedure be at- tracted. 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 arbi- tral proceedings arising out of the agreement be- tween the parties.

20. It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts. For an exhaustive analysis of the case law, see Swastik Gases Private Limited v. Indian Oil Corporation Limited (2013) 9 SCC 32. This was fol- lowed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal and Anr. v. Chhattisgarh Invest- ment Limited: (2015) 12 SCC 225. Having regard to the above, it is clear that Mumbai courts alone have jurisdiction to the exclusion of all other courts in the country, as the juridical seat of arbitration is at Mum- bai. This being the case, the impugned judgment is set aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment, so that the Respondents may take necessary steps Under Section 9 in the Mumbai Court. Appeals are disposed of accordingly.” This judgment has recently been followed in Brahmani River Pellets Ltd. v. Kamachi Industries Ltd. 2019 SCC Online SC 929 at para- graph 15.

49. In fact, the Law Commission Report, 2014 also recommended an amendment in the definition of “Court” under Section 2(1)(e) of the Ar- bitration Act, 1996, so that in the case of international commercial ar- bitrations held in India, the High Court alone should be the “Court” for the purposes of the Arbitration Act, 1996 , even where such a High Court does not exercise ordinary original jurisdiction. The recommen- dation made by the Law Commission, which was followed, leading to an amendment of the Arbitration Act, 1996 , is as follows:

xxx xxx xxx

(ii) In sub-section (1), clause (e), after the words “Court means-” add sub-section (i) beginning with the words “in the case of an arbitration other than international commercial arbitration,” before the 56 words “the principal Civil Court of original jurisdic-

tion” In sub-section (1), clause (e) replace sub-clause

(ii) by following:

50. 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 exer- cise 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 57 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 de- crees of courts subordinate to it, which is only on the basis of territo- rial 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.

51. Take the consequence of the opposite conclusion, in the light of the facts of a given example, as follows. New Delhi is specifically desig- nated to be the seat of the arbitration in the arbitration clause be- tween the parties. Part of the cause of action, however, arises in sev- eral 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 (supra) specifically states cannot be the case. Thus, if an application is made to a District Court in a remote corner of the Ut- tarakhand hills, which then becomes the Court for the purposes of Section 42 of the Arbitration Act, 1996 where even Section 34 applica- 58 tions have then to be made, the result would be contrary to the stated intention of the parties - as even though the parties have contem- plated 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 jurisdic- tion. This obviously cannot be the case. If, therefore, the conflicting portion of the judgment of BALCO (supra) in paragraph 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.

52. In fact, subsequent Division Benches of this Court have understood the law to be that once the seat of arbitration is chosen, it amounts to an exclusive jurisdiction clause, insofar as the Courts at that seat are concerned. In Enercon (India) Ltd. and Ors. v. Enercon GmbH and Anr. (2014) 5 SCC 1, this Court approved the dictum in Roger Shashoua (supra) as follows:

53. The Court then concluded:

54. In Reliance Industries Ltd. (supra), this Court held:

lows: (SCC p. 178, para 33) “33. In the present case also, the parties had agreed that notwithstanding Article 33.1 , the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act . As a corollary to the above conclusion, we hold that the Delhi High Court did not have the juris- diction to entertain the petition filed by the respon- dents under Section 9 of the Act and the mere fact that the appellant had earlier filed similar petitions was not sufficient to clothe that High Court with the ju- risdiction to entertain the petition filed by the respon- dents.” xxx xxx xxx

55. The effect of choice of seat of arbitration was considered by the Court of Appeal in C v. D [2008 Bus LR 843 : (2008) 1 Lloyd's Law 239 : 2007 EWCA Civ 1282] . This judgment has been specifically approved by this Court in Balco [BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810] and reiterated 61 in Enercon [Enercon (India) Ltd. v. Enercon GmbH , (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59 : (2014) 1 ALR 257] . In C v. D [2008 Bus LR 843 : (2008) 1 Lloyd's Law 239 : 2007 EWCA Civ 1282] , the Court of Appeal has observed: (Bus LR p. 851, para 16) “Primary conclusion

16. I shall deal with Mr Hirst's arguments in due course but, in my judgment, they fail to grapple with the central point at issue which is whether or not, by choosing London as the seat of the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law. In my view they must be taken to have so agreed for the reasons given by the Judge. The whole purpose of the balance achieved by the Bermuda form (English arbitration but applying New York law to issues arising under the policy) is that judicial remedies in respect of the award should be those permitted by English law and only those so permitted. Mr Hirst could not say (and did not say) that English judicial remedies for lack of jurisdiction on procedural irregularities under Sections 67 and 68 of the 1996 Act were not permitted; he was reduced to saying that New York judicial remedies were also permitted. That, however, would be a recipe for litigation and (what is worse) confusion which cannot have been intended by the parties. No doubt New York law has its own judicial remedies for want of jurisdiction and serious irregularity but it could scarcely be supposed that a party aggrieved by one part of an award could proceed in one jurisdiction and a party aggrieved by another part of an award could proceed in another jurisdiction. Similarly, in the case of a single complaint about an award, it could not be supposed that the aggrieved party could complain in one jurisdiction and the satisfied party be entitled to ask the other jurisdiction to declare its satisfaction with the award. There would be a serious risk of parties rushing to get the first judgment or of 62 conflicting decisions which the parties cannot have contemplated.”

56. The aforesaid observations in C v. D [2008 Bus LR 843 : (2008) 1 Lloyd's Law 239 : 2007 EWCA Civ 1282] were subsequently followed by the High Court of Justice, Queen's Bench Division, Commercial Court (England) in Sulamerica Cia Nacional de Seguros SA v. Enesa Engelharia SA — Enesa [(2013) 1 WLR 102 : 2012 EWCA Civ 638 :

(supra), a Division Bench of the Delhi High Court, after setting out paragraph 96 of BALCO (supra), then followed the reasoning of judgements of the Bombay High Court, in stating that the ratio deci- dendi of the 5 Judge Bench in BALCO (supra) is that Courts would have concurrent jurisdiction, notwithstanding the designation of the seat of arbitration by agreement between the parties. The Delhi High Court stated:

This is evident both from the substantive holding of the paragraph as well as the example given by the Court. The Court notes that “the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place.” This is further reinforced by 64 the example that the Court gave later in the same paragraph. In the example where the parties are from Mumbai and Kolkata and the obligations under the contract are to be performed at either Mumbai or Kolkata, and the parties have designated Delhi as the seat of the arbitration, in such a situation, both courts would have jurisdiction, i.e. within whose jurisdiction the subject matter of the suit is situated (either Mumbai or Kolkata) and the court within the jurisdiction of which the dispute resolution, i.e., arbitration is located (which is Delhi). Moreover, the fact that the court interpreted the term “subject matter of the suit” in the paragraph, also gives credence to the interpretation that the court recognized that Section 2(1)(e) gives jurisdiction to both the cause of action courts, and the court at the seat of the arbitration. If the Court were of the opinion that only the courts at the seat would have jurisdiction under Section 2(1)(e) and no other court, then it would be wholly unnecessary for the court to interpret the term “subject matter of the suit”, since that court would anyway not have jurisdiction. In sum therefore, paragraph 96 of BALCO (supra) gives jurisdiction to both courts at the seat and the courts within whose jurisdiction the cause of action arises, if the dispute were the subject matter of a suit. This is what the Bombay High Court in Konkola Copper Mines (supra) also interpreted BALCO (supra) as holding:

57. Having so stated, the Division Bench then went on to give a restricted meaning to Indus Mobile Distribution Private Ltd. (supra) in para- graph 56 as follows:

58. The Court then went on to state:

59. This court is of opinion that, holding otherwise would in effect render Section 42 of the Arbitration Act ineffective and useless. Section 42 of the Act presup- poses that there is more than one competent forum to hear applications under the Arbitration Act , and hence to ensure efficacy of dispute resolution, this provision enacts that the court, which is first seized of any such application under the Act, would be the only court possessing jurisdiction to hear all subsequent appli- cations. If seat were equivalent to an exclusive forum selection clause in Part-I arbitrations, then every time parties would designate a seat, that would in effect mean that Section 42 would have no application. Thus, only those few situations where parties do not actually designate any seat (and thus no exclusive competence is conferred on one forum) would Sec- tion 42 have any role. In fact, often, when parties do not agree upon a seat in the arbitration agreement, for convenience, the arbitral tribunal designates a particular seat of the arbitration, or the agreement vests the discretion in the tribunal to decide the seat (and not just the “venue”). In all those circumstances then as well, the decision of the tribunal to agree upon a “seat” would amount to an exclusive jurisdic- tion clause and Section 42 would have no application. This would dilute Section 42 and would accordingly, be contrary to Parliamentary intent. Undoubtedly, in the present case, the parties have only chosen the seat as New Delhi and have not specified an exclu- sive forum selection clause. Therefore, it cannot be said that the courts in Delhi have exclusive compe- tence to entertain applications under the Arbitration Act in the present dispute. The jurisdiction of the courts where the cause of action arises, which in this 67 case, is the Bangalore City Civil Court, cannot be said to have been excluded therefore. Accordingly, ques- tion (ii) is also answered in favour of Antrix...”

59. The view of the Delhi High Court in Antrix Corporation Ltd. (supra), which followed judgments of the Bombay High Court, does not com- mend itself to us. First and foremost, it is incorrect to state that the ex- ample given by the Court in paragraph 96 of BALCO (supra) rein- forces the concurrent jurisdiction aspect of the said paragraph. As has been pointed out by us, the conclusion that the Delhi as well as the Mumbai or Kolkata Courts would have jurisdiction in the example given in the said paragraph is wholly incorrect, given the sentence, “This would be irrespective of the fact that the obligations to be per- formed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi”. The sen- tence which follows this is out of sync with this sentence, and the other paragraphs of the judgment. Thus, BALCO (supra) does not “unmistakably” hold that two Courts have concurrent jurisdiction, i.e., the seat Court and the Court within whose jurisdiction the cause of action arises. What is missed by these High Court judgments is the subsequent paragraphs in BALCO (supra), which clearly and unmis- takably state that the choosing of a “seat” amounts to the choosing of 68 the exclusive jurisdiction of the Courts at which the “seat” is located. What is also missed are the judgments of this Court in Enercon (In- dia) Ltd. (supra) and Reliance Industries (supra).

60. Equally, the ratio of the judgment in Indus Mobile Distribution Pri- vate Ltd. (supra), is contained in paragraphs 19 and 20. Two sepa- rate and distinct reasons are given in Indus Mobile Distribution Pri- vate Ltd. (supra) for arriving at the conclusion that the Courts at Mumbai alone would have jurisdiction. The first reason, which is inde- pendent of the second, is that as the seat of the arbitration was desig- nated as Mumbai, it would carry with it the fact that Courts at Mumbai alone would have jurisdiction over the arbitration process. The second reason given was that in any case, following the Hakam Singh (supra) principle, where more than one Court can be said to have ju- risdiction, the agreement itself designated the Mumbai Courts as hav- ing exclusive jurisdiction. It is thus wholly incorrect to state that Indus Mobile Distribution Private Ltd. (supra) has a limited ratio deci- dendi contained in paragraph 20 alone, and that paragraph 19, if read by itself, would run contrary to the 5 Judge Bench decision in BALCO (supra).

61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffec- tive and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral pro- ceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state “…where with respect to an arbitration agreement any application under this Part has been made in a Court…” It is obvi- ous that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subse- quent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would re- quire that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered in- effective or useless. Also, where it is found on the facts of a particular case that either no “seat” is designated by agreement, or the so- called “seat” is only a convenient “venue”, then there may be several Courts where a part of the cause of action arises that may have juris- 70 diction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of ac- tion arises in a case where parties have not agreed on the “seat” of arbitration, and before such “seat” may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest appli- cation having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42 , which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled.

Tests for determination of “seat”

62. The judgments of the English Courts have examined the concept of the “juridical seat” of the arbitral proceedings, and have laid down several important tests in order to determine whether the “seat” of the arbitral proceedings has, in fact, been indicated in the agreement be- tween the parties. The judgment of Cooke, J., in Roger Shashoua (supra), states:

63. It will thus be seen that wherever there is an express designation of a “venue”, and no designation of any alternative place as the “seat”, combined with a supranational body of rules governing the arbitration, and no other significant contrary indicia, the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitral pro- ceeding.

64. In Enercon GmbH v. Enercon (India) Ltd. [2012] EWHC 689, the arbitration clause between the parties read as follows:

65. The Court began its discussion on the “seat” of the arbitration by referring to Roger Shashoua (supra), and then referring to ‘The Con- flict of Laws’, Dicey, Morris & Collins, 14th Ed. as follows:

Apart from the last sentence in clause 18.3 (ie “The provisions of the Indian Arbitration and Conciliation Act 1996 shall apply”), it seems to me that the conclu- sion that London is the “seat” of any arbitration there- under is beyond any possible doubt. Thus the main issue is whether this last sentence is to be regarded as “significant contrary indicia” (using the language of Cooke J.) so as to place the “seat” of the arbitration in India. A similar issue was considered by Saville J in Union v of India v McDonnell [1993] 2 Lloyd's Rep 48 which, of course, pre-dates the English 1996 Act . The arbitration agreement in that case provided as follows: “In the event of a dispute arising out of or in connection with this agreement…the same shall be referred to an Arbitration Tribunal…The arbitration shall be conducted in accordance with the procedure provided in the Indian Arbitration Act of 1940 or any enactment or modification thereof. The arbitration 73 shall be conducted in the English language…The seat of the arbitration proceedings shall be London, United Kingdom.” Saville J expressed the view that the arguments on both sides were “finely balanced” but in effect concluded that the reference to the In- dian Arbitration Act 1940 did not have the effect of changing the “seat” of the arbitration designated by the parties. Rather, the phrase referring to the 1940 Act was to be reconciled with the rest of the clause by reading it as referring to the internal conduct of the ar- bitration as opposed to the external supervision of the arbitration by the Courts.” (emphasis supplied)

66. The Court then held that although the word “venue” is not synony- mous with “seat”, on the facts of that case, London - though described as the “venue” - was really the “seat” of the arbitration. This was for the reason that London was a neutral place in which neither party worked for gain, and in which no part of the cause of action arose. It was thus understood to be a neutral place in which the proceedings could be “anchored”. Secondly, the Court stressed on the expression “arbitration proceedings” in clause 18.3, which the Court held to be an expression which included not just one or more individual hearings, but the arbitral proceedings as a whole, culminating in the making of an award. The Court held:

67. The Court then held that the reference to the Indian Arbitration Act, 1996 would not make London the “venue” and India the “seat” of the arbitral process for several reasons, including the fact that in earlier agreements between the same parties, the seat of arbitral proceed- ings was India, which was changed by this agreement to London - the explanation for this change being to render an award enforceable in India under the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).

68. In Shagang South-Asia (Hong Kong) Trading Co. Ltd. v. Daewoo Logistics [2015] EWHC 194, the Queen’s Bench Division (Commer- cial Courts) dealt with a ‘Fixture Note’ in which the Respondent agreed to charter a vessel to Shangang, China. The Fixture Note pro- vided:

“Clause 23. ARBITRATION TO BE HELD IN HONGKONG. ENGLISH LAW TO BE APPLIED.”

69. After referring to Roger Shashoua (supra) and Enercon GmbH (supra), the Court held:

70. In Process and Indusrial Developments Ltd. v. Nigeria [2019] EWHC 2241 the Court was concerned with a dispute that arose out of a gas supply and processing agreement. The arbitration clause in that case read as follows:

71. The Court then held that the gas supply agreement provided for the seat of the arbitration to be in London, inter alia, for the following rea- sons:

72. Coming to the judgments of our Courts, this Court in Dozco India (P) Ltd. v. Doosan Infracore Co. Ltd. (2011) 16 SCC 179, was con- cerned with the following arbitration clause contained in the agree- ment between the parties:

73. The Court then held:

74. In Videocon Industries Ltd. v. Union of India (2011) 6 SCC 161, this Court was concerned with an arbitration agreement between the parties as follows:

75. Referring to Sections 3 and 53 of the English Arbitration Act, 1996, the Court held:

76. In Enercon (India) Ltd. (supra), this Court was concerned with an arbitration clause which stated that the venue shall be in London. The Court held, on the facts of that case, that since the substantive law of the contract, the curial law of the proceedings, and the law governing the arbitration agreement were all India, the seat would be India - London only being the venue for holding meetings. The Court then held, following the Naviera Amazonica Peruana S.A. v. Compania 83 Internacional De Seguros Del Peru (1988) 1 Lloyd’s Rep 116 (CA) case, that the lex fori of the arbitral proceedings, namely, the place in which arbitration is to be held, must be considered to be the seat of the arbitral proceedings, other things being equal, as follows:

77. The Court then examined Braes of Doune Wind Farm (Scotland) v. Alfred McAlpine Business Services Ltd. [2008] EWHC 436 (TCC) in some detail, and concluded in paragraph 118 as follows:

Therefore, if one has to apply the reasoning and logic of Akenhead, J., the conclusion would be irresistible that the parties have designated India as the seat. This is even more so as the parties have not agreed that the courts in London will have exclusive jurisdiction to resolve any dispute arising out of or in connection with the contract, which was specifically provided in Clause 1.4.1 of the EPC contract examined by Akenhead, J. in Braes of Doune [Braes of Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Business Services Ltd., [2008] Bus LR D 137 (QBD) : 2008 EWHC 426 (TCC)] . In the present case, except for London being chosen as a convenient place/venue for holding the meetings of the arbitration, there is no other factor connecting the arbitration proceedings to London.” 85

78. The Court then made a reference to C v. D [2007] EWCA Civ. 182, where the Court, following C v. D (supra), held:

79. Reference was made to Roger Shashoua (supra) in paragraphs 124 to 128, and then to various other judgments, including BALCO (supra), as follows:

The arbitrators are at liberty to hold meetings at a place which is of convenience to all concerned. This may become necessary as arbitrators often come from different countries. Therefore, it may be convenient to hold all or some of the meetings of the arbitration in a location other than where the seat of arbitration is located. In BALCO, the relevant passage from Redfern and Hunter has been quoted which is as under: (SCC p. 598, para 75) 87 “75. … ‘The preceding discussion has been on the basis that there is only one “place” of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of reference or the minutes of proceedings or in some other way as the place or “seat” of the arbitration. This does not mean, however, that the Arbitral Tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an Arbitral Tribunal to hold meetings—or even hearings—in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses…. It may be more convenient for an Arbitral Tribunal sitting in one country to conduct a hearing in another country — for instance, for the purpose of taking evidence…. In such circumstances each move of the Arbitral Tribunal does not of itself mean that the seat of arbitration changes. The seat of arbitration remains the place initially agreed by or on behalf of the parties.’ (Naviera case [Naviera Amazonica Peruana S.A. v. Compania Internacional De Seguros Del Peru, (1988) 1 Lloyd's Rep 116 (CA)] , Lloyd's Rep p. 121)” These observations have also been noticed in Union of India v. McDonnell Douglas Corpn. [(1993) 2 Lloyd's Rep 48]”

80. The Court finally concluded:

81. In Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. and Anr. (2015) 9 SCC 172, the Court dealt with an arbitration clause be- tween the parties which read as follows:

82. After referring, in extenso, to a large number of English decisions and the decisions of this Court, the Court concluded:

83. Most recently, in Brahmani River Pellets (supra), this Court in a do- mestic arbitration considered clause 18 - which was the arbitration agreement between the parties - and which stated that arbitration shall be under Indian Arbitration and Conciliation Act, 1996 , and the venue of arbitration shall be Bhubaneswar. After citing several judg- ments of this Court and then referring to Indus Mobile Distribution (supra), the Court held:

der is liable to be set aside.”

84. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbi- tration 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 afore- said expression does not include just one or more individual or partic- ular 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, ex- perts or the parties” where only hearings are to take place in the “venue”, which may 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 91 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 pro- ceedings. 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 Interna- tional context, if a supranational body of rules is to govern the arbitra- tion, 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 ar- bitration.

Correctness of the judgment in Hardy Exploration and Produc- tion (India) Ltd.

85. Roger Shashoua (supra) was expressly referred to in paragraphs 108 and 109 of BALCO (supra), and followed in paragraph 110 as ex- 92 tracted above. BALCO (supra) then summed up the legal position as follows:

tration proceedings, would not make Part I of the Arbi- tration Act, 1996 applicable or enable Indian Courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996 , those provisions which are concerned with the inter- nal conduct of their arbitration and which are not in- consistent with the mandatory provisions of the Eng- lish Procedural Law/Curial Law. This necessarily fol- lows from the fact that Part I applies only to arbitra- tions having their seat / place in India.”

86. In Roger Shashoua & Ors. v. Mukesh Sharma & Ors. , (2017) 14 SCC 722, a Division Bench of this Court, after referring to a number of judgments, referred to the English Shashoua judgment 3 as follows:

87. The Division bench then turned down an argument that BALCO (supra) had not expressly approved the Shashoua principle, as fol- lows:

duced leads to an indubitable conclusion that Shashoua principle has been accepted by Enercon (India) Ltd. (supra). It is also to be noted that in BALCO, the Constitution Bench has not merely repro- duced few paragraphs from Shashoua but has also referred to other decisions on which Shashoua has placed reliance upon . As we notice, there is analysis of earlier judgments, though it does not specifically state that "propositions laid down in Shashoua are accepted". On a clear reading, the ratio of the deci- sion in BALCO, in the ultimate eventuate, reflects that the Shashoua principle has been accepted and the two-Judge Bench in Enercon (India) Ltd. (supra), after succinctly analyzing it, has stated that the said princi- ples have been accepted by the Constitution Bench. Therefore, we are unable to accept the submission of Mr. Chidambaram that the finding recorded in Ener- con ( India) Ltd. (supra) that Shashoua principle has been accepted in BALCO should be declared as per incuriam.” 94

88. The Court then set out the arbitration clause and the governing law on the facts of the case as follows:

tors, a third arbitrator/umpire shall be appointed. The arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the Inter- national Chamber of Commerce Paris.

14.2 Proceedings in such arbitrations shall be con- ducted in the English language.

14.3 The arbitration award shall be substantiated in writing and shall be final and binding on the parties. 14.4 The venue of the arbitration shall be London, United Kingdom."

70. Clause 17.6 deals with governing law, which reads as follows:

peals and set aside the judgment of the High Court of Delhi that has held that courts in India have jurisdic- tion, and has also determined that Gautam Budh Na- gar has no jurisdiction and the petition Under Section 34 has to be filed before the Delhi High Court. Once the courts in India have no jurisdiction, the aforesaid conclusions are to be nullified and we so do. In the facts and circumstances of the case, there shall be no order as to costs.”

90. The stage is now set for consideration of the recent judgment of a Three Judge Bench of this Court in Hardy Exploration and Produc- 96 tion (India) Inc. (supra). The precise question that had been referred to the Three Judge Bench in Hardy Exploration and Production (In- dia) Inc. (supra) was as to whether the ratio of Sumitomo Heavy In- dustries Ltd. v. ONGC Ltd. & Ors. (1998) 1 SCC 305 - a judgment delivered under the Arbitration Act, 1940 - would have any impact on the “juridical seat” doctrine in arbitration law, as developed in England and by our courts. The Three Judge Bench answered the reference as follows:

91. Having answered the reference, the Court then went on to consider the arbitration clause in the facts of that case, which was set out in paragraph 30 as follows:

92. The Court then went on to see for itself Articles 20 and 31 of the UNCITRAL Model Law and then went on to state that under the UNCITRAL Model Law, either the juridical seat of the arbitral proceedings is indicated in the agreement between the parties, or if it is not, must be determined by the Arbitral Tribunal. Holding that the arbitration clause, on the facts of that case, referred to the “venue” as Kuala Lumpur, the Court went on to hold that there was no determination of any “juridical seat” by agreement, and would therefore have to be determined by the Arbitral Tribunal. As there was no such determination by the Arbitral Tribunal, the Court then concluded:

93. The Three Judge Bench in Hardy Exploration and Production (In- dia) Inc (supra) failed to apply the Shashoua principle to the arbitra- tion clause in question. Had the Shashoua principle been applied, the answer would have been that Kuala Lumpur, which was stated to be the “venue” of arbitration proceedings, being governed by the UNCI- TRAL Model Law, would be governed by a supranational set of rules, and there being no other contrary indicator, it would be clear that Kuala Lumpur would therefore be the juridical “seat” of the arbitration. 99

94. As we have seen hereinabove, the judgement of Cooke, J. in Roger Shashoua and Ors. v. Mukesh Sharma 4, was expressly approved by the 5-Judge Bench in BALCO (supra), as was stated by the Supreme Court of India in Roger Shashoua and Ors. v. Mukesh Sharma and Ors.5 By failing to apply the Shashoua principle to the arbitration clause in question, the Three Judge Bench in Hardy Exploration and Production (India) Inc (supra) has not followed the law as to deter- mination of a “juridical seat”, laid down by a Five Judge Bench of this Court in BALCO (supra). The result in Hardy Exploration and Pro- duction (India) Inc (supra) is that a foreign award that would be de- livered in Kuala Lumpur, would now be liable to be challenged in the Courts at Kuala Lumpur, and also be challenged in the courts in India, under Section 34 of Part I of the Arbitration Act, 1996. This is exactly the situation that this Court encountered when it decided the case of Venture Global Engineering v. Satyam Computer Services Ltd. & Anr. , (2008) 4 SCC 190. The Five Judge Bench in BALCO (supra) expressly overruled Venture Global Engineering (supra) as follows:

uation would undermine the policy underlying the New York Convention or the UNCITRAL Model Law. Therefore, we are of the opinion that appropriate manner to interpret the aforesaid provision is that “al- ternative two” will become available only if “alternative one” is not available.

xxx xxx xxx “154. At this stage, we may notice that in spite of the aforesaid international understanding of the second limb of Article V(1)(e), this Court has proceeded on a number of occasions to annul an award on the basis that parties had chosen Indian law to govern the sub- stance of their dispute. The aforesaid view has been expressed in Bhatia International [(2002) 4 SCC 105] and Venture Global Engg. [(2008) 4 SCC 190] In our opinion, accepting such an interpretation would be to ignore the spirit underlying the New York Convention which embodies a consensus evolved to encourage consensual resolution of complicated, intricate and in many cases very sensitive international commercial disputes. Therefore, the interpretation which hinders such a process ought not to be accepted. This also seems to be the view of the national courts in differ- ent jurisdictions across the world. For the reasons stated above, we are also unable to agree with the conclusions recorded by this Court in Venture Global Engg. [(2008) 4 SCC 190] that the foreign award could be annulled on the exclusive grounds that the Indian law governed the substance of the dispute. Such an opinion is not borne out by the huge body of judicial precedents in different jurisdictions of the world.”

95. The Five Judge Bench then went on to state: 101

96. The decision in Hardy Exploration and Production (India) Inc. (supra) is therefore contrary to the Five Judge Bench in BALCO (supra), in that it failed to apply the Shashoua principle to the arbitra- tion clause in question. The Hardy Exploration and Production (In- dia) Inc. (supra) decision would lead to the result that a foreign award would not only be subject to challenge in the country in which it was made, but also subject to challenge under Section 34 of Part I of the Arbitration Act, 1996, which would lead to the chaos spoken of in paragraph 143 of BALCO (supra), with the concomitant risk of con- flicting decisions, as held in Venture Global Engineering (supra) [overruled in BALCO (supra)], which would add to problems relating to enforcement, and undermine the policy underlying the New York 102 Convention and the UNCITRAL Model Law. We, therefore, declare that the judgment in Hardy Exploration and Production (India) Inc. (supra), being contrary to the Five Judge Bench in BALCO (supra), cannot be considered to be good law.

97. Coming to the impugned judgment in the present appeals, it is clear that the reasoning followed stems from the subject-matter test that flows from the definition of ‘court’ in Section 2(1)(e)(i) of the Act. According to the impugned judgment, since the agreement was executed at Faridabad, part of the cause of action would arise at Faridabad, clothing Faridabad courts with jurisdiction for the purposes of filing a Section 34 petition. The second part of the reasoning is that Faridabad is the place where the request for reference to arbitration was received, as a result of which part of the cause of action arose in Faridabad, which ousts the jurisdiction of Courts of New Delhi, in which no part of the cause of action arose.

98. We have extracted the arbitration agreement in the present case (as contained in Clause 67.3 of the agreement between the parties) in paragraph 3 of this judgment. As per the arbitration agreement, in case a dispute was to arise with a foreign contractor, clause 67.3(ii) would apply. Under this sub-clause, a dispute which would amount to 103 an ‘international commercial arbitration’ within the meaning of Section 2(1)(f) of the Arbitration Act, 1996, would have to be finally settled in accordance with the Arbitration Act, 1996 read with the UNCITRAL Ar- bitration Rules, and in case of any conflict, the Arbitration Act, 1996 is to prevail (as an award made under Part I is considered a domestic award under Section 2(7) of the Arbitration Act, 1996 notwithstanding the fact that it is an award made in an international commercial arbi- tration). Applying the Shashoua principle delineated above, it is clear that if the dispute was with a foreign contractor under Clause 67.3 of the agreement, the fact that arbitration proceedings shall be held at New Delhi/Faridabad, India in sub-clause (vi) of Clause 67.3, would amount to the designation of either of these places as the “seat” of ar- bitration, as a supranational body of law is to be applied, namely, the UNCITRAL Arbitration Rules, in conjunction with the Arbitration Act, 1996 . As such arbitration would be an international commercial arbi- tration which would be decided in India, the Arbitration Act, 1996 is to apply as well. There being no other contra indication in such a situa- tion, either New Delhi or Faridabad, India is the designated “seat” un- der the agreement, and it is thereafter for the parties to choose as to in which of the two places the arbitration is finally to be held. 104

99. Given the fact that if there were a dispute between NHPC Ltd. and a foreign contractor, clause 67.3(vi) would have to be read as a clause designating the “seat” of arbitration, the same must follow even when sub-clause (vi) is to be read with sub-clause (i) of Clause 67.3, where the dispute between NHPC Ltd. would be with an Indian Contractor. The arbitration clause in the present case states that “Arbitration Pro- ceedings shall be held at New Delhi/Faridabad, India…”, thereby sig- nifying that all the hearings, including the making of the award, are to take place at one of the stated places. Negatively speaking, the clause does not state that the venue is so that some, or all, of the hearings take place at the venue; neither does it use language such as “the Tribunal may meet”, or “may hear witnesses, experts or par- ties”. The expression “shall be held” also indicates that the so-called “venue” is really the “seat” of the arbitral proceedings. The dispute is to be settled in accordance with the Arbitration Act, 1996 which, there- fore, applies a national body of rules to the arbitration that is to be held either at New Delhi or Faridabad, given the fact that the present arbitration would be Indian and not international. It is clear, therefore, that even in such a scenario, New Delhi/Faridabad, India has been designated as the “seat” of the arbitration proceedings. 105

100.However, the fact that in all the three appeals before us the proceed- ings 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. There- fore, 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.

101.Consequently, the impugned judgment is set aside, and the Section 34 petition is ordered to be presented in the Courts in New Delhi, as was held by the learned Single Judge of the Special Commercial Court at Gurugram.

102.The appeals are allowed in the aforesaid terms.

……………………………J. (R.F. Nariman) ……………………………J. (Aniruddha Bose) ……………………………J. New Delhi; (V. Ramasubramanian) December 10, 2019 106