1. Heard learned Senior Advocate Mr. Mehul Shah assisted by learned Page 1 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined advocate Mr. Aditya Gupta for the petitioners and learned advocate Ms. Garima Malhotra for respondent Nos. 1 and

2. Rule returnable forthwith. Learned advocate Ms. Malhotra for the respondent waives service of notice of rule on behalf of the respondent Nos. 1 and 4. Respondent Nos. 2 and 3 being formal parties are not required to be served.

3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the Judgement and Order dated 08.12.2022 passed by the 6th Additional District and Sessions Judge, at Mirzapur, Ahmedabad (Rural) whereby, Civil Misc. Application No. 79 of 2020 filed Page 2 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined under section 34 of the Arbitration and Conciliation Act, 1996 [for short 'the Arbitration Act '] was dismissed on the ground of lack of territorial jurisdiction.

4. The petitioner and the respondents were partners of M/s. Electronic Lab, a partnership firm-respondent No.4 herein.

5. The petitioner filed Civil Suit No. 1262 of 2007 before the High Court of Judicature at Bombay on account of the dispute between the partners. The said suit was disposed of by consent decree/order dated 15.10.2009 entered into between the petitioner and the respondents. As per the consent terms, Hon'ble Mr. Justice C.K.Thakkar (Former Page 3 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Judge of the Hon'ble Supreme Court of India) was appointed as the Sole Arbitrator to adjudicate the disputes between the parties.

6. As per Clause 3 of the consent terms, it was agreed that the arbitration proceeding will be held at Ahmedabad only.

Thus, the Seat of Arbitration was at Ahmedabad as per the consent terms between the parties which was made part of the consent decree dated 15.10.2009 passed by the Bombay High Court in Suit No. 1262 of 2007.

7. The arbitration proceeding between the petitioner and the respondents proceeded as per the consent terms of the order dated 15.10.2009 passed by the Bombay High Page 4 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Court. The learned Arbitrator passed a preliminary award dated 16.01.2020 in the arbitration proceedings holding that the petitioner was an agent of the respondents and not a partner, as claimed by the respondents.

8. Being aggrieved, the petitioner challenged the said preliminary award under section 34 of the Arbitration Act before the District Court at Mirzapur, Ahmedabad (Rural) by filing Civil Misc.

Application No. 79 of 2020.

9. The respondents filed an application under Order 7 Rule 10 and Rule 11 of the Code of Civil Procedure [for short the 'Code'] read with section 42 of the Arbitration Act claiming that the District Page 5 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Court, Ahmedabad (Rural) has no territorial jurisdiction as the territorial jurisdiction was with the Courts at Mumbai.

10. It was contended by the respondents that during the course of the arbitration proceedings, the application under section 27 of the Arbitration Act was filed by the respondents before the Arbitral Tribunal seeking its approval to apply to the Court for assistance in taking the evidence and after hearing such application, the Arbitral Tribunal granted approval vide order dated 30.12.2016. It was further contended that pursuant to the order dated 30.12.2016, respondent Nos. 1 to 4 filed an application under section 27 of the Arbitration Act before the Bombay High Page 6 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Court for seeking assistance in taking the evidence. It was submitted that as the petitioner did not object to the jurisdiction of the Bombay High Court to entertain the said application and as the petitioner submitted to the jurisdiction of the Bombay High Court by participating in the proceedings, the District Court at Ahmedabad (Rural) has no territorial jurisdiction to hear the application filed under section 34 of the Arbitration Act.

11. The petitioner filed reply to the application filed by the respondents and the respondents also filed rejoinder followed by sur-rejoinder by the petitioner.

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined

12. Learned 6th Additional District and Sessions Judge, Ahmedabad (Rural), by the Judgement and Order dated 08.12.2022, allowed the application filed by the respondents dismissing the application filed by the petitioner under section 34 of the Arbitration Act on the ground of lack of territorial jurisdiction.

13. Being aggrieved by the said order, the petitioner has preferred this petition.

14. Learned Senior Advocate Mr. Mehul Shah for the petitioner submitted that the learned Judge has exceeded the scope and the powers conferred under Order 7 Rule 10 and Rule 11 of the Code inasmuch as it is well established principle of law that in an application under Order 7 Rule 11, only Page 8 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined the averments in the plaint/application and documents annexed thereto have to be considered and not the defense of the respondents/defendants.

14.1 It was submitted that section 2(1)(e) of the Arbitration Act, defines 'Court'. It was submitted that in case of commercial arbitration, "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit.

14.2 It was therefore submitted that as held by the Hon'ble Supreme Court in case Page 9 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined of BGS SGS Soma JV vs. NHPC reported in (2020) 4 SCC 3234 that expression 'subject-matter of the arbitration' used in clause (e) to sub-section (1) of section 2 of the Arbitration Act cannot be confused with the 'subject-matter of the suit'. The term 'subject-matter of the suit' in the said provision is confined to Part-I of the Arbitration Act and the purpose of clause (e) is to identify the Courts having supervisory control over the judicial proceedings and therefore, clause (e) refers to a Court which would be essentially a Court of the Seat of the arbitration process.

14.3 It was therefore submitted that when the parties have agreed that the arbitration proceedings will be held at Ahmedabad only meaning thereby that Seat Page 10 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined of Arbitration is at Ahmedabad and therefore, the territorial jurisdiction of District Court, Ahmedabad (Rural) would be applicable.

14.4 It was submitted that the learned Judge therefore, failed to consider the clause regarding arbitration fixing the seat of arbitration at Ahmadabad.

14.5 It was further submitted that the order by consent is not mere a contract between the parties but is something more because it is superadded to the command of a Judge and therefore, the order dated 15.10.2009 passed in Suit No. 1262 of 2007 by the Bombay High Court is not merely a contract between the parties but more than Page 11 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined a contract which cannot be waived or deviated by both the parties. It was further submitted that unless the Court modifies the consent decree by an express order, the clauses of consent decree will operate with full force. In support of such submission reliance was placed on the decision of Shailesh Dhairyawan vs. Mohan Balkrishna Lulla reported in (2016) 3 SCC

619. 14.6 It was further submitted by learned Senior Advocate Mr. Shah that the learned Judge did not consider that there could be no novation, alternation or modification of contract which forms part of consent order/decree passed by the Court and in view of the Clause 3 of the consent decree, designated Ahmedabad as Page 12 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Seat of the Arbitration even after the proceedings before the Bombay High Court.

14.7 It was also submitted that reliance placed by the learned Judge upon the decision of the Bombay High Court in case of Naresh Kanaiyalal Rajwani vs. Kotak Mahindra Bank reported in 2021 SCC online Bom. 367 is not applicable to the facts of the present case because the most significant distinguishing factor between the present case and the case before the Bombay High Court is that in the present case, the contract containing the arbitration clause forms part of a consent decree which was not the case before the Bombay High Court.

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined 14.8 Learned Senior Advocate Mr. Shah referred to and relied upon the relevant observation of the Apex Court in case of BGS SGS Soma JV vs. NHPC (supra) at paras 33, 44, 48, 53 and 59 whereby, section 2(1)(e) of the Arbitration Act is interpreted defining the word 'Court' as being the Court in whose jurisdiction the Seat of Arbitration is situated. It was therefore, submitted that the District Court, Ahmedabad (Rural) is the Court within whose jurisdiction the Seat of Arbitration is situated and as such court only has exclusive jurisdiction and is only the 'Court' for the purpose of section 2(1)(e) of the Arbitration Act. It was submitted that the Bombay High Court in para 22 of the decision in case of Naresh Kanaiyalal Rajwani vs. Kotak Page 14 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Mahindra Bank (supra) has erred to hold that it was a 'Court' under section 2(1)

(e) inasmuch as the interpretation of section 2(1)(e) would not undergo a change which is because in a given case the party did not object to territorial jurisdiction of the Court. It was therefore, submitted that merely because the petitioner participated in the proceedings of application filed by the respondents under section 27 of the Arbitration Act, it would not take away the territorial jurisdiction of the District Court, Ahmedabad (Rural) though the Seat of Arbitration is at Ahmedabad.

14.9 It was further submitted that the learned Judge failed to consider that the Bombay High Court, relied upon several judgements to show that the objections to Page 15 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined territorial jurisdiction can be waived if not raised at the earlier available opportunity and cannot be raised at a subsequent stage of the proceedings.

However, in para 21 of the said judgement, the Bombay High Court has exceeded the peiciple to subsequent proceedings which has absolutely no support of any authority. It was submitted that the proceedings under sections 27 and 34 of the Arbitration Act are two separate proceedings and hence, the Bombay High Court would not have jurisdiction to proceed with the application under section 34 of the Arbitration Act.

14.10 Learned Senior Advocate Mr. Shah therefore, submitted that the learned Judge has committed an error in applying the decision of the Bombay High Court Page 16 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined inasmuch as failure to object the territorial jurisdiction at the maximum would amount to waiver of such objection in those proceedings at a subsequent stage which cannot be stretched further to state that the clause designating the Seat of Arbitration is waived by submitting the jurisdiction to the Bombay High Court contrary to section 2(1)(e) of the Arbitration Act. It was submitted that where the Seat is not located within the definition of 'Court' under section 2(1)

(e) of the Arbitration Act , then section 42 would be applicable and failure to object to territorial jurisdiction in a proceedings would at the best preclude such party from challenging the order and those proceedings on the ground of territorial jurisdiction and it would not Page 17 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined lead to application of section 42 of the Arbitration Act as the Hon'ble Apex Court in para 59 of the decision in case of BGS SGS Soma JV vs. NHPC (supra) has clearly held that section 42 of the Arbitration Act would apply only when the application is made to a Court in whose jurisdiction the seat is situated as that Court alone has exclusive jurisdiction. It was submitted that the Hon'ble Supreme Court clearly defined the field in which, section 42 of the Arbitration Act can operate which was neither appreciated by the Hon'ble Bombay High Court and was wrongly applied by the learned Judge while dismissing the application under section 34 of the Arbitration Act. Learned Senior Advocate Mr. Shah, in alternative and without prejudice to his contention, Page 18 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined submitted that, assuming for a while, without admitting that the District Court, Ahmedabad (Rural) does not have territorial jurisdiction, then instead of dismissing the application under section 34 of the Arbitration Act, the learned Judge ought to have returned the same for presentation to the proper Court as per Order 7 Rule 10 of the Code. It was submitted that the suit can be rejected on the ground mentioned in Order 7 Rule 11 and none of the grounds mentioned therein are applicable to the facts of the present case. It was therefore, submitted that the impugned Judgement and Order is liable to be quashed and set aside.

14.11 Learned Senior Advocate Mr. Shah has referred and relied upon the following decisions:

Moreover, as held by & Division Bench of this Court in the case of Monohar koyal vs. Thakur Das Naskar, reported in ILR 15 Cal 319 the provisions of S. 62 have no application to a case Page 20 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined where there has been a breach of the original contract before the subsequent agreement is come to. Therefore, even assuming that there could be a novation of the original contract the compromise decree notwithstanding still S. 62 of the Contract Act cannot be invoked by the appellant as there was a breach of the contract long before the alleged novation."

( 2) Shailesh Dhairyawan vs. Mohan Balkrishna Lulla reported in 2016 3 SCC 619:

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined ( 3) Manish Mohan Sharma vs. Ram Bahadur Thakur reported in 2006 4 SCC 416:

(4) Govind Waman Shanbhag vs. Murlidhar Shrinivas Shanbhag reported in ILR 1953 Bom 948 Page 23 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined ( 5) Hindustan Construction Company Limited vs. NHPC Limited reported in 2020 4 SCC 310 "2.By an order dated 14.11.2019 passed by the learned Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram in Arbitration Case No. 252 of 2018, the learned Judge on construing the arbitration clause in the agreement between the parties arrived at the finding that the seat of arbitration was at New Delhi. Yet, by virtue of Bharat Aluminium Company and Ors. vs. Kaiser Aluminium Technical Services, Inc. and Ors. (2012) 9 SCC 552 since both Delhi as well as the Faridabad Courts would have jurisdiction as the contract was executed between the parties at Faridabad, and part of the cause of action arose there, and since the Faridabad Court was invoked first on the facts of this case, Section 42 of the Arbitration Act would kick in as a result of which the Faridabad Court would have jurisdiction to decide all other applications.

3. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned Page 24 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus:

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 application 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."

4. This was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the Page 26 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined courts where the seat is located would then have jurisdiction to the exclusion of all other courts.

5. Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction. This being the case, the impugned judgment is set aside following BGS SGS Soma JV (supra), as a result of which it is the courts at New Delhi alone which would have jurisdiction for the purposes of challenge to the Award.

( 6) Apparel Export Promotion Council vs. Prabhati Patni reported in ILR 2005 II Delhi 1066:

A reading of Section 42 makes it clear that it is a non-obstante provision and that it indicates that if any application is submitted under Part I (which includes an application under Section 34 ) in a court, then that court alone would have jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement and the arbitral proceedings shall be made in that court and in no other court. Mr Rawal has construed this provision to mean that since the petitioner had filed his objections under Section 34 first in this court and the respondent had thereafter filed its objections in the court at Jaipur, this court and this court alone would have jurisdiction and the court at Jaipur, notwithstanding anything contained elsewhere or in any other law for the time being in force, would not have jurisdiction. I am unable to agree with this submission of Mr Rawal. The primary reason being that Section 42 also uses the word 'court' which has to be construed in Page 28 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined terms of the definition in Section 2(e) . This court (i.e., Delhi High Court), clearly, is not the 'court', in the facts of the present case, which is referred to in Section 2(e) of the said Act. Therefore, the mere filing of the petition under Section 34 in this court would not clothe this court with jurisdiction in respect of the disputes between the parties for all times to come. Mere filing of the objections under Section 34 in a wrong court would not clothe that court with jurisdiction. This court does not otherwise have jurisdiction as indicated above and, therefore, the mere fact that the petition under Section 34 has been filed here would not confer jurisdiction on this court.

22. A similar issue arose in Virender Saigal v. Sumatilal Jamnalal : (V 57 C

3). In that case, a learned Single Judge (S.N. Andley, J) considered the provisions of Section 2(c) and 31(4) of the Arbitration Act, 1940. I have already indicated that the provisions of Section 2(c) of the 1940 Act and that of Section 2(e) of the 1996 Act, for the purpose of this case, are not materially different. Section 31(4) of the 1940 Act needs some explanation. It reads as under:-

A mere reading of the said provision would indicate its similarity with Section 42 of the 1996 Act. In respect of Section 31(4) of the 1940 Act, this court in Virender Saigal (supra), held that the mere filing of an application in any court irrespective of whether such court had jurisdiction in the matter or not would not fix that court permanently as the court in which all subsequent applications are to be filed. The only difference that I note which could be material when comparing the provisions of Section 31(4) of the 1940 Act and the Section 42 of the 1996 Act are the absence of the words 'competent to entertain it' in Section 42 of the 1996 Act. In my opinion, this would not make any difference inasmuch as the word 'court' itself has been given a specific meaning in terms of Section 2(e) of the 1996 Act and I have already held that this court would not, in the context of the factual matrix of the present case, qualify to be such a court as defined under Section 2(e) of the 1996 Act. Therefore, the mere fact Page 30 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined that the filing of Section 34 application by the petitioner in this court was prior in time to the filing of the Section 34 application by the respondent in the court at Jaipur, would not confer jurisdiction on this court because the reference to 'court' in Section 42 has to be read in the light of the definition given in Section 2(e) of the 1996 Act.

In Hindustan Steel Works Construction (supra), the issue was whether the provisions of Section 31(4) of the Arbitration Act, 1940 or clause of the Letters Patent of the Calcutta High Court would prevail. It was held that the former would prevail. While considering the provisions of Section 31(4) of the Arbitration Act, 1940, the single Judge of the Calcutta High Court was of the view that the expression 'no other court' appearing therein clearly contemplated a situation where two or more courts have jurisdiction in respect of an application and when the application is made in one of such courts first in order of time, then that court will be fixed with the exclusive jurisdiction and all other courts which otherwise are entitled to entertain the application, will be divested of their jurisdiction in the matter.

From this, it becomes clear that for invoking the provisions of Section Page 31 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined 31(4) which is in pari materia to the provisions of Section 42 of the new Act, the court in which the application is first instituted must be a court having jurisdiction in the matter. Therefore, this decision also does not help the petitioner. In fact, it supports the contention of the respondent and the view taken by me."

( 7) Brahmani River Pelles Ltd vs. Kamachi Industries reported in 2020 5 SCC 462 "18. Where the contract specifies the jurisdiction of the court at a particular place, only such court will have the jurisdiction to deal with the matter and parties intended to exclude all other courts. In the present case, the parties have agreed that the "venue" of arbitration shall be at Bhubaneswar. Considering the agreement of the parties having Bhubaneswar as the venue of arbitration, the intention of the parties is to exclude all other courts. As held in Swastik, non-use of words like "exclusive jurisdiction", "only", "exclusive", "alone" is not decisive and does not make any material difference.

19. When the parties have agreed to have the "venue" of arbitration at Bhubaneswar, the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the Act. Since only Orissa High Court will have the Page 32 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined jurisdiction to entertain the petition filed under Section 11(6) of the Act, the impugned order is liable to be set aside.

( 8) Indus Mobile Distribution Private Ltd vs. Datawind Innovations Private Ltd reported in 2017 7 SCC 678 "11. In an instructive passage, this Court stated that an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause as follows:

award would have to be done by the courts of the country in which the arbitration is being conducted.

Such a court is then the supervisory court possessed of the power to annul the award. This is in keeping with the scheme of the international instruments, such as the Geneva Convention and the New York Convention as well as the Uncitral Model Law. It also recognises the territorial principle which gives effect to the sovereign right of a country to regulate, through its national courts, an adjudicatory duty being Page 33 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined performed in its own country. By way of a comparative example, we may reiterate the observations made by the Court of Appeal, England in C v. D [2008 Bus LR 843 : 2007 EWCA Civ 1282 (CA)] wherein it is observed that:

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 Page 35 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction - that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21 of the CPC be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties."

15. On the other hand, learned advocate Ms. Malhotra for the respondents appearing on caveat submitted that the Suit No. 1262/2007 was filed before the Bombay High Court wherein the consent decree was drawn on 15.10.2009. It was submitted that thus, Page 36 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined the entire subject-matter of the arbitration is within the territorial jurisdiction of the Bombay High Court.

15.1 It was further submitted that the respondents preferred an application under section 27 of the Arbitration Act before the Bombay High Court.

(i) pursuant to the order passed by the Arbitral Tribunal on the ground that the Bombay High Court has jurisdiction to entertain the petition as the arbitration agreement, by way of consent terms, dated 15.10.2009 between parties was arrived at Mumbai;

(ii) the said terms were filed in Suit No. 1262 of 2007 which was filed before the Bombay High Court in respect of the Page 37 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined disputes between the parties;

(iii) that the partnership firm has its office situated at situated at Mumbai and carries on business from Mumbai;

(iv) The Agency Agreement between the parties was entered into at Mumbai;

(V) The substantial amounts and equipments were supplied from Mumbai and the petitioner was liable to render accounts at Mumbai;

(vi) Material part of the cause of action for the dispute between the parties had arisen at Mumbai and accordingly, the Suit No. 1262/2007 was filed before the Bombay High Court and therefore, as per section (2) (1) (e) of the Arbitration Act , the jurisdiction of the Court would be Page 38 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined governed by the subject-matter of the suit.

15.2 Learned advocate Ms. Malhotra submitted that the petitioner participated in the proceedings of the Arbitration Petition No. 101/2017 filed by the respondents under section 27 of the Arbitration Act by filing affidavit- in-

reply before the Bombay High Court.

15.3 It was submitted that the Bombay High Court, by order dated 30.03.2017, passed a detailed order under section 27 of the Arbitration Act by allowing the application in terms of prayer clause (a) by directing the Wise Chairman and Chief Executive Officer of the Gujarat Maritime Board, Gandhinagar, to remain present and produce documents as required before Page 39 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Arbitral Tribunal. It was therefore submitted that the learned Judge has rightly dismissed the application filed under section 34 of the Arbitration Act.

15.4 Learned advocate Ms. Malhotra submitted that the decision in case of the BGS SGS Soma JV vs. NHPC (supra) would not be applicable in the facts of the case inasmuch as the Hon'ble Supreme Court was dealing with the issue of juridical or legal seat of the arbitration vis-a-vis place where whole or part of the cause of action arises. It was submitted that as per section 2(1)(e) , the tests for determination of juridical seat when there is express designation of "venue", and no designation of any alternative place as the "seat" and the same is combined with a Page 40 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined supranational body of rules governing the arbitration and therefore, the subject-

matter of the Arbitration would govern the territorial jurisdiction as held by the Bombay High Court in case of Naresh Kanayalal Rajwani vs. Kotak Mahindra Bank .

15.5 Learned advocate Ms. Malhotra therefore submitted that the Bombay High Court has elaborately discussed the decision of the Apex Court in case of BGS SGS Soma JV vs. NHPC (supra) as well as the decision of State of West Bengal and others vs. Associated Contractors reported in (2015) 1 SCC 32 and the decision in case of Sneh Lata Goel vs Pusplatta & Ors. reported in (2019) 3 SCC

594. Page 41 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined 15.6 Learned advocate Ms. Malhotra submitted that as held by the Bombay High Court in case of Naresh Kanayalal Rajwani vs. Kotak Mahindra Bank (supra) in domestic arbitration, though the seat is located at New Delhi, the respondent, despite appearing in the arbitration petition before the Bombay High Court, did not object to its territorial jurisdiction and also acted in furtherance of the order passed therein nor any objection was taken to the proceedings under section 34 of the Arbitration Act filed before the Bombay High Court, then the plea that the Bombay High Court has no jurisdiction to entertain the arbitration application under section 34 of the Act, was not accepted.

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined 15.7 It was submitted that in the Apex Court in various judgements has distinguished the seat and venue of arbitration for deciding the territorial jurisdiction of the Court and the intention of the parties has rightly been considered by the learned Judge to come to the conclusion that whether the place agreed for arbitration is the seat or just the convenient venue for the arbitration proceedings. It was submitted that it is not in dispute that the entire transaction between the parties took place at Mumbai and arbitration seat as well as decree was also passed at Bombay.

Necessary application under section 27 of the Arbitration Act was also filed at Bombay and therefore, when the subject-

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined matter of the arbitration falls within the territorial jurisdiction of the Mumbai, and as such, only because the venue of the arbitration has agreed between the parties at Ahmedabad, would not take away territorial jurisdiction of the Bombay High Court.

15.8 It was therefore submitted that the learned Judge has not committed any error while dismissing the application under section 34 of the Arbitration Act.

Therefore, the petition may not be entertained by this Court while exercising extraordinary jurisdiction under Article 227 of the Constitution of India.

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16. Having heard learned advocates for the respective parties and on considering the facts which are not in dispute, the moot question that calls for consideration is whether the District Court, Ahmedabad (Rural) has the territorial jurisdiction to consider the application filed by the petitioner under section 34 of the Arbitration Act or not?

17. In order to consider the issue raised in this petition, it would be germane to refer to the various provisions of the Arbitration Act which read as under:

section (1) or sub-section (2), the arbitral tribunal may, unless Page 46 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined otherwise agreed by the parties, meet at anyplace it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

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

18. The issue with regard to the seat of arbitration is no more res integra in view of the decision of the Apex Court in case of BGS SGS Soma JV vs. NHPC (supra) which is followed in case of BBR (India) Private Limited vs. S.P. Singla Constructions Private Limited reported in (2023) 1 SCC

693. It is undisputed that both the Page 47 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined parties have given consent in the consent terms filed before the Bombay High Court in Suit No. 1262/2007 which is part of the consent decree dated 15.10.2009 that the arbitration proceedings will be held at Ahmedabad only. Section 2 (1) (e) of the Arbitration Act defines the term 'Court'.

Section 20 defines 'the place of arbitration' as well as section 42 refers to Jurisdiction. All the three provisions are considered by the Apex Court in case of BGS SGS Soma JV vs. NHPC (supra) wherein, the Apex Court has provided for the tests for determination of "seat" in following paragraphs:

of arbitration, and before such "seat"

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined 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 application 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.

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 between the parties. The judgment of Cooke, J., in Roger Shashoua (supra), states:

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:

"63. Second, the language in clause 18.3 refers to the "arbitration proceedings". That is an expression which includes not just one or more individual or particular hearings but the arbitration proceedings as a whole including the making of an award. In other words the parties were anchoring the whole arbitration process in London right up to and including the making of an award. The place designated for the making of an award is a designation of seat. Moreover the language in clause 18.3 does not refer to the venue of all hearings "taking place"

London. This again suggests the Page 52 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined parties intended to anchor the arbitration proceedings to and in London rather than simply physically locating the arbitration hearings in London. Indeed in a case where evidence might need to be taken or perhaps more likely inspected in India it would make no commercial sense to construe the provision as mandating all hearings to take place in a physical place as opposed to anchoring the arbitral process to and in a designated place. All agreements including an arbitration agreement should be construed to accord with business common sense. In my view, there is no business common sense to construe the arbitration agreement (as contended for by EIL) in a manner which would simply deprive the arbitrators of an important discretion that they possess to hear evidence in a convenient geographical location.

64. Third, Mr Joseph QC submitted that the last sentence of clause 18.3 can be reconciled with the choice of London as the seat. First, he submitted that it can be read as referring simply to Part II of the Indian 1996 Act ie the enforcement provisions. Mr Edey QC's response was that if that is all the last sentence meant, then it would be superfluous. However, I do not consider that any such superfluity carries much, if any, weight.

NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Alternatively, Mr Joseph QC submitted that it can be read as referring only to those provisions of the Indian 1996 Act which were not inconsistent with the English 1996 Act." (emphasis supplied)

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

69. The Court in Process and Industrial Developments Ltd then held that the gas supply agreement provided for the seat of the arbitration to be in London, inter alia, for the following reasons:

London "or otherwise as agreed be- tween the parties". If the reference to venue was sim- ply to where the hearings should take place, this would be an inconvenient provision and one which the parties are unlikely to have intended. It would mean that hearings had to take place in London, however inconvenient that might be for a particular hearing, unless the parties agreed otherwise. The question of where hearings should be conveniently held is, however, one which the arbitrators ordinarily have the power to decide, as indeed is envisaged in s. 16(2) ACA. That is likely to be a much more convenient arrangement. Clearly if the parties were in agreement as to where a particular hearing were to take place, that would be likely to be very influential on the Page 55 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined arbitral tribunal. But if for whatever reason they were not in agreement, and it is not unknown for parties to arbitration to become at loggerheads about very many matters, then it is convenient for the arbitrators to be able to decide. If that arrangement was to be displaced it would, in my judgment, have to be spelled out clearly. Accordingly, the reference to the "venue" as being London or otherwise as agreed between the parties, is better read as providing that the seat of the arbitration is to be England, unless the parties agree to change it. This would still allow the arbitrators to decide where particular hearings should take place, while providing for an anchor to England for supervisory purposes, unless changed." (emphasis supplied)

81. Most recently, in Brahmani River Pellets (supra), this Court in a domestic 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 judgments of this Court and then referring to Indus Mobile Distribution (supra), the Court held:

Considering the agreement of the parties having Bhubaneswar as the venue of arbitration, the intention of the parties is to exclude all other courts. As held in Swastik, non-use of words like "exclusive jurisdiction", "only", "exclusive", "alone" is not decisive and does not make any material difference.

19. When the parties have agreed to the have the "venue" of arbitration at Bhubaneshwar, the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the Act. Since only the Orissa High Court will have the jurisdiction to entertain the petition filed under Section 11(6) of the Act, the impugned order is liable to be set aside."

82. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the "venue" of the Page 57 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined arbitration proceedings, the expression "arbitration proceedings" would make it clear that the "venue" is really the "seat" of the arbitral proceedings, as the aforesaid expression does not include just one or more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. This language has to be contrasted with language such as "tribunals are to meet or have witnesses, experts or the parties" where only hearings are to take place in the "venue", which may lead to the conclusion, other things being equal, that the venue so stated is not the "seat" of arbitral proceedings, but only a convenient place of meeting. Further, the fact that the arbitral proceedings "shall be held" at a particular venue would also indicate that the parties intended to anchor arbitral proceedings to a particular place, signifying thereby, that that place is the seat of the arbitral proceedings. This, coupled with there being no other significant contrary indicia that the stated venue is merely a "venue" and not the "seat" of the arbitral proceedings, would then conclusively show that such a clause designates a "seat" of the arbitral proceedings. In an International context, if a supranational body of rules is to govern the arbitration, this would further be an indicia that "the venue", so stated, would be the seat of the arbitral proceedings. In a Page 58 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined national context, this would be replaced by the Arbitration Act, 1996 as applying to the "stated venue", which then becomes the "seat" for the purposes of arbitration."

19. In the aforesaid decision, the Apex Court has laid down the Shashoua principal which stipulates that wherever there is an express designation of a "venue" and no designation of any alternative place as the "seat" and the same is combined with the superanotional body of the rules governing the arbitration and there are no other significant contrary indicia, the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitration proceeding to the exclusion of all other courts even courts where part of the cause of action may have arisen. Therefore, where there is Page 59 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined designation of a place of arbitration as per the consent decree 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 arbitration proceeding does not include just one or more individual or particular hearing but arbitration proceedings as a whole including the making of an award at that place. Therefore, as per clause 3 of the consent decree, when the arbitration proceedings are to be held at Ahmedabad only and therefore the venue would also indicate the parties intend to proceed with the arbitration at Ahmedabdad signifying that the Ahmedabad is the seat of arbitral proceedings. Therefore, as held by the Apex Court there being no Page 60 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined other significant contrary indicia that the stated venue is merely a venue and not the seat of the arbitral proceedings, it would then conclusively show that such a clause designated as Seat of the Arbitral proceedings to the exclusion of all other courts.

20. The Apex Court in case of BBR (India) Private Limited vs. S.P. Singla Constructions Private Limited (supra) by applying decision in case of BGS SGS Soma JV vs. NHPC (supra) has further clarified this issue as under:

Accordingly, clause (e) to sub- section (1) of Section 2 has to be construed keeping in view the provisions of Section 20 of the Act, which are, in fact, determinative and relevant when we decide the question of 'the seat of an arbitration'. This interpretation recognises the principle of 'party autonomy', which is the edifice of arbitration. In other words, the term 'court' as defined in clause

(e) to sub-section (1) of Section 2 , which refers to the 'subject matter of arbitration', is not necessarily used as finally determinative of the court's territorial jurisdiction to entertain proceedings under the Act.

17. In BGS SGS Soma (supra), this Court observed that any other construction of the provisions would render Section 20 of the Act nugatory. In view of the Court, the legislature had given 9 (2020) 4 SCC 224 jurisdiction to two courts: the court which should have jurisdiction where the cause of action is located; and the court where the Page 62 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined arbitration takes place. This is necessary as, on some occasions, the agreement may provide the 'seat of arbitration' that would be neutral to both the parties. The courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. The 'seat of arbitration' need not be the place where any cause of action has arisen, in the sense that the 'seat of arbitration may be different from the place where obligations are/had to be performed under the contract. In such circumstances, both the courts should have jurisdiction, viz., the courts within whose jurisdiction 'the subject matter of the suit' is situated and the courts within whose jurisdiction the dispute resolution forum, that is, where the arbitral tribunal is located.

18. Turning to Section 20 of the Act, sub-section (1) in clear terms states that the parties can agree on the place of arbitration. The word 'free' has been used to emphasise the autonomy and flexibility that the parties enjoy to agree on a place of arbitration which is unrestricted and need not be confined to the place where the 'subject matter of the suit' is situated. Sub-section (1) to Section 20 gives primacy to the agreement of Page 63 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined the parties by which they are entitled to fix and specify 'the seat of arbitration', which then, by operation of law, determines the jurisdictional court that will, in the said case, exercise territorial jurisdiction. Sub-section (2) comes into the picture only when the parties have not agreed on the place of arbitration as 'the seat'. 10 In terms of sub-section (2) of Section 20 the arbitral tribunal determines the place of arbitration. The arbitral tribunal, while doing so, can take into regard the circumstances of the case, including the convenience of the parties. Sub- section (3) of Section 20 of the Act enables the arbitral tribunal, unless the parties have agreed to the contrary, to meet at any place to conduct hearing at a place of convenience in matters, such as consultation among its members, for the recording of witnesses, experts or hearing parties, inspection of documents, goods, or property.

19. Relying upon the Constitutional Bench decision in BALCO (supra), in BGS SGS Soma (supra), it has been held that sub- section (3) of Section 20 refers to 'venue' whereas the 'place' mentioned in sub-section (1) and sub-section (2) refers to the 'jurisdictional seat'. To explain the difference, in BALCO (supra), a Page 64 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined case relating to international arbitration, reference was made to several judgments, albeit the judgment in Shashoua v. Sharma was extensively quoted to observe that an agreement as to the 'seat of arbitration' draws in the law of that country as the curial law and is analogous to an exclusive jurisdiction clause. 12 The parties that have agreed to 'the seat' must challenge an interim or final award only in the courts of the place designated as the 'seat of arbitration'. In other words, the choice of the 'seat of arbitration' must be the choice of a forum/court for remedies seeking to attack the award.

20. The aforesaid principles relating to international arbitration have been applied to domestic arbitrations. In this regard, we may refer to paragraph 38 of BGS SGS Soma (supra), which reads as under:

of the arbitration."

21. The Court in BGS SGS Soma (supra), then proceeded to examine the contention whether paragraph 96 of BALCO (supra), which speaks of concurrent jurisdiction of the courts, that is, the jurisdiction of courts where the cause of action has arisen wholly or partly, and the courts within the jurisdiction in which the dispute resolution forum - arbitration is located, to observe and elucidate the legal position:

21. Thus, where there is an express designation of a venue and no designation of any alternative place as the seat, then the expression 'subject to arbitration' used in clause (e) to sub-section (1) of section 2 of the Arbitration Act cannot be confused with the 'subject-matter of the suit'. Clause (e) of sub-section (1) of section 2 of the Arbitration Act is to identify the Courts having supervisory control over the judicial proceedings. The Apex Court has, therefore, held that clause refers to a 'Court' which would be essentially a court of the Seat of the Arbitration process and accordingly, clause (e) of sub-section (1) of section 2 has to be construed keeping in view of Page 68 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined provisions of section 21 of the Arbitration Act which are infact determinative and relevant for deciding the question of seat of arbitration.

22. The Apex Court has therefore, held that in term 'court' as defined in clause

(e) of sub-section (1) of section 2 of the Arbitration Act are refers to the subject-

matter of the arbitration is not necessarily used as finally determinative of the courts territorial jurisdiction to entertain the proceedings under the Act.

Therefore, the Courts within whose territorial the arbitration takes place would be required to be exercised supervisory control over the arbitral process. It was further held that Seat of Arbitration need not be the place where Page 69 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined any cause of action has arisen and seat of arbitration may be different from the place where obligation had to be performed under the contract.

23. As per section 20 of the Arbitration Act which provides that the party can agree on place of arbitration and in the facts of the case, when the parties have agreed to have arbitral proceedings at Ahmedabad only, then in view of the principle of 'Party Autonomy' and flexibility that the parties enjoys to agree at a place of arbitration which may not be confined to the place where the subject-matter of the suit is situated and in such circumstances, the Arbitral Tribunal can meet at any place to conduct the hearing at a place of convenience in Page 70 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined matters unless the parties have agreed to the contrary. Sub- section (3) of section 20 of the Arbitration Act refers to the venue whereas, the place mentioned in sub-

section (1) of section 2 refers to the juridical seat. An agreement as to the Seat of Arbitration draws in the law of the country as the curial law and is analogous to an exclusive jurisdiction clause. Therefore, the parties agreed to the Seat have to challenge any interim or final award only in the courts of the place designated as the Seat of Arbitration meaning thereby the choice of the seat of Arbitration must be the choice of a forum/court for remedy to challenge the award.

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24. Therefore, in view of the above conspectus of law, once the seat of arbitration has been fixed at Ahmedabad, the Courts at Ahmedabad alone will have exclusive jurisdiction to exercise supervisory powers over the arbitration.

The reliance placed by the learned Judge upon the decision of the Bombay High Court in case of Naresh Kanayalal Rajwani vs. Kotak Mahindra Bank (supra) is not applicable in view of the above decision of the Hon'ble Supreme Court. Learned Judge has failed to consider the decision of the Supreme Court in case of BGS SGS Soma JV vs. NHPC (supra) as the Seat of the Arbitration is focal point for determining the territorial jurisdiction of the Court and merely because the petitioner participated in the proceeding Page 72 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined arising of the application under section 27 of the Arbitration Act, shall not alter the position of law with regard to the territorial jurisdiction where the Seat of Arbitration is located as all the parties, by consent decree, have designated the seat at Ahmedabad, it becomes the exclusive jurisdiction clause and therefore the only the District Court, Ahmedabad would vest at the seat with exclusive jurisdiction to regulate the arbitration proceedings arising out of the consent agreement between the parties in the facts of the case. Section 42 of the Arbitration Act would not apply when the application is filed before a Court which does not have jurisdiction as the said application under section 42 has to be made to a Court which has territorial Page 73 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined jurisdiction as per definition of Court in section 2 (1) (e) of the Arbitration Act.

25. The Apex Court in case of BBR (India) Private Limited vs. S.P. Singla Constructions Private Limited (supra) further held that the seat once fixed by the Arbitral Tribunal under section 20 (2) of the Arbitration Act should remain static and fixed whereas the venue of arbitration can change and move from a seat to a new location as the venue is not constant and stationary and can move and change in terms of sub-section (3) of section 20 of the Arbitration Act and change of venue does not result in change of relocation of Seat of Arbitration.

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26. The Apex Court further held in para 31 of the said judgement as under:

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27. Therefore, in view of the above, when the place of jurisdiction or the seat is certain and static and not vague or changeable, there cannot be any doubt as to the jurisdiction of the Court for availing the judicial remedy. The Apex Court therefore held as under that the seat determines the jurisdiction of the Court:

28. The Division Bench of this Court in case of Datang Technologies and Page 78 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined Engineering Private Ltd vs. Sarjan Construction Ltd by Judgement and Order dated 20.07.2022 in First Appeal No. 3391 of 2021 held as under:

29. The SLP arising out of the aforesaid order was also dismissed by the Apex Court on 26.08.2022.

30. In view of the foregoing reasons, the impugned order passed by the learned Judge in Civil Misc. Application No. 79 of 2020 below Exhs 1 and 2 is not sustainable and Page 79 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023 NEUTRAL CITATION C/SCA/2024/2023 CAV JUDGMENT DATED: 07/10/2023 undefined is accordingly quashed and set aside. The petition is allowed and Civil Misc.

Application No. 79 of 2020 is ordered to be restored to file. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI Page 80 of 80 Downloaded on : Sat Oct 07 20:47:54 IST 2023