M/S R.K.Mineral Development Pvt. Ltd vs Hindalco Industries Limited on 21 July, 2022

[Cites 44, Cited by 0]

Jharkhand High Court

M/S R.K.Mineral Development Pvt. Ltd vs Hindalco Industries Limited on 21 July, 2022

Bench: Sujit Narayan Prasad

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
      Arbitration Application No. 21 of 2019
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M/s R.K.Mineral Development Pvt. Ltd., a Company registered under the Companies Act, 1956, having its registered office at Navkaar Parisar, Pulgaon Naka, P.O. and P.S. Durg, District Durg - 491001 (Chhattisgarh), through one of its Directors namely Shri Ramesh Kumar Jain, aged about 63 years, son of Late Heeralal Jain, resident of House No.01, Ward 37, Aazad Para, P.O. & P.S. - Durg, District Durg-491001, Chhattisgarh. ... ... Petitioner Versus Hindalco Industries Limited, a Company registered under the Companies Act, 1956 through its Managing Director, having its registered office at Century Bhawan, 3rd Floor, Dr. Annie Besant Road, Mumbai-

400025,    P.O.,   P.S.   and    District   Mumbai
(Maharashtra).               ...   ...     Opp. Party
                        With

Arbitration Application No. 22 of 2019

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400025,    P.O.,   P.S.   and    District   Mumbai
(Maharashtra).               ...   ...     Opp. Party
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Sumeet Gadodia, Advocate For the Opp. Party : Mr. Indrajit Sinha, Advocate Mr. Vijay Kant Dubey, Advocate

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Order No. 20/Dated 21st July, 2022 Both the applications are under Section 11(6) of the Arbitration and Conciliation Act, 1996, arising out of the same contract and as such these petitions have been directed to be heard together and are being disposed of by this common order.

2. The instant applications have been filed by the applicant/petitioner invoking the jurisdiction conferred under Section 11(6) of the Arbitration and Conciliation Act, 1996, praying therein for appointment of independent Arbitrator for reference of the dispute arising out of agreement dated 08.05.2012 entered by and between the petitioner/applicant and the respondent.

3. The brief facts of the case as per the pleading made in the applications read hereunder as :-

It is the case of the petitioner/applicant that the Company-petitioner is a Private Limited Company registered under the Companies Act, 1956 while the 3 respondent i.e., Hindalco Industries Limited, is also a Company registered under the Companies Act, 1956.

The Opposite Party- Hindalco Industries Limited has been granted lease hold rights over Bauxite Mines situated in Village- Chiro-Kukkud, in Tehsil Mahuadanr, and District - Latehar, in the State of Jharkhand (in Arbitration Application No.21 of 2019) and Village-Kudag, Samri and Tatijharia situated in Tehsil Kusmi, District Surguja in the State of Chhatisgarh (in Arbitration Application No.22 of 2019).

The agreement was entered into by and between the petitioner and the Opposite Party vide agreement dated 8th May, 2012, primarily for the work of mining and transportation of Bauxite in respect of the mines in question and consequent transportation of Bauxite to its Railway Siding at Meralgram, District Garhwa, Jharkhand and to its Plant situated at Renukoot in the State of Uttar Pradesh.

The agreement contains a clause under Clause G.11 that the contract shall come into force from 01.01.2013 and remain valid for three years till 31.12.2015 so far as it relates to Arbitration Application No.21 of 2019 and Clause G.13 that the contract shall come into force from 21.04.2011 and remain valid for 4 three years till 20.04.2014, so far as it relates to Arbitration Application No.22 of 2019.

Further, in the agreement, vide Clause G.1, exclusive jurisdiction in respect of disputes under the contract has been conferred to the courts at District Lohardaga, Jharkhand whereas, Clause H.1 of the contract stipulates that if any dispute and/or differences shall at any time arise between the parties to this contract or in relation to any clause(s) or matters herein contained or their respective rights/claims, or liabilities herein or otherwise in relation to or arising out of this contract, such disputes and/or differences shall be settled mutually through discussions between the nominated representative of both the parties in the first instance, failing which the same shall be submitted to the Arbitration. The Arbitral Tribunal will be composed of a panel of three arbitrators, one to be appointed by the Contractor and one to be appointed by Hindalco and the two arbitrators, so appointed, shall appoint the third arbitrator who shall act as the presiding arbitrator. The Award of the Arbitral Tribunal shall be final and binding on the parties and the provisions of the Arbitration and Conciliation Act, 1996 and the rules 5 made there under and any statutory modification and reenactment thereof shall be deemed to apply and to be incorporated in this contract. The place of Arbitration shall be Renukoot and arbitration proceedings shall be conducted in English language.

Pursuant to the said agreement, works were undertaken by the petitioner and despite Force Majeure condition, obstruction and hindrances in transportation by road, delayed payment of bills etc., the petitioner was performing and discharging its contractual obligation under the contract.

The dispute arose when the demanded payments were not made in favour of the petitioner and, as such, a legal notice was served invoking the arbitration clause in respect of the work in question and nominated one Shri Sudhir Kumar as Arbitrator and requested the opposite party to convey the appointment of their Arbitrator under the arbitration clause within 30 days of the receipt of the notice failing which the petitioner/applicant shall be compelled to approach the High Court for appointment of Arbitrator.

The petitioner/applicant received a reply from the Opposite Party on 09.03.2018 wherein the allegations levelled by the petitioner/applicant were disputed, but 6 there was no denial of the fact that disputes exist between both the parties in respect of the contract which is required to be referred to arbitration. In the said reply, the Opposite Party proposed, inter alia, that instead of three Arbitrators, as stipulated in the Arbitration Clause, proposal was made for appointment of sole Arbitrator for adjudication of the dispute and the Opposite Party appointed one Shri Rajendra Kumar Pandey, Advocate, as an Arbitrator. In the said reply, the Opposite Party made an offer for payment of a sum of Rs.64,86,054/- towards full and final settlement of any or all claims of the petitioner/applicant.

However, the petitioner did not agree to the name suggested by the Opposite Party of Shri Rajendra Kumar Pandey, Advocate to act as the Sole Arbitrator. In turn, the petitioner/applicant proposed the name of Hon'ble Mr. Justice S.C. Pandey, Former Judge of Madhya Pradesh High Court as an Arbitrator to adjudicate the disputes and differences between the parties. But, no consensus has been arrived regarding appointment of Arbitrator/Arbitrators and under the said circumstances, petitioner/applicant was compelled to approach this Court in exercise of its power 7 conferred under Section 11(6) of the Arbitration and Conciliation Act, 1996.

4. Counter affidavit has been filed by the Opposite Party-Hindanco Industries Limited wherein the very maintainability of the instant applications has been raised on the ground of lack of jurisdiction of this Court to entertain the instant applications under Section 11(6) of the Act, 1996 by referring to Clause-H, by which the parties have intended about the place of arbitration to be at Renukoot and the arbitration proceedings shall be conducted in English language.

In the circumstances of place of arbitration to be at Renukoot, the plea has been taken that this Court cannot constitute an Arbitral Tribunal as the same would be in derogation of the arbitration agreement between the parties.

So far as the condition as stipulated under Part- G of the agreement dated 08.05.2012 which provides that the courts at District Lohardaga, Jharkhand shall have exclusive jurisdiction in case of disputes under the contract but, having regard to the fact that the parties have agreed that the place of arbitration shall be Renukoot, this Court will have no jurisdiction to entertain the present applications.

5. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner/applicant, has submitted by taking the aid of the condition stipulated under Part-G of the contract by which exclusive jurisdiction has been conferred to the courts in the district of Lohardaga and, as such, the same being the contrary indicia and hence, the jurisdiction carved out by making reference of the place of arbitration to be at Renukoot will stand excluded and, as such, the jurisdiction, in case of any dispute/difference, will be of the courts in the district of Lohardaga and since the district of Lohardaga falls within the territorial jurisdiction of this Court, therefore, the instant applications filed under Section 11(6) of the Act, 1996 will be maintainable under the jurisdiction of this Court.

He has relied upon the judgments rendered in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. [(2012) 9 SCC 552], Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Others [(2017) 7 SCC 678], BGS SGS Soma JV v. NHPC Ltd. [(2020) 4 SCC 234] and Braes of Doune Wind Farm (Scotland) Limited and Alfred McAlpine Business Services Limited [2008] EWHC 426 (TCC). 9

According to the learned counsel for the petitioner, the designation of place of arbitration as Renukoot, Uttar Pradesh would tantamount to be the juridical seat of arbitration as there is significant contrary indication to that effect in the agreement by carving out the exclusive jurisdiction to the district courts at Lohardaga and, as such, this Court will have jurisdiction to entertain these petitions and in that view of the matter, the designation of the place of arbitration as Renukoot is merely the venue of arbitration and shall not be deemed to be the juridical seat of the arbitration proceeding.

6. In response, Mr. Indrajit Sinha, learned counsel appearing for Opposite Party has objected to such submission about maintainability of the instant application on the ground of territorial jurisdiction.

He has submitted that it is incorrect on the part of the petitioner/applicant that by virtue of the exclusive jurisdiction as referred under Clause-H of the agreement, the place of arbitration as per the condition ‗Part-G' will not be ousted, reason being that the intent of the party by determining the place of arbitration of the parties of the contract which is to be applicable in case of the cause of action arising out of agreement and 10 so far as the jurisdiction of the courts at Lohardaga is concerned, the same can only be exercised if the parties abandoned their right to arbitrate the dispute and file a civil suit.

Learned counsel for the Opposite Party has relied upon the judgments rendered in the case of Swastik Gases Private Limited v. Indian Oil Corporation Limited [(2013) 9 SCC 32], Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Others [(2017) 7 SCC 678], Brahmani River Pellets Limited v. Kamachi Industries Limited [(2020) 5 SCC 462], BGS SGS Soma JV v. NHPC Ltd. [(2020) 4 SCC 234] and Mankastu Impex Private Limited v. Airvisual Limited [(2020) 5 SCC 399].

7. This Court has heard the learned counsel for the parties and perused the condition stipulated in the agreement dated 08.05.2012.

There are two clauses incorporated in the contract i.e., Part-G and Part-H, which read hereunder as :-

"G. Jurisdiction The Courts at District Lohardaga, Jharkhand, shall have exclusive jurisdiction in case of disputes under the contract.

H. Arbitration:

If any dispute and/or differences shall at any time arise between the parties to this contract or in relation to any clause(s) or matters herein contained or their respective rights/claims, or liabilities herein or otherwise in relation to or arising out of this contract, such disputes and/or differences shall be settled mutually through discussions between the nominated representative of both the parties in the first instance, failing which the same shall be submitted to the Arbitration. The Arbitral Tribunal will be composed of a panel of three arbitrators, one to the appointed by the Contractor and one to be appointed by Hindalco and the two arbitrators, so appointed, shall appoint the third arbitrator who shall act as the presiding arbitrator. The Award of the Arbitral Tribunal shall be final and binding on the parties and the provisions of the Arbitration and Conciliation Act, 1996 and the rules made there under and any statutory modification and reenactment thereof shall be deemed to apply and to the incorporated in this contract. The place of Arbitration shall be Renukoot and arbitration proceedings shall be conducted in English language.‖ Part-G of the contract provides that the Courts at District Lohardaga, Jharkhand, shall have exclusive jurisdiction in case of disputes under the contract, whereas, Part-H of the contract stipulates that if any dispute and/or differences shall at any time arise between the parties to this contract or in relation to any clause(s) or matters herein contained or their respective 12 rights/claims, or liabilities herein or otherwise in relation to or arising out of this contract, such disputes and/or differences shall be settled mutually through discussions between the nominated representative of both the parties in the first instance, failing which the same shall be submitted to the Arbitration. The Arbitral Tribunal will be composed of a panel of three arbitrators, one to be appointed by the Contractor and one to be appointed by Hindalco and the two arbitrators, so appointed, shall appoint the third arbitrator who shall act as the presiding arbitrator. The Award of the Arbitral Tribunal shall be final and binding on the parties and the provisions of the Arbitration and Conciliation Act, 1996 and the rules made there under and any statutory modification and reenactment thereof shall be deemed to apply and to be incorporated in this contract. The place of Arbitration shall be Renukoot and arbitration proceedings shall be conducted in English language.

It appears from the agreement that the aforesaid agreement has been executed between the parties at Renukoot, District-Sonebhadra, State of Uttar Pradesh.

The dispute arose, as would appear from the factual aspect discussed hereinabove, which led the 13 petitioner/applicant to make request to the Opposite Party for settlement of the dispute but having failed, legal notice was given for appointment of Sole Arbitrator and when no consensus has been arrived at in the matter of appointment of Arbitrator, so far as it relates to the names of the Arbitrator, the instant applications have been filed before this Court, invoking the jurisdiction conferred under Section 11(6) of the Act, 1996.

8. The issue of maintainability of the instant applications has been raised on behalf of the Opposite Party by referring the arbitration clause as under Part- H, wherein the place of arbitration has been determined at Renukoot in the district of Sonebhadra, Uttar Pradesh and, as such, according to the Opposite Party, the instant applications are not maintainable under the territorial jurisdiction of this Court, rather, due application is required to be filed before the court having its jurisdiction where the Renukoot, Sonebhadra district falls, i.e., in the State of Uttar Pradesh.

9. While on the other hand, learned counsel for the petitioner/applicant, has objected to such submission and has submitted that the instant applications are maintainable within the territorial jurisdiction of this 14 Court, taking into consideration the specific stipulation made under Part-G of the contract which contains conferring of power to the district courts at Lohardaga in the State of Jharkhand. Therefore, the condition stipulated under Part-G being contrary indication to that of clause contained in Part-H and, as such, the instant applications are maintainable here before this Court.

10. This Court, on the basis of the rival submissions made on behalf of the parties, as referred hereinabove, is required to answer the issue of maintainability of the instant applications within the territorial jurisdiction of this Court and if the petitioner/applicant succeeds, then who is to be appointed as Arbitrator, in terms of the conditions stipulated in the contract, is to be considered.

Therefore, this Court deems it fit and proper to first consider and adjudicate about the issue of maintainability and proceed to examine the same on the basis of the position of law as has been settled by the Hon'ble Apex Court in the judgments as also by taking into consideration the factual aspects, before considering the judgments upon which reliance has been placed on behalf of the respective parties. 15

11. The Hon'ble Apex Court in the case of Swastik Gases Private Limited v. Indian Oil Corporation Limited (Supra) has considered the issue of exclusive jurisdiction in respect of the application made under Section 11 of the Arbitration and Conciliation Act, 1996.

The fact leading to the aforesaid case, as it appears from the judgment, one IBP Company Limited, which has subsequently been merged with the Indian Oil Corporation Limited was engaged in the business of storage, distribution of petroleum products and also manufacturing and marketing of various types of lubricating oils, grease, fluid and coolants. The Company was interested to promote and augment its sales of lubricants and other products. The appellant, M/s Swastik Gases (P) Ltd., who deals in storage, distribution of petroleum products etc. entered into an agreement on 13.10.2002, whereby the appellant- M/s Swastik Gases (P) Ltd., was appointed the Company's consignment agent for marketing lubricants at Jaipur (Rajasthan). The disputes arose between the parties. The dispute having not amicably resolved, a notice was sent by the appellant to the Company invoking arbitration clause wherein the name of a retired Judge 16 of the High Court was proposed as the appellant's arbitrator. The Company was requested to name their arbitrator within thirty days failing which it was stated that the appellant would have no option but to proceed under Section 11 of the 1996 Act. The Company did not nominate its arbitrator within thirty days of receipt of the notice dated 25.08.2008 which led to the applicant making an application under Section 11 of the 1996 Act in the Rajasthan High Court for the appointment of the arbitrator in respect of the disputes arising out of the above agreement.

The agreement referred above contains a jurisdiction clause to be at Kolkata. The objection regarding maintainability of the application filed before Rajasthan High Court was raised taking the jurisdiction clause to be at Kolkata and the plea was taken that by virtue of Clause 18 of the agreement, whether parties have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, in view of Clause 18 of the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has been excluded.

The Hon'ble Apex Court, in order to scrutinize the aforesaid issue, has considered the effect of the jurisdiction clause in the agreement which provides 17 that the agreement shall be subject to jurisdiction of the courts at Kolkata. It has been taken note therein that whilst providing for jurisdiction clause in the agreement the words like ―alone‖, ―only‖, ―exclusive‖ or ―exclusive jurisdiction‖ have not been used but this has been considered not decisive and does not make any material difference due to the reason that the intention of the parties--by having Clause 18 in the agreement-- is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction.

It has further been observed as under paragraph 32 thereof that for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary.

The Hon'ble Apex Court, considering the aforesaid fact, has observed that the courts at Kolkata will have jurisdiction. Paragraph 32 of the aforesaid judgment reads hereunder as :-

"32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like ―alone‖, ―only‖, 18 ―exclusive‖ or ―exclusive jurisdiction‖ have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties--by having Clause 18 in the agreement--is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.‖

12. It is, thus, evident from the aforesaid judgment that while considering the jurisdiction of the Court at Kolkata, consideration has been given about the intention of the parties in determining the place of arbitration.

13. In Brahmani River Pellets Limited v. Kamachi Industries Limited (Supra) the Hon'ble Apex Court 19 has held that 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. The relevant paragraphs of the aforesaid judgments are quoted hereunder as:-

"15. As per Section 20 of the Act, parties are free to agree on the place of arbitration. Party autonomy has to be construed in the context of parties choosing a court which has jurisdiction out of two or more competent courts having jurisdiction. This has been made clear in the three-Judge Bench decision in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. 15.1. In the said case, respondent Indian Oil Corporation Ltd. appointed M/s Swastik Gases (P) Ltd. situated at Jaipur, Rajasthan as their consignment agent. The dispute arose between the parties as huge quantity of stock of lubricants could not be sold by the applicant and they could not be resolved amicably. In the said matter, Clause 18 of the agreement between the parties provided that the agreement shall be subject to the jurisdiction of the courts at Kolkata.

15.2. The appellant Swastik invoked Clause 18 -- arbitration clause and filed application under Section 11(6) of the Act before the Rajasthan High Court for appointment of arbitrator. The respondent contested the application made by Swastik inter alia by raising the plea of lack of territorial jurisdiction of the Rajasthan High Court in the matter. The plea of Indian Oil Corporation was that the agreement has been made subject to jurisdiction of the courts at Kolkata and the Rajasthan High Court lacks the 20 territorial jurisdiction in dealing with the application under Section 11(6) of the Act.

15.3. The Designated Judge held that the Rajasthan High Court did not have territorial jurisdiction to entertain the application under Section 11(6) of the Act and gave liberty to Swastik to file the arbitration application in the Calcutta High Court which order came to be challenged before the Supreme Court.

15.4. Pointing out that the words like ―alone‖, ―only‖, ―exclusive‖ or ―exclusive jurisdiction‖ have not been used in the agreement and use of such words is not decisive and non-use of such words does not make any material difference as to the intention of the parties by having Clause 18 of the agreement that the courts at Kolkata shall have the jurisdiction, the Supreme Court held as under : [Swastik Gases (P) Ltd. case, SCC pp. 47-48, paras 31-33] ―31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What the appellant says is that part of cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of Clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of Clause 18 of 21 the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has been excluded?

32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties-- by having Clause 18 in the agreement-- is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.

33. The above view finds support from the decisions of this Court in Hakam Singh v. Gammon (India) Ltd., A.B.C. Laminart (P) 22 Ltd. v. A.P. Agencies, R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd., Angile Insulations v. Davy Ashmore (India) Ltd., Shriram City Union Finance Corpn. Ltd. v. Rama Mishra, Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. and Balaji Coke Industry (P) Ltd. v. Maa Bhagwati Coke Gujarat (P) Ltd..‖ (emphasis supplied)

16. In Swastik, the Supreme Court held that clause like Clause 18 of the agreement will not be hit by Section 23 of the Contract Act and it is not forbidden by law nor it is against public policy. It was so held that as per Section 20 of the Act, parties are free to choose the place of arbitration. This ―party autonomy‖ has to be construed in the context of choosing a court out of two or more courts having competent jurisdiction under Section 2(1)(e) of the Act.

17. The interplay between ―seat‖ and ―place of arbitration‖ came up for consideration in Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd. After referring to BALCO, Enercon (India) Ltd. v. Enercon GmbH and Reliance Industries Ltd. v. Union of India and also amendment to the Act pursuant to the Law Commission Report, speaking for the Bench Nariman, J. held as under : [Indus Mobile Distribution (P) Ltd. case, SCC pp. 692-93, paras 18-20] ―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 Sections 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, 23 it was found unnecessary to expressly incorporate what the Constitution Bench of the Supreme Court has already done by way of construction 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 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 Sections 16 to 21 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.

20. It is well settled that where more than one court has jurisdiction, it is open for the parties to exclude all other courts. For an exhaustive analysis of the case law, see Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd. 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 24 seat of arbitration is at Mumbai. This being the case, the impugned judgment is set aside.‖ (emphasis supplied)

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 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.‖ It is evident from the observations made in the paragraphs referred hereinabove, that in a case of domestic arbitration, the place/seat is having importance taking into consideration the intent of the parties.

13. The Hon'ble Apex Court has considered the issue of excluding the jurisdiction in the case of A.B.C. Laminart (P) Ltd. and Another v. A.P.Agencies, Salem [(1989) 2 SCC 163], wherein the Hon'ble Apex 25 Court has declined to exclude the jurisdiction of the courts at Salem in all other similar cases and inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words ―only‖, ―alone‖ or ―exclusively‖ and the like. The reason for this is quite obvious, since, the parties would not have included the ouster clause in their agreement, were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties, it conveys their clear intention to exclude the jurisdiction of the courts other than those mentioned in the clause concerned. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen, would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties.

In Balaji Coke Industry Private Limited v. Maa Bhagwati Coke Gujarat Private Limited [(2009) 9 SCC 403], wherein the exclusion clause was there, the parties, notwithstanding the aforesaid clause, instituted a proceeding against the appellant in Bhavnagar (Gujarat). The transfer petition was filed 26 under Article 139-A(2) of the Constitution of India for transfer of proceeding to Kolkata. While allowing the transfer petition, the Hon'ble Apex Court drew inference as postulated in A.B.C. Laminart (P) Ltd. and Another v. A.P.Agencies, Salem (Supra) that the intention of the parties was to exclude the jurisdiction of the courts other than Kolkata, reference be made to paragraph 4 of the aforesaid judgment which reads hereunder as:-

"4. ... ...In case of any dispute or difference arising between the parties hereto or any claim or thing herein contained or the construction thereof or as to any matter in any way connected with or arising out of these presents or the operation thereof or the rights, duties or liabilities of either party thereof, then and in every such case the matter, differences or disputes shall be referred to an arbitrator in Kolkata, West Bengal, India in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996, or any other enactment or statutory modifications thereof for the time being in force. The place of arbitration shall be Kolkata.‖ [emphasis supplied] In A.V.M.Sales Corporation v. Anuradha Chemicals Private Limited [(2012) 2 SCC 315], the judgment rendered by Hon'ble Apex Court in A.B.C. Laminart (P) Ltd. and Another v. A.P.Agencies, Salem (Supra) has been considered by taking note thereof, as has been referred at paragraph 19 of the 27 judgment, wherein, it has been referred about the settled principle that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute, para 19 reads hereunder as :-

"19. After considering the facts involved in the said case and the submissions made on behalf of the parties, this Court observed as follows: (A.B.C. Laminart case [(1989) 2 SCC 163] ―18. ... Thus it is now a settled principle that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute.‖ 28 Similar view was taken by Hon'ble Apex Court in Angile Insulations v. Davy Ashmore India Ltd. and Another [(1995) 4 SCC 153], wherein, by referring to the judgment rendered in the case of A.B.C. Laminart (P) Ltd. and Another v. A.P.Agencies, Salem (Supra) held that where two courts have jurisdiction consequent upon the cause of action or a part thereof arising therein, if parties agree in clear and unambiguous term to exclude the jurisdiction of the other, the said decision would not offend the provision of Section 23 of the Contract Act. In such a case, the suit would lie in the court agreed upon by the parties.

In Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. [(2004) 4 SCC 671] the part of the cause of action arose at Delhi and Mumbai. The Hon'ble Apex Court has held that the mutual agreement to exclude the jurisdiction of the Delhi courts to entertain the suit was not opposed to the public policy and was valid.

The Hon'ble Apex Court in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. (Supra), which has been rendered in the context of International Commercial Arbitration, wherein while dealing with the implications of the juridical seat and for the said purpose the court is to be identified to 29 exercise the supervisory control over the arbitration proceeding, the provision of Section 2(1)(e) of the Act, 1996 for the purpose of interpreting the ―place of arbitration‖, it has been held at paragraph 96 thereof which reads hereunder as :-

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

―2. Definitions.--(1) In this Part, unless the context otherwise requires--

(a)-(d)***

(e) ‗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, 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 connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control 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 provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 30 nugatory. In our view, 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 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 required 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 between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim 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 courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either 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 situated and the courts within the jurisdiction of which the dispute resolution i.e. arbitration is located.‖ It is evident from the aforesaid paragraph wherein it has been observed that the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party 31 autonomy. Accepting the narrow construction will render Section 20 nugatory.

The Hon'ble Apex Court has further observed about the intention of the legislature by giving 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. As such, the courts where the arbitration takes place, would be required to exercise supervisory control over the arbitral process.

The Hon'ble Apex Court, following the judgment rendered in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. (Supra), has again considered the same in Swastik Gases Private Limited v. Indian Oil Corporation Limited (Supra) and again the same was considered in the case of Brahmani River Pellets Limited v. Kamachi Industries Limited (Supra).

The Hon'ble Apex Court in another judgment rendered in the case of Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited (Supra), has held as under paragraph 18, 19 and 20 thereof which read hereunder as:- 32

"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 Sections 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 construction 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 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 Sections 16 to 21 of 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.

20. It is well settled that where more than one court has jurisdiction, it is open for the parties to exclude all other courts. For an exhaustive analysis 33 of the case law, see Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd. 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 Mumbai. 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. The appeals are disposed of accordingly.‖ It is evident from the above referred para of the judgment of the Hon'ble Apex Court that by taking note of the judgment rendered in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. (Supra) wherein in no uncertain terms has referred to ―place‖ as ―juridical seat‖ for the purpose of Section 2(2) of the Act. It made further clear that Sections 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‖ and basis upon the same, on the given facts of the said case, the seat of arbitration has been held to be at Mumbai in view of Clause 19 of the aforesaid agreement.

In the case of Mankastu Impex Private Limited v. Airvisual Limited (Supra), although the fact of the said case is of international arbitration, but, considering the arbitration clause about the place of arbitration to be at Hong Kong, it has been held at paragraph 18, 20 and 22, which read hereunder as:-

18. The learned counsel for the petitioner has submitted that a perusal of Clause 17.1 of MoU makes it clear that the petitioner and the respondent have only agreed that the proper law of the contract to be laws of India and MoU is clearly silent on the proper law and the curial law of the arbitration and therefore, Clause 17.1 would govern the proper law and the curial law. According to the petitioner, there is no express or implied exclusion either in Clause 17 or under the entire MoU of the non-applicability of the laws of India and/or the applicability of the laws of Hong Kong or any other country. The contention of the petitioner is that in the absence of the clear stipulation as to the proper law and curial law of the arbitration, laws of India should be taken as the proper law and curial law under MoU and under no circumstances, the terms in Clause 17.1 of MoU be undermined or diluted.

20. It is well settled that ―seat of arbitration‖ and ―venue of arbitration‖ cannot be used interchangeably. It has also been established that mere expression ―place of arbitration‖ cannot be the basis to determine the intention of the parties that they have intended that place as the ―seat‖ of arbitration. The intention of the parties as to the ―seat‖ should be determined from other clauses in the agreement and the conduct of the parties.

22. As pointed out earlier, Clause 17.2 of MoU stipulates that the dispute arising out of or relating to MoU including the existence, validity, interpretation, breach or termination thereof or any dispute arising out of or relating to it shall be referred to and finally resolved by the arbitration administered in Hong Kong. The words in Clause 17.2 that ―arbitration administered in Hong Kong‖ is an indicia that the seat of arbitration is at Hong Kong. Once the parties have chosen ―Hong Kong‖ as the place of arbitration to be administered in Hong Kong, the laws of Hong Kong would govern the arbitration. The Indian courts have no jurisdiction for appointment of the arbitrator.

It is evident from paragraph 19 thereof that the seat of arbitration has been considered to be a vital aspect of any arbitration proceedings, since, the significance of the seat of arbitration is that it determines the applicable law while deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award.

Further, as would appear from paragraph 20 thereof wherein the position of law as is settled that ―seat of arbitration‖ and ―venue of arbitration‖ cannot be used interchangeably. It has further been observed that mere expression ―place of arbitration‖ cannot be the basis to determine the intention of the parties that they have intended that place as the ―seat‖ of arbitration. The intention of the parties as to the ―seat‖ 36 should be determined from other clauses in the agreement and the conduct of the parties.

However, it is evident from paragraph 20 thereof that the words in Clause 17.2 that ―arbitration administered in Hong Kong‖ is an indicia that the seat of arbitration is at Hong Kong. Once the parties have chosen ―Hong Kong‖ as the place of arbitration to be administered in Hong Kong, the laws of Hong Kong would govern the arbitration. The Indian courts have no jurisdiction for appointment of the arbitrator.

The judgment rendered by Hon'ble Apex Court in the case of BGS SGS Soma JV v. NHPC Ltd. (Supra), the issue of venue/seat has been considered by taking note of the words used in Swastik Gases Private Limited v. Indian Oil Corporation Limited (Supra) like ―alone‖, ―only‖, ―exclusive‖ or ―exclusive jurisdiction‖ are not decisive and does not make any material difference, at paragraph 82 it has been held therein that whenever there is the designation of a place of arbitration in an arbitration clause as being the ―venue‖ of the arbitration proceedings, the expression ―arbitration proceedings‖ would make it clear that the ―venue‖ is really the ―seat‖ of the arbitral proceedings, as the aforesaid expression does not include just one or 37 more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. However, the said principle will be 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. Paragraph 82 reads hereunder as :-

―82. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the ―venue‖ of the arbitration proceedings, the expression ―arbitration proceedings‖ would make it clear that the ―venue‖ is really the ―seat‖ of the arbitral proceedings, as the aforesaid expression does not include just one or more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. This language has to be contrasted with language such as ―tribunals are to meet or have witnesses, experts or the parties‖ where only hearings are to take place in the ―venue‖, which may 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 38 with there being no other significant contrary indicia that the stated venue is merely a ―venue‖ and not the ―seat‖ of the arbitral proceedings, would then conclusively show that such a clause designates a ―seat‖ of the arbitral proceedings. In an international context, if a supranational body of rules is to govern the arbitration, this would further be an indicia that ―the venue‖, so stated, would be the seat of the arbitral proceedings. In a national context, this would be replaced by the Arbitration Act, 1996 as applying to the ―stated venue‖, which then becomes the ―seat‖ for the purposes of arbitration.‖ It is, thus, evident from the aforesaid judgment from which it can well be inferred that whenever there is a designation of the place of arbitration in an arbitration clause as being the ―venue‖ of the arbitration proceeding, the expression ―arbitration proceeding‖ would make it clear that ―venue‖ is really the seat of arbitral proceeding as the aforesaid expression does not include just one or more individual or particular hearing. However, the same will have different impact if there is contrary indicia and in that context, the stated venue is merely a venue and not a seat of the arbitration proceeding.

14. Learned counsel for the petitioner has argued by taking the ground of contrary indicia in view of the clause as contained under ‗Part-G' by which the district 39 court at Lohardaga has been conferred with the jurisdiction and, as such, submitted that the instant application is maintainable, reason being that the condition stipulated therein will amount to exclusive jurisdiction and once the exclusive jurisdiction has been carved out, the jurisdiction of the other courts will be ousted and to substantiate his argument, he has heavily relied upon the judgment rendered in the case of BGS SGS Soma JV v. NHPC Ltd. (Supra).

15. This Court, before scrutinizing both the clauses, i.e., Part-G and Part-H, to answer that Part-G by which the district court at Lohardaga has been conferred with the jurisdiction will oust the jurisdiction of the arbitration proceeding as per the intention of the parties in the agreement whereby the place of arbitration has been determined at Renukoot.

16. Again, referring the judgment rendered in the case of Swastik Gases (Supra), in order to see what will be the paramount consideration to decide the place of arbitration, as has been held by Hon'ble Apex Court in the judgment rendered in the case of Swastik Gases Private Limited v. Indian Oil Corporation Limited (Supra) that the intention of the parties is of utmost importance and considering the content of the 40 condition stipulated under Clause G.1 by which the jurisdiction has been conferred to the district courts at Lohardaga, but save and except that, there is no other indication therein that the said clause will oust the jurisdiction of Renukoot wherein, as per the intention of the parties, the place of arbitration has been determined.

It needs to refer herein that the judgment rendered in the case of BGS SGS Soma JV v. NHPC Ltd. (Supra) has been rendered in the context of international arbitration. However, law has been laid down that the venue of arbitration is really the seat of arbitral proceeding, herein, the place of arbitration since has been determined at Renukoot, the expression made as under Clause G.1 will not oust the jurisdiction of arbitration proceeding, as has been determined by the parties fixing the place of arbitration to be at Renukoot.

The Hon'ble Apex Court, in the aforesaid case, has also discussed by defining the ―venue‖ where only hearings are to take place, which made it to the conclusion that other things being equal, the venue so stated was not the seat of arbitral proceeding but only a convenient place of meeting.

17. Further, the fact that the arbitral proceeding 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.

Herein in the fact of the case, the clause Part-H to be considered wherein it has been referred ―the place of arbitration shall be Renukoot‖ and if the said language that the place of arbitration shall be Renukoot will be considered in the context of the ratio laid down by the Hon'ble Apex Court in the case of BGS SGS Soma JV v. NHPC Ltd. (Supra), it would be evident that indicative of the intention of the parties that the arbitral proceeding will be held at a particular place signifying thereby, that place is the seat of arbitral proceeding.

18. However, the issue of contrary indicia, as has been raised on behalf of the petitioner, by taking aid of Clause G.1 wherein, the courts at district Lohardaga shall have exclusive jurisdiction in case of disputes under the contract and, therefore, the place, as has been referred under Clause H.1 will be construed to be venue and hence, Renukoot will be considered to be the venue for arbitration.

But, this Court is not in agreement with such argument, reason being that if the said argument will be accepted, the question would be what will happen to Clause H.1 which contains the arbitration clause for resolution of dispute and/or differences and thereby Clause G.1 will be allowed to prevail upon H.1.

Further for the reason that when the parties have intended for resolution of dispute/differences by resorting to the arbitration proceeding, fixing the place of arbitration at Renukoot, the intention of the parties is to be looked into and petitioner/applicant consciously have signed the agreement even knowing about the specific arbitration clause having its place at Renukoot.

19. The question may arise for what dispute Clause G.1 has been inserted?

20. According to the considered view of this Court, the intent of the contract is by making available two recourses to the parties concerned, i.e., by pursuing the civil suit or by resolution of dispute through arbitration.

Therefore, the intent of the parties, so far as it relates to insertion of the condition stipulated under Part-G will have importance, if the parties will pursue 43 civil suit for resolution of dispute but if the parties chose to settle the dispute through arbitration mechanism by taking recourse of the Arbitration and Conciliation Act, 1996, the intent of the parties will be as per Part-H, i.e., to take recourse of arbitration proceeding and hence, considering the intention of the parties while entering into the contract, two clauses have been stipulated in the agreement. In Part-G, if the parties will take recourse to file civil suit then the jurisdiction, has been carved out to the court, at Lohardaga but in case the parties will intend to adjudicate the dispute through arbitration mechanism, the parties have intended to insert the arbitration clause as is stipulated under Part-H, therefore, the scope of Part-G and Part-H of the contract is quite different and hence, the jurisdiction to the district court at Lohardaga cannot construed to be a contrary indicia for the purpose of ousting the jurisdiction of arbitration proceeding as stipulated under Part-H. It further requires to refer herein that if the condition stipulated under Part-G is considered to be contrary indicia, the question will arise that why the reference of district court at Lohardaga has been mentioned and why not the other district? 44

The reason is obvious that the district court at Lohardaga has been carved out with the exclusive jurisdiction based upon the intention of the parties that since the cause of action occurs in the mining work within the district of Lohardaga and as such, if the party will intend to file a civil suit then the court at Lohardaga will have only jurisdiction and no other courts situated in different districts of the State of Jharkhand.

Admittedly, the petitioner is not resorting to pursue the civil suit and as such, there is no question of applicability of Clause G.1.

However, since the petitioner/applicant is resorting to the arbitration clause by filing the instant application under Section 11(6) of the Act, 1996, as such, Clause H.1 will be applicable and hence, it cannot be said, as has been taken as a ground on behalf of the petitioner/applicant that the condition stipulated under Clause G.1 is to be treated as exclusive jurisdiction treating it as a contrary indicia and, therefore, this Court will have jurisdiction to entertain the instant applications, is not worth to be considered, since the petitioner/applicant has resorted for resolution of dispute through arbitration 45 mechanism, wherein the Arbitration and Conciliation Act, 1996 is to be made applicable and in that view of the matter, it is only the Clause H.1 which will be applicable and the parties have agreed for place of arbitration at Renukoot which falls within the jurisdiction of the State of Uttar Pradesh.

This Court is further of the view that Clause G.1 which confers jurisdiction upon the district courts at Lohardaga, cannot be treated to be contrary indicia ousting the arbitration clause in view of the finding recorded by this Court to the effect that if the petitioner/applicant will resort for pursuing the civil suit for redressal of dispute, which is entirely in the different field since therein the provision of Code of Civil Procedure will be applicable and hence, the same cannot be considered to be contrary indicia.

21. Further, the issue of contrary indicia, as has been considered in the case of BGS SGS Soma JV v. NHPC Ltd. (Supra), can be considered in the context of international arbitration wherein the applicability of different law will be an issue depending upon the seat/place of arbitration but herein, it is the case of domestic arbitration and hence, there is no issue of the applicability of the said law.

22. This Court, by taking into consideration the law laid down by the Hon'ble Apex Court in the case of Brahmani River Pellets Limited v. Kamachi Industries Limited (Supra) and the principle laid down therein that if the parties have intended to fix a particular venue for arbitration proceeding only that place is the seat of arbitral proceeding having the supervisory jurisdiction of the High Court and in that view of the matter, taking into consideration the intention of the parties, Clause H.1 is the place of arbitration to be at Renukoot which falls within the State of Uttar Pradesh and as such, the instant applications filed under Section 11(6) of the Act, 1996 are not maintainable for want of territorial jurisdiction.

23. Accordingly, the instant applications are dismissed being not maintainable.

24. However, the petitioner/applicant is at liberty to avail the remedy by approaching to the court having jurisdiction.

(Sujit Narayan Prasad, J.) Birendra/ A.F.R.

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Jharkhand High Court