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NEUTRAL CITATION NO: 2022/DHC/003067 24.09.2018, immediately upon expiry of the 30-day period of the invocation notice;

(v) In answer to the main objection, that the present petition is not maintainable since an earlier petition on the same cause of action already stands dismissed for lack of territorial jurisdiction, which dismissal was not interfered-with by the Hon'ble Supreme Court, it is submitted on behalf of the petitioner, that the earlier round of litigation, viz. the dismissal of the arbitration petition filed before this court on 30.11.2018 and the subsequent dismissal of the SLPs by the Hon'ble Supreme Court on 25.03.2019 proceeded on the basis of the judgment in Union of India vs. Hardy Exploration & Production (India) Inc. 3 , (hereinafter referred to as 'Hardy P2F P Exploration') before the Hon'ble Supreme Court rendered its clarificatory judgment in BGS SGS SOMA (supra) holding that the decision in Hardy Exploration was not good law. It is argued that since the position of law laid down by the Hon'ble Supreme Court with respect to determination of territorial jurisdiction changed and since the decision of the co-ordinate Bench of this court, though on the same cause of action and between the same parties, proceeded on the earlier position of law, it does not constitute res-judicata. In this regard, attention is drawn to the decision of the Hon'ble Supreme Court in (2018) 7 SCC 374 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003067 decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise."

(emphasis supplied)

11. Furthermore, in BGS SGS SOMA (supra) the Hon'ble Supreme Court held that the law laid down in Hardy Exploration (supra) was not good law in the following words :

"94. The decision in Hardy Exploration & Production (India) Inc. [Union of India v. Hardy Exploration & Production (India) Inc., (2019) 13 SCC 472 : (2018) 5 SCC (Civ) 790] is therefore contrary to the five-Judge Bench in Balco [Balco v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810], in that it failed to apply the Shashoua [Shashoua v. Sharma, 2009 EWHC 957 (Comm) : (2009) 2 Lloyd's Law Rep 376] principle to the arbitration clause in question. The Hardy Exploration & Production (India) Inc. [Union of India v. Hardy Exploration & Production (India) Inc., (2019) 13 SCC 472 : (2018) 5 SCC (Civ) 790] decision would lead to the result that a foreign award would not only be subject to challenge in the country in which it was made, but also subject to challenge under Section 34 of Part I of the Arbitration Act, 1996, which would lead to the chaos spoken of in para 143 of Balco [Balco v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810], with the concomitant risk of conflicting decisions, as held in Venture Global Engg. [Venture Global Engg. v. Satyam Computer Services Ltd., (2008) 4 SCC 190] [overruled in Balco [Balco v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810] ], which would add to problems relating to enforcement, and undermine the policy underlying the New York Convention and the Uncitral Model Law. We, therefore, declare that the judgment in U Hardy Exploration & Production (India) Inc. [Union of India v. Hardy Exploration & Production (India) Inc., (2019) 13 SCC 472 :

* * * * *"

(emphasis supplied)

13. The earlier decision of a co-ordinate Bench of this court, vide order/judgment dated 30.11.2018 in Arb. P. No. 754/2018 and Arb. P. No. 755/2018, from which SLP(C) Nos. 5063-5064/2019 was dismissed in-limine by order dated 25.03.2019, was based on the decision of the Hon'ble Supreme Court in Hardy Exploration (supra). Hardy Exploration essentially said that without an express opinion or determination signifying a 'place' as a 'seat', the 'place' referred to in an arbitration agreement does not "ipso facto assume the status of seat.". Hardy Exploration was overruled in BGS SGS SOMA (supra), since the test in Hardy Exploration was considered to be contrary to the decision of the Constitution Bench in Bharat Aluminium Co. vs. Kaiser Aluminium Technical Service, Inc.6 (hereinafter referred to as P5F P 'BALCO'). The test for determination of a 'place' as a 'seat' was (2012) 9 SCC 552 This is a digitally signed Judgement.