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26. However, in 2018, there appeared room for uncertainty as it was noticed that the Hon'ble Supreme Court had deviated from the Shashoua Principle, 2009 EWHC 957 (Comm) : (2009) 2 Lloyd's Rep 376 approved by the same court in BALCO (supra). In the case of Union of India v. Hardy Exploration and Production (India) Inc., (2019) 13 SCC 472, the Hon'ble Supreme Court held that the parties had Kuala Lumpur as the venue of arbitration but were silent on the seat. After dispute arose, the arbitration proceedings commenced and the award was signed at Kuala Lumpur. Thereafter the appellant sought to challenge the award under the Act before the Delhi High Court contending that Delhi was the seat of arbitration. On appeal the Hon'ble Supreme Court delivered a judgment deviating from the Shashoua Principle (supra). The Court held that the parties had not chosen the seat of arbitration and noted that the Tribunal also had not made any findings with respect to the same. It was observed that Kuala Lumpur was designated by the parties as the venue of arbitration and thus it did not mean that Kuala Lumpur had become the seat of arbitration. The Court concluded that a venue could become a seat of arbitration only if something else is added to it as a concomitant. Opinion of the Hon'ble Supreme Court does not appears to be in consonance with the Shashoua Principle (supra) approved by the same court in BALCO (supra).

27. Thereafter in 2019, the Hon'ble Supreme Court had another occasion to revisit this issue in BGS SGS SOMA JV (supra). It is interesting to note that in this case, the coordinate Bench (3 Judges) had reiterated the Shashoua Principle (supra) contrary to the observations made in Hardy Exploration (supra). The Court propounded a test and laid down that when a particular place is designated as the venue of arbitration the same should be considered to be the seat of arbitration. It noted that this should be coupled with the fact that the parties have not made any other contrary indication that the venue is not the seat of arbitration. The Court observed that the decision in Hardy Exploration (supra) is per incuriam as it did not follow ratio laid down by the Constitutional Bench in BALCO (supra) that wholeheartedly adopted the Shashoua Principle (supra) in Indian law. It appears that there is uncertainty whether the decision of the Court in Hardy Exploration (supra) or BGS SGS SOMA JV (supra) holds the field, as a concurrent Bench could not have overruled the judgment in Hardy Exploration (supra).

29. It is interesting to note the method of inquiry adopted by the Hon'ble Supreme Court in arriving at its conclusion that Hong Kong was the seat of arbitration. The Hon'ble Supreme Court instead of applying the ratio in Hardy Exploration (supra) or BGS SGS SOMA JV (supra), employed a different method of inquiry altogether. Although, the Hon'ble Supreme Court did not expressly follow Hardy Exploration (supra), it appears to have arrived at a similar conclusion on a different line of reasoning. The Court held that it would not be safe to conclude that the place of arbitration would automatically become the seat of arbitration without examining other pertinent indications in the contract to discern the true intention of the parties. The Hon'ble Supreme Court observed that since it was agreed that the arbitration proceedings should be administered in Hong Kong, thus, seat of arbitration was Hong Kong.

30. Recently a Division Bench of the Hon'ble Supreme Court in M/s Inox Renewables Ltd. v. Jayesh Electricals Ltd., passed on 13.04.2021 in Civil Appeal No. 1556 of 2021 arising out of SLP (C) No. 29161 of 2019) has reiterated the decision in BGS SGS SOMA JV (supra), equating the juridical concepts of seat and venue. In this regard, the Court has clarified that a shift in venue by mutual agreement between the parties would tantamount to shifting of the place/ seat of arbitration.

31. From the above consideration of the judgement of the Hon'ble Supreme Court regarding the "seat" and "venue" controversy, this Court finds that the judgement of the Hon'ble Supreme Court in the case of BALCO (supra) still holds good. The judgement in the case of Hardy Exploration (supra) or BGS SGS SOMA JV (supra) are of two coordinate Benches of three Hon'ble Judges and their ratios are contrary to each other. While Hardy Exploration (supra) stipulated that a chosen venue could not by itself assume the status of seat of arbitration in the absence of additional indica, BGS SGS SOMA JV (supra) prescribed that a chosen seat of arbitration proceedings would become the seat of arbitration in the absence of any "significant contrary indica". The recent judgement in the case of M/s Inox Renewables Ltd. (supra) follows BGS SGS SOMA JV (supra).