Aniket SA Investments LLC v. Janapriya Engineers Syndicate Private Limited

ISSUES THAT ARISE FOR CONSIDERATION:

8. We have heard the Learned Advocates for the parties and have also perused the written submissions submitted by them. Having considered the Impugned Order and rival contentions of the parties, in our view there are two main issues that require adjudication. The same are as follows: The frst issue is: Whether the Impugned Order is correct in accepting the Respondents primary submission that paragraph 96 of BALCO, recognizes two courts as having concurrent jurisdiction under Section 2(1)(e) of the Act, namely, the court where the cause of action accrues and the court of the seat of arbitration?; or, whether a choice of seat of arbitration has the legal efect of conferring exclusive jurisdiction on the courts of that seat and no other court would have jurisdiction under the arbitration agreement? The second issue is: If there is concurrent jurisdiction of two courts, is the Impugned Order correct in holding that as a matter of party autonomy the parties herein have made an express choice in conferring jurisdiction on the Courts at Hyderabad and that to give efect to this plain commercial term of the Agreement, the expression ‘subject to’ must be read as ‘notwithstanding’ and that expression ‘seat’ must be read as ‘venue’?

SUBMISSIONS OF THE APPELLANT:

9. As regard the frst issue, Mr. Jagtiani, learned Senior Counsel appearing for the Appellant, contended that after the Impugned Order was pronounced by the Learned Single Judge, the Supreme Court in the judgment of BGS SGS SOMA JV v. NHPC LIMITED (“BGS SGS”)6, had an occasion to consider and deal with an identical issue that arises herein. Mr.Jagtiani placed extensive reliance on this judgment as, according to him, it conclusively and categorically covers the frst issue in favour of the Appellant. Mr.Jagtiani submitted that the Supreme Court decision considers all the relevant prior decisions including the decisions in BALCO and Indus Mobile and essentially holds that paragraph 96 of BALCO must be read consistently with the rest of that judgment and properly construed, BALCO holds that the Courts of the seat of the arbitration would have exclusive jurisdiction in relation to disputes arising in relation to the arbitration. He further submitted that in fact the Supreme Court in BGS SGS has considered the judgment in Indus Mobile and held that Indus Mobile also confrms this view of exclusive jurisdiction on the Court of the seat. Further, as held in BGS SGS, Indus Mobile cannot be distinguished only because in that case the courts of the seat and the courts of the express choice of parties was the same. He also pointed out that the very judgment of the Division Bench of the Delhi High Court that was relied upon by the Respondent and with which the Learned Single Judge agreed, in the case of Antrix, has been found to be an incorrect view by the Supreme Court in BGS SGS. It was submitted that the judgment of BGS SGS holds that the decision of the Supreme Court in Union of India V. Hardy Exploration and Production (India) Inc. (Hardy Exploration)7 (relied upon in the Impugned Order) is contrary to the Five Judge Bench in BALCO. It is further submitted that the Supreme Court in BGS SGS has also considered and stated the legal position to the efect that a reference to a ‘place’ or ‘venue’ in an arbitration agreement will generally be understood as being a reference to a ‘seat’ of the arbitration unless there is a clear indication to the contrary. It is therefore, submitted that the learned Single Judge ought not to have disregarded the clear choice of Mumbai as a ‘seat’ and proceeded to hold that it was to be understood only as a ‘venue’ chosen by the parties. 9.[1] With regard to the fndings on the interpretation of the Agreement in the Impugned Order, Mr. Jagtiani submitted that even if it is to be assumed that by law, two courts have concurrent jurisdiction under the Act, the clear intent of the parties as gathered by the plain meaning of the relevant clauses is that choice of Courts at Hyderabad in Clause 20.[3] is made “subject to” Clause 23.[4] which is the arbitration clause and which provides for the seat at Mumbai. Therefore, in the event of any conflict the latter must prevail because that is the well settled meaning of the expression “subject to”. One way of reconciling both these clauses is that the former clause, which is not under the arbitration agreement of Clause 20.4, will apply in relation to a dispute that is not covered by the arbitration, and in relation to all disputes under the arbitration agreement the choice of seat being at Mumbai, the choice of Court will also be at Mumbai even in a situation of concurrent jurisdiction with two Courts. Mr. Jagtiani submits that therefore, there was no warrant for reading “subject to” as “notwithstanding” and giving it the very opposite meaning to the clear words chosen by the parties. Similarly, the expression “seat” in Clause 20.[4] could never have been read as a mere venue. It is submitted that the law in fact leans in favour of reading a reference to ‘venue’ as ‘seat’ and when parties make an express reference to a place as being the ‘seat’ that choice under the very same principles of party autonomy must be given full efect to.

SUBMISSIONS OF RESPONDENTS 1 AND 2:

10. In response, Mr. Doctor, learned Senior Counsel for the Respondent Nos.[1] and 2, did not, in fairness, contest that the Supreme Court decision in BGS SGS does have a direct bearing on the frst issue that arises herein. In light of the law laid down and recognized by this judgment, the main submission of the Respondent Nos.[1] and 2 before us is that Clause 20.[4] should not be read as being a choice of ‘seat’ so as to displace the clear words and choice in Clause 20.[3] of jurisdiction being conferred on the Courts at Hyderabad. It was therefore submitted that if Clause 20.4.2(c) is not understood to mean a choice of ‘seat’, on a proper interpretation of the Agreement, then the principles laid down in BGS SGS would have no application to the present case. Mr. Doctor also submitted that given the express choice of words in Clause 20.[3] of the Agreement in conferring exclusive jurisdiction on the Courts at Hyderabad, the Impugned Order was correct in reading the expression ‘subject to’ as ‘notwithstanding’ so as to give efect to the clear intent of the parties as is apparent from Clause 20.[3] of the Agreement.

SUBMISSIONS OF THE RESPONDENTS 3 TO 6:

11. Respondent Nos. 3 to 6 have in their written submissions contended that in the year 2008, when the Agreement was entered into between the parties, the expression ‘seat’ was understood to mean ‘venue’ and that the expression ‘seat’ as it is now understood was unknown to the parties at that time. Therefore, for the purpose of vesting jurisdiction on courts, the phrase ‘exclusive jurisdiction’ was stipulated in Clause 20.[3] of the Agreement. It is submitted that disregarding common usage at the relevant time will amount to disregarding the intent of parties. As regards the judgment in BGS SGS, the written submissions at paragraph 11 contends that the judgment is being incorrectly understood by the Appellant. It is submitted that the concept of ‘seat’ is relevant only to International Commercial Arbitration involving multi-national parties and that in domestic arbitrations or international commercial arbitrations seated in India, parties would retain the right to vest exclusive jurisdiction with a Court from amongst multiple courts which would naturally have jurisdiction over the subject matter or cause of action. It is submitted that reference to “seat” in domestic arbitrations or international commercial arbitrations seated in India would not subsume within it an exclusive jurisdiction of courts of that seat. 11.[1] Without prejudice, it is submitted by Respondent Nos. 3 to 6, that the judgment in BGS SGS while considering ‘seat’ as being akin to exclusive jurisdiction did not consider possibility of an agreement stipulating diferent places being mentioned in respect of ‘seat’ and exclusive jurisdiction. In none of the judgments considered by the Supreme Court in BGS SGS is there a situation like the present one. Therefore, it is submitted that the judgment in BGS SGS does not apply to the present situation and that the present situation is governed by the latter part of paragraph 59 of the judgment as on a proper interpretation of the Agreement this is a case where no ‘seat’ is designated by the parties.

THE SUPREME COURT JUDGMENT IN BGS SGS:

12.

BGS SGS was a case where the arbitration agreement provided that the arbitration proceedings shall be held at New Delhi/Faridabad. The arbitration proceedings were in fact held at New Delhi where 71 sittings took place, and the award was rendered at New Delhi. A petition under Section 34 of the Act came to be fled in Faridabad and the Respondent thereto fled an application seeking a return of the petition to the appropriate court at New Delhi. That application was allowed by the Special Commercial Court at Gurugram. That order was challenged under Section 37 of the Act before the High Court of Punjab and Haryana, which delivered the judgment under challenge and held that the Petition under Section 34 of the Act was maintainable at Faridabad and Delhi was only a convenient venue where arbitral proceedings were held and not the seat. Therefore, it was held that Faridabad would have jurisdiction on the basis of the cause of action having arisen in part in Faridabad. It was in this context that the issue of jurisdiction of courts and choice of seat arose before the Supreme Court.

13. Since many parts of the judgment are relevant, the same are for the sake of convenience reproduced as follows: “38. A reading of paras 75, 76, 96, 110, 116, 123 and 194 of BALCO would show that where parties have selected the seat of arbitration in their agreement, such selection would then amount to an exclusive jurisdiction clause, as the parties have now indicated that the courts at the “seat” would alone have jurisdiction to entertain challenges against the arbitral award which have been made at the seat. The example given in para 96 buttresses this proposition, and is supported by the previous and subsequent paragraphs pointed out hereinabove.The BALCO [4.Balco v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: (2012) 4 SCC (Civ) 810] judgment, when read as a whole, applies the concept of “seat” as laid down by the English judgments (and which is in Section 20 of the Arbitration Act, 1996), by harmoniously construing Section 20 with Section 2(1)(e), so as to broaden the defnition of “court”, and bring within its ken courts of the “seat” of the arbitration27.

39. However, this proposition is contradicted when para 96 of BALCO speaks of the concurrent jurisdiction of courts within whose jurisdiction the cause of action arises wholly or in part, and Courts within the jurisdiction of which the dispute resolution i.e. arbitration, is located.

40. Para 96 of BALCO[4] case is in several parts. First and foremost, Section 2(1)(e), which is the defnition of “court” under the Arbitration Act, 1996 was referred to, and was construed keeping in view the provisions in Section 20 of the Arbitration Act, 1996, which give recognition to party autonomy in choosing the seat of the arbitration proceedings. Secondly, the Court went on to state in two places in the said paragraph that jurisdiction is given to two sets of courts, namely, those courts which would have jurisdiction where the cause of action is located; and those courts where the arbitration takes place. However, when it came to providing a neutral place [27. Section 3 of the English Arbitration Act, 1996 defnes“seat” as follows: “3. The seat of the arbitration. - In this Part “the seat of the arbitration” means the juridical seat of the arbitration designated - (a) by the parties to the arbitration agreement, or (b) by any arbitral or other institution or person vested by the parties with powers in that regard, or

(c) by the Arbitral Tribunal if so authorized by the parties, or determined, in the absence of any such designation, having regard to the parties’ agreement and all the relevant circumstances.” It will be noticed that this section closely approximate with Section 20 of the Indian Arbitration Act, 1996. The meaning of “Court” is laid down in Section 105 of the English Arbitration Act, 1996 whereby the Lord Chancellor may, by order, make provision allocating and specifying proceedings under the Act which may go to the High Court or to county courts.”] [4.Balco v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: (2012) 4 SCC (Civ) 810] as the “seat” of arbitration proceedings, the example given by the fve-Judge Bench made it clear that appeals under Section 37 of the Arbitration Act, 1996 against interim orders passed under Section 17 of the Arbitration Act, 1996 would lie only to the courts of the seat — which is Delhi in that example — which are the courts having supervisory control, or jurisdiction, over the arbitration proceedings. The example then goes on to state that this would be irrespective of the fact that the obligations to be performed under the contract, that is the cause of action, may arise in part either at Mumbai or Kolkata. The fact that the arbitration is to take place in Delhi is of importance. However, the next sentence in the said paragraph reiterates the concurrent jurisdiction of both courts.

41. This Court has held that judgments of Courts are not to be construed as statutes, neither are they to be read as Euclid's theorems. All observations made must be read in the context in which they appear…..”

45. It was not until this Court's judgment in Indus Mobile Distribution (P) Ltd.[5] that the provisions of Section 20 were properly analysed in the light of the 246th Report of the Law Commission of India titled, “Amendments to the Arbitration and Conciliation Act, 1996” (August, 2014) (hereinafter referred to as “the Law Commission Report, 2014”), under which Sections 20(1) and (2) would refer to the “seat” of the arbitration, and Section 20(3) would refer only to the “venue” of the arbitration. Given the fact that when parties, either by agreement or, in default of there being an [5. Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678: (2017) 3 SCC (Civ) 760] agreement, where the Arbitral Tribunal determines a particular place as the seat of the arbitration under Section 31(4) of the Arbitration Act, 1996, it becomes clear that the parties having chosen the seat, or the Arbitral Tribunal having determined the seat, have also chosen the courts at the seat for the purpose of interim orders and challenges to the award.

46. This Court in Indus Mobile Distribution (P) Ltd.5, after referring to Sections 2(1)(e) and 20 of the Arbitration Act, 1996, and various judgments distinguishing between the “seat” of an arbitral proceeding and “venue” of such proceeding, referred to the Law Commission Report, 2014 and the recommendations made therein as follows: (SCC pp. 692-93, paras 17-20) “17. In amendments to be made to the Act, the Law Commission recommended the following: ‘Amendment of Section 20

12. In Section 20, delete the word “place” and add the words “seat and venue” before the words “of arbitration”.

(i) In sub-section (1), after the words “agree on the”

(ii) In sub-section (3), after the words“meet at any” delete the word “place” and add word “venue”. [Note.—The departure from the existing phrase “place” of arbitration is proposed to make the wording of the Act consistent with the international usage of the concept of a “seat” of arbitration, to denote the legal home of the arbitration. The amendment further legislatively distinguishes between the “[legal] seat” from a “[mere] venue” of arbitration.] * * * [5. Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678: (2017) 3 SCC (Civ) 760] Amendment of Section 31

17. In Section 31

(i) In sub-section (4), after the words “its date and the”

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 fled 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 the Code of Civil Procedure 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.38 This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal v. 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. [4. BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: (2012) 4 SCC (Civ ) 810] [ 38. (2013) 9 SCC 32: (2013) 4 SCC (Civ) 157 ] [39. (2015) 12 SCC 225: (2016) 1 SCC (Civ) 427] This being the case, the impugned judgment40 is set aside. The injunction confrmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment, so that the respondents may take necessary steps under Section 9 in the Mumbai Court. Appeals are disposed of accordingly.” This judgment has recently been followed in Brahmani River Pellets Ltd. v. Kamachi Industries Ltd.41

48. The aforesaid amendment carried out in the defnition of “Court” is also a step showing the right direction, namely, that in international commercial arbitrations held in India, the High Court alone is to exercise jurisdiction over such proceedings, even where no part of the cause of action may have arisen within the jurisdiction of such High Court, such High Court not having ordinary original jurisdiction. In such cases, the “place” where the award is delivered alone is looked at,and the High Court given jurisdiction to supervise the arbitration proceedings, on the footing of its jurisdiction to hear appeals from decrees of courts subordinate to it, which is only on the basis of territorial jurisdiction which in turn relates to the “place” where the award is made. In the light of this important change in the law, Section 2(1)(e)(i) of the Arbitration Act, 1996 must also be construed in the manner indicated by this judgment.

49. Take the consequence of the opposite conclusion, in the light of the facts of a given example, as follows. New Delhi is specifcally designated to be the seat of the arbitration in the arbitration clause between the parties. Part of the cause of [40. Datawind Innovations (P) Ltd.v. Indus Mobile Distribution (P) Ltd., 2016 SCC OnLine Del 3744: (2016) 158 DRJ 391] [41. (2020) 5 SCC 462: 2019 SCC OnLine SC 929 at para 15 ] action, however, arises in several places, including where the contract is partially to be performed, let us say, in a remote part of Uttarakhand. If concurrent jurisdiction were to be the order of the day, despite the seat having been located and specifcally chosen by the parties, party autonomy would sufer, which BALCO specifcally states cannot be the case. Thus, if an application is made to a District Court in a remote corner of the Uttarakhand hills, which then becomes the court for the purposes of Section 42 of the Arbitration Act, 1996 where even Section 34 applications have then to be made, the result would be contrary to the stated intention of the parties — as even though the parties have contemplated that a neutral place be chosen as the seat so that the courts of that place alone would have jurisdiction, yet, any one of fve other courts in which a part of the cause of action arises, including courts in remote corners of the country, would also be clothed with jurisdiction. This obviously cannot be the case. If, therefore, the conficting portion of the judgment of BALCO in para 96 is kept aside for a moment, the very fact that parties have chosen a place to be the seat would necessarily carry with it the decision of both parties that the courts at the seat would exclusively have jurisdiction over the entire arbitral process. (Emphasis supplied)

50. In fact, subsequent Division Benches of this Court have understood the law to be that once the seat of arbitration is chosen, it amounts to an exclusive jurisdiction clause, insofar as [4. BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: (2012) 4 SCC (Civ ) 810] the courts at that seat are concerned. In Enercon (India) Ltd. v., this Court approved the dictum in Shashoua24 as follows: (Enercon case42, SCC p. 55, para 126) “126. Examining the fact situation in the case, the Court in Shashoua case24 observed as follows: ‘The basis for the court's grant of an anti-suit injunction of the kind sought depended upon the seat of the arbitration. An agreement as to the seat of an arbitration brought in the law of that country as the curial law and was analogous to an exclusive jurisdiction clause. Not only was there agreement to the curial law of the seat, but also to the courts of the seat having supervisory jurisdiction over the arbitration, so that, by agreeing to the seat,the parties agreed that any challenge to an interim or fnal award was to be made only in the courts of the place designated as the seat of the arbitration. Although,“venue” was not synonymous with “seat”, in an arbitration clause which provided for arbitration to be conducted in accordance with the Rules of the ICC in Paris (a supranational body of rules), a provision that “the venue of arbitration shall be London, United Kingdom” did amount to the designation of a juridical seat.…’ In para 54, it is further observed as follows: ‘There was a little debate about the possibility of the issues relating to the alleged submission by the claimants to the jurisdiction of the High Court of Delhi being heard by that Court, because it was best ftted to determine such issues under the Indian law. Whilst I found this idea attractive initially, we are persuaded that it would be wrong in principle to allow this and that it would create undue practical problems in any event. On the basis of what I have already decided, England is the seat of the arbitration and since this carries with it something akin to an exclusive jurisdiction clause, as a matter of principle the foreign court should not decide matters which are for this Court to decide in the context of an anti-suit injunction.’” (emphasis in original) [42. (2014) 5 SCC 1: (2014) 3 SCC (Civ) 59 ] [ 24.Shashoua v. Sharma, 2009 EWHC 957 (Comm): (2009) 2 Lloyd’s Law Rep 376 ]

51. The Court in Enercon42 then concluded: (SCC p. 60, para 138) “138. Once the seat of arbitration has been fxed in India, it would be in the nature of exclusive jurisdiction to exercise the supervisory powers over the arbitration.”

52. In Reliance Industries Ltd.[7] this Court held: (SCC pp. 627, 630-31, paras 45, 55-56) “45. In our opinion, it is too late in the day to contend that the seat of arbitration is not analogous to an exclusive jurisdiction clause. This view of ours will fnd support from numerous judgments of this Court. Once the parties had consciously agreed that the juridical seat of the arbitration would be London and that the arbitration agreement will be governed by the laws of England, it was no longer open to them to contend that the provisions of Part I of the Arbitration Act would also be applicable to the arbitration agreement. This Court in Videocon Industries Ltd. v. Union of India43 has clearly held as follows: (SCC p. 178, para 33) ‘33. In the present case also, the parties had agreed that notwithstanding Article 33.1, the arbitration agreement contained in Article 34 shall be governed by laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act. As a corollary to the above conclusion, we hold that the Delhi High Court did not have the jurisdiction to entertain the petition fled by the respondents under Section 9 of the Act and the mere fact that the appellant had earlier fled similar petitions was not sufcient to clothe that High Court with the jurisdiction to entertain the petition fled by the respondents.’ * * *

55. The efect of choice of seat of arbitration was considered by the Court of Appeal in C v. D25. This judgment has been specifcally approved by this Court in Balco[4] and reiterated in Enercon (India) Ltd. v. Enercon Gmbh42. In C v. D25, the Court of Appeal has observed: (C case25, Bus LR p. 851, para 16) [42. (2014) 5 SCC 1: (2014) 3 SCC (Civ) 59] [7. Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603: (2014) 3 SCC (Civ) 737] [43. (2011) 6 SCC 161: (2011) 3 SCC (Civ) 257] [25. 2008 Bus LR 843: 2007 EWCA Civ 1282 (CA)] [4. BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: (2012) 4 SCC (Civ) 810] ‘Primary conclusion

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

56. The aforesaid observations in C v. D25 were subsequently followed by the High Court of Justice, Queen's Bench Division, Commercial Court (England) in Sulamérica Cia Nacional de Seguros SA v. Enesa. In laying down the same proposition, [25. 2008 Bus LR 843: 2007 EWCA Civ 1282 (CA)] [44. (2013) 1 WLR 102: 2012 EWCA Civ 638: 2012 WL 14764 (CA)] the High Court noticed that the issue in that case depended upon the weight to be given to the provision in Condition 12 of the insurance policy that“the seat of the arbitration shall be London, England”. It was observed that this necessarily carried with it the English Court's supervisory jurisdiction over the arbitration process. It was observed that: ‘this follows from the express terms of the Arbitration Act, 1996 and, in particular, the provisions of Section 2 which provide that Part I of the Arbitration Act, 1996 applies where the seat of the arbitration is in England and Wales or Northern Ireland. This immediately establishes a strong connection between the arbitration agreement itself and the law of England. It is for this reason that recent authorities have laid stress upon the locations of the seat of the arbitration as an important factor in determining the proper law of the arbitration agreement.’”

53. In Indus Mobile Distribution (P) Ltd.5, after clearing the air on the meaning of Section 20 of the Arbitration Act, 1996, the Court in para 19 (which has already been set out hereinabove) made it clear that the moment a seat is designated by agreement between the parties, it is akin to an exclusive jurisdiction clause, which would then vest the courts at the “seat” with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties. (Emphasis supplied) [5.Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678: (2017) 3 SCC (Civ) 760]

54. Despite the aforesaid judgments of this Court, discordant notes have been struck by some of the High Courts. In Antrix Corpn. Ltd.8, a Division Bench of the Delhi High Court, after setting out para 96 of BALCO, then followed the reasoning of judgments45, 46 of the Bombay High Court, in stating that the ratio decidendi of the 5-Judge Bench in BALCO is that courts would have concurrent jurisdiction, notwithstanding the designation of the seat of arbitration by agreement between the parties. The Delhi High Court stated: (Antrix Corpn. Ltd. case[8], SCC OnLine Del para 52)