Delhi High Court
International Trade Expo. Centre ... vs Mukesh Sharma And Ors on 7 June, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on March 30, 2016
Judgment delivered on June 07, 2016
+ O.M.P. 4/2008, IAs 49/2008, 3828/2008 & 1137/2009
MR. MUKESH SHARMA
..... Petitioner
Through: Mr.Abhinav Hansaria, Adv.
versus
MR. ROGER SHASHOUA & ORS. EF+
..... Respondent
Through: Mr. Dayan Krishnan, Sr. Adv.
with Mr. Gaurav Liberhan and
Mr. Neeraj Kumar Gupta, Advs.
O.M.P. 255/2010, IAs 16585-16586/2010 & 903/2014
ROGER SHASHOUA & OTHERS
.... Petitioner
Through: Mr. Dayan Krishnan, Sr. Adv.
with Mr. Gaurav Liberhan and
Mr. Neeraj Kumar Gupta, Advs.
versus
MUKESH SHARMA & OTHERS
..... Respondent
Through: Mr.Abhinav Hansaria, Adv. for R-
1
Mr. Sandeep Sethi, Sr. Adv. with
Ms. Neeru Sharma, Adv. for R-2
Mr. Abhinav Vasisht, Sr. Adv.
with Mr. D.K. Vijay, Mr. K.
Datta, Ms. Sanjana, Advs. for
ITECL/R-3
O.M.P. 914/2011
ITE INDIA PVT LTD
..... Petitioner
Through: Mr. Sandeep Sethi, Sr. Adv. with
Ms. Neeru Sharma, Adv.
OMP 04/2008 and connected matters Page 1 of 62
versus
MUKESH SHARMA AND ORS
..... Respondent
Through: Mr.Abhinav Hansaria, Adv. for R-
1
Mr. Abhinav Vasisht, Sr. Adv.
with Mr. D.K. Vijay, Mr. K.
Datta, Ms. Sanjana, Advs. for
ITECL/R-2
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Gaurav Liberhan and
Mr. Neeraj Kumar Gupta, Advs.
for R-3, R-4 & R-5.
W.P.(C) 10954/2015
INTERNATIONAL TRADE EXPO. CENTRE LTD.
..... Petitioner
Through: Mr. Abhinav Vasisht, Sr. Adv.
with Mr. D.K. Vijay, Mr. K.
Datta, Ms. Sanjana, Advs.
versus
MUKESH SHARMA AND ORS ..... Respondent
Through:
Mr.Abhinav Hansaria, Adv. for R-
1
Mr. Sandeep Sethi, Sr. Adv. with
Ms. Neeru Sharma, Adv. for R-2
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Gaurav Liberhan and
Mr. Neeraj Kumar Gupta, Advs.
for R-3, R-4 & R-5.
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. This batch of petitions are primarily under Section 34 of the
Arbitration & Conciliation Act, 1996 („Act of 1996‟ in short) being
OMP 914/2011 by ITE India Pvt. Ltd („ITE‟ in short) [challenging four
Awards being Final Award dated August 5, 2011, Award on Jurisdiction
dated February 27, 2007, Cost Award dated November 17, 2007 and
Partial Final Award dated January 19, 2010 (it is dated January 5, 2010)]
and OMP 04/2008 filed by Mukesh Sharma [challenging Award dated
November 17, 2007]. The Writ Petition (Civil) No. 10954/2015 is filed
by International Trade Expo. Centre Ltd. („ITECL‟ in short) impugning
order dated July 06, 2011 passed by the Ld. District Judge, Gautam Budh
Nagar, U.P in Misc. Case No. 33 of 2010, under Section 34 of the Act of
1996, initially filed before the High Court of Judicature, Allahabad but
later on transferred by the Supreme Court vide its order dated September
15, 2015 in SLP Civil No. 22318/2010). The OMP 255/2010 is an
Enforcement Petition under Section 47 and 49 of the Act of 1996 filed
by Roger Shashoua and two others seeking enforcement of final Award
dated January 5, 2010. The parties in this petition shall be referred to,
not by their status in different petitions but by their names.
Facts:-
2. Facts which are relevant for the purpose of the issues need to be
decided by this order are that, on October 20, 1997, ITECL was allotted
a property located at A-II, Sector-62, Noida for a sum of Rs.1.5 Crores
paid as allotment money. Mukesh Sharma, Roger Shashoua and the
International Trade Expo. Centre Ltd signed a Shareholders Agreement
on July 1, 1998 whereby ITCEL was restructured as a Joint Venture
Company. The paid up share capital of ITCEL was Rs.3 Crores, divided
into 30 lakh shares. Mukesh Sharma and Roger Shashoua equally held
15 lakh shares each in the ITECL. It is the case of ITECL that in a
Board meeting held on September 30, 1999, Roger Shashoua showed
interest in transferring his share holding in ITECL to a company
Shashoua holdings and subsequently shares were transferred to his
company. As per agreement between Roger Shashoua and Mukesh
Sharma, building plans were submitted and approved and pursuance of
which construction agreement was signed between ITECL and H.S.
Oberoi and company for construction of exhibition convention centre.
The parties, Roger Shashoua and Mukesh Sharma agreed upon an
arbitration clause to provide for a resolution of disputes i.e Clause 14.
The clause reads as under:-
"14.1 In the event, a dispute arise in connection with the
validity, interpretation, implementation or breach of any
provision of this agreement, the parties shall attempt in
the first instance, to resolve such dispute through
negotiations within thirty (3) days from a party making
a request therefore. In the event, the dispute is not
resolved through negotiations or such negotiations do
not commence within thirty (30) days of a written
request on his behalf, either party may refer the dispute
to arbitration. Each party shall nominate one arbitrator
and in the event of any difference between the two
arbitrators, a third arbitrator/umpire shall be
appointed. The arbitration proceedings shall be, in
accordance with the rules of the conciliation and
arbitration of International Chamber of Commerce,
Paris.
14.2 Proceedings in such arbitration shall be conducted
in the English language.
14.4 The venue of arbitration shall be London, United
Kingdom."
I may note here that clause 17.6 of the Agreement, which has
relevance to decide the issues which falls for consideration
stipulates as under:-
"17.6 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of India."
3. It is the case of ITCEL that Roger Shashoua incorporated a
company in the name of India Exhibition Management Pvt. Ltd (IEM)
for undertaking activities of organising, designing, planning and setting
up exhibition, trade fair etc. In April 2005, ITECL filed a suit against
Roger Shashoua and India Exhibition Management Pvt. Ltd for carrying
on a competitive business being Suit No. 257/2005 before the Civil
Judge, Senior Division, Gautam Budh Nagar for injunction against
competing business of ITECL inderogation of Indian law, more
particularly Press Note No.18 and Pres Note No.1 whereby it was
decided that Foreign Financial Corporation/Technical Collaborators with
tie up in India cannot operate themselves or through subsidiary in India
in the same field without the consent of the Joint Venture partner. In the
said suit, Roger Shashoua filed an application under Section 8 of the
Arbitration & Conciliation Act, inter-alia on the ground that there was an
arbitration clause in the Shareholder Agreement executed between
Mukesh Sharma and Roger Shashoua that all matters concerning the
scope of the said suit had to be referred to the Arbitration. The Civil
Judge, vide its order dated April 25, 2005 allowed the application under
Section 8 and referred the parties to Arbitration. The ITECL challenged
the order of the Civil Judge dated April 25, 2005, by filing first appeal
before the High Court at Allahabad which was dismissed on May 9,
2008 by holding inter-alia that the Court is not concerned whether the
order of injunction could be granted by the Civil Court on merits. The
Court is only concerned whether Civil Court rightly returned the
proceedings for arbitration or not. The Court held when the petitioners
have principally agreed in terms of agreement subject to formal
documentation and the clause of agreement is wide enough to cover the
question of validity, interpretation and implementation and when the
petitioners have already submitted to the jurisdiction of the Arbitrator
and when preliminary Award is being passed against them, the appeal
arising out of the Suit has become infructuous in nature. If the
petitioners are aggrieved by the Award, it is open to them to challenge
the same before appropriate Court of Law in appropriate circumstances.
Roger Shashoua, M/s Rodamadan Holding Ltd., Stancroft Trust („Roger
Shashoua and two others‟ for short) on May 26, 2005 made a request for
arbitration in accordance with Article 4 of the ICC Rules. According to
them, the disputes pertained to breaches of the SHA by Mukesh Sharma
resulting in a situation where the petitioner could not work. On June 23,
2005 Mukesh Sharma, ITECL and ITE applied to ICC Court of
Arbitration for dismissal of the arbitration proceedings on the ground of
non existence of arbitration agreement and other grounds as to its
validity and scope. The ITE preferred CS(OS) 926/2005 before this
Court seeking a declaration that their did not exist a valid arbitration
agreement with it. An application under Section 45 of the Arbitration &
Conciliation Act was filed by Roger Shashoua and two others in the suit
for reference of disputes to arbitration. On July 12, 2005, an ex-parte
order was passed in CS(OS) 926/2005 whereby it was directed that the
petitioners Roger Shashoua and two others shall not commence any
arbitration proceedings against ITE. It appears that Mukesh Sharma
served an answer to the request for Arbitration in accordance with
Article 5 of the ICC Rules without prejudice to his objection that an
arbitration clause did not exist. On September 2, 2005, the ICC Court of
Arbitration decided that the arbitration should proceed pursuant to
Article 6(2) of the ICC Rules. Therefore, the Tribunal would decide on
its own jurisdiction. On October 5, 2005, it was clarified in CS(OS)
926/2005 that the order dated July 12, 2005 was meant to operate only in
favour of ITE. This Court on December 20, 2005 allowed application
under Section 45 of the Act filed by Roger Shashoua and two others and
dismissed the Suit CS(OS) No.926/2005.
4. The ICC Arbitral Tribunal at London continued between Mukesh
Sharma and Roger Shashoua and two others. Accordingly, the Arbitral
Tribunal communicated the terms of reference on February 27, 2006.
On February 12, 2007, the Arbitral Tribunal passed Jurisdiction Award
and further passed Cost Award on November 17, 2007. Thereafter, the
matter was reserved for final order/Award in May, 2008.
5. The ITE filed RFA(OS) No.9/2006 against the judgment dated
December 20, 2005 of the learned Single Judge in CS(OS) 926/2005.
On February 21, 2006, an interim order was granted by the Division
Bench in RFA(OS) 9/2006 thereby restraining the arbitration
proceedings against ITE. It appears that on February 27, 2006 when the
terms of reference were signed by Roger Shashoua and two others and
Mukesh Sharma in accordance with ICC Rules, the ITE did not sign the
same. As stated above, on February 12, 2007 the Arbitral Tribunal
rendered the partial Award on jurisdiction. It appears that with regard to
ITE, it was held by the Tribunal that in the light of the injunction of this
Court in favour of ITE, a separate Award would be passed at a later
stage, upon giving an opportunity to make submissions.
6. Insofar as ITECL is concerned, the Tribunal held that the said
company is bound by the outcome of the jurisdictional hearing. On
September 18, 2009, RFA(OS) 9/2006 was dismissed by this Court as
not maintainable. A Review Petition was also dismissed on November
13, 2009. On January 5, 2010, a Partial Final Award (Liability Award)
(according to the ITE, it is January 19, 2010) was passed by the Arbitral
Tribunal. It appears that this Award was final award between the parties,
except as to the claims of Roger Shashoua and two others against ITE.
The Arbitral Tribunal wrote to the parties noting that the injunction
operating in favour of ITE has been lifted and whether Roger Shashoua
and two others intend to pursue their claims against ITE. In the
meantime, on February 13, 2010, SLP (C) Nos. 22318-22321/2010 was
filed before the Supreme Court against the judgment of the learned
Single Judge dated December 20, 2005 and of the Division Bench dated
September 18, 2009. It is noted that the case of Roger Shashoua and two
others is that in the event Mukesh Sharma complied with the directions
in the Partial Final Award, the claims need not be pressed against ITE.
An application under Section 29(2) of the ICC Rules was made by
Mukesh Sharma. The Tribunal dismissed the application for correction
and interpretation of the Award. On April 30, 2010 Roger Shashoua and
two others preferred OMP 255/2010 before this Court for the
enforcement of Partial Final Award dated January 5, 2010 under Section
47 and 49 of the Arbitration & Conciliation Act. Notice on the petition
was issued by this Court on May 12, 2010 and status quo on the
shareholding was ordered to be maintained.
7. On June 14, 2010, an application for setting aside the Partial Final
Award under Section 34 of the Act was filed by ITECL being
Miscellaneous Case No. 33/2010 before the Ld. District Judge, Gautam
Budh Nagar. Notice was issued and a reply was called for by the District
Court of Gautam Budh Nagar, U.P on the objections filed by ITECL. In
the meantime, on October 13, 2010, the Arbitral Tribunal considered the
issue of ITE participation in the Arbitration proceedings post the Partial
Final Award and held that it is entitled to proceed against ITE on the
basis of the claims of the Roger Shashoua and two others. It appears that
on December 2, 2010, Roger Shashoua and two others filed a
preliminary response to Misc. Case No. 33/2010 before the Ld. District
Judge, Gautam Budh Nagar raising specific objections on the ground of
jurisdiction, as well as delay in filing the petition under Section 34 of the
Act. On July 6, 2011, the Ld. District Judge at Noida returned the
objections filed by ITECL under Section 34 of the Act for want of
jurisdiction. An appeal was filed under Section 37 of the Arbitration &
Conciliation Act being FAO No.1304(D)/2011 by the ITECL against the
order dated July 6, 2011 before the Allahabd High Court on August 1,
2011. In the meantime, Final Award dated August 5, 2011 was passed
by the Tribunal incorporating directions qua the ITE. The ITE filed
OMP 914/2011 seeking setting aside under Section 34 of the Act of the
Awards of the Arbitral Tribunal dated February 27, 2007, November 17,
2007, January 19, 2010 (should be January 5, 2010) and Award dated
August 5, 2011.
8. On March 13, 2013, an appeal filed by ITECL was dismissed by
the Allahabad High Court for non prosecution, which was subsequently
restored on August 28, 2013. On April 2, 2014, the Allahabad High
Court dismissed FAO No. 1304(D)/2011 as being non-maintainable
under Section 37 of the Arbitration & Conciliation Act on the ground
that the District Court‟s order dated July 6, 2011 returning the objections
of the ITECL was not an appealable order under Section 37(I) (b) of the
Act. Accordingly, the ITECL has filed the writ petition No. 10954/2015
challenging the order dated July 6, 2011 passed by the Ld. District Judge
of Gautam Budh Nagar under Article 226 of the Constitution of India. It
is noted that in the SLP filed before the Supreme Court by the ITE
against order dated December 20, 2005 in CS(OS) No.926/2005 and
dated September 18, 2009 in RFA 09/2006, the Supreme Court noting
that the objections filed by the petitioner therein ITE under Section 34 of
the Act and the same being heard by this Court, has passed the following
order:-
"Heard in Part.
In course of hearing, we have been apprised that on behalf
of ITE India Private Limited, an application under Section
34 of the Arbitration and Conciliation Act, 1996 (for short,
„the Act‟) is pending before the learned Single Judge of the
High Court of Delhi.
At this juncture, learned counsel for respondent no.2
submitted that he has filed an application under Section 34
of the Act before the learned District Judge, Gautam Budh
Nagar, U.P. who had rejected the application to be filed
before the proper court. Against the order passed by the
District Judge, an FAO, i.e. FAFO (D) No.1304/2011 was
filed before the High Court of Allahabad, Bench at
Allahabad and same has been dismissed on the ground of
maintainability. Be it stated, thereafter the 2nd respondent
has challenged the order passed by the District Judge,
Gautam Budh Nagar, UP in Writ Petition (C) No. 20945 of
2014 titled as International Trade Expo Centre Ltd. vs.
Mukesh Sharma & Ors.
In our considered opinion, the writ petition and the
petition filed under Section 34 of the Act in Delhi High
Court should be heard together by one court and
accordingly, we transfer the writ petition from Allahabad
and accordingly it is ordered that the writ petition be
transferred to the High Court of Delhi and be heard by the
same learned Judge who is hearing the petition under
Section 34 of the Act.
The Registrar (Judicial) is directed to send a copy of this
order to the Registrar (Judicial) of the High Court of
Allahabad for transmitting the record to the High Court of
Delhi. A copy of the order be sent to the Registrar General
of the High Court of Delhi. The learned Chief Justice of
the High Court of Delhi is requested to nominate a Judge
who will hear the writ petition as well as the application
preferred under Section 34 of the Act. The nominated
judge, we request, should to dispose both the matters by
the end of November 2015.
Let the matter be listed for further hearing on
08.12.2015."
9. Noting the facts, Mr. Vashist appearing for ITECL in Writ
Petition(C) No.10954/2015 would attack the order passed by the learned
District Judge, Gautam Budh Nagar dated July 6, 2011 in Misc. Case
No.33/2010, which is a petition filed under Section 34 of the Arbitration
& Conciliation Act by stating that the Ld. District Judge, Gautam Budh
Nagar, U.P erroneously held that an application for enforcement of the
arbitral award confers exclusive jurisdiction on this Court by virtue of
Section 42 of the Act of 1996. According to him, it is a settled law that
execution/enforcement applications are not applications within the
meaning of Section 42 of the Act of 1996 and therefore do not confer
jurisdiction. In this regard he would rely upon the judgment of S.K.
Brothers vs. Delhi Development Authority ILR (2009) 1 Delhi 305. He
would state, that in view of the above settled position of law, the order of
the learned District Judge is palpably illegal and is liable to be set aside
and the objections filed under Section 34 ought to be remanded back for
consideration. He would also rely upon the judgment in the case of Hari
Vishnu Kamath vs. Syed Ahmad Ishaque and ors AIR 1955 SC 233.
10. Further he would submit, the Noida Court has the territorial
jurisdiction to entertain the petition, hence it is a Court within the
meaning of Section 2(1)(e) of the Act of 1996. He would further submit
that any reference to/reliance on the alleged SHA is strictly without
prejudice to the stand of the ITECL that the ITECL is not a signatory to
the alleged SHA. Neither is SHA incorporated in the MOA of the
ITECL. Therefore the ITECL is not bound by any of the terms or
conditions stipulated therein. In support of his above submission, it is
his endeavour to state:-
(i) The land belonging to the ITECL is situate at property bearing
No.A-11, Sector-62, Noida, within the territorial jurisdiction of the
Noida Court.
(ii) As per clause 1(b) of the alleged SHA dated July 1, 1998, the sole
activity to be undertaken by the said joint venture is constructing and
running an exhibition/convention/seminar centre in Noida.
(iii) The one and only asset of the ITECL is the said asset at Noida,
Gautam Budh Nagar, Uttar Pradesh from where it is carrying on its
business activities.
(iv) Hence, the ITECL has a corporate office at Noida and is also
carrying on its business at Noida.
(v) Contrary to the understanding between the parties, Roger
Shashoua incorporated a Company by name of India Exhibition
Management Pvt. Ltd., later name changed to Expomedia Events India
Pvt. Ltd., with the same objectors as those of the ITECL. This company
had a corporate office at Noida.
(vi) Since the said India Exhibition Management Pvt. Ltd. was
carrying on competing business activities, had a corporate office at
Noida, and its activities invaded the ITECL right at Noida, cause of
action and/or part thereof had arisen within the jurisdiction of the Noida
Court.
(vii) Hence, the ITECL filed a suit for injunction against the Roger
Shashoua and India Exhibition Management Pvt. Ltd. before the Civil
Judge, Gautam Budh Nagar, Noida in the year 2005 being Suit
No.257/2005.
(viii) Noida Court was thus the court of competent jurisdiction within
the meaning of Section 2(1)(e) of the Act of 1996. It is not disputed that
Delhi Courts also had jurisdiction. However, the ITECL being dominus
litis was entitled to choose which court to approach.
(ix) The Roger Shashoua in the said suit filed an application under
Section 8 of the Act for referring the disputes to arbitration as per the
arbitration clause contained in the alleged arbitration agreement.
(x) Significantly, Roger Shashoua took no objection to the territorial
jurisdiction of the Noida Court in the Section 8 application.
(xi) That the Civil Judge, Gautam Budh Nagar, allowed the said
application under section 8 of the Act vide order dated April 25, 2005
and referred the disputes to arbitration.
(xii) Thus, arbitration proceedings between the parties were initiated
pursuant to the order of the Civil Judge, Gautam Budh Nagar on the
application filed by the Roger Shashoua in the Civil Suit which
culminated in passing of various arbitral awards, impugned in the
Section 34 petitions, which has also been admitted by the Roger
Shashoua in the arbitration proceedings at various instances including
request for arbitration and the reply to application dated 20th July, 2005.
(xiii) Accordingly, as the First Application under Part I of the Act with
respect to the alleged arbitration agreement was filed in the Principal
Civil Court of the Civil Judge, Gautam Budh Nagar, hence all
subsequent applications arising out of the said agreement and the said
arbitral proceedings have to mandatorily be filed in the same Civil Court
of Gautam Budh Nagar only and in no other Court.
(xiv) Pursuant to the reference made to Arbitration, Arbitration
Proceedings were initiated between the parties before the ICC Court of
Arbitration. The Arbitral Tribunal passed four awards dated 12.02.2007,
15.11.2007, 5.1.2010 and 5.8.2011. The Arbitral Tribunal in its Award
dated 5.1.2010 categorically stated as follows:
"Para 1.18: Nature of Dispute: This dispute has arisen out of a Joint
Venture Devlop an exhibition centre on land leased by the New Okhla
Industrial Development Authority (Noida) in the state of Uttar Pradesh,
India."
(xv) As the application under Section 8 with respect to the alleged
arbitration agreement was filed in the Court of the Civil Judge, Gautam
Budh Nagar, Noida, the ITECL filed its Section 34 petition in May-June
2010 being Misc. Case No. 33/2010 before the District Judge, Gautam
Budh Nagar, Noida. The Ld. District Judge vide order dated 7.7.2010
issued notice to the respondents in the said petition.
11. He would also state, that the judgment of the Apex Court in the
case of State of West Bengal &Ors vs. Associated Contractors (2015) 1
SCC 32 and P. Anand Gajapathi Raju vs. P.V.G. Raju (2000) 4 SCC
539, do not apply to the facts and circumstances of the present case. He
would further state, the learned District Judge, Gautam Budh Nagar has
not rejected the objections to the award filed by the petitioner under
Section 34 of the Act but has merely returned the same to be filed before
the appropriate Court. Moreover, vide order dated 2.4.2014, the High
Court of Allahabad in First Appeal No.1304(D)/2011 had clearly stated
as follows:-
"For the aforesaid reasons, it is held that by the impugned
order the District Judge has not refused to set aside the
arbitral award not the impugned order amounts to a refusal
to set aside the arbitral award."
12. He would state, even assuming without admitting, the writ petition
is decided against the petitioner, the petitioner has the right to file its
objection under Section 34 before this Court and seek a decision on
merits. However, if the present writ petition is allowed, all the
subsequent objections and applications filed by the parties are to be
transferred to the Gautam Budh Nagar Court, being the Principal Civil
Court exercising exclusive jurisdiction in terms of Section 42 of the Act
of 1996.
13. On the other hand, Mr. Dayan Krishnan, learned Senior Counsel
appearing for Roger Shashoua and two others would take preliminary
objection to the maintainability of petitions under Section 34 of the Act
of 1996 being OMP No.914/2011, OMP 4/2008 and Misc. Case No.
33/2010, whose order is in challenge in W.P. No.10954/2015 to contend
that the contract providing that the arbitral proceedings shall be governed
by ICC Rules with venue of arbitration at London, which means that the
procedural aspects thereof are governed by the English Law, it
necessarily implies that Part 1 of Arbitration &Conciliation Act, 1996
stands impliedly excluded and therefore, the petitions under Section 34
of the Act of 1996 be dismissed. He would rely upon the following
judgment in support of his contention:-
(i) UOI vs. Reliance Industries Ltd-C.A No.11396/2015;
(ii) Videocon Industries Ltd vs. Union of India (2011) 6 SCC 161;
(iii) DOZCO India Pvt. Ltd Vs. DOOSAN Infracore Company Ltd
(2011) 6 SCC 179;
(iv) Shashoua vs. Sharma (2009) EWHC 957 (Comm).
14. With regard to territorial jurisdiction, without prejudice to the
aforesaid submission, he would state, the issue is no longer res-integra
as the Supreme Court in the judgment reported as 2015(1) SCC 32 State
of West Bengal vs. Associated Contractors, held that -
i. That Section 2(1)(e) contains an exhaustive definition marking out
only the Principal Civil Court of Original Jurisdiction in a district or a
High Court having original civil jurisdiction in the State, and no other
Court as "court" for the purpose of Part I of the Arbitration Act, 1996.
The expression "with respect to an arbitration agreement" makes it
clear that Section 42 will apply to all applications made whether before
or during arbitral proceedings or after an award is pronounced under Part
I of the 1996 Act. However, Section 42 only applies to applications
made under Part I if they are made to a court as defined. Since
applications made under Section 8 are made to judicial authorities and
since applications under Section 11 are made to the Chief Justice or his
designate, the judicial authority and the Chief Justice or his designate not
being court as defined, such applications would be outside Section 42.
ii. If a first application is made to a Court which is neither a Principal
Court of Original Jurisdiction in a district or a High Court exercising
original jurisdiction in a State, such application not being to a Court as
defined would be outside Section 42. Also, an application made to a
Court without subject-matter jurisdiction would be outside Section 42.
15. He would state, in view of the above, although Section 42 of the
Act has no application in the present case, it has been clearly held that,
an application to a Court without subject matter jurisdiction, would be
outside Section 42, and the CS 257/2005, which was filed before the
Civil Judge, Gautam Budh Nagar, it is outside the Court as defined in
Section 2(1)(e) of the Act. Anyhow, it was a suit for injunction against
IEM, a separate Company and the Arbitration proceedings culminating
into the award were a result of an independent reference and not the
order of the Civil Judge. He would further state, it has been held in
(2000) 4 SCC 539 P. Anand Gajapathi Raju & Ors. Vs. P.V.G. Raju
(Died) & Ors., that an application before a court under Section 8 merely
brings to the court‟s notice that the subject-matter of the action before it
is the subject-matter of an arbitration agreement. This would not be such
an application as contemplated under Section 42 of the Act as the court
trying the action may or may not have had jurisdiction to try the suit to
start with or be the competent court within the meaning of Section 2(e)
of the new Act. Furthermore, in view of the aforesaid pronouncements,
the judgment of this Court in Hertz (supra) is per-incuriam.
16. On the other hand, on maintainability of objections under Section
34 of the Act, it is the submission of Mr. Abhinav Vashist, learned
Senior Counsel for ITECL, which is without prejudice to the stand of the
ITECL, that the Court of District Judge, Gautam Budh Nagar is the
Principal Civil Court, which has the jurisdiction and also of Mr. Sandeep
Sethi, learned Senior Counsel appearing for ITE that the Award passed
in the present case is under an alleged agreement executed on July 1,
1998 and the Awards have been passed in January 2010 and in August,
2011. Admittedly, the awards are governed as per the law laid down in
Bhatia International (2002) 4 SCC 105 as the same is prior to the
judgment delivered by the Supreme Court in Balco vs. Kaiser
Aluminium Technical Services Inc. (2012) 9 SCC 552. The law laid
down by BALCO is prospective as is expressly stated by the Supreme
Court in para 197 of the said judgment. They would state that the
judgment of Carzonrent India Pvt. Ltd (supra) is squarely applicable to
the facts of the present case. In the present case, the proper law of the
arbitration agreement is Indian Law. In the absence of contractual
stipulation of law of arbitration, normally the proper law of contract
(Indian) is taken to be the law of arbitration. In this regard, they would
place reliance on the judgment of NTPC vs. Singer Company and ors
(1992) 3 SCC 551. They would state, the arbitration agreement has the
closest and the most real connection with India in the present case since:
(i) The petitioner is a company incorporated under the Companies Act,
1956 (Indian Laws) and has its registered office at I-83, Lajpat Nagar-2,
New Delhi-110024.
(ii) The Joint Venture company is also a company incorporated under the
Companies Act, 1956 and has its registered office at I-83, Lajpat Nagar-
2, New Delhi-110024.
(iii) The alleged SHA has been entered into by the parties for forming a
Joint Venture Company in India for constructing, running and managing
the Expocentre at Noida, India and that is the sole business and only
asset of the company for which the Joint Venture was done.
(iv) That the entire alleged SHA was in relation to the shares of an India
Company, the entire job had to be executed in India using India
workforce/manpower etc.
(v) The agreement between the parties is to be governed by the Laws of
India and all the terms and conditions of the agreement have been
expressly stated to be subject to the laws prevailing in India.
(vi) That clause 17.9 clearly state that the agreement is deemed to be
executed at New Delhi, India.
(vii) The relevant law governing conduct of the company is Companies
Act, 1956.
(viii) That various clauses of the alleged SHA including Clause No.1(a),
1(b), 1(g),1(h), 2.6, 3.4, 6.1, 6.2, 8, 9.2,17.3, 17.6 and 17.9 all mentioned
the laws of India and/or the applicability of laws of India.
(ix) Without prejudice, the relief prayed by the Roger Shashoua
requesting for direction for transfer/sale of shares of the petitioner
company can only be executed in India under the laws of India and
nowhere else in the world.
(x) It may also be noted that there is no connection of either the award or
the parties with London except it being a neutral venue for holding
arbitration sittings.
(xi) The respondent No.3 is a French citizen and the respondent Nos.4
and 5 companies are companies incorporated in Cyprus and have nothing
to do with London whatsoever.
17. They would state, that London was simply a neutral venue for
conduct of arbitration proceedings. The parties under the agreement
have not expressly mentioned the seat of arbitration. Keeping in mind
the close nexus to the disputes with India and the settled law, the seat of
Arbitration is India and not London. For determining the seat of
arbitration the Court would have to determine the territory that will have
the closes and most intimate connection with the arbitration. In the
present case, the substantive law of the Contract is Indian Law, the
proper law of the Arbitration Agreement is Indian Law, the enforcement
of the award is to be done under the Indian Law, the Joint Venture
Agreement between the parties is to be acted upon in India and the
relevant assets are in India. They would state, that reliance on the
judgment of Supreme Court in Union of India vs. Reliance (2015) 10
SCC 213 is absolutely misplaced, inasmuch as in the said judgment the
Supreme Court, in clear terms, concluded that the Bhatia rule will apply
either to; (i) where the seat of arbitration is not outside India, which in
the present matter is India and (ii) Law governing arbitration agreement
is India law, which, also in the present matter is India, as per the settled
law for determining the law of the Arbitration agreement in the absence
of express choice. They would state, that Roger Shashoua and two
others have not rebutted the contention of the petitioner herein that the
Arbitration Agreement has the closest and most real connection to India
and thus the proper law of the Arbitration Agreement is Indian Law and
the seat of arbitration ought to be India.
18. They would state, that the order passed in Roger Shashoua and
ors vs. Mukesh Sharma (2009 EWHC 957 (Comm) the ITECL/ITE
were not parties to the case filed by Roger Shashoua and two others
before the English Court and thus the aforestated judgment is not binding
on the petitioner. It was an anti-suit injunction action filed by respondent
No.1. The reasoning of the English Court for holding that the seat of
arbitration is London, England is against the established principles of
Indian Law. It was held in that judgment that "................if the
arbitration agreement provided for a venue, that would constitute a
seat". This is contrary to Indian Law. It was also held that "............a
provision that the venue of the arbitration shall be London, UK does
amount to the designation of a juridical seat". This is also contrary to
Indian Law. In any event, a reading of paras 42, 46 and 48 of the order
reveals that the English Court was only taking prima-facie view to grant
an "anti-suit injunction". It was also held that a mini trial is required and
that the Court‟s discretion would be influenced by a finding that Roger
Shashoua and two others had submitted to the jurisdiction of the Indian
Courts. The said judgment being contrary to the laws of India is not
binding on this Court. Section 13 of the Code of Civil Procedure, 1908
provides that a foreign judgment shall not be conclusive as to any matter
directly adjudicated even between the same parties where it appears on
the face of the proceedings to be contrary to the law applicable in such
cases in India.
19. They would further submit that in BSES Ltd. vs. Fenner India
Ltd (2006) 2 SCC 728 it was held that whatever may be the law (of bank
guarantees in that case) in other jurisdictions, when the law in India is
clear, settled and without any deviation whatsoever, there is no occasion
to rely upon foreign case law. They would further submit that Roger
Shashoua filed an application under Section 8 of the Act for referring the
disputes to arbitration in the suit for injunction filed by the ITECL before
the Civil Judge, Gautam Budh Nagar, Noida in the year 2005 being Suit
No. 257/2005. Even in the High Court of Allahabad, the Roger
Shashoua has relied upon Section 8 and Section 16 of the Act, which are
in Part 1 of the Act. Evidently, it was always the intention of the parties
to apply Part 1 of the Arbitration & Conciliation Act to the Arbitration
Agreement. Further, the High Court of Allahabad in the aforestated
judgment in para 12 has held that it is open for the parties to challenge
the award and further have a right to appeal in case the setting aside
proceedings goes against them. The High Court was thus satisfied as to
applicability of Part 1 of the Act, as a right to appeal under Section 37 of
the Act is provided only against an unsuccessful challenge made under
Section 34 of the Act and not against an order dismissing the objections
filed under Section 48 of the Act. They would state, that after
commencement of Arbitration proceedings before the ICC Court of
Arbitration, Roger Shashoua and two others filed a petition under
Section 9 of the Act before this Court being OMP 186/2005 to seek
interim measures. He would state, by filing the petition under Section 9
of the Act, Roger Shashoua and two others have agreed to the
applicability of Part 1 of the Act to the present proceedings. Roger
Shashoua and two others had categorically stated in the petition under
Section 9 of the Act as follows:-
"27..........as the seat in accordance with the law laid down by the
Supreme Court in Bhatia International vs. Bulk Trading SA (2002) 4
SCC 102, the present petition under Section 9 is maintainable in view of
the fact that the respondent No.2 Company is an Indian Company and
the registered office of the Company is in the jurisdiction of this Court
an records of the Company are required to be maintained within the
jurisdiction of this Court".
20. The reliance placed on Videocon Industries (supra) and Dozco
India Private Limited (supra) is misplaced as the said judgments do not
apply to the case in hand, inasmuch as in Videocon Industries (supra),
the Supreme Court has concluded in para 33 of the said judgment that
since the parties expressly agreed that the arbitration is to be governed
by the laws of England, it necessary implied that parties agreed to
exclude the provisions of part I of the Act. In the present case, the
proper law of contract is Indian law, parties have not expressed any such
intention to exclude Part I of the Act and therefore, the above case has no
applicability to the facts and circumstances of the present case. Insofar
as the case of Dozco India Private Limited (supra) is concerned, in the
said case the governing laws of the Contract were the laws of South
Korea (Article 22.1). The conclusion reached by the Court in inferring
the seat to be Korea in para 15 and concluding that there was a clear
agreement to exclude Part I of the Act was only after considering Article
22.1 of the Contract which provided for the proper law of the contract to
be Korean law. In the present case, the proper law of contract is Indian
Laws and therefore, there can be no presumption of exclusion of Indian
laws (Part 1 of the Act) by the parties.
21. Mr. Abhinav Hansaria, learned counsel appearing for Mukesh
Sharma adopts the arguments advanced by Mr. Abhinav Vashist and Mr.
Sandeep Sethi. Additionally, he relies upon the judgment reported as
(1998) 1 SCC 305 Sumitomo Heavy Industries Ltd. vs. ONGC Ltd to
contend that the Supreme Court has time and again applied the test of
closest and most real connection for determining the proper Law of
Arbitration of a contract. He would state that in Venture Global
Engineering vs. Satyam Computer Services Ltd and Anr (2008) 4 SCC
190, the Apex Court has held that the award has an intimate and close
connection to India, in view of the following facts:-
(a) The company was situated in India
(b) The transfer of "ownership interest" were to be made in India under
the laws of India.
(c) All the steps necessary have to be taken in India before the ownership
stood transferred.
The said facts squarely apply to the facts of the present case.
22. Having heard the learned counsel for the parties, the first and the
foremost question, needs to be decided, is the plea of Mr. Dayan
Krishnan on the non-maintainability of the petitions filed under Section
34 of the Act of 1996, which would also have a bearing on the writ
petition filed by ITECL as the order impugned of the learned District
Judge, Gautam Budh Nagar dated July 6, 2011 is in proceedings under
Section 34 of the Act of 1996. It was the submission of Mr. Dayan
Krishnan, learned Senior Counsel for Roger Shashoua and two others
that the arbitral proceedings were governed by the ICC Rules and seat of
arbitration was London. The Agreement being governed by implied
exclusion of Bhatia principle (as the Agreement is pre-Balco), which
states, the Act of 1996 will not apply if it is found that on facts of a case
juridical seat of arbitration is outside India or the law governing the
Arbitration Agreement is law other than the Indian Law. According to
him, even though the law governing Arbitration Agreement is not
specified, yet it was held having regard to the various circumstances, the
seat being at London, Part I of the Act of 1996 shall be impliedly
excluded.
23. The aforesaid submission of Mr. Dayan Krishnan is primarily
based on the judgment of the Supreme Court in the case of Union of
India vs. Reliance Industries Limited and others(supra), whrein in para
18, the Supreme Court has held as under:-
"18. It is important to note that in paragraph 32 of
Bhatia International itself this Court has held that Part-I
of the Arbitration Act, 1996 will not apply if it has been
excluded either expressly or by necessary implication.
Several judgments of this Court have held that Part-I is
excluded by necessary implication if it is found that on
the facts of a case either the juridical seat of the
arbitration is outside India or the law governing the
arbitration agreement is a law other than Indian law.
This is now well settled by a series of decisions of this
Court [see: Videocon Industries Ltd. v. Union of India
& Anr., (2011) 6 SCC 161, Dozco India Private Limited
v. Doosan Infracore Company Limited, (2011) 6 SCC
179, Yograj Infrastructure Limited v. Ssang Yong
Engineering and Construction Company Limited, (2011)
9 SCC 735), the very judgment in this case reported in
Reliance Industries Limited v. Union of India, (2014) 7
SCC 603, and a recent judgment in Harmony Innovation
Shipping Ltd. v. Gupta Coal India Ltd. & Anr."
24. A perusal of the aforesaid paragraph would show, the Supreme
Court has held that the Court in several judgments has held that Part I is
excluded by necessary implication, if it is found that on the facts of a
case, either the juridical seat of the arbitration is outside India or the law
governing the arbitration agreement, is a law other than Indian law.
While holding so, the Supreme Court referred to its judgments in
Videocon Industries Ltd. (supra), Dozco India (P) Ltd (supra), Yograj
Infrastructure Ltd vs. Ssang Yong Engg. and Construction Co. Ltd
(2011) 9 SCC 735, Reliance Industries Ltd. (supra) and Harmony
Innovation Shipping Ltd. vs. Gupta Coal India Ltd (2015) 9 SCC 172.
In fact, some of the judgments, as referred to above, have been relied by
Mr. Krishnan as well.
25. Insofar as the judgments relied upon by Mr. Dayan Krishnan in
support of his submissions are concerned, in Videocon Industries Ltd
(supra), the Supreme Court was concerned with Article 34.12, referred
to the same in para 3, and is reproduced as under:-
".....34.12. Venue and law of arbitration agreement.--
The venue of sole expert, conciliation or arbitration
proceedings pursuant to this article, unless the parties
otherwise agree, shall be Kuala Lumpur, Malaysia, and
shall be conducted in the English language. Insofar as
practicable, the parties shall continue to implement the
terms of this contract notwithstanding the initiation of
arbitral proceedings and any pending claim or dispute.
Notwithstanding the provisions of Article 33.1, the
arbitration agreement contained in this Article 34 shall
be governed by the laws of England."
26. The Supreme Court analysed the said provision and held as
under:-
"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 filed by the Respondents Under
Section 9 of the Act and the mere fact that the Appellant
had earlier filed similar petitions was not sufficient to
clothe that High Court with the jurisdiction to entertain
the petition filed by the Respondents."
27. Similarly in DOZCO India Pvt. Ltd (supra), the Supreme Court
was considering a case wherein Article 22 and 23 of the Agreement dealt
with governing laws and arbitration. Article 22.1 provided that the
agreement shall be governed by and construed in accordance with the
laws of The Republic of Korea. Article 23.1, which dealt with
arbitration, stipulated that all disputes arising in connection with the
agreement, shall be finally settled by arbitration in Seoul, Korea or such
other place as the parties may agree in writing, pursuant to the Rules of
the Agreement then in force of the ICC. The Supreme Court in para 20,
has held as under:-
"20. In that view, my inferences are that:-
(i) The clear language of Articles 22 and 23 of the
Distributorship Agreement between the parties in this
case spell out a clear agreement between the parties
excluding Part I of the Act.
(ii) The law laid down in Bhatia International v. Bulk
Trading S.A. & Anr. (cited supra) and Indtel Technical
Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited
supra), as also in Citation Infowares Ltd. v. Equinox
Corporation (cited supra) is not applicable to the
present case.
(iii) Since the interpretation of Article 23.1 suggests that the law
governing the arbitration will be Korean law and the seat of
arbitration will be Seoul in Korea, there will be no question of
applicability of Section 11(6) of the Act and the appointment of
Arbitrator in terms of that provision."
28. The reliance placed by Mr. Dayan Krishnan, on Union of India
vs. Reliance Industries Ltd.(supra), is concerned, the Supreme Court
has extensively referred to its earlier judgment dated May 28, 2014
(Reliance Industries Ltd vs. Union of India (2014) 6 SCC 603). In para
2, it referred to the following clauses of the Agreement between the
parties:-
ARTICLE 32: APPLICABLE LAW AND LANGUAGE OF THE
CONTRACT
32.1 Subject to the provisions of Article 33.12, this Contract
shall be governed and interpreted in accordance with the
laws of India.
32.2 Nothing in this Contract shall entitle the Government or
the Contractor to exercise the rights, privileges and powers
conferred upon it by this Contract in a manner which will
contravene the laws of India.
ARTICLE 33: SOLE EXPERT, CONCILIATION AND
ARBITRATION
33.9 Arbitration proceedings shall be conducted in
accordance with the arbitration rules of the United Nations
Commission on International Trade Law (UNCITRAL) of
1985 except that in the event of any conflict between these
rules and the provisions of this Article 33, the provisions of
this Article 33 shall govern.
33.12 The venue of conciliation or arbitration proceedings
pursuant to this Article, unless the Parties otherwise agree,
shall be London, England and shall be conducted in the
English Language. The arbitration agreement contained in
this Article 33 shall be governed by the laws of England.
Insofar as practicable, the Parties shall continue to
implement the terms of this Contract notwithstanding the
initiation of arbitral proceedings and any pending claim or
dispute.
34.2 This Contract shall not be amended, modified, varied or
supplemented in any respect except by an instrument in
writing signed by all the Parties, which shall state the date
upon which the amendment or modification shall become
effective."
29. It also, in para 4, referred to paragraphs 36 to 42 of its earlier
judgment dated May 28, 2014, which I reproduce as under:-
"36. Before we analyse the submissions made by the learned
Senior Counsel for both the parties, it would be appropriate to
notice the various factual and legal points on which the parties
are agreed. The controversy herein would have to be decided
on the basis of the law declared by this Court in Bhatia
International [(2002) 4 SCC 105] . The parties are agreed and
it is also evident from the final partial consent award dated
14-9-2011 that the juridical seat (or legal place) of arbitration
for the purposes of the arbitration initiated under the
claimants' notice of arbitration dated 16- 12-2010 shall be
London, England. The parties are also agreed that hearings of
the notice of arbitration may take place at Paris, France,
Singapore or any other location the Tribunal considers may be
convenient. It is also agreed by the parties that the terms and
conditions of the arbitration agreement in Article 33 of the
PSCs shall remain in full force and effect and be applicable to
the arbitration proceedings.
37. The essential dispute between the parties is as to whether
Part I of the Arbitration Act, 1996 would be applicable to the
arbitration agreement irrespective of the fact that the seat of
arbitration is outside India. To find a conclusive answer to the
issue as to whether applicability of Part I of the Arbitration
Act, 1996 has been excluded, it would be necessary to discover
the intention of the parties. Beyond this parties are not agreed
on any issue.
38. We are also of the opinion that since the ratio of law laid
down in Balco [Balco v. Kaiser Aluminium Technical Services
Inc. has been made prospective in operation by the
Constitution Bench itself, we are bound by the decision
rendered in Bhatia International. Therefore, at the outset, it
would be appropriate to reproduce the relevant ratio of Bhatia
International in para 32 which is as under:
"32. To conclude, we hold that the provisions of Part I would
apply to all arbitrations and to all proceedings relating
thereto. Where such arbitration is held in India the provisions
of Part I would compulsorily apply and parties are free to
deviate only to the extent permitted by the derogable
provisions of Part I. In cases of international commercial
arbitrations held out of India provisions of Part I would apply
unless the parties by agreement, express or implied, exclude
all or any of its provisions. In that case the laws or rules
chosen by the parties would prevail. Any provision, in Part I,
which is contrary to or excluded by that law or rules will not
apply."
39. In view of the aforesaid, it would be necessary to analyse
the relevant articles of the PSC, to discover the real intention
of the parties as to whether the provisions of the Arbitration
Act, 1996 have been excluded. It must, immediately, be noticed
that Articles 32.1 and 32.2 deal with applicable law and
language of the contract as is evident from the heading of the
article which is "Applicable law and language of the
contract". Article 32.1 provides for the proper law of the
contract i.e. laws of India. Article 32.2 makes a declaration
that none of the provisions contained in the contract would
entitle either the Government or the contractor to exercise the
rights, privileges and powers conferred upon it by the contract
in a manner which would contravene the laws of India.
40. Article 33 makes a very detailed provision with regard to
the resolution of disputes through arbitration. The two articles
do not overlap--one (Article 32) deals with the proper law of
the contract, the other (Article 33) deals with ADR i.e.
consultations between the parties; conciliation; reference to a
sole expert and ultimately arbitration. Under Article 33, at
first efforts should be made by the parties to settle the disputes
among themselves (Article 33.1). If these efforts fail, the
parties by agreement shall refer the dispute to a sole expert
(Article 33.2). The provision with regard to constitution of the
Arbitral Tribunal provides that the Arbitral Tribunal shall
consist of three arbitrators (Article 33.4). This article also
provides that each party shall appoint one arbitrator. The
arbitrators appointed by the parties shall appoint the third
arbitrator. In case, the procedure under Article 33.4 fails, the
aggrieved party can approach the Permanent Court of
Arbitration at The Hague for appointment of an arbitrator
(Article 33.5). Further, in case the two arbitrators fail to make
the appointment of the third arbitrator within 30 days of the
appointment of the second arbitrator, again the Secretary
General of the Permanent Court of Arbitration at The Hague
may, at the request of either party appoint the third arbitrator.
In the face of this, it is difficult to appreciate the submission of
the respondent Union of India that the Arbitration Act, 1996
(Part I) would be applicable to the arbitration proceedings. In
the event, the Union of India intended to ensure that the
Arbitration Act, 1996 shall apply to the arbitration
proceedings, Article 33.5 should have provided that in default
of a party appointing its arbitrator, such arbitrator may, at the
request of the first party be appointed by the Chief Justice of
India or any person or institution designated by him. Thus, the
Permanent Court of Arbitration at The Hague can be
approached for the appointment of the arbitrator, in case of
default by any of the parties. This, in our opinion, is a strong
indication that applicability of the Arbitration Act, 1996 was
excluded by the parties by consensus. Further, the arbitration
proceedings are to be conducted in accordance with the
Uncitral Rules, 1976 (Article 33.9). It is specifically provided
that the right to arbitrate disputes and claims under this
contract shall survive the termination of this contract (Article
33.10).
41. The article which provides the basis of the controversy
herein is Article 33.12 which provides that venue of the
arbitration shall be London and that the arbitration agreement
shall be governed by the laws of England. It appears, as
observed earlier, that by a final partial consent award, the
parties have agreed that the juridical seat (or legal place of
arbitration) for the purposes of arbitration initiated under the
claimants' notice of arbitration dated 16-12-2010 shall be
London, England.
42. We are of the opinion, upon a meaningful reading of the
aforesaid articles of the PSC, that the proper law of the
contract is Indian law; proper law of the arbitration
agreement is the law of England. Therefore, can it be said as
canvassed by the respondents, that applicability of the
Arbitration Act, 1996 has not been excluded?"
30. In para 5, the Supreme Court referred to paras 57, 74 to 77, of its
earlier judgment in Reliance Industries vs. UOI (supra), which I
reproduced as under:-
"57. In our opinion, these observations in Sulamerica
Cia Nacional de Seguros SA v. Enesa Engelharia SA -
Enesa MANU/UKWA/0347/2012 : (2013) 1 WLR 102
are fully applicable to the facts and circumstances of
this case. The conclusion reached by the High Court
would lead to the chaotic situation where the parties
would be left rushing between India and England for
redressal of their grievances. The provisions of Part I of
the Arbitration Act, 1996 (Indian) are necessarily
excluded; being wholly inconsistent with the arbitration
agreement which provides "that arbitration agreement
shall be governed by English law". Thus the remedy for
the Respondent to challenge any award rendered in the
arbitration proceedings would lie under the relevant
provisions contained in the Arbitration Act, 1996 of
England and Wales. Whether or not such an application
would now be entertained by the courts in England is
not for us to examine, it would have to be examined by
the court of competent jurisdiction in England."
"74. We are also unable to agree with the submission of
Mr Ganguli that since the issues involved herein relate to
the public policy of India, Part I of the Arbitration Act,
1996 would be applicable. Applicability of Part I of the
Arbitration Act, 1996 is not dependent on the nature of
challenge to the award. Whether or not the award is
challenged on the ground of public policy, it would have to
satisfy the precondition that the Arbitration Act, 1996 is
applicable to the arbitration agreement. In our opinion,
the High Court has committed a jurisdictional error in
holding that the provisions contained in Article 33.12 are
relevant only for the determination of the curial law
applicable to the proceedings. We have already noticed
earlier that the parties by agreement have provided that
the juridical seat of the arbitration shall be in London.
Necessary amendment has also been made in the PSCs, as
recorded by the final partial consent award dated 14-9-
2011. It is noteworthy that the Arbitration Act, 1996 does
not define or mention juridical seat. The term "juridical
seat" on the other hand is specifically defined in Section 3
of the English Arbitration Act. Therefore, this would
clearly indicate that the parties understood that the
arbitration law of England would be applicable to the
arbitration agreement.
75. In view of the aforesaid, we are unable to uphold the
conclusion arrived at by the Delhi High Court that the
applicability of the Arbitration Act, 1996 to the arbitration
agreement in the present case has not been excluded.
76. In view of the above, we hold that:
76.1 The petition filed by respondents under Section 34 of
the Arbitration Act, 1996 in the Delhi High Court is not
maintainable.
76.2 We further overrule and set aside the conclusion of
the High Court that, even though the arbitration
agreement would be governed by the laws of England and
that the juridical seat of arbitration would be in London,
Part I of the Arbitration Act would still be applicable as
the laws governing the substantive contract are Indian
laws.
76.3 In the event a final award is made against the
respondent, the enforceability of the same in India can be
resisted on the ground of public policy.
76.4 The conclusion of the High Court that in the event,
the award is sought to be enforced outside India, it would
leave the Indian party remediless is without any basis as
the parties have consensually provided that the arbitration
agreement will be governed by the English law. Therefore,
the remedy against the award will have to be sought in
England, where the juridical seat is located. However, we
accept the submission of the appellant that since the
substantive law governing the contract is Indian law, even
the courts in England, in case the arbitrability is
challenged, will have to decide the issue by applying
Indian law viz. the principle of public policy, etc. as it
prevails in Indian law. (emphasis supplied by this Court)
77. In view of the above, the appeal is allowed and the
impugned judgment [(2013) 199 DLT 469] of the High
Court is set aside."
31. In Union of India vs. Reliance Industries Ltd.(supra), the
Supreme Court finally concluded as under:-
"22. On the facts in the present case, it is clear that this
Court has already determined both that the juridical seat
of the arbitration is at London and that the arbitration
agreement is governed by English law. This being the case,
it is not open to the Union of India to argue that Part-I of
the Arbitration Act, 1996 would be applicable. A Section
14 application made under Part-I would consequently not
be maintainable. It needs to be mentioned that Shri Ranjit
Kumar‟s valiant attempt to reopen a question settled twice
over, that is by dismissal of both a review petition and a
curative petition on the very ground urged before us, must
meet with the same fate. His argument citing the case of
Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.
Jeejeebhoy, (1970) 1 SCC 613, that res judicata would not
attach to questions relating to jurisdiction, would not
apply in the present case as the effect of clause 34.2 of the
PSC raises at best a mixed question of fact and law and
not a pure question of jurisdiction unrelated to facts.
Therefore, both on grounds of res judicata as well as the
law laid down in the judgment dated 28.5.2014, this
application under Section 14 deserves to be dismissed. It is
also an abuse of the process of the Court as has rightly
been argued by Dr. Singhvi. It is only after moving under
the UNCITRAL Arbitration Rules and getting an adverse
judgment from the Permanent Court of Arbitration dated
10.06.2013 that the present application was filed under
Section 14 of the Arbitration Act two days later i.e. on
12.6.2013."
32. In Yograj Infrastructure Ltd.(supra), the Supreme Court was
dealing with clause 27 of the Agreement, which is reproduced as under:-
"27. Arbitration.
27.1 All disputes, differences arising out of or in connection
with the Agreement shall be referred to arbitration. The
arbitration proceedings shall be conducted in English in
Singapore in accordance with the Singapore International
Arbitration Centre (SIAC) Rules as in force at the time of
signing of this Agreement. The arbitration shall be final and
binding.
27.2 The arbitration shall take place in Singapore and be
conducted in English language.
27.3 None of the Party shall be entitled to suspend the
performance of the Agreement merely by reason of a dispute
and/or a dispute referred to arbitration."
The Supreme Court also noted clause 28 of the Agreement, which
stipulated as under:-
"Clause 28. This agreement shall be subject to the laws of
India. During the period of arbitration, the performance of
this agreement shall be carried on without interruption and
in accordance with its terms and provisions."
33. The Supreme Court in paras 47 to 55 has held as under:-
"47. Clause 27 of the Agreement provides for arbitration
and reads as follows:
27. Arbitration.
27.1 All disputes, differences arising out of or in connection
with the Agreement shall be referred to arbitration. The
arbitration proceedings shall be conducted in English in
Singapore in accordance with the Singapore International
Arbitration Centre (SIAC) Rules as in force at the time of
signing of this Agreement. The arbitration shall be final and
binding.
27.2 The arbitration shall take place in Singapore and be
conducted in English language.
27.3 None of the Party shall be entitled to suspend the
performance of the Agreement merely by reason of a dispute
and/or a dispute referred to arbitration.
48. Clause 28 of the Agreement describes the governing law
and provides as follows:
This agreement shall be subject to the laws of India. During
the period of arbitration, the performance of this agreement
shall be carried on without interruption and in accordance
with its terms and provisions.
49. As will be seen from Clause 27.1, the arbitration
proceedings are to be conducted in Singapore in
accordance with the SIAC Rules as in force at the time of
signing of the agreement. There is, therefore, no ambiguity
that the procedural law with regard to the arbitration
proceedings, is the SIAC Rules. Clause 27.2 makes it clear
that the seat of arbitration would be Singapore.
50. What we are, therefore, left with to consider is the
question as to what would be the law on the basis whereof
the arbitral proceedings were to be decided.
51. In our view, Clause 28 of the Agreement provides the
answer. As indicated hereinabove, Clause 28 indicates that
the governing law of the agreement would be the law of
India, i.e., the Arbitration and Conciliation Act, 1996. The
learned Counsel for the parties have quite correctly spelt
out the distinction between the "proper law" of the contract
and the "curial law" to determine the law which is to govern
the arbitration itself. While the proper law is the law which
governs the agreement itself, in the absence of any other
stipulation in the arbitration clause as to which law would
apply in respect of the arbitral proceedings, it is now well-
settled that it is the law governing the contract which would
also be the law applicable to the Arbitral Tribunal itself.
Clause 27.1 makes it quite clear that the Curial law which
regulates the procedure to be adopted in conducting the
arbitration would be the SIAC Rules. There is, therefore, no
ambiguity that the SIAC Rules would be the Curial law of
the arbitration proceedings. It also happens that the parties
had agreed to make Singapore the seat of arbitration.
Clause 27.1 indicates that the arbitration proceedings are
to be conducted in accordance with the SIAC Rules.
52. The immediate question which, therefore, arises is
whether in such a case the provisions of Section 2(2), which
indicates that Part I of the above Act would apply, where
the place of arbitration is in India, would be a bar to the
invocation of the provisions of Sections 34 and 37 of the
Act, as far as the present arbitral proceedings, which are
being conducted in Singapore, are concerned.
53. In Bhatia International (supra), wherein while
considering the applicability of Part I of the 1996 Act to
arbitral proceedings where the seat of arbitration was in
India, this Court was of the view that Part I of the Act did
not automatically exclude all foreign arbitral proceedings
or awards, unless the parties specifically agreed to exclude
the same.
54. As has been pointed out by the learned Single Judge in
the order impugned, the decision in the aforesaid case
would not have any application to the facts of this case,
inasmuch as, the parties have categorically agreed that the
arbitration proceedings, if any, would be governed by the
SIAC Rules as the Curial law, which included Rule 32,
which categorically provides as follows:
"32. Where the seat of arbitration is Singapore, the law of
the arbitration under these Rules shall be the International
Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the
Republic of Singapore) or its modification or reenactment
thereof."
55. Having agreed to the above, it was no longer available
to the Appellant to contend that the "proper law" of the
agreement would apply to the arbitration proceedings. The
decision in Bhatia International v. Bulk Trading S.A. (2002)
4 SCC 105, which was applied subsequently in the case of
Venture Global Engg. v. Satyam Computer Services Ltd.
(2008) 4 SCC 190 and Citation Infowares Ltd. v. Equinox
Corporation (2009) 7 SCC 220, would have no application
once the parties agreed by virtue of Clause 27.1 of the
Agreement that the arbitration proceedings would be
conducted in Singapore, i.e., the seat of arbitration would
be in Singapore, in accordance with the Singapore
International Arbitration Centre Rules as in force at the
time of signing of the Agreement."
34. In a more recent judgment of the Supreme Court in Harmony
Innovation Shipping Ltd vs. Gupta Coal India Ltd (2015) 9 SCC 172,
the Supreme Court was concerned with an agreement, which stipulated
that the contract is to be governed and construed according to the
English Law. The Supreme Court held it forms as a part of arbitration
clause. The Supreme Court also noted that there were ample indication
through various phrases like "arbitration in London to apply", arbitrators
are to be the Members of "London Arbitration Association" and the
contract "to be governed and construed according to the English Law".
The Supreme Court also observed, there is no other stipulation relating
to applicability of any law to the Agreement. That apart, Supreme Court
also noted that if the dispute is for an amount of less $ 50000 then the
arbitration should be conducted in accordance with small claims,
procedure of London Maritime Arbitration Association. The Supreme
Court also held that if the stipulations are noted by it are read and
appreciated in the contextual perspective, "the presumed intention" of
the parties is clear as crystal that the juridical seat of arbitration would be
London.
35. Noting the facts of each case as relied upon by Mr. Krishnan and
referred to above, it is clear, the clauses in the agreement in the cases are
at variance with the clauses in this case. In those cases, the Supreme
Court on the reading of the clauses, held, that Part-I shall not be
applicable.
36. In the present case, the arbitration clause stipulates that the
arbitration shall be, in accordance with the Rules of conciliation and
arbitration of International Chamber of Commerce, Paris. The contract
shall be governed by the Indian laws. The Agreement does not stipulate
the law which shall govern the arbitration agreement. The case of Mr.
Krishnan is, since the parties have agreed, the arbitration would take
place in London and no other place, there was an implied exclusion to
the applicability of Indian law to the arbitration agreement and
accordingly the procedure for challenging the Award would be governed
by the law of the seat of Arbitration i.e English law.
37. I am unable to agree with the submission of Mr. Dayan Krishnan
for the simple reason; the law previous to the decision of the
Constitution Bench in Balco was governed by Bhatia International
(supra); which is followed in Venture Global Engineering (supra), the
Supreme Court emphasised the aspect of „closest and most real
connection‟. Likewise in National Thermal Power Corporation vs.
Singer Company (supra), one of the tests, that was applied was to
examine whether the contract has in every respect the closest and most
real connection with the Indian system of law. It was observed in the
said case, although the venue of the arbitration was outside India, that
venue had no connection with the contract of the parties except that it
was a neutral place.
38. In Enercon (India) Ltd. and Ors. Vs. Enercon GMBH and Anr.
(2014) 5 SCC 1, the contract provided that it would be subject to the
Indian law, the venue of the arbitration was London. However, the
Court found on the facts of the case that the law governing the contract,
the law governing the arbitration agreement and the law of the
arbitration/curial law are all stated to be Indian. In that view of the
matter, the Court rejected the submission of Enercon GMBH that the
term „venue‟ ought to be read as „seat‟. It was observed that "in
virtually all jurisdictions, it is an accepted proposition of law that the
seat normally carries with it the choice of that country's
arbitration/Curial law. But this would arise only if the Curial law is not
specifically chosen by the parties." On the facts of that case, it was
concluded that the parties have exclusively chosen the Indian law i.e Act
of 1996 as the curial law. It was further observed "If one has regard to
the factors connecting the dispute to India and the absence of any factors
connecting it to England, the only reasonable conclusion is that the
parties have chosen London, only as the venue of the arbitration. All the
other connecting factors would place the seat firmly in India."
39. In a recent judgment in the case of Carzonrent India Pvt. Ltd
(supra), this Court has interpreted identical provisions of the Agreement,
wherein the parties chose Singapore as the venue of arbitration, held that
there is nothing in clause 14, which indicates that there is any implied
exclusion of the applicability of Indian law. On the other hand, the
clause begins by stating that the agreement is being negotiated by the
parties with a view towards its interpretation under the law of the
jurisdiction in which the licensed business shall be conducted in India.
This reflects the close connection of Indian law to the arbitration
agreement as well since it forms part of the Contract. (Emphasis
supplied).
40. I agree with the submissions of Mr. Abhinav Vashist and Mr.
Sandeep Sethi that ITECL is a company incorporated under the
Companies Act having registered office in India; the SHA has been
executed by the parties in India; the Agreement between the parties is to
be governed by the laws of India.
41. That apart, what is also a relevant factor is that it is the
understanding of Roger Shashoua and two others about the applicability
of Act of 1996 to the agreement, inasmuch as they have filed a petition
under Section 9 of the Act before this Court being OMP 186/2005 to
seek interim measures and surely cannot now contend otherwise. This
aspect is conclusive to hold that, part I of the Act of 1996 shall be
applicable to the Arbitration Agreement.
42. Insofar as the reliance placed by Mr. Dayan Krishnan on the
judgment of the England and Wales High Court in the case filed by Mr.
Roger Shashoua and two others against Mukesh Sharma dated May 7,
2009 with citation No. 2009 EWHC 957 (COMM) is concerned, the
issue was, the claimants Roger Shashoua and two others sought a
restraint order against Mukesh Sharma from bringing or participating in
any proceedings outside the jurisdiction that challenge, impugne or being
as their object or effect the prevention or delay in enforcement by the
claimants of an interim arbitration Award. In other words, the Roger
Shashoua and two others sought an anti suit injunction against Mukesh
Sharma.
43. In para 46 of the judgment, Mukesh Sharma had submitted that
Roger Shashoua and two others had submitted to the jurisdiction of this
court by making an application in 2005 under Section 9 of the Act of
1996 for interim protective measures. It was the submission of Roger
Shashoua and two others that under Article 23 of the ICC Rules, they
were entitled before the file was transmitted to the Arbitral Tribunal, to
apply to competent judicial authority for interim or conservatory
measures. By that Article the application to such a judicial authority for
such measures is not to be deemed to be an infringement or waiver of the
arbitration agreement and is not to effect the relevant powers reserved to
the arbitral tribunal. It cannot, therefore, effect the seat of the arbitration,
the agreement to the curial law and the exclusive supervisory powers of
the English courts in relation to the conduct of the arbitration and the
validity of the award.
44. In para 47, it is noted that Mukesh Sharma had submitted that
Roger Shashoua‟s and two others conduct before this court when
making submissions in the context of the Mukesh Sharma‟s section 34
petition throughout 2008 also amounts to a submission to the jurisdiction
of this Court, whilst Roger Shashoua and two others maintained that, not
only it is impossible for them to have submitted prior to notice being
issued in the proceedings but that, in any event, as a matter of fact, their
counsel throughout made it plain that Roger Shashoua and two others did
object to the jurisdiction of the Court to determine the matters, which
Mukesh Sharma wished to put it before it.
45. In para 48, the High Court has held as under:-
"48. On both these matters there is a large body of factual
evidence which is seriously in dispute. There are conflicting
statements from Indian lawyers as to what actually took
place in the Indian courts. There are also conflicting
statements from 2 former Chief Justices of India on the law
of India and the effect of what was and was not done in the
Indian courts. Disputes on Indian law and practice
constitute matters of fact for this court and it is therefore
clear to me that I cannot decide either primary issues of fact
or issues of Indian law and practice on the basis of the
statements put before me. This inevitably means that a mini
trial is required for determination of these points with oral
evidence. Although it was contended that the burden of
proof of submission to the jurisdiction lay upon the
defendant and only went to the matter of this court's
discretion in the context of the granting of the anti suit
injunction, where the issues of principle have been decided
by me in favour of the claimants, it is plain that my
discretion would be influenced by a finding that the
claimants had submitted to the jurisdiction of the Indian
courts in the context of the section 34 application, whether
that submission was seen through the eyes of Indian law or
the principles of English private international law."
46. In para 50 also, the High Court of England and Wales held as
under:-
"50. For the same reasons as set out above in the context of
the arguments about submission to the jurisdiction of the
High Court of Delhi, I am unable to come to a final
conclusion about this without hearing full evidence about
what took place and the effect of it from the perspective both
of Indian law and the principles of English conflict of
laws."
47. Similarly, in para 52, the Court held as under:-
"52. The former allegation is tied in with the arguments
about submission to the jurisdiction which, for the reasons
set out above, I cannot finally decide without oral
evidence."
48. In para 54 also, the Court held as under:-
"54. 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 fitted to determine such
issues under Indian law. Whilst I found this idea attractive
initially, I am 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. As I have said, the
question of submission goes to the exercise of my discretion
to grant an injunction and this is not simply a matter of
Indian law. The principles of English private international
law are called into play when deciding whether what took
place in India and its effect in Indian law should impact
upon the exercise of this court's discretion. If for example
the claimants had submitted to the jurisdiction of the Indian
courts as a matter of technicality, whilst making it plain that
they had no intention of doing so, that would be a much less
forceful point for the defendant than a full blown submission
to the jurisdiction of the Delhi High Court, which would be
recognised anywhere in the world as being a voluntary
acceptance of that court's jurisdiction to act at the behest of
the defendant to do all the things which the claimant now
says it should not do. Whether there was a submission, the
form which that submission took, the ambit of it and the
nature of it are all matters which might well affect the
decision of this court."
49. From the above, it is noted that the Court was conscious of the fact
that the effect of submitting to the jurisdiction of this court by filing an
application under Section 9 cannot be decided without hearing full
evidence about what took place and effect of it from the perspective of
both Indian Law and the principles of English conflict of laws. No
doubt, the High Court has held that England is the seat of arbitration and
on the principle akin to exclusive jurisdiction clause, it held, as a matter
of principle, the foreign Court should not decide matters, which are for
that Court to decide in the context of an anti suit injunction. In fact, in
para 55 of the judgment, the Court did say that, to decide the issue of
submission to the jurisdiction of the Courts in India, requires a specific
hearing which cannot be determined on statements alone. Suffice to
state that the Court itself has stated, the effect of submission to the
jurisdiction need to be decided, and there was no final decision on that
count. Further, the Court was taking a prima facie view for grant of anti
suit injunction.
50. Insofar as the conclusion of the High Court on London being seat
of arbitration and it had the jurisdiction on the principles akin to
exclusive jurisdiction clause, the same is at variance with the law in
India, in terms of National Thermal Power Corporation (supra); Bhatia
International (supra) which was later followed by the Supreme Court in
Venture Global (supra). The judgment is overlooking the fact that the
substantive law applicable to the Agreement was Indian law and if one
has regard to the factors connecting the dispute, in the absence of any
factors connecting it to England, even if one of the company is registered
in London, the parties have chosen London as the „venue‟ of the
arbitration and not the „seat‟, and the judgment would not help Mr.
Krishnan, so also in view of the provision of Section 13(c) of the CPC.
51. The other issue, which arises for consideration is whether the
order passed by learned District Judge, Gautam Budh Nagar, U.P dated
July 6, 2011 directing the return of the petition to the petitioner is
justified. At the outset, I may state here, the reasoning given by the
learned District Judge in directing return of the petition under Section 34
of the Act to ITECL on the ground that Roger Shashoua and two others
had earlier filed a petition under Section 47 and 49 of the Act of 1996 in
this Court and the said petition being prior in time, the petition under
Section 34 would be hit by Section 42, is erroneous in view of the
judgment of this Court in Daelim Industrial Co. Ltd. vs. Numaligarh
Refinery Ltd. 2009(3) Arb.LR 524 (Delhi), wherein this Court in para 16
held as under:-
"16. Applying the same reasoning, Section 42 would also
not apply to execution applications. The execution
application is not "arbitral proceedings" within the meaning
of Section 42 of the Act and is not a subsequent application
arising out of the agreement and the arbitral proceedings.
In fact the arbitral proceedings come to an end when the
time for making an application to set aside the arbitral
award expires and the execution application is an
enforcement of the award. Thus the place of filing of the
execution application need not be the place of the filing of
the application under Section 34 of the Act for the reason of
Section 42 of the Act."
52. Admittedly, the petition filed by Roger Shashoua and others, is
under Section 47 and 49 of the Act, so the bar of Section 42 would not
be applicable to the petition under Section 34 of the Act filed by ITECL
before the District Judge, Gautam Budh Nagar.
53. But the question that would arise, is, whether the order of the
learned District Judge, on being set aside, the case needs to be remanded
back to the concerned Court for a decision on merit including the
maintainability. Mr. Vashist had relied upon the judgment of the
Supreme Court in the case of Hari Vishnu Kamath (supra), the said
proposition is well settled that a High Court exercising jurisdiction under
Article 226 in certiorari proceedings would only rectify the errors and
would not re-appreciate the facts. But I note, extensive submissions
have been made by Mr. Vashist in support of his stand that the Court of
District Judge, Gautam Budh Nagar had the jurisdiction to entertain
petition under Section 34 of the Act. If that be so, the said submission
need to be tested. If the Court is convinced that on a prima facie view,
the Court of learned District Judge, Gautam Budh Nagar has the
jurisdiction, then the petition filed by ITECL would be maintainable in
Gautam Budh Nagar and the petitions, which have been filed in this
Court need to filed before the Ld. District Judge, Gautam Budh Nagar as
the petition filed by the ITECL, as contended by Mr. Vashist is prior in
time. Suffice to state, such a plea would not be acceptable, moreso,
when it is the case of ITECL that Roger Shashoua and two others had
filed a petition under Section 9 of the Arbitration & Conciliation Act
being OMP No.186/2005 seeking interim measures in this Court. There
is no dispute, the petition filed by the petitioner before the Gautam Budh
Nagar under Section 34 was in the year 2010, much after the said
petition was filed. So, the bar of Section 42 would hit the petition being
Misc. Case No. 33/2010. Even otherwise, the submission of Mr. Vashist
that the ITECL had filed a suit being 257/2005 earlier to the petition
being OMP 186/2005, before the Court in Gautam Budh Nagar is
concerned, the suit not being an application arising from the arbitration
agreement, such a plea, so also the plea on an application under Section
8 of the Act of 1996, as filed by Roger Shashoua and ors before the Ld.
District Judge, Gautam Budh Nagar, in view of the judgment of the
Supreme Court in State of West Bengal vs. Associated Contractors
(2015) 1 SCC 32 vide para 25(c) would not be available to Mr. Vashist.
The petition under Section 9 filed by Roger Shashoua and others in this
Court is the first and prior to the petition under Section 34 of the
Arbitration & Conciliation Act by ITECL before the Ld. District Judge
and would be hit by Section 42 of the Act of 1996 and would not be
maintainable.
54. Further, insofar as the submission of Mr. Vashist that the dispute
relates to SHA; to the property in Noida, the corporate office of ITECL
is in Noida, the subject-matter of dispute between the parties relatable to
Noida property is also without merit and the same would also not confer
jurisdiction on the Noida Court as the cause of action, subject-matter of
the dispute between the parties is the resolution dated October 29, 2003
and other reliefs relatable to transfer of shares etc, which need to be seen
from the perspective of the registered office of the ITECL which is in
Delhi.
55. Noting the impugned order of the District Judge is erroneous and
not legally tenable but no purpose would be achieved by remanding the
case back to the District Judge, Gautam Budh Nagar, as it is clear that on
the ground that a petition under Section 9 of the Act of 1996, being OMP
186/2005 was initially filed by Roger Shashoua and others in this Court,
the same would trigger the bar of Section 42 of the Act of 1996 making
the petition under Section 34 as not maintainable before the District
Judge, Gautam Budh Nagar, the writ petition being W.P.(C) No.
10954/2015 needs to be dismissed. It is ordered accordingly.
56. Insofar as the submission of Mr. Dayan Krishnan on the non-
maintainability of petitions under Section 34 of the Act of 1996 is
concerned, the said plea is rejected in view of my discussion made
above.
57. Having decided the aforesaid two issues in terms of this order, the
petitioner ITECL shall file the petition under Section 34, which was
directed to be returned back in terms of the order of the Ld. District
Judge, Gautam Budh Nagar before this Court on or before 15 th July,
2016. On such filing, the same shall be registered and shall be listed
along with O.M.P 04/2008, O.M.P 255/2010 & O.M.P 914/2011 for
hearing on 20th July, 2016.
(V.KAMESWAR RAO)
JUDGE
JUNE 07, 2016
ak
