Delhi High Court

S.P. Singla Constructions ... vs Construction And Design ... on 23 September, 2021

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
     %                               Reserved on        : September 07, 2021
                                     Pronounced on      : September 23, 2021

+        ARB.P. 450/2021
         S.P. SINGLA CONSTRUCTIONS PRIVATE LIMITED
                                                   ......Petitioner
                        Through: Mr. Anirudh Wadhwa, Advocate

                            Versus

         CONSTRUCTION AND DESIGN SERVICES, UTTAR PRADESH
         JAL NIGAM                               ......Respondent
                     Through: Mr. Rishabh Kapoor, Mr.Naman
                              Tandon & Mr. Mayank Punia,
                              Advocates

         CORAM:
         HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                 JUDGMENT

1. Petitioner- S.P. Singla Constructions Private Limited claims to be one

of the most reputed construction company specialized in construction of

bridges and other projects across the country. Respondent- Construction and

Design Services, a 100% undertaking of Government of Uttar Pradesh,

claims to be providing construction and design Services.

2. Respondent had invited proposals for Qualification cum Request for

Proposal dated 06.04.2016 to undertake design, engineering, procurement

and construction of a dedicated corridor (4 lane including extra-dosed bridge

across River Ganga) for old and differently-abled persons during Kumbh

and Magh Mela at Sangam, Allahabad, UP, India. Petitioner participated in

the bidding process and was adjudged as the successful bidder with the

lowest bid. Therefore, respondent had issued a Letter of Award dated

03.01.2017 in favour of the petitioner and a formal Contract dated

08.02.2017 was executed between the parties.

3. Petitioner claims that the value of the Contract was

Rs.984,53,75,000/- (Rupees Nine Hundred Eighty-Four Crores, Fifty- Three

Lacs Seventy-Five Thousand Only) and the project was to be concluded

within a period of 30 months followed by a defect liability period of 48

months from the date of provisional certificate of completion. Further,

petitioner was obligated to deposit Bank Guarantees towards performance

security to the tune of 5% of the said Contract Value and so, vide letter

dated 13.02.2017, thirteen bank guarantees to the tune of Rs.49,22,69,000/-

were deposited by the petitioner, which also stood extended.

4. According to petitioner, to execute the Contract in question, petitioner

had immediately taken steps like mobilisation of resources, appointment of

various third-party Consultants i.e. proof check Consultant, safety

Consultant and a Design Director, submission of general arrangement

drawings for bridge and viaduct approaches, geotechnical reports, placing

work orders etc. However, respondent utterly failed in fulfilling its part of

obligations, as in terms of Clause- 4.1.3 of the said Contract, the "Right of

Way" in respect to the said works was to be provided by the respondent to

the petitioner within 15 days of the date of the agreement dated 03.01.2017,

but even after expiry of entire period of 30 months, respondent did not do

so, which is contrary to the Clauses - 4.1.3, 5.2(g) and 5.2(h) of the said

Contract. Further pleaded by petitioner that despite communications dated

27.06.2017, 17.07.2017, 12.09.2019 and 03.03.2020, respondent has not

even compensated the petitioner for the cost incurred by it towards fulfilling

its part of obligations. Due to non-performance of obligations by the

respondent, the petitioner claims to have incurred huge loss of productivity,

turnover, overhead costs, Contractor's profits and earning capacity besides

cost of construction under the Contract in question. The respondent vide its

letter dated 09.06.2020, while referring to a letter dated 16.04.2020 by the

Prayagraj Mela Board, intimated that the project as well as the contract

ought to be considered as "terminated".

5. Petitioner further claims that in response to the aforesaid letter dated

09.06.2020, respondent/petitioner sent a letter dated 24.06.2020 to the

respondent acknowledging termination of the Contract at respondent‟s

convenience in terms of Clause-23.3 of the Contract and raised an invoice

for Rs.174,36,50,777/- towards "Termination Payment" in accordance with

Clause 23.6.2 of the Contract. According to petitioner, Clause 23.6.4 of the

Contract provides that the „Termination Payment‟ shall constitute a full and

final payment and respondent shall make the payment within 30 days under

Clause- 23.6.3 and shall discharge the bank guarantees.

6. Petitioner next claims that not only respondent failed to honour the

payment of Rs.174,36,50,777/- towards "Termination Payment" but vide

letter dated 27.07.2020 demanded extension of bank guarantees for a further

period in an attempt to disown the termination notice dated 09.06.2020,

which was already acknowledged by the petitioner vide letter dated

24.06.2020. The respondent vide letter dated 30.07.2020 communicated the

petitioner that the decision of termination of Contract was taken by

Prayagraj Mela Board and till the time the said decision is under

consideration and finalized by the Government of Uttar Pradesh, the

Contract in question is "valid" and subsists and there is no liability towards

"Termination Payment" except for refund of performance security in case

the project is withdrawn by the State of Uttar Pradesh. Vide communication

dated 01.08.2020, petitioner sought a clarification from respondent seeking

extension of bank guarantees for 12 months even after termination of

Contract vide letter dated 09.06.2020. The said communication was replied

by the respondent vide letter dated 10.08.2020 wherein demand for

extension of bank guarantees till 31.08.2020 was reiterated and a copy

thereof was also marked to the concerned bank asking to invoke the same in

case bank guarantees were not extended by the petitioner.

7. According to petitioner, against the aforesaid arbitrary, irrational and

unreasonable action of respondent, petitioner preferred a writ petition before

the High Court at Allahabad and the said writ petition is still pending

adjudication. Further, vide letter dated 14.10.2020, respondent again

communicated the petitioner its decision to revoke/terminate the said

Contract and that it was instructed by Department of Urban Development,

Uttar Pradesh to stop expenditure on it. Thereafter, respondent released the

bank guarantees furnished toward performance security by the petitioner and

the same were released vide letter dated 20.11.2020.

8. It is next averred on behalf of petitioner that vide its communication

dated 25.11.2020, petitioner invoked dispute resolution clause (Article 26)

of the said Contract towards denial of the „termination payment‟ amounting

to Rs.174,36,50,777 /- payable to the petitioner under Article 23.6.2 and

26.3.3 of the said Contract and also as a prerequisite, in terms of Article 26.2

of the Contract, petitioner referred the dispute to the Chairman of

respondent. Further averred that vide its communication dated 14.01.2021,

respondent again denied the claim of petitioner towards "Termination

Payment" and when also efforts to amicably resolve the dispute failed,

petitioner in terms of Article 26.3 of the Contact, invoked the arbitration

vide Notice dated 06.02.2021 and proposed name of Hon'ble Mr. Justice

(Retd.) S.J. Mukhopadhyay as its nominee Arbitrator. Against the aforesaid

Notice dated 06.02.2021, respondent vide its letter dated 01.03.2021,

communicated the petitioner that once the Contract itself has been revoked

vide letter dated 14.10.2020 without commencement of work and bank

guarantees have been returned, no dispute between the parties survives and

so, the invocation of arbitration Clause 26.03 is untenable.

9. Further, vide letter dated 08.03.2021, petitioner once again

communicated the respondent that in terms of Article 23.8 and Article

27.7.1.(a), the rights and obligations of the parties, including the right to

claim and recover damages and termination payments survives.

10. During the course of hearing, learned counsel for petitioner submitted

that since respondent has failed to appoint its nominee Arbitrator within 30

days of issuance of Notice dated 10.02.2021 invoking arbitration, petitioner

has approached this Court seeking appointment of Arbitrator.

11. To support of his submissions, learned counsel drew attention of this

Court to Clause 26.3 of the Contract in question to submit that if dispute is

not resolved amicably by conciliation, as provided in Clause 26.2, the same

shall be finally decided by reference to arbitration by a Board of Arbitrators

appointed in accordance with Clause 26.3.2. and the arbitration shall be held

in accordance with the Rules of Arbitration of the International Centre for

Alternative Dispute Resolution, New Delhi (ICADR) or such other rules as

may be mutually agreed by the parties, and shall be subject to the provisions

of the Arbitration Act. Attention of this Court was also drawn to Article 17

of the ICADR Rules to submit that the place of arbitration shall be New

Delhi or such other place where any of the Regional Offices of ICADR is

situated, provided that failing any agreement between the parties, the place

of arbitration shall be determined by the arbitral tribunal with the

convenience of the parties.

12. Learned counsel for petitioner next submitted that Clause 26.3 of the

Contract is specific that the arbitration shall be held "in accordance with the

Rules of the International Centre for Alternative Dispute Resolution, New

Delhi" and that by incorporating the Rules of ICADR, New Delhi into the

Contract in question, the parties have expressly chosen the seat /place of

arbitration at New Delhi.

13. To submit that where parties expressly choose to incorporate the rules

of an arbitral institute into their arbitration clause, while failing to

specifically agree on a "seat" of arbitration, they are deemed to knowingly

have chosen and relied on the seat selection clause of the institutional rules,

reliance is placed upon Hon‟ble Supreme Court‟s decision in Imax

Corporation Vs. M/s E-City Entertainment (I) Pvt. Ltd. (2017) 5 SCC 331.

It is further submitted on behalf of petitioner that in view of Article 17 of the

Rules of ICADR, New Delhi in the absence of any seat being agreed upon

between the parties, the seat has to be nominated through ICADR, New

Delhi, as the institute and incorporation of the Rules of ICADR, New Delhi

is "New Delhi".

14. Learned counsel also placed reliance upon Hon‟ble Supreme Court‟s

decisions in Indus Mobile Distribution Private Limited Vs. Datawind

Innovations Private Limited And Others (2017) 7 SCC 678 and Bharat

Aluminium Company Vs. Kaiser Aluminium Technical Services Inc

(2012) 9 SCC 552 to distinct between the "seat" and the "venue" of an

arbitration while submitting that Section 20(1) and 20(2) of the Act refers to

juridicial "seat" or "situs" of the arbitration, whereas in Section 20(3) of the

Act, "place" refers to the physical site(s) or "venue" where arbitration

proceedings are physically held.

15. To distinguish between "seat" and "venue", learned counsel further

relied upon decision of Hon‟ble Supreme Court in Enercon (India) Ltd. &

Ors. Vs. Enercon GMBH & Anr. (2014) 5 SCC 1 to submit the language of

Clause 26.3 of the Contract manifestly distinguishes between "venue" and a

"seat".

16. Next, reliance was placed upon decision of Hon‟ble Supreme Court in

Mankastu Impex Private Limited Vs. Airvisual Limited (2020) 5 SCC 399,

wherein while adverting to the arbitration clause in the said case, the

Hon‟ble Court had emphasized use of word "arbitration administered in

"Hongkong" and held that "Hongkong" was not only a nomination of the

"venue" but also "seat", whereas in the present case the term "venue" is

opposed to term "seat".

17. Learned petitioner‟s counsel also placed reliance upon decisions of

this Court in Balancehero India Private Limited Vs. Arthimpact Finserve

Private Limited, 2021 SCC OnLine Del 2872; Cinepolis India Pvt. Ltd Vs.

Celebration City Projects Pvt. Ltd. and Another 2020 SCC OnLine Del

301 and Vikram Awasthy Vs. Hassad Netherland B.V. & Ors. 2016 SCC

OnLine Del 982 in support of his submissions.

18. On the contrary, learned counsel appearing on behalf of respondents

has opposed the present petition on the issue of maintainability of this

petition lacking jurisdiction before this Court. Learned counsel submitted

that the agreement between the parties was executed at Lucknow for the

work to be performed at Allahabad and that respondent is having its

registered office at Lucknow and only petitioner has its registered office at

Delhi and so, no cause of action has arisen within the jurisdiction of this

Court and, therefore, the present petition is not maintainable.

19. It was next submitted by learned respondent‟s counsel that as per the

Agreement dated 08.02.2017, it was agreed between the parties that any

dispute, difference or controversy shall be first tried to be resolved through

conciliation and if it fails, then all disputes shall be referred to arbitration in

terms of Arbitration and Conciliation Act, 1996. Attention of this Court has

specifically been drawn to Clause 26.3 and 26.3.1 wherein recourse to

arbitration has been enumerated in the aforesaid Agreement. It was further

submitted that reliance placed by petitioner upon ICADR Rules for want of

jurisdiction of this Court is erroneous and unwarranted, as ICADR Rules

shall come into play only after arbitral tribunal is constituted.

20. Learned counsel also submitted that at the time of execution of

Agreement dated 08.02.2017, both the parties relied upon ICADR Rules

only for the purpose of determining the procedure of arbitral proceedings

and not the seat of arbitration proceedings. Also submitted that as per Rule

17 of ICADR Rules, even if seat of arbitration is to be decided as per

ICADR Rules, mutual consent of both the sides is required and in the

present case, respondent has never consented to the seat of arbitration as

New Delhi.

21. Learned counsel for respondent next drew attention of this Court to

Clause 27.1 of the aforesaid Agreement to submit that the Courts at

Lucknow shall have the exclusive jurisdiction over matters arising out of the

Agreement. Learned counsel emphasized that in cases where more than one

courts have the jurisdiction, the place where the Agreement has been

executed shall have the jurisdiction, which in the case in hand is Lucknow.

Learned counsel also submitted that in the Agreement in question only the

word "venue" has been mentioned and thereby the term "venue" means

"seat" of the arbitration and distinction between the two is not applicable to

the present case.

22. In support of aforesaid submissions, learned counsel for respondent

relied upon decision of Hon‟ble Supreme Court in BGS SGS SOMA JV v.

NHPC, (2020) 4 SCC 234 to submit that "wherever there is an express

designation of a "venue", and no designation of any alternative place as the

"seat", combined with a supranational body of rules governing the

arbitration, and no other significant contrary indicia, the inexorable

conclusion is that the stated venue is actually the juridical seat of the

arbitral proceeding."

23. Reliance was also placed upon another Hon‟ble Supreme Court

decision in Indus Mobile Distribution (Supra) in support of aforesaid

submissions. Lastly, learned counsel pressed that the present petition be not

allowed, lacking jurisdiction.

24. Upon hearing learned counsel representing both the sides at length

and on perusal of material placed on record as well as decisions relied upon

by both the sides, this Court finds that existence of Agreement dated

08.02.2017 entered into between the parties is not disputed. Parties have also

not disputed that in terms of aforesaid Agreement, the disputes between the

parties have to be referred to an Arbitrator. The relevant Article-26 of the

Agreement dated 08.02.2017 reads as under:-.

"ARTICLE 26

DISPUTE RESOLUTION

26.1 Dispute Resolution

26.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 26.2.

26.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.

26.2 Conciliation

In the event of any Dispute between the Parties, either Party may call upon the Authority's Engineer, or such other person as the Parties may mutually agree upon (the "Conciliator") to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Conciliator or without the intervention of the Conciliator, either Party may require such Dispute to be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the Contractor for amicable settlement, and upon such reference, the said persons shall meet no later

than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 (seven) business day period or the Dispute is not amicably settled within 15 (fifteen) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 26.1.1 or suit, longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 26.3.

26.3 Arbitration

26.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 26.2, shall be finally decided by reference to arbitration by a Board of Arbitrators appointed in accordance with Clause 26.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the "Rules"), or such other rules as may be mutually agreed by the Parties and shall be subject to the provisions of the Arbitration Act. The venue of such arbitration shall be [Lucknow), and the language of arbitration proceedings shall be English.

26.3.2 There shall be a Board of three arbitrator so, of whom each party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules.

26.3.3 The arbitrators shall make a reasoned award (the "Award"). Any Award made in any arbitration held pursuant to this Article 26 shall be final and binding on the Parties as from the date it is made, and the Contractor and the Authority agree and undertake to carry out such Award without delay."

25. Pertinently, Clause-26.1 of Article 26 in the aforesaid Agreement

dated 08.02.2017 deals with the mechanism in which disputes inter se

parties shall be resolved. Clause -26.2 defines the manner in which either

party may call upon Authority‟s Engineer to mediate or assist the parties in

arriving at an amicable settlement. Upon respondent‟s denial of the

termination payment under Article 23.6.2 and 26.3.3 of the said Contract,

petitioner vide its communication dated 25.11.2020 invoked the pre-

requisite dispute resolution clause calling upon the Chairman of the

Authority Board of Directors of the Contractor to frame a time line for

amicable resolution of disputes. In response to the aforesaid communication

dated 25.11.2020, respondent vide letter dated 14.01.2021, through its Chief

General Manger, informed the petitioner that pursuant to revocation of the

Contract Agreement vide its letter dated 14.10.2020, no claim towards

„Termination Payments‟ was due upon respondents. It is in these

circumstances; petitioner has rightly invoked the arbitration Clause 26.3.1 of

the Contract and by its communication dated 06.02.2021 proposed name of

Hon'ble Mr. Justice (Retd.) S. J. Mukhopadhyay, as its nominee Arbitrator.

26. A bare reading of aforesaid Clause 26.3.1 shows that upon invocation

of arbitration by either party, the proceedings shall be conducted in

accordance with the Rules of Arbitration of the International Centre for

Alternative Dispute Resolution, New Delhi and the venue of such

Arbitration shall be Lucknow.

27. During the course of arguments, without going into the merits of the

disputes with regard to contract in question, counsel for the both the sides

laid emphasis upon distinction between the "venue" and "seat" of arbitration

and several decisions in this regard were cited before this Court. According

to learned counsel for the petitioner, "venue" of arbitration does not include

the "seat" of the arbitration and since the arbitration has to be conducted in

terms of Rules of Arbitration of the International Centre for Alternative

Dispute Resolution, New Delhi, therefore, seat of the Arbitrator has to be

New Delhi. To the contrary, learned counsel for respondent strenuously

argued that in terms of clause 26.3.1, the venue of arbitration has to be

Lucknow only.

28. What this Court is required to consider and decide in terms of Clause

26.3.1, whether the seat of arbitration shall be New Delhi in the light that the

arbitration has to be conducted in accordance with the Rules of Arbitration

of the International Centre for Alternative Dispute Resolution, New Delhi

OR Lucknow, in the light of agreement that the venue of such arbitration

shall be Lucknow?

29. The Hon‟ble Supreme Court in a catena of judgments has elaborately

discussed the terms "venue" and "seat".

30. A five judge Constitution Bench of the Supreme Court in Bharat

Aluminium Company Ltd. (Supra) recognized that "Seat" and "Venue"

are different and observed that the "Seat" of arbitration is the center of

gravity of the arbitration and the "Venue" is the geographical location where

such arbitration meetings are conducted. The Court held that under sub-

Section (2), (2) and (3) of Section 20 of the Arbitration and Conciliation

Act, 1996, "Place of Arbitration" is used interchangeably. The Hon‟ble

Court further held as under:-

"96. We are of the opinion, the term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy.

Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the Courts of Delhi being the Courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject

matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution, i.e., arbitration is located.

31. In Enercon (India) Ltd. (Supra), the Hon‟ble Supreme Court held

that the seat of arbitration shall be India and Indian judiciary shall have the

jurisdiction, despite London being chosen as the venue of arbitration. The

Hon‟ble Court relied upon decision in Bharat Aluminium Company Ltd.

(Supra) to hold "that the courts are required to adopt a pragmatic

approach and not a pedantic or technical approach while interpreting or

construing arbitration clause".

32. In Imax Corporation (Supra), three foreign arbitral awards were

under challenge before the Hon‟ble Supreme Court, of which execution was

sought by petitioner after ten years of passing of the Award and the Court

was required to consider the limitation period.

33. In Indus Mobile Distribution (Supra), the Hon‟ble Supreme Court

has dealt with the issue whether the seat of arbitration suggests the

jurisdiction and held that once a seat is determined, the courts at seat shall

have the exclusive jurisdiction for the purpose of regulating arbitral

proceedings. However, in the said case, the parties had not only agreed to

the seat of arbitration but also had an exclusive jurisdiction clause, which

ousted other jurisdictions.

34. The Hon‟ble Supreme court in a recent decision in Mankastu Impex

Private Limited (Supra) while dealing with the issue whether the seat of

arbitration shall be New Delhi or Hongkong, observed that mere expression

of place of arbitration will not entail that the parties intended it to be the

seat. The intention of the parties to the seat has to be determined from other

clauses of the Agreement and the conduct of the parties.

35. The afore-noted ratio of law with regard to "Seat" and "Venue", laid

down by the Hon‟ble Supreme Court in Bharat Aluminium Company Ltd.

(Supra) was further clarified in BGS SGS SOMA JV (Supra), wherein on

the question of maintainability of three appeals under Section 37 of the

Arbitration and Conciliation Act, the Hon‟ble Court observed that though

the agreement between the parties therein was executed at Faridabad and

part of cause of action also arose at Faridabad and also that Faridabad was

the place where request for arbitration was received, however, the arbitration

clause in the said agreement did not specifically mention that "the hearings

shall take place at the venue" or the tribunal "may meet" or "may hear the

witnesses, experts or parties" at the venue. In the facts of the said case,

since the proceedings were held in Delhi and Award was also signed in

Delhi, the Court directed hearing of Section 34 petition in the Courts at New

Delhi. The Court observed that if the arbitration agreement provides that

arbitration proceedings "shall be held" at a particular venue, then that

indicates arbitration proceedings would be anchored at such venue, and

therefore, the choice of venue is also a choice of the seat of arbitration. The

Hon‟ble Court reiterated that once the parties designate the seat of

arbitration, only the courts governing the seat have exclusive jurisdiction to

govern such arbitration proceeding and jurisdiction of all other courts stand

ousted.

36. In view of afore-noted holding of the Hon‟ble Supreme Court in BGS

SGS SOMA JV (Supra) that "choice of venue is also a choice of the seat

of arbitration", this Court finds that in Clause-26.3.1 of Article-26 of the

Agreement dated 08.02.2017, the parties have agreed that the venue of

arbitration shall be „Lucknow‟ and therefore, the courts at Lucknow shall

have the exclusive jurisdiction to entertain the disputes arising out of

Agreement in question.

37. Further, as per relevant clause 26.3.1 of the Agreement in question,

the arbitration shall be held in accordance with the ICADR Arbitration

Rules, 1996. Learned counsel for respondent has heavily relied upon Para-

17 of ICADR Arbitration Rules, 1996, which reads as under:-

"17. Place of arbitration.-- (1) The place of arbitration shall be New Delhi or such other place where any of the Regional Offices of ICADR is situated as the parties may agree : Provided that failing any agreement between the parties, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including convenience of the parties.

(2) The arbitral tribunal may, after consulting the ICADR, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property."

38. A plain reading of afore-noted Para-17 of ICADR Rules clearly shows

that the place of arbitration shall be New Delhi or any of its regional office

"as the parties may agree". No doubt the aforesaid Clause-26.3.1 of Article-

26 of the Agreement dated 08.02.2017 stipulates that the arbitration shall be

held in accordance with the Rules of ICADR but soon thereafter it follows

the condition that the venue of arbitration shall be „Lucknow‟. Accordingly,

in the considered opinion of this Court, the role of ICADR Rules shall come

into play with regard to procedure to be followed, only after the arbitration

commences before the appropriate jurisdiction of law, which in this case is

"Lucknow".

39. In view of above discussion and legal position, this Court has no

jurisdiction to entertain the present petition seeking appointment of