Madras High Court
Eqx Analytics Private Limited vs Fullerton India Credit Company ... on 25 June, 2021
O.P.No. 376 of 2021
THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 25.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
O.P.No. 376 of 2021
EQX Analytics Private Limited,
Having Its Registered Officer at
60, Third Floor, Arjun Nagar,
Kotla Mubarakpur, New Delhi – 110 003. . . . Petitioner
Versus
Fullerton India Credit Company Limited,
Having its Registered Officer at :
Megh Towers, 3rd Floor, Old No.307,
New No.165,PH Road, Maduravoyal,
Chennai, Tamil Nadu – 600 095. . . . Respondent
PRAYER : Petition filed under Sections 11 [6] [a] of the Arbitration and
Conciliation Act, 1996 to appoint an arbitrator in accordance with Clause
18 of the Service Agreement dated 06.12.2018 to adjudicate upon the
disputes that have arisen between the parties in relation to the Agreement as
outlined in the notices dated 08.12.2020.
For Petitioner : Ms.M.Vidya
For Respondent : Mr.Balasubramani Velan
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O.P.No. 376 of 2021
ORDER
This petition has been filed for appointment of an arbitrator to resolve
the dispute that had arisen out of the Service Agreement dated 06.12.2018
entered between the parties.
2. The main objection of the respondent is that when the parties had
specifically agreed in the agreement entered between the parties that the
arbitration proceedings shall be at Mumbai and when there is a specific
clause in the agreement to that above effect, the arbitration has to be held at
Mumbai.
3. A perusal of the Service Agreement entered between the parties
indicate that the parties have agreed to have arbitration at Mumbai. When
the parties having agreed to have arbitration proceedings at Mumbai, now it
cannot be said that they can have arbitration at Chennai. Clause 18 of the
Service Agreement entered between the parties read as follows :
“In the event of disputes, controversies, differences, of
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O.P.No. 376 of 2021
opinion and claims out of or in connection with this
Agreement or in any way relating hereto or any term,
condition or provision herein mentioned or the construction
or interpretation thereof or otherwise in relation hereto, the
parties hall first endeavor to settle such differences, disputes,
claims or questions by friendly consultation and failing such
settlement, the same shall be resolved by arbitration by a sole
arbitrator to be appointed by both parties. Such arbitration
shall be held in accordance with the Arbitration and
Conciliation Act, 1996 or any statuary modification or re-
enactment thereof for the time being in force and shall be held
in Mumbai and be conducted in English Language”
4. When the parties have agreed to a particular place as the seat of
arbitration, entire process of arbitration has to be commenced in the Court
where the parties agreed in the agreement. In this regard, the Honourable
Apex Court in a judgment in BGS SGS Soma JV Vs. NHPC Limited
reported in 2020 [4] Supreme Court Cases 234 has held as follows :
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O.P.No. 376 of 2021
“Given the fact that if there were a dispute between
NHPC Ltd. and a foreign contractor, clause 67.3(vi) would
have to be read as a clause designating the “seat” of
arbitration, the same must follow even when sub-clause (vi) is
to be read with sub-clause (i) of Clause 67.3, where the
dispute between NHPC Ltd. would be with an Indian
Contractor. The arbitration clause in the present case states
that “Arbitration Proceedings shall be held at New
Delhi/Faridabad, India…”, thereby signifying that all the
hearings, including the making of the award, are to take place
at one of the stated places. Negatively speaking, the clause
does not state that the venue is so that some, or all, of the
hearings take place at the venue; neither does it use language
such as “the Tribunal may meet”, or “may hear witnesses,
experts or parties”. The expression “shall be held” also
indicates that the so-called “venue” is really the “seat” of the
arbitral proceedings. The dispute is to be settled in
accordance with the Arbitration Act, 1996 which, therefore,
applies a national body of rules to the arbitration that is to be
held either at New Delhi or Faridabad, given the fact that the
present arbitration would be Indian and not international. It is
clear, therefore, that even in such a scenario, New
Delhi/Faridabad, India has been designated as the “seat” of
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O.P.No. 376 of 2021
the arbitration proceedings.”
In the light of the above judgment and having regard to the fact that the
Service Agreement entered between the parties has a specific clause for
having the arbitration proceedings at Mumbai, the present petition before
this Court is not maintainable and the same is liable to dismissed.
5. Accordingly, this Original Petition is dismissed. It is well open to
the petition to approach the High Court of Mumbai for appointment of an
arbitrator.
25.06.2021
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O.P.No. 376 of 2021
N. SATHISH KUMAR, J.
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O.P.No. 376 of 2021
25.06.2021
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