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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2841-2843 OF 2017 (@ S.L.P. (Civil) Nos. 22616-22618 of 2016)

Roger Shashoua & Others    …Appellant(s)

Versus

Mukesh Sharma & Others …Respondent(s)

J U D G M E N T

Dipak Misra, J.

Though innumerable  facts have been graphically  stated in the

petitions  seeking  leave  to  appeal  as  well  as  in  the  written  note  of

submissions, yet regard being had to the centrality of the controversy,

we  shall  refer  to  the  facts  which  are  absolutely  necessary  for

adjudication of  the  lis in question.  It  may be  stated that  the  High

Court has narrated the facts in detail on various aspects, for it was

deciding a writ petition and a petition preferred under Section 34 of

the  Arbitration  and  Conciliation  Act,  1996  (for  brevity,  ‘the  Act’)

together and it was required to advert to the “seat of arbitration and

venue of arbitration” to determine the maintainability of the petition in

the Courts of India. That apart, the High Court was obliged to dwell

upon the territorial jurisdiction of a petition under Section 34 of the

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Act at Gautam Budh Nagar, Uttar Pradesh or High Court of Delhi, in

case  the  Courts  in  India  have  the  jurisdiction  to  deal  with  the

objections as postulated under Part I of the Act. Be it noted, a petition

under Section 34 of the Act was filed before the learned District Judge,

Gautam Budh Nagar, Uttar Pradesh who vide order dated 06.07.2011

had not entertained the application on the ground of lack of territorial

jurisdiction and returned it to be filed before the appropriate Court

and the appeal arising therefrom, that is, FAO (D) 1304 of 2011, filed

before the High Court of Allahabad was dismissed on the ground of

maintainability.  Thereafter, Writ Petition No. 20945 of 2014 was filed

challenging the order dated 06.07.2011 of the District Judge, Gautam

Budh Nagar. In the meantime, a petition under Section 34 of the Act

came to be filed before the High Court of Delhi.

2. When the matter stood thus, ITE India Pvt. Limited approached

this Court by filing Special Leave Petition (Civil) Nos. 22318-22321 of

2010.  On 15.09.2015, the Court passed the following order:

“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 had 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

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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.”   

3. It is worthy to mention that extension of time was sought for by

the parties and was granted. Before the High Court the appellant took

the stand that the application under Section 34 was not maintainable

since  Part  I  of  the  Act  is  not  applicable  regard  being  had  to  the

arbitration clause in the agreement from which it is discernible that

the courts in London have jurisdiction. Learned single Judge by the

impugned order came to hold that application filed under Section 34

of the Act is maintainable and the Delhi High Court has the territorial

jurisdiction  to  deal  with  the  same  and  accordingly  directed  the

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objection to be filed under Section 34 before the Court.  

4. We may immediately state here that Special Leave Petition (Civil)

Nos.  22318-22321  of  2010  had  been  de-tagged  vide  order  dated

15.02.2017 passed by the Court.

5. Regard  being  had  to  what  we  have  stated  hereinbefore,  as

required at present, we shall only dwell upon the applicability of Part I

or  Part  II  of  the  Act  to  the  controversy  in  question.  If  Part  I  is

applicable, then we will be obliged to advert to the issue of territorial

jurisdiction of Delhi or that of Gautam Budh Nagar, Uttar Pradesh. If

Part II would be applicable, then the said issue will not warrant any

deliberation.

6. Criticising  the  impugned  order,  Mr.  Rakesh  Dwivedi,  learned

senior counsel for the appellants contends that the High Court has

fallen into an error in its appreciation of the arbitration clause and

what has been postulated therein and come to hold that the Courts in

India  have  jurisdiction.   It  is  also  canvassed  by  him  that  in  the

decision  delivered  between  the  parties,  the  commercial  court  in

London,  interpreting the  clauses  in  the  agreement,  has  determined

that  the  courts  in  London  have  jurisdiction  and  the  principle  laid

therein  (Shashoua  v.  Sharma1)  has  been  accepted  in  Bharat

Aluminium  Co.  v.  Kaiser  Aluminium  Technical  Services  Inc.2

1   2009 EWHC 957 (Comm) 2   (2012) 9 SCC 552

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(BALCO) and further in Enercon (India) Ltd. v. Enercon GmbH3 and,

therefore,  the  inescapable  conclusion has  to  be  that  the  Courts  in

India do not have jurisdiction and consequently Part I of the Act would

not be applicable.  Be it noted, the second proposition, as is seen from

the impugned order, was not advanced before the High Court.  Be that

as it may, as it involves a pure question of law, we shall advert to the

same.   

7. Mr. Chidambaram, learned senior counsel for the respondent, in

his turn, would submit that the arbitration clause specifically provides

that London will be the venue for arbitration and venue can never be

the  seat  of  arbitration  that  vests  jurisdiction  in  courts  situate  at

London.   It  is  his  further  submission that  mere  stipulation in  the

arbitration clause that the proceedings shall  be in accordance with

Rules of Conciliation and Arbitration of the International Chambers of

Commerce, Paris is not to be interpreted that the parties had intended

not to be governed by Part I of the Act.  It is assiduously propounded

by him that the Constitution Bench in BALCO  has not approved the

judgment  in  Shashoua and  the  view  expressed  by  the  two-Judge

Bench in  Enercon (India) Ltd. (supra) to that effect is  per incuriam.

That  apart,  the  principle  laid  down  in  National  Thermal  Power

Corporation v. Singer Company4  which deals with various aspects

relating to covenants of the contract is applicable.  It is argued by him 3   (2014) 5 SCC 1 4   (1992) 3 SCC 551

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that  Shashoua arose  from  an  anti-suit  injunction  and  views

expressed therein are tentative and, therefore, cannot earn the status

of a precedent.  Lastly, it is urged by him that as the appellants had

approached the Courts in India, they have waived their right to contest

the issue of jurisdiction.  

8. To appreciate the controversy, it is necessary to take note of the

fact  that  the  agreement  has  been  executed  before  delivery  of  the

judgment, that is,  12.9.2012, by the Constitution Bench in  BALCO

and, therefore, the principle stated in Bhatia International v. Bulk

Trading S.A. and another5 is applicable and for the said purpose

what  has  been  stated  in  Bhatia  International (supra)  has  to  be

appositely  appreciated  and  understood.   In  Bhatia  International

(supra), an application was preferred under Section 9 of the Act before

the learned IIIrd Additional District Judge, Indore, Madhya Pradesh

and the appellant  therein had raised the  plea of  maintainability  of

such an application on the ground that Part I of the Act would not

apply where the place of arbitration is not in India.  The Court referred

to various provisions of the Act and came to hold thus:

“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

5  (2002) 4 SCC 105

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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.”

9. After recording the conclusion, the three-Judge Bench noted the

stand of the learned counsel appearing for the appellant therein which

finds  place  in  paragraph  33  of  the  judgment.  It  is  extracted

hereunder:-

“33. Faced with this situation Mr Sen submits that, in this case the parties had agreed that the arbitration be as per the  Rules  of  ICC.  He  submits  that  thus  by  necessary implication Section 9 would not apply. In our view, in such cases  the  question  would  be  whether  Section  9  gets excluded by the ICC Rules of Arbitration. Article 23 of the ICC Rules reads as follows:

“Conservatory and interim measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may,  at  the  request  of  a  party,  order  any  interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of  an  order,  giving  reasons,  or  of  an  award,  as  the Arbitral Tribunal considers appropriate.

2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate  circumstances  even thereafter,  the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation  of  any  such  measures  ordered  by  an Arbitral  Tribunal  shall  not  be  deemed  to  be  an infringement  or  a  waiver  of  the  arbitration  agreement and shall not affect the relevant powers reserved to the Arbitral  Tribunal.  Any  such  application  and  any measures  taken  by  the  judicial  authority  must  be

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notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof.”

10. After  so  stating,  the  Court  analysed  Article  23  of  the

International Chamber of Commerce Rules and noted that the said

Rules permit parties to apply to a competent judicial  authority for

interim and conservatory measures and, therefore, in such cases an

application could be made under Section 9 of  the Act.    Eventual

conclusion that was recorded by the three-Judge Bench is as under:

“35. …. in our view a proper and conjoint reading of all the provisions  indicates  that  Part  I  is  to  apply  also  to international commercial arbitrations which take place out of  India,  unless  the  parties  by  agreement,  express  or implied,  exclude  it  or  any  of  its  provisions.  Such  an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there are  no  lacunae  in  the  said  Act.  This  interpretation  also does not leave a party remediless. …”

11. In Venture Global Engineering v. Satyam Computer Services

Ltd.6 the Court followed the principle stated in Bhatia International

(supra).  Elucidating the principle of  Bhatia International (supra),

the Court stated:  

“33. The very fact that the judgment holds that it would be open  to  the  parties  to  exclude  the  application  of  the provisions of Part I by express or implied agreement, would mean that otherwise the whole of Part I would apply. In any event, to apply Section 34 to foreign international awards would not be inconsistent with Section 48 of the Act, or any  other  provision  of  Part  II  as  a  situation  may  arise, where, even in respect of  properties situate in India and where an award would be invalid if opposed to the public

6  (2008) 4 SCC 190

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policy of India, merely because the judgment-debtor resides abroad,  the award can be enforced against  properties  in India  through  personal  compliance  with  the judgment-debtor and by holding out the threat of contempt as is being sought to be done in the present case. In such an event,  the judgment-debtor cannot be deprived of his right under Section 34 to invoke the public policy of India, to  set  aside  the  award.  As  observed  earlier,  the  public policy  of  India  includes — (a)  the  fundamental  policy  of India; or (b) the interests of India; or (c) justice or morality; or  (d)  in  addition,  if  it  is  patently  illegal.  This  extended definition of public policy can be bypassed by taking the award to a foreign country for enforcement.”

 12. In the said case, the Court scanned the shareholders agreement

and came to hold that Part I of the Act was applicable and hence,

though the award was a foreign award, its legal propriety could be

called in question in India. The said authority, as is reflectible, lays

down that it would be open to the parties to exclude the application of

the provision of Part I by express or implied agreement and unless

there is an express or implied exclusion, the whole of Part I would

apply.   The Court,  in the  said case,  adverted to the  agreement in

question  and eventually expressed the view that the clauses in the

agreement neither expressly nor impliedly excluded the applicability

of Part I of the Act.    

13. In Indtel Technical Services (P) Ltd. v. W.S. Atkins Rail Ltd.7,

the  designated  Judge  was  called  upon  to  decide  the  issue  of

appointment of an arbitrator.  The clause that pertained to settlement

of disputes read as follows:

7   (2008) 10 SCC 308

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“6. … ‘13. Settlement of disputes 13.1.  This  agreement,  its  construction,  validity  and performance  shall  be  governed  by  and  constructed  in accordance with the laws of England and Wales;

13.2.  Subject  to  Clause  13.3  all  disputes  or  differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;

13.3.  If  any  dispute  or  difference  under  this  agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide  the  dispute  or  difference  under  the  relevant sub-contract  agreement  and  the  parties  hereto  agree  to abide by such decision as if it were a decision under this agreement.’”

14. The  Court  referred  to  the  authority  in  Bhatia  International

(supra)  and  Lesotho  Highlands  Development  Authority  v.

Impregilo SpA8,  and came to hold that  it is fairly well settled that

when an arbitration agreement is silent as to the law and procedure to

be  followed  in  implementing  the  arbitration  agreement,  the  law

governing the said agreement would ordinarily be the same as the law

governing the contract itself.  The Court referred to Singer Company

(supra) and held that the proposition stated therein lent support to the

view  it  had  expressed.  Thereafter,  it  noted  that  in  Bhatia

International (supra) this Court had laid down the proposition that

notwithstanding the provisions of Section 2(2) of the Act, indicating

8   (2005) 3 ALL ER 789

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that Part I of the Act would apply where the place of arbitration is in

India, even in respect of international commercial agreements, which

are to be governed by the laws of another country, the parties would

be  entitled  to  invoke  the  provisions  of  Part  I  of  the  Act  and

consequently the application made under Section 11 thereof would be

maintainable.

15. In the course of hearing we have also been commended to the

authority in  Citation Infowares Limited v. Equinox Corporation9

wherein the Designated Judge opined that unless there is express or

implied exclusion of the provisions of Part I of the Act, the entire Part I

including Section 11 would be applicable even where the international

commercial agreements are governed by the laws of another country.  

16. As we find the principle stated in Bhatia International (supra)

was followed in many an authority till it was prospectively overruled

in BALCO. The Constitution Bench in BALCO recorded its conclusion

in this manner:   

“195. With utmost respect, we are unable to agree with the conclusions recorded in the judgments of this Court in Bhatia International (supra) and Venture Global Engg. (supra). In our opinion,  the  provision  contained  in  Section  2(2)  of  the Arbitration  Act,  1996  is  not  in  conflict  with  any  of  the provisions either in Part I or in Part II of the Arbitration Act, 1996.  In  a  foreign-seated  international  commercial arbitration,  no  application  for  interim  relief  would  be maintainable  under  Section  9  or  any  other  provision,  as applicability of Part I of the Arbitration Act, 1996 is limited to

9   (2009) 7 SCC 220

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all arbitrations which take place in India. Similarly, no suit for  interim injunction simpliciter  would be  maintainable  in India, on the basis of an international commercial arbitration with a seat outside India.

196. We conclude that Part I of the Arbitration Act, 1996 is applicable only to all the arbitrations which take place within the territory of India.”

 17. After  expressing  so,  the  Court  took  note  of  the  fact  that  the

Bhatia  International (supra)  has  been  followed  by  all  the  High

Courts as well as by this Court on numerous occasions and, in fact,

judgment  rendered on 10.01.2008 in  Venture Global  Engineering

(supra)  had  followed  the  ratio  laid  down in  Bhatia  International

(supra).  The  Constitution  Bench,  as  is  manifest,  declared  the

principles  stated  by  it  to  be  applicable  prospectively  to  all  the

arbitration agreements executed from the date of the delivery of the

judgment.

18. After the said judgment was delivered, the issue arose before this

Court  whether  the  parties  to  the  agreement  have  expressly  or

impliedly excluded Part I of the Act.  Reference to the said authorities

is  seemly  to  appreciate  the  perspective  of  this  Court  pertaining  to

exclusion of Part I of the Act.  

19. In Reliance Industries Limited and another v. Union of India

10, the order of the High Court allowing the objections preferred by the

Union of India pertaining to arbitrability of the claims made by the

10   (2014) 7 SCC 603

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petitioner therein in respect of  royalties,  cess, service tax and CAG

audit  was rejected and for  the  said  purpose,  the  Court  referred to

various agreements entered into between the parties.   The issue that

arose before this Court is whether Part I of the Act was excluded or

not.   The Court reproduced the relevant part of  Article  33 and the

clause that dealt with final partial award as to “seat”. It took note of

the fact that jurisdiction of the High Court of Delhi was invoked by the

Union  of  India  contending,  inter  alia,  that  the  terms  of  the  PSCs

entered would manifest an unmistakable intention of the parties to be

governed by the laws of India and more particularly the Arbitration

and  Conciliation  Act,  1996;  that  the  contracts  were  signed  and

executed  in  India;  that  the  subject  matter  of  the  contracts  were

performed within India; and that the contract stipulated that they will

be  governed  and interpreted in  accordance  with  the  laws  of  India.

Various other clauses were pressed into service  to stress upon the

availability of jurisdiction in courts of India.  The Court analyzing the

postulates in the contract in entirety came to hold:

“23. Upon  consideration  of  the  entire  matter,  the  High Court has held that undoubtedly the governing law of the contract i.e. proper law of the contract is the law of India. Therefore, the parties never intended to altogether exclude the  laws  of  India,  so  far  as  contractual  rights  are concerned.  The  laws  of  England  are  limited  in  their applicability in relation to arbitration agreement contained in Article 33. This would mean that the English law would be applicable only with regard to the curial law matters i.e.

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conduct of the arbitral proceedings. For all other matters, proper law of the contract would be applicable. Relying on Article 15(1), it has been held that the fiscal laws of India cannot  be  derogated  from.  Therefore,  the  exclusion  of Indian public policy was not envisaged by the parties at the time when they entered into the contract. The High Court further held that to hold that the agreement contained in Article 33 would envisage the matters other than procedure of arbitration proceedings would be to rewrite the contract. The High Court also held that the question of arbitrability of the claim or dispute cannot be examined solely on the touchstone  of  the  applicability  of  the  law  relating  to arbitration of any country but applying the public policy under the laws of the country to which the parties have subjected the contract to be governed. Therefore, according to  the  High  Court,  the  question  of  arbitrability  of  the dispute  is  not  a  pure  question  of  applicable  law  of arbitration  or  lex  arbitri but  a  larger  one  governing  the public policy.”

20. After so stating, the two-Judge Bench referred to Articles 32.1

and 32.2 that dealt with the applicable law and various other aspects

from which it was perceivable that parties had agreed that juridical

seat or legal place of arbitration for the purpose initiated under the

claimants’ notice of arbitration would be London.  The Court posed the

question whether such stipulations excluded the applicability of the

Part  I  of  the  Act  or  not.   In  its  ultimate  analysis,  it  repelled  the

contention  that  there  had  neither  been  any  express  nor  implied

exclusion of Part I of the Act and ruled:

“43. … In our opinion,  the  expression ‘laws of  India’  as used in Articles 32.1 and 32.2 has a reference only to the contractual  obligations  to  be  performed  by  the  parties under the substantive  contract i.e.  PSC. In other words, the provisions contained in Article 33.12 are not governed by  the  provisions  contained  in  Article  32.1.  It  must  be

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emphasised that Article 32.1 has been made subject to the provision  of  Article  33.12.  Article  33.12  specifically provides that the arbitration agreement shall be governed by the laws of England. The two articles are particular in laying down that the contractual obligations with regard to the  exploration  of  oil  and  gas  under  the  PSC  shall  be governed and interpreted in accordance with the laws of India.  In  contradistinction,  Article  33.12  specifically provides that the arbitration agreement contained in Article 33.12 shall be governed by the laws of England. Therefore, in  our  opinion,  the  conclusion  is  inescapable  that applicability  of  the Arbitration Act,  1996 has been ruled out by a conscious decision and agreement of the parties. Applying  the  ratio  of  law  as  laid  down  in  Bhatia International it would lead to the conclusion that the Delhi High  Court  had  no  jurisdiction  to  entertain  the  petition under Section 34 of the Arbitration Act, 1996.”

21. Be it noted, the Court opined that it was unacceptable that seat

of arbitration is not analogous to an exclusive jurisdiction clause.  It

observed that once the parties had consciously agreed that juridical

seat of the arbitration would be London and that the agreement would

be governed by the laws of England, it is no longer open to propound

that provisions of  Part  I  of  the Act would also be applicable to the

arbitration  agreement.   It  referred  to  the  authority  in  Videocon

Industries Limited v. Union of India and another11 and held thus:

“47. … The first issue raised in Videocon Industries Ltd. was as to whether the seat of arbitration was London or Kuala Lumpur. The second issue was with regard to the courts that  would  have  supervisory  jurisdiction  over  the arbitration  proceedings.  Firstly,  the  plea  of  Videocon Industries  Ltd. was  that  the  seat  could  not  have  been changed from Kuala Lumpur to London only on agreement of  the  parties  without  there  being  a  corresponding amendment in the PSC. This plea was accepted. It was held

11   (2011) 6 SCC 161

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that  seat  of  arbitration  cannot  be  changed  by  mere agreement of parties. In para 21 of the judgment, it was observed as follows:

“21. Though,  it  may  appear  repetitive,  we  deem  it necessary  to  mention  that  as  per  the  terms  of agreement, the seat of arbitration was Kuala Lumpur. If the parties wanted to amend Article 34.12, they could have done so only by a written instrument which was required to be signed by all of them. Admittedly, neither was there any agreement between the parties to the PSC to  shift  the  juridical  seat  of  arbitration  from  Kuala Lumpur  to  London  nor  was  any  written  instrument signed by them for amending Article  34.12. Therefore, the  mere  fact  that  the  parties  to  the  particular arbitration  had  agreed  for  shifting  of  the  seat  of arbitration to London cannot be interpreted as anything except physical change of the venue of arbitration from Kuala Lumpur to London.”

48. The other issue considered by this Court in  Videocon Industries Ltd. was as to whether a petition under Section 9 of the Arbitration Act, 1996 would be maintainable in the Delhi  High  Court,  the  parties  having  specifically  agreed that the arbitration agreement would be governed by the English law. This issue was decided against the Union of India and it  was held that the Delhi High Court did not have the jurisdiction to entertain the petition filed by the Union of India under Section 9 of the Arbitration Act.”

22. It is condign to note here that while discussing about the ratio in

Videocon Industries Limited (supra), the Court studiedly scrutinized

the agreement, mainly the relevant parts of Articles 33, 34 and 35 and

opined:

“50. … The arbitration agreement in this appeal is identical to the arbitration agreement in Videocon Industries. In fact, the factual situation in the present appeal is on a stronger footing than in Videocon Industries Ltd.  As noticed earlier, in  Videocon  Industries,  this  Court  concluded  that  the parties  could  not  have  altered  the  seat  of  arbitration

17

without making the necessary amendment to the PSC. In the present appeal, necessary amendment has been made in  the  PSC.  Based  on  the  aforesaid  amendment,  the Arbitral  Tribunal  has  rendered  the  final  partial  consent award  of  14-9-2011 recording  that  the  juridical  seat  (or legal place) of the arbitration for the purposes of arbitration initiated under  the claimants’  notice  of  arbitration dated 16-12-2010 shall  be  London,  England.  Furthermore,  the judgment in  Videocon Industries is subsequent to  Venture Global. We are, therefore, bound by the ratio laid down in Videocon Industries Ltd.”

23. Explicating the concept of seat of arbitration, the Court observed:

“51.  … “123. … ‘…  an  agreement  as  to  the  seat  of  an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy … as to the validity of an existing interim or  final  award is  agreed to be made only  in the courts of the place designated as the seat of arbitration’.”

24. The Court, in the course of discussion, dealt with the principles

set  out  in  Dozco  India  Private  Limited  v.  Doosan  Infracore

Company  Limited12,  Sumitomo  Heavy  Industries  Ltd.  v.  ONGC

Ltd.13,  Yograj Infrastructure Limited v. Ssang Yong Engineering

and  Construction  Company  Limited14 and  Enercon  (India)  Ltd.

(supra) and thereafter opined thus:

“57. In our opinion, these observations in  Sulamerica Cia Nacional de Seguros SA v.  Enesa Engelharia SA15 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

12   (2011) 6 SCC 179 13   (1998) 1 SCC 305 14   (2011) 9 SCC 735 15   (2013) 1 WLR 102 : 2012 EWCA Civ 638 : 2012 WL 14764

18

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.”

25. It is patent from the law enunciated in the aforesaid decision is

that  stipulations  in  the  agreement  are  required  to  be  studiedly

analysed and appropriately appreciated for the purpose of arriving at

whether there is express or implied exclusion and further meaning of

the term “seat  of  arbitration”.   The Court has also ruled that  it  is

necessary  to  avoid  inconsistency  between  the  provisions  in  the

agreement and Part I of the Act.  

26. At this juncture, we may state that there are other subsequent

authorities that have dealt with express or implied exclusion.  There

are  also  authorities  which  have  declined  to  accept  the  stance  of

implied exclusion.  We shall refer to the same at the subsequent stage

when  we  shall  refer  to  the  Share  Holders  Agreement  (SHA)  and

appreciate  what  interpretation  needs  to  be  placed  on  the  Clause

relating  to  arbitration.   Prior  to  that  we  are  disposed  to  think  to

address the issue as regards the approval of  Shashoua principle in

BALCO and the legal acceptability of  the observations made by the

two-Judge Bench in Enercon (India) Ltd. (supra) or it is per incuriam

19

as is proponed by the learned senior counsel for the respondents.  

27. The  Constitution  Bench  in  BALCO has  referred  to  the

observations  in   Braes  of  Doune  Wind  Farm (Scotland)  Ltd.  v.

Alfred McAlpine Business Services Ltd.16  to lay down the principle

that the observations made in the said case clearly demonstrate that

the detailed examination which is required to be undertaken by the

court  is  to  discern  from  the  agreement  and  surrounding

circumstances the intention of the parties as to whether a particular

place mentioned refers to the “venue” or “seat” of the arbitration.  After

dealing with the principles stated therein, it took note of the fact that

the ratio laid down in  Alfred McAlpine (supra) has been followed in

Shashoua. After stating the facts, it observed that the construction of

the SHA between the parties had fallen for consideration in the said

case.  Be it noted, the larger Bench has reproduced few passages from

Shashoua case.  The analysis made by the Court in  BALCO is as

follows:

“110. Examining the fact situation in the case, the Court observed as follows (Shashoua case) :

 “The basis for the court’s grant of  an anti-suit injunction of the kind sought depended upon the seat of the arbitration.  An agreement as to the seat of an arbitration brought in  the  law of  that country as  the curial  law  and  was  analogous  to  an  exclusive jurisdiction clause. Not  only was there agreement to the curial law of the seat, but also to the Courts of the seat  having  supervisory  jurisdiction  over  the

16  2008 Bus LR D 137 (QBD) : 2008 EWHC 426 (TCC)

20

arbitration,  so  that,  by  agreeing  to  the  seat,  the parties agreed that any challenge to an interim or final award was to be made only in the courts of the place designated as the seat of the arbitration.  

      Although,  ‘venue’  was not  synonymous with ‘seat’,  in  an  arbitration  clause  which  provided  for arbitration to  be  conducted in  accordance  with  the Rules  of  the  ICC in  Paris  (a  supranational  body of rules), a provision that ‘the venue of arbitration shall be  London,  United  Kingdom’  did  amount  to  the designation of a juridical seat…….”

In  Paragraph  54,  it  is  further  observed  as  follows (Shashoua case):  

“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,  we  are persuaded that it would be wrong in principle to allow this and that it would create undue practical problems in  any  event.  On  the  basis  of  what  I  have  already decided,  England  is  the  seat  of  the  arbitration  and since this carries with it something akin to an exclusive jurisdiction clause, as a matter of principle the foreign court should not decide matters which are for this court to decide in the context of an anti-suit injunction.”

[emphasis supplied]  

In making the aforesaid observations in  (Shashoua case), the Court relied on judgments of the Court of Appeal in C v. D17.”

28. The  Constitution  Bench  analyzed  the  facts  of  C v.  D  (supra)

which related to an order passed under the insurance policy which

provided  “any dispute arising under this policy shall  be finally and

17  2008 Bus LR 843 : 2007 EWCA Civ 1282 (CA)

21

fully  determined  in  London,  England  under  the  provisions  of  the

English Arbitration Act, 1950 as amended” and that “this policy shall

be governed by and construed in accordance with the internal laws of

the State of New York….” (Bus LR p. 847, para 2).   In the said case, a

partial award was made in favour of the claimant. It was agreed that

the partial award is, in England law terms, final as to what it decides

and the  defendant sought the  tribunal’s  withdrawal  of  its  findings.

The defendant also intimated its intention to apply to a Federal Court

applying the US Federal Arbitration Law governing the enforcement of

arbitral award, which was said to permit “vacatur” of an award where

arbitrators have manifestly disregarded the law. It was in consequence

of such intimation that the claimant sought and obtained an interim

anti-suit injunction. The learned Judge rejected the arguments to the

effect that the choice of the law of New York as the proper law of the

contract amounted to an agreement that the law of England should

not  apply  to  proceedings  post  award.  He  also  rejected  a  further

argument  that  the  separate  agreement  to  arbitrate  contained  in

Condition V(o) of the policy was itself governed by New York Law so

that proceedings could be instituted in New York. The learned Judge

granted the claimant a final injunction.  The Court of Appeal noted the

submissions on behalf of the defendants and we think it appropriate

to reproduce the same as they have been extracted in BALCO:

22

“112.  … “14.  The  main  submission  of  Mr  Hirst  for  the defendant insurer was that the Judge had been wrong to hold that the arbitration agreement itself was governed by English law merely because the seat of the arbitration was London.  He  argued  that  the  arbitration  agreement  itself was  silent  as  to  its  proper  law  but  that  its  proper  law should follow the proper law of  the contract as a whole, namely, New York law, rather than follow from the law of the seat of the arbitration, namely, England. The fact that the arbitration itself  was governed by English procedural law  did  not  mean  that  it  followed  that  the  arbitration agreement itself  had to be governed by English law. The proper law of the arbitration agreement was that law with which  the  agreement  had  the  most  close  and  real connection; if  the insurance policy was governed by New York law, the law with which the arbitration agreement had its closest and most real connection was the law of New York. It would then follow that, if New York law permitted a challenge for  manifest  disregard of  the law,  the court in England should not enjoin such a challenge.””

29. The finding of the Court of Appeal on the said submission which

has been noted by the Constitution Bench is as under:  

“112. … “16. I shall deal with Mr Hirst’s arguments in due course  but,  in  my judgment,  they fail  to  grapple  with  the central point at issue which is whether or not, by choosing London as the seat of  the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law.  In my view they must be taken to have so agreed for the reasons given by the Judge. The whole purpose of the balance achieved by the Bermuda Form (English arbitration but applying New York law to issues arising under the policy) is that judicial remedies in respect of the award should be those permitted by English law and only those so permitted. Mr Hirst could not say (and did not say) that English judicial remedies for lack  of  jurisdiction  on  procedural  irregularities  under Sections 67 and 68 of the Arbitration Act, 1996 were not permitted; he was reduced to saying that New York judicial remedies were  also permitted. That, however, would be a recipe for  litigation and (what is  worse)  confusion which cannot have been intended by the parties. No doubt New

23

York  law  has  its  own  judicial  remedies  for  want  of jurisdiction and serious irregularity but it could scarcely be supposed that a party aggrieved by one part of an award could proceed in one jurisdiction and a party aggrieved by another  part  of  an  award  could  proceed  in  another jurisdiction.  Similarly,  in  the  case  of  a  single  complaint about  an  award,  it  could  not  be  supposed  that  the aggrieved party could complain in one jurisdiction and the satisfied party be entitled to ask the other jurisdiction to declare its satisfaction with the award. There would be a serious risk of parties rushing to get the first judgment or of  conflicting  decisions  which  the  parties  cannot  have contemplated.

17. It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award.”

30. Be it noted, on the facts of the case, the Court of Appeal held that

the  seat  of  the  arbitration  was  in  England  and,  accordingly,

entertained the challenge to the award.

31. In  Enercon  (India)  Ltd. (supra),  a  two-Judge  Bench  has

observed thus:  

“143. Having  said  so,  the  High  Court  examines  the question  whether  the  English  courts  can  exercise jurisdictions in support of arbitration between the parties, in  view  of  London  being  the  venue for  the  arbitration meetings.  In  answering  the  aforesaid  question,  the  High Court  proceeds on the  basis  that  there  is  no agreement between the parties as regards the  seat of the arbitration, having concluded in the earlier part of the judgment that the  parties  have  intended  the  seat to  be  in  India.  This conclusion  of  the  High  Court  is  contrary  to  the observations  made  in  Shashoua which  have  been approvingly quoted by this Court in  BALCO in para 110. On the facts of the case, the Court held that the seat of the arbitration was in England and accordingly entertained the challenge to the award.”

24

32. In Reliance Industries Limited10, a two-Judge Bench referred to

the decision by the Court of Appeal in C v. D (supra) and opined that it

has been specifically approved by the Constitution Bench in  BALCO

and reiterated in Enercon (India) Ltd. (supra). The Court reproduced

the conclusions of the learned Judge who delivered the judgment in C

v. D (supra).  

33. In Enercon  (India)  Ltd. (supra),  the  Court  referred  to  the

decision  in  Shashoua where  Cooke,  J.,  analyzing  the  SHA,  had

opined:

“26. The Shareholders Agreement provided that "the venue of  arbitration  shall  be  London,  United  Kingdom"  whilst providing  that  the  arbitration  proceedings  should  be conducted in English in accordance with ICC Rules and that the governing law of the Shareholders Agreement itself would be the laws of India. It is accepted by both parties that the concept of the seat is one which is fundamental to the operation of the Arbitration Act and that the seat can be different from the venue in which arbitration hearings take place. It is certainly not unknown for hearings to take place in an arbitration in more than one jurisdiction for reasons  of  convenience  of  the  parties  or  witnesses.  The claimants submitted that in the ordinary way, however, if the arbitration agreement provided for a venue, that would constitute the seat. If a venue was named but there was to be a different juridical seat, it would be expected that the seat would also be specifically named. Notwithstanding the authorities cited by the defendant, I consider that there is great force in this. The defendant submits however that as "venue"  is  not  synonymous  with  "seat",  there  is  no designation of  the  seat of  the  arbitration by clause 14.4 and, in the absence of any designation, when regard is had to  the  parties'  agreement  and  all  the  relevant circumstances, the juridical seat must be in India and the curial law must be Indian law.

25

27.  In  my  judgment,  in  an  arbitration  clause  which provides for arbitration to be conducted in accordance with the  Rules  of  the  ICC  in  Paris  (a  supranational  body  of rules), a provision that the venue of the arbitration shall be London, United Kingdom does amount to the designation of a juridical seat. The parties have not simply provided for the location of hearings to be in London for  the sake of convenience and there is indeed no suggestion that London would be convenient in itself, in the light of the governing law of the Shareholders Agreement, the nature and terms of  that  agreement and the nature of  the  disputes which were likely to arise and which did in fact arise (although the first claimant is resident in the UK).”

34. The learned Judge further observed:

“33.  Whilst  there  is  no material  before  me which would fully support an argument on estoppel, it is interesting to note that at an earlier stage of the history of this matter, the defendant had no difficulty in putting forward London as the seat of the arbitration. On 14th February 2006 the defendant's lawyers, when writing to the arbitral tribunal stated "the seat of the arbitration is London and the first respondent submits that the curial law of the arbitration is English law. That means the arbitration is governed by the Arbitration  Act  1996".  Further,  when  challenging  the appointment of Mr Salve as an arbitrator, in its application to  the  ICC,  the  defendant  said  that  "the  fact  that  the present arbitration is an English seated ICC arbitration is undisputed. Accordingly ICC Rules shall be paramount in adjudicating the present challenge. Further, the curial seat of arbitration being London, settled propositions of English law shall also substantially impinge upon the matter. This position is taken without prejudice to the first respondent's declared  contention  that  the  law  of  the  arbitration agreement is Indian law, as also that the substantive law governing the dispute is Indian law".

34.  "London  arbitration"  is  a  well  known  phenomenon which is often chosen by foreign nationals with a different law,  such  as  the  law  of  New  York,  governing  the substantive  rights  of  the  parties.  This  is  because  of  the legislative framework and supervisory powers of the courts here which many parties are keen to adopt. When therefore

26

there is an express designation of the arbitration venue as London 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,  to  my  mind,  that London is the juridical seat and English law the curial law. In my judgment  it  is  clear  that  either  London has been designated by the parties to the arbitration agreement as the seat of the arbitration or, having regard to the parties' agreement and all the relevant circumstances, it is the seat to  be  determined  in  accordance  with  the  final  fall  back provision of section 3 of the Arbitration Act.”

And again:

“37.  None of  this  has any application to the  position as between  England  and  India.  The  body  of  law  which establishes that an agreement to the seat of an arbitration is  akin  to  an exclusive  jurisdiction  clause  remains  good law. If the defendant is right, C v D would now have to be decided differently. Both the USA (with which C v D was concerned)  and  India  are  parties  to  the  New  York Convention, but the basis of the Convention, as explained in C v D, as applied in England in accordance with its own principles on the conflict of laws, is that the courts of the seat of arbitration are the only courts where the award can be  challenged  whilst,  of  course,  under  Article  V  of  the Convention  there  are  limited  grounds  upon which  other contracting states can refuse to recognise or enforce the award once made.  

x x x x x

39.  In  my  judgment  therefore  there  is  nothing  in  the European  Court  decision  in  the  Front  Comor  which impacts  upon  the  law  as  developed  in  this  country  in relation to anti suit injunctions which prevent parties from pursuing proceedings in the courts of a country which is not a Member State of the European Community, whether on  the  basis  of  an  exclusive  jurisdiction  clause,  or  an agreement to arbitrate (in accordance with the decision in the Angelic Grace [1995] 1 LLR 87) or the agreement of the parties to the supervisory powers of this court by agreeing London as the seat of the arbitration (in accordance with the decision in C v D).”

27

35. Coming back to Enercon (India) Ltd. (supra), the Court referred

to  the  facts  and  quoted  two  passages  and  then  adverted  to  the

observations made by Cooke, J. and ruled:  

“128. In Shashoua case (supra), Cooke, J. concluded that London is the seat, since the phrase "venue of arbitration shall be London, U.K." was accompanied by the provision in the arbitration clause for arbitration to be conducted in accordance with the Rules of ICC in Paris (a supranational body of  rules).  It  was also  noted by  Cooke,  J.  that  "the parties  have  not  simply  provided  for  the  location  of hearings to be in London..."   

 36. Placing reliance on Reliance Industries Limited10 and Enercon

(India) Ltd. (supra), submission of Mr. Rakesh Dwivedi, learned senior

counsel for the appellants - Roger Shashoua and others, is that the

Court has already returned a finding in their favour that the Courts in

London,  the  seat  of  arbitration,  will  have  jurisdiction  and  not  the

courts in India.  

37. Mr.  Chidambaram,  learned  senior  counsel,  in  this  regard

contends  that  the  interim  order  passed  by  the  English  Court  in

Shashoua is not binding on the respondent and is against the settled

principles of law in India. According to him, the observations by the

English  Court  holding  that  “When  therefore  there  is  an  express

designation of the arbitration venue as London and no designation of

any alternative place  as the seat, combined with a supernational body

of  rules governing the  arbitration and no other significant  contrary

28

indicia, the inexorable conclusion is, to my mind, that London is the

juridical  seat  and  English  law  the  curial  law”  is  contrary  to  the

principles  stated  in  Bhatia  International (supra).  He  has  also

pointed  out  that  the  view  that  “… in  an  arbitration  clause  which

provides for arbitration to be conducted in accordance with the Rules

of the ICC in Paris (a supernational body of rules), a provision that the

venue  of  the  arbitration  shall  be  London,  United  Kingdom  does

amount to the designation of a juridical seat” is contrary to the Indian

law.  He  further  urged  that  the  lis had  arisen  from  an  anti-suit

injunction and the Court itself had observed that a mini trial would be

required, and hence, the said ruling cannot be binding on the parties.

Learned  senior  counsel  would  submit  that  the  view  expressed  in

Enercon (India) Ltd. (supra) that the opinion of Justice Cooke, who

had simply followed the principles laid down in              C v. D (supra),

another  anti-suit  injunction  matter,  approvingly  quoted  by  the

Constitution Bench in BALCO is not correct and, therefore, conclusion

of Enercon (India) Ltd. (supra) to that extent is per incuriam.  For the

aforesaid purpose, he has commended us to Sundeep Kumar Bafna

v. State of Maharashtra and another18 and Fibre Boards Private

Limited, Bangalore v. Commissioner of Income Tax, Bangalore19.

38. In  Sundeep Kumar Bafna (supra),  the  Court  referred  to  the

18  (2014) 16 SCC 623 19  (2015) 10 SCC 333

29

Constitution Bench decision in Union of India v. Raghubir Singh20

and Chandra Prakash v. State of U.P.21 and thereafter expressed its

view thus:

“19.  It  cannot  be  overemphasised  that  the  discipline demanded  by  a  precedent  or  the  disqualification  or diminution  of  a  decision  on  the  application  of  the  per incuriam rule  is  of  great  importance,  since  without  it, certainty  of  law,  consistency  of  rulings  and  comity  of Courts  would  become  a  costly  casualty.  A  decision  or judgment can be  per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if  it  is  not  possible  to  reconcile  its  ratio  with  that  of  a previously pronounced judgment of  a Co-equal or  Larger Bench;  or  if  the  decision  of  a  High  Court  is  not  in consonance  with  the  views  of  this  Court.  It  must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the  ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court  are  cited at  the Bar.  We think that  the  inviolable recourse  is  to  apply  the  earliest  view as  the  succeeding ones would fall in the category of per incuriam.”

39. In  Fibre  Boards  Private  Limited,  Bangalore (supra),  the

two-Judge Bench referred to a passage from  G.P. Singh’s Principles of

Statutory Interpretation, 12th Edition and thereafter referred to the

principles stated in State of Orissa v. M.A. Tulloch and Co.22  and

Rayala Corporation (P) Ltd. v. Director of Enforcement23. In  the

said  case,  the  Court  followed the  principle  stated in M.A.  Tulloch

(supra) and not the one enunciated in  Rayala Corporation (P) Ltd.

(supra).   The submission of Mr. Chidambaram is that as the principle

20  (1989) 2 SCC 754 21  (2002) 4 SCC 234 22  (1964) 4 SCR 461 : AIR 1964 SC 1284 23  (1969) 2 SCC 412

30

laid down in  Shashoua has really not been approved in  BALCO and,

therefore, the view expressed in  Enercon (India) Ltd. to that extent

deserves to be treated as per incuriam.   

40. In this regard, we may usefully refer to the decision in   State of

U.P.  v.  Synthetics  and  Chemicals  Ltd.24,  wherein  a  two-Judge

Bench of this Court held that one particular conclusion of a Bench of

seven-Judges  in Synthetics  and  Chemicals  Ltd.  and  others  v.

State of U.P. and others  25 as per incuriam. The two-Judge Bench in

Synthetics and Chemicals Ltd. (supra) opined thus:

“36. The High Court, in our view, was clearly in error in striking down the impugned provision which undoubtedly falls within the legislative competence of the State, being referable to Entry 54 of List II. We are firmly of the view that the decision of this Court in Synthetics (supra) is not an authority for the proposition canvassed by the assessee in challenging the provision. This Court has not, and could not have, intended to say that        the Price Control Orders made  by  the  Central  Government  under  the  IDR  Act imposed a fetter on the legislative power of the State under Entry 54 of List II to levy taxes on the sale or purchase of goods. The reference to sales tax in paragraph 86 of that judgment was merely accidental or per incuriam and has, therefore, no effect on the impugned levy.”

41. Be it  noted, in  Vikas Yadav v. State of Uttar Pradesh and

others26 the  Court  has  taken  note  of  the  aforesaid  decisions  and

observed  that  it  was  not  inclined  to  enter  into  the  doctrine  of

precedents and the principle of  per incuriam in the said case. That

24  (1991) 4 SCC 139 25  (1990) 1 SCC 109 26  (2016) 9 SCC 541

31

observation was made in the context of the said case.  As far as the

present controversy is concerned, we shall proceed to deal with the

aspect whether principle stated in  Shashoua   which was based on

the principle laid down in      C v. D (supra) has really been accepted

by this Court.  If we arrive at an affirmative conclusion, the question of

per incuriam would not arise.  We may hasten to add that after such a

deliberation, we shall also deal with the clauses in the agreement and

scrutinize them whether the Courts in India will have jurisdiction or

not and also address to the other contentions raised by the parties.

42. As  stated  earlier,  in  Shashoua Cooke,  J.,  in  the  course  of

analysis, held that "London arbitration" is a well known phenomenon

which is often chosen by foreign nationals with a different law, such

as the law of New York, governing the substantive rights of the parties

and it is because of the legislative framework and supervisory powers

of the courts here which many parties are keen to adopt. The learned

Judge has further held that when there is an express designation of

the arbitration venue as London 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 London is the juridical seat and English

law the curial law.  

43. In  BALCO the Constitution Bench  referred to  Shashoua and

32

reproduced  certain  paragraphs  from  the  same.  To  appreciate  the

controversy from a proper perspective,  we have  already reproduced

paragraph 54 of the said judgment which has succinctly stated the

proposition.  

44. It has to be borne in mind that the larger Bench gave emphasis

on the aforesaid facts and further took note of the fact that the said

judgment had relied upon C v. D (supra). Thereafter, as is manifest,

the larger Bench has adverted to in detail  the judgment in  C v. D

(supra).  That  apart,  the  Court  has  referred  to  Union  of  India  v.

McDonnell  Douglas  Corpn.27 and  Naviera  Amazonica  Peruana

S.A.  v.  Compania  International  de  Seguros  del  Peru28 and

concluded thus:

“115.  Upon  consideration  of  the  entire  matter,  it  was observed  in  SulameRica  case29 that  -  “In  these circumstances it is clear to me that the law with which the agreement  to  arbitrate  has  its  closest  and  most  real connection is the law of the seat of arbitration, namely, the law of England”. (Para 14). It was thereafter concluded by the High Court that English Law is the proper law of the agreement to arbitrate. (Para 15)  

116. The legal position that emerges from a conspectus of all the decisions, seems to be, that the choice of another country  as  the  seat  of  arbitration  inevitably  imports  an acceptance  that  the  law  of  that  country  relating  to  the conduct and supervision of arbitrations will  apply to the proceedings.

117. It  would,  therefore,  follow  that  if  the  arbitration

27  (1993) 2 Lloyd’s Rep 48 28  (1988) 1 Lloyd’s Rep 116 (CA) 29  SulameRica CIA Nacional De Seguros SA v. Enesa Engenharia SA – Enesa, 2012 WL 14764 : 2012  EWHC 42 (Comm)

33

agreement is found or held to provide for a seat / place of arbitration  outside  India,  then  the  provision  that  the Arbitration  Act,  1996  would  govern  the  arbitration proceedings, would not make Part I of the Arbitration Act, 1996  applicable  or  enable  Indian  Courts  to  exercise supervisory jurisdiction over the arbitration or the award. It  would  only  mean  that  the  parties  have  contractually imported from the Arbitration Act, 1996, those provisions which  are  concerned  with  the  internal  conduct  of  their arbitration  and  which  are  not  inconsistent  with  the mandatory provisions of the English Procedural Law/Curial Law.  This  necessarily  follows  from  the  fact  that  Part  I applies  only  to  arbitrations  having  their  seat  /  place  in India.”

45. In Enercon (India) Ltd. (supra), the Court addressed to the issue

of “seat/place of arbitration” and “venue of arbitration” for the purpose

of  conferment  of  exclusive  jurisdiction  on  the  Court.  The  Court

appreciated  the  point  posing  the  question  whether  the  use  of  the

phrase “venue shall be in London” actually refers to designation of the

seat  of  arbitration  in  London.  The  Court  did  not  treat  London  as

seat/place of arbitration.  The Court referred to Naviera Amazonica

(supra), Alfred McAlpine (supra) and C v. D (supra) and then opined:

“123. The cases relied upon by Dr. Singhvi  relate to the phrase  “arbitration  in  London”  or  expressions  similar thereto. The same cannot be equated with the term “venue of arbitration proceedings shall be in London.” Arbitration in London can be understood to include venue as well as seat; but it would be rather stretching the imagination if “venue  of  arbitration  shall  be  in  London”  could  be understood as “seat of arbitration shall be London,” in the absence of  any other factor connecting the arbitration to London.  In  spite  of  Dr.  Singhvi’s  seemingly  attractive submission  to  convince  us,  we  decline  to  entertain  the notion that India would not be the natural forum for all

35

which read thus:

“In these circumstances it is clear to me that the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration, namely, the law of England”.”

48. In the said case, the High Court had concluded that the English

law is the appropriate law of the agreement to arbitrate.  This Court

did not accept the view of the High Court by holding thus:-

“141. This  conclusion  is  reiterated  in  para  46  in  the following words: (Enercon GmbH case, Bom LR p. 3472)

“46. The proposition that when a choice of a particular law is made, the said choice cannot be restricted to only a part of the Act or the substantive provision of that Act only. The choice is in respect of all the substantive and curial law provisions of the Act. The said proposition has been settled  by  judicial  pronouncements  in  the  recent past.”

142. Having said so, the learned Judge further observes as follows: (Enercon GmbH case, p. 3474, para 49)

“49. Though in terms of interpretation of Clause 18.3, this Court has reached a conclusion that the lex arbitri would be the Indian Arbitration Act. The question would be,  whether  the  Indian  courts  would  have  exclusive jurisdiction. The nexus between the ‘seat’ or the ‘place’ of arbitration vis-à-vis the procedural law i.e. the lex arbitri is well settled by the judicial pronouncements which have been referred to in the earlier part of this judgment. A useful  reference  could  also  be  made  to  the  learned authors Redfern and Hunter who have stated thus:

‘the place or  seat of the arbitration is not merely a matter of geography. It is the territorial link between the arbitration itself and the law of the place in which that arbitration is legally situated….’

The  choice  of  seat also  has  the  effect  of  conferring exclusive  jurisdiction to the courts wherein the  seat is situated.”                   (emphasis supplied)

Here the Bombay High Court accepts that the  seat carries

36

with it, usually, the notion of exercising jurisdiction of the courts where the seat is located.”

49. After so stating, the two-Judge Bench proceeded to state that the

conclusion of the High Court was contrary to the observations made in

Shashoua which  have  been  approvingly  quoted  by  this  Court  in

BALCO in para 110.   

50. We had earlier extracted extensively from the said judgment, as

we find, the Court after adverting to various aspects, has categorically

held that the High Court had not followed  Shashoua principle. The

various  decisions  referred  to  in  Enercon  (India)  Ltd. (supra),  the

analysis made and the propositions deduced leads to an indubitable

conclusion that  Shashoua  principle has been accepted by Enercon

(India)  Ltd. (supra).  It  is  also  to  be  noted  that  in  BALCO,  the

Constitution Bench has not merely reproduced few paragraphs from

Shashoua but  has  also  referred  to  other  decisions  on  which

Shashoua has placed reliance upon. As we notice, there is analysis of

earlier  judgments,  though  it  does  not  specifically  state  that

“propositions  laid  down  in  Shashoua are  accepted”.   On  a  clear

reading, the ratio of the decision in BALCO, in the ultimate eventuate,

reflects  that  the  Shashoua principle  has  been  accepted  and  the

two-Judge  Bench  in  Enercon (India)  Ltd. (supra),  after  succinctly

analyzing it,  has stated that the said principles have been accepted by

the  Constitution  Bench.  Therefore,  we  are  unable  to  accept  the

37

submission of                   Mr. Chidambaram that the finding recorded

in  Enercon (India) Ltd. (supra)  that  Shashoua principle has been

accepted in  BALCO should be declared as per incuriam.

51. At this juncture, we think it necessary to dwell upon the issue

whether  Shashoua principle  is  the  ratio  decidendi of  BALCO and

Enercon (India) Ltd. (supra) and we intend to do so for the sake of

completeness.  It is well settled in law that the ratio decidendi of each

case has to be correctly understood.  In Regional Manager v. Pawan

Kumar Dubey30, a three-Judge Bench ruled:

“7. … It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases  even when the  same principles  are  applied  in each case to similar facts.”

52. In Director of Settlements, A.P. and others v. M.R. Apparao

and another 31, another three-Judge Bench, dealing with the concept

whether a decision is “declared law”, observed:

“7. … But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading  of  a  judgment  as  a  whole,  in  the  light  of  the questions before the Court that forms the ratio and not any particular  word  or  sentence.  To  determine  whether  a decision has “declared law” it  cannot be said to be a law when  a  point  is  disposed  of  on  concession  and  what  is binding is the principle underlying a decision. A judgment of  the  Court  has  to  be  read  in  the  context  of  questions which  arose  for  consideration  in  the  case  in  which  the judgment was delivered. …”

30   (1976) 3 SCC 334 31   (2002) 4 SCC 638

38

53. In this context, a passage from Commissioner of Income Tax v.

Sun Engineering Works (P) Ltd.32 would be absolutely apt:

“39. … It is neither desirable nor permissible to pick out a word  or  a  sentence  from  the  judgment  of  this  Court, divorced  from  the  context  of  the  question  under consideration and treat it to be complete ‘law’ declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved  in  the  case  in  which  it  is  rendered  and  while applying  the  decision  to  a  later  case,  the  courts  must carefully try to ascertain the true principle laid down by the decision  of  this  Court  and  not  to  pick  out  words  or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. …”

54. In  this  context,  we  recapitulate  what  the  Court  had  said  in

Ambica Quarry Works v. State of Gujarat and others33:

“18. … The ratio of any decision must be understood in the background of the facts of that case. It has been said long time  ago  that  a  case  is  only  an  authority  for  what  it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathem34). …”  

55. From the aforesaid authorities, it is quite vivid that a ratio of a

judgment has the precedential value and it is obligatory on the part of

the Court to cogitate on the judgment regard being had to the facts

exposited therein and the context in which the questions had arisen

and  the  law  has  been  declared.   It  is  also  necessary  to  read  the

judgment in entirety and if any principle has been laid down, it has to

32   (1992) 4 SCC 363 33   (1987) 1 SCC 213 34   (1901) AC 495

39

be  considered  keeping  in  view  the  questions  that  arose  for

consideration in the case.  One is not expected to pick up a word or a

sentence from a judgment de hors from the context and understand

the ratio decidendi which has the precedential value.  That apart, the

Court before whom an authority is cited is required to consider what

has been decided therein but not what can be deduced by following a

syllogistic process.  

56. Tested  on  the  aforesaid  principle,  we  find  that  question  that

arose in BALCO and the discussion that has been made by the larger

Bench relating to  Shashoua and  C v. D (supra) are squarely in the

context of applicability of Part I or Part II of the Act.  It will not be

erroneous  to  say  that  the  Constitution  Bench  has  built  the

propositional pyramid on the basis or foundation of certain judgments

and  Shashoua and  C  v.  D (supra)   are  two  of  them.   It  will  be

inappropriate to say that in  Enercon (India) Ltd. (supra) the Court

has cryptically observed that observations made in  Shashoua have

been approvingly quoted by the Court in BALCO in para 110.   We are

inclined to think, as we are obliged to, that  Shashoua principle has

been accepted in  BALCO as well as  Enercon (India) Ltd. (supra) on

proper ratiocination and, therefore, the submission advanced on this

score by Mr. Chidambaram, learned senior counsel for the respondent,

is repelled.

40

57. It is submitted by the learned senior counsel for the respondent

that  even  if  the  Shashoua principle  is  applicable,  it  arises  from

interim orders and  Cooke, J. has himself observed that a mini trial

would be necessary, therefore, the view expressed in an interim order

and reasons assigned therefor are only tentative and cannot be treated

as the ratio decidendi.  For sustaining the said proposition, inspiration

has  been drawn from the  authority  in  State  of  Assam v.  Barak

Upatyaka  D.U.  Karmachari  Sanstha35. According  to  the  learned

senior  counsel,  in  such  a  situation  the  judgment  cannot  bind  the

parties.   

58. First  we  shall  deal  with  principle  laid  down  in  the  aforesaid

authority.  In  the  said  case,  the  Court  was  dealing  with  the

precedential  value of  the authorities in  Kapila Hingorani (I)36 and

Kapila  Hingorani  (II)37.  In  that  context,  the  Court  said  that  a

precedent is a judicial decision containing a principle, which forms an

authoritative element termed as  ratio decidendi and an interim order

which does not finally and conclusively decide an issue cannot be a

precedent. It further observed that any reasons assigned in support of

such                 non-final interim order containing prima facie findings,

are only tentative and any interim directions issued on the basis of

such prima facie findings are temporary arrangements to preserve the

35  (2009) 5 SCC 694 36  Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 37  Kapila Hingorani v. State of Bihar, (2005) 2 SCC 262

41

status quo till the matter is finally decided, to ensure that the matter

does not become either infructuous or a fait accompli before the final

hearing.  Dealing with the decisions in Kapila Hingorani (II) (supra),

the Court opined that  the observations and directions in said case

were interim in nature based on tentative reasons, restricted to the

peculiar  facts  of  that  case  involving  an  extraordinary  situation  of

human rights violation resulting in starvation deaths and suicides by

reason of non-payment of salaries to the employees of a large number

of  public  sector  undertakings  for  several  years,  have  no  value  as

precedents.  The Court further ruled that the interim directions were

also clearly in exercise of extraordinary power under Article 142 of the

Constitution and, therefore, it was not possible to read such tentative

reasons, as final conclusions.

59. Thus, the analysis made in the said case, the two-Judge Bench

has  opined  that  a  precedent  is  a  judicial  decision  containing  a

principle  which  forms  an  authoritative  element  termed  as  ratio

decidendi and any reasons assigned in support of such interim order

containing prima facie findings are only tentative. There cannot be any

quarrel over the aforesaid proposition of law. However, the controversy

involved  in  this  case  has  its  distinctive  characteristics.   The

Commercial  Court  in  London,  interpreting  the  same  agreement

adverted to earlier judgments (may be in anti-suit injunction) and held

that in such a situation the Courts in London will have jurisdiction.

42

The  analysis  made  therein,  as  has  been  stated  earlier,  has  been

appreciated  in  BALCO and  Enercon  (India)  Ltd. (supra)  and  this

Court has approved the principle set forth in the said case. Once this

Court has accepted the principle, the principle governs as it holds the

field and it becomes a binding precedent.  To explicate, what has been

stated in Shashoua as regards the determination of seat/place on one

hand and venue on the other having been accepted by this Court, the

conclusion in Shashoua cannot be avoided by the parties.  It will be

an  anathema  to  law  to  conceive  a  situation  where  this  Court  is

obligated to accept that the decisions in BALCO and Enercon (India)

Ltd. (supra)  which  approve  Shashoua principle  are  binding

precedents, yet with some innate sense of creativity will dwell upon

and pronounce, as canvassed by the learned senior counsel for the

respondent,  that  inter-party  dispute  arose  in  the  context  of  an

anti-suit  injunction  and,  therefore,  the  same  having  not  attained

finality,  would  not  bind  the  parties.   This  will  give  rise  to  a  total

incompatible  situation  and  certainly  lead  to  violation  of  judicial

discipline.  We cannot conceive it to be permissible. Therefore, without

any hesitation, we reject the said submission.

60. The other ground of attack is that the appellants had themselves

approached the courts in India and, therefore, by their own conduct

applicability of  Part I  has been accepted by the appellants and the

right to raise the issue of jurisdiction has been waived.

43

61. Mr. Dwivedi, learned senior counsel appearing for the appellants

submits that mere filing of an application under Section 34 of the Act

will  not  clothe  the  court  with  the  jurisdiction  which  it  does  not

inherently have.  It is his further submission that it is settled principle

of law that consent cannot confer jurisdiction. He has commended us

to  the  authorities  in  Videocon  Industries  Ltd. (supra),  Kanwar

Singh Saini v. High Court of Delhi38,  Jagmittar Sain Bhagat v.

Director,  Health  Services,  Haryana,39,  Zuari  Cement  Ltd.  v.

Regional Director, Employees’ State Insurance Corporation40 and

United  Commercial  Bank  Ltd.  v.  Workmen41.  We  have  already

reproduced paragraph 33 from the Videocon Industries Ltd. (supra)

in a different context.  

62. In Kanwar Singh Saini  (supra), this Court has laid down that

conferment of jurisdiction is a legislative function and it can neither be

conferred with the consent of the parties nor by a superior court, and

if the court passes an order/or a decree having no jurisdiction over the

matter, it would amount to a nullity as the matter goes to the root of

the cause.   For the said purpose the  two-Judge Bench has placed

reliance  upon  United  Commercial  Bank  Ltd.  (supra),  State  of

Gujarat  v.  Rajesh  Kumar  Chimanlal  Barot42,  Kesar  Singh v.

38   (2012) 4 SCC 307 39   (2013) 10 SCC 136 40   (2015) 7 SCC 690 41   AIR 1951 SC 230 42   (1996) 5 SCC 477

44

Sadhu43, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar44 and

Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd.45

63. In Zuari Cement Ltd.  (supra), the Court ruled that though the

petitioner and the Corporation therein have subjected themselves to

the ESI Court, the same could not confer jurisdiction upon the ESI

Court to determine the question of exemption from the operation of

the Act, for by consent, the parties cannot agree to vest jurisdiction in

a court to try the dispute which the court does not possess.   

64. In view of the aforesaid, there cannot be any trace of doubt that

any filing of an application by the appellant in the courts in India can

clothe such courts with jurisdiction unless the law vests the same in

them.    

65. Though  we  have  opined  that  Shashoua principle  has  been

accepted in BALCO and Enercon (India) Ltd. (supra), yet we think it

apt to refer to the clauses in the agreement and scrutinize whether

there  is  any  scope  to  hold  that  the  courts  in  India  could  have

entertained the  petition.   Clause 14 of  the  shareholders agreement

(SHA) refers to arbitration.  The said clause reads thus:

“14. ARBITRATION

14.1 …. 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

43   (1996) 7 SCC 711 44   (1999) 3 SCC 722 45   (2000) 6 SCC 650

45

proceedings  shall  be  in  accordance  with  the  Rules  of Conciliation and Arbitration of the International Chamber of Commerce Paris.  

14.2 Proceedings in such arbitrations shall be conducted in the English language.  

14.3 The  arbitration  award  shall  be  substantiated  in writing and shall be final and binding on the parties.  

14.4 The venue of the arbitration shall be London, United Kingdom.”

66. Clause 17.6 deals with governing law, which reads as follows:

“17.6 GOVERNING LAW

This  Agreement  shall  be  governed  by  and  construed  in accordance with the laws of India.”  

67. It is submitted by Mr. Dwivedi, learned senior counsel appearing

for the appellants that the nature of  the language employed in the

aforesaid clauses clearly lay the postulate that the arbitration shall be

carried only in London and the seat of arbitration shall be in London.

Apart from relying upon the decision in Enercon (India) Ltd. (supra)

for  the  said  purpose,  he  has  copiously  referred  to  the  Rules  of

Conciliation  and  Arbitration  of  the  International  Chambers  of

Commerce.   Per  contra,  Mr.  Chidambaram would  submit  that  the

arbitration agreement clearly lays down with regard to the venue and

as has been held by this Court, venue cannot be equated with the

seat/place of arbitration.  As we perceive, the clause relating to the

arbitration  stipulates  that  the  arbitral  proceedings  shall  be  in

46

accordance with the ICC Rules.  There is a clause in the SHA that the

governing law of SHA would be laws of India.  The aforesaid agreement

has already been interpreted by the English Courts to mean that the

parties have not simply provided for the location of hearing to be in

London.  

68. It is worthy to note that the arbitration agreement is not silent as

to what law and procedure is to be followed.  On the contrary, Clause

14.1 lays down that the arbitration proceedings shall be in accordance

with the Rules of Conciliation and Arbitration of the ICC.   In Enercon

(India) Ltd. (supra), the two-Judge Bench referring to Shashoua case

accepted the view of  Cooke, J. that the phrase “venue of arbitration

shall  be  in  London,  UK”  was accompanied by the  provision in the

arbitration clause or arbitration to be conducted in accordance with

the Rules of ICC in Paris.  The two-Judge Bench accepted the Rules of

ICC, Paris which is supernational body of Rules as has been noted by

Cooke, J. and that is how it has accepted that the parties have not

simply  provided  for  the  location  of  hearings  to  be  in  London.   To

elaborate,  the distinction between the venue and the seat remains.

But when a Court finds there is prescription for venue and something

else, it has to be adjudged on the facts of each case to determine the

juridical seat.  As in the instant case, the agreement in question has

been interpreted and it has been held that London is not mentioned as

the mere location but the courts in London will have the jurisdiction,

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another interpretative perception as projected by the learned senior

counsel is unacceptable.   

69. Another aspect that was highlighted before us and with immense

force  and  enthusiasm  requires  to  be  adverted  to.   It  has  been

submitted that the arbitration agreement has the closest and most

real connection with India and hence, the Courts in India would have

the jurisdiction as per the principle laid down in  Singer Company

(supra). In the said case, it has been expressed thus:

“16. Where the parties have not expressly or impliedly selected the  proper law, the courts impute an intention by applying the objective  test to determine what the parties would have as just and reasonable  persons intended as regards the applicable law had they applied their  minds to the question.46 The Judge has to determine the proper law for the parties in such circumstances by putting himself in the place of a  “reasonable man”. He has to determine the intention of the parties by  asking himself how a just and reasonable person would have regarded the problem”, The Assunzione47; Mount Albert Borough Council v.  Australasian Temperance and General Mutual Life Assurance Society  Ltd.48

17.  For  this  purpose  the  place  where  the  contract  was made,  the  form and object  of  the  contract,  the  place  of performance,  the  place  of  residence  or  business  of  the parties,  reference  to  the  courts  having  jurisdiction  and such other links are examined by the courts to determine the system of law with which the transaction has its closest and most real connection.”

And again:

46

47

48

48

“44. It is important to recall that in the instant case the parties have expressly stated that  the laws applicable to the contract would be the laws in force in India and that the courts of Delhi would have exclusive jurisdiction “in all matters  arising  under  this  contract”.  They  have  further stated that the “contract shall in all respects be construed and governed according to Indian laws”. These words are wide  enough  to  engulf  every  question  arising  under  the contract  including  the  disputes  between the  parties  and the mode of settlement. It was in Delhi that the agreement was executed. The form of the agreement is closely related to the system of law in India. Various Indian enactments are specifically mentioned in the agreement as applicable to it  in  many respects.  The contract  is  to  be  performed in India with the aid of Indian workmen whose conditions of service are regulated by Indian laws. One of the parties to the contract is a public sector undertaking. The contract has in every respect the closest and most real connection with the Indian system of law and it is by that law that the parties have expressly evinced their intention to be bound in all respects. The arbitration agreement is contained in one of the clauses of the contract, and not in a separate agreement.  In  the  absence  of  any  indication  to  the contrary,  the  governing  law  of  the  contract  (i.e.,  in  the words of Dicey, the proper law of the contract) being Indian law, it is that system of law which must necessarily govern matters  concerning  arbitration,  although  in  certain respects the law of the place of arbitration may have its relevance in regard to procedural matters.”

70. It is apposite to note that the said decision has been discussed at

length  in  Union of  India v.  Reliance  Industries  Limited49.   The

Court, in fact, reproduced the arbitration clause in Singer Company

(supra) and referred to the analysis made in the judgment and noted

that  notwithstanding  the  award,  it  was  a  foreign  award,  since  the

substantive law of the contract was Indian law and the arbitration law

was part of the contract, the arbitration clause would be governed by

49

49

Indian  law  and  not  by  the  Rules  of  International  Chambers  of

Commerce.  On that basis the Court held in Singer Company (supra)

that the mere fact that the venue chosen by the ICC Court or conduct

of  the  arbitration  proceeding  was  London,  does  not  exclude  the

operation of the Act which dealt with the domestic awards under the

1940 Act.  The two-Judge Bench in  Reliance Industries Limited49

quoted para 53 of Singer Company (supra) and thereafter opined:  

“13. It can be seen that this Court in  Singer case did not give effect to the difference between the substantive law of the  contract  and  the  law  that  governed  the  arbitration. Therefore,  since  a  construction  of  Section  9(b)  of  the Foreign Awards Act led to the aforesaid situation and led to the doctrine of concurrent jurisdiction, the 1996 Act, while enacting Section 9(a) of the repealed Foreign Awards Act, 1961, in Section 51 thereof,  was careful enough to omit Section 9(b) of the 1961 Act which, as stated hereinabove, excluded  the  Foreign  Awards  Act  from  applying  to  any award made on arbitration agreements governed by the law of India.

14.  This  being  the  case,  the  theory  of  concurrent jurisdiction was expressly given a go-by with the dropping of Section 9(b)  of the Foreign Awards Act, while enacting Part II of the Arbitration Act, 1996, which repealed all the three earlier laws and put the law of arbitration into one statute, albeit in four different parts.”

71. We respectfully concur with the said view, for there is no reason

to differ.  Apart from that, we have already held that the agreement in

question  having  been  interpreted  in  a  particular  manner  by  the

English courts and the said interpretation having gained acceptation

by this Court, the inescapable conclusion is that the courts in India

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have no jurisdiction.

72. In view of the aforesaid analysis, we allow the appeals and set

aside  the  judgment  of  the  High Court  of  Delhi  that  has  held  that

courts  in  India  have  jurisdiction,  and  has  also  determined  that

Guatam  Budh  Nagar  has  no  jurisdiction  and  the  petition  under

Section 34 has to be  filed before  the  Delhi  High Court.   Once the

courts in India have no jurisdiction, the aforesaid conclusions are to

be nullified and we so do.  In the facts and circumstances of the case,

there shall be no order as to costs.  

.............................J. [Dipak Misra]

...........................J. [R. Banumathi]

New Delhi July 04, 2017

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ITEM NO.1501            COURT NO.2             SECTION XIV                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).  2841-2843/2017

ROGER SHASHOUA & ORS.                              Appellant(s)

                               VERSUS

MUKESH SHARMA & ORS.                               Respondent(s)

Date : 04-07-2017 These appeals were called on for judgment today.

For Appellant(s)   Ms. Mukti Chowdhary, AOR                        For Respondent(s) Ms. Sneha Kalita, AOR                      

Hon'ble Mr. Justice Dipak Misra pronounced the judgment of the Bench  consisting  of  His  Lordship  and  Hon'ble  Mrs.  Justice  R. Banumathi.

The  appeals  are  allowed  in  terms  of  the  signed  reportable judgment.  In the facts and circumstances of the case, there shall be no order as to costs.

(Gulshan Kumar Arora)                          (H.S. Parasher)     Court Master     Court Master

(Signed reportable judgment is placed on the file)