ANTRIX CORP. LTD.versusDEVAS MULTIMEDIA P. LTD.

                    [2013] 6 S.C.R. 453


                     ANTRIX CORP. LTD.                           A
                                v.
               DEVAS MULTIMEDIA P. LTD.
            (Arbitration Petition No. 20 of 2011)
                        MAY 10, 2013
                                                                 B
               [ALTAMAS KABIR, CJI AND
              SURINDER SINGH NIJJAR, J.]

      Arbitration and Conciliation Act, 1996 - s.11, 13 & 34 -
Party to a dispute invoking the jurisdiction of the International C
Chamber of Commerce (ICC) and appointment of arbitrator
pursuant thereto - Entitlement of the other party to proceed
in terms of s. 11 (6) in such a situation - Held: Where in terms
of the agreement, the arbitration clause has already been
invoked by one of the parties thereto under the ICC Rules, D
the provisions of s. 11 (6) cannot be invoked again, and, in
case the other party is dissatisfied or aggrieved by the
appointment of an Arbitrator in terms of the Agreement, his/
its remedy would be by way of a petition uls. 13, and, thereafter,
u/s.34 - On facts, in view of the language of the Arbitration E
Agreement which provided that the arbitration proceedings
would be held in accordance with the rules and procedures
of the International Chamber of Commerce or UNC/TRAL, the
respondent was entitled to invoke the Rules of Arbitration of
the ICC for the conduct of the- arbitration proceedings - Once Ii'
the provisions of the ICC Rules of Arbitration had been
invoked by respondent, the proceedings initiated thereunder
could not be interfered with in a proceeding u/s. 11 - Invocation
of the ICC Rules would be subject to challenge in appropriate
proceedings but not by way of an application u/s. 11 (6) -
Arbitration Petition uls. 11 (6) for appointment of Arbitrator, G
therefore, rejected, but this will not prevent the Petitioner from
 taking recourse to other provisions of the Act for appropriate
 relief - International Chamber of Commerce (ICC) Rules.
                             453                                 H
    454      SUPREME COURT REPORTS             (2013] 6 S.C.R.


A         The question which arose for consideration in the
    pn~sent arbitration petition was whether when one of the
  parties to a dispute has invoked the jurisdiction of the
  International Chamber of Commerce (ICC) and pursuant
  thereto an Arbitrator has already been appointed, the
B other party would be entitled to proceed in terms of
  Section 11 (6) of the Arbitration and Conciliation Act, 1996.

          Dismissing the petition, the Court

       HELD: 1. Section 11 of the Arbitration and
C Conciliation Act, 1996 is very clear as to the
  circumstances in which parties to a dispute, and
  governed by an Arbitration Agreement, may apply for the
  !IPPOintment of an Arbitrator by the Chief Justice of the
  High Court or the Supreme Court. As is evident from the
D relevant provisions of Section 11 of the Act, when any of
  the parties to an Arbitration Agreement fails to act in
  terms thereof, on the application of the other party, the
  Chief Justice of the High Courts and the Supreme Court,
  in different situations, may appoint an Arbitrator.. [Paras
E 27, 28] [469-D; 471-B, CJ

      2.1. In the instant case, the respondent-Devas,
  without responding to the Petitioner's letter written in
  terms of Article 20 of the Arbitration Agreement entered
  into between the parties, unilaterally addressed a
F Request for Arbitration to the ICC International Court of
  Arbitration for resolution of the disputes arising under the
  Agreement and also appointed its nominee Arbitrator. On
  the other hand, the Petitioner appointed its nominee
  Arbitrator with the caveat that the arbitration would be
G governed by the 1996 Act and called upon Devas to
  appoint its nominee Arbitrator under the said provisions.
  As Devas did not respond to the Petitioner's letter dated
  30th July, 2011, the Petitioner filed the application under
  Section 11(6) of the 1996 Act. [Para 29] [471-D-E]
H
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 455


      2.2. Once the Arbitration Agreement had been            A
invoked by respondent-Devas and a nominee Arbitrator
had also been appointed by it, the Arbitration Agreement
could not have been invoked for a second time by the
Petitioner, which was fully aware of the appointment
made by the Respondent. It would lead to an anomalous         B
state of affairs if the appointment of an Arbitrator once
made, could be questioned in a subsequent proceeding
initiated by the other party also for the appointment of an
Arbitrator. While the Petitioner was certainly entitled to
challenge the appointment of the Arbitrator at the instance   c
of Devas, it could not do so by way of an independent
proceeding under Section 11(6) of the 1996 Act. While
power has been vested in the Chief Justice to appoint an
Arbitrator under Section 11 (6) of the 1996 Act, such
appointment can be questioned under Section 13 thereof.       D
In a proceeding under Section 11 of the 1996 Act, the
Chief Justice cannot replace one Arbitrator already
appointed in exercise of the Arbitration Agreement. [Para
31] [472-8-E]
     2.3. Sub-Section (6) of Section 11 of the 1996 Act, E
quite categorically provides that where the parties fail to
act in terms of a procedure agreed upon by them, the
provisions of Sub-Section (6) may be invoked by any of
the parties. Where in terms of the Agreement, the
arbitration clause has already been invoked by one of the F
parties thereto under the l.C.C. Rules, the provisions of
Sub-section (6) cannot be invoked again, and, in case the
other party is dissatisfied or aggrieved by the
appointment of an Arbitrator in terms of the Agreement,
his/its remedy would be by way of a petition under G
Section 13, and, thereafter, under Section 34 of the 1996
Act. [Para 32] [473-A-C]
    2.4. The law is well settled that where an Arbitrator
had already been appointed and intimation thereof had
been conveyed to the other party, a separate application      H
    456     SUPREME COURT REPORTS               [2013] 6 S.C.R.


A for appointment of an Arbitrator is not maintainable. Once
  the power has been exercised under the Arbitration
  Agreement, there is no power left to, once again, refer the
  same disputes to arbitration under Section 11 of the 1996
  Act, unless the order closing the proceedings is
B $Ubsequently set aside. When the Arbitral Tribunal is
  •lready seized of the disputes between the parties to the
  Arbitration Agreement, constitution of another Arbitral
  Tribunal in respect of those same issues which are
  already pending before the Arbitral Tribunal for
c adjudication, would be without jurisdiction. [Para 33] [473-
  D-F]

         2.5. In view of the language of Article 20 of the
    Arbitration Agreement which provided that the arbitration
    proceedings would be held in accordance with the rules
D   and procedures of the International Chamber of
    Commerce or UNCITRAL, Devas was entitled to invoke
    the Rules of Arbitration of the ICC for the conduct of the
    arbitration proceedings. Article 19 of the Agreement
    provided that the rights and responsibilities of the parties
E   thereunder would be subject to and construed in
    accordance with the laws of India. There is, therefore, a
    clear distinction between the law which was to operate
    as the governing law of the Agreement and the law which
    was to govern the arbitration proceedings. Once the
F   provisions of the ICC Rules of Arbitration had been
    invoked by Devas, the proceedings initiated thereunder
    could not be interfered with in a proceeding under
    Section 11 of the 1996 Act. The invocation of the ICC
    Rules would, of course, be subject to challenge in
G   appropriate proceedings but not by way of an application
    under Section 11(6) of the 1996 Act. Where the parties
    had agreed that the procedure for the arbitration would
    be governed by the ICC Rules, the same would
    necessarily include the appointment of an Arbitral
H   Tribunal in terms of the Arbitration Agreement and the
  ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 457


 said Rules. Arbitration Petition No.20 of 2011 under              A
 Section 11(6) of the 1996 Act for the appointment of an
 Arbitrator must, therefore, fail and is rejected, but this will
 not prevent the Petitioner from taking recourse to other
 provisions of the aforesaid Act for appropriate relief.
 [Para 34] [473-G-H; 474-A-D]                                      B

    Som Datt Builders Pvt. Ltd. vs. State of Punjab 2006 (3)
 RAJ 144 (P&H) - approved.

       Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. & Ors.
  (1998) 1 SCC 305: 1997 (6) Suppl. SCR 186; National              C
  Thermal Power Corporation vs. Singer Company (1992) 3
. SCC 551: 1992 (3) SCR 106; SBP & Co. vs. Patel
  Engineering Ltd. & Anr. (2005) 8 SCC 618: 2005 (4) Suppl.
  SCR 688; Gas Authority of India Ltd. vs. Keti Construction (/)
  Ltd. & Ors. (2007) 5 SCC 38: 2007 (6) SCR 439; Sudarsan          D
  Trading Co. vs. Government of Kera/a & Anr. (1989) 2 SCC
  38: 1989 (1) SCR 665; McDermott lntematiorial Inc. vs. Bum
  Standard Co. Ltd. & Ors. (2006)11 SCC 181: 2006 (2) Suppl.
  SCR 409; Gesellschaft Fur Biotechnologische Forschun
  GMBH vs. Kopran Laboratories Ltd. & Anr. (2004) 13 SCC           E
  630 - referred to.
                      Case Law Reference:
      1997 (6) Suppl. SCR 186       referred to      Para 13
      1992 (3) SCR 106              referred to
                                                                   F
                                                     Para 15
      2005 (4) Suppl. SCR 688       referred to      Para 16
      2007 (6) SCR 439              referred to      Para 21
      1989 (1) SCR 665              referred to      Para 22       G
      2006 (2) Suppl. SCR 409       referred to      Para 22
      (2004) 13 sec 630             referred to      Para 31
      2006 (3) RAJ 144 (P&H)        approved         Para 33       H
    458      SUPREME COURT REPORTS               [2013] 6 S.C.R.


A       ORIGINAL JURISDICTION: Arbitration Petition No. 20 of
    2011

         R.F. Nariman, S.G.I., Bindu Saxena, Shailendra Swarup,
    Ritin Rai, Aparajita Swarup, K.k. Patra, Neha Khattar for the
    Petitioner.
8
       Ciccu Mukhopadhya, Manu Nair, Omar Ahmad, Sanjay
    Kumar, Anish Maheshwari for the Respondent.

          The Judgment of the Court was delivered by
c      ALTAMAS KABIR, CJI. 1. An application under Section
  11 (4) read with Section 11(10) of the Arbitration and
  Conciliation Act, 1996, hereinafter referred to as "the 1996
  Act", has given rise to an important question of law relating to
  Vie scope and ambit of the powers of the Chief Justice under
D Section 11 (6) of the said Act. In view of the importance of the
  question, which has arisen, the matter which was being heard
  by the delegatee of the Chief Justice, has been referred to a
  larger Bench for determination thereof.

E      2. Mis. Antrix Corporation Limited, the Petitioner herein,
  a Government Company incorporated under the Companies
  Act, 1956, and engaged in the marketing and sale of products
  and services of the Indian Space Research Organization
  (ISRO), entered into an Agreement with the Respondent, Devas
F Multimedia P. Ltd., hereinafter referred to as "Devas" on 28th
  January, 2005, for the lease of Space Segment Capacity on
  ISRO/ Antrix S-Band Spacecraft. Article 19 of the Agreement
  empowered the Petitioner to terminate the Agreement in
  certain contingencies. It also provided that the Agreement and
G the rights and responsibilities of the parties thereunder would
  be subject to and construed in accordance with the laws of
  India. In other words, the domestic law would be the governing
  law of the Agreement.

          3. Article 20 of the Agreement deals specially with
H
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 459
            [ALTAMAS KABIR, CJI.]
arbitration and provides that in the event any dispute or             A
difference arises between the parties as to any clause or
provision of the Agreement, or as to the interpretation thereof,
or as to any account or valuation, or as to rights and liabilities,
acts, omissions of any party, such disputes would be referred
to the senior management of both the parties to resolve the           B
same within 3 weeks, failing which the matter would be referred
to an Arbitral Tribunal comprising of three Arbitrators. It was
provided that the seat of arbitration would be New Delhi in India.
It was also provided that the arbitration proceedings would be
held in accordance with the rules and procedures of the               c
International Chamber of Commerce (ICC) or UNCITRAL.

     4. On 25th February, 2011, the Petitioner Company
terminated the Agreement with immediate effect in terms of
Article 7(c) read with Article 11 (b) of the Agreement in keeping
with the directives of the Government, which it was bound to          D
follow under Article 103 of its Articles of Association. By its
letter dated 28th February, 2011, the Respondent objected to
the termination. On 15th April, 2011, the Petitioner Company
sent to the Respondent Company a cheque for Rs. 58.37
crores refunding the Upfront Capacity Reservation Fee received        E
from Devas. The said cheque was, however, returned by Devas
on 18th April, 2011, insisting that the Agreement was still
subsisting.

     5. In keeping with the provisions of Article 20 of the           F
Arbitration Agreement, the Petitioner wrote to the Respondent
Company on 15th June, 2011, nominating its senior
management to discuss the matter and to try and resolve the
dispute between the parties. However, without exhausting the
mediation process, as contemplated under Article 20(a) of the         G
Agreement, Devas unilaterally and without prior notice to the
Petitioner, addressed a Request for Arbitration to the ICC
International Court of Arbitration on 29th June, 2011, seeking
resolution of the dispute arising under the Agreement. Through
the unilateral Request for Arbitration, Devas sought the
                                                                      H
    460      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A constitution of an Arbitral Tribunal in accordance with the ICC
  Rules of Arbitration, hereinafter referred to as "the ICC Rules",
  and nominated one Mr. V.V. Veedar, Queen's Counsel, as its
  nominee Arbitrator, in accordar ·e with the ICC Rules.

         6. According to the Petitioner, it is only on 5th July, 2011,
8
    that it came to learn that Devas had approached the ICC and
    had nominated Mr. V.V. Veedar, as its nominee Arbitrator,
    upon receipt of a copy of the Respondent's Request for
    Arbitration forwarded by the ICC. By the said letter, the
    Petitioner was also invited to nominate its nominee Arbitrator.
c
        7. Instead of nominating its Arbitrator, the Petitioner, by its
  letter dated 11th July, 2011, once again requested Devas to
  convene the Senior Management Team meet on 27th July,
  2011, in terms of the Agreement. Pursuant to such request, a
D meeting of the Senior Management Team was held, but Devas
  insisted that the parties should proceed to arbitration and did
  not discuss the issues in accordance with Article 20(a} of the
  Agreement. Despite the attempt to resolve the dispute through
  the Senior Management Team and despite the fact that Devas
E had already invoked the Arbitration Agreement by making a
  Request for Arbitration to the ICC and had also appointed its
  nominee Arbitrator under the ICC Rules, the Petitioner
  appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator and
  called upon Devas to appoint its nominee Arbitrator within 30
p days of receipt of the notice. Consequently, while Devas had
  invoked the jurisdiction of the ICC on 29th June, 2011, the
  Petitioner subsequently invoked the Arbitration Agreement in
  accordance with the UNCITRAL Rules on the ground that Devas
  had invoked ICC Rules unilaterally, without allowing the
G Petitioner to exercise its choice. Having invoked the Arbitration
  Agreement under the UNCITRAL Rules, the Petitioner called
  upon the Respondent to appoint its Arbitrator within 30 days
  of receipt of the notice.

      8. On 5th August, 2011, the Petitioner wrote to the
H Secretariat of the ICC Court stating that it had appointed its
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 461
            [ALTAMAS KABIR, CJI.]
Arbitrator, in accordance with the Agreement between the              A
parties, asserting that in view of Article 20 of the Agreement,
the arbitral proceedings would be governed by the Indian law,
viz., the Arbitration and Conciliation Act, 1996.

     9. The Respondent did not reply to the Petitioner's letter       8
dated 30th July, 2011. However, the International Chamber of
Commerce, by its letter dated 3rd August, 2011, responded to
the Petitioner's letter dated 30th July, 2011, and indicated as
follows:

           "We refer to our letter dated 18 July, 2011, and           C
    remind the parties that the issues raised regarding the
    arbitration clause would shortly be submitted to the Court
    for consideration. All comments submitted by the parties
    will be brought to the Court's attention. In this regard, any
    final comments from the parties may be submitted to us            D
    by 5 August, 2011.



            Should the Court decide that this arbitration shall
     proceed pursuant to Article 6(2) of the Rules, any decision      E
     as to the jurisdiction of the Arbitral Tribunal shall be taken
     by the Arbitral Tribunal itself."

       10. It is in such circumstances that the application under
 Section 11(4) read with Section 11(10) of the 1996 Act, being        F
 Arbitration Petition No. 20 of 2011, came to be filed by the
 Petitioner, inter a/ia, for a direction upon Devas to nominate
its Arbitrator in accordance with the Agreement dated 28th
January, 2005, and the UNCITRAL Rules, to adjudicate upon
the disputes, which had arisen between the parties and to             G
constitute the Arbitral Tribunal and to proceed with the
Arbitration.

     11. The said application came to be listed before one of
us, Surinder Singh Nijjar, J., the Designate of the Chief Justice,
who was of the view that the questions involved in the                H
    462          SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A application were required to be heard by a larger Bench. The
  parrties were requested to propose the questions of law to be
  considered by the Larger Bench and the same are as follows:

          "i)     Where the arbitration clause contemplates the
B                 application of either ICC Rules or UNCITRAL Rules
                  after the constitution of the Tribunal, could a party
                  unilaterally proceed to invoke ICC to constitute the
                  Tribunal and proceed thereafter?

          ii)     Whether the judgment of this Hon'ble Court in TOM
c                 Infrastructure v. UE Development reported in (2008)
                  14 sec 271 lays down the correct law with
                  reference to the definition of International
                  Commercial Arbitration?

D         iii)    Whether the jurisdiction of the Court under Section
                  11 extends to declaring as invalid the constitution
                  of an arbitral tribunal purportedly under an
                  arbitration agreement, especi-ally, where the
                  tribunal has been constituted by an Institution
                  purportedly acting under the Arbitration agreement?
E
          iv)     Whether the jurisdiction of an arbitral tribunal
                  constituted by an institution purportedly acting under
                  an arbitration agreement can be assailed only
                  before the Tribunal and in proceedings arising from
F                 the decision or award of such Tribunal and not
                  before the Court under Section 11 of the Act?

          v)      Whether, once an arbitral tribunal has been
                  constituted, the Court has jurisdiction under Section
                  11 of the Act to interfere and constitute another
                  Tribunal?

          vi)     Whether an arbitration between two Indian
                  companies could be an international commercial
                  arbi-tration within the meaning of Section 2(1 )(f) of
H                 the Act if the management and control of one of the
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 463
            [ALTAMAS KABiR, CJI.]
              said companies is exercised in any country other         A
              than India?

     vii)     Whether the petition is maintainable in light of the
              reliefs claimed and whether the conditions
              precedent for the exercise of jurisdiction under
                                                                       8
              Section 11 of the Act are satisfied or not?"

     12. While the matter was pending, most of the seven
questions raised were resolved. However, the most important
issue as to whether Section 11 of the 1996 Act could be
invoked when the ICC Rules had already been invoked by one             C
of the parties, remains to be decided.

    13. On behalf of the Petitioner, reliance was sought to be
placed on the decision of this Court in Sumitomo Heavy
Industries Ltd. Vs. ONGC Ltd. & Ors. [(1998) 1 SCC 305],               D
wherein different laws that could apply to an arbitral relationship
had been explained, namely :

      (i)     The proper law of the underlying contract is the law
              governing the contract which creates the
              substantive rights and obligations of the parties with   E
              regard to the contract.

      (ii)    The proper law of the arbitration agreement is the
              law governing the rights and obligations of the
              parties arising from the arbitration agreement.          F
      (iii)   The proper law of the reference is the law governing
              the contract which regulates the individual reference
              to arbitration.

      (iv)    The curial law is the law governing the arbitration      G
              proceedings and the manner in which the reference
              has to be conducted. It governs the procedural
              powers and duties of the arbitrators, questions of
              evidence and the determination of the proper law
              of the contract.                                         H
    464     SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A       14. It was submitted that in the instant case, the proper law
  of the contract is the Indian law and the proper law of the
  Ar:bitration Agreement is the Arbitration and Conciliation Act,
  1996. Accordingly, matters relating to the constitution of the
  Arbitral Tribunal would be governed by Sections 10 to 15 of the
B 1996 Act. It was pointed out by learned counsel that the parties
  had agreed that the ar:bitration proceedings could be conducted
  either in accordance with the rules and procedures of the ICC
  Qr UNCITRAL. The choice of the procedure to be adopted by
  the Arbitral Tribunal in conducting the arbitration was left to the
c determination of the parties under Section 19(2} of the 1996
  Act. It was submitted that the choice of the applicable
  procedural law could be exercised only after the constitution of
  the Arbitral Tribunal and not at any stage prior thereto.

        15. It was also submitted that in addition to the clear
D provision of Section 2(2} of the 1996 Act and the Agreement
  between the parties that the place of arbitration would be New
  Delhi, the Agreement would be expressly governed by .Indian
  law under Article 19 of the Agreement. Accordingly, as was held
  in National Thermal Power Corporation Vs. Singer Company
E [(1992} 3 sec 551], the proper law of the contract would be
  the Indian law which would govern the arbitration Agreement. It
  was submitted that the cardinal test, as suggested by Dicey in
  his "Conflict of Laws", stood fully satisfied and that the governing
  law of the arbitration would be the law chosen by the parties,
F or in the absence of any agreement, the law of the country in
  which the arbitration is held. Learned counsel submitted that
  according to Dicey, the proper law of the arbitration is normally
  the same as the proper law of the contract. It is only in
  exceptional cases that it is not so, even where the proper law
G of the contract is expressly chosen by the parties.

         16. However, as indicated hereinbefore, the question with
    which we are concerned is whether the Arbitration Agreement
    contemplates the application of Section 11 of the 1996 Act after
    the ICC Rules had been invoked by one of the parties which
H
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 465
            [ALTAMAS KABIR, CJI.]
also appointed its nominee Arbitrator. Equally important is the       A
question whether Section 11 of the 1996 Act empowers the
Chief Justice to constitute a Tribunal in supersession of the
Tribunal already in the stage of constitution under the ICC Rules,
notwithstanding the fact that one of the parties had proceeded
unilaterally in the matter. Learned counsel for the Petitioner        B
urged that since the Arbitration Agreement contemplates the
constitution of an Arbitral Tribunal without any reference to the
ICC Rules or the ICC Court, the recourse taken by Devas to
approach the ICC Court was without any basis and was contrary
to the express agreement between the parties. Learned                 c
counsel also referred to the decision of this Court in SBP &
Co. vs. Patel Engineering Ltd. & Anr. [(2005) 8 SCC 618], in
this regard.

      17. Learned counsel further urged that the issue as to
whether once an Arbitral Tribunal has been constituted, the           D
Chief Justice has jurisdiction under Section 11 of the 1996 Act
to constiiute another Tribunal, presupposes that an Arbitral
Tribunal has been validly constituted and is not a Tribunal
constituted by one party acting entirely in contravention of the
Arbitration Agreement between the parties. It was contended           E
that till such time as the question of jurisdiction was considered
 by the Court under Section 11, the question of a separate
 Tribunal being constituted by the International Chamber of
 Commerce did not arise. According to learned counsel, in fact,
 the constitution of the Arbitral Tribunal by the ICC Court           F
 amounted to usurpation of the exclusive jurisdiction of the Chief
Justice under Section 11 of the 1996 Act. It was submitted that
initially the Court would have to be moved under Section 11 of
the 1996 Act and it would have to examine whether it would
have the jurisdiction to entertain the request and whether the        G
condition for exercise of its powers to take necessary measures
to secure the appointment of the Arbitrator, at all existed. If the
answer to both the issues was in the affirmative, the Court was
duty bound to appoint the Arbitrator.
                                                                      H
    466      SUPREME COURT REPORTS                    [2013] 6 S.C.R.


A         18. On the other hand, on behalf of Devas it was submitted
    that the choice of an institution under whose auspices the
    arbitration was to be held, would have to be made once the
    Arbitral Tribunal had been constituted. It was contended that
    what was intended by the Arbitration Agreement was the
B   formation of an ad-hoc Tribunal which would have to follow one
    of the two procedures prescribed.

          19. It was submitted that Devas had already invoked the
  Arbitration Agreement and had sought the constitution of an
C Arbitral Tribunal, after having chosen its nominee Arbitrator, in
  accordance with the ICC Rules of Arbitration. It was further
  $Ubmitted that since the Arbitral Tribunal had been constituted
  under the ICC Rules, any objection as to whether or not the
  Tribunal had been properly constituted would have to be raised
  before the Arbitral Tribunal itself. It is only in such objection that
D the Arbitral Tribunal would have to decide as to whether a
  Tribunal was required to be constituted before application of
  the ICC or UNCITRAL Rules, inasmuch as, according to the
  Agreement, the Claimant in the arbitration has the right to
  choose any of the two Rules when commencing the arbitration.
E
          20. Reliance was placed on Section 16 of the 1996 Act
    which incorporates the Kompetenz Kompetenz principle within
    i!s scope. Since the arbitration was to be governed by Part I
    of the 1996 Act, the Tribunal would have complete authority over
F   all issues, including the validity of its constitution.

       21. Reference was also made to the decision of this Court
  in Gas Authority of India Ltd. vs. Keti Construction (/) Ltd. &
  Ors.[(2007) 5 SCC 38], wherein the aforesaid principle
  contained in Section 16 of the 1996 Act had been referred to.
G Learned counsel submitted that in arriving at the aforesaid
  decision, this Court had fully considered its decision in SBP &
  Co. (supra). It was submitted that the question regarding the
  validity of the constitution of the Arbitral Tribunal, upon a proper
  construction of Article 20 of the Agreement would, therefore,
H have to be left for decision to the said Tribunal.
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 467.
            [ALTAMAS KABIR, CJI.]
      22. On the question as to whether the Chief Justice or his A
Designate would be entitled in exercise of their jurisdiction
under Section 11 of the 1996 Act, to question the validity of the
appointment of an Arbitral Tribunal, both the parties were ad
idem that they could not. It was urged that the decision in SBP
& Co. (supra) does not contemplate such a course.of action. B
In this regard, reference was also made by learned counsel for
the Respondent to the decision of this Court in Sudarsan
 Trading Co. vs. Government of Kera/a & Anr. [(1989) 2 SCC
38], wherein it was held that once there is no dispute as to the
contract, the interpretation thereof is for the Arbitrator and not c
the Courts, and the Court cannot substitute its own decision for
that taken by the learned Arbitrator. It was urged that Section 5
 of the 1996 Act also supports such construction as it bars any
 interference by the Court, except as provided in the Act.
 Learned counsel also submitted that as had been held by this D
 Court in McDennott International Inc. vs. Bum Standard Co.
 Ltd. & Ors. [(2006) 11 SCC 181], after the 1996 Act came into
 force, it was for the party questioning the authority of the
 Arbitrator to raise such question at the earliest point of time after
 the commencement of the Arbitration proceedings, under
 Section 16 of the 1996 Act, and a decision thereupon c;ould E
 be challenged under Section 34 of the said Act.

      23. On behalf of Devas, it was also contended that the
issue raised relating to jurisdiction falls outside the first category
of cases, on account of the fact that the Petitioner's claim that        F
the Tribunal must be constituted first before application of either
of the ICC Rules or the UNCITRAL Rules, essentially involves
the question as to whether the Arbitration clause excludes the
applicability of the Rules prior to the constitution of the Tribunal
and that the constitution of the Tribunal is, therefore, reserved        G
for a decision under Section 11 of the 1996 Act. Learned
counsel for the Respondent submitted that in the facts of the
case, the Chief Justice, in exercise of his power under Section
 11 (6) of the 1996 Act, was not entitled to question the validity
 of the appointment of the Arbitral Tribunal and the instant             H
    468     SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A Arbitration Petition was liable to be dismissed.

          24. As indicated hereinbefore, the question which we are
    ca'lled upon to decide is whether when one of the parties has
    invoked the jurisdiction of the International Chamber of
    Commerce and pursuant thereto an Arbitrator has already been
8
    appointed, the other party to the dispute would be entitled to
    proceed in terms of Section 11 (6) of the 1996 Act.

         25. In order to answer the said question, we will have to
    refer back to the provisions relating to arbitration in the
C   agreement entered into between the Petitioner and the
    Respondent on 28th January, 2005. Article 19 in clear terms
    provides that the rights and responsibilities of the parties under
    the Agreement would be subject to and construed in
    accordance with the laws in India, which, in effect, means the
D   Arbitration and Conciliation Act, 1996. Article 20 of the
    Agreement specifically deals with arbitration and provides that
    disputes between the parties regarding the provisions of the
    Agreement or the interpretation thereof, would be referred to
    the Senior Management of both the parties for resolution within
E   three weeks, failing which the dispute would be referred to an
    Arbitral Tribunal comprising of three Arbitrators. It was also
    provided that the seat of arbitration would be New Delhi in India
    and the arbitration would be conducted in accordance with the
    rules and procedures of the International Chamber of
F   Commerce or UNCITRAL.

        26. The Respondent has invoked the provisions of Article
  20 of the Agreement and has approached the ICC for the
  appointment of an Arbitral Tribunal in accordance with the rules
  of arbitration and, pursuant thereto, the Respondent appointed
G its nominee Arbitraior. In fact, after the Respondent had invoked
  the arbitration clause, the Petitioner came to know of the same
  from the Respondent's request for arbitration which was
  forwarded by the ICC to the Petitioner on 5th July, 2011. By
  the said letter, the Petitioner was also invited by the ICC to
H nominate its nominee Arbitrator, but, as mentioned
ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 469
            [ALTAMAS KABIR, CJI.]
hereinbefore, instead of nominating its Arbitrator, the Petitioner    A
once again requested Devas to convene the Senior
Management Meet on 27th July, 2011, in terms of the
Agreement. Simultaneously, the Petitioner appointed a former
Judge of this Court, Mrs. Sujata V. Manohar, as its Arbitrator
and informed the ICC Court accordingly. However, disputes             B
were also raised by the Petitioner with the ICC that since the
Agreement clearly intended that tlte arbitration proceedings
would be governed by the Indian law, which was based on the
UNCITRAL model, it was not available to the Respondent to
unilaterally decide which of the rules were to be followed. It was    c
only thereafter that the Petitioner took recourse to the provisions
of Section 11 (4) of the 1996 Act, giving rise to the questions
which have been set out hereinbefore in paragraph 11, of which
only one has survived for our consideration.

     27. Section 11 of the 1996 Act is very clear as to the           D
circumstances in which parties to a dispute, and governed by
an Arbitration Agreement, may apply for the appointment of an
Arbitrator by the Chief Justice of the High Court or the Supreme
Court. For the sake of reference, the relevant provisions of
Section 11 are reproduced hereinbelow :-                              E

     "11. Appointment of arbitrators.

     (1) A person of any nationality may be an arbitrator,
     unless otherwise agreed by the parties.
                                                                      F
     (2) Subject to sub-section (6), the parties are free to
     agree on a procedure for appointing the arbitrator or
     arbitrators.

     (3) Failing any agreement referred to in sub-section (2),        G
     in an arbitration with three arbitrators, each party shall
     appoint one arbitrator, and the two appointed arbitrators
     shall appoint the third arbitrator who shall act as the
     presiding arbitrator.
                                                                      H
    470       SUPREME COURT REPORTS                     [2013] 6 S.C.R.


A         (4) If the appointment procedure in sub- section (3)
          applies and-

                (a) a party fails to appoint an arbitrator within thirty
                days from the receipt of a request lb do so from the
                other party; or
B
                (b) the two appointed arbitrators fail to agree on the
                third arbitrator within thirty days from the date of their
                appointment,

c         the appointment shall be made, upon request of a party,
          by the Chief Justice or any person or institution designated
          by him.

          (5) Failing any agreement referred to in sub-section (2),
          in an arbitration with a sole arbitrator, if the parties fail to
D         agree on the arbitrator within thirty days from receipt of a
          request by one party from the other party to so agree the
          appointment shall be made, upon request of a party, by
          the Chief Justice or any person or institution designated
          by him.
E
          (6) Where, under an appointment procedure agreed
          upon by the parties,-

                (a) a party fails to act as required under that
                procedure; or
F
                (b) the parties, or the two appointed arbitrators, fail
                to reach an agreement expected of them under that
                procedure; or

G               (c) a person, including an institution, fails to perform
                any function entrusted to him or it under that
                procedure,

          a party may request the Chief Justice or any person or
          institution designated by him to take the necessary
H
ANTRIX CORP. LTD. v. DEVAS MULTIMt:DIA P. LTD. 471
            [ALTAMAS KABIR, CJI.]
     measure, unless the agreement on the appointmer.t                  A
     procedure orovides other means for securing the
     appointmen'..

     (7) A decision on a matter entrusted by sub-section (4)
     or sub-section (5) or sub- section (6) to the Chief Justice
                                                                        B
     or the person or institution designated by him is final."

     28. As will be evident from the aforesaid provisions, when
any of the parties to an Arbitration Agreement fails to act in
terms thereof, on the application of the other party, the Chief
Justice of the High Courts and the Supreme Court, in different          C
situations, may appoint an Arbitrator.

     29. In the instant case, Devas, without responding to the
Petitioner's letter written in terms of Article 20 of the Arbitration
Agreement, unilaterally addressed a Request for Arbitration to          D
the ICC International Court of Arbitration for resolution of the
disputes arising under the Agreement and also appointed its
nominee Arbitrator. On the other hand, the Petitioner appointed
its nominee Arbitrator with the caveat that the arbitration would
be governed by the 1996 Act and called upon Devas to appoint            E
its nominee Arbitrator under the said provisions. As Devas did
not respond to the Petitioner's letter dated 30th July, 2011, the
Petitioner filed the application under Section 11 (6) of the 1996
Act.

     30. In the instant case, the Arbitration Agreement provides        F
that the arbitration proceedings would be held in accordance
with the rules and procedures of the International Chamber of
Commerce or UNCITRAL. Rightly or wrongly, Devas made a
request for arbitration to the ICC International Court of
Arbitration on 29th June, 2011, in accordance with the                  G
aforesaid Agreement and one Mr. V.V. Veedar was appointed
by Devas as its nominee Arbitrator. By the letter written by the
International Chamber of Commerce on 5th July, 2011, the
Petitioner was required to appoint its nominee Arbitrator, but
it chose not to do so and instead made an application under             H
    472      SUPREME COURT REPORTS                     [2013] 6 S.C.R.


A   Section 11 (6) of the 1996 Act and also indicated that it had
    appointed Mrs. Justice Sujata V. Manohar, as its Arbitrator in
    terms of Article 20(9) of the Agreement.

          31. Tl)e matter is not as complex as it seems and in our
B   view, once the Arbitration Agreement had been invoked by
    Devas and a nominee Arbitrator had also been appointed by
    it, the Arbitration Agreement could not have been invoked for
    a second time by the Petitioner, which was fully aware of the
    appointment made by the Respondent. It would lead to an
C   anomalous state of affairs if the appointment of an Arbitrator
    once made, could be questioned in a subsequent proceeding
    initiated by the other party also for the appointment of an
    Arbitrator. 11'.l our view, while the Petitioner was certainly entitled
    to challenge the appointment of the Arbitrator at the instance
    of Devas, it could not do so by way of an independent
D   proceeding under Section 11 (6) of the 1996 Act. While power
    has been vested in the Chief Justice to appoint an Arbitrator
    under Secti<1m 11 (6) of the 1996 Act, such appointment can be
    questioned under Section 13 thereof. In a proceeding under
    Section 11 of the 1996 Act, the Chief Justice cannot replace
E   one Arbitrator already appointed in exercise of the Arbitration
    Agreement. It may be noted that in case of Gese/lschaft Fur
    Biotechnotoqische Forschun GMBH Vs. Kopran Laboratories
    Ltd. & Anr. ((2004) 13 SCC 630], a learned Single Judge of
    the Bombay High Court, while hearing an appeal under Section
F   8 of the 1996 Act, directed the claims/disputes of the parties
    to be referred to the sole arbitration of a retired Chief Justice
    with the venue at Bombay, despite the fact that under the
    Arbitration A9reement it had been indicated that any disputes,
    controversy or claim arising out of or in relation to the
G   Agreement, would be settled by arbitration in accordance with
    the Rules of Reconciliation of the International Chamber of
    Commerce, Paris, with the venue of arbitration in Bombay,
    Maharashtra, India. This Court held that when there was a
    deviation from the methodology for appointment of an Arbitrator,
H   it was incumbent on the part of the Chief Justice to assign
 ANTRIX CORP. LTD. v. DEVAS MULTIMEDIA P. LTD. 473
             [ALTAMAS KABIR, CJI.]
reasons for such departure.                                          A

     32. Sub-Section (6) of Section 11 of the 1996 Act, quite
categorically provides that where the parties fail to act in terms
of a procedure agreed upon by them, the provisions of Sub-
section (6) may be invoked by any of the parties. Where in           B
terms of the Agreement, the arbitration clause has already been
invoked by one of the parties thereto under the l.C.C. Rules,
the provisions of Sub-section (6) cannot be invoked again, and,
in case the other party is dissatisfied or aggrieved by the
appointment of an Arbitrator in terms of the Agreement, his/its      C
remedy would be by way of a petition under Section 13, and,
thereafter, under Section 34 of the 1996 Act.

     33. The law is well settled that where an Arbitrator had
already been appointed and intimation thereof had been
conveyed to the other party, a separate application for              D
appointment of an Arbitrator is not maintainable. Once the
power has been exercised under the Arbitration Agreement,
there is no power left to, once again, refer the same disputes
to arbitration under Section 11 of the 1996 Act, unless the order
closing the proceedings is subsequently set aside. In Som Datt       E
Builders Pvt. Ltd. Vs. State of Punjab [2006 (3) RAJ 144
(P&H)], the Division Bench of the Punjab & Haryana High Court
held, and we agree with the finding, that when the Arbitral
Tribunal is already seized of the disputes between the parties
to the Arbitration Agreement, constitution of another Arbitral       F
Tribunal in respect of those same issues which are already
pending before the Arbitral Tribunal for adjudication, would be
without jurisdiction.

     34. In view of the language of Article 20 of the Arbitration
Agreement which provided that the arbitration proceedings            G
would be held in accordance with the rules and procedures of
the International Chamber of Commerce or UNCITRAL, Devas
was entitled to invoke the Rules of Arbitration of the ICC for the
conduct of the arbitration proceedings. Article 19 of the
Agreement provided that the rights and responsibilities of the       H
    474      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A parties thereunder would be subject to and construed in
  accordance with the laws of India. There is, therefore, a clear
  distinction between the law which was to operate as the
  governing law of the Agreement and the law which was to
  govern the arbitration proceedings. Once the provisions of the
B ICC Rule!\ of Arbitration had been invoked by Devas, the
  proceedings initiated thereunder could not be interfered with
  in a proceeding under Section 11 of the 1996 Act. The
  invocation of the ICC Rules would, of course, be subject to
  challenge In appropriate proceedings but not by way of an
c application under Section 11 (6) of the 1996 Act. Where the
  parties had agreed that the procedure for the arbitration would
  be governed by the ICC Rules, the same would necessarily
  include the appointment of an Arbitral Tribunal in terms of the
  Arbitration Agreement and the said Rules. Arbitration Petition
  No.20 of 2011 under Section 11 (6) of the 1996 Act for the
0
  appointment of an Arbitrator must, therefore, fail and is rejected,
  but this will not prevent the Petitioner from taking recourse to
  other provisions of the aforesaid Act for appropriate relief.

          35. The, Arbitration Petition is, therefore, dismissed.
E
        36. Having regard to the facts of the case, each party shall
    bear its own costs.

    B.B.B.                           Arbitratiqn Petition dismissed.