VIDEOCON INDUSTRIES LTD.versusUNION OF INDIA AND ANR.

•                      (2011] 8 S.C.R. 569

                  VIDEOCON INDUSTRIES LTD.                       A
                                v.
                   UNION OF INDIA AND ANR.
                 (Civil Appeal No. 4269 of 2011)
                          MAY 11, 2011
                                                                 B
         [R.V. RAVEENDRAN AND G.S. SINGHVI, JJ.]

          Arbitration and Conciliation Act, 1996 - s. 9 -
     Jurisdiction for entertaining petition uls. 9 - Seat of
     arbitration - Production Sharing Contract (PSC) - Dispute C
     between the parties - Matter referred to arbitral tribunal
     under clause 34.3 of PSC - In terms of clause 34.12 of
     the PSC, the seat of arbitration was Kuala Lumpur,
     Malaysia - However, due to outbreak of epidemic SARS,
     the arbitral tribunal decided to hold its sittings first at D
     Amsterdam and then at London and the parties did not
     object to this - Partial award passed - Respondent No. 1
     challenged the partial award by filing a petition in the High
     Court of Malaysia at Kuala Lumpur - Thereafter, the
     respondents made request to the tribunal to conduct the . E
     remaining arbitral proceedings at Kuala Lumpur, but the
     request was rejected and it was declared that the remaining
     arbitral proceedings will be held in London - At that stage,
     the respondents filed application uls.9 of the Act in Delhi
     High Court for stay of the arbitral proceedings - Appellant F
    objected to the maintainability of the application and
    pleaded that the Courts in India did not have the
    jurisdiction to entertain challenge to the arbitra/ award -
     Delhi High Court overruled the objection of the appellant
     and held that the said High Court had the jurisdiction to
     entertain the petition filed uls.9 - On appeal, held: As per G
     the terms of agreement, the seat of arbitration was Kuala
     Lumpur- If the parties wanted to amend clause 34.12, they
    could have done so only by written instrument which W?S
                               569                               H
    570      SUPREME COURT REPORTS                [2011) 8 S.C.R.
                                                                      •
A required to be signed by all of them - Admittedly, neither
   there was any agreement .between the parties to the PSC
   to shift the juridical seat of arbitration from Kuala Lumpur
   to London nor any written instrument was signed by them
   for amending clause 34.12 - Mere change in the physical
B venue of the hearing from Kuala Lumpur to Amsterdam
   and London did not amount to change in the juridical seat
   of arbitration - In cases of international commercial
   arbitrations held out of India provisions of Part I of the Act
   would apply unless the parties by agreement, express or
c implied, exclude all or any of its provisions - In that case
   the laws or rules chosen by the parties would prevail - In
   the p(esent case, the parties had agreed that
   notwithstanding Clause 33. 1, the arbitration agreement
   contained in Clause 34 of PSC shall be governed by laws
0 of England - This necessarily implies that the parties had
   agreed to exclude the provisions of Part I of the Act - As
   a corollary, the Delhi High Court did not have the
  jurisdiction to entertain the petition filed by the respondents
   uls.9 of the Act and the mere fact that the appellant had
E earlier filed similar petitions was not sufficient to clothe that
  High Court with the jurisdiction to entertain the petition filed
  by the respondents -- English Arbitration Act, 1996 - ss.3
  and 53.

      A Production Sharing Contract (PSC) was executed
F between re~pondent No.1-Government of India on the
  one hand and a consortium of four companies
  consisting of Oil and Natural Gas Corporation Limited,
  Videocon Petroleum Limited, Command Petroleum
  (India) Private Limited and Ravva Oil (Singapore)
G Private Limited (hereinafter referred to as "the
  Contractor'') in terms of which the latter was granted
  an exploration licence and mining lease to explore and
  produce the hydro carbon resources owned by
  respondent No.1. Subsequently, Cairn Ener:gy U.K. was
H subst!tuted in place of Command Petroleum (India)
•     VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA 571
                     AND ANR.
    Private Limited and the name of the Videocon               A
    Petroleum Limited was changed to Petrocon India
    Limited, which merged the appellant - Videocon
    Industries Limited.

         In 2000, disputes arose between the respondents       B
    and the contractor with respect to correctness of
    certain cost recoveries and profit. Sinoe the parties
    could not resolve their disputes amicably, the same
    were referred to the arbitral tribunal under clause 34.3
    of the said PSC. The arbitral tribunal fixed the date of
    hearing at Kuala Lumpur (Malaysia), but due to             C
    outbreak of epidemic SARS, the arbitral tribunal shifted
    the venue of its sittings to Amsterdam in the first
    instance and, thereafter, to London. Thereafter, various
    proceedings were held by the arbitral tribunal at
    London. Subsequently a partial award was passed.           D

          Respondent No.1 challenged the partial award by
    filing a petition in the High Court of Malaysia at Kuala
    Lumpur. On being noticed, the appellant questioned
    the maintainability of the case before the High Court      E
    of Malaysia by contending that in view of clause 34.12
    of the PSC only the English Courts had the jurisdiction
    to entertain any challenge to the award.

         After filing the petition before the .High Court of
    Malaysia, the respondents made a request to the            F
    tribunal to conduct the remaining arbitral proceedings
    at Kuala Lumpur, but their request was rejected and it
    was declared that the remaining arbitral proceedings
    will be held in London. At that stage, the respondents
    filed an application under Section 9 of the Arbitration    G
    and Conciliation Act, 1996 in Delhi High Court for stay
    of the arbitral proceedings. The appellant objected to
    the maintainability of the application and pleaded that
    the Courts in India did not have the jurisdiction to
    entertain challenge to the arbitral award. The Single      H
    572      SUPREME COURT REPORTS            [2011] 8 S.C.R.

A Judge of the Delhi High Court overruled the objection
  of the appellant and held that the said High Court had
  the jurisdiction to entertain the petition filed under
  Section 9 of the Act.

8     The question which therefore arose for
  consideration in the present appeal was whether the
  Delhi High Court could entertain the petition filed by
  the respondents under Section 9 of the Arbitration and
  Conciliation Act, 1996 for grant of a declaration that
C Kuala Lumpur (Malaysia) was contractual and juridical
  seat of arbitration and for issue of a direction to the
  arbitral tribunal to continue the hearing at Kuala
  Lumpur in terms of clause 34 of PSC.
          Allowing the appeal, the Court
D
          HELD:1.1. The first issue is as to whether Kuala
    Lumpur was the designated seat or juridical seat of
    arbitration and the same had been shifted to London.
    It is evident that in terms of clause 34.12 of the PSC
E   entered into by 5 parties, the seat of arbitration was
    Kuala Lumpur, Malaysia. However, due to outbreak of
    epidemic SARS, the arbitral tribunal decided to hold its
    sittings first at Amsterdam and then at London and the
    parties did not object to this. In the proceedings held
    at London, the arbitral tribunal recorded the consent of
F   the parties for shifting the juridical seat of arbitration
    to London. Whether this amounted to shifting of the
    physical or juridical seat of arbitration from Kuala
    Lumpur to London would depend on a holistic
    consideration of the relevant clauses of the PSC. As
G   per the terms of agreement, the seat of arbitration was
    Kuala Lumpur. If the parties wanted to amend clause
    34.12, they could have done so only by written
    instrument which was required to be signed by all of
    them. Admittedly, neither there was any agreement
H   between the parties to the PSC to shift the juridical seat
•     VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
                     AND ANR.
                                                        573


     of arbitration from Kuala Lumpur to London nor any A
     written instrument was signed by them for amending
     clause 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 B
    arbitration from l<uala Lumpur to London. In this
    connection, reference can usefully be made to Section
    3 of the English Arbitration Act, 1996. A reading of the
    above provision shows that under the English law the
    seat of arbitration means juridical seat of arbitration, c
    which can be designated by the parties to the
    arbitration agreement or by any arbitral or other
    institution or person empowered by the parties to do
    so or by the arbitral tribunal, if so authorised by the
    parties. In contrast, there is no provision in the Act D
    under ·~!hich the arbitral tribunal could change the
    juridical seat of arbitration which, as per the agreement
    of the parties, was Kuala Lumpur. Therefore, mere
    change in the physical venue of the hearing from Kuala
    Lumpur to Amsterdam and London did not amount to
    change in the juridical seat of arbitration. This is E
    expressly indicated in Section 53 of the English
    Arbitration Act, 1996. [Paras 12, 13) [585-F-H; 586-H;
    587-A-C]

         1.2. The next issue is whether the Delhi High Court F
    could entertain the petition filed by the respondents
    under Section 9 of the Act. In Bhatia International v. Bulk
    Trading S.A., a three-Judge Bench of this Court held
    that the provisions of Part I of the Act would apply to
    all arbitrations and to all proceedings relating thereto. G
    Where such arbitration is held in India the provisions
    of Part I would compulsorily apply and parties are free
    to deviate only to the extent permitted by the derogable
    provisions of Part I. In cases of international commercial
    arbitrations held out of India provisions of Part I would H
    574     SUPREME COURT REPORTS                 [2011) 8 S.C.R.


A 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. [Para 15]
B [588-C-E; 593-C]

       1.3. In the present case, the parties had agreed that
  notwithstanding Clause 33.1 of the PSC, the arbitration
  agreement contained in Clause 34 shall be governed
G by laws of England. This necessarily implies that the
  parties had agreed to exclude the provisions of Part I
  of the Act. As a corollary to the above conclusion, the
  Delhi High Court did not have the jurisdiction to
  entertain the petition filed by the respondents under
  Section 9 of the Act and the mere fact that the appellant
D had earlier filed similar petitions was not sufficient to
  clothe that High Court with the jurisdiction to entertain
  the petition filed by the respondents. In the result, the
  impugned order is set aside and the petition filed by
  the respondents under Section 9 of the Act is
E dismissed. [Paras 19, 20) [599-0-F]
       Bhatia International v. Bulk Trading S.A. (2002) 4 SCC
  105: 2002 (2) SCR 411; Dozco India P. Ltd. v. Doosan
  lnfracore Co. Ltd. 2010 (9) UJ 4521 (SC) and Venture
F Global Engineering v. Satyam Computer Services Limited
    (2008) 4 sec 190: 2008 (1) SCR 501 - relied on.

       Hardy Oil and Gas Limited v. Hindustan Oil Exploration
    Company Limited and others (2006) 1 GLR 6.58 -
    approved.
G
         Shreejee Traco (I) Pvt. l:..td. v. Paperline International
    Inc. (2003) 9 sec 79; National Thermal Power Corporation
    v. Singer Company (1992) 3 SCC 551: 1992 (3) SCR 106
    - referred to.
H
•     VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA 575
                     AND ANR.

       Mulamchand v. State of Madhya Pradesh (1968) 3                 A
    SCR 214 and State of Haryana v. Lal Chand (1984) 3
    SCR 715 - cited.
                         Case Law Reference:
         2002 (2) SCR 411          relied on     Para 8, 9,           B
                                                 15, 16, 17,18
         (1968) 3 SCR 214          cited         Para 10
         (1984) 3 SCR 715          cited         Para 10
         2010 (9) UJ 4521 (SC) relied on         Para 14
                                                                      c
         2008 (1) SCR 501          referred to Para 16
         (2003) 9 sec 79           referred to Para 17
         1992 (3) SCR 106          referred to Para 17                D
         (2006) 1 GLR 658          approved      Para 17
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4269 of 2011.
                                                                      E
        From the Judgment and Order dated 30.04.2008 of the
    High Court of Delhi at New Delhi in O.M.P. No. 255 of 2006.

         R.F. Nariman, Manu Nair, Mark D'Souza and Prashant
    Kalra (for Suresh A. Shroff & Co.) for the Appellant.
                                                                      F
      K.R. Sasiprabhu and R. Chandrachud for the
· Respondents.

        The Judgment of the Court was delivered by
                                                                      G
        G.S. SINGHVI, J. 1. Leave granted.

          2. Whether the Delhi High Court could entertain the
    petition filed by the respondents under Section 9 of the
    Arbitration and r.onciliation Act, 199Ei (for short, "the Act")
    for grant of a declaration that Kuala Lumpur (Malaysia) is        H
     576      SUPREME COURT REPORTS                [2011) 8 S.C.R.
                                                                       •
 A contractual and juridical seat of arbitration and for issue of
   a direction to the arbitral tribunal to continue the hearing at
   Kuala Lumpur in terms of clause 34 of Production Sharing
   Contract (PSC) is the question which arises for consideration
   in this appeal.
 B
        3. Respondent No.1 - Government of India owns
   petroleum resources within the area of India's territorial
   waters and exclusive economic zones. Respondent No.2 is
   an arm of the Ministry of Petroleum and Natural Gas. On
 C 28.10.1994, a PSC was executed between respondent No.1
   on the one hand and a consortium of four companies
   consisting of Oil and Natural Gas Corporation Limited,
   Videocon Petroleum Limited, Command Petroleum (India)
   Private Limited and Rawa Oil (Singapore) Private Limited
   (hereinafter referred to as "the Contractor") in terms of which
 D the latter was granted an exploration licence and mining
   lease to explore ~nd produce the hydro carbon resoyrces
   owned by respondent No.1. Subsequently, Cairn Energy U.K.
   was substituted in place of Command Petroleum (India)
   Private Limited and the name of the Videocon Petroleum
 E Limited was changed to Petrocon India Limited, which
   merged the appellant - Videocon Industries Limited. For the
   sake of convenience, the relevant clauses of Articles 33, 34
   and 35 of the PSC are extracted below:

 F         "33.1 Indian Law to Govern

           Subject to the provisions of Article 34.12, this Contract
           shall be governed and interpreted in accordance with
           the laws of India.

·G         33.2 Laws of India Not to be Contravened

           Subject to Article 17.1 nothing in this Contract shall
           entitle the Contractor to exercise the rights, privileges
           and powers conferred upon it by this Contract in a
           manner which will contravene the laws of India.
 H
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.]
                                                          577


      34.3 Unresolved Disputes                                   A

      Subject .to the provisions of this Contract, the Parties
      agree that any matter, unresolved dispute, difference or
      claim which cannot be agreed or settled amicably within
      twenty one (21) days may be submitted to a sole expert
                                                                 8
      (where Article 34.2 applies) or otherwise to an arbitral
      tribunal for final decision as hereinafter provided.

      34.12. Venue and Law of Arbitration Agreement

      The venue of sole expert, conciliation or arbitration      c
      proceedings pursuant to this Article, unless the Parties
      otherwise agree, shall be Kuala Lumpur, Malaysia, and
      shall be conducted in the English language. Insofar as
      practicable, the Parties shall continue to implement the
      terms of this Contract notwithstanding the initiation of   0
      arbitral proceedings and any pending claim or dispute.
      Notwithstanding the provisions of Article 33.1, tile
      arbitration agreement contained in this Article 34 shall
      be governed by the laws of England.

      35.2 Amendment                                             E

      This Contract shall not be amended, modified, varied or
      supplemented in any respect except by an instrument in
      writing signed by all the Parties, which shall state the
      date upon which the amendment or modification shall        F
     ·become effective."

      4. In 2000, disputes arose between the respondents and
the contractor with respect to correctness of certain cost
recoveries and profit. Since the parties could not resolve their G
disputes amicably, the same were referred to the arbitral
tribunal under clause 34.3 of the PSC. The arbitral tribunal
fixed 28.3.2003 as the date of hearing at Kuala Lumpur
(Malaysia), but due to outbreak of epidemic SARS, the
arbitral tribunal shifted the venue of its sittings to Amsterdam
in the first instance and, thereafter, to London. In its meeting H
    578            SUPREME COURT REPORTS            (2011) 8 S.C.R.    •
A held on 29.6.2003 at Amsterdam, the arbitral tribunal issued
  various directions in Arbitration Case No.1 of 2003. On the
  next day, the arbitral tribunal issued similar directions in
  Arbitration Case Nos.2 and 3 of 2003. On 19.8.2003, the
  arbitral tribunal issued revised time schedule for filing of the
B statement of claim, reply and counter claim, reply to counter
  claim, documents, affidavit of admission and denial of
  documents in Arbitration Case No.3 of 2003 and fixed the
  case for further proceedings to be held at London on
  12.12.2003. By another order dated 30.10.2003, the arbitral
c tribunal directed that the hearing of the application filed by -·
  the claimants for taking on record the supplementary claim
  will take place at London on 15.11.2003, on which date, the
  following order was passed in Arbitration Case No.3 of
  2003:
D         "By consent of parties, seat of the Arbitration is shifted
          to London.

          Parties will deposit Rs.25,000 each as administrative
          cost with the Presiding Arbitrator."
E
          5. Thereafter, the following proceedings were held by the
    arbitral tribul'lal at London:

           (i)      6.2.2004 - Interim Award pronounced in Case
                    No.1 of 2003 pronounced.
F
           (ii)     7.2.2004 - proceedings held in Arbitration Case
                    No.2 of 2003.

           (iii)    17.3.2004 - Case No.2 of 2003 fixed for 13-
                    19.5.2004 for final arguments.
G
          ·(iv)     17.3.2004 - Case No.3 of 2003 fixed for
                    recording of evidence from 3.6.2004 to 9.6.2004.

           (v)      17.3.2004 - Case No.3 of 2003 fixed for
H                   arguments from 20-26.7.2004.
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.]
                                                              579


      (vi)    27.3.2004 - final arguments rescheduled. to 16-        A
              20.5.2004 in Case No.2 of 2003.

      (vii)   25.11.2004 - Arbitral Tribunal declared that it will
              pass award in Case No.2 of 2003 and further
              partial award in Case No.1 of 2003.
                                                                     B
      (viii) 3.2.2005 - Case No.2 of 2003 fixed for 25-
             26.2.2005 for hearing on the application for
             clarification filed on behalf of the Government of
             India.
                                                                     c
      (ix)    12.3.2005 - The Tribunal declared that it will
              finalise the award in Case No.3 of 2003 and
              cross-objections in Case No.1 of 2003.

      (x)     31.3.2005 - Partial award passed in Case No.3
              of 2003.                                               D

    6. Respondent No.1 challenged partial award dated
31.3.2005 by filing a petition in the High Court of Malaysia
at Kuala Lumpur. On being noticed, the appellant questioned
the maintainability of the case before the High Court of             E
Malaysia by contending that in view of clause 34.12 of the
PSC only the English Courts have the jurisdiction to entertain
any challenge to the award.

     7. After filing the petition before the High Court of           F
Malaysia, the respondents made a request to the tribunal to
conduct the remaining arbitral proceedings at Kuala Lumpur,
but their request was rejected vide order dated 20.4.2006
and it was declared that the remaining arbitral pr'oceedings
will be held in London.
                                                                     G
     8. At that stage, the respondents filed OMP No.255 of
2006 under Section 9 of the Act in Delhi High Court for stay
of the arbitral proceedings. They filed another OMP No.329
of 2006 questioning award dated 31.3.2005 on the issue of
                                                                     H
A
    580       SUPREME COURT REPORTS                  (2011) 8 S.C.R.


  exchange rate. The appellant objected to the maintainability
                                                                          •
  of OMP No.255 of 2006 and pleaded that the Courts in India
  do not have the jurisdiction to entertain challenge to the
  arbitral award. The learned Single Judge of the Delhi High
  Court overruled the objection of the appellant and held that
B the said High Court has the jurisdiction to entertain the petition
  filed under Section 9 of the Act. The learned Single Judge
  extensively referred to the judgment of this Court in Bhatia
  International v. Bulk Tradinri S.A. (2002) 4 SCC 105 and
  observed:
c         "The ratio of Bhatia International, in my understanding,
          is that the provisions of Part-I of the Indian Arbitration
          Act would apply to international commercial arbitrations
          held outside India, unless the parties by agreement
          express or implied, exclude all or any of its provisions.
D
          It is noteworthy that the respondent, while challenging the
          jurisdiction of this Court to entertain the present petition,
          has not disputed the applicability of Part I of the Indian
          Arbitration Act to international commercial arbitrations
E         held outside India. It is not the case of the respondent
          that section 9 of the Indian Arbitrations Act does not
          apply to international commercial arbitrations held
          outside India. What, in fact, learned senior counsel for
          the respondent has sought to contend before this Court
F         is that the parties herein, by ~dopting the English Law
          as the proper law governing the arbitration agreement,
          have expressly excluded the applicability of the Indian
          Arbitration Act, and consequently, this Court has no
          jurisdtction to entertain the present petition. This
          contention of the respondent has been resisted by
G
          learned senior counsel for the petitioner on the ground
          that English law governs the substantive aspects of the
          arbitration agreement, whilst the procedural aspect
          thereof is governed by the curial law, that is, the
          procedural law of the country where the seat of
H
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.)
                                                           581


      arbitration is. It is thus contended by learned senior A
      counsel for the petitioner that the juridical seat of
      arbitration being in Kuala Lumpur, it is the Malaysian
      laws that would govern the conduct of the arbitral
      proceedings. Learned senior counsel for the respondent
      has countervailed the said averment of the petitioner by B
      submitting that London, and not, Kuala Lumpur is the
      'designated seat' of arbitration in view of the order
      dated 15.11.2003 passed by the Arbitral Tribunal
      whereby the Arbitral Tribunal recorded the consent of the
      parties and shifted the seat of arbitration to London. In c
      view of the petitioner having already conceded to
      London as the juridical seat of arbitration, it is thus
      contended by learned counsel for the respondent that
      the petitioner cannot know insist on Kuala Lumpur being
      the seat of arbitration.                                  D
      The averments made by the respondent, without
      prejudice to the veracity thereof, entail an examination
      on merit and thus cannot be accepted at this preliminary
      stage. Whether the Courts at Kuala Lumpur or London
      have the jurisdiction to decide upon the seat of E
      arbitration squarely hinges on the procedural law
      governing the arbitration agreement. However, in a
      peculiar situation such as the present one where the
      governing procedural law is yet to be determined, I am
      of the view that a question regarding the seat of F
      arbitration can be best decided by the Court to which
      the parties or to which the dispute is most closely
      connected. It is important to recall that in the instant case
      the parties have expressly stated in Article 33.1 of the
      PSC that the laws applicable to the contract would be G
      the laws in force in India and that the "Contract shall be
      governed and interpreted in accordance with the laws
      of India". 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 H
    582       SUPREME COURT REPORTS                 [2011] 8 S.C.R.    •
A         in India that the PSC was executed. The form of the
          PSC is closely related to the system of law in India. It
          is also apparent that the PSC is to be performed in
          ln_dia with the aid of Indian workmen whose conditions
          of service are regulated by Indian laws. Moreover, whilst
B         the petitioner is an important portfolio of the Government
          of India, the respondent is also a company incorporated
          under the Indian laws. 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
c         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 or the "proper
D         law" (in the words of Dicey) 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.
E         There is no gainsay that the Courts observe extreme
          circumspection whilst affording relief under section 9 of
          the Indian Arbitration Act, lest the annals of party
          autonomy and sanctity of the arbitral tribunal - the
          hallmarks of any arbitration - are jeopardized. It is to
F         be appreciated that the object underlying the grant of
          interim measures under section 9 of the Indian
          Arbitration Act is to facilitate and sub serve any ongoing
          arbitral proceedings.

G
          It is much apparent that the disparate stands taken by
          both parties qua the seat of arbitration has resulted in
          a veritable impasse in the arbitral proceedings in the
          present case. The petitioner has brought to our notice
          that the proceedings initiated by it at the High Court
          t<uala Lumpur challenging the Partial award have been
H
          virtually brought to a standstill owing the objections
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA 583
            AND ANR. [G.S. SINGHVI, J.)

     raised by the respondent on grounds of jurisdiction. The        A
     petitioner has already expressed its dissidence about
     the English Court deciding the question of seat of
     arbitration for the reason that for the English Court to
     assume jurisdiction, it is the place of arbitration which
     is the relevant factor. In such a situation, of the Indian      B
     Court does not adjudicate upon the present petition, the
     arbitral proceedings between the parties will invariably
     end in a stalemate. This, I am afraid, would not only be
     inimical to the interests of the parties but also affront to
     section 9 of the Indian Arbitration, the underlying object      c
     whereof is to sub serve and facilitate arbitral
     proceedings."

     9. Shri R.F. Nariman, learned senior counsel appearing
for the appellant argued that the impugned order is liable to
be set aside because the learned Single Judge                        D
misconstrued and misapplied the judgment of this Court in
Bhatia International v. Bulk Trading S.A. (supra) and
erroneously held that the Delhi High Court has jurisdiction to
decide O.M.P. No.255 of 2006. Learned counsel further
argued that the learned Single Judge failed to appreciate that       E
the reliefs prayed for in O.M.P. No.255 of 2006 could not
have been granted on an application filed under Section 9
of the Act because stay of arbitral proceedings is beyond
the scope of that section. Learned senior counsel
emphasized that Section 5 of the Act expressly bars                  F
intervention of the Courts except in matters expressly
provided for in the Act and, therefore, even if the petition filed
by the respondents under Section 9 could be treated as
maintainable, the High Court did not have jurisdiction over
the arbitration proceedings because the same are governed            G
by the laws of England. Shri Nariman then argued that after
having expressly consented to the shifting of the seat of
arbitration from Kuala Lumpur to Amsterdam in the first
instance and effectively taken part in the proceedings held
at London till 31.3.2005, respondent No.1 is estopped from           H
   584      SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A claiming that the seat of arbitration continues to be a.t Kuala
  Lumpur. Learned senior counsel submitted that the learned
  Single Judge was not justified in rejecting objection to the
  maintainability of the petitions filed by respondent No.1 in the
  Delhi High Court merely because the appellant had earlier
B filed O.M.P. No.179 of 2003 before the High Court. He
  submitted that the doctrine of waiver and acquiescence
  cannot be pressed into service for deciding the issue relating
  to jurisdiction of the Delhi High Court to entertain the petition
  filed under Section 9 of the Act. Shri Nariman further
c submitted that if respondent No.1 felt aggrieved against
  partial award it could have filed petition under Sections 67
  and 68 of the English Arbitration Act, 1996.

        10. Shri Gopal Subramaniam, learned Solicitor General
  submitted that as per the arbitration agreement which is
D binding on all the parties to the contract, a conscious
  decision was taken by them that Kuala Lumpur will be the
  s.eat of any intended arbitration, Indian law as the law of
  contract and English law as the law ')f arbitration and. the
  mere fact that the arbitration was held outside Kuala Lumpur
E due to the outbreak of epidemic SARS, the venue of
  arbitration cannot be said to have been changed from Kuala
  Lumpur to London. Learned Solicitor General emphasised
  that once Kuala Lumpur was decided as the venue of
  arbitration by written agreement, the same could not have
F been changed except by amending the written agreement as
  provided in clause 35.2 of the PSC. He then argued that the
  arbitral tribunal was not entitled to determine the seat of
  arbitration and the record of proceedings held on 15.11.2003
  at London cannot be construed as an agreement between
G the parties for change in the juridical seat of arbitration. He
  further argued that the PSC was between the Government
  of India· and ONGC Ltd., Videocon Petroleum Ltd.,
  Command Petroleum (India) Pvt. Ltd. and Ravva Oil
  (Singapore) Pvt. Ltd. and, therefore, the venue of arbitration
H cannot be treated to have been changed merely on the basis
•    VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
             AND ANR. [G.S. SINGHVI, J.]
                                                               585


    of the so called agreement between the appellant and the          A
    respondents. Learned Solicitor General submitted that any
    change in the PSC requires the concurrence by all the
    parties to the contract and the consent, if any, given by two
    of the parties cannot have the effect of changing the same.
    He then argued that every written agreement on behalf of          B
    respondent No.1 is required to be expressed in the name
    of the President and in the absence of any writt~:n
    agreement having been reached between the parties to the
    PSC to amend the same, the consent given for shifting the
    physical seat of arbitration to London did not result in change   C
    of juridical seat of the arbitration which continues to be
    Kuala Lumpur. In support of this argument, the learned
    Solicitor General relied upon the judgments of this Court in
1   Mutamchand v. State of Madhya Pradesh (1968) 3 SCR
    214 and State of Haryana v. Lal Chand (1984) 3 SCR 715.           D
    In the end, he argued that the provisions of the English
    Arbitration Act, 1996 would have applied only if the seat of
    arbitration was in England and Wales. He submitted that
    London cannot be treated as juridical seat of arbitration
    merely because the parties had decided that the arbitration
    agreement contained in Article 34 will be governed by the         E
    laws of England.

        11. We have considered the respective submissions
    and perused the record.
                                                                      F
          12. We shall first consider the question whether Kuala
    Lumpur was the designated seat or juridical seat of
    arbitration and the same had been shifted to London. In
    terms of clause 34.12 of the PSC entered into by 5 parties,
    the seat of arbitration was Kuala Lumpur, Malaysia. However,      G
    due to outbreak of epidemic SARS, the arbitral tribunal
    decided to hold its sittings first at Amsterdam and then at
    London and the parties did not object to this. In the
    proceedings held on 14th and 15th October, 2003 at
    London, the arbitral tribunal recorded the consent of the
                                                                      H
    586       SUPREME COURT REPORTS                   [2011] 8 S.C.R.


A parties for shifting the juridical seat of arbitration to London.
  Whether this amounted to shifting of the physical or juridical
  seat of arbitration from Kuala Lumpur to London? The
  decision of this would depend on a holistic consideration of
  the relevant clauses of the PSC. Though, it may appear
B 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 clause 34.12, they
  could have done so only by written instrument which was
  required to be signed by all of them. Admittedly, neither there
c was any agreement between the parties to the PSC to shift
  the juridical seat of arbitration from Kuala Lumpur to London
  nor any written instrument was signed by them for amending
  clause 34.12. Therefore, the mere fact that the parties to the
  particular arbitration had agreed for shifting of the seat of
0 arbitration to London cannot be interpreted as anything
  except physical change of the venue of arbitration from Kuala
  Lumpur to London. In this connection, reference can usefully
  be made to Section 3 of the English Arbitration Act, 1996,
  which reads as follows:

E         "3.The seat of the arbitration.

          In this Part "the seat of the arbitration" means the
          juridical seat of the arbitration designated-

          (a) by the parties to the arbitration agreement, or
F
          (b) by any arbitral or other institution or person vested
          by the parties with powers in that regard, or

          (c) by the arbitral tribunal if so authorised by the parties,
G         or determined, in the absence of any such designation,
          having regard to the parties' agreement and all the
          relevant circumstances."

         13. A reading of the above reproduced provision shows
    that under the English law the seat of arbitration means
H
•    VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
             AND ANR. [G.S. SINGHVI, J.]
                                                              587


    juridical seat of arbitration, which can be designated by the A
    parties to the arbitration agreement or by any arbitral or other
    institution or person empowered by the parties to do so or
    by the arbitral tribunal, if so authorised by the parties. In
    contrast, there is no provision in the Act under which the
    arbitral tribunal could change the juridical seat of arbitration 8
    which, as per the agreement of the parties, was Kuala
    Lumpur. Therefore, mere change in the physical venue of the
    hearing from Kuala Lumpur to Amsterdam and London did
    not amount to change in the juridical seat of arbitration. This
    is expressly indicated in Section 53 of the English Arbitration C
    Act, 1996, which reads as under:

        "53. Place where award treated as made.

        Unless otherwise agreed by the parties, where the seat
        of the arbitration is in England and Wales or Northern      D
        Ireland, any award in the proceedings shall be treated
        as made there, regardless of where it was signed,
        despatched or delivered to any of the parties."

         14. In Dozco India P. Ltd. v. Doosan lnfracore Co. Ltd.
    2010 (9) UJ 4521 (SC), the· learned designated Judge while      E
    exercising power under Section 11 (6) of the Act, referred to
    the following passage from Redfern v. Hunter:

        "The preceding discussion has been on the basis that
        there is only one "place" of arbitration. This will be the F
        place chosen by or on behalf of the parties; and it will
        be designated in the arbitration agreement or the terms
        of reference or the minutes of proceedings or in some
        other way as the place or "seat" of the arbitration. This
        does not mean, however, that the arbitral tribunal must G
        hold all its meetings or hearings at the place of
        arbitration. International commercial arbitration often
        involves people of many different nationalities, from many
        different countries. In these circumstances, it is by no
        means unusual for an arbitral tribunal to hold meetings H
    588       SUPREME COURT REPORTS                 [2011] 8 S.C.R.
                                                                         •
A         - or even hearings - in a place other than the designated
          place of arbitration, either for its own convenience- or for
          the convenience of the parties or their witnesses ....

         It may be more convenient for an arbitral tribunal sitting
         in one country to conduct a hearing in another country -
B
         for instance, for the purpose of taking evidence..... In
         such circumstances, each move of the arbitral tribunal
       · does not of itself mean that the seat of the arbitration
         changes. The seat of the arbitration remains the place
         initially agreed by or on behalf of the parties."
c
       15. The next issue, which merits consideration is
  whether the Delhi High Court could entertain the petition filed
  by the respondents under Section 9 of the Act. In Bhatia
  International v. Bulk Trading S.A. (supra), the !hree-Judge
D Bench considered the important question whether Part I of
  the Act is applicable to the international arbitration taking
  place outside India. After noticing the scheme of the Act and
  argument of the appellant that Part I of the Act would apply
  only to the cases in which the venue of arbitration is in India,
E the Court observed:

          "A reading of the provisions shows that the said Act
          applies to arbitrations which· are held in India between
          Indian nationals and to international commercial
          arbitrations whether held in India or out of India. Section
F         2(1 )(f) defines an international commercial arbitration.
          The definition makes no distinction between international
          commercial arbitrations held in India or outside India. An
          international commercial arbitration may be held in a
          country which is a signatory to either the New York
G         Convention or the Geneva Convention (hereinafter called
          "the convention country"). An international commercial
          arbitration may be held in a non-convention country. The
          said Act nowhere provides that its provisions are not to
          apply to international commercial arbitrations which take
H         place in a non-convention country. Admittedly, Part II only
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.]
                                                           589


      applies to arbitrations which take place in a convention    A
      country. Mr. Sen fairly admitted that Part II would not
      apply to an international commercial arbitration which
      takes place in a non-convention country. He also fairly
      admitted that there would be countries which are not
      signatories either to the New York Convention or to the     B
      Geneva Convention. It is not possible to accept the
      submission that the said Act makes no provision for
      international commercial arbitrations which take place in
      a non-convention country.

      Now le~ us look at sub-sections (2), (3), (4) and (5) of C
      Section 2. Sub-section (2) of Section 2 provides that
      Part I would apply where the place of arbitration is in
      India. To be immediately noted, that it is not providing
      that Part I shall not apply where the place of arbitration
      is not in India. It is also not providing that Part I will D
      "only" apply where the place of arbitration is in India
      (emphasis supplied). Thus the legislature has not
      provided. that Part I is not to apply to arbitrations which
      take place outside India. The use of the language is
      significant and important. The legislature is emphasising E
      that the provisions of Part I would apply to arbitrations
      which take place in India, but not providing that the
      provisions of Part I will not apply to arbitrations which
      take place out of India. The wording of sub-section (2)
      of Section 2 suggests that the intention of the legislature F
      was to make provisions of Part I compulsorily applicable
      to an arbitration, including an international commercial
      arbitration, which takes place in India. Parties cannot, by
      agreement, override or exclude the non-derogable
       provisions of Part I in such arbitrations. By omitting to G
       provide that Part I will not apply to international
      commercial arbitrations which take place outside India
      the effect would be that Part I would also apply to
       international commercial arbitrations held out of India.
       But by not specifically providing that the provisions of H
    590        SUPREME COURT REPORTS                 (2011] 8 S.C.R.
                                                                         •
A         Part I apply to international commercial arbitrations held
          out of India, the intention of the legislature appears to
          be to ally (sic allow) parties to provide by agreement
          that Part I or any provision therein will. not apply. Thus
          in respect of arbitrations which take place outside India
B         even the non-derogable provisions of Part I can be
          excluded. Such an agreement may be express or
          implied.

          If read in this manner there would be no conflict
          between Section 1 and Section 2(2). The words "every
c         arbitration" in sub-section (4) of Section 2 and the
          words "all arbitrations and to all proceedings relating
          thereto" in sub-section (5) of Section 2 are wide. Sub-
          sections (4) and (5) of Section 2 are not made subject
          to sub-section (2) of Section 2. It is significant that sub-
D         section (5) is made subject to sub-section (4) but not
          to sub-section (2). To acc~pt Mr. Sen's submission
          would necessitate adding words in sub-sections (4) and
          (5) of Section 2, which the legislature has purposely
          omitted to add viz. "subject to provision of sub-section
E         (2)". However read in the manner set out hereinabove
          there would also be no conflict between sub-section (2)
          of Section 2 and sub-sections (4) and/or (5) of Section
          2.
          That the legislature did not intend to exclude the
F
          applicability of Part I to arbitrations, which take place
          outside India, is further clear from certain other
          provisions of the said Act. Sub-section (7) of Section 2
          reads as follows:

G                "2. (7) An arbitral award made under this Part
                 shall be considered as a domestic award."

          As is set out hereinabove the said Act applies to (a)
          arbitrations held in India between Indians, and (b)
H         international commercial arbitrations. As set out
•    VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
             AND ANR. [G.S. SINGHVI, J.]
                                                              591


        hereinabove international commercial arbitrations may        A
        take place in India or outside India. Outside India, an
        international commercial arbitration may be held in a
        convention country or in a non-convention country. The
        said Act however only classifies awards as "domestic
        awards" or "foreign awards". Mr. Sen admits that             B
        provisions of Part II make it clear that "foreign awards"
        are only those where the arbitration takes place in a
        convention country. Awards in arbitration proceedings
        which take place in a non-convention country are not
        considered to be "foreign awards" under the said Act.        C
        They would thus not be covered by Part II. An award
        passed in an arbitration which takes place in India
        would be a "domestic award". There would thus be no
        need to define an award as a "domestic award" unless
        the intention was to cover awards which would otherwise
        not be covered by this definition. Strictly speaking, an     D
        award passed in an arbitration which takes place in a
        non-convention country would not be a "domestic
        award". Thus the necessity is to define a "domestic
        award" as including ail awards made under Part I. The
        definition indicates that an award made in an                E
        international commercial arbitration held in a non-
        convention country is also considered to be a "domestic
        award".

                                            (emphasis supplied)      F

        The Court then referred to Section 9 of the Act which
    empowers the Court to make interim orders and proceeded
    to observe:

        "Thus under Section 9 a party could apply to the court       G
        (a) before, (b) during arbitral proceedings, or (c) after
        the making of the arbitral award but before it is enforced
        in accordance with Section 36. The words "in
        accordance with Section 36" can only go with the words
                                                                     H
    592       SUPREME COURT REPORTS                 [2011) 8 S.C.R.
                                                                          •
A         "after the making of the arbitral award". It is clear that
          the words "in accordance with Section 36" can have no
          reference to an application made "before" or "during the
          arbitral proceedings". Thus it is clear that an application i
          for interim measure can be made to the courts in India,
B         whether or not the arbitration takes place in India, before
          or during arbitral proceedings. Once an award is
          passed, then that award itself can be executed. Sections
          49 and 58 provide that awards covered by Part II are
          deemed to be a decree of the court. Thus "foreign
          awards" which are enforceable in India are deemed to
c         be decrees. A domestic award has to be enforced
          under the provisions of the Civil Procedure Code. All that
          Section 36 provides is that an enforcement of a
          domestic award is to take place after the time to make
          an application to set aside the award has expired or
D
          such an application has been refused. Section 9 does
          suggest that once an award is made, an application for
          interim measure can only be made if the award is a
          "domestic award" as defined in Section 2(7) of the said
          Act. Thus where the legislature wanted to restrict the
E         applicability of Section 9 it has done so specifically.

          We see no substance in the submission that there would
          be unnecessary interference by courts in arbitral
          proceedings. Section .5 provides that no judicial authority
F         shall intervene except where so provided. Section 9
          does not permit any or all applications. It only permits
          applications for interim measures mentioned in clauses
          (i) and (ii) thereof. Thus there cannot be applications
          under Section 9 for stay of arbitral proceedings or to
G         challenge the existence or validity of the arbitration
          agreements or the jurisdiction of the Arbitral Tribunal. All
          such challenges would have to be made before the
          Arbitral Tribunal under the said Act."

          The three-Judge Bench recorded its conclusion in the
H
•    VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
             AND ANR. [G.S. SINGHVI, J.]
                                                                593


    following words:                                                    A
        "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 B
        are free to deviate only to the extent permitted by the
        derogable provisions of Part I. In cases of international
        commercial arbitrations held out of India provisions of
        Part I would apply unless the parties by agreement,
        express or implied, exclude all or any of its provisions.
        In that case the laws or rules chosen by the parties C
        would prevail. Any provision, in Part I, which is contrary
        to or excluded by that law or rules will not apply."

                                               (emphasis supplied)
                                                                        D
          16. In Venture Global Engineering v. Satyam Computer
     SeNices Limited (2008) 4 SCC 190, a two-Judge Bench
    was called upon to consider whether the Court of Additional
    Chief Judge, City Civil Court, Secunderabad had the
    jurisdiction to entertain the suit for declaration filed by the     E
    appellant to ·set aside the award passed by the sole
    arbitrator appointed at the instanc~ of respondent No.1
    despite the fact that the arbitrator had conducted the
    proceedings outside India. The trial Court had entertained
    and allowed the application filed by respondent No.1 under
    Order VII Rule 11 of the Code of Civil Procedure, 1908              F
    (CPC) and rejected the plaint. The Andhra Pradesh High
    Court confirmed the order of the trial Court. Before this
    Court, reliance was placed by the appellant on the ratio of
    Bhatia International v. Bulk Trading S.A. (supra) and it was
    argued that the trial Court had the jurisdiction to entertain the   G
    suit. On behalf of the respondents, it was argued that the trial
    Court did not have the jurisdiction to entertain the suit
     because the award was made outside India. The Division
     Bench accepted the argument made on behalf of the
     appellant and observed:                                            H
    594       SUPREME COURT REPORTS                  [2011) 8 S.C.R.      •
A         "On close scrutiny of the materials and the dictum laid
          down in the three-Judge Bench decision in Bhatia
          International we agree with the contention of Mr. K.K.
          Venugopal and hold that paras 32 and 35 of Bhatia
          International make it clear that the provisions of Part I
B         of the Act would apply to all arbitrations including
          international commercial arbitrations and tQ all
          proceedings relating thereto. We further hold that where
          such arbitration is held in India, the provisions of Part I
          would compulsorily apply and parties are free to deviate
          to the extent permitted by the provisions of Part I. It is
c         also clear that even in the case of international
          commercial arbitrations held out of India provisions of
          Part I would apply unless the parties by agreement,
          express or implied, exclude all or any of its provisions.
          We are also of the view that such an interpretation does
D         not lead to any conflict between any of the provisions
          of the Act and there is no lacuna as such. The matter,
          therefore, is concluded by the three-Judge Bench
          decision in Bhatia International.

E         The learned Senior Counsel for the respondent based
          on para 26 submitted that in the case of foreign award
          which was passed· outside India is not enforceable in
          India by invoking the provisions of t:1e Act or CPC.
          However, after critical analysis of para 26, we are
F         unable to accept the argument of the learned Senior
          Counsel for the respondent. Paras 26 and 27 start by
          dealing with the arguments of Mr Sen who argued that
          Part I is not applicable to foreign awards. It is only in
          the sentence starting at the bottom of para 26 that the
G         phrase "it must immediately be clarified" that the finding
          of the Court is rendered. That finding is to the effect that
          an express or implied agreement of parties can exclude
          the applicability of Part I. The finding specifically states:
          "But if not so excluded, the provisions of Part I will also
H
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.]
                                                            595


      apply to all 'foreign awards'." This exception which is       A
      carved out, based on agreement of the parties, in para
      21 (placita e to f) is extracted below:

            "21 .... By omitting to provide that Part I will not
            apply to international commercial arbitrations          B
            which take place outside India the effect would
            be that Part I would also apply to international
            commercial arbitrations held out of India. But by
            not specifically providing that the provisions of
            Part I apply to international commercial
            arbitrations held out of India, the intention of the    C
            legislature appears to be to ally (sic allow) parties
            to provide by agreement that Part I or any
            provision therein will not apply. Thus in respect of
            arbitrations which take place outside India even
            the non-derogable provisions of Part I can be           D
            excluded. Such an agreement may be express or
            implied."

      The very fact that the judgment holds that it would be
       open to the parties to exclude the application of the        E
       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     F
       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 policy of India, merely
      because the judgment-debtor resides abroad, the award
      can be enforced against properties in India through           G
      personal compliance of 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
                                                                    H
    596       SUPREME COURT REPORTS                  [2011) 8 S.C.R.      •
A         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
B         award to a foreign country for enforcement."

         17. We may now advert to the judgment of the learned
    Single Judge of the Gujarat High Court in Hardy Oil and Gas
  Limited v. Hindustan Oil Exploration Company Limited and
C others (2006) 1 GLR 658. The facts of that case were that
  an agreement was entered into between Unocal Bharat
  Limited, Hardy Oil and Gas Limited, Netherland B.V. (Hardy),
  Infrastructure Leasing and Financial Services Limited,
  Housing Development Finance Corporation Limited and
  Hindustan Oil Exploration Company Limited on 14.10.1998.
D The agreement had an arbitration clause. A dispute having
  arisen between the parties, the matter was referred to the
  arbitral tribunal. During the pendency of the arbitration
  proceedings, an application was filed by the appellant in the
  District Court, Vadodara under Section 9 of the Act. A
E preliminary objection was raised to the maintainability of that
  petition. The learned District Judge accepted the objection.
  The learned Single Judge of Gujarat High Court referred to
  clause 9.5 of the agreement, which was as under:

F         "9.5 Governing Law and Arbitration

          1. This Agreement (except for the provisions of Clause
          9.5.4 relating to arbitration) shall be governed by and
          construed in accordance with the substantive laws of
          India.
G
          2. Any dispute or difference of whatever nature arising
          under, out of, or in connection with this Agreement,
          including any question regarding its existence, validity or
          termination, which the parties are unable to resolve
H         between themselves within sixty (60) days of notification
•   VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
            AND ANR. [G.S. SINGHVI, J.]
                                                            597


      by one or more Parties to the other(s) that a dispute        A
      exists for the purpose of this Clause 9 shall at the
      instance of any Party be referred to and finally resolved
      by Arbitration under the rules of the London Court of
      International Arbitration (SLCIA), which Rules (Rules) are
      deemed to be incorporated by reference into this clause.     B

      3. The Tribunal shall consist of two arbitrators who shall
      be Queen's Counsel, practicing at the English Bar in the
     Commercial Division of the High Court, one to be
      selected by the Parties invoking the Arbitration clause
      acting unanimously and one to be selected by the other       C
     shareholders acting unanimously, and one umpire who
     shall also be a Queen's Counsel, practicing at the
     English Bar in the Commercial Division of this High
     Court. If the parties are unable to agree on the identity
     of the umpire within 15 days from the day on which the        D
     matter is referred to arbitration, the umpire shall be
     chosen and appointed by LCIA. Notwithstanding Article
     3.3 of the Rules, the Parties agree that LICA may
     appoint a British umpire. No arbitrator shall be a person
     or former employee or agent of, or consultant or counsel      E
     to, any Party or any Associated Company or any Party
     or in any way otherwise connected with any of the
     Parties.

     4. The place of arbitration shall be London and the           F
     language of arbitration shall be English. The law
     governing arbitration will be the English law.

     5. Any decision or award of an arbitral tribunal shall be
     final and binding on the Parties."
                                                                   G
     The learned Single Judge referred to various judgments
of this Court including Bhatia lntemational v. Bulk Trading
S.A. (supra), Shreejee Traco (I) Pvt. Ltd. v. Paperline
fntemational Inc. (2003) 9 SCC 79, National Thermal Power
Corporation v. Singer Company (1992) 3 SCC 551 and                 H .
    598       SUPREME COURT REPORTS                 [2011] 8 S.C.R.      •
A upheld the order of the learned District Judge by observing
  that in terms of clause 9.5.4 of the agreement, the place of
  arbitration was London and the law governing arbitration was
  the English law. The learned Single Judge referred to
  paragraph 32 of the judgment in Bhatia International v. Bulk
B Trading S.A. (supra) and observed that once the parties had
  agreed to be governed by any law other than Indian law in
  cases of international commercial arbitration, then that law
  would prevail and the provisions of the Act cannot be invoked
  questioning the arbitration proceedings or the award. This is
C evident from paragraph 11.3 of the judgment, which is
  extracted below:
          "However, their Lordships observed in Para.32 that in
          cases of international commercial arbitrations held out
          of India provisions of Part-I would apply unless the
D         parties by agreement, express or implied, exclude all or
          any of its provisipns. In that case 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
          would not apply. Thus, even as per the decision relied
E         upon by learned advocate for the appellant, if the parties
          have agreed to be governed by any law other than
          Indian law in cases of international commercial
          arbitration, same would prevail. In the case on hand, it
          is very clear even on plain reading of Clause. 9.5.4 that
F         the parties' intention was to be governed by English law
          in respect of arbitration. It is not possible to give a
          narrow meaning to this clause as suggested by learned
          Senior Advocate Mr. Thakore that it would apply only in
          case of dispute on Arbitration Agreement. It can be
          interpreted only to mean that in case of any dispute
G
          regarding arbitration, English law would apply. When the
          clause deals with the place and language of arbitration
          with a specific provision that the law governing arbitration
          will be the English law, such a narrow meaning cannot
          be given. No other view is possible in light of exception
H
•     VIDEOCON INDUSTRIES LTD. v. UNION OF INDIA
              AND ANR. [G.S. SINGHVI, J.]
                                                                599


        carved out of Clause 9.5.1 relating to arbitration. Term       A
        Arbitration, in Clause 9.5.4 cannot be taken to mean
        arbitration agreement. Entire arbitral proceedings have
        to be taken to be agreed to be governed by English
        law."

         18. In our opinion, the learned Single Judge of (3ujarat 8
    High Court had rightly followed the conclusion recorded by
    the three-Judge Bench in Bhatia International v. Bulk Trading
    S.A. (supra) and held that the District Court, Vadodara did
    not have the jurisdiction to entertain the petition filed under
    Section 9 of the Act because the parties had agreed that . C
    the law governing the arbitration will be English law.

         19. In the present case also, the parties had agreed that
    notwithstanding Article 33.1, the arbitration agreement
    contained in Article 34 shall be governed by laws of England.      D
    This necessarily implies that the parties had agreed to
    exclude the provisions of Part I of the Act. As a corollary to
    the above conclusion, we hold that the Delhi High Court did
    not have the jurisdiction to entertain the petition filed by the
    respondents under Section 9 of the Act and the mere fact           E
    that the appellant had earlier filed similar petitions was not
    sufficient to clothe that High Court with the jurisdiction to
    entertain the petition filed by the respondents.

        20. In the result, the appeal is allowed. The impugned
    order is set aside and the petition filed by the respondents       F
    under Section 9 of the Act is dismissed.

    8.8.8.                                        Appeal allowed.