G H QUIPPO CONSTRUCTION EQUIPMENT LIMITED versus JANARDAN NIRMAN PVT. LIMITED on 29 April 2020

1. Leave granted.

2. In this appeal the Original Claimant challenges the final judgmentand order dated 14.02.2019 passed by the High Court at Calcutta inDCAN No.10094 of 2018.

3. The basic facts culled out from the award dated 24.03.2015passed by the Arbitrator in the present case are:- “That the respondent company who is engaged in the business ofEinfrastructure development activities approached the claimantcompany who is also dealing in the business of providingequipments for infrastructure activities to provide on rent two PiingRig HR-180 and (1) 300 CPM compressor (equipments) forcarrying out the work as per the respondent’s instructions. Afterdeliberations and negotiations, an agreement dated 1.8.2010 wasFentered into between the parties in respect of the abovesaidconstruction equipments for its work site C/o Janardhan NirmanPvt. Ltd. L & TECC site, NTPC BARH site, BARH, Distt. Patna,Bihar. Being satisfied with the equipment services provided bythe claimant company, the respondent further approached theGclaimant company for taking on rent another one (1) Pilling Rig-MAIT HR 180 (equipment) for its same abovesaid work site,along with double set of crew/operator for each equipment forcarrying out the works as per the respondent’s instructions. Afterdeliberations and negotiations, an agreement 2.10.2010 was enteredinto between the parties herein in respect of the abovesaid H

equipments. Thereafter, the respondent further entered intoagreements dated 19.3.2011 and 14.4.2011 for taking on rent one(1) Pilling Rig HR 180 vide each of the said agreements forcarrying out the work as per the respondent’s instructions for itswork site at C/o Janardhan Nirman Pvt. Ltd., SAIL, DSP,Durgapur, West Bengal and C/o Janardhan Nirman Pvt. Ltd., NH-34, Farakka-Dafkhola Road Project, Near Kaliachak, Distt. Malda,West Bengal, respectively.”

4. In General Terms and Conditions appended to the aforesaidAgreements, resolution of disputes between the parties was providedfor as under:- 4.1 The relevant clauses in respect of the agreement dated01.08.2010 were to the following effect:- “24. Governing Law Jurisdiction & Arbitration: The partieshereto agree that the courts and tribunals at New Delhi shall havethe exclusive jurisdiction and shall be governed in accordancewith the law in India.

24.1 Arbitration: In the event of any claim, dispute or differencearising out of or in connection with the interpretation orimplementation of the agreement or out of or in connection withany breach, or alleged breach of the Agreement (hereinafterreferred to as “the dispute”) between the parties, the parties herebyagreed to refer such dispute to Arbitration under ConstructionIndustry Arbitration Association (CIAA) Rules and Regulationssave and except that on behalf of both the parties to the Agreement.The owners shall be entitled to select the sole Arbitrator out ofthe panel of CIAA. The proceedings shall be governed by theArbitration and Conciliation Act, 1996 with any statutorymodification thereto or re-enactment thereof. The venue forholding such arbitration proceedings would be New Delhi.”

4.2 On the other hand, the relevant arbitration clause in theagreement dated 14.04.2011 was to the following effect:- “24. Governing Law Jurisdiction & Arbitration: All and anydispute arising out of or in connection with this contract, includingany question regarding its existence, validity or termination, shallbe referred to and finally resolved by arbitration in Kolkata inaccordance with the arbitration Rules of the Construction Industry A

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AArbitration Council (“CIAC Arbitration Rules”) for the time beingin force at the commencement of the arbitration, which rules aredeemed to be incorporated by reference in this Clause. The ownershall be entitled to select the sole Arbitrator out of the panel ofCIAC. This agreement is governed by the laws of India and theparties hereto agree that only that courts and tribunals at KolkataBshall have the exclusive jurisdiction the dispute arise out of theterms of the Agreement or its interpretation.

The language of the arbitration shall be in English language. Theprovision shall survive the termination/expiry of this agreement.”

C5. In pursuance of the aforementioned agreements, constructionequipments were provided by the appellant to the respondent at therespective sites as per instructions of the respondent. According to theterms and conditions of the agreements the respondent was to makepayment within seven days from the date of submission of monthly billsfailing which the respondent would be liable to pay interest for delayedDperiod. Since the payments were not forthcoming, the appellant by itsletter dated 21.01.2012 asked the respondent to pay the outstanding dues.In its response dated 01.02.2012 the respondent accepted that everyRig hired by it was as per the agreement. Since the payments were notforthcoming, by communication dated 02.03.2012 the appellant gaveEnotice invoking arbitration. Relying on clauses 24 and 24.1 as statedabove, it was stated that Shri L.C. Jain, President Consumer Forum(Retd.) was appointed as the Sole Arbitrator who would be conductingproceedings at New Delhi to adjudicate upon the dispute between theparties. It was also stated:- F“You are requested to reply and join the arbitration proceedingswithin 14 days from the receipt of this notice and/or make paymentof the entire outstanding, amount of Rs.78,78,533/- (RupeesSeventy Eight Lakhs Seventy Eight Thousand Five Hundred ThirtyThree Only) with interest @ 18%p.a. to the outstanding amount.”

GA copy of this communication was marked to Construction IndustryArbitration Council (‘CIAC’, for short).

6. In its reply dated 15.03.2012 the respondent denied existenceof any agreement between the parties. It, however, did not take anysteps to participate in the arbitration. On the other hand, the respondentfiled Title Suit No.189 of 2012 in the Court of Civil Judge, Junior Division,H

Second Court at Sealdah, praying that the agreements be declared nulland void and for permanent injunction restraining the appellant fromrelying on the arbitration clauses contained in the agreements. At theinterim stage, a restraint order was passed by the Trial Court as a resultof which the proceedings before the Arbitrator were stayed. Anapplication under Sections 5 and 8 of the Arbitration and ConciliationAct, 1996 (for short “the Act”) was filed by the appellant submitting thatthe dispute between the parties be referred to arbitration.

7. While accepting the application moved on behalf of the appellantthe Trial Court in its Order dated 26.5.2014 observed:-

“The defendant has already stated that there are agreementsbetween the parties containing arbitration clause. They referredthe matter to arbitration in terms of the said arbitration clause toresolve payment related dispute. In support of their contention,the defendant produced a series of original agreements, signed byboth parties. I fail to understand why the plaintiff signed in a seriesof documents, which they claim to be non-existing. As stated earlier,the plaintiff failed to give any explanation regarding falsity andforgery committed by the defendant in executing the saidagreements. On perusal of the agreements, it transpires that allthe agreements contain payment and usage terms in detail. Theagreements also contain arbitration clause i.e. with regard to anyclaim and any dispute regarding implementation, execution andinterpretation or breach of the agreements between the parties.

Therefore, the dispute between the parties regardingpayments is within the scope of arbitration clause. The defendantsare justified in referring the matter to arbitration. Rather the plaintifffiled this suit even after having knowledge of arbitration proceeding.… …

All the disputes between the parties being the matterscovered by arbitration clause are to be adjudicated by the arbitrator.Therefore, this court has no jurisdiction to hear and try this suit.”

The application preferred by the appellant was thus allowed andthe plaint was directed to be returned.

8. The respondent filed Miscellaneous Appeal No.57 of 2014 inthe Court of Additional District Judge, Second Court, Sealdah, challengingsaid order dated 26.05.2014. Pending appeal, interim relief was prayed A

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SUPREME COURT REPORTS

Afor by the respondent and repeated adjournments on that count weresought by the respondent before the Arbitrator. The Arbitrator grantedaccommodation to the respondent on some occasions but as no interimorder was passed by the appellate court, the proceedings before theArbitrator continued. By ex-parte award dated 24.03.2015, the Arbitratoraccepted the claim preferred by the appellant. The award was a commonBaward covering claims in respect of all the four agreements. The awardobserved:- “The claimant company approached the Construction IndustryArbitration Council (CIAC), the institutional body set up for thispurpose, for appointment of an arbitrator as per provisions of theCagreement entered between the claimant company andrespondents to resolve the dispute that arose in between theclaimant company and the respondents. To resolve the dispute inbetween the parties, the CIAC assigned this matter to me (L.C.Jain) as sole arbitrator. Notice of reference sent by the claimantDcompany is dated 02.03.2012 and thereafter the arbitrator wasappointed and file was put up before the sole arbitrator who fixedthe date for appearance of parties.

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The respondent was provided ample opportunities and time toEsettle the account but the respondent failed to settle the accountand ultimately the claimant issued notice dated 02.03.2012 invokingthe arbitration clause of the abovesaid agreements in order tosettle the dispute with the respondent in accordance to theprovisions of CIAC manual and requested to CIAC for referringFthe matter to arbitration and accordingly the matter has beenreferred to arbitration. CIAC issued notice dated 30.05.2012 tothe respondents and asked for appearance and filing of reply/written statement on 04.07.2012.

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GOn receipt of the notice by the respondent, the respondent wroteto CIAC that an appeal has been filed before the Ld. AdditionalDistrict Judge, at Sealdah, Kolkata against the order of the Ld.Civil Judge and the matter may be adjourned and accordingly thematter was adjourned and intimation was sent to the respondents.The respondent was also informed that without obtaining a stayH

order from the court of Ld. Additional District Judge, at Sealdah,Kolkata, the proceedings will not be adjourned but the respondentshave not filed any stay order with CIAC in the arbitrationproceedings in this matter. For not putting appearance or by notfiling the reply/written statement, the respondent was proceededex-parte and intimation of the same was sent to respondent byCIAC. In fact, CIAC sent copy of all proceedings (orders) ofeach date to the respondent but the respondent every time onreceipt of intimation from CIAC continued to send the request foradjournment of the proceedings before the Sole Arbitrator throughCIAC and has never filed any copy of the stay order, if any passedby the Ld. Additional District Judge, at Sealdah, Kolkata, nor filedany reply/written statement or objections for consideration of theSole Arbitrator.

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The respondent has taken the plea before the Ld. Civil Judge thatthe agreements as mentioned above have not been entered byhim and all the documents are forged and fabricated and the Ld.Civil Judge in his order in the Civil Suit No.189 of 2012 hasconsidered these pleas of the respondent and after dueconsideration of these pleas, directed the respondent to join thearbitration proceedings. … …

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Thus the claimant is entitled to receive from the respondent anamount of :-

i)Rs.78,78,533/- (Rupees Seventy Eight Lacs SeventyEight Thousand Five Hundred Thirty Three only) i.e.claim amount.F

ii)Interest @ 11% per annum on the amount ofRs.78,78,533/- (Rupees Seventy Eight Lacs SeventyEight Thousand Five Hundred Thirty Three only) aspendente lite interest from 2.3.2012 i.e. from date ofreference invoking arbitration till the date of award i.e.G24.03.2015;

iii)Interest @ 11% per annum from the date of award i.e.from 25.03.2015 till realisation;

iv)The claimant has deposited with CIAC the cost ofarbitration i.e. arbitration fee and allied charges pertaining H

to the portion of respondent amounting to Rs.1,47,072/-(Rupees One Lac Forty Seven Thousand Seventy Twoonly) and the claimant is entitled to receive the samefrom the respondent.

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Claimant has been directed to deposit stamp paper worthBRs.12,000/- with CIAC for pronouncing the award and theclaimant accordingly filed the stamp paper worth Rs.12,000/- withCIAC and the award has been pronounced. The award has beenfiled with CIAC.”

Soon after the award, OMP No. 449 of 2015 was filed by theCappellant in the High Court of Delhi seeking relief under Section 9 of theAct post the passing of the award.

9. The respondent being aggrieved filed a petition under Section34 of the Act before the High Court at Calcutta being AP No.1141 of2015, which was dismissed by the High court on 17.07.2015 afterDobserving that it was not clear from the cause title how the petition couldhave been filed in the High Court.

10. Thereafter a petition under Section 34 of the Act was filed bythe respondent being Miscellaneous Case No.298 of 2015 in the Courtof District Judge, Alipore. The respondent reiterated its case about non-Eexistence of any agreement. It also stated, inter alia, that the venue ofarbitration in terms of the agreement dated 14.04.2011 was at Kolkata.

11. On 20.02.2016 the Appellate Court dismissed MiscellaneousAppeal No.57 of 2014 as not being maintainable.

12. On 06.01.2007, OMP No. 449 of 2015 was rejected by theFHigh Court of Delhi, inter alia, on the ground that no prime facie casewas made out by the appellant. It was, however observed that the dismissalwould not have any bearing on the decision that may be rendered in thepending petition under Section 34 of the Act before the Court at Alipore.

13. Being aggrieved by the order dated 20.02.2016, the respondentGfiled Revision Petitions being CO Nos.1320 and 1322 of 2016 in theHigh Court at Calcutta, which by its order dated 28.03.2017 dismissedsaid Revision Petitions as not being maintainable but reserved rights ofthe respondent to agitate all the issues within the ambit of Section 34 ofthe Act, in the proceedings pending before the Court at Alipore. SpecialLeave Petition (Civil) Nos.25279-25280 of 2017 arising therefrom wereHdismissed by this Court on 06.10.2017.

14. The petition filed by the respondent under Section 34 of theAct, viz. Miscellaneous Case No.298 of 2015 was, thereafter, dismissedby the Court at Alipore on 13.08.2018 with following observations:- “After perusal of the case record I find that there was an arbitrationclause in the agreement and the Arbitrator was appointed at NewDelhi and the Ld. Arbitrator has passed the award in favour ofthe opposite parties. The question of jurisdiction of Section 34 hasbeen raised. There are several case laws as cited by the Ld.Lawyer for the opposite parties. From the said case laws it isfound that the jurisdiction of Section 34 is where the arbitrationaward was passed or in the place where the seat of arbitrationwas agreed by the parties. In the recent case laws reported in2017 SCC Online SC 442[1], I find that the jurisdiction is exclusivelyin that place where the arbitration was done. Ld. Lawyer, for thepetitioner referred the agreement in between the parties statingthat there is a Clause of arbitration at Kolkata but in reply the Ld.Lawyer for the opposite parties stated that there are severalagreements and the place of arbitration is mentioned in otheragreements is at Delhi and accordingly the arbitration has madeat New Delhi and this Court has no jurisdiction to entertain of thisMisc. Case U/s 34 of the Act and only Courts at Delhi have thejurisdiction to entertain the same.

Accordingly, after careful scrutiny of the case record as well asthe observation of the Hon’ble Apex Court I find that the arbitrationaward was passed at New Delhi and accordingly the Court ofNew Delhi has the jurisdiction to entertain the application u/s 34of the Arbitration and Conciliation Act. This Court has nojurisdiction. So, the present case is bad for want of jurisdiction.”

15. The respondent initially challenged the Order dated 13.08.2018by filing Revision Petition (C.O. No.3400 of 2018) which was dismissedas not being maintainable by the High Court at Calcutta on the groundthat a remedy of filing a petition under Section 37 of the Act was available.The respondent thereafter filed appropriate petition being CAN No.10094of 2018 which was allowed by the High Court at Calcutta vide judgementdated 14.02.2019 with the following observations:- 1 Indus Mobile Distribution Pvt. Ltd. vs. Datavind Innovations Pvt. Ltd.: (2017) 7 SCC678.

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A“Accordingly, since it is evident from the cause title itself thatthe respondent herein was otherwise amenable to thejurisdiction of the Alipore court, the order impugned datedAugust 13, 2018 is set aside and Misc. Case No.298 of 2015(R.No.385 of 2015) is restored to the board of the AdditionalDistrict Judge, 16[th] Court at Alipore.”

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Said Judgment of the High Court is presently under challenge.

16. In the circumstances, it is clear that:-

(i) Though each of the four agreements provided for arbitration,the award rendered by the Arbitrator was a common award;Cand

(ii) In one of the agreements the venue was stated to be Kolkataand yet the proceedings were conducted at Delhi;

However, at no stage, the aforesaid objections were raised by theDrespondent before the Arbitrator and the respondent let the arbitralproceedings conclude and culminate in an ex-parte award. Therefore,the question that arises is whether the respondent could be said to havewaived the right to raise any of the aforesaid objections.

17. We heard Mr. Ritin Rai, learned Senior Advocate for theappellant and Mr. Kuriakose Varghese, learned Advocate for theErespondent.

18. Mr. Ritin Rai, learned Senior Advocate submitted that all thewhile the respondent was denying the existence of the agreementsbetween the parties; that after seeing the agreements in original theCivil Court had accepted the application preferred by the appellant underFSections 5 and 8 of the Act; that the decision rendered by the Civil Courtattained finality with the dismissal of Special Leave Petition by this Court;that the respondent chose not to participate in the arbitration proceedings;and that it was only at the stage of preferring petition under Section 34of the Act that a submission was raised about the venue of arbitration. It Gwas submitted that having chosen not to raise any objection on the issueof jurisdiction or competence of the Arbitrator to go ahead with thematter pertaining to issue covered by arbitration, the respondent must betaken to have waived any such objection. It was submitted that, in anycase, the Arbitrator was appointed through Construction IndustryArbitration Association (‘CIAA’, for short) which was also the modalityHunder the agreement dated 14.04.2011.

In response, it was submitted by Mr. Varghese, learned Advocatethat every arbitration agreement had to be considered independentlyand if an agreement specified the venue to be at Kolkata, the partyautonomy in that behalf ought to be respected. Reliance was placed onthe decision of this Court in Duro Felguera, S.A. vs. GangavaramPort Limited[2], where there were six arbitral agreements and each oneof them was subject matter of independent reference to arbitration.

19. Before we deal with the nature of controversy, we may extractrelevant provisions namely Sections 4, 16 and 20 of the Act.:- “4. Waiver of right to object.- A party who knows that-

a) Any provision of this Part from which the parties mayderogate, or

b) Any requirement under the arbitration agreement, Has not been complied with and yet proceeds with thearbitration without stating his objection to such non-compliance without undue delay or, if a time limit is providedfor stating that objection, within that period of time, shall bedeemed to have waived his right to so object.

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16. Competence of arbitral tribunal to rule on itsjurisdiction.-

(1) The arbitral tribunal may rule on its own jurisdiction, includingruling on any objections with respect to the existence or validityof the arbitration agreement, and for that purpose, - a)An arbitration clause which forms part of a contract shallbe treated as an agreement independent of the other termsof the contract; and b)A decision by the arbitral tribunal that the contract is nulland void shall not entail ipso jure the invalidity of thearbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shallbe raised not later than the submission of the statement of defence;however, a party shall not be precluded from raising such a plea A

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Amerely because that he has appointed, or participated in theappointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of itsauthority shall be raised as soon as the matter alleged to be beyondthe scope of its authority is raised during the arbitral proceedings.

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(4) The arbitral tribunal may, in either of the cases referred to insub-section (2) or sub-section (3), admit a later plea if it considersthe delay justified.

(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takesa decision rejecting the plea, continue with the arbitral proceedingsand make an arbitral award.

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(6) A party aggrieved by such an arbitral award may make anapplication for setting aside such an arbitral award in accordancewith section 34.

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20. Place of arbitration. - (1) The parties are free to agree onthe place of arbitration.

(2) Failing any agreement referred to in sub-section (1), the placeEof arbitration shall be determined by the arbitral tribunal havingregard to the circumstances of the case, including the convenienceof the parties.

(3) Notwithstanding sub-section (1) or sub-section (2), the arbitraltribunal may, unless otherwise agreed by the parties, meet at anyFplace it considers appropriate for consultation among its members,for hearing witnesses, experts or the parties, or for inspection ofdocuments, goods or other property.”

20. While dealing with a case where instead of an odd number ofArbitrators, as is contemplated under Section 10 of the Act, the partiesGhad agreed to arbitration of two Arbitrators and where objection in thatbehalf was not taken before the Arbitrators, a three Judge Bench of thisCourt in Narayan Prasad Lohia vs. Nikunj Kumar Lohia and others[3]considered the amplitude and applicability of Section 4 of the Act. Therelevant paragraphs of the decision are:-

“5. On 22-12-1997 the 1st respondent filed an application in theCalcutta High Court for setting aside the award dated 6-10-1996.On 17-1-1998 the 2nd respondent filed an application for settingaside this award. One of the grounds, in both these applications,was that the arbitration was by two arbitrators whereas under theArbitration and Conciliation Act, 1996 (hereinafter called “the saidAct”) there cannot be an even number of arbitrators. It wascontended that an arbitration by two arbitrators was against thestatutory provision of the said Act and therefore void and invalid.It was contended that consequently the award was unenforceableand not binding on the parties. These contentions found favourwith a Single Judge of the Calcutta High Court who set aside theaward on 17-11-1998. On 18-5-2000 the appeal was also dismissed.Hence this appeal to this Court.

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8. Mr Venugopal submits that Section 10 of the said Act is amandatory provision which cannot be derogated. He points outthat even though the parties are free to determine the number ofarbitrators such number cannot be an even number. He submitsthat any agreement which permits the parties to appoint an evennumber of arbitrators would be contrary to this mandatoryprovision of the said Act. He submits that such an agreementwould be invalid and void as the Arbitral Tribunal would not havebeen validly constituted. He submits that composition of the ArbitralTribunal itself being invalid, the proceedings and the award, evenif one be passed, would be invalid and unenforceable.

9. Mr Venugopal submits that Section 4 of the said Act wouldonly apply provided:

(a) a party knew that he could derogate from any provision of thispart, or (b) a party knew that any requirement under the arbitrationagreement had not been complied with and the party still proceeded with the arbitration. He submits that,this case does not fall under category (b) above. He submits thateven category ( a) would not apply because waiver can only be inrespect of a matter from which a party could derogate. He submitsthat in respect of provisions which are non-derogable there can A

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be no waiver. He submits that Section 10 is a provision from whicha party cannot derogate. He submits that matters from which aparty cannot derogate are those provided in Sections 4, 8, 9, 10,11(4) and (6), 12, 13(4), 16(2), (3) and (5), 22(4), 27, 31, 32, 33,34(2) and (4), 35, 36, 37, 38(1) and 43(3). He submits that, asagainst this, matters from which a party can derogate are thoseprovided under Sections 11(2), 19(1) and (2), 20(1) and (2), 22(1),24, 25, 26 and 31(3).

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14. We have heard the parties at length. We have considered thesubmissions. Undoubtedly, Section 10 provides that the numberof arbitrators shall not be an even number. The question stillremains whether Section 10 is a non-derogable provision. In ourview the answer to this question would depend on the question asto whether, under the said Act, a party has a right to object to thecomposition of the Arbitral Tribunal, if such composition is not inaccordance with the said Act, and if so, at what stage. It must beremembered that arbitration is a creature of an agreement. Therecan be no arbitration unless there is an arbitration agreement inwriting between the parties.

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16. It has been held by a Constitution Bench of this Court, in thecase of Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd.[4]that Section 16 enables theArbitral Tribunal to rule on its ownjurisdiction. It has been held that under Section 16 the ArbitralTribunal can rule on any objection with respect to existence orvalidity of the arbitration agreement. It is held that the ArbitralTribunal’s authority under Section 16, is not confined to the widthof its jurisdiction but goes also to the root of its jurisdiction. Notonly this decision is binding on this Court, but we are in respectfulagreement with the same. Thus it is no longer open to contendthat, under Section 16, a party cannot challenge the compositionof the Arbitral Tribunal before the Arbitral Tribunal itself. Such achallenge must be taken, under Section 16(2), not later than thesubmission of the statement of defence. Section 16(2) makes itclear that such a challenge can be taken even though the party H4 (2002) 2 SCC 388

may have participated in the appointment of the arbitrator and/ormay have himself appointed the arbitrator. Needless to state aparty would be free, if it so chooses, not to raise such a challenge.Thus a conjoint reading of Sections 10 and16 shows that anobjection to the composition of the Arbitral Tribunal is a matterwhich is derogable. It is derogable because a party is free not toobject within the time prescribed in Section 16(2). If a partychooses not to so object there will be a deemed waiver underSection 4. Thus, we are unable to accept the submission thatSection 10 is a non-derogable provision. In our view Section 10has to be read along with Section 16 and is, therefore, a derogableprovision.

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20. Respondents 1 and 2 not having raised any objection to thecomposition of the Arbitral Tribunal, as provided in Section 16,they must be deemed to have waived their right to object.”

Thus, even stipulation in Section 10 that number of Arbitrators“shall not be an even number” was found to be a derogable provisionandsince no objections were raised to the composition of the ArbitralTribunal, as provided in Section 16, the concerned respondents weredeemed to have waived their right to object.

21. In Duro Felguera[2] the submission that for convenience ofeither side the original contract was split into five different contracts andas such there ought to be a composite reference to arbitration coveringall the contracts was not accepted by this Court. It was found by thisCourt:- “42. … … The case in hand stands entirely on different footing.As discussed earlier, all five different packages as well as theCorporate Guarantee have separate arbitration clauses and theydo not depend on the terms and conditions of the Original PackageNo. 4 TR nor on the MoU, which is intended to have clarity inexecution of the work.”

Incidentally, it was a case of International Commercial Arbitrationand in each of those agreements the seat of Arbitration was at Hyderabad.Moreover, the matter had arisen from an arbitration petition preferredunder Section 11(6) of the Act.

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A22. In the present case the arbitration in question is a domesticand an institutional arbitration where CIAA was empowered to and didnominate the Arbitrator. It is not as if there were completely differentmechanisms for appointment of Arbitrator in each of the agreements.The only distinction is that according to one of the agreements the venuewas to be at Kolkata. The specification of “place of arbitration” mayBhave special significance in an International Commercial Arbitration,where the “place of arbitration” may determine which curial law wouldapply. However, in the present case, the applicable substantive as wellas curial law would be the same.

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23. It was possible for the respondent to raise submissions thatCarbitration pertaining to each of the agreements be considered and dealtwith separately. It was also possible for him to contend that in respect ofthe agreement where the venue was agreed to be at Kolkata, the arbitrationproceedings be conducted accordingly. Considering the facts that therespondent failed to participate in the proceedings before the ArbitratorDand did not raise any submission that the Arbitrator did not havejurisdiction or that he was exceeding the scope of his authority, therespondent must be deemed to have waived all such objections.

24. In the circumstances, the respondent is now precluded fromraising any submission or objection as to the venue of arbitration, theEconclusion drawn by the Court at Alipore while dismissing MiscellaneousCase No.298 of 2015 was quite correct and did not call for anyinterference. The High Court, in our view, was in error in setting asidesaid Order. In any case, the fact that the cause title showed that thepresent appellant was otherwise amenable to the jurisdiction of the AliporeCourt, could not be the decisive or determining criteria.F

25. We, therefore, allow this appeal, set aside the Judgment andOrder under appeal and restore the Order dated 13.08.2018 passed bythe Court at Alipore in Miscellaneous Case No. 298 of 2015. No costs.

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Divya Pandey

Appeal allowed.

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