Arbitration and Conciliation Act, 1996 – ss.4, 16, 20 and 34 – Four agreements entered into between the parties – Dispute – Sole arbitrator appointed – In one of the agreements the venue was Kolkata but proceedings were conducted at Delhi – Litigation ensued both before the Courts at Kolkata and Delhi – Common ex-parte award passed – Respondent filed petition u/s.34 in the Court of District Judge, Alipore – Dismissed – Order set aside by High Court – Held: Arbitration in question is a domestic and an institutional arbitration where Construction Industry Arbitration Association (CIAA) was empowered to and did nominate the Arbitrator – It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements – Only distinction is that as per one of the agreements, the venue was to be at Kolkata – Specification of “place of arbitration” may have special significance in an International Commercial Arbitration, where the “place of arbitration” may determine which curial law would apply – However, in the present case, the applicable substantive as well as curial law would be the same – Further, respondent neither participated in arbitration proceedings nor objected to jurisdiction of the Arbitrator, thus deemed to have waived all such objections – Now precluded from raising any objection as to the venue of arbitration – Conclusion drawn by the Court at Alipore was correct – Order of High Court set aside while that of the Court at Alipore is restored.
Allowing the appeal, the Court
HELD: 1.1 In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of “place of arbitration” may have special significance in an International Commercial Arbitration, where the “place of arbitration” may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections. [Paras 22-23] [288-A-D]
1.2 The respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria. [Para 24][288-E]
Narayan Prasad Lohia v. Nikunj Kumar Lohia and Others (2002) 3 SCC 572 : [2002] 1 SCR 1136 - relied on.
Duro Felguera, S.A. v. Gangavaram Port Limited (2017)
9 SCC 729 : [2017] 10 SCR 285 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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