Parties must adhere to arbitration and jurisdiction clauses as per original agreement, and any modifications require explicit agreement; the original jurisdiction remained binding.

JUDGMENT :

Dhiraj Singh Thakur, C.J.

This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) for reference of the disputes for arbitration by an independent Arbitrator.

Briefly stated, the material facts are as under :

2. The applicant claims to be engaged in the business of bakery fats, fats for frozen desserts, etc., which are sold within and outside the country. The respondent, it is stated, also is a Company registered under the Companies Act, 1956, and engaged in the business of equipment such as spray coolers, industrial dryers, flue gas desulphurization systems, bag filters, homogenizers etc.

3. The applicant claims that it invited offers for design, supply and commissioning of equipment in its factory at Pantapalem Village in SPSR Nellore District. The respondent responded by making the offer to the applicant vide email, dated 25.10.2018. The said offer, among others, contained clause 28 dealing with arbitration and clause 29 dealing with jurisdiction, which are reproduced hereunder:

“28. Arbitration:

In the event of any dispute or difference between the parties arising out of this contract, the same shall unless amicably settled, be referred to three arbitrators, one to be appointed by each party to the contract and the 3rd Presiding Arbitrator appointed by the two arbitrators.

Arbitrators will be selected from the Fellows of Institution of Engineers (India). The decision of the majority of the Arbitrators shall be final and binding on both the parties. The arbitration proceedings shall commence once any one party to the contract communicates to the other party regarding invocation of arbitration agreement along with the name of the nominee joint arbitrator. The other party shall appoint its nominee joint arbitrator within a period of 30 days from the date of receipt of communication regarding invocation of arbitration agreement. In the event of failure by the other party to appoint it's nominee joint arbitrator as aforesaid, the nominee joint arbitrator appointed while invoking the arbitration agreement shall act as the sole arbitrator and the arbitration proceedings shall continue as directed by the sole arbitrator. The arbitration proceedings shall take place at Pune, Maharashtra, India.

This agreement is for arbitration within the meaning of the Arbitration and Conciliation Act 1996, including any statutory re-enactment or any other modification thereof.

29. Jurisdiction :

All contracts between purchasers and ourselves are deemed to be entered into in India at Pune, Maharashtra and are therefore, subject to the jurisdiction of courts in India at Pune unless otherwise specifically agreed in written by TTSPL.”

4. The applicant claims that based on the offer of the respondent, the applicant gave conditional acceptance of the said offer by a counter offer in the form of a purchase order, dated 20.10.2018, with certain modified terms and conditions via email, dated 25.10.2018, which according to the applicant were accepted without any demur and thus proceeded to make a request for payment from the applicant so that the contract could be performed.

The conditional acceptance of the counter offer made by the applicant through its asset purchase order, dated 20.10.2018, at the very bottom of the said purchase order as a matter of fine print, talked about jurisdiction as under:

“JURSIDICTION: all disputes are subject to Tadepalligudem jurisdiction only”

5. The applicant claims that disputes have arisen between the parties in reference to the contract in question and since there is an arbitration agreement, they have to be referred to for adjudication in terms of clause