1. A recent judgment of the Supreme Court reported at (2017) 7 SCC 678 (Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited) has given rise to a number of matters all over the country in Courts which may not otherwise possess the jurisdiction to receive such arbitration petitions or applications. It must be said that in most of such cases the ratio decidendi in Indus Mobile has been misunderstood, particularly as the dictum in Indus Mobile has to be read down in view of the longstanding rule enunciated in the judgment reported at (1971) 1 SCC 286 (Hakam Singh v. Gammon India Ltd), which was not noticed in Indus Mobile. The judgment in Indus Mobile, however, cannot govern the situation that has arisen in this case even if the dictum therein were to be applied since the agreement between the parties herein did not indicate a chosen seat for the arbitral reference.

2. In Indus Mobile, the agreement between the parties contained a forum selection clause and also a clause designating the seat of the arbitral reference. Both clauses identified Mumbai as the appropriate place. It was in such context that the Supreme Court held that when the Courts at a place are identified by a forum selection clause and such place is also the agreed seat of the arbitral reference, the Courts at such place would have exclusive jurisdiction to entertain all petitions and applications under Part I of the Arbitration and Conciliation Act, 1996 (except, for obvious reasons, matters under Sections 8 and 11 thereof) pertaining to the relevant arbitration agreement. So much is necessary to be seen of the judgment in Indus Mobile in the present context.

3. The parties herein entered into an agreement for the sale of shares in a company by the name of Khoribari Cold Storage Private Limited. The agreement was entered into on January 21, 2013 and the first page of the agreement indicated that the place of the agreement was Siliguri. The agreement envisaged the sale by the appellants of the entire shareholding in the relevant company and the take-over by the respondents of the relevant company together with its assets and liabilities. The agreed consideration was indicated in the agreement.

4. The agreement of January 21, 2013 contained an arbitration clause to the following effect :

“11. Arbitration :

11.1 Disputes and differences by and between the parties with regard to, arising out of or touching this Agreement shall be referred to the sole arbitration of Sri __________________ of _________(Sole Arbitrator), being a referral within the meaning of the Arbitration and Conciliation Act, 1996. The Sole Arbitrator shall have the right to decide the venue and procedure of arbitration. The directions and award of the Sole Arbitrator shall be binding on the Parties.”

5. The said agreement also contained a forum selection or jurisdiction clause to the following effect:

“12. Jurisdiction :

12.1 Only Courts having territorial jurisdiction over the Said Property shall be entitled to receive, try and entertain actions between the Parties arising out of the aforesaid arbitration proceedings.”

6. It appears that upon disputes and differences arising between the parties in relation to the said agreement of January 21, 2013, the respondents herein carried AP 1224 of 2014 to this Court under Section 9 of the 1996 Act. However, before effecting service of a copy of such petition on the appellants herein, the petition was dismissed for default by an order dated August 25, 2014. A copy of the relevant petition has been produced by the department pursuant to a direction issued by this Bench and it is evident that such petition was filed under Section 9 of the 1996 Act.

7. Earlier, the respondents herein carried a request under Section 11 of the 1996 Act for the constitution of an arbitral tribunal since the arbitration agreement between the parties quoted above did not name any arbitrator. Such request was disposed of by the designate of the Chief J