In a domestic arbitration, the selected forum should have precedence over the seat of arbitration to give primacy to party autonomy.

JUDGMENT

Debangsu Basak, J. - The petitioner has applied under Section 9 of the Arbitration and Conciliation Act, 1996 for interim protection.

2. Learned Advocate appearing for the respondent has raised objections of lack of jurisdiction. Since the respondent has raised the issue of jurisdiction, the respondent has been allowed to address the Court first.

3. Learned Advocate appearing for the respondent has submitted that, the parties entered into a leave and license agreement dated July 11, 2019. He has referred to Clause 16.7 of the leave and license agreement dated July 11, 2019. He has submitted that, since the parties agreed that the seat of arbitration shall be at New Delhi, the Courts at New Delhi has exclusive jurisdiction to try, entertain and determine any proceeding under the Act of 1996. In support of his contentions, he has relied upon the order dated November 23, 2017 passed by the Delhi High Court in Arbitration Petition No. 444 of 2017 (Ramandeep Singh Taneja v. Crown Realty), (M/s. Devyani International Ltd. v. Siddhivinayak Developers & Builders,2017 SCCOnline 11156), the order dated February 7, 2018 passed in Arbitration Petition No. 529 of 2017 (M/s. N J Construction v. Ayursundra Healthcare Pvt. Ltd.) , the order dated January 21, 2020 passed in Arbitration Petition No. 334 of 2019 (Cinepolis India Pvt. Ltd. v. City Projects Pvt. Ltd.) , the order dated March 4, 2020 passed in Transfer Petition No. 3053 of 2019 (HCC v. NHPC) , the order dated July 6, 2020 passed in Arbitration Petition No. 662 of 2019 (Aarka Sports Management Pvt. Ltd. v. Kalsi Buildcon Pvt. Ltd.) and the order dated December 10, 2012 passed in Civil Appeal 9307 of 2019 (BGS SGS Soma v. NHPC Ltd.) .

4. Learned Advocate appearing for the respondent has submitted that, Clause 16.6 of the leave and licence agreement dated July 11, 2019 does not affect the choice of jurisdiction of the parties. He has submitted that, since the parties agreed to the seat of arbitration to be at New Delhi, Clause 16.6 will not have overriding effect on Clause 16.7.

5. Learned Advocate appearing for the respondent has taken the point of pecuniary jurisdiction of this Hon'ble Court. He has submitted that, the Courts at Alipore will have jurisdiction over the subject matter of the present petition.

6. Learned Advocate appearing for the petitioner has submitted that, this Hon'ble Court has the jurisdiction to try, entertain and determine the instant proceedings. He has submitted that, the leave and licence agreement dated July 11, 2011 was entered into by the parties at Kolkata and in fact, at the registered office of the petitioner at Kolkata which is within the ordinary original civil jurisdiction of this Hon'ble Court.

7. Learned Advocate appearing for the petitioner has referred to Clauses 16.6 and 16.7 of the leave and licence agreement dated July 11, 2019 and submitted that, when the parties selected the forum for adjudication, then, such selected forum will have precedence notwithstanding the parties have agreed that the seat of arbitration will be at a different place. He has submitted that, when there is a conflict between the forum selected by the parties and the seat of arbitration, in the case of a domestic arbitration, then, the forum selection clause will prevail. In support of his contentions, learned Advocate appearing for the petitioner has relied upon Section 2(2) and Section 9 of the Act of 1996. He has submitted that, the seat of arbitration and the venue of the arbitration are concepts borrowed from International Arbitration Law. He has referred to and relied upon ( M/s. Swastik Gases P. Ltd. v. Indian Oil Corp. Ltd., (2013) 9 SCC 32) , ( Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited, (2017) 7 SCC 678) , ( Mankastu Impex Private Limited v. Airvisual Limited, (2020) 5 SCC 399) , ( Brahmani River Pellets Limited v. Kamachi Industries Limited, (2020) 5 SCC 462) and the order dated November 17, 2020 passed by the D