The jurisdiction in arbitration applications is determined by the chosen seat of arbitration, irrespective of prior applications filed in other courts.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. During arguments on the merits of the application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the 1996 Act”), a query was posed by the Court as to whether the present applications under Sections 34 and 36 of the said Act are maintainable before this Court, by operation of Section 42 of the 1996 Act, since an earlier application under Section 14 of the said Act had been preferred before the Delhi High Court and was decided by it.

2. Learned Counsel appearing for the petitioner in the application under Section 34 of the 1996 Act contends that if the parties choose a particular forum as the seat of arbitration, the courts having jurisdiction over such seat will be the courts of competent jurisdiction for taking up applications arising out of the arbitral proceeding. It is pointed out that Section 42 of the 1996 Act uses the expression “Court”, which, in turn, relates back to Section 2(1) (e) (i) of the said Act in case of a domestic arbitration and as such, the expression “Court” used in Section 42 has to be read as a “court of competent jurisdiction”. Learned Counsel cites in support of the proposition the following Judgments:

1. (2020) 4 SCC 234 [BGS SGS SOMA JV vs NHPC Limited];

2. (2020) 4 SCC 310 [Hindustan Construction Company Limited vs NHPC Limited];

3. (2023) 1 SCC 693 [BBR (India) Private Limited vs SP Singla Construction Company Private Limited]

3. Learned Counsel appearing for the respondent in the application under Section 34, on the other hand, seeks to argue that although the bar under Section 42 may be applicable to an application under Section 34 of the 1996 Act by operation of Section 42, such fetter is not attracted in case of an application under Section 36 of the said Act. By virtue of Section 32 of the 1996 Act, it is submitted, an arbitration proceeding reaches its terminus with the passing of the award.

4. Section 36 of the 1996 Act provides for enforcement of the award akin to a Civil Court’s decree and, as such, takes place only after termination of the arbitration proceeding. Coming back to Section 42 of the 1996 Act, it is pointed out that the expression used therein is “that Court alone shall have jurisdiction over the arbitral proceedings”. Thus, if the arbitral proceeding is itself terminated, an application under Section 36 does not acquire the character of an application in respect of the “arbitral proceeding” and, hence, cannot come within the purview of Section 42.

5. In support of such contention, learned Counsel cites Sundaram Finance Limited Versus Abdul Samad And Another, reported at (2018) 3 SCC 622 where the Hon’ble Supreme Court, by placing reliance on Sections 32, 36 and 42 of the 1996 Act respectively, came to such conclusion.

6. Learned Counsel submits that in subsequent judgments as well, the same line of reasoning was followed.

7. Upon a careful perusal of the judgments in BGS SGS SOMA JV (Supra) and the subsequent judgments following the same, this Court is of the considered opinion that three possibilities have been envisaged by the Hon’ble Supreme Court in such situations as the present one.

8. First, if the parties do not choose a seat of arbitration at all, Section 42 of the 1996 prevails and the first application in connection with an arbitral proceeding or the arbitral agreement determines the Court which has jurisdiction to entertain all subsequent applications arising out of the said agreement or proceeding.

9. Under the second scenario, if the parties h