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IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, YOGESH KHANNA, JJ.
Antrix Corporation Ltd. – Appellant
Versus
Devas Multimedia Pvt. Ltd. – Respondent
FAO (OS) (COMM) No. 67 of 2017, C.M. Application Nos. 11214, 17730 of 2017
Decided On : 30-05-2018
Whether the Commercial Appellate Division of the High Court has exclusive jurisdiction to adjudicate any applications arising out of the arbitration agreement between Antrix and Devas? Whether Section 42 of the Arbitration Act precludes and bars this court from hearing and deciding the application preferred by Devas, in the facts and circumstances of the case?
Fact of the Case:
Antrix and Devas entered into an agreement in 2005 for the Lease of Space Segment Capacity on ISRO/Antrix S-Band Spacecraft. In 2011, Antrix terminated the agreement and Devas approached the International Chamber of Commerce (Paris) for arbitration. The arbitral tribunal constituted by the ICC notified the request to Antrix. Antrix nominated a former judge of the Supreme Court of India as its Arbitrator in terms of Article 20 (a) of the Agreement. Devas entered appearance in AA No. 483/2011 before the Bangalore City Civil Court under Section 9 of the Arbitration Act, seeking certain reliefs, including restraining Antrix from proceeding with the ICC arbitration. Devas also filed a petition under Section 9 of the Arbitration Act, before the Delhi High Court, being OMP (I) 558/2015. Antrix applied to the Bangalore City Civil Court under Section 34 of the Act challenging the Award dated 14.09.2015. Devas filed an application under Section 9 of the Arbitration Act, before the Delhi High Court, being OMP (I) 558/2015. The Delhi High Court held that Antrix's petition under Section 9 before the Bangalore City Civil Court was not maintainable and Devas' petition under Section 9, being OMP (I) 558/2015, was maintainable and the bar under Section 42 of the Act was inapplicable to the present case to exclude the jurisdiction of the Delhi High Court. Aggrieved, Antrix preferred an appeal.
Finding of the Court:
The Commercial Appellate Division of the High Court does not possess the exclusive jurisdiction to deal with or adjudicate any applications arising out of the arbitration agreement between Antrix and Devas. Section 42 of the Arbitration Act precludes and bars this court from hearing and deciding the application preferred by Devas, in the facts and circumstances of the case.
Issues: 1. Whether the present appeal under Section 13 of the Commercial Courts Act is maintainable? 2. Whether this court possesses the exclusive jurisdiction to deal with or adjudicate any applications arising out of the arbitration agreement between Antrix and Devas? 3. Whether Section 42 of the Arbitration Act precludes and bars this court from hearing and deciding the application preferred by Devas, in the facts and circumstances of the case?
Ratio Decidendi: 1. The proviso to Section 13(1) of the Commercial Courts Act restricts the right of appeal to only those orders specified therein and does not amplify the scope of appealable orders as provided in Section 37 of the Arbitration Act. 2. The designation of seat is equivalent to the specification of an exclusive forum selection clause, such that all applications under the Arbitration Act can only be made to the courts at the seat, and no other court. 3. An application made to a court which does not have jurisdiction under the Act, as it does not fall within the ambit of Section 2(1)(e) in the sense that it is neither a Principal Court of original jurisdiction in a district nor, as the case may be, a High Court exercising original jurisdiction in a State, or because it is a court that lacks subject matter jurisdiction, would not attract Section 42.
Final Decision: Appeal allowed; impugned judgment and order of the single judge holding that this court alone has jurisdiction over the award, is set aside.
S. RAVINDRA BHAT, J.
Facts
1. This appeal under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereafter “CC Act”) impugns the decision of a Learned Single Judge of this Court dated 28.02.2017 in OMP (I) No. 558/2015.
2. The facts are that on 28.01.2005 an agreement was entered into at Bangalore for the Lease of Space Segment Capacity on ISRO/Antrix S-Band Spacecraft between Devas (referred to hereafter by its name, an incorporated company registered office at Bangalore), and the appellant (hereafter “Antrix”) a Union Government of India undertaking also with its registered office at Bangalore. Article 20 of the agreement provided for arbitration as the method for resolving disputes arising out of the agreement.
3. On 17.02.2011, the Union Cabinet Committee on Security (“CCS”) resolved to deny orbital slot in S-band to Antrix for any commercial activities and to direct annulment of the Agreement (dated 28.01.2005). Antrix consequently terminated the agreement by letter of termination issued to Devas, dated 25.02.2011. Subsequently, invoking the arbitration clause, on 29.05.2011, Devas approached the International Chamber of Commerce (Paris, hereafter “ICC”) requesting for arbitration. The ICC notified the request, on 05.07.2011, to Antrix. In the letter to Antrix, the ICC stated that a portion of the arbitration clause in the agreement (Article 20), substantially departed from the ICC Rules and that it was not in a position to accept such a departure from its own Rules. The ICC further stated that should the parties wish the ICC Court to administer the case, then the arbitration will be conducted in accordance with Article 31 of its Rules and unless the parties objected within 5 days of this communication, it would be deemed that they have accepted to conduct the proceedings in accordance with the ICC Rules.
4. Antrix however did not accept the above stipulation. It wrote to the ICC on 11.07.2011 objecting to the ICC proceeding with the arbitration. On 30.07.2011, Antrix nominated a former judge of the Supreme Court of India as its Arbitrator in terms of Article 20 (a) of the Agreement. It also filed a petition (AA No. 20/2011) under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter “Arbitration Act”) before the Chief Justice of India, seeking a direction to constitute an arbitral tribunal.
5. By letter, dated 13.10.2011, ICC, however, informed Antrix that it had appointed a former Chief Justice of India as Co-Arbitrator on its behalf (i.e. Antrix) under Article 9(6) of the ICC Rules. By the same letter, ICC also confirmed the appointment of the co-Arbitrator nominated by Devas under Rule 9 (1) of the ICC Rules. The two nominee Arbitrators were given 20 days to finalise the name of the third Arbitrator. They, however, sought more time in view of the pendency of AA No. 20/2011 before the Chief Justice of India. Therefore on 10.11.2011, the ICC itself appointed Dr. Michael Pryles as Chairman of the arbitral tribunal.
6. On 05.12.2011, Antrix filed AA No. 483/2011 before the Bangalore City Civil Court (hereafter “Bangalore court”) under Section 9 of the Arbitration Act seeking certain reliefs, including restraining Devas from proceeding with the ICC arbitration contrary to the agreement between the parties, restraining Devas from getting the agreement between the parties modified or substituted by the ICC and restraining the arbitral tribunal constituted by the ICC from proceeding with the arbitration.
7. Devas entered appearance in AA No. 483/2011 before the Bangalore court on 07.12.2011 and sought time to file objections. On 09.04.2012 meanwhile, the Chief Justice’s designate in AA No. 20/2011, stayed the ICC arbitration. On 10.05.2013, the Supreme Court dismissed AA No. 20/2011, by which time the arbitral tribunal under the ICC Rules had already been constituted. While dismissing this Section 11 application by Antrix, it was held that
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