The main legal point established in the judgment is that the arbitration clauses specifying London as the seat of arbitration implied exclusion of Part I of the Arbitration Act, leading to the court's conclusion that it did not have jurisdiction to entertain the petition.

JAYANT NATH, J.

1. This petition is filed under section 34 of the Arbitration and Conciliation Act, 1996 seeking to challenge the final award dated 22.8.2016, partial award on jurisdiction dated 2.2.2015 and partial award on costs of jurisdictional challenge dated 15.12.2015 passed by the learned Arbitral Tribunal.

2. I may note that when this matter came up for hearing on 10.1.2017 notice was issued confined to the issue of maintainability of the present petition under section 34 of the Arbitration and Conciliation Act, 1996.

3. Some of the relevant facts are that CAF Spain (respondent No.1) and Reliance Infrastructure Limited jointly bid for the Airport Metro Express Line Project in New Delhi. The project connects Indira Gandhi International Airport, New Delhi with the city of New Delhi. The two parties, namely, CAF Spain and Reliance had entered into an MOU on 24.3.2007. They further entered into a Consortium Agreement on 9.10.2007. The respondent No.2/CAF India is a company incorporated under the Companies Act, 1956 and is wholly owned subsidiary of CAF Spain/respondent No.1.

4. The Consortium comprising CAF Spain and Reliance was awarded the project by DMRC on 21.1.2008. As per the requirements of the contract the consortium incorporated the petitioner company on 1.4.2008 as the special purpose vehicle to partly implement and then operate the project. Reliance had 95% equity shares and CAF Spain had 5% equity shares. The petitioner and respondent No.1 entered into two Agreements, namely, Rolling Stock Supply Contract (hereinafter referred to as “the Supply Contract”) vide contract dated 30.6.2008 and Maintenance Services Agreement (hereinafter referred to as “the Maintenance Contract”) also executed on 30.6.2008. It is stated that by Agreement dated 17.5.2010, respondent No.1 assigned its obligations under the Maintenance Contract to respondent No.2. On 25.08.2008 a Concession Agreement for implementing the project was executed between the petitioner and DMRC. On 20.8.2008 respondent No.1 issued a performance bank guarantee for furtherance of the contractual understanding with the petitioner.

5. Disputes arose between the parties as the petitioner alleged defects in the Rolling Stock provided by respondent No.1 under the Supply Contract. Disputes also arose regarding the invoices raised by respondent No.2 under the Maintenance Contract and on the other obligations of the parties under the Supply Contract and the Maintenance Contract.

6. On 16.7.2013 petitioner notified respondent No.1 that the petitioner shall be encashing the Performance Bank Guarantee on account of its failure to cure the defects. The respondent No.1 filed a petition before this Court being OMP 695/2013 challenging the said action. The said OMP was dismissed on 17.1.2014 by this court. The petitioner received from the bank the Performance Bank Guarantee amount of Euro 4,761,963.50/- on 20.1.2014. An appeal was filed by respondent No.1 being FAO(OS)58/2014 which was withdrawn on 24.1.2014.

7. In the meantime, the Concession Agreement with DMRC stood terminated. The petitioner served a letter dated 27.6.2013 on DMRC for handing over of the project assets post termination of the Concession Agreement. DMRC took over the project w.e.f. 1.7.2013. Thereafter the respondents filed a joint request for arbitration dated 21.1.2014 under Article 22 of the Supply Contract and Article 14 of the Maintenance Contract in respect of the respective claims. An Arbitral Tribunal was constituted to adjudicate upon the disputes.

8. The case of the petitioner is that the learned Arbitral Tribunal had no jurisdiction to hear the claims of respondent No.1 under the Maintenance Contract because the agreement was between two companies incorporated in India and, therefore, the arbitration must be governed by the laws in India. Hence, it was pleaded by the petitioner that disputes between the petitioner and respondent No.2 could not be decided at any place other than India. The pe