The main legal point established in the judgment is that the agreed-upon juridical seat of arbitration and the exclusive jurisdiction clause are binding, and the rendering of the award in a different location does not alter the agreed-upon seat of arbitration.

JUDGMENT

V. Kameswar Rao, J. - This petition has been filed under Section 34 of the Arbitration & Conciliation Act, 1996 (''Act of 1996'', for short) challenging the Award dated May 05, 2020.

2. A preliminary objection has been taken by Mr. Sandeep Sethi, Ld. Sr. Counsel appearing for the respondent that this petition is not maintainable in this Court. In this regard, he stated that the Agreement dated July 20, 2005 (''Agreement'', for short) between the parties contains an arbitration clause in Article 25.4 (''arbitration clause'', for short) which clearly states that (i) the arbitration proceedings shall be held in Durgapur, West Bengal and (ii) the Courts of Durgapur, West Bengal shall have exclusive jurisdiction over all matters of dispute. The parties have expressed their clear and unmistakable intent in writing that the juridical seat of the arbitration shall be at Durgapur, West Bengal with vesting of exclusive jurisdiction on the courts at Durgapur, West Bengal.

3. In the present case while for convenience sake, the hearing of arbitration was held at New Delhi, the juridical seat remained to be Durgapur, West Bengal as per the arbitration clause. The petitioner has failed to disclose any circumstances or any instrument in writing denoting any change in the choice of seat of the arbitration. Further, there was no agreement between the parties to alter the seat of the arbitration. The parties only chose to hold the proceedings in New Delhi for the sake of convenience. He draws the attention of the Court to Article 28.3 of the Agreement, which clearly stipulates that any amendment to the Agreement has to be in writing signed by the representatives of the parties. In the absence of any such agreement in writing, the exclusive jurisdiction and choice of seat clause contained in Article 25.4 is binding on both the parties. Hence, this Court does not have any jurisdiction to entertain the present petition. Mr. Sethi stated that the petitioner has suppressed the fact that the respondent had already invoked the jurisdiction of Commercial Court at Asansol in accordance with Article 25.4 of the Agreement, which was duly served on the petitioner on October 01, 2020.

4. It is the submission of Mr. Sethi that the Courts of the seat of arbitration shall have exclusive jurisdiction to decide petition under Section 34 of the Act of 1996. In this regard, he has relied upon the judgment of the Supreme Court in the case of BGS SGS SOMA JV vs. NHPC, (2020) 4 SCC 234 . According to Mr. Sethi, change of venue does not override choice of seat under arbitration agreement. He also relied upon the judgment of the Supreme Court in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 , to contend that the fixation of a venue for arbitration for the sake of convenience cannot override a clear and unambiguous choice of the seat under the arbitration agreement itself. He stated that the clear intent of the parties as stated in the arbitration clause in the absence of any ambiguity shall be the determinative test of the seat of arbitration. Mr. Sethi has drawn the attention of the Court to Section 20 of the Act of 1996 which incorporates the principle of party autonomy as the only determinant of the juridical seat of an arbitration. Section 20(3) provides the Tribunal choice of venue for convenience and expeditious conduct of the arbitration. This clearly denotes the legislative intent that changes in venue by the Tribunal for convenience under sub-section (3) does not change the juridical seat of the arbitration determined by parties under sub-section (1). He also relied upon the judgment of the Supreme Court in the case of Videocon Industries Ltd. vs. Union of India, (2011) 6 SCC 161 , to contend that in similar circumstances, the shift of proceedings from Kuala Lumpur to London by parties therein was held to be a change of venue and not of seat of the arbitration. Same principle was applied in Indus Mobile D