The court upheld party autonomy, determining that the High Court has jurisdiction to appoint a Sole Arbitrator even with an exclusive jurisdiction clause designating Gurugram as the venue.

JUDGMENT

[VIA HYBRID MODE]

Sanjeev Narula, J. (Oral)--The present petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"] seeks appointment of a Sole Arbitrator for adjudication of disputes arising from/in relation to a `Consultancy Agreement' dated 9th April, 2018 [hereinafter, "Agreement"]. The said Agreement contains an arbitration clause, which is peculiarly worded and reads as follows:

"2. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual dispute disputes or claims) shall be governed by and construed in accordance with the Arbitration and Conciliation Act, 1996 and shall be referred to arbitration by a sole arbitrator and the venue of Arbitration will be at Gurugram in accordance therewith. In case the parties fail to mutually agree upon the appointment of a sole arbitrator within 30 (thirty) days from initiation of a recommendation, the sole arbitrator shall be appointed by the High Court of Delhi upon application by either party. The language of arbitration will be English and the Arbitral award will be final and binding on the parties."

[Emphasis supplied]

2. Mr. Sumeir Ahuja, counsel for the Respondent, does not dispute the existence of the arbitration agreement, however, opposes to the maintainability of the present petition - by contending that jurisdiction does not lie with the High Court of Delhi. He submits that since the arbitration clause specifically provides for the venue of arbitration at Gurugram, Haryana - it is akin to conferring exclusive jurisdiction to the Courts at Gurugram, and therefore, the jurisdiction of this Court is ousted.

3. He further argues that the Petitioner had filed a petition under Section 9 of the Act before the Gurugram District Court,<$f Being Arb. P. 96/2021 dated 27th July, 2021.> and in view of Section 42 of the Act, jurisdiction of this Court to entertain the present petition is barred.

4. Mr. Ahuja further submits that Clause 2 of the Agreement designates High Court of Delhi as the appointing court - in its administrative and not judicial capacity. Since the appointment of an Arbitrator under Section 11 is a judicial function, the territorial jurisdiction of this Court has to be governed by the seat of arbitration only, or in absence of such designated seat, the exclusive jurisdiction clause.

5. He also stresses that not only is the seat of arbitration designated as Gurugram, but also Clause 3 of the Agreement stipulates that the Courts in Gurugram shall have exclusive jurisdiction in all matters or disputes arising out of the said Agreement. The said clause reads as under:

"3. This Agreement shall be governed by and construed in accordance with the Indian laws. The competent courts in Gurugram shall have exclusive jurisdiction in all matters or disputes arising out of this Agreement."

Thus, he submits that in view of the exclusive jurisdiction clause under the Agreement and the fact that seat of arbitration has been agreed as Gurugram, the jurisdiction for appointment of Arbitrator would only lie before the High Court of Punjab and Haryana. In support of his submissions, reliance is placed upon the judgments in BGS SGS Soma JV v. NHPC Ltd., 2019 SCC Online SC 1585; Kiran Singh and Ors. v. Chaman Paswan and Ors., AIR 1954 SC 340 and AAA Landmark Pvt. Ltd. v. M/s AKME Projects Pvt. Ltd., 2018 SCC OnLine Del 7586.

6. Per contra, Mr. Anvit Seemansh, counsel for the Petitioner, submits that jurisdiction would lie before this Court in view of the doctrin