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IN THE HIGH COURT OF DELHI
Anup Jairam Bhambhani, J.
Virgo Softech Ltd. - Appellant
Versus
National Institute of Electronics and Information Technology - Respondent
Arb.P. 802 of 2021 and Arb.P. 804 of 2021
Decided On : 05-08-2022
JUDGMENT
Uanup Jairam Bhambhani, J. (Oral)
Arb. P. 802/2021
1. By way of the present petition under section 11 of the Arbitration & Conciliation Act 1996 ('A&C Act' for short), the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that are stated to have arisen with the respondent from Contract dated 09.01.2012 (`contract' for short).
2. Notice on this petition was issued on 24.08.2021; consequent to which the respondent has filed its counter-affidavit dated 21.04.2022.
3. Ms. Sunanda Tulsyan, learned counsel for the petitioner has invited the attention of this court to clause 8.2 of the General Conditions of Contract (`GCCs' for short) annexed to the contract which comprises the arbitration agreement between the parties. Clause 8.2(a) contemplates reference of disputes between the parties to arbitration in accordance with the A&C Act; and clause 8.2(b) provides that arbitration proceedings shall be held in New Delhi.
4. At this point, it would be relevant to extract the relevant clauses of the contract, including the GCCs and the Special Conditions of Contract (`SCCs' for short), which read as follows:
General Conditions of Contract
"8. SETTLEMENT OF DISPUTES
| 8.2 Arbitration | a) In the case of dispute arising upon or in relation to or in connection with the contract between the Purchaser and MSP-1, which has not been settled amicably, any party can refer the dispute for Arbitration under (Indian) Arbitration and Conciliation Act, 1996. Such disputes shall be referred to the sole arbitrator nominated by DIT. b) Arbitration proceedings shall be held in New Delhi and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English. The decision of the arbitrators shall be final and binding upon both parties. The expenses of the arbitrators as determined by the arbitrators shall be shared equally by the Purchaser and MSP-1. However, the expenses incurred by each party in connection with the preparation, presentation shall be borne by the party itself. All arbitration awards shall be in writing and shall state the reasons for the award. The courts in Aurangabad (M.S.) only shall have the exclusive jurisdiction to try and entertain any dispute arising therefrom. |
Special Conditions of Contract
"The following Special Conditions of Contract (SC) shall supplement the General Conditions of Contract (GC). Whenever there is a conflict, the provisions herein shall prevail over those in the GC."
| Number of GC Clause | Amendments of, and supplements to, Clauses in the General Conditions of Contract |
| 2.4 | 09th January 2012U: The date of signing of the contract. The contract period shall be a period of 2 years from the date of the contract. |
| 8.2 (b) | The Arbitration proceedings shall take place in New Delhi in India. |
5. It is submitted that the petitioner had invoked arbitration vide Notice dated 16.08.2018; but to no avail.
6. Subsequent thereto, the petitioner instituted proceedings under section 11 of the A&C Act in case bearing Arb P. No. 754/2018 and Arb P. No. 755/2018, both titled "Virgo Softech Ltd. vs. National Institute of Electronics and Information Technology"; which petitions were however dismissed by a co-ordinate Bench of this court by order/judgment dated 30.11.2018 on the ground that this court lacked territorial jurisdiction. The said decision was assailed by the petitioner before the Hon`ble Supreme Court in SLP(C) Nos. 5063-5064/2019, which SLPs were however dismissed in-limine by order dated 25.03.2019. It is argued on behalf of the petitioner however that the filing of the earlier arbitration petition does not stand in the way of this court entertaining the present petition, since the position of law prevailing at that time has changed by reason of a subsequent decision of the Hon'ble Supreme Court in BGS SGS SOMA JV vs. NHPC Limited, (2020) 4 SCC 234 (hereinafter referred to as 'BGS SGS SOMA`), which entitles the petitioner to file a fre
The appointment of an arbitrator is valid under revised jurisdictional laws, superseding past dismissals on grounds of territorial limitations.
The seat of arbitration clause, fixing the seat of arbitration at New Delhi, resulted in courts at New Delhi being exclusively competent to entertain petitions under the 1996 Act, in exercise of its ....
The determination of the arbitration 'seat' and 'venue' is critical; if the 'venue' does not specify a 'seat', jurisdiction lies with the designated court under the arbitration agreement.
Point of Law : There was concurrent jurisdiction conferred on the courts ceased with subject matter in dispute and the courts where arbitration was carried out.
The choice of venue in an arbitration agreement can determine the seat of arbitration, and the amendments made to Section 29A of the Arbitration and Conciliation Act, 1996 in 2019 are applicable to p....
The seat of arbitration, once agreed upon, confers exclusive jurisdiction to the designated court, preventing the invocation of other jurisdictions.
The jurisdiction for appointing an arbitrator lies with the court where the principal agreement was executed, as per Section 11(6), despite a venue specified in an ancillary agreement.
The main legal point established in the judgment is that the designation of a place of arbitration as the 'venue' in an arbitration clause indicates the intention to anchor arbitral proceedings to th....
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