An application under Section 34 of the Arbitration and Conciliation Act, 1996, is not maintainable in respect of an interim final arbitration award passed in an International Commercial Arbitration where the seat of arbitration is in London.

Arun Bhansali, J.

This application under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act') has been filed by the applicant against the interim final arbitration award on jurisdiction dated 23.3.2017 passed by the Panel of Arbitrators of the Refined Sugar Association.

2. The office has reported that the application is barred by limitation by 80 days.

3. An application under Section 34(3) of the Act has been filed seeking condonation of delay in filing the arbitration application.

4. The respondent No. 1 has appeared on caveat. Copies of the applications under Section 34 and under Section 34(3) of the Act were supplied to learned counsel appearing for the respondents.

5. Though, no reply to the application under Section 34(3) of the Act seeking condonation of delay has been filed, learned counsel appearing for the caveator raised preliminary objection about the maintainability of the application under Section 34 itself, on which objection, parties were heard.

6. It is submitted by learned counsel for the respondent that the impugned award dated 23.3.2017 is a foreign award in terms of Section 44 of the Act and arises out of an International Commercial Arbitration, wherein, the impugned award has been delivered in London by the Panel of Arbitrators of the Refined Sugar Association in terms of the Arbitration agreement between the parties. It is submitted that as application under Section 34 is maintainable only, where the place of arbitration is in India and as admittedly the place of arbitration in the present case is London and the parties have agreed to be governed by/in accordance with English Laws, the application under Section 34 is ex-facie maintainable and deserves to be dismissed.

7. It was also submitted that the final award in the matter has already been passed by the Panel of Arbitrators and, therefore, as the impugned interim award has merged in the final award, the application even otherwise, is maintainable and, therefore, on that count also, the application deserves dismissal.

8. Reliance was placed on Roger Shashoua and Ors. v. Mukesh Sharma & Ors.: AIR 2017 SC 3166, Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suissee S.A.: (2015) 5 SCC 656 and International Nut Alliance LLC v. Binu John, Proprietor, Johns Cashwe Company: 2017 Law Suit (Kerala) 933.

9. Learned counsel for the applicant vehemently opposed the submissions. It was submitted that it is well settled by various judgments that venue of arbitration and seat of arbitration are two different concepts and, therefore, merely because the interim award in question has been passed at London by itself cannot bar the jurisdiction under Section 34 of the Act and, therefore, the objection raised in this regard has no substance.

10. It was further submitted that by the impugned interim award, the issue of jurisdiction regarding which, the applicant had raised objection, has been determined. It is submitted that the determination has been made based on the language of the arbitration agreement between the parties, which determination is ex-facie incorrect. It was submitted with reference to the arbitration clause that the intention of parties while entering into the agreement has to be seen and based on the said intention, the seat of arbitration is to be determined and if it is found that the seat is indeterminate, which is the situation in the present case, the arbitration agreement would fail and the entire proceedings would be a nullity.

11. It was emphasized that a bare look at the impugned award itself indicates that Arbitrators have rejected the interpretation sought to be put by the respondent and then have gone on to discuss various alternative submissions/interpretations, which can be put to the arbitration agreement and have reached to a conclusion adopting the 'most likely one' which itself is enough to come to a conclusion that the agreement in question is ambiguous and that the parties were ad idem, which is enough to ignore the said