Introduction

1. Devas Multimedia Private Limited (‘Devas’) has filed this petition against Antrix Corporation Ltd. (‘Antrix’) under Section 9 of the Arbitration & Conciliation Act, 1996 (‘Act’) for directions to Antrix to secure the amount awarded in favour of Devas by an Award of the Arbitral Tribunal (‘AT’) dated 14th September, 2015 together with interest @ 18% per annum from the date of the Award till the date of full payment, by furnishing a Bank Guarantee (‘BG’), or attaching the bank accounts, receivables, other movable or immovable assets of Antrix.

2. On 9th October, 2015, Antrix appeared on advance notice and raised a preliminary objection to the maintainability of the present petition. It was urged that this Court lacked territorial jurisdiction to entertain the present petition and that, in any event, no case for invocation of Section 9 of the Act was made out.

3. On 19th January, 2016, notice was formally issued to the Respondent. The order passed on that day records that Mr. Gourab Banerjee, learned Senior counsel for Antrix besides other submissions, raised an objection about the maintainability of the petition. The order also noted that a petition had been filed by Antrix under Section 34 of the Act in the City Civil Court at Bangalore challenging the Award dated 14th September, 2015 of the AT.

4. At the hearing on 30th March, 2016, Mr. Rajeev Nayar, learned Senior counsel appearing for Devas submitted that if the petition under Section 34 of the Act and the petition under Section 9 of the Act filed by Antrix in the City Civil Court at Bangalore, which were pending prior to filing of the present petition, were transferred here along with the present petition, Antrix would have no objection as to the issue of territorial jurisdiction or limitation. At the request of Mr. Banerjee, who sought time to take instructions, the case was adjourned to 18th April, 2016. On the adjourned date, Mr. Banerjee informed the Court that the suggestion made by Devas was not acceptable to Antrix and that it would like the hearing of the petition to proceed.

5. Before proceeding to deal with the preliminary objection raised by Devas as to the maintainability of the present petition, it is necessary to advert to certain relevant facts.

Relevant facts

6. On 28th January, 2005, an Agreement was entered into at Bangalore for the Lease of Space Segment Capacity on ISRO/Antrix S-Band Spacecraft between Devas, a company incorporated on 17th December, 2004 having its registered office at Bangalore and Antrix, a Government of India undertaking also having its registered office at Bangalore. Article 20 of the Agreement deals with arbitration and reads as under:

“Article 20. Arbitration

(a) In the event of there being any dispute or difference between the Parties hereto as to any clause or provision of this Agreement or as to the interpretation thereof or as to any account or valuation or as to the rights, liabilities, acts, omissions of any Party hereto arising under or by virtue of these presents or otherwise in any way relating to this Agreement such dispute or difference shall be referred to the senior management of both Parties to resolve within three (3) weeks failing which it will be referred to an Arbitral Tribunal comprising of three arbitrators, one to be appointed by each party (i.e. Devas and Antrix) and the arbitrators so appointed will appoint the third arbitrator.

(b) The seat of Arbitration shall be at New Delhi in India.

(c) The Arbitration proceedings shall be held in accordance with the rules and procedures of the ICC (International Chamber of Commerce) or UNCITRAL.

(d) The Arbitration Tribunal shall reach and render a decision or award in writing (concurred in by a majority of the members of the Arbitral Tribunal with respect to the appropriate award to be rendered or remedy to be granted pursuant to the dispute, (inclu