Big Charter Private Limited vs Ezen Aviation Pty. Ltd. & Ors.

on 23 October, 2020

Delhi High Court

Big Charter Private Limited vs Ezen Aviation Pty. Ltd. & Ors. on 23 October, 2020
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 27th
May, Pronounced on:
23rdOctober,2
+ O.M.P.(I) (COMM.) 112/2020

BIG CHARTER PRIVATE LIMITED............Petitioner

Through Mr. Gautaum Narayan, Ms.
Asmita Singh and Mr.
Aditya Nair, Advs.
versus

EZEN AVIATION PTY. LTD. & ORS..........Respondents

Through Mr. Arvind Kamath, Sr.
Adv. With Mr. Pashant
Popat, Mr. Nikit Bala, Ms.
Karishma Naghnoor, Mr. Pai
Amit, Mr. Rahat Bansal and
Mr. Souvik Majumdar, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR

JUDGEMENT

1. This petition, preferred under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as "the 1996 Act") seeks certain pre-arbitration interim reliefs.

2. The consent, of learned Counsel appearing for the petitioner as well as the respondent, ad idem,
to final disposal of the present OMP, on the basis of arguments advanced and written submissions
filed, Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 without
any further pleadings being brought on record, stands specifically noted. Accordingly, this
judgement disposes of the OMP.

Factual Backdrop

3. The petitioner provides scheduled air operator services, under the name "Flybig". The
respondents are engaged in the business and lease of aircrafts, and other associated activities.
Respondent No. 1 is one of the group companies of Respondent No 2. Respondent No. 2 was
running his business, in India, through Respondent No. 1.

4. The aircraft, forming subject matter of the present controversy - which was an ATR 72-500,
bearing Manufacturer Serial Number (MSN) 688 - was owned by Respondent No 1.

Indian Kanoon - http://indiankanoon.org/doc/1668050/ 1

5. The petitioner proposed to lease the aforesaid aircraft (hereinafter referred to as "the aircraft")
from Respondent No 1. The following communications ensued, between the petitioner and the
respondent, prior to issuance of the Letter of Intent:

(i) On 24th July, 2019, the respondent wrote, to the petitioner, acknowledging the
desire, of the petitioner, to lease the MSN 688 aircraft, with effect from 1st October,
2019, for a period of 3 years. Lease rent was fiXed at 37 lakhs per month, plus 5%
GST, for the first 18 months, and 40 lakhs per month, plus 5% GST for the remaining
18 months.

Additionally, the letter noted that the petitioner would have to Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 pay Maintenance Reserves, to the respondent,
@ US $400 per flying cycle/flying hour.

(ii) On 19th August, 2019, the respondent wrote, to the petitioner, requiring the petitioner to
communicate with the Directorate General of Civil Aviation (DGCA) and enquire regarding the
progress of the application, submitted for import of the aforesaid aircraft.

(iii) The petitioner responded, on the same day, i.e. 19th August, 2019, stating that its main concern
was regarding the issuance of a No Objection Certificate (NOC) by the DGCA.

(iv) To this, the respondent replied, again on the very same day, i.e. 19th August, 2019, stating that
the aircraft would be issued with a valid Certificate of Airworthiness (CoA).

6. On 2nd September, 2019, a Letter of Intent (hereinafter referred to as "LOI") was issued by the
respondent to the petitioner, containing, inter alia, the following covenants:

(i) The petitioner would accept the aircraft with a valid CoA issued by the Isle of Man
Aircraft Registry (IOMAR).

(ii) It was the petitioner's responsibility to ensure that the aircraft was registered with
the DGCA, showing the respondent as the owner/lessor, and the petitioner as its
operator/lessee.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(iii) The term of lease was to commence with the delivery of the aircraft, and was to continue for 36
months.

(iv) The schedule of payment of lease rent was set out, along with the covenant that the petitioner
would have to pay applicable Maintenance Reserves, as per the aircraft's monthly utilisation, for
every flight hours/flight cycle of usage. The LOI also set out the deposits that were required to be
made by the petitioner, and the stages at which they were required to be made.
(v) Failure, on the part of the petitioner, to lease the aircraft, after e Xecution of the Lease Agreement
(to be eXecuted subsequently), would entitle the petitioner to refund of the Security Deposit, less
three months' rent. If, however, failure to lease the aircraft was owing to any fault of the respondent,
or owing to regulatory issues, the petitioner would be entitled to a complete refund of Security
Deposit.

(vi) The aircraft was required to be maintained by the petitioner, at all times, as airworthy, in
accordance with all applicable legislation/Airworthiness Directives and mandatory guidelines issued
by the DGCA or by any other governmental authority.

(vii) The Final Lease Agreement, as and when e Xecuted between the petitioner and the respondent,
would supersede the LOI.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

7. Clause 20 of the LOI stipulated as under:

"20. Governing Law:

This Proposal and the underlying documents for the contemplated transaction shall
be governed by the laws of India without regard to conflict of laws principles. Lessee
and Lessor agree to submit to the eXclusive jurisdiction of the courts located in
Singapore with regard to any claim of matter arising under or in connection with this
Proposal or the Lease Documentation. The English-language shall be used in all
documents and proceedings."

8. On 7th September, 2019, the respondent wrote to the petitioner, stating that it was confident of
working with the DGCA to get the CoA issued for the aircraft.

9. On 12th November, 2019, a Lease Deed was e Xecuted, between the petitioner and the respondent.
According to the petitioner, this Lease Deed was superseded by a subsequent Lease Deed, e Xecuted
on 9th December, 2019. The respondent, however, refutes the submission, by pointing out that the
Schedules to the Lease Deed dated 9th December, 2019, were not signed by the parties. For the
purposes of this judgement, it would hardly matter whether one refers to the clauses of the first, or
the second Lease Deed. Having said that, I am inclined to agree with the submission, of Mr. Gautam
Narayan, learned Counsel for the petitioner, that the Lease Deed dated 9 th December, 2019 did, in
fact, supersede the Lease Deed dated 12 th November, 2019, and that the absence of signatures on
the schedules to the later Lease Deed cannot be regarded as fatal, especially as they Signature Not
Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 are identical to the Schedules
of the Lease Deed dated 12 th November, 2019, which were duly signed by both the parties.

10. On 23rd November, 2019, the Certificate of Registration (COR) of the aircraft, as issued by the
IOMAR, was supplied, by the respondent to the petitioner.
11. On 1st December, 2019, the specifications of the aircraft were forwarded, by the respondent to
the petitioner. The petitioner responded, on 3rd December 2019, pointing out that the aircraft did
not have a Cockpit Door Surveillance System (CDSS) installed, and that this would obstruct
obtaining of approval from the DGCA. It was, therefore, requested that CDSS be installed on the
aircraft. The respondent replied, on 6th December, 2019, undertaking to deliver the aircraft as per
the European Aviation Standards Authority (EASA) standards, with a valid COA.

12. NOC, for import of the aircraft, was granted, by the DGCA, on 9th December, 2019. It was,
however, stipulated that the aircraft could not be used for commercial operations unless it was
compliant with the requirements of the Civil Aviation Requirements (CAR) issued by the DGCA.

13. On 9th December, 2019, a second Lease Agreement (which, according to the petitioner,
superseded the Lease Agreement dated 12th November, 2019 supra) was e Xecuted between the
petitioner and respondent. The petition avers that, though the Schedules to the said second Lease
Agreement, could not be signed by both parties, the Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 parties were ad idem that the Schedules to the Lease
Deed dated 12th November, 2019 were to be treated as a part of the Lease Deed dated 9th
December, 2019. The Lease Deed stipulated that the aircraft would be delivered, for a period of 36
months commencing 15th December, 2019. Clause 4.1 required the petitioner to ensure registration
of the aircraft with the DGCA, with the respondent shown as owner/lessor and the petitioner as
operator/lessee, for which the respondent undertook to provide all necessary documentation.
Possession of the aircraft was to be with the petitioner, whereas right, title and interest in the
aircraft was, as per Clause 5 of the Lease Deed, to vest with the respondent. Clause 6 required the
respondent to deliver, and the petitioner to accept, the aircraft, with a current and valid COR, issued
by the IOMAR. Acceptance of the aircraft was, as per Clause 6.2, to be by way of e Xecution of a
Delivery Acceptance Certificate, in accordance with Schedule II to the Lease Deed. Clause 7 provided
for the modes of termination of the Lease Deed, whereas Clause 8 stipulated the rent payable, and
the date from which it would be payable.

14. The petition avers that the petitioner had paid, to the respondent, US $ 336,000 towards
Security Deposit, Lease Rent, till 15th March, 2020, totalling US $ 112,000, and US $ 26,000
towards the CDSS Kit.

15. On 4th March, 2020, the petitioner wrote to the respondent, requiring for confirmation of the
final date, by which the aircraft would be delivered. The respondent replied, on 5th March, 2020,
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 alleging that
delay in delivery of the aircraft was because of the delay, on the part of the petitioner, in finalising
the painting, design, etc., for the livery of the aircraft. The petitioner responded, on 5th March, 2020
itself, stating that painting was the responsibility of the respondent, and pointing out that the
painting vendor had never interacted with the petitioner. Certain defects, which remained in the
aircraft, were also pointed out. The petitioner, additionally, submitted that it had paid for the CDSS,
and sought the status of the installation thereof.
16. On 9th March, 2020, the respondent wrote to the petitioner, stating that, as the petitioner had
"unilaterally terminated" the Lease Agreement, till further communication from the respondent, no
modification/work on the aircraft was to be carried out by the petitioner. Chagrined at the said
communication, the petitioner responded, on the same day, i.e. 9th March, 2020, categorically
denying any termination, of the Lease Agreement, by it. Rather, it was submitted, the respondent
had reneged on its commitments under the Lease Agreement, despite timely payments having been
made by the petitioner. The request, for handing over, of the aircraft, with all necessary documents,
was reiterated, emphasising, additionally, the fact that CDSS was required to be installed in the
aircraft, and that the respondent was also required to provide necessary support towards acquiring
of the COR and COA from the DGCA. The petitioner put the respondent on notice, further, that, if
the DGCA were to reject the request for issuance of COA because of the age of the aircraft (as the
policy of the DGCA did not allow import and utilisation, for carriage Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 of passengers, of an aircraft which was over 18
years of age), the respondent would be required to return, to the petitioner, all amounts paid by it,
along with the cost for ferrying the aircraft. The aircraft was, it may be pointed out, manufactured in
June 2002.

17. Further communications, largely to the same eXtent, followed, from the petitioner to the
respondent, on 11th March 2020 and 22nd March, 2020. In the latter communication, the petitioner
pointed out that, during oral discussions, the respondent had made it clear that it had no intention
to deliver the aircraft to the petitioner. In the circumstances, the petitioner called on the respondent
to refund, to the petitioner, an amount of 5,31,000/-, stated to be due from the respondent. This was
followed by a reminder, on 1st April, 2020.

18. On 2nd April, 2020, the respondent addressed a detailed communication, to the petitioner,
asserting that the aircraft had been ferried to Hyderabad on 29th November, 2019, and was ready
for inspection and acceptance by the petitioner on 1st December, 2019, as per the terms of the Lease
Agreement. Obtaining COR and COA, it was further asserted, was the responsibility of the
petitioner, and not of the respondent. The communication alleged default, on the part of the
petitioner, in payment of Security Deposit and Advance Lease Rent, as per the terms of the Lease
Agreement. The delay in completion of the work, as desired by the petitioner, on the aircraft, it was
further alleged, continued owing to the internal decision-making process of the petitioner. This
delay, according to the communication, continued till March, 2020. The petitioner, it was alleged,
became Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 liable
to pay Maintenance Reserves, to the respondent, w.e.f. 1 st February, 2020. Thereafter, vide email
dated 5th March, 2020, it was alleged that the petitioner had unilaterally terminated the Lease
Agreement, thereby obviating the necessity of any termination notice having to be issued by the
respondent. In these circumstances, it was alleged that the petitioner was liable to pay 19,20,460/-,
to the respondent.

19. Vide a reply email dated 10th April, 2020, the petitioner denied the assertion, of the respondent,
that the Lease Deed had been terminated by the petitioner. On the other hand, it was alleged, the
respondent had failed to perform its obligations under the Lease Deed, which included delivery of
the aircraft with a valid CoA. The demand, for refund of US $ 5,30,000 was reiterated.
20. No response was received, from Respondent No.1 to the said email, resulting in a Notice of
Dispute, under Clause 23.2 of the Lease Deed, being issued by the petitioner, calling on Respondent
No.1 to resolve the dispute by negotiation, being issued by the petitioner. The respondent replied,
vide letter dated 29th April, 2020, levying various allegations against the petitioner. The petitioner
emphasises the fact that, even in this communication, the respondent did not seek to submit that it
had, in fact, delivered the aircraft with requisite documentation.

21. Further communications, from the petitioner to the respondent on 12th May, 2020, and from
Respondent No. 1 on 20th May, 2020, to the petitioner; the petitioner, however, avers that the
conduct of the Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
respondent puts paid to any chance of the dispute, between the petitioner and the respondent, being
amicably settled. Asserting that there has been a clear and undeniable breach, by Respondent No. 1
of the Lease Deed, the petitioner has moved this Court, under Section 9 of the 1996 Act.

22. The invocation of Section 9 has been sought to be justified on the ground that Respondent No. 1
is located in Australia and that, therefore, if the interests of the petitioner are not secured, it would
become nearly impossible to enforce any award, even if the petitioner were to succeed in arbitral
proceedings. Additionally, it is asserted that the website of Respondent No. 1 indicates that an ATR
72-500 aircraft, similar to the aircraft in issue, has been advertised for sale.

23. The petitioner asserts that the contention, of Respondent No. 1, that the petitioner had
terminated the Lease Deed, is not borne out by the record, and is being used as a ploy to cover the
breach of its contractual obligations and defend the withholding of amounts, paid by the petitioner,
and which are, allegedly, refundable to it. The total amount of US $ 530,000, it is submitted, has
become payable to the petitioner by the respondent. The petitioner asserts that it has a good prima
facie case and that the balance of convenience and special equities are overwhelmingly in its favour.
Denial of interim relief, as sought in the petition, it is further asserted, would result in irreparable
injury to the petitioner.

24. The petition prays for Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19

(i) a restraint, against the respondents creating any third party interest/right/title on the aircraft, or
from selling, transferring or encumbering the aircraft in any manner,

(ii) a restraint, against the respondents, from taking the aircraft out of India, and

(iii) a direction, to the respondents, to deposit US $ 530,000 (equivalent to 4,01,05,736/-) in an

escrow account.

25. I have heard Mr. Gautam Narayan, learned Counsel for the petitioner, and Mr. Arvind Kamath,
learned Senior Counsel for the respondent, at length.

Rival Submissions and Findings Re. Territorial Jurisdiction

26. A preliminary objection was raised, by Mr. Arvind Kamath, learned Senior Counsel for the
respondents, to the effect that this Court did not have the territorial jurisdiction to deal with this
petition. As the objection goes to the root of the competence, of this Court, to entertain the petition
on merits, it is necessary to eXamine this objection, before proceeding further, if necessary.

27. Clauses 22 and sub-clauses 23.1 to 23.4 of the Lease Deed, which are relevant, may be
reproduced as under:

"22. GOVERNING LAW AND JURISDICTION Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 22.1 This Deed shall be governed by and construed in accordance
with the laws of Singapore without giving effect to its choice of laws. The Parties shall submit to the
eXclusive jurisdiction of the courts of Singapore.

23. DISPUTE RESOLUTION 23.1 The following provisions shall apply in the event of any dispute or
differences between the Parties arising out of or relating to the lease of the Aircraft and this Deed
(the "Dispute").

23.2 A Dispute will be deemed to arise when one Party has any issue, difference, or demands action
or alleges inaction, damage, injury or loss or serves on the other Party a notice stating the nature of
such Dispute ("Notice of Dispute"). The Parties hereto agree that they will use all reasonable efforts
to resolve between themselves, any Disputes through negotiations.

23.3 Any Disputes and differences whatsoever arising under or in connection with this Deed
(including the enforcement of the rights, duties, powers and obligations conferred under this Deed)
which are not settled by the Parties through negotiations, after the period of (15) fifteen days from
the service of the Notice of Dispute, shall be referred to a sole arbitrator mutually appointed by the
Parties.

23.4 The arbitration proceedings shall be in accordance with the Arbitration Rules of the Singapore
International Arbitration Centre or any statutory modification or re- enactment thereof for the time
being in force. All proceedings shall be conducted in English and the daily transcript of the
proceedings shall be prepared in English. The seat of arbitration shall be in Singapore."

(Emphasis supplied)

28. The contractual position that emerges, thus, is that (i) the petitioner and respondent have
agreed to subject themselves to the jurisdiction of courts at Singapore, (ii) the seat of arbitration is
Singapore, and (iii) the arbitration proceedings are to be in accordance Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 with the Arbitration Rules of the
Singapore International Arbitration Centre (SIAC).

29. Mr. Kamath submits that, the petitioner and the respondent having agreed to submit themselves
to the jurisdiction of the courts at Singapore, this Court is proscribed from entertaining the present
matter.
30. In this conteXt, it is also appropriate to reproduce Section 2(2) and 20 of the 1996 Act,

thus: "(2) This Part shall apply where the place of arbitration is in India:

Provided that subject to an agreement to the contrary, the provisions of sections 9, 27

and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to
international commercial arbitration, even if the place of arbitration is outside India,
and an arbitral award made or to be made in such place is enforceable and recognised
under the provisions of Part II of this Act."

"International commercial arbitration" is defined, in clause (f) of Section 2 of the 1996 Act, thus:

"(f) "international commercial arbitration" means an arbitration relating to disputes

arising out of legal relationships, whether contractual or not, considered as
commercial under the law in force in India and where at least 1 of the parties is -

(i) an individual who is a national of, or habitually resident in, any country other
than India; or

(ii) a body corporate which is incorporated in any country other than India; or
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(iii) an association or a body of individuals whose central management and

control is eXercised in any country other than India; or

(iv) the Government of a foreign country;"

31. That the arbitration, to which the rival claims between the petitioner and the
respondent may be subjected, conforms to the definition of "international
commercial arbitration", is not in dispute.

32. The proviso to Section 2(2) is categorical and unequivocal. It provides that, irrespective of the
location of the place of arbitration Part I of the 1996 Act - which includes Section 9 - would apply to
all international commercial arbitrations, subject to an agreement to the contrary. In the present
case, Clause 23.4 of the Lease Agreement fi Xes both the place, as well as the seat, of arbitration, as
Singapore. The arbitration being an international commercial arbitration, the proviso to Section
2(2) would make Part I of the 1996 Act applicable, subject to agreement to the contrary. All that is to
be seen is, therefore, whether, in the present case, there is any agreement, between the parties,
which renders the proviso to Section 2(2) inapplicable.

33. Mr. Kamath submits that the second sentence, in Clause 22.1 of the Lease Agreement,
constitutes such an "agreement to the contrary".
34. Mr. Kamath submits, further, that no part of the cause of action arose in Delhi. The Lease Deed
dated 9 th December, 2019, he points out, did not contain any Schedules and could not, therefore,
be Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 regarded as
a Lease Deed at all as, without the Schedules, it would be meaningless and incomplete. The Lease
Deed dated 12 th November, 2019 was e X ecuted at Vietnam. Mr. Kamath submits that the
contention, of the petitioner, that there was consensus, ad idem, between the petitioner and the
respondent, regarding the Schedules to the Lease Deed dated 12th November, 2019 having to be
read as part of the Lease Deed dated 9th December, 2019, he submits, was a matter of evidence.
Besides, points out Mr. Kamath, the petitioner and Respondent No. 2 were located in Mumbai, and
Respondent No. 1 was located in Australia.

35. EXpanding on his initial submission that Clause 22.1 of the Lease Agreement resulted in ouster
of jurisdiction of this Court, to entertain the present petition, Mr. Kamath emphasises the omission
of the word "eXpress", in the proviso to Section 2(2) of the 1996 Act, denoting a departure by the
legislature, to that eXtent, from the recommendation of the Law Commission. The ouster of
jurisdiction, as contemplated by the proviso to Section 2(2) does not, therefore, he submits, need to
be "eXpress"; it can also be implied.

36. Mr. Kamath also submits that the petitioner is not without a remedy in Singapore, and invites
attention, in this conteXt, to Section 12A of the International Arbitration Act, which empowers the
Court to order interim measures.

37. In response to the objection, of Mr. Kamath, to the territorial jurisdiction of this Court to
adjudicate on the present petition, Mr. Gautam Narayan advanced the following submissions:
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(i) The aircraft was located at Hyderabad. It was required to be registered with the DGCA, and
operated in accordance with the Aircraft Act, 1934, Aircraft Rules, 1937 and the CAR issued by the
DGCA. The most efficacious remedy, available to the petitioner was, therefore, by means of recourse
to the jurisdiction of this Court under Section 9 of the 1996 Act.

(ii) The proviso to Section 2(2) conferred Section 9 jurisdiction on this Court, even in respect of
foreign seated arbitrations. This proviso was introduced, pursuant to the recommendations of the
246th Report of the Law Commission, intended to prevent dissipation of assets located in India. Mr.
Gautam Narayan took me through the relevant passages of the said Report.

(iii) Meaningful provisional relief, such as attachment of the defendant's properties, could be
granted only by the Court within whose territorial jurisdiction the properties were located, and not
by a foreign Court, which may have jurisdiction over the situs of the arbitral proceedings. For this
purpose, Mr. Gautam Narayan referred to certain passages from "International Commercial
Arbitration" by Gary Born.

(iv) Articles 9 and 17J of the UNCITRAL Model also vested jurisdiction, in Courts outside the seat of
arbitration, to grant interim relief.
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(v) Apropos Clause 22.1 of the Lease Agreement, Mr. Gautam Narayan submitted that the e Xclusive
jurisdiction, vested with Courts at Singapore, by the said Clause, was with respect to the application
of the governing law of the Lease Deed and adjudication of disputes pertaining to substantive rights
and obligations of the parties under the Lease Deed, or proceedings ancillary thereto. In his
submission, the clause had no application to grant of interim relief even before the constitution of
the arbitral tribunal.

(vi) The jurisdiction of the Court, in such a case, would have to be decided on the basis of the curial
law governing the conduct of the arbitral proceedings which, according to Clause 23.4 of the Lease
Agreement, was the SIAC Rules, 2016. Rule 30.3 of the SIAC Rules permitted parties to approach
any judicial authority for interim relief, before the constitution of the Tribunal, and not merely
judicial authorities located in Singapore.

(vii) Singaporean law permitted interim measures to be granted by Courts only after
commencement of the arbitration. For this purpose, Mr. Gautam Narayan drew my attention to
Section 12A of the International Arbitration Act. Rule 3.1 of the SIAC Rules was also cited, in this
conteXt, which provides that an arbitration would commence only after service of a notice of
arbitration. Accepting the contention of the respondent would, therefore, in Mr. Narayan's
submission result in rendering the petitioner remediless, in that it would not Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 be able to seek, or obtain, a
pre-arbitration injunction from any forum.

(viii) Courts in Singapore could not provide any efficacious alternative remedy. Mr. Gautam
Narayan relied, in this conteXt, on the judgement of the Singapore Court of Appeal in Maldives
Airport Co. Ltd v. GMR Male International Airport Pte Ltd1 and SSL International plc v. TTK LIG
Ltd2, which denied interim relief in cases in which an unacceptable degree of supervision in a
foreign land would be involved.

(ix) Courts in Singapore eXercised the jurisdiction, to secure assets located abroad only if they had in
personam jurisdiction over the parties, i.e. where the parties had presented themselves before
Courts in Singapore. For this purpose, Mr. Gautam Narayan relied on Five Ocean Corporation v.
Cingler Ship Pte Ltd3. As such, without first approaching the SIAC, it was not possible for the
petitioner to petition the Courts at Singapore.

(x) Section 12A of the International Arbitration Act did not apply at the pre-arbitration stage. Mr.
Gautam Narayan relies, for this purpose, on the decision in Maldives Airport Co. Ltd1. He also
placed reliance on the judgement, of a Division Bench 1(2013) SGCA 16 2(2011) EWCA Civ 1170
3(2015) SGHC 311 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 of the High Court of Andhra Pradesh in National Aluminium Co Ltd v. Gerald Metals4.

Mr. Gautam Narayan also placed reliance on the judgements of this Court in Raffles Design
International India Pvt Ltd v. Educomp Professional Education Ltd5 and Naval Gent Maritime Ltd
v. Shivnath Rai Harnarain (I) Ltd6 and the judgement of the High Court of Bombay in Heligo
Charters Pvt Ltd v. Aircon Feibars FZE7.

38. Apropos the submission, of Mr. Kamath, that the Lease Deed, dated 9th December, 2019, was
not valid, Mr. Gautam Narayan draws attention to Clause 32 thereof, which terminated all prior
agreements or understandings, pertaining to matters covered by the said Lease Deed, e Xcept with
regard to any accrued rights thereunder.

Analysis

39. In the first place, it is necessary to emphasise that the issue to be addressed does not really
concern the ease, or difficulty, in prosecuting the present claim in Singapore though, to a limited
eXtent, this aspect may have to be factored into consideration. Essentially, though, we are not
concerned, here, with the availability of an alternative remedy. What is pleaded, by Mr. Kamath, and
needs to be addressed, is the competence of this Court to adjudicate on the present 4 (2004) 2 Arb
LR 382 (DB) 5 234 (2 016) DLT 349 6 2000 (54) DRJ 639 7 (2018) 5 AIR Bom R 317 Signature Not
Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 petition. The respondent
contends that this Court does not possess the jurisdiction to hear this matter and is, essentially,
therefore, coram non judice. Jurisdiction is always a matter of competence, in that want of
jurisdiction renders a judicial authority incompetent to adjudicate on a claim. A plea of alternate
remedy, on the other hand, involves an element of discretion. Alternate remedy is never a bar to
adjudication of the claim, especially in original civil jurisdiction. If this Court does not have
jurisdiction to entertain this petition, it cannot assume such jurisdiction merely because the
petitioner has no other remedy available with it. For this reason, the plea, of Mr. Gautam Narayan,
that, were this Court to decline to entertain the present petition, the petitioner would be rendered
remediless, insofar as its prayer for pre-arbitral interim relief is concerned, has necessarily to cede
place to the fundamental question of whether this Court possesses, or does not possess, jurisdiction
to deal with the matter.

40. Having said that, the submissions of Mr. Gautam Narayan, on the possibility of obtaining
interim relief, from a Singaporean court, do assume some relevance, as the discussion hereinafter
would reveal.

41. The fundamental issue to be addressed is, therefore, whether this Court has the jurisdiction to
hear and decide the present case, and not whether the petitioner has any other alternate, or
efficacious, remedy available with it. The plea of alternate remedy predicates the eXistence of
jurisdiction and, consequently, the e X istence of a remedy before the Court which has been
petitioned. There can be no question Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 of an alternate remedy, if the remedy that has been invoked itself does not
eXist, in the first place.

42. I do not deem it necessary, however, to refer to the commentary on "International Commercial
Arbitration" by Gary Born, or to Articles 19 and 17J of the UNCITRAL Model. Arbitration law, in
India, is codified, in the form of the 1996 Act. Jurisdiction, in a Court, to adjudicate a petition under
Section 9 of the 1996 Act, must, therefore, emanate from the 1996 Act itself. Any reference to the
UNCITRAL Model, or to any teXtual commentaries may, if at all, be justified only if there is any
ambiguity in any of the provisions of the 1996 Act, which requires resolution.

43. The provision, in the 1996 Act, which most fundamentally impacts the issue at hand is,
unquestionably, Section 2(2). One has, however, also to take note of the definition of "Court", as
contained in clause (e) of Section 2(1), as the 1996 Act empowers "the Court" to pass orders of
interim measure of protection. Section 2(1)(e) defines "Court" in the following words:

"(e) "Court" means -

(i) in the case of an arbitration other

t

international commercial arbitration, the principal Civil Court of original jurisdiction in the district,
and includes the High Court in eXercise of its ordinary original civil jurisdiction, having jurisdiction
to decide the questions forming the subject-matter of the arbitration is the same had been the
subject-matter of the suit, but does not include any Civil Court of a grade inferior to such principal
Civil Court, or any Court of Small Causes;

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(ii) in the case of international commercial arbitration, the High Court in e Xercise of its ordinary
original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of
the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court
having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;"

(Emphasis supplied)

44. The issue of the situs of jurisdiction, concurrent jurisdiction, and e Xclusion of jurisdiction, in
Courts, to entertain petitions under Sections 9, 11, 34 and 36, of the 1996 Act, have been the subject
matter of consideration in numerous decisions of the Supreme Court. One of the most illuminating
eXpositions, which traces the entire precedential history on the issue is, perhaps, to be found in the
Keynote speech delivered by Hon'ble Mr. Justice Rohinton Fali Nariman, at the GAR Live India
2020 seminar, which, fortunately, is available in the virtual public domain, and makes for rewarding
viewing, by any student of law, and for compulsory viewing by every student of arbitration law. The
disciplinary protocols of judgement writing, however, inhibit me from relying on the said address,
while penning this decision. Turning, therefore, to the black-and-white precedents, of the Supreme
Court, on the issue, the entire law may, in my view, be comprehensively understood by the study of
seven judgements, namely (in chronological order) Bharat Aluminium Co. v. Kaiser Aluminium
Technical Services Inc.8 (hereinafter referred to as "BALCO"), Swastik Gases Pvt Ltd v. Indian Oil
Corporation 8 (2012) 9 SCC 552 Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 Ltd9, B. E. Siomese Von Staraburg Niedenthal v. Chhatisgarh Investment
Ltd10, Indus Mobile Distribution Pvt Ltd v. Datawind Innovations Pvt Ltd11, Brahmani River Pellets
Ltd.v. Kamachi Industries Ltd12, BGS SGS Soma JV v. NHPC Ltd13 and Mankastu Impe X Pvt. Ltd.v.
Airvisual Ltd14.
Precedential Analysis and the 246th Report of the Law Commission of India

45. BALCO8:

45.1 BALCO8, rendered by a Constitution Bench, emanated from Section 2(2) of the 1996 Act, prior
to the insertion, in the said sub- Rule, of the proviso thereto. Section 2(2), as it stood at that time,
therefore, made the provisions of Part I of the 1996 Act applicable "where the place of arbitration is
in India". There was a difference, in the views of the Hon'ble Judges constituting a two-Judge
Bench, resulting in the appeals, before it, being directed to be placed before the Hon'ble Chief
Justice, for being listed before another Bench 15.The appeal was placed before a 3-Judge bench
which, vide its order dated 1st November, 201116, directed that the matter be placed before a
Constitution Bench. Thus, came to be delivered the judgement in BALCO8.

9(2013) 9 SCC 32 10(2015) 12 SCC 225 11(2017) 7 SCC 678 122019 SCC OnLine SC 929 13(2020) 4
SCC 234 142020 SCC OnLine SC 301 15Bharat Aluminium Co. v. Kaiser Aluminium Technical
Services Inc., (2012) 9 SCC 649 16Bharat Aluminium Co. v. Kaiser Aluminium Technical Services
Inc., (2012) 9 SCC 648 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 45.2 The facts, in BALCO8, are only briefly noted in the judgement, as the issue referred to
the Constitution Bench was purely legal. An agreement, dated 22nd April, 1993, was eXecuted,
between BALCO and Kaiser Aluminium Technical Services Inc., for installation of a computer-based
system for shelter modernisation. The agreement contained the following clauses:

"17.1 Any dispute or claim arising out of or relating to this Agreement shall be in the
first instance, endeavour to be settled amicably by negotiation between the parties
hereto and failing which the same will be settled by arbitration pursuant to the
English Arbitration Law and subsequent amendments thereto.

17.2 The arbitration proceedings shall be carried out by two arbitrators, one
appointed by BALCO and one by KATSI chosen freely and without any bias. The
Court of Arbitration shall be held wholly in London, England and shall use the
English language and the proceeding. The findings and award of the Court of
Arbitration shall be final and binding upon the parties. ...

*****

22. Governing Law - This agreement will be governed by the prevailing law of India
and in case of Arbitration, the English law shall apply."

The above process, held the Supreme Court, made it apparent that the governing law, of the
agreement, i.e. the substantive law, was the prevailing law of India, but the leX fori for the
arbitration would be English law.

45.3 Disputes arose, between the parties, which were referred to arbitration, held in England. The
Arbitral Tribunal rendered two Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 awards, dated 10th and 12th November, 2002. Applications, for setting
aside the award, were preferred, by BALCO, under Section 34 of the 1996 Act, before the learned
District Judge, Bilaspur. The learned District Judge dismissed the applications vide order dated
20th July, 2004. BALCO challenged the dismissal by way of appeals before the High Court of
Chhattisgarh. The appeals were also dismissed, by a Division Bench of the High Court, vide order
dated 10th August, 2005, holding that they were not maintainable. BALCO appealed to the Supreme
Court.

45.4 Tagged, with the BALCO appeal, was the appeal in Bharti Shipyard Ltd v. Ferrostaal AG17
which, however, dealt with an application under Section 9 of the 1996 Act. The facts, in this case,
also deserve to be noticed. Bharti Shipyard Ltd. (hereinafter referred to as "BSL") entered into to
shipbuilding contracts with Ferrostaal AG (hereinafter referred to as "FAG"), whereunder BSL was
to construct vessels and deliver them to FAG. BSL and FAG agreed to settlement of the dispute, by
arbitration, under the Rules of the London Maritime Arbitrators Association (LMAA), in London.
Two requests, for arbitration of the disputes which arose between them, were submitted by FAG, in
accordance with the rules of the LMAA.

45.5 During the pendency thereof, FAG filed applications, under Section 9 of the 1996 Act, seeking
injunction against encashment of bank guarantees, issued under the contracts. The learned District
Judge, Mangalore, granted eX parte ad interim injunction, against 17SLP (C) 27824/2011 Signature
Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 encashment of the bank
guarantee and, later, vide judgement dated 14th January, 2011, allowed the application under
Section 9. The judgement of the learned District Judge was, however, set aside by the High Court,
vide judgement dated 9th September, 2011. BSL appealed to the Supreme Court.

45.6 Among the issues, framed by the Supreme Court as arising for its consideration, were the
following:

"10.1 What is meant by the place of arbitration as found in Sections 2(2) and 20 of the
Arbitration Act, 1996?

***** 10.3 Does Section 2(2) bar the application of Part I of the Arbitration Act, 1996
("Part I" for brevity) to arbitrations where the place is outside India?"

45.7 The Supreme Court overruled, at the very outset, its earlier decisions in Bhatia International v.
Bulk Trading S.A.18and Venture Global Engineering v. Satyam Computer Services Ltd19 and,
thereafter, proceeded to address the issues framed by it, thus:

(i) The debate, before the Supreme Court, revolved around the absence of the word
"only" in Section 2(2) of the 1996 Act.

The provision stated that Part I "shall apply where the place of arbitration is in India", and not that
Part I "shall apply only where the place of arbitration is in India". As the Supreme Court
paraphrased the controversy (in para 63 of the report), 18(2002) 4 SCC 105 19(2008) 4 SCC 190
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 "the crucial
difference between the views eXpressed by the appellants on the one hand and the respondents on
the other hand is as to whether the absence of the word "only" in Section 2(2) clearly signifies that
Part I of the Arbitration Act, 1996 would compulsorily apply in the case of arbitrations held in India,
or would it signify that the Arbitration Act, 1996 would be applicable only in cases where the
arbitration takes place in India." Bhatia International17 and Venture Global Engineering18 held that
Part I would apply to all arbitrations held outside India, unless the parties, by agreement, e Xcluded
the applicability of any or all of the provisions of Part I. The Constitution Bench e Xpressed its
disagreement with the said enunciation, and held (in para 67 of the report) that "a plain reading of
Section 2(2) makes it clear that Part I is limited in its application to arbitrations which take place in
India".

(ii) The Supreme Court went on to hold, further, that the "seat of the arbitration" was the "centre of
gravity" thereof. At the same time, it is clarified that the arbitral proceedings were not required,
necessarily, to be conducted at the "seat of arbitration", as the arbitrators were at liberty to hold
meetings at different, convenient, locations. The law governing the arbitration was, however, it was
held, normally the "law of the seat or place where the arbitration is held" (in para-76 of the report).
The Constitution Bench went on to approve the theory, Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 postulated in Redfern and Hunter on International
Arbitration20, that "the concept that an arbitration is governed by the law of the place in which it is
held, which is the 'seat' (or 'forum' or locus arbitri) of the arbitration, is well established in both the
theory and practice of international arbitration. Reliance was also placed on the Geneva Protocol,
1923, which stated that the arbitral procedure, including the Constitution of the Arbitral Tribunal,
would be governed by the will of the parties and by the law of the country in whose territory the
arbitration takes place.

(iii) The omission of the word "only" in Section 2(2) of the 1996 Act, it was held, did not detract from
the territorial scope of the application of Part I thereof. Accordingly, it was held (in para 78 of the
report) that Part I would not apply to arbitrations which did not take place in India. To make
matters clearer, the Constitution Bench went on to say, in para 79 of the report, "with the
submission made by Mr. Aspi Chenoy that Section 2(2) is an e X press parliamentary
declaration/recognition that Part I of the Arbitration Act, 1996 applies to arbitration having their
place/seat in India and does not apply to arbitrations seated in foreign territories". Yet again, in
paras 80 and 81 of the report, it was held that "the provisions have to be read as limiting the
applicability of Part I to arbitrations which take 20Blackaby, Partasides, Redfern and Hunter (Eds.),
Redfern and Hunter on International Arbitration (5thEdn,OXford University Press, OXford/New
York 2009).

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 place in India"
and "Section 2(2) merely reinforces the limits of operation of the Arbitration Act, 1996 to India".

(iv) The Constitution Bench also went on to e Xamine Section 2(1)(e), and the impact, thereof, on the
above position. Having eXtracted the clause, the Supreme Court went on, in para 97 of the report, to
hold that "Section 2(1)(e) being purely jurisdictional in nature can have no relevance to the question
whether Part I applies to arbitrations which take place outside India".

(v) The Constitution Bench went on, thereafter, to underscore the importance of the distinction
between the "seat" and the "venue" of the arbitration, in the conte Xt of international commercial
arbitration, in para 100 of the report, in the following words:

"True, that in an international commercial arbitration, having a seat in India,

hearings may be necessitated outside India. In such circumstances, the hearing of the
arbitration will be conducted at the venue fiXed by the parties, but it would not have
the effect of changing the seat of arbitration which would remain in India. The legal
position in this regard is summed up by Redfern and Hunter, The Law and Practice
of International Commercial Arbitration (1986) at p. 69 in the following passage
under the heading "The Place of Arbitration":

"The preceding discussion has been on the basis that there is only one "place" of
arbitration.

This will be the place chosen by or on behalf of the parties; and it will be designated
in the arbitration agreement or the terms of the Signature Not Verified reference or
the minutes of proceedings or in Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 some other way as the place or "seat" of the arbitration. This does not mean,
however, that the Arbitral Tribunal must hold all its meetings or hearings at the place
of arbitration. International commercial arbitration often involves people of many
different nationalities, from many different countries. In these circumstances, it is by
no means unusual for an Arbitral Tribunal to hold meetings - or even hearings - in a
place other than the designated place of arbitration, either for its own convenience or
for the convenience of the parties or their witnesses. It may be more convenient for
an Arbitral Tribunal sitting in one country to conduct a hearing in another country -
for instance, for the purpose of taking evidence. In such circumstances, each move
of the Arbitral Tribunal does not of itself mean that the seat of arbitration changes.
The seat of the arbitration remains the place initially agreed by or on behalf of the
parties."

This, in our view, is the correct depiction of the practical considerations and the
distinction between "seat" [Sections 20(1) and 20(2)] and "venue" [Section 20(3)].
We may point out here that the distinction between "seat" and "venue" would be
quite crucial in the event, the arbitration agreement designates a foreign country as
the "seat"/"place" of the arbitration and also select the Arbitration Act, 1996 as the
curial law/law governing the arbitration proceedings. It would be a matter of
construction of the individual agreement to decide whether:

(i) The designated foreign "seat" would be read as in fact only providing for a
"venue"/"place" where the hearings would be held, in view of the choice of the
Arbitration Act, 1996 as being the curial law, OR
 (ii) Whether the specific designation of a foreign seat, necessarily carrying with it the
choice of that country's arbitration/curial law, Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 would prevail over and subsume the
conflicting selection choice by the parties of the Arbitration Act, 1996.

Only if the agreement of the parties is construed to provide for the "seat"/"place" of
arbitration being in India - would Part I of the Arbitration Act, 1996 be applicable. If
the agreement is held to provide for a "seat"/"place" outside India, Part I would be
inapplicable to the eXtent inconsistent with the arbitration law of the seat, even if the
agreement purports to provide that the Arbitration Act, 1996 shall govern the
arbitration proceedings."

(Underscoring supplied; Italics in original)

(vi) The resulting position was crystallised, in paras 116 and 117 of the report, thus:

"116. The legal position that emerges from a conspectus of all the decisions, seems to
be, that the choice of another country as the seat of arbitration inevitably imports an
acceptance that the law of that country relating to the conduct and supervision of
arbitrations will apply to the proceedings.

117. It would, therefore, follow that if the arbitration agreement is found or held to
provide for a seat/place of arbitration outside India, then the provision that the
Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part
I of the Arbitration Act, 1996 applicable or enable Indian Courts to e X ercise
supervisory jurisdiction over the arbitration or the award. It would only mean that
the parties have contractually imported from the Arbitration Act, 1996, those
provisions which are concerned with the internal conduct of their arbitration and
which are not inconsistent with the mandatory provisions of the English Procedural
Law/curial law. This necessarily follows from the fact that Part I applies only to
arbitrations having their seat/place in India."

(Underscoring supplied; Italics in original) Signature Not Verified Digitally Signed

By:SUNIL Signing Date:24.10.2020 18:07:19

(vii) The Constitution Bench went on to hold, in para 123 of the report, that it was
"clear that the regulation of conduct of arbitration and challenge to an award would
have to be done by the courts of the country in which the arbitration is being
conducted". Such a court, alone, it was held, was the "supervisory court possessed of
the power to annul the award".

(viii) Thereafter, from para 155 of the report, the Supreme Court addressed, squarely, the issue of
"interim measures, etc. by the Indian courts where the seat of arbitration is outside India" -
precisely the issue which arises in the present case. The very first submission, advanced to support
the eXistence of jurisdiction, in Indian courts, to grant interim relief, under Section 9, even where
the seat of arbitration was outside India, was the precise submission urged by Mr. Gautam Narayan
before me, i.e., "that in such circumstances, the parties would be left remediless" as "no application
for interim relief would be available under Section 9 of the Arbitration Act, 1996, in an arbitration
seated outside India". The Constitution Bench was, therefore, e Xhorted to hold that "courts in India
have the jurisdiction to take necessary measures for preservation of assets and/or to prevent
dissipation of assets", even in such cases. The enunciation of the law, to the said effect, in Bhatia
International17 was, it was submitted, correct. Section 9, it was submitted, was required to be
distinguished from Section 34, as grant of interim relief under Section 9 did not interfere with the
final award. It was also contended that "annulment of the Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 award under Section 34 would have e Xtra territorial
operation whereas Section 9 being entirely asset focused, would be intrinsically territory focused
and intra-territorial in its operation" (as recorded in para 155 of the report). The Constitution
Bench, in clear, categorical in unmistakable terms, rejected the submission, holding (in para 156 of
the report) that "it would be wholly undesirable for this Court to declare by process of interpretation
that Section 9 is a provision which falls neither in Part I not Part II". Observing that "schematically,
Section 9 was placed in Part I" of the 1996 Act, the Constitution Bench held that it could not be
treated as sui generis, or granted a special status. Observing that Part I of the 1996 Act had already
been held, by it, not to apply to foreign seated arbitrations, the Constitution Bench also observed
that Part II did not contain any provision similar to Section 9. Thus, it was held, "on a logical and
schematic construction of the Arbitration Act, 1996, the Indian courts do not have the power to
grant interim measures when the seat of arbitration is outside India" (in para 157 of the report). The
"arbitral proceedings", to which Section 9 refers, it was held, "cannot relate to arbitration which
takes place outside India". The Constitution Bench went on to declare, unequivocally, in para 158 of
the report, "that the provision contained in Section 9 is limited in its application to arbitrations
which take place in India" and that holding otherwise "would be to do violence to the policy of the
territoriality declared in Section 2(2) of the Arbitration Act, 1996".

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(ix) The Constitution Bench also went on to address the grievance that e Xclusion, of Section 9, to
foreign seated arbitrations, would result in great hardship to parties who were in need of interim
measures, by tellingly observing thus (in paras 163 and 164 of the report):

"163. In our opinion, the aforesaid judgment in Reliance Industries Ltd. [(2002) 1 All
ER (Comm) 59 : (2002) 1 Lloyd's Rep 645] does not lead to the conclusion that the
parties were left without any remedy. Rather the remedy was pursued in England to
its logical conclusion. Merely because the remedy in such circumstances may be more
onerous from the viewpoint of one party is not the same as a party being left without
a remedy. Similar would be the position in cases where parties seek interim relief
with regard to the protection of the assets. Once the parties have chosen voluntarily
that the seat of the arbitration shall be outside India, they are impliedly also
understood to have chosen the necessary incidents and consequences of such choice.
We, therefore, do not find any substance in the submissions made by the learned
 counsel for the appellants, that if applicability of Part I is limited to arbitrations
which take place in India, it would leave many parties remediless.

164. If that be so, it is a matter to be redressed by the legislature."

(Emphasis supplied) No consideration of sympathy, at the petitioner being rendered

"remediless" can operate to confer jurisdiction, on this Court, if no such jurisdiction
eXists under the statutory dispensation in force. In deciding the sustainability of the
objection, of Mr. Kamath, to the territorial jurisdiction of this Court to entertain the
present proceedings, therefore, the difficulty in obtaining Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 relief from
Singaporean courts cannot be the determinative factor, though it does play a role, as
would become more apparent from the discussion hereinafter.

45.8 Thus, in BALCO8, the Constitution Bench of the Supreme Court held, in unmistakable terms,
that Section 2(2) of the 1996 Act resulted in complete eXclusion of jurisdiction, of courts in India, in
respect of foreign seated arbitrations, even for the purpose of obtaining interim reliefs, whether at
the pre-arbitral stage or otherwise, and also went on to clarify that this position was not affected by
Section 2(1)(e).

46. Swastik Gases9:

46.1 This decision was concerned, essentially, with the scope of an "e Xclusive jurisdiction" clause,
engrafted in the agreement between the parties. It did not involve any international commercial
arbitration.

46.2 The dispute between the parties arose out of an agreement, dated 13th October, 2002, whereby
Swastik Gases (hereinafter referred to as "Swastik") was appointed as the consignment agent of
IOCL, for marketing lubricants at Jaipur. Disputes arose in November, 2003, which could not be
amicably resolved. On 25th August, 2008, Swastik sent a notice, to IOCL, invoking the arbitration
clause in the agreement, and naming a retired Judge of the High Court of Rajasthan as its arbitrator.
IOCL was requested to nominate a corresponding Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 arbitrator, from its side. On failure, of IOCL, to do so, Swastik
petitioned the High Court, under Section 11 of the 1996 Act.

46.3 IOCL contested the petition on the ground that the High Court of Rajasthan lacked territorial
jurisdiction to adjudicate the lis, as the agreement was subject to jurisdiction of courts at Kolkata.
The High Court agreed with IOCL and dismissed the petition, of Swastik, on the ground of
jurisdiction. Swastik appealed to the Supreme Court.

46.4 Admittedly, Clause 18 in the agreement between Swastik and IOCL, which provided for
"Jurisdiction", postulated that "the agreement shall be subject to jurisdiction of the courts at
Kolkata". Even so, Swastik contended, before the Supreme Court, that the jurisdiction of courts at
Jaipur was not ousted, as the major part of the cause of action had arisen within such jurisdiction.
46.5 The Supreme Court held that, in view of Section 2(1)(e) of the 1996 Act, read with Section 20 of
the Code of Civil Procedure, 1908 (CPC), "there remains no doubt that the Chief Justice of the
designated Judge of the Rajasthan High Court has jurisdiction in the matter". Even so, it noted (in
para 31 of the report), "the question is, whether parties by virtue of Clause 18 of the agreement have
agreed to eXclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of
Clause 18 of the agreement, the jurisdiction of the Chief Justice of the Rajasthan High Court has
been eXcluded". The Supreme Court proceeded to answer the question, thus (in para 22 of the
report):

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 "For answer to
the above question, we have to see the effect of the jurisdiction clause in the agreement which
provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that
whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "eXclusive"
or "eXclusive jurisdiction" have not been used but this, in our view, is not decisive and does not
make any material difference. The intention of the parties - by having Clause 18 in the agreement - is
clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the
courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause,
like Clause 18 in the agreement, the maxim eXpression unius est eXclusion alterius comes into play
as there is nothing to indicate to the contrary. This legal maxim means that e Xpression of one is the
eXclusion of another. By making a provision that the agreement is subject to the jurisdiction of the
courts at Kolkata, the parties have impliedly eXcluded the jurisdiction of other courts. Where the
contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction
to deal with the matter, we think that an inference may be drawn that parties intended to e Xclude all
other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is
neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the
Contract Act in any manner."

(Emphasis supplied) 46.6 The Supreme Court, therefore, concurred with the judgement of the High
Court of Rajasthan and dismissed the appeal, preserving liberty, with the appellant, to approach the
High Court of Calcutta.

47. The 246th Report of the Law Commission of India 47.1 In the wake of BALCO8, and the
concerns eXpressed therein, the Law Commission, in its 246th Report, tendered in August, 2014,
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 suggested
eXtensive amendments to the 1996 Act. Paras 40 to 42 of the Report merit reproduction, thus:

"40. The Supreme Court in BALCO decided that Parts I and II of the Act are mutually
eXclusive of each other. The intention of Parliament that the Act is territorial in
nature and sections 9 and 34 will apply only when the seat of arbitration is in India.
The seat is the "centre of gravity" of arbitration, and even where two foreign parties
arbitrate in India, Part I would apply and, by virtue of Section 2(7), the award would
be a "domestic award". The Supreme Court recognized the "seat" of arbitration to be
the juridical seat; however, in line with international practice, it was observed that
the arbitral hearings may take place at a location other than the seat of arbitration.
 The distinction between "seat" and "venue" was, therefore, recognized. In such a
scenario, only if the seat is determined to be India, Part I would be applicable. If the
seat was foreign, Part I would be inapplicable.Even if Part I was e Xpressly included "it
would only mean that the parties have contractually imported from the Arbitration
Act, 1996, those provisions which are concerned with the internal conduct of their
arbitration and which are not inconsistent with the mandatory provisions of the
[foreign] Procedural Law/Curial Law." The same cannot be used to confer
jurisdiction on an Indian Court. However, the decision in BALCO was e Xpressly given
prospective effect and applied to arbitration agreements e Xecuted after the date of the
judgment.

41. While the decision in BALCO is a step in the right direction and would drastically
reduce judicial intervention in foreign arbitrations, the Commission feels that there
are still a few areas that are likely to be problematic.

(i) Where the assets of a party are located in India, and there is a likelihood that that party will
dissipate its assets in the near future, the other party will lack an efficacious remedy if the seat of the
arbitration is abroad. The latter party will have two possible remedies, but neither will be
efficacious. First, the latter party can obtain an interim order from a foreign Court or the arbitral
tribunal itself and file a civil suit Signature Not Verified to enforce the right created by the interim
order. The Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 interim order would not be
enforceable directly by filing an eXecution petition as it would not qualify as a "judgment" or
"decree" for the purposes of Sections 13 and 44A of the Code of Civil Procedure (which provide a
mechanism for enforcing foreign judgments). Secondly, in the event that the former party does not
adhere to the terms of the foreign Order, the latter party can initiate proceedings for contempt in the
foreign Court and enforce the judgment of the foreign Court under sections 13 and 44A of the Code
of Civil Procedure. Neither of these remedies is likely to provide a practical remedy to the party
seeking to enforce the interim relief obtained by it.

That being the case, it is a distinct possibility that a foreign party would obtain an arbitral award in
its favour only to realize that the entity against which it has to enforce the award has been stripped
of its assets and has been converted into a shell company.

(ii) While the decision in BALCO was made prospective to ensure that hotly negotiated bargains are
not overturned overnight, it results in a situation where Courts, despite knowing that the decision in
Bhatia is no longer good law, are forced to apply it whenever they are faced with a case arising from
an arbitration agreement eXecuted pre-BALCO.

42. The above issues have been addressed by way of proposed Amendments to Sections 2(2), 2(2A),
20, 28 and

31."

47.2 The following amendments, suggested by the Law Commission Report, are significant:
(i) Section 2(1)(e) which, as it stood then, read as under:

"(e) "Court" means the principal Civil Court of original jurisdiction in the district, and
includes the High Court in eXercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the arbitration if
the Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 same had been the subject-matter of the suit, but does not include any Civil
Court of a grade inferior to such principal Civil Court, or any Court of Small Causes".

The Law Commission Report recommended amendment of Section 2(1)(e), by the

addition of the words "in the case of an arbitration other than international
commercial arbitration", before the words "the principal Civil Court of original
jurisdiction" in sub-section (i), and insertion of sub- section (ii), specific to
international commercial arbitration. These changes would become apparent from
the amended Section 2(1)(e), which already stands reproduced in para 43 supra.

(ii) The Law Commission Report also contains the following recommendations, for
amendments in Section 2 of the 1996 Act:

"(v) In sub-section (1), after clause (h), insert clause "(hh) "seat of the arbitration"
means the juridical seat of the arbitration".

[NOTE: This definition of "seat of arbitration" is incorporated so as to make it clear

that "seat of arbitration" is different from the venue of arbitration. Section 20 has
also been appropriately modified.]

(vi) In sub-section (2), add the word "only" after the words "shall apply" and delete
the word "place" and insert the word "seat" in its place.

[NOTE: this amendment ensures that an Indian Court can only e Xercise jurisdiction
under Part I where the seat of the arbitration is in India. To this e Xtent, it overrules
Bhatia International v. Bulk Trading S.A.

and Anr., (2002) 4 SCC 105, and re-enforce the "seat centricity" principle of Bharat
Aluminium Company Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 and Ors. etc. v. Kaiser Aluminium Technical Service, Inc.,
(2012) 9 SCC 552] Also insert the following proviso "Provided that, subject to an
eXpress agreement to the contrary, the provisions of sections 9, 27, 37(1)(a) and 37
(3) shall also apply to international commercial arbitration even if the seat of
arbitration is outside India, if an award made, or that which might be made, in such
place would be enforceable and recognised under Part II of this Act.

[NOTE: This proviso ensures that an Indian Court can e Xercise jurisdiction with
respect to these provisions even where the seat of the arbitration is outside India.]"
 (iii) Additionally, the Law Commission Report also suggested certain amendments, in
Sections 20 and 31 of the 1996 Act:

"Amendment of Section 20

12. In Section 20, delete the word "Place" and add the words "Seat and Venue" before
the words "of arbitration".

(i) In sub-section (1), after the words "agree on the" delete the word "place" and add
words "seat and venue".

(ii) In sub-section (3), after the words "meet at any" delete the word "place" and add
word "venue".

[NOTE: The departure from the e Xisting phrase "place" of arbitration is proposed to
make the wording of the Act consistent with the international usage of the concept of
a "seat" of arbitration, to denote the legal home of the arbitration. The amendment
further legislatively distinguishes between the "[legal] seat"

from a, "[mere] venue" of arbitration.] Amendment of Section 31 Signature Not

Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

17. In Section 31

(i) In sub-section (4), after the words "its date and the" delete the word "place" and
add the word "seat"."

These recommendations, for amendment of Sections 20 and 31 were, however, not

accepted, and the provisions remained inviolate.

47.3 While the recommendation, qua Section 2(1)(e), was accepted and implemented, and the clause
was amended accordingly, the amendments relating to Section 2(2) were not accepted in toto. While
a proviso was added, to the said sub-section, the proposal to add, after the words "shall apply", the
word "only", was not implemented. Similarly, the word "eXpress", as contained in the proposed
proviso to Section 2(2), did not figure in the proviso as it ultimately came to be inserted vide the
Arbitration and Conciliation (Amendment) Act, 2016 (hereinafter referred to as "the 2016
Amendment Act"). What impact these deviations have, when compared with the original
recommendations of the Law Commission, would become more apparent from the discussion that
follows hereinafter.

48. B.E. Siomese Von Staraburg Niedenthal10 48.1 In the conte Xt of the controversy before me, this
judgement, though brief, assumes considerable importance. An agreement, for raising mines,
located in Goa, was eXecuted, between the appellant (hereinafter referred to as "BES") and the
respondent (hereinafter Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 referred to as "CIL"), whereunder CIL was the e Xclusive purchaser of ore, mined by BES.
Clause 13 of the raising agreement e Xpressly stipulated that "the courts at Goa shall have e Xclusive
jurisdiction". Disputes arose, resulting in CIL filing an application, under Section 9 of the 1996 Act,
for interim protection, in the Court of the District Judge, Raipur. BES questioned the jurisdiction of
the District Judge, Raipur, to adjudicate the lis, on the ground that the mines were located in Goa,
the agreement was eXecuted in Goa and the second respondent was residing at Goa. CIL contended,
per contra, that the working of the company was at Raipur and that the cause of action also arose in
Raipur. The District Judge, Raipur, rejected the objection of BES. Aggrieved thereby, BES appealed
to the Chhattisgarh High Court. The High Court directed the District Judge to decide the Section 9
application, along with the objection regarding territorial jurisdiction, afresh. BES appealed to the
Supreme Court.

48.2 Placing reliance on the passage, from Swastik Gases Pvt Ltd9, e Xtracted in para 46.5 supra, the
Supreme Court held that Clause 13 of the raising agreement ousted the jurisdiction of the District
Judge, Raipur, and conferred eXclusive jurisdiction on the courts at Goa. The judgement of the High
Court was, therefore, set aside.

49. Indus Mobile Distribution Pvt Ltd11 49.1 Datawind Innovations Pvt. Ltd. (hereinafter referred to
as "DIPL"), the respondent in this case, was supplying goods to the appellant (who would be
referred to, hereinafter, as "Indus"). DIPL Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 was located in New Delhi, and Indus was located at Chennai. An
agreement, dated 25th October, 2014, was eXecuted between them. Clause 18 of the agreement
provided for resolution of disputes, which could not be settled amicably, by arbitration, to be
conducted at Mumbai, in accordance with the 1996 Act. Clause 19 stipulated that "all disputes and
differences of any kind whatever arising out of or in connection with (the) agreement shall be
subject to the eXclusive jurisdiction of courts of Mumbai only".

49.2 Disputes arose, resulting in the issuance of a notice, dated 25th September, 2015, from DIPL to
Indus, invoking Clause 18 of the agreement and appointing Justice H.R. Malhotra, a retired Judge of
this Court, as Sole arbitrator. Indus objected to the appointment of Justice Malhotra, vide its reply
dated 15th October, 2015.

49.3 DIPL moved two petitions before this Court, one under Section 9, seeking certain pre-arbitral
interim reliefs, and another under Section 11, for appointment of an arbitrator. Both the petitions
were disposed of, vide judgement dated 3rd June, 201621. An objection, raised by Indus, to the
maintainability of the Section 9 petition before this Court, was rejected, holding that the "e Xclusive
jurisdiction clause", i.e. Clause 19, in the agreement between the parties, would not apply on facts, as
no part of the cause of action had arisen within the jurisdiction of any court in Mumbai. In other
words, this Court was of the opinion that the parties could not, by an e Xclusive jurisdiction clause,
confer jurisdiction on a court, within the 21 Datawind Innovations (P) Ltd v. Indus Mobile
Distribution (P) Ltd, 2016 SCC OnLine Del 3744 Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 jurisdiction of which no part of the cause of action had arisen.
This Court opined that only courts of Delhi, Chennai or Amritsar, would have jurisdiction in the
matter and that, therefore, the petitioner had correctly filed the Section 9 petition in this Court. This
Court proceeded to confirm the interim order dated 22 nd September, 2015 and also disposed of the
Section 11 petition, by appointing Justice S.N. Variava, a learned retired Judge of the Supreme
Court, as the sole arbitrator.

49.4 Indus challenged this judgement, before the Supreme Court. The Supreme Court quoted
e X tensively from BALCO8, and reproduced, with approval, the following passage from the
judgement of the Court of Appeal, England, in A v. B22 (on which BALCO8, too, relied):

"... an agreement as to the seat of an arbitration is analogous to an e X clusive

jurisdiction clause. Any claim for a remedy ... as to the validity of an e Xisting interim
or final award is agreed to be made only in the courts of the place designated as the
seat of arbitration."

49.5 The Supreme Court endorsed the view, earlier eXpressed in Enercon (India) Ltd v. Enercon
GmBH23, that "once the seat of arbitration has been fi Xed, it would be in the nature of an e Xclusive
jurisdiction clause as to the courts which eXercise supervisory powers over the arbitration".

(2007) 1 All ER (Comm) 591 (2014) 5 SCC 1 Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 49.6 The Supreme Court, thereafter, went on to note the
recommendations, of the 246th Law Commission, and the amendments proposed by it. In para 18 of
the report, the Supreme Court rationalised the decision, of the Legislature, not to amend Sections 20
and 31 of the 1996 Act, as proposed by the Law Commission, thus:

"The amended Act, does not, however, contain the aforesaid amendments,
presumably because the BALCO judgment in no uncertain terms has referred to
"place" as "juridical seat" for the purpose of Section 2(2) of the Act. It further made it
clear that Section 20(1) and 20 (2) where the word "place" is used, refers to "juridical
seat", whereas in Section 20 (3), the word "place" is equivalent to "venue". This being
the settled law, it was found unnecessary to e X pressly incorporate what the
Constitution Bench of the Supreme Court has already done by way of construction of
the Act."

49.7 The concluding paras 19 and 20 of the report, in Indus Mobile Distribution11, are of
significance:

"19. A conspectus of all the aforesaid provisions shows that the moment the seat is
designated, it is akin to an eXclusive jurisdiction clause.On the facts of the present
case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it
clear that jurisdiction eXclusively vests in the Mumbai courts. Under the Law of
Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a
reference to "seat" is a concept by which a neutral venue can be chosen by the parties
to an arbitration clause. The neutral venue may not in the classical sense have
jurisdiction
 - that is, no part of the cause of action may have arisen at the neutral venue and
neither would any of the provisions of Section 16 to 21 of the Code of Civil Procedure
be attracted. In arbitration law however, as has been held above, the moment "seat"
is determined, the fact that the seat is at Mumbai would vest Mumbai courts with
eXclusive jurisdiction for purposes of regulating arbitral proceedings arising out of
the agreement between the parties.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

20. It is well settled that where more than one court has jurisdiction, it is open for parties to e Xclude
all other courts. For an eXhaustive analysis of the case law, see Swastik Gases (P) Ltd. v. Indian Oil
Corpn. Ltd., (2013) 9 SCC 32. This was followed in a recent judgment in B.E. Simoese Von Staraburg
Niedenthal v. Chhattisgarh Investment Ltd., (2015) 12 SCC 225.Having regard to the above, it is
clear that Mumbai courts alone have jurisdiction to the e Xclusion of all other courts in the country,
as the juridical seat of arbitration is at Mumbai. This being the case, the impugned judgment is set
aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks
from the date of pronouncement of this judgment, so that the respondents may take necessary steps
under Section 9 in the Mumbai Court. The appeals are disposed of accordingly."

(Emphasis supplied)

50. Brahmani River Pellets12 50.1 The Supreme Court was seized, in this case, with the question of
whether an application for appointment of an arbitrator, under Section 11(6) of the 1996 Act, would
lie before the Madras High Court, despite the venue of arbitration having been fi X ed as
Bhubaneswar, in the agreement between the parties.

50.2 The agreement related to sale of 40,000 Wet Metric Tonne (WMT) of Iron ore pellets, by the
appellant to the respondent. The pellets were to be loaded at Odisha and unloaded at Chennai.
Clause 18 of the agreement provided for arbitration, of disputes, and specified that "the venue of
arbitration shall be Bhubaneswar".

50.3 On 7th October, 2015, the respondent invoked the arbitration clause. The appellant opposed
the appointment of an arbitrator, Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 whereupon the respondent filed a petition, under Section 11(6), before the
High Court of Madras, for appointment of the sole arbitrator. The appellant challenged the
jurisdiction of the High Court of Madras, to entertain the petitioner, on the ground that the seat of
arbitration was Bhubaneswar. The High Court of Madras appointed a learned former Judge of the
High Court as the sole arbitrator, holding that the mere designation of a "seat" of arbitration, did not
result in ouster of the jurisdiction of all other courts to deal with the matter. An e Xpress clause,
eXcluding jurisdiction of other courts was, in the opinion of the High Court, required, for such an
ouster to take place.

50.4 Before the Supreme Court, the appellant contended that, once the parties had agreed for a
place/venue for the arbitration, that place acquired the status of a "seat", which was the juridical
seat of arbitration, resulting in confinement of jurisdiction to the Courts having jurisdiction over
such juridical seat. The respondent contended, per contra, that, the cause of action having arisen
both at Bhubaneswar and Chennai, both High Courts, i.e. the High Court of Orissa and the High
Court of Madras, would have supervisory jurisdiction over the arbitral proceedings. Absent any
specific eXclusion of the jurisdiction of a court, in the agreement, it was contended that the mere
designation of a "seat" of arbitration, did not result, ipso facto, in ouster of the jurisdiction of all
courts, save and eXcept the court having territorial jurisdiction over such seat.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 50.5 Noting, in
detail, the import of the decisions in BALCO8, Swastik Gases9 and Indus Mobile Distribution11, the
Supreme Court concluded, in paras 18 and 19 of the report, thus:

"18. Where the contract specifies the jurisdiction of the court at a particular place,
only such court will have the jurisdiction to deal with the matter and parties intended
to eXclude all other courts. In the present case, the parties have agreed that the
"venue" of arbitration shall be at Bhubaneswar. Considering the agreement of the
parties having Bhubaneswar as the venue of arbitration, the intention of the parties is
to eXclude all other courts. As held in Swastik Gases (P) Ltd. v. Indian Oil Corpn.
Ltd., (2013) 9 SCC 32 : (2013) 4 SCC (Civ) 157, non-use of words like "e Xclusive
jurisdiction", "only", "eXclusive", "alone" is not decisive and does not make any
material difference.

19. When the parties have agreed to have the "venue" of arbitration at Bhubaneswar,
the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the
Act. Since only the Orissa High Court will have the jurisdiction to entertain the
petition filed under Section 11(6) of the Act, the impugned order is liable to be set
aside."

(Emphasis supplied)

51. BGS SGS Soma JV13 51.1 This was a batch of three Civil Appeals, emanating from
three petitions, under Section 34 and, thereafter, three appeals under Section 37, of
the 1996 Act. Two issues arose before the Supreme Court, of which one, alone, is
relevant for our purpose. These issues were (i) the maintainability of the appeals
under Section 37, and (ii) whether the "seat of arbitration" was New Delhi or
Faridabad, on which would depend the forum, before which the Section 34 petition
could have been filed. We are not concerned with issue (i).

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 51.2 SLP
(Civil) 25618/2018 dealt with the contract, awarded by NHPC to the petitioner (hereinafter referred
to as "BGS") for construction of a project, touted as the largest hydropower project in India. The
project was located in the Lower Subansiri Districts in Assam and Arunachal Pradesh. Clause 67.3 of
the contract provided for arbitration, to resolve disputes between the parties. Sub-clause
(vi) thereof provided that arbitration proceedings would be held in New Delhi/Faridabad.

51.3 Disputes arose. BGS issued a notice of arbitration, on 16th May, 2011, to NHPC. A
three-member Arbitral Tribunal was constituted as per Clause 67.3. 71 sittings of the Arbitral
Tribunal took place, following which, on 26th August, 2016, the Arbitral Tribunal delivered a
unanimous award at New Delhi. NHPC challenged the award, by way of a petition under Section 34
of the 1996 Act, before the District and Sessions Judge, Faridabad. BGS moved an application,
under Section 151 read with Order VII Rule 10 of the CPC and Section 2(1)(e)(i) of the 1996 Act,
seeking that the petitioner be returned to NHPC for presentation before the appropriate court at
New Delhi and/or the District Judge at Dhemaji, Assam. The case was, subsequently, transferred to
the Special Commercial Court, Gurugram which, vide order dated 21st December, 2017, allowed the
application of BGS and returned the Section 34 petition to NHPC, for presentation before the proper
court having jurisdiction, in New Delhi. NHPC appealed, against the said decision, under Section 37
of the 1996 Act, before the High Court of Punjab and Haryana. Vide judgement dated 12th
September, 2018, the High Court of Punjab and Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 Haryana allowed the appeal of NHPC, and held that Delhi was
only a convenient venue, where the arbitral proceedings were held, and was not the seat of the
arbitration proceedings. As such, part of the cause of action having arisen in Faridabad, the High
Court held that the District Judge at Faridabad was possessed of jurisdiction to decide the petition
of NHPC. BGS carried the matter to the Supreme Court.

51.4 Before the Supreme Court, BGS contended that, as the sittings of the Arbitral Tribunal had
taken place at New Delhi, and the award was also posted in New Delhi, New Delhi was the "seat" of
the arbitral proceedings between the parties. Even if it were to be assumed that both New Delhi and
Faridabad had jurisdiction, it was contended that, New Delhi having been chosen by the parties, the
Section 34 petition would necessarily have to be filed before the court at New Delhi. Once the venue
of the arbitral proceedings had been fiXed between the parties, such venue was liable to be regarded
as the "seat" of arbitration, for which purpose reliance was placed on the judgement of the
Constitution Bench in BALCO8. The subsequent judgement of the Supreme Court in U.O.I. v. Hardy
EXploration & Production (India) Inc.24, which suggested otherwise was, it was submitted, wrongly
decided.

51.5 Similar submissions were advanced by learned counsel appearing on behalf of the appellant in
the other two appeals.

(2019) 13 SCC 472 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 51.6 NHPC contended, per contra, that the arbitration clause, in the contract between the
parties, did not eXpressly state that New Delhi, or Faridabad, was the "seat" of the Arbitral Tribunal.
It merely referred to a convenient venue and the fact that sittings were held at New Delhi did not
render New Delhi the "seat of the arbitration", within the meaning of Section 20(1) of the 1996 Act.
The agreements having been signed at Faridabad, and notices sent by BGS to the office of NHPC at
Faridabad, it was submitted that part of the cause of action clearly arose in Faridabad, as a result of
which the Faridabad courts possessed the jurisdiction to decide the Section 34 application. Even as
per BALCO8, it was contended, both New Delhi and Faridabad would have concurrent jurisdiction.
That being so, as no part of the cause of action arose in New Delhi, and a part of the cause of action
having arisen at Faridabad, the Faridabad court alone had jurisdiction to adjudicate on the matter.

51.7 On this issue, the Supreme Court observed, at the outset (in para 21 of the report) that it was
necessary to lay down the law on what constituted the "juridical seat" of the arbitral proceedings and
whether, once the seat was delineated by the arbitration agreement, e Xclusive jurisdiction over the
arbitral proceedings would vest in the courts at the place where such seat was located, alone.
Thereafter, the Supreme Court traced the legislative history, behind the 1996 Act, and the various
provisions thereof. The Supreme Court went on to observe that there was no distinction between the
"place of arbitration" and "seat of arbitration" and that Sections 20 and 31(4) of the 1996 Act
granted primacy of place to the juridical seat of the Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 arbitral proceedings. In para 32, the Supreme Court
observed that "given the new concept of "juridical seat" of the arbitral proceedings, and the
importance given by the Arbitration Act, 1996 to this "seat", the arbitral award is now not only to
state its date, but also the place of arbitration as determined in accordance with Section 20." The
Supreme Court went on to paraphrase, with reference to relevant passages, the law enunciated in
BALCO8, including, inter alia, the following observations, from para-76 of the report in that case,
which clearly synonymizes "place" and "seat" of the arbitration:

"It must be pointed out that the law of the seat or place where the arbitration is held,
is normally the law to govern that arbitration. The territorial linkbetween the place of
arbitration and the law governing that arbitration is well established in the
international instruments, namely the New York Convention of 1958 and the
UNCITRAL Model Law of 1985. It is true that the terms "seat" and "place" are often
used interchangeably. In Redfern and Hunter on International Arbitration
(Para-3.51), the seat theory is defined thus: 'The concept that an arbitration is
governed by the law of the place in which it is held, which is the "seat" (or "forum" or
locus arbitri) of the arbitration, is well established in both the theory and practice of
international arbitration. In fact, the Geneva Protocol, 1923 states:

'2. The arbitral procedure, including the constitution of the Arbitral Tribunal, shall be
governed by the will of the parties and by the law of the country in whose territory the
arbitration takes place.' The New York Convention maintains the reference to 'the law
of the country where the arbitration took place' [Article V(1)(d)] and, synonymously
to 'the law of the country where the award is made' [Articles V(1)(a) and (e)]. The
aforesaid observations clearly show that the New York Convention continues the
clear territorial link between the place of arbitration and the law governing the
arbitration."

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

Finally, in para 35, the Supreme Court noted the conclusion, drawn in para 116 of
BALCO8, thus:
 "The legal position that emerges from a conspectus of all the decisions, seems to be,
that the choice of another country as the seat of arbitration inevitably imports and
acceptance that the law of that country relating to the conduct and supervision of
arbitrations will apply to the proceedings."

(Emphasis supplied) Additionally, the conclusion, in para-194 of BALCO8, that Part I

of the 1996 Act would have no application to international commercial arbitration
held outside India, was also endorsed.

51.8 In view of the law enunciated in BALCO8, the Supreme Court went on to hold (in para 38 of the
report) that "where parties have selected the seat of arbitration in their agreement, such election
would then amount to an eXclusive jurisdiction clause, as the parties have now indicated that the
courts at the "seat" would alone had jurisdiction to entertain challenges against the arbitral award
which had been made at the seat."

51.9 Apropos Section 2(1)(e) of the 1996 Act, vis-à-vis Section 2(2) and Section 20, the Supreme
Court went on, in paras 44, 45, 49, 50 and 53 of the report, to clarify that Section 2(1)(e) did not, in
any manner, militate against the eXclusive jurisdiction, vesting in the Courts, within whose territory
the "seat" of arbitration was situate, in the following words:

"44. If paras 75, 76, 96, 110, 116, 123 and 194 of BALCO are to be read together, what
becomes clear is that Section 2(1)(e) has to be construed keeping in view Section 20
of the Arbitration Act, 1996, which gives recognition to party Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 autonomy - the
Arbitration Act, 1996 having accepted the territoriality principle in Section 2(2),
following the UNCITRAL Model Law. The narrow construction of Section 2(1)(e) was
eXpressly rejected by the five-Judge Bench in BALCO. This being so, what has then to
be seen is what is the effect Section 20 would have on Section 2(1)(e) of the
Arbitration Act, 1996.

45. It was not until this Court's judgment in Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd., (2017) 7 SCC 678 : (2017) 3 SCC (Civ) 760 that the
provisions of Section 20 were properly analysed in the light of the 246th Report of
the Law Commission of India titled, "Amendments to the Arbitration and
Conciliation Act, 1996" (August, 2014) (hereinafter referred to as "the Law
Commission Report, 2014"), under which Sections 20(1) and (2) would refer to the
"seat" of the arbitration, and Section 20(3) would refer only to the "venue" of the
arbitration. Given the fact that when parties, either by agreement or, in default of
there being an agreement, where the Arbitral Tribunal determines a particular place
as the seat of the arbitration under Section 31(4) of the Arbitration Act, 1996, it
becomes clear that the parties having chosen the seat, or the Arbitral Tribunal having
determined the seat, have also chosen the courts at the seat for the purpose of interim
orders and challenges to the award.
49. Take the consequence of the opposite conclusion, in the light of the facts of a given e Xample, as
follows. New Delhi is specifically designated to be the seat of the arbitration in the arbitration clause
between the parties. Part of the cause of action, however, arises in several places, including where
the contract is partially to be performed, let us say, in a remote part of Uttarakhand. If concurrent
jurisdiction were to be the order of the day, despite the seat having been located and specifically
chosen by the parties, party autonomy would suffer, which BALCO specifically states cannot be the
case. Thus, if an application is made to a District Court in a remote corner of the Uttarakhand hills,
which then becomes the court for the purposes of Section 42 of the Arbitration Act, 1996 where even
Section 34 applications have then to be made, the result would be contrary to the stated intention of
the parties - as even though the parties have contemplated that a neutral place be chosen Signature
Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 as the seat so that the
courts of that place alone would have jurisdiction, yet, any one of five other courts in which a part of
the cause of action arises, including courts in remote corners of the country, would also be clothed
with jurisdiction. This obviously cannot be the case. If, therefore, the conflicting portion of the
judgment of BALCO in para 96 is kept aside for a moment, the very fact that parties have chosen a
place to be the seat would necessarily carry with it the decision of both parties that the courts at the
seat would eXclusively have jurisdiction over the entire arbitral process.

50. In fact, subsequent Division Benches of this Court have understood the law to be that once the
seat of arbitration is chosen, it amounts to an e Xclusive jurisdiction clause, insofar as the courts at
that seat are concerned.In Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC
(Civ) 59 , this Court approved the dictum in Shashoua v. Sharma, 2009 EWHC 957 (Comm) :
(2009) 2 Lloyd's Law Rep 376] as follows : (SCC p. 55, para 126) "126. E Xamining the fact situation
in the case, the Court in Shashoua case observed as follows:

'The basis for the court's grant of an anti-suit injunction of the kind sought depended
upon the seat of the arbitration. An agreement as to the seat of an arbitration brought
in the law of that country as the curial law and was analogous to an e X clusive
jurisdiction clause. Not only was there agreement to the curial law of the seat, but
also to the courts of the seat having supervisory jurisdiction over the arbitration, so
that, by agreeing to the seat, the parties agreed that any challenge to an interim or
final award was to be made only in the courts of the place designated as the seat of
the arbitration.

Although, "venue" was not synonymous with "seat", in an arbitration clause which provided for
arbitration to be conducted in accordance with the Rules of the ICC in Paris (a supranational body of
rules), a provision that "the venue of arbitration shall be London, Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 United Kingdom" did amount to the
designation of a juridical seat. ' In para 54, it is further observed as follows:

'There was a little debate about the possibility of the issues relating to the alleged
submission by the claimants to the jurisdiction of the High Court of Delhi being
heard by that Court, because it was best fitted to determine such issues under the
Indian law. Whilst I found this idea attractive initially, we are persuaded that it would
 be wrong in principle to allow this and that it would create undue practical problems
in any event. On the basis of what I have already decided, England is the seat of the
arbitration and since this carries with it something akin to an e Xclusive jurisdiction
clause, as a matter of principle the foreign court should not decide matters which are
for this Court to decide in the conteXt of an anti-suit injunction.'"

(emphasis in original)

53. In Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7
SCC 678 : (2017) 3 SCC (Civ) 760, after clearing the air on the meaning of Section 20
of the Arbitration Act, 1996, the Court in para 19 (which has already been set out
hereinabove) made it clear that the moment a seat is designated by agreement
between the parties, it is akin to an eXclusive jurisdiction clause, which would then
vest the courts at the "seat" with e Xclusive jurisdiction for purposes of regulating
arbitral proceedings arising out of the agreement between the parties."

(Bold emphasis and underscoring supplied; italics in original) 51.10 In para 57 of the report, the
Supreme Court drove home the point, yet again, by holding that "the choosing of a "seat" amounts to
the choosing of the eXclusive jurisdiction of the courts at which the "seat" is located."

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 51.11
EXpatiating, thereafter, in detail, on the indicia distinguishing the "seat" of arbitral proceedings, the
Supreme Court held, in para 61 of the report, that "wherever there is an e Xpress designation of a
"venue", and no designation of any alternative place as the "seat", combined with a supranational
body of rules governing the arbitration, and no other significant contrary indicia, the ine Xorable
conclusion is that the stated venue is actually the juridical seat of the arbitral proceeding". The
distinction between the "seat" and "venue" was, thereby, considerably eviscerated, save and e Xcept
for cases in which the agreement itself referred, separately, to the "seat" and "venue" of the arbitral
process, all contained indicia, indicating to the contrary. It is not necessary to e Xpand on this aspect,
as the arbitration agreement between the petitioner and the respondent, in the present case, does
not refer to any "venue" of the arbitral proceedings, as distinct from the "seat" thereof. Having said
that, para 82 of the report lays down the law so authoritatively, that it necessarily merits
reproduction, in eXtenso:

"On a conspectus of the aforesaid judgments, it may be concluded that whenever

there is the designation of a place of arbitration in an arbitration clause as being the
"venue" of the arbitration proceedings, the eXpression "arbitration proceedings"
would make it clear that the "venue" is really the "seat" of the arbitral proceedings, as
the aforesaid eXpression does not include just one or more individual or particular
hearing, but the arbitration proceedings as a whole, including the making of an award
at that place. This language has to be contrasted with language such as "tribunals are
to meet or have witnesses, eXperts or the parties" where only hearings are to take
place in the "venue", which may lead to the conclusion, other things being equal, that
the venue so stated is not the "seat" of arbitral proceedings, but only a convenient
 place of meeting. Further, the fact that the arbitral proceedings "shall be held" at a
particular venue would also Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 indicate that the parties intended to anchor
arbitral proceedings to a particular place, signifying thereby, that that place is the
seat of the arbitral proceedings. This, coupled with there being no other significant
contrary indicia that the stated venue is merely a "venue" and not the "seat" of the
arbitral proceedings, would then conclusively show that such a clause designates a
"seat" of the arbitral proceedings. In an international conte Xt, if a supranational body
of rules is to govern the arbitration, this would further be an indicia that "the venue",
so stated, would be the seat of the arbitral proceedings. In a national conte Xt, this
would be replaced by the Arbitration Act, 1996 as applying to the "stated venue",
which then becomes the "seat" for the purposes of arbitration."

(Emphasis supplied) 51.12 To complete the recital - though it is not strictly relevant
for the purposes of the present controversy - it may be noted that the Supreme Court
went on to hold that the earlier decision in Hardy EXploration & Production24 was
per incuriam, being contrary to the law laid down in BALCO8.

51.13 In conclusion, the Supreme Court held that the arbitration clause, in the agreement between
BGS and NHPC clearly indicated that both New Delhi and Faridabad had been designated as the
"seat" of the arbitration proceedings. Even so, as the proceedings had finally been held at New Delhi,
and the awards signed at New Delhi, and not at Faridabad, it was held that the parties had
consciously chosen New Delhi as the "seat" of arbitration, under Section 20(1) of the 1996 Act. That
being so, the Supreme Court held that the parties had chosen the courts at New Delhi to alone have
eXclusive jurisdiction over the arbitral proceedings. The arising of a part of the cause of action at
Faridabad did not, therefore, justify invocation of the jurisdiction of Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 the Faridabad courts, to challenge the award.
Once the "seat" of the arbitration had been chosen, it was held that an e Xclusive jurisdiction clause
had come into being, so far as courts of the "seat" were concerned. Resultantly, the Supreme Court
set aside the judgement of the High Court of Punjab and Haryana and directed that the Section 34
petition be presented in the courts at New Delhi.

Had this been the position ...

52. The judgements, cited hereinabove, unquestionably support the premise that, once the "seat" of
arbitration stood identified in the agreement or contract between the parties, and in the absence of
any other "eXclusive jurisdiction" clause in the contract, courts, having territorial jurisdiction over
such seat would, alone, be competent to e Xercise supervisory control over the arbitral proceedings,
which would include applications for grant of interim relief. These judgements, however, were
rendered prior to the insertion, in Section 2(2), of the proviso thereto, by the 2016 Amendment Act.
This proviso stipulated that, even if the place of arbitration - which, as per the aforesaid judgements,
would also be the "seat of arbitration" - were outside India, the provisions in Part I of the 1996 Act
would, nevertheless, continue to apply. The beneficial reach of this proviso was, however,
conditioned by the caveat that there should be no "agreement to the contrary". It is in the awareness
of this proviso that Mr. Kamath has, consciously, sought to contend that the second sentence in
Clause 22.1 of the Lease Deed constituted such an Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 "agreement to the contrary". Whether it does, or does not, is
eXamined, in detail, hereinafter.

53. Mankastu ImpeX14 53.1 To a case covered by the proviso to Section 2(2) of the 1996 Act, this
judgement assumes especial significance.

53.2 The Supreme Court was concerned, here, with a petition, under Section 11 (6) of the 1996 Act,
seeking appointment of an arbitrator. A Memorandum of Understanding (MOU) was e Xecuted,
between the petitioner Mankastu ImpeX Pvt. Ltd. (hereinafter referred to as "Mankastu") and the
respondent Airvisual. Ltd. (hereinafter referred to as "Airvisual"), whereunder Airvisual agreed to
sell, to Mankastu, air quality monitors, for onward sale. Mankastu was appointed as the e Xclusive
distributor, for sale of the products within India. Disputes surfaced, leading to the filing, by
Mankastu, before this Court, of a petition, under Section 9 of the 1996 Act, on 11th December, 2017.
Vide interim order dated 28th February, 2018, this Court restrained Airvisual from selling any of its
products in India.

53.3 In the meanwhile, Mankastu also invoked the arbitration clause, in the MOU, on 8th
December, 2017. Vide reply dated 5th January, 2018, Airvisual contended that Clause 17 of the MOU
provided for arbitration administered and seated in Hong Kong. Mankastu filed the petition, under
Section 11 (6) of the 1996 Act, before this Court, for Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 appointment of a Sole Arbitrator, in terms of Clause 17
of the MOU. Clause 17 read thus:

"17. Governing law and dispute resolution 17.1 This MoU is governed by the laws of
India, without regard to its conflicts of laws provisions, and courts at New Delhi shall
have the jurisdiction.

17.2 Any dispute, controversy, difference or claim arising out of or relating to this
MoU, including the eXistence, validity, interpretation, performance, breach or
termination thereof or any dispute regarding non-contractual obligations arising out
of or relating to it shall be referred to and finally resolved by arbitration administered
in Hong Kong.

The place of arbitration shall be Hong Kong.

The number of arbitrators shall be one. The arbitration proceedings shall be

conducted in English language.

17.3 It is agreed that a party may seek provisional, injunctive or equitable remedies,
including but not limited to preliminary injunctive relief, from a court having
jurisdiction, before, during or after the pendency of any arbitration proceeding."
53.4 On the aspect of territorial jurisdiction, Airvisual, predictably, relied on the specification, in
Clause 17.2 of the MOU, of the place of arbitration as Hong Kong, contending that, once the place of
arbitration was outside India, Section 11 of the 1996 Act would not apply. Additionally, it was
pointed out, Clause 17.2 also provided for reference, resolution and administration of all disputes,
arising out of the MOU, in Hong Kong. The petitioner contended, per contra, that Clause 17.1
specifically conferred jurisdiction, on courts at New Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 Delhi, with the authority to decide disputes between
the parties. The objection of Airvisual was, therefore, it was contended, misconceived.

53.5 The question arising before it for consideration was, therefore, specifically framed, by the
Supreme Court (in para 15 of the report) as whether "in view of Clause 17.2 of the MOU ... The
parties have agreed that the seat of arbitration is in Hong Kong and whether this Court lacks
jurisdiction to entertain the present petition filed under Section 11 of the Arbitration and
Conciliation Act, 1996". It appears that, while using the e Xpression "this Court", the Supreme Court
essentially intended to refer to the High Court of Delhi.

53.6 The Supreme Court observed, relying on Enercon India23, that the receipt of arbitration was a
vital aspect of any arbitration proceedings, and that its significance was "that it determines the
applicable law when deciding the arbitration proceedings and arbitration procedure as well as
judicial review over the arbitration award". It was "all about which court would have the supervisory
power over the arbitration proceedings". (in para 20 of the report) 53.7 While proceeding to hold
that the eXpressions "seat of arbitration" and "venue of arbitration" were not interchangeable, the
Supreme Court held that, on a plain reading of the arbitration agreement between Mankastu and
Airvisual, it was "clear that the reference to Hong Kong as "place of arbitration" is not a simple
reference as the "venue" for the arbitral proceedings; but a reference to Hong Kong for final
resolution by arbitration administered in Hong Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 Kong". Clearly, therefore, held the Supreme Court, "the parties
have agreed that the arbitration be seated at Hong Kong and that laws of Hong Kong shall govern
the arbitration proceedings as well as have power of judicial review over the arbitration award". In
these circumstances, the Supreme Court went on to hold, in para 23 of the report, that, once the
parties had chosen Hong Kong as the place of arbitration, which was to be administered in Hong
Kong, the laws of Hong Kong would govern the arbitration, and Indian courts would have no
jurisdiction to appoint any arbitrator.

53.8 In the conteXt of the dispute before me, paras 25 to 27 of the report are of some significance,
and may be reproduced, consequently, thus:

"25. Clause 17.1 of MoU stipulates that MoU is governed by the laws of India and the
courts at New Delhi shall have jurisdiction. The interpretation to Clause 17.1 shows
that the substantive law governing the substantive contract are the laws of India. The
words in Clause 17.1, "without regard to its conflicts of laws provisions and courts at
New Delhi shall have the jurisdiction" has to be read along with Clause 17.3 of the
agreement. As per Clause 17.3, the parties have agreed that the party may seek
provisional, injunctive or equitable remedies from a court having jurisdiction before,
 during or after the pendency of any arbitral proceedings. In BALCO v. Kaiser
Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810, this
Court held that : (SCC p. 636, para 157) "157. ... on a logical and schematic
construction of the Arbitration Act, 1996, the Indian courts do not have the power to
grant interim measures when the seat of arbitration is outside India."

If the arbitration agreement is found to have seat of arbitration outside India, then the Indian courts
cannot Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
eXercise supervisory jurisdiction over the award or pass interim orders. It would have, therefore,
been necessary for the parties to incorporate Clause 17.3 that parties have agreed that a party may
seek interim relief for which the Delhi courts would have jurisdiction.

26. In this regard, we may usefully refer to the insertion of proviso to Section 2(2) of the Arbitration
Act, 1996 by the Amendment Act, 2015. By the Amendment Act, 2015 (w.e.f. 23-10-2015), a proviso
has been added to Section 2(2) of the Act as per which, certain provisions of Part I of the Act i.e.
Section 9 - interim relief, Section 27 - court's assistance for evidence, Section 37(1)(a) - appeal
against the orders and Section 37(3) have been made applicable to "international commercial
arbitrations" even if the place of arbitration is outside India. Proviso to Section 2(2) of the Act reads
as under:

"2. Definitions.--(1) ***** (2) Scope.--This Part shall apply where the place of
arbitration is in India:

Provided that subject to an agreement to the contrary, the provisions of Sections 9, 27

and clause (a) of sub- section (1) and sub-section (3) of Section 37 shall also apply to
international commercial arbitration, even if the place of arbitration is outside India,
and an arbitral award made or to be made in such place is enforceable and recognised
under the provisions of Part II of this Act."

It is pertinent to note that Section 11 is not included in the proviso and accordingly, Section 11 has
no application to "international commercial arbitrations" seated outside India.

27. The words in Clause 17.1, "without regard to its conflicts of laws provisions and courts at New
Delhi shall have the jurisdiction" do not take away or dilute the intention of the parties in Clause
17.2 that the arbitration be administered in Hong Kong. The words in Clause 17.1 do not suggest that
the seat of arbitration is in New Delhi. Since Part I is not applicable to "international commercial
arbitrations", Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
in order to enable the parties to avail the interim relief, Clause 17.3 appears to have been added. The
words, "without regard to its conflicts of laws provisions and courts at New Delhi shall have the
jurisdiction" in Clause 17.1 is to be read in conjunction with Clause 17.3. Since the arbitration is
seated at Hong Kong, the petition filed by the petitioner under Section 11(6) of the Act is not
maintainable and the petition is liable to be dismissed."

(Underscoring supplied; italics in original) The takeaway

54. The objection, of Mr. Kamath, to the jurisdiction of this Court to entertain the present petition,
has to be eXamined in the backdrop of the law, as set out hereinabove.

55. De hors the proviso to Section 2(2) of the 1996 Act, there can be little doubt that once the "seat of
arbitration" has been fiXed as Singapore, courts at Singapore would have e Xclusive jurisdiction to
supervise the arbitral proceedings. Applying BALCO8, it is also clear that such supervision would
eXtend not only to the arbitral proceedings, per se, culminating in the award, but would also include
the power to grant interim reliefs, whether at pre-arbitral or post- arbitral stage. In other words,
Section 9 jurisdiction would also stand divested, from this Court.

56. That, however, is the position de hors the proviso to Section 2(2). The proviso to Section 2(2),
which came into effect on 23rd October, 2015, changes the goalpost. By operation of this proviso,
Section 9 of the 1996 Act would also apply to international Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 commercial arbitration, where the place of arbitration
is outside India. It is not in dispute that any arbitral award, issued by the SIAC, would be
enforceable and recognised under Part II of the 1996 Act.

57. Though the proviso to Section 2(2) uses the e Xpression "place of arbitration", the decisions, cited
hereinabove, make it apparent that, in the absence of any indication to the contrary, the reference to
"place of arbitration" may justifiably be treated as fiXing Singapore as the "seat of arbitration".

58. With the introduction of this proviso, the fi Xation of Singapore as the "place" or the "seat" of
arbitration would not, ipso facto, divest this Court of Section 9 jurisdiction. Such divestiture would
occur only if there is any "agreement to the contrary". The submission of Mr. Kamath is that Clause
22.1, specifically the second sentence in the said Clause, which stipulates that "the parties shall
submit to the eXclusive jurisdiction of the courts of Singapore", constitutes "agreement to the
contrary", within the meaning of the proviso to Section 2(2).

59. I must admit that, at first glance, I was inclined to accept this submission of Mr. Kamath.
Presented as it was, it was undoubtedly attractive. A deeper analysis, however, convinced me to
decide otherwise.

60. There is a qualitative, an unmistakable, difference, between the jurisdiction e Xercised by a Court
under Section 9, and the jurisdiction eXercised by the Court under other provisions of the 1996 Act,
such as Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 Section
11, 34 and 36. Section 9 is available at the pre-arbitration stage, before any arbitral proceedings, and
could be subject to supervision by any judicial forum, have commenced. The purpose in including,
specifically, Section 9, in the proviso to Section 2(2), has to be appreciated in the backdrop of the
recommendations of the 246 th Law Commission, and the observations guiding the said
recommendations. It is at this point that the difficulty, or impossibility, of the petitioner obtaining
pre-arbitral interim relief from Singapore, becomes relevant. As has been correctly pointed out by
Mr. Gautam Narayan, para 41(i) of the recommendations of the Law Commission indicate,
unmistakably, that the decision to e Xclude, generally from the ambit of Section 2(2), applications
seeking pre- arbitral interim reliefs, for securing the assets constituting subject matter of the
arbitration, was that, where the assets were located in India and there is a likelihood of dissipation
thereof, the party, seeking a restraint thereagainst, would "lack an efficacious remedy if the seat of
the arbitration is abroad". As has been observed by the Law Commission, in such a situation, the
party seeking pre-arbitral interim injunction, would have to obtain an interim order from the
foreign Court, or the arbitral tribunal situated abroad, and, thereafter, to file a civil suit to enforce
the right created by such interim order which, otherwise, would not be directly enforceable by way
of an eXecution petition, as it would not qualify as a "judgement" or "decree", for the purposes of
Section 13 and 44A of the CPC. Similarly, disobedience, by the party against whom an injunction
may, if at all, be obtained from a foreign Court, would also require the applicant seeking injunction
to initiate contempt proceedings in the foreign Court and, Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 thereafter, enforce the judgement of the foreign Court
under Section 13 and 44A of the CPC. These reliefs, as the Law Commission has observed, are likely
to be more chimerical than substantial.

61. In this conteXt, the reliance, by Mr. Gautam Narayan, on the decision, of the Court of Appeal in
Singapore, in Maldives Airport Co. Ltd1 and Five Ocean Corporation3, is, e X facie, apt. In Maldives
Airport Co. Ltd1, the Court of Appeal has held, relying on SSL International plc2, that "interim
injunctive relief should not be granted if it requires an unacceptable degree of supervision in a
foreign land".

62. I am also inclined to agree with Mr. Gautam Narayan, in his submission that Section 12A of the
International Arbitration Act would not readily enable the petitioner to seek interim relief, at the
pre-arbitral stage, from Singapore courts. In the first place, Section 12A does not indicate, e Xpressly
or by necessary implication, that it would apply at the pre-arbitral stage. For ready reference,
Section 12A may be reproduced as under:

"Court-orders interim measure 12A.-

(1) This section shall apply in relation to an arbitration -

(a) to which this Part applies; and

(b) irrespective of whether the place
of is in the territory of Singapore.

(2) Subject to subsections (3) to (6), for the

pu

in relation to an arbitration referred to in subsection (1), the High Court or a Judge

thereof shall have the same power of making an order in respect of any of the
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
matters set out in section 12(1)(c) to (i) as it has for the purpose of and in relation to
an action or a matter in the court.

(3) The High Court or a Judge thereof may refuse to make an order under subsection
(2) if, in the opinion of the High Court or Judge, the fact that the place of arbitration
is outside Singapore or likely to be outside Singapore when it is designated or
 determined makes it inappropriate to make such order.

(4) If the case is one of urgency, the High Court or a Judge thereof may, on the
application of a party or proposed party to the arbitral proceedings, make such orders
under subsection (2) as the High Court or Judge thinks necessary for the purpose of
preserving evidence or assets.

(5) If the case is not one of urgency, the High Court or a Judge thereof shall make an
order under subsection (2) only on the application of a party to the arbitral
proceedings (upon notice to the other parties and to the arbitral tribunal) made with
the permission of the arbitral tribunal or the agreement in writing of the other
parties.

(6) In every case, the High Court or a Judge thereof shall make an order under
subsection (2) only if or to the e Xtent that the arbitral tribunal, and any arbitral or
other institution or person vested by the parties with power in that regard, has no
power or is unable for the time being to act effectively.

(7) An order made by the High Court or a Judge thereof under subsection (2) shall
cease to have effect in whole or in part (as the case may be) if the arbitral tribunal, or
any such arbitral or other institution or person having power to act in relation to the
subject-matter of the order, makes an order which eXpressly relates to the whole or
part of the order under subsection (2)."

63. A reading of Section 12A indicates that it applies "in relation to an arbitration", and can be
invoked by "a party or proposed party to Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 the arbitral proceedings". Mr. Gautam Narayan submits that the very
tenor of this provision indicates that it applies only to an e Xisting arbitration, i.e. after the arbitral
proceedings have commenced. This submission has not been discountenanced, by Mr. Kamath, by
citing any instance, either during arguments or in the written submissions filed consequent to
conclusion of hearing, in which courts in Singapore have entertained applications, for interim relief,
under Section 12A of the International Arbitration Act, before arbitral proceedings have
commenced. Rather, para 39 of the judgement of the High Court of Singapore, in Five Ocean
Corporation3, which reads thus, seems to indicate otherwise:

"39. The main legislative intention behind the enactment of s 12A was to give the
court powers over assets and evidence situated in Singapore and to make orders in
aid of arbitrations that were seated in Singapore and overseas. However, I agree with
Ms. Ang that if the seat of the arbitration is in Singapore and the assets are overseas,
the court would have the power to protect or preserve assets and evidence situated
outside Singapore. Indeed, the language of s 12A is wide enough to confer such a
power on the High Court. This eXercise of power to grant interim measures is not
unlike the eXercise of the court's powers and jurisdiction in granting an injunction
that covered assets outside Singapore provided the court has in personam
 jurisdiction over the parties to the local proceedings."

64. Accession, by this Court, to the submissions of Mr. Kamath, would, therefore, justify the
apprehension, eXpressed by the Law Commission, regarding the deleterious consequences of
eXcluding, in the case of foreign-seated arbitrations, the applicability of Section 9 of the 1996 Act.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

65. There is yet another way of looking at the issue. What is required, by the proviso to Section 2(2)
of the 1996 Act, in order to render the proviso inapplicable in a particular case, is an "agreement to
the contrary". The agreement, which would eXclude the application of the proviso to Section 2(2)
would, therefore, have to be contrary to the dispensation provided in the proviso, i.e., it would have
to be contrary to the applicability, to the proceedings, of Section 9 of the 1996 Act. E Xpressed
otherwise, as the proviso makes Section 9 of the 1996 Act applicable even in the case of foreign
seated arbitrations; any "agreement to the contrary" would, therefore, have to e Xpressly stipulate
that Section 9 would not apply in that particular case. Absent such a specific stipulation, the
beneficial dispensation, contained in the proviso, cannot stand eXcluded.

66. Mr. Kamath would seek to submit that Clause 22.1 itself contains such an "agreement to the
contrary", inasmuch as it stipulates that "the parties shall submit to the e Xclusive jurisdiction of the
courts of Singapore". This argument cannot be accepted, for the simple reason that courts at
Singapore cannot grant relief under Section 9 of the 1996 Act. The mere submission, by the parties,
to the eXclusive jurisdiction of courts in Singapore cannot, therefore, wish away the applicability of
the proviso to Section 2(2). As already noted hereinabove, the statutory, and precedential, position
that obtains, in Singapore, as highlighted by Mr. Gautam Narayan and noted hereinabove, indicates
that it may be tremendously difficult, if not impossible, for the petitioner to prosecute any
proceeding, for grant of pre-arbitral interim relief, before Singapore courts in the present case.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 Mr. Kamath,
despite having argued the matter persuasively and at length, has been unable to disabuse me of this
belief.

67. In fact, the concern eXpressed by the Law Commission, which constituted the raison d'etre for
the introduction of the proviso to Section 2(2), was precisely this. The main justification, for
introducing the proviso, was that courts in the foreign country would not efficaciously be in a
position to grant pre-arbitral interim relief, to secure assets which may be located in India. This, in
fact, appears to be the position, at least insofar as the facts of the present case are concerned.

68. Mr. Kamath also sought to emphasise the fact that what was required, by the proviso to Section
2(2), was merely an "agreement to the contrary", and not an "e Xpress agreement to the contrary", as
recommended by the Law Commission in its 246th Report. The argument essentially begs the issue.
The question is not whether the agreement to the contrary is eXpress or implied - indeed, it may be
either - but whether there is an agreement to the contrary. The e Xpression "subject to any agreement
to the contrary" was understood, in Phonogram Ltd v. Lane25, as meaning "unless otherwise
agreed". Read in the conteXt of the proviso to Section 2(2), it would have to be seen whether, by
Clause 22.1, the petitioner and the respondent had "otherwise agreed", i.e. agreed to e Xclude the
applicability of Section 9 of the 1996 Act. E X facie, I am unable to convince myself that the answer to
this question can be in the affirmative.

(1981) 3 All ER 182 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19

69. The Lease Deed, significantly, was eXecuted much after the introduction of the proviso in Section
2(2) of the 1996 Act, in 2019. It cannot be reasonably assumed that the contract, of this magnitude,
would have been eXecuted without a thorough study of the law, the statutory provisions, and without
obtaining appropriate legal advice. If the parties desired to contract themselves out of Section 9 of
the 1996 Act, therefore, the Lease Deed ought, specifically, to have said so. There is, however, no
such a recital in the Lease Deed. In view of the fact that the sweep of Section 9 was e Xtended, the
foreign seated arbitrations, by plenary parliamentary legislation, was made "subject to agreement to
the contrary" by the same legislative instrument, any such "agreement to the contrary" would have,
specifically, to state that Section 9 of the 1996 Act would not apply. Mere submission, by the parties,
to the jurisdiction of Singapore courts, in the "Governing Law" clause in the Lease Deed, cannot
suffice to operate as "agreement to the contrary", e Xcluding the applicability of Section 9 of the 1996
Act.

70. Paras 27 to 29 of Mankastu Impe X14 are also instructive, in this regard. The Supreme Court was
concerned, there, with the issue of whether the application, under Section 11(6) of the 1996 Act, as
filed by Mankastu before this Court, was maintainable. Mankastu did not have, for its benefit, any
provision, akin to the proviso to Section 2(2). The Supreme Court observed, in the circumstances,
that the fiXation of Hong Kong as the "seat of arbitration" operated, consequently, to e Xclude the
jurisdiction of this Court to adjudicate on the Section 11 Signature Not Verified Digitally Signed
By:SUNIL Signing Date:24.10.2020 18:07:19 application of Mankastu. Significantly, Mankastu
chose to rely on Clause 17.1, of the MOU under consideration in that case, which stipulated that
"courts at New Delhi shall have the jurisdiction". The Supreme Court repelled the submission,
holding that, in order for such a contention to sustain, Clause 17.3 (in that case) would have had to
specifically stipulate "that parties have agreed that a party may seek interim relief for which Delhi
Court would have jurisdiction".

71. EXtrapolating this reasoning to Clause 22.1 in the present case, read with the requirement of an
"agreement to the contrary", for the proviso to Section 2(2) to be rendered inapplicable, the mere
conferment of eXclusive jurisdiction, on courts at Singapore, by Clause 22.1, would not suffice as an
"agreement to the contrary", within the meaning of the proviso to Section 2(2). The agreement
would be required to have a specific stipulation that the parties had agreed to e X clude the
applicability of Section 9 of the 1996 Act to the contract between them, and to disputes arising
thereunder. Absent such a specific stipulation, the mere recital, in Clause 22.1, that the parties had
agreed to submit themselves to the jurisdiction of Singapore courts, would not suffice as an
"agreement to the contrary", within the meaning of the proviso to Section 2(2) of the 1996 Act.
72. The above view resonates with the opinion e Xpressed by the Division Bench of the High Court of
Bombay in Heligo Charters7, to the effect that "operation of provisions of Section 9 cannot be
eXcluded in absence of a specific agreement to the contrary" (in para 16 of the report). I e Xpress my
respectful agreement therewith.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

73. Mr. Kamath also sought to submit that, in any event, this Court would have no jurisdiction to
entertain the present petition, is no part of the cause of action has arisen within its jurisdiction. I am
not inclined to accept this submission. The respondent having chosen not to traverse the averments,
in the petition, by filing any counter affidavit, the Court has to proceed by treating the averments as
unrebutted. It is specifically averred, in the petition, that the Lease Deed, dated 9th December, 2019,
was eXecuted at New Delhi. It is also averred (in para 4.4.15 of the petition), thus:

"Proceeding on the basis of the promises and commitments given by the Respondents
to the Petitioner, the Petitioner as the Lessee and Respondent No. 1 as the Lessor
eXecuted the Lease Deed on 09.12.2019. It is pertinent to note that initially the
parties had eXecuted the Lease Deed dated 12.11.2019 containing the same terms and
rights and obligations as the Lease Deed ultimately eXecuted on 09.12.2019. The
Schedules to the Lease Deed dated 12.11.2019 were also signed between the parties.
Since the parties were of the view that another Lease Deed should be e Xecuted closer
to the date of delivery of the Aircraft, the Lease Deed dated 12.11.2019 was replaced
by Lease Deed dated 09.12.2019. It is respectfully submitted that the schedules to the
Lease Deed dated 09.12.2019 could not be signed by the parties inadvertently but
both parties were ad idem regarding the Schedules being a part of the Lease Deed."

(Emphasis supplied)

74. Significantly, on 9th December, 2019 itself, the following email was addressed, by
the respondent to the petitioner:

"Hello Raj, Thank you very much for the scanned copy. I would recommend we also
signed the anneXures and schedules tomorrow and complete the document.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

What say?

Chenna Reddy, N."

"What" Raj "said", neither side is able to clarify, at this juncture. Even so, there is no traversal, either
by way of counter affidavit, or even in the written submissions filed by the respondent, to the
assertion, in para 4.4.15 of the petition, that the parties were ad idem to the Schedules, in the Lease
Deed dated 12th November, 2019, being treated as Schedules to the Lease Deed dated 9 th
December, 2019. The afore eXtracted email, from the respondent also indicates, in any case, that the
respondent was agreeable to this proposal. The respondent has, in its written submission, merely
averred that "the issue of the object of entering into the second Lease Deed and as to why the
schedules were not attached, and if there was consensus ad idem are matters of evidence." That may
be so; however, if the petitioner desired to contest the jurisdiction of this Court, to entertain the
present petition under Section 9 of the 1996 Act, the onus was on the respondent to, at the very
least, deny the averment, contained in para 4.4.15 of the petition, on oath. To reiterate, the
respondent has not, even in its written submissions, denied the assertion, in the petition, that the
parties had agreed to the Schedules, to the Lease Deed dated 12th November, 2019, being treated as
Schedules to the Lease Deed dated 9th December, 2019.

75. In any event, there being no dispute about the fact that the Lease Deed dated 9th December,
2019 was signed by the parties at New Delhi, it cannot, in my view, be justifiably contended, by the
respondent, that no part of the cause of action arose within the Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 jurisdiction of this Court. This contention of
Mr. Kamath, therefore, stands rejected.

76. For all these reasons, I am of the opinion that the present petition is maintainable before this
Court, and reject, therefore, the objection of want of territorial jurisdiction, as advanced by Mr.
Kamath.

On Merits

77. On merits, Mr. Gautam Narayan submits that, till date, the aircraft has not been delivered, by the
respondents to the petitioner, in accordance with the covenants of the Lease Deed. He draws my
attention to Clause 4.1 of the Lease Deed, read in conjunction with paras 3.1, 3.2 and 3.5 of the CAR
dealing with Airworthiness, dated 10th September, 1998, which (to the eXtent relevant) read thus:

Clause 4.1 of the Lease Deed "The Lessee shall be responsible to cause that the
Aircraft is duly registered with Director General of Civil Aviation, India, in the
Lessor's name as Owner and Lessor, and in Lessee's name, as Lessee and Operator.
The Lessor shall provide all necessary documentation, as may be required by the
Lessee, for such registration. Any costs and e Xpenses incurred in connection with this
registration will be borne by Lessee."

Clause 3.1, 3.2 and 3.5, CAR "3.1 An aircraft may be registered in either of the
following 2 categories, namely Category 'A', where the aircraft is wholly owned either
-

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 ***** iv. by a
company or corporation registered elsewhere than in India, provided that such company or
corporation has given the said aircraft on lease to any person mentioned in para 3.1(i), (ii) or (iii)
above;"
"3.2 No aircraft in respect of which the conditions required in 3.1 are not satisfied, or which is
already validly registered in another country, shall be registered in India."

(Emphasis supplied) "3.5 Application for Registration of Aircraft The owner or his authorized
representative may apply for registration of the aircraft in the prescribed form CA-28 (Appendi X 'A')
completed with the following documents at least five working days for aircraft on outright purchase
and ten working days for aircraft on lease, before the eXpected date of issue of Certificate of
Registration.

i. Customs clearance certificate / bill of entry of the aircraft.

ii. Certificate of deregistration from the previous registering authority.

iii. An evidence to the effect that the aircraft has been purchased for wholly owned by the applicant.
For this purpose, a copy of invoice shall be accepted.

iv. For aircraft purchased from a previous owner, an affidavit as required.

v. In case the aircraft is taken on dry lease a copy of the lease agreement.

vi. In case the aircraft is owned by a company or corporation, a document of registration of the
company and the names, addresses and nationalities of the Directors.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 vii. A copy of
the import licence issued by Director General Foreign Trade or permission for import issued by the
Ministry of Civil Aviation/DGCA. Where the aircraft is imported for private use, it will be registered
in the name of the person or company to whom the import licence has been issued.

viii. In cases where the aircraft has been mortgaged/hypothecated, the owner/operator shall submit
his consent for the same and the papers to this effect. Such a mortgage/hypothecation shall be
endorsed on the Certificate of Registration.

ix. Fee for registration as prescribed in Rule 25 paid by web based online transaction system of
DGCA (Bharatkosh)."

(Emphasis supplied)

78. Mr. Gautam Narayan points out that, further, Clause 6.2 of the Lease Deed required the Lessor
to deliver the Aircraft to the Lessee in accordance with the terms and conditions of the Lease Deed,
whereupon the Lessee was to accept the Aircraft by e Xecution of a Delivery Acceptance Certificate, in
accordance with Schedule II to the Lease Deed. E Xecution of the Delivery Acceptance Certificate,
therefore, submits Mr. Gautam Narayan, was conditional on delivery of the aircraft in accordance
with the covenants of the Lease Deed. The Delivery Acceptance Certificate, in the format prescribed
in Schedule II to the Lease Deed, required the petitioner to certify the "delivery of the Aircraft
together with all fiXed equipment, parts, components and accessories installed including but not
limited to, all log books, documents and records related thereon".

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

79. In the absence of the Certificate of Deregistration, certifying that the Aircraft was no longer
registered with any foreign authority, Mr. Gautam Narayan submits that no "delivery" of the
Aircraft, within the meaning of the Lease Deed, could be said to have been effected. It was for this
reason, he submits, that the petitioner did not eXecute any Delivery Acceptance Certificate,
certifying delivery of the Aircraft, either.

80. By not delivering the Aircraft with all requisite documents, Mr. Gautam Narayan submits that
the respondent has breached the Lease Deed. (I may note, here, that Mr. Gautam Narayan
submitted, initially, that the respondent had not provided the COA issued by the IOMAR, but fairly
acknowledged, later, that he was incorrect in the said submission.)

81. Mr. Gautam Narayan pointed out, further, that Clause 8.1 of the Lease Deed made events, in
respect of the Aircraft, to be payable with effect from 15th December, 2019, which was specifically as
the "Rent Commencement Date". As such, submits Mr. Gautam Narayan, the Aircraft ought to have
been delivered to the petitioner by the said date. In the absence of such delivery, there would be no
question of the petitioner having to pay any lease rental. For this purpose, Mr. Gautam Narayan also
places reliance on Clause 8.2, which stipulates that "in consideration of the lease of the Aircraft, the
Lessee shall, on and from the Rent Commencement Date pay regularly in advance on or before 15th
day of the month during the Lease Term to the Lessor an amount equivalent to United States
Dollars Fifty-siX Thousand only as rent in respect of the Aircraft (Rent)." Mr. Gautam Narayan
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 submits that,
without delivery of the Aircraft in accordance with the covenants of the Lease Deed, no liability, to
pay rent, could be fastened on the petitioner. He also points out that there is no other clause, in the
lease Deed, providing for delivery of the aircraft. Despite this fact, Mr. Gautam Narayan emphasises
that the petitioner did pay lease rentals, to the respondent, till 15th March, 2020, the last rental
having been paid for the month of February-March.

82. Thirdly, Mr. Gautam Narayan takes serious eXception to the contention, of the respondent, that
the petitioner had terminated the Lease Agreement. He has taken me through various
correspondences, between the petitioner and respondent, to wit,

(i) email dated 5th March, 2020, from the respondent to the petitioner:

"Dear Raj, About the delivery of the aircraft, we once again re- iterate the fact that we
were ready to give you the delivery but the delay was from BCPL especially for the
painting of your livery and the time taken to decide on the design of the paint spec.

Let me also draw your attention to our decision to complete the aircraft painting
(white paint only) & instructed GMR to slot it accordingly. BCPL at the time was also
 informed of our decision and only then BCPL finalized the livery pattern and the
paint spec., not to mention, the 4K USD additional funds spent to procure the paint
on priority.

Man Power agreement - PFA the agreement which initially was for 3 months. Howeverwe are fine to
terminate the agreement right away and also write off the services given from 15th Feb till date. We
have Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 already
handed over everything to Manisha and supporting her till date. Let me know your thoughts.

We see bulk upload mail being added to our mails. Whilst it is internal to you, we have no idea who
that mail id belongs to and why are our mails directed to them. Please clarify.

Warm Regards Chenna Reddy N.

Ezen Aviation"

(Emphasis supplied)

(ii) e-mail dated 9th March, 2020, from the respondent to the petitioner:

"Hello Manisha, As of now Big Charters Private Limited (BCPL) has unilaterally
terminated the lease agreement. The issue is being discussed by Ezen internally. Until
a communication is issued by EAPL BCPL shall not carry out any modifications/work
on the aircraft.

Warm Regards Chenna Reddy N Ezen Aviation"

(Emphasis supplied)

(iii) e-mail dated 9th March, 2020, from the petitioner to the respondent:

"Dear Chenna, BCPL has not terminated current lease agreement, we have some
issues with current agreement and EAPL has not maintain its commitments inspite of
p aym ents S i gn at ur e Not Verif ied D ig it a l ly S igned B y:S UNI L S ign in g
Date:24.10.2020 18:07:19 made in time. Hence decision-making from EAPL to
advice neXt plan of action to continue with operating lease beside note followings.

1. Hand over the aircraft to BCPL post our head of Eng inspection carried out.

2. Hand over require documents.

3. Decision to advice who will carry out work scope on CDSS and seats if needs to
replace BCPL happy to carry out under its own scope however if EAPL finds under its
approval will help BCPL has no issue keeping it under EAPL.
4. As per agreed terms seats replacement cost will be born by EAPL or EAPL installs
balance 6 seats.

5. Support towards C of R and C of A.

6. If C of A does not get thru due to An age of an aircraft then EAPL return our money
minus ferry cost which agreed between self and Channa.

7. Lease payment continues but MR applicable only from 15th May towards calendar
due charges.

channa I am keeping all transparent here so our relation stays cordial rest is all your
call as discussed.

Regards Sanjay"

(Emphasis supplied)

(iv) e-mail dated 2nd April, 2020, from the respondent to the petitioner, in which it
was stated, inter alia, thus:

"11. E-mail was received from BCPL on 05 Mar 2020 informing of their unilateral
decision to seek refund from EZEN of all sums paid including Security Signature Not
Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 Deposit and
LR within 7 days. The e-mail also instructed CFO/CEO not to make any further
payments to EZEN and directed EZEN to co-ordinate with BCPL CEO/CFO for
CLOSING.

12. The Lessee (BCPL) thus unilaterally terminated the lease. As a result, EZEN it is
not required to issue any further termination notice."

On the aspect of the purported "unilateral termination" of the Lease Agreement by

the petitioner, Mr. Gautam Narayan submits that the aforesaid email
correspondences, from the respondent, disclose a number of factual and legal
infirmities. He points out that, in the email dated 5th March, 2020, the respondent
had stated that it was "fine to terminate the agreement right away". As such, Mr.
Gautam Narayan points out that the move, towards termination of the agreement -
albeit illegally - was of the respondent, and not of the petitioner. He submits that the
allegation that the petitioner had "unilaterally terminated" the Lease Agreement was
not borne out either by the facts or the law. No such document of "unilateral
termination", he points out, is forthcoming on the record. In each response, dated 9th
March, 2020, Mr. Gautam Narayan points out that the petitioner categorically
disabused the respondent of its contention that the petitioner had terminated the
Lease Agreement. At this juncture, he submits, the respondent sought to raise a new
contention, viz., that, by asking for refund, in its letter dated 5 th March, 2020
(whereas, Mr. Gautam Narayan points out, refund was sought, by the petitioner, in
its letter dated 22nd March, 2020, and not vide its letter dated 5thMarch, 2020), the
petitioner had unilaterally terminated the agreement. This contention, submits Mr.
Gautam Narayan, is directly Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 in the teeth of Clause 7 of the Lease Deed, which
deals with termination thereof, and reads as under:

"7. TERMINATION OF THE LEASE DEED 7.1. Early Termination:

i. The Lessee may terminate this Deed by providing notice in writing to the Lessor 6
(siX) months prior to intended termination date and Lessee continues to pay the lease
rent and applicable maintenance reserve during the notice period. The termination is
subject to Lessee paying Early Termination Fee (ETF) of United State Dollars Three
Hundred Thousand (USD 300,000.00) and all other outstanding due amounts. Upon
fulfilling the aircraft redelivery condition as per Deed, the Security Deposit shall be
refunded to the Lessee in accordance with the provisions of this Deed.

ii. The Lessee may terminate this Deed by paying the Lessor 6 (si X) month Rent at the
rates stipulated under the Deed, in lieu of such 6 (si X) month notice. Lessee must
forthwith redeliver the aircraft to the Lessor. The termination is subject to Lessee
paying Early Termination Fee (ETF) of United State Dollars Three Hundred
Thousand (USD 300,000.00) and all other outstanding due amounts. Upon fulfilling
the conditions for termination of lease, the Security Deposit shall be refunded to the
Lessee in accordance with the provisions of this Deed.

iii. Not contravening any of the terms in Clause

7.l.(i) or Clause 7.1.(ii) above, the Lessee is e Xempted from the payment of Early
Termination Fee (ETF) of United State Dollars Three Hundred Thousand (USD
300,000.00) subject to completion of24 continuous months of lease.

7.2. Termination by the Lessor for breach by the Lessee:

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

Notwithstanding the generality of the foregoing, in the event the Lessee commits
material breach of any of the terms and conditions e Xpressed in this Deed, the Lessor
shall be entitled to terminate this Deed, without any obligations towards the Lessee,
and Lessor shall forfeit the Security Deposit of the Lessee. Provided further and
notwithstanding any provision to the contrary, in the event the Lessee fails to pay any
amount/s payable in terms of this Deed on or before the due date, for 2 (two)
consecutive months (each a material breach), then the Lessor shall be entitled to
terminate this Deed forthwith.
Upon such termination of Deed, Lessee is obligated to forthwith redeliver the aircraft as per the
conditions of the Deed and to pay the outstanding dues to the Lessor. Lessor shall forfeit the
Security Deposit of the Lessee.

7.3, Termination by the Lessee for breach by the Lessor:

Notwithstanding the generality of the foregoing, in the event the Lessor commits a breach of its
representations and warranties and covenants recorded hereunder, the Lessee shall be entitled to
terminate this Deed, by giving notice in writing of the same to the Lessor and the Lessor shall have
the right to remedy the breach within a period of 60 (Si Xty) days (or such longer period as may be
reasonably necessary to cure such breach) from the date of receipt of the written notice issued by the
Lessee intimating Lessor of such breach.

7.4. Procedure for Termination of Deed -

Earlv Termination or End of Lease Term: The following procedure shall be followed for termination
of Deed at the end of lease term or at early termination:

7.4.1. The Lessee shall permit representative/s appointed by the Lessor to inspect the Aircraft in
order to assess condition of Aircraft, Aircraft records.

7.4.2. Upon redelivery of the Aircraft as per Deed by the Lessee to the Lessor, the Security Deposit
shall be refunded by the Lessor to the Lessee after deducting any amounts due and receivable by
Lessor towards:

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

(i) the arrears of Rent, and any other dues payable under the Deed (including any monies payable by
Lessee (if applicable) in lieu of the notice period prescribed under Article 4.1 above) and

(ii) amounts, as being reasonably required to repair damages, jf any, to the Aircraft (reasonable wear
and tear eXcepted), and

(iii) any unpaid statutory or other dues payable by the Lessee, during the Lease Term under this
Deed, to any authorities or service providers with respect to the Aircraft.

7.4.3. If the Security Deposit is not refunded by the Lessor to Lessee within fourteen (14) days from
the Aircraft redelivery by the Lessee in accordance with the terms of this Deed upon early
termination or eXpiry of the Lease Term, then the Lessor shall be liable to refund the Security
Deposit, after adjustments in terms of this Deed, to Lessee along with interest to be calculated at the
rate of 18 % (eighteen percent) per annum for the period of delay. The liability of the Lessor to such
refund to the Lessee under this Deed and the right of the Lessee to recover the same from the Lessor
shall survive the termination or eXpiry of this Deed.
7.4.4. In the event of the Lessee's failure to return the Aircraft and deliver possession thereof to the
Lessor, in accordance with the terms of this Deed, or upon the earlier termination or e Xpiry of this
Deed and upon the Lessor being ready to take possession of the Aircraft and refund the Security
Deposit to the Lessee in terms of this Deed, the Lessee shall, without prejudice to any other remedy
which may be available to the Lessor in law, be liable to pay an amount equal to two times the per
day Rent (computed on a proportionate basis) or two (2) times the prevailing market value of the
Rent (computed on a proportionate basis), whichever is higher, for every day of delay in handing
over the Aircraft from the date of termination or e Xpiry of this Deed, in addition to the Lessee
making payment of all other charges and payments under this Deed. It is hereby clarified that the
payment of the amounts as aforesaid shall not entitle or grant right to the Lessee to continue in
possession and operation of the Aircraft and the Lessee shall be construed to Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 be an 'illegal occupant' of the Aircraft.
The Parties hereby agree and confirm that the amount specified herein before is not by way of
penalty and that the aforesaid amount is reasonable and a genuine pre-estimate, as the minimum
compensation payable by the Lessee to the Lessor.

7.4.5. Without prejudice to any other right or remedy that may be available to the Lessor, if Lessee
fails to return the Aircraft thereof to the Lessor as per the terms of this Lease Deed, the Lessor shall
be entitled to take all steps as may be available to it to take possession of the Aircraft."

There could, therefore, submits Mr. Gautam Narayan, be no question of any "unilateral
termination", far less "implied unilateral termination", by the petitioner, of the Lease Deed.
Termination had, necessarily, to be by way of a written notice. In this conte Xt, Mr. Gautam Narayan
also invited attention to Clause 26.1 of the Lease Deed, which stipulated thus:

"Any notice required or otherwise given pursuant to this Deed shall be in writing and
mailed, certified return receipt requested, postage prepaid, or delivered by overnight
delivery service..."

Mr. Gautam Narayan submits, therefore, that the plea of "unilateral termination", by the petitioner,
of the Lease Agreement, was merely by way of a smokescreen, created by the respondent to wriggle
out of its obligations under the Lease Agreement.

83. Mr. Gautam Narayan submits, fourthly, that the plea, of the respondent, that the petitioner had
defaulted in paying Maintenance Reserves, was completely false. He submits that Maintenance
Reserves were payable, under the Lease Deed, only against actual number of hours flown. When the
aircraft itself had not been Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 delivered, in accordance with the governance of the Lease Deed, Mr.
Gautam Narayan submits that there could be no question of flying of the aircraft and, consequently,
no question of any liability, of the petitioner, to pay Maintenance Reserves, either.

84. The fifth issue urged by Mr. Gautam Narayan relates to the non-fitment, in the Aircraft, of the
CDSS. He drew attention to e- mail, dated 16th February, 2020, from the respondent to the
petitioner, in which the respondent had categorically acknowledged the requirement of installation
of the CDSS, in order to have the Aircraft registered in India. The said communication reads as
under:

"Subject: INSTALLATION OF CDSS ON MSN 688

Good Afternoon Dharani,

As part of induction into Indian DGCA registry we need to install the CDSS on the aircraft. The kit is
ordered and is eXpected to be in hand by early-mid neXt week.

I have looped Ms. Manish (Engineering Head) into this mail for discussion on the agreement for
installation. Work will be carried out under flybig GTA.

Deba& Raman will co-ordinate for the issuance of SB/Workpack etc. Manisha, Please co-ordinate
with Dharani and take it forward.

Warm Regards Chenna Reddy N.

Ezen Aviation"

(Emphasis supplied) Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 Pointing out that the respondent had undertaken to provide the Aircraft, compliant with
DGCA and EASA standards, Mr. Gautam Narayan referred to EASA Standard ORO.SEC.100A(a)
and (c)(2), which reads thus:

"ORO.SEC.100.A Flight crew compartment security

(a) In an aeroplane which is equipped with a flight crew compartment door, this door
shall be capable of being locked, and means shall be provided by which the cabin
crew can notify the flight crew in the event of suspicious activity or security breaches
in the cabin.

*****

(c) In all aeroplanes which are equipped with a flight crew compartment door in
accordance with point (b) above:

(2) means shall be provided for monitoring from either pilot's station the entire door
area outside the flight crew compartment to identify persons requesting entry and to
detect suspicious behaviour or potential threat."

85. Parallelly, points out Mr. Gautam Narayan, the CAR Section 8
- Aircraft Operations, dated 30th October, 2018, which dealt with "Operation of Commercial Air
Transport - Aeroplanes" stipulated, in Clause 13.2.3(b), thus:

"13.2.3 In all aeroplanes which are equipped with a flight crew compartment door in
accordance with 13.2.2:

(b) mean shall be provided for monitoring from either pilot's station the entire door
area outside the flight crew compartment to identify persons requesting entry and to
detect suspicious behavior or potential threat. All new aircraft to be imported after 1st
of Jan, 2008 should have cockpit door surveillance system (CDSS) installed at the
time of import. Aircraft Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 already importing should comply with this requirement
during their neXt 'C' check falling after 1st Jan, 2008."

(Emphasis supplied)

86. Delivery of an aircraft, without CDSS fitted, submits Mr. Gautam Narayan could
not, therefore, be regarded as "delivery", within the meaning of the Lease Agreement.

87. Contending that, therefore, there had been clear breach of the Lease Deed by the respondent,
Mr. Gautam Narayan submits that the petitioner has succeeded in establishing a prima facie case.
Additionally, the respondent being located outside India, permitting the respondents to alienate the
corpus of the arbitral proceeding, i.e. the aircraft, would render the arbitral proceedings futile. The
balance of convenience, too, he submits, would be in favour of grant of interim reliefs, as sought in
the petition.

88. Responding to the submissions of Mr. Gautam Narayan, Mr. Arvind Kamath, learned Senior
Counsel for the respondent submitted, initially, that the Lease Deed dated 9th December, 2019, was
invalid and unenforceable, as it contained no Schedules. He disputes the submission, of Mr. Gautam
Narayan, that there was an implicit agreement, between the petitioner and the respondent, to the
effect that the Schedules, to the Lease Deed dated 12 th November, 2019, were to be read as part of
the Lease Deed dated 9 th December, 2019 and submits that, in any case, this would be a matter of
evidence, to be established during the arbitral proceedings, and could not be said to be established,
prima facie, in favour of the petitioner.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

89. Apropos the submission, of Mr. Gautam Narayan, that the petitioner had never terminated the
contract, Mr. Kamath submits that, in email dated 5th March, 2020, addressed to the respondent,
the petitioner had, as the concluding remark, stated "Demand full refund and close." This, according
to Mr. Kamath (and as contended in the written submissions filed after conclusion of hearing)
"clearly indicates an intention to sever the relationship of lessor and lessee and restore the status of
the parties prior to entering into the lease" and "also implies an 'undeclared termination' of the
Lease Deed." The contention, of Mr. Gautam Narayan, that his client had not terminated the Lease
Deed unilaterally was, therefore, submits Mr. Kamath, incorrect.

90. Mr. Kamath sought to submit, further, that the aircraft had been imported, into India, by the
petitioner, and had landed on 29th November, 2019, but that, as no Bill of Entry had been filed, the
"import" of the aircraft was yet not complete, from the Customs perspective. Sans any valid import,
submits Mr. Kamath, the question of the registration of the Aircraft, from the IOMAR, would not
arise. He points out that, even as per the CAR, dated 10th November, 1998, filing of a Bill of Entry
was mandatory, before registration of the aircraft in India. E-mail, dated 22nd March, 2020, from
the petitioner to the respondent, it is submitted, confirmed that the petitioner had applied for
permission to import the aircraft into India. The fact of non-completion of the import formalities,
which was an obligation on the petitioner, he submits, has been suppressed by the petitioner, and
defeats the prayers made in the petition. This suppression of facts, he Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 submits, also disentitled the
petitioner to any equitable relief from this Court.

91. Delay in securing registration of the aircraft in India, Mr. Kamath submits, is attributable to the
non-completion of import formalities by the petitioner. In the written submissions filed by the
respondent, after conclusion of hearing, it has been averred thus:

"The registration of the aircraft in India is the responsibility of the Petitioner. The
Petitioner claims to have taken steps for registration before the DGCA. Section 3.5 of
the CAR dated 10/09/1998 lists out documents required for registration. The very
first document is the customs clearance certificate/ BoE of the aircraft. Obtaining the
certificate / BoE is the responsibility of the Petitioner. The Petitioner has failed to
obtain the certificate of Customs clearance/BoE. The second document is the
certificate of de-registration from the previous registering authority. Although the
certificate of de- registration has to be obtained by the Respondent, the Respondent
cannot apply for de-registration in another country, until the Petitioner completes
the import process in India. The rest of the documents are already available with the
Petitioner."

(Emphasis supplied)

92. Mr. Kamath submits that the respondent had furnished, to the petitioner, all
necessary documentation for operating the aircraft.

There were, he submits, only two documents, necessary for this purpose, namely the CoR and the
CoA. Both these documents had been provided, by the respondent to the petitioner. He points out
that the petitioner had not sought, from the respondent, any other specific document, in its
communications and that, even in the Notice of Dispute, dated 24thApril, 2020, the petitioner had
not alleged failure, Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 on the part of the respondent, to provide required documents. This allegation, he submits,
figures for the first time in the present petition.
93. Apropos the requirement of installation of the CDSS, Mr. Kamath draws attention to Clause 6.3
of the Lease Deed, which stipulated that "the Aircraft to be leased hereunder shall be delivered to
the Lessee in "AS IS" condition and subject to each and every disclaimer of warranty and
representation as set forth herein". Installation of the CDSS, he submits, was not a mandatory
requirement in Vietnam, from where the aircraft was being imported. Nor did the Lease Deed, he
points out, obligate the respondent to provide the CDSS. The mere fact that, in certain separate e-
mail communications, the respondent may have agreed to provide the CDSS, according to Mr.
Kamath, does not make out a case of breach of the covenants of the Lease Deed, merely because the
Aircraft was not equipped with the CDSS. In fact, he points out, the first communication, in which
the requirement of the CDSS found mention, was in the e-mail dated 3rd December, 2019, from the
petitioner to the respondent, in which the petitioner stated that it "(understood) that MSN 688
Aircraft do not have the CDSS in it" and that "as per DGCA CAR we cannot import Aircraft without
CDSS". Installation of the CDSS, therefore, reiterates Mr. Kamath, was not an essential covenant of
the Lease Deed. This obligation, if at all, he submits, arose from email correspondences between the
petitioner and the respondent, and non-fulfilment thereof could not be regarded as infraction of any
of the terms of the Lease Deed. He also points out, in this conte Xt, that Clause 32.1 of the Lease Deed
specifically stated Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 that prior agreements or understandings stood terminated, and that the Lease Deed was a
self-contained document. The Clause read thus:

"32.1 This Deed contains all of the terms and conditions agreed by and between the
Parties hereto with respect to lease of the Aircraft and on and from the Lease
Commencement Date, the prior agreements or understandings pertaining to any such
matters (including the Letter of Intent) shall stand terminated e Xcept with regard to
any accrued rights thereunder. No provision of this Deed may be amended or added
to eXcept by an Addendum in writing to be duly signed by the Parties herein."

Breach of any obligation, by the respondent, unrelated to the Lease Deed, submits Mr. Kamath,
cannot be agitated in proceedings under Section 9 of the 1996 Act. This issue is, therefore, according
to him, entirely irrelevant to these proceedings.

94. Mr. Kamath also disputes the contention, of Mr. Gautam Narayan, that there had been no
"delivery" of the aircraft, within the terms of the Lease Deed, by the respondent. He submits that,
under Clause 6.2 of the Lease Deed, delivery of the Aircraft commenced with issuance of the
Delivery Acceptance Certificate by the petitioner. Any delay, in delivery of the aircraft, he submits,
was attributable only to insistence, by the petitioner, on compliance, by the respondent, with
conditions, which the respondent was not obligated to perform in terms of the Lease Deed. Mr.
Kamath has referred me to e-mail communications, dated 4th March, 2020 and 5th March, 2020,
from the respondent to the petitioner, and the reply, of the petitioner, to the respondent, dated 5th
March, 2020, to submit that the insistence, by the petitioner, was relating to requirements foreign to
the Lease Deed. Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19
95. In response to the submission, of Mr. Gautam Narayan, that the respondent had not provided, to
the petitioner, all documents necessary for registration of the Aircraft, Mr. Kamath draws attention
to Clause 3.5 of the CAR, dated 10th September, 1998, regarding "Airworthiness", which already
stands eXtracted in para 77 supra. He submits that the very first document, in the list of documents
necessary for registering the Aircraft, was the Customs clearance certificate/Bill of Entry which,
according to him, was required to be filed by the petitioner, and in which respect the petitioner was
in default. He submits that the Certificate of Deregistration from the IOMAR, though also stipulated
as a necessary document for registering the Aircraft in India, could be provided only on production
of evidence, by the respondent, before the IOMAR, to the effect that the aircraft had been imported
into another country. The factum of import having not taken place (owing to non-filing of the Bill of
Entry by the petitioner), Mr. Kamath submits that it was not possible for him to secure a Certificate
of Deregistration from the IOMAR.

96. Mr. Kamath referred me, thereafter, to Clause 2.2 of the CAR, dealing with "Airworthiness",
issued on 25th November, 2014, specifically Clause 2.2.1, which entitled the owner, or his authorised
representative, to apply to the DGCA, together with necessary fees, for issuance of CoA, "after the
aircraft has been registered". As the Aircraft had not yet been registered in India, he submits that
the plea, of Mr. Gautam Narayan, that his client was unable to obtain CoA, from the DGCA, was
untenable and premature. In any event, he Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19 submits, the e Xisting CoA, of the aircraft, was valid till November,
2020, and could, therefore, be got validated, by the DGCA, under Clause 3.1 of the CAR dated 25th
November, 2014, at any time.

97. Adverting, thereafter, to Schedule II to the Lease Deed, Mr. Kamath submits that the documents,
stipulated in the said Schedule, were required to be in the Aircraft, and were available in the Aircraft
at the time of its landing in India. As such, he submits, without taking delivery of the Aircraft, the
petitioner could not, very well, contend that there was failure, on the part of the respondent, in
providing the documents, to which Schedule II, to the Lease Deed, referred.

98. As such, submits Mr. Kamath, no prima facie case of breach, by the respondent, of any of the
covenants of the Lease Deed, eXisted, as could maintain this petition, under Section 9 of the 1996
Act.

99. Arguing in rejoinder, Mr. Gautam Narayan submitted that, in its e-mail dated 24th January,
2020, the respondent had acknowledged the fact that Bill of Entry, in respect of the Aircraft, was in
eXistence. Drawing my attention to e-mails, dated 4th March, 2020, 5th March 2020, 2nd April,
2020 and 29th April, 2020, from the respondent, Mr. Gautam Narayan points out that the issue of
Customs clearance had never been raised by the respondent, in any of these communications. The
plea that there was failure, on the part of the petitioner, to file a Bill of Entry, therefore, he submits,
was by way of a red herring, raised for the first time before this Court, in order to divert attention
from the failure, on the part of the respondent, to perform its obligations under the CAR and the
Lease Deed. Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
100. Non-furnishing of the Certificate of Deregistration, from the IOMAR, Mr. Gautam Narayan
reiterates, was fatal to the contention, of the respondent, that delivery of the Aircraft, in terms of the
Lease Deed, had taken place. Mr. Gautam Narayan invited my attention, in this conteXt, to
AppendiX 'D' to the CAR, dated 25th November, 2014, dealing with "Airworthiness", titled "Delivery
of Aircraft", Clause II whereof read thus:

"The aircraft which is being eXported to India other than via flyaway, the following
documents should accompany the Aircraft and be delivered to DGCA:

a. Standard Certificate of Airworthiness issued by the country of E Xport, b. EXport

Certificate of Airworthiness c. Certificate of Deregistration or a written statement that
the Aircraft is not registered in the country of eXport."

(Emphasis supplied)

101. Mr. Gautam Narayan emphasises that the respondent was aware, at all points of
time, that the aircraft was being imported, by the petitioner, in order to fly it, as
commercial carrier, in India. It was for this reason, he submits, that the Lease Deed
specifically required the respondent to provide, to the petitioner, all documents, as
would enable the petitioner to obtain registration of the aircraft in India, from the
DGCA. Supplying of the aircraft, sans the necessary documentation, therefore, was
useless, according to Mr. Gautam Narayan. Mr. Gautam Narayan also invited my
attention to emails, Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 dated 24th July, 2019, 19th August, 2019 and 7th
September, 2019, which preceded the eXecution of the Lease Deed, to emphasise his
contention that the respondent could not legally shy away from its obligations
towards the petitioner.

102. Drawing my attention, once again, to the communications between the petitioner and the
respondent, Mr. Gautam Narayan reiterates that his client never signified any intention to terminate
the agreement, in terms of Clause 7 of the Lease Deed.

103. Mr. Gautam Narayan submits, finally, that, in the circumstances, the balance of convenience
was clearly in favour of his client, to whom the respondent had held out solemn assurances, on
which it reneged.

Analysis

104. While proceeding to eXamine the rival contentions of learned counsel, I am required to be
mindful of the fact that the present proceedings are under Section 9 of the 1996 Act.

105. Section 9 has its own distinct indicia and, while it is fundamentally guided by the three
considerations of eXistence of a prima facie case, balance of convenience and irreparable loss, which
guide the eXercise of discretion under Order XXXIX CPC, there is a fundamental difference between
the two provisions.

106. Interim relief, under Order XXXIX, is in the nature of an Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 interlocutory order pending disposal of a suit.
Pre-arbitral interim relief under Section 9 of the 1996 Act, on the other hand, is primarily aimed at
securing the corpus of the dispute so that arbitral proceedings are not rendered a futility before they
commence. It is for this reason that, apart from the aforesaid three criteria, of prima facie case,
balance of convenience and irreparable loss, a Section 9 petitioner is also required to demonstrate
that, were urgent interim reliefs not granted, there is a chance of the arbitral proceedings being
frustrated, even before they take off, and of the award, if any, which may come to be passed, being
rendered futile. For this reason, the principles governing Order XXXVIII Rule 5 CPC have, for that
reason, also been held to be applicable, while directing the furnishing of security, under Section 9(1)
(ii)(b).

107. A Section 9 court has also to be circumspect and should not take care not to entrench on the
jurisdiction vested in the arbitrator by Section 17. The 1996 Act, it has to be remembered, is an Act
dealing with arbitration and conciliation, and not with proceedings before a civil court. The base
provision, for seeking interim relief in arbitral proceedings, is, therefore, Section 17, and not Section
9. Section 9 is, in fact, in the nature of an emergency clause, inserted to circumvent the possibility of
either party, to the proposed arbitral proceedings, taking steps to render the proceedings futile, even
before they commence. The court has been conferred power, to grant pre-arbitral interim relief,
under Section 9 only in order to counter any attempt, by either party, to frustrate the arbitral
proceedings, between the stage of arising of the dispute and, the moving the arbitrator under
Section 17 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 of
the 1996 Act. Section 9, at the pre-arbitral stage, is, therefore, a provision in aid of the arbitral
proceedings, intended to provide ad hoc protection, till Section 17 could be invoked.

108. The sequitur is that the degree of satisfaction, of the Section 9 court, at the pre-arbitral stage, is
not the same as the degree of satisfaction of the arbitrator, while e Xercising jurisdiction under
Section 17 of the 1996 Act. The Section 9 court is essentially concerned with the issue of whether an
arbitrable dispute, deserving of resolution by arbitral proceedings, eXists, or not. If the case set up by
the Section 9 petitioner is devoid of merit altogether, so that no dispute, worthy of arbitration,
eXists, the Section 9 court would be justified in declining relief. If, on the other hand, an arguable
case is found to eXist, which deserves resolution by arbitration, and the court finds that, were
interim protection, under Section 9, not granted, there is a likelihood of frustration of the arbitral
proceedings, the court would proceed to grant relief under Section 9.

109. This aspect is underscored by a comparison of the words used in Order XXXIX of the CPC, vis-
a-vis those employed in Section 9 of the 1996 Act. Order XXXIX of the CPC empowers the court to
"grant a temporary injunction", till the disposal of the suit, or till further orders. Section 9 of the
1996 Act, per contra, empowers the court to grant "an interim measure of protection". The word
"protection", as used in Section 9(1)(ii), underscores, as it were, the raison d'etre of the provision.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

110. A section 9 court is, therefore, concerned with protecting the corpus of the arbitral dispute, so
that the arbitration can take off and fructify. Once a dispute, amenable to, and deserving of,
resolution by arbitration, is found to eXist, and the apprehension, of dissipation of the assets
forming the corpus of the dispute, is found to be real and subsisting, or where the circumstances
indicate that enforcement of the award, as and when delivered, would otherwise be hindered, a
Section 9 can grant "interim measures of protection".

111. For a comprehensive discussion of this aspect, reference may be made to the recent decisions of
this Court in CRSC Research and Design Institute Group Co. Ltd. v. Dedicated Freight Corridor
Corporation of India Ltd26and Avantha Holdings Limited v. Vistra ITCL India Limited27, which
have considered most of the earlier decisions on the point.

112. In this backdrop, as learned counsel have proceeded systematically, point by point, it would be
advantageous to deal with the rival contentions in seriatim.

Re: Contention of petitioner that no delivery of the aircraft, within the meaning of the Lease Deed,
as taken place

113. Mr. Gautam Narayan, arguing for the petitioner, has submitted that there has been no delivery
of the aircraft, as contemplated by the MANU/DE/1803/2020 MANU/DE/1548/2020 Signature
Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 Lease Deed. He submits
that the aircraft was required to be delivered accompanied by all requisite documentation, so as to
ensure that it could be registered with the DGCA in India, and could be utilised, in commercial
operations, by the petitioner. He has emphasised the fact that both parties were aware, throughout,
that the petitioner intended to engage the aircraft in commercial flying operations.

114. Apart from Clause 3.5 of the CAR, dated 10th September, 1998, dealing with airworthiness, the
requirement of production of a certificate of de-registration, from the previous registering authority,
in order for an aircraft to be registered in India, is also spelt out, in so many words, in Clause 2
under the head "Delivery of Aircraft" in the CAR dated 25th November, 2014, which is also on
record. Additionally, Clause 3.2 of the CAR also stipulates that no aircraft, which is already validly
registered in any country, shall be registered in India.

115. As against this, Mr. Kamath sought to submit that all requisite documents had been provided to
the petitioner, and that the contention, of Mr. Gautam Narayan, to the contrary, was devoid of
substance.

116. To my mind, the submission of Mr. Gautam Narayan, prima facie, has merit.

117. Clause 4.1 of the Lease Deed specifically required the lessor, i.e. the respondent, to provide all
necessary documentation, as may be Signature Not Verified Digitally Signed By:SUNIL Signing
Date:24.10.2020 18:07:19 required by the lessee, for registering the aircraft, with the DGCA, in
India. Clause 3.5 of the CAR, dealing with airworthiness, dated 10th September, 1998, specifically
includes a certificate of de-registration, from the previous registering authority, as one of the
documents to be presented to the DGCA, in order for the aircraft to be registered in India for
commercial operations.

118. It is not in dispute that, till date, no certificate of de-registration of the aircraft, issued by the
IOMAR, or any other document, to the effect that the aircraft was no longer registered with the
IOMAR, was provided to the petitioner by the respondent.

119. As such, the respondent cannot be said to have supplied, to the petitioner, all requisite
documentation, on the basis of which the petitioner could obtain registration of the aircraft in India.

120. Mr. Kamath did not, either in his oral or in his written submissions, dispute the fact that the
certificate of de-registration was a mandatory document, for registering the aircraft in India, though
it was submitted that the relevant documents were the certificate of CoR and CoA. The applicability
of Clause 3.5 of the CAR, of 10th September, 1998, dealing with the airworthiness, has also not been
questioned.

121. Rather, the written submissions of the respondent, as reproduced in para 84 hereinabove, also
acknowledges that the certificate of de-registration, from the previous registering authority,
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 was one of the
documents required, for obtaining registration of the aircraft with the DGCA.

122. The only response of Mr. Kamath, to this contention of Mr. Gautam Narayan, is that the
respondent was unable to obtain a certificate of de-registration from the IOMAR, till filing of the Bill
of Entry by the petitioner. Much, in fact, has been made, by Mr. Kamath, on the fact that filing of the
Bill of Entry was also a mandatory requirement for registering the aircraft with the DGCA and that
the petitioner has not, till date, filed the Bill of Entry.

123. I am not inclined to agree, prima facie, with Mr. Kamath.

124. No material, whatsoever, was placed on record, or even adverted to, by Mr. Kamath, to support
his submission that, till a Bill of Entry was filed in India, no certificate of de-registration could be
obtained from IOMAR. The written submissions, filed by the respondent, after conclusion of
hearing, too, do not refer to any material, to support this submission. The record does not disclose,
either, a single communication, from the respondent, to the petitioner, stating that certificate of de-
registration could not be obtained from the IOMAR owing to non-filing of Bill of Entry by the
petitioner. Indeed, the repeated emphasis, by Mr. Kamath, that the import of the aircraft was not
complete as no Bill of Entry had been filed by the petitioner, does not find reflection in any
communication addressed by the respondent to the petitioner.

Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

125. The repeated emphasis, by Mr. Kamath, on the non-filing of bill of entry by the petitioner, in
my view, essentially obfuscates the issue in controversy.
126. The question before the court is whether, there had, prima facie, been a breach, on the part of
the respondent, of the covenants of the Lease Deed.

127. Clause 4.1 of the Lease Deed, which required the respondent to provide all necessary
documentation for registration of the aircraft, with the DGCA, prima facie, has been breached. The
issue of whether, without filing of Bill of Entry, the petitioner would be able to obtain registration of
the aircraft, has nothing to do with the covenants of Lease Deed.

128. The obligation of the respondent, under the Lease Deed, was to provide all documentation
necessary, for the petitioner to obtain registration of the aircraft in India. Having defaulted in that
regard, the respondent cannot be heard to contend, in defence, that the petitioner had also defaulted
in filing the Bill of Entry, without which the aircraft could not be registered.

129. The arbitral tribunal, if and when constituted, is not required to opine on the registration of the
aircraft, or how such registration could be obtained. It would be required to e Xamine whether there
has, or has not, been a breach, by the respondent, of the covenants of the Lease Deed, as alleged by
the petitioner. That, prima facie, has taken place. Signature Not Verified Digitally Signed By:SUNIL
Signing Date:24.10.2020 18:07:19

130. Prima facie, therefore, there is merit in the submission of Mr. Gautam Narayan that the plea of
non-filing of the Bill of Entry has been advanced, by the respondent, only to cover up the default, on
the part of the respondent, in providing the certificate of de-registration of the aircraft. In view
thereof, I am not inclined to enter, for the purposes of the present order, into the factual dispute of
whether the petitioner has, or has not, filed the Bill of Entry.

Re: Alleged unilateral termination of the Lease Deed

131. Mr. Gautam Narayan has also disputed the stand, of the respondent, that there had been a
"unilateral" termination of the Lease Deed, by the petitioner, and, on this aspect, too, I am inclined
to agree with him. There is no e-mail, from the petitioner, to the respondent, terminating the Lease
Deed. Rather, it was the respondent who, in its e-mail dated 5th March, 2020, to the petitioner,
stated that it was "fine to terminate the agreement right away". Thereafter, commencing the email
dated 9th March, 2020, addressed to the petitioner, the respondent consistently adopted a stance
that the petitioner had unilaterally terminated the Lease Deed.

132. I do not find this stance to be supported by any of the communications addressed by the
petitioner to the respondent.

133. The oblique reliance, by Mr. Kamath, on the concluding remark, in the email dated 5th March,
2020, from the petitioner to the respondent, stating "demand full refund and close", can hardly
Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 amount to a
"unilateral termination" of the Lease Deed by the petitioner.
134. This contention of the respondent is, in fact, in the teeth of Clause 7 of the Lease Deed, read
with Clause 26.1 thereof.

135. All circumstances, in which the Lease Deed could be terminated stand e Xhaustively delineated
in the various sub-clauses of Clause 7. Clause 7.1 provides for "Early Termination" of the Lease
Deed. For this purpose, the lessee has to issue a si X months' notice, and pay early termination fee of
US $ 300,000. The Early Termination fee of US $ 300,000 is e Xempt only if 24 continuous months
of lease have been completed. Clause 7.2 deals with termination by the lessor, for breach by the
lessee and is, therefore, of no application. Clause 7.3 deals with the termination of the lessee, for
breach of the Lease Deed by the lessor. This Clause would apply where a notice, in writing, is issued
by the lessee to the lessor, setting out the breaches on the part of the lessor, and the lessor would, in
that case, have the right to remedy the breach within 60 days from the date of receipt of such notice.

136. The respondent does not contend that, by following the discipline and the rigor of any of the
sub-clauses of Clause 7, the Lease Deed had been terminated by the petitioner.

137. No "unilateral termination", as is stated to have been effected by the petitioner, is contemplated
by the Lease Deed. As such, prima facie, there is merit in the contention of Mr. Gautam Narayan
that the Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
respondent is using the argument of "unilateral termination" as a prete Xt to avoid its obligations
under the Lease Deed.

138. No termination of the Lease Deed has, therefore, taken place.

Re: Non-installation of CDSS

139. Mr. Kamath has sought to contend that the Lease Deed did not require installation of CDSS on
the aircraft and that, therefore, even assuming the aircraft had been supplied without pre-installed
CDSS, no breach of the Lease Deed could be alleged to have taken place on that count. He has also
sought to draw sustenance from Clause 6.3 of the Lease Deed, which required the aircraft to be
delivered to the lessee, i.e. the petitioner in "as is" condition. Mr. Kamath seeks to contend, by
relying on this clause, that the petitioner had covenanted to receive the aircraft in the condition in
which it had left Vietnam. In Vietnam, he submits, installation of CDSS was not a mandatory
requirement. As such, according to Mr. Kamath, the respondent was not required to install the
CDSS in the aircraft, before delivering it to the petitioner.

140. I am not inclined to agree with Mr. Kamath. The fact that the CDSS was required to be installed
on the aircraft, in order for the aircraft to be registered with the DGCA in India, stands recognized
and acknowledged by the respondent itself, in its email dated 16th February, 2020, to the petitioner
(reproduced in para 84 supra). Clause 32.1 of the Lease Deed cannot wish away this
acknowledgement, or reduce the effect thereof. Having accepted, in Signature Not Verified Digitally
Signed By:SUNIL Signing Date:24.10.2020 18:07:19 the email dated 16th February, 2020, that
installation of the CDSS was mandatory for registration of the aircraft by the DGCA in India, it can
hardly lie in the mouth of the respondent to contend, now, that the CDSS was not required to be
installed on the aircraft.

141. Even otherwise, Clause 13.2.3 (b) of the CAR dated 30th October, 2018, dealing with "aircraft
operations" specifically stated that all new aircrafts, imported after 1st January, 2008, were required
to have CDSS installed at the time of import. The requirement of having CDSS installed also stands
eXpressly spelt out in EASA Standard ORO.SEC.100.A(a) and (c)(2), which stands reproduced in
para 84 supra. The respondent had, in its email dated 6th December, 2019, specifically undertaken
to supply the aircraft duly compliant with EASA standards.

142. The reliance, by Mr. Kamath, on Clause 6.3 of the Lease Deed, is also, therefore, in my prima
facie opinion, facile.

143. Moreover, Clause 6 of the Lease Deed, which deals with the delivery of the aircraft, reads thus:

"6. DELIVERY OF AIRCRAFT 6.1. Lessor shall deliver the Aircraft to the Lessee at
GMR Aerospace facility located in the Special Economic Zone (SEZ) at Hyderabad
Airport, India. Lessor shall deliver and Lessee shall accept the Aircraft with current
and valid Certificate of Airworthiness (COA) issued by Isle of Man Aircraft Registry
(IOMAR).

6.2. Notwithstanding anything contained herein to the contrary, the Lessor shall deliver the Aircraft
to Lessee in accordance with the terms and conditions of this Deed and Signature Not Verified
Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19 Lessee will accept the Aircraft by
eXecution of the Delivery Acceptance Certificate, as set forth herein in attached Schedule - II.
("Delivery Acceptance Certificate").

6.3. Subject to the generality of the foregoing, the Aircraft to be leased hereunder shall be delivered
to the Lessee in "AS IS" conditions and subject to each and every disclaimer of warranty and
representation as set forth herein. The Lessee hereby covenants that it is familiar with the type of
Aircraft, its characteristics, qualities, equipment and condition so far as reasonable, practicable and
provided herein."

144. Clause 6.3 starts with the words "subject to the generality of the foregoing". "The foregoing"
would include Clause 6.2, which commences with a non-obstante clause, and required the
respondent to deliver, to the petitioner, the aircraft in accordance with the terms and conditions of
the Lease Deed. It was only thereafter that the petitioner was required, as lessee, to accept the
aircraft by eXecution of the delivery acceptance certificate. The terms and conditions of the Lease
Deed included Clause 4.1, which required the lessor to provide all necessary documentation,
required by the lessee for registering the aircraft with the DGCA. Evidence of installation of the
CDSS in the imported aircraft would also, therefore, be one of the requirements, in order for the
aircraft to be registered with the DGCA in India. On this count, too, therefore, the submission of Mr.
Gautam Narayan, that the respondent was in breach of the covenants of the Lease Deed, merits
acceptance.
Re: Liability to pay maintenance reserves

145. There is also, prima facie, substance in the contention, of Mr. Gautam Narayan, that no liability
on the petitioner, to pay Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 maintenance reserves, eXisted. Clause 10.6 of the Lease Deed specifically obligated the
lessee, to pay to the lessor, maintenance reserves on a monthly basis, "for every flight hour or flight
cycle, as the case may be of usage". The Clause also stipulated that the maintenance reserves were to
be paid in accordance with Schedule III to the Lease Deed, which specifically stipulated that
maintenance reserves were payable "in respect of hours flown on the aircraft", and were "payable on
the 10th day of each month in respect of hours flown in the previous calendar month". As the
aircraft had never been flown, there could be no question of the petitioner being required to pay any
maintenance reserves.

The fallout

146. As a result, I am of the opinion that a prima facie case, meriting consideration and resolution by
the arbitral process, has been made out by the petitioner. It remains to be considered, then,
whether, in order to secure the corpus of the arbitration, any interim measure of protection, under
Section 9 of the 1996 Act, deserves to be granted.

147. The prayer clause in this petition, reads thus :

"In the facts and circumstances mentioned above, it is respectfully prayed thatthis
Hon'ble Court may be pleased to:

a. Pass an order restraining the Respondents from creating any third party interest / right / title on
the Aircraft either directly or indirectly or from selling, transferring or creating encumbrance in any
way; and b. Pass an order restraining the Respondents from taking the Aircraft out of India; or, in
the alternative, Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19
c. Pass an order directing the Respondents to deposit the amount of USD 530,000 [INR
4,01,05,736/- as on 20.5.2020] which corresponds to the amount paid by the Petitioner as per the
Lease Deed along with interest into an escrow account under this Hon'ble Court's directions;

d. Pass any other orders as this Hon'ble Court may deem fit in the facts and circumstances of the
present case, in the interest of justice."

148. After orders were reserved, in these proceedings, the attention of this Court was invited to the
fact that the respondent was making efforts to dispose of the aircraft, or parts thereof, with a view to
render in these proceedings infructuous. Opining that this amounted to an attempt at interfering
with the administration of justice, especially as these attempts were made without the consent of
this Court, notice was issued, to the respondent, to show cause as to why action for contempt be not
initiated against it. Further orders were passed by this bench, resulting in the respondent appealing,
before the Division Bench of this Court, by way of FAO (OS) (COMM) 124/2020 (Ezen Aviation Pvt
Ltd v. Big Charter Pvt Ltd). Notice was issued, in the said appeal, on 12th October, 2020, and the
order, of this Court, was modified, by allowing the respondent to dismantle and shift the landing
gears and other accessories of the aircraft to the warehouse of M/s GMR Air Cargo and Aerospace
Engineering Ltd., donate the bare shell of the aircraft, without any accessories of landing gears to
the National Institute of Technology, Warangal, sell the landing gears and other spare parts and
raise an amount of 4,30,00,000/-, which was to be deposited with the Registry of this Court. This
arrangement, it was clarified, would be subject to the outcome of these proceedings. Signature Not
Verified Digitally Signed By:SUNIL Signing Date:24.10.2020 18:07:19

149. In view of these supervening developments, after orders were reserved, prayers (a) and (b) in
the petition do not survive for consideration.

150. Prayer (c) in the petition is for directing the respondent to deposit 4,01,05,736/-, being the
amount paid by the petitioner to the respondent under the Lease Deed, in an escrow account, to be
administered by this Court. This Court has been alive to the fact that, during the currency of
arguments in this petition, and even after orders were reserved thereon, the respondent has
shipped, out of the country, various parts of the aircraft. That apart, Respondent No. 1 is a private
limited company, registered in Australia, and Mr. Chenna Reddy, who is the director of Respondent
No.1 as well as Respondent No.2, is also residing in Australia. In case the respondent is allowed to
withdraw, from the Registry of this Court, the amount of 4,30,00,000/-, deposited as per the
direction of the Division Bench, there is every likelihood of recovery of the said amount, from the
respondents, being rendered a formidably uphill task, in the event of an award being returned, in
arbitration, in favour of the petitioner.

151. Drawing analogy from the judgment of the Supreme Court in Raman Tech and Process Engg.
Co. v. Solanki Traders28 and of the Coordinate Bench of this Court in Tata Advance Systems Ltd. v.
Tele X cell Information Systems Ltd.29, and on the basis of the 28 (2008) 2 SCC 302 29
MANU/DE/1061/2020 Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19 principles applicable to Order XXXVIII Rule 5 of the CPC, I am of the opinion that, in the
interests of justice, the amount of 4,30,00,000/-, should remain deposited with the Registry of this
Court, pending further orders. The deposit would remain subject to the final award, if any, to be
rendered in the arbitral proceedings between the parties. The amount shall be retained in an interest
bearing fiXed deposit, and shall remain subject to further orders to be passed by this Court.

152. The petition stands allowed to the aforesaid eXtent.

153. It is clarified that all observations, and findings, in this judgement, are intended only for the
purpose of disposing of the present petition under Section 9 of the 1996 Act, and should not be
treated as a final eXpression of opinion, by this Court, on the various issues in controversy, the
merits of which would have to be determined by the Arbitral Tribunal which would be constituted in
the matter.

154. There shall be no order as to costs.

C. HARI SHANKAR, J.
OCTOBER 23, 2020 HJ Signature Not Verified Digitally Signed By:SUNIL Signing Date:24.10.2020
18:07:19