GANDHARVA INFRASTRUCTURE AND PROJECTS LIMITED vs UNION OF INDIA

$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 372/2024, I.A. 38066/2024 & I.A. 38067/2024

GANDHARVA INFRASTRUCTURE AND PROJECTS LIMITED …..Petitioner
Through: Mr. Ankur Mahindro, Adv. and Ms. Shrestha Choudhary, Adv.

versus

UNION OF INDIA …..Respondent
Through: Mr. Mukesh Kr. Tiwari, Ms. Reba Jena Mishra, Advs. for Mr. Ruchir Mishra, Adv.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

O R D E R
% 02.09.2024

I.A. 38067/2024 (for exemption)

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

O.M.P. (COMM) 372/2024, I.A. 38066/2024

3. Mr. Tiwari, learned Counsel for the respondent has raised a preliminary objection to the maintainability of this petition before this Court. He submits that, as the agreement between the parties was signed at Lucknow and the work forming subject matter of the contract was also executed in Lucknow, this Court would not have jurisdiction.

4. He also submits that the respondent has filed a petition under Section 34 of the Arbitration and Conciliation Act, 19961 challenging the impugned award, before the learned Commercial Court at Lucknow.

5. Mr. Mahindro, learned Counsel for the petitioner on the other hand, has drawn my attention to the concluding sub paragraph in Clause 25 of the General Conditions of Contract (GCC), governing the relationship between the parties, which reads as under:

“It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the-amount of costs to be so paid.”
(Emphasis supplied)

6. Mr. Mahindro submits that the arbitral proceedings have taken place in Delhi and the impugned arbitral award has also been rendered by the learned arbitrator at Delhi. As such, the learned arbitrator, exercising the discretion conferred on him by the afore-extracted clause in the GCC, fixed the venue of arbitration as Delhi.

7. Applying the principles contained in the judgment of the Supreme Court in BGS SGS Soma JV v NHPC2 , he submits that, where the contract does not fix any other seat of arbitration, the venue of arbitration has to be treated as the arbitral seat.

8. In that view of the matter, he submits that this petition would lie before this Court.

9. The Court would examine this aspect at the appropriate stage.

10. Issue notice.

11. Notice is accepted on behalf of the respondent by Mr. Mukesh Kr. Tiwari, Advocate.

12. Reply be filed within four weeks with advance copy to learned Counsel for the petitioner, who may file rejoinder thereto, if any, within four weeks thereof.

13. Let the arbitral record be requisitioned before the next date of hearing and electronic copy thereof be provided to the learned Counsel for both sides.

14. Re-notify on 18 November 2024.

C.HARI SHANKAR, J
SEPTEMBER 2, 2024/aky
Click here to check corrigendum, if any

1 “the 1996 Act”, hereinafter
2 (2020) 4 SCC 234
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OMP (COMM) 372/2024 Page 6 of 6