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B SYNOPSIS

The Petitioner is aggrieved by the order dated 30 May 2018

("Impugned Order") passed by the Division Bench ofthe Hon 'ble

Delhi High Court in FAO (OS) (COMM) No. 67 of 2017 ("DB

Appeal"). By the Impugned Order, the Hon'ble Division Bench

allowed the Respondent's DB Appeal, although the DB Appeal was

not maintainable at all in law and set aside the order dated 28

February 20 l 7 passed by the Learned Single Judge of the Bon 'ble

Delhi High Court ("Single Judge Order") in the petition filed by

, the Petitioner under Section 9 of the Arbitration and Conciliation

, Act, 1996 ("the Arbitration Act") before the Hon'ble Delhi High

Court ("Delhi Section 9 Petition").

The Petitioner submits that the Impugned Order is untenable in law

and is based on an erroneous application of well settled legal

principles. Further, the Impugned Order has been passed in breach

of and in complete disregard to Article 141 of the Constitution of

India as the Hon'ble Division Bench has failed to follow the binding

decisions of this Hon'ble Court. The Impugned Order also fails to -

take into account the various materials placed on record by the

Petitioner , and the -arguments raised, whi ;h have, not at- all , been

considered, much less dealt with and decided by the Hon'ble

Division Bench. Therefore, the Impugned Order ought to be set

aside.

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Bar & Bench (www.barandbench.com)

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c The three questions which were formulated (though not during the

' . , hearing and that these questions appeared for the first time only in

. the Impugned Order) by the Hon 'ble Division Bench were as under:

"(i) Maintainability of Antrix's appeal in view of provisions

of the Commercial Courts Act;

(ii) If appeal is maintainable, does this Court have exclusive

jurisdiction to adjudicate any applications arising out of the

arbitration agreement between Antrix and Devas?

(iii) If the answer to question (10 is in the negative,

wilt Section 42 of the Arbitration Act preclude

Devas' Section 9 petition before this Court on account 'of

Antrix's previous Section 9 petition before the Bangalore

City Civil Court? "

As regards question no. 1 i.e. in relation to the maintainability of

the DB Appeal, apart from other grounds raised in detail in this

. Petition, the Petitioner submits that the reasoning of the Hon'ble

! Division Bench for holding that the DB Appeal was maintainable

, is that the Single Judge Order directing the Respondent to file its

audited balance sheets and profit and loss accounts for the past three

years is a ''prelude, or important step towards the inevitable interim,'

order" and that the Respondent cannot be made to wait for passing

. ·of such order. In fact, the Impugned Order itself aclmowledges that

neither the decision ofthis Hon'ble Court in Shah Babula/ Khimji

v. Jayaben D Kania, (1981) 4 SCC 8 (which in fact, was the sole

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basis and the pleaded case of the Respondent in the DB Appeal to

justify the maintainability of the DB Appeal), does not apply to the

present case in view of Section 13 (2) -of the Commercial Courts;

Commercial Division and Commercial Appellate Division of High

Cocuis Act, 2015 ("Commercial Courts Act"), nor that the Single

Judge Order was an order that was appealable under Section 37 of

the Arbitration Act. The Impugned Order failed to consider that the

Single Judge Order was not an order ''granting or refusing to grant ' '

anymea:sure under section 9'' as mentioned in Section 37(1)(b) of .".

the Arbitration Act. It is submitted that directing a party to file

documents such as balance sheets, simply cannot ever be "granting

or refUsing to grant any measure under section 9 ". It is further

submitted that by that logic, directing a pmiy to file any document

or issuance of notice, would be to grant or refuse to grant an interim

measure. It is submitted that no appeal lies under Section 37 of the

Arbitration Act, from a "prelude" to m< interim measure. For

example, the filing of a Section 9 petition could itself be a prelude

, • to an interim measure, but obviously there can be no appeal under

• Section 37 of the Arbitration Act on the filing of such a petition. A

Court may or may not grant an interim measure of protection sought

under Section 9 of the Arbitration Act. lt is the order that either

grants cir refuses to grant an interim measure that would be

. appealable under Section 37 of the Arbitration Act

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E The Hon'ble Division Bench also erred by ignoring that the

Arbitration Act is a self-contained code and that it is well settled

that a right of appeal is not a natural or inherent right. The Hon 'ble

i' Division Bench also misdirected itself, since it is equally well

· settled that a right of appeal cannot be assumed to exist unless

. expressly provided for by statute.

It is submitted that the Impugned Order is also contrary to the recent

decision of this Hon'ble Court in Kandla Export Corporation vs. • • ' I 1

OCI Corporation; 2018 SCC OnLine SC 170, wherein this Hon'ble

Court held:

"16. The proviso goes on to staie that an appeal shall

lie from such orders passed bv the Commercial

Division (!( the High Court that~ BJ..ecifically

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enumerated under Order XLIII of the Code of Civil

Procedure Code, 1908, and Section 37 of the

Arbitration Act. It will at once be noticed that orders

that are not speci/icallv enumerated under Order

XLIII of the CPC would, therefore, not be appealable,

and appeals that are mentioned in Section 37 of the

Arbitration Act alone are appeals that can be made to

the Commercial Appellate Division of a High Court."

[Emphasis Added]


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F In view of the above binding declaration of law, the Hon'ble

Division Bench could not have held that the DB Appeal was

maintainable under Section 13 of the Commercial Courts Act.

Therefore, the Impugned Order, being contrary to the law laid down

by this Hon'ble Court, is liable to be set aside. Further, the Hon'blc

Division Bench also did not follow the decisions of Coordinate

Division Benches of the Hon'ble Delhi High Court on this issue,

despite having referred to these decisions in the Impugned Order.

Further, the reasoning of the Hon'ble Division Bench that the

direction by th

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G Division Bench completely failed to appreciafe.that the details that,

were directed to be fumished, were already part of the annual

reports of the Respondent, which are freely available on its website

- http://www.antrix.eo.in/about-us/financials.

The Petitioner further submits that if the Impugned Order is allowed

to stand, it would result in each and every order passed in a petition

under Section 9 of the Arbitration Act, to be appealable under

Section 37. It is submitted that this is exactly what the Legislature

intended to avoid and thereby inserted tile words "and from no

others" in Section 3 7 of the Arbitration Act. The Legislature has

restricted , the scope of appeals under rhe Arbitration Act by

specifically enumerating the orders which 8re appealable under law.

Accepting the reasoning contained in the Impugned Order will

,make Section 37 otiose and nugatory and would run contrary to the

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Legislative intent of Section 37 of the Arbitration Act.

As regards question no. 2, apart from other grounds raised in this

Petition, the Impugned Order failed to consider the law (as it a1ways

existed) and subsequently reiterated by this Hon 'ble Court in Indus '

Mobile Distribution Private Limited vs. Datawind Innovations

Private Limited & Ors., (2017) 7 set 678 ("Datawind"). It is

noteworthy that this Hon'ble Court has recently in M/s Emkay

Global Financial Services vs. Gridhar Sandhi (2018) sec Online

SC 1019 ("Emkay") reiterated the principles laid down in . . '

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H • Datawind. In fact, more recently, a three-judge bench deeision of

• this Hon'ble Court in Union of India vs. Hardy Exploration and

Production (India) INC, Civil Appeal No. 4628 of 2018 dated 25

September 2018 ("Hardy Exploration") has held, "when only the'

term "place" is stated or mentioned and no other condition is

postulated, it is equivalent to "seat" and that finalises the facet of

jurisdiction."

It is submitted that the Impugned Order is erroneous and contrary

to law sine.: it failed to appreciate that applying the principles laid ' . , " I ' I ' · · I

down in Datawind by this Hon'ble Court to the present case, it is

clear that:

a) Since the Parties had expressly designated New Delhi as the

"seat" of arbitration in the arbitration agreement contained .,' i

in the Devas Agreement, the Courts of Delhi have exclusive

jurisdiction, which is to the exclusion of all other courts in

the country.

b) The Parties upon designating the Seat of arbitration as New

Delhi in their agreement on 28 January 2005, from that .j,.

"moment", the Courts of Delhi had

I it was (and is) only the Courts at Delhi, which had and

continue to have exclusive jurisdiction. Since, as is the well

settled law, the juridical seat of arbitration carries with it the

exclusive jurisdiction of the court of the seat of the

arbitration, it was wholly unnecessary to again specify or

provide for the exclusive jurisdiction of the Courts of Delhi

, in the agreement.

c) Therefore, the Section 9 Petition, i.e. AA 483 of 2011

("Bangalo1·e Section 9 Petition") filed by the Respondent

on 5 December 2011, was in a Coun without jurisdiction.

Hence, any proceedings before the Bangalore City Civil

Court ("Bangalore Court") are corwn non judice and any

order passed by such a court is a nullity and non est (see

i: Hm·shad Chiman Lal Modi vs. DLF Universal Ltd., (2005) 7

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SCC 79J, .. paragraph 32; Official Trustee, West Bengal and

Ors vs. Sachindra Nath Chatterjee & Anr, (1969) 3 SCR 92

- paragraph 29 and Zuari Cement Limited vs Regional

Director, Employees ' State Insurance Corporation,

Hyderabad and Others, (20 15) 7 SCC 690-paragraph 16).

d) The finding in the Impugned Order that "[t)hejurisdiction of

the courts where the cause of action arises, which in this

case. is the Bangalore Citv Civil Court, cannot be said to

have been excluded iherefore", is equally untenable in law

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and fact. This Hon'ble Court in Datawind has clarified the

law (as it always existed) that the Comts located at the Seat

of arbitration have exclusive jurisdiction, even though the

Seat Courts, may not in the classical sense have jurisdiction

- that is, no part of the cause of action as per Section 20 of

the Code of Civil Procedure, 1908 ("CPC") may have arisen ' ;

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therein. This Hon'ble Court has further clarified that

provisions of Sections 16 to 21 of the CPC will not be

attracted in the scenario where the parties have designated a

Seat of arbitration.

e) Therefore, in the present case, by designating New Delhi as

the Seat of arbitration, the Parties agreed that the Courts of

Delhi alone would have exclusive jurisdiction to entertain

and decide all matters arising under the Arbitration

Agreement contained in the Devas Agreement. The ';

Petitioner further submits that the designation of the Seat of

arbitration is important to determine which Court would

have supervisory jurisdiction over the conduct of the arbitral

proceedings and most importantly, the Court in which, a ' • ' ' I

challenge to the award, can be entertained. In the present

case, the Petitioner submits that even otherwise, the cause of

' , action ~l's~ arose ih New Delhi. The Respondent admitted so in its pleadings before this Hon'ble Court in its Section 11

Petition. Therefore, without prejudice to the above, and

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K although not required, the test under Section 2(1)( e) was also

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satisfied for the Hon 'ble Delhi High Court. However, in any , · ,

event, in view of Datawind, it is irrelevant whether any cause

of action arose or not, for the Courts located at the Seat of

arbitration to exercise exclusive jurisdiction.

f) Therefore, no proceedings in relation to the Devas

Agreement, can or could have ever been entertained by the

Bangalore City Civil Court or for that matter, any other

Court in India, other than the Hon'ble Delhi High Court.

Accordingly, the finding in the Impugned Order that the

Hon'ble Delhi High Court does not have exclusive

jurisdiction and further, that the Bangalore CitY Civil Court

has jurisdiction to entertain the Bangalore Section 9 Petition,

is untenable and contrary to law. Any proceedings before the

Bangalore City Civil Court vvill be a nullity and without

jurisdiction, in view of the law laid down by Datawind.

:The Hon'ble Division Bench erroneously held that the decision in

Datawind would have been applicable to the present case only if

the parties would have provided for an exclusive jurisdiction court

clause, in addition to the designation of the Seat of arbitration. That .

would be superfluous and duplication. The Petitioner submits that

the reasoning of the Hon'ble Division Bench is flawed and in the

teeth of the law laid down by this Hon'ble Court. In Datawind, it

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l , was authoritatively laid down that the designation of the "Seat" of

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arbitration is "akin" to an exclusive jurisdiction clause and I'

accordingly, no other Courts (other than the Courts located at the

Seat of arbitration) have jurisdiction to entertain applications in

relation to the arbitration agreement between the parties cir an

arbitral award made pursuant to the arbitration agreement.

In fa.ct, the ll!lpugned Order is also in breach cifArticle 141 of the

Constitution oflndia and contrary to the doctrine of precedent. The '

Hon'ble Division Bench could not nave disagreed with or ruled :, I

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contrary to the binding decision of this Hon 'ble CoUrt in Datawind.,

In this regard, the Petitioner refers to the decision of this Hon 'ble

Court in South Central Railway Employees Coop. Credit Society

Employees Union vs. B. Yashodabai, (2015) 2 SCC 727, wherein

this Hon'ble Court held that, "(alll courts: High Courts, being no

exception. we tethered to precedent a~ well as the law declared by

the Supreme Court by virtue ofArticle 14! ofthe Constitution. The •: I

, doctrine of precedent ensures consistency and lends stability to the ,: ,

'administration oflaw. If every court is lefi tree to pursue its views

regardless o[previous judgments o[higher courts. or Benches of

greater composition. within the same court, in a hierarchal svstem, .

the consequence would be chaos and uncertainty about the law''.

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M Therefore, the Hon'ble Division Bench had no option but to follow

the law laid down by this Hon'ble Court in Datawind. The complete

disregard of binding precedents of this Hon'ble Court and of other

Coordinate Benches of the Hon'ble Delhi High Court, has rendered

the Impugned Order illegal and untenable in law. Accordingly, the

Impugned Order ought to be set aside by this Hon'ble Court.

As regards question no. 3, apart from the other grounds raised in ,, ' i I

this Petition, the Impugned Order is incorrect and contrary to the

statutory scheme and Legislative intent of the Arbitration Act. The

Impugned Order has not even dealt with the submissions of the

Petitioner in relation to Section 42 of the Arbitration Act. Nor does

the Impugned Order explain as to why the Single Judge Order is

incorrect on the inteipretation of Section 42 of the Arbitration Act.

The Hon'ble Division Bench failed to appreciate that Section 42

has no application to the present case, since the Bangalore Section

9 Petition was and is wholly without jurisdiction, barred by law,

illegal and ex-facie incompetent in view of Bhatia International vs.

Bulk Trading S.A. (2002) 4 SCC 105 ("Bhatia"). Therefore,

Section 42, could simply never apply in relation to such a petition.

The Impugned Order also failed to appreciate that for Section 42 to

validly apply, the twin conditions contained therein must be met.

These pre-requisites and conditions are (i) that an application under

Part I of the Arbitration Act has been made and which application

is one, that is maintainable in law; and (ii) that such an application,

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the law laid down by this Hon'ble Court inDatawind. The complete

disregard of binding precedents of this Hon 'ble Court and of other

Coordinate Benches of the Hon 'ble Delhi High Court, has rendered

the Impugned Order illegal and untenable in law. Accordingly, the

Impugned Order ought to be set aside by this Hon'ble Court.

As regards question no. 3, apart from the other grounds raised in

this Petition, the Impugned Order is incorrect and contrary to the [,· i' .

statutory scheme and Legislative intent of the Arbitration Act The.

Impugned Order has not even dealt with the submissions of the

Petitioner in relation to Section 42 of the Arbitration Act Nor does

the Impugned Order explain as to why the Singh! Judge Order is

incorrect on the interpretation of Section 42 of the Arbitration Act.

. The Hon'ble Division Bench failed to appreciate that Section 42 ' ··

has no application to the present case, since the Bangalore Section ..

9 Petition was and is wholly without jurisdi.;;tion, barred by law,

illegal and ex-facie incompetent in view of Bhatia International vs. ·

Bulk Trading S.A. (2002) 4 SCC 105 ("Bhatia"). Therefore,

Section 42, could simply never apply in relation to such a petition.

The Impugned Order also failed to appreciate that for Section 42 to

validly apply, the twin conditions .co1,1tained therein must-be met.

These pre-requisites and conditions are (i) that an application under . '

Part I of the Arbitration Act has been made and which application

is one, that is maintainable in law; and (ii) that such an application,

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has been made in a Court of competent jurisdiction i.e. a court that

is authorised by law to grant the reliefs sought by the party. It is

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therefore imperative for both these conditions to be met before the

bar of Section 42 can even apply.

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The Hon'ble Division Bench equally failed to appreciate the

purposive interpretation by the Single Judge Order of Section 42 of

the Arbitration Act in light of its statutory object. It is evident from

a plain reading of Section 42 that the petition which had been first

filed under Part I of the Arbitration Act, has to be a valid and

maintainable one and also capable of being granted. Further, the

Petitioner submits that if the Impugned Order is not set aside, it will

create an extremely bad precedent and will encourage parties to file

petitions that are illegal, barred by law and beyond the scope of the

• Arbitration Act, just to attract the bar of Section 42 in order to oust

the jurisdiction of a Court that has exclusive jurisdiction. Applying

and accepting the Impugned Order would mean, for instance, that a

party can file a petition seeking reliefs that are expressly barred by

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law, but since that petition purports to be one under "Section 9" of

, the Arbitration Act, Section 42 will automatically come into play.

It is submitted that Section 42 of the Arbitration Act was not

intended to be interpreted in the manner the Impugned Order has.

Such an interpretation ought to be rejected, as it is a recipe for forum · • I ' •

shopping and abuse of process of the Court.

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0 It is submitted that in the Impugned Order, the Hon'ble Division

Bench gravely erred with respect to all three questions. It is

submitted that Impugned Order is liable to be set aside as the

reasoning contained therein on all three issues! questions, is

fundamentally flawed, legally untenable and contrary to the law,

laid down by this Hon'ble Court.

In view of the above, the Petitioner submits that Impugned Order is

' liable to be scl aside; for the reasons as enumerated in the' grounds ''

to the present Special Leave Petition.

LIST OF DATES

28.01.2005 A contract was entered into between the Petitioner and

Respondent for the Lease of Space Segment Capacity

on ISRO/Antrix S-Band Spacecraft (''the Devas

Agreement"). Article 20 of the Devas Agreement is the

arbitration agreement between the Petitioner and

Respondent. At the time of entering in the Devas

Agreement, the Parties expressly agreed in Article 20

(b) of the Devas Agreement that:

"b. The seat of Arbitration shall be at NEW

DELHI in India." [Emphasis Added]

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As evident from Article 20(b) of the Devas Agreement,

the parties in the present case, expressly chose a neutral

seat i.e. the juridical Seat of the arbitration at New Delhi

keeping in mind that at the time the Devas Agreement

was entered into, the definition of an 'international

conunercial arbitration' ·included a· company whose

management and control is exercised in any country

other than India. The present arbitration therefore, fell

, within the definition of an 'international commercial

arbitration' under Section 2(1)(f) of the Arbitration Act.

Although, the Petitioner is registered in Bangalore,

majority of the shareholders were outside Bangalore and

its control was exercised outside India.

By 2005, the law to relating the Seat of arbitration

carrying with it the exclusivejurisiliction of the Courts

I of the Seat being the supervisory Court was fairly well

settled and developed, particularly in the United States

(where the principal original promoters were from).

Therefore, in view of the Parties herein designating New

Delhi as the "Seat" of arbitration on 28 January 2005,

' from that moment, the Courts of New Delhi had

exclusive jurisdiction i.e. to the exclusion of all other

I Courts in the country. Accordingly, on 28 January 2005,

agreed that any and all

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I applications/petitions m relation to the arbitration

agreement, would be filed only in the Courts of New

Delhi. True copy of the agreement dated 28.01.2005

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entered into between the Petitioner and the Respondent " ·

is annexed herewith and marked as ANNEXURE-PI

PAGES ( 227 TO 339)

25.02.2011 The Respondent unlawfully terminated the Devas

Agreement. True copy of the letter dated 25.02.2011 I : ' '

sent by the Respondent is annexed hereWith and marked

as ANNEXURE-P2 PAGES ( 340 TO 341)

29.06.2011 The Petitioner invoked the arbitration clause contained

in the Devas Agreement by issuing a Request for

Arbitration ("RFA") under the Rules of International

Chamber of Commerce, Paris ("the ICC Rules") and '

appointed Mr. VV Veeder, Queen's Counsel as its

arbitrator. Ttue copy of the letter dated 29.06.2011 sent

by the Petitioner is annexed herewith and marked as

ANNEXURE-P3 PAGES ( 342 TO 343),

05.07.2011 The International Chamber of Commerce notified the I, ,

Petitioner's RF A to the Respondent. In accordance With

the ICC Rules, the International Chamber of Commerce

called upon the Respondent to file its answer to the I' ,

Petitioner's RF A., The Respondent was also requested

L to nominate its arbitrator. The Respomieni: however, , _ ____j_ ___ ___

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failed to comply with the request of the International

Chamber of Commerce. True . copy of letter dated

05.07.2011 issued by the International Chamber of

I Commerce 1s annexed herewith and marked as

ANNEXUREMP4 PAGES( 344 TO 352)

30.07.2011 Instead of appointing its arbitrator in terms of the ICC

Rules and after the Petitioner had already invoked the

arbitration clause, the Respondent subsequently

purported to invoke the arbitration clause in the Devas

Agreement and purportedly appointed a former Judge of

this Hon'ble Court as its nominee arbitrator under the

UNCITRAL Rules in respect of such disputes. True

copy of the letter dated 30.07.2011 sent by the

R~spondent 1S annexed. herewith and marked as .

ANNEXURE-1'5 I' AGES ( 353 TO 357 )

05.08.2011 The Respondent also recognising that as per the

Arbitration Act, the arbitration was an international

commercial· arbitration · (instead of appointing its

arbitrator under the ICC Rules) filed a petition being

Arb. Pet. No. 20 of 2()11 under Section 11 (4) of the

Arbitration Act before this Hon'ble Court ("the Section

11 Petition") for appointment of an arbitrator.

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Pertinently, the Respondent in the Section 11 Petition

stated at paragraph · VIII (which dealt with the

jurisdiction ofthis Hon'ble Court) as under:.

"(VIII). This Hon'ble Court has jurisdiction to

try and entertain this Petition in terms of

Section 11(12) of the Arbitration Act and the

Scheme ... " [Emphasis Added]

"(XII). It is stated that this request is being made

under the provisions of the Arbitration Act and the • • • I 0 • '

Scheme. It is submitted that this Hon 'ble Court has

the jurisdiction to entertain the present request."

The Petitioner states that the above pleading IS an

admission by the Respondent that:

(i) the arbitration was an 'international commercial I

arbitration' as that is why the Respondent filed its

Section 11 Petition before this Hon'ble Court, and

(ii) the cause of action also arose at New Delhi.

While it is the Petitioner's submission that the Courts at

New Delhi have exclusivejurisdiction in relation to the '

arbitration agreement contained · in the Devas

Agreement, the Petitioner strictly on a without prejudice

basis, submits that considering that the ICC Award itself

has its genesis from the "Government directive" and

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"Policy Decision", the cause of action also arose within

the jurisdiction of the Courts in New Delhi. True copy

of the Arb. Pet. No. 20 dated 05.08.2011 filed by the

Respondent under Section 11 of the Arbitration and

Conciliation Act, 1996 before this Hon 'ble Court is

annexed herewith and marked as ANNEXURE-P6

PAGES ( 358 TO 406 )

05.08.2011 Along with the Section 11 Petition, the Respondent also

filed an application seeking interim reliefs.

The reliefs sought in the said interim application were

as under:

"(i) restrain the Respondent from proceeding in

any manner, with the ICC Arbitration contrary to

the Agreement dated 28.01.2005;

(ii) restrain the Respondent from getting ·the

arbitral tribunal constituted by the 'International

Chamber of Commerce, Paris, France;

(rii) restrain the Respondent from getting the

Agreement dated 28.01.2005 modified/substituted

from International Chamber of Conunerce, Paris,

France;

· (iv) pass such other and further order(s) .... "

Evidently, the Respondent sought a stay from this

I Hon'ble Court of the arbitral proceedings and on the

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u constitution of the lCC arbitral tribunal. Tnie copy of

application dated 05.08.2011 filed by the Respondent in

Arb. Petition 20 of 2011 is annexed herewith and

marked as ANNEXURE-P7 PAGES ( 407 TO 411)

13.10.2011 In view of the Respondent's :fuilure to appoint its

arbitrator, the International Chamber of Commerce,

pursuant to Article 9 (6) of the ICC Rules, appointed a

fanner Chief Justice of India as the Respondent's

arbitrator on the arbitral tribunal.

Further, the International Chamber of Commerce

pursuant to Rule 9 (I) of the ICC Rules also confirmed

the appointment of the co-arbitrator nominated by the

Petitioner, Mr. VV Veeder, Queen's Counsel. The two

nominee arbitrators were given 20 days to finalise the

name of the Chairman of the arbitral tribunal. True copy

of the letter dated 13.10.2011 is annexed herewith and

marked as ANNEXURE-P8 PAGES ( 412 TO 436)

10.11.20 ll Since the two co-arbitrators were unable to jointly

nominate the Chairman of the arbitral tribunal, the r , ,

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with the ICC Rules, appointed Dr. Michael Pryles as the

Chairman of the arbitral tribunal. True copy of the letter • L ' '

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ANNEXURE-P9PAGES ( 437 TO 443) '-· __ __,_L____ ..

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116.11.2011 While hearing the Section I 1' Petition, this Hon'ble

I Court referred the Respondent's Section 11 Petition and

several propositions of law to be decided by a larger

Bench ofthis Hon'ble Court (reported as (2014) lJSCC

574). Pertinently, the question whether this Hon'ble

Court has the power/jurisdiction to grant interim relief

in a proceeding under Section 11 of the Arbitration Act,'

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was also referred to the larger Bench of this Hon'ble 1.

Court.

The Petitioner submits that it is evident from the record

of the. present case, that the sole object of the

Respondent was to somehow obstruct and derail the

arbitration proceedings invoked by the Petitioner. The

Respondent's initial failure to obtain a stay of the

arbitration proceedings from this Hon'ble .Court in its

Section II Petition, in fact, sets the tone for the

Respondent's illegal Section 9 Petition in the Bangalore

Court. True copy ofthe order dated 16.11.2011 passed I''.

by this Hon'ble Court in Arb. Petition 20 of 2011

annexed herewith and marked as ANNEXIJR£-PlO

-PAGES (444 TO 448)

. 05.12.2011 Since the Respondent did not get a stay of the arbitration

proceedings from this Hon'ble Court and during the

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w j pendency of the Section 11 Petition, it filed the

Bangalore Section 9 Petition on 5 December 2011.

The Respondent in the Bangalore ·Section. 9 Petition

sought the following reliefs:

"(i) restrain the Respondent from proceeding in

any manner, with the ICC Arbitration contrary to

the Agreement dated 28.01.2005;

(li) restrain the Respondent from getting the

Agreement dated 28.01.2005 modified/substituted

from ICC;

(iii) restrain the Arbitral Tribtmal constituted by

ICC under ICC Rules from proceeding with the

arbitration.

(iv) pass such other and further order(s) .... "

It is evident that the prayers the Respondent sought in

the Bangalore Section 9 Petition, were the same as in

the interim application filed with the Section 11

Petition. As stated above, these prayers are in the teeth

of the law laid down by this Hon'ble Court in Bhatia

and therefore, were and continue to be, barred by law

an:d not maintainable from its very inception.

I.

On the same day i.e. 5 December 2011, the Respondent

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also filed a Suit (OS 8751/2011) in the Bangalore Court · · i ·•

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9 Petition and Suit, sought the same reliefs as the

Res~ondent had sought in its interim application along

with the Section 11 Petition before this Hon'ble Court.

As t.\e pleadings and prayers in the Bangalore Section 9

and also the Suit would reveal, the Respondent's

ultimate object was to somehow scuttle the arbitration

proceedings initiated by the Petitioner. In addition to

the above, the pleadings in these petitions are aJso

identical.

Therefore, a non-maintainable petition 1.e. the

Bangalore Section 9 Petition should never have been

filed and thus, must be treated as never having been filed

in law and in any event, cannot attract Section 42 of the

Arbitration Act. True copy of the petition being AA 483 ' '

'' of2011 dated 5.12.2011 filed by the Respondent under

Section 9 of the Arbitration and Conciliation 1996

before the Bangalore City Civil Court is annexed

. herewith and marked as ANNEXURE-PI! PAGES (

449T0512)

05.12.2011 In addition to the Bangalore Section 9 Petition {which

was barred by law), the Respondent (on the same day)

also filed a civil suit being O.S. No. 8751 of2011 before

the Bangalore Court.

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The Petitioner submits that just as the Bangalore Section

9 Petition is barred by law and ex-facie incompetent,

even the Bangalore Suit filed by the Respondent is

barred by law and therefore, not maintainable. The

Bangalore Suit filed by the Respondent is barred by

Section 5 of the Arbitration Act and the law laid down

by this Hon'ble Court in Chatterjee Petrochem

Company vs. Haldia Petrochemicals Limited,· (2014)

usee 574.

The Petiti~ner submits that it is pertinent to note that the

Respondent's pleadings in the Bangalore Suit evidences

that the Respondent itself knew that its Bangalore

Section 9 Petition was not maintainable and therefore,

had simultaneously filed the Suit (which is also not

maintainable as stated above). In Paragraph 4 of the

Bangalore Suit, the Respondent stated as under:

"The Plaintiff has filed simultaneously with this

Suit a Petition (hereinafter referred to as "Section

9 Petition ') under Section 9 of the Arbitration and

Conciliation Act, 1996 .................... However, as

there is no authoritative judicial pronouncement

on the scope and ambit of Section 9(ii)(e) of the

Act, the Plaintiff has alsojiledthis Suit ......... ".

[Emphasis Added]

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The Petitioner submits that the decision in Bhatia by

this Hon'ble Court, was and is undoubtedly an

"authoritative judicial pronouncement' on the scope

and ambit of Section 9 (i) and (ii) of the Arbitration Act

[which includes Section 9(ii)(e)] was pronounced on 13

March 2002 i.e. almost a decade prior to the Respondent

filing the Bangalore Suit imd the Bangalore Section 9

Petition. The lack of bona fides of the Respondent is

writ large.

The Respondent m the Bangalore Suit sought the

following reliefs:

"(i) ***

(if) ***

(iii) issue an order of permanent injunction in

favour of the Plaintiff restraining the Defendant,

its servants, agents, representatives 'and any

claiming through or under the Defendant from

proceeding in any manner with the arbitration

under the ICC Rules pursuant to the Defendant's

Request for Arbitration to ICC or any other

communication from the Defendant to the ICC

requesting for arbitration under ICC Rules in

respect of matters arising out of or relating to the

Agreement including , the termination of

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and the Defendant by the Plaintiff or from taking

any steps for enforcement of any award made in

any such arbitration under ICC Rules;

(iv) issue an order ofpermtment injunction in · I ,

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favour of the Plaintiff restraining the Defendant

and its servants, agents, representatives and any

claiming through or under the Defendant from

getting the Agreement dated 28.01.2005 between

the Plaintiff and the Defendant

modified/substituted from the ICC in any manner

whatsoever.

(v) pass a decree of permanent i11junction in

favour of the Plaintiff and against the, Arbitral

','

Tribunal constituted by ICC under ICC Rules from I,

proceeding with the arbitration pursuant to the

Request for Arbitration dated 29.06.2011 of the

Defendant to ICC or any other communication in

this behalf from the Defendant to the ICC;

(vi) ***

(vii)***"

Evidently, the prayers of the Bangalore Suit were for all ' '

intent and purpose also identical to ·(a) the interim

application before this Hon'ble Court and (b) the

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cc ("ICC") under the ICC Rules and to restrain the

arbitral tribunal constituted under the ICC Rules

from proceeding with the arbitration pending the

disposal o(the above Suit on merits in the interest

of iustice and equitv and fair plav. The ICC

arbitration proceeding and the constitution of the

arbitral tribunal by the ICC is contrary to the

express terms of the arbitration agreement

contained in clause 20(a) of the Agreement dated

28.01.2005 between the Plaintiff and the

Defendant.

The Plaintiff prays for an ex-party ad-interim

order of temporary injunction pending notice of

the present application to the Defendant. "

[Emphasis Added] True copy of the Application

dated 5.12.2011 filed by the Respondent.in OS

8751 of 2011 before the Bangalore City Civil

Court is annexed herewith and marked as

ANNEXURE-P13 PAGES ( 580 TO 594)

07.12.2011 The Petitio11er appeared before the Bangalore Court in ' '

the Bangalore Section 9 Petition and sought time to file

its objections.

~--~~~~~~--~~-~~~~----~~~~~ 14.12.2011 The Petitioner filed its objections to the Bangalore

Section 9 Petition. In its objections, the Petitioner inter

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oo· alia stated that "(s[ince the seat of arbitration is New

Delhi. it is onlv ·the Courts at Delhi which have . '

supervisory jurisdiction over the arbitration and could

entertain a Petition undeiSection 9 o(the Act". The

Petitioner also stated that the Bangalore Court lacked

jurisdiction to entertain the Bangalore ' Section 9

Petition.

. In relatiop. to the reliefs sought by the Respondent in the. ; ' '

' llangalore Section 9 Petition, the Petitioner stated that

the reliefs (stay of arbitration proceedings and challenge

. to the jurisdiction to the arbitral tribunal) sought were in

the teeth of the judgment of this Hon'ble Court in

Bhatia and therefore, were barred by law and could not

be granted by the Bangalore Court. True copy of the

objections datedf.12.2011 filed by the Petitioner in AA

483 of 2011 before the Bangalore City Civil Court is

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annexed herewith and marked as ANNEXURE-Pl4

PAGES ( 595 TO 616)

03.012012 The Petitioner filed an application under Order VII Rule

I I of the CPC seeking rejection of the Respondent's

Banga!ore Suit (O.S. No. 8751 of201l) on the ground

inter alia that the Suit was barred by law and that the

Bangalore Court did not have jurisdiction in view of the

j Seat of Arbitration being at N e~ Delhi. True copy of an

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EE application dated 03.01.2012 filed by the Petitioner

under Order VII Rule 11 of the Civil Procedure Code,

1908 in O.S 8751 of 2011 before the Bangalore City

Civil Court is annexed herewith and marked as


16.01.2012 The Respondent filed its objections to the Petitioner's

Application under Order VII Rule 11 of the CPC. In the

said objections, the Respondent purportedly stated that

I . . .. . ' . , it was unsure about the maintainability of the Bangalore

Section 9 Petition and whether the Bangalore Court had

the "power to grant the reliefs prayed for". The

Respondent .in these objections stated:. "the. Plaintiff

having no choice, has also filed this suit. Assuming. but

without admitting that this 1/on 'hie Court does not

have the power to grant the relids praved for in A.A .

No. 483/2011. then the reliefs sought in this suit bv the

Plaintiff would have to be considered. " [Emphasis

Added]

Without prejudice to the Hon'ble Delhi High Court

having exclusive jurisdiction, it is humbly submitted

that the above avennent makes it evident that the

Bangalore Section 9 Petition was simply a "hedge"

mad~ by the Respondent, since it very well knew :that

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FF Section 9 Petition was not maintainable from its

inception.

Therefore, in addition to the fact that the Bangalore

Section 9 Petition was not maintainable to start with, it

was not a bona fide petition. It was simply an abus~ of

process of the Court. True copy of the objection dated

16.01.2012 filed by the Respondent to the application

under Order Vll Rule 11 of Civil Procedure Code, 1908

in O.S 8751 of2011 before the Bangalore City Civil

Court 1s annexed herewith and marked as


09.04.2012 This Hon'ble Court while considering the Section 11

Petition, stayed the arbitration proceedings under

Article 142 of the Constitution of India. True copy of

the Order dated 09.04.2012 passed by this Hon'ble

Court in Arb. Petition No. 20 of 2011 is annexed

herewith and marked as ANNEXUR.E-P17 PAGES

( 643 TO 644)

09.04.2012 During this period, the Bangalore Section 9 Petition was

to listed 10 (ten) times before. the Bangalore Court. In none

10.05.2013 of these hearings, did the Respondent ever press its

Bangalore Section 9 Petition i.e. a petition purporting to

I request for urgent interim relief. This was simply

'-----~---__t:use the Respondent always knew that the Bangalore

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HH that the Supreme Court declined to grant relief to

Antrix in the said petition. The al!/)lication tiled bv

4_ntrix in that petition contained prayers that were no

different from those in the Section 9 petition filed by it

in the Citv Civil Court at Bangalore ... ". [Emphasis

Added]

Without prejudice to the fact that the Bangalore Section

9 Petition was not maintainable and barred by law, the ' '

Peti\ioner submits that the decision by this Hon:ble

Court (between the same parties) gives rise to Res

Judicata and consequently, bars re-agitation of the same

issues. It is well settled that a detennination of an issue

or issues between the san1e parties, also gives rise to an

issue estoppel.

Without prcj udice to the above, the Petitioner humbly

submits that once the Hon'ble Supreme Court rejected

fue Section 11 Petition and the Review Petition filed by

the Respondent,· i.e. categorically refused to grant the

prayers sought by the Respondent (i.e. staying the

arbitration proceedings and challenging the jurisdiction

of the arbitral tribunal), it is impermissible for tile

Respondent to continue to seek those reliefs (which

were impermissible in the first place as held in Bhatia)._

This conduct of the Respondent_ amounts to tile worst


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H kind of forum shopping and it is therefore evident that

the Bangalore Section 9 Petition is nothing but a gross

abuse of process of the Court. True copy of the Order

dated I 0.05.2013 passed by this Hon'ble Court in Arb.

Petition 20 of 20ll.is annexed herewith and marked as

ANNEXURE-PIS PAGES ( 645 TO 677)

10.05.2013 Once the judgment of this Hon'ble Court dated 10 May I •.

to 2013(reported as (2014) 11 sec 560) and a copy of the

28.08.2013 same was filed before the Barigalore Court, the

Respondent on one occasion sought for an adjournment

of the Bangalore Section 9 Petition on the ground that a

Review Petition was 'going to be filed'. On another

I occasion, the Respondent once agam sought an I

I adjournment in the Bangalore Section 9 Petition on the

ground that the Review Petition has been filed.

The Petitioner submits that had the Respondent been

serious about pursuing the Bangalore Section 9 Petition,

it would have argued the same on merits. However, as

mentioned above, since the Bangalore Section 9 Petition

was not a bona fide petition, was not maintainable and

was barred by law, the Respondent persistently

requested for an adjournment in the hope that this

Hon'ble Court would grant the same reliefs as it had

sought in the Bangalore Section 9 Petition.

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kind of forum shopping and it is therefore evident that

the Bangalore Section 9 Petition is nothing but a gross

abuse of process of the Court. True copy of the Order

dated 10.052013 passed by this Hon'ble Court in Arb. ;!" ,•

l~ ' ' Petition 20 of 201-his annexed herewith and marked as

ANNEXURE-Pl8 PAGES ( 645 TO 677)

10.05.2013 Once the judgment of this Hon'ble Court dated 10 May

to 2013 (reported as (2014) 11 sec 560) and a copy of the

28.08.2013 same was filed before the Bangalore Court, the

Respondent on one occ~sion sought for an adjournment . . .

of the Bangalore Section 9 Petition on the ground that a

Review Petition was 'going to be filed'. On another

occaswn, the Respondent once agam sought an

!ldjournment in the Bangalore Section 9 Petition, on the . . .. ' ~ . '

. ground thattheRc\riew Petition has been filed. ',,'

The Petitioner .submits that fiad the Respondent been

serious about pursuing the Sangalore Section !.}.Petition, .

i.twould have argued the same on merits. ~owever, as

inentioned above, since the Bangalore Section 9 Petition . . '

was not a bona jide petition, was not maintainable and

was barred by law, the Respondent persistently

requested for an adjournment in the hope that this ·,

Hon 'ble Court would grant the same reliefs as it had

sought in the Bangalore Section 9 Petition.

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JJ . 29.08.2013 This Hon'ble Court dismissed the Review Petition filed

by the Respondent under Article 137 of the Constitution

of India ~gainstthe Judgment dated 1 o May 2013 passed

in the Section 11· Petition (Arb. Pet. No. 20/2011).

The Petitioner submits that even after the dismissal of

the Review Petition, the Respondent continued to seek

adjournments in ~he Bangalore Section 9 Petition on one . ·,o.]_ ~·!:~ ..

ground or another. True copy of the order dated

1 29.08.2013 passed by this Hon'ble Court dismissing the

I I Review ·Petition No. 1733 of 2013 filed by the . .

Respondent IS annexed herewith and , marked as

ANNEXURE·Pl9 PAGES ( 678 TO 679)

f-------- ·-1--------~---- ·------~-------1 15.12.2014 Pursuant to the 10 May 2013 judgment by this Hon'ble

to Court, the arbitration proceedings continued, and the

19.12.201 4 Respondent fully participated in these proceedings.

Further, in the arbitration proceedings, the Respondent

again challenged the jurisdiction of the arbitral tribunal.

On the basis of this chailenge, the first issue that was

framed and decided by the arbitral tribunal was whether

it had jurisdiction to "hear and determine this dispute?".

14.69.2015 The arbitral tribuna] constitU.t~d under the ICC Rules

rendered an arbitral award in favour of the Petitioner in

the sum of US$562.5 million with simple interest at

18% from the date of award to the date of payment. ' · ' I· · I .

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US$ LIBOR plus 4% simple interest ("ICC Award").

As regards the issue of jurisdiction raised by the

Respondent, the arbitral tribunal rejected the same and

held that it had jurisdiction to adjl,ldicate the dispute

between the Parties. True copy of the Arbitral Award

' • I '• •'

J dated 14.09.2015 passed by the arbitral tribunal

constituted under ICC is annexed herewith and marked

as ANNEXURE-P20 PAGES ( 680 TO 897) . ' ' ' . .

22.09.2015 The Petitioner sent a letter to the Respondent

demanding payment, in full, of the amounts awarded to

the Petitioner by the ICC Award within 5 business days.

True copy of the lettei· dated 22.09.2015 issued by the

Petitioner 1s annexed herewith and marked as


28.09.2015 Since the amount awarded in favour of the Petitioner

was a sm~ that the Respondent was incapable of paying

in view of its financial situation as evident from (a) the

Respondent's Annual Reports that are freely available

on its website (http://www.antrix.eo.in/about-

us/financials); (b) the press release of the Press

Information Bureau's dated 6 August 2015 and (c) the

Respondent's net worth fo~ the Financial Year ending

2014-2015 was merely INR 1238.46 Crores (which is

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'll just a fraction of the amount awarded to the Petitioner

by the ICC Award), in order to ensure that the ICC

award is not reduced to a paper decree and that the

Petitioner is not ultimately denied the fruits of a

successful arbitral award, the Petitioner filed a petition

. under Section 9 of the Arbitration Act before the

Hon'ble Delhi High Court i.e. the Court that has

exclusive jurisdiction in view of the Seat of arbitration

having been designated by the Parties o\!S New Delhi,

being OMP (I) 558/2015 (re-classified as O.M.P. (I)

(COMM) 128/2017) ("Delhi Section 9 Petition")

seeking the following prayers:

"(a) Direct the Respondent to secure the amount

awarded by the Arbitral Tribunal by the Award

, dated 14 September 2015 a1ong with further

interest of 18% per annum from the date of the

Award until the date of full payment of security _

before this Hon 'ble Court by furnishing a Bank

Guarantee, or attaching all bank accounts,

receivables, all other moveable assets and

immoveable assets of the Respondent;

(b) gT'ant ex-parte ad-interim reliefs in terms of

prayer (a);" True copy of the Petition being OMP

(I) 558 of 2015 dated 25.09.2015 filed by the

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MM Petitioner under Section 9 of the Arbitration and

conciliation Act, J 996 before the Hon'ble Delhi

High Court is annexed herewith and marked as ·

ANNEXURE~P22 PAGES ( 901 TO 914)

09.10.2015 Ai'i:er not having pursued the Bangalore Section 9

Petition for several years, the Respondent, subsequent

to the Petitioner having filed the Delhi Section 9

Petition, filed an application under Order VI Rule 1 7 of

the CPC seeking to amend the Bangalore Section 9

Petition and sought to add a prayer, which is yet again,

contrary to law. The said prayer reads as llll:der:

"(iii)(a) restrain the Respondent and

an:Vone claiming through or under it

including its servants. agents and

. assimi. from taking l.mv steps to ,. '' '·· . . . . impl~'l'leni and/or en(Orce the Pl!fPDrted award dated 14.09.2015

passed in ICC Arbitration Case No.

18051/CYK against the Applicant

herein"

While the Bangalore Section 9 Petition was itself not

maintainable, even this amendment applicati,;m was ' '

impermissible m law, since the Courts have no

jurisdiction or power to S~tay an arbitration, much less an

award being acted upon · under Section 9 of the

· Arbitration Act, ·which can only be invoked in aid of

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NN - arbitrauon and 11ot for the opposite reasons as the

Respondent is seeking to do in the present case.

09.10.2015 At the first hearjng of the Delhi Section ,9 Petition, the,

Respondent, despite well knowing that the Hon'ble

Delhi High Court had exclusive jUrisdiction in view of

the designation of the "Seat" of arbitration, stated that. . . '

Hon'ble Delhi High Court "lacks the territorial

jurisdiction to entertain and try" the Delhi Section 9

Petition. True copy of the Order dated 09.10.2015

passed by the Hon'ble Delhi High Court in OMP (I) 558

of 2015 1s annexed herewith and marked as


f--c--:-----+-.-~-------------------------1 19 .11.20 I 5 During the pendency of the Delhi Section 9 Petition,

including the adjudication on the issue of jurisdiction

(Section 42) raised by the Respondent itself, the

Respondent filed a petition in the Bangalore Court

under Section 34 of the Arbitration Act, being AS. No.

174/2015 ("Bangalore Section 34 Petjtion") .

. As stated above, in view of the decision of this Hon'ble

Court in Datawind and subsequently in Emkay and

Hardy Exploration, it is only the Hon'ble Delhi High

Court that has exclusive jurisdiction to entertain any

petition in relation to the ICC Award. Therefore, the

Bangalore Section 34 Petition.ought.to have been filed _

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PP Section 9 Petition and a deliberate misreading of

Section 42 of the Arbitration Act in an attempt to clothe

the Bangalore Court with jurisdiction to entertain its

Bangalore Section 34 Petition.

The Petitioner submits that without prejudice to the fact

that the Hon'ble Delhi High Court has exclusive

jurisdiction to entertain any and all applications under

the Arbitration Act in view of Datawind and

subsequently in Emkay and Hardy Exploration, Section

42 has no application to the present case. It is submitted

that Section 42 of the Arbitration Act has no application

to cases, where the parties have agreed to a "Seat" of

arbitration. This is because Section 42 itself

contemplates the possibility of there being more than

one Court available for the parties to approaeh. Clearly,

Section 42 cannot apply where the parties have

designated a Seat of arbitration and consequently, a

Court exercising exclusive jurisdiction.

The~efore, both the Bangalore Section 9 Petition and the ' '. ' ' ' . ' .

Bangalore Section 34 Petition, were filed by the

Respondent in a Court that had no jurisdiction. True I I I ' I ' ' ! ,

copy of the Petition being AS. No~ 174 of2015 elated

19.11.20 1 S filed by the Respondent under Section 34 of

the Arbitration and Conciliation Act, 1996 before the

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QQ Bangalore City Civil Court is annexed herewith and

marked as ANNEXURE- P24 PAGES ( 917 TO 1124)

30.03.2016 At the hearing of the Delhi Section 9 Petition, the

Petitioner gave an offer to the Respondent that in case • r 1 •

the Bangalore Section 34 Petition and the Bangalore

Section 9 Petition filed by the Respondent in the

Bangalore Court, are transferred and heard along with

the Delhi Section 9 Petition, the Petitioner would not

raise objections of territorial jurisdiction and limitation.

The Respondent sought time to take instructions in this

regard. True copy of the Order dated 30.03.2016 passed

by the Hon'ble Delhi High Court in OMP (I) 558 of

20 15 is armexed herewith and marked as ANNEXURE

- P25 PAGES ( 1125 TO 1126 )

18.04.2016 In relation to the Petitioner's offer of 30 March 2016,

the Respondent's counsel stated that the offer was not

acceptable to the Respondent. True copy of the Order

dated 18.04.2016 passed by the Hon'ble Delhi High

Court in OMP (I) 55 8 o:f 20 IS is annexed herewith arid

marked as ANNEXURE- P26 PAGE ( 1127 )

14.12.2016 The Learned Single Judge of the Hon'ble Delhi High

Court reserved its Order on _-the Respondent's

preliminary objection to the maintainability of the Delhi

Section 9 petition. The Petitioner would like to highlight

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RR that arguments before the Learned Single Judge ofthe

Hon'ble Delhi High were confined only on the

maintainability of the Delhi Section 9 Petition and not

the merits of the Delhi Section 9 Petition. ,True copy of

the Order dated 14.12.2016 passed by the Hon'ble Delhi

High Court in OMP (I) 558 of2015 is annexed herewith

and marked as ANNEXURE-P27 PAGES ( 1128 TO

1129)

05.01.2017 The Petitioner filed an applicf!tion in the Respondent's

Ba:ngalore . Section 34 Petition before the· Bangalore I Court seeking deferment of the hearing of the Bangalore

Section 34 Petition.

' ·-=-:---,---:-~----:--:------~----=-----=--:---:----------:::-----:---~ 07 _ 0 1. 20 I 7 The Bangalore Court decided the application for

deferment in favour of the Petitioner and accordingly,

deferred the hearing of the Bangalore Section 34

Petition. True copy of the Order dated 07.01.2017

passed by the Bangalore City Civil Court in A.S No. 17 4

or 201$, is annexed herewith and marked as ANNEXURE-P28 PAGES ( 1130 TO 1133)

07.02.2017 The Respondent challenged the order dated 07 January

2017passed by the Bangalore Court in the Bangalore

Section 34 Petition before the Hon'ble Kamataka High

Court in Writ Petition No. 3305 of2017.

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ss 21.02.2017 The Bangalore Court while deciding another application

filed by the Petitioner for deferment of the Bangalore

Section 9 Petition, was pleased to defer those

proceedings. This order was not challenged by the

Respondent. True copy of the Order dated 21.02.2017

passed by the Bangalore City Civil Court in A.A No.

483 of 2011 is annexed herewith and marked as


28.02.2017 The Learned Single Judge of the Hon'ble Delhi High

rejected the Respondent's objection . as to the

maintainability of the Delhi Section 9 Petition ("Single

Judge Order").

In the context of the present petition, it is extremely

pertinent to note that the Single JUdge· Order merely

dealt with the jurisdictional objection raised by the

Respondent. The Single Judge Order does/did not, in ' ' • • • ' I •

any way, deal with the merits of the Delhi Section 9

Petition. This is evident from paragraphs 23, 55 and 57

of the Single Judge Order which reads as under:

"23. Since arguments have at this stage been

addressed onlv on the issue ofmaintainabilitv of

tpe present uetj@n. the Court js not dealing with

the merits.

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TT 55. However. it is not as ifAntrix would be

deprived ofanv remedv .as a result As far as the

present petition is concerned, it can still defend it

on merits. As &r as the challenge to the Award js

concerned. Antrix can withdraw the petition filed

by it in Bangalore and file another one in this

Court ...

57. List on 21st March 2017 for hearing on

merits. " [Emphasis Added]

On the issue of maintainability of the Petitioner's Delhi

Section 9 Petition, the Single Judge Order held that the

Delhi Section 9 Petition was maintainable, since the bar

I under Section 42 of the Arbitration Act to exclude the

juri~diction of the Hon 'ble Delhi High Court, was

inapplicable.

·In relation to the Respondent's prayers m the •' •'I , ..

Bangalore Section 9 Petition (which as stated above,

were identical to those before this Hon'ble Court), the

Single Judge Order held that "There is merit in the

contention o{Devas 'that even otherwise the pravers

in AA No. 483/2011 bvA.ntrix under Section 9 o(the

' ' Act cou{i not have been entertained or g,rantefl. b~

' ' ' ' '

; the Citv Civil Court in Bangalore .... None ofthe

relief§ IJ.YU~ed (pr in Antrix's Section 9 eetition is I

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uu capable of being granted. With the passage of time,

the. prayers zn the. said petition , have become

academic. The Court should not have to decide

academic questions Which will defeat the object of

' ' - ' ' the Act to eipedite erOceedings. '' ·

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"47. There is merit in the contention of

Devas that even otherwise the pravers in AA No.

483/2011 bv Antrix under Section 9 ofthe Act

could not have been entertained or granted bv the

Cih: Civil Court in Bangalore. In Bhatia (supra),

the Supreme Court explained that Section 9 of the

Act did not permit "any or all applications. It only

·permits applications for interim measures

mentioned in clauses (i) and (ii) thereof Thus

there cannot he applications under Section 9 for

stav of arbitral proceedings or to challenge the

existence or validitv of the arbitration

agreements or the jurisdiction o(the Arbitration

Tribunal. " ...

" '''

48. This, therefore. knocks out pravers (i)

and (iii) of AA No. 48312011. The Citv Civil

£ourt at Bangalore could not have. at anv S(aee.

and certainlY not at this stage, grant pravers (i)

and (jiil. As [ar as prr!:J!_er (jii is concerned, with


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vv the Award having been pronounced bv the AT,

even that relie( has become inftuctuinis. The

reliance placed by Antrix on the decision in BLB

Institute of Financial Markets Ltd. v. Ramakar Jha

2008 SCC OnLine Del 1075 is to no avail as the

stage of the present proceedings is different. None

of the reliefs prayed tor in Antrix's Section 9

petition is capable of being granted With the

passage of time, the prayers in the said petition

have become academic. The Court should not

have to decide academic que'slions which will

defeat the obiect of the Act to expedite

proceedings. "

49. While the Court is refraining from going

into the aspect of 'issue estoppel' as a result of the

averments by Antrix in the petition under Section

11 before the Supreme Court, the (act remains

that the Supreme Court declined to grant reliefto

Antrix in the said petition. The application fild ,

bv Antrix in that petition contained pravers that

were no different from those in the Section 9

netition tiled bv it in the Citv Ciyil Court at _

Bqngalore, as the following table reveqls:"

[Emphasis Added]

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XX" 16.03.2017 The Respondent filed an appeal purportedly under

Section 13(1) of the Commercial Courts, Commercial

Division and Commercial Appellate Division of High

Courts Act, 2015 ("Commercial Courts Act"), being

FAO (OS) (Comm) 67/2017, against the Order dated28

February 2017 passed by the Learned Single Judgeof

the Hon'ble Delhi High Court ("DB Appeal").

As regards the maintainability of the DB Appeal, the

Respondent's pleaded case in the DB Appeal was that

in view of the judgments of this Hon 'ble Court in Shah

Babula/ Khimji v. Jayaben D Kania, (1981) 4 SCC 8

("Khimji") and Midnapore People's Cooperative Bank

v. Chinulal Nanda, (2002) 5 SCC 399, the Single Judge

Order fell within the ambit and meaning of the word

'judgment' and therefore, appealable in terms of Section

13 of the Commercial Courts Act. The Respondent's

pleadedcase in the DB Appeal also was that the proviso ' . . ' ' , ' .

to Section 13(1) of the Commercial Courts Act "is not

exhaustive of the appeals against judgment/decision

that may be filed under the Code of Civil Procedure or

the 1996 Act".

Pertinently, the Respondent did not even plead in the

DB, .Appeal that the Single Judge Ord~r is an order . . . . ' ' . ' .

L 1 appealable under Section 37 of the Arbitration Act

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VY· (which is a complete code insofar as appeals under the

Arbitration Act are concerned).

In fact, the Respondent solely. relied on Section 13(1)

(independently and without its proviso) of the

Commercial Courts Act, to j~stify the filing of the DB

Appeal. It is submitted that the Respondent's pleading

is not only incorrect in law but has also been rejected. by

this Hon'ble Court, the Hori'ble Delhi High Court

(Division Benches) and other High Courts.

The Appellant submits that the Commercial Courts Act

has not vested the Respondent with any alleged right to

appeal. Therefore, an appeal under Section 13(1) will be

maintainable only against those orders that have been

specifically enwnerated under Section 3 7 of the

Arbitration Act, in view of the proviso to Section 13(1)

of the Cpmmercial Courts Act. Accordingly, the DB

Appeal was not maintainable. True copy of the Appeal

being FAO (OS) (Comm.) 67 of2017 dated 16.03.2017

filed by the Respondent under Section 13 of the

Commercial Courts, Commercial Division and

Cormnercial Appellate Division of High Court Act,

2015 before the Hon'ble Division Bench of the Hon'ble

Delhi High Court is annexed herewith and marked as


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zz 08.05.2017 Pursuant to the decision of this Hon'ble Court in

Datawind (delivered on 19 April 20 17), the Petitioner

filed an. application (CM Application No. 17730/2017),

j seeking dismissal of the DB Appeal on the ground that

this Hon'ble Court in Datawind had clarified that the

Courts located at the Seat of arbitration have exclusive

jurisdiction in relation to the arbitration agreement

between the parties. True copy of the application being

CM Application No. 17730 of 2017 filed by the I • • • • • •

Petitioner dated 08.05.2017 before the Hon'ble Delhi

High Court in FAO (OS) (Comm.) 67 of 2017 is

annexed herewith and marked as ANNEXuRE-P3l

PAGES ( 1249 TO 1270 )

09.05.2017 At the hearing of the DB Appeal, the Hon'ble Delhi

High Court passed an order expressing the opinion that

the Respondent (herein) may consider the feasibility of

(a) withdrawing the proceedings pending before the

Bangalore Court and (b) without prejudice to the all

substantive contentions urged in those proceedings j

including · with respect to the constitution of , the

Tribunal, urge the same in accordance with law: in the

Section 34 proceedings which may be lodged on the file

of the Hon'ble Delhi High Court. The counsel appearing

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AAA for the Respondent submitted that he would like to

secure written instructions in this regard.

Further, the Hon'ble Delhi High Court directed that both

parties should request for an adjournment of the

proceedhi.gs · before the concerned Courts i.e .. the

Bangalore 34 Petition, the Bangalore Section 9 Petition

and the Delhi Section 9 Petition. Accordingly, the

parties sought adjournments in these proceedings. True

copy of the order dated 09.05.2017 passed by the

I Hon'ble Division Bench of the Hon'ble Delhi High

Court in FAO (OS) (Comm.) 67 of 2017 is annexed

herewith and marked as ANNEXURE-P33 PAGES (

1271 TO 1272)

06.12.2017 The Division Bench of the Hon'ble Delhi High Court

reserved its judgment in the DB Appeal. True copy of .

the Order dated 06.12.2017 passed by the Hon'ble

Division Bench of the Hon'ple Delhi High Court m

FAO(OS)(Comm.) 67 of2017 is annexed herewith and

marked as ANNEXURE-P34 PAGES ( 1273)

30.05.2018 The Division Bench of the Hon'ble Delhi High Court

allowed the Respondent's DB Appeal and set aside the

order dated 28 February 2017 passed by the Learned

Single Judge m the Delhi Section 9 Petition .

("Impugned Order").

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BBB 24.07.2018 Pursuant to the Impugned Order, the Hon'ble Delhi

High Court closed the Delhi Section 9 Petition granting

liberty to the Petitioner to revive the same.

01.10.2018 Hence, this Special Leave Petition.

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1 IN THE HIGH COURTOF DELHI AT NEW DELHI

Reserved on: 06.12.2017.

Pronounced on : 30.05.2017

FAO (OS) fCONMl67120171 C.M. APPL.11214 & 17730/2017

ANTRIX CORPORATION LTD. . .. Appellant

Through: Sh. Gourab Banerji, Sr. Advocate with Sh. Aljun

Krishnan, Ms. Aakanksha Kaul, Sh. Ankur Singh, Sh.

· Saket Sikri and Sh. Sahil Jagotra, Advocates.

versus

DEVAS MULTIMEDIA PVT. LTD. ... Respondent

CORAM:

Through: Sh. Rajiv Nayyar, Sr. Advocate; Sh. S~deep

Sethi, Sr. Advocate, Sh. Ciccu Mukhopadhyay, Sr.

Advocate with Sh. Omar Ahmad, Sh. Saurabh Seth. Sh.

Vikram Shah apd Sh. Sumer Dev Seth, Advocates.

HON'BLE MR. JUSTICES. RA VINDRA BHAT

HON'BLE MR. JUSTICE YOGESH KHANNA

%

MR. JUSTICES. RA VINDRA BRAT

Facts

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2 L This appeal under Section 13(1) of the Commercial Courts,

Commercial Division and Commercial Appellate, Division of High

Courts Act, 20!5 (hereafter "CC Act") impugns the decision of a

Learned Single Judge of this Court dated 28.02.2017 in OMP (I) 558

/2015.

2. The facts are that on 28.01.2005 an agreement was entered into

at Bangalore for the Lease of Space Segment Capacity on ISRO/Antrix '

S·Band Spacecraft between Devas (ref~rred to hereafter by its nanie,-

an incorporated company registered office at Bangaiore), and the

appellant (hereafter "Antrix"), a_ Union Government of India ' . ' ' .. ' I I

undertaking also with its registered office at Bangalore. Article 20 of

the agreement provided for arbitration as- the method for resolving

disputes arising out of the agreement.

3. On 17.02.2011, the Union Cabinet Committee on Security

("CCS") resolved to deny orbital slot in S·band to Antrix for any

commercial activities and to direct annulment of the Agreement (dated

28.01.2005). Antrix consequently terminated the agreement by letter

of tennination issued to Devas, dated 25.02.201 L Subseq)lently,

invoking the arbitration clause, on 29.05.2011, Devas approached the

International Chamber of Commerce (Paris, hereafter "ICC")

Documents

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