# Devi Prasad Mishra v. M/S Nayara Energy Limited (Earlier Essar Oil Limited)

- **Citation:** (2025) 7 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-15
- **Case number:** Civil Misc. Arbitration Application No. 2 of 2024
- **Bench:** Jasptreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-prasad-mishra-v-m-s-nayara-energy-limited-earlier-essar-oil-limited-53672
- **Pages:** 12

## Headnote

Whether, in a petition under Section 11(6)
of the Arbitration and Conciliation Act,
1996, for appointment of an arbitrator,
the bench of High Court at Lucknow has
jurisdiction to entertain the application
when the arbitration clause provides that
the proceedings "shall be held in Mumbai"
and the agreement also contains an
exclusive-jurisdiction
clause
conferring
jurisdiction on the Courts at Mumbai only.

Headnotes
Arbitration and Conciliation Act, 1996 - s.
11(6); ss. 20(1)-(3); s. 42 - Jurisdiction
- Seat and Venue - Effect of exclusive
jurisdiction clause - When 'venue' is to be
treated as 'seat'

HELD:
Clauses 21 and 22 of the franchisee agreement-
read
together-
unambiguously
designate
Mumbai as the place where the arbitration
proceedings "shall be held"- the agreement
"shall be subject to the exclusive jurisdiction of
Courts at Mumbai only"-once a seat of
arbitration is fixed, the Courts of that seat alone
have supervisory jurisdiction over the arbitral
proceedings to the exclusion of all others. [Paras
16-18, 24-26]

Applying the test in B.G.S. S.G.S. Soma JV v.
NHPC Ltd., (2020) 4 SCC 234, and approved in
Arif Azeem Co. Ltd. v. Micromax Informatics
FZE, 2024 SCC OnLine SC 3212-where the
agreement mentions only one place- no contrary
indication-that place becomes the juridical seat
even if termed as 'venue'- Hence, 'Mumbai',
being the only place specified, constitutes the
seat of arbitration. [Paras 24-26]

Petition was therefore not maintainable before
the Allahabad High Court (Lucknow Bench)-
Dismissed with liberty to the petitioner to
approach the competent Court at Mumbai. [Para
29] (E-14)

Case Law Cited
Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd., (2017) 7
SCC 678 - relied on; B.G.S. S.G.S. Soma
JV v. NHPC Ltd., (2020) 4 SCC 234 -
followed; Brahmani River Pellets Ltd. v.
Kamachi Industries Ltd., (2020) 5 SCC 462
- applied; Arif Azeem Co. Ltd. v. Micromax
Informatics FZE, 2024 SCC OnLine SC
3212 - approved; State of W.B. v.
Associated Contractors, (2015) 1 SCC 32
-
distinguished;
Aarka
Sports
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
903
Management (P) Ltd. v. Kalsi Buildcon (P)
Ltd., 2020 SCC OnLine Del 2077 - not
applicable;
Faith
Constructions
v.
N.W.G.E.L. Church, 2025 SCC OnLine Del
1746 - not followed.

List of Acts / Statutes
Arbitration and Conciliation Act, 1996; Code of
Civil Procedure, 1908

List of Keywords
Arbitration; Seat of arbitration; Venue vs. Seat;
Exclusive jurisdiction clause; Section 11(6)
petition;
Territorial
jurisdiction;
Franchisee
agreement; Mumbai as seat; Supervisory
jurisdiction; Arbitral proceedings; Jurisdiction
bar.

Case Arising From
Application under Section 11(6) of the
Arbitration and Conciliation Act, 1996 for
appointment of a sole arbitrator arising
out of Franchisee Agreement dated 18
January 2018 between the parties.

Appearance for Parties

For the Applicant : Shri Pratham Mehrotra, Shri
Manish Mehrotra, Shri Girish Chandra Sinha, Shri
Dhirendra Singh, Shri Mayank Sinha.

For the Respondent : Shri Kumar Ayush.

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES
time, there was no question of appeal being
abated.

17. I am of the view that the court
below
has
erroneously
rejected
the
application filed by the appellant and the
same is liable to be set-aside.

18. In view of the above, the order
dated 10.03.2021 passed by the appellate
court rejecting the application (paper 55ka2), in Civil Appeal No. 30 of 2012, is
hereby set-aside and the application (paper
55Ka-2) filed by the petitioner/appellant
seeking amendment, is allowed.

19. Accordingly, the writ petition is
allowed.
----------
(2025) 7 ILRA 902
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2025

BEFORE

THE HON'BLE JASPTREET SINGH, J.

Civil Misc. Arbitration Application No. 2 of 2024

Devi Prasad Mishra ...Applicant
Versus
M/S Nayara Energy Limited (Earlier Essar
Oil Limited) ...Respondent

Counsel for the Applicant:
Girish Chandra Sinha, Dhirendra Singh,
Manish Mehrotra, Mayank Sinha

Counsel for the Respondent:
Kumar Ayush

Issue for Consideration
Whether, in a petition under Section 11(6)
of the Arbitration and Conciliation Act,
1996, for appointment of an arbitrator,
the bench of High Court at Lucknow has
jurisdiction to entertain the application
when the arbitration clause provides that
the proceedings "shall be held in Mumbai"
and the agreement also contains an
exclusive-jurisdiction
clause
conferring
jurisdiction on the Courts at Mumbai only.

Headnotes
Arbitration and Conciliation Act, 1996 - s.
11(6); ss. 20(1)-(3); s. 42 - Jurisdiction
- Seat and Venue - Effect of exclusive
jurisdiction clause - When 'venue' is to be
treated as 'seat'

HELD:
Clauses 21 and 22 of the franchisee agreement-
read
together-
unambiguously
designate
Mumbai as the place where the arbitration
proceedings "shall be held"- the agreement
"shall be subject to the exclusive jurisdiction of
Courts at Mumbai only"-once a seat of
arbitration is fixed, the Courts of that seat alone
have supervisory jurisdiction over the arbitral
proceedings to the exclusion of all others. [Paras
16-18, 24-26]

Applying the test in B.G.S. S.G.S. Soma JV v.
NHPC Ltd., (2020) 4 SCC 234, and approved in
Arif Azeem Co. Ltd. v. Micromax Informatics
FZE, 2024 SCC OnLine SC 3212-where the
agreement mentions only one place- no contrary
indication-that place becomes the juridical seat
even if termed as 'venue'- Hence, 'Mumbai',
being the only place specified, constitutes the
seat of arbitration. [Paras 24-26]

Petition was therefore not maintainable before
the Allahabad High Court (Lucknow Bench)-
Dismissed with liberty to the petitioner to
approach the competent Court at Mumbai. [Para
29] (E-14)

Case Law Cited
Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd., (2017) 7
SCC 678 - relied on; B.G.S. S.G.S. Soma
JV v. NHPC Ltd., (2020) 4 SCC 234 -
followed; Brahmani River Pellets Ltd. v.
Kamachi Industries Ltd., (2020) 5 SCC 462
- applied; Arif Azeem Co. Ltd. v. Micromax
Informatics FZE, 2024 SCC OnLine SC
3212 - approved; State of W.B. v.
Associated Contractors, (2015) 1 SCC 32
-
distinguished;
Aarka
Sports
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
903
Management (P) Ltd. v. Kalsi Buildcon (P)
Ltd., 2020 SCC OnLine Del 2077 - not
applicable;
Faith
Constructions
v.
N.W.G.E.L. Church, 2025 SCC OnLine Del
1746 - not followed.

List of Acts / Statutes
Arbitration and Conciliation Act, 1996; Code of
Civil Procedure, 1908

List of Keywords
Arbitration; Seat of arbitration; Venue vs. Seat;
Exclusive jurisdiction clause; Section 11(6)
petition;
Territorial
jurisdiction;
Franchisee
agreement; Mumbai as seat; Supervisory
jurisdiction; Arbitral proceedings; Jurisdiction
bar.

Case Arising From
Application under Section 11(6) of the
Arbitration and Conciliation Act, 1996 for
appointment of a sole arbitrator arising
out of Franchisee Agreement dated 18
January 2018 between the parties.

Appearance for Parties

For the Applicant : Shri Pratham Mehrotra, Shri
Manish Mehrotra, Shri Girish Chandra Sinha, Shri
Dhirendra Singh, Shri Mayank Sinha.

For the Respondent : Shri Kumar Ayush.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Pratham Mehrotra and
Shri Manish Mehrotra, learned counsel for
the petitioner and Shri Kumar Ayush, learned
Counsel appearing for the respondent.

2. The instant petition has been preferred
under Section 11(6) of the Arbitration &
Conciliation Act, 1996 (hereinafter referred to
as Act, 1996) seeking appointment of a sole
Arbitrator to resolve the disputes having arisen
between the parties, emerging from a franchisee
agreement dated 18.01.2018.

3. Submission of the learned counsel for
the petitioner is that a franchisee agreement was
executed initially between Essar Oil Ltd. and
the petitioner. In furtherance of the said
agreement, the petitioner invested a sum of
Rs.1.5 crores and odd to establish a petrol
pump. It is the case of the petitioner that since
Essar Oil Ltd. is a bulk supplier to the Indian
State Controlled Petroleum Companies, hence
it colluded with the local companies, as a
consequence, the retail price of petrol and
petroleum products were dearer at the Essar
Petrol Pump in comparison to the pumps
operated by the Government Control Petroleum
Company.

4. It is also stated that Essar Oil Ltd.
established another local company, namely,
M/s. Nayara Energy Ltd. and the local business
of petrol pumps was merged in the said
company and M/s. Nayara Energy Ltd. stepped
into the shoes of Essar Old Ltd. and took over
the management and control of the erstwhile
company Essar Oil Ltd.

5. M/s. Nayara Energy Ltd., the
respondent
company
terminated
the
dealership/franchisee
agreement
of
the
petitioner by an unilateral decision dated
18.08.2023. The termination was against the
interest of the petitioner as well as in violation
of the terms as contained in the franchisee
agreement.
Since
disputes
had
arisen,
accordingly the petitioner invoked the dispute
resolution mechanism and sent a letter to the
respondent on 18.09.2023 calling upon the
respondent to resolve the same amicably
and in case if the same did not materialise,
then the petitioner also suggested a name of
the Former Judge of this Court, who may
be appointed as a sole Arbitrator and a
request was made to the respondent that it
may give its consent.

6. It is urged that despite the aforesaid
invocation of the arbitration clause, no
response was given by the respondent, as a
904 INDIAN LAW REPORTS ALLAHABAD SERIES
consequence, the petitioner was compelled
to institute the above petition and it is
urged that this Court may appoint the sole
Arbitrator exercising powers under section
11(6) of the Act. 1996.

7. Shri Kumar Ayush, learned counsel
for the respondent has raised a preliminary
objection indicating that this Court does not
have the jurisdiction to appoint the sole
Arbitrator. The crux of the submission of
the respondent is that though the franchisee
agreement was signed at NOIDA and the
dealership of the petrol pump related to
District Amethi in State of Uttar Pradesh.
However, the parties had agreed that the
arbitration proceedings will be held in
Mumbai coupled with the fact that clause
22 of the franchisee agreement provided for
an exclusive jurisdiction clause which
excluded the jurisdiction of all other Courts
including the Courts at Lucknow are vested
powers of appointment of the Arbitral
Tribunal and supervision of the arbitral
proceedings with the Court at Mumbai
only.

8. It is, thus, submitted that in view of
the fact that the parties had agreed to the
'seat' of arbitration being at Mumbai
coupled with the exclusive jurisdiction
clause, hence it is only the Courts at
Mumbai who had the jurisdiction to
appoint an Arbitrator and not this Court at
Lucknow. In support of his submission,
learned counsel for the respondent has
relied upon the decision of the Apex Court
in Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd. & others,
(2017) 7 SCC 678.

9. Shri Pratham Mehrotra, learned
counsel for the petitioner has refuted the
aforesaid submission and has primarily
urged that the parties had not agreed to fix
the 'seat' of arbitration and the entire
franchisee agreement is silent thereon. It is
further submitted that even if clause 21 of
the agreement is seen, it only refers to
Mumbai as the 'venue' and not as a 'seat'. It
is
alsosubmitted
that
the
exclusive
jurisdiction clause 22 in the agreement
refers to those disputes which are not
arbitrable for which the jurisdiction of the
regular City Civil Courts are to be invoked
and alternatively it has also been urged that
since no part of cause of action has accrued
in Mumbai, hence the parties even by
consent cannot confer jurisdiction on a
Court which has none.

10. It has also been urged by the
learned counsel for the petitioner that in a
case where the agreement is silent and it
does not indicate that the parties have
agreed on the 'seat' of arbitration, in such
circumstances, the Courts where even a
part of cause of action has accrued can
exercise its jurisdiction and the Court in
exercise of its power under section 11(6) of
the Act, 1996. Moreover, this Court in
Section 11(6) proceedings may not decide
the issue of 'seat' rather it should be left
open to be considered by the Arbitral
Tribunal in terms of Section 20(2) of the
Act, 1996.

11. It is, thus, urged that in the given
facts and circumstances, the parties had not
agreed on the 'seat' of arbitration to be at
Mumbai, hence this Court has ample
jurisdiction as the dealership was to
established at Amethi which is under the
territorial jurisdiction of this Court, hence
the petition is liable to be entertained and
the respondent has not denied the fact that
there is no arbitration clause and that there
are live and subsisting disputes between the
parties, accordingly the petition deserves to
be allowed.
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
905

12. In supported of his submissions
the learned counsel for the petitioner has
relied upon the decision of the Apex Court
in State of West Bengal and others v.
Associated Contractors (2015) 1 SCC 32, a
decision of the Delhi High Court in Aarka
sports Management Pvt. Ltd v. Kalsi
Buildcon Pvt. Ltd. 2020 SCC OnLine
Delhi 2077 and another decision of the
Delhi High Court in Faith Constructions v.
N.W.G.E.L. Church 2025 SCC OnLine
Delhi 1746.

13. The Court has heard the learned
counsel for the parties and also perused the
material on record.

14. At the outset, it may be noticed
that the parties do not dispute that there is
an arbitration clause. It is also not disputed
by the respondent that the arbitration clause
has been invoked by the petitioner, to
which there was no response from the side
of the respondent. It is also not disputed
that there are disputes between the parties.
However,
what
is
disputed
is
the
jurisdiction of this Court to entertain the
petition on the ground of lack of territorial
jurisdiction.

15. In order to examine the respective
contentions, it will be appropriate to
examine the arbitration clause as well as
the exclusive jurisdiction clause which are
clause 21 and 22 of the franchisee
agreement dated 18.01.2018. For the ease of
reference clause 21 and 22 is being reproduced
hereinafter:-

21. Dispute Resolution

"All disputes and differences of any
nature whatsoever or any claim, cross, counter
claim, or any dispute arising under or out of
this Agreement or any beach or alleged breach
of any of the covenants thereof or as to the
interpretation of any clause/provision of this
Agreement shall be resolved through mutual
discussion between the parties hereto, falling
which the same shall be referred to and finally
resolved by arbitration to be conducted in
accordance with the provisions of the Indian
Arbitration and Conciliation Act, 1996, as
amended. The arbitration panel shall consist of
a sole arbitrator o be appointed by the
company. The arbitration proceedings shall be
held in Mumbai and shall be conducted in the
English language. The award rendered by the
arbitration panel shall be final, conclusive and
binding on all parties to this agreement and
shall be subject to enforcement in any court of
competent jurisdiction. Bach party shall bear
the cost of preparing and presenting its case,
and the cost of arbitration, including fees and
expenses of the arbitrator, shall be shared
equally by the disputing parties, unless the
award otherwise provides."

22 (Governing laws and jurisdiction)
is reproduced as under:

"this agreement will be governed by
and construed in accordance with the laws of
India and shall be subject to the exclusive
jurisdiction of the courts at Mumbai only"

16. On the bare perusal of the dispute
resolution clause 21, it would indicate that the
parties had agreed that any dispute or difference
of any nature whatsoever or claim or counter
claim arising out of this agreement or any
breach of any of the covenants or
interpretation of any clause, first it shall be
resolved
through
mutual
discussions,
failing which, the same could be resolved
by referring it to a sole Arbitrator.

17. However, what is relevant to note
is the language of clause 21, which
specifically states that arbitration panel
906 INDIAN LAW REPORTS ALLAHABAD SERIES
shall consist of a sole Arbitrator to be
appointed by the company (referring to the
respondent). It further states that 'the
arbitration proceedings shall be held in
Mumbai and shall be conducted in English
language'. This sentence regarding the
proceedings to be held at Mumbai and read
in context with clause 22 as reproduced
above, indicates that the agreement will be
governed by the laws of the country and it
shall be subject to the exclusive jurisdiction
of Courts at Mumbai only.

18. In light of the aforesaid two
clauses, it is to be ascertained as to whether
the parties had agreed to fix the 'seat' of
arbitration at Mumbai or not coupled with
the fact that what could be implication of
the exclusive jurisdiction clause.

19. There are several conflicting
decisions relating to the issue of 'seat' and
'venue' of arbitration as well as whether the
parties could confer jurisdiction on a Court
who possessed none on the ground that no
part of cause of action may have accrued
within the jurisdiction of such a Court.

20. The Apex Court in Indus Mobile
(supra) had the occasion to consider this
aspect of the matter and upon perusal of the
aforesaid decision, it would reveal that the
arbitration clause contained in the instant
case was quite similar to the one which was
before the Apex Court in Indus Mobile
(supra). Similar submissions were raised
regarding vesting of jurisdiction in a Court,
which otherwise may not have any
jurisdiction in context with Section 16 to
Section 20 CPC.

21. The Apex Court considering the
submissions as well as the provisions of
law and noticing the earlier decisions, in
para 19 and 20 held as under:-

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 Sections 16
to 21 of CPC 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.

20. It is well settled that where
more than one court has jurisdiction, it is
open for the parties to exclude all other
courts. For an exhaustive analysis of the
case law, see Swastik Gases (P) Ltd. v.
Indian Oil Corpn. Ltd. [Swastik Gases (P)
Ltd. v. Indian Oil Corpn. Ltd., (2013) 9
SCC 32 : (2013) 4 SCC (Civ) 157] This
was followed in a recent judgment in B.E.
Simoese Von Staraburg Niedenthal v.
Chhattisgarh Investment Ltd. [B.E. Simoese
Von Staraburg Niedenthal v. Chhattisgarh
Investment Ltd., (2015) 12 SCC 225 :
(2016) 1 SCC (Civ) 427] Having regard to
the above, it is clear that Mumbai courts
alone have jurisdiction to the exclusion of
all other courts in the country, as the
juridical seat of arbitration is at Mumbai.
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
907
This being the case, the impugned judgment
[Datawind Innovations (P) Ltd. v. Indus
Mobile Distribution (P) Ltd., 2016 SCC
OnLine Del 3744] 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.

22. Later this issue was once again
considered in great detail by the Apex
Court in B.G.S. S.G.S. Soma JV v. NHPC
Limited (2020) 4 SCC 234 wherein the
Apex Court again considered the issue of
'seat' and 'venue' vis-a-vis Section 42 of the
Act, 1996 and the relevant paragraphs 59,
61, 81 and 82 are being reproduced
hereinafter:-

"59. Equally incorrect is the
finding in Antrix Corpn. Ltd. [Antrix
Corpn. Ltd. v. Devas Multimedia (P) Ltd.,
2018 SCC OnLine Del 9338] that Section
42 of the Arbitration Act, 1996 would be
rendered ineffective and useless. Section
42 is meant to avoid conflicts in
jurisdiction of courts by placing the
supervisory jurisdiction over all arbitral
proceedings
in
connection
with
the
arbitration in one court exclusively. This
is why the section begins with a non
obstante clause, and then goes on to state
"...where with respect to an arbitration
agreement any application under this part
has been made in a court..." It is obvious
that the application made under this part
to a court must be a court which has
jurisdiction to decide such application.
The subsequent holdings of this court,
that where a seat is designated in an
agreement, the courts of the seat alone
have jurisdiction, would require that all
applications under Part I be made only in
the court where the seat is located, and
that court alone then has jurisdiction over
the
arbitral
proceedings
and
all
subsequent applications arising out of the
arbitral agreement. So read, Section 42 is
not rendered ineffective or useless. Also,
where it is found on the facts of a
particular case that either no "seat" is
designated by agreement, or the so-called
"seat" is only a convenient "venue", then
there may be several courts where a part
of the cause of action arises that may have
jurisdiction. Again, an application under
Section 9 of the Arbitration Act, 1996 may
be preferred before a court in which part
of the cause of action arises in a case
where parties have not agreed on the
"seat" of arbitration, and before such
"seat" may have been determined, on the
facts of a particular case, by the Arbitral
Tribunal under Section 20(2) of the
Arbitration Act, 1996. In both these
situations, the earliest application having
been made to a court in which a part of
the cause of action arises would then be
the exclusive court under Section 42,
which would have control over the arbitral
proceedings. For all these reasons, the law
stated by the Bombay and Delhi High
Courts in this regard is incorrect and is
overruled.

****

61. It will thus be seen that
wherever there is an express 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
inexorable conclusion is that the stated
venue is actually the juridical seat of the
arbitral proceeding.
908 INDIAN LAW REPORTS ALLAHABAD SERIES

****

81. Most recently, in Brahmani
River Pellets [Brahmani River Pellets Ltd.
v. Kamachi Industries Ltd., (2020) 5 SCC
462 : 2019 SCC OnLine SC 929 at para
15] , this Court in a domestic arbitration
considered Clause 18 - which was the
arbitration agreement between the parties
- and which stated that arbitration shall
be
under
Indian
Arbitration
and
Conciliation Act, 1996, and the venue of
arbitration shall be Bhubaneswar. After
citing several judgments of this Court and
then referring to Indus Mobile Distribution
[Indus Mobile Distribution (P) Ltd. v.
Datawind Innovations (P) Ltd., (2017) 7
SCC 678 : (2017) 3 SCC (Civ) 760] , the
Court held : (Brahmani River Pellets case
[Brahmani River Pellets Ltd. v. Kamachi
Industries Ltd., (2020) 5 SCC 462 : 2019
SCC OnLine SC 929 at para 15] , SCC pp.
472-73, paras 18-19)

"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 [Swastik Gases (P) Ltd. v.
Indian Oil Corpn. Ltd., (2013) 9 SCC 32 :
(2013) 4 SCC (Civ) 157] , non-use of words
like
"exclusive
jurisdiction",
"only",
"exclusive", "alone" is not decisive and
does not make any material difference.

19. When the parties have agreed
to the have the "venue" of arbitration at
Bhubaneshwar, the Madras High Court
erred [Kamchi Industries Ltd. v. Brahmin
River Pellets Ltd., 2018 SCC OnLine Mad
13127] 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 [Kamchi Industries Ltd. v.
Brahmin River Pellets Ltd., 2018 SCC
OnLine Mad 13127] is liable to be set
aside."

****

82. 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 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
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
909
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 context,
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 context, 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."

23. Lately, the Apex Court in Arif
Azeem Comapny Ltd. vs. Micromax
Informatices FZE : 2024 SCC OnLine SC
3212 approved the reasoning as laid down
in B.G.S. S.G.S. Soma (supra) and in paras
53 and 54 noticed as under:-

"53. Thus, this Court in BGS
SGS SOMA (supra) laid down a threecondition test as to when 'venue' can be
construed as 'seat' of arbitration. The
conditions that are required to be fulfilled
are as under:-

i. The arbitration agreement or
clause in question should designate or
mention only one place;

ii.
Such
place
must
have
anchored the arbitral proceedings i.e., the
arbitral proceedings must have been fixed
to that place alone without any scope of
change;

iii. There must be no other
significant contrary indicia to show that the
place designated is merely the venue and
not the seat.

Where the aforesaid conditions
are fulfilled, then the place that has been
designated as 'venue' can be construed as
the 'seat' of arbitration. It is clarified that,
while applying the aforesaid test, it must be
borne in mind that where a supranational
body of rules has been stipulated in an
arbitration agreement or clause, such
stipulation is not to be regarded as a
contrary indicium, such stipulation does
not mean that no seat has been designated
rather such stipulation is a positive indicia
that the place so designated is actually the
'seat'.

54. The aforesaid
test
was
approvingly applied by this Court in
Mankastu Impex Private Ltd. v. Airvisual
Ltd. reported in (2020) 5 SCC 399 and it
was held that where the reference to a
place in the arbitration agreement is not
simply as "venue" and rather a reference
as place for final resolution by arbitration,
such place shall be construed as the seat of
arbitration. The relevant observations read
as under:-

"20. It is well settled that "seat of
arbitration" and "venue of arbitration"
cannot be used interchangeably. It has also
been established that mere expression
"place of arbitration" cannot be the basis
to determine the intention of the parties
that they have intended that place as the
"seat" of arbitration. The intention of the
parties as to the "seat" should be
determined from other clauses in the
agreement and the conduct of the parties.

21. In the present case, the
arbitration agreement entered into between
the parties provides Hong Kong as the
place
of
arbitration.
The
agreement
between the parties choosing "Hong
Kong" as the place of arbitration by itself
will not lead to the conclusion that the
parties have chosen Hong Kong as the seat
910 INDIAN LAW REPORTS ALLAHABAD SERIES
of arbitration. The words, "the place of
arbitration" shall be "Hong Kong", have
to be read along with Clause 17.2. Clause
17.2 provides that "... any dispute,
controversy, difference arising out of or
relating to MoU shall be referred to and
finally resolved by arbitration administered
in Hong Kong....". On a plain reading of
the arbitration agreement, it is 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 is for final
resolution by arbitration administered in
Hong Kong. The agreement between the
parties that the dispute "shall be referred
to and finally resolved by arbitration
administered in Hong Kong" clearly
suggests that 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.

22. As pointed out earlier, Clause
17.2 of MoU stipulates that the dispute
arising out of or relating to MoU including
the
existence,
validity,
interpretation,
breach or termination thereof or any
dispute arising out of or relating to it shall
be referred to and finally resolved by the
arbitration administered in Hong Kong.
The words in Clause 17.2 that "arbitration
administered in Hong Kong" is an indicia
that the seat of arbitration is at Hong
Kong. Once the parties have chosen "Hong
Kong" as the place of arbitration to be
administered in Hong Kong, the laws of
Hong Kong would govern the arbitration.
The Indian courts have no jurisdiction for
appointment of the arbitrator."

(Emphasis supplied)"

and then in para 71, it recorded
the exposition of law as under:-

"71. From the above exposition of
law,
the
following
position
of
law
emerges:-

(i) Part I of the Act, 1996 and the
provisions thereunder only applies where
the arbitration takes place in India i.e.,
where either (I) the seat of arbitration is in
India OR (II) the law governing the
arbitration agreement are the laws of
India.

(ii)
Arbitration
agreements
executed after 06.09.2012 where the seat of
arbitration is outside India, Part I of the
Act, 1996 and the provisions thereunder
will not be applicable and would fall
beyond the jurisdiction of Indian courts.

(iii)
Even
those
arbitration
agreements that have been executed prior
to 06.09.2012 Part I of the Act, 1996 will
not be applicable, if its application has
been excluded by the parties in the
arbitration agreement either explicitly by
designating the seat of arbitration outside
India or implicitly by choosing the law
governing the agreement to be any other
law other than Indian law.

(iv)
The
moment
'seat'
is
determined, it would be akin to an
exclusive jurisdiction clause whereby only
the jurisdictional courts of that seat alone
will have the jurisdiction to regulate the
arbitral proceedings. The notional doctrine
of
concurrent
jurisdiction
has
been
expressly rejected and overruled by this
Court in its subsequent decisions.

(v) The 'Closest Connection Test'
for determining the seat of arbitration by
7 All. Devi Prasad Mishra Vs. M/S Nayara Energy Limited (Earlier Essar Oil Limited)
911
identifying
the
law
with
which
the
agreement to arbitrate has its closest and
most real connection is no longer a viable
criterion for determination of the seat or
situs of arbitration in view of the Shashoua
Principle. The seat of arbitration cannot be
determined by formulaic and unpredictable
application of choice of law rules based on
abstract
connecting
factors
to
the
underlying contract. Even if the law
governing
the
contract
has
been
expressly stipulated, it does not mean
that the law governing the arbitration
agreement and by extension the seat of
arbitration will be the same as the lex
contractus.

(vi)
The
more
appropriate
criterion for determining the seat of
arbitration in view of the subsequent
decisions of this Court is that where in
an arbitration agreement there is an
express designation of a place of
arbitration
anchoring
the
arbitral
proceedings to such place, and there
being no other significant contrary
indicia to show otherwise, such place
would be the 'seat' of arbitration even
if it is designated in the nomenclature
of 'venue' in the arbitration agreement.

(vii) Where the curial law of a
particular place or supranational body
of rules has been stipulated in an
arbitration agreement or clause, such
stipulation is a positive indicium that
the place so designated is actually the
'seat', as more often than not the law
governing the arbitration agreement
and by extension the seat of the
arbitration tends to coincide with the
curial law.

(viii)
Merely
because
the
parties have stipulated a venue without
any express choice of a seat, the courts
cannot sideline the specific choices
made by the parties in the arbitration
agreement
by
imputing
these
stipulations as inadvertence at the
behest of the parties as regards the seat
of arbitration. Deference has to be
shown to each and every choice and
stipulations
made
by
the
parties,
afterall the courts are only a conduit or
means to arbitration, and the sum and
substance of the arbitration is derived
from the choices of the parties and their
intentions contained in the arbitration
agreement. It is the duty of the court to
give weight and due consideration to
each choice made by the parties and to
construe the arbitration agreement in a
manner that aligns the most with such
stipulations and intentions.

(ix) We do not for a moment
say that, the Closest Connection Test
has no application whatsoever, where
there
is
no
express
or
implied
designation of a place of arbitration in
the agreement either in the form of
'venue' or 'curial law', there the
closest connection test may be more
suitable for determining the seat of
arbitration.

(x)
Where
two
or
more
possible
places
that
have
been
designated in the arbitration agreement
either expressly or impliedly, equally
appear to be the seat of arbitration,
then in such cases the conflict may be
resolved
through
recourse
to
the
Doctrine of Forum Non Conveniens,
and the seat be then determined based
on which one of the possible places may
be the most appropriate forum keeping
in mind the nature of the agreement, the
dispute at hand, the parties themselves
912 INDIAN LAW REPORTS ALLAHABAD SERIES
and their intentions. The place most
suited for the interests of all the parties
and the ends of justice may be
determined as the 'seat' of arbitration."

24. Stage is now set to examine as to
whether the parties had agreed to fix the
'seat' of arbitration and applying the test as
laid down by the Apex Court in B.G.S.
S.G.S. Soma (supra), this Court finds
that in the instant agreement, the
parties had clearly agreed that the
arbitration will be held at Mumbai. If
the arbitration agreement mentions
only one place and even if it is termed
as the 'venue', then unless there is a
contrary
indicia
the
'venue'
is
construed as the 'seat'.

25. In the instant case, admittedly
there is only one place which is
mentioned in the agreement and that is
Mumbai,
where
the
arbitration
proceedings were to be held as agreed,
coupled with the fact that in clause
22, it vested exclusive jurisdiction to
the
Courts
at
Mumbai
meaning
thereby that Mumbai was agreed as to
be the 'seat' of arbitration and the
parties had agreed to anchor all the
arbitral proceedings in Mumbai and
there is no other clause or contrary
indicators that any other Court could
also have the jurisdiction, hence in the
instant case it can safely be held that
it is the Courts at Mumbai, who
would have the jurisdiction as the
parties
had
fixed
the
'seat'
of
arbitration at Mumbai and there is no
contrary
indicator
to
suggest
otherwise.

26. In light of the aforesaid, this
Court is of the clear view that the
Courts at Mumbai would have the
jurisdiction as the parties agreed
Mumbai to be the 'seat'. Moreover,
even it its treated to be the 'venue'
but then in absence of any contrary
indicia coupled with the exclusive
jurisdiction clause, the venue is
treated as the 'seat' as held by the
Apex Court and once the 'seat' has
been fixed then all proceedings
relating to the said arbitration would
be held within the jurisdiction of
that Court.

27. As far as the decisions cited
by the learned counsel for the
petitioner is concerned, the decisions
of Faith Constructions (supra) does
not come to the aid of the petitioner
as
the
said
decision
does
not
consider the law as propounded by
the Apex Court in Indus Mobile
(supra) and B.G.S. S.G.S. Soma
(supra).

28. Considering the decision in
Aarka Sports Management (supra),
it would indicate that though the
learned Single Judge of the Delhi
High Court noticed the decision of
the Apex Court in Indus Mobile
(supra) and certain other decisions,
however, it has given a finding
which otherwise against the ratio as
laid down by the Apex Court in
B.G.S. S.G.S. Soma (supra) and Arif
Azeem Company Ltd. (supra), hence
the said decision also does not bind
this Court and it cannot be a
precedent.

29. For the aforesaid reasons,
this Court is of the clear view that
the
instant
petition
is
not
maintainable before this Court at
Lucknow, hence it is dismissed,
7 All. Gulfam Vs. State of U.P.
913
leaving it open for the petitioner to
approach the jurisdictional High Court
at Mumbai.
----------
(2025) 7 ILRA 913
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 15773 of
2025

Gulfam ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Mohd Imran Khan

Counsel for the Opposite Party:
G.A

Issue for Consideration

Whether an accused with extensive criminal
antecedents, including prior convictions, and
who has concealed his complete criminal history
in the bail application, is entitled to be released
on bail?

Headnotes

Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 - s. 3(1),
s. 19(4)(b) - Bail - Concealment of
criminal antecedents - Doctrine of clean
hands
-
Misuse
of
bail
liberty
-
Mandatory satisfaction of twin conditions
- Parity plea - Rejection of bail

Held:
The applicant was involved in 41 criminal cases-
including three convictions under the Gangsters
Act-only 10 cases were disclosed in the bail
application
-
deliberate
concealment
of
material facts amounts to misleading the CourtA litigant seeking discretionary relief must come
with clean hands-failing which the application is
liable to be dismissed. [Paras 6, 10-15, 18]

Section 19(4)(b) of the Gangsters Act- bail can
be granted only if the Court is satisfied that
there are reasonable grounds to believe
that the accused is not guilty of the offence-not
likely to commit any offence while on bailconsidering
the
applicant's
repeated
involvement in serious offences-prior misuse of
bail, these statutory preconditions are not
satisfied. [Paras 20-24, 30]

"Reasonable grounds" under Section 19(4)(b)-
something more than prima facie groundssubstantial probable cause to believe that the
accused is not guilty. [Para 24]

Reliance placed on the plea of parity with coaccused
Imran
(who
had
9
cases)
is
misconceived - bail to the co-accused was
granted
without
compliance
with
Section
19(4)(b) and cannot justify repetition of
illegality. [Paras 27-29]

Applicant's deliberate suppression of criminal
history constitutes abuse of process-all bail
applications must disclose complete criminal
history with status of bail/trial within the first
five paragraphs of the affidavit-Registrar General
to place the order before the Hon'ble Chief
Justice for framing administrative guidelines.
[Paras 35-37]

Bail application rejected. (E-14)
Case Law Cited
Ash Mohammad v. Shiv Raj Singh alias Lalla
Babu, (2012) 9 SCC 446 - applied; Neeru
Yadav v. State of U.P., (2016) 15 SCC 422
- followed; Sudha Singh v. State of U.P.,
(2021) 4 SCC 781 - applied; Arunima
Baruah v. Union of India, (2007) 6 SCC
120 - relied on; Prestige Lights Ltd. v.
State Bank of India, (2007) 8 SCC 449 -
relied on; K.D. Sharma v. Steel Authority
of India Ltd., (2008) 12 SCC 481 - relied
on; Dalip Singh v. State of U.P., (2010) 2
SCC 114 - followed; Amar Singh v. Union
of India, (2011) 7 SCC 69 - applied;
Kishore Samrite v. State of U.P., (2012) 10
SCALE 330 - applied; Deepak Yadav v.