# Torrent Power Ltd v. Dakshinanchal Vidyut Vitaran Nigam Ltd

- **Citation:** (2022) 12 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Civil Misc. Arbitration Application No. 65 of 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/torrent-power-ltd-v-dakshinanchal-vidyut-vitaran-nigam-ltd-47946
- **Pages:** 7

## Headnote

Civil Law - Arbitration and Conciliation
Application Act, 1996 _ Section 11(6) -
Appointment of an Arbitrator - Jurisdiction
of Court to entertain application for
appointment of an arbitrator - Held - in
the
agreement
the
"venue"
of
the
arbitration is stipulated to be Lucknow,
whereas the Courts at Agra and Allahabad
are given exclusive jurisdiction in case of
any dispute arising out of compliance/non
compliance of the agreement - From the
jurisdictional perspective, Lucknow is only
a venue or location for conducting the
Arbitral
Proceedings
-
Exclusive
jurisdiction
clause
contained
in
the
agreement
constitutes
"significant
contrary indica" as per Shashoua principle
and only the Courts at Agra/Allahabad will
have jurisdiction to decide the disputes
between
the
parties
arising
out
of
agreement in question - Court at Lucknow
has no jurisdiction to entertain the
application
for
appointment
of
an
arbitrator
and
as
per
the
exclusive
jurisdiction
clause
contained
in
the
agreement, the Courts at Allahabad will
have jurisdiction to entertain it (Para 19,
20)

Dismissed. (E-5)

List of Cases cited:

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 6
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.

Civil Misc. Arbitration Application No. 65 of 2021

Torrent Power Ltd. ...Applicant
Versus
Dakshinanchal Vidyut Vitaran Nigam Ltd.
 ...Respondent

Counsel for the Applicant:
Mr. J.N. Mathur, Senior Advocate, with Ms.
Mahima Pahwa and Mr. Shivam Shukla,
Advocates

Counsel for the Respondents:
Mr. Amarjeet Singh Rakhra, Advocate

Civil Law - Arbitration and Conciliation
Application Act, 1996 _ Section 11(6) -
Appointment of an Arbitrator - Jurisdiction
of Court to entertain application for
appointment of an arbitrator - Held - in
the
agreement
the
"venue"
of
the
arbitration is stipulated to be Lucknow,
whereas the Courts at Agra and Allahabad
are given exclusive jurisdiction in case of
any dispute arising out of compliance/non
compliance of the agreement - From the
jurisdictional perspective, Lucknow is only
a venue or location for conducting the
Arbitral
Proceedings
-
Exclusive
jurisdiction
clause
contained
in
the
agreement
constitutes
"significant
contrary indica" as per Shashoua principle
and only the Courts at Agra/Allahabad will
have jurisdiction to decide the disputes
between
the
parties
arising
out
of
agreement in question - Court at Lucknow
has no jurisdiction to entertain the
application
for
appointment
of
an
arbitrator
and
as
per
the
exclusive
jurisdiction
clause
contained
in
the
agreement, the Courts at Allahabad will
have jurisdiction to entertain it (Para 19,
20)

Dismissed. (E-5)

List of Cases cited:

1. Brahmani River Pellets Ltd. Vs Kamachi
Industries Ltd. (2020) 5 SCC 462

2. Duro Felguera Vs Gangavaram Port Ltd. 4
C.M. Arbitration Application No. 65 of 2021
(2017) 9 SCC 729

3. M/s Icomm Tele Ltd. Vs Punjab State Water
Supply & Sewerage Board (2019) 4 SCC 401

4. BGS SGS SOMA JV Vs NHPC Ltd. (2020) 4
SCC 234

5. Ravi Ranjan Developers Pvt. Ltd. Vs Aditya
Kumar Chatterjee (Civil Appeal No. 2394-2395
of 2022) decided on March 24, 2022

6. Mankastu Impex Pvt. Ltd. Vs Airvisual Ltd.
(2020) 5 SCC 399

7. Hasmukh Prajapati Vs Jai Prakash Associates
Ltd. through its Managing Director AIR 2022 All
121

8. Meenakshi Nehra Bhat & ors. Vs Wave
Meghacity Centre Pvt. Ltd. (Arbitration Petition
No. 706 of 2020) decided on November 9, 2022
by the Delhi High Court

9. Kush Raj Bhatia Vs DLF Power and Services
Ltd. (Arbitration Petition No. 869 of 2022)
decided on December 6, 2022 by the Delhi High
Court

(Delivered by Hon'ble Rajesh Bindal, C.J.)

ORDER

1. The prayer made in the present
application filed under Section 11(6) of the
Arbitration and Conciliation Application
Act, 1996 (hereinafter referred to as the
"Act") is for appointment of an Arbitrator
12 All. Torrent Power Ltd. Vs. Dakshinanchal Vidyut Vitaran Nigam Ltd.
7
for resolution of dispute between the
parties.

2. Mr. Mathur, learned Senior
Advocate, appearing for the applicant,
submitted that an agreement was signed
between the applicant and respondentDakshinanchal
Vidyut
Vitaran
Nigam
Limited (hereinafter referred to "DVVNL")
on May 18, 2009 for distribution of
electricity in urban areas of Agra for which
the respondent was a Distribution Licensee.
Clause 17 of the agreement provides for
resolution of disputes between the parties.
Clause 17.2.5. provides for arbitration.
Clause 17.1.2 provides for jurisdiction of
the Court for entertaining all the disputes
between the parties. It has been mentioned
as Agra/Allahabad. The venue of arbitration
has been provided under Clause 17.2.8 to
be at Lucknow.

3. From the aforesaid clauses, it is
evident that for all routine disputes, the
Clause 17.1.2 may be relevant. However,
for arbitration point of view, the seat being
at Lucknow, the proceedings will be at
Lucknow. Even if the proceedings could be
at Allahabad, in fact the dispute falls within
the jurisdiction of Allahabad High Court,
hence it can be at either of the places. In
support of his argument, reliance is placed
on Brahmani River Pellets Limited Vs.
Kamachi Industries Limited (2020) 5
SCC 462.

4. Referring to the procedure provided
in the agreement for resolution of disputes,
he submitted that in terms of Clause 17.2.3,
a Permanent Dispute Resolution Body,
having equal representation from each of
the parties is to be constituted. The disputes
or differences arising under the agreement
shall be referred for resolution to this body
which shall communicate its decision
within thirty days and thereafter the matter
is to be considered in terms of Clause
17.2.4 which provides that in case of nonsettlement of dispute by the Permanent
Dispute Resolution Body, such dispute or
differences shall be referred for decision to
a body constituting of MD, DVVNL and
Head, Distribution Franchisee (by whatever
name called) which shall communicate its
decision within a period of fifteen days.
Primarily, there are three disputes; (1)
Regulatory Surcharge, (2) Electricity Duty,
and (3) Tariff Indexation Ratio.

5. Vide letter dated October 21, 2020,
the applicant requested for constitution of
Permanent Dispute Resolution Body for
resolution of the dispute, detailed as that
applicant is making payment of Regulatory
Surcharge to DVVNL as per TIRn
mechanism, but DVVNL is asking for full
payment of regulatory surcharge recovered
by the applicant. However, no response was
received. On October 28, 2020 a committee
constituted by MD considered the issues.
However, no resolution could be passed.
All the three issues were discussed in the
aforesaid meeting. Hence, to state that the
applicant has not exhausted the remedies
available in the agreement for resolution of
dispute before invoking the jurisdiction of
the Court is not made out.

6. To put the records straight, Mr.
Mathur, learned senior counsel, appearing
for the applicant, submitted that an
application was filed under Section 9 of the
Act
for
interim
relief
before
the
Commercial Court, Lucknow. Status-quo
was granted on March 16, 2021.

7. The respondent challenged the
aforesaid order dated March 16, 2021
passed by Commercial Court, Lucknow by
filing FAFO No. 335 of 2021 at Allahabad,
8 INDIAN LAW REPORTS ALLAHABAD SERIES
which is still pending. The issue of
jurisdiction is also under consideration. In
terms of the interim order dated July 13,
2021 passed in the aforesaid appeal, again
the efforts were made for settlement of the
dispute. However, no positive result could
be there.

8. Meanwhile, on May 31, 2021, the
applicant
issued
notice
seeking
appointment of an Arbitrator to which reply
was received refusing to appoint Arbitrator
raising preliminary objection that the
applicant had not exhausted the remedies as
provided under the agreement. Huge claim
was sought to be made by the respondent
against the applicant, deposit thereof was
sought before consideration of request of
the applicant for appointment of Arbitrator.
Clause 17.2.12 of the agreement provides
that both the parties shall continue to
perform their respective obligations during
the currency of the Dispute Settlement
Procedure. Deposit of money is not a precondition for appointment of an Arbitrator
for resolution of any dispute. Reliance was
placed on judgment of Supreme Court in
Duro Felguera Vs. Gangavaram Port
Limited (2017) 9 SCC 729 to submit that
only the arbitration clause is to be seen. He
further referred to the judgment of Supreme
Court in M/s Icomm Tele Ltd. Vs. Punjab
State Water Supply and Sewerage Board
(2019) 4 SCC 401 to submit that even a
clause
contained
in
the
agreement
providing for pre-deposit of certain amount
for invoking arbitration proceedings was
held to be bad. In the case in hand, there is
no such clause. The respondent just want to
add words in the clauses in the agreement,
which is not permissible.

9. On the other hand, learned counsel
for the respondent submitted that the
jurisdiction for invoking the arbitration
clause is well defined in the agreement.
Clause
17.1.2
clearly
provides
the
jurisdiction of the Court at Agra and
Allahabad. The District Court at Agra will
have jurisdiction for the dispute for which
the jurisdiction of District Court is to be
invoked and the correspondingly the High
Court at Allahabad will have jurisdiction.
Merely because in the agreement venue of
arbitration has been given at Lucknow, it
will not confer jurisdiction to the Court at
Lucknow for filing application under
Section 11(6) of the Act. In fact, the
applicant had wrongly invoked jurisdiction
of Commercial Court at Lucknow while
filing the application under Section 9 of the
Act. While referring to Clause 17.2.12, it
was submitted that it is agreed between the
parties that both the parties shall continue
to perform their respective obligations
during
the
conduct
of
the
Dispute
Settlement Procedure.

10. The respondent is engaged in
supply of electricity which is an essential
service. More than ₹100 crore are due from
the applicant which it has failed to pay
despite repeated notices. The dispute arose
from the year 2013 onwards. In case, the
the applicant was not liable to pay the
amount,
it
could
have
invoked
the
arbitration clause then and there. He further
submitted that the meeting, as is sought to
be referred by the applicant on October 28,
2020, was not held by the Managing
Director, as is the requirement of Clause
17.2.4. Once it is admitted case of the
applicant that the Court at Agra and
Allahabad
had
jurisdiction,
why
the
application under Section 9 of the Act was
filed at Lucknow needs to be explained.
Unless the applicant deposits the amount
due from him, as provided in Clause
17.2.12 of the agreement in terms of which
both the parties shall continue to perform
12 All. Torrent Power Ltd. Vs. Dakshinanchal Vidyut Vitaran Nigam Ltd.
9
their respective obligations during the
conduct
of
the
Dispute
Settlement
Procedure, he cannot seek appointment of
an Arbitrator.

11. Heard learned counsel for the
parties and perused the paper book.

12. To appreciate the contention raised by
learned counsel for the parties, it would be
appropriate to reproduce certain relevant clauses
of the agreement.

17.1 Governing Law

17.1.1 This Agreement has been
executed and delivered in India and its
interpretations, validity and performance shall be
construed and enforced in accordance with the
laws of India and also the laws applicable to the
State of Uttar Pradesh.

17.1.2 Any dispute arising out of
compliance/non- compliance of this Agreement
shall be exclusively under the jurisdiction of court
at Agra/Allahabad.

X X X X

17.2 Amicable Settlement

X X X X

17.2.5 Any dispute arising out of, in
connection with or with respect to this agreement,
the subject matter hereof, the performance or
nonperformance of any obligation hereunder,
which cannot be resolved by negotiation between
the Parties and the Dispute Resolution procedure
as stated in the foregoing Articles, shall be
exclusively submitted to arbitration at the request
of either party upon written notice to that effect to
the other party and the proceedings shall be
conducted subject to the provisions of the
Arbitration and Conciliation Act, 1996 (the
Arbitration Act) by a panel consisting of three
arbitrators.

X X X X

17.2.8 The language of the
arbitration shall be English. The venue of
Arbitration shall be Lucknow."

13. While dealing with the issue of
seat and venue in arbitral proceedings,
Hon'ble the Supreme Court in BGS SGS
SOMA JV Vs. NHPC Ltd. (2020) 4 SCC
234 observed as under:

"59. ........... 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."

14. The Court further held:

"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."

"82. ............. Further, the fact that
the arbitral proceedings "shall be held" at a
particular venue would also indicate that
the parties intended to anchor arbitral
10 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings to a particular place, signifying
thereby, that that place is the seat of the
arbitral proceedings. This, coupled with
there being no other significant contrary
indicia that the stated venue is merely a
"venue" and not the "seat" of the arbitral
proceedings, would then conclusively show
that such a clause designates a "seat" of the
arbitral proceedings."

 (emphasis supplied)

15. In Ravi Ranjan Developers Pvt.
Ltd. Vs. Aditya Kumar Chatterjee (Civil
Appeal No. 2394-2395 of 2022) decided
on March 24, 2022, a development
agreement was executed between the
parties for development of property situated
at Muzaffarpur, Bihar which contained an
arbitration clause providing for resolution
of disputes between the parties through
Arbitration. The place of sitting of Arbitral
Tribunal was stipulated to be at Kolkata.
The Supreme Court set aside the order of
appointment of an Arbitrator by Kolkata
High Court on the ground that the
appointment
was
without
jurisdiction,
observing that:

"43. This Court has perused the
Development Agreement. The contention
of the Respondent in the Affidavit in
Opposition,
that
the
parties
to
the
arbitration agreement had agreed to submit
to the jurisdiction of Calcutta High Court,
is not correct. The parties to the arbitration
agreement only agreed that the sittings of
the Arbitral Tribunal would be in Kolkata.
Kolkata was the venue for holding the
sittings of the Arbitral Tribunal."

"45. In Mankastu Impex Private
Limited v. Airvisual Limited (2020) 5
SCC 399, a three Judge Bench of which
one of us (Hon. A.S. Bopanna, J) was a
member, held:

"19. The seat of arbitration is a
vital aspect of any arbitration proceedings.
Significance of the seat of arbitration is that
it determines the applicable law when
deciding the arbitration proceedings and
arbitration procedure as well as judicial
review over the arbitration award. The situs
is not just about where an institution is
based or where the hearings will be held.
But it is all about which court would have
the supervisory power over the arbitration
proceedings. In Enercon (India) Ltd. v.
Enercon GmbH [Enercon (India) Ltd. v.
Enercon GmbH, (2014) 5 SCC 1, the
Supreme Court held that:

"The location of the seat will
determine the courts that will have
exclusive
jurisdiction
to
oversee
the
arbitration proceedings. It was further held
that the seat normally carries with it the
choice of that country's arbitration/curial
law."

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."

46. In this case, the Development
Agreement provided that the sittings of the
Arbitral Tribunal would be conducted in
Kolkata. As observed above, the parties
never agreed to submit to the jurisdiction of
Calcutta High Court in respect of disputes,
nor did the parties agree upon Kolkata as
the seat of arbitration. Kolkata was only the
venue for sittings of the Arbitral Tribunal."
12 All. Torrent Power Ltd. Vs. Dakshinanchal Vidyut Vitaran Nigam Ltd.
11

"48. In this case, the parties, as
observed above did not agree to refer their
disputes to the jurisdiction of the Courts in
Kolkata. It was not the intention of the
parties that Kolkata should be the seat of
arbitration. Kolkata was only intended to be
the venue for arbitration sittings."

16. In Hasmukh Prajapati Vs. Jai
Prakash Associates Ltd. through its
Managing Director AIR 2022 All 121, in
the agreement executed between the parties
the resolution of dispute between the
parties was provided by way of arbitration.
The venue of the Arbitration was to be New
Delhi. However, the agreement provided
exclusive
jurisdiction
of
Courts
at
Gautambudh Nagar over the disputes
arising between the parties. This Court
placing reliance on various authorities on
the issue, referred to above, held:

"33. In the present case, the
arbitration agreement clearly shows that the
parties agreed as per Clause 10.6 that the
governing law and the jurisdiction of the
courts would be the courts of Gautam
Buddh Nagar, U.P., India and it shall have
jurisdiction over all matters arising out of
or relating to the allotment/provisional
allotment subject to the provisions of
Clause 10.9 of the standard terms and
conditions.
This
exception
regarding
Clause
10.9
constitutes
"significant
contrary indica" as per Shashoua principle
in agreement regarding treating the "venue"
of arbitration (New Delhi) as "seat" of
arbitration proceedings (Gautam Buddh
Nagar) where the cause of action arose. In
Clause 10.9 regarding dispute resolution, it
was agreed that the "venue" of arbitration
shall be New Delhi, India. Accordingly, the
sole arbitrator conducted the arbitration
proceedings at the agreed venue of New
Delhi and passed the award. From the
standard terms and conditions/agreement
between the parties, it is clear that the
parties never clearly stated about the seat of
arbitration but from Clause 10.6 of the
agreement, the courts at Gautam Buddh
Nagar, U.P., India, was agreed to have
jurisdiction over all matters arising out of
or relating to the allotment/provisional
allotment. This clause proves that the
parties had chosen the "seat" of arbitration
as Gautam Buddh Nagar, U.P., India, and
the "venue" of arbitration as New Delhi,
India."

17.

In
similar
situations,
in
Meenakshi Nehra Bhat and others Vs.
Wave Meghacity Centre Private Limited
(Arbitration Petition No. 706 of 2020)
decided on November 9, 2022 by the
Delhi High Court, where the agreement
executed between the parties contained
arbitration clause providing the venue of
the arbitral proceedings to be New Delhi,
but conferred exclusive jurisdiction to the
Courts at Gautambudh Nagar, the Delhi
High Court, while dismissing the petition
due to lack of territorial jurisdiction, held
that New Delhi is only a location for
conducting the arbitral proceedings and the
territorial jurisdiction vests in the Courts at
Gautambudh Nagar and the Allahabad High
Court, as may be applicable, depending on
the proceedings in question.

18. In Kush Raj Bhatia Vs. DLF
Power and Services Ltd. (Arbitration
Petition No. 869 of 2022) decided on
December 6, 2022 by the Delhi High
Court, the arbitration agreement provided
that the place of arbitration would be New
Delhi but specified that the exclusive
jurisdiction
would
be
of
Courts
at
Gurgaon/High Court at Chandigarh, the
Delhi High Court observed that though the
place of arbitration was to be New Delhi,
12 INDIAN LAW REPORTS ALLAHABAD SERIES
but there was a contra indica present in the
agreement
which
provided
exclusive
jurisdiction to the Courts at Gurgaon/High
Court at Chandigarh and as such the Delhi
High Court has no territorial jurisdiction.

19. Applying the aforesaid law in
facts of the present case, there appears a
contra indication in the agreement to an
extent that the "venue" of the arbitration is
stipulated to be Lucknow, whereas the
Courts at Agra and Allahabad are given
exclusive jurisdiction in case of any dispute
arising out of compliance/non compliance
of the agreement. From the jurisdictional
perspective, Lucknow is only a venue or
location
for
conducting
the
Arbitral
Proceedings. The exclusive jurisdiction
clause
contained
in
the
agreement
constitutes "significant contrary indica" as
per Shashoua principle and only the Courts
at Agra/Allahabad will have jurisdiction to
decide the disputes between the parties
arising out of agreement in question.

20. In view of the discussions made
hereinabove, this Court is clearly of the
view that the Court at Lucknow has no
jurisdiction
to
entertain
the
present
application and as per the exclusive
jurisdiction
clause
contained
in
the
agreement, the Courts at Allahabad will
have jurisdiction to entertain it. The
application is, accordingly, dismissed.

21. However, the applicant will be at
liberty to move a fresh application seeking
the relief as prayed in the present
application before this Court at Allahabad,
if the applicant is so advised.
----------
(2022) 12 ILRA 12
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2022
BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 240 of 1986

Ayodhya Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Kr. Shanti Prakash, Arun Sinha, Ashish
Mishra, Kr. M. Rakesh, Raghvendra Pratap
Singh, Riyaz Ahmad, Siddhartha Sinha,
Surendra Pratap Singh, Vinay Kumar Singh

Counsel for the Respondent:
G.A.,
Janardan
Singh,
Suresh
Kumar
Upadhyay

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Section 147, 302, 325,
323,
307,
504,
506
-Challenge
toConviction- As per FIR and the statement
of witnesses that quarrel started over a
small unripe mango fruit dropped from the
mango tree between two children and this
quarrel between the children ultimately
resulted in death of a young boy- P.W.-1,
P.W.-2
,
P.W.-3,P.W-4
succeeded
in
proving the case beyond reasonable doubt
that about 2 p.m. and the incident took
place
in
the
khaliyan-the
accused
committed assault on the deceased at the
place denoted by letter ''X' in the site
plan-Prosecution also proved that the
genesis of quarrel occurred in drop unripe
mango between children-From the perusal
of the post-mortem report and injury
report time of occurrence is fixed between
1 to 2 p.m. -The ocular witnesses and the
child witness deposed that the incident
occurred at 2 p.m. The fact is also
confirmed by the defence version as they
stated to have sustained injuries by
khodni inflicted by the deceased - the
injuries were caused by some blunt object
and were about 6 to 7 days old, the time
opined by doctor also corroborate the time