BGS SGS SOMA JV versus NHPC LTD.

Citation: [2019] 17 S.C.R. 742 · Decided: 10-12-2019 · Supreme Court of India · Bench: R.F. NARIMAN, ANIRUDDHA BOSE, V. RAMASUBRAMANIAN · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 11 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 17 S.C.R.
BGS SGS SOMA JV
v.
NHPC LTD.
(Civil Appeal No. 9307 of 2019)
DECEMBER 10, 2019
[R. F. NARIMAN, ANIRUDDHA BOSE AND
V. RAMASUBRAMANIAN, JJ.]
Arbitration and Conciliation Act, 1996:
s. 37 – Appeals under – Against the orders passed in
applications u/s. 151 r/w O. VII r. 10 CPC and u/s. 2(1)(e)(i) of
the Arbitration and Conciliation Act, 1996, seeking return of
petition filed u/s. 34 of 1996 Act – Maintainability of – Held:
Section 37(1) makes it clear that appeals shall only lie from the
orders set out in sub-clause (a), (b) and (c) thereof and no others
– The refusal to set aside an arbitral award must be under s. 34
i.e. after the grounds set out in s. 34 have been applied to the
arbitral award in question and after the courts have turned down
such grounds – In the present case there was no adjudication u/s.
34 – Therefore, the appeals filed in the present case do not fall
within s. 37 and hence not maintainable.
ss. 20, 31(4), 42 and 2(1)(e) – Juridical seat of arbitral
proceedings – What constitutes ‘judicial seat’ of arbitral proceeding
– In the facts of the present case whether the ‘seat’ of the
arbitration proceedings would be in ‘New Delhi’ or ‘Faridabad’ –
Held: The moment a seat is designated by agreement between the
parties, it is akin to an exclusive jurisdiction clause, which would
then vest the Courts at the ‘seat’ with exclusive jurisdiction for the
purpose of regulating arbitral proceedings – In order to determine
whether the ‘seat’ of the arbitral proceedings has, infact, been
indicated in the agreement between the parties, it is to be seen that
wherever there is express designation of a ‘venue’ and there is no
designation of any alternative place as the ‘seat’, combined with
supranational body of rules governing the arbitration, and no
other significant contrary indicia, the stated ‘venue’ would be
actually the ‘seat’ of the arbitral proceedings – The arbitration
clause in the present case states that “Arbitration Proceedings shall
   [2019] 17 S.C.R. 742
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be at New Delhi/Faridabad” indicates that the proceedings shall
be held at either of the two places – Both the places have been
designated as the ‘seat’ of the arbitration proceedings – In all the
cases, since the proceedings were finally held at New Delhi and
the awards were signed in New Delhi, would lead to the conclusion
that both the parties have chosen New Delhi as ‘seat’ of arbitration
u/s. 20(1) – Therefore, both parties have chosen that the Court at
New Delhi alone would have exclusive jurisdiction over the arbitral
proceedings.
Judgments/Orders:
Interpretation of judgments – Principles – Held: Judgments
of courts are not to be construed as statutes – They are not to be
read as Euclid’s theorems – Observations made therein must be read
in the context in which they appear.
Judgment having conflicting portions – Held: A judgment
must be read as a whole, so that conflicting parts may be
harmonised to reveal the true ratio of the judgment – If harmonising
is not possible, first it should be seen if ratio decidendi can be
called out without the conflicting portion – If not the binding nature
of the precedent on the point on which there is a conflict in
judgment, comes under a cloud.
Allowing the appeals, the Court
HELD:  1.1  Given the fact that there is no independent
right of appeal under Section 13(1)  of the Commercial Courts
Act, 2015, which merely provides the forum of filing appeals, it
is the parameters of Section 37 of the Arbitration Act,1996 alone
which have to be looked at in order to determine whether the
present appeals were maintainable. [Para 14] [764-C]
1.2 Section 37(1) Arbitration Act makes it clear that
appeals shall only lie from the orders set out in sub-clauses (a),
(b) and (c) and from no others. The pigeonhole that the High
Court in the impugned judgement has chosen to say that the
appeals in the present cases were maintainable is sub-clause (c).
According to the High Court, even where a Section 34
application is ordered to be returned to the appropriate Court,
such order would amount to an order “refusing to set aside an
arbitral award under Section 34”. [Para 14] [764-C-D]
BGS SGS SOMA JV v. NHPC LTD.
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SUPREME COURT REPORTS
[2019] 17 S.C.R.
1.3 Under the proviso to Section 13(1A) of the Commercial
Courts Act, 2015, Order XLIII of the CPC is also mentioned.
This provision is conspicuous by its absence in Section 37 of
the

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