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2016 (6) TMI 1338 - HC - Indian LawsMaintainability of petition - Section 34 of the Act of 1996 - Territorial Jurisdiction - Held that:- The arbitration clause stipulates that the arbitration shall be, in accordance with the Rules of conciliation and arbitration of International Chamber of Commerce, Paris. The contract shall be governed by the Indian laws. The Agreement does not stipulate the law which shall govern the arbitration agreement. The case of Mr. Krishnan is, since the parties have agreed, the arbitration would take place in London and no other place, there was an implied exclusion to the applicability of Indian law to the arbitration agreement and accordingly the procedure for challenging the Award would be governed by the law of the seat of Arbitration i.e., English law. The Court was conscious of the fact that the effect of submitting to the jurisdiction of this court by filing an application under Section 9 cannot be decided without hearing full evidence about what took place and effect of it from the perspective of both Indian Law and the principles of English conflict of laws. No doubt, the High Court has held that England is the seat of arbitration and on the principle akin to exclusive jurisdiction clause, it held, as a matter of principle, the foreign Court should not decide matters, which are for that Court to decide in the context of an anti suit injunction - Suffice to state that the Court itself has stated, the effect of submission to the jurisdiction need to be decided, and there was no final decision on that count. Further, the Court was taking a prima facie view for grant of anti suit injunction. Whether the order passed by learned District Judge, Gautam Budh Nagar, U.P dated July 6, 2011 directing the return of the petition to the petitioner is justified? - Held that:- The reasoning given by the learned District Judge in directing return of the petition under Section 34 of the Act to ITECL on the ground that Roger Shashoua and two others had earlier filed a petition under Section 47 and 49 of the Act of 1996 in this Court and the said petition being prior in time, the petition under Section 34 would be hit by Section 42, is erroneous - Admittedly, the petition filed by Roger Shashoua and others, is under Section 47 and 49 of the Act, so the bar of Section 42 would not be applicable to the petition under Section 34 of the Act filed by ITECL before the District Judge, Gautam Budh Nagar. Noting the impugned order of the District Judge is erroneous and not legally tenable but no purpose would be achieved by remanding the case back to the District Judge, Gautam Budh Nagar, as it is clear that on the ground that a petition under Section 9 of the Act of 1996, as was initially filed by Roger Shashoua and others in this Court, the same would trigger the bar of Section 42 of the Act of 1996 making the petition under Section 34 as not maintainable before the District Judge, Gautam Budh Nagar. The petitioner ITECL shall file the petition under Section 34, which was directed to be returned back in terms of the order of the Ld. District Judge, Gautam Budh Nagar before this Court on or before 15th July, 2016.
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