TMI Blog2001 (2) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajesh Kumar for the Respondent. JUDGMENT Pattanaik, J. - Leave granted. 2. This appeal by grant of special leave is directed against the judgment of Delhi High Court dated 8-8-2000. The question for consideration is whether a decision regarding the venue of the arbitration proceedings could be assailed in appeal under section 34 of the Arbitration and Conciliation Act, 1996. The Division Bench of the High Court by the impugned judgment agreed with the conclusion of the learned Single Judge and came to hold on examining the arbitration clause in the agreement that the decision with regard to the venue of the arbitration sitting cannot be held to be an interim award and as such section 34 cannot be invoked. 3. The appellant and respondent No. 1 entered into a technical collaboration agreement called "Insoluble Sulphur Technical Collaboration Agreement" on 1-8-1989. Under the agreement, respondent No. 1 was required to provide technical information for production of insoluble sulphur in India. The appellant discharged its obligation under the agreement. The said respondent No. 1 in May, 1996, wrote a letter to the Indian Council of Arbitration, making a claim aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Committee. In that letter it had been stated that respondent No. 2 had already nominated one Umesh Kumar Khaitan as its Member on the Joint Arbitration Committee. Pursuant to the aforesaid letter from respondent No. 2, the JCAA appointed respondent No. 5 as its Member by letter dated 25-10-1996. The appellant had made some correspondence and queries regarding the proceedings of the Joint Arbitra-tion Committee. Mr. Umesh Khaitan resigned as Member of JAC on 12-1-1998 and he was, therefore, substituted by respondent No. 3. The aforesaid JAC met in Delhi on 15-7-1998 and decided the venue for the sittings of the arbitral Tribunal. The appellant filed an application before a learned Single Judge of Delhi High Court, assailing the decision of the Joint Arbitration Committee dated 15-7-1998 on various grounds under section 34. The learned Single Judge by his judgment dated 7-4-2000, dismissed the said applica-tion of the appellant on a finding that the impugned decision of the Joint Arbitration Committee dated 15-7-1998 is not an award and as such is not amenable to appeal under section 34. Against the said judgment of the learned Single Judge, the appellant preferred an appeal and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfered with. Mr. Desai also urged that in view of the definition of Award in the Act in section 2( c ) of the Act which includes an interim award, and an award being a final determination of a particular issue or claim in the arbitration and the issue regarding venue being of seminal importance for adjudication of the rights of the parties, the conclusion is irresistible that such decision by the Joint Committee of Arbitrators, must be held to be an interim award and as such amenable to be reviewed under section 34 and consequently, the High Court committed serious error in holding to the contrary. 5. Mr. D.A. Dave, the learned senior counsel, appearing for the respon-dents on the other hand submitted that though the expression award has been defined to include an interim award under section 2( c ), but a decision to become an award must be a final determination of a particular issue or claim in the arbitration. The decision on the question of venue by a forum under the agreement termed as Joint Arbitration Committee, is at an earlier stage of initiation of the proceedings of the arbitral Tribunal and, therefore, the same cannot be termed as an interim award. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and, therefore, is not an award. Mr. Dave also after referring to the different provisions in the Arbitration and Conciliation Act contended that making of an arbitral award and termination of proceedings occurs in Chapter VI and starts from section 28, whereas place of arbitration occurs in Chapter V dealing with the conduct of arbitral proceedings. The commencement of arbitral proceedings contemplated under section 21 is the date when a particular dispute is referred to the arbitration. In this view of the matter a decision on the question of venue will not be an award or interim award against which a party can take recourse to a Court under section 34 and as such the impugned judgment of the learned Single Judge as well as the Division Bench remain unassailable. 6. Before we examine the rival submissions made, it would be appropriate for us to notice the relevant clauses of the agreement, which ultimately would help us to decide the question as to whether the decision of the Joint Arbitration Committee dated 15-7-1998 can be held to be an interim award. Clause 8.4 is in fact the most crucial clause that requires consideration, which is quoted herein-below in extenso : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess in writing signed by a duly authorized representative thereof in which writing this Agreement is expressly referred to." Apart from the aforesaid relevant clauses, it would be appropriate to notice a few sections of the Act. Section 2( 6 ) is extracted herein-below in extenso : " (6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue." Section 20 is the provision for deciding the place of arbitration, which is extracted herein-below in extenso : "Place of arbitration. (1) The parties are free to agree on the place of arbitration. (2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral Tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Notwithstanding sub-section (1) or sub-section (2), the arbitral Tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be either an award or an interim award so as to be appealable under section 34. The decision of the Joint Committee on the question of the venue under clause 8.4 is not a decision, deciding legal rights of the parties under the contract. There is no mutuality and the said Committee is merely a machinery for deciding the question of venue. Such a decision does not have the characteristics of an arbitration award nor even can it be held to be an interim award. The conclusion of the Joint Committee is a conclusion on the guidelines contained in second part of clause 8.4 of the agreement and is not a judicial determination and as such the said conclusion would not amount to an award. In K.K. Modi v. K.N. Modi [1998] 3 SCC 573, this Court considered the question as to whether clause ( 9 ) of the memorandum of understanding would constitute an arbitration agreement. The Court answered the question in the negative after considering as to what would be the attributes to be present for an agreement to be considered as an arbitration agreement. Paragraph (17) of the aforesaid judgment is quoted herein-below in extenso : " 17. Among the attributes which must be present for an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the English Arbitration Acts would be construed as implying that English would be the place of arbitration. Similarly, provisions in an arbitration agreement stipulating for arbitration by a local Tribunal or institution may indicate the appropriate place of arbitration." In the present case, the second part of clause 8.4 of the agreement conceived of the institution of Joint Committee, which institution had the power to decide with regard to the venue and such decision of the said Joint Committee cannot be held to be an award of a arbitral Tribunal. In view of our analysis on the different provisions of the agreement as well as the provisions of the Act itself, we are unable to accept Mr. Desai s argument that the agreement conceived of two arbitral proceedings, one in relation to any dispute for the venue and the other in relation to the dispute arising out of the agreement. 7. It would be appropriate for us to notice at this stage that respondent No. 2 had intimated the Manager, Arbitration Department, Japan Commercial Arbitration Association that the parties had not been able to agree on the place of arbitration within 30 days of the notice, calling upon them to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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