The Court:-

1. A preliminary objection as to maintainability has been taken by the respondent on the ground of lack of territorial jurisdiction of the Calcutta High Court. It is argued by learned senior counsel for the respondent that the arbitration clause categorically stipulates that the Mumbai Courts would have exclusive jurisdiction, whereas the arbitration shall be held at Kolkata. Hence, it is contended that Kolkata was chosen merely as a venue whereas the seat of arbitration has to be Mumbai, thereby conferring jurisdiction on the Bombay High Court to take up an application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, “the 1996 Act”).

2. The Learned Senior Advocate for the respondent, in support of his submission, cites a Delhi High Court judgment rendered in CVS Insurance and Investments Vs. Vipul IT Infrasoft Pvt. Ltd., reported at 2017 SCC OnLine Del 12149, as well as another Delhi High Court judgment delivered in Virgo Softech Ltd. Vs. National Institute of Electronics and Information Technology, reported at 2018 SCC OnLine Del 12723. Against Virgo Softech Ltd (supra), a special leave petition was preferred, which was dismissed by the Supreme Court.

3. The Learned Senior Advocate next cites Ravi Ranjan Developers Private Limted Vs. Aditya Kumar Chatterjee, reported at 2022 SCC OnLine SC 568.

4. The Learned Senior Advocate for the petitioner, in controverting such submissions, places reliance on BGS SGS Soma JV Vs. NHPC Limited [(2020) 4 SCC 234] [LQ/SC/2019/1864] , where most of the contemporary judgments in the concerned field were discussed.

5. The petitioner also cites Mankastu Impex Private Limited Vs. Airvisual Limited [(2020) 5 SCC 399] [LQ/SC/2020/346 ;] as well the judgment of a learned Single Judge of the Delhi High Court in Mr. Raman Deep Singh Taneja Vs. Crown Realtech Private Limited [2017 SCC OnLine Del 11966].

6. The petitioner further places reliance on Aniket SA Investments LLC, Mauritius Vs. Janapriya Engineers Syndicate Pvt. Ltd., Hyderabhad and others, rendered by a Division Bench of the Bombay High Court, reported at 2021 (4) Mh.L.J. 123.

7. The Learned Senior Advocate for the petitioner submits that there is no ambiguity in the arbitration clause insofar as the same clearly designates Kolkata as the place where the arbitration proceedings shall be held.

8. It is contended that, in the absence of any contrary indication that the seat and the venue of arbitration would be different, Kolkata remains the chosen seat as well as the venue of arbitration and, as such, would confer jurisdiction on this Court to take up the present application under Section 11 of the 1996 Act.

9. By placing reliance on the BGS SGS Soma JV (supra), it is contended that a similar clause as the present Clause 15 fell for consideration before the Supreme Court in the said matter, insofar as the arbitration proceedings therein, it was stipulated, “shall be held” at New Delhi/Faridabad.

10. A threadbare discussion was undertaken by the Supreme Court to distinguish between “seat” and “venue” as well as the effect of Section 42 of the 1996 Act. In such perspective, it was ultimately held that Delhi was the seat of arbitration and, as such, the Delhi High Court had jurisdiction to take up matters pertaining to such arbitration in the said case.

11. It is further argued that whereas the entire arbitral proceedings has been contemplated to be held in Kolkata, the first portion of the arbitration clause merely stipulates in general terms that the Mumbai courts would have jurisdiction with regard to the agreement. Hence, the Learned Senior Advocate seeks to distinguish between the subject matter of dispute pertaining to the agreement itself and the Curial Law to be applicable to the arbitration. Applying the latter, it is argued that jurisdiction is conferred on the Calcutta High Court to take up applications pertaining to the proposed arbitration.

12. A close analysis of the above principles indicates that the ‘seat-venueplace’ conundrum still persists. No straight-jacket formula has been evolved as yet in that regard; however, certain yardsticks for ascertaining the seat of the arbitration can be elicited from the decisions holding the field.

13. The primary tests, so derived, are as follows:

I. The language of the arbitration clause itself;

II. The intention of the parties, if ascertainable;

III. Whether there is any distinction between the applicable Curial Law and Substantive Law, in other words, an assessment of the subject-matter of the dispute versus the subject-matter of arbitration.

14. In the present case, the arbitration clause is Clause 15 of the Collection Agreement dated April 1, 2017, which is set out below:

“15. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be construed, interpreted and governed by the laws of India and the courts of Mumbai shall have an exclusive jurisdiction in all matters concerning this Agreement. In the event of any dispute or difference, claims or disputes arising between the parties regarding the interpretation, meaning and effect of any clause of this Agreement, or any of the rights/obligations of the parties hereunder it is agreed that such disputes shall be referred to and resolved through Arbitration of a Sole Arbitrator to be appointed by mutual consent of both parties and failing agreement on such Arbitrator’s name, by an Arbitral Tribunal, consisting of nominee Arbitrator of both the parties and a third Arbitrator to be jointly appointed by both the Arbitrators. The Arbitration proceedings shall be conducted in accordance with the provisions of (Indian) Arbitration and Conciliation Act, 1996 or any amendments of re-enactments thereof, to the exclusion of all or any remedies available either to the RNLIC or to HISL and shall be held at Kolkata. The language of Arbitration shall be English and the award of Arbitrator shall be final and binding on the parties.”

15. The first sentence connects the construction, interpretation and applicable law for the agreement to “courts of Mumbai”, which shall have exclusive jurisdiction “in all matters concerning the agreement”.

16. However, the very next part of the clause provides for arbitration in the event of any dispute or claims, etc., arising between the parties, not only regarding interpretation, meaning and effect of the clauses of the agreement but also in respect of any of the rights/obligations of the parties under the agreement.

17. It is further stipulated that the arbitration proceedings shall be conducted to the exclusion of all or any remedy available to either of the parties to the agreement and “shall be held” at Kolkata. Thus, there is existence of overlapping and apparently irreconcilable limbs of the clause.

18. A deeper scrutiny of the agreement, however, shows that the cause of action for disputes regarding the agreement can arise in several parts of India, in view of the nature of the collections, which has not been restricted to physical collection and may be online or otherwise as well, and since the parties have their respective offices in Kolkata and Mumbai.

19. Thus, the parties were at liberty to choose one of the two places as the seat of arbitration.

20. Certain features, however, can be gathered from the language of the clause itself. Although Mumbai courts have been conferred exclusive jurisdiction concerning the agreement, the arbitration proceeding has been agreed to be held in its entirety at Kolkata, to the exclusion of all other remedies of the parties. There is no indication in Clause 15 that the reference to Kolkata would be for one or several particular meetings only but applies in general to the entire arbitration proceeding itself.

21. Thus, it can fairly be construed that although exclusive jurisdiction has been generally conferred on courts of Mumbai, arbitration has been contemplated as the chosen mode of resolution to the exclusion of all or any remedies (including those which can be instituted in courts of Mumbai as per the prior part of the clause) and is specifically designated to be held at Kolkata.

22. Thus, a comprehensive reading of the clause itself leaves no ambiguity that there is no distinction between the ‘venue’ and ‘seat’ of arbitration. Insofar as arbitration is concerned, the same shall be exclusively held in Kolkata, irrespective of all other remedies available to the parties.

23. Secondly, the earlier part of the arbitration clause contemplates disputes in all matters, including construction, interpretation, etc., concerning the agreement to be governed by the laws of India. Although the expression “exclusive jurisdiction” has apparently been conferred on Mumbai courts, such conferment exclusively pertains to the subject-matter of the dispute, as opposed to that of the arbitration.

24. The moment the venue and seat of arbitration proceedings is fixed to be Kolkata, the parties subject themselves to the provisions of the Arbitration and Conciliation Act, 1996, including Sections 11 and 42 of the same.

25. At this premature stage, it would be pre-judging the relevant issues if the entire conduct of the parties are required to be entered into. That apart, sufficient material, independent of the agreement, is lacking to gather the intention of parties at this premature stage of appointment of Arbitrator within the extremely limited scope of Section 11(6A), read in conjunction with sub-sections (4) to (6) of the said section.

26. Thus, the third yardstick, as discussed above, settles the issue to the effect that the Curial Law for arbitration proceeding will be applicable vis-à-vis Kolkata, whereas the Substantive Law would be of Mumbai. The tricky part, however, is that both the said places are governed by laws of India, which also has been stipulated to be the governing law for the arbitration.

27. Hence, we cannot distinguish between the curial and substantive laws applicable in Mumbai and Kolkata respectively, simply because no such distinction exists. However, such line of distinction provides the cue to determine that the subject-matter of the dispute has been tagged with Mumbai by the arbitration clause, whereas the subjectmatter of arbitration has been clearly tied up with Kolkata.

28. Even in the judgment of the Supreme Court in Ravi Ranjan Developers (supra), it has been indicated that the seat of the arbitration is to be gathered from the arbitration clause and the agreement containing the same.

29. Insofar as the cited decisions of the Supreme Court and various other High Courts are concerned, it has been well-settled, as summed up in BGS SGS Soma JV (supra), that where the parties have chosen the seat, they have also chosen courts at the same seat for the purpose of interim orders and challenges to the award.

30. Once the parties have subjected themselves to the provisions of the 1996 Act, the interplay of Sections 11 and 20 of the 1996 Act governs the arbitration proceeding. In fact, the particular expression “to be held in……” was also used in the relevant arbitration clause dealt with in BGS SGS Soma JV (supra). Aptly, it was held by the Supreme Court that the inexorable conclusion in such cases is that the stated venue is actually the juridical seat of the arbitral proceeding.

31. In each of the cited cases, the language of the respective arbitration clauses were different, which is, in fact, unavoidable since draftsmen of agreements lend their own hue to the language of the agreements, including arbitration clauses which, thus, come with different shades of connotations.

32. For example, in the Division Bench judgment of the Bombay High Court rendered in Aniket SA (supra), the courts of Hyderabad were given exclusive jurisdiction to try disputes arising out of the agreement, but subject to the provisions of Article 20.4 which, in turn, provided that the seat of arbitration shall be Mumbai. Notably, no similar clause subjecting the earlier part of the arbitration clause to the latter is found in the case at hand.

33. Again, in Raman Deep (supra), the Delhi High Court proceeded on an arbitration clause which clearly fixed the venue of the arbitration “for the convenience” to be the office of the Company. Although the jurisdiction of all disputes were to be Delhi only, the venue for arbitration proceedings was to be at Faridabad, Haryana. Here, however, the term ”venue” has not been used at all. Instead, “shall be held” is the chosen expression in the present case.

34. Again, in Mankastu Impex (supra), the arbitration clause stipulated that courts at New Delhi shall have jurisdiction, whereas the second sub-clause of the same clause stipulated that any dispute, controversy, etc., were to be referred to and finally resolved by arbitration “administered in Hong Kong”.

35. Among the cases cited by the respondents, in CVS (supra), the Delhi High Court was dealing with an arbitration clause that subjected any dispute, suit, complaint, etc., arising out of or in relation to the agreement to the exclusive jurisdiction of courts at Noida. The venue of arbitration, however, was stipulated to be Noida/New Delhi, thereby leaving the option of either of the two and/or both being chosen as the venue(s).

36. However, the decision was rather clear-cut in the sense that the seat of arbitration was chosen as Noida, which was also one of the options given in the venues, which left a clear clue as to the courts which would have jurisdiction in respect of the arbitral proceedings.

37. Again, in Virgo Softech Ltd (supra), the Delhi High Court had the option between arbitration proceedings being held at New Delhi and courts in Aurangabad (MS) having exclusive jurisdiction to try and entertain any dispute arising therefrom. The court proceeded on such premise and held that, since exclusive jurisdiction was conferred in the courts of Aurangabad and New Delhi was merely the place/venue, the High Court at Delhi would not have jurisdiction over the arbitral proceedings.

38. Such decision cannot be said to be an exactly identical fit to the present case, since in Clause 15 of the agreement at hand, irrespective of the Mumbai courts having jurisdiction with regard to the agreement, the arbitral proceedings were specifically stipulated to be held at Kolkata. As such, even if the SLP was dismissed against the said order of the Delhi High Court, the same cannot have a direct bearing on the issue at hand in our case.

39. Insofar as the Ravi Ranjan Developers (supra) is concerned, the general law was discussed, including the distinctions between “seat” and “venue”, as contrasted with the “place” of arbitration. Kolkata was held to be only the venue for sitting of the arbitral tribunal, since “sitting of the said Arbitral Tribunal” was to be at Kolkata. The expression ‘sitting’ cannot exactly be equated to the unequivocal ‘shall be held’ used in the present case.

40. Thus, each of the said decisions were rendered in their respective contexts, in the light of the language of the arbitration clauses.

41. Insofar as the intention of the parties is concerned, there is no scope of gathering the same at the stage of appointing of Arbitrator under Section 11 of the 1996 Act.

42. Hence, applying all the relevant yardsticks, the seat of arbitration and, consequently, the subject-matter of the arbitration, as opposed to that of the disputes, has been fixed at Kolkata.

43. That apart, the 1996 Act, which is the specific Curial Law attracted in cases of arbitration, was also chosen by the parties to be the applicable law in exclusion of other remedies.

44. As such, following such Curial Law, Sections 11 and 20 of the 1996 Act, read conjointly, unerringly indicate that the Chief Justice of the High Court at Calcutta or his designate has power and jurisdiction to decide an application under Section 11 of the 1996 Act in the instant case.

45. In such view of the matter, the objection regarding maintainability on the ground of territorial jurisdiction, taken by the respondent, cannot but be turned down.

46. Since the very existence of the arbitration clause is admitted and the disputes arising between the parties fall squarely within the scope of the arbitration clause in the concerned agreement, there cannot be any further impediment in appointing an Arbitrator in the matter.

47. Accordingly, AP No.173 of 2023 is allowed, thereby appointing Justice Madhumati Mitra, a former Judge of this Court, residing at “Pax”, BD-I, Street No. 107, Action Area 1, New Town, Kolkata – 700 156 (Mobile No. – 8910099797), as the sole Arbitrator to resolve the disputes between the parties, subject to obtaining declaration/consent from the proposed Arbitrator under Section 12 of the Arbitration and Conciliation Act, 1996.