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Aug 21

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: February 15, 2013

Judgment Pronounced on: March 22, 2013

OMP No.46/2013

UNION OF INDIA ….. Petitioner

Through Mr.A.K.Ganguli, Sr.Adv. with Ms.Mamta Tiwari, Ms.Swati Sinha, Ms.Veronica Mohan, Mr.Pranav Vyas, Mr.Prakhar Chauhan, Mr.Kapil Sankhla, Ms.Meghna Sankhla, Mr.Abhijit Sinha, Mr.Debesh Panda & Mr.Chaitanya Safaya, Advs.

versus

RELIANCE INDUSTRIES LTD & ANR ….. Respondents

Through Mr.Mukul Rohatgi, Sr.Adv. with Mr.Madhur Bayar, Adv. for R-1. Dr.A.M.Singhvi, Sr.Adv. & Mr.N.K.Kaul, Sr.Adv. with Mr.Neil Nildreth, Mr.Avanish, Mr.Karan Luthra, Mr.Kapil Rustagi, Ms.Naomi Chandra & Mr.Rahan Jaitley, Advs. for R-2.

CORAM:

HON’BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.
1. The petitioner-Union of India filed the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”) challenging the Final Partial Award dated 12th September, 2012 passed by the Arbitral Tribunal comprising the Chairman and two Members, ordering that the respondents‟ claim in respect of Royalties, Cess, Service Tax and CAG Audit are arbitrable, by rejecting the preliminary objections of the petitioner relating to the arbitrability of the said claims as mentioned in the Statement of Claim.

2. The brief facts are that on 22nd December, 1994, two Productions Sharing Contracts (PSCs) came to be executed between the Ministry of Petroleum and Natural Gas, Government of India, Oil and Natural Gas Commission, Reliance Industries Ltd. (respondent No.1) and Enron Oil and Gas India Limited (EOGIL) for the exploration and production of petroleum from the Tapti and Panna Mukta fields respectively. In 2002, BG Exploration and Production India Limited (respondent No.2) acquired the share capital of EOGIL and was substituted in place of EOGIL by amendments to the PSCs. The two contracts were to be operative for a period of twenty five years and would expire only in 2019 unless it is terminated earlier or mutually extended by the parties.

3. The respondents are admittedly parties to the two PSCs relating to the Tapti Gas and Panna Mukta Oil Fields, dated 22nd December, 1994. The petitioner and Oil & Natural Gas Corporation Limited are also parties to the PSCs. The relevant provision of Article 15.1 the PSCs reads as under:-
“Article 15: Taxes, Royalties, Rentals, etc. 15.1 The Companies and the operations under this Contract shall be subject to all fiscal legislations of India, except where pursuant to any authority granted to under any applicable law, they are exempt wholly and partly from the application of the provisions of a particular law or as otherwise provided herein…..”

4. It is stated in the petition that when the respondents filed their Statement of Claims on 5th August, 2011 raising, inter-alia, certain claims with respect to Royalties, Cess, Service Tax and CAG Audit, the petitioner raised the said preliminary objections to the effect that the said claims are not arbitrable. After filing the written submissions, the Arbitral Tribunal by its Final Partial Award rejected the preliminary objection of the Union of India by order dated 12th September, 2012. It is held by the Arbitral Tribunal that the claims of the respondents in respect of Royalties, Cess, Service Tax and CAG Audit are arbitrable.

5. The arbitral tribunal ordered that the merits of the Tax/Audit Issues, along with certain other disputes, be determined at an 8-day hearing to take place in Hong Kong commencing 4th March, 2013. It has been observed in the partial final award that the said claims relating to recovery of cess, sales tax, royalty are arbitrable in nature and shall be decided as claims in the proceedings. The Procedural Order dated 14th September, 2012 also sets out a timetable for the filing of submissions by the parties for a March 2013 hearing, following which the respondents filed their submissions on 7th December, 2012. The petitioner‟s submissions in response were filed on 25th January, 2013. On 13th December, 2012, a majority of the arbitral tribunal rendered a second Final Partial Award dated 10th December, 2012 which dealt with the merits of the remaining issues heard at the May 2012 hearing.

6. Challenging the said order by the Union of India, the present petition has been filed which was listed before Court on 22nd January, 2013 when the preliminary objections were raised by the learned Senior counsel appearing on behalf of the respondents that the petition is not maintainable, for the reason that by choosing English law to govern their agreement to arbitrate and expressly agreeing to a London-seated arbitration, the parties have excluded the application of Part I of the Arbitration and Conciliation Act, 1996, therefore, this Court has no jurisdiction to entertain the objections filed by the petitioner under Section 34 of the Act and submits that the Courts of England and Wales have an exclusive jurisdiction in this regard.

7. The petitioner has invoked the jurisdiction of this Court to entertain the present petition filed under Section 34 of the Act for various reasons; namely, (i) the terms of the PSCs entered would manifest an unmistakable intention of the parties to be governed by the laws of India and more particularly the 1996 Act; (ii) the contracts were signed and executed in India; (iii) the subject matter of the contracts, namely, the Panna Mukta and the Tapti Fields are situated within India; (iv) the obligations under the contracts have been for the past more than 15 years performed within India; (v) the contracts stipulate that they “shall be governed and interpreted in accordance with the laws of India”; (vi) they also provided that “nothing in this contract” shall entitle either of the parties to exercise the rights, privileges and powers conferred upon them by the contract “in a manner which will contravene the laws of India” (Article 32.2); and (vii) the contracts further stipulate that “the companies and the operations under this contract shall be subject to all fiscal legislation of India” (Article 15.1).

8. With regard to the territorial jurisdiction, the respondents have raised the following points in support of their submissions:-
(i) As to the seat of the arbitration:
a. The PSCs were amended by two amendment agreements dated 24th February, 2004 and 10th January, 2005 respectively. The amendment agreement dated 24th February, 2004 sought to amend the seat of arbitration from London to Paris.
b. On 14th September, 2011, the parties to the arbitration agreed that the seat of the present arbitration proceedings would be London, England. As this was not an amendment
to the PSCs but a binding agreement between the parties to the arbitration as to the seat in respect of the current arbitration, the Arbitral Tribunal recorded the consent of the parties in a Final Partial Consent Award rendered by the Arbitral Tribunal on 29th July, 2011 and signed by the petitioner and the respondents. The Final Partial Consent Award states, inter-alia, that:
“….the juridical seat (or legal place) of arbitration for the purposes of the arbitration initiated under the Claimants’ Notice of Arbitration dated 16th December, 2010 shall be London, England.”
(ii) As to the procedural rules governing the arbitration:
a. Article 33.9 of the PSCs provides that arbitration proceedings shall be conducted in accordance with “the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) of 1985”.
b. Following the parties‟ submissions as to whether the reference to “1985” in Article 33.9 of the PSCs was to the 1976 or the 2010 version of the UNCITRAL Arbitration Rules, the Terms of Appointment records the Arbitral Tribunal‟s finding that the arbitration is subject to the UNCITRAL Arbitration Rules, 1976.

9. The contention of the respondents is that the objections raised by the petitioner are yet to be determined by the Arbitral Tribunal on merit and the same would be considered by the Arbitral Tribunal after considering the evidence at the time of passing the final award, however the petitioner is not agreeable with the submissions of the respondents and its simple answer is that in respect of Royalties, Cess, Service Tax and CAG Audit since are not arbitrable under the settled law, therefore why the petitioner should be burdened with heavy cost and to spend a valuable time in evidence when the same cannot be decided by the Arbitral Tribunal under the laws. It is submitted by the petitioner that while considering the said objection of the respondents, the Court should also keep in mind the nature of the objections raised by the Union of India in respect of Royalties, Cess, Service Tax and CAG Audit as to whether the claims raised by the respondents in the Statement of Claims are arbitrable or not. In reply to Consent Award dated 14th September, 2011 of the Arbitral Tribunal, designating the seat of arbitration in London, the Consent Award, in no way, affects the obligations of the parties under Article 32 which declares the paramount and overarching mandate of the parties not to act “in a manner which will contravene the laws of India”.

10. Mr. A.K. Ganguli, learned Senior counsel appearing on behalf of the petitioner has made his submissions in support of his petition and refuting the objection of the jurisdiction raised by the respondents. The said submissions can be outlined in the following manner:
a) Firstly, Mr. Ganguli argued that the present case involves a question of public policy and the exercise of jurisdiction by this court in relation to the challenge of the award which declares the matters relating to the Royalties, Cess, Service Tax and CAG Audit as arbitrable in England for which statutory framework is provided under Indian laws separately which in turn affects the public policy of India. Therefore, while examining the question as to whether this court has jurisdiction to entertain the challenge to the award under Section 34 of the Act in view of the applicability of provisions of choice of law under the agreement, this court should also take into consideration that the aspect of arbitrability of the taxes, cess etc. is clearly against the law of land and once the place of performance is in India, the jurisdiction of Indian court necessarily has to be exercised. Thus, the question of jurisdiction of Indian court is connected with the aspect of violation of public policy in India when the matter relates to Indian subjects and taxed which are required to be paid by respondents to Indian government.
b) Secondly, Mr. Ganguli argued that the intention of the parties to an agreement has to be gathered by reading the agreement as a whole. Mr. Ganguli, drawing an aid from the said principle has read over the Articles 32 and 33 of the agreement so as to demonstrate as to how the parties have agreed under the agreement that they shall be subject to Indian laws and Indian fiscal laws. It has been argued that the governing law of the contract is Indian law. It has been further informed by the learned senior counsel for the petitioner that there is a non obstante clause under the agreement which is 32.2 from reading of which, the clear intention of the parties is emerging which is that the acts of the parties cannot violate the laws of India. Thus, the claims which the respondents have submitted before the arbitral tribunal relates to taxes and cess and other royalties for which the different statutes provides for the procedure for levy such taxes clearly violates or bypasses the laws of India and violates clause 32.2 of the agreement.
From the fair reading of the agreement, as per Mr. Ganguli, no inference as to exclusion of the jurisdiction of Indian courts can be drawn by this court when there exists a non obstante clause precluding the parties to violate Indian laws merely because the juridical seat of the arbitration is in England and arbitration agreement is governed by the laws of England.
c) Thirdly, Mr. Ganguli submitted that the existence of non obstante clause which precludes the parties to exercise their rights and act contrary to laws of India has an overriding effect over and above the other clauses relating to choice of laws by the parties. As per the learned senior counsel that the said clause 32.2 must be given effect to by the courts while drawing any inference as to exclusion or non exclusion of Indian law particularly when the parties have chosen their governing laws and procedural laws under the agreement. The said clause as per Mr. Ganguli clearly shows the intention of the parties is not exclude the Indian laws but to subject themselves to Indian laws which include Indian Arbitration Act. Therefore, the Indian laws are not intended to be excluded by the parties and this court can conveniently exercise it s jurisdiction under Section 34 of the Act of 1996.
Mr. Ganguli, learned Senior counsel relied on the judgment of Venture Global Engineering vs. Satyam Computer Systems Ltd. (2008) 4 SCC 190 wherein Supreme Court in a likewise manner has given effect to the non obstante clause similarly worded in the agreement by finding that Indian laws were not implied excluded in that case and thereby exercising the jurisdiction under the 1996 Act.
d) Fourthly, Mr. Ganguli argued that as per the arbitration clause contained in the agreement, only curial law is the law of England. Therefore, the laws of England are applicable in respect of conduct of the arbitration proceedings before the arbitral proceedings. The moment award is rendered by the tribunal, the challenge to the said award is amenable to jurisdiction of this court as the same becomes a subject matter of the proper law of the contract.
In order to buttress his submission, Mr. Ganguli relied upon the judgment passed by the Supreme Court in the case of Sumitomo Heavy Industries Ltd vs. ONGC Ltd., (1998) 1 SCC 305 wherein the Supreme Court has expressed the similar opinion as argued by the counsel for the petitioner.
e) Fifthly, Mr. Ganguli has argued that the issue of arbitrability of the subject matter has to be adjudicated as per the conflict of laws provisions. Even if the governing law to arbitrate was the laws of England and some aspects relating to arbitrability were to be adjudicated by the arbitral tribunal, still the tribunal ought to have taken into consideration the conflict of laws rules which mandate that the governing law of the place of enforcement is necessary to be taken into consideration in order to make the performance of the award valid. In short, it is the submission of the learned counsel for the petitioner that the arbitral tribunal while applying the laws of England in relation to the question of arbitrability cannot remain totally oblivious to the public policy in India. Therefore, if the disputes or claims raised by the respondents are not arbitrable in India, the said aspect ought to have been given due to respect by the arbitral tribunal even if it intended to apply the laws of England. He referred to the claims made in the statement of claims filed by the respondents in relation to seeking declaration of various kinds, exemption, and reimbursement of any Royalty, Cess, Service Tax and CAT Audit. The same read as under:
“Royalty In paragraph 30.3(1)-(4) of the Statement of Claim, the Claimants seek the following relief : (1) A declaration that, for the purpose of Article 15.6.1, the value of Gas at the wellhead should be calculated by deducting from the sale price at the Delivery Point an amount reflecting all of the costs which are incurred between the wellhead and the Delivery Point-regardless of whether such costs are classified as capital expenditure and regardless of whether such costs are recoverable out of Cost Petroleum under Article 13 of the PSCs. (2) A declaration that with effect from the date of any partial or final award to the termination of the PSC, and pursuant to Article 15.6.1 of the PSCs, the Government is required to reimburse any excess royalties paid as a result of the exclusion of post-wellhead capital expenditure from wellhead value calculations made pursuant to the Gazette Notification or pay damages in the same amount for failure to procure an exemption in respect of such excess royalties. (3) A declaration that the Government is liable to reimburse the Claimants pursuant to Article 15.6.1 of the PSCs in respect of any additional royalties imposed and paid by the Claimants since August 2007 as a result of the exclusion of post-wellhead capital expenditure from wellhead value calculations made pursuant to the Gazette Notification. (4) An award in favour of the Claimants requiring the Government to reimburse the Claimants pursuant to Article 15.6.1 in the sum of US$ 11,413,172 in respect of the additional royalties imposed and paid under protest between August 2007 and March 2011 or pay damages in the same amount for failure to procure an exemption in respect of such additional royalties.
Cess In paragraphs 38.3(1)-(2) of the Statement of Claim, Claimants seek the following relief : (1) A declaration that the Government is required to reimburse any cess imposed in excess of the rate specified in Article 15.6.1 of the PSCs and paid by the Claimants or pay damages in the same amount for failure to procure an adjustment of cess under the PSCs or an exemption in respect of such cess. (2) An award in favour of the Claimants requiring the Government to reimburse the Claimants pursuant to Article 15.6.1 in the sum of Rs.16,79,00,583 in respect of the additional cess imposed between 10th July, 2004 and 31st March, 2011 or pay damages in the same amount for failure to procure an exemption in respect of such cess. And in paragraphs 38A.3(1)-(2) Claimants seek the following relief : (1) An order directing the parties to consult in order to make necessary revisions and adjustments to the PSCs to maintain the expected benefit to the Claimants under Article 15.7/15.8 of the PSCs as from 10th July, 2004 by requiring the Government to reimburse any cess paid and/or payable on Oil and Condensate saved and sold from the Panna Mukta and Tapti Fields in excess of Rs.900 per ton. (2) If the Government fails to agree to the necessary revisions and adjustments to the PSCs referred to in (1) above, an order from the Tribunal requiring the Government to reimburse the Claimants in the sum of Rs.16,79,00,583 in respect of the additional cess imposed between 10th July, 2004 and 31st March, 2011 and requiring the Government to reimburse the Claimants in respect of any cess paid/or payable in excess of Rs.900 per metric ton since 1st April, 2011 and for the remaining duration of the PSC (Pursuant to Article 2 thereof).
Service Tax In paragraph 40.7(1)-3 and 41.2 of the Statement of Claim, Claimants seek the following relief : (1) An order directing the parties to consult in order to make necessary revisions and adjustments to the PSCs to maintain the expected benefit to the Claimants under Article 15.7/15.8 of the PSCs by providing for the reimbursement of service tax by the Government. (2) A declaration that, if the Government fails to agree to the necessary revisions and adjustments the PSCs referred to in (1) above, it is liable to pay damages to restore to the Claimants the economic benefits lost as result of the imposition of service tax on services that fall within the scope of Petroleum Operations with effect from 1st July, 2003 as a result of the Government‟s failure to procure an exemption in respect of service tax chargeable on the provision of services within the Contractor‟s Petroleum Operations. (3) An award of damages in favour of the Claimants (in an amount to be particularized) in respect of the economic benefits lost by the Claimants following the imposition of service tax on services that fall within the scope of Petroleum Operations with effect from 1st July, 2003 as a result of the Government‟s failure to procure an exemption in favour of the Contractor in respect of such service tax. CAG Audit The Respondents have sought the following reliefs in furtherance of their pleadings with respect to CAG audit : (a) “A declaration that the scope of an audit conducted pursuant to Section 1.9 of Appendix C of the PSCs does not extend to an audit or assessment of the operation performance of the Contractor.”
(b) “Appropriate relief concerning disputes arising from CAG‟s audit report”. (c) “A declaration that all unresolved audit exceptions and any disputed issues raised by CAG or as a result of the CAG audit are without merit and that no adjustments are required to be made to the Contractor‟s accounts or statements relating to Petroleum Operations to reflect such exceptions or issues.” Mr. Ganguli has cited the following judgments to substantiate his argument which are reproduced as under:
 Associate Electric and Gas Insurance Services Ltd vs. European Reinsurance Co. Of Zurich (2003) 1 WLR 1041 wherein the court has held that there is an implied term in the agreement by the parties to perform the award. The award which does not take into consideration the fundamental laws of the place where it is to be performed or given effect to would hinder the implied obligation of the parties to perform the award.
 Ralli Bros vs. Compania Naviera Sota y Aznar, (1920) 2 KB 287 that the laws of the place where the contract is to be performed is to be given consideration by the court adjudicating the dispute in England.
 Government of India, Ministry of Finance vs. Taylor & Anr. (1955) 2 WLR 303 which lays down that the enforcement of a claim for taxes is an extension of sovereign power of the state and therefore the said sovereign power of the foreign state which is India in this case ought to have given respect by the English court as the rules of private international laws.
 Booz Allen and Hamilton Inc vs. SBI Home finance Limited, (2011) 5 SCC 532 which is a judgment rendered by the Supreme Court of India wherein the court lays down that the rights in rem are not per se arbitrable.
 Titagarh Paper Mills Ltd vs. Orissa SEB, (1975) 2 SCC 436 which declined the arbitration in relation to surcharge leviable under Electricity Supply Act 1948. This judgment is relied in to support the submission that where the tax is leviable as per the statutory mechanism provided under the act, the same cannot be contracted out by the private mechanism of arbitration.
 Gujarat UrjaVikas Nigam Ltd vs. Essar Power Ltd., (2008) 4 SCC 755 was also relied to support the argument that the statutory mechanism provided under the law cannot be allowed to be bypassed by the private contract between the parties.
f) Mr. Ganguli further argued that the respondents have raised the claim relating to refund of the tax which has been validly collected by the petitioner under the provisions of law. The said claim is totally against the public policy and cannot be contracted out. The said ground is good enough to intervene in the award.
g) Mr. Ganguli has argued that the doctrine of public trust is also applicable to the petroleum products which are natural resources. All the natural resources including the petroleum products are owned by the government and the respondents only act as agent of the government. As the government ownership to the natural resources are subject to public trust doctrine, likewise is the position with the respondents. Therefore, the claims of the respondents ought not to have been held as arbitrable as the same are contrary to the constitutional mandate and public trust doctrine.

11. By making the aforementioned submissions, Mr. Ganguli, learned Senior counsel for the petitioner concluded his submissions by praying that the objection qua implied ouster of the jurisdiction of Indian courts must be rejected and this court should issue notice in the matter and also interfere with the award passed on 12th September, 2012 by the arbitral tribunal.

12. Per Contra, Mr. Mukul Rohatgi, Mr. Abhishek M. Singhvi and Mr. Neeraj Kishan Kaul, learned Senior counsels have made their submissions in support of the objection as to jurisdiction which can be outlined in the following manner:
a) Learned counsel for the respondents have argued that the present petition under Section 34 is not maintainable as the provisions of Part I has been expressly or impliedly excluded by the parties by choosing their governing law to arbitrate which in the instant case is English law. It has been argued by the learned senior counsel that the consequence of such choice implicitly ousts the applicability of Indian substantive law relating to arbitration which is the Act of 1996.
Learned senior counsel has read over the article 32 and article 33 of the agreement dated 22nd December, 1994 and has submitted that the mere reading of the aforementioned articles clearly provide that the governing law so far as the arbitration agreement is concerned is law of England, therefore the applicability of Indian law is clearly excluded. This court should reject the present challenge to the award as the part I is intended to be excluded under the contract.
b) Learned Senior counsel for the respondents have argued that the petitioner‟s submission that the jurisdiction of the present court is dependent upon public policy of India is not correct one in as much as the objection of the respondent is concerning the jurisdiction of Indian court as per express choice of law provision under the agreement which has no connection with the merits of the case. Learned senior counsel therefore urged that this court should not consider the merits of the case and should confine the scope of the arguments only on the lack of jurisdiction of the court.
c) Learned Senior counsel for the respondents have contended that there are well settled line of authorities of the Supreme Court as well as of this court which clearly enunciates the law on the subject which is that when the parties had chosen the law of the foreign country as a seat of the arbitration or as a curial law, the arbitration proceedings and the proceedings thereafter are governed by the curial law which in the instant case is law of England. It has been argued that the choosing the seat of arbitration in England is akin to exclusive jurisdiction clause and thus the applicability of Indian law is impliedly excluded.
d) Learned Senior counsel relied upon various decisions passed by the Supreme Court, High Court of Delhi, Mumbai and Gujarat in support of his submissions; the details are as under:-
i) Videocon Industries Limited vs. Union of India & Anr., (2011) 6 SCC 161: This case involved the Petitioner. It related to a dispute also under a Production Sharing Contract. On the question of whether it had jurisdiction to entertain the said petition under Part I of the 1996 Act, the Supreme Court decided it did not because the parties had agreed to exclude Part I of the 1996 Act. it held that :
“the parties had agreed that notwithstanding Article 33.1 (which is almost identical to Article 32.1 of the PSCs and states that the governing law of the PSC is Indian law the arbitration agreement contained in Article 34.12 (which is almost identical to Article 33.12 of the PSCs and states that the arbitration agreement shall be governed by English law) shall be governed by the laws of England. This necessarily implies that the parties had agreed to exclude the provisions of Part I of the Act.” Subsequent to Videocon (supra), the petitioner in another matter filed a petition before this Court pursuant to Section 34 of the 1996 Act challenging an award of the arbitral tribunal arising out of the same PSC. This resulted in the decision in The Government of India, Ministry of Petroleum and Natural Gas vs. Cairn Energy India Pty Limited & Ors., O.M.P. 411/2011, where the Court determined that, in view of Videocon (supra), it would not have jurisdiction to entertain the challenge.
ii) Prima Buidwell Private Ltd. & Ors. vs. Lost City Developments LLC & Ors. OMP 614/210 (judgment dated 10.08.201): “It is correct that choosing a seat of arbitration is akin to choosing an exclusive jurisdiction clause. Therefore, it is rightly held in the case of A v B (2007) 1 AII E.R. (Comm) 591 “an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause.”) Looked I [sic] this light when the parties by express agreement have agreed that the law juridically controlling the arbitration being English law, the seat of arbitration to be in London and by all references agreeing that the curial law or law which governed the arbitral proceedings that of England and Wales, thus impliedly one can easily say that they have excluded Part I of the Act. Although, it is not expressly excluded.” (paragraph 30) iii) Dozco India Private Limited vs. Doosan Infracore Company Limited (2011) 6 SCC 179: The Supreme Court held that where the seat of the arbitration was foreign, this was “clearly indicative of the express exclusion of Part I of the Act. If there is such exclusion, then the law laid down in Bhatia International v. Bulk Trading S.A. and Anr. (supra) must apply holding: “In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in part I, which is contrary to or excluded by that law or rules will not apply.” (paragraph 12) iv) Yograj Infrastructure Limited vs. Ssang Young Engineering and Construction Co. Ltd. (2011) 9 SCC 735: The Supreme Court held, in an agreement where the parties agreed that the arbitration proceedings would be governed by a foreign curial law, that:
“Having agreed to the above, it was no longer available to the appellant to contend that the proper law‟ of the agreement would apply to the arbitration proceedings. The decision in Bhatia International v. Bulk Trading, which was applied subsequently in Venture Global Engg. v. Satyam Computer Services Ltd. and Citation Infowares Ltd. v. Equinox Coprn. would have no application once the parties agreed by virtue of Clause 27.1 of the agreement that the arbitration proceedings would be conducted in Singapore, i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing the agreement.” (paragraph 55) v) The same view was taken by the High Court of judicature at Bombay in the case of Sakuma Export Ltd. vs. Louis Drefus Commodities Suisee S.A., decided on 15th November, 2011 in Arb. Petition No.636/2011 and High Court of Gujarat at Ahmedabad in Appeal No.1667/2005 decide3d on 20th July, 2005 in the case of Hardly Oil and Gas Limited v. Hindustran Oil Exploration Company Ltd. and Ors.
e) Learned Senior counsel submits that the effect of the parties‟ choice of seat of the arbitration is clearly explained in the leading English decision of C v D [2008] 1 Lloyd‟s Law Rep 239, which is that where the parties to an arbitration agreement have agreed that the seat of the arbitration is to be in an identified location there is an implied agreement on their part that the courts of the place designated as the seat of the arbitration shall exercise supervisory jurisdiction over the arbitration and any challenge to an interim or final award is to be brought only in those courts. This authority has been relied on by subsequent English and Indian authorities including the Indian Supreme Court bench in the Bharat Aluminum (supra). The Court of Appeal in C v D held as follows:
“16. …the central point at issue which is whether or not, by choosing London as the seat of the arbitration, the parties must be taken to have greed that proceedings on the award should be only those permitted by English law. In my view they must be taken to have so agreed for the reasons given by the judge. …. 17. It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attach the award. … following the decisions of Colman J in A v B [2007] 1 Lloyds Rep 237 and A v B (No. 2) [2007] 1 Lloyds Rep 358 in the first of which that learned judge said (para. 111):- “… an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy going to the existence or scope of the arbitrator‟s jurisdiction or as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of the arbitration.”
f) It is argued by Mr.Singhvi that in the present case, it is agreed that in the present the parties‟ arbitration agreement is governed by English law. The parties have chosen London as the seat of this arbitration. It follows on the authority C v D that they have agreed that any challenge to any award is to be brought only in the courts of England. It further follows that the provisions of Part I of the 1996 Act are necessarily excluded as being wholly inconsistent with that agreement. Thus the petitioner is entitled to challenge any award rendered in this arbitration primarily in accordance with Section 67 of the Arbitration Act 1996 of England and Wales, which would entitle the petitioner to a rehearing of the issue by the English Courts rather than a mere review of the arbitral tribunal‟s decision (as explained in Russell on Arbitration, 23rd Edition, at paragraph 8-060). The Respondents note that in respect of the Final Partial Award on Arbitrability, the time limit for the petitioner‟s application under the English Act (of 28 days) has expired and it would have to seek the English Court‟s discretion to make its application out of time.
g) Learned Senior counsel for the respondents argued that the reliance of the petitioner on the case of Venture Global (supra) is misplaced as the same does not aid the case of the petitioner. It is submitted that pursuant to the decision in Venture Global (supra) rendered by Supreme Court, the line of authorities like Videocon (supra) and decisions subsequent thereto of Supreme Court and this court are all clearly subscribing to the view that express choice of foreign governing law of arbitration agreement, agreement as to foreign seat constitute exclusion of Part I of the Act. Therefore, there is no reason for this court not to follow the line of authorities cited by the respondents rendered subsequent to Venture Global (supra) as relied upon by the respondents.
h) Learned Senior counsel for the respondents have argued that the mere fact that in Bharat Aluminium (supra), Supreme Court has laid down that the operation of its judgment is prospectively does not mean that the judgment of Venture Global (supra) is made applicable till that time to all the cases, on the contrary the Supreme Court has clarified the Venture Global (supra) number of times in Videocon (supra) and other line of authorities which this court should follow and Venture Global (supra) does not assist the case of the petitioner.
i) Learned Senior counsel for the respondents have strenuously relied upon the judgment in Videocon (supra) by urging that the arbitration clause in the said case was closer to the clause in the instant case, therefore, the view taken by Supreme Court is binding upon this court and should be considered to be followed in this case.
By making the aforementioned submissions, learned counsel for the respondents have concluded their submissions by praying that this court should uphold the objection as to jurisdiction and reject the petition as non-maintainable.

13. I have gone through the petition filed by the petitioner along with the documents and also considered the objection raised by the respondents relating to jurisdiction of this court in view of the applicability of the principles of choice of laws under the agreement. Further, I have also given my careful consideration to the submissions advanced by the learned counsel for the parties at the bar and in the form of written submissions.

14. I think that in order to decide the question whether the parties had intended under the agreement to implied or expressly exclude the applicability of Indian law, it is necessary to carefully examine the relevant clauses under the agreement which are reproduced hereinafter:
“ARTICLE 32 APPLICABLE LAW AND LANGUAGE OF THE CONTRACT 32.1 Subject to the provisions of Article 33.12, this Contract shall be governed and interpreted in accordance with the laws of India.
32.2 Nothing in this Contract shall entitle the Government or the Contractor to exercise the rights, privileges and powers conferred upon it by this Contract in a manner which will contravene the laws of India. 32.3 The English language shall be the language of this Contract and shall be used in arbitral proceedings. All communication, hearings or visual materials or documents relating to this Contract shall be in English. ARTICLE 33 SOLE EXPERT, CONCILIATION AND ARBITRATION 33.1 The Parties shall use their best efforts to settle amicably all disputes, differences or claims arising out of or in connection with any of the terms and conditions of this Contract or concerning the interpretation or performance thereof. 33.2 Except for matters which, by the terms of this Contract, the Parties have agreed to refer to a sole expert and any other matters which the Parties may agree to so refer, any dispute, difference or claim arising between the Parties hereunder which cannot be settled amicably may be submitted by any Party to arbitration pursuant to Article 33.3. Such sole expert shall be an independent and impartial person of international standing with relevant qualifications and experience appointed by agreement between the Parties. Any sole expert appointed shall be acting as an expert and not as an arbitrator and the decision of the sole expert on matters referred to him shall be final and binding on the Parties and not subject to arbitration. If the Parties are unable to agree on a sole expert, the disputed subject matter may be referred to arbitration. 33.3 Subject to the provisions herein, any unresolved dispute, difference or claim which cannot be settled amicably within a reasonable time may, except for those referred to in Article 33.2, be submitted to an arbitral tribunal for final decision as hereinafter provided.
33.4 The arbitral tribunal shall consist of three arbitrators. The Party or Parties instituting the arbitration shall appoint one arbitrator and the Party or Parties responding shall appoint another arbitrator and both Parties shall so advise the other Parties. The two arbitrators appointed by the Parties shall appoint the third arbitrator. 33.5 Any Party may, after appointing an arbitrator, request the other Party (ies) in writing to appoint the second arbitrator. If such other Party fails to appoint an arbitrator within forty-five (45) days of receipt of the written request to do so, such arbitrator may, at the request of the first Party, be appointed by the Secretary General of the Permanent Court of Arbitration at the Hague, within forty-five (45) days of the date of receipt of such request, from amongst persons who are not nationals of the country of any of the Parties to the arbitration proceedings. 33.6 If the two arbitrators appointed by the Parties fail to agree on the appointment of the third arbitrator within thirty (30) days of the appointment of the second arbitrator and if the Parties do not otherwise agree, the Secretary General of the Permanent Court of Arbitration at the Hague may, at the request of either Party and in consultation with both, appoint the third arbitrator who shall not be a national of the country of any Party. 33.7 If any of the arbitrators fails or is unable to act, his successor shall be appointed in the manner set out in this Article as if he was the first appointment. 33.8 The decision of the arbitration tribunal and, in the case of difference among the arbitrators, the decision of the majority, shall be final and binding upon the Parties. 33.9 Arbitration proceedings shall be conducted in accordance with the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) of 1985 except that in the event of any conflict between these rules and the provisions of this Article 33, the provisions of this Article 33 shall govern.
33.10 The right to arbitrate disputes and claims under this Contract shall survive the termination of this Contract. 33.11 Prior to submitting a dispute to arbitration, a Party may submit the matter for conciliation under the UNCITRAL conciliation rules by mutual agreement of the Parties. If the Parties fail to agree on a conciliator (or conciliators) in accordance with the rules, the matter may be submitted for arbitration. No arbitration proceedings shall be instituted while conciliation proceedings are pending and such proceedings shall be concluded within sixty (60) days. 33.12 The venue of conciliation or arbitration proceedings pursuant to this Article, unless the Parties otherwise agree, shall be London, England and shall be conducted in the English Language. The arbitration agreement contained in this Article 33 shall be governed by the laws of England. Insofar as practicable, the Parties shall continue to implement the terms of this Contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. 33.13 The fees and expenses of a sole expert or conciliator appointed by the Parties shall be borne equally by the Parties. Assessment of the costs of arbitration including incidental expenses and liability for the payment thereof shall be at the discretion of the arbitrators.” (For short Article(s) be read as clause(s) )

15. Upon the conjoint and meaningful reading of clause 32 and 33 of the agreement, the following aspects relating to intention of the parties can be discerned:
a) Firstly, the reading of article 32.1 itself makes it apparent that subject to article 33.12, the contract shall be governed and interpreted in accordance with the laws of India. Thus, the intention of the parties primarily is to govern themselves with the laws of India under the contract subject to what has been contained in clause 32.1. Hence, the governing law of the contract or what is known as proper law of the contract is the laws of India. This clause also indicates that the parties never intended to altogether exclude the laws of India so far as contractual rights are concerned.
b) As the article 32.1 has been made subject to clause 33.12, it is necessary to examine as to what has been contained in article 33.12. Article 33.12 makes it clear that the venue of the arbitration unless the parties otherwise agree shall be in London. The arbitration agreement contained in this article 33 shall be governed by the laws of England. This means that the arbitration agreement as contained in article 33 would be governed by the laws of England.
c) There is another clause which is clause 32.2 which provides for that nothing in this contract shall entitle the government or the contractor to exercise the rights, privileges and powers in a manner which will contravene laws of India. This is another indicator of the intention of the parties towards remaining adhered to Indian law and not to exercise any rights or privilege which would contravene laws of India. The existence of the said clause in a way also enables this court to infer as to whether the parties intended to exclude the Indian laws altogether or not.
d) Now, the question comes what is the effect on the intention of the parties by the interplay of clause 32.1, clause 32.2 and clause 33.12. if one reads clause 33.12 carefully, it is true that the parties had intended that the arbitration agreement as contained in clause 33 shall be governed by the laws of the England. But the effect upon intention of the parties under clause 33.12 should be given to the extent the parties had intended to be governed by the said laws of England and not beyond the same. The unnecessary extension of the scope of operation of article 33.12 would mean that the said article 33.12 would militate against clause 32.1 and clause 32.2 which was never the intention of the parties. This can be seen if one examines the interplay of the said clauses in more depth, which I propose to do in the following manner:
 The first thing which clarifies the intention of the parties is the plain reading of clause 33.12 is that what is governed by the laws of the England is the arbitration agreement as contained in article 33 and not all others matters. Therefore, all the matters relating to arbitration agreement as contained in article 33 shall be governed by the laws of England. A corollary to the same is that excepting the said matters as contained under arbitration agreement in article 33, all other matters shall be governed by the laws of India as per the operation of clause 32.1. Thus, the wording of clause 33.12 itself limit its applicability of law of England relating to the arbitration agreement as contained in article 33 and not beyond the same. Now, If one reads the matters arbitration agreement as contained in article 33, the said matters provide for the aspects relating to appointment procedure, the inability to act, the decision of the arbitrator, the rules of the arbitration, the fee aspect and survival of claims after termination. The said matters as contained in the article 33 do not provide the aspect of challenging the question of arbitrability of the dispute. Therefore, the plain reading of clause 33.12 which only confines the applicability of laws of England in relation to “arbitration agreement contained in this article 33” make it clear that the matters contained in article 33 relating to appointment, rules of conducting arbitration etc shall be governed by the respective laws of England and UNCITRAL Rules wherever they are applicable which are all in effect matters of curial law for conducting the proceedings. For all other matters, one has to revert back to clause 32.1, which is the proper law of contract which is laws of India. This is the way in which article 32.1 is subjected to article 33.12. Further, if the article 15.1 is read along side with the other article 32 and 33, it is also seen that intention of the parties was that the operations under the agreement shall be subject to fiscal laws of India. Therefore, the exclusion of Indian public policy was not passing through the parties mind at the time of entering the contract.
 Secondly, it is the well settled principle of law that the scope of the clause in the agreement has to be confined to the extent the parties had agreed in the agreement and not beyond the same. Once, the parties had consciously chosen the wordings of clause 33.12 to make it clear that the arbitration agreement contained in article 33 shall be governed by the laws of England, then only the stipulations as contained in article 33 shall be covered within its sweep and not the ones which were never intended to be governed by the said law. Doing the same would mean rewriting the contract which the courts are impermissible in law to do. By choosing the words that the arbitration clause contained in article 33 shall be governed by the laws of England and making it subject to article 32.1, the parties had delimited the applicability of laws of England to the extent of the stipulations as contained in article 33.
 Thirdly, the question of the arbitrability of the claim or dispute is the one which has its nexus with the contravention of the other laws of the country to which the parties are subject to. In order to arrive at the finding as to whether the claims raised in the arbitration are against the public policy of the state or not, the court should have due to regard to other laws of the state to discern whether the said claims violate the other laws for the time being force. The said question of arbitrability of the dispute or claim has also a close connection with the ability of the parties to contract out privately with some aspects which the law prohibits them to do so. In that context, the question of arbitrability of the claim or dispute cannot be examined solely on the touchstone of applicability of law relating to arbitration of any country specific but applying the public policy governing under the laws of the country, to which the parties have subjected themselves. The resultant effect of the discussion done in this paragraph is that the question of the arbitrability of dispute is not a pure question of applicable law to arbitrate or lexarbitri but is a larger one governing public policy. The said question has to be examined to on the basis of the intention of the parties to be governed by the particular laws of the country coupled with the enquiry that in respect of which laws of the state that the rights and obligations of the parties under the contract have the closest nexus so that the public policy of the said state is not violated.
Accordingly in the instant case, the said question of arbitrability of the claim is not one which can be decided solely by applying the laws of arbitration in England and then by deciding the same as per the public policy under the laws of the England. Applying the public policy of the laws of England would mean that the parties are subjected to other laws of England governing the ability to contract privately and laws governing rights relating to rem and personem which is actually not the question relating to arbitration law of England but is question relating to substantive law governing the contract. The same was never the intention of the parties under clause 32.1, which in unequivocal terms make it clear that subject to clause 33.12, the governing law of contract shall be laws of India and thus, the ability of the parties to contract out against the public policy has to be examined as per the applicable laws of contract and other laws prohibiting private contract which is the laws of India and not by deciding the same in mechanical terms which is that the lexarbitri is England which would mean that the public policy of England would be looked into and thereby turning a nelson‟s eye to the public policy of India, which actually governs the entire contract.

 Fourthly, another reason which persuades me to take this view is the interplay between clauses 32.1, 32.2 and clause 33.12. Clause 32.1 declares applicable laws governing the contract shall be laws of India subject to clause 33.12. Thereafter clause 33.12 further clarifies that the arbitration agreement contained in clause 33 shall be governed by laws of England. The effect of the same is that excepting the matters contained in clause 33 relating to arbitration agreement, all other matters shall be governed by governing law of contract of India. I have already arrived at the finding that the public policy is more of question of other laws of state rather than arbitration law and also is not the one of the matters contained in article 33 shall be thus governed by the laws of India as per the clause 32.1. Furthermore, the another clause in the agreement which enlightens the intention of the parties in the illuminating terms is the clause 32.2 which is a nonobstante clause making it clear that none of the parties shall exercise any rights, privileges and powers in a manner which will contravene laws of India. The existence of the said clause in the agreement by the opening words “nothing in this contract” gives it a overriding sweep and makes the intention of the parties more than apparent to adhere to laws of India and not to contravene any laws of India. The said laws of India include laws relating to contracts and arbitration. The combined effect of the overriding clause 32.2 read with the article 33.12 would be that the laws of England shall operate in relation to matters contained in article 33 in so far as the same are not inconsistent with the laws of India. Even if the said view is accepted without limiting the scope of article 33 and assuming that the laws of England are to be applicable to the entire arbitration proceedings and proceedings subsequent thereto. Still, the existence of article 32.2 would continue to preclude the parties to contravene laws of India. All these would further make it clear that the intention of the parties was never to oust the Indian laws including part 1 of the Act. Under these circumstances,Once, the agreement is so clear that the parties shall exercise their rights and obligations as per the laws of India and shall not contravene any laws of India, it passes a human comprehension as to how the parties can subject themselves to public policy of England not to public policy of India by contravening laws of India by violating the clause 32.2 and also how any inference as to implied exclusion of Indian law can be arrived at when the parties have themselves expressed in the contract that they shall not contravene laws of India. Public policy is not a term which is alien and unconnected to law. The term public policy in its literal sense includes the laws of the state to which the parties had intended to be governed by for its rights and obligation. In the instant cases, the parties have expressly covenanted not to violate the laws of India. Therefore, once the said covenant exists, the question of arbitrability of the claim which is a larger question affecting public policy of state should be determined by applying laws of India and by giving a meaningful effect to clause 32.2 as otherwise, the said clause 32.2 would be rendered otiose. Therefore, no a priori assumption as to implied ouster of the Indian law can be drawn as the parties had themselves agreed not to contravene laws of India.

16. In view of my above analysis, which I have done upon the plain reading of the clauses under the agreement and the interplay between them, I find that the intention of the parties under the agreement was always to remain subject to Indian laws and not to contravene them, further it was only for conducting the arbitration and for the matters contained in the arbitration agreement under clause/Article 33, the parties had intended to govern themselves by the laws of England and not for all other purposes. Consequently, it is difficult to infer any implied exclusion of Indian law by mere reading of clauses of the agreement.

17. Let me now revisit the legal position in the field and also examine the submissions canvassed by the learned counsel for the parties in the light of the same.

18. It is now well settled that in the commercial contract involving a foreign element, the parties to the agreement have the choice so far it relates to the kinds of the legal systems, they intend to be subjected to. Broadly, in the international contracts, the parties choose the following types of laws in the choice of laws provision in order to exercise their rights and obligations of various kinds under the agreement:
a) Proper law of contract which is the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen.
b) The proper law of the arbitration agreement, i.e. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award.
c) The curial law, i.e. the law governing the conduct of the individual reference.
Normally, in practice, the proper law of the arbitration agreement is the same as the proper law of the contract as the arbitration agreement forms part of the main contract unless the parties expressly agrees to subject themselves under the different law in relation to agreement to arbitrate. Sometimes, the proper law of the arbitration agreement is the same as the curial law. However, in the rare cases, the three laws may be different depending upon what has been stated in the agreement.

19. In the case of Sumitomo Heavy Industries Ltd (supra), the Supreme Court has succinctly laid down the kinds of the laws governing the international commercial agreements and their role in determination of the rights of the parties. In the words of Supreme Court, it was held thus:
“It may therefore be seen that problems arising out of an arbitration may, at least in theory, call for the application of any one or more of the following laws- 1. The proper law of the contract, i.e. the law governing the contract which creates the substantive rights of the parties, in respect of which the dispute has arisen.
2. The proper law of the arbitration agreement, i.e. the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an award. 3. The curial law, i.e. the law governing the conduct of the individual reference.” X X X X X X X X X X X “1. The proper law of the arbitration agreement governs the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes. 2. The curial law governs’ the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract. 3. The proper law of the reference governs; the question whether the parties have been discharged from their obligation to continue with the reference of the individual dispute.”

20. Applying the principle of law to the instant case, it can be seen that the proper law of the contract under the agreement is laws of India, the curial law or the rules for conduct of the arbitral proceedings are UNCITRAL Rules and the proper law to the arbitration agreement as contained in clause 33 is the laws of England.

21. Now, in this backdrop of choice of laws made by the parties under the agreement, the objection as to the jurisdiction of Indian court is required to be examined by this court.

22. It is well settled principle of law that the international commercial arbitrations which are held outside India, the provisions of Part-I would apply unless the parties by expressly or impliedly exclude all or any of the provisions of the Act. The courts in India from time to time have applied the said proposition and after reading the clauses of the agreement, arrived at the finding as to whether the parties under the agreement have expressly or impliedly excluded the provisions of Part-I and in the appropriate cases where the answer comes in affirmative directing the parties to approach the forum which they have chosen. The said principle of law was first laid down in the case of Three Bench decision of Supreme Court of India in Bhatia International vs. Bulk Trading S. A. & Anr (2002) 4 SCC 105 The said decision of Bhatia International (Supra) was rendered in the context of Section 9 of the Act relating to passing off interim measures by the Indian court entertaining the application seeking interim relief against the international commercial arbitration. It was observed by Supreme Court as under:- “32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply.” (Emphasis Supplied)

23. It is again reiterated that the said decision was rendered in the context of Section 9 of the Act and the courts have followed this proposition of law from time to time till date relating to agreements which have been executed prior to September, 2012. The courts have rendered the decision applying the said proposition by inferring in the relevant facts and circumstances of the case as to whether it is a case of express exclusion or it is a case of implied exclusion of provisions of Part-I.

24. In the cases where there is an express provision /stipulation excluding the applicability of Part-I of the Act, the said case becomes a case of express exclusion. However, in a case where there is choice of foreign law which has been made by the parties which is totally unconnected to the applicability of Indian Act and the subject matter and the cause of action is also totally unconnected to the Indian law, the courts have inferred in the relevant cases that the said case becomes a case of implied exclusion as the parties have themselves chosen their respective foreign law under the choice of law provisions in the agreements and no departure is permissible by applying the Indian Act when never intended to do so.

25. Thus, it is a question of fact which has to be examined on case to case basis after reading the agreement meaningfully in order to discern the intention of parties whether the parties actually intended to exclude the applicability of Indian law including the provisions of Arbitration and Conciliation Act altogether impliedly or expressly. No straight jacket formula can be devised in order to draw such inference unless the terms of the agreement are analyzed in order to cull out the real intention of the parties.

26. Pursuant to the decision of Bhatia International (Supra), the Supreme Court again examined the similar proposition in the case of Venture Global Engineering vs. Satyam Computer Services Ltd. (2008) 4 SCC 190 in relation to the objection filed under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 seeking to set aside the Award passed by foreign court wherein the clause provided that the arbitration shall be held in London Court of International Arbitration and the governing law of the contract was State of Michigan, USA. However, the Supreme Court after analyzing the provisions of the agreement and also applying the dictum of Bhatia International (Supra) came to the conclusion that the provisions of Indian Act are not altogether excluded. Supreme Court while analyzing the terms of the agreement also considered the non obstante clause which provided that the parties shall respect the company law guidelines under the Indian Act and other public policy in India. After analyzing the said non obstante clause, Supreme Court came to the conclusion that the provisions of Indian Act are not excluded. The said contention of Mr. K.K. Vengopal has been accepted by the Supreme Court by recording in the following manner:- “Mr. K.K. Venugopal, learned senior counsel, next contended that the overriding section 11.05 (c) of the Shareholders Agreement would exclude respondent No.1 approaching the US Courts in regard to enforcement of the Award. Section 11.05 (b) and (c) of the Shareholders Agreement between the parties read as follows: (b) This Agreement shall be construed in accordance with and governed by the laws of the State of Michigan, United States, without regard to the conflicts of law rules of such jurisdiction. Disputes between the parties that cannot be resolved via negotiations shall be submitted for final, binding arbitration to the London Court of Arbitration. (c) Notwithstanding anything to the contrary in this agreement, the Shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/Rules being in force, in India at any time.
It was pointed out that the non-obstante clause would override the entirety of the agreement including sub-section (b) which deals with settlement of the dispute by arbitration. It was further pointed out that sub-section (c), therefore, would apply to the enforcement of the Award which declares that, notwithstanding that the proper law or the governing law of the contract is the law of the State of Michigan, their shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/Rules being in force in India at any time. In such circumstances, it is the claim of the appellant that necessarily enforcement has to be in India, as mentioned in sub-section (c) which overrides every other section in the Shareholders Agreement. Mr. K.K. Venugopal further pointed out that respondent No.1 totally violated the agreement between the parties by seeking enforcement of the transfer of the shares in the Indian company by approaching the District Court in the United States. On the other hand, Mr. Nariman pointed out that Section 11.05 (b) of the Shareholders agreement alone governs the rights and obligations between the appellant and the first respondent inter se and dispute resolution thereof. In view of our discussion supra, we agree with the stand of the learned senior counsel for the appellant.” (Emphasis Supplied) “….Finally, the overriding section 11.5 (c) of the SHA cannot be ignored lightly. As pointed out, the said section would exclude respondent No.1- Satyam Computer Services Ltd. approaching the US Courts in regard to the enforcement of the Award. Section 11.05 (b) and (c) of the Shareholders Agreement between the parties which is relevant has already been extracted in para 23.
The non-obstante clause would override the entirety of the agreement including sub-section (b) which deals with settlement of the dispute by arbitration. Sub-section (c), therefore, would apply to the enforcement of the Award which declares that, notwithstanding that the proper law or the governing law of the contract is the law of the State of Michigan, their shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/Rules being in force in India at any time. Necessarily enforcement has to be in India, as declared by this very section which overrides every other section in the Shareholders Agreement. Respondent No.1, therefore, totally violated the agreement between the parties by seeking enforcement of the transfer of the shares in the Indian company by approaching the District Courts in the United States.”(Emphasis Supplied)

27. From the bare reading of the observations made by Supreme Court in Venture Global (Supra), it is apparent that the Supreme Court after analyzing the agreement wherein the governing law and the curial law was of State of Michigan, came to the conclusion after analysing the non obstante clause that the despite the proper law/ governing law and curial law being different, their applicability is confined to the aspect of conducting the arbitration proceedings. The purpose of keeping the non obstante clause to adhere to the laws of India would be defeated if the Indian courts are to arrive at the finding that the Indian laws are implicitly excluded. The Supreme Court in Venture Global (supra) thus made a distinction between the challenge to the award which is a matter of enforcement and the stages anterior to the passing of the award which are the subject matter of the applicability of governing law and curial law. The said distinction was carved out by the Supreme Court in order to give effect to the non obstante clause which was overriding in the sweep. Likewise, in the instant case, I have formed the view upon the conjoint reading of article 32 and 33 that the lex arbitri/governing law to arbitrate and its applicability is confined to what has been contained in article 33 and for all other matters one has to revert back to governing laws of India which is by operation of clause 32.1 and 32.2 as a non obstante clause. Therefore, the said view of mine is in consonance with the view of Venture Global (Supra)

28. It is thus a question of the intention of the parties under the agreement rather than a mere decision in a mechanical manner that the choice of foreign law implicitly excludes the Indian law which is apparent from the decision of Venture Global (Supra).

29. Thereafter, the Supreme Court time and again has examined the similar proposition in the context of Section 9 of the Act as well as Section 11 of the Act and its applicability in the cases of international commercial arbitrations. In the case involving of choice of law provisions, the Supreme Court in the appropriate cases applied the same very principle of Bhatia International (supra) and came to the conclusion by analyzing the intention of parties and in cases where there is clear cut case of implied ouster of Indian Act is made out, the courts have not hesitated to relegate the parties to foreign courts when it comes to entertaining the application seeking interim measures against the international commercial arbitrations.

30. One such cases of this nature was Videocon Industries Ltd. vs. Union of India & Anr.. In the said case, the clause relating to choice of law was as under:- “33.1 Indian Law to Govern Subject to the provisions of Article 34.12, this Contract shall be governed and interpreted in accordance with the laws of India. 33.2 Laws of India Not to be Contravened Subject to Article 17.1 nothing in this Contract shall entitle the Contractor to exercise the rights, privileges and powers conferred upon it by this Contract in a manner which will contravene the laws of India. 34.3 Unresolved Disputes Subject to the provisions of this Contract, the Parties agree that any matter, unresolved dispute, difference or claim which cannot be agreed or settled amicably within twenty one (21) days may be submitted to a sole expert (where Article 34.2 applies) or otherwise to an arbitral tribunal for final decision as hereinafter provided. 34.12. Venue and Law of Arbitration Agreement The venue of sole expert, conciliation or arbitration proceedings pursuant to this Article, unless the Parties otherwise agree, shall be Kuala Lumpur, Malaysia, and shall be conducted in the English language. Insofar as practicable, the Parties shall continue to implement the terms of this Contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. Notwithstanding the provisions of Article 33.1, the arbitration agreement contained in this Article 34 shall be governed by the laws of England. 35.2 Amendment This Contract shall not be amended, modified, varied or supplemented in any respect except by an instrument in writing signed by all the Parties, which shall state the date upon which the amendment or modification shall become effective.”

31. It is noteworthy to mention that the said decision of Videocon (supra) was rendered in the context of Section 9 of the Act which is seeking a stay of proceedings before the foreign arbitral tribunal rather than on the ground challenge of the award on the grounds of public policy. In the said case, the Court was only concerned with the interim measures and in the entire judgment; there is no discussion of public policy of India except quoting the excerpts of Venture Global (supra). There was no contention that public policy of India is violated was raised and was never adjudicated upon by the Indian court and the court never analyzed the non obstante clause in the manner done in the Venture Global (supra) and rightly so as court was not confronted with the said proposition relating to public policy and inquiry was only confined to entertaining the application under Section 9 of the Act and in the said context, Supreme Court in Videocon came to the conclusion after analyzing Bhatia International (supra) and other line of judgments passed by Supreme Court that the provisions of part 1 of Act are implicitly excluded as the parties had agreed to be governed by the laws of England which necessarily implies that Delhi High Court again have jurisdiction to entertain the application under Section 9 of the Act. The Supreme Court in the said decision has observed that while affording relief under Section 9 of Indian Arbitration Act, 1996 lost the anvils of party autonomy and sanctity of the Arbitral Tribunal – the hallmarks of any Arbitration – are jeopardised. The object underlying the grant of interim measures under Section 9 is to facilitate and subserve any ongoing Arbitral proceeding. The distinction between entertaining of application under Section 9 and under Section 34 is relevant as while entertaining the petition under Section 34 of the Act, the court has to necessarily examine the question relating to public policy which is not germane in the cases involving petition under Section 9 and that is why the approach of the Supreme Court in the cases which are decided pursuant to Bhatia International (supra) and Venture Global (supra) were all the cases relating to Section 9 petitions where they were not invited to examine whether there is public policy violated and consequently has not analyzed the provisions of agreement in the context of public policy of India perspective which has been done in the case of Venture Global (supra).

32. The distinction between entertaining of application under Section 9 and under Section 34 is relevant as while entertaining the petition under Section 34 of the Act, the court has to necessarily examine the question relating to public policy of state which is not germane in the cases involving petition under Section 9 and that is why the approach of the Supreme Court in the case of Venture Global (supra) decided pursuant to Bhatia International (supra) was slightly distinct than the other cases which were all the cases relating to Section 9 petitions where they were not invited to examine whether there is public policy violated and consequently, the Supreme Court in such cases has not analyzed the provisions of agreement in the context of public policy of India perspective which has been done in the case of Venture Global (supra).

33. It is argued by Mr. Ganguli that in Videocon (supra), Article 33.2 of PSC there was not identical to the provisions of the PCs in the present case. Article 33.2 these were expressly made “subject to Article 17.1”. The implications of this were neither contended by any of the parties nor considered by the Court. Further Article 33.2 was not at all discussed by the Court. Since there is no discussion in the judgment with regard to the scope of Article 33.2, the arguments advanced by the respondents with regard to implications of the Article are without any substance. Thus, the decision in Videocon (supra) cannot therefore be treated as a precedent for the present case which would largely depend on the interpretation of Article 32.2 of the PCSs.
There is force in the submission of Mr. Ganguli as all the decisions relied upon by the respondents relate to proceedings under Section 9 which would fall within the realm of the Curial Law. Proceedings under Section 34 stand on a completely different footing than proceedings under any other provisions of Part I. This has been said by the Supreme Court in Venture Global (supra) when it made a distinction relating to matters of enforcement which also covered and included challenges to the award where public policy and the matters where curial law and governing law is applicable by applying the Indian laws to the former and laws of foreign state to the later.

34. Likewise, in the case of Yograj Infrastructure (supra), Supreme Court again decided a similar case which was concerned with Section 9 of the Act and applying the dictum of Bhatia International (supra) line of authorities came to the conclusion that proper law of agreement could not be applied arbitral proceedings as the parties had chosen SIAC rules of Singapore as curial law, Seat of Arbitration is in Singapore and therefore at the stage of pendency of arbitration proceedings before the International Forum, the provisions of Indian Act cannot trigger.

35. Again, in the said case of Yograj (supra), the court was not concerned with the violation of public policy in India. There was no occasion for the court to analyze whether the court to examine the dichotomy between foreign public policy and public policy in India and the choice of forum done by the parties in order to violate the Indian laws and the question that whether the court should refrain from entertaining the challenge to the award when there is clear intentions in the agreement emerging from the clauses that the parties are required to respect and follow the Indian laws. This aspect has been well settled and analyzed by the Supreme Court in the case of Venture Global (supra) in the context of Section 34 petition and in no other case. Consequently the cases which are decided on Bhatia International (supra) line of authorities even the later cases like Videocon or Yograj are all the ones which stand on slightly different footing as they all pertain to Section 9 petition as well as are not dealing with the aspects of violation of public policy and the effect of the intention of the parties coming from the agreement to adhere to Indian laws. Unlike all these cases, the decision of Venture Global (supra) does exactly the same inquiry in the
context of Section 34 and holds that when there is clear cut intention emerging from the agreement that laws of India are not to be violated in the form of non obstante clause, provisions of Part-I cannot be said to be implicitly excluded atleast for the matters relating to challenge of the award and the enforcement matters.

36. Once, it is realized that the decisions on the Bhatia International (Supra) line of authorities which are decided in the context of Section 9 petition as the same pertain to pre-arbitral and pre award stage are distinct from that of Section 34 petitions where the challenge is laid on the grounds of the public policy and the court being a judicial authority cannot easily overlook public policy, the said decisions decided on Bhatia International (supra) line of authorities are clearly distinguishable and have no application to the instant case as no inference as to implied exclusion can be drawn by merely perusing the choice of law provisions under the agreement. One has to read the clauses of the agreement holistically and accord meaningful reading to them so as to discern the intention of the parties as to whether they intended to

exclude the Indian laws altogether or not.
37. After carefully reading the clauses 32 and 33, I have already arrived at the finding that there is a clear non obstante clause which binds the parties to abide by the laws of India and not to exercise any rights and obligations under the agreement in contravention to laws of India. Till the time, the said clause exists, it cannot be inferred that the parties intended to exclude the Indian law which include Arbitration Act altogether. The said view gets fortified by the view taken by the Supreme Court in Venture Global (supra) wherein the court was concerned with the objections under Section 34 and was deciding the question of public policy under the agreement containing similarly worded non- obstante clause giving over-ridding effect.

38. On a separate note, The Division Bench of this court in the case Anita Garg vs M/S. Glencore Grain Rotterdam B.V. in case of FAO(OS) No.316/2011 decided on 11 August, 2011 after noticing the Bhatia Line of Authorities uptil the decision of Videocon (supra) has proceeded to record a strong note of exception in which case, the jurisdiction of the national court cannot be considered to be ousted so far as it relates to challenges pertaining to awards, the said exception is the question of arbitrability especially in cases where there is an apparent conflict with the public policy of governing law to arbitrate and public policy relating to governing law of contract which is also the law of the place of the performance. The Division Bench speaking through Vikramajit Sen, J. observed thus:
“13. After the Award is pronounced by an arbitral tribunal, it becomes functus officio. Provisions assailing the legal proprietary of the Award must, therefore, partake of the nature of the substantive law or the proper law of the contract. If this distinction and dichotomy is not always kept in mind, difficulties will invariably be encountered, as has also been observed in Law and Practice of International Commercial Arbitration Alan Redfern and Martin Hunter Third Edition: First, as a glance at the list will show, there is an obvious prospect of conflict between the lex arbitri and a different system of law that may be equally relevant. Consider, for example, the question of arbitrability, that is to say, whether or not the subject-matter of the dispute is capable of being resolved by arbitration. The concept of arbitrability is basic to the arbitral process. The New York Convention and the Model Law refer explicitly to disputes that are ―capable of being resolved by arbitration‖, which impliedly recognizes that, as a matter of law, some disputes may not be capable of being so resolved. Whether or not a particular dispute is legally ―capable of being resolved by arbitration‖ is in effect a matter of public policy; but it is a matter on which states may well differ, with some taking a more restrictive attitude than others. Thus, a claim may be arbitrable under the law governing the arbitration agreement and under the lex arbitri but not under the law of the place of enforcement. An award on such a dispute, although validly made under the lex arbitri, might prove to be unenforceable under the New York Convention. Secondly, the effective conduct of an international commercial arbitration may depend upon the provisions of the law of the place of arbitration. This dependence may be illustrated by considering provisions of the local law for judicial assistance in the conduct of the arbitration. Even if the arbitrators have the power to order interim measures of protection, such as orders for the preservation and inspection of property, they are unlikely to have the power to enforce such orders - particularly if the property in question is in the possession of a third party. For this, it will be necessary to turn to national courts for assistance.” (Emphasis Supplied) The afore quoted observations of Division Bench of this court in Anita Garg (supra) fortifies the view taken in the instant case which is that there exists such exceptional cases where the national courts have to come to rescue more so when it relates to question of arbitrability of the claims in cases the concept of public policy varies in lex arbitri and in lex fori. The instant is case is one such exceptional case.

39. At this stage, it is relevant to examine the contentions of the counsel for the respondents. Mr. Abhishek Singhvi, learned Senior counsel for the respondents has read over the clauses of the agreements in the several cases decided by Supreme Court from time to time on Bhatia line of authorities as discussed above. Dr. Singhvi submits that the most closer clause amongst the same is worded in the case of Videocon (supra) and therefore this court should follow the decision in the case of Videocon by inferring that the laws of India are implicitly excluded. He excluded that this court should consider the principle of law laid down in the case and not the facts.

40. On the first blush, the argument of Dr. Singhvi seems to be attractive, however once it is analyzed properly in view of the discussion done above, the said submission does not hold any water for the simple reason that it is true that the arbitration clause in the case of Videocon was closer, but the said decision was pertaining the inference as to exclusion of Indian law at pre-award stage. The decision of Videocon nowhere addresses the aspect of operation of non-obstante clause to abide by the laws of India. I have already discussed above as to how these factors make the case of Videocon decided on the principle of Bhatia International (supra) distinguishable. Therefore, once the decision of Videocon (supra) is distinguishable on facts, the same cannot be applied in the different set of facts and circumstances.

41. It is well settled principle of law that the judgment is a decision on the proposition which emerges therefrom and not the one which can be logically deduced therefrom. Kindly see the judgment passed in the case of Davinder Singh and Others Vs. State of Punjab & Others, (2010) SCC 88 and P.S. Sathappan (Dead) By LRs Vs. Andhra Bank Ltd. & Ors. decided on 7 October, 2004 by Supreme Court.

42. As was said by Lord Chancellor Halsbury in Quinn v. Leathern, H.L. (I.) 1901, 495,
“…… there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (Emphasis Supplied)

43. Likewise, it is equally well settled that the judgments of the superior courts are not be read as Euclid theorems so as to conduct as arithmetical calculation in the form of decision making and unless they actually fit in the facts and circumstances. The inch of facts here and there makes a lot of difference in the applicability of the case and precedential value of the said decision. (Bharat Petroleum Corporation Ltd. & Another vs. N.R. Vairamani another (AIR 2004 SC 4778) and in Bhavnagar Bhavnagar University vs. Palittana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 (at paragraph 59))

44. Applying the said principle of laws to the present case, it can be seen that once in the judgment rendered in the case of Videocon (supra), the supreme court was not concerned with the question of implied exclusion of Indian law in the context of violation of public policy of India and therefore had no occasion to consider the non-obstante clause and arriving at any inference on the basis of the said clause, (though the similarly worded clause did exist in the said case), it cannot be said that the decision of Videocon (supra) is an authority on the said question.

45. It is true that the basic underlying idea behind that the choice of laws provisions existing under the international commercial agreement seems to be more or less the same, which is that the choice of the parties should be respected. It is equally true that even the Venture Global (supra) case has been decided by the Supreme Court on the basis of the said principle of law laid down in Bhatia International (supra) case which was the case of Section 9. But, still the difference in Venture Global case and the subsequent line of authorities is that Venture Global (supra) case draws an intention of the parties from the agreement by reading the agreement clause by clause in the context of public policy of India and deals with the said contention and draws the significant distinction of post award stages and pre award stages which has also been noticed by Division Bench of this court in Anita Garg (supra). However, in all other cases, no such discussion exists in view of no occasion for the court to discuss the same. Therefore, the said cases are distinguishable and as such not applicable to the instance case. Thus, there exists no reason not to follow a decision of Apex court which is more closer on facts than that of the ones which are remote on facts. Accordingly, the submission of the Dr. Singhvi is rejected.

46. The next contention of the respondents which requires consideration is that the import of clause 32.2 is not the same as the learned counsel for the petitioner is attempting to give, which means that the said clause would not have overriding operation. It has been argued by Mr. Mukul Rohatgi, learned Senior counsel for the respondents that the meaning of the said clause/Article 32.2 is that the arbitral tribunal while construing the agreement would take into consideration that there is no violation of the Indian laws. As per Mr. Rohatgi, the mere fact that there is a clause 32.2 which is cautioning the parties not to violate Indian laws does not mean that the parties intended to be governed by the Indian law. Therefore, the import which Mr. Ganguli provides for the said clause is not correct. As per the learned Senior counsel for the respondents, the parties have chosen their laws in relation to agreement to arbitrate which is the law of England and accordingly shall be continued to be governed by the said law.

47. I have examined the submission made by Mr. Rohatgi and the same cannot be accepted. The reasons for the said rejection are as under:
a) Firstly, the opening words of article 32.2 which provide “nothing in this contract” make it clear that the said clause is unaffected by the other clauses contained in the agreement. The said wordings itself give a kind of overriding sweep to the said clause over and above the other clauses. The existence of the said clause in the agreement is not merely a kind of caution which can be considered by the tribunal alongside the application of foreign laws, but is an indicator that for whatsoever may be the reason the parties to the agreement shall not exercise the rights and powers under the agreement which will contravene the laws of India. Thus, the intention of the parties which is emerging from the reading of the clause which has been consciously inserted under the head of applicable law in the agreement is that the parties shall not violate the laws of India. The said powers under the agreement include powers to arbitrate which has been conferred by this agreement. The laws of India include the arbitration laws of India, contract laws, taxation laws. The said clause 32.2 is not subject to 33.12 unlike 32.1 which has been made subject to 33.12. Therefore, it cannot be said that the clause 32.2 is subject to 33.12 unlike 32.1 which has been made subject to 33.12. It cannot be said that the clause 32.2 is subject to arbitration agreement which is a distinct agreement within the main agreement. In sharp contradistinction to the same, the clause use the words “nothing in this contract” which is invariably interpreted as an overriding clause. Accordingly, it cannot be said that the existence of the said clause 32.2 has no bearing on the inference as to the implied exclusion of Indian laws including Part I of the Act when the parties themselves agree not to violate Indian laws which is a public policy of India.
b) Secondly, the argument that once there is a choice of law in relation to agreement to arbitrate is provided which is law of England, this court should readily infer exclusion of Indian law cannot be accepted. This is due to the reason that the parties have chosen law of the England in relation to agreement to arbitrate. The role of the laws in relation to agreement to arbitrate which is curial law in the instant case is confined uptil the passing of award and not thereafter as per the decision of Sumitomo (supra) which has been further approved by Dosco (supra). The same has been witnessed above in the case of Venture Global (supra) and Anita Garg (supra). However, this court is concerned with the interim award which is an award within the meaning of the Act. The challenge to the proceedings after passing of the award under the Act cannot be construed to be impliedly excluded when the operation of the curial law or law as to agreement to arbitrate ends upon the passing of the award. This is more so, when there is a clear indicator under the agreement in the form of Article 32.2 which states that the parties shall not violate any laws in India. All this would mean that parties never intended to exclude the provisions of Part I of the Act altogether even though curial law was the law of England, when they themselves agreed not to violate laws of India which is fundamental public policy in India. Furthermore, the agreement pertains to the projects which are required to be executed in India. The most of the parties under the agreement are Indian. The performance of obligations by the parties is intended to be in India. The parties have chosen to abide by the laws of India. The governing law of contract is of India. Therefore, there is no reason to infer the exclusion of Part 1 when this contract direct, realistic and more closer connection with India than any other country which is the test to draw inference as to intention of the parties to exclude any law.
c) Thirdly and most importantly, this controversy has been put to rest by the Supreme Court in the case of Venture Global (supra) where the court under similar circumstances in the context of the Section 34 objections considered the non obstante clause similarly worded under the said agreement even though the curial law and governing law was altogether of foreign state and still applied Bhatia international and has held that the provisions of the Part 1 are not excluded after analyzing the intention of the parties. The said case has been discussed above in detail.
d) Fourthly, I have also discussed above that the choice of law in relation to arbitration agreement is confined to the agreement contained in clause 33. If one has to read the said clause in isolation without reading clause 32.2 together, then the exclusion which can be inferred by the operation of the said clause is in relation to matters contained in clause 33 which are all matters of curial law. All these matters are the ones which have role to play in the conduct of arbitration proceedings and end at the passing of the award and not the ones which are concerned with challenge or the violation. The issue of the arbitrability of the dispute under the challenge is something which is not forming part of clause 33 and thus no exclusion of Indian law can be inferred when there exists clause 32.2 which specifically provides for not to contravene Indian laws.
e) Fifthly, it has been put to Mr. Rohatgi, learned Senior counsel that if what Mr. Ganguli is propounding is not the meaning of clause 32.2, then how the effect can be given to clause 32.2 by operation of laws of England. In answer to the same, Mr. Rohatgi stated that the courts in England can entertain the said challenge to the impugned award and would decide the matter taking into the consideration that the laws of India are not violated there. All this would mean that the learned counsel for the respondent believes that the courts in England would decide the question of the arbitrability of the dispute by taking into the consideration public policy in India.

48. I find that the view taken by the English court in this respect is not the same as to what has been stated by Mr. Rohatgi. The courts in England are inclined to decide the challenge of the award on the grounds of against public policy on the basis of Public policy subsisting in England and not in India. This has been the view prevalent in England.

49. In the case of Tamil Nadu Electricity Board vs. St- CMS Electric Company, (2007) 2 All E R 701, the Queen‟s Bench Division of the English court observed in the case where the governing law of the contract was Indian law and the governing law of arbitration was the law of England that the English court while construing the violation of the laws is concerned with the English public policy and nothing else. The courts observation in this context reads as under:
“ As to the first suggestion, Indian law is expressly excluded from the separate arbitration agreement. Furthermore, it is nothing to the point if, under Indian law, the proper law of the PPA, the dispute in question cannot be decided other than by an Indian tribunal or Indian statutory body, according to Indian law. That is an irrelevance to an English Court, the court of the seat of the arbitration, dealing with an arbitration provision specifically governed by English law. Whether or not a foreign court would insist on its own jurisdiction or the jurisdiction of a statutory tribunal in India in matters of this kind is an irrelevance. This is made plain from the decisions in Akai Pty Ltd .Peoples Insurance Co. Ltd (1998) 1 LLR 90 at 98, OT Africa Line Ltd v. Magic Sportswear Corp (2006) All ER Comm 557. The parties have agreed to arbitration in accordance with English law and it is by that law alone that the ambit of the arbitration provision can be determined, as a matter of construction. To delve into the proper law of the PPA to seek for any provision mandatorily applicable by that law to the issue of jurisdiction is impermissible.” (Emphasis Supplied) “Despite the argument of TNEB to the contrary, it is in my judgment clear as a matter of English law and the application of English conflict of laws principles, that Indian law has no relevance to the issue that I have to decide, therefore, unless questions of English public policy are involved, or there is an issue about enforcing in a friendly foreign state, performance of contract contrary to the laws of the state.”

50. It is thus clear that the courts in England while entertaining the challenge to the award on the ground of public policy are no where concerned with the public policy of India. If there is a conflict between the public policy in England with that of public policy in India, then the courts in England would not hesitate to declare the dispute arbitrable with a fewer exceptions in case it is permissible under the English Public Policy. Thus, it is highly doubtful as to how the courts in England are able to give effect to the said clause 32.2 which has been intention of the parties under the agreement to not to contravene laws of India. This is another reason as to why the inference as to exclusion of Indian law cannot be made.

51. For all these reasons stated above, the contention of the learned Senior counsel for the respondents cannot be accepted.

52. I have already observed above that issue of the arbitrability is not a pure question of the arbitration law but is a larger question of public policy which involves rights in rem or rights in personem and the violation of the laws of the state. The said view also finds place in the book titled as Redfern and Hunter on International Arbitration by Nigel Blackaby, Constantine Partasides with Alan Redfern and Martin Hunter, Fifth Edition, Oxford University Press, which is often quoted by the courts in India in the arbitration cases. The learned author in the said book observes that the issue of the arbitrability involves the adherence to the law of the place of seat of the arbitration, governing law of the arbitration agreement, law of the place of the performance of the contract, law of the state or state entity if the agreement is with the state. While taking into the consideration of all these relevant laws, the issue of the arbitrability should be decided. In the words of the learned author, it was observed thus:
“2.115 – If the issue of arbitrability arises, it is necessary to have a regard to the relevant laws of the different states that are or may be concerned. These are likely to include the law governing the party involved, where the agreement is with a state, or state Entity, the law governing the arbitration agreement, the law of the seat of the arbitration and the law of the ultimate place of the enforcement of the award.” (Emphasis Supplied)

53. From the bare reading of the aforesaid excerpt from the said book, it is clear that issue of the arbitrability of the dispute involves giving due regard to the laws of the state, where the agreement is with the state, the laws of the place of the enforcement of the award. If the said view of the author is applied to the instant case, it is clear that the laws of the state including India cannot be altogether ignored even if there is a choice of law in agreement to arbitrate when it comes to question of arbitrability. If the English courts have already maintained that they are not concerned with the Indian law when there is a choice of the law of the place of seat of arbitration and agreement to arbitrate in the cases of conflicting public policies, then it cannot be said that the laws of the state including India can be given a complete goby by refusing to entertain the challenge by the national courts when the position in law of international commercial arbitration is also that the due regard should be given to the laws of the state when the state is the party to the agreement. In the instant case, it is apparent that Union of India is the party to the agreement, therefore laws of India are necessarily have to be given due regard. The clause 32.2 is equally evocative of the same when it clearly provides an overriding effect that Indian laws are not to be contravened while exercising rights and privileges. Under these circumstances, if English courts would not entertain the said challenge, it is for the Indian courts to come to rescue to uphold the law and preserve its public policy and more so when the international law relating to commercial arbitration is also giving hint towards respecting the laws of the state where the state is the party to the agreement. This is yet another reason why no implied exclusion can be inferred in the case of the present kind.

54. The argument may be made that if it is matter of enforcement of the award, then the decision upon the said claims which are alleged to be non arbitrable by the petitioner can be given by the learned arbitration tribunal by due application of law under the agreement and objection as to public policy can be entertained at the later stage while seeking enforcement of the award as the same is available when the awards come for an enforcement before the courts in India. I find that the said argument cannot be acceptable atleast in the case of the present nature. It has been seen above that the laws of the state, where the state is the party ought to be respected while discerning the aspect of arbitrability. Once, I have found that the terms of the contract do not clearly ousts the Indian laws but rather provide overriding clause to the said effect to respect Indian laws. I think it would be futile exercise to relegate the parties to first obtain an award which is seemingly against the public policy subject to objections of the respondents and await for the enforcement. I am of the view that once, the Indian laws are not readily inferred to be ousted, there is no reason to defer the question of the arbitrability by outrightly rejecting the objections at this stage. Furthermore, the courts have also entertained the challenges in such cases including the case of Venture Global (supra) and noted exceptions of this nature. There is no reason to depart from the said views

55. There is yet another reason for not following the approach of deference on the question of public policy in the case of the present nature which is that the respondents in the instant case is seeking refund of the amount of the taxation, cess, royalty, service tax etc. that are all a matter of public money in India. The union of India is party to the said agreement and will continue with the arbitration in English court. There is no reason why the public moneys are allowed to be invested for seeking adjudication of the claims which may be eventually impermissible to be enforced and why not the statutory scheme under the laws of India should be adhered to. The said view of mine is my prima facie view considering the vehement objection of lack of jurisdiction raised by the respondents. Thus, the said question raised by the petitioner requires examination even at this stage subject to other objections of the respondents opposing the ground of public policy.

56. Learned counsel for the respondents have argued that the decision of the Bhatia International (supra) and Venture Global (supra) is not a good law in view of the decision rendered in the case of Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc. (2012) 9 SCC 552 by the Supreme Court wherein the Supreme Court has overruled the views taken by it in the Bhatia International’s case and Venture Global’s case. Learned counsel for the respondents has argued that the Supreme Court has aptly explained in the said judgment that the provisions of the part 1 cannot be applied in the case where the parties have chosen the express choice of laws in relation to the agreement to arbitrate. It has been argued that the courts of the countries, the laws of whose have been chosen as curial laws as well laws to arbitrate are competent to entertain the challenge laid upon the said award. The passages of the Judgment in Bharat Aluminum (supra) has been relied upon extensively more particularly paras 116, 117, 144, 145 and 154, 194 and 195 and it has been argued that this court should not accept the reasoning of Venture Global (supra).

57. I have examined the submission raised by the learned counsel for the respondents by placing reliance upon the judgment of Bharat Aluminum (supra). However, the Constitutional Bench of Supreme Court itself recorded in the concluding paragraph of the judgment that the applicability of the said judgment shall be prospective and not retrospective. It has also been taken due note that the agreements executed on and after the date of the judgment of Bharat Aluminum (Supra) shall be governed by the said law and the decisions of Bhatia International and Venture Global (supra) continue to operate and hold the field so far as it relates agreements which are executed prior to the date of the decision which is 6th September 2012. In the words of Constitutional Bench speaking through S.S. Nijjar J., it has been observed thus:
“197. The judgment in Bhatia International was rendered by this court on 13.3.2002. Since then, the aforesaid judgment has been followed by all the High Courts as well as by this court on numerous occasions. In fact, the judgment in Venture Global Engg, has been rendered on 10.1.2008 in terms of the ratio of the decision in Bhatia International. Thus, in order to do complete justice, we hereby order, that the law now declared by this court shall apply prospectively, to all the arbitration agreements executed hereafter.” (Emphasis Supplied)

58. Once the Supreme Court has resorted to its powers as envisaged under Article 142 of the Constitution by observing that the law declared by this court shall apply prospectively to all arbitration agreements executed hereafter in the form of prospective overruling, it would be highly improper if this court applies the law declared in Bharat Aluminum (supra) in the case involving the arbitration agreement which was executed on 22nd December, 1994. Therefore, the decision of Bharat Aluminum (supra) would not have any applicability in the instant case as the reasoning contained in the said decision and law evolved therefrom is declared to be applied prospectively by Supreme Court. Consequently, the submission of the learned counsel for the respondents cannot be accepted.

59. No submission on the part of the respondents remains unaddressed. I have already observed that upon testing the instant case on the principles of law laid down in the case of Bhatia International (supra) as well as Venture Global (supra), no inference as to express or implied exclusion of the Part 1 of the Arbitration and Conciliation Act, 1996 can be drawn. Resultantly, the objection raised by the respondents relating to lack of jurisdiction of Indian court on the count of express choice of laws provisions cannot be sustained as Indian laws including provisions of Part 1 of the Act are not expressly nor impliedly excluded. The said objection is therefore rejected.

OMP No.46/2013 Issue notice.

Reply be filed within four weeks. Rejoinder thereto be filed within two weeks thereafter. List for hearing on 1st July, 2013.

(MANMOHAN SINGH) JUDGE

MARCH 22, 2013

Aug 3

IN THE STATE COMMISSION : DELHI
Date of Decision: 14-01-2008
Appeal No.FA-2007/662
(Arising from order dated 20-07-2007 passed by District Forum-II, Udyog Sadan, Institutional Area, Behind Qutab Hotel, New Delhi in
complaint Case No.637/2006)

Mr. Amit Dhawan, Appellant
S/o Mr. Dhawan,
R/o D-4/4, Rana Pratab Bagh,,
New delhi-110007..

Through Ms. Renuka Singh, Advocate

Versus

1. D. Paul’s Travel & Tours, Respondents
2. Mr. Raghuvinder Pal Singh,
Director, D. Paul’s Travel & Tours,
3. Mr. Rana,
Executive4, D. Paul’s Travel & Tours,
All at 12/161-162 (FF), Malviya Nagar,
New Delhi-110017.

(2) Appeal No.FA-2007/754
(Arising from order dated 20-07-2007 passed by District Forum-II, Udyog Sadan, Institutional Area, Behind Qutab Hotel, New Delhi in
complaint Case No.637/2006)

1. D. Paul’s Travel & Tours Pvt. Ltd, Appellant No.1
12/161-162 (FF), Malviya Nagar,
New Delhi-110017.,

2. Mr. Raghuvinder Pal Singh, Appellant No.2
Director, D. Paul’s Travel & Tours,
12/161-162 (FF), Malviya Nagar,
New Delhi-110017.
3. Mr. Rana, Appellant No.3
Executive,
D. Paul’s Travel & Tours,
12/161-162 (FF), Malviya Nagar,
New Delhi-110017.

Through Mr. Kapil Sankhla, Advocate.

Versus
Mr. Amit Dhawan, Appellant
S/o Mr. Dhawan,
R/o D-4/4, Rana Pratab Bagh, ,
New delhi-110007. .

Through Ms. Renuka Singh, Advocate

CORAM :
Justice J.D. Kapoor- President
Ms. Rumnita Mittal - Member

1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?

JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)

Aforesaid two appeals arise from the order dated 20-07-2007, passed by the District Forum. One is filed by the complainant Mr. Amit Dhawan and another is filed by the OP-D. Paul’s Travel & Tours. For convenience the appellant- Amit Dhawan will be referred as‘Complainant” and appellant-D. Paul’s Travel & Tours will be referred as ‘Opposite Party’.

2. On account of having not provided the transport from Changi Airport at Singapore to the hotel booked by the complainant and for having not provided assured accommodation at the first instance the Opposite Party has been vide impugned order dated 20th July, 2007 passed by the District Forum directed to pay a sum of Rs. 20,000/- as compensation and Rs 5,000/- as cost of litigation.

3. Opposite Party has challenged the impugned order on the ground that there was no deficiency in service on its part and rather on the representation of the complainant he was shifted to Hotel Peninsula Excelsior on the undertaking that he will make up the difference when he would be back from the tour. Whereas the complainant Amit Dhawan has filed the appeal because of being dissatisfied with the amount of compensation.

4. Allegations of the complainant in brief were that he paid a sum of Rs. 19,000/- for advance reservation to OPs for confirmed booking in Hotel Albert, Singapore during his stay from 27-01-2006 to 31-01-2006. The complainant booked the room only to enjoy honeymoon trip. The complainant reached Changi Airport at Singapore on 27-01-2006 with his newly wed wife. The complainant was shocked to notice that there was no one to pick up the complainant from Airport to Hotel. The complainant however, reached Albert Court Hotel. But no accommodation was provided to complainant at the said hotel. The complainant felt frustrated, humiliated and disturbed at unfortunate turn of events.

5. After repeated follow up with OPs particularly OP No.4, the OPs provided a room at Hotel Albert for two days. The complainant was served with a fax message from OP requiring him to transfer him to Peninsula Excelsior Hotel. The OPs transferred the complainant to Peninsula Excelsior Hotel under compulsions from OPs. The Hotel Peninsula Excelsior was otherwise also not comfortable.

6. The complainant further pleaded that as per the itinerary provided he was to partake the City Tour on 28-01-2006. However, the next day another fax was handed over to the complainant informing him about the change in schedule and shifting of the City Tour to another day. As this was an unscheduled change in the itinerary, the complainant was left to fend for providing entertainment to his wife at last minute, in a new country. This led to wastage of the whole day as the complainant and his wife had not made any plans for themselves in anticipation of the scheduled City Tour. Further, due to the unscheduled transfer to another hotel in the middle of his 4 nights/5days stay, the complainant not only missed the scheduled city tours as well as various sites and shows for which payment had already been made, but also missed out an opportunity to indulge in the great shopping experience in Singapore. In fact, complainant and his wife spent their honeymoon vacation packing and repacking their bags and trying to rearrange and reschedule their transfer from hotel to hotel, hotel to airports etc.

7. That on 31-01-2006 the complainant was scheduled to be picked up from Peninsula Excelsior Hotel for transfer to airport, however, at the last moment he was asked to make his own way to the airport. The OPs again failed to provide the services paid for, and the complainant was left to his own resources.

8. The complainant termed the humiliation and embarrassment due to lapses on the part of OPs as deficiency in service. The complainant prayed for directions to OP to refund the amount of Rs. 19,000/- paid by him to OPs with cost and compensation.

9. As against this the version of the Opposite Party was that complainant was shifted to Hotel Peninsula Excelsior only at the request of the complainant. OP pleaded that since the OP No.1 is a well renowned travel company engaged in a service industry it made all possible efforts to ensure that even the verbal requests of its consumer i.e. the complainant herein and his wife are adhered to. As such an effort to comply with the verbal requests of the complainant and his wife to ensure that their stay is a pleasant and memorable one, the OPs made all possible efforts and succeeded in arranging a room for them at Hotel Peninsula Excelsior, a superior hotel from 29-01-2006 till 31-01-2006 at an additional cost of USD 60. This additional cost of USD 30 per day for a room in a superior hotel namely Peninsula Excelsior had already been agreed to by the complainant while he was in India vide booking confirmation which is duly signed by him. Not only this, the complainant while in Singapore once again expressed his intention to reimburse the said amount of USD 60 to OP No.1 immediately upon his return to New Delhi, India. It is worth mentioning that the complainant and his wife were also upgraded from a standard room to a superior Courtyard room at the Albert Court Hotel, without payment of any additional charges, as a courtesy extended to them by the said hotel at the request of OPs. OP pleaded that complainant filed this complaint to avoid payment of USD 60 which was agreed to be paid for upgradation of hotel. OP denied any deficiency ins service on its part and prayed for dismissal of complaint.

10. Perusal of the impugned order shows that aforesaid compensation was awarded firstly on the premise that there was no evidence produced by the OP as to the person who was deputed to receive the complainant at Changi Airport in Singapore. OP failed to prove that transfer of complainant from Albert Court Hotel to Peninsula Excelsior Hotel was a verbal request of the complainant. On the other hand complainant has referred to a fax message from OP No.4 which was termed as tour itinerary and there was specific mention that one room was booked for two days at Hotel Albert Court, Singapore and one room was booked for two days in Peninsula Excelsior Hotel.

11. Opposite Party has referred to a letter of Vacation Singapore DMC Pte. Ltd. addressed to the Managing Director of OP-D. Paul’s Travel & Tours to the following effect:-
“Accommodation Your original booking was for 1 DBLB from 27-31 Jan 2006 for 4 nights stay at Albert Court Hotel. After 2 nights stay, the passenger was shifted to Peninsula Hotel on D.Paul’s request, as the passenger was not happy with their stay at the Albert Court. We did not collect the difference from the guest as we were informed by D.Paul’s that the guest will be settling his account in Delhi only.
Check-In & Out at Albert Court
According to the Front Office, the record shows that Mr. Amit Dhawan check-in at 11.06 am on 27 Jan 2006 and they check-out on 29 Jan 2006 at 12.15 pm.
(Please find a copy of the Albert Court computer records reflecting the information.)
Transfers
On 27 Jan 2006, our driver, Mr. Thomas Lim met the guests and transferred to the Albert Court Hotel.
On 29 Jan 2006, our driver, Mr. Eric Yong pick them up at Albert Court around 12.20 pm and transferred them to the peninsula Hotel as per instruction from D. Paul’s.
On 31 Jan 2006, our driver, Mr. Bernard Lee assigned to do the departure transfer at 6.45 am to pick Mr. Amit Dhawan for their departure flight CI 860 departing at 9.15 am. He spoke to the passenger and waited from 6.45 am till 7.00 am, still passenger was not down and as he have other assignment, he have to leave as this is a Seat-in-Coach departure transfer.
(A copy of the proof of certifying Bernard was at the hotel from 6.45 am till 6.00 am).
City Tour

We have scheduled the City Tour on 28 Jan at 1.30 pm, but paxs requested to change it to 29 Jan and pick up at The Peninsula Hotel at 1.30 pm. On 29 Jan, our guide Mr. Albert went to the hotel and was not able to locate the pax. Called them in the room, there was no answer.

As the tour is based on Seat-in-Coach, the guide cannot wait any longer as there are other guests on board the coach, so he had to leave without them. Raghvinder, I trust the above has given you a very clear picture what have happened and hope that you can settle all aspect of the law suit without any implication for Vacation Singapore, as we were done all we can to ensure your client’s comfort is well look after.”

12. Apart from this the OP-D. Paul’s has also referred to letter dated 03-02-2004 addressed to the complainant Amit Dhawan, which is to the following effect:-
Dated: 03-02-2006
To
Mr. Amit Dhawan,
D-4/4, Rana Pratap Bagh,
Delhi-110007.
Dear Sir,
As you would recall, we changed your boarding from Albert Court Hotel to Peninsula Hotel, at your request, while you were staying in Albert Court. As agreed by you while making the request for the change of hotel, please settle the difference between the rates of hotel room at Albert Court and that of peninsula Hotel, that is US Dollars 60 to us on your return to India.

13. Another letter is dated 18-02-2006, which is as under:-
Dated : 18-02-2006
To
Mr. Amit Dhawan,
D-4/4, Rana Pratap Bagh,
Delhi-110007.
Dear Sir,
Please refer to our letter to you dated 03-02-2006 (copy enclosed) wherein we had requested you to square up the accounts by paying us the amount outstanding from you, viz., US Dollars 60, which we had to pay additionally for securing room for you in the more expensive Peninsula Hotel as per your request. Subsequently on the 5th February when we talked to you on the phone regarding the matter, you expressed willingness to pay up the said amount.
But on 6th and 7th February when we called you up, your attitude was notably very different. You used impolite language to our Executive and you said that a mere complaint from you can spoil our company’s name.
Now our agent in Singapore has sent us a copy of an e-mail letter sent by you to the said agent, on 7th February, 2006. We are surprised to note that in the said letter you have raised totally baseless allegations against us. Presumably you have done so in order to avoid the payment of US Dollars 60 due from you to us as aforesaid. Going beyond that, on 9th of February when our Executive talked to you, you used abusive and threatening language to our dealing Executive on the phone and tried to blackmail us by giving threat of action against us before consumer court, you said “I will spoil your company’s name. I have nothing to lose but you got a lot.” You also conveyed in your telephonic conversation that you would get thousands of rupees on filing a simple complaint against our company. From the information conveyed by our agent in Singapore, we get the impression that you have been further emboldened by the humble and courteous language that our agent in Singapore had used to you.
We therefore request you to please restrain yourself from any action calculated to blackmail or defame our company. We also request you to please pay to us within fifteen days from receipt of this letter. US Dollars 60 which we had incurred additionally for you for booking room at Peninsula Hotel, Singapore, as mentioned above.

14. It appears that the main grievance of the OP is that none of the aforesaid contentions and letters were looked into and dealt with by the District Forum nor the District Forum has provided any reason for not agreeing with the version of the OP. The grievance of the OP is justified as impugned order is silent on the aforesaid aspects.

15. In the result the appeal of the OP is allowed, impugned order is set aside and the matter is sent back to the District Forum for deciding it afresh on merit after providing reasonable opportunities to both the parties, discussing the rival claims and contentions so as to arrive at a conclusion whether the OP is guilty for deficiency in service.

16. Parties shall appear before the District Forum on 18-02-2008 for the aforesaid purpose.

17. Both the appeals are disposed of in aforesaid terms.

18. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.

19. Announced on the 14th January, 2008.

(Justice J.D. Kapoor)
President

(Rumnita Mittal)
Member

Jul 27

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 649 OF 2005
(From the Order dated 28.10.2004 in Appeal No. 421 of 2003 of A.P. State
Consumer Disputes Redressal Commission, Hyderabad)

LIFE INSURANCE CORP. OF INDIA … PETITIONER

VERSUS

SMT. M. BHAVANI … RESPONDENT

BEFORE: -
HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MR. B.K. TAIMNI, MEMBER

FOR THE PETITIONER : MR. S.P. MITTAL, ADVOCATE.
MR. KAPIL SANKHLA, ADVOCATE.

FOR THE RESPONDENT: NEMO.

PRONOUNCED ON : 14.01.2009

O R D E R
ASHOK BHAN J., PRESIDENT

Life Insurance Corporation of India (LIC) (hereinafter referred to as ‘the petitioner’ for short) has filed this Revision Petition against Order dated 28.10.2004 of A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as ‘the State Commission’ for short). By the impugned Order, the State Commission has upheld the Order of the District Consumer Disputes Redressal Forum-II, Hyderabad (hereinafter referred to as ‘the District Forum’ for short).

Shortly stated, the facts of the case are:-

Late Shri S. Muralidharan had taken a Life Insurance Policy bearing No. 3640369345 in the sum of Rs.1,00,000/- and paid premium of Rs.662/- on 28.02.1990. The duration of the policy was 25 years. From May, 1990 to January, 1994, the amount of premium was made by deduction from his salary. For the period February, 1994 to May, 1995, the premium was paid through the Development Officer of LIC. Thereafter also, the premium amounts were paid regularly. He died on 18.07.1997. Complainant/respondent-wife of Late Shri S. Muralidharan filed a claim application on 31.07.1997 which was rejected by the petitioner and it was intimated that at the time of renewal of the insurance policy in the year 1996, the deceased-husband of complainant, did not disclose that he was suffering from Malignant Brain Tumor. That the complainant was entitled to the paid-up value of the policy only upto the date of revival of the policy and not to the entire sum due under the policy.

Complainant/respondent being aggrieved, filed the complaint before the District Forum seeking appropriate relief. Petitioner-opposite party filed its reply. It admitted the factum of insurance. It was stated that the life insured died on 18.07.1997 on account of Malignant Brain Tumor and the secondary cause being a cardiac arrest. It was further stated that the insured had suppressed the fact of pre-existing decease. That in the enquiry conducted, it was revealed that he had availed medical leave and had taken medical treatment in NIMHANS, Bangalore for giddiness and was operated there in June, 1993. It was also stated that he was treated in Adayar Cancer Institute, Chennai from 04.06.1993 to 18.06.1995.

District Forum, taking into consideration the pleadings as well as the documents on record, held that there is deficiency of service on the part of the petitioner and, accordingly, directed the petitioner to jointly and severally pay the balance claim of Rs.84,333/- with interest @ 9% p.a. from 31.07.1997 till the date of payment besides costs of Rs.1,000/-.

Petitioner being aggrieved filed an appeal before the State Commission. The State Commission dismissed the appeal holding that at the time of revival of the policy, no fresh declaration had been taken from the insured. That under the circumstances, it was difficult to come to the conclusion that the insured had suppressed the pre-existing disease with a fraudulent intention.

Petitioner being aggrieved, filed this Revision Petition, which was admitted. Notice was ordered to be issued on 07.04.2005 for 06.01.2006. In spite of service, respondent did not put in appearance. Fresh notice was ordered for 09.10.2006. Even on the adjourned date of hearing, respondent did not put appearance. Notice was again issued on 01.12.2008 for 12.01.2009 but none has put in appearance for the respondent. Ordered to be proceeded ex-parte.

Counsel for the petitioner has been heard at length.

After expiry of the policy, if the party chooses to revive the contract of policy, then, the revival, in law is, clearly a fresh contract and a duty is cast on the insurer to file a fresh declaration. In the case of revival of policy, a fresh declaration is a must. State Commission is wrong in observing that no fresh  declaration was taken from the deceased at the time of revival of the policy. Petitioner has annexed the declaration on 03.01.1996 given by the deceased while getting the policy revived. In this, the deceased had made the following declaration: -

“1) I hereby declare that I am in good health and that I have not undergone nor have been advised to undergo any medical or surgical treatment or X-Ray, ECG, Pathological or other tests since the date of proposal or last revival to this date.”

The State Commission has clearly erred in observing that fresh declaration was not taken from the deceased. The deceased, in the declaration, has not mentioned that he was suffering from Malignant Brain Tumor. Petitioner has put on record the certificate issued by Cancer Institute (W.I.A.), Regional Cancer Centre, Chennai dated 21.02.2002, which reads as under: -

“Mr. S. Muralidharan was a 32 year male, admitted to Cancer Institute on 10.7.1993, diagnosed as “Malignant Astrocytoma” in the left fronto parietal region. Before admission he has already undergone Craniotomy and decompression by resection of tumor elsewhere. In the Institute he received post operative radiotherapy to brain to a total dose of 5600cGy. Follow up CT scan of head on 15.12.93 did not show recurrence. His general condition remained good with mild residual weakness. Follow up CT scan done on 3.2.96, was suspicious of recurrence of the tumor. Recurrent lesion was considered inoperable and patient was started on chemotherapy on 5.2.96. He was treated with PCV regime (CCNO, Vincristine and Procarbazine). Patient received 6 cycles of above regimen until 17.6.1996. CT scan showed persistant tumor and chemotherapy was stopped. He was admitted at outside hospital on 6.2.97, due to seizures and vomiting. MRI done at this time showed multiple lesions. He underwent VP shunt on 11.2.97. His mental condition continued to deteriorate and he was advised only supportive care. He subsequently expired on 31.5.1997.”

The certificate issued by the Cancer Institute, Chennai clearly goes to show that the petitioner had undergone medical treatment for Malignant Brain Tumor in the year 1993 and, while getting the policy revived in the year 1993, deceased suppressed the fact that he was suffering from Malignant Brain Tumor. Declaration given by him while getting the policy revived was false. Deceased was clearly guilty of suppressing the pre-existing fatal disease from which he was suffering at the time of getting the policy revived. Suppression of pre-existing disease disentitles the claimant to the amount insured under the policy.

The Orders passed by the State Commission as well as the District Forum run counter to the well-established principle that if a policy is taken or revived by suppressing pre-existing material fact like pre-existing disease, then, the insurance company is not liable to pay the amount insured under the policy.

For the reasons stated above, the Orders passed by the State Commission as well as the District Forum are set aside and the complaint is ordered to be dismissed. No costs.
………………………
(ASHOK BHAN J.)
PRESIDENT
……………………..
(B.K. TAIMNI)
MEMBER

Jul 20

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1203 OF 2003
(Against the order dated 16.10.2002 in Appeal/ Complaint No.1936/1998 of the State
Commission, Haryana)

1. Life Insurance Corporation of India …….. Petitioners
Central Office, Yogeshame,
Jiwan Bima Marg
Mumbai – 400 021.

2. The Divisional Manager
Divisional Office
Life Insurance Corporation of India
Post Box No. 106, SCF No. 135 – 138
Sector – 13, Urban Estate
Karnal (Haryana)

3. The Branch Manager
Life Insurance Corporation of India
D.L.F. Colony, Rohtak
Through their Zonal Manager
Life Insurance Corporation of India
Jeevan Bharti
Connaught Circus
New Delhi – 110001.

Vs.

Smt. Vijay Chopra …… Respondent
W/o late Shri Vijay Kumar Chopra
House No. 279, Sarojini Colony
Yamuna Nagar, Haryana.

BEFORE:
HON’BLE JUSTICE MR. M.B. SHAH, PRESIDENT
HON’BLE MRS. RAJYALAKSHMI RAO, MEMBER
HON’BLE DR. P.D. SHENOY, MEMBER

For the Petitioner : Shri S.P. Mital and Ms. Meghna Mital, Advocate
For the Respondent : Shri Aditya Narain, Advocate

Dated the 26th March, 2008

ORDER

DR. P. D. SHENOY, MEMBER

In this case the complainant had taken a life insurance policy despite the fact that he was suffering from non-Hodgkin Lymphoma (Cancer) (hereinafter referred to as NHL), which is a deadly disease.
The insured died on 27.2.1990. The Insurance Company had repudiated the claim of the complainant on 23.3.91 as the deceased had given false answers to the various questions in the proposal form and that the LIC holds indisputable proof to show that before he proposed for the above policy he was suffering from the NHL for which he had consulted a doctor and had taken treatment etc.
Therefore, the widow instituted a complaint before the District Forum on 24.4.93, which was dismissed by the forum on 2.11.1998.

The State Commission, in appeal, after hearing the parties held as follows:
“There is no history on the record to show that the insured after taking the insurance policy was admitted in any Hospital and the insured had died after two years from the date of taking the insurance policy. It is also pointed out that the life is assured to ensure financial security and in case of demise of the policy holder, dependents of the insured don’t suffer any financial hardship. In view of the above discussions, the impugned order is quashed and the complaint is allowed by directing the LIC to pay the sum assured of Rs. 1,00,000/- along with interest @ 10% per annum from the date of filing of the
complaint till its realization. The appeal stands allowed accordingly.”

Aggrieved by the order of the State Commission LIC has filed this revision petition.

The medical text on cancer “Principles & Practice of Oncology” 7th Edition by Vincent T. D. DeVita, Jr. Samuel Hellman Steven A. Rosenberg mentions the following principles of management of non-Hodgkin’s Lymphoma “The phases of patient management include obtaining an adequate biopsy for an accurate diagnosis, a careful history and physical examination, appropriate laboratory studies, imaging studies, and possibly further biopsies to determine an accurate stage and to plan therapy. Finally, taking into account factors related to the patient, type of lymphoma, and stage and pace of disease, a treatment recommendation must be made.”
Only after the various tests confirm the existence of non-Hodgkin’s Lymphoma, chemotherapy of different regimen is recommended.
In this case the complainant had filled up proposal form on 29.1.88 in which he had given the answer ‘No’ to the following questions :-
· Have you ever suffered from or are you suffering from Cancer, leprosy, rheumatism, gout enlarged glands or tumours?
· Have you consulted a medical practitioner, within the last five years for any ailments requiring treatment for more than a week?
· Have you remained absent from place of your work on ground of health during the last 5 years?

Department of Radiotherapy Medical College and Hospital, Rohtak dt. 15.3.1991 certified as follows :
“This is certified that Vijay Chopra S/o Sh. Radhe Krishan 45 years Male reported us on 3.2.88 vide R.T. OPD No. 30/38 with diagnosis of Non-Hodgkin Lymphoma.
He was given Radiotherapy and put on chemotherapy. He lastly reported us on 5.4.88 after that no whereabouts were known about the patient to us.
Sd/-
Deptt. Of Radiotherapy
Medial College Hospital Rohtak.”
This certificate clearly indicates that when he reported at the said hospital he was already suffering from NHL. This means the diagnosis was done much earlier which itself is an elaborate process and a certificate given by Professor and Head of the Department of Radiology, P.G.I.M.E.R., Chandigarh has mentioned in the case summary that when the patient attended the radiotherapy OPD on 5.5.1988 he had made a complaint of swelling on both sides of neck and lump in the abdomen since five months which means at the time of filling up of proposal form he was suffering from the said disease.

In view of the above analysis the revision petition is allowed and the order of the State Commission is set aside. There shall be no order as to costs.
…………………….J
(M.B.SHAH)
PRESIDENT
…………………………..
(RAJYALAKSHMI RAO)
MEMBER
…………………………
(PD SHENOY)
Rajani MEMBER

Feb 18

Arbitration is the current flavour of the legal and corporate world. And it does come in various flavours, one has domestic arbitration, institutional arbitration, ad hoc arbitration, international arbitration, forced arbitration, sole arbitrator arbitration, three member arbitration, named arbitration and arbitration by an expert, current employee, retired judge or as per mutual understanding.

What started as a alternate to complex court proceedings dominated by complex legal language and pitfalls and became the favoured child in the tri-family of alternate dispute resolution mechanism, the other two being mediation and conciliation has now grown up to encompass various countries, legal processes, territorial jurisdictions and trans national laws and become even more complex and complicated than law of any nation could ever aspire to be. Thus we now have internation arbitration counsels spending every billable hour trying to distinguish between the fine line of lex arbitri and lex fora and slice it with law of countract versus the law of arbitration mixed healthily with law of land of arbitration and law of land of execution.

Arbitration truly is the weapon of choice of corporates and thus  NBFIs and credit card companies created the perfect proceedure of speedy recovery of disputed debts by process of forced arbitration by process of having the arbitration take place beyond the territorial jurisdiction of occurance and having a helpful arbitrator giving quick and benovalent awards in their favour.

No wonder, out of the blue, the common man has suddenly shown his back to  the favoured child of ADR mechanism and various checks and statutes are being created to rein in the process of arbitration.

The government too, at least in India, has shown it’s favour to mediation as can be seen from various hoardings one sees outside police stations, electricity boards and such. The corporate world, not to be outdone, too is doing its bit by advertising arbitration through lobby groups, arbitration associations etc.

The question is, whether all this has helped? Or the attempts of various arbitration associations, councils have merely slowed the inevitable death of a giant.

Unless arbitration professionals, wake up, take the responsibility, take charge and cure the ills that face the process; only time will tell.

Meghna Sankhla

Managing Partner, Sankhla & Associates

Jun 29

Introduction

A trade mark or trademark or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities Trade Mark is a part of Intellectual Property Rights law or right which also include Trade Mark, Patents and Copyrights.

A trade mark is designated by the following symbols:

* ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)

* (for an unregistered service mark, that is, a mark used to promote or brand services and is thus distinct from Trade Mark)

* ® (for a registered trademark or Trade Mark)

A trade mark or trademark is one of the elements of Intellectual Property Right and is represented by the symbol TM or ® or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories. Some questions are usually asked, which can be how do you trademark, what is trademark, how to trademark, what are trade names, trademarks etc. This article seeks to answer few of the questions.

The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States. A service mark is a recent entrant to the domain of Intellectual Property Right or IPR which as already stated include copyrights and patents.

Trademarks are symbols, designs, or any form of identification that helps people recognize a brand. The owner of a certain trademark receives rights if that trademark is registered, these rights protect his brand from being copied and distributed illegally. The agency which registers the trademark gives people trademark rights and receives different financial advantages.


Violation of Trade Marks

The owner of a registered trademark may commence legal proceedings for trademark violation to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. The process to protect trade mark is different from

protective measures taken for other forms of IPR (Intellectual Property Rights) like patents and copyright.

Two types of remedies are available to the owner of a trademark for unauthorized use of his or her mark or its imitation by a third party. These remedies are:

1. An action for infringement’ in case of a registered trademark; and

2. An action for passing off’ in the case of an unregistered trademark

While former is a statutory remedy, the latter is a common law remedy. In an action involving infringement or passing off, a court may grant relief of injunction and/or monetary compensation for damages for loss of business and/or confiscation/destruction of infringing labels and tags etc.

Although registration of trademark is prima facie an evidence of validity of a trademark, yet the registration can not upstage a prior consistent user of trademark, for the rule is ‘priority in adoption prevails over priority in registration’.


Trade mark Law in India

The Indian law of trademarks is enshrined the new Trade Marks Act, 1999 came into force with effect from September 15, 2003. The old Trade and Merchandise Marks Act, 1958 was repealed at the same time. The new Trademarks Act of 1999 is in line with the WTO recommendations and is in conformity with the TRIPS Agreement to which India is a signatory.

India has declared certain countries as convention countries, which afford to citizens of India similar privileges as granted to its own citizens. A person or company from a convention country, within six months of making an application in the home country, applies for registration of the trademark in India. If such a trademark is accepted for registration, such foreign national will be deemed to have registered his or her trademark in India, from the same date on which he or she made application in the home country.

Foreign Investors and Registration of Trade Mark in India

Registration of trademarks is one of the important protections that businesses should avail in India. Many foreign and domestic Applicants have been able to successfully register their marks in India. Indian courts have upheld many of those registrations and granted favorable decisions to rights holders.

Protecting the trademarks

The trademarks can be protected by business houses if they adopt the following ways.

If their trademark is available for use, then immediately apply for the registration. The rights holder should also consider hiring a watching service to monitor the trademark journals in order to alert them to any published, deceptively similar trademarks or descriptive trademarks that might be of concern. Should the rights holder own a trademark that has been used and has acquired goodwill and reputation, it is advisable that along with filing of the trademark application in India, they should also make press releases, publish cautionary notices and advertise the mark to ensure that the relevant section of the public is aware that they are entering the Indian market and are protecting their trademark from any kind of third party violation.

Recent case laws

Ranbaxy Laboratories Limited vs. Anand Prasad & Others The appellant was the registered proprietor of the mark ‘FORTWIN’ and had been using the mark since 1975. The respondent applied for registration of the mark ‘OSTWIN’. Both the marks related to pharmaceutical compositions in respect of treatment of bones.

The appellant brought an action against the respondent stating that the mark is deceptively similar. The IPAB held that the prefixes are ‘FORT’ and ‘OST’ while both the marks end with the suffix ‘WIN’. It was further held that since the rival goods are also pharmaceutical goods it might lead to serious consequences due to deception or confusion in the minds of the public. Hence on the possibility of harm being caused to common person the appeal was allowed

Amul wins trade mark case in Gujarat High Court, (Sep 24, 2007)

Amul has won the trade mark case in Gujarat High Court and no one else can use it. The Kaira District Co-operative Milk Producers Union Ltd. and GCMMF had filed trade mark infringement cases, against two local shop owners Amul Chasmaghar and its partners and Amul Cut Piece Stores in the District Court, Anand.

The District Court, Anand passed an order dated 25 April 2007, ruling that it was a clear case of infringement and restrained the two from using the Amul trademark. Amul Chasmaghar had challenged this interim injunction in the Gujarat High Court. The Gujarat High Court ruled the decision in favor of Amul, terming the order passed by the trial court as true, correct, legal and in consonance with the facts of the case, as well as in accordance with the provisions of the Trade Marks Act 1999.

Wyeth Holdings Corp. & Anr. vs. Sun Pharmaceuticals Industries Ltd. In this case the plaintiff whose former name was American Cynamid Company and who was the proprietor of the trademark ‘PACITANE’ registered the mark in Class 5 of Pharma goods. The respondent was using the mark ‘PARKITANE’ with respect to similar goods. The plaintiffs filed a suit for infringement and passing off and sought various reliefs including interim injunction against the defendant for using the mark ‘PARKITANE’.

The Court held that in both the cases the goods are similar, being pharmaceutical preparations for treatment of Parkinson’s disease, the customers buying these goods are the same and the trade channels are the same. Since the defendants did not show any search of the Register before adopting the impugned mark, prima facie adoption of the mark was not honest. Further, the Court held that despite protests, if the defendants have chosen to continue to sell the products, it cannot be said to be acquiescence by the plaintiff. Therefore the Court held that injunction is to be granted in favour of the plaintiff.

The Court further held that in case of pharmaceutical products, the test is of possibility of confusion and not probability of confusion. The plaintiffs have been in the field since 1950 and as such the balance of convenience is in their favour. The Court granted injunction in favour of the plaintiffs.

Conclusion

In conclusion it can be drawn that Indian Trade Mark Law must me updated frequently keeping in pace with the dynamic and new methods of Trade Mark infringement. Both Courts and Enforcement authorities must be well equipped and be trained for efficient disposal of cases relating to Intellectual Property which with Trade Mark also include Patent and Copyright.

Article by Sankhla and Associates Team

Jun 29
Examination of Accused in the Indian Criminal Law
Posted by Kapil Sankhla in Uncategorized on 06 29th, 2011| | 14 Comments »

INTRODUCTION

The role of media in safeguarding human rights is as important as that of the judiciary. Human rights refer to the “basic rights and freedoms to which all humans are entitled.” Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and economic, social and cultural rights, including the right to participate in culture, the right to food, the right to work, and the right to education.

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Human rights violations occur when any state or non-state actor breaches any part of the treaty or other international human rights or humanitarian law. Media plays a vital role in everyone’s life. It solves their problems. Media is something that is must for today. It helps and provides vital information to the people. Media is considered to be the 4th pillar of the society. The other three being legislative, executive and judiciary. It definitely plays an important role in the welfare of the society. Media has a constructive role to play for the society. Media plays an important role in the society. They help us to know current affairs on the spot. They put their lives in danger during a terrorist attack or a natural disaster, just to inform us about it. It is partly because of them that there is awareness spreading in the society. It is the media who shape our lives. Without media our lives are incomplete. Without the media, it would have never been possible for us to become so much advanced. Human Rights which existed as mere theorical debate during the pre-Second World War have now become a practical goal of many modern Nation-states across the world. Today, the leaders of the world recognized the need to inculcate the indicators of human rights protections and practice as an input for development. So, In safeguarding human rights media plays a very important role.

Human Rights which existed as mere theorical debate during the pre-Second World War have now become a practical goal of many modern Nation-states across the world. Today, the leaders of the world recognized the need to inculcate the indicators of human rights protections and practice as an input for development. Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations. Companies, NGOs, political parties, informal groups, and individuals are known as non-State actors. Non-State actors can also commit human rights abuses, but are not generally subject to human rights law other than under International Humanitarian Law, which applies to individuals. Also, certain national instruments such as the Human Rights Act 1998 (UK), impose human rights obligations on certain entities which are not traditionally considered as part of government (”public authorities“).

Multinational companies play an increasingly large role in the world, and are responsible for a large number of human rights abuses. Although the legal and moral environment surrounding the actions of governments is reasonably well developed, that surrounding multinational companies is both controversial and ill-defined. Multinational companies’ primary responsibility is to their shareholders, not to those affected by their actions. Such companies may be larger than the economies of some the states within which they operate, and can wield significant economic and political power. No international treaties exist to specifically cover the behavior of companies with regard to human rights, and national legislation is very variable

HUMANRIGHTS VIOLATION

Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.

Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, International Federation of Human Rights, Human Rights Watch, World Organisation Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organisations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws. Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report (covering 2003), the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only (mappable) countries that did not (in their opinion) violate at least some human rights significantly.

There are a wide variety of databases available which attempt to measure, in a rigorous fashion, exactly what violations governments commit against those within their territorial jurisdiction. An example of this is the list created and maintained by Prof. Christian Davenport at the University of Maryland.

Wars of aggression, war crimes and crimes against humanity, including genocide, are breaches of International humanitarian law and represent the most serious of human rights violations. When a government closes a geographical region to journalists, it raises suspicions of human rights violations.

The role of media in safeguarding human rights is as important as that of the judiciary, National Human Rights Commission (NHRC) Chairman and former Chief Justice of India Justice M.N. Venkatachaliah in on seminar delivered that : “We have a limited notion of human rights. The meaning of human rights transcends mere abuse of power. Even bad drinking water that impairs people’s health and efficiency is a violation of rights,” Justice Venkatachaliah said. He added that the role of media in highlighting the cause of human rights, “should include issues such as literacy, health, family relationships and not mere abuse of authority”.

He [1]also cautioned that self-regulation is necessary in both media and judiciary. He remarked that politicians had become brokers of people’s anger and the media has failed to notice that. Citing a sample study conducted by the Commission that 78 per cent of the total deaths of prison inmates, most of them undertrials, had been due to pulmonary tuberculosis caused by the unhygienic, ill-ventilated and overcrowded jails, he said, “The media must address such unsung issues.” Advocate General, Punjab, H.S. Mattewal, said that poverty and crime are the underlying causes of all human rights violations.

Responding to an observation made by retired Supreme Court judge, Justice Kuldip Singh, that the Punjab government had failed in its promise to constitute a commission for looking into violations of human rights during terrorism. Mattewal pointed out that under Section 36 of the PHRA, [2]the commission could not take up cases over an year old.

THE MEDIA AND HUMAN RIGHTS

Until a decade ago, the word ‘media’ was synonymous with the word ‘the press’, which in turn was synonymous with newspapers. However, the Iraqi invasion of Kuwait in 1991, which led to the first Gulf War between America and Iraq, gave birth to the cable television network, and became a springboard for the Cable News Network (CNN) founded by Ted Turner of the Media Corporation. This was followed with the advent of the Internet, which has virtually revolutionized the scope and the reach of the media across the globe.

In India, the Press played a crucial role during the freedom struggle. The role played by great statesmen like Bal Gangadhar Tilak, Mahatama Gandhi and Pandit Jawaharlal Nehru is unparalleled, thanks to the zeal with which they devoted to their respective newspapers - Kesari, Harijan and National Herald. They succeeded despite the repeated efforts made by the British regime to curb their writings by charging and then sentencing them in one sedition case after another.

In 1978, the Government introduced ‘The Press Council Act - 1978’ to ‘preserve the freedom of the press and also for maintaining and improving the standards of newspapers and news agencies .in India’. This Act has to some extent helped the Press to be more transparent and also simultaneously be accountable.

The first major case of human rights violations ever to have been reported in the media, is the story of the blindings of prisoners in Bhagalpur jail and which threw light on the alarming state of affairs in the jail. Thereafter in mid eighties, Sheela Barse’s investigative story on the condition of exploitation and abuse of female inmates of Arthur Road Jail in Mumbai, also in Sunday, resulted in an enquiry into the condition of prisons all over Maharashtra.

The printed media has played a significant role during the last twenty-five years or so in reporting the violation of human rights. However, of late the printed media has been receiving stiff competition from television with the advent of news channels such as Star News, Zee TV and Aaj Tak were thrown to air.

“ This healthy competition between print and electronic media has compelled them to carve out a new kind of readership and/or viewership in other areas such as fashion, cuisine, health care, real estate, environment, sports etc. While defending the latest trends, the media say, “we cater for the demands of our readers and viewers.”

Modernization of media, worrying trend for human rights activists

But one fears that in the entire modernization and revolution process of the Indian media, human rights might take a back seat. This fear is further compounded due to the constant changes in the global economic pattern, which began with the introduction of the WTO six years ago. The recently concluded US-led war on Iraq is also going to change the financial and economic equations around the globe, in which ‘human survival’ might assume more importance than ‘respect for the human rights’.

Although the concept of ‘human rights’ came into existence way back in 1948 with the UN’s Universal Declaration to that effect, in India the National Human Rights Commission Came into existence forty-five years later, in 1993, with ‘The Protection of Human Rights Act [3]’. The State Human Rights Commission has came into existence barely two years ago and is still in the embryonic stage.

One might wonder why the enactment of a nationwide law was delayed for 45 years? Well, no such necessity was felt as many of the Articles of the Universal Declaration of Human Rights have already found place in the Fundamental Rights enshrined in our Constitution.

The Indian Constitution is one of the classical documents of its kind and has been drafted in such a systematic and simplified manner that is easy to understand, even for a layman. This speaks the volumes for the vision and energy of Dr. Babasaheb Ambedkar whose efforts in the making of the Indian Constitution were quite gigantic.

However, when it comes to the reporting of the human rights-related incidents, the newspapers devote very little space to them, unless the incidents it self is a very newsworthy and has national importance. Newspapers seldom make a serious effort to follow up such stories, which they report with a greater zeal in the beginning.

A CLIMATE FOR PROFESSIONALISM AND RESPECT FOR HUMAN RIGHTS

Journalists need to work in professional and social conditions where they are free to resolve ethical dilemmas alone and where they can make professional decisions on editorial content. This is a prerequisite for good journalism not just in the world over. This type of editorial independence should exist both in publicly owned and privately owned media, irrespective of ownership. Actions to support independent journalism should build on the following principles:

(i) public scrutiny of the exercise of power is essential in a democracy;

(ii) law related to journalism and media should be consistent with international standards and only elaborated after the fullest consultation with journalists;

(iii) independent organisations of journalists are best able to defend media freedom;

(iv) media professionals have a duty to work to the highest standards and should accept

responsibility to set up structures for effective self-regulation.

Strengthening Media Professional Organisations

Media professionals (journalists, publishers, broadcasters) in India have the expertise, the talent and commitment to build new and lasting structures in all media. They are best able to identify obstacles to press freedom, to define solutions to media problems and to implement strategies for media development. Indian media professionals must be closely involved in the implementation of media training and assistance programmes. Too often, well-intentioned interest groups, particularly in the field of human rights and development seek to represent the needs of media. Journalists must be able to speak for themselves.

A Comprehensive, Integrated and Accountable Strategy

Strategies for media development and assistance in the region must be long term, they must tackle all obstacles to media freedom (covering legal conditions, professional and social organisation, training and media development) and they must involve all media professionals. In addition, the allocation and disbursement of public funds must adhere to the principles of transparency and accountability.

Media is the part of civil society. By “civil society” we normally mean all those organisations outside the state, the family and the market. This includes charities, community groups, professional associations, women’s organisations, advocacy, faith, self-help and recreational groups, academia, business and trade associations, employers’ associations and trades unions. The term “fourth estate” was, devised because of the very fact that the media are so difficult to characterise. Generally outside civil society are those media established in pursuit of political power or profit and market share. But the boundaries are fuzzy. Some of these governmental and commercial broadcasters do broadcast significant educational and non-party-political information that is of great public service.

Perhaps the concept of the “social entrepreneur” is helpful here. This refers to organizations and individuals who address civil society’s social, democratic, economic and environmental needs in traditional non-profit ways, but who [4]make use of innovative, entrepreneurial and private sector approaches to deliver new and better services to their audiences. Public sector and even some commercial broadcasters could be described as social entrepreneurs, delivering knowledge and information that genuinely contributes to democracy and development.

Well and truly within the civil society sector are the growing number of community radio stations, who serve local communities, often in their indigenous language and from a civil society organization base such as a faith group or NGO.Increasingly perhaps we will see the growth in community internate broadcasters too.

THE MEDIA AND DEVELOPMENT

Civil society wants media that go beyond political dogma and entertainment to educate and inform the whole nation, free from government interference and commercial pressure. They want the media to help create a knowledgeable, entrepreneurial and confident society able to address and achieve development goals, particularly the Millennium Development Goals. Investment in the capacity of the free press, broadcasters and other media should be a high priority because they are best placed to communicate economic, social and environmental information and develop an educated public. In this way an informed consensus can be built around the difficult choices that are inevitable on the road to economic stability.

Strengthened media are also needed in order to deliver freedom of expression and freedom of information about the way citizens are being governed. These are fundamental building blocks of democracy, development and human rights as set out in the Indian Charter for Human and Peoples’ Rights.

ROLE OF MEDIA.

The violation of human rights, no matter in which sphere of life they occur, essentially takes place because ‘human values’ are not recognized in the first place. The importance of the human rights needs to be taught from the primary level in schools, when children are the right age to absorb them.

Police are often accused of violating human rights, but sadly, no effort is made by the home department to include the subject in the curriculum of police training academies. Here lies an opportunity to train policemen about the importance of respecting and observing human rights and the consequences of the breaching them.

The media can play a pivotal role by way of building up public opinion, and also by impressing on the government the need to incorporate the subject of human rights, both in schools and also in police training academies, and also in the training institutes for municipal councils, corporations and other revenue departments.

It is the duty of the government to provide its citizens with unpolluted air. But, if the local authority is going to give building construction permission in a ‘green zone’ or for the construction of a chemical plant in the area nearby to residential locality, then it would definitely be a violation of human rights. The de-reservation of plots for housing projects in metropolis is a huge scam, taking place with utter disregard to the human rights, but it is seldom reported in the media.

The priority of the Press

It is a common experience, at least in the big cities like Mumbai and Pune, that matters relating to de-reservation of plots by the builders, or the violation of environmental norms by the companies are rarely reported, as the reporting about their misdemeanors might deprive the newspapers of potential advertisements.

The print media these days is undergoing lots of changes, thanks to the challenges thrown up by the electronic media. Time was when the editor was ‘The Boss’ of the newspaper and it was he who used to call the shots with the management. Now a newspaper is treated like any other manufacturing product, with the marketing (also known as ‘Response’) department at the helm of affairs. The editor is being reduced to a ‘hired labourer’, working purely on a contract basis.

Such a sea change in the attitude of the management of some of the newspapers means that they are unlikely to antagonize the government by reporting stories relating to the violation of human rights, lest these stories rob them of the advertisements issued by the Directorate of Audio and Visual Publicity (DAVP). This is a dangerous trend from the human rights activists’ point of view.

DIFFERENT ROLES OF MEDIA IN HUMAN RIGHTS.

Media is really an important object in the society now a days. Without the media, it would have never been possible for us to become so much advanced. Though sometimes it becomes too intrusive, but still I think it plays a very important role in our society. It helps us to know about how the poor people are being exploited by the richer ones, how the students are being abused by the teachers, how the brutal fathers are killing their own baby in its mother’s womb as it is a girl. Had the media been not there we would have never been able to know a bit about all these.

The main important functions of the media are entertaining, educating and informing the society. For the society to cope in this technologically dependent era, they need to be media saturated. Today, media is considered the fourth pillar of the state all over the world, first and foremost British Member of Parliament Lord Macaulay had given this status to the media, in any country, the governing body has a significant position, then religious leaders have second position, after that general public has third position and media have fourth position. In any republican government system, there must be three administrative bodies, 1- Parliament, 2- Administrative department, 3- Judiciary body. In the absence of any of these three bodies, the government can not run systematically, but now it is felt that one body more is necessary to be with them, that is media, this body is considered more important these days, it plays an important role as an informative bridge between governing bodies and general public, in absence of media general public cannot know about what kind of bills and acts are passed in the parliament, and what are their positive and negative effects in the society, if media person close their eyes the government officials will do what they want, so media plays a very important and impartial role between government activities and general public, so much so that it is said that the freedom of media is the guarantee of success of republic government.

The Mass Media is an unique feature of modern society. It’s development has accompanied an increase in the magnitude and complexity of societal actions and engagements, rapid social change, technological innovation, rising personal income and standard of life and the decline of some traditional forms of control and authority. There is an association between the development of mass media and social change, although the degree and direction of this association is still debated upon even after years of study into media influence. Many of the consequences, either detrimental or beneficial, which have been attributed to the mass media, are almost undoubtedly due to other tendencies within society. Few sociologists would refuse the importance of the mass media, and mass communications as a whole, as being a major factor in the construction and circulation of social understanding and social imagery in modern societies. Therefore it is argued that the mass media is used as “an instrument”, both more powerful and more flexible than anything in previous existence, for influencing people into certain modes of belief and understanding within society.

CONCLUSION

Media plays an important role in today’s world. Through media we can get information in few minutes. But we should not see just one side of the coin as there are many good and bad things considering both the sides of the same coins. According to me, MEDIA in true sense acts as a connectivity bridge between people worldwide. It makes us aware about what all is happening in this world. It is only due to media which we are able to be safe from being involved in various dangerous activities.

Media plays a very important role in our lives, it is because of media that we are all aware of what is happening around us. Not only does it bridges the gap between the government and the the general public but it also provides us with the information about what is happening in the other parts of the world, the new technologies that is being developed, about inventions, disasters and almost everything. It is because of media that any kind of information is just one click away. When we talk about media, we are not talking about the electronic media only, it includes newspapers, magazines, radio, internet etc. Though it is true that electronic media is more prevalent and it has greater impact on the masses, but the role of other media cannot be neglected.


[1] Justice M.N. Venkatachaliah

[2] Protection of human Rights Act.

[3] 1933

[4] Media helps in it.

Jan 17

Property and gold has been consistent investment for most individuals. The only difference has been that unlike gold property is an expensive investment. In India property prices have risen sharply with foreign investment coming in from overseas in the property segment as well as construction sector. Unfortunately many unscrupulous builders and fly by night operators also entered the fray claiming to be colonisers, builders with fancy names and fancier projects. It has not helped that most people are not aware of the laws, regulations and conveyances which regulate and protect the purchaser. It is also an unfortunate fact, that the transactions in real estate industry, at least in India, cannot be regularised, due to payment issues in black and white. The government has sought to curb this menace by imposing circle rates in different territories and areas, but the same has not been effected, being without  application of mind.

Even as date, despite the real estate and construction industry having matured and reaching its peak, the transactions are still not well organised, with many legal owners and loopholes that are exploited by unscrupulous wheeler dealers, may they be real estate agents, sellers, builders, colonisers or even buyers and consumers. Penny pinching is rampant in the industry, creating copycat situations of a particular draft of conveyance for a particular deal being used in all other and wrong situations, deals and projects. This practice of not involving professionals may they be legal counsels, draft men, or tax consultants have created situations where the buyer and in many situations the seller being stuck with precarious legal and tax issues in their hands. The situation becomes even more grave when either the buyer or seller expires and the legal heirs discover grave lacuna in the conveyance documents which cannot be easily rectified.

Real estate involves both land and building. Lands are of of many kinds and have different laws pertaining to different kind of land. It would be foolhardy to take an agricultural land in the same scale and footing as that of residential, industrial, Lall Dora, commercial, institutional or otherwise. The same holds true for properties who derive their existence, usage and right primarily from the kind of land they are built upon. The usage of land can be changed in some instance and may further be changed procedurally by the government for the general benefit of society and people at large and as per changing requirements and usage. A clear example of the same can be taken to be flat and apartments being allowed to be built on residential plots and the government allowing sale and registration of the same on either the floor basis as well as flat basis.

In India the primary act governing the real estate can be taken to be The Transfer of Property Act, 1882. It is pertinent to note that this act has not been overhauled since 1882 and is thus hopelessly outdated. Unfortunately for a layman, this act is by no means the be all and end all of understanding the real estate laws. Apart from local laws, income tax laws, the general clauses act, the foreign exchange laws, inheritance laws, rent laws, state amendments have all to be understood. The safest way thus to purchase and invest in the property should be to engage a competent legal professional to undertake document and deed verification and undertake title search of the property. The same can be done for the entire chain of ownership where so required so as to protect the investor from being cheated by unscrupulous people or entering into a bad deal inadvertently.

Author

Kapil Sankhla, Advocate is Managing Partner at Sankhla & Associates, Law Firm, having their office in New Delhi, India. The firm Deals with Corporate and Commercial laws and has clients in field of realty, construction, hospitality, retail and aviation. Please visit www.sankhla.in for further details.

This article is copyright of Sankhla & Associates, who reserve complete right over the same. Please contact the author if you wish to republish the same or part thereof.

Oct 28

The business of companies is directed primarily by The Companies Act 1956, as amended from time to time. A company being a juristic person is headed by it’s Board of Directors.  Directors are agents of the Company in transactions they enter into on behalf of the Company, though they are not agents for individual shareholders or members. A director may be an employee, a servant or even a “worker” of the Company. He occupies the position of a trustee, though he is not a trustee in the strict sense in respect of the Company’s properties and funds.
Director’s liability arises because of their position as agents or officers of the Company as also for being in the position of trustees or having fiduciary relation with the Company or its shareholders.
Some of these liabilities are in contract, some are in tort, some are under the criminal law and others are statutory, i.e., under the Companies Act, 1956 and other laws. The courts have, in deciding the liability of Directors, taken into consideration a director’s position as a whole.
Contractual Liability: -
Directors are bound to use fair and reasonable diligence in discharging the duties and to act honestly, and act with such care as is reasonably expected from him, having regard to his knowledge and experience.
In R.K. Dalmia and others v. The Delhi Administration it was held that “A director will be personally liable on a company contract when he has accepted personal liability either expressly or impliedly. Directors are the agents or the trustees of a Company.”
Express liability will usually arise only when a director has personally guaranteed the performance of a contract. Implied liability will arise when a director signs a contract for the Company or mentioning the name but failing to add the vital word “limited” or its abbreviation. This rule rests on the ordinary principle of agency that where an agent enters into a contract without disclosing that he is acting as agent he accepts personal liability. In the case of Penrose v. Martyr a bill was addressed to a company and omitted the word “Limited” in describing it. The defendant (Secretary to the Co.) signed the acceptance and was held to be personally liable by the Court of Exchequer Chamber.
As far as fiduciary duties/obligations are concerned, any breach by any director would visit them with liability. Our Supreme Court has considered this issue of fiduciary liability. It has been observed in Official Liquidator vs. PA Tendulkar.
Pre- Incorporation Liability- A Company cannot make a contract before it is incorporated because, before incorporation, it has no legal existence. Therefore, a Company after incorporation cannot ratify a contract previously made. It must make a fresh contract. But, those who act on behalf of the unincorporated company may find themselves personally liable. In Kelner v. Baxter the Court of Common Pleas held that where a person purports to sign a contract as agent, but has no principle in existence at the time, he is personally responsible.
Liability of Directors for Torts of the company: -
Directors as such are not liable for the torts or civil wrongs of their company. To make a person liable for a tort, e.g. for negligence, trespass, nuisance or defamation it must be shown that he was himself the wrongdoer or that he was the employer or principal of the wrongdoer in relation to the act complained of, or that the tort was committed on his instructions.
Civil Liability to the Company- director’s liability to the Company may arise where
(1) the directors are guilty of negligence,
(2) the directors committed breach of trust,
(3) there has been misfeasance and (4) the director has acted ultra vires and the funds of the company have been applied for such an act.
A director is required to act honestly and diligently applying his mind and discharging his duties as a man of prudence of his ability and knowledge would do. It has been explained in the duties of directors as to what is standard or due care and diligence expected from him as explained by Justice Romer in Re City Aquintable Fire Insurance Company.
Any willful misconduct or culpable negligence falls within the category of misfeasance. It was held in Duomatic Ltd, Re-
“A director has to act in the way in which a man of affairs dealing with his own affairs with reasonable care, and circumspection could reasonably be expected to act…..”
Therefore, Directors would decidedly be liable for omitting to do what they could have done in the circumstances.
A Director is liable to make good with interest all amount paid from time to time out of the funds of the company for the purchase of shares of the company. He is not entitled to spend money for a purpose not covered by the Memorandum of Association although such payment is sanctioned by the Board of Directors and by the majority of shareholders. A shareholder can maintain an action against the director to compel them to restore to the company its funds employed in transactions that the directors have no authority to enter into. The funds of the company cannot be used by the Directors to pay their litigation costs, although these would not have been incurred if they had not been directors. A Director will, however, not be liable for any such unlawful act if he had no knowledge of such payments.
Liability of co-director’s defaults: -
A director is bound by the maxim delegatus non-potest delegare. Shareholders appoint him because of their faith in his skill, competence and integrity and they may not have the same faith in another person. It was held in the case of J.K. Industries v. Chief Inspector of Factories that the directors being in control of the company’s affairs cannot get rid of their managerial responsibility by nominating a person as the occupier of the factory. The rule is, however, not inflexible. The Act or Articles of Association of the Company may make a delegation of functions to the extent to which it is authorized. Also, there are certain duties, which may, having regard to the exigencies of business, properly be left to some other officials. A proper degree of delegation and division of responsibility is permissible but not a total abrogation of responsibility. A director might be in breach of duty if he left to others the matters to which the Board as a whole had to take responsibility. Directors are responsible for the management of the company and cannot divest themselves of their responsibility by delegating the whole management to agent and abstaining from all enquiries. If the latter proves unfaithful, the liability is that of the directors as if they themselves had been unfaithful.
Tax Liability:-
Under Section 179 of the Income Tax Act 1961, when any private company is wound up and the tax assessed cannot be recovered, then every person who was a director of the private company shall be jointly and severely be liable for the payment of such tax. Where the bank account of a Director was frozen for recovering income tax dues of the Company, it was held in Gurudas Hazra v. P.K.Chowdhury that it was for the Director to show that the default on the part of the company was not attributable to any breach of duty on his part. The case of Peter J R Prabhu v. Asstt Commissioner of Commercial Taxes stated that apart from any provisions of the taxing statute, arrears of the tax amount are not to be recovered from the directors personally.
Directors with unlimited liability:-
The liability of the directors like the shareholders is limited to the extent of the shares held by them remaining unpaid. A limited liability can make the liability of any or all of its directors unlimited. A provision to this effect has to be contained in the Memorandum, that a person who becomes director after incorporation of such a clause will have unlimited liability.
Misleading Prospectus-
A director is liable to compensate a person who has subscribed shares on the faith of a prospectus, which contained untrue statement. The Director should compensate every such subscriber for any loss or damage he may have sustained by reason of such untrue statement in an action in tort and also under section 62 of the Act to pay compensate. If the Director discovers a mistake in the prospectus, it is his duty to specifically point it out. The Director may also have to face criminal prosecution for untrue statement in the prospectus. He may be imprisoned for two years and fined Rs.5000.
Inducement to invest-
The Directors are liable to criminal prosecution for inducing or attempting to induce a person by statement or even forecast which is false or misleading to enter into or to offer to enter into any agreement to buy shares of the company. They shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to Rs.10,000, or with both.
Maintenance of proper books of accounts: -
Where directors manage a company then each director shall be responsible (if there is no managing director) that the company should maintain and keep proper books of account. Default or non-compliance will make the Director punishable with imprisonment for a term not exceeding six months or fine of Rs.100 or both. In the event of winding up, failing to keep proper accounts will make him punishable with one-year imprisonment and for falsification of book imprisonment for eight years.
Annual General Meeting: -
Directors must hold the meeting even though the accounts are not ready or the company is not functioning or the management of the business is vested in the Central Government. The holding of the meeting must be within the period of 15 months after the preceding annual general meeting (AGM). The Board of Directors shall at the meeting lay a balance sheet and a profit and loss account for the financial year. For default, the Directors are liable to be punished with imprisonment for a term of six months and fine of Rs.1,000.
Liability on winding up: -
A Director of a company in liquidation must co-operate with the liquidator in realizing the assets of the company and distributing them among the creditors and contributors of the company. If they fail to do so they are liable to imprisonment, which may extend to five years and fine.
Therefore, Directors are liable for theft of the company’s property or for false accounting. Directors are liable to prosecution on several issues. There are more than 150 sections dealing with criminal or penal liability of the Directors and other officers of the company. Some of these provisions have been listed and explained above.
Special statutory protection against liability: -
The Act extends special protection against a liability that may have been incurred in good faith. A good illustration here will be to cite an early case of Claridge’s Patent Asphalt Co, Re where the Court said that the Directors were acting for the benefit of the company and took the best advice from the company’s solicitor and thus were not held liable. The Bombay High Court in the case of Gautam Kanoria v. Astt. ROC also granted relief to the Directors where the AGMs could not be held and annual returns could not be filed due o the takeover of the company by the Government and the matters being beyond their control. The totality of the circumstances has to be examined for considering whether relief is to be allowed or not. It was also observed in Om Prakash Khaitan v. Shree Keshariya Investment Ltd that it would be proper to relieve directors of consequences of defaults and the breaches unless they are directly involved in the acts or omission complained of or have otherwise not acted honestly or reasonably or have financial involvement in the company.
Conclusion: -
Accountability is an important element of Board effectiveness. There should be some mechanism for evaluating the performance of the directors. The extent of liability of a director would depend on the nature of his directorship. In applying the general equitable principles to company directors, four separate rules have emerged. They are (1) that directors must act in good faith in what they believe to be the in the best interest of the company (2) they must not exercise powers conferred upon them for purposes different from those for which they are conferred. (3) that they must not fetter their discretion as to how they shall act and (4) that without the informed consent of the company, they must not place themselves in a position in which their personal interests or duty to other persons are liable to conflict with the duties to the company. Three propositions in regard to the duties and responsibilities of directors:
(1) a director need not exhibit, in the performance of his duties, a greater degree of skill than may reasonably be expected from a person of his knowledge and experience
(2) a director is not bound to give continuous attention to the affairs of his company, his duties being of an intermittent nature to be performed at periodical board meetings or committee meetings.
(3) in respect of such duties as may be properly left to some other official having regard to the exigencies of business or the articles of association of the company, a director is, in the absence of grounds for suspicion, justified in trusting that official to perform such duties honestly.
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Aug 3
An Introduction to Our Law Firm
Posted by Kapil Sankhla in Uncategorized on 08 3rd, 2009| | 10 Comments »

Best law firm in Delhi for internship, is how our interns describe our firm, who come every year from various law schools in Delhi to Dehradun and from as far away as Pune.
Sankhla & Associates (SAA) is a Corporate Commercial Law Firm comprising of proactive and energetic advocates, attorneys and lawyers that provides complete legal services including corporate and commercial law advisory, briefings, senior conferences, appearance in courts, drafting services, contracts drafting and whetting, estate management, probate services, arbitration and alternative dispute resolution, intellectual property right management, real estate law, tax practice, opinion writing and guidance, family attorneys, research work corporate practice as well as litigation etc. We are a Corporate and Litigation law firm with advocates practicing before the Supreme Court of India, the Delhi High Court, National. State and District Consumer Dispute Resolution Forums, District Courts, Debt Recovery Appellate Tribunal, Delhi, Labour Courts and Tribunal inter alia other consumer forums.
Mr. Kapil Sankhla, lawyer and Arbitrator is a founder partner of Sankhla & Associates, which is a solution oriented full service Law Firm based at Delhi in India. Probably the best law firm in Delhi for your needs, Sankhla & Associates with “One Contact Lawyer System” draws on the knowledge and expertise of a vast network of independently practicing legal service providers, advocates and lawyers/ attorneys and has built strong network in different parts of the country giving the law firm an all India presence. Law Firm makes full use of our experienced support personnel and the latest technology to improve the productivity of its lawyers. The Law Firm cooperates with solo practitioner and law firm on worldwide basis. Sankhla & Associates works for some of the best companies who seek the advise of the law firm for varied legal issues in Delhi, India and abroad. Sankhla & Associate seeks regular cooperation from leading US, UK and European law firms / attorney/s and is always open to strategic alliances. Our team of dedicated Arbitration Experts, attorneys, lawyers, and other professionals possess thorough knowledge of the Indian legal framework and deft negotiation skills. Law Firm’s structured network of professionals provides client with access to the Law Firm’s complete range of potential in virtually every area of law. The pioneering solutions that we provide to our clients are a blend of technical expertise and commercial pragmatism. Law Firm provides relevant legal services expertly, promptly and in a cost-effective manner to assist clients in achieving their business objectives. Law Firm is widely known as a pragmatic, constructive and result-oriented firm. Our absolute commitment to deliver results has helped us to create a niche for our ourselves in the mindscape of our consumers.
Being a Corporate Commercial law firm, the legal experts, attorneys/ lawyers of Sankhla & Associates have abundant skills in areas like mergers and acquisitions, joint ventures, foreign collaboration franchise laws and national and international arbitration. By utilising the proficiency of our lawyers/ attorneys and legal experts, we provide our clients with complete solutions and advises to set up wholly owned subsidiaries in India. Sankhla & Associates, Law Firm renders complete services for setting up new companies and undertakings and helps its clients by creating Legal Standard Operating Procedures (LSOP) for complete regulatory compliance (CRC). We, at Sankhla & Associates believe in providing clear and fair solutions to our clients, to match their specific and special business requirements. Whether an issue is local or multi-jurisdictional, practice area specific or inter-disciplinary, It is a Law Firm’s culture and philosophy to work closely with clients to understand all of their legal needs, and to keep them apprised of legal developments that may affect them while operating in India. We at Sankhla & Associates, suggest the most appropriate strategies to our clients only after a thorough analysis of the needs of our clients. By providing independent, reliable advice, we endeavor to exceed client expectations and maintain long-term relationship with them. We believe in delivering professional advice in a transparent manner and our competitive advantage lies in the superior quality of service we offer to our clients.
The comprehensive range of business, tax, audit, accountancy and investment services that we provide help your business retain their competitive edge.
SANKHLA & ASSOCIATES provides complete legal services to companies, businesses and corporations in the field of Insurance, Recovery and Debt Management, Corporate Advisory, Securitization Laws, Alternate Dispute Resolution (ADR) through Arbitration and Conciliation, Intellectual Property Issues specially Trademarks and Copyright Laws, Labour Management as well as Property Management and Litigation Matters in Courts all over India. The firm also has extensive experience in handling franchises for franchise owners and master fcranchises and can claim wide understanding of Commercial laws for our clients.
Sankhla & Associates, Commercial and Corporate Law Firm stands on the pillar of Trust, Confidentiality and Affordability and the legal advise given by our attorneys/advocates/ lawyers is based on clients requirements and needs.

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