Arbitration Seat and Venue

The seat is the legal home of the arbitration.

It determines the procedural law that applies to the arbitration, such as

the Arbitration and Conciliation Act, 1in India. It designates the courts with the
authority to supervise the arbitration and hear applications for things like setting
aside awards.

If a contract specifies a seat, that location is the seat. If a contract only specifies
a venue, the venue is often considered the seat unless there is a "significant
contrary indicia".

The venue on the other hand is the physical place where the arbitration
proceedings, such as hearings, are conducted.

It is a more flexible and practical choice, often selected for reasons of

convenience or cost. The venue itself does not determine the governing law or
the courts with jurisdiction over the arbitration; this is the role of the seat. The
parties can mutually agree to change the venue without changing the seat.

Majority of the national arbitration laws and institutional arbitration rules permit
the proceedings to be held outside the arbitral seat, in the interest of
convenience. The location of the arbitral seat is not affected by the conduct of
proceedings outside the arbitral seat.

The conduct of proceedings outside the arbitral seat has no effect on the
location of the arbitral seat. Neither does it have an effect on the applicability of
the arbitration legislation of the arbitral seat.
1
Arbitration and Conciliation Act, 1996 (India)
In the absence of an express provision for an alternative place as the seat of
arbitration proceedings and a supranational body of rules governing the
arbitration, the stated venue of the arbitration would be the juridical seat of the
arbitration proceeding.

The seat of arbitration can be changed by the parties, most commonly through
mutual agreement. This can be done either through an express written
agreement or by the parties’ conduct, which can lead to an implied agreement.

This was held in the case of Inox Renewables Ltd v. Jayesh Electricals Ltd
2
where the Supreme court held that in accordance to article 20(1) 3, the seat or
venue of the arbitration can be shifted if both the parties mutually agree to the
same.

It was in Bharat Aluminum Co V. Kaiser Aluminum Technical Service, Inc 4, that

the constitution bench of the SC differentiated between “seat” and “venue” in
order to ascertain the scope of jurisdiction of seat courts as against the venue
courts.

It held that Section 20(1)5 of the Act gives autonomy to the parties of the
dispute to choose a “seat of arbitration”.

failing which Section 20(2)6 empowers the Arbitral Tribunal to decide the same
taking into consideration the convenience of parties as well as the facts and
circumstances of the dispute.

2
Inox Renewables Ltd v. Jayesh Electricals Ltd (2023) 3 SCC 733
3
Arbitration and Conciliation Act, 1996, § 20(1) (India)
4
Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc. (2012) 9 SCC 552.
5
Arbitration and Conciliation Act, 1996, § 20(1) (India)
6
Arbitration and Conciliation Act, 1996, § 20(2) (India)
Section 20(3) 7authorizes the Tribunal to meet at any convenient venue for
consultation among its members, hearing witnesses, inspection of documents
etc.

All legal speculations which have arisen because of Bhatia case was put to rest
by the Hon’ble Supreme Court of India by overruling the same.

It affirmatively held the following:

1. Part I is applicable only to such arbitrations which take place within the
Indian Territory.

2. Section 2(2) makes a declaration that Part I shall apply to all arbitrations
which take place within India. Part I, therefore, has no application to cross
border Commercial Arbitrations which are held outside India. Provisions
contained in Section 2(2) are not in conflict with any of the provisions
contained in Part I or Part II.

3. The 1996 Act has accepted the territoriality principle.

4. No application for interim relief in a foreign seated international commercial

arbitration is maintainable; neither under Section 9 of the 1996 Act nor under
any other provision of Part I of the 1996 Act.

Enercon (India) Ltd & Ors. v. Enercon GmbH & Anr.8

The Court held that the venue of arbitration is the geographical location chosen
based on the convenience of the parties. It is different from the seat of the
arbitration, which decides the appropriate jurisdiction. While courts of “seat” of
arbitration have got the exclusive jurisdiction to exercise supervisory powers on
7
Arbitration and Conciliation Act, 1996, § 20(3) (India)

8
Enercon (India) Ltd & Ors. v. Enercon GmbH & Anr (2014) 5 SCC 1
the process of arbitration, the courts of venue of arbitration is only vested with
concurrent jurisdiction.

Hardy Oil and Gas Limited v. Hindustan Oil Exploration Company Limited and
Ors9

The Gujarat High Court in this case stated that the Courts in India do not have
jurisdiction to entertain the petition filed under Section 9 of the Act, in matters
involving international commercial arbitration, once the parties had agreed to be
governed by any law, other than Indian law. It held that since the parties had
“expressly” chosen English law to be the law governing the arbitration, Part-I
was impliedly excluded.

Delhi High court in the case of Delhi Tourism and Transportation Development
Corpn v. Satinder Mahajan 10held that the Seat of arbitration is not determined
by the cause of action.

In this case the petitioner’s counsel submitted that since the cause of action
arose in Delhi, the seat should be Delhi. The High Court rejected this contention
of the petitioner and held that the cause of action is not a prerequisite in
determining the seat.

But there is a contradicting judgement.

The Supreme court previously in 2023 in the case of BBR Pvt Ltd v.
11
S.P.Singla held that in the absence of a designated seat or venue of
arbitration in the agreement, then the determining factor would become
the cause of action.

Consequently the court within whose jurisdiction the cause of action arose will
have control over the arbitral proceedings.
9
Hardy Oil and Gas Limited v. Hindustan Oil Exploration Company Limited and Ors (2006) 1 GLR 658.

10
Delhi Tourism and Transportation Development Corpn v. Satinder Mahajan (2024) SCC OnLine Del 3206.
11
BBR Pvt Ltd v. S.P.Singla(2023) 1 SCC 693
Doctrine of concurrent jurisdiction:

Concurrent jurisdiction is when two or more different court systems or

authorities have the legal authority to hear the same case. This can happen
between federal and state courts for certain cases, or between different state
courts, such as a local court and a higher-level court.

In ‘A treatise on Law Governing Injunctions’ by Spelling and Lewis, states that,

where a court having jurisdiction has acquired jurisdiction of the subject matter
and issued an injunction, a court of concurrent jurisdiction should refuse to
interfere by issuance of a second injunction. There is no established rule of
exclusion which would deprive a court of its jurisdiction to do so, but it should
do so on account of judicial comity.

This principle has been followed in India household and healthcare Ltd. v. LG
Household and Healthcare Ltd12., wherein the Supreme Court noticed that the
issue was pending before the Madras High Court and an interim stay was
already granted. The Court held that, the doctrine of comity requires a court not
to pass an order which would be in conflict with another order passed by a
competent court of law thus having a party violate a lawful order passed by
another court.

Hence, the Supreme Court invoked the doctrine of judicial comity, holding it
should not issue an order that would conflict with or compel a party to violate a
subsisting and unchallenged injunction issued by the Madras High Court.

Generally, when concurrent jurisdiction is conferred, it would be co-extensive.

In other words, when one authority takes cognizance of a matter, the other
authority is precluded from doing so. Similarly, the Calcutta High Court in
Berger Paints India Ltd. And Ors. v. Asst. CIT 13, held that concurrent
12
India Household & Healthcare Ltd. v. LG Household & Healthcare Ltd., (2007) 5 SCC 510.
13
Berger Paints India Ltd. v. Comm'r of Income Tax, (2004) 8 SCC 419.
jurisdiction cannot be construed in such a manner that one part of the
assessment can be dealt with by one superior officer and the other part might be
dealt with by another subordinate officer.

The court clarified that concurrent jurisdiction (multiple officers having the
authority to hear a case) is not the same as joint jurisdiction (two or more
officers working on the same case simultaneously).

This court established that a single assessment proceeding must be handled by

one assessing officer to ensure validity and prevent confusion.

The judgment underscores that concurrent jurisdiction does not mean joint or
divided jurisdiction; rather, a single authority is responsible for the entire
assessment process.

It is necessary to stick to the designated seat of arbitration because it is the legal

place that determines the governing law and the courts that have supervisory
jurisdiction over the proceedings.

While the venue can be flexible and occur in different locations, the seat is a
critical legal determination for issues like the procedural rules and the grounds
for challenging an award.

In the matter of ST Group Co Ltd. & Ors Vs. Sanum Investment Limited 14, the
court refused to enforce an award made and published at a place other than the
agreed seat of arbitration in the agreement. In this case the seat of arbitration as
per the agreement was Macau but the arbitration was held at Singapore. The
Appellants did not participate in the arbitration proceedings, though conveyed
their objection in writing to the arbitral tribunal.

14
ST Group Co. Ltd. v. Sanum Investments Ltd,2019 SGCA 65, [2019] 5 C.L.R. 319.
While refusing to enforce the award, the court of appeal held that “The choice
of an arbitral seat is one of the most important matters for parties to consider
when negotiating an arbitration agreement because the choice of seat carries
with it the national law under whose auspices the arbitration shall be conducted.
While the parties can, of course, whether deliberately or neglectfully, omit to
specify a seat such a course has been described as unwise. (International
Commercial Arbitration)
Expressio unius est exclusio alterius 15: "the express mention of one thing
implies the exclusion of another"

The principle Expressio Unius Est Exclusio Alterius asserts that when a
statute expressly mentions certain things, it is assumed that anything not
mentioned is excluded.

The Swastik Gases v. Indian Oil 16Corporation judgment held that a jurisdiction
clause in a contract, which specifies a particular court's jurisdiction, can imply
the exclusion of all other courts.

The Supreme Court specifically held in the verdict that usage of words, “only”,
“exclusively”, “alone” in jurisdiction clauses are not mandatorily required to
convey intention of parties to ouster jurisdiction of courts other than courts to
which jurisdiction is conferred by the parties under the agreement.

The Apex Court taking into account the submissions and the relevant clause
held that the intention of the parties is a pivotal aspect and requires to be looked
at while analyzing the ouster clauses. The parties by mentioning that courts at
Kolkata will have jurisdiction in thisregard had impliedly excluded the
jurisdiction of other courts. Relying on the above observations, the Supreme
Court dismissed the appeal with the liberty to the Appellant to file an appeal
before the Courts in Kolkata.

The court held that:

“an agreement which purports to oust the jurisdiction of the Court absolutely is
contrary to public policy and hence void. But where two Courts or more have
under the Code of Civil Procedure jurisdiction to try the suit or proceeding, an
agreement between the parties that the dispute between them shall be tried in

15
O Sender and M Wood, 'Customary International Law' (last updated Oct 2024) in A Peters
(ed), Max Planck Encyclopedia of Public International Law (OUP 2008–) opil.ouplaw.com
16
Swastik Gases (P) Ltd. v. Indian Oil Corp. Ltd., (2013) 9 SCC 32.
one of such Courts was not contrary to public policy and such an agreement did
not contravene Section 28 of the Contract Act”

The principle relied upon is based on the legal maxim " Expressio Unius Est
Exclusio Alterius" (the expression of one is the exclusion of another), meaning
the inclusion of one jurisdiction implies the exclusion of others. The Supreme
Court affirmed that the parties' intention, as expressed by the inclusion of the
clause, is the deciding factor, not the specific wording

The case of Indus Mobile Distribution v. Datawind Innovations 17is a landmark

Indian Supreme Court judgment that ruled the designation of a "seat of
arbitration" is equivalent to an exclusive jurisdiction clause, giving the courts of
that location sole authority over disputes. This means that even if no cause of
action occurred there, the courts of the designated seat have exclusive
jurisdiction for all arbitration-related proceedings and challenges. In this
specific case, the agreement named Mumbai as the seat and Mumbai courts as
having exclusive jurisdiction, so the Delhi High Court was found to lack
jurisdiction.

The Court stated that when a ‘seat of arbitration’ is designated in an arbitration

agreement, it is akin to an exclusive jurisdiction clause. It is to be noted, that the
decision concerned itself with an arbitration agreement, where exclusive
jurisdiction was conferred in courts of Mumbai expressly. The Court, went a
little further to rule that the mere designation of a ‘seat’ would confer exclusive
jurisdiction.

In this judgment, the Supreme Court followed the judgment of the Supreme
Court in the case of BALCO v Kaiser Aluminium Technical Services Inc, 18
(BALCO) and held that the reference to Mumbai in the arbitration clause
indicated that it was the the intent of the parties to designate Mumbai as the
17
Indus Mobile Distribution v. Datawind Innovations is (2017) 7 SCC 678.
18
BALCO v Kaiser Aluminium Technical Services Inc, (2012) 9 SCC 552.
‘seat’ of the arbitration. Consequently, the Supreme Court held that the
designation of a ‘seat’ is akin to an exclusive jurisdiction clause. This judgment
however observed that ‘seat’ must be distinguished from the choice of a neutral
‘venue’.

Devyani International Ltd v. Siddhivinayak builders and developers 19

The High court of Delhi encountered a legal issue wherein clause 11 of the
agreement specified that the seat of the arbitration was Delhi. However clause
12 of the same agreement conferred exclusive jurisdiction upon the courts of
Mumbai to entertain any disputes which may arise out of the agreement.

The High court held that the moment a seat is designated, it is akin to an
exclusive jurisdiction clause and hence the courts of Delhi would have the
exclusive jurisdiction to adjudicate upon disputes between parties.

Ankit Sa Investments LLC v. Janapriya Engineers Syndicate (P) Ltd 20

A similar situation like the previous case was considered before the Bombay
High court.

In the agreement in this case, the seat of arbitration which was fixed was
Mumbai and exclusive jurisdiction was conferred to Hyderabad.

Initially a single judge bench held that the courts at Hyderabad would have
exclusive jurisdiction to entertain the petition and the parties agreeing to the seat
of arbitration being Mumbai would be required to accept it as the venue of the

19
Devyani International Ltd v. Siddhivinayak builders and developers (2017) SCC OnLine Del 11156

20
Ankit Sa Investments LLC v. Janapriya Engineers Syndicate (P) Ltd (2021) SCC OnLine Bom919
arbitration and the said clause of the agreement cannot be held to confer the
jurisdiction to the Mumbai courts.

Later, the division bench set aside the judgement of the single judge bench and
held that the seat which is Mumbai in this case will have exclusive jurisdiction.

21
This Principle was again reiterated in BGS SGS SOMA JV v. NHPC where
the court held that choosing a seat amounts to the choosing of exclusive
jurisdiction of the courts at which the said seat is located.

B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Pvt. Ltd. 22

The Court determined that when a contract specifies the jurisdiction of a

particular court, and that court is competent to handle the matter, it implies the
parties intended to exclude all other courts' jurisdiction. This is true even if
explicit terms like "alone," "only," or "exclusive jurisdiction" are not used. The
Court applied the legal principle expressio unius est exclusio alterius and
concluded that the Raipur court lacked jurisdiction, establishing the court in
Goa as the sole competent court as per the contract.

21
BGS SGS SOMA JV v. NHPC (2020) 4 SCC 234
22
B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Pvt. Ltd. (2015) 12 SCC 225
Bhramani river pellets v. kamatchi industries ltd23

The Court held that where the contract specifies the jurisdiction of a place, only
such court would have jurisdiction to deal with the matter and the parties
intended to exclude all the other courts. Since the parties had identified
Bhubaneshwar as the ‘venue’ of arbitration, Madras High Court had wrongly
assumed jurisdiction under Section 11(6) of the Act.

The judgment concluded that since the parties had agreed that the ‘venue’ of the
arbitration shall be at Bhubaneswar, they intended to exclude all other courts
and hence, the Supreme Court set aside the order of the Madras High Court. The
Supreme Court held that the Madras High Court erred in assuming jurisdiction
since only the Orissa High Court will have jurisdiction to entertain the petition
filed under section 11(6) of the Act.

This judgement principally relies on the judgments of the Supreme Court in

Indus Mobile and Swastik Gases. Both these judgments dealt with agreements
that had exclusive jurisdiction clauses. No such exclusive jurisdiction clause
was included in the present case. Therefore, the transposition of the reasoning in
these judgments, on different facts in this case, has resulted in the instant
judgment by the Supreme Court.

According to a Madras High Court judgment24, based on principles from Hakam

Singh v. Gammon (India) Ltd25., a suit is not maintainable in a court other than
the one explicitly agreed upon by the parties if multiple courts naturally have
23
Brahmani River Pellets Ltd. v. Kamachi Industries Ltd (2019) 5 SCC 720

24
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/574767#:~:text=2.,the%20High%20Court
%20of%20Delhi

25
Hakam Singh v. Gammon (India) Ltd, AIR 1971 SC 740.
jurisdiction. The court emphasized party autonomy in choosing one competent
court from several available under the Code of Civil Procedure 26, making this
choice binding.

A suit filed in a jurisdiction other than the one explicitly agreed upon in a valid
exclusive jurisdiction clause is generally not maintainable, according to the
principles established in Hakam Singh v. Gammon (India) Ltd..27

If the contractual clause selecting a specific "seat" or jurisdiction is valid

(meaning that chosen court inherently has jurisdiction under general law, such
as the CPC), the parties are contractually bound to litigate only in that forum.

The Supreme Court held that such agreements are binding expressions of the
parties' mutual intent. Filing a suit elsewhere violates this core term of the
contract.

The court where the suit was improperly filed (the "other seat") should
typically refuse to entertain the case, as the parties explicitly ousted its
concurrent jurisdiction in favor of the contractually agreed-upon court.

28
Section 34(2)(v) : the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the parties, unless such

26
The Code of Civil Procedure, 1908 (Act No. 5 of 1908).
27
Hakam Singh v. Gammon (India) Ltd, AIR 1971 SC 740.

28
Section 34(2)(a)(v) of the Arbitration and Conciliation Act, 1996.
agreement was in conflict with a provision of this Part from which the parties
cannot derogate, or, failing such agreement, was not in accordance with this
Part.

The designation of a seat by the parties to an arbitration, has been held to be

akin to an exclusive jurisdiction clause. The moment the seat is determined,
exclusive jurisdiction for the purpose of regulating arbitral proceedings would
vest in courts of that seat or place. Therefore, challenge proceedings under
Section 34 of the Arbitration Act, must be filed in the competent court, which
has jurisdiction (territorial, pecuniary and special/subject matter) over of the
seat of arbitration.

A suit filed under a different seat than agreed upon can be considered under the
ambit of Section 34(2)(a)(v) 29of the Arbitration and Conciliation Act, 1996, if it
violates the parties' mutual agreement on the seat. The Supreme Court has
affirmed that the seat of arbitration is a crucial element that determines
jurisdiction, and a deviation from the agreed seat without mutual consent is a
ground for challenging the award.

In Hindustan Construction Co. Ltd. v. NHPC Ltd. 30(2020), the Supreme Court
confirmed that the seat of arbitration was New Delhi and that this designated
seat granted the Delhi High Court exclusive jurisdiction over arbitration-related
matters, despite the contract's venue being in Faridabad and the first application
being filed there. The court's decision applied the principles of the balco case to
hold that the seat of arbitration, once designated, acts as an exclusive
jurisdiction clause, superseding the location of the cause of action or the filing
of the first application.

29
Section 34(2)(a)(v) of the Arbitration and Conciliation Act, 1996.

30
Hindustan Construction Co. Ltd. v. NHPC Ltd(2020) 4 SCC 310
If a claimant approaches a court / consumer forum alleging breach of 15F of
SEBI Act, it will simply reject the petition because it does not have the
jurisdiction. On the other hand, if he alleges services deficiency, then the
consumer forum will entertain because it is a different remedy falling under
CPA. There are umpteen number of cases where consumer forums have
entertained petitions and granted reliefs against stock brokers and other
market intermediaries under CPA. You seem to have not gone through
Indian Financial Sector Assessment of 2008 which has been prepared jointly
by SEBI, RBI, IRDA, Ministry etc as per the mandate of the World Bank. This
report identifies this aspect.It should be distinguished that many countries
allow private parties to sue under the Securities Act itself (in addition to
general law).

Section 2(11) of the CPA 2019 meticulously defines "deficiency"

in relation to any service. It states that "deficiency" means:

"any fault, imperfection, shortcoming or inadequacy in the

quality, nature and manner of performance which is required to

be maintained by or under any law for the time being in force

or has been undertaken to be performed by a person in

pursuance of a contract or otherwise in relation to any service

and includes— 1.1. any act of negligence or omission or

commission by such person which causes loss or injury to the

consumer; and 1.2. deliberate withholding of relevant

information by such person to the consumer."

This definition is expansive, covering a broad spectrum of

failures by service providers. It establishes that a service is

deficient if it doesn't meet legal standards, contractual

obligations, or even if it results from negligence or intentional

withholding of information.

2. Dissecting the Key Elements of "Deficiency"

Let's delve deeper into the core components of the "deficiency"

definition:

2.1. Fault, Imperfection, Shortcoming, or Inadequacy: These

terms cover various aspects of substandard service: 1.1. Fault:

An inherent flaw in the service delivery mechanism or a

mistake in its execution. 1.2. Imperfection: The service is not

complete or of the ideal standard. For example, a car service

that leaves a new problem. 1.3. Shortcoming: The service falls

short of what was promised or reasonably expected. 1.4.

Inadequacy: The service provided is insufficient for the purpose

it was intended. For example, a security service that provides

insufficient personnel, leading to a breach.

2.2. Quality, Nature, and Manner of Performance: These are the

benchmarks against which a service's delivery is measured:

1.1. Quality: The standard of excellence of the service. A poorly

performed surgery would be a deficiency in quality. 1.2. Nature:

The inherent characteristics of the service. If an airline provides

a non-AC bus for an AC bus ticket, the nature of the service is

deficient. 1.3. Manner of Performance: How the service is

carried out. Rudeness of staff, unresponsiveness, or undue

delays in service delivery fall under this.

3. Sources of Obligation: What Determines the Expected Standard?

A service is deemed deficient if its performance fails to meet

standards arising from:

3.1. Required by or Under Any Law: If a service provider fails to

adhere to statutory requirements or regulatory standards, it

constitutes a deficiency. This includes: 1.1. Safety Regulations:

A hospital failing to maintain hygiene standards mandated by

health regulations. 1.2. Licensing Conditions: A tour operator

operating without a valid license or violating its terms. 1.3.

Industry-specific Laws: A bank violating RBI guidelines on

customer service or fraud prevention. 1.4. E-commerce Rules:

Online platforms failing to comply with rules regarding refund

policies, warranty information, or grievance redressal timelines.

The CPA 2019 introduced specific E-commerce Rules to address

online consumer grievances.

3.2. Undertaken to be Performed in Pursuance of a Contract or

Otherwise: This covers promises and agreements, both explicit

and implicit: 1.1. Express Contract: Terms and conditions

explicitly agreed upon between the consumer and the service

provider. For instance, a contract for housing construction

specifying a completion deadline or specific materials. A delay

in project delivery or use of inferior materials would be a

deficiency. 1.2. Implied Contract/Promise:Reasonable

expectations arising from the nature of the service or general

industry practice, even if not explicitly stated. For example, a

common carrier implicitly promises safe delivery of goods. 1.3.

Advertised Claims: If a service provider makes specific claims in

misleading advertisements or promotional material about the

features, benefits, or performance of their service, and they fail

to deliver, it constitutes a deficiency. This is a powerful tool for

consumers, as it holds service providers accountable for their

public pronouncements.

3.3. Inclusion of Negligence and Withholding Information: The

CPA 2019 specifically includes: 1.1. Act of Negligence,

Omission, or Commission: Any careless act, failure to act when

required, or wrongful action by the service provider that causes

loss or injury to the consumer. This is particularly relevant in

areas like medical negligence or professional services. 1.2.

Deliberate Withholding of Relevant Information: If a service

provider intentionally conceals crucial facts about the service

that could affect the consumer's decision or experience. For

example, a financial advisor withholding information about high

risks or hidden charges of an investment product.

4. Illustrative Scenarios of "Deficiency in Service"

Deficiency in service can manifest across various sectors. Here

are some common examples that frequently lead to consumer

disputes:

4.1. Banking and Financial Services: 1.1. Unauthorized

deductions from accounts. 1.2. Delays in processing loans or

transactions. 1.3. Failure to credit amounts correctly. 1.4. Non-

provision of promised banking facilities like online access or

ATM services. 1.5. Claim repudiation by insurance companies

on flimsy grounds or undue delay in settling valid insurance

claims.
4.2. Healthcare Services: 1.1. Medical negligence leading to

complications, incorrect diagnosis, or improper treatment. 1.2.

Overcharging for services or medicines. 1.3. Lack of proper

care, hygiene, or essential facilities in hospitals. 1.4. Doctors

prescribing unnecessary tests or procedures.

4.3. Real Estate and Housing Construction: 1.1. Significant

delays in handing over possession of a flat or property beyond

the agreed-upon date. 1.2. Poor construction quality, use of

substandard materials, or deviation from approved plans. 1.3.

Failure to provide promised amenities like swimming pools,

clubhouses, or proper infrastructure. 1.4. Not executing

conveyance deeds or forming housing societies as agreed.

4.4. Telecommunication Services: 1.1. Persistent network

issues or call drops. 1.2. Incorrect billing or unauthorized

activation of services. 1.3. Failure to provide promised internet

speed or connectivity. 1.4. Unresponsive customer service for

resolving complaints.

4.5. Transport and Hospitality Services: 1.1. Flight/train/bus

delays or cancellations without proper notice or alternative

arrangements. 1.2. Overcharging for tickets or baggage. 1.3.

Substandard hotel accommodation or amenities compared to

what was booked. 1.4. Misbehaviour by staff.

4.6. Professional Services (with a caveat): 1.1. Architects

providing flawed designs leading to construction issues. 1.2.

Chartered accountants providing incorrect financial advice

resulting in loss. 1.3. However, it's crucial to note a recent

development: the Supreme Court of India in Bar of Indian

Lawyers v. D.K. Gandhi (2024) has clarified that legal

professionals (advocates) are generally excluded from the

purview of "service" under the CPA, particularly under "contract

of personal service." This judgment has also referred the prior

ruling on medical professionals (Indian Medical Association v.

V.P. Shantha) to a larger bench for reconsideration. So, while

medical negligence historically was covered, the legal position

for various professionals is evolving.

4.7. E-commerce Services: 1.1. Delayed or incorrect delivery of

products (where the delivery is part of the service provided by

the platform). 1.2. Unresponsive customer support for online

purchases. 1.3. Lack of transparency in pricing or refund

policies.

5. Proving "Deficiency in Service"

To successfully file a complaint alleging deficiency in service,

consumers in Kochi or Ernakulam need to provide strong

evidence to the District Consumer Commission (or higher

forums depending on pecuniary jurisdiction).

5.1. Contractual Documents: Service agreements, invoices,

booking confirmations, policy documents, medical records,

property sale agreements. 5.2. Communication Records:

Emails, letters, chat logs, call recordings (if legally permissible)

showing attempts to resolve the issue with the service

provider. 5.3. Photographic/Video Evidence: Visual proof of the

deficiency, if applicable (e.g., poor construction quality,

unhygienic conditions). 5.4. Expert Reports: In complex cases

like medical negligence or technical service failures, reports

from independent experts or specialists are invaluable. 5.5.

Witness Statements: Testimonies from individuals who

witnessed the deficient service.

6. Remedies for Deficiency in Service

If a consumer forum determines that there has been a

deficiency in service, it can order various forms of redressal:

6.1. Removal of Deficiency: Directing the service provider to

rectify the fault or provide the service correctly. 6.2. Refund:

Ordering a full or partial refund of the service charges. 6.3.

Compensation: Awarding monetary compensation for any loss

or injury suffered by the consumer, including for mental agony,

harassment, and inconvenience caused by the deficiency. This

can cover direct financial loss as well as indirect suffering. 6.4.

Punitive Damages: In cases of gross negligence, intentional

misconduct, or widespread deficiencies, the forum may impose

punitive damages to deter similar behaviour. 6.5.

Discontinuation of Unfair Practices: Directing the service

provider to cease and desist from unfair trade practices or

restrictive trade practices related to the service.

Conclusion

The concept of "deficiency in service" under the Consumer

Protection Act, 2019, serves as a vital safeguard for consumers

in a rapidly expanding service economy. Its broad definition

covers failures in quality, nature, and manner of performance,

whether arising from legal obligations, contractual terms, or

even a service provider's negligence or deliberate withholding

of information. For individuals in Kochi, Ernakulam, and across

Kerala, understanding these nuances is crucial for identifying

genuine grievances and effectively pursuing consumer justice.

The Act empowers consumers to demand accountability from

service providers, ensuring that they receive the quality and

standard of service they are entitled to, thereby reinforcing

consumer rights across all sectors.

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the venue can become the seat of arbitration if the arbitration agreement designates
a venue but not a seat, especially if the parties' intent is clear that the venue is the
juridical seat. This principle, known as the "Shashoua principle," holds that the venue
will be considered the seat in the absence of any significant contrary indication in the
agreement. However, the venue will not automatically become the seat if the
agreement includes conditions or if it can be shown that the venue was only intended
as a physical meeting place, not a legal seat.

The venue will not be considered the seat if it is merely a physical location for
meetings and award signing, without any other factors indicating it as the legal seat.

arbitration award under Section 34 of the Arbitration and Conciliation Act, 1996, can
be challenged before the High Court, but only if the High Court has jurisdiction under
the Arbitration Act. The Act mandates that a party aggrieved by an arbitral award
may file an application for setting aside the award only before the “court” which is
generally the principal civil court of original jurisdiction in the seat of arbitration.
Challenges before a non-jurisdictional High Court are not maintainable.The courts
have emphasized that Section 34 proceedings are limited to specific grounds
enumerated in the Act (such as a party was under incapacity, the award deals with a
dispute not contemplated by the parties, or the composition of the arbitral tribunal or
procedure was not in accordance with the parties' agreement or the Act). The court
in Section 34 applications cannot act as an appellate authority to re-examine facts or
law on merits. Also, the jurisdiction of the court is determined by the seat of
arbitration or exclusive jurisdiction clause in the contract.Key judicial precedents
clarifying jurisdiction on Section 34 challenges include:Delhi High Court in a recent
decision held it lacked jurisdiction to entertain a Section 34 petition because the
arbitration seat was elsewhere, reinforcing that only the court at the seat of
arbitration has jurisdiction under Section 34 .Supreme Court rulings have held that
Section 34 provides an exclusive and exhaustive remedy and courts cannot interfere
beyond the grounds specified or act as an appellate forum .The Supreme Court in
the case of Lion Engineering Consultants v. State of M.P. recognized that
jurisdictional challenges to the arbitral tribunal can be raised as a part of a Section
34 petition but within the court having jurisdiction .Therefore, to challenge an
arbitration award under Section 34, the application must be filed before the proper
court having jurisdiction according to the seat of arbitration or jurisdiction clause.

"The application under Section 34 of the Arbitration and Conciliation Act, 1996, if any, against the
decision of the appellate panel shall be filed in the competent Court nearest to the address
provided by Client in the KYC form." (SEBI Circular CIR/MRD/ICC/20/2013, Para 8.3)

The Supreme Court case Kusum Ingots & Alloys Ltd. v. Union of India held that a
High Court's jurisdiction to hear a challenge against a central law is determined by
where the "cause of action" arises, not simply by the location of Parliament in Delhi.
The mere fact that a central act was passed by a legislature in Delhi does not grant
the Delhi High Court jurisdiction unless a significant part of the cause of action also
takes place within its territorial limits.
On 21 April 2025, the Supreme Court in Electrosteel Steel Limited v Ispat Carrier
Private Limited (Electrosteel) held that an objection to execution of an award on the
grounds of it being a nullity due to jurisdictional infirmities, can be raised before the
executing court under Section 47 of the Code of Civil Procedure 1908 (CPC)
independent of a challenge under Section 34 of the Arbitration and Conciliation Act
1996 (ACA). The decision effectively provides another opportunity to the award-
debtor to challenge the enforcement of an award under Part I of the ACA beyond the
recourse under Section 34 of the ACA. The decision threatens to prolong further an
already arduous and expensive process that an award-creditor goes through to reap
the fruits of an arbitral award.

The assumption on which Electrosteel and Atwal Rice proceed is that section 36(1) of the
ACA deems an arbitral award to be a decree of the court for the purposes of execution.

2 contradicting views on section 36(1)

2025 Electro steel case- award to be taken as a decree

2017 Atwal Rice case- only the enforcement mechanism of an award to be

taken like the enforcement mechanism of a decree.

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The Court noted that the instant plaint had been instituted under Order VII
Rule 11 of the Civil Procedure Code, 1908 (CPC) under which the Court is
only required to see if a cause of action is not disclosed or the suit is
barred by any law and if the answer is in affirmative, then the Court must
put an end to the sham litigation so further judicial time is not wasted.
According to the plaintiff, the fraud came to light only in 2022 upon
internal investigation and a subsequent CBI reference, however, the Court
observed that Section 34 of the Act already includes ‘award induced or
affected by corruption or fraud’ as a ground for challenge which the
plaintiff failed to raise timely. The Court further stated that alleged new
discovery or a mere filing of complaint would not revive a dormant claim
and held the instant suit to be ‘hopelessly time barred’. With regards to
the bar under Sections 5 and 34 of the Act, the Court noted that Section 5
contains a non-obstante clause that provides that notwithstanding
anything contained in any other law, no judicial authority shall intervene
except where so provided under Part I. This implies that provisions of Part
I, particularly Section 34 shall be given full effect irrespective of any other
law in force. Furthermore, Section 34 specifies that the arbitral award can
‘only’ be set aside by an application in accordance with Section 34 (2) and
(3). By using the word ‘only’ twice, Section 34 makes it clear that no
challenge to an award can be launched outside its confines and beyond
the grounds specified therein. This implies that Section 34 offers an
exhaustive and exclusive remedy to contest an arbitral award. The Court
further noted that Section 9 of the CPC clearly states that the civil courts
shall try all suits except the suits which are expressly and impliedly
barred. Section 5 read with Section 34 of the Act constitutes such a bar to
challenge an arbitral award by way of filing a suit which is supposed to be
done in the present case. The non-obstante clause of Section 5 makes it
amply clear that the civil court cannot entertain suits relating to matters
governed by the Act unless specifically permitted. The Court also
observed that a challenge against an arbitral award that has already been
upheld by the Supreme Court by way of a commercial civil suit, is not only
an abuse of law but would be a travesty of justice and would undermine
public confidence in arbitration. Therefore, the plaint was held to be not
maintainable and was rejected by the Court.

[MMTC Ltd. v. Anglo-American Metallurgical Pty. Ltd., 2025 SCC OnLine

Del 5079, decided on 29-7-2025]

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It is well-settled that an existing court cannot go beyond the decree

and question its legality or correctness. In R.K. Textiles Mumbai v.
Sulabh Textiles Pvt Ltd., 2003 (2) RAJ 236 (Bom), it was held that
the executing court is not expected nor warranted to enter into an
investigation of the facts whether there is absence of arbitration
agreement or not; and if not, whether the alleged incorporation of
the terms in the bills amount to a valid arbitration agreement or not,
etc. These questions clearly fall out of the jurisdiction of the
executing court which need not and cannot record its findings on
these factual aspects. If the executing court goes beyond its limits
and takes upon itself to examine the validity of the decree or factual
details, then it ceases to an executing court and usurps the
jurisdiction or assumes the role of an appellate court. Therefore, the
plea that there was not an arbitration agreement or that it was not
within the ambit of section 7 cannot be entertained in the execution
proceedings.

However, there is an exception to the rule that the executing court

cannot go behind the decree. If the award is a nullity for lack of
inherent jurisdiction of the tribunal making it, the validity of the
award can be set up in execution proceedings. In Sunder Das v.
Ram Parkash, MANU/SC/0368/1977 : (1977) 2 SCC 662, it was held
that the executing court can entertain an objection that the decree
is a nullity and can refuse to execute the decree. By doing so, the
executing court would not incur the reproach that it is going beyond
the decree, because the decree being null and void, there would
really be no decree at all. In Khaleel Ahmed Dakhani v. The Hatti
Gold Mines Co. Ltd., AIR 2000 SC 1925, it was held that
entertainment of execution application for the enforcement of the
 award, when application to set aside that award was still pending in
another competent court, is not proper vide section 36 of the Act.
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%20is%20well%2Dsettled%20that%20an%20existing%20court%20cannot%20go,findings%20on
%20these%20factual%20aspects.

If the arbitration agreement is invalid, the reference thereunder and

consequently the award on the basis of such reference would be invalid and can
be set aside. The validity of an arbitration agreement can be challenged on any
of the grounds on which the validity of a contract may be challenged. In cases
where the arbitration clause is contained in a contract, the arbitration clause will
be invalid if the contract is invalid. Where the party questions the very
existence of the partnership agreement on the ground of it being a nullity, the
parties to the reference are not precluded from challenging the jurisdiction of
the arbitrator or the award made by him in spite of the fact that they participated
in the proceedings.

Where the very foundation of the reference becomes shaken on the ground of
the invalidity of the agreement containing the arbitration clause, the
participation of the party in the arbitration proceedings culminating in the award
will be of no consequence and he would be entitled to move an application for
declaration that the arbitration agreement does not exist or the same is a nullity
or void ab initio.
In Corn Products Co. India Ltd. v. Ayaz Ghadiya, reference was made to the
rules prevailing in Maharashtra but there were no rules prevailing, so the
agreement was not rendered vague but reference was made to the provisions of
the Arbitration Act. In the case of Bhagat Construction Co. v. Delhi
Development Authority, compensation for the delay in completion of the work
was to be determined by the superintending engineer and his decision was to be
final, reference of the matter to arbitration and the award were held to be a
nullity.

The agreement for reference to arbitration should be liberally construed by the

court so as to lean in favour of upholding the award given by the arbitrators, but
that is no ground for sustaining the award where the arbitrators have clearly
misdirected themselves and have exceeded the scope of their authority. 36 Where
the appointment of arbitrator upon original application of reference which was
defective but defect was subsequently removed, it cannot be challenged since
the defect is one of irregularity and not of want of jurisdiction. 37

If the agreement is invalid or reference to arbitration is invalid then the award in

relation thereto will be invalid and the same can be set aside. 38 The Court after
appointing an arbitrator has no jurisdiction to refer the disputes to the arbitrator.
An invalid reference is a good ground for setting aside an award. 39 Where
the persona designata had not referred all the disputes between the parties to
the arbitrator and the respondent had not objected to it, inasmuch as he accepted
the same and no objections were taken against it in the lower court, the
reference could not be said to be invalid. 40 Where the agreement is denied and
there is no valid submission or reference any award will be void. 41

If the consideration for entering into a contract with an arbitration clause is

illegal, then there is no valid arbitration agreement and any award given in
respect thereof will be invalid. If one of the considerations of agreement to refer
was dropping of pending criminal prosecution for a non-compoundable offence,
the whole agreement and reference is illegal and void. Though motive for
contract is not necessarily its considerations, yet where promise to drop
prosecution was given and accepted as conventional inducement for several
promises, it is one of the considerations for agreement to refer. 43

In case an agreement is denied and there is no valid submission, the matter

relating to the agreement cannot go to arbitration and the award on that basis is
without any legal validity. 44 An award based on uncertain reference would be
void. 45 It is from the terms of the arbitration agreement that the arbitrator
derives his authority to arbitrate, if in law there is no valid arbitration
agreement, the proceedings of the arbitrator would be unauthorized. Every
agreement to bind the government must comply with the requirements of
Section 173 (3) of the Government of India Act, 1935, and waiver will not
preclude the Government from pleading absence of an agreement in consonance
with law. 46

Each of the separate disputes arising out of separate agreements between the
same parties must be decided in separate references by the arbitrator appointed
for determining a particular issue or dispute. Where that has not been done, the
award is liable to be set aside as the arbitrators had no right to hear both the
separate disputes arising out of separate contracts in one reference. 47 However,
a different view has been taken by a Division Bench of Madhya Pradesh High
Court, which has laid down that there is nothing wrong in making a single
reference to the arbitrator of all the disputes arising out of different agreements
between the same parties, provided the terms and conditions of all these
agreements are identical. 48

Where the parties were quite satisfied with the proceedings and none of them
had ever objected to the invalidity of the arbitration agreement or the reference
being incomplete or the proceeding being vitiated in any manner, they would be
stopped from raising technical pleas to get the award set aside. 49 A Fire
Insurance Policy provided for adjudication of loss or damage “independently of
all other question”. Such a stipulation does not prohibit other questions from
being submitted to the arbitrator along with the question of quantum of such
loss of damage. 50

Where, the agreement is not illegal the parties appeared before the arbitrator,
filed their claims and counter-claims, produced materials and took part in the
proceedings, the award is not invalid. 51 But when the agreement is held to be
invalid, both claim as well as counter-claim would not be maintained. 52 On the
plea raised by the appellant that the trial court erred in rejecting the counter
claims, it was held that once the agreement was held to be unenforceable, no
right accrued to either party on the ground of breach of contract and therefore
counter claims filed by the appellant were rightly rejected. 53

In Ram Singh v. Subimal Roy Choudhary,54 the very existence of the arbitration
agreement was challenged. The contractor did not file the original agreement
but filed a photocopy thereof. The agreement referred to a rate list supplied by
the contractor and agreed to by the objector. On examination, it was found that
the typewriter used for typing both the documents was different. It was held that
the award passed on such agreement was bad in law.