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2016 DIGILAW 2231 (GUJ)

Gail (India) Ltd. v. Filatex India Ltd.

2016-12-22

RAJESH H.SHUKLA

body2016
JUDGMENT : 1. The present First Appeal is filed by the Appellant/Original Applicant challenging the impugned judgment and order rendered in Misc. Civil Application No. 106 of 2015 [filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”)] dated 22.4.2016 on the grounds stated in the memo of Appeal. 2. The background of the facts as stated are that the Application has been preferred by the Appellant/Original Applicant under Section 9 of the Arbitration Act for interim measures and the issue was with regard to the agreement between the Appellant/Original Applicant and the Respondents/Original Opponents containing arbitration clause, which has been referred to in the judgment. However, the court below has allowed the Application Exh.15 filed by the Opponents raising the objection regarding jurisdiction and dismissed the Application under Section 9 filed by the Applicant for want of jurisdiction. 3. Heard learned Counsel Shri K.I. Shah appearing with learned Advocate Shri Vishwas K. Shah for the Appellant and learned Counsel Shri Mihir J. Thakore appearing with learned Advocate Shri Ramnandan Singh for Opponent No.1. 4. Learned Counsel Shri K.I. Shah referred to the background of the facts and the impugned judgment and order and submitted that the court below has totally misdirected in appreciating the fact regarding arbitration clause as well as the agreement. He submitted that the court below has failed to appreciate the law laid down by the higher courts in its proper perspective. Learned Counsel Shri K.I. Shah emphasized that even as per the agreement between the parties, the court at Bharuch shall have the jurisdiction which has not been appreciated and has rejected the Application on the ground of jurisdiction. Learned Counsel Shri K.I. Shah submitted that no cause of action can be said to have been arisen in Delhi as the contract came to be executed in the State of Gujarat and the supply of gas was also within the territory of State of Gujarat, and therefore, the court at Bharuch would have the jurisdiction, and in any case, the court in Gujarat alone will have the jurisdiction for the purpose of Application under Section 9 of the Arbitration Act. Learned Counsel Shri K.I. Shah has referred to the arbitration agreement between the parties and pointedly referred to Clause 15.4, 16.2 and 16.3. Learned Counsel Shri K.I. Shah has referred to the arbitration agreement between the parties and pointedly referred to Clause 15.4, 16.2 and 16.3. He emphasized that by a plain reading of these Clauses, the court at Bharuch shall have the jurisdiction, and therefore, the court below has committed an error in rejecting the Application on the ground of jurisdiction holding that the court at Delhi will have the jurisdiction for the purpose of Arbitration Act under Section 9 of the Arbitration Act. Learned Counsel Shri Shah emphasized that the courts below have failed to appreciate the law laid down by the higher courts in its proper perspective. Learned Counsel Shri K.I. Shah submitted that it is well accepted that if more than one court is having the jurisdiction regarding the subject matter or the issue, then the parties may, by agreement, choose any one of such courts. Learned Counsel Shri K.I. Shah strenuously submitted that in any case, it should be first established that the court is having the jurisdiction, and if, more than one court is having the jurisdiction, the parties can, by agreement, decide about any one of the courts having the jurisdiction. He emphasized that, by agreement or by consent, the jurisdiction cannot be conferred upon the court, which does not have otherwise. He therefore submitted that as no cause of action or part of cause of action can be said to have arisen within the jurisdiction of the courts at Delhi, the judgment and order is erroneous and having appreciated the clause in the agreement with regard to the cause of action within the State of Gujarat, it could not have been rejected for want of jurisdiction. 5. In support of his submission, learned Counsel Shri K.I. Shah submitted that the court below has failed to appreciate the law laid down by the higher courts in its proper perspective. He referred to the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] reported in (2012) 9 SCC 552 and pointedly referred to the observations made in the said judgment particularly the observations made in paragraphs 96 and 97. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Swastik Gases Private Limited v. Indian Oil Corporation Limited reported in (2013) 9 SCC 32 . Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Swastik Gases Private Limited v. Indian Oil Corporation Limited reported in (2013) 9 SCC 32 . He has also referred to and relied upon the judgment of the High Court (Coram: M.R. Shah, J) in Petn. Under Arbitration Act No. 6 of 2010 dated 10.5.2010 in case of DIC-NCC (JV) A Joint Venture of M/s Daelim Industrial Co. v. M.Sahai & Associates Pvt. Ltd. The same issue has been considered and it has been observed that the consent or agreement between the parties cannot confer jurisdiction on the courts which is not possessed by it. He emphasized the observations:- “It is the case on behalf of the respondent that as the parties have consciously agreed to resolve their disputes only by the Court in the City of Hyderabad, only the Court in the City of Hyderabad would have exclusive jurisdiction, which cannot be accepted. As observed and held by the Hon'ble Supreme Court in the case of Hakam Singh (supra) it is not open to the parties to confer by agreement jurisdiction on a Court which does not possess under the Code of Civil Procedure. It is further observed by the Hon'ble Supreme Court that where two or more Courts under the Code of Civil Procedure have jurisdiction to try a suit or proceeding, an agreement between the parties that the disputes between them shall be tried in one of such court, is not contrary to public policy and does not contravene section 28 of the Contract Act. ...........” Learned Counsel Shri Shah submitted that relying on the judgment of the Hon'ble Supreme Court in case of Hakam Singh v. M/s Gammon (India) Ltd. reported in AIR 1971 SC 740 , the order has been passed. Learned Counsel Shri Shah has also referred to the provisions of the Arbitration and Conciliation Act, 1996 and also the provisions of Section 20 of the Code of Civil Procedure, and therefore, submitted that the present Appeal may be allowed. Learned Counsel Shri Shah has also referred to the another judgment of the High Court (Coram: Harsha Devani,J) and submitted that it has also considered the issue of jurisdiction, and therefore, the present Appeal may be allowed. 6. Learned Counsel Shri Shah has also referred to the another judgment of the High Court (Coram: Harsha Devani,J) and submitted that it has also considered the issue of jurisdiction, and therefore, the present Appeal may be allowed. 6. Learned Counsel Shri K.I.Shah has also referred to the earlier proceedings and submitted that on earlier occasion when the objection was raised by the Appellant herein, it was turned down holding that the court will have the jurisdiction. However in the present case when it is relied upon. the application is dismissed for want of jurisdiction. 7. Learned Senior Counsel Shri Mihir J. Thakore appearing with learned Advocate Shri Ramnandan Singh for the Respondents submitted that the submission with regard to the aspect of jurisdiction may have to be considered in background of the facts and particularly the development of law by pronouncement of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra). Learned Senior Counsel Shri Mihir Thakore submitted that there is no quarrel with the proposition that if more than one court is having the jurisdiction, the parties may by agreement decide about the jurisdiction of one court, meaning thereby, any one court which is otherwise having the jurisdiction as per the Code of Civil Procedure. However, learned Senior Counsel Shri Mihir Thakore submitted that the provisions of the Arbitration and Conciliation Act has been considered and interpreted by the Hon'ble Apex Court in a judgment in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra), and for the first time, the Hon'ble Apex Court has focused on the aspect of “Subject Matter of the Suit” and the “Subject Matter of the Arbitration”. He referred to the agreement and submitted that Clause 16.3 refers to;- “16.3 Conduct of Arbitration (applicable to shippers other than central pubic sector enterprise) i. The venue of arbitration shall be New Delhi, India. ii. The language to be used in the arbitral proceedings shall be English.” Therefore, it is clear that the venue of arbitration shall be now at Delhi in India. ii. The language to be used in the arbitral proceedings shall be English.” Therefore, it is clear that the venue of arbitration shall be now at Delhi in India. Learned Senior Counsel Shri Mihir Thakore submitted that Clause 15.4 referred to;- “15.4 Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with Laws of India including without limitation, of the relevant Central/State Acts and the Rule, Regulations and Notification issued and amended there under from time to time or enacted/promulgated. The courts and tribunal at Delhi shall have exclusive jurisdiction over the subject matter of this Agreement.” Therefore, it was submitted that may be the court at Bharuch or other courts have the jurisdiction, but, once, as per the Arbitration and Conciliation Act when the parties have by an agreement decided for the particular court having a seat at the place like Delhi that court alone will have the jurisdiction. He emphasized the observations made by the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra). He submitted that the same has been reiterated in a subsequent judgment of the Hon'ble Apex Court in case of Swastik Gases Private Limited v. Indian Oil Corporation Limited (supra). Learned Senior Counsel Shri Mihir Thakore has referred to the observations made in paragraphs 32, 34 and 57 of the judgment. 8. Learned Senior Counsel Shri Mihir Thakore therefore submitted that the interpretation made by the Hon'ble Apex Court referring to the statutory provisions of the Arbitration Act has made this distinction, and it is in these circumstances, the earlier judgment will not have any application as the subsequent judgment will prevail. He also submitted that this view of the Hon'ble Apex Court has also been considered by the other High Courts particularly the Delhi High Court. For that purpose, learned Senior Counsel Shri Mihir Thakore has referred to and relied upon the judgment in case of Ion Exchange (India) Ltd. v. Panasonic Electric Works Co. Ltd. reported in 2014 Law Suit (Del) 960 and emphasized the observations made in paragraph 8. Similarly, learned Senior Counsel Shri Mihir Thakore has referred and relied upon the judgment in case of Nexus Design Project Pvt. Ltd. v. Travel Foods Services (Delhi Terminal 3) Pvt. Ltd. reported in Law Suit (Del) 863 and emphasized the observations made in paragraph 10. Similarly, learned Senior Counsel Shri Mihir Thakore has referred and relied upon the judgment in case of Nexus Design Project Pvt. Ltd. v. Travel Foods Services (Delhi Terminal 3) Pvt. Ltd. reported in Law Suit (Del) 863 and emphasized the observations made in paragraph 10. He has also emphasized the observations made in a judgment in case of Reliance Infrastructure Ltd. and Ord. v. M/s Roadway Solution (I) Pvt. Ltd. reported in 2016 (3) MhLJ 530 and emphasized the observations made in paragraph 13. Learned Senior Counsel Shri Mihir Thakore therefore submitted that the judgment of the Hon'ble Apex Court laying down emphasis now on the Arbitration or the Seat of Arbitration has been considered and therefore it is not the cause of action which is required to be considered with reference to the provisions of Section 20 of the Code of Civil Procedure and the subject matter of the suit but also the statutory provisions of the Arbitration Act and also the definition of the court provided in Section 2(e) of the Arbitration and Conciliation Act. He therefore submitted that if the parties having entered into an agreement providing for an arbitration clause, may have selected or chosen for a particular court having the jurisdiction for the purpose of arbitration as it would be valid and it has also been observed that it is not hit by Section 23 of the Contract Act or it is not above the public policy. Learned Senior Counsel Shri Mihir Thakore therefore submitted that the present Appeal may not be entertained. 9. Learned Senior Counsel Shri Mihir Thakore submitted that the reliance placed in a judgment of this Hon'ble Court (Coram: M.R. Shah, J) in Petn. Under Arbitration Act No. 6 of 2010 dated 10.5.2010 in case of DIC-NCC (JV) A Joint Venture of M/s Daelim Industrial Co. v. M. Sahai & Associates Pvt. Ltd. will not have any application as it was given at the relevant time when the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) interpreting the statutory provision of the Arbitration and Conciliation Act vis-a-vis Code of Civil Procedure was not pronounced and therefore the subsequent pronouncement of the Hon'ble Apex Court will prevail. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) interpreting the statutory provision of the Arbitration and Conciliation Act vis-a-vis Code of Civil Procedure was not pronounced and therefore the subsequent pronouncement of the Hon'ble Apex Court will prevail. He also submitted that the judgment of the Hon'ble Co-ordinate Bench (Coram: Harsha Devani,J) is per in curiam as it does not refer to the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) interpreting the provisions of Arbitration and Conciliation Act particularly the provisions of Section 2(e) referring to the Code and also referring to the aspect of the jurisdiction. Learned Counsel Shri K.I. Shah submitted that though this judgment of the High Court is subsequent to the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra), it has not been referred to and therefore it is per in curiam which has not considered the law laid down by the Hon'ble Apex Court. 10. In rejoinder, learned Counsel Shri K.I. Shah again emphasized the observations made in the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) and submitted that this judgment does not refer to earlier judgment of the Hon'ble Apex Court in case of Hakam Singh v. M/s Gammon (India) Ltd. (supra). Learned Counsel Shri K.I.Shah submitted that the judgment of the High Court referring to the judgment of Hakam Singh v. M/s Gammon (India) Ltd. (supra) is a valid law and therefore it cannot be said to be per in curiam and it would be binding. He also referred to the judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) and emphasized the observations made therein. Learned Counsel Shri K.I. Shah therefore submitted that it will have a perspective application in respect of the agreement which is executed after this judgment whereas it has been executed in the present case even before the judgment came and therefore it will not have any application. 11. In view of the rival submissions, it is required to be considered whether present Appeal deserve consideration. 12. As could be seen from the background of the facts, the moot question is with regard to the jurisdiction. 11. In view of the rival submissions, it is required to be considered whether present Appeal deserve consideration. 12. As could be seen from the background of the facts, the moot question is with regard to the jurisdiction. The submissions which have been made by learned Counsel Shri K.I. Shah emphasizing that the parties may by agreement choose any one of the court which is having the jurisdiction otherwise. In other words, if two or more courts have the jurisdiction, the parties may by agreement choose one of the courts having jurisdiction for the purpose of deciding the dispute. Therefore, he emphasized that that, by agreement, the parties cannot confer the jurisdiction on the courts, which otherwise, does not have any jurisdiction, as no cause of action or part of cause of action can be said to have been arisen within the jurisdiction of that court. Learned Counsel Shri Shah has therefore emphasized that if the court does not otherwise have the jurisdiction as required under Section 20 of the Code of Civil Procedure, the parties by agreement cannot confer the jurisdiction or decide any court which is not having the jurisdiction. This has been referred to with reference to the observations made by the Hon'ble Apex Court in catena of judicial pronouncements including the observations made by this Court (Coram: M.R.Shah,J) in Petn. Under Arbitration Act No. 6 of 2010 dated 10.5.2010 in case of DIC-NCC (JV) A Joint Venture of M/s Daelim Industrial Co. v. M.Sahai & Associates Pvt. Ltd. as recorded herein above and also the earlier judgment in case of Hakam Singh v. M/s Gammon (India) Ltd. (supra). 13. However, this has to be considered in light of the subsequent change or development of law by pronouncement of the Hon'ble Apex Court in a judgment in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra). As submitted by learned Senior Counsel Shri Mihir Thakore, the Hon'ble Apex Court while interpreting the statutory provisions of Arbitration and Conciliation Act, 1996 has referred to this judgment of the Hon'ble Apex Court in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) and the observations which have been made referring to the statutory provisions and the Arbitration and Conciliation Act 1996. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) and the observations which have been made referring to the statutory provisions and the Arbitration and Conciliation Act 1996. In paragraph 96 referring to the ‘court’ it has been clearly observed:- “We are of the opinion, the term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process.” However, in this very judgment, the discussion has been made referring to the underlying purpose of the arbitration with emphasis on “subject matter centric” and not “exclusive seat centric”. It has been observed: “We are of the considered opinion that the aforesaid provisions have to be interpreted by keeping the principle of territoriality at the forefront. We have earlier observed that Section 2(2) does not make Part I applicable to arbitrations seated or held outside India. In view of the expression used in Section 2(2), the maxim expressum facit cessare tacitum, would not permit by interpretation to hold that Part I would also apply to arbitrations held outside the territory of India.” Again, this judgment has a reference to the International Arbitration referring to the earlier judgments and also the International Treaty. The Hon'ble Apex Court has discussed at length the issue with regard to the jurisdiction for the purpose of arbitration in context of the underlying purpose of the arbitration. Therefore, having regard to the underlying purpose of the arbitration, specific intention must be given effect to reflected in such arbitration agreement or the clause. This aspect has been further considered and affirmed in a subsequent judgment of the Hon'ble Apex Court in a judgment in case of Swastik Gases Private Limited v. Indian Oil Corporation Limited (supra). This would again require a close look at the Arbitration Agreement particularly Clause 16.3 which provide: “16.3 Conduct of Arbitration (applicable to shippers other than central pubic sector enterprise) i. The venue of arbitration shall be New Delhi, India. ii. This would again require a close look at the Arbitration Agreement particularly Clause 16.3 which provide: “16.3 Conduct of Arbitration (applicable to shippers other than central pubic sector enterprise) i. The venue of arbitration shall be New Delhi, India. ii. The language to be used in the arbitral proceedings shall be English.” Similarly Clause 15.4 reads: “15.4 Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with Laws of India including without limitation, of the relevant Central/State Acts and the Rule, Regulations and Notification issued and amended there under from time to time or enacted/promulgated. The courts and tribunal at Delhi shall have exclusive jurisdiction over the subject matter of this Agreement.” Thus by the very agreement it has been provided that any dispute arising out of this agreement the courts or the Tribunal at Delhi shall have the exclusive jurisdiction. In other words though the courts may have the jurisdiction as per the provisions of the Code of Civil Procedure, however, by virtue of interpretation of the provisions of the Arbitration and Conciliation Act, the Hon'ble Apex Court, as discussed above, has provided that the parties may agree to a particular court or the Tribunal. Thus, the emphasis or the focus is now on the intention of the parties reflected from the arbitration agreement which is again as per the provisions of the Arbitration Act. The interpretation has been made by the Hon'ble Apex Court in order to give effect to the intention of the legislature by providing more freedom for the parties to select the place or the seat. Thus, it is not the subject matter of the suit but it is an agreement or the intention of the parties expressly stated in such Arbitration Agreement will have more relevance. The Hon'ble Apex Court in a judgment in case of Swastik Gases Private Limited v. Indian Oil Corporation Limited (supra) has also made the observations: “It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.” 14. The Hon'ble Apex Court has also made a reference to the earlier judgment of the Hon'ble Apex in case of Hakam Singh v. M/s Gammon (India) Ltd. (supra) as well as in a judgment in case of A.B.C. Laminart (P) Ltd. v. A.P. Agencies reported in (1989) 2 SCC 163 . However, in the judgments which have been referred to by both the sides, the issue which is focused is that earlier, this those judgments in case of Hakam Singh v. M/s Gammon (India) Ltd. (supra) and A.B.C. Laminart (P) Ltd. v. A.P. Agencies (supra) the parties could by agreement decide about one of the courts having the jurisdiction otherwise. In other words, out of more than one courts having the jurisdiction with regard to the subject matter, the parties may by contract can select the jurisdiction of one of the courts. What has been emphasized in the case referring to the statutory provisions of the Arbitration and Conciliation Act, there is a shift inasmuch as now the provision is emphasizing on the intention of the parties to select the court for the purpose of the resolution of the dispute by an agreement. In other words, if the parties, by an agreement decide for alternate mode of resolution of dispute, then it may also provide in the same arbitration agreement with regard to not only the forum but the place which may be convenient to both the parties. This has to be considered in light of the observations made by the Hon'ble Apex Court in a judgment in case of Bharat Aluminum Co. This has to be considered in light of the observations made by the Hon'ble Apex Court in a judgment in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) referring to the Arbitration and Conciliation Act, 1996. In paragraph 95 of the said judgment, the Hon'ble Apex Court has made the observations referring to the “Party Autonomy” and again referring to the provisions of Section 96 of the Arbitration and Conciliation Act particularly the definition of the ‘Court’ as stated in Section 2(e) of the Arbitration and Conciliation Act, it has been observed: “We are of the opinion, the term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)(e) is confined to Part I. ..........................................” And it is in this context in paragraphs 97 and 98, the observations have been made. It has been observed:- “97. The definition of Section 2(1)(e) includes “subject-matter of the arbitration” to give jurisdiction to the courts where the arbitration takes place, which otherwise would not exist. On the other hand, Section 47 which is in Part II of the Arbitration Act, 1996 dealing with enforcement of certain foreign awards has defined the term “court” as a court having jurisdiction over the subject-matter of the award. This has a clear reference to a court within whose jurisdiction the asset/person is located, against which/whom the enforcement of the international arbitral award is sought.” 15. Therefore, it will depend upon the arbitration agreement which is required to be construed for the purpose of jurisdiction. For that purpose, the cause of action as referred to in the Code of Civil Procedure may have to be considered with specific provisions of the Arbitration Act providing for arbitration agreement which is referring to the venue for the purpose of jurisdiction or the seat of the arbitration. Therefore, as the distinction has been made between the ‘subject matter of arbitration’ and the ‘subject matter of the suit’ while interpreting the arbitration agreement, the emphasis should be on the ‘subject matter of the arbitration’, meaning thereby the ‘arbitration agreement’. Even otherwise, it is well accepted that, as provided in Section 9 of the Code of Civil Procedure, the civil court will have the jurisdiction unless otherwise executed by a specific provision or a statute. Even otherwise, it is well accepted that, as provided in Section 9 of the Code of Civil Procedure, the civil court will have the jurisdiction unless otherwise executed by a specific provision or a statute. In the provisions of the Arbitration Act which provide for an arbitration agreement between the parties, the parties may contract with regard to the subject matter or the issue and also when it leaves the manner or the mode for resolution of their dispute it could as well decide about the seat of the arbitration, which will be a particular place. In case of Bhatia Inernational v. Bulk Trading S.A. and another reported in (2002) 4 SCC 105 , the observations have been made referring to International Arbitration which has been discussed in a subsequent judgment in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) as discussed above. Therefore, while considering the issue with regard to the jurisdiction of the courts for arbitration in India or the International Arbitration falling in Part, which takes place in India, the views have been expressed in Bhatia International v. Bulk Trading S.A. and anr. (supra). However, subsequently, there is a shift and the Hon'ble Apex Court in a judgment in case of Bharat Aluminum Co. Ltd. v. Kaisar Aluminum Technical Services [BALCO] (supra) has again discussed as stated herein above with regard to the jurisdiction and seat of the arbitration with the focus on “subject matter of arbitration”. Therefore, if the arbitration is at a particular place provided in the arbitration Act, which defines the ‘Court’, will have a reference to the subject matter of arbitration. 16. A useful reference can be also be made to the judgment of the Hon'ble Apex Court in a judgment in case of B.E. Simoese Von Staraburg Niedenthal and Another v. Chhattisgarh Investment Limited reported in (2015) 12 SCC 225 and also the judgment reported in Supreme Today 2016 (Maharashtra) 7. 17. Therefore, the moot question is if they have freedom to chose the forum and the law or the rules by which it would be governed, the same would be also subject to the agreement between the parties with regard to the place of arbitration in India. 17. Therefore, the moot question is if they have freedom to chose the forum and the law or the rules by which it would be governed, the same would be also subject to the agreement between the parties with regard to the place of arbitration in India. Meaning thereby, when the parties have, by agreement, chosen the forum of dispute of the particular special Act like Arbitration Act with the rules of law which will govern them, they may also have the freedom of the place regarding the seat of the arbitration. It is in this context, the rules of interpretation are required to be applicable in a meaningful manner which sub-serve the intention of the legislature. It is well accepted that notwithstanding the conventional principle that the duty of judges is to expound and not to legislate, the Courts have taken the view that the judicial art of interpretation and appraisal is imbued with creativity and realism and since interpretation always implied a degree of discretion and choice, the Court would adopt particularly in areas such as constitutional adjudication dealing with social and defuse rights. Courts are therefore, held as "finishers, refiners, and polishers of legislatures which gives them in a state requiring varying degrees of further processing. 18. It is in this background, when the Hon'ble Apex Court as referred to herein above interpreted the provisions of the Arbitration Act permitting the parties to have the choice for the place of the arbitration or the seat of the arbitration, which is not against the public policy or Section 28 of the Contract Act. Therefore the submissions made by learned Counsel Shri K.I. Shah cannot be accepted. 19. It is in this background when the parties have mutually agreed and accepted with regard to the jurisdiction of the court for resolution of their dispute, the submissions which have been made referring to the statutory provisions of the Code of Civil Procedure, will stand modified to the extent of the interpretation by the Hon'ble Apex Court with reference to the Arbitration and Conciliation Act, 1996. In other words, when there is a special statute which has been provided for a particular mechanism for the purpose of resolution of a dispute including providing for an arbitration agreement, which has been interpreted by the Hon'ble Apex Court leaving it open for the parties to agree to the court which they would like to have for resolution of a dispute, the general law in the form of Code of Civil Procedure providing for the aspect of jurisdiction would stand modified and the interpretation on the special statute expressing the intention of the legislature will prevail over the general law, which has been interpreted by the courts earlier. It is in these circumstances, the submissions made by learned Counsel Shri K.I. Shah cannot be accepted and the present First Appeal along with Civil Application deserve to be dismissed and accordingly stands dismissed. Appeal dismissed.