IN THE HIGH COURT AT CALCUTTA

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL SIDE

(COMMERCIAL DIVISION)

RESERVED ON: 02.12.2025

DELIVERED ON: 09.01.2026

PRESENT:

HON'BLE JUSTICE GAURANG KANTH

AP-COM 856 OF 2024

OCL IRON AND STEEL LIMITED

VERSUS

JINDAL COKE LIMITED

Mr. Chayan Gupta, Adv.

Mr. Pourash Bandyopahdyay, Adv.

Mr. Rajesh Upadhyay, Adv.

Ms. Surabita Biswas, Adv.

….. for the petitioner

Mr. Sarad Kumar Sunny, Adv.

Mr. Chiranjib Sinha, Adv.

Mr. Madhav Binzani, Adv. ….. for the respondent

JUDGMENT

Gaurang Kanth, J.:-

1. The present petition has been filed under Section 34 of the Arbitration and

Conciliation Act, 1996 (“the Act”) assailing an interim award dated

15.07.2024 passed by the Arbitral Tribunal in exercise of powers under

Section 31(6) of the Act. By the impugned interim award, the Arbitral

Tribunal rejected the Petitioner’s application seeking amendment of the

Statement of Defence and, simultaneously, allowed the Respondent’s

application filed under Section 31(6) of the Act.

2. The material facts, as emerge from the record, are that SM Niryat Pvt Ltd.

was engaged in the business of export and import of minerals and ores and

carries on trade in iron ore, coal, sponge iron, pellets, coke, MS billets and

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other allied products. The Respondent is engaged in the business of

manufacturing, processing, finishing and dealing in all forms of coke and

coke-based products at its facility having an annual capacity of 0.43 million

metric tonnes situated at Kalinganagar Industrial Complex, P.O. Danagadi,

Dubri, District Jajpur, Odisha.

3. In the ordinary course of their commercial dealings, the parties entered into

two Sale and Purchase Contracts dated 27.08.2021 and 07.09.2021. Under

the said contracts, the Petitioner was required to supply 11,500 MT and

8000 MT of Peak Downs North Coking Coal to the Respondent on a loaded-

onto-rakes basis at Paradip Port.

4. Disputes arose between the parties during the execution of the aforesaid

contracts. In terms of the arbitration clause contained therein, the Indian

Chamber of Commerce (“ICC”) was designated as the authority to appoint

the Sole Arbitrator for adjudication of the disputes. Consequently, the ICC

constituted the Arbitral Tribunal. Although the agreement between the

parties stipulated Bhubaneswar as the venue of arbitration, the alternative

hearings were thereafter conducted at Kolkata and Delhi with the mutual

consent of the parties.

5. Upon completion of pleadings, the Respondent filed an application under

Section 31(6) of the Act seeking release of certain amounts allegedly

admitted by the Petitioner in its Statement of Defence. The Petitioner, on the

other hand, filed an application seeking amendment of the Statement of

Defence on the ground that certain inadvertent computational and clerical

errors had crept into the figures reflected therein. The Petitioner asserted

that the admissions in the Statement of Defence were incorrect as a result of

these errors.

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6. The errors pointed out by the Petitioner in its amendment application

include: (i) an erroneous figure of Rs.1,31,31,311.59 reflected towards ash-

content aggregates in paragraph 3(m) of the Statement of Defence, whereas

the correct figure was stated to be Rs. 24,205.89; (ii) an incorrect penalty

figure of Rs.22,04,090 mentioned in paragraph 12, instead of Rs.

20,96,975.09; and (iii) an incomplete annexure in the form of a railway

receipt comprising three pages, of which the middle pages were inadvertently

omitted at the time of filing.

7. The Petitioner contended before the Tribunal that the amendment sought

was not intended to retract from any genuine admission but was

necessitated to correct inadvertent and bona fide errors so as to properly

reflect its understanding of the contractual obligations.

8. After hearing both applications together, the Arbitral Tribunal, by the interim

award dated 15.07.2024, dismissed the Petitioner’s amendment application

and allowed the Respondent’s application under Section 31(6) of the Act.

9. Aggrieved thereby, the Petitioner has approached this Court under Section

34 of the Act seeking to set aside the impugned interim award.

10. It is also pertinent to mention here that in the meanwhile vide order dated

30.01.2024 passed by the National Company Law Board, M/s SM Niryat Pvt

Ltd. got amalgamated with the Petitioner herein.

11. At the outset, the Respondent has raised a preliminary objection to the

maintainability of the present petition on the ground of lack of territorial

jurisdiction. It is, therefore, appropriate for this Court to first take note of the

said objection, in addition to the other objections raised by the Respondent

on the merits of the matter.

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Submission of the Respondent

12. Learned counsel for the Respondent submits that the arbitration agreement

stipulates Bhubaneswar as the venue of arbitration, which, in the absence of

any contrary indication, must be construed as the seat of arbitration.

Consequently, only the Courts at Bhubaneswar would have jurisdiction

under Section 34. Reliance is placed on BGS SGS Soma JV v. NHPC Ltd.,

(2020) 4 SCC 234, wherein the Supreme Court held that a designated

“venue” ordinarily signifies the juridical seat, particularly where the clause

provides that the proceedings “shall be held” at that place.

13. Learned Counsel further relied on Brahmani River Pellets Ltd. v.

Kamachi Industries Ltd., report as (2020) 5 SCC 462, which held that

once the parties have chosen venue of arbitration as Bhubaneswar, the

Courts at that place alone have exclusive jurisdiction, even if part of the

cause of action arises elsewhere, in recognition of party autonomy under the

Act. Reliance was also placed on United India Insurance Co. Ltd. v. East

Coast Boat Builders & Engineers Ltd., reported as (2011) 6 SCC 161,

where the Supreme Court held that fixation of the seat necessarily vests

exclusive supervisory jurisdiction in the Courts of that seat, to the exclusion

of all other Courts that may otherwise have jurisdiction under the CPC.

14. Learned Counsel further places reliance on the judgment of the Hon’ble

Supreme Court in BBR (India) Pvt. Ltd. v. S.P. Singla Constructions Pvt.

Ltd., reported as 2023 (1) SCC 693 , to contend that once the seat of

arbitration is fixed under Section 20(2) of the Arbitration and Conciliation

Act, 1996, the same attains finality and cannot be deemed to have shifted

merely because arbitral hearings were conducted at different locations. The

Supreme Court has categorically held that while the venue of hearings may

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vary for convenience, such change does not alter the juridical seat, which

alone determines the Court having supervisory jurisdiction. It is therefore

submitted that the seat, once designated, remains constant unless expressly

altered by agreement of the parties.

15. Learned counsel for the Respondent also relies heavily on the judgment in

Caretel Infotech Ltd. v. HPCL, reported as (2019) 14 SCC 81, to assert

that Courts cannot rewrite commercial contracts or introduce interpretations

not supported by the plain language of the contract. It is submitted that the

arbitration clause clearly specifies the venue as Bhubaneshwar, and the

Court must give effect to the intention by the parties. It is argued that the

attempt of the Petitioner to reinterpret or dilute the venue clause amounts to

seeking a judicial redrafting of the agreement, which is impermissible. In this

context, reliance is placed on Bharat Petroleum Corporation Ltd. v.

Rajinder Singh John reported as MANU/DE/2714/2024 , emphasising that

where the contractual terms are clear and unambiguous, no external or

extrinsic evidence is admissible to alter their meaning.

16. Learned Counsel for the Respondent, placing reliance on Clause 18 of the

Sale Purchase Agreement, submits that any modification or amendment to

the contract must be effected only through a written instrument executed by

both parties. In the present case, no such written amendment exists;

consequently, the terms of the contract remain unaltered, and the parties’

original intention cannot be subsequently varied or reinterpreted.

17. On the strength of these authorities, it is the Respondent’s submission that

the reference to Bhubaneswar as the venue amounts to its designation as

the seat of arbitration, and accordingly, only the Courts at Bhubaneswar are

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competent to entertain a petition under Section 34. It is therefore contended

that this Court lacks territorial jurisdiction.

18. Learned Counsel for the Respondent further places reliance on the definition

of “Court” contained in Clause 2(X), as well as Rule 30 of the Indian

Chamber of Commerce Rules (ICC Rules), under whose aegis the present

arbitration is to be conducted. It is submitted that Clause 2(X) read with

Rule 30 of the ICC Rules substantially corresponds to the scheme of Section

2(1)(e) and Section 20(3) of the Arbitration and Conciliation Act, 1996.

Accordingly, when these provisions are harmoniously construed, it becomes

evident that the parties have conferred exclusive supervisory jurisdiction

upon the Courts at Bhubaneswar, which alone are competent to entertain

and adjudicate the present proceedings.

19. Without prejudice to its rights and contentions on the preliminary objection

regarding territorial jurisdiction, the Respondent further submits that the

Petitioner is not entitled to assail the order passed by the learned Arbitral

Tribunal on the amendment application at this interlocutory stage. It is

argued that the legislative scheme of the Act does not permit a challenge to

procedural or interim orders of the Tribunal except under Section 16(6) or

Section 17, where expressly provided. For this proposition, reliance is placed

upon Container Corporation of India Ltd. v. Texmaco Ltd. reported as

2009 (2) ARBLR 573 (Delhi), Punj Lloyd Limited v. Oil and Natural Gas

Corporation Ltd., reported as 2016 SCC OnLine Bom 2749 , and Arati

Plastic v. Rajendra Yadav, reported as MANU/WB/1921/2023. to contend

that intermediate orders of the Arbitral Tribunal cannot be assailed

independently. It is the settled position that such objections must be raised

only in a challenge to the final arbitral award under Section 34 of the Act.

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The Respondent therefore submits that the Petitioner’s present challenge, to

the extent it seeks to impugn interlocutory determinations of the Tribunal, is

premature and thus not maintainable.

20. The Respondent further submits that the amendment application was filed

by the Petitioner with the sole objective of retracting the categorical

admissions made in the original Statement of Defence. According to the

Respondent, these admissions are not confined merely to the pleadings but

also find clear reflection in the documents relied upon by the Petitioner

during the arbitral proceedings. Reliance is placed on Videocon Industries

Ltd. v. Union of India, reported as (2011) 6 SCC 161, and Heeralal v.

Kalyan Mal & Ors. , reported as (1998) 1 SCC 278, to contend that

admissions made in pleadings are binding and constitute substantive

evidence. A party cannot, through subsequent pleadings or by moving an

amendment, seek to contradict or withdraw such admissions except in

exceptional circumstances, which the Petitioner has neither pleaded nor

established. It is further contended that the Petitioner’s admissions are not

restricted to the pleadings alone but are also borne out from the

documentary material furnished by the Petitioner. In this regard, reliance is

placed on Augmont Gold Pvt. Ltd. v. One 97 Communications Ltd. ,

reported as MANU/DE/2479/2021 , to submit that documentary admissions

carry a higher evidentiary value and are ordinarily conclusive unless

withdrawn or explained in the manner known to law.

21. Summarising his submissions, learned counsel for the Respondent contends

that Bhubaneshwar is the contractually agreed seat of arbitration, and

therefore this Court lacks territorial jurisdiction under Section 2(1)(e). The

Petitioner is bound by its admissions and cannot be permitted to withdraw

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or contradict them. Any challenge to interlocutory or procedural orders of

the Arbitral Tribunal is premature and not maintainable until the final

award; and the Court is bound to enforce the contract as written, without

resorting to external evidence or equitable considerations. On these grounds,

it is submitted that the present petition deserves to be dismissed in limine

for want of jurisdiction and for being otherwise untenable.

Submission on behalf of Petitioner

22. Learned Counsel for the Petitioner, on the other hand, submits that under

the arbitration agreement, the ‘venue’ of arbitration is mentioned as

Bhubaneswar and the proceedings are to be conducted in accordance with

the ICC Rules. He submits that notwithstanding such stipulation, no hearing

was ever conducted at Bhubaneswar. The first hearing was held at Kolkata

and, thereafter, by mutual consent, the parties agreed that the sittings of the

Arbitral Tribunal would be conducted alternately at Kolkata and New Delhi.

According to the Petitioner, the parties, by their conduct and mutual

understanding, consciously departed from and, in effect, waived the

contractual stipulation regarding Bhubaneswar as the venue.

23. It is further argued that Rule 2(X) of the ICC Rules defines “Court” to mean

the civil court which would have jurisdiction to decide the questions forming

the subject-matter of the reference had the dispute been the subject of a civil

suit. Rule 30 of the ICC Rules, which governs the place of arbitration,

expressly stipulates that the “place or venue of arbitration shall be Kolkata,

India,” while also empowering the Council, for the convenience of the

Arbitrators and the parties, to conduct proceedings at such other place or

places in India as it may determine, subject to the parties bearing the

additional expenses prescribed in Schedule I. Learned Counsel further

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submits that although Clause 9 stipulates that, for a venue outside Kolkata,

the panel must be appointed by ICC New Delhi, the venue here was

Bhubaneswar and yet ICC Kolkata appointed the panel, indicating waiver of

the venue clause and acceptance of Kolkata. Referring to Rule 48 (waiver

clause), the Respondent, having knowledge yet raising no written objection,

is deemed to have waived the stipulation of ICC New Delhi appointment and

thereby accepted Kolkata as the venue. When these provisions are read

harmoniously with the arbitration clause and the manner in which the

parties have conducted themselves, it becomes evident that Kolkata is the

designated juridical seat of arbitration, and any hearings held elsewhere are

merely a matter of convenience. Consequently, this Hon’ble Court possesses

territorial jurisdiction to entertain and adjudicate the present petition.

24. Placing reliance on the judgment in BGS SGS Soma JV (supra), learned

counsel submits that designation of a venue amounts to designation of the

seat only when the venue is expressly specified and there is no indication of

any alternative place as the seat combined with supranational body of rules

governing arbitration, and no other contrary indicia. In the present case,

however, the arbitration is governed by the ICC Rules, the parties

consciously departed from the venue clause, and the proceedings were never

held at Bhubaneswar. Therefore, the case of the Petitioner is squarely

covered by the exception carved out in para 61 of the BGS SGS Soma JV

(supra). It is thus contended that Bhubaneswar cannot, in law or on facts, be

treated as the juridical seat, and that the Courts at Kolkata, as per the ICC

Rules and the arbitration effectively conducted, possess supervisory

jurisdiction under Section 2(1)(e) of the Act.

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25. Learned counsel for the Petitioner submits that the Respondent’s reliance on

decisions such as Brahmani River Pellets Ltd (supra) and Indus Mobile

Distribution Pvt. Ltd. (supra) is misplaced, as those decisions were

premised on situations where the arbitral hearings were in fact conducted at

the designated venue and there was no departure by the parties. In contrast,

in the present case, the parties themselves departed from the venue clause

from the very outset, rendering those judgments factually distinguishable.

26. On merits, learned counsel submits that, by email dated 09.12.2021, the

Petitioner offered to tender the amounts expressly admitted therein;

however, the Respondent declined to accept such offer. It is, therefore,

contended that the Respondent is not entitled to any interest awarded by the

Arbitral Tribunal. It is further urged that the Tribunal erred in granting

interest at the stage of an interim award, particularly when the agreement

between the parties is silent on interest. According to the Petitioner, the

question of interest ordinarily arises only at the stage of the final award

upon appreciation of evidence, and the interim award has caused grave

prejudice by foreclosing the Petitioner’s opportunity to establish its case.

Reliance is placed on Kripa Sindhu Mukherjee v. Annanda Sundari Debi ,

reported as (1906-07) 11 CWN 983 and Pana Ana Rana Arunachalam

Pillai v. Govinda Swami Naikar, reported as ILR (1932) 55 Mad 458.

27. As regards the Respondent’s objection to amendment, learned counsel

submits that the amendment application was decided along with the

Respondent’s application under Section 31(5) of the Act, and the order

conclusively determines certain rights of the parties. It is urged that the

Tribunal has finally negatived the interpretation sought by way of

amendment and, consequently, deprived the Petitioner of the opportunity to

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lead evidence on the construction of Clause 4.0, including the issue of

tolerance and industry-specific trade practice. Hence, a Section 34 challenge

is maintainable. It is further submitted that there was no consent to hear

both applications simultaneously and that the Tribunal ought to have

decided the amendment application first. According to the Petitioner, there

was no attempt to withdraw any conscious or unequivocal admission; the

alleged admissions were inadvertent clerical and computational errors

sought to be corrected at the earliest. Reliance is placed on Wasudhir

Foundation v. C. Lal & Sons , reported as 1991 SCC OnLine Del 569;

Hitech System & Services Ltd v. DILO Amaturen Und Anlagen GMBH ,

reported as 2017 SCC OnLine Cal 5034; Gora Lal Seal v. Fine Infra

Projects Pvt. Ltd., reported as 2023 SCC OnLine Cal 1987; Steel

Authority of India Ltd. v. H.R. Construction Pvt. Ltd., reported as 2025

SCC OnLine Cal 4494; Rajesh Kumar Aggarwal v. K.K. Modi , reported as

(2006) 4 SCC 385; and Usha Balashaheb Swami v. Kiran Appaso

Swami, reported as (2007) 5 SCC 602, to contend that amendments should

be liberally permitted where necessary for determining the real controversy

and where no prejudice is caused. The Petitioner accordingly submits that

the amendment was wrongly rejected and that the interim award suffers

from patent illegality.

28. In view of the above submissions, learned counsel for the Petitioner

concluded that this Court has the requisite territorial jurisdiction to

entertain the present petition. It is submitted that the amendment sought

was essential for a proper and complete adjudication of the dispute and was

not filed with any intention to resile from or withdraw the earlier admissions.

According to the Petitioner, the decision on the amendment application

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finally determines the Petitioner’s substantive rights in the arbitral

proceedings and, therefore, such determination is amenable to challenge in

proceedings under Section 34 of the Arbitration and Conciliation Act.

Legal Analysis

29. This Court heard the arguments advanced by the learned counsel for both

the parties and examined the documents.

30. The first question to be determined is whether this Court has territorial

jurisdiction to entertain the present Petition under Section 34 of the Act.

Determination on territorial jurisdiction

31. This Court has carefully considered the rival submissions advanced on the

issue of territorial jurisdiction.

32. The principal controversy that arises for determination is whether, in the

facts of the present case, the reference to Bhubaneswar as the “venue of

arbitration” in Clause 14 of the Agreement vests exclusive supervisory

jurisdiction in the Courts at Bhubaneswar, or whether, in light of the

express applicability of the ICC Rules and the subsequent conduct of the

parties, the juridical seat of arbitration stands situated at Kolkata, thereby

conferring jurisdiction upon this Court under Section 2(1)(e) of the Act.

33. The agreement between the parties records Bhubaneswar as the venue of

arbitration. Clause 14 of the Agreement between the parties reads as follows:

“Any dispute, difference or disagreement between the parties

arising under or in relation to this contract including (but not

limited to) any dispute, difference or disagreement as to the

meaning of the terms of this contract or any failure to agree on

any matter required to be agreed upon under this contract

shall if possible be resolved by negotiation and mutual

agreement by the parties within 30 days. Should no

agreement be reached then the dispute shall be finally settled

by arbitration upon the request of either party hereto in

accordance with the rules of conciliation and arbitration of the

Indian Chamber of Commerce by three arbitrators in English

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language and in accordance with the said rule. The result of

such arbitration shall be final and binding for the parties and

for all purposes. The venue of arbitration shall be

Bhubaneshwar.”

34. The contractual clause designates Bhubaneswar as the venue of arbitration

and stipulates that the arbitral proceedings shall be conducted in

accordance with the Rules of Conciliation and Arbitration of the Indian

Chamber of Commerce (“ICC Rules”).

35. In this regard, Rule 2(X) of the ICC Rules defines “Court” to mean the civil

court having jurisdiction to decide the subject-matter of the reference had

the dispute been the subject of a civil suit. Rule 30 of the ICC Rules, which

governs the place of arbitration, further provides as follows:

“The place or venue of arbitration shall be Kolkata, India. However,

the Council, having regard to the convenience of the Arbitrators and

the parties, may determine the venue and hold the proceedings at

such place or places in India.

In case the venue is outside Kolkata, the parties have to bear all

additional costs and expenses as prescribed in Schedule I.”

36. The Respondent’s primary contention is that Clause 14 of the arbitration

agreement stipulates Bhubaneswar as the venue of arbitration, and that

such designation, absent any explicit contrary stipulations, must be

construed as the seat of arbitration in view of the law laid down by the

Hon’ble Supreme Court in BGS SGS Soma JV (supra), Brahmani River Pellets

Ltd.(supra), United India Insurance Co. Ltd. (supra). It is further urged that

since the Agreement records Bhubaneswar as the venue, and since the

venue implies the seat unless expressly displaced, jurisdiction must lie

exclusively with the Courts at Bhubaneswar.

37. The flaw in the Respondent’s reasoning emerges upon a closer examination

of the effect of the ICC Rules, which stand expressly incorporated into the

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arbitration agreement. Unlike the clauses considered in Brahmani River

Pellets (Supra) or Indus Mobile Distribution Pvt. Ltd. (Supra), the arbitration

clause herein does not merely designate a venue; it subjects the entire

arbitral process to the ICC Rules. Rule 30 of these Rules is explicit and

categorical, to the extent that the place or venue of arbitration shall be

Kolkata, India. However, having regard to the convenience of the Arbitrators

and the parties, they can determine the venue and hold the proceedings at

such place or places in India.

38. On a careful reading, Rule 30 of the ICC Rules reveals a clear two fold

scheme. The first limb, which states that “the place or venue of arbitration

shall be Kolkata,” operates as a designation of the juridical seat of

arbitration within the meaning of Section 20(1) of the Arbitration and

Conciliation Act, 1996. The second limb, which empowers the Council to

conduct proceedings at such other place or places in India as may be

convenient to the parties and the Arbitrators, is purely procedural in nature

and designed to provide logistical flexibility. This scheme aligns with Section

20(3) of the Act, which permits the Arbitral Tribunal to hold hearings at

locations other than the seat without affecting the juridical seat itself.

Consequently, Kolkata remains the legally recognised seat of arbitration,

while any sittings held elsewhere are to be treated solely as venues of

convenience.

39. This Court is also of the considered view that any interpretation of Rule 30

other than one which treats the first limb as a designation of the juridical

seat would render the provision internally inconsistent and unworkable. The

expression “place or venue of arbitration shall be Kolkata” cannot be

construed as giving the parties a choice between “place” and “venue,” nor as

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indicating alternative locations. The use of both terms in the first limb serves

only to emphasise that Kolkata is the fixed juridical seat. The second limb,

permitting the Council to determine an alternative venue for convenience,

makes clear that the venue alone is flexible and may vary depending on

logistical requirements. Any interpretation that detaches the first limb from

its function as the seat or treats “place” and “venue” as separate or optional

concepts would contradict the internal structure of the Rule and lead to an

absurd outcome where the juridical seat is indeterminate. Such a

construction cannot be accepted in law.

40. Hence the legal effect of Rule 30 is unequivocal. The “place of arbitration”, a

term judicially recognised as synonymous with the “seat”, is fixed at Kolkata

by the applicable institutional rules. When parties choose institutional rules

that expressly stipulate the place of arbitration, those rules become an

integral and binding part of the arbitration agreement, and their designation

of the “place” must prevail unless expressly excluded by the parties.

41. Thus, even though Clause of the Agreement between the parties uses the

expression “venue” in reference to Bhubaneswar, the clause simultaneously

submits the arbitration to the ICC Rules, which undeniably fix Kolkata as

the juridical seat. The presumption applied in BGS SGS Soma (supra), that a

designated venue amounts to a seat, operates only in the absence of contrary

indicia. In the present case, Rule 30 constitutes a clear and binding contrary

indicium, sufficient to displace the presumption.

42. The factual matrix further reinforces the conclusion that Bhubaneswar was

never intended or treated as the juridical seat. It is not disputed that no

sitting of the Arbitral Tribunal took place at Bhubaneswar, the first hearing

was held at Kolkata, subsequent hearings were, by mutual consent, held

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alternately in Kolkata and New Delhi, neither party ever insisted on

Bhubaneswar as the locus of proceedings.

43. The Supreme Court in Inox Renewables Ltd. v. Jayesh Electricals Ltd.

reported as 2023 (3) SCC 733 recognises that the seat may be shifted by

mutual conduct, and that the conduct of parties can override an initial

stipulation of venue where the parties consciously and consistently proceed

elsewhere. The uniform departure from Bhubaneswar from the inception of

the proceedings, coupled with the adoption of Kolkata as the practical centre

of gravity of the arbitration, is entirely inconsistent with the Respondent’s

case that Bhubaneswar constituted the juridical seat. Where the parties

have not merely avoided Bhubaneswar but have conducted the arbitration

principally at Kolkata, which is also designated as the “place” under Rule 30,

there remains no scope to hold that the juridical seat lies elsewhere.

44. The Respondent’s reliance upon Rule 2(X) of the ICC Rules is misplaced.

Rule 2(X) merely defines “Court” to mean the civil court competent to decide

the subject matter of the reference if the same were the subject of a suit. This

definition does not determine the seat. It operates only within the framework

of the seat, i.e., to identify which civil court within the seat’s jurisdiction

would be competent. Once Rule 30 fixes Kolkata as the place of arbitration,

Rule 2(X) necessarily points to the competent courts at Kolkata. It does not

and cannot extend jurisdiction to Bhubaneswar.

45. The decisions in Brahmani River Pellets (supra), BGS SGS Soma (Supra) ,

Indus Mobile (supra), and United India Insurance (Supra) were rendered in

factual contexts where the venue designated by the arbitration agreement

was actually used for conducting the proceedings, there existed no contrary

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indication in the contract, such as institutional rules fixing a different seat,

the parties had not mutually departed from the contractual venue.

46. The present case stands on a fundamentally different footing. The arbitration

here is governed by institutional rules that explicitly designate Kolkata as

the place of arbitration, arbitration has never been conducted at

Bhubaneswar; and arbitration has been consistently held at Kolkata and

New Delhi by mutual consent.

47. In so far as reliance is placed on the decision in BBR (India) Pvt. Ltd.

(supra), it is submitted that the same is distinguishable on facts. In BBR

(India) Pvt. Ltd. (supra), the Supreme Court addressed the position where

the seat of arbitration had been fixed by the first arbitrator, but subsequent

hearings were conducted at a different location following the appointment of

a new arbitrator. The Court held that the juridical seat remained unchanged

notwithstanding the change of venue for hearings. In the present case,

however, the parties have, from the inception of the contract, expressed a

practical and mutual intention to designate Kolkata as the seat of

arbitration, as reflected in the consistent conduct of the parties and the

arbitration clause read with Rule 30 of the ICC Rules. Unlike BBR (India)

Pvt. Ltd. (supra), there is no attempt to alter an already fixed seat by

unilateral action of a newly appointed arbitrator or any procedural change.

Here, the first limb of Rule 30 expressly fixes Kolkata as the juridical seat,

and any other hearing locations are merely for convenience. Therefore, the

principle in BBR (India) Pvt. Ltd. (supra) that the seat remains fixed despite

change of hearing venue supports, rather than undermines, the present

case, and the territorial jurisdiction of this Court is rightly attracted to

Kolkata.

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48. These factual and contractual distinctions render the Respondent’s reliance

on the above authorities wholly inapposite. Rather, the principles that

emerge from the various case laws discussed herein above squarely apply to

the present case, recognising that the juridical seat must be identified not

merely from nomenclature but from a cumulative assessment of the

contract, the governing rules, and the conduct of parties.

49. Upon a holistic consideration of the contractual clause, the ICC Rules, and

the conduct of the parties, this Court concludes that the designation of

Bhubaneswar in Clause 14 is only a reference to the venue of hearings, Rule

30 of the ICC Rules, expressly incorporated by the parties, fixes the juridical

seat at Kolkata, the arbitral proceedings were in fact held at Kolkata and

New Delhi, and never at Bhubaneswar, thereby evidencing a conscious

departure from the contractual venue, the juridical seat of arbitration is

therefore Kolkata; and the Courts at Kolkata alone possess supervisory

jurisdiction under Section 2(1)(e) of the Act.

50. Consequently, the Respondent’s preliminary objection that this Court lacks

territorial jurisdiction is unsustainable and stands rejected.

Maintainability of the Petition challenging the order where by amendment

to SOD has been rejected

51. The next issue that arises for consideration concerns the maintainability of

the Petitioner’s challenge to the order of the learned Arbitral Tribunal

refusing to permit amendment of the Statement of Defence. The Petitioner

contends that the refusal finally determines certain substantive rights and

therefore is amenable to challenge under Section 34. The Respondent, on the

other hand, submits that the said order is purely procedural in nature,

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constitutes neither an interim award nor an appealable order under the Act,

and consequently cannot be assailed at this stage.

52. Upon consideration of the rival submissions, this Court is of the view that

the present challenge is fundamentally misconceived and not maintainable

in law. The Arbitration and Conciliation Act, 1996 embodies the principle of

minimal judicial intervention. Section 5 of the Act expressly mandates that

no judicial authority shall intervene in arbitral proceedings except where so

contemplated by the statute. The scheme of the Act makes it abundantly

clear that judicial review of interlocutory or procedural orders of the arbitral

tribunal is narrowly circumscribed.

53. The discretion to permit or decline amendments is vested exclusively in the

Arbitral Tribunal under Section 23(3) of the Act. Such discretion is to be

exercised having regard to the stage of the proceedings, the nature of the

amendment, its potential impact on the arbitral timeline, and the prejudice,

if any, to the opposite party. The Tribunal’s refusal to allow the amendment

is thus an exercise of procedural jurisdiction flowing directly from the

statute. Unless the Petitioner establishes jurisdictional infirmity, perversity,

or violation of natural justice, which is not demonstrated, the Court cannot

substitute its view for that of the Tribunal.

54. The material on record demonstrates that the amendment was sought at an

advanced stage and which would have the effect of withdrawing earlier

admissions contained in the Statement of Defence. By that time, the

Respondent’s application under Section 31(6) of the Act was already

pending. The Arbitral Tribunal, in the exercise of its procedural discretion,

allowed the application under Section 31(6) and rejected the Petitioner’s

amendment request. The order reflects a reasoned consideration after

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hearing both sides, and no infirmity or procedural unfairness warranting

judicial interference has been established.

55. Significantly, an order refusing amendment does not adjudicate upon or

finally determine any substantive claim or defence between the parties. It

merely regulates the procedure of the arbitration and therefore does not

satisfy the statutory definition of an “interim award” under Section 2(1)(c)

nor does it fall within the categories of appealable orders enumerated under

Section 37. The Supreme Court, in Deep Industries Ltd. v. ONGC, reported

as (2020) 15 SCC 706; and Bhaven Construction v. Executive Engineer ,

reported as (2022) 1 SCC 75;, has repeatedly cautioned that High Courts

should refrain from interfering with such procedural orders, save in rare

cases of patent lack of inherent jurisdiction.

56. The Tribunal’s refusal to permit amendment is in the nature of a procedural

or case management direction and does not finally determine any

substantive right of the parties, such an interlocutory step is therefore not

amenable to challenge under Section 34, which is attracted only where the

award, in whole or part, decides issues conclusively. The authorities cited by

the Petitioner are distinguishable. Wasudhir Foundation (supra), Hitech

System (supra), Gora Lal Seal (supra) and Steel Authority of India (supra)

address the scope of amendments in civil proceedings and not the statutory

limits of curial interference under Section 34, while Rajesh Kumar

Aggarwal (supra) and Usha Balashaheb Swami (supra) interpret Order VI

Rule 17 CPC and cannot be mechanically applied to arbitral procedure,

where party autonomy and the Tribunal’s procedural discretion are

paramount.

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57. With regard to the petitioner’s contention that the rejection of the proposed

amendment amounts to a final negation of the interpretation sought to be

advanced and has consequently deprived the petitioner of an opportunity to

adduce evidence on the construction of Clause 4.0, including the aspects of

tolerance and industry practice, this Court finds no merit in the said

submission. The interpretation of contractual terms is essentially a matter of

legal argument and not one requiring specific pleadings. Pleadings are

intended to set out the factual matrix of the dispute and not the

interpretative exercise to be undertaken by the adjudicating authority. Even

in the absence of a specific plea as to interpretation, the arbitral tribunal is

competent to consider and adjudicate upon the rival submissions of the

parties on the interpretation of the contractual clause at the stage of final

arguments.

58. Entertaining challenges to orders relating to amendment of pleadings at the

interlocutory stage would lead to fragmentation of the arbitral process and

would defeat the very objectives of expedition and efficiency underlying the

1996 Act. The appropriate remedy available to the Petitioner is to raise all

permissible objections, including the alleged erroneous refusal to permit

amendment, in a Section 34 petition after passing of the final award, if the

petitioner is so advised and if such grounds are legally tenable.

59. Viewed from another perspective, permitting the present challenge would

also amount to bypassing the express legislative scheme. Neither Section 16,

nor Section 17, nor any other provision of the Act permits a standalone

challenge to an order disallowing amendment. The Petitioner has attempted

to characterize the order as one “finally determining rights”, but this

contention is untenable. No substantive rights are determined; the Tribunal

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has merely declined to modify pleadings. Procedural discipline, once

exercised within jurisdiction, cannot be converted into a ground of mid-

course judicial intervention.

60. In the circumstances, this Court finds that the grievance of the Petitioner,

even if assumed to be genuine, does not confer any statutory right of

intervention at this stage. The refusal of amendment does not result in any

irremediable prejudice to the Petitioner’s ability to present its case and thus

does not attract any of the narrow exceptions carved out by judicial

precedents permitting court interference in arbitral proceedings prior to the

final award.

61. For the reasons stated above, this Court holds that the challenge to the

order of the Arbitral Tribunal disallowing amendment to the Statement of

Defence is not maintainable under the Arbitration and Conciliation Act,

1996. The impugned order is purely procedural determination, squarely

within the discretion and jurisdiction of the Tribunal, and does not finally

determine the rights of the parties so as to attract the supervisory

jurisdiction of this Court at the present stage.

62. In view of the foregoing finding that the challenge to the order passed by the

Arbitral Tribunal disallowing the amendment is not maintainable and cannot

be treated as an interim award determining the rights of the parties, this

Court does not propose to examine the merits of the proposed amendments

at this stage. The question of such amendments is accordingly left open for

the Petitioner to raise at the appropriate stage, if so advised.

Conclusion

63. In view of the foregoing discussion, this Court is of the considered view

that:

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(i) Having regard to the arbitration agreement, the governing ICC

Rules, the conduct of the parties, and the settled principles for

determining the juridical seat of arbitration, the Courts at Kolkata

possess territorial jurisdiction under Section 2(1)(e) of the

Arbitration and Conciliation Act, 1996 to entertain the present

petition. The Respondent’s preliminary objection on the ground of

lack of territorial jurisdiction is, therefore, rejected.

(ii) Insofar as the Petitioner seeks to impugn the order of the learned

Arbitral Tribunal refusing amendment of the Statement of Defence,

this Court finds that the said order is purely procedural in nature,

does not determine any substantive rights of the parties, and falls

neither within the ambit of an “interim award” nor within the

category of appealable orders under Section 37. Such challenge is,

therefore, not maintainable at this interlocutory stage.

64. It is clarified that the observations made herein with respect to the

amendment sought by the Petitioner are strictly prima facie and confined to

the issue of maintainability of the present challenge. This Court has not

examined, nor expressed any final opinion on, the merits of the proposed

amendment. It is left open to the Petitioner to raise all permissible grounds,

including those relating to the refusal of amendment, at the stage of

challenge to the final arbitral award, if so advised and in accordance with

law.

65. In view thereof, the present petition is dismissed.

(GAURANG KANTH, J.)

Sakil Amed P.A.