Msa Global Llc Oman vs. Engineering Projects India Limited

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 27.08.2025
Judgment pronounced on: 12.12.2025
Judgment uploaded on: 12.12.2025

+ FAO(OS) 88/2025, CM APPL. 47877/2025 & CM APPL.
47880/2025

MSA GLOBAL LLC OMAN .....Appellant
Through: Mr. Rajiv Nayar, Sr. Adv. with
Mr. Kirat Singh Nagra, Mr.
Kartik Yadav, Mr. Pranav
Vyas, Ms. Sumedha Chadha
and Mr. Sankalp Singh, Advs.

versus

ENGINEERING PROJECTS INDIA LTD .....Respondents
Through: Mr. Sandeep Sethi, Sr. Adv.
with Mr. Ajit Warrier, Mr.
Angad Kochhar, Mr. Himanshu
Setia, Mr. Vedant Kashyap, Mr.
Sumer Dev Seth, Ms. Riya
Kumar, and Ms. Richa Khare,
Advs.

CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
ANIL KSHETARPAL, J.
1. Through this Appeal, the Defendant/Appellant herein assails the
correctness of the Order passed on 25.07.2025 by the learned Single
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Judge [hereinafter referred to as „ Impugned Order ‟], while
injuncting continuation of arbitration proceeding in an anti-arbitration
suit.
2. The grant of injunction is predicated predominantly on the
ground that Mr. Andre Yeap [hereinafter referred to as „ Mr. Yeap ‟], a
member of the Arbitral Tribunal [hereinafter referred to as
„ Tribunal ‟], failed to make disclosure about his prior involvement in
an arbitration proceeding involving the Defendant and Mr.
Manbhupinder Singh Atwal [hereinafter referred to as „ Mr. Atwal ‟],
who happens to be the MD, Chairman, and Promoter of the
Defendant. This then led the learned Single Judge to prima facie
conclude that if allowed to continue, it would result in the proceedings
which are oppressive and vexatious to the Plaintiff/Respondent. With
respect to the objections, to the said effect, as raised by the
Plaintiff/Respondent herein, the said Arbitrator/member of the
Tribunal submitted the following explanation for his non-disclosure
and continued non-disclosure by stating as follows:
“…Had I made the disclosure, the possibility of the Respondent
seeking to challenge my impartiality could not be discounted.”
3. The International Court of Arbitration of the International
Chamber of Commerce [hereinafter referred to as „ ICC Court ‟] found
that there was a non-disclosure on the part of Mr. Yeap, and held that
such non-disclosure was ―regrettable‖ , but permitted the continuance
of the proceedings with the presence of Mr. Yeap, in respect of whom,
the Plaintiff/Respondent had expressed serious reservations.
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4. Herein, the parties shall be referred to by their status and rank in
the suit, i.e., CS (OS) No. 243/2025.
FACTUAL MATRIX
5. In order to comprehend the issues involved in the present case,
relevant facts in brief are required to be noticed.
6. The Defendant is a military and security systems integrator
company based in Oman, whereas the Plaintiff is a public sector
enterprise under the Ministry of Heavy Industries and Public
Enterprises (Department of Heavy Industry), Government of India,
having its registered office at New Delhi. On 29.06.2015, the Ministry
of Defence, Oman, entered into an agreement with the Plaintiff and
appointed it as the main contractor for a supply and build project at
the Oman-Yemen border. Thereafter, on 21.09.2015, the Plaintiff
entered into a sub-contract agreement [hereinafter referred to as „ the
Agreement ‟] with the Defendant for design, supply, installation,
integration, and commissioning of Border Security System for the
Engineer-3 Project Section 3 and 4 on the Oman-Yemen border.
7. It may be noted here that the Agreement includes an arbitration
clause, i.e., Article 19, which stipulates that all disputes arising
between the parties shall be resolved by way of arbitration before a
duly constituted Tribunal. It further provides that the jurisdiction in
respect of the Contract Agreement shall vest exclusively with the
Courts at New Delhi, India, whereas the place of arbitration shall be
determined through mutual agreement between the parties. The said
Article also mandates that any reference to arbitration shall be
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governed by, and conducted in accordance with, the Rules of
Arbitration of the International Chamber of Commerce, 2021
[hereinafter referred to as „ ICC Rules ‟].
8. Thereafter, a dispute appears to have arisen inter se the parties,
concerning delays in the performance of contractual obligations under
the Agreement. Pursuant thereto, the Defendant invoked the
arbitration clause and on 12.04.2023, through its Counsel, filed a
request for Arbitration under the ICC Rules and nominated Mr. Yeap
as its co-arbitrator.
9. Pursuant to the same, the Secretariat of the International
Chamber of Commerce [hereinafter referred to as „ ICC ‟] required Mr.
Yeap to submit a signed Statement of Acceptance, Availability,
Impartiality and Independence in terms of Article 11(2) of the ICC
Rules. On 19.04.2023, Mr. Yeap submitted the signed statement of
Acceptance, wherein it was stated that „ he had nothing to disclose‟ .
10. Thereafter, vide letter dated 13.07.2023, the ICC Court fixed
Singapore as the place of arbitration. The same is reproduced
hereunder:
“On 13 July 2023, the International Court of Arbitration of the
International Chamber of Commerce (“Court”):
- fixed Singapore as the place of the arbitration (Article 18(1)).
- confirmed Andre Yeap as co-arbitrator upon Claimant‟s
nomination (Article 13(1)).
- confirmed Arjan Kumar Sikri as co-arbitrator upon Respondent‟s
nomination (Article 13(1)).
- fixed the advance on costs at US$ 515 000, subject to later
readjustments (Article 37(2)).”
11. Thereon, from 19.04.2023 to 16.01.2025, the arbitration
proceeding continued, and a First Partial Award dated 19.06.2024 was
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issued, which burdened the Plaintiff with financial liability to the tune
of Rs. 30 crores (approximately).
12. On 17.01.2025, while preparing for the evidential hearings in
the ICC Arbitration, the Counsel for Plaintiff learned of a judgment
passed by the High Court of Gujarat on 05.07.2024 in Neeraj
1
Kumarpal Shah v. Manbhupinder Singh Atwal , wherein, at the very
outset, it was noticed that Mr. Yeap failed to disclose his prior
professional engagement with the Defendant and his Counsel. On
studying the aforesaid judgment, the Counsel became aware that in
November 2018, the Defendant and Mr. Manbhupinder Singh Atwal
nominated Mr. Andre Yeap, Senior Counsel from Singapore, as a co-
arbitrator in the Tribunal in the aforesaid arbitration proceeding. Mr.
Kirat Singh Nagra was communicating on behalf of the Defendant
herein. In the aforesaid arbitration proceeding, the evidential hearings
took place from 13.02.2018 to 18.02.2018, and the Arbitral Award
was passed on 16.04.2021 in favour of Mr. Atwal. However, the said
Arbitral Award was set aside by the Gujarat High Court vide order
dated 05.07.2024.
13. Consequently, the Plaintiff, on 19.01.2025, while alleging a
lack of disclosure and thereby raising doubts over the independence,
neutrality, and impartiality of Mr. Yeap, filed a Challenge Application
before the ICC Court under Article 14(1) of the ICC Rules. On
20.01.2025, the Tribunal adjourned the evidential hearing fixed in
January 2025 in view of the fact that the Challenge Application was
filed. On the same day, the ICC Secretariat requested the Arbitrator

1
C/ARBI.P/23/2023
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and the Defendant to submit their comments on the Challenge
Application.
14. Pursuant thereto, on 23.01.2025, Mr. Yeap, in response to the
Challenge Application under Article 14(1) of the ICC Rules, provided
his explanation in respect of the non-disclosure. He stated that
although he became aware of the conflict in October 2024, he did not
disclose it, stating, inter alia , that “ had I made the disclosure, the
possibility of the Respondent seeking to challenge my impartiality
could not be discounted. ”
15. Thereafter, on 28.02.2025, the ICC Secretariat informed that on
27.02.2025, the ICC Court: (a) decided that the challenge filed against
Mr. Yeap is admissible; (b) rejected the challenge on merit; and (c)
decided to communicate reasons for its decision subsequently, once it
is finalized.
16. Pursuant to this, on 14.03.2025, the ICC communicated its
reasons in support of its decision dated 27.02.2025 for rejecting the
Challenge Application [hereinafter referred to as „ ICC Reasons ‟].
While the ICC Court acknowledged that the non-disclosure by Mr.
Yeap was regrettable, it was of the view that the circumstances did not
establish justifiable doubts with respect to Mr. Yeap‟s impartiality and
independence.
17. In the interregnum, the Plaintiff objected to the continuance of
the arbitration proceeding; however, the Tribunal, on 12.03.2025,
communicated its intention to fix the evidential hearings in Singapore
from 26.05.2025 to 31.05.2025, while granting liberty to the parties to
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seek variation on seven days‟ notice, should there be a change in
circumstances.
18. Meanwhile, on 13.11.2024, the Plaintiff partially challenged the
First Partial Award before the Singapore High Court [hereinafter
referred to as „ SGHC ‟] by filing OA 1185/2024. Thereafter, on
31.01.2025, the Plaintiff approached the SGHC seeking leave to
amend OA 1185/2024 to introduce a new ground alleging bias on the
part of Mr. Yeap as an additional basis for setting aside the Partial
Award. Pursuant thereto, on 03.02.2025, the SGHC granted the
Plaintiff permission to file an application seeking the proposed
amendment, and accordingly, the Plaintiff filed the relevant
application in OA 1185/2024 on 05.02.2025. The abovementioned
application was rejected by the SGHC on 27.03.2025. Thereafter, on
10.04.2025, the Grounds of Decision were rendered by the SGHC vide
2
judgment titled as DLS v. DLT .
19. Parallelly, on or around 11.03.2025, the Defendant filed a
petition under Sections 44, 46, 47, and 49 of the Arbitration and
Conciliation Act, 1996 [hereinafter referred to as „ A&C Act ‟],
seeking the enforcement and execution of the First Partial Award.
20. Pursuant thereto, on 27.03.2025, the Plaintiff preferred an
application before the SGHC under Article 13(3) of the United
Nations Commission on International Trade Law (UNCITRAL)
Model Law on International Commercial Arbitration [hereinafter
referred to as „ Model Law ‟], read with Section 3(1) of the

2
[2025] SGHC 61
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International Arbitration Act of Singapore, 1994 [hereinafter referred
to as „ SG Arbitration Act ‟], seeking termination of Mr. Yeap‟s
mandate to continue as a co-arbitrator on the Tribunal.
21. Further, on 28.03.2025, the Plaintiff once again approached the
SGHC by way of an application under Sections 3 and 8 of the SG
Arbitration Act, read with Articles 6, 12, 13, and 15 of the Model
Law, thereby seeking an order for the mandate of Mr. Yeap to be
terminated.
22. Meanwhile, on 02.04.2025, during the pendency of the Article
13(3) Challenge Application, the Defendant filed an application
before the ICC Court seeking recovery of purported wasted cost for
the cancelled evidential hearings in January 2025, which was
acknowledged by the Tribunal on 03.04.2025 while granting 14 days
period for the Plaintiff to respond, and the Defendant was granted
opportunity to file reply within seven days thereafter.
23. Furthermore, on 07.04.2025, the Plaintiff objected to the
Tribunal‟s direction and requested a deferment of further proceedings
in the ICC Arbitration, including the Wasted Costs Application, on
account of expanding the Article 13(3) challenge, which was rejected
by the Tribunal on 08.04.2025. Thereafter, on 15.04.2025, the Plaintiff
filed a suit bearing CS (OS) No. 243/2025, seeking declaration and
injunctive relief, which was listed before this Court on 17.04.2025,
wherein the learned Single Judge directed the Registry to verify the
suit and record and submit a note confirming whether the filing was
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completed in all respects, while directing that the suit be listed on
21.04.2025.
24. On the next date of hearing, i.e., 21.04.2025, the Defendant
entered appearance and objected to the maintainability of the suit.
Learned Single Judge left the question of maintainability to be decided
on the next date, but issued notice in the application seeking interim
reliefs with liberty to the Defendant to file a reply. However, the
Tribunal, on 25.04.2025, despite being informed of the pendency of
the suit, informed the parties of its decision to proceed with the
evidential hearings scheduled for the week commencing on
26.05.2025.
25. On 06.05.2025, the Defendant, apart from objecting to the
maintainability of the suit, also objected to the maintainability of a
simultaneous proceeding before the learned Single Judge of this Court
and the SGHC. Consequently, a statement was made by the Plaintiff
that it would consider withdrawing the Article 13(3) Challenge
Application filed before the SGHC, which resulted in the adjournment
of the hearing to 19.05.2025. On 13.05.2025, the Plaintiff‟s Counsel
issued a letter to the Defendant‟s Counsel seeking the Defendant‟s
consent to file a joint application before the SGHC for withdrawal of
the Article 13(3) Challenge Application, however, there was no
response received from the Defendant.
26. Subsequently, on 16.05.2025, the Plaintiff filed a
Discontinuance Application before the SGHC, and on 19.05.2025, the
learned Single Judge was informed that the Discontinuance
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Application for the withdrawal of Article 13(3) challenge had been
filed before the SGHC, and summons were directed to be issued, but
no order had been passed on this Discontinuance Application.
Consequently, the learned Single Judge adjourned the hearing to
26.05.2025.
27. Shortly after the hearing on 19.05.2025, at 12:59 PM, the
Defendant executed an agreement with Maxwell Chambers (the
designated venue for the evidential hearing). On the same day, at
01:30 PM IST, the Plaintiff‟s Counsel issued an email to the Tribunal
informing that the evidential hearing was set to commence on the
same day as the suit was next listed, i.e., 26.05.2025, and submitted
that it would be impractical for the Plaintiff to participate in the
evidential hearing. Thereafter, at 01:35 PM IST, the Defendant‟s
Counsel issued an email to the Tribunal stating that the learned Single
Judge has not granted relief to the Plaintiff despite the Plaintiff
pressing for an injunction. Again at 01:57 PM IST, in a subsequent
email, the Defendant‟s Counsel proposed a schedule for the evidential
hearings with the Tribunal. Pursuant thereto, at 08:49 PM IST, the
Tribunal responded while observing that the Defendant has not
addressed the Plaintiff‟s application, and thereafter invited both
parties to respond to a proposal for conducting the hearings remotely.
At 10:46 PM IST, the Defendant‟s Counsel issued another e-mail,
insisting on proceeding with the evidential hearing.
28. Subsequently, on 20.05.2025, the Tribunal decided that the
evidential hearing would proceed in Singapore as planned, thereafter,
Plaintiff issued a letter to the Registrar, Supreme Court, Singapore, to
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advance the hearing on the Discontinuance Application. Pursuant
thereto, the Registrar issued the summons and fixed the hearing on the
said application on 23.05.2025.
29. On 21.05.2025, the Defendant‟s Counsel issued an e-mail
calling upon the Plaintiff to pay fees for the venue of the evidential
hearing, i.e., Maxwell Chambers. Thereafter, on 21.05.2025, at 04:21
PM (IST), the Plaintiff formally objected to the Tribunal‟s decision to
proceed with the evidential hearing, which was responded to by the
Tribunal, in which the response of the Defendant was sought within
24 hours. On the same day, the Defendant filed a motion for an
injunction before the SGHC in the Challenge Application to prevent
the Plaintiff from proceeding with the suit.
30. Further, on 22.05.2025, the Defendant‟s Counsel issued an
email to apprise the Plaintiff of its intention to mention the motion for
injunction before the Duty Registrar for the said motion to be listed
before the SGHC on 23.05.2025. On the same day at 10:22 AM (IST),
the Defendant issued an email to the Tribunal and insisted on
proceeding with the evidential hearings. At 03:39 PM (IST), the
Tribunal apprised the parties, stating that the evidential hearings will
commence on 26.05.2025.
31. On the same day, at 10:30 PM (IST), the Plaintiff‟s Counsel
mentioned the matter before the Judge-in-Charge (Original Side) of
the SGHC for listing of an urgent application to restrain the Defendant
from proceeding with the motion for injunction pending hearing in the
suit, which was allowed. However, at 02:42 PM, the Defendant
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withdrew the motion for injunction petition as it was inappropriately
filed in the pending Article 13(3) Challenge Application, and the
Defendant‟s Counsel informed that a fresh motion for injunction
[hereinafter referred to as „ OA 519 ‟] before the SGHC has been filed
by them.
32. Further, on 23.05.2025, at 09:47 AM, the Plaintiff‟s Counsel
was informed that OA 519 was fixed for hearing before the SGHC on
23.05.2025 at 02:30 PM (SGT), and on the same day, the SGHC
granted an injunction to the following effect:
“(i) granted the injunction prayed for by the Appellant, restraining
the Respondent from continuing the suit and initiating or
continuing civil proceedings against the Appellant in other
jurisdictions.
(ii) did not pass any order in the Discontinuance Application and
indicated that it would hear the same at a later date.”
33. Pursuant thereto, on the same day at 03:53 PM (IST),
Defendants‟ Counsel informed the Tribunal about the developments in
the SGHC, and also issued a letter stating that Defendant opposes the
Discontinuance Application. At 09:56 PM (IST), Defendant‟s Counsel
once again issued an email to the Tribunal enclosing copies of OA
519, summons, and supporting affidavit. Further, the Tribunal sought
an explanation concerning the venue and transcription arrangements
made for the evidential hearing, which was confirmed by the
Defendant on 23.05.2025
34. Thereafter, on 24.05.2025, the Tribunal issued an email to the
parties, stating that it awaits developments, while suggesting that the
Defendants make all their witnesses and experts available for the
evidential hearing on 26.05.2025.
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35. On the other hand, vide Order dated 07.07.2025, the SGHC
rejected the Article 13(3) application & on 24.07.2025, gave its
Grounds of Decision in support of the decision dated 07.07.2025.
36. Further, on 26.05.2025, the learned Single Judge started hearing
the matter and continued on a day-to-day basis. During the hearing,
the Tribunal issued an email to the parties informing them that the
evidential hearing had taken place and was now closed, and that they
should serve written closing submissions on 31.07.2025. Further, on
16.07.2025, the learned Single Judge recorded that the Defendant
pointed out certain other factual aspects that had transpired after the
last date of hearing when the judgment was reserved.
37. Upon appreciation of pleadings, vide Order dated 25.07.2025,
the injunction was granted by the learned Single Judge for the
following reasons:
i. The judicial authority of the Civil Courts under Section 9 of the
Code of Civil Procedure [hereinafter referred to as „CPC‟] and its
inherent powers under Section 151 of the CPC remain preserved to
safeguard against the misuse of the arbitral process, unless expressly
barred by the statute, which is not the case herein.
ii. In instances where the Tribunal acts contrary to the fundamental
tenets of judicial procedure or the governing statute, the Civil Courts
shall retain jurisdiction.
iii. The concept of anti-arbitration injunction is not alien to other
prominent jurisdictions. However, the power is to be exercised
sparingly.
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iv. Arbitration proceedings could be injuncted, wherein the
attending circumstances would render the continuation of the
arbitration proceeding oppressive or unconscionable.
v. The test under Article 11 of the ICC Rules is a pre-emptive and
precautionary one. The arbitrator cannot withhold disclosure on the
ground that, in his or her view, the fact or association is benign or
too remote to influence impartiality.
vi. The conduct of the Defendant therein, when examined
holistically, demonstrates a clear pattern of abuse of process
intended not to resolve disputes in good faith, but rather to subject
the plaintiff therein to procedural hardship and
jurisdictional entanglement.
vii. The three essential ingredients of the remedy contemplated in
Order XXXIX, Rules 1 & 2 of the CPC, i.e., existence of a prima
facie case, the balance of convenience in favor of the Applicant, and
the likelihood of irreparable injury that cannot be compensated in
monetary terms if the interim relief is denied, are satisfied in the
present case.
CONTENTIONS OF THE PARTIES:
38. Heard learned Senior Counsel for the parties at length and, with
their able assistance, perused the paper book. Learned Senior Counsel
have also filed their written submissions, which are on record.
39. Learned Senior Counsel representing the Defendant/Appellant
has submitted as follows:
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i. Learned Single Judge has ignored that the seat of arbitration
was fixed to be Singapore by the ICC Court and the General
Division of the SGHC is the supervisory court. Thus, Indian Courts
do not have jurisdiction, and the Impugned Order is per incuriam in
light of settled judicial precedents in relation to foreign seated
arbitration and principles for the grant of an anti- arbitration
injunction.
ii. In support of his submission, the learned Senior Counsel
representing the Defendant relies upon Bharat Aluminium
3
Company vs. Kaiser Aluminium Technical Services Inc. & Ors.
4
(„ BALCO ‟) ; Mankastu Impex Pvt. Ltd. vs. Air Visual Ltd. ; BGS
5
SGS Soma, JV vs. NHPC Ltd. ; and Hindustan Construction
6
Company vs. NHPC Ltd.
iii. The Indian Courts have no jurisdiction to issue an injunction
qua the Tribunal at the interim stage.
iv. The Impugned Order, passed by the learned Single Judge of this
High Court is in the teeth of an anti-suit injunction order passed by
the SGHC, after the Plaintiff failed to obtain a favourable order from
the SGHC.
v. The dispute emanates from the agreement executed on
21.05.2025, which was to be performed entirely in Oman. The
Defendant is a company registered in Oman, and Singapore is the
seat of the ICC Arbitration. Hence, Singapore is lex fori . Moreover,

3
(2016) 4 SCC 126
4
(2020) 5 SCC 399
5
(2020) 4 SCC 234
6
(2020) 4 SCC 310
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the Plaintiff initiated four different proceedings in Singapore,
including a challenge to the First Partial Award and a challenge to
the appointment of a co-arbitrator. The learned Single Judge passed
an injunction order despite there being an anti-suit injunction order
dated 23.05.2025, passed by the SGHC.
vi. The Civil Suit is not maintainable in the facts of law by virtue
of the doctrine of res judicata and the doctrine of estoppel . Since the
issue of bias against the co-arbitrator was already adjudicated on
three occasions: namely, (a) at the stage of partial setting aside of
First Partial Award; (b) setting aside of First Partial Award on
additional grounds of bias; and, (c) the challenge before the SGHC,
which was against the ICC Court‟s decision and Plaintiff‟s appeal
before the Singapore Court of Appeal.
vii. While submitting that the Plaintiff has approached the
supervisory court, i.e., the Singapore Court, at the first instance, it
was contended that the Plaintiff has indulged in forum shopping.
viii. While calling upon the Court to exercise judicial comity, a
prayer was made to set aside the order.
ix. The Plaintiff‟s conduct was claimed to be vexatious and
oppressive by resorting to forum shopping and violating the anti-suit
injunction passed by the SGHC.
40. Per contra, learned Senior Counsel representing the
Plaintiff/Respondent has made the following submissions:
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i. The scope of interference in a miscellaneous appeal against the
order granting an interim injunction is extremely narrow, and the
Defendant has failed to show any perversity.
ii. As per the agreement, Indian Law is applicable and the Plaintiff
was forced to file urgent declaratory and an injunctive suit against
the insistence of the Defendant to continue with ICC Arbitration No.
27726HTG/YMK with the present coram and the constitution of the
Tribunal in the backdrop of admitted and deliberate non-disclosure
by nominee Arbitrator of the Appellant (Mr. Yeap) both at the time
of appointment and thereafter.
iii. It was also contended that an anti-arbitration suit was filed by
the Plaintiff while contending that ICC Arbitration is vexatious,
oppressive, and unconscionable, which is quite distinct from a
simpliciter application for an injunction; hence, the remedy of filing
the suit is maintainable.
iv. Moreover, the Defendant has failed to provide any precedent
that such an anti-arbitration suit cannot lie before the Indian Courts,
and it has been correctly found that the suit is, prima facie,
maintainable.
v. The Defendants are yet to file pleadings, and non-disclosure is
per se fatal. Under Indian law, non-disclosure under Section 12 of
the A&C Act, per se, vitiates the arbitral proceeding. There is no
substance in the argument of the Defendant regarding res judicata ,
estoppel, and the doctrine of election. Moreover, the conduct of the
Defendant was far from fair.
41. No other submissions have been made by the learned Senior
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Counsel representing the parties.
ANALYSIS & FINDINGS:
4 2. At the outset, it would be relevant to extract Article 19, which
has been presented to us for our consideration:
Article 19
LAW AND ARBITRATION
19.1 Disputes if any, arising out of or related to or in any way
connected with this agreement shall be resolved amicably in the
First instance or otherwise through arbitration in accordance with
the Rules of Arbitration of the International Chamber or
Commerce. The jurisdiction of the Contract Agreement shall lie
with the Courts at New Delhi, India.
19.2 This Agreement shall be governed by, construed and take
effect in all respects according to the Laws and Regulations of the
Sultanate of Oman.
19.3 Any dispute or difference of opinion between the parties
hereto arising out of this Agreement or as to its interpretation or
construction shall be referred to arbitration. The Arbitration Panel
shall consist of three Arbitrators, one Arbitrator to be appointed by
each party and the third Arbitrator being appointed by the two
Arbitrators already appointed, or in the event that the two
arbitrators cannot agree upon the third Arbitrator, third Arbitrator
shall be appointed by the International Chamber of Commerce.
The place of the Arbitration shall be mutually discussed and
agreed.
19.4 The decision of the Arbitration Panel shall be final and
binding upon the parties.”
(Emphasis supplied.)
43. Based on the contentions of the parties and the assertions
advanced by them, we are of the opinion that the following issues fall
for our determination:
A. Whether Article 19 of the Agreement which encapsulates the
Dispute Resolution, as it presents itself, determines the “Seat” of
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the Arbitration, or the substantive law governing the Agreement, to
be Indian law or the law of Singapore and its effect thereof?
B. Whether the non-disclosure by Mr. Yeap, the learned
Arbitrator, is of such significance that it would warrant the
exceptional grant of an Anti-Arbitration injunction by Indian
Courts?
44. Put differently, our examination would involve the
determination as to the effect of Article 19 in the Agreement and as to
whether, under the said article, the substantive law of the Agreement
would be Indian law. A determination of the seat would also have a
bearing on the effect of non-disclosure and the standards in respect of
independence and impartiality of an Arbitrator.
45. An analysis of the same would also deal with the applicability
of the Judgment of the Singapore Courts as well as the ICC Court.
46. The “Seat of arbitration” carries significant legal implications
for the applicability of the A&C Act. The seat of arbitration denotes
the juridical home of the proceedings. It would also determine the
Courts which would have the jurisdiction to supervise the arbitral
proceedings.
47. The “Seat of arbitration” is usually contrasted with the “Venue
of arbitration” as the Venue would only refer to the physical location
where hearings or meetings are held for convenience and does not.
48. Under Section 20 of the A&C Act, the parties are at liberty to
agree upon any place for conducting sittings or for recording
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evidence, however, such logistical arrangements do not, by
themselves, alter the juridical seat of arbitration. The said provision is
set out below:
“ 20. Place of arbitration. —(1) The parties are free to agree on the
place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place
of arbitration shall be determined by the arbitral tribunal having
regard to the circumstances of the case, including the convenience
of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral
tribunal may, unless otherwise agreed by the parties, meet at any
place it considers appropriate for consultation among its members,
for hearing witnesses, experts or the parties, or for inspection of
documents, goods or other property.”
49. As already noted above, broadly, Article 19 explicitly states that
the disputes will be resolved through a Tribunal, while stipulating that
the jurisdiction of the substantive disputes arising from or in
connection with the agreement shall lie with the courts at New Delhi,
India, whereas the place of arbitration shall be mutually discussed and
agreed by the parties. It further provides that any reference to
arbitration shall be governed by, and conducted in accordance with,
the ICC Rules. Furthermore, as already noted above, based on the
choices of venue presented, the ICC Court fixed the place to be
Singapore.
50. Dissecting Article 19 set out hereinabove, we are of the prima
facie view that, the said Article is comprised of four parts and which,
when read contextually, delineate the applicable law, the jurisdiction
clause, and the workflow of arbitral process. While so dissecting and
analysing the Article, we are also mindful of the fact that it would be
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the sum total of the whole which would finally determine our prima
facie finding in this respect.
51. The first half of Article 19.1, which reads thus, “ 19.1 Disputes
if any, arising out of or related to or any way connected with this
agreement shall be resolved amicably in the First instance or
otherwise through arbitration in accordance with Rules of Arbitration
of the International Chamber of Commerce.”, is comprised of two
parts with the first part commending the parties to resolve their
disputes amicably and the second part providing for Arbitration by the
ICC Rules in the event of a failure to resolve the disputes amicably.
Prima facie , this part would lend itself to the interpretation that the
ICC Rules are to form the curial/ procedural law for the Arbitration.
52. Turning now to the latter half of Article 19.1 which incorporates
a specific stipulation that “ The jurisdiction of the Contract Agreement
shall lie with the Courts at New Delhi, India. ” To our mind, this
singular stipulation in the latter half which is prefaced and preceded
by the opening words of the first half, which deals expressly with
Disputes as between the parties indicates the parties‟ intention to
confer upon Courts in New Delhi, India, the jurisdiction in respect of
the matrix of Dispute Resolution.
53. On a holistic reading of Article 19.1, it becomes evident that it
not only identifies the institutional rules governing the arbitration
procedure but also clarifies the judicial forum vested with jurisdiction
over substantive disputes arising from or in connection with the
agreement.
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54. Proceeding further to Article 19.2, which is the next “part” of
Article 19. This Clause stipulates that the Agreement shall be
governed by, and shall take effect in accordance with, the laws and
regulations of the Sultanate of Oman. At first glance, it would appear
that Article 19.1, which stipulates that the jurisdiction of the Contract
Agreement would be New Delhi, is at variance with Article 19.2
which postulates that the Agreement would be “… governed by,
construed and take effect in all respects according to the Laws and
Regulations of the Sultanate of Oman. ” However, we are of the
opinion that the effect of Article 19.2 would be in respect of the actual
working of the terms of the agreement in the context of the regulatory
and legal framework concerning the execution of the works and would
not concern itself with the Dispute Resolution which we believe is
encapsulated in Article 19.1.
55. To our mind, the said part is confined to the substantive legal
framework governing the operation and performance of the contract
within Oman, such as compliance with local labour laws, regulatory
permissions, and other obligations necessary for the execution of the
contractual works. This clause is concerned with identifying the law to
be referred for the operation and performance of the contract and does
not, by its terms, extend to the law regulating the arbitral process. The
clause is directed towards the substantive legal regime governing the
performance and administration of contractual obligations in Oman,
such as compliance with local labour law requirements, regulatory
approvals, and other operational norms relevant to the execution of the
works. Its scope is therefore confined to the performance and
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compliance issues under the agreement and does not, in any manner,
alter or supersede the law governing the dispute resolution or the
determination of the juridical seat.
56. Additionally, in the present case, Article 19.2 cannot be
construed as an indicator of the seat because the clause does not
mention arbitration, arbitral procedure, or the courts supervising
arbitration. Its subject matter is limited to the contractual obligations
and regulatory requirements binding the parties in Oman. It relates to
permissions, statutory compliance, and enforcement of contractual
duties within that jurisdiction. Consequently, the provision has no
bearing on identifying the juridical seat and does not establish any
contrary intention to the clear stipulation conferring exclusive
jurisdiction upon the Courts at New Delhi, India.
57. This provision is thus limited to the law applicable for
governing the operation and performance of the contract and does not,
in any manner, extend to or displace Article 19.1, which is
determinative of the law governing the Dispute Resolution.
58. Turning now to Article 19.3, which provides that disputes shall
be referred to a three-member Arbitral Tribunal. It stipulates that one
arbitrator is to be appointed by each party and the presiding arbitrator
is to be appointed by the two arbitrators or, failing their agreement, by
the ICC. The same clause states, “ The place of the Arbitration shall be
mutually discussed and agreed. ” However, the parties did not
mutually agree upon any place of arbitration. Accordingly, the ICC
Court fixed Singapore as the place of arbitration. This then, for the
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purposes of the present determination, would constitute the fourth
part.
59. Article 19.4 makes the award of the Tribunal final and binding.
60. To elaborate and at the cost of re-iteration, prima facie , this
Court is of the view that the Article and its various parts would require
us to harmoniously construe the Article as each sub-Article or their
respective parts cannot be read disjunctively, as doing so would lead
to considerable consternation. Our interpretation, as expressed
hereinbefore and re-iterated hereinafter, is based on the harmonious
cadence decipherable by us. The explicit stipulation that the
“jurisdiction” of the Contract Agreement shall lie with the Courts at
New Delhi, India, is determinative of the intent of the parties in
conferring exclusive jurisdiction on the courts of New Delhi in respect
of all substantive disputes arising from or in connection with the
agreement. When such exclusive jurisdiction is coupled with an
agreement to arbitrate disputes under an institutional regime, it
ordinarily denotes the choice of the juridical seat, unless the contract
clearly indicates a different intention. However, in the present case,
and as discussed hereinbefore, Article 19.1 is comprised of 3 parts and
the reference of the ICC Rules is only determinative of the procedural
law applicable to the Arbitration.
61. The mere reference to the “place” of arbitration in Article 19.3
cannot, by itself, override the clear expression in Article 19.1. It is
well-established in arbitration jurisprudence, including by the
Supreme Court in BGS SGS Soma JV (supra) , that when parties
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specify a court of exclusive jurisdiction, such designation ordinarily
guides the determination of the seat in the absence of contrary
indicators.
62. As already expressed hereinbefore, the first part of Article 19.1
states that arbitration shall be conducted in accordance with the ICC
Rules. These rules govern the procedure for administering the
arbitration, including the appointment of arbitrators and procedural
timelines. Therefore, the reference to ICC Rules does not, in itself,
determine the juridical seat of arbitration. However, significantly, the
second part of Article 19.1 vests the jurisdiction of the disputes arising
from the Agreement with the courts at New Delhi, India. Therefore,
on a conjoint reading of both parts of this Article, it becomes evident
that the ICC rules have been referred for the purposes of governing the
procedural aspect of the arbitration and is not directed towards
deciding the substantive disputes arising from the contract and thus, it
cannot be referred for the determination of the seat. In such
circumstances, it would lead us to conclude that the parties intended
New Delhi to be the juridical seat.
63. Article 19.3 states that the “place” of arbitration shall be
mutually discussed and agreed upon by the parties. Herein, first , the
clause refers to “place” and not “seat”. In modern arbitration drafting,
especially when coupled with an exclusive jurisdiction clause, the
reference to a “place” ordinarily denotes the venue for hearings.
Second , the Supreme Court in Brahmani River Pellets Ltd. v.
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7
Kamachi Industries Ltd. , and, BGS SGS Soma JV (supra) has
clarified that the words “place”, “venue”, and “seat” are to be
construed in the context of the arbitration clause. When the clause
indicates that the place is to be mutually discussed, such language
inherently conveys flexibility and administrative convenience, which
is characteristic of a venue, not a seat. When parties intend the
Tribunal or an institution to determine the seat, they do so expressly.
The absence of such an express delegation is fatal to the Appellant‟s
argument. The designation of “place” by the ICC Court is not
determinative of the juridical seat, especially when Article 19.1
confers exclusive jurisdiction upon courts of New Delhi, India. The
“Seat of Arbitration” cannot, in light of the facts and the express
provisions in the present case, be relegated to the status of being
indeterminate. Let us assume that the ICC had determined that the
place for arbitration would be at some remote place of the world,
would that then have become the Seat, especially in view of the
express consent having been accorded to the Courts of New Delhi to
have jurisdiction over the Contract Agreement?
64. Further, the parties expressly deferred the determination of the
place of arbitration, leaving it to be mutually discussed and finalised at
a later stage. This deliberate postponement is significant. At the time
of drafting the arbitration clause, the parties simultaneously
incorporated two other critical elements: first , they unequivocally
vested exclusive jurisdiction over all disputes arising out of the
arbitration agreement in the Courts at New Delhi, India; and second ,

7
(2020) 5 SCC 462
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they selected the ICC Rules to govern the arbitral proceedings. These
carefully chosen stipulations demonstrate that the parties were fully
conscious of the structural components of the arbitral framework, even
though they intentionally left the designation of the place of
arbitration undecided.
65. When Article 19 is read holistically, contextually and
harmoniously, it becomes clear that the omission to specify the
place/venue of arbitration was not inadvertent but intentional. The
parties, while settling other essential elements of the arbitral
architecture, consciously refrained from fixing the place of arbitration
at the time of execution. Such an omission, when viewed against the
backdrop of the clause conferring exclusive jurisdiction on the Courts
at New Delhi and the selection of the Institutional Rules, indicates a
deliberate choice to avoid attributing any juridical significance to the
place/venue of arbitration at that stage.
66. Had the parties intended that the place of arbitration would
function as the juridical seat and thereby the supervisory jurisdiction,
it is reasonable to expect that they would have expressly identified
such a place in the agreement. The fact that the place of arbitration
was left open for later decision, and ultimately fixed by the ICC Court
only due to the failure of the parties to agree, strongly suggests that
the parties never contemplated that the designated place, Singapore,
would acquire the status of the seat.
67. Accordingly, when this conscious omission is considered
alongside the clear inapplicability of complete party autonomy in the
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subsequent fixation of the place of arbitration, and when Article 19 is
assessed in its entirety, it becomes evident that the parties did not
intend for the subsequently determined place of arbitration to operate
as the juridical seat. The parties, by design, reserved jurisdiction in
favour of the Courts at New Delhi and did not intend the place fixed
by the ICC Court to govern the substantive rights and obligations
arising from the arbitral agreement.
68. Further, the ICC Court‟s decision to designate Singapore as the
place of arbitration is an administrative determination made in light of
Article 19.3. In the absence of mutual agreement between the parties,
the institution has fixed a particular location perhaps based on
convenience of situs of the Arbitrators themselves. This designation of
the place of arbitration does not alter the juridical seat, which flows
from the contractual intention, not from the administrative
convenience.
69. Hence, a harmonious and holistic construction of Articles 19.1,
19.2, and 19.3 leads to the following conclusions:
(a) Article 19.1 confers exclusive jurisdiction on courts at New
Delhi. Such a conferral typically identifies the juridical seat.
(b) Article 19 also provides for the Arbitration to be conducted
under the ICC Rules for Arbitration. The reference to ICC Rules
designates procedural and administrative aspects of the arbitration,
not the seat.
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(c) Article 19.2 is confined to the substantive legal framework
governing the operation and performance of the contract within
Oman.
(d) Article 19.3 provides a mechanism for fixing the venue, not
the seat.
70. The intention of the parties, therefore, is unmistakable. The
juridical supervision over the arbitration lies in the courts at New
Delhi, India. The arbitration may be conducted elsewhere as a matter
of convenience, but the seat remains India.
71. In view of the foregoing analysis, this Court is of the prima
facie view that:
i. The exclusive jurisdiction clause in Article 19.1, read in
conjunction with the arbitration agreement, constitutes a clear
expression of the parties‟ intention to designate New Delhi, India, as
the juridical seat of arbitration.
ii. Article 19.3 refers to the venue for the conduct of arbitral
proceedings and cannot be construed as an agreement on the
juridical seat.
iii. The ICC Court‟s administrative fixation of Singapore as the
“place” of arbitration is to be understood as a fixation of the venue
and does not alter the juridical seat.
72. Therefore, the argument of the learned Senior Counsel
representing the Defendant, based upon the doctrine of lex fori , lacks
substance for the following reasons:
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i. The seat of the arbitration is Indian Law.
ii. The jurisdiction of the Civil Court in India, being plenary, is
excluded only by specific and categorical exclusion, which is not the
case of the Defendant.
iii. The principles enshrined in Section 42 of the A&C Act do not
apply to an independent civil suit.
iv. Given that Indian Courts have jurisdiction, the resistance in this
respect qua the maintainability of the Anti- Arbitration Suit, would
clearly not survive.
73. The first question would thus stand answered. This Court shall
now proceed to examine Question No. (ii). It is trite law that the
jurisdiction of the civil courts under Section 9 of the CPC is plenary,
and unless specifically excluded, the civil courts have jurisdiction to
try and decide all civil disputes. In the landmark judgment passed by
the five-judge Bench of the Supreme Court in Dhulabhai v. State of
8
Madhya Pradesh , the Apex Court identified the extent of the civil
courts‟ jurisdiction. The relevant part of the judgment is reproduced
hereunder:
“(1) Where the statute gives a finality to the orders of the special
tribunals the civil courts' jurisdiction must be held to be excluded if
there is adequate remedy to do what the civil courts would
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not
been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular Act to find the
adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil
court.

8
1968 SCC OnLine SC 40
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Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if the statute
creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all
questions about the said right and liability shall be determined by
the tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said
statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before tribunals constituted under that Act. Even
the High Court cannot go into that question on a revision or
reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open.
A writ of certiorari may include a direction for refund if the claim
is clearly within the time prescribed by the Limitation Act but it is
not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of
tax collected in excess of constitutional limits or illegally
collected a suit lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil
suit does not lie if the orders of the authorities are declared to be
final or there is an express prohibition in the particular Act. In
either case the scheme of the particular Act must be examined
because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily
to be inferred unless the conditions above set down apply.”
74. Since there exists no specific bar excluding the jurisdiction of
the civil courts in the present matter, the civil courts in India have the
jurisdiction to try and decide the present dispute. Hence, the
jurisdiction of the civil courts is not prima facie barred in the present
case.
75. We have, prima facie, held that as per Article 19, the seat of the
arbitration shall lie with the Courts at New Delhi, India. The attention
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of the Court has not been drawn to the statutory provision which
excludes the jurisdiction of the civil court.
76. The reliance placed by the learned Senior Counsel representing
the Defendant on BALCO (supra) to assail the maintainability of the
suit is wholly misplaced. Perusal of the judgment revealed that the
arbitration proceedings were held in England, and the Tribunal made
two Awards on 10.11.2002 and 12.11.2002 in England. Thereafter,
applications under Section 34 of the A&C Act for setting aside the
aforesaid two Awards were filed in the Court of the District Judge,
Bilaspur, which was dismissed. The High Court also confirmed the
same. Thereafter, the jurisdiction of the Supreme Court was invoked
in view of a difference of opinion on the correctness of two decisions
of the Supreme Court in Bhatia International (supra) , which was
followed in Venture Global Engineering v. Satyam Computers
9
Service Ltd. . The matter was referred to a three-Judge Bench, it was
in that context the judgment came to be passed, which is not the case
herein.
77. Likewise, the reliance placed on the Hindustan Constructions
Services Ltd. (supra) to contend that the jurisdiction of the civil courts
at Delhi is excluded, does not have substance because this judgment
examined the jurisdiction of the Court to entertain an application
under Section 34 of the A&C Act for setting aside an Arbitral Award,
based on the seat of arbitration, as opposed to on the basis of cause of
action. It was held that once the seat of the arbitration is designated,
the same operates to have exclusive jurisdiction in view of Section 42

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of the A&C Act.
78. The next reliance of learned Senior Counsel representing the
Defendant is on the judgment of the Supreme Court in Mankastu
Impex Pvt. Ltd. (supra) , which basically examined the concept of seat
of arbitration in the context of an application under Section 11(6) of
the A&C Act. The Court held that the parties have chosen Hong Kong
as the place of Arbitration, and under its laws, the Indian Courts have
no jurisdiction to appoint an Arbitrator. Further, the arbitration clause
in this case contained other clauses indicating significant contrary
indicium to the contrary intention in the favour of administering
Institution Rules.
79. The next reliance is on the judgment passed by the Supreme
Court in BGS SGS Soma (supra), where the Court examined the
scope of appeal under section 37 of the A&C Act. The issue examined
in this judgment by the Supreme Court is not relevant to the present
case because the case was primarily decided on the concept of the seat
of arbitration while distinguishing it from a venue of arbitration.
80. The next reliance of learned Senior Counsel representing the
Defendant is upon the judgment of the Supreme Court in HPCL Bio-
10
Fuels Ltd. v. Shahaji Bhanudas Bhad . In this judgment, learned
Senior Counsel has referred to Paragraph Nos. 50, 51, and 52 of the
judgment. On a careful study of this judgment, it becomes evident that
the Supreme Court was hearing an appeal against the judgment passed
on 31.01.2024 by the High Court of Judicature at Bombay, wherein

10
(2024) SCC OnLine SC 3190
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the petition filed under Section 11(6) of the A&C Act was allowed. In
Paragraph No. 31, the Court identified the issues that required
adjudication. All the issues identified are in the context of Section
11(6) of the A&C Act, which does not apply to the facts of the present
case. In Paragraph Nos. 50, 51, and 52, the effect of withdrawal of the
previous petition was examined in the context of principles enshrined
under Order XXIII Rule 1 of the CPC.
81. The next reliance is on the judgment in Shiju Jacob Varghese
11
& Anr. v. Tower Vision Ltd. & Ors. . In this case, the learned Single
Judge was deciding various applications, namely under Order XXXIX
Rule 4, Sections 16 to 19, and Order VII Rule 11 of the CPC. In this
judgment, learned Senior Counsel representing the Defendant wishes
to rely upon the observations made in Paragraph No. 49 while
examining the Doctrine of Comity of Courts. It was observed that
Section 13 of the CPC also gives due regard to this doctrine, and there
is a presumption of conclusiveness attached to any foreign judgment
being pronounced by the court of competent jurisdiction unless the
contrary is on record. The aforesaid observations are made in the
peculiar facts of the case. It was not a case where there were
allegations of suppression of information or failure to make proper
disclosure by a member of the Tribunal.
82. The next argument of the learned Senior Counsel representing
the Defendant that the learned Single Judge has not complied with the
ratio in his own judgment in Porto Emporios Shipping Inc. v. Indian

11
2012 SCC OnLine Del 5728
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12
Oil Corporation Ltd , wherein after perusing the legislative scheme
of the A&C Act, this Court held that the plea of waiver of the
arbitration clause falls within the domain of the Tribunal and the
courts should not interfere in it. This Court is of the considered view
that the conclusion arrived by the learned Single Judge is correct,
which is extracted here as follows:
“55. Though there is no doubt over the legal position enumerated
in the above-noted decisions, however, none of the cases cited
above puts an unblemished embargo that the Civil Courts cannot,
in any manner whatsoever, entertain a suit seeking anti-arbitration
injunction. Ordinarily, when the claim before the Court does not
disclose any circumstance which is indicative of any oppressive or
unjust consequences for the plaintiff, the general principles of
arbitral autonomy and minimum interference govern the field
However, when it is seen that denial of relief may result in grave,
unjust and oppressive outcomes for one party before the Arbitral
Tribunal, the legal position is conditioned differently. Thus, the
legal position is more nuanced than what is projected to be by the
defendant herein, as the following discussion shall reveal.”
83. Hence, the abovementioned judgments are distinguishable and
not applicable to the peculiar facts in the present matter. Moreover, a
strong presumption in favour of the jurisdiction of the civil courts
exists. Wherever the court finds that the provisions of a particular
statute, which exclude the jurisdiction of the civil courts, have not
been complied with or the Tribunal has not acted in conformity with
the fundamental principles of judicial procedure, the jurisdiction of the
civil courts is not ousted.
84. As already noted above, vide Arbitration and Conciliation
(Amendment) Act, 2015 [hereinafter referred to as „ 2015

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Amendment ‟], a proviso to Section 2(2) of the A&C Act was added,
which reads as follows:
“(2) This Part shall apply where the place of arbitration is in
India:
Provided that subject to an agreement to the contrary, the
provisions of sections 9, 27 and clause (a) of sub-section (1) and
sub-section (3) of section 37 shall also apply to international
commercial arbitration, even if the place of arbitration is outside
India, and an arbitral award made or to be made in such place is
enforceable and recognised under the provisions of Part II of this
Act.”
85. By virtue of the aforesaid amendment, the courts in India have
been enabled to apply Sections 9, 27, and 37(1)(a) and 37(3) of the
A&C Act to international commercial arbitration, even if the place of
arbitration is outside India.
86. Vide this amendment in Section 2(2) of the A&C Act, the
intention of the Parliament is clear to the effect that even in the case of
international commercial arbitrations, where the place of arbitration is
outside India, the jurisdiction of the court is not excluded, rather it
adds to the jurisdiction of the Indian civil courts. Hence, the argument
of the learned Senior Counsel representing the Defendant that, herein,
the Indian courts do not have any jurisdiction lacks substance.
87. Keeping in view the foregoing discussions, it stands established
that the jurisdiction of the Courts in India is not excluded, and that the
seat of arbitration, in the case at hand, lies with the Courts at New
Delhi, India.
88. Similarly, the argument based upon the principle enshrined in
Section 42 of the A&C Act is not substantiated because the suit for
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declaration and injunction is not founded on the premise of the A&C
Act, but is an independent suit filed by the Plaintiff under the
provisions of Specific Relief Act, 1963 [hereinafter referred to as
„ SRA 1963 ‟], wherein the civil suit for declaration is maintainable
under Section 34 of SRA 1963, whereas the suit for injunctions are
specified in Section 39 of SRA 1963.
89. It is further submitted by the learned Senior Counsel
representing the Defendant that, in terms of Article 5 of Chapter I of
the Model Law, no court shall intervene except where expressly
permitted therein. This contention, however, is misplaced. Article 5 of
Chapter I of the Model Law operates only within jurisdictions where
the Model Law has been formally adopted as the governing arbitral
framework. In the present case, it stands conclusively determined that
the juridical seat of the arbitration is situated in India, and
consequently, the provisions of the A&C Act govern the arbitral
process. As such, Article 5 of Chapter I of the Model Law has no
application, and the limitations on judicial intervention prescribed
therein cannot be invoked to curtail the jurisdiction of Indian courts in
the present proceedings.
90. At this juncture, it is pertinent to note that it is a settled
principle of arbitration jurisprudence that the law of seat of arbitration
constitutes the foundational legal framework governing the validity,
supervision, and integrity of the arbitral process. Therefore, questions
concerning the impartiality and independence of arbitrators fall
squarely within this supervisory domain. As these standards form part
of the public-law safeguards of the seat of arbitration, they cannot be
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displaced or diluted by any procedural rules agreed upon by the
parties or adopted from institutional frameworks. To permit the
procedural law to override the lex arbitri would erode the very public
policy considerations that the seat State has embedded in its statutory
regime to ensure fairness, transparency, and legitimacy in arbitration.
91. The primacy of the law of the seat is further underscored by the
consequences that flow from non-compliance with the standards of the
seat State. An award rendered in violation of the seat‟s statutory
standards of impartiality is liable to be set aside by the courts at the
seat, thereby undermining the finality and enforceability of the award.
International commercial arbitration requires a predictable and
coherent supervisory structure. Such predictability would be
compromised if procedural rules are allowed to dictate or modify the
substantive test of impartiality.
92. Further, the doctrinal distinction between procedural rules and
the law of the seat must be respected. Procedural rules regulate the
conduct of the proceedings, whereas the law of the seat prescribes the
mandatory norms that safeguard the fairness of the adjudicatory
framework itself. Standards of impartiality comprising both the
objective perception of bias and the subjective duties of disclosure are
matters that belong to the latter category. It is the law of the seat that
determines the threshold for a valid challenge, the nature of
disclosures required, and the legal consequences of any breach. Where
any procedural rule appears inconsistent with these mandatory
requirements, the procedural rule must yield; it cannot reinterpret the
protections enacted by the law of the seat.
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93. For these reasons, this Court is of the opinion that the statutory
regime of the law of the seat must govern the assessment of
impartiality, and it necessarily prevails over any procedural
stipulations to the contrary. Arbitrators must conform to, and courts
must apply, the standard prescribed by the law of the seat when
adjudicating challenges to independence or bias.
94. Accordingly, by natural corollary, Indian law shall govern the
present proceedings, and it therefore becomes incumbent upon this
Court to examine the contours and scope of the principles governing
the neutrality of arbitrators under Indian law.
95. A Tribunal consisting of independent and impartial
individual(s) is, in essence, a forum chosen by the parties to adjudicate
their disputes while avoiding long proceedings in the regular civil
courts. Before the codification of laws, such disputes used to be
resolved by Panch Parmeshwars/Salas/Umpires/Panchayats consisting
of independent and highly reputed individuals who were known for
their integrity and fair approach. Even after codification of the
Arbitration laws, the forum, i.e., the Tribunal, in substance, is a result
of a contract subject to the provisions of the statute.
96. Section 12 of the A&C Act serves as the cornerstone of this
principle within the Indian legal framework. While the original A&C
Act was modeled closely on the Model Law, the subsequent 2015
Amendment, fundamentally overhauled Section 12 of the A&C Act by
introducing strict, mandatory requirements. The same is reproduced
hereunder:
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“ 12. Grounds for challenge.—(1) When a person is approached
in connection with his possible appointment as an arbitrator, he
shall disclose in writing any circumstances ,—
(a) such as the existence either direct or indirect, of any past
or present relationship with or interest in any of the parties or
in relation to the subject-matter in dispute, whether financial,
business, professional or other kind, which is likely to give
rise to justifiable doubts as to his independence or
impartiality ; and
(b) which are likely to affect his ability to devote sufficient time
to the arbitration and in particular his ability to complete the
entire arbitration within a period of twelve months.
Explanation1.—The grounds stated in the Fifth Schedule shall
guide in determining whether circumstances exist which give rise
to justifiable doubts as to the independence or impartiality of an
arbitrator.
Explanation 2.—The disclosure shall be made by such person in
the form specified in the Sixth Schedule.
(2) An arbitrator, from the time of his appointment and
throughout the arbitral proceedings, shall, without delay, disclose
to the parties in writing any circumstances referred to in sub-
section (1) unless they have already been informed of them by
him.
(3) An arbitrator may be challenged only if—
(a) circumstances exist that give rise to justifiable doubts as to
his independence or impartiality, or
(b) he does not possess the qualifications agreed to by the
parties.
(4) A party may challenge an arbitrator appointed by him, or in
whose appointment he has participated, only for reasons of which
he becomes aware after the appointment has been made.
(5) Notwithstanding any prior agreement to the contrary, any
person whose relationship, with the parties or counsel or the
subject-matter of the dispute, falls under any of the categories
specified in the Seventh Schedule shall be ineligible to be appointed
as an arbitrator:
Provided that parties may, subsequent to disputes having arisen
between them, waive the applicability of this sub-section by an
express agreement in writing.”
(Emphasis supplied.)
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97. Section 12 of the A&C Act casts twin obligations upon an
arbitrator, namely the duties of independence and impartiality. Section
12(1) of the A&C Act mandates that a prospective arbitrator must
disclose any direct or indirect circumstances that may be “likely to
give rise to justifiable doubts as to his independence or impartiality”.
Section 12(2) of the A&C Act further provides that this obligation is
continuous in nature and extends from the time of the arbitrator‟s
appointment until the conclusion of the arbitral proceedings. Should
any new circumstance arise, or come to the arbitrator‟s notice during
the pendency of the arbitration, which may bear upon their neutrality,
such facts must be immediately disclosed to the parties in writing.
98. Additionally, the 2015 Amendment introduced the Fifth
Schedule, which sets out an illustrative catalogue of relationships or
situations deemed capable of generating “justifiable doubts”, thereby
delineating the contours of the disclosure duty under Section 12(1) of
the A&C Act. The Fifth Schedule clarifies that such circumstances
may include past or existing connections with a party, counsel, or the
subject matter of the dispute, and may extend to financial, business,
professional, or other relevant interests. The following grounds, as
stipulated under the Fifth Schedule, give rise to justifiable doubts as to
the impartiality of the arbitrator in the present case:
“ Arbitrator’s relationship with the parties or counsel
1. The arbitrator is an employee, consultant, advisor or has any
other past or present business relationship with a party.
*
Previous services for one of the parties or other involvement in
the case
20. The arbitrator has within the past three years served as
counsel for one of the parties or an affiliate of one of the parties or
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has previously advised or been consulted by the party or an
affiliate of the party making the appointment in an unrelated
matter, but the arbitrator and the party or the affiliate of the party
have no ongoing relationship.
21. The arbitrator has within the past three years served as
counsel against one of the parties or an affiliate of one of the
parties in an unrelated matter.
22. The arbitrator has within the past three years been appointed
as arbitrator on two or more occasions by one of the parties or an
affiliate of one of the parties.”
99. The threshold of impartiality under the Indian legal framework
is anchored in the principle that justice must not only be done but
must manifestly appear to be done. As already noted above, Section
12 of the A&C Act establishes a dual test that requires an arbitrator to
be free from both actual bias and circumstances that give rise to
justifiable doubts about their independence or impartiality. This
“justifiable doubt” standard is an objective one. It is assessed from the
standpoint of a reasonable and informed third party, rather than from
the subjective apprehension of either disputant. By adopting this
standard, the Indian statute ensures that the legitimacy of the Tribunal
rests not merely on the personal integrity of the arbitrator but on the
structural perception of neutrality that surrounds their appointment
and conduct.
100. This threshold has been further crystallised through the
introduction of the Fifth and Seventh Schedules by the 2015
Amendments, which codify the types of relationships and
circumstances that may compromise, or conclusively negate, an
arbitrator‟s eligibility. The Seventh Schedule creates a strict, non-
derogable bar. If any circumstance listed therein exists, the arbitrator
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is deemed legally ineligible regardless of consent or subsequent
disclosures. The Fifth Schedule supplements this by providing an
illustrative set of situations where justifiable doubts may arise, thereby
guiding courts and parties in applying the threshold. Taken together,
these provisions transform impartiality from a general expectation into
a clearly delineated statutory safeguard, thereby ensuring both the
integrity of the Tribunal‟s constitution and the confidence of the
parties in the fairness of the adjudicatory process.
101. Further, the standard of impartiality under the A&C Act is not a
mere procedural formality but a substantive safeguard integral to the
legitimacy of the arbitral process. It is pertinent to note that neutrality
is a condition precedent to the validity of the Tribunal‟s constitution,
and defects in this regard strike at the root of jurisdiction.
102. In the facts of the present case, it is to be noted that on
12.04.2023, a request for arbitration was forwarded while disclosing
the details of the Defendant and its Counsel, which are extracted as
under:
“9. The claimant is engaged in the business of designing,
integrating, and commissioning security systems and solutions,
both off-the-shelf and customized for government and private
sector clients. MSA is a company incorporated under the laws of
Oman. MSA's address is:
P.O. BOX: 1372,
Postal Code : 130, Azaiba
Muscat,
Sultanate of Oman

Email: a.atwal@msa-global.com
ms.atwal@msa-global.com

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10. MSA is represented in this arbitration by its authorized
counsel:
Mr. Kirat Singh Nagra
Mr. Kartik Yadav
Mr. Pranav Vyas
Mr. Manhar Singh Saini
Ms. Sumedha Chadha
Mr. Tushar Nagar
DSK LEGAL
Level 5, Max House,
Okhla Industrial Estate, Phase - 3 Road,
New Delhi - 110020,
India
Email: Kirat.nagra@dsklegal.com
Kartik.yadav@dsklegal.com
Pranav.vyas@dsklegal.com
Manhar.singh@dsklegal.com
Sumedha.chadha@dsklegal.com
Tushar.nagar@dsklegal.com”
103. Pursuant thereto, the Defendant nominated Mr. Andre Yeap,
Senior Counsel from Singapore, as its co-arbitrator in November 2018
in a separate matter, which involved Mr. Atwal, who happens to be
the MD, Chairman, and Promoter of the MSA Global LLC (Oman).
Since, the ICC Rules are applicable, the proposed arbitrator is required
to give his comments/acceptance, while making the following
declaration:
―2017 & 2021 RULES – ICC ARBITRATOR STATEMENT
ACCEPTANCE, AVAILABILITY, IMPARTIALITY AND
INDEPENDENCE

Clause 3 - Independence and Impartiality
In deciding which box to tick, you should take into account,
having regard to Article 11(2) of the Rules, whether there exists
any past or present relationship, direct or indirect, whether
financial, professional or of any other kind, between you and any of
the parties, their lawyers or other representatives, or related
entities and individuals. Any doubt must be resolved in favour of
disclosure. Any disclosure should be complete and specific,
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identifying inter alia relevant dates (both start and end dates),
financial arrangements, details of companies and individuals, and
all other relevant information. In deciding which box to tick and as
the case may be in preparing your disclosure, you should also
consult with care the relevant sections to the Note.
o Nothing to disclose : I am impartial and independent and
intend to remain so. To the best of my knowledge, and having
made due enquiry, there are no facts or circumstances, past or
present, that I should disclose because they might be of such a
nature as to call into question my independence in the eyes of any
of the parties, and no circumstances that could give rise to
reasonable doubts as to my impartiality.
o Acceptance with disclosure : I am impartial and independent
and intend to remain so. However, mindful of my obligation to
disclose any facts or circumstances which might be of such a
nature as to call into question my independence in the eyes of any
of the parties or that could give rise to reasonable doubts as to my
impartiality, I draw attention to the matters below and/or on the
attached sheet.”
104. On a bare perusal of the judgment passed by the Gujarat High
Court, it becomes evident that there was reference to MSA Global,
and it was highlighted that the Defendant is in the business of design,
supply, installation, integration, and commission of border security
systems for the Border Security Projects. In the aforesaid arbitral
proceeding, on 16.04.2021, the Tribunal pronounced the Award,
which was the subject matter of challenge before the Gujarat High
Court in the case captioned Neeraj Kumarpal Shah vs.
Manbhupinder Singh Atwal (supra) . It is to be noted here that, in
fact, MSA is an abbreviated form of Manbhupinder Singh Atwal.
105. Further, as per Mr. Yeap‟s response, he became aware of the
conflict in October 2024, however, he failed to disclose the same.
Even when the application was filed by the Plaintiff challenging the
impartiality and independence of Mr. Yeap, he did not recuse but gave
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a specious explanation for his disclosure, which has already been
reproduced.
106. Hence, the Court is required to ascertain whether the
impartiality disclosure meets the statutory threshold mandated under
the law of the seat, i.e., Indian law.
107. The material placed on record establishes that the proposed
arbitrator was privy to a prior professional engagement involving Mr.
Atwal, whose association is integrally linked with MSA Global, and
that such a relationship falls squarely within the categories delineated
in the Fifth Schedule appended to the A&C Act as circumstances
capable of giving rise to justifiable doubts concerning impartiality
arise.
108. This Court is of the considered view that the omission to
disclose the aforesaid prior professional involvement constitutes a
material non-disclosure within the contemplation of the Fifth Schedule
appended of the A&C Act, and is sufficient to induce a justifiable
doubt in the mind of a fair-minded and objective person.
109. Further, despite having become aware of this conflict in
October 2024, the arbitrator did not adhere to the continuous and
mandatory duty of disclosure under Section 12(1) and 12(2) of the
A&C Act, and thereafter, upon being challenged, tendered an
explanation, which to our mind, is not only specious, but also a clear
admission on the part of Mr. Yeap, that he was well aware of the
consequences of the said disclosure and that such disclosure could
vitiate the entire process. Tested against the objective standard of a
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reasonably informed and fair-minded third party, such omission
undermines the necessity of neutrality and detracts from the integrity
of the arbitral process. Consequently, the safeguards envisaged under
Section 12 of the A&C Act stand breached.
110. In any case, even if the non-disclosure is seen in light of Clause
27 of the Note to the Parties and Tribunals on the Conduct of the
Arbitration under the ICC Rules published on 01.01.2021 [hereinafter
referred to as „ Note of Conduct ‟], there is a list of relevant
circumstances for the arbitrator or the prospective arbitrator to
consider. The same has been reproduced hereunder, however, the
circumstances are not limited to the following:
“27. Each arbitrator or prospective arbitrator must assess what
circumstances, if any, are such as to call into question his or her
independence in the eyes of the parties or give rise to reasonable
doubts as to his or her impartiality. In making such an
assessment, an arbitrator or prospective arbitrator should
consider all potentially relevant circumstances, including but not
limited to the following:
• The arbitrator or prospective arbitrator or his or her law firm
represents or advises, or has represented or advised, one of the
parties or one of its affiliates.
• The arbitrator or prospective arbitrator or his or her law firm
acts or has acted against one of the parties or one of its affiliates.
• The arbitrator or prospective arbitrator or his or her law firm has
a business relationship with one of the parties or one of its
affiliates, or a personal interest of any nature in the outcome of the
dispute.
• The arbitrator or prospective arbitrator or his or her law firm
acts or has acted on behalf of one of the parties or one of its
affiliates as director, board member, officer, or otherwise.
• The arbitrator or prospective arbitrator or his or her law firm is
or has been involved in the dispute, or has expressed a view on the
dispute in a manner that might affect his or her impartiality.
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• The arbitrator or prospective arbitrator has a professional or
close personal relationship with counsel to one of the parties or the
counsel‟s law firm.
• The arbitrator or prospective arbitrator acts or has acted as
arbitrator in a case involving one of the parties or one of its
affiliates.
• The arbitrator or prospective arbitrator acts or has acted as
arbitrator in a related case.
• The arbitrator or prospective arbitrator has in the past been
appointed as arbitrator by one of the parties or one of its
affiliates, or by counsel to one of the parties or the counsel’s law
firm.
In assessing whether a disclosure should be made, an arbitrator or
prospective arbitrator should consider relationships with non-
parties having an interest in the outcome of the arbitration, such as
third-party funders as well as relationships with other members of
the Tribunal, as well as experts or witnesses in the case.”
(Emphasis supplied.)
111. On a bare perusal of the hereinabove reproduced Clause 27, it is
already crystallized that each arbitrator or prospective arbitrator is
required to assess what circumstances, if any, are such as to call into
question his or her independence ‘in the eyes of the parties’ or
give rise to reasonable doubts as to his or her impartiality. Therefore,
it becomes evident that the Arbitrator/Proposed Arbitrator is required
to disclose his prior involvement with any of the parties, which is
likely to give rise to his impartiality from the perspective of the
parties. The emphasis is on the requirement to disclose from the
perspective of the parties and not from a member of the Tribunal.
112. In this case, prima facie , even if at the initial stage, the
Arbitrator/Proposed Arbitrator is given the benefit of doubt that the
failure to disclose the requisite information has occurred bona fidely ,
still, in October 2024, when the Arbitrator became aware, he again
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failed to make proper disclosure. From the perspective of the Plaintiff,
there are chances of doubting the impartiality of the co-arbitrator,
which is not unfounded or baseless. Impartiality and integrity of any
Adjudicating Authority is the foundation, as the constitution of the
Tribunal is based upon agreement between the parties, except where
the Court appoints the Arbitrator. The Arbitrator ought not to be
concerned about the likely challenge. Here again, we emphasise that
Mr. Yeap, admittedly, not only made such an assessment, but was
conscious enough to understand the consequences of his non-
disclosure, post such assessment, and deliberately conducted himself
in a manner, which to our mind, under no circumstances, can inspire
even a figment of reliability.
113. Further, the question is not of exclusion as provided under the
Orange List as defined under IBA Guidelines on Conflicts of Interest
in International Arbitration, 2024, but failure of a member of a
Tribunal, cautiously or incautiously, to make factually correct
disclosure. In such circumstances, particularly when the contract
provides for the applicability of Indian law, prima facie , the
jurisdiction of the civil courts is not excluded.
114. Further, the arguments of the learned Senior Counsel
representing the Defendant on the doctrine of estoppel and res
judicata are not applicable because neither is there any prior suit
involving the same issue which has been finally decided, nor the
proceedings before the Tribunal and challenge before ICC Court,
which in fact is not a court, or the SGHC, affects the maintainability
of the suit.
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115. The doctrine of estoppel is provided in Chapter VIII of the
13
Bharatiya Sakshya Adhiniyam, 2023 [hereinafter referred to as „ BSA
14
2023 ‟]. The pre-requisites of Section 121 of BSA 2023 are required
to be met before the doctrine of estoppel can be applied. It has not
been shown as to when the Plaintiff has, by his declaration, act or
omission, caused or permitted the Defendant to believe that he will
never file a civil suit. It is also not proved that the Defendant has acted
upon such a belief and changed his position.
116. Further, the foreign anti-suit injunction granted by the SGHC,
being a decision emanating from the arbitration venue jurisdiction,
does not attain the status of res judicata before a civil court in India,
which, in the present case, constitutes the designated arbitration seat
jurisdiction.
117. At the outset, it is necessary to advert to the doctrinal
framework underlying Section 11 of the CPC, which encapsulates the
rule of res judicata . The said provision is reproduced hereinbelow:
“ 11. Res judicata.— No Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation I.—The expression “former suit” shall denote a suit
which has been decided prior to a suit in question whether or not it
was instituted prior thereto.
Explanation II.—For the purposes of this section, the competence
of a Court shall be determined irrespective of any provisions as to
a right of appeal from the decision of such Court.

13
Chapter VIII of the Indian Evidence Act, 1872
14
Section 115 of Indian Evidence Act, 1872
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Explanation III.—The matter above referred to must in the former
suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.—Any matter which might and ought to have been
made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in
such suit.
Explanation V.—Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this
section, be deemed to have been refused.
Explanation VI.—Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for themselves
and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so
litigating .
Explanation VII.—The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this
section to any suit, issue or former suit shall be construed as
references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII. —An issue heard and finally decided by a Court
of limited jurisdiction, competent to decide such issue, shall
operate as res judicata in a subsequent suit, notwithstanding that
such Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised.”
118. Section 11 of the CPC mandates that no Court shall try any suit
or issue in which the matter directly and substantially in issue has
been adjudicated upon in a former proceeding by a Court of
competent jurisdiction. The essential requirements for the application
of Section 11 of the CPC include: (i) identity of parties; (ii) identity of
issues directly and substantially in question; (iii) a final adjudication
on merits; and most critically, (iv) the adjudication by a Court of
competent jurisdiction.
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119. It is this latter requirement of competent jurisdiction that
assumes determinative significance in the factual matrix of the present
case. A judgment or order, including one rendered by a foreign court,
can operate as res judicata before an Indian court only if the foreign
forum possessed the requisite jurisdictional competence as understood
under Section 11 of the CPC read with Section 13 of the CPC.
120. Examining the present facts in the light of the above statutory
essentials, it becomes evident that the anti-suit injunction issued by
the courts at Singapore, although emanating from the venue
jurisdiction, does not fulfil the statutory threshold of “competent
jurisdiction”.
121. The parties have, by agreement, designated India as the juridical
seat of arbitration. Consequently, the courts at Singapore, being
merely the venue courts with no supervisory authority in terms of the
seat doctrine, cannot be regarded as “courts of competent jurisdiction”
for the purposes of Section 11 of the CPC. The foreign anti-suit
injunction, therefore, fails to meet the jurisdictional pre-requisite that
is indispensable for the invocation of res judicata under Indian law.
122. This non-conclusiveness further arises from the inability of the
foreign anti-suit injunction to satisfy the mandatory statutory pre-
requisites for recognition and enforcement under Indian law,
specifically the exceptions enumerated under Section 13 of the CPC.
The said provision is reproduced hereinbelow:
“ 13. When foreign judgment not conclusive.— A foreign judgment
shall be conclusive as to any matter thereby directly adjudicated
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upon between the same parties or between parties under whom they
or any of them claim litigating under the same title except—
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognise
the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in
force in India.”
123. It may be noted that a foreign anti-suit injunction is ordinarily
rendered non-conclusive in India owing to its failure to satisfy the
fundamental statutory tests laid down in Section 13(a) of the CPC, i.e.,
it does not qualify as a judgment delivered by a “court of competent
jurisdiction” in relation to the supervisory functions vested exclusively
in the seat court.
124. Section 13(a) of the CPC mandates that the foreign court
issuing the judgment must possess competence not merely in terms of
in personam jurisdiction over the parties, but also with respect to the
subject matter, as understood under internationally recognised
jurisdictional norms. In the absence of such subject-matter
competence, the foreign judgment stands vitiated and is rendered null
and void for purposes of recognition in India.
125. In the context of international commercial arbitration, the
juridical seat (India, in the case at hand) vests exclusive supervisory
jurisdiction in the courts of that seat over all aspects of the curial
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process. An anti-suit injunction issued by a non-seat forum, such as a
mere venue jurisdiction, purporting to restrain a party from
approaching Indian seat courts for statutory relief under the A&C Act
raises grave concerns as to the foreign court‟s subject-matter
authority. When a foreign court arrogates unto itself the power to
regulate or impede the supervisory processes of the designated Indian
seat, such conduct amounts to the foreign court acting “manifestly in
excess of jurisdiction”. This jurisdictional transgression directly
attracts the application of Section 13(a) of the CPC, thereby rendering
the foreign anti-suit injunction non-conclusive, irrespective of whether
the foreign forum possessed personal jurisdiction over the parties. The
guiding principle remains that although a foreign court may exercise
authority over the person, it lacks authority over the subject matter
that lies exclusively within the domain of the seat court‟s supervisory
jurisdiction.
126. In view of the foregoing analysis, this Court is of the considered
view that the juridical seat of arbitration being India confers exclusive
supervisory jurisdiction upon the Indian courts, and consequently, any
anti-suit injunction issued by the Singapore court acting merely as the
venue jurisdiction cannot attain conclusive effect so as to operate as
res judicata before the seat court. The foreign anti-suit injunction,
though enforceable within its own territorial limits, cannot be elevated
to a status that undermines or circumscribes the prerogative of the
Indian courts under the A&C Act. While a party may seek to rely
upon such an injunction to plead the bar of res judicata , the same
cannot be sustained in law, as the foreign judgment fails to satisfy the
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statutory threshold under Sections 11 and 13(a) of the CPC.
Accordingly, the anti-suit injunction issued by the SGHC, being one
rendered by a forum lacking subject-matter competence, cannot
preclude or restrain the Indian seat court from exercising its rightful
supervisory jurisdiction over the arbitration.
127. Moreover, the Plaintiff filed a suit on 15.04.2025 seeking
declaration and permanent injunction before the Delhi High Court,
whereas the Defendant filed a motion before the SGHC on 21.05.2025
in the ICC Courts‟ order challenge proceedings seeking restraint
against the Plaintiff. Thus, the suit was filed prior to the motion for
injunction filed by the Defendant in the SGHC. In this case, the
conduct of the Defendant, which has been noticed by the learned
Single Judge, leads the Court to prima facie conclude a clear pattern
of abuse of process on the part of the Defendant, while subjecting the
Plaintiff to procedural hardship and jurisdictional entanglement. The
Defendant has not only opposed the Plaintiffs‟ Discontinuance
Application before the SGHC, but also filed its own fresh motion
seeking an anti-suit injunction. In these circumstances, interference in
the exercise of extremely limited jurisdiction in the Impugned Order
of injunction is not called for.
128. It is also evident that before the SGHC took any decision on the
Challenge Application, the Plaintiff not only filed the suit and sought
an injunction in which notice stood issued, but also filed an
application for withdrawing its challenge from the SGHC. Hence, the
argument of learned Senior Counsel representing the Defendant that
the Plaintiff has indulged in „forum shopping‟ or „elected remedy‟ is
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prima facie incorrect.
129. Additionally, the Plaintiff, in fact, filed the Civil Suit on
15.04.2025, whereas the SGHC rejected the application on
07.07.2025, whereas the reasons were uploaded only on 24.07.2025.
This was just a day prior to the Impugned Order passed by the learned
Single Judge on 25.07.2025. Hence, the argument of learned Senior
Counsel representing the Defendant with respect to the election of
remedy and the Plaintiff indulging in „forum shopping‟ is found
without substance, and hence rejected.
130. The second part of the submission of learned Senior Counsel
representing the Defendant is with respect to the anti-suit injunction
order passed by the SGHC. Learned Single Judge has elaborately
considered this aspect under the caption „Vexatiousness Discernible
from the Conduct of the Defendant‟ , which is extracted as under:
―Vexatiousness Discernible from the Conduct of the Defendant
92. In the present case, as soon as the ICC Court rejected the
plaintiff‟s challenge to Mr. Yeap‟s appointment, the defendant
started pressing for the evidentiary hearing before the Tribunal.
Even after the intimation by the plaintiff that they were in the
process of filing an appeal against the ICC‟s decision, the
defendant still pressed for the evidentiary hearing before the
Tribunal. Despite the plaintiff‟s objection, the Tribunal fixed the
hearing on 12.03.2025.
93. On the same day, the defendant filed an enforcement petition
seeking enforcement of the First Partial Award before this Court.
Thereafter, on 17.03.2025, the Tribunal, despite the objections of
the plaintiff, directed that the evidential hearing would take place
in Singapore from 26.05.2025 to 31.05.2025. Parallelly, on
01.04.2025, the defendant issued an email to the ICC and
communicated its intention to file an application for seeking a
Partial Final Award on purported wasted costs on account of
adjournment of the evidential hearings in the month of January,
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2025. On 03.04.2025, the ICC responded to the request for
information lodged by the defendant and informed that (i) the
defendant‟s request for the fees and expenses disbursed by the ICC
to the members of the Tribunal towards the cancelled hearings in
January, 2025 stands rejected, and (ii) ICC will fix the costs of the
arbitration upon conclusion of the arbitration.
94. However, still on 02.04.2025, the defendant moved a wasted
costs application before the Tribunal. On 07.04.2025, the plaintiff
requested the Tribunal to defer the arbitration proceedings,
including the wasted costs application. Thereafter, on 10.04.2025,
the High Court of Singapore rendered the grounds of the decision
of the challenge to the First Partial Award, and on 15.04.2025, the
plaintiff filed the instant suit. While defending the said suit before
this Court, the defendant wrote to the Tribunal seeking to close the
Plaintiff's right to file a reply to the wasted costs application, since
it failed to file reply within the stipulated time.
95. Thereafter, on 23.04.2025 the plaintiff issued a letter through
its Singapore Counsel, expressing its intent to withdraw its appeal
by 07.05.2025, before Supreme Court at Singapore against the
First Partial Award decision by the High Court of Singapore.
Meanwhile, consequent to the defendant's request, the Tribunal
observed that despite giving multiple opportunities to the plaintiff
for purpose of filing its substantive response to the wasted costs
application, the plaintiff has failed to do so. The Tribunal further
observed that it will consider the wasted costs application, either
during or after the evidential hearing.
96. On 05.05.2025, the plaintiff filed a Notice of withdrawal before
the Supreme Court at Singapore thereby seeking to withdraw the
appeal unconditionally. On 16.05.2025, the plaintiff also filed an
application before the High Court of Singapore seeking withdrawal
of the challenge to the ICC Court‟s decision. On 19.05.2025, the
plaintiff requested the Tribunal for the deferment of the evidentiary
hearing on the ground of pendency of this suit. However, when the
Tribunal asked for the defendant‟s consent, the defendant vide
email dated 19.05.2025 stated that the evidential hearing should
proceed as planned physically. Consequently, on 20.05.2025, the
Tribunal wrote to both the parties observing that the evidential
hearing will proceed as planned in Singapore.
97. Interestingly, on 21.05.2025, defendant filed a motion before
the Singapore High Court in the ICC Court‟s order challenge
proceedings seeking restraint against the plaintiff from maintaining
and/or continuing with the captioned suit. On the same day, the
defendant wrote to the Tribunal to press for the evidential hearing
and moreover, when the plaintiff again requested the Tribunal for
deferment of the hearing, thereafter defendant vide email dated
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22.05.2025, again pressed for the evidential hearing, citing that
this Court has not stayed the same. Consequently, on 22.05.2025,
the Tribunal directed that the evidential hearing would commence
from 26.05.2025.
98. Meanwhile, on 23.05.2025, the High Court of Singapore
granted an ex-parte interim anti-suit injunction against the plaintiff
restraining it from continuing with the captioned suit and also
rejected the plaintiff‟s withdrawal application. On 26.05.2025, the
evidentiary hearing continued before the Tribunal and on
27.05.2025 it concluded while closing the evidentiary hearing in
the arbitration proceedings.
99. A bare perusal of the sequence of events that have transpired
during the course of the present proceedings unmistakably reveals
a concerted and calculated attempt by the defendant to entangle the
plaintiff in vexatious, coercive and strategically manipulative
litigation. The conduct of the defendant, when examined
holistically, demonstrates a clear pattern of abuse of process
intended not to resolve disputes in good faith, but rather to subject
the plaintiff to procedural hardship and jurisdictional
entanglement. Quite apparently, the defendant has been
unrelenting in pressing for the continuation of arbitral proceedings
before the Tribunal, despite having full knowledge of the pending
challenges both before the High Court of Singapore and before this
Court. Such persistence, in the face of concurrent judicial scrutiny
by competent fora, reflects a wilful disregard for judicial comity
and procedural fairness.
100. Simultaneously, the defendant went further to oppose the
plaintiff's application for withdrawal before the High Court of
Singapore, thereby obstructing an attempt at disengagement from
the arbitral process. It was coupled with the defendant‟s own fresh
motion seeking an anti-suit injunction, yet another tactical step
designed not to resolve the underlying dispute, but to suppress the
plaintiff‟s recourse to legal remedies and to preclude judicial
examination of the legitimacy of the arbitral process. The totality of
this conduct unequivocally suggests a mala fide and oppressive
litigation strategy, one which is intended to exhaust, delay, coerce
and manoeuvre the plaintiff by compelling it to defend itself across
multiple legal forums simultaneously, irrespective of the merits of
the dispute. Alongside, it is intended to prevent the plaintiff from
pursuing any legitimate claim before the judicial fora despite the
plaintiff having legitimate apprehensions qua the ongoing
arbitration proceeding.
101. Such tactics, which are neither fair nor in consonance with the
objectives of arbitration or civil litigation, amount to a
weaponisation of the judicial process for collateral purposes. The
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evident abuse of legal machinery to harass the plaintiff and
frustrate its access to justice cannot be countenanced by a Court of
law. For, the Courts in this country are not passive observers; they
are duty-bound to intervene when a party is subjected to sustained
harassment and procedural manipulation under the guise of lawful
process. To allow the defendant to continue with such vexatious
proceedings would be to permit the very erosion of judicial
integrity and to allow civil process to become an instrument of
oppression. This Court, therefore, cannot remain a silent spectator
where one litigant has clearly been subjected to undue procedural
torment by another under the pretext of arbitration, that too when
the arbitration proceeding in question is itself based on the
foundation of a grave and incurable error of non-disclosure giving
rise to legitimate doubts in the mind of the plaintiff qua the
fairness, impartiality and independence of the entire arbitration
proceedings.
102. In the present case, the only impediment which is highlighted
by the defendant is the existence of an arbitration mechanism. The
arbitration mechanism is agreed upon between the parties, and,
therefore, needs to be respected. However, what is more important
is whether the proceedings of arbitration have turned vexatious
and oppressive, and if the answer to this question is in the
affirmative, this Court cannot shy away from its duty to intervene in
the exercise of its civil jurisdiction. The non intervention by this
Court would not only amount to perpetuating a wrong at the hands
of the Court but would also compel the plaintiff to participate in a
dead wood exercise, as no just and sustainable outcome could
result from an adjudicatory exercise whose fairness itself is under
question.
103. So long as the plaintiff does not desist from participating in
the arbitration proceedings as per the arbitration mechanism,
subject to the same being in accordance with the fundamental
principle of fairness, there is no question of entertaining any
grievance pertaining to the arbitration mechanism. However, in
cases where the plaintiff reasonably establishes that the arbitration
proceedings are vexatious and oppressive, the Courts in India are
not powerless to interdict such proceedings and to protect the
litigant from victimisation.
104. In view of the aforesaid and in the peculiar facts and
circumstances of the case, it is crystal clear that the suit for grant
of an anti-arbitration injunction is maintainable before this Court
as the arbitration proceedings are prima facie vexatious and
oppressive in nature.”

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131. Additionally, as already established above by the learned Single
Judge that the proceedings before the Tribunal are prima facie
vexatious and oppressive in nature, and the Court has analysed all
three factors for the grant of an injunction, namely, prima facie case,
balance of convenience, and irreparable injury, which the Plaintiff is
likely to suffer if the injunction is not granted. It is also observed that
the Plaintiff cannot be compelled to participate in an arbitral
proceeding before the Tribunal whose impartiality is in serious doubt.
132. Similarly, the submission of learned Senior Counsel
representing the Defendant to the effect that the Plaintiff, after
invoking the jurisdiction of the SGHC on three occasions and one
occasion in the Singapore Court of Appeal, cannot file the present
suit, lacks substance because it is evident that the Plaintiff at the first
instance challenged the correctness of the First Partial Award before
the SGHC. During its pendency, an application for permission to
introduce apparent bias as a new basis for setting aside the First Partial
Award was filed, which was dismissed on 10.04.2025, but thereafter
the Plaintiff filed an interim proceeding against the decision of ICC
Court dated 14.03.2025. Before the decision, a Discontinuance
Application for permitting its withdrawal was filed, which was
opposed. Ultimately, the SGHC passed the order dated 07.07.2025,
whereas the Ground of Decision in support of the decision was
supplied only on 24.07.2025. Both these events took place during the
pendency of the suit, which was filed on 15.04.2025. Hence, the
entertainment of the suit by the learned Single Judge in the peculiar
facts of the case was not prima facie incorrect, particularly in view of
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the doubt about the impartiality and integrity of the Tribunal and
vexatious and oppressive conduct of the Defendant.
133. While deciding the injunction application, the Court is required
to make prima facie observations, however, the learned Single Judge
has made a strong prima facie observation bordering on an expression
of final opinion, which, as far as possible, should be avoided at the
stage of decision of the application for tampering with an injunction.
But this case falls in the rarest of rare cases, and this Bench is of the
considered view that the conclusion arrived at by the learned Single
Judge requires no interference.
CONCLUSION:
134. Consequently, with the caveat that the present adjudication,
having been rendered in respect of an injunction, only constitutes as
prima facie opinion, purely for the purposes of deciding the present
lis , the appeal is dismissed with the observations that the Impugned
Order shall not be construed as a final expression on the merits of the
case, and the suit will be decided independently, uninfluenced by the
observations made in the Impugned Order.
135. Keeping in view the aforesaid discussion, it is evident that the
Appeal lacks merit and is hence dismissed.
136. The preparation of this judgment has benefited substantially
from the valuable contribution of my learned Brother Judge, which I
acknowledge and appreciate.

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137. The present Appeal, along with the pending applications, is
disposed of.

ANIL KSHETARPAL, J.

HARISH VAIDYANATHAN SHANKAR, J.
DECEMBER 12, 2025
sp/shah/va
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