w w w . L a w y e r S e r v i c e s . i n



Unique Optical Fiber & Telecom Services Private Limited v/s Telecommunicationas Consultancy India Limited


Company & Directors' Information:- J K CONSULTANCY AND SERVICES PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066762

Company & Directors' Information:- H S CONSULTANCY PVT LTD [Active] CIN = U74140WB1988PTC044368

Company & Directors' Information:- S M CONSULTANCY PVT LTD [Active] CIN = U74140WB1992PTC057293

Company & Directors' Information:- J. K. TELECOM LIMITED [Active] CIN = U64201JK1987PLC000978

Company & Directors' Information:- TELECOM SERVICES INDIA LIMITED [Strike Off] CIN = U64203WB2000PLC091756

Company & Directors' Information:- K S CONSULTANCY SERVICES PVT LTD [Active] CIN = U74140WB1988PTC045137

Company & Directors' Information:- P AND N TELECOM PRIVATE LIMITED [Strike Off] CIN = U64200DL1998PTC097592

Company & Directors' Information:- E TO E CONSULTANCY PRIVATE LIMITED [Active] CIN = U63030KA2008PTC048557

Company & Directors' Information:- K. D. TELECOM PRIVATE LIMITED [Active] CIN = U32200GJ2007PTC051291

Company & Directors' Information:- Y A CONSULTANCY SERVICES PVT LTD [Active] CIN = U74140WB1987PTC043225

Company & Directors' Information:- R. A. CONSULTANCY PVT. LTD. [Under Process of Striking Off] CIN = U67120WB1994PTC066521

Company & Directors' Information:- D. P. TELECOM PRIVATE LIMITED [Active] CIN = U64200UP2008PTC035035

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- K P FIBER PRIVATE LIMITED [Strike Off] CIN = U25199DL2011PTC218493

Company & Directors' Information:- V G CONSULTANCY PRIVATE LIMITED [Active] CIN = U74899DL1993PTC054746

Company & Directors' Information:- L S D CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262781

Company & Directors' Information:- B S TELECOM PRIVATE LIMITED [Active] CIN = U64201TZ2012PTC017798

Company & Directors' Information:- K .P. A. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140WB2010PTC142889

Company & Directors' Information:- P O CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U93000WB2009PTC134219

Company & Directors' Information:- K & J TELECOM PRIVATE LIMITED [Active] CIN = U85110KA1989PTC009902

Company & Directors' Information:- T AND S TELECOM PRIVATE LIMITED [Strike Off] CIN = U64202DL2004PTC127144

Company & Directors' Information:- T K M CONSULTANCY INDIA PRIVATE LIMITED [Strike Off] CIN = U74140KL1998PTC012694

Company & Directors' Information:- P R TELECOM PRIVATE LIMITED [Strike Off] CIN = U64202DL2003PTC122691

Company & Directors' Information:- A & A CONSULTANCY PVT. LTD. [Active] CIN = U74140WB1986PTC040777

Company & Directors' Information:- Y K CONSULTANCY (INDIA) PRIVATE LIMITED [Active] CIN = U74140DL2003PTC121113

Company & Directors' Information:- A V TELECOM PRIVATE LIMITED [Active] CIN = U74999WB2012PTC182303

Company & Directors' Information:- J R D TELECOM PRIVATE LIMITED [Active] CIN = U74900TN2013PTC093158

Company & Directors' Information:- A TO Z TELECOM PRIVATE LIMITED [Active] CIN = U72900DL2000PTC104721

Company & Directors' Information:- L M J CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2010PTC208950

Company & Directors' Information:- R. K . CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140AS2006PTC008131

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- M U S INDIA CONSULTANCY LIMITED [Strike Off] CIN = U74900WB2013PLC191253

Company & Directors' Information:- A & A SERVICES AND CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140OR2012PTC015010

Company & Directors' Information:- J R CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900TN2015PTC102294

Company & Directors' Information:- J K R TELECOM INDIA PRIVATE LIMITED [Strike Off] CIN = U64204TG2010PTC068426

Company & Directors' Information:- R. P. INDIA TELECOM PRIVATE LIMITED [Active] CIN = U72900UP2017PTC089129

Company & Directors' Information:- R A D CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2011PTC224038

Company & Directors' Information:- S I M CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999DL2007PTC162468

Company & Directors' Information:- Y. K. M. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74900DL2013PTC254940

Company & Directors' Information:- M R FIBER PRIVATE LIMITED [Strike Off] CIN = U17120HR2015PTC056900

Company & Directors' Information:- L B TELECOM PRIVATE LIMITED [Active] CIN = U64200KA2020PTC137646

Company & Directors' Information:- P P S TELECOM SERVICES PRIVATE LIMITED [Active] CIN = U64200UP2020PTC134328

Company & Directors' Information:- B-FIBER PRIVATE LIMITED [Active] CIN = U72900BR2020PTC048890

Company & Directors' Information:- L B N TELECOM PRIVATE LIMITED [Strike Off] CIN = U64201KA1998PTC024089

Company & Directors' Information:- UNIQUE INDIA PRIVATE LIMITED [Strike Off] CIN = U65999DL1985PTC021157

Company & Directors' Information:- J. P. CONSULTANCY PRIVATE LIMITED [Active] CIN = U51909GJ2002PTC040433

Company & Directors' Information:- V & T CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74999CH2005PTC027862

Company & Directors' Information:- P C CONSULTANCY PVT LTD [Active] CIN = U74210WB1991PTC053835

Company & Directors' Information:- J A CONSULTANCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U93090MH2008PTC188284

Company & Directors' Information:- G C TELECOM (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51505MH2004PTC144292

Company & Directors' Information:- L M B CONSULTANCY SERVICES INDIA PRIVATE LIMITED [Active] CIN = U74999KL2002PTC015318

Company & Directors' Information:- V AND A TELECOM SERVICES PRIVATE LIMITED [Active] CIN = U64202DL2004PTC125896

Company & Directors' Information:- S K TELECOM SERVICES PRIVATE LIMITED [Strike Off] CIN = U64203MH2005PTC158223

Company & Directors' Information:- TELECOM (INDIA) PVT LTD [Strike Off] CIN = U51395WB1984PTC037454

Company & Directors' Information:- M Y M CONSULTANCY SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U74900KA2011PTC058364

Company & Directors' Information:- S K A CONSULTANCY PRIVATE LIMITED [Active] CIN = U74999UP2020PTC136502

Company & Directors' Information:- TELECOM SERVICES INDIA LIMITED [Strike Off] CIN = U64203DL1992PLC049433

Company & Directors' Information:- T C S CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140RJ1995PTC011052

Company & Directors' Information:- J A J TELECOM SERVICES PRIVATE LIMITED [Strike Off] CIN = U32201TN1996PTC034974

Company & Directors' Information:- K B M CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72900TG2002PTC038403

Company & Directors' Information:- D M M CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140WB2010PTC151887

Company & Directors' Information:- C I S (INDIA) CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74120BR2013PTC021019

Company & Directors' Information:- R I W CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72200KL2013PTC034174

Company & Directors' Information:- UNIQUE SERVICES PRIVATE LIMITED [Active] CIN = U31500DL2012PTC233266

Company & Directors' Information:- P S P CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900DL2011PTC222022

Company & Directors' Information:- N. K. CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140HR2006PTC036471

Company & Directors' Information:- M E CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140KL2012PTC031172

Company & Directors' Information:- M & M CONSULTANCY SERVICES PVT. LTD. [Strike Off] CIN = U74140WB1992PTC056149

Company & Directors' Information:- V S B D CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TN2000PTC045338

Company & Directors' Information:- Z K CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210DL1993PTC052338

Company & Directors' Information:- B AND D CONSULTANCY SERVICES PVT LTD [Strike Off] CIN = U74210MH1982PTC027430

Company & Directors' Information:- D. G. CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140WB2008PTC129948

Company & Directors' Information:- V F C CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140RJ2015PTC048025

Company & Directors' Information:- E & C CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140TN2007PTC062260

Company & Directors' Information:- L & R CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140TN2009PTC072839

Company & Directors' Information:- P P CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210TN1982PTC009556

Company & Directors' Information:- N R 'S CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74210TN1986PTC013630

Company & Directors' Information:- M F S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140MH2008PTC177948

Company & Directors' Information:- D P CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140PN2008PTC132654

Company & Directors' Information:- R K D TELECOM PRIVATE LIMITED [Active] CIN = U74999MH2014PTC252496

Company & Directors' Information:- C AND H CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74100MH2004PTC148618

Company & Directors' Information:- R V K CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74120MH2011PTC221273

Company & Directors' Information:- H A S D CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120MH2011PTC222997

Company & Directors' Information:- H H S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74120MH2013PTC250345

Company & Directors' Information:- M & W CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74910TN2004PTC053384

Company & Directors' Information:- J K M CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74120UP2010PTC042726

Company & Directors' Information:- Y V R CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900TG2015PTC098309

Company & Directors' Information:- U V TELECOM SERVICES PRIVATE LIMITED [Strike Off] CIN = U64203TG2002PTC038604

Company & Directors' Information:- J L I CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U72300UP2012PTC052649

Company & Directors' Information:- D R M B CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74900WB2014PTC201139

Company & Directors' Information:- M P CONSULTANCY PVT LTD [Strike Off] CIN = U74120WB1996PTC081085

Company & Directors' Information:- J. L. CONSULTANCY PVT LTD [Active] CIN = U74140WB1985PTC039818

Company & Directors' Information:- S E S CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74999WB2011PTC170939

Company & Directors' Information:- G P R CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140CH2012PTC033622

Company & Directors' Information:- S K CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U93000JH2012PTC000348

Company & Directors' Information:- R & A CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U67100DL2011PTC215340

Company & Directors' Information:- B K TELECOM SERVICES PRIVATE LIMITED [Strike Off] CIN = U74899DL1990PTC041205

Company & Directors' Information:- M J M CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140DL2005PTC133200

Company & Directors' Information:- A C G CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140DL2005PTC140720

Company & Directors' Information:- S V S TELECOM PRIVATE LIMITED [Strike Off] CIN = U74140DL2009PTC194045

Company & Directors' Information:- H M S CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140DL2010PTC201488

Company & Directors' Information:- D D TELECOM PRIVATE LIMITED [Active] CIN = U74140DL2015PTC282251

Company & Directors' Information:- G V TELECOM PRIVATE LIMITED [Active] CIN = U74999DL2012PTC234694

Company & Directors' Information:- D & G CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U65990DL2011PTC214142

Company & Directors' Information:- R H H H CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900AP2014PTC095348

Company & Directors' Information:- S D N TELECOM PRIVATE LIMITED [Active] CIN = U64200AP2014PTC095500

Company & Directors' Information:- A & C CONSULTANCY PRIVATE LIMITED [Active] CIN = U74140KA2008PTC046754

Company & Directors' Information:- J S M CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U93000HR2011PTC043455

Company & Directors' Information:- M R TELECOM PRIVATE LIMITED [Strike Off] CIN = U32304KA2009PTC050372

Company & Directors' Information:- A P R CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U93000KA2014PTC073639

Company & Directors' Information:- L AND L CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL1997PTC011084

Company & Directors' Information:- J AND S CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL2005PTC018496

Company & Directors' Information:- P E B CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74140KL2011PTC027680

Company & Directors' Information:- Z & H CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U85190KL2008PTC023534

Company & Directors' Information:- D C D CONSULTANCY PRIVATE LIMITED [Active] CIN = U74999RJ2020PTC071399

Company & Directors' Information:- D AND N CONSULTANCY SERVICES PRIVATE LIMITED [Active] CIN = U74999PN2020PTC195417

Company & Directors' Information:- S S G CONSULTANCY SERVICES PRIVATE LIMITED [Strike Off] CIN = U74140TN1997PTC037763

Company & Directors' Information:- U R TELECOM PRIVATE LIMITED [Strike Off] CIN = U00360KA1996PTC019674

Company & Directors' Information:- R K OPTICAL SERVICES PRIVATE LIMITED [Strike Off] CIN = U33203DL1987PTC028861

Company & Directors' Information:- V Z CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74140MH2007PTC170875

Company & Directors' Information:- F T CONSULTANCY PRIVATE LIMITED [Strike Off] CIN = U74900CH2007PTC030854

Company & Directors' Information:- A. A. R. M. CONSULTANCY SERVICES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74140DL2006PTC150076

Company & Directors' Information:- M AND M CONSULTANCY PVT LTD [Strike Off] CIN = U74140PB1985PTC006557

Company & Directors' Information:- SERVICES AND CONSULTANCY P. LTD. [Strike Off] CIN = U99999DL2000PTC902217

    Petition Under Arbitration Act Nos. 131 to 133 of 2017

    Decided On, 09 February 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE M.R. SHAH

    For the Appearing Parties: H.S Tolia, Harsheel D. Shukla, P.K. Bansal, R.J. Goswami, Advocates.



Judgment Text

M.R. Shah, J.

1. As common question of law and facts arise in these group of petitions, they are disposed of by this common judgment and order.

2. All these petitions under Section 11 of the Arbitration & Conciliation Act have been preferred by the common petitioner but with respect to different contracts seeking appointment of an Arbitrator to resolve the dispute between the parties arising out of the respective contracts in question.

3. In response to the notice issued by this Court, Shri P.K. Bansal, learned Senior Advocate has appeared with Shri Harsheel Shukla, learned advocate appearing on behalf of the common respondent. The preliminary objection raised on behalf of the respondent is on the territorial jurisdiction of this Court. Shri Bansal, learned Senior Advocate appearing on behalf of the respondent has vehemently submitted that in view of Clause 3.14 read with Clause 3.17 of the respective contracts and as the parties to the respective contracts have agreed to submit to the exclusive jurisdiction of the Court at Delhi and to all Courts at Delhi having jurisdiction in appeal therefrom and have agreed that the arbitration proceedings shall be held at Delhi, present petitions preferred by the petitioner seeking appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act shall not be maintainable before this High Court as the Court at Delhi only shall have the exclusive jurisdiction as agreed between the parties. In support of his above submissions, Shri Bansal, learned Senior Advocate appearing on behalf of the respondent has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited Vs. Datawind Innovations Private Limited and Others, (2017) 7 SCC 678.

4. On the aforesaid objection raised by the learned advocate appearing on behalf of the respondent, Shri H.S. Tolia, learned appearing on behalf of the common petitioner has vehemently submitted that the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited , which has been relied upon by the learned advocate appearing on behalf of the respondent, shall not be applicable to the facts of the case on hand, more particularly, when the present petitions are under Section 11 of the Arbitration and Conciliation Act. It is vehemently submitted that the aforesaid decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited is with respect to the proceedings under Section 9 of the Arbitration and Conciliation Act, and therefore, the same shall not be applicable to the proceedings under Section 11 of the Arbitration and Conciliation Act.

[4.1] It is submitted by Shri Tolia, learned advocate appearing on behalf of the petitioner that even otherwise considering the definition of the "Court" contained in Section 2(1) (e) of the Arbitration and Conciliation Act, Court at Delhi, more particularly, Delhi High Court cannot be said to be a "Court" within the meaning of Section 2(1) (e) of the Arbitration and Conciliation Act for the purpose of application under Section 11 of the Arbitration and Conciliation Act. In support of his above submission, Shri Tolia, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of West Bengal and Others Vs. Associated Contractors, (2015) 1 SCC 32.

Making the above submissions, it is requested to admit /allow the present petitions by overruling the objections raised by the learned Senior Advocate appearing on behalf of the respondent raised on territorial jurisdiction of this Court and to entertain the present petitions under Section 11 of the Arbitration and Conciliation Act.

5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the Agreements /Contracts between the parties contain the following Clauses, which are agreed between the parties. Relevant Clauses, which are necessary for the purpose of deciding the territorial jurisdiction of this Court are contained in paragraph 3.14 and 3.17, which read as under;

"3.14 APPLICABLE LAWS

This contract shall be interpreted, construed and governed by the laws of the Republic of India and the parties hereby submit to the exclusive jurisdiction of the Court at Delhi and to all Courts at Delhi having jurisdiction in appeal there from.

3.17 ARBITRATION

In the event of any dispute arising between TCIL and the Contractor in any matter covered by this contract or arising directly or indirectly there from or connected or concerned with the said contract in any manner of the implementation of any terms and conditions of the said contract, the matter shall be referred to the Chairman & Managing Director, TCIL who may himself act as sole arbitrator or may name as sole arbitrator an officer of TCIL notwithstanding the fact that such officer has been directly or indirectly associated with this contract and the provisions of the Indian Arbitration Conciliation Act, 1996 shall apply to such arbitration. The supplier expressly agrees that the arbitration proceedings shall be held at New Delhi. The proceedings of arbitration shall be in English language:

In case any Contractor wants to take the dispute to a Court of law after arbitration award as aforesaid, it is clearly understood that only courts in Delhi shall have the Jurisdiction.

In case of Public Sector Undertaking /Government Departments.

In the event of any dispute or difference relating to the interpretation and application of the provisions of the contracts with any Public Sector Undertaking /Government Department, such dispute or difference shall be referred by either party for Arbitration to the sole Arbitrator in the Department of Public Enterprise to be nominated by the Secretary to the Government of India in-charge of the Department of Public Enterprises. The Arbitration and Conciliation Act, 1996 shall not be applicable to arbitration under this clause. The award of the Arbitrator shall be binding upon the parties to the dispute, provided, however, any party aggrieved by such award may make a further reference for setting aside or revision of the award to the Law Secretary, Department of Legal Affairs, Ministry of Law & Justice, Government of India. Upon such reference, the dispute shall be decided by the Law Secretary or the Special Secretary /Additional Secretary, when so authorized by the Law Secretary, whose decision shall bind the parties finally and conclusively. The parties to the dispute will share equally the cost of arbitration as intimated by the Arbitrator."

[5.1] On conjoint reading of the aforesaid Clause Nos. 3.14 & 3.17, it appears that the parties have agreed to submit to the exclusive jurisdiction of the Court at Delhi and to all Courts at Delhi having jurisdiction in appeal there from. As per Clause 3.17 of the respective Contracts /Agreements, the supplier has expressly agreed that the Arbitration proceedings shall be held at New Delhi. As per Clause 3.17, as agreed between the parties, in case any Contractor wants to take the dispute to a Court of law after Arbitration award, only Courts in Delhi shall have the jurisdiction. Considering the aforesaid provisions, the objections raised on behalf of the respondent on the territorial jurisdiction of this Court /Gujarat High Court to entertain and /or consider the petitions under Section 11 of the Arbitration and Conciliation Act is required to be considered. Identical question came to be considered by the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited . In the case before the Hon'ble Supreme Court as per the Arbitration Agreement between the parties, the seat of Arbitration was at Mumbai and the jurisdiction was to exclusively vest in the Mumbai Court. Rejecting the contention on behalf of the respondent that the jurisdiction could not vest in the Courts of Mumbai as no cause of action arose there, the Hon'ble Supreme Court has observed and held that under the law of Arbitration, unlike the Code of Civil Procedure, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. It is further observed and held that the moment the "seat" was determined at Mumbai, it vested in the Mumbai Courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties. In the case before the Hon'ble Supreme Court, Clause Nos.18 and 19 of the Agreement were as under;

"18. Dispute Resolution Mechanism:

Arbitration : In case of any dispute or differences arising between parties out of or in relation to the construction, meaning, scope, operation or effect of this Agreement or breach of this Agreement, parties shall make efforts in good faith to amicably resolve such dispute.

If such dispute or difference cannot be amicably resolved by the parties ("Dispute") withing thirty (30) days of its occurrence, or such longer time as mutually agreed either party may refer the dispute to the designated senior officers of the parties.

If the dispute cannot be amicably resolved by such officers within thirty (30) days from date of referral or within such longer time as mutually agreed, such dispute shall be finally settled by arbitration conducted under the provisions of the Arbitration and Conciliation Act, 1996 by reference to a sole Arbitrator which shall be mutually agreed by the parties. Such arbitration shall be conducted at Mumbai in English language.

The arbitration award shall be final and the judgment thereupon may be entered in any court having jurisdiction over the parties hereto or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The Arbitrator shall have the power to order specific performance of the Agreement.

The arbitration award shall be final and the judgment thereupon may be entered in any court having jurisdiction over the parties hereto or application may be made to such court for a judicial acceptance of the award and an order and an order of enforcement as the case may be. The Arbitrator shall have the power of order specific performance of the Agreement.

Each party shall bear its own costs of the Arbitration."

19. All disputes & differences of any kind whatever arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of Court of Mumbai only.".

[5.2] While considering the aforesaid exclusive jurisdiction Clause, the Hon'ble Supreme Court has observed and held that Mumbai Court alone had jurisdiction to the exclusion of all other Courts in the country, as the jurisdical seat of arbitration is at Mumbai as per the Arbitration Agreement. While observing and holding as above, the Hon'ble Supreme Court has observed and held in paragraph nos.9 to 20 as under;

"9. The concept of juridical seat has been evolved by the courts in England and has now been firmly embedded in our jurisprudence. Thus, the Constitution Bench in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, has adverted to "seat" in some detail. paragraph 96 is instructive and states as under:-

"96.Section 2(1) (e) of the Arbitration Act, 1996 reads as under:

"2. Definitions.-(1) In this Part, unless the context otherwise requires-

(a) -(d) ***

(e) 'Court' means the Principal Civil Court of Original Jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subjectmatter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes;"

We are of the opinion, the term "subject-matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject-matter" in Section 2(1) (e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1) (e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution i.e. arbitration is located."

10. Paragraphs 98 to 100 have laid down the law as to "seat" thus:

"98.We now come to Section 20, which is as under:

"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."

A plain reading of Section 20 leaves no room for doubt that where the place of arbitration is in India, the parties are free to agree to any "place" or "seat" within India, be it Delhi, Mumbai, etc. In the absence of the parties' agreement thereto, Section 20(2) authorizes the tribunal to determine the place/seat of such arbitration. Section 20(3) enables the tribunal to meet at any place for conducting hearings at a place of convenience in matters such as consultations among its members for hearing witnesses, experts or the parties.

99. The fixation of the most convenient "venue" is taken care of by Section 20(3) . Section 20, has to be read in the context of Section 2(2) , which places a threshold limitation on the applicability of Part I, where the place of arbitration is in India. Therefore, Section 20 would also not support the submission of the extra-territorial applicability of Part I, as canvassed by the learned counsel for the appellants, so far as purely domestic arbitration is concerned.

100. True, that in an international commercial arbitration, having a seat in India, hearings may be necessitated outside India. In such circumstances, the hearing of the arbitration will be conducted at the venue fixed by the parties, but it would not have the effect of changing the seat of arbitration which would remain in India. The legal position in this regard is summed up by Redfern and Hunter, The Law and Practice of International Commercial Arbitration (1986) at p. 69 in the following passage under the heading "The Place of Arbitration":

"The preceding discussion has been on the basis that there is only one 'place' of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of the reference or the minutes of proceedings or in some other way as the place or 'seat' of the arbitration. This does not mean, however, that the Arbitral Tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an Arbitral Tribunal to hold meetings-or even hearings-in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses . It may be more convenient for an Arbitral Tribunal sitting in one country to conduct a hearing in another country-for instance, for the purpose of taking evidence . In such circumstances, each move of the Arbitral Tribunal does not of itself mean that the seat of arbitration changes. The seat of the arbitration remains the place initially agreed by or on behalf of the parties."

This, in our view, is the correct depiction of the practical considerations and the distinction between "seat" [Sections 20(1) and 20(2) ] and "venue" [Section 20(3) ]. We may point out here that the distinction between "seat" and "venue" would be quite crucial in the event, the arbitration agreement designates a foreign country as the "seat"/"place" of the arbitration and also selects the Arbitration Act, 1996 as the curial law/law governing the arbitration proceedings. It would be a matter of construction of the individual agreement to decide whether:

(i) the designated foreign "seat" would be read as in fact only providing for a "venue"/"place" where the hearings would be held, in view of the choice of the Arbitration Act, 1996 as being the curial law, or

(ii) the specific designation of a foreign seat, necessarily carrying with it the choice of that country's arbitration/curial law, would prevail over and subsume the conflicting selection choice by the parties of the Arbitration Act, 1996." [paras 98 100]

11. In an instructive passage, this Court stated that an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause as follows:

"123. Thus, it is clear that the regulation of conduct of arbitration and challenge to an award would have to be done by the courts of the country in which the arbitration is being conducted. Such a court is then the supervisory court possessed of the power to annul the award. This is in keeping with the scheme of the international instruments, such as the Geneva Convention and the New York Convention as well as the Uncitral Model Law. It also recognises the territorial principle which gives effect to the sovereign right of a country to regulate, through its national courts, an adjudicatory duty being performed in its own country. By way of a comparative example, we may reiterate the observations made by the Court of Appeal, England in C v. D, (2007) EWCA(Civ) 1282 (CA) ] wherein it is observed that:

"17. It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award."

In the aforesaid case, the Court of Appeal had approved the observations made in A v. B, (2007) 1 AllER(Comm) 591 wherein it is observed that:

'an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of arbitration." [para 123]

12. The Constitution Bench's statement of the law was further expanded in Enercon (India) Ltd. v. Enercon Gmbh, (2014) 5 SCC 1. After referring to various English authorities in great detail, this Court held, following the Constitution Bench, as follows:

"134. It is accepted by most of the experts in the law relating to international arbitration that in almost all the national laws, arbitrations are anchored to the seat/place/situs of arbitration. Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009) , in Para 3.54 concludes that "the seat of the arbitration is thus intended to be its center of gravity". In Balco [Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 ] , it is further noticed that this does not mean that all proceedings of the arbitration are to be held at the seat of arbitration. The arbitrators are at liberty to hold meetings at a place which is of convenience to all concerned. This may become necessary as arbitrators often come from different countries. Therefore, it may be convenient to hold all or some of the meetings of the arbitration in a location other than where the seat of arbitration is located. In Balco, the relevant passage from Redfern and Hunter has been quoted which is as under: (SCC p. 598, para 75)

"75. 'The preceding discussion has been on the basis that there is only one "place" of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of reference or the minutes of proceedings or in some other way as the place or "seat" of the arbitration. This does not mean, however, that the Arbitral Tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an Arbitral Tribunal to hold meetings-or even hearings-in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses . It may be more convenient for an Arbitral Tribunal sitting in one country to conduct a hearing in another country - for instance, for the purpose of taking evidence . In such circumstances each move of the Arbitral Tribunal does not of itself mean that the seat of arbitration changes. The seat of arbitration remains the place initially agreed by or on behalf of the parties.' (Naviera case [Naviera Amazonica Peruana S. A. v. Compania Internacional De Seguros Del Peru, (1988) 1 LloydsRep 116 (CA) ] , Lloyd's Rep p. 121) " These observations have also been noticed in Union of India v. McDonnell Douglas Corpn., (1993) 2 LloydsRep 48]" [para 134]

13. This Court reiterated that once the seat of arbitration has been fixed, it would be in the nature of an exclusive jurisdiction clause as to the courts which exercise supervisory powers over the arbitration. (See: paragraph 138) .

14. In Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603, this statement of the law was echoed in several paragraphs. This judgment makes it clear that "juridical seat" is nothing but the "legal place" of arbitration. It was held that since the juridical seat or legal place of arbitration was London, English courts alone would have jurisdiction over the arbitration thus excluding Part I of the Indian Act. (See: paragraphs 36, 41, 45 to 60 and 76.1 and 76.2) . This judgment was relied upon and followed by Harmony Innovation Shipping Limited v. Gupta Coal India Limited and Another, (2015) 9 SCC 172 (See: paragraphs 45 and 48) . In Union of India v. Reliance Industries Limited and Others, (2015) 10 SCC 213, this Court referred to all the earlier judgments and held that in cases where the seat of arbitration is London, by necessary implication Part I of the Arbitration and Conciliation Act, 1996 is excluded as the supervisory jurisdiction of courts over the arbitration goes along with "seat".

15. In a recent judgment in Eitzen Bulk A/S v. Ashapura Minechem Limited and Another, (2016) 11 SCC 508, all the aforesaid authorities were referred to and followed. paragraph 34 of the said judgment reads as follows:

"34. As a matter of fact the mere choosing of the juridical seat of arbitration attracts the law applicable to such location. In other words, it would not be necessary to specify which law would apply to the arbitration proceedings, since the law of the particular country would apply ipso jure. The following passage from Redfern and Hunter on International Arbitration contains the following explication of the issue:

"It is also sometimes said that parties have selected the procedural law that will govern their arbitration, by providing for arbitration in a particular country. This is too elliptical and, as an English court itself held more recently in Breas of Doune Wind Farm it does not always hold true. What the parties have done is to choose a place of arbitration in a particular country. That choice brings with it submission to the laws of that country, including any mandatory provisions of its law on arbitration. To say that the parties have "chosen" that particular law to govern the arbitration is rather like saying that an English woman who takes her car to France has "chosen" French traffic law, which will oblige her to drive on the right-hand side of the road, to give priority to vehicles approaching from the right, and generally to obey traffic laws to which she may not be accustomed. But it would be an odd use of language to say this notional motorist had opted for "French traffic law". What she has done is to choose to go to France. The applicability of French law then follows automatically. It is not a matter of choice.

Parties may well choose a particular place of arbitration precisely because its lex arbitri is one which they find attractive. Nevertheless, once a place of arbitration has been chosen, it brings with it its own law. If that law contains provisions that are mandatory so far as arbitration are concerned, those provisions must be obeyed. It is not a matter of choice any more than the notional motorist is free to choose which local traffic laws to obey and which to disregard." [para 34]

16. It may be mentioned, in passing, that the Arbitration and Conciliation Act, 1996 has been amended in 2015 pursuant to a detailed Law Commission Report. The Law Commission specifically adverted to the difference between "seat" and "venue" as follows:

"40. The Supreme Court in BALCO decided that Parts I and II of the Act are mutually exclusive of each other. The intention of Parliament that the Act is territorial in nature and sections 9 and 34 will apply only when the seat of arbitration is in India. The seat is the "centre of gravity" of arbitration, and even where two foreign parties arbitrate in India, Part I would apply and, by 24 virtue of section 2(7) , the award would be a "domestic award". The Supreme Court recognized the "seat" of arbitration to be the juridical seat; however, in line with international practice, it was observed that the arbitral hearings may take place at a location other than the seat of arbitration. The distinction between "seat" and "venue" was, therefore, recognized. In such a scenario, only if the seat is determined to be India, Part I would be applicable. If the seat was foreign, Part I would be inapplicable. Even if Part I was expressly included "it would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the [foreign] Procedural Law/Curial Law." The same cannot be used to confer jurisdiction on an Indian Court. However, the decision in BALCO was expressly given prospective effect and applied to arbitration agreements executed after the date of the judgment.

41. While the decision in BALCO is a step in the right direction and would drastically reduce judicial intervention in foreign arbitrations, the Commission feels that there are still a few areas that are likely to be problematic.

(i) Where the assets of a party are located in India, and there is a likelihood that that party will dissipate its assets in the near future, the other party will lack an efficacious remedy if the seat of the arbitration is abroad. The latter party will have two possible remedies, but neither will be efficacious. First, the latter party can obtain an interim order from a foreign Court or the arbitral tribunal itself and file a civil suit to enforce the right created by the interim order. The interim order would not be enforceable directly by filing an execution petition as it would not qualify as a "judgment" or "decree" for the purposes of sections 13 and 44A of the Code of Civil Procedure (which provide a mechanism for enforcing foreign judgments) . Secondly, in the event that the former party does not adhere to the terms of the foreign Order, the latter party can initiate proceedings for contempt in the foreign Court and enforce the judgment of the foreign Court under sections 13 and 44A of the Code of Civil Procedure. Neither of these remedies is likely to provide a 25 practical remedy to the party seeking to enforce the interim relief obtained by it.

That being the case, it is a distinct possibility that a foreign party would obtain an arbitral award in its favour only to realize that the entity against which it has to enforce the award has been stripped of its assets and has been converted into a shell company.

(ii) While the decision in BALCO was made prospective to ensure that hotly negotiated bargains are not overturned overnight, it results in a situation where Courts, despite knowing that the decision in Bhatia is no longer good law, are forced to apply it whenever they are faced with a case arising from an arbitration agreement executed pre-BALCO.

42. The above issues have been addressed by way of proposed Amendments to sections 2(2), 2(2A), 20, 28 and 31."

17. In amendments to be made to the Act, the Law Commission recommended the following:

"Amendment of Section 20

12. In section 20, delete the word "Place" and add the words "Seat and Venue" before the words "of arbitration".

(i) In sub-section (1) , after the words "agree on the" delete the word "place" and add words "seat and venue"

(ii) In sub-section (3) , after the words "meet at any" delete the word "place" and add word "venue".

[NOTE: The departure from the existing phrase "place" of arbitration is proposed to make the wording of the Act consistent with the international usage of the concept of a "seat" of arbitration, to denote the legal home of the arbitration. The amendment further legislatively distinguishes between the "[legal] seat" from a "[mere] venue" of arbitration.]

Amendment of Section 31

17. In section 31

(i) In sub-section (4), after the words "its date and the" delete the word "place" and add the word "seat"."

18. The amended Act, does not, however, contain the aforesaid amendments, presumably because the BALCO judgment in no uncertain terms has referred to "place" as "juridical seat" for the purpose of Section 2(2) of the Act. It further made it clear that Section 20(1) and 20 (2) where the word "place" is used, refers to "juridical seat", whereas in Section 20 (3) , the word "place" is equivalent to "venue". This being the settled law, it was found unnecessary to expressly incorporate what the Constitution Bench of the Supreme Court has already done by way of construction of the Act.

19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21 of the CPC be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.

20. It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts. For an exhaustive analysis of the case law, see Swastik Gases Private Limited v. Indian Oil Corporation Limited, (2013) 9 SCC 32. This was followed in a recent judgment in B. E. Simoese Von Staraburg Niedenthal and Another v. Chhattisgarh Investment Limited, (2015) 12 SCC 225. Having regard to the above, it is clear that Mumbai courts alone have jurisdiction to the exclusion of all other courts in the country, as the juridical seat of arbitration is at Mumbai. This being the case, the impugned judgment is set aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment, so that the respondents may take necessary steps under Section 9 in the Mumbai Court. Appeals are disposed of accordingly."

[5.3] Under the circumstances, the preliminary objection raised on behalf of the respondent on territorial jurisdiction of this High Court while entertaining the present petitions under Section 11 of the Arbitration and Conciliation Act is now not res integra in view of the direct decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited . However, Shri Tolia, learned advocate appearing on behalf of petitioner has submitted that the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited shall not be applicable to the proceedings under Section 11 of the Arbitration and Conciliation Act as the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited was with respect to the proceedings under Section 9 of the Arbitration and Conciliation Act. The aforesaid has no substance and as such the same is factually incorrect. To satisfy ourselves, we have considered the original order passed by the Delhi High Court against which Appeals were before the Hon'ble Supreme court. Before the Delhi High Court, two applications were submitted, one under Section 11 of the Arbitration and Conciliation Act and another under Section 9 of the Arbitration and Conciliation Act as the Delhi High Court was having the original jurisdiction. The Delhi High Court entertained and allowed both the applications i.e. under Section11 of the Arbitration and Conciliation Act as well as under Section 9 of the Arbitration and Conciliation Act. Against the common judgment and order passed by the Delhi High Court under Section 11 of the Arbitration and C

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onciliation Act and under Section 9 of the Arbitration and Conciliation Act, the matter went to the Hon'ble Supreme Court, which were numbered as Civil Appeal Nos.5370-5371/2017. The Hon'ble Supreme Court allowed the aforesaid Appeals and quashed and set aside the common judgment and order passed by the Delhi High Court in Arbitration Petition No.592/2015 as well as OMP No.531/2015 i.e. under Section 11 of the Arbitration and Conciliation Act as well as under Section 9 of the Arbitration and Conciliation Act and continued the interim injunction for a period of four weeks so that the respondent before the Hon'ble Supreme Court may take necessary steps under Section 9 of the Arbitration and Conciliation Act in the Mumbai Court, and therefore, the observations made by the Hon'ble Supreme Court in the aforesaid decision are with respect to the proceedings under Section 11 of the Arbitration and Conciliation Act as well as under Section 9 of the Arbitration and Conciliation Act. Learned Senior Advocate appearing on behalf of the respondent has drawn the attention on the status report of the proceedings before the Mumbai High Court, which were initiated after the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited and has demonstrated that thereafter the applicant before the Delhi High Court filed two applications before the Mumbai High Court, one under Section 11 of the Arbitration and Conciliation Act and another under Section 9 of the Arbitration and Conciliation Act, and therefore, the learned advocate appearing on behalf of the petitioner is not right in submitting that the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited shall only be applicable with respect to the proceedings under Section 9 of the Arbitration and Conciliation Act. [5.4] Now so far as the submission made by Shri Tolia, learned advocate appearing on behalf of the petitioner that the Court at Delhi cannot be said to be the Court within the meaning of Section 2(1) (e) of the Arbitration and Conciliation Act for the purpose of Section 11 application is concerned, at the outset and in light of the decision of the Hon'ble Supreme Court in the case of Indus Mobile Distribution Private Limited and considering the fact that both the parties have chosen /expressly agreed the seat of the Arbitration at New Delhi and have expressly agreed that the Arbitration proceedings shall be held at New Delhi and both of them have submitted to the exclusive jurisdiction of the Court at Delhi and to all Courts at Delhi having jurisdiction in Appeal there from, the aforesaid submission cannot be accepted. [5.5] Even otherwise it is required to be noted that so far as the Delhi High Court is concerned, Delhi High Court is having original jurisdiction, and therefore also, Delhi High Court can be said to be the "Court" within the meaning of Section 2(1) (e) of the Arbitration and Conciliation Act, including the "Court" for the purpose of application under Section 11 of the Arbitration and Conciliation Act. 6. In view of the above and for the reasons stated hereinabove, the objections raised on behalf of the respondent on the territorial jurisdiction of this High Court (Gujarat High Court) to entertain the present petitions under Section 11 of the Arbitration and Conciliation Act are hereby sustained and it is held that in view of Clause Nos.3.14 read with Clause 3.17 of the Agreement, Gujarat High Court shall not have any territorial jurisdiction to entertain the petitions under Section 11 of the Arbitration and Conciliation Act and the Court at New Delhi /Delhi High Court would have exclusive jurisdiction. Under the circumstances, present petitions are not entertained and the same are disposed of /dismissed. It will be open for the petitioner to approach the Delhi Court having exclusive jurisdiction for appropriate relief under Section 11 of the Arbitration and Conciliation Act.
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