S. 11(6) A&C Act | Referral Courts Should Limit Its Enquiry To Prima Facie Existence Of Arbitration Agreement : Supreme Court

Case Title: GOQII TECHNOLOGIES PRIVATE LIMITED VERSUS SOKRATI TECHNOLOGIES PRIVATE LIMITED,

Citation : 2024 LiveLaw (SC) 891

In a recent decision, the Supreme Court reiterated that the referral courts under Section 11(6) of the Arbitration & Conciliation Act, 1996 (“Act”) should refrain from conducting an in-depth factual analysis of the dispute. Instead, their role is confined to assessing the prima facie existence of an arbitration agreement.

“The scope of inquiry under Section 11 of the Act, 1996 is limited to ascertaining the prima facie existence of an arbitration agreement. In the present case, the High Court exceeded this limited scope by undertaking a detailed examination of the factual matrix. The High Court erroneously proceeded to assess the auditor's report in detail and dismissed the arbitration application. In our view, such an approach does not give effect to the legislative intent behind the 2015 amendment to the Act, 1996 which limited the judicial scrutiny at the stage of Section 11 solely to the prima facie determination of the existence of an arbitration agreement.”, the bench comprising Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra said.

High Courts

Allahbad High Court

Since Award Is A Deemed Decree, Execution Can Be Initiated Anywhere Where Decree Can Be Executed: Allahabad High Court

Case Title: National Highway Authority Of India And Another Versus Jagpal Singh And 2 Others

Case Reference: 2024:AHC:175916

The Allahabad High Court bench of Justice Neeraj Tiwari affirmed that the enforcement of an award through its execution can be initiated anywhere in the country where the decree can be executed and there is no requirement of obtaining a transfer of the decree from the Court which would have jurisdiction over the arbitral proceeding

Whether Non-Signatory Bound By Arbitration Agreement Can Be Decided By Tribunal, Not Referral Court U/S 11 Of Arbitration Act: Allahabad HC

Case Title: Ram Taulan Yadav And Another versus Himanshu Kesarwani And 2 Others

Case Reference: ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 95 of 2023

The Allahabad High Court bench of Justice Manoj Kumar Gupta affirmed that referral court under section 11 of the Arbitration Act stage cannot examine as to whether the non-signatory is bound by the arbitration agreement or not. Such an issue requires factual determination which can be decided by the arbitral tribunal under section 16 of the Arbitration Act.

Calcutta High Court

Calcutta High Court Injuncts State Govt, WBIDC From Disposing Of Property In KMC Area Over Essex Arbitral Award Case

Case Title: ESSEX DEVELOPMENT INVESTMENTS MAURITIUS LIMITED VS GOVERNMENT OF WEST BENGAL AND ANOTHER

Case Reference: EC-COM/447/2024

The Calcutta High Court bench of Justice Shampa Sarkar has injuncted the West Bengal Government and WBIDC from disposing of subject matter of the Award in the execution petition filed by the award-holder in Essex case.

Chhattisgarh High Court

Enforcement Of Foreign Award Cannot Be Refused U/S 48 Of Arbitration Act Unless It Is Against Public Policy: Chhattisgarh HC

Case Title: Bulk Trading S.A. Having versus Mahendra Sponge And Power Ltd.

Case Reference: ARBAP No. 9 of 2023 and ARBAP No. 10 of 2023

The Chhattisgarh High Court bench of Justice Deepak Kumar Tiwari has held that enforcement of a foreign award cannot be refused under section 48 of the Arbitration Act unless it is shown that the award is against the public policy of India. The court further observed that even during Covid-19 pandemic, the Banking Sector continued to provide essential services and in the Notification, said Sector is under exception, so the award(s) could not be said to be contrary to public policy of India.

Delhi High Court

Court U/S 45 Of Arbitration Act Must Refer Parties To Arbitration Unless Agreement Is Void Or Inoperative: Delhi High Court

Case Title: BALAJI STEEL TRADE versus FLUDOR BENIN S.A. AND ORS

Citation: 2024 LiveLaw (Del) 1239

The Delhi High Court bench of Justice Dinesh Kumar Sharma affirmed that Section 45 of the Arbitration Act casts a statutory mandate on Courts to refer parties to an arbitration agreement to arbitration. The only limited exception carved in Section 45 is if the Court is of the prima facie opinion that the arbitration agreement is (a) null and void; or (b) in-operative; or (c) incapable of being performed. Unless such grounds are made out, the Court has no discretion but to refer the parties to arbitration.

Pre-Requirement Of Conciliation Before Invoking Arbitration Can't Prevent Filing Of Application U/S 11 Of Arbitration Act: Delhi High Court

Case Title:CENTAURUS GREEN ENERGY PRIVATE LIMITED versus RAJSHREE EDUCATIONAL TRUST

Citation: 2024 LiveLaw (Del) 1245

The Delhi High Court bench of Justice Subramonium Prasad has held that pre requirement of conciliation in an arbitration clause before invoking the arbitration cannot be a bar to file an application under section 11 of the Arbitration Act seeking appointment of an Arbitrator.

Objections On Capacity Of Party To Initiate Arbitration Must Be Addressed Before Tribunal, Not While Appointing Arbitrator: Delhi HC

Case Title: Kanwar Singh Yadav vs. Delhi Tourism and Transport Development Corporation Limited

Citation: 2024 LiveLaw (Del) 1247

The Delhi High Court bench of Justice Sachin Datta has held that the objections as regards the capacity of the party to initiate arbitration is an aspect which is necessarily required to be gone into the arbitration proceedings, however, the same could not preclude the constitution of an Arbitral Tribunal. The court held that a party may raise appropriate jurisdictional/preliminary objections before the Arbitral Tribunal as regards the maintainability of the arbitration and/or the arbitrability of the claim.

Court U/S 34 Of Arbitration Act Cannot Re-Appreciate Evidence And Substitute Arbitrator's Conclusion: Delhi High Court

Case Title: In-Time Garments Pvt. Ltd. versus HSPS Textile Pvt. Ltd.

Citation: 2024 LiveLaw (Del) 1257

The Delhi High Court bench of Justice Subramonium Prasad affirmed that under Section 34 of the Arbitration Act the Court cannot re-appreciate evidence and substitute its own conclusion to the one arrived at by the Arbitrator even though a different conclusion can be arrived at on re-appreciating evidence

Plausible View Taken By Arbitrator Based On Facts Of Case Cannot Be Interfered With U/S 34 Of Arbitration Act: Delhi High Court

Case Title: Netaji Subhash Institute Of Technology Versus M/S Surya Engineers & Another

Citation: 2024 LiveLaw (Del) 1263

The Delhi High Court bench of Justice Jasmeet Singh affirmed that once an arbitrator has taken a plausible view based on the facts of the case, such a view cannot be interfered with under section 34 of the Arbitration Act.

Merit Based Review Of Arbitral Award Is Impermissible Under Section 37 Of Arbitration Act: Delhi High Court

Case Title: Dr. R.N. Gupta Technical Educational Society versus M/s Intec Capital Ltd.

Citation: 2024 LiveLaw (Del) 1269

The Delhi High Court bench of Justices Vibhu Bakhru and Sachin Datta affirmed that the scope of jurisdiction under Section 34 and Section 37 of the Act is not akin to normal appellate jurisdiction. It is well-settled that that a merit based review of an arbitral award involving reappraisal of factual findings is impermissible. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle courts to reverse the findings of the Arbitral Tribunal.

Arbitral Tribunal Imposing Exorbitant Interest Not Violative Of Fundamental Policy Of Indian Laws: Delhi High Court

Case Title: M/s BPL Limited v. M/s Morgan Securities & Credits Pvt. Ltd.

Case Number: FAO(OS)(COMM) NO. 46/2019

The Delhi High Court bench of Justice Yashwant Varma and Justice Dharmesh Sharma, while hearing a review petition of an appeal filed by the appellant u/s 37(1)(b) of the A&C Act read with Section 13 of the Commercial Court Act observed that the exuberant interest rate charged in the commercial world depends upon the transparency of the terms and conditions of the contract entered into. The bench further observed that the arbitral tribunal imposing a high interest rate cannot be said to violate the fundamental policy of Indian laws.

Court's Supervisory Role Over Arbitral Proceedings Would Be Determined As Per CPC If No Neutral Location Is Specified: Delhi High Court

Case Title: M/S Srinivasa Construction Corporation Pvt Ltd Versus Irrigation Works Circle, Through Superintendent Engineer District, Uttar Pradesh

Citation: 2024 LiveLaw (Del) 1273

The Delhi High Court bench of Justice Jasmeet Singh affirmed that if there is a neutral location specified in the contract data, that location would be the place of arbitration and the court having supervisory jurisdiction over the place would have jurisdiction. If no such location is specified, the provisions of the CPC from sections 16 to 20 would be attracted for determining the supervisory jurisdiction of the court.

Arbitration Clause From Another Contract Can Be Incorporated Into Contract Only By Specific Reference: Delhi High Court

Case Title: Unthinkable Solutions LLP Versus Ejohri Jewels Hub Pvt Ltd

Citation: 2024 LiveLaw (Del) 1274

The Delhi High Court bench of Justice Subramonium Prasad affirmed that the arbitration clause from another contract can be incorporated into the contract when there is a clear intention that arbitration clause contained in another contract would also be incorporated in the contract by which the disputes would be resolved.

Award In Which Damages Are Awarded In Absence Of Proven Loss Or Injury Can Be Set Aside U/S 34 On Grounds Of Patent Illegality: Delhi HC

Case Title: Indian Oil Corporation Ltd. Versus M/s Fiberfill Engineers

Citation: 2024 LiveLaw (Del) 1281

The Delhi High Court bench of Justices Vibhu Bakhru and Sachin Datta has held that awarding damages by Arbitrator in the absence of proven injury or loss qualifies to be a patent illegality under section 34 of the Arbitration Act. Such an award is liable to be set aside under section 34.

Himachal Pradesh High Court

Deposit Of Awarded Amount In Court Registry Sufficient To Extinguish Liability Arising Under Award: Himachal Pradesh High Court

Case Title: Oriental Insurance Company Versus Kuldip Dogra

Citation: 2024 LiveLaw (HP) 76

The Himachal Pradesh High Court bench of Mr. Justice Bipin Chander Negi has held that the deposit of awarded amount in pursuance of an order of the court into the court registry would be equivalent to payment under section 31 of the Arbitration Act. This will extinguish the liability arising under the award for which execution petition would then not be maintainable.

While Hearing Appeal U/S 37 Of Arbitration Act, Court Must Confine Itself To Grounds U/S 34 Of Arbitration Act: Himachal Pradesh HC

Case Title: National Highway Authority of India.Versus Vishesar (Since deceased) through LRs.

Citation: 2024 LiveLaw (HP) 77

The Himachal Pradesh High Court bench of Ms. Justice Jyotsna Rewal Dua affirmed that supervisory role of Courts is very restricted in dealing with appeals under Section 37 of the Arbitration Act. Scope of interference in a petition under Section 34 of the Act is very narrow. Jurisdiction under Section 37 of the Act is narrower.Therefore, Courts must be very conservative while dealing with arbitral awards and confine themselves to the grounds strictly available under Section 34 of the Act.

Himachal Pradesh High Court Reiterates Limited Scope Of Court Intervention U/S 34 & 37 Of Arbitration & Conciliation Act

Case Title: National Highways Authority of India vs. Devi Ram & Others

Citation: 2024:HHC:11447

The Himachal Pradesh High Court bench of Justice Virender Singh has reiterated that the scope of interference with arbitral awards under Sections 34 and 37 of the Arbitration and Conciliation Act, 1996, is narrow and not akin to appellate jurisdiction. Courts may only interfere if the award exhibits patent illegality or arbitrariness that goes to the root of the matter.

Jammu and Kashmir and Ladakh High Court

Fresh Arbitrator Can Be Appointed By Court U/S 14 Of Arbitration Act If Proposed Arbitrator Is Ineligible U/S 12(5): J&K And Ladakh HC

Case Title: M/s Mir Associates Construction Company Vs. Superintending Engineer Hydraulic Circle Doda and Anr.

Citation: 2024 LiveLaw (JKL) 313

The Jammu & Kashmir and Ladakh High Court bench of Chief Justice Tashi Rabstan affirmed that when the arbitration clause is found to be foul with the amended section 12(5) of the Arbitration Act, the appointment of the arbitrator would be beyond the pale of the arbitration agreement. In such eventuality, the court can be approached under section 14 of the Arbitration Act for seeking substitution of the arbitrator.

Petition U/S 11 Of Arbitration Act Is Maintainable If Statutory Remedy Before Invoking Arbitration Clause Is Exhausted: J&K And Ladakh HC

Case Title: M/s Pardeep Electricals and Building Pvt. Ltd. Vs. Union of India and Ors.

Citation: 2024 LiveLaw (JKL) 314

The Jammu & Kashmir and Ladakh High Court bench of Chief Justice Tashi Rabstan has held that once the statutory remedy under contract is exhausted, arbitration clause can be invoked and appointment of the arbitrator can be sought under section 11 of the Arbitration Act.In this case, the respondent had to constitute Dispute resolution Board (DRB) within 30 days after execution of the contract for resolving any dispute arising between the parties but no DRB was constituted.

Madhya Pradesh High Court

Award Can Be Set Aside U/S 34 Of Arbitration Act If Arbitrator Travels Beyond Arbitration Agreement: Madhya Pradesh HC

Case Title: UNITED INDIA INSURANCE CO. LTD. AND OTHERS Versus RATLAM SYENTHETIC ROPE MANUFACTURING COMPANY THROUGH SMT. REKHA AND OTHERS

Case Reference: ARBITRATION APPEAL No. 8 of 2018

The Madhya Pradesh High Court bench of Justice Subodh Abhyankar affirmed that if arbitrator travels beyond the terms of the arbitration agreement while passing an award, such an award is liable to be set aside under section 34 of the Arbitration Act.

Punjab and Haryana High Court

Punjab & Haryana High Court Reiterates Limited Scope For Interference U/S 34 & 37 Of Arbitration Act, Upholds Award In Land Development Dispute

Case Title: Active Promoters Private Limited vs. Desh Raj and Others

Case Number: FAO-CARB-3-2020 (O&M)

The Punjab and Haryana High Court bench of Justices Arun Palli and Vikram Aggarwal has reiterated that the scope of interference with an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996, is narrow, and the appellate jurisdiction under Section 37 is even more circumscribed. The court reiterated that jurisdiction under Section 34 and Section 37 of the Act is not akin to normal appellate jurisdiction. It held that interference with an arbitral award is permissible only if it conflicts with public policy or is patently illegal. The court reiterated that an award should not be set aside simply based on an alternative interpretation of the agreement.

Whether Claim Is Barred By Res Judicata Cannot Be Decided By Court At S.11 Stage Of Arbitration Act: P&H High Court

Case Title: M/s Rise Projects Private Limited Versus Municipal Corporation, Faridabad

Case Reference: ARB-108-2020

The Punjab and Haryana High Court bench of Justice Survir Sehgal affirmed that the question whether a claim is barred by res judicata, does not arise for consideration in a proceedings under Section 11 of the Arbitration Act. Such an issue will have to be examined by the arbitral tribunal under section 16 of the Act.

S.12(5) Of Arbitration Act Would Be Applicable To Arbitral Proceedings Which Commenced Before 2015 Amendment Act: P&H High Court

Case Title: SP Singla Constructions Pvt. Ltd. Vs. State of Haryana and others

Case Reference: ARB-337-2017 (O&M)

The Punjab and Haryana High Court bench of Justice Suvir Sehgal has held that the provision of Section 12(5) of the Arbitration Act would applicable to arbitral proceedings which were initiated prior to 2015 Amendment came into force and continued thereafter.

Rajasthan High Court

Referral Court Has Limited Role U/S 11 Of Arbitration Act To Verify Existence Of Arbitration Agreement: Rajasthan High Court

Case Title: PME Power Solutions (India) Ltd.Versus Airen Metals Pvt. Ltd

Citation: 2024 (LiveLaw) Raj 352

The Rajasthan High Court bench of Justice Sudesh Bansal affirmed that the scope of arbitration application, in view of Section 11(6A) of the Arbitration Act, 1996 is confined and limited to the extent of examining the existence of arbitration agreement between the parties for resolution of dispute.

Unless Appointment Of Arbitrator Under Arbitration Clause Is Ex-Facie Valid, Jurisdiction Of Court U/S 11(6) Cannot Be Barred: Rajasthan HC

Case Title: Surendra Sarda S/o Late Shri Kanhaiyalal Sharda Versus Shri Maheshwari Samaj and Ors.

Citation: 2024 (LiveLaw) Raj 351

The Rajasthan High Court bench of Justice Sudesh Bansal affirmed that unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law.