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All India Arbitration Cases Half Yearly Digest: January To June, 2022
Parina Katyal
27 Oct 2022 7:24 PM IST
Supreme Court: Arbitration Act - Dispose Sec 11(5) & 11(6) Applications Pending For Over 1 Year Within 6 Months : Supreme Court To High Courts Case Title: M/s Shree Vishnu Constructions versus The Engineer in Chief Military Engineering Service And Ors. Citation: 2022 LiveLaw (SC) 523 The Supreme Court of India has made strong observations emphasising the need for High...
Supreme Court:
Case Title: M/s Shree Vishnu Constructions versus The Engineer in Chief Military Engineering Service And Ors.
Citation: 2022 LiveLaw (SC) 523
The Supreme Court of India has made strong observations emphasising the need for High Courts to decide applications for appointments of Arbitrators at the earliest.
A Bench comprising Justice MR Shah and Justice BV Nagarathna has observed that if the arbitrators are not appointed at the earliest and the applications under Sections 11(5) and 11(6) of the Arbitration Act for appointment of arbitrators are kept pending for a number of years, it will defeat the object and purpose of the enactment of the Act and it may lose the significance of an effective Alternative Dispute Resolution Mechanism.
Case Title: Swadesh Kumar Agarwal versus Dinesh Kumar Agarwal
Citation: 2022 LiveLaw (SC) 454
The Supreme Court has observed that a dispute/controversy on the mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a) of the Arbitration and Conciliation Act cannot be decided on an application filed under section 11(6) of the Act. The Supreme Court ruled that such a dispute has to be raised before the "court", as defined under section 2(e) of the Act.
"Group Of Companies" Doctrine Needs Relook, Says Supreme Court; Refers Issues To Larger Bench
Case Title: Cox and Kings Limited versus SAP India Private Limited and Anr.
Citation: 2022 LiveLaw (SC) 455
The Supreme Court has referred various aspects regarding the application of the doctrine of 'Group of Companies', which is often utilised to bind non-signatories to an Arbitration Agreement, to a larger Bench.
"There is a clear need for having a relook at the doctrinal ingredients concerning the group of companies doctrine", observed a Bench comprising Chief Justice of India, N.V. Ramana, Justices Surya Kant and A.S. Bopanna.
Case Title: Delhi Airport Metro Express Pvt. Ltd. versus Delhi Metro Rail Corporation
Citation: 2022 LiveLaw (SC) 452
The Supreme Court has held that the power of the arbitral tribunal to award interest is subject to an agreement between the parties to the contrary. The Court held that the tribunal cannot award interest if the parties have agreed otherwise.
The Division Bench of Justice L. Nageshwar Rao and Justice B.R. Gavai held that when the parties have an agreement between themselves that governs the issue of interest, the arbitrator would lose its discretion and will be guided by the agreement between the parties.
Case Title: Swadesh Kumar Agarwal versus Dinesh Kumar Agarwal & Ors.
Citation: 2022 LiveLaw (SC) 454
The Supreme Court has ruled that there is a difference between the arbitrator appointed under Section 11(5) and under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) and failing any written agreement between the parties on the procedure for appointing an arbitrator (s) under Section 11(2), application for appointment of arbitrator (s) shall be maintainable under Section 11(5) and not under Section 11(6).
The Bench of Justices M.R. Shah and B.V. Nagarathna held that once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent, the arbitration agreement cannot be invoked for the second time.
Case Title: Oil and Natural Gas Corporation Ltd. versus Discovery Enterprises Pvt. Ltd
Citation: 2022 LiveLaw (SC) 416
The Supreme Court, in a judgment delivered on 27th April 2022, explained the 'Group of companies' doctrine which postulates that an arbitration agreement entered into by a company within a group of companies, can bind its non-signatory affiliates or sister concerns if the circumstances demonstrate a mutual intention of the parties to bind both the signatory and affiliated, non-signatory parties.
The bench comprising Justices DY Chandrachud, Surya Kant and Vikram Nath observed that a non-signatory may be bound by the arbitration agreement where: (i) There exists a group of companies; and (ii) Parties have engaged in conduct or made statements indicating an intention to bind a non-signatory.
Case Title: M/s Shree Vishnu Constructions versus The Engineer in Chief Military Engineering Service
The Supreme Court has decided to examine whether Section 11(6) as amended by the Arbitration & Conciliation (Amendment Act), 2015 ("2015 Amendment Act") would be applicable to arbitral proceedings commenced before the Court prior to when the 2015 Amendment came into force on 23.10.2015, or the cases wherein notice was issued prior to 23.10.2015 or cases where notice invoking arbitration was issued prior to the amendments.
A Division Bench comprising Justices M.R. Shah and B.V. Nagarathna noted that there were divergent views on this issue.
Case Title: Indian Oil Corpn. Ltd versus U.B. Engineering Ltd and Anr.
Citation: 2022 LiveLaw (SC) 409
The Supreme Court has held that the arbitral tribunal can grant post-award interest on the sum of the award which also includes the interest component.
The Bench comprising Justice M.R. Shah and Justice B.V. Nagarathna reiterated that the word sum used under Section 31(7) of the A&C Act includes the interest awarded on the substantive claims, therefore, the post award interest would be on both the amount awarded in respect of the substantive claims and the interest awarded on such claims.
Case Title: M/s Shree Vishnu Constructions versus The Engineer in Chief Military Engineering Service and Ors.
The Supreme Court has asked its Registry to seek particulars of the pending applications under Section 11(6) of the Arbitration and Conciliation Act, 1996 from all High Courts. It noted that the same shall reach the Apex Court by 06.05.2021.
A Bench comprising Justices M.R. Shah and B.V. Nagarathna was hearing a plea assailing an order passed by the Telangana High Court, which had decided to dismiss an application filed under Section 11(6) of the Arbitration Act for appointment of Arbitrator after 4 years.
Case Title: Haryana Urban Development Authority, Karnal versus M/s. Mehta Construction Company & Anr.
The Supreme Court has held that apart from the grounds mentioned in Section 34(2)(b) of the Arbitration and Conciliation Act, 1996, an arbitral award can be set aside only when it is vitiated by patent illegality, and not on ground of erroneous application of law or by misappreciation of evidence.
Case Title: Bihar Industrial Area Development Authority & Ors. v. Rama Kant Singh
The Supreme Court has observed that Article 137 of the Limitation Act, 1963 would have no application in arbitration proceedings commenced under Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (the 2008 Act) when there is no arbitration agreement between the parties.
The Division Bench of Justice Abhay S. Oka and Justice Ajay Rastogi also observed that in absence of an arbitration agreement, the Arbitration Act 1996 will also have no application and the reference to the Arbitration Tribunal and the arbitral proceedings will be governed by the 2008 Act.
Case Title: M/S Chopra Fabricators and Manufacturers Pvt. Ltd. versus Bharat Pumps And Compressors Ltd. & Anr.
The Supreme Court has expressed concerns at the pendency of execution proceedings for executing the award in Arbitration Matters before subordinate courts/executing courts in the State of Uttar Pradesh. The Court observed that if the Award, under the Arbitration Act, is not executed at the earliest, it will frustrate the purpose and object of the Arbitration Act as well as the Commercial Courts Act.
Case Title: M/S Ravi Ranjan Developers Pvt Ltd versus Aditya Kumar Chatterjee
The Supreme Court observed that an application under Section 11(6) of the Arbitration and Conciliation Act for the appointment of an Arbitrator/Arbitral Tribunal cannot be moved in a High Court irrespective of its territorial jurisdiction. "It could never have been the intention of Section 11(6) of the A&C Act that arbitration proceedings should be initiated in any High Court in.
Case Title: Gujarat Housing Board & Anr. versus Vandemataram Projects Private Limited
The Supreme Court has observed that invoking Article 226 for seeking relief in a contractual matter where there is an existing arbitration clause is not an appropriate remedy and neither can the High Court examine the same.
Case Title: Oil and Natural Gas Corporation Ltd. versus Afcons Gunanusa
The Supreme Court, while hearing on the issue of fixation of standards for fees for arbitrators, has emphasized on "upfront" fixation of arbitrator's fee.
The Bench of Justices D.Y. Chandrachud, Sanjiv Khanna and Surya Kant was considering the issue regarding the mandatory nature of the 'model' fee scale for arbitrators prescribed under the Fourth Schedule of the Arbitration and Conciliation Act 1996.
Case Title: Evergreen Land Mark Pvt. Ltd. versus John Tinson and Company Pvt. Ltd. and Anr.
Citation: 2022 LiveLaw (SC) 389
The Supreme Court has held that the Arbitral Tribunal cannot pass an order by way of interim measure under Section 17 of the Arbitration and Conciliation Act, 1996 to deposit the amount involved in the dispute, in a case where the liability to pay such an amount is seriously disputed and the same is yet to be adjudicated upon by the Tribunal.
A Bench comprising of Justices M.R. Shah and B.V. Nagarathna partly allowed an appeal assailing the order of the Delhi High Court, which affirmed the order passed by the Arbitral Tribunal under Section 17 directing the appellant to deposit the entire rental amount even when the liability of the said amount was yet to be considered by it.
Case Title: Atlanta Ltd. versus Union of India
Citation: 2022 LiveLaw (SC) 63
The Supreme Court has reiterated that the Appellate Court exercising power under Section 30 and 33 of the Arbitration Act, 1940 ought not to reassess or re appreciate evidence or examine the sufficiency of the evidence.
Case Title: I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd.
Citation: 2022 LiveLaw (SC) 2
The Supreme Court has observed that merely because an application is filed under Section 34(4) of the Arbitration and Conciliation Act by a party, it is not always obligatory on the part of the Court to remit the matter to Arbitral Tribunal.
The bench ruled that the discretionary power conferred under Section 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which are already recorded in the award. Under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award.
Case Title: Haryana Tourism Ltd. v. Kandhari Beverages Ltd.
Citation: 2022 LiveLaw (SC) 38
The Supreme Court observed that a High Court cannot enter into the merits of the claim in an appeal under Section 37 of the Arbitration and Conciliation Act, 1996.
Case Title: Premier Sea Foods v. Caravel Shipping Services
Citation: 2022 LiveLaw (SC) 54
The Supreme Court has held that a reference to Section 37 instead of Section 34 of the Arbitration and Conciliation Act, 1996 would not matter as long as the jurisdictional court has the power to adjudicate the appeal.
Arbitrator Can Grant Post-Award Interest On The Interest Amount Awarded: Supreme Court
Case Title: UHL Power Company Ltd. versus State of Himachal Pradesh
Citation: 2022 LiveLaw (SC) 18
The Supreme Court has observed that post-award interest can be granted by an Arbitrator on the interest amount awarded.
Case Title: Dr. A. Parthasarathy v. E Springs Avenues Pvt. Ltd
Citation: 2022 LiveLaw (SC) 199
The Supreme Court has observed that a Court, under Section 37 of the Arbitration and Conciliation Act, has no jurisdiction to remand the matter to the same Arbitrator unless it is so consented by both the parties.
Case Title: Mohammed Masroor Shaikh versus Bharat Bhushan Gupta
Citation: 2022 LiveLaw (SC) 120
The Supreme Court has observed that while dealing with petition under Section 11 of the Arbitration and Conciliation Act, the Court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable. The bench added that in such case, the issue of non-arbitrability is left open to be decided by the Arbitral Tribunal.
Case Title: Durga Welding Works versus Chief Engineer
Citation: 2022 LiveLaw (SC) 9
The Supreme Court has held that a party to the arbitration agreement can appoint an arbitrator even after an Arbitration Petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed by the other party before the High Court for appointment of an arbitrator if the party has not been given due notice of the same.
Case Title: Ellora Paper Mills Ltd. versus State of Madhya Pradesh
Citation: 2022 LiveLaw (SC) 8
The Supreme Court held that an arbitral tribunal constituted as per an arbitration clause before the 2015 amendment to the Arbitration and Conciliation Act 1996 will lose its mandate if it violates the neutrality clause under Section 12(5) read with the Seventh Schedule, which were incorporated through the 2015 amendment.
Case Title: Indian Oil Corporation Ltd. versus Shree Ganesh Petroleum Rajgurunagar,
Citation: 2022 LiveLaw (SC) 121
The role of the Arbitrator is to arbitrate within the terms of the contract, the Supreme Court has observed. The bench comprising Justices Indira Banerjee and Abhay S. Oka observed that an award can be said to be patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract.
Case Title: Mutha Construction versus Strategic Brand Solutions (I) Pvt. Ltd.
Citation: 2022 LiveLaw (SC) 163
The Supreme Court observed that the principle that a court while deciding a petition under Section 34 of the Arbitration and Conciliation Act has no jurisdiction to remand the matter to the Arbitrator for a fresh decision is applicable only when the said petition is decided on merits.
High Courts:
Allahabad High Court:
Case Title: Bharat Pumps and Compressors versus Chopra Fabricators
Citation: 2022 LiveLaw (AB) 269
The Allahabad High Court has held that an application under Section 47 of the CPC is not maintainable in the execution proceedings under Section 17 of the Arbitration Act, 1940.
The Single Bench of Justice Piyush Agarwal held that an arbitration award is not a decree as defined under Section 2(2) of CPC and therefore, the objection under section 47 of CPC, which can be filed only in execution of a decree (as defined under section 2(2) CPC), is not maintainable in the proceedings seeking execution of the award.
Case Title: Indian Farmers Fertilizers Cooperative Ltd. versus Manish Engineering Enterprises
The Allahabad High Court has held that the Court for the purpose of an application under S. 29A of the A&C Act would only be the High Court that appointed the arbitrator.
The Single Bench of Justice Rohit Ranjan Agarwal held that the Principal Civil Court does not have the jurisdiction to entertain an application for an extension of time. The Court held that Sub-section 6 of Section 29A allows the Court to substitute the arbitrator(s) and conferring this power on the Principal Civil Court would lead to an inconceivable situation where the mandate of an arbitrator appointed by the High Court could be substituted by an inferior Court.
Case Title: CG Power and Industrial Solutions Ltd. versus U.P. Power Transmission Corporation Ltd.
Citation: 2022 LiveLaw (All) 191
The Allahabad High Court has held that the embargo under S.86 of the Electricity Act which provides that only the Regulatory Commission can appoint an arbitrator does not apply when the agreement is for supply simpliciter and does not have an element of transmission, distribution, and trading of electricity, and that the Court can appoint an arbitrator in such cases.
The Single Bench of Justice Sangeeta Chandra held that a party that has supplied some material for the construction of an electricity sub-station would not fall within the meaning of a licensee or supplier under the Electricity Act, and when the contract is purely commercial arising out of a contract for supply and does not involve an element of trade in electricity, the provisions of Electricity Act are not attracted.
Andhra Pradesh High Court:
Case Title: VR Commodities Private Limited versus Norvic Shipping Asia Pte. Ltd.
The Andhra Pradesh High Court has ruled that an arbitration clause contained in a substantive agreement is an independent and autonomous clause, and even if the substantive agreement is not duly stamped as per the Indian Stamp Act, 1899, the arbitration clause is admissible in evidence before the Court who can take into consideration the arbitration clause to decide an application for grant of interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Bench, consisting of Chief Justice Prashant Kumar Mishra and Justice M. Satyanarayana Murthy, held that since the arbitration agreement is not chargeable with stamp duty under the Indian Stamp Act, by applying the doctrine of separability the arbitration agreement is admissible in evidence before the Court since it is a separate contract.
Bombay High Court:
Case Title: D.K. Infrastructure Pvt. Ltd. versus Kishore Agarwal and Anr.
The Bombay High Court has held that once the Court is satisfied regarding the existence of an arbitration agreement between the parties, the Court can decline to make a reference to arbitration only if it is satisfied that the dispute is non-existent or that it has become a deadwood.
The Single Bench of Justice N.J. Jamadar reiterated that the scope of enquiry under Section 11(6) of the Arbitration and Conciliation Act, 1996 is extremely limited and that the arbitrability of the dispute is required to be determined by the Arbitral Tribunal.
Case Title: Choice Developers versus Pantnagar Pearl CHS Ltd. & Ors.
The Bombay High Court has reiterated that the Court is free to pass an order under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) to grant interim measures of protection against a third party who is impleaded in the petition filed under Section 9.
The Single Bench of Justice G.S. Kulkarni held that the minority members of a Society cannot act against the will of the majority members of the Society and obstruct the redevelopment work in the Society.
Case Title: HMG Industries Ltd. versus Canara Bank
Citation: 2022 LiveLaw (Bom) 224
The Bombay High Court has held that even though a Scheme of Compromise entered into under Section 391 of the Companies Act, 1956 overrides all the agreements between the affected parties, arbitral proceedings cannot be imposed by a Company on a Debenture Trustee by virtue of the said Scheme only, in the absence of an arbitration agreement between them.
The Single Bench of Justice A.K. Menon ruled that the Debenture Trustee was an independent obligation of the Company and thus, the arbitration clause contained in the Scheme was not binding on the Debenture Trustee.
Case Title: Priya Rishi Bhuta & Anr. versus Vardhaman Engineers and Builders & Ors.
Citation: 2022 LiveLaw (Bom) 221
The High Court of Bombay has held that mere pendency of a Civil Suit is not an absolute bar to a petition under Section 11 of the A&C Act as long as the petitioner can withdraw its suit before the defendant files its statement on the issue.
The Single Bench of Justice G.S. Kulkarni held that it is also permissible for the Civil Court to consider an application of the plaintiff to permit withdrawal of the suit when there is an arbitration agreement, and refer the parties for arbitration.
Case Title: Ocean Sparkle Limited versus Oil and Natural Gas Corporation Ltd. & Ors.
The Bombay High Court recently has observed that set-off of unliquidated damages that are not ascertained or admitted against an undisputed claim is not tenable.
Single Bench of Justice G.S. Kulkarni reiterated that a Section 9 Court would not be unduly bound by procedural law contained in the Code of Civil Procedure, 1908, the underlying principle being to make arbitration an effective form of dispute resolution; and that a performance bank guarantee ("PBG") cannot be invoked contrary to the provision for its invocation in the PBG itself.
Case Title: Praful A. Mehta versus Nainesh M. Gandhi
The Bombay High Court has ruled that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator.
The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm.
Case Title: M/s Atul & Arkade Realty versus I.A. & I.C. Pvt. Ltd
The Bombay High Court has held that when an allegation as to the fraud and forgery committed in the execution of the agreement is made and there is a duality of expert opinion on the genuineness of the agreement, the court shall refer the matter to the arbitrator.
The Single Bench of Justice N.J. Jamadar has held that when the underlying document in which the arbitration agreement is contained is alleged to be affected by fraud and forgery and there is uncertainty as to the veracity of the signatures on the agreement, the Court shall appoint the arbitrator to decide on the dispute.
Case Title: Bafna Motors Private Limited versus Amanulla Khan
The Bombay High Court has reiterated that where the parties to a Leave and License Agreement are governed by an Arbitration Agreement, determination of the dispute relating to recovery of the security deposit under the said License Agreement through arbitration is legally permissible.
The Single Bench of Justice N.J. Jamadar held that the expression "charges" as provided under Section 41 of the Presidency Small Cause Courts Act, 1882, which confers exclusive jurisdiction to the Small Causes Court with respect to a dispute between a licensor and a licensee relating to recovery of an immovable property situated in Greater Bombay or recovery of licence fee, charges or rent, cannot subsume in its fold a claim for damages.
Case Title: Malvika Rajnikant Mehta & Ors versus JESS Construction
The High Court of Bombay has held that simply because the arbitration agreement provides for the name of the arbitrator, the same would not amount to a waiver of notice under Section 21 of the A&C Act.
The Single Bench of Justice N.J. Jamadar has held that the use of the word "Unless otherwise agreed by the parties" in Section 21 means that the parties can dispense with the requirement of giving a notice of arbitration, however, the mere fact that the parties have named the Arbitrator would not imply that the parties have agreed to waive the requirement of the notice contemplated under Section 21 of the Act.
Case Title: Jasani Realty Pvt. Ltd. versus Vijay Corporation
Citation: 2022 LiveLaw (Bom) 162
The High Court of Bombay has held that merely because an application under S.7 of IBC is filed before the adjudicating authority which is pending consideration does not oust the jurisdiction of the High Court to entertain an application filed under S. 11 of the A&C Act.
The Single Bench of Justice G.S. Kulkarni has held that an application filed under S.7 of the IBC creates an erga omnes effect or involves third party rights only after it has been admitted by the adjudicating authority, however, before its admission, there is no embargo on the power of the court to decide on an application filed under S.11 of the A&C Act for the appointment of an arbitrator.
Case Title: Purushottam s/o Tulsiram Badwaik and Ors. versus Anil s/o Hariram Malewar and Ors
Citation: 2022 LiveLaw (Bom) 146
The Bombay High Court has ruled that a Court cannot appoint an Arbitrator when the only proceeding before it is an application for grant of interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act), solely on the ground that the opposite party has not objected to the appointment of an Arbitrator.
The Single Bench of Justice Manish Pitale held that even if an arbitration clause exists, appointment of an Arbitrator can only take place in accordance with the law. The Court added that merely because no objection is endorsed by the opposite party, a Court will not be foisted with the jurisdiction to appoint an Arbitrator.
Case Title: Chetan Iron LLP versus NRC Ltd.
Citation: 2022 LiveLaw (Bom) 157
The Bombay High Court has held that an application for interim relief in the form of specific performance of the contract would not be maintainable when the nature of the contract is determinable.
The Single Bench of Justice G.S. Kulkarni has held that specific performance cannot be granted in respect of an agreement that can be terminated by either of the parties without assigning any reasons. It held that Section 14(1)(c) and Section 41(e) of the Specific Relief Act would be attracted when the interim relief for specific performance is prayed for in respect of an agreement that is in its nature determinable.
Case Title: Tagus Engineering Private Limited & Ors. versus Reserve Bank of India & Anr.
AND IDFC First Bank Limited versus Bell Invest India Limited & Anr.
Citation: 2022 LiveLaw (Bom) 127
The Bombay High Court has ruled that remedy against orders passed under Section 16 of the Arbitration and Conciliation Act, 1996 lies elsewhere and the petitioners, aggrieved by the orders passed under Section 16, cannot file Writ Petitions under Article 226 or Article 227 of the Constitution of India on the ground of 'exceptional circumstances'.
The Bench, consisting of Justices G.S. Patel and Madhav J. Jamdar, held that it is impermissible for the Court to exercise jurisdiction under Article 226 of the Constitution even on questions with respect to the jurisdictional competence of an Arbitral Tribunal, except in cases where the arbitral tribunal is a statutory tribunal created by a statute.
Court Does Not Have Adjudicatory Powers Under Section 27 Of The A&C Act: Bombay High Court
Case Title: Dilip s/o. Bhavanji Shah versus Errol Moraes
Citation: 2022 LiveLaw (Bom) 130
The Bombay High Court has ruled that the Court does not have the jurisdiction under Section 27 of the Arbitration and Conciliation Act, 1996 (A&C Act) to consider the legality of the reasons set out by the arbitral tribunal in its order permitting the examination of a witness.
The Single Bench of Justice G.S. Kulkarni ruled that once the arbitral tribunal had formed a prima facie opinion that a particular witness is required to be examined by a party in the arbitral proceedings, the reasons laid down by the tribunal in its order cannot be revisited and scrutinized by the Court, since proceedings under Section 27 of the A&C Act are not in the nature of an appeal and the Court does not have any adjudicatory powers under Section 27.
Case Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd.
Citation: 2022 LiveLaw (Bom) 133
The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties.
The Single Bench of Justice G.S. Kulkarni held that unilateral invoices cannot bring about an arbitration agreement between the parties.
Case Title: Wadhwa Group Holdings Pvt. Ltd. versus Homi Pheroze Ghandy and Anr.
Citation: 2022 LiveLaw (Bom) 134
The High Court of Bombay has held that when an award is set aside for other reasons and not on merit, the parties are well within their rights to initiate fresh arbitration in respect of the same claims and pendency of an appeal against such an order is not a ground to refuse the appointment.
The Single Bench of Justice A.K. Menon has further held that an objection as to the claims being barred by Res Judicata, since an appeal is pending before the Court, is outside the limited scope of judicial examination permissible under Section 11 of the A&C Act. The Court held that invocation of arbitration cannot be subjected to the fate of the appeal.
Case Title: Pigments & Allieds Vs Carboline (India) Pvt. Ltd
Citation: 2022 LiveLaw (Bom) 72
The Bombay High Court has recently observed that once the parties have acknowledged that an arbitration clause was embodied in the substantive contract, insufficiency of stamps cannot prevent the court from disposing an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrators.
Calcutta High Court:
Case Title: NBCC (India) Ltd. versus The State of West Bengal and Ors.
Citation: 2022 LiveLaw (Cal) 214
The Calcutta High Court held that objections regarding the non-applicability of the MSMED Act to works contract can be decided in arbitration by MSME Council.
The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj upheld the order of the Single Bench whereby the petitioner was referred to arbitration before the MSME Council with a direction that his objection regarding the non-applicability of the MSMED Act as the contract was a works contract would be decided by the Arbitral Tribunal.
Case Title: New Eureka Travels Club versus South Bengal State Transport Corporation
Citation: 2022 LiveLaw (Cal) 200
The Calcutta High Court, while adjudicating upon an application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act), has held that it is a settled law that neither an interested party can be appointed as an arbitrator nor can the said interested party appoint an arbitrator to decide the disputes between the parties.
The Single Bench of Justice Shekhar B. Saraf observed that where a sole arbitrator is required to be appointed as per the parties, it is the Court that is to decide the sole arbitrator.
The Finding Of The MSME Council On Its Jurisdiction Is Not An Interim Award: Calcutta High Court
Case Title: Board of Trustees for the Syama Prasad Mookerjee Port, Kolkata versus Marinecraft Engineers Private Limited
Citation: 2022 LiveLaw (Cal) 194
The High Court of Calcutta has held that the decision of the MSME Council on its jurisdiction is an order under Section 16 of the A&C Act and it cannot be termed as an interim award that can be directly challenged under Section 34 of the A&C Act pending adjudication on the other issues.
The Single Bench of Justice Ravi Krishan Kapur has held that the order of the MSME Council that pertains to its jurisdiction has to pass the drill of Section 16(5) and Section 16(6) of the A&C Act and the aggrieved party must wait till the passing of the final award.
Case Title: Aditya Birla Finance Ltd versus Mcleod Russel India Ltd. and Ors.
Citation: 2022 LiveLaw (Cal) 189
The High Court of Calcutta has held that no direction can be passed to sell property to third party in Section 9 petition of the A&C Act.
The Single Bench of Justice Moushumi Bhattacharya has held that a direction to sell the subject property to an outsider who was not a party to the arbitral proceedings would result in the property going out of the girdle of the arbitration and the purpose of a Section 9 application itself would be defeated.
Case Title: Damodar Valley Corporation versus Reliance Infrastructure Ltd Case
Citation: 2022 LiveLaw (Cal) 164
The Calcutta High Court has ruled that financial hardship and financial indebtedness are sufficient grounds for modifying an order passed under Section 36 of the Arbitration and Conciliation Act, 1996 (A&C Act) to direct the award debtor to deposit the awarded amount by way of cash security.
The Single Bench of Justice Ravi Krishan Kapur held that the security directed to be deposited by a Court under Section 36 of the A&C Act should be real and realisable, and it ought not to be illusory
Post-Award Interest Is Not Advisory But A Mandate Of The A&C Act: Calcutta High Court
Case Title: Future Market Networks Limited versus Laxmi Pat Surana & Anr.
Citation: 2022 LiveLaw (Cal) 156
The Calcutta High Court has ruled that award of future or post-award interest is not advisory but a mandate of the Arbitration and Conciliation Act, 1996 (A&C Act) and it should be given its due weightage.
The Single Bench of Justice Moushumi Bhattacharya reiterated that post award interest is a safeguard against delayed payment of the amount awarded to the award holder.
Case Title: Sukumar Ray versus M/s Indo-Industrial Services and Ors.
Citation: 2022 LiveLaw (Cal) 140
The High Court of Calcutta has held that a subsequent agreement entered into between the parties need not contain a separate arbitration clause if it is made only to extend the validity of the original agreement that contained an arbitration clause.
The Single Bench of Justice Shekhar B. Saraf has held that if the new agreement provides for a specific reference to the terms of the earlier agreement and does not contain any clause other than the extension of the validity of the original agreement then there is no requirement to have an arbitration clause in the new agreement.
Case Title: M/s. Satyen Construction versus State of West Bengal & Ors.
Citation: 2022 LiveLaw (Cal) 124
The Calcutta High Court has ruled that the scope of Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure.
The Single Bench of Justice Ravi Krishan Kapur held that the right to withdraw the amount deposited by the award debtor, pursuant to an application filed for stay of operation of the award under Section 36(2), does not constitute as an interim protection under Section 9 of the A&C Act since it transgresses into the domain of enforcement of the award.
Case Title: Dr. Papiya Mukherjee versus Aruna Banerjea and Anr.
Citation: 2022 LiveLaw (Cal) 125
The Calcutta High Court has ruled that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party.
The Single Bench of Chief Justice Prakash Shrivastava held that though the legal representatives were not signatories to the arbitration agreement, but being the legal representatives of the signatory to an arbitration agreement, they were bound by the agreement.
Case Title: APL Metals Ltd. v. Mountview Tracom LLP & Ors.
Citation: 2022 LiveLaw (Cal) 113
The Calcutta High Court has observed that S.37 of the Arbitration & Conciliation Act (Arbitration Act) and S.13 of the Commercial Courts act exclude the applicability of Clause 15 of Letters Patent.
The Division Bench of Justice I.P. Mukerji and Justice Aniruddha Roy relied on the decision of the Apex Court in Union of India v. Simplex Infrastructures, (2017) 14 SCC 225, to hold that the Arbitration Act is a self-contained code and no appeal lies against an order which does not fall within the four corners of S. 37 of the Arbitration Act.
Case Title: Bharat Heavy Electricals Limited versus Optimal Power Synergy Ltd.
Citation: 2022 LiveLaw (Cal) 95
The Calcutta High Court has recently observed that the discretion conferred upon a Court to stay an award or a decree under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act) is broader in scope compared to Section 36(3) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) where the discretion is limited to granting stay of an award subject to appropriate conditions.
Chhattisgarh High Court:
Case Title: Bali Nagwanshi v. State of Chattisgarh, WA No. 81 of 2022
Citation: 2022 LiveLaw (Chh) 50
The High Court of Chhattisgarh has held that an arbitral award that is vitiated by fraud and criminal conspiracy would be void and non-est and can be set aside in a Writ Petition and the availability of an alternative remedy under Section 34 of the A&C Act is not a bar to the maintainability of the petition.
The Division Bench of Chief Justice Anup Kumar Goswami and Justice Rajendra Chandra Samant further held that on a plain reading of Section 34 of the A&C Act, it is revealed that fraud and conspiracy are not the ground to challenge an arbitral award.
The Court held that a writ petition would be maintainable if the challenge to the award is made on the touch-stone of offences of fraud and conspiracy.
Case Title: SEW Infrastructure Ltd. versus Micro & Small Enterprises Facilitation Council and Anr.
Citation: 2022 LiveLaw (Chh) 28
The High Court of Chhattisgarh has observed that the bar under S. 80 of the A&C Act which prevents the conciliator from acting as an arbitrator does not apply to the MSME Facilitation Council.
The Single Bench of Justice Rajendra Chandra Singh Samant has observed that provisions of S.80 of the A&C Act cannot override the provision of the MSMED Act to prevent the council from acting as an arbitrator. It has been held that the combined reading of Section 18 and 24 of the MSMED Act, 2006, show that there is an overriding effect over the provisions of Section 80 of the A&C Act, 1996.
Case Title: Devanshi Construction versus CPWD and others
Citation: 2022 LiveLaw (Chh) 29
The High Court of Chhattisgarh has observed that a S. 11 application is not maintainable if the Petitioner before invoking the jurisdiction of the Court has not complied with the pre-condition of referring the dispute to the Dispute Resolution Committee as provided under the Agreement.
The Chief Justice Mr. Arup Kumar Goswami held that the remedy of arbitration would only come into the picture after the Petitioner has successfully exhausted the other dispute resolution remedy provided in the agreement. The Court ruled that failure of the Petitioner to comply with a contractual stipulation would render the application for appointment of an arbitrator as pre-mature.
Delhi High Court:
Case Title: Pink City Expressway Private Limited versus National Highways Authority of India & Anr.
Citation: 2022 LiveLaw (Del) 598
The Delhi High Court has reiterated that power under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be exercised for directing specific performance of the contract itself.
The Division Bench of Justices Jyoti Singh and Anoop Kumar Mendiratta held that a direction to the opposite party to extend the contract for a further period would amount to granting specific relief of the contract, which is beyond the scope of the powers of the Court under Section 9 of the A&C Act. The Court ruled that power under Section 9 can only be exercised for preservation of the subject matter of the dispute till the decision of the Arbitral Tribunal.
Case Title: Juki India Private Limited versus M/s Capital Apparels Technology Private Limited
Citation: 2022 LiveLaw (Del) 536
The Delhi High Court has ruled that where an MoU has been signed by the parties for settlement of dues arising under an agreement, arbitration can be sought for violation of the terms of the MoU, even if the MoU does not contain an Arbitration Clause.
The Single Bench of Justice Anup Jairam Bhambhani held that since the MoU was a part of the dispute covered by the Arbitration Clause contained in the agreement, the dispute between the parties could be referred to arbitration.
Case Title: National Seeds Corporation Ltd. versus National Agro Seeds Corporation
Citation: 2022 LiveLaw (Del) 532
The High Court of Delhi has held that acknowledgment of an amount as due and payable under the ledger/statement of accounts, constitutes a fresh cause of action and extends the period of limitation.
The Division Bench of Justice Rajiv Shakdher and Justice Jasmeet Singh held that the period of limitation for an amount that is shown as outstanding in the book of accounts would get extended from the date of such acknowledgement in terms of Section 18 of the Limitation Act.
Case Title: Himanshu Shekar versus Prabhat Shekhar
Citation: 2022 LiveLaw (Del) 526
The High Court of Delhi has held that the embargo under Section 12(5) of the A&C Act would not apply to a distant relative of the parties.
The Single Bench of Justice Vibhu Bakhru held that in terms of Explanation 1 and Entry 9 to the Seventh Schedule r/w Section 12(5), only spouse, sibling, child, parent or life partner of a party would be ineligible to be appointed as an arbitrator.
Case Title: Panipat Jalandhar National Highway 1 Tollway Pvt. Ltd. versus NHAI
Citation: 2022 LiveLaw (Del) 521
The High Court of Delhi has held that multiple arbitrations with regard to existing claims on same contract are to be avoided.
The Single Bench of Justice Suresh Kumar Kait held that permitting the parties to have multiple arbitrations for the adjudication of the existing disputes related to the same contract would entail multiple observations.
Case Title: UEM India Pvt. Ltd. versus ONGC Ltd.
Citation: 2022 LiveLaw (Del) 564
The Delhi High Court has ruled that an order passed by the Arbitral Tribunal, after the matter is remanded back to it by the Court under Section 34(4) of the Arbitration and Conciliation Act, 1996, is not a fresh arbitral award that can be challenged by filing a separate petition under Section 34(1).
The Single Bench of Justice Vibhu Bakhru held that a party cannot be precluded from raising additional grounds, which had arisen as a result of the subsequent order passed by Arbitral Tribunal after the matter was remitted to it by the Court, to challenge the arbitral award.
Case Title: M/s Sat Kartar Tour N Travels versus ONGC Ltd.
Citation: 2022 LiveLaw (Del) 550
The Delhi High Court has ruled that an order passed by the Arbitrator holding that the arbitral proceedings shall be conducted at any other place, would not change the seat of Arbitration as provided in the Arbitration Clause.
The Single Bench of Justice V. Kameswar Rao held that the Arbitrator cannot decide anything contrary to what has been decided by the parties.
Case Title: Amrish Gupta versus Gurchait Singh Chima
Citation: 2022 LiveLaw (Del) 512
The High Court of Delhi held that a party cannot dispute the jurisdiction on account of non-existence of the arbitration agreement after submitting to the jurisdiction of the arbitrator.
The Single Bench of Justice Vibhu Bakhru held that generally, the arbitration clause contained in the main agreement would also fall when the validity of the main agreement is challenged and the dispute would be non-arbitrable.
Case Title: A-One Realtors Pvt. Ltd. versus Energy Efficiency Services Ltd.
Citation: 2022 LiveLaw (Del) 502
The High Court of Delhi has held that the plaintiff is not entitled to return of Court Fess when the parties are referred to arbitration under Section 8 of the A&C Act.
The Single Bench of Justice Amit Bansal held that the benefit of Section 16 of the Court Fees Act would only be available to the plaintiff when the parties are referred to arbitration for settlement in terms of Section 89 of the CPC and not under Section 8 of the A&C Act.
Waiver Under Section 12(5) Of A&C Act Has To Be By An Express Agreement In Writing: Delhi High Court
Case Title: AK Builders versus Delhi State Industrial Infrastructure Development Corporation Ltd
Citation: 2022 LiveLaw (Del) 490
The Delhi High Court has ruled that any right under Section 12(5) of the Arbitration and Conciliation Act, 1996 (A&C Act), that deals with the ineligibility of certain persons to be appointed as an arbitrator, can be waived of only by an express Agreement in writing entered into after the disputes had arisen between the parties.
The Single Bench of Justice Vibhu Bakhru dismissed the contention that since the petitioner had participated in the arbitral proceedings it was precluded from raising any objections towards the appointment of the Arbitrator. The Court reiterated that a person who is ineligible to act as an arbitrator would also be ineligible to appoint an arbitrator.
Case Title: Rajinder Kumar Agarwal versus Union of India
Citation: 2022 LiveLaw (Del) 507
The High Court of Delhi has held that the provisions for the quantum of damages under Land Acquisition Act, 2013 (LARR Act) would apply to arbitrations under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948.
The Single Bench of Justice Navin Chawla has held that the provisions of the LARR Act being beneficial in nature would also apply to all the pending arbitrations under the Resettlement of Displaced Persons (Land Acquisition) Act.
Case Title: Sanjay Roy versus Sandeep Soni & Ors.
Citation: 2022 LiveLaw (Del) 506
The Delhi High Court has held that an arbitral award that is not in consonance with the judicial decisions and principles laid down by the courts of India would be in violation of the fundamental policy of Indian law and thus in conflict with the public policy of India under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Bench, consisting of Justices Mukta Gupta and Neena Bansal Krishna, upheld the order of the Single Judge setting aside the arbitral award under Section 34 on the ground that the Arbitrator had failed to apply the basic fundamental law as contained in the Limitation Act, 1963 and the Transfer of Property Act, 1882.
Case Title: Union of India, Ministry of Railways, Railway Board & Anr. versus M/s Jindal Rail Infrastructure Limited
Citation: 2022 LiveLaw (Del) 505
The High Court of Delhi held that the arbitrator cannot re-write the terms of the agreement between the parties merely because they flout business common sense.
The Single Bench of Justice Vibhu Bakhru has held that an award wherein the arbitrator re-works a bargain between the parties merely because it is commercially difficult for one party to perform the same would be against the fundamental policy of Indian Law and would be vitiated by patent illegality.
Case Title: Rajesh Gupta versus Ram Avtar
Citation: 2022 LiveLaw (Del) 482
The High Court of Delhi has held that the arbitrator cannot allow forfeiture of a substantial amount of consideration without the proof of actual loss solely on the ground that it was referred to as Earnest Money under the contract.
The Single Bench of Justice Vibhu Bakhru partly set aside an award on the ground that the arbitrator wrongly allowed the forfeiture of Earnest Money which formed a substantial portion of the total consideration without the respondent proving actual loss suffered by it.
Case Title: Bharat Petroresources Limited versus JSW Ispat Special Products Limited
Citation: 2022 LiveLaw (Del) 469
The High Court of Delhi held that the claims rejected by Resolution Professional in the insolvency proceedings on the ground that they arose after the Insolvency Commencement Date (ICD), are to be decided by the arbitrator.
The Single Bench of Justice Vibhu Bakhru held that extinguishment of claims that arose after the Insolvency Commencement Date (ICD) is a contentious issue that is to be decided by the arbitrator when the parties have an arbitration agreement.
Case Title: Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) versus Cobra Instalaciones Y Services S.A. and Shyam Indus Power Solution Pvt. Ltd. JV
Citation: 2022 LiveLaw (Del) 454
The High Court of Delhi has held that there would be no question of recovery of deferment charges on the liquidated damages when the liquidated damages are themselves not payable.
The Single Bench of Justice Vibhu Bakhru has held that deferment charges cannot be treated as separate charges payable irrespective of whether the liquidated damages are payable or not. The Court held that these would only be payable when the liquidated damages are held to be payable
Case Title: National Highway Authority of India versus MEP Chennai Bypass Toll Road Pvt. Ltd. & Anr.
Citation: 2022 LiveLaw (Del) 453
The Delhi High Court has ruled that the Arbitral Tribunal is permitted to fix its fee, if its appointment is made by way of an ad hoc agreement between the parties.
The Single Bench of Justice Sanjeev Narula held that where the Arbitral Tribunal has accepted its appointment outside the mandate of the International Centre for Alternative Dispute Resolution (ICADR), it is entitled to determine its fee and is not bound by ICADR Rules. The Court upheld the order of the Arbitral Tribunal fixing the arbitral fee separately for the claims and the counter-claims.
Case Title: Millennium Education Foundation versus Educomp Infrastructure and School Management Limited
Citation: 2022 LiveLaw (Del) 449
The High Court of Delhi has held that the mere pendency of an insolvency petition under Section 9 of the IBC is not a bar to the appointment of an arbitrator.
The Single Bench of Justice Sanjeev Sachdeva has held that merely because an insolvency petition is pending, it cannot be an embargo on the power of the Court to decide arbitration applications. The Court added that it is only when the insolvency petition is admitted and the moratorium is declared that the proceedings under the Arbitration Act would be non-maintainable.
Case Title: Gujarat Gas Ltd. versus Vedanta Ltd and Ors.
Citation: 2022 LiveLaw (Del) 444
The High Court of Delhi has held that a party cannot demand its 'Right to First Refusal' after making a counter-offer to the seller.
The Single Bench of Justice Anup Jairam Bhambhani has held that when the party that has been given the right to first refusal (RoFR) makes a counter-offer, the seller becomes entitled to sell the subject goods to the third parties.
Case Title: GAIL (India) Ltd. versus Trivendi Engineering & Industries Ltd.
Citation: 2022 LiveLaw (Del) 443
The High Court of Delhi has held that liquidated damages can't be imposed when the Engineer-in-Charge holds that the cause of delay is explained.
The Single Bench of Justice Vibhu Bakhru held that when the Engineer-in-Charge was entrusted with the task of examining the causes of delay, and it had analysed and accepted the justification provided by the contractor and recommended several extensions without the imposition of liquidated damages, it was not open for the employer to levy liquidated damages when the delay was not attributable to the contractor and so was determined by the Engineer-in-Charge.
Case Title: Kiran Infra Engineers Limited versus Northern Railway
Citation: 2022 LiveLaw (Del) 439
The Delhi High Court has held that whether a supplementary agreement between the parties, rescinding the arbitration clause contained in the principal contract, is contrary to law or not in view of taking away the right of a party to invoke arbitration, is required to be decided by the arbitrator himself.
The Single Bench of Justice Sanjeev Sachdeva ruled that the disputes raised by the party contending that the supplementary agreement was hit by Section 17 and Section 23 of the Indian Contract Act, 1872, since it was signed by the party under duress and undue influence, are disputes which the Arbitral Tribunal is competent to rule upon.
Case Title: Extramarks Education India Private Limited versus MES Central School
Citation: 2022 LiveLaw (Del) 438
The High Court of Delhi has held that a party cannot be deemed to have waived its right to invoke arbitration merely because it has filed a written statement in respect of disputes that are not covered under the agreement.
The Single Bench of Justice Sanjeev Sachdeva held that a suit in respect of a dispute that is not governed by the arbitration agreement is not an impediment to the invocation of the arbitration.
Section 65-B Of Indian Evidence Act Does Not Apply To Arbitral Proceedings: Delhi High Court
Case Title: Millennium School versus Pawan Dawar
Citation: 2022 LiveLaw (Del) 436
The High Court of Delhi has held that Section 65-B of the Indian Evidence Act, 1872 does not apply to arbitral proceedings.
The Single Bench of Justice Vibhu Bakhru held that although the principles of the Evidence Act usually apply, sensu stricto, the specific provisions of the Act do not apply.
Case Title: Union of India versus Delhi State Consumer Co Operative Federation Ltd.
Citation: 2022 LiveLaw (Del) 435
The Delhi High Court has ruled that abrupt issuance of orders by the Arbitral Tribunal terminating the arbitral proceedings under Section 25 (a) of the Arbitration and Conciliation Act, 1996 (A&C Act), without holding any hearing and without issuing any show cause notice, is unsustainable and suffers from perversity of approach.
The Single Bench of Justice Prateek Jalan held that to ensure that an Arbitral Tribunal performs the duty entrusted to it is a core aspect of the supervisory function of the High Court, and thus where the Arbitral Tribunal has failed to decide the review applications filed by the claimant seeking recall of the order terminating the arbitral proceedings, the Court can invoke Article 227 of the Constitution of India.
Case Title: Union of India versus Indian Agro Marketing Co Operative Ltd.
Citation: 2022 LiveLaw (Del) 423
The Delhi High Court has ruled that since no alternate remedy is available to the claimant to challenge the order of the arbitrator terminating the arbitral proceedings under Section 25(a) of the Arbitration and Conciliation Act, 1996 (A&C Act), hence, a petition under Article 227 of the Constitution of India against the said order of the arbitrator is ex facie maintainable.
The Single Bench of Justice C. Hari Shankar reiterated that the Arbitral Tribunal has the power to recall the order passed by it under Section 25(a) of the A&C Act terminating the arbitral proceedings.
Case Title: Director General Central Reserve Police Force versus Fibroplast Marine Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 419
The Delhi High Court has ruled that inordinate and unexplained delay in rendering the arbitral award is in conflict with the public policy of India and is amenable to challenge under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Single Bench of Justice Vibhu Bakhru held that award of damages arbitrarily and without any basis also falls foul of the public policy of India.
Case Title: OYO Hotels and Homes Pvt. Ltd. versus Parveen Juneja & Ors.
Citation: 2022 LiveLaw (Del) 389
The Delhi High Court has observed that in a petition under Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of arbitrator, High Court is not to go into the merits of the claim or the counter-claim, if any, of the parties.
Justice Sanjeev Sachdeva observed that the High Court has to examine as to whether there is an arbitration agreement between the parties and there are any disputes unless ex-facie it is apparent from the record that the disputes are a mere deadwood.
The Arbitral Tribunal Cannot Reduce The Liquidated Damages On 'Guess Work': Delhi High Court
Case Title: Haryana Vidyut Prasaran Nigam Ltd. versus M/s Cobra Instalaciones Y. Services S.A. & M/s Shyam Indus Power Solution Pvt. Ltd. (JV)
Citation: 2022 LiveLaw (Del) 387
The High Court of Delhi has held that the arbitral tribunal cannot reduce the liquidated damages on 'guesswork' if it finds that it is a genuine pre-estimate of damages and it is not possible to quantify the damages.
The Single Bench of Justice Bakhru held that once the arbitrator finds that the employer has suffered substantial losses due to the fault of the contractor and the contract provides for liquidated damages which were a genuine pre-estimate of the loss as the quantification of the claim is not possible, then the arbitrator cannot reduce the amount of the damages on guesswork.
Case Title: Hunch Circle Pvt. Ltd. versus Futuretimes Technology India Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 379
The High Court of Delhi has given primacy to an exclusive jurisdiction clause over the seat clause in an arbitration agreement. The Court held that when a clause confers exclusive jurisdiction on a court other than the seat court, then only the court on which exclusive jurisdiction is conferred shall decide all the applications arising out of the arbitration agreement.
The Single Bench of Justice Hari Shankar held that despite the fixation of the seat of arbitration if the agreement also provides that the court at some other place has been conferred with the jurisdiction to deal with all the matters arising out of the arbitration agreement, then in such a situation the seat clause must surrender to the exclusive jurisdiction clause.
Case Title: Religare Finvest Ltd versus Asian Satellite Broadcast Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 368
The High Court of Delhi has held that the sufficiency of the stamp duty on the arbitration agreement is a jurisdictional issue under Section 16 of the A&C Act.
The Single Bench of Justice Sanjeev Narula has held that an objection as to the deficiency in the stamp duty shall be decided as a preliminary issue since the inadequately stamped arbitration agreement can neither be taken in evidence nor can be acted upon, therefore, the tribunal should direct the parties to first get the agreement sufficiently stamped before adjudicating rights and obligations under the agreement.
Arbitral Tribunal Cannot Award Interest On Interest: Delhi High Court
Case Title: Delhi Development Authority versus Watcon Water Specialists Pvt. Ltd. and Anr.
Citation: 2022 LiveLaw (Del) 347
The High Court of Delhi has observed that the arbitral tribunal cannot award interest on the amount of interest already granted in the award. The Court held that pendente lite interest on the amount of awarded interest amounts to awarding of interest on interest.
The Single Bench of Justice Bakhru has held that when the arbitrator has awarded interest on a substantive claim, allowing interest on the awarded interest is not permissible under the law.
Case Title: National Highways Authority of India versus M/S Abhijeet Angul Sambalpur Toll Road Limited
Citation: 2022 LiveLaw (Del) 351
The Delhi High Court has ruled that any matter on which the Arbitral Tribunal has the jurisdiction to pass a final award can also be the subject of an interim award made by it, and the same can be challenged before the Court under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).
The Single Bench of Justice C. Hari Shankar held that the right of a party to file counter claims before the Arbitral Tribunal exists independently of any liberty granted to it by the Arbitral Tribunal.
Case Title: Bhavanishankar H Sharma versus SRS Private Investment Powai Limited
Citation: 2022 LiveLaw (Del) 359
The Delhi High Court has observed that a petition filed under sec. 14 of the Arbitration and Conciliation Act, 1996 does not confer any power on the Court to expunge any part of the order of the Arbitral Tribunal.
Justice Sanjeev Sachdeva was dealing with a plea filed under sec. 14(2) read with sec. 15 of the Arbitration and Conciliation Act seeking termination of the mandate of the Arbitral Tribunal and also for expunging the adverse and prejudicial remarks contained in the order of the Arbitral Tribunal.
Case Title: Vistrat Real Estates Private Limited versus Asian Hotels North Ltd
Citation: 2022 LiveLaw (Del) 357
The Delhi High Court has ruled that once a valid arbitration agreement exists between the parties, the issue whether a party is entitled to any relief in the arbitral proceedings in the absence of a third party, who is not a party to an agreement, is covered by the Doctrine of Competence-Competence and must be decided by the Arbitrator.
The Single Bench of Justice Mukta Gupta held that whether a party who is not a signatory to an arbitration agreement is required to be impleaded in the arbitral proceedings or not is to be determined by the Arbitrator.
Case Title: Mahavir Prasad Gupta versus Union of India & Anr.
Citation: 2022 LiveLaw (Del) 280
One of the long pending Arbitration proceedings have come to a logical conclusion by making the arbitral award 'the rule of the Court' under the old Arbitration Act, 1940.
The Delhi High Court had made the arbitration reference way back in 1994, but the arbitral proceedings took an inordinately long time to complete with the constitution of the Arbitral Tribunal being changed a number of times and finally the award was passed in the year 2021. And finally, the Single Bench of Justice Vibhu Bakhru has made the arbitral award the rule of the Court as per the requirement of Arbitration Act, 1940.
Case Title: Virtual Perception Opc Pvt Ltd versus Panasonic India Pvt Ltd
Citation: 2022 LiveLaw (Del) 291
The Delhi High Court has ruled that a petition under Article 227 of the Constitution cannot be allowed against an order passed by the Arbitral Tribunal rejecting a plea raised under Section 16(3) of the Arbitration and Conciliation Act, 1996 that the Tribunal had exceeded its jurisdiction, on the ground that the Tribunal had violated the applicable legal provisions.
The Single Bench of Justice Prateek Jalan held that such an expansive reading would open the doors of the Court under Article 227 against virtually any procedural order of the Arbitral Tribunal, adding that Article 227 cannot be used to correct every order of an Arbitral Tribunal, even if it is found to be erroneous.
Case Title: Tata Capital Financial Services Limited versus Naveen Kachru Proprieter of M/S South Delhi Motorcycle & Ors.
Citation: 2022 LiveLaw (Del) 293
The Delhi High Court has ruled that Section 10 of the Code of Civil Procedure, 1908 does not lay an embargo in proceeding with arbitral proceedings during the pendency of insolvency proceedings under the Provincial Insolvency Act, 1920.
The Single Bench of Justice Sanjeev Sachdeva held that the issues involved in the insolvency proceedings and the issue involved in the arbitral proceedings were completely different and therefore the embargo of Section 10 of CPC does not apply.
Case Title: Glocaledge Consultants Pvt Ltd versus Rec Power Distribution Company Limited
Citation: 2022 LiveLaw (Del) 285
The Delhi High Court has ruled that merely filing a complaint with an unrelated government office expressing one's grievance does not constitute a notice under Section 21 of the Arbitration and Conciliation Act, 1996.
The Single Bench of Justice Vibhu Bakhru held that though it is a trite law that all contentious disputes are to be addressed by the Arbitration Tribunal, however in cases where there was no doubt that the claims raised were barred by limitation, the Court would decline to appoint an arbitrator.
Rules Of Arbitral Institution Do Not Determine The Place Of Arbitration: Delhi High Court
Case Title: Ecogreen Energy Gwalior Pvt. Ltd. v. Commissioner of Municipal Corporation, Gwalior
Citation: 2022 LiveLaw (Del) 297
The Single Bench of Justice Vibhu Bakhru of the Delhi High Court has held that the rules of arbitral institution would not determine the place of the arbitration and only the Courts at the place of arbitration proceedings will have the jurisdiction to entertain an application for the appointment of an arbitrator.
The Court further held that rules of arbitral institutions are only procedural and comes into play after the commencement of the arbitration.
Case Title: Vijay Kumar Munjal V. Pawan Kumar Munjal, Arb. P. 975/2021
Citation: 2022 LiveLaw (Del) 278
The High Court of Delhi has observed that all the disputes that arise out of the Trade Marks Agreement are not outside the scope of arbitration. The Single Bench of Justice Vibhu Bakhru clarified that disputes that purely deal with the interpretation of the terms of a trademark agreement and are not related to the grant or registration of the trademarks can be decided in arbitration.
The Court further clarified that unless it is a dispute relating to registration of trademarks, there is no legal requirement of raising the same before the Registrar of Trade Marks or the IP Division of the High Court and the disputes that purely arise out of contractual rights and obligations under a Trade Mark agreement can be adjudicated in arbitration.
Case Title: Karam Chand Thapar & Bros. (Coal Sales Ltd.) versus MMTC Ltd.
Citation: 2022 LiveLaw (Del) 274
The Delhi High Court has observed that for the purposes of enforcement of arbitral award, no distinction can be made between decree or awards where amounts are decreed or awarded in foreign currencies on the basis of the nationality of the disputing parties.
Challenge Against Arbitrator Appointment, Can't Be Under Section 14 Of The A&C Act: Delhi High Court
Case Title: Sacheerome Advanced Technologies (SAT) versus NEC Technologies Pvt. Ltd. (NECI)
Citation: 2022 LiveLaw (Del) 266
The Delhi High Court has ruled that Section 14 of the Arbitration and Conciliation Act, 1996 does not provide a separate remedy to the parties to challenge the appointment of an arbitrator, notwithstanding the provisions under Section 13 of the Act.
The Single Bench of Justice Vibhu Bakhru held that a party can challenge the appointment of an arbitrator only according to the procedure set out in Section 13 of the Arbitration and Conciliation Act and that a petition under Section 14(1) could not be filed to challenge the appointment of an Arbitral Tribunal on the grounds mentioned under Section 12(3) of the Act, i.e., on the ground of justifiable doubts as to the independence or impartiality of the Arbitrator.
Case Title: IRCON International Limited versus GPT-Rahee JV
Citation: 2022 LiveLaw (Del) 270
The High Court of Delhi has observed that a No Claim Certificate (NCC) shall be examined along with the covering letter in which it is sent and that mere issuance of the NCC by the Claimant shall not ipso facto entail the extinguishment of all the claims.
The Single Bench of Justice Vibhu Bakhru further held that while adjudicating an application under S. 34 of the Arbitration & Conciliation Act, the Court must be mindful of the fact the Indian Evidence Act, 1872 and strict rules of evidence are not applicable in arbitration and the tribunal enjoys considerable discretion to take a view on the quality and sufficiency of the evidence.
Performance Security Cannot Be Retained After Acknowledgement Of Due Performance : Delhi High Court
Case Title: Bharat Sanchar Nigam Limited versus Teracom Limited
Citation: 2022 LiveLaw (Del) 271
The Delhi High Court has ruled that there is no principle in law whereby a party could be permitted to retain the Performance Security after it had acknowledged due performance of a contract.
The Single Bench of Justice Vibhu Bakhru upheld the award of an Arbitral Tribunal directing BSNL to refund the amount recovered by it from invocation of Performance Bank Guarantee, since no claim regarding failure to perform obligations under the Contract was made by it.
Case Title: India Tourism Development Corporation Ltd (ITDC) versus Bougainvillea Multipex & Entertainment Centre Pvt Ltd (BMEL)
Citation: 2022 LiveLaw (Del) 272
The Delhi High Court has upheld the award of an Arbitral Tribunal that stipulating the condition of 'as is where is basis' in a License Agreement does not absolve the contracting parties to make a disclosure about the licensed premises, which is otherwise not evident on visual inspection.
The Single Bench of Justice Vibhu Bakhru ruled that the Indian Evidence Act, 1872 does not apply to the proceedings before the Arbitral Tribunal and that the Court was not required to reappreciate every material or piece of evidence that was placed before the Arbitral Tribunal.
Case Title: Jivanlal Joitaram Patel versus National Highways Authority Of India
Citation: 2022 LiveLaw (Del) 202
The Delhi High Court has observed that the term "sum in dispute" provided in the 4th Schedule to the Arbitration and Conciliation Act, 1996 has to be interpreted so as to include the aggregate value of the claims as well as counter claims.
Case Title: Foomill (P) Ltd. versus Affle (India) Ltd.
Citation: 2022 LiveLaw (Del) 239
The Delhi High Court has observed that the mere use of word 'Arbitration' in the heading in the Clause of Agreement would not lead to the inference that there exists an agreement between such parties seeking resolution of disputes through arbitration.
Case Title: Alstom Systems India Pvt. Ltd. versus Zillion Infraprojeccts Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 311
The High Court of Delhi has observed that when the agreement between the parties provides for mandatory mediation, the time spent in the mediation process shall be excluded from the period of limitation.
The Single Bench of Justice C. Hari Shankar held that the notice invoking arbitration as well as the substantive claims of a party would not become time-barred if the parties were undergoing the mediation process contemplated in the arbitration clause and the time consumed in an unfruitful mediation process shall be excluded for the purpose of calculating the limitation period.
Case Title: Orissa Concrete and Allied Industries Ltd. versus Union of India
Citation: 2022 LiveLaw (Del) 312
The High Court of Delhi has observed that a subsequent dispute arising from the same transaction can be referred to a separate arbitration and the arbitration agreement cannot be said to be a one-time measure that cannot be invoked after an award is made in the earlier reference.
The Single Bench of Justice Mukta Gupta observed that the word "all disputes" in an arbitration agreement means all the existing disputes at the time of invocation of arbitration and the disputes that arise subsequently can be decided in a separate arbitration. There is no legal impediment that proscribes the invocation of the arbitration agreement if there is a pending arbitration or an award is made in an earlier arbitration.
Case Title: Parsvnath Developers Ltd versus Future Retail Limited
Citation: 2022 LiveLaw (Del) 323
The Delhi High Court has ruled that the Court cannot adjudicate on the issue whether the claims made by the petitioner are barred by limitation while dealing with a petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 for referring the parties to arbitration.
The Single Bench of Justice Vibhu Bakhru held that the dispute as to whether the contract containing the arbitration clause is sufficiently stamped or not, and the nature of the contract, are contentious issues which cannot be decided by the Court in a petition filed under Section 11.
Case Title: Cement Corporation of India versus Promac Engineering Industries Limited
Citation: 2022 LiveLaw (Del) 329
The Delhi High Court has ruled that a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) for interim measures of protection, is not maintainable before the Court against the procedural orders passed by the Arbitral Tribunal.
The Bench, consisting of Justices Mukta Gupta and Neena Bansal Krishna, held that the procedural orders passed by the Arbitral Tribunal fixing the arbitration fees does not fall within the ambit of Section 9 of the A&C Act, and rejected the contention that the petition was maintainable under the residuary clause of Section 9(1)(ii)(e) of the A&C Act.
Case Title: National Highways Authority of India versus Continental Engineering Corporation (CEC)
Citation: 2022 LiveLaw (Del) 331
The High Court of Delhi has observed that the failure of the contractor to issue notice under the contract does not deprive him of his right to claim additional payment before the arbitral tribunal.
The Single Bench of Justice Bakhru also observed that such a stipulation in the contract is not a mandatory provision but only directory in nature and must be examined with reference to the other clauses and the contemporary records
Case Title: Ministry of Youth Affairs & Sports versus Agility Logistic Pvt Ltd
Citation: 2022 LiveLaw (Del) 307
The Delhi High Court has ruled that it is not necessary that a notice issued under Section 21 of the Arbitration and Conciliation Act, 1996 should quantify the amounts that are claimed by the claimant before the Arbitral Tribunal.
The Single Bench of Justice Vibhu Bakhru held that a notice under Section 21 is required to set out the disputes between the parties, and upheld the view of the Arbitral Tribunal that the claims raised by the claimant before the Arbitral Tribunal cannot be rejected only on the ground that they were not mentioned in the notice issued under Section 21.
Gujarat High Court:
Case Title: Lite Bite Foods Pvt. Ltd. versus Airports Authority of India
Citation: 2022 LiveLaw (Guj) 203
The Gujarat High Court has held that a party cannot circumvent the dispute resolution process after agreeing on the same.
The Single Bench of Justice Ashutosh J. Shastri held that a party is bound to follow the mechanism provided under the arbitration clause that requires it to first raise the dispute before the Dispute Resolution Committee (DRC) and pre-deposit the amount in dispute, if no challenge is made by the party to the validity of the terms of the clause.
Case Title: Pahal Engineers versus The Gujarat Water Supply and Sewerage Board
Citation: 2022 LiveLaw (Guj) 220
The High Court of Gujarat has held that a writ petition would not be maintainable against an order of the arbitral tribunal whereby it has rejected the claim of a party on the ground that its pleadings were without verification and affidavit to that effect.
The Single Bench of Justice Vaibhavi D. Nanavati held that once the arbitrator rejects the claims of a party that essentially means a final closure of its claims and the order of the arbitrator can be challenged under Section 34 of the Arbitration and Conciliation Act, 1996.
Case Title: Kanhai Foods Ltd versus A and HP Bakes
The Gujarat High Court has ruled that issues involving enforcement of the conditions of a Franchise Agreement cannot be the subject matter of an application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996.
The Bench, consisting of Justices N.V. Anjaria and Samir J. Dave, held that conditions of a contract can be enforced only when the rights of the parties are finally adjudged and crystallised by the Arbitrator.
Case Title: Balkrishna Spintex Private Limited versus The New India Assurance Company Limited
The Gujarat High Court has ruled that a party is not entitled to invoke the arbitration clause after it had signed the discharge voucher without any protest or demur, since no arbitrable dispute could be said to subsist.
The Single Bench of Chief Justice Aravind Kumar held that an application for referring the dispute to arbitration could not be entertained merely on the ground that the party had, within 15 days from the receipt of an amount, contended that the said amount was received by it under duress.
Case Title: Lords Inn Hotels and Developers Ltd. versus Raysons Residency Pvt. Ltd.
Citation: 2022 LiveLaw (Guj) 230
The High Court cannot decide disputed questions of facts in a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of arbitrator, the Gujarat High Court has held.
The Bench comprising Chief Justice Aravind Kumar observed, "All these issues including arbitrability can be examined by the Arbitral Tribunal itself."
Case Title: Leepee Enterprise versus Mehul Industries
The Gujarat High Court has ruled that the issue of jurisdiction of the Arbitrator ought to be raised at the first available opportunity, i.e., when the notice under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) is served for appointment of Arbitrator.
The Single Bench of Justice A.G. Uraizee rejected the contention that the issue of jurisdiction being a legal issue can be raised at any stage.
Case Title: Vijay Arvind Jariwala versus Umang Jatin Gandhi
"In the proceedings of section 11, a person who is not a party to the agreement, has no association in eye of law. On the same footing, a third party cannot be a party in the proceedings under section 9 of the Act for interim measures wherein by very nature of the proceedings, third party cannot be said to have a legal participatory right", the Division Bench of the Gujarat High Court, comprising Justice NV Anjaria and Justice Samir Dave, has observed.
Case Title: Vijay Arvind Jariwala versus Umang Jatin Gandhi
Citation: 2022 LiveLaw (Guj) 153
The High Court of Gujarat has held that a third party cannot be impleaded as a party to an application for interim reliefs under Section 9 of the A&C Act unless it is a party who is claiming under a party to the arbitration agreement.
The Division Bench of Justice N.V. Anjaria and Justice Samir J. Dave has held that the remedy under the Arbitration Act is between the parties to the arbitration agreement, therefore, the third party has no concern with the proceedings of Section 9 nor the said provision recognizes the inclusion of the third party, who may be independently claiming the rights against the parties to the arbitration and vice versa.
Case Title: Time Cinemas and Entertainment Pvt Ltd versus Venus Infrastructure and Developers Pvt Ltd
The Gujarat High Court has ruled that once an application under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) seeking interim measures has been disposed of, a subsequent similar application seeking similar reliefs, which were already dealt with in the earlier proceedings, is not maintainable.
The Bench, consisting of Justices N.V. Anjaria and Samir J. Dave, held that principal relief cannot be granted at the interim stage, and granting interim directions which are in the nature of main relief is not permissible in law.
Case Title: M/S Bharmal Indane Service versus Indian Oil Corporation Limited
The Gujarat High Court has ruled that petition for referring the matter to arbitration cannot be disallowed on the ground that the dispute involves interpretation of policy guidelines.
The Single Bench of Chief Justice Aravind Kumar held that whether there is an arbitrable dispute or not and whether the Arbitral Tribunal has jurisdiction to decide the dispute is an issue which can be decided by the arbitrator himself under Section 16 of the Arbitration and Conciliation Act, 1996.
Case Title: M/S M N Trapasia versus Divisional Railway Manager (WA)
Citation: 2022 LiveLaw (Guj) 119
The Gujarat High Court has ruled that unless the embargo placed under Section 12(5) of the Arbitration and Conciliation Act, 1996 is waived by the parties, the provisions of Section 12(5) would continue to be attracted.
The Single Bench of Chief Justice Aravind Kumar held that there cannot be a deemed waiver of Section 12(5) by merely issuing a letter or communication calling upon the opposite party to waive the embargo.
Himachal Pradesh High Court:
Case Title: M/s V. Kare Biotech and Ors. versus Hemant Aggarwal and Anr.
Citation: 2022 LiveLaw (HP) 12
The Himachal Pradesh High Court has held that a writ petition would be non-maintainable against an order of the arbitrator dismissing the application for interrogatories.
The Single Bench of Justice Satyen Vaidya held that the arbitration act is a complete code in itself which prohibits judicial interference except where so provided under the Act.
Case Title: Backend Bangalore Pvt. Ltd. versus Chief-Engineer-Cum-Project Director, HPRIDC
Citation: 2022 LiveLaw (HP) 14
The High Court of Himachal Pradesh has held that pre-arbitration reference to the adjudicator in terms of arbitration clause is only directory and cannot be held to be a bar to the appointment of an arbitrator by the Court.
The Single Bench of Chief Justice Mohammed Rafiq held that the respondent could not object to the maintainability of the petition, merely on the ground that the pre-condition of reference to adjudicator was not met if it also did not make efforts to settle the dispute but proceeded to terminate the agreement.
Jharkhand High Court:
Case Title: Jharia Petrol Supply versus Indian Oil Corporation Limited
Citation : 2022 LiveLaw (Jha) 62
The Jharkhand High Court has ruled that if the application for appointment of Arbitrator under Section 11(6)(c) of the Arbitration and Conciliation Act, 1996 (A&C Act) is itself not maintainable on the ground of inordinate delay in filing it, the issue of limitation cannot be referred to the Arbitrator for adjudication.
The Single Bench of Justice Sujit Narayan Prasad held that, in view of the decision of the Supreme Court in the case of Bharat Sanchar Nigam Limited and Another versus Nortel Networks India Private Limited (2021), the issue of limitation is required to be answered at the threshold itself, i.e., at the stage where the application filed under Section 11(6)(c) of the A&C Act is considered by the Court.
Case Title: National Club Cooperative Society Ltd versus The Managing Director, Jharkhand State Adivasi Cooperative Marketing Federation Ltd
Citation: 2022 LiveLaw (Jha) 57
The Jharkhand High Court has ruled that just because registration was granted to a party by a State Cooperative Society, presumption against the independence and impartiality of the Registrar of the said State Cooperative Society to act as an Arbitrator cannot arise.
The Single Bench of Justice Sujit Narayan Prasad held that by merely raising apprehension regarding the independence and impartiality of the person specified to act as an Arbitrator in the arbitration clause, a party cannot file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) for appointment of an Arbitrator.
Case Title: M/s Modern Construction Company versus State of Jharkhand
Citation: 2022 LiveLaw (Jha) 44
The Jharkhand High Court has ruled that after an arbitral award has been set aside and quashed by the Court under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act), an application under Section 11(6)(c) of the A&C Act for appointment of an arbitrator afresh is maintainable, even though no liberty has been granted by the Court while passing the order under Section 37.
The Single Bench of Justice Sujit Narayan Prasad held that if the second application filed by a party for appointment of an arbitrator afresh is held to be not maintainable then the dispute which is the subject matter of the contract between the parties, would remain undecided.
Karnataka High Court:
Case Title: ITI Limited versus Alphion Corporation & Anr.
Citation: 2022 LiveLaw (Kar) 183
The Karnataka High Court has ruled that even with respect to a High Court that does not exercise an Ordinary Original Civil Jurisdiction, a Commercial Division is required to be established for the purpose of considering applications and appeals arising out of an International Commercial Arbitration. The Court added that the said Commercial Division must comprise of a Single Judge.
The Bench, consisting of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj, held that though Section 4 of the Commercial Courts Act, 2015 provides for the establishment of a Commercial Division in the High Court that exercises an Ordinary Original Civil Jurisdiction, it does not bar the establishment of a Commercial Division in a High Court that does not exercise the said jurisdiction.
Case Title: Gokaldas Images Private Limited versus Aries Agro-Vet Associates (Pvt) Limited & Anr.
Citation: 2022 LiveLaw (Kar) 203
The Karnataka High Court has reiterated that the landlord-tenant disputes governed by the Transfer of Property Act, 1882 are arbitrable in nature.
The Single Bench of Justice E.S. Indiresh observed that the Supreme Court in the case of Vidya Drolia versus Durga Trading Corporation (2020) had overruled its decision in Himangi Enterprises versus Amaljit Singh Ahulvalia (2017). The Court thus held that the landlord-tenant disputes between the parties under the lease deed, which was governed by the Transfer of Property Act, could be referred to arbitration.
Case Title: Sobha Ltd. versus Nava Vishwa Shashi Vijaya and Ors.
Citation: 2022 LiveLaw (Kar) 202
The High Court of Karnataka has held that the petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 would be premature when the parties have not complied with the precondition of conciliation.
The Bench of Chief Justice Ritu Raj Awasthi dismissed the arbitration petition for the appointment of an arbitrator on the ground that the petitioner had directly approached the Court without taking recourse to the precondition of conciliation.
Case Title: M/s Abhiram Infra Projects Private Limited versus The Commissioner, Karnataka Slum Development Board
Citation: 2022 LiveLaw (Kar) 198
The Karnataka High Court has ruled that in the absence of an application filed under Section 33 of the Arbitration and Conciliation Act, 1996 (A&C Act) for correction of typographical errors in the arbitral award, the Court cannot pass an order modifying and correcting the arbitral award on the basis of a Memo filed before it by a party.
The Single Bench of Justice E.S. Indiresh held that after the lapse of 30 days from the passing of the arbitral award, no application for rectification of typographical mistakes under Section 33 of the A&C Act can be entertained.
Case Title: BEML Ltd. versus Prakash Parcel Services Ltd.
Citation : 2022 LiveLaw (Kar) 218
The High Court of Karnataka has held that a subsequent Section 8 application would be non-maintainable when the order of the arbitrator accepting objection to its jurisdiction was not challenged.
The Division Bench of Justice Alok Aradhe and Justice J.M. Khazi held that once the order of the arbitrator terminating the arbitral proceedings has attained finality, it would not be open for a party who did not lay any challenge to the order to contend that the dispute once again be referred to arbitration.
Case Title: Shalini and Anr. versus National Highways Authority of India and Ors.
Citation : 2022 LiveLaw (Kar) 172
The Karnataka High Court has ruled that an award of compensation passed by an Arbitrator under Section 3G(5) of the National Highways Act, 1956 does not attract stamp duty.
The Single Bench of Justice Suraj Govindaraj held that an award of compensation passed by the Land Acquisition Officer under the Land Acquisition Act or under any other similarly situated enactment, including the National Highways Act (NHA), is not amenable to payment of any stamp duty. The Court added that merely because the said award of compensation is passed by an Arbitrator under Section 3G(5) of NHA, the same would not attract stamp duty.
Case Title: CTI Future Corporation versus Ducgiang Chemical and Detergent Powder Joint Stock Company
Citation: 2022 LiveLaw (Kar) 107
The Karnataka High Court has ruled that an international commercial arbitral award rendered between parties that have no connection with India can be enforced by a Court in India if the property against which the award is sought to be enforced lies within the territorial jurisdiction of the Court.
The Bench, consisting of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj, held that India being a signatory to the New York Convention was required to enable execution of a foreign arbitral award rendered in a reciprocating country, if the property against which the arbitral award was sought to be enforced was situated within the jurisdiction of India.
Case Title: South India Biblical Seminary versus Indraprastha Shelters Pvt Ltd and Anr.
Citation: 2022 LiveLaw (Kar) 141
The Karnataka High Court has ruled that reference of a dispute to arbitration cannot be allowed if it would lead to splitting up of the cause of action and cause determination on matters which were not contemplated for arbitration.
The Single Bench of Justice B. M. Shyam Prasad held that there cannot be a complete adjudication of the claimant's rights unless the third parties were also heard, therefore, the matter was demonstrably non-arbitrable.
Kerala High Court:
Dissenting Views Of Minority Members Does Not Constitute An Arbitral Award: Kerala High Court
Case Title: Lloyed Insulations (India) Ltd versus Foremexx Space Frames
Citation: 2022 LiveLaw (Ker) 178
The Kerala High Court has ruled that the Arbitral Tribunal can pass only one arbitral award and not multiple awards.
The Bench, consisting of Justice P.B. Suresh Kumar and C.S. Sudha, ruled that the dissenting views of the minority member(s) of an Arbitral Tribunal does not constitute an Arbitral Award, and the dissenting views cannot be made the basis of a proceeding under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award or proceedings under Section 36 for its enforcement.
Case Title: M/s Bativala and Karani versus K.I. Johny & Anr.
Citation: 2022 LiveLaw (Ker) 187
The Kerala High Court has held that there is no legal impediment for arbitrating parties to initiate fresh proceedings if the district court sets aside an award on any issue not yet concluded in that award. This implies that the principles of res judicata will have only a limited application in such proceedings under the Arbitration and Conciliation Act.
A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha observed that even if the earlier award was one set aside not on any ground affecting the competency of the Tribunal, the subsequent arbitral proceedings are not hit by the principles of res judicata.
Madhya Pradesh High Court:
Case Title: M/S Ujas Associates versus M/S KJS Cement (India) Ltd.
Citation: 2022 LiveLaw (MP) 164
The Madhya Pradesh High Court has ruled that the provisions of the Arbitration and Conciliation Act, 1996 (A&C Act), including Section 9, would come into operation only after the termination of the conciliation proceedings under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), in the absence of an arbitration agreement between the parties.
The Bench, consisting of Justices Sheel Nagu and Maninder S. Bhatti, held that the powers under Section 9 of the A&C Act cannot be invoked by the competent Court prior to the termination of the conciliation proceedings under the MSMED Act
Case Title: Dharmadas Tirthdas Construction Pvt. Ltd. versus Government of India and Ors.
Citation: 2022 LiveLaw (MP) 149
The High Court of Madhya Pradesh has held that the court cannot appoint the arbitrator when the petitioner has not complied with the condition precedent of referring the dispute to the Superintending Engineer.
The Single Bench of Justice Vivek Rusia has held the pre-arbitral steps to be mandatory, the non-compliance of which will result in the rejection of the application for the appointment of the arbitrator.
Case Title: Parenteral Drugs (India) Limited versus Gati Kintetsu Express Pvt Ltd
The Madhya Pradesh High Court has ruled that even if a party disputes the existence of an arbitration agreement, an application under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) to set aside an arbitral award cannot be filed in a Court not having jurisdiction under the arbitration agreement, solely on the ground that cause of action arose within its jurisdiction.
The Single Bench of Justice Subodh Abhyankar held that the contention that since there was no arbitration agreement between the parties, therefore, the arbitral award could also be challenged wherever the cause of action arose between the parties, would defeat the provisions of Section 16 and Section 34 of the A&C Act and lead to a chaotic situation.
Case Title: Anil Kumar Tripathi versus Doorsanchar Nigam Ltd. (BSNL)
Citation: 2022 LiveLaw (MP) 106
The High Court of Madhya Pradesh, Gwalior Bench has held that a court can direct requisition of record from an arbitral tribunal and that the same would not be akin to remanding the matter to the tribunal, but to ascertain the exact nature of the dispute through record of the case.
Justice Anand Pathak dealt with a writ petition moved by the Petitioner who was aggrieved by the order of the commercial court, whereby it directed the requisition of the original record of the arbitrator before considering the application u/s 34 of the Arbitration and Conciliation Act, 1996.
Case Title: M/s Om Sai RK Constructions Pvt. Ltd. versus M/s Forsight Infractech Pvt. Ltd.
The High Court of Madhya Pradesh has ruled that once the appointment of arbitrator is void ab initio and the arbitrator is ineligible by virtue of Section 12 (5) of the Arbitration and Conciliation Act, 1996 (A&C Act), then the procedure prescribed under Sections 12, 13 and 14 of the A&C Act for challenging the appointment of an arbitrator are not applicable.
The Single Bench of Justice Anand Pathak held that if the arbitrator is appointment unilaterally by the opposite party, the ineligible appointment deserves to be set aside and the arbitrator can be removed at the stage of passing of the award.
Madras High Court:
Enforcement Of A Foreign Arbitral Award Can Be Filed In More Than One High Court: Madras High Court
Case Title: NCC Infrastructure Holdings Ltd and Anr. versus TAQA India Power Ventures Pvt. Ltd.
Citation: 2022 LiveLaw (Mad) 232
The High Court of Madras has held that more than one High Court can exercise jurisdiction for the recognition and enforcement of a part of the arbitral award if the claims are decided for and against the parties thereto.
The Single Bench of Justice Senthilkumar Ramamoorthy held that the Court for the purpose of the enforcement of a foreign award would be the one within whose jurisdiction either the award debtor carries his business or its assets are located within its jurisdiction.
Case Title: The Project Director (LA), NHAI versus T. Palanisamy and Ors.
Citation: 2022 LiveLaw (Mad) 196
The Madras High Court has held that an arbitral award that does not provide for payment of mandatory statutory compensation with respect to the land acquired under the National Highways Act, 1956 is perverse.
The Single Bench of Justice P.T. Asha held that an Arbitrator exercising jurisdiction under the National Highways Act has to be more vigilant in ensuring that the arbitral award is fair and that the land owner is compensated adequately as per his legal entitlement.
Case Title: Madurai Kamraj University versus The Chairman, Micro & Small Enterprises Facilitation Council and Anr.
Citation: 2022 LiveLaw (Mad) 160
The High Court of Madras has observed that S. 18 of the MSMED Act will override the arbitration clause between the parties. The Court observed that since S. 24 of the MSMED Act is a non-obstante clause, it gives overriding effect to the provisions of S. 15 -23 of the Act.
The Bench of Justice Pushpa Sathyanarayan and Justice P. Velmurgan observed that once a reference is filed before the MSME Council under S. 18 of the Act, the provisions of the arbitration clause must yield to the provisions contained under S. 18 of the Act.
Writ Petition Is Not Maintainable To Enforce The Arbitral Award: Madras High Court
Case Title: D. Nagarathinammal versus The Project Director, National Highways Authority of India and Anr.
Citation: 2022 LiveLaw (Mad) 161
The High Court of Madras observed that a writ petition cannot be filed to enforce an arbitral award when an alternative remedy is available under S. 36 of the A&C Act.
The Single Bench of Justice G.K. Ilanthiraiyan observed that the A&C Act is a complete code in itself and envisages minimum judicial intervention.
Case Title: M/s Cholamandalam Investment and Finance Company Ltd. versus Harkhabhai Amarshibhai Vaghadiya
Citation: 2022 Livelaw (Mad) 171
The High Court of Madras has held that manifest intention to arbitrate is a sine qua non for filing an application under S. 9 before the commencement of the arbitration and no interim relief can be granted if the intention to arbitrate is missing.
The Single Bench of Justice M. Sundar held that manifest intention to arbitrate is a jurisdictional fact that must precede the application under S. 9 of the Act. It also held that the Court would only appoint the receiver when the applicant is successful in demonstrating that the property is in imminent danger of waste.
Arbitral Award Not Hit By Adequacy Facet If Reasons Given Are Not Laconic: Madras High Court
Case Title: The Chief Engineer / Metropolitan Transport Project (Railways), Southern Railway and Anr. versus M/s. Progressive-Aliens
Citation: 2022 LiveLaw (Mad) 189
The Madras High Court has ruled that an arbitral award cannot be set aside on the ground of non-adequacy of reasons as long as the reasons given are not laconic.
The Single Bench of Justice M. Sundar ruled that being 'tersely eloquent' is not alien to judgment writing.
Case Title: M/s. Color Home Developers Pvt. Ltd. versus M/s. Color Castle Owners Society
Citation: 2022 LiveLaw (Mad) 186
The High Court of Madras has held that the challenge proceedings under Section 34 of the A&C Act are summary in nature, therefore, the same shall be decided based on the record that was available with the arbitral tribunal and no additional document shall be permitted to be brought in at that stage unless absolutely warranted.
The Single Bench of Justice M. Sundar further held that the court would not allow any additional document under a Section 34 petition if there was nothing that prevented the petitioner from furnishing the same document before the arbitrator.
Case Title: Rajasthani Marbles and Anr. versus Na. K. Kumar
Citation: 2022 LiveLaw (Mad) 177
The High Court of Madras has held that the arbitration clause contained in a partnership deed survives the termination of the deed. The Court held that the clause is an independent agreement and outlives the main contract in which it is incorporated.
The Single Bench of Justice M. Sundar reiterated that all the issues related to the arbitrability of the claims shall be decided by the arbitral tribunal unless it is a clear case of deadwood. The Court ruled that Section 11 of A&C Act does not permit elaborate pleadings on the claims.
Case Title: Union of India versus J. Auuamar and Ors.
Citation: 2022 LiveLaw (Mad) 221
The Madras High Court has ruled that an arbitral award rendered by the District Collector awarding a lower value to the land owners with respect to the land acquired under the National Highways Act, 1956 without following the mandate of Section 3G (7) of the National Highways Act, is rendered mechanically.
The Bench, consisting of Justices R. Subramanian and N. Sathish Kumar, remitted the matter back to the Arbitrator for fixing the value of the land acquired under the National Highways Act afresh in terms of Section 3G (7) of the National Highways Act.
Meghalaya High Court:
Case Title: Jaguar Overseas Limited versus Union of India & Anr.
Citation: 2022 LiveLaw (Meg) 20
The High Court of Meghalaya has held that if a contractor/ tenderer does not accept the names of the possible arbitrators that are listed on the panel prepared by the tenderee, the panel cannot be enforced since there would always be justifiable doubts regarding the independence or impartiality of the empanelled arbitrators.
The Single Bench of Chief Justice Sanjib Banerjee held that even if a person is named as an arbitrator in the arbitration agreement entered into before the occurrence of the dispute, and whose appointment would otherwise fall foul of the Seventh Schedule, a party is not barred from objecting to the agreed arbitrator taking up reference.
Case Title: The Chief Engineer (PWD) (National Highways) Government of Meghalaya, Shillong versus M/s. BSC – C&C JV
Citation: 2022 LiveLaw (Meg) 14
The High Court of Meghalaya has held that a writ petition is maintainable against an order of the arbitral tribunal framing issue in respect of a claim that has finally been decided in the interim award.
The Single Bench of Justice H.S. Thangkhiew has held that an arbitrator would be acting without jurisdiction if it frames an issue qua a claim that has already been decided in the interim award.
Orissa High Court:
Case Title: GMR Kamalanga Energy Ltd. versus SEPCO Electric Power Construction Corporation
Citation: 2022 LiveLaw (Ori) 106
The Orissa High Court has reiterated that an arbitral award cannot be set aside on the ground of breach of fundamental principles of justice, if the findings of the Arbitral Tribunal do not shock the conscience of the Court.
The Single Bench of Justice K.R. Mohapatra held that even if the material available before the Arbitral Tribunal is not sufficient to come to the conclusion arrived at by the Tribunal, the award cannot be set aside on this ground alone.
Case Title: Emcure Pharmaceuticals Ltd versus The Managing Director, Odisha State Medical Corporation and Others
Citation: 2022 LiveLaw (Ori) 71
The Orissa High Court has ruled that till a purchase order is issued by the tenderee pursuant to the acceptance of an offer to supply, no completed 'contract' arises between the parties and thus the arbitration clause contained in the tender document is not attracted.
The Single Bench of Chief Justice Dr. S. Muralidhar reiterated that the arbitration clause contained in the tender document was not an arbitration agreement in praesenti, but a provision that was to come into existence in the future, if a purchase order was placed.
An Unreasoned Arbitration Award Is Against The Public Policy: Orissa High Court
Case Title: Jayaram Panda versus Project Director, M/s. National Highway Authority of India and others
Citation: 2022 LiveLaw (Ori) 62
The High Court of Orissa has held that an unreasoned arbitral award would be against the public policy.
The Single Bench of Justice Arindam Sinha set aside the award as the arbitrator failed to give any reasons for reaching the conclusion in the award. The Court held that an award bereft of reasons, goes against the mandate of the Act and therefore is against the public policy.
Case Title: State of Odisha versus M/s. Nayagarh Sugar Complex Ltd.
Citation: 2022 LiveLaw (Ori) 61
The High Court of Orissa has held that a writ petition is not maintainable against an order of the arbitral tribunal refusing to delete the name of a party from the arbitration.
The Single Bench of Justice Arindam Sinha has held that to invoke the writ jurisdiction in an arbitration matter, the aggrieved party has to show that it is a 'rare of the rarest cases' and the interference of the Court is required. The Court ruled that the order of the tribunal wherein it has refused to delete the name of a party does not fall with the rubric of rare of the rarest cases.
Case Title: M.G. Mohanty and Anr. versus State of Odisha and others
Citation: 2022 LiveLaw (Ori) 44
The High Court of Orissa has observed that the Court for the purpose of deciding all the applications arising out of the arbitration agreement between the parties would be the Commercial Court as defined under the Commercial Courts Act which need not necessarily be the Principal Civil Court as provided under the Arbitration Act.
The Court observed that the jurisdiction of the Commercial Court can be conferred on a judicial officer subordinate to the rank of a District Judge, i.e., the Principal Civil Judge notwithstanding anything contained in S. 2(1)(e) of the Arbitration Act.
Case Title: M/s Bajaj Electricals Ltd. versus Micro Small and Enterprises Facilitation and Anr.
Citation: 2022 LiveLaw (Ori) 45
The High Court of Orissa has observed that a writ petition is maintainable against an award rendered by the MSME Council under S. 18 of the MSMED Act wherein the petitioner was not given a hearing on a material issue regarding the limitation of the substantive claims.
The Single Bench of Justice Arindam Sinha has observed that in cases where an award is passed without hearing a party, the availability of an alternative remedy to challenge the award under S. 19 of the MSMED Act r/w S. 34 of the Arbitration Act shall not be a ground to dismiss the writ petition as compelling the petitioner to challenge the award would require him to comply with the requirement of deposit of 75% of the amount awarded.
Punjab and Haryana High Court:
Case Title: M/s SGM Packaging Industries versus M/s Goyal Plywood LLP
Citation: 2022 LiveLaw (PH) 147
The Punjab and Haryana High Court has ruled that even in the absence of an arbitration agreement between the parties, the matter can be referred to arbitration under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act).
The Single Bench of Justice Lisa Gill reiterated that the MSMED Act being a Special Act shall prevail over the Arbitration and Conciliation Act, 1996 (A&C Act).
Rajasthan High Court:
Case Title: Eptisa Servicios De Ingenieria SL versus Ajmer Smart City Limited
Citation: 2022 LiveLaw (Raj) 181
The Rajasthan High Court has ruled that an arbitral award cannot be remitted back to the Arbitral Tribunal under Section 34 (4) of the Arbitration and Conciliation Act, 1996 (A&C Act) if there are no findings recorded in the arbitral award on the contentious issues.
The Single Bench of Justice Ashok Kumar Gaur reiterated that discretionary powers under Section 34 (4) of the A&C Act cannot be exercised under the guise of additional reasons or for filling up the gaps in the reasoning. The Court held that in the absence of any findings on the contentious issues in the award, no amount of reasons can cure the defect in the award.
Case Title: Om Prakash Kumawa versus Hero Housing Finance Ltd.
Citation: 2022 LiveLaw (Raj) 167
The High Court of Rajasthan has held that proceedings under the A&C Act and SARFAESI Act can be resorted to simultaneously.
The Single Bench of Justice Mahendra Kumar Goyal has held that the existence of an arbitration clause and filing of an application under Section 9 of the A&C Act is not a bar to the institution of proceedings under the SARFAESI Act.
Case Title: State of Rajasthan & Anr. versus M/s. Godhara Construction Company
Citation: 2022 LiveLaw (Raj) 162
The Rajasthan High Court has observed that the provision of Section 5 of the Indian Limitation Act does not apply to the proceedings contained under Section 34 of the Arbitration and Conciliation Act, 1996.
The Single Bench of Justice Anoop Kumar Dhand observed that the proviso to Section 34(3) of the Act of 1996 empowers the court, if it is satisfied that the applicant was prevented by sufficient cause from making application within the said period of three months, to further extend the period and filing of the application for setting aside the arbitral award by 30 days but not thereafter.
Telangana High Court:
Case Title: M/s. India Media Services Private Limited versus M/s. SBPL Infrastructure Limited
Citation : 2022 LiveLaw (Tel) 50
The Telangana High Court has reiterated that in view of Section 42 of the Arbitration and Conciliation Act, 1996 (A&C Act), only the Court where an application under Section 9 and/or Section 34 has been filed would have the jurisdiction to entertain an application for enforcement of the arbitral award.
The Bench, consisting of Justices P. Naveen Rao and Sambasivarao Naidu, held that Section 42 of the A&C Act opens with a non-obstante clause and, therefore, even though an arbitral award is treated as a 'decree in fiction' by a Civil Court, Section 42 of the A&C Act would cover within its ambit all provisions dealing with execution of an award.
Case Title: Telangana State Tourism Development Corporation Limited versus M/s. A.A. Avocations Pvt. Ltd.
Citation : 2022 LiveLaw (Tel) 49
The Telangana High Court has ruled that if a dispute constitutes a 'commercial dispute' under Section 2 (1) (c) (vii) of the Commercial Courts Act, 2015, and the dispute is the subject matter of a domestic arbitration whose 'Specified Value' is more than Rs. One Crore, then an application under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) would lie only before the Commercial Court and not before the Civil Court.
The Bench, consisting of Justices P. Naveen Rao and Sambasivarao Naidu, held that to treat an immovable property as 'used' for commercial purposes, so as to fall within the ambit of Section 2 (1) (c) (vii) of the Commercial Courts Act, it is not necessary that the present lessee should commence commercial operations in the said property.
Case Title: M/s BPR Infrastructure Limited versus M/s. RITES Ltd. and Anr.
Citation : 2022 LiveLaw (Tel) 48
The Telangana High Court has ruled that the issue whether a no claim certificate furnished by a party to its employer was under compulsion or duress, or whether the said no claim certificate is valid, which would discharge the contract and debar the party from raising further claims, is an arbitrable dispute.
The Single Bench of Justice Ujjal Bhuyan held that in view of the decision of the Supreme Court in the case of Bharat Sanchar Nigam Limited versus M/s. Nortel Networks India Pvt. Limited (2021), the Court is only required to examine whether an arbitration agreement exists between the parties.
Place Of Residence Of The Arbitrator Would Not Be The Seat Of Arbitration: Telangana High Court
Case Title: M/s S. Square Infra versus Garneni Chalapathi Rao
Citation:2022 LiveLaw (Tel) 54
The High Court of Telangana has held that the place of residence of the arbitrator would not determine the seat of arbitration.
The Single Bench of Justice P. Sree Sudha held that merely because an arbitrator residing in Hyderabad has been appointed, it would not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.
Case Title: Terra Infra Development Ltd. versus NCC Ltd.
Citation: 2022 LiveLaw (Tel) 53
The Telangana High Court has held that the parties cannot be said to be negotiating when the respondent did not reply to the letters of the applicant and the period of limitation for invoking arbitration would not be extended in such a scenario.
The Single Bench of Justice K. Lakshman held that the period of limitation would begin to run when the liability to pay is disputed by a party and mere writing of letters and correspondences will not extend the limitation period.
Case Title: Naveen P Malvay versus Samskruthi Shelters
Citation: 2022 LiveLaw (Tel) 52
The Telangana High Court has held that having regard to the object of the A&C Act, the delay of 435 days in filing an appeal is too long to exercise discretion.
The Division Bench of Justice P. Naveen Rao dismissed an appeal that was filed after a long delay of 435 days on the ground that no sufficient reason was assigned for delay in filing the appeal. The Court held that when the delay is long, a heavy burden is placed on the applicant to give cogent reasons to satisfy the court for condonation of delay.
Parties Cannot Be Referred To Arbitration In Absence Of Privity Of Contract: Telangana High Court
Case Title: Gagiri Hari Krishna versus M/s Jasper Industries Pvt Ltd
Citation: 2022 LiveLaw (Tel) 32
The Telangana High Court has ruled that in the absence of a privity of contract parties cannot be referred to arbitration.
The Single Bench of Justice Ujjal Bhuyan held that the word 'party' under the Arbitration and Conciliation Act, 1996 (A&C Act) has been given a definite meaning with respect to an arbitration agreement. The Court added that only the disputes between the signatories to an arbitration agreement can be referred to arbitration and a third party cannot be roped into arbitration in the absence of privity of contract.
Case Title: Mrs. Ragya Bee (deceased) and Others versus M/s. P.S.R. Constructions
Citation: 2022 LiveLaw (Tel) 28
The Telangana High Court has held that a Civil Court does not have the power to modify an arbitral award in an application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) to set aside an arbitral award.
The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, ruled that execution proceedings are not maintainable with respect to the decision of a Civil Court in a petition filed under Section 34 of the A&C Act.
Case Title: Union of India, Rep. by Ministry of Railways versus Krishnapatnam Railway Company Limited
Citation: 2022 LiveLaw (Tel) 29
The Telangana High Court has ruled that a writ petition under Article 226 of the Constitution of India cannot lie against an order passed by an Arbitral Tribunal in an application filed under Section 16 of the Arbitration and Conciliation Act, 1996 (A&C Act), challenging the jurisdiction of the Arbitral Tribunal, if the challenges raised by the party go into the merits of the claim raised by the claimant before the Arbitral Tribunal and not to the jurisdiction of the Arbitral Tribunal.
The Bench, consisting of Chief Justice Satish Chandra Sharma and Justice A. Rajasheker Reddy, held that a party cannot seek the High Court under Article 226 of the Constitution to traverse into the merits of the claims raised by the claimant in the arbitral proceedings.
Arbitral Award A Nullity If Passed Beyond Prescribed Period: Telangana High Court
Case Title: Roop Singh Bhatty and others versus M/s. Shriram City Union Finance Limited
Citation: 2022 LiveLaw (Tel) 24
The Telangana High Court has held that the provisions of Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act) are cast in mandatory terms and the mandate of the arbitrator terminates under Section 29A(4) after the expiry of the prescribed period, making the arbitrator functus-officio and the award passed by him a nullity.
The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, ruled that substitution of Section 29A(1) of the A&C Act by the Amendment Act of 2019, amending the time limit for making an award, does not operate retrospectively, and merely because the word substitution is used the amended provision does not relate back to the date of the original provision.
Case Title: M/s. M.S.R. Enterprises versus M/s. Pooja Enterprises
Citation: 2022 LiveLaw (Tel) 40
The Telangana High Court has ruled that in proceedings for execution of an arbitral award the whole gamut of CPC is not attracted, and a Court while dealing with an application under Section 36 of the Arbitration and Conciliation Act, 1996 (A&C Act) for enforcement of an award is not bound by the provisions of Section 47 of the Code of Civil Procedure, 1908 (CPC) and is not required to decide on the validity of the award before seeking its enforcement.
The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, held that application of Section 47 of CPC would leave Section 34 of the A&C Act redundant and it will be inconsistent with the scheme of the A&C Act.
Arbitral Award Must Be In Accordance With The Terms Of The Contract: Reiterates Telangana High Court
Case Title: C. Srimannarayana versus Hindustan Petroleum Corporation Limited, SECBAD and Another
Citation: 2022 LiveLaw (Tel) 43
The Telangana High Court has reiterated that an arbitral award must be in accordance with the terms of the contract.
The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, quashed an arbitral award on the ground that the clauses of the contract were not properly construed by the Arbitrator and that it was a non-speaking order which was rendered without discussing the contentions raised by the claimant.
