Arbitration Cases Weekly Round-Up: 20 November To 26 November, 2022

Rights Under An Agreement Are Superseded By A Subsequent One? Arbitrator To Decide: Delhi High Court

Case Title: PVR Limited versus Imperia Wishfield Private Limited

The Delhi High Court has ruled that the arbitration clause relates to the resolution of disputes between the parties and not the performance of the contract and thus, the arbitration agreement survives even if the contract comes to an end.

The single bench of Justice Mini Pushkarna held that the issue whether the rights of parties under an agreement are superseded by a subsequent agreement or not, is itself an arbitrable issue which can be examined by the arbitrator.

Amazon - Future Group Arbitration- Delhi High Court Dismisses Future's Application Being Interlocutory

Case Title: Future Coupons Private Limited & Ors. versus AMAZON.COM NV Investment Holdings LLC & Anr.

The Delhi High Court has dismissed the petition filed by Future Coupons Pvt. Ltd., challenging the order passed by the Arbitral Tribunal allowing Amazon's application for amendment of Claims, seeking repudiatory damages for breach of Agreements executed with Future Coupons. The Court ruled that the said order was interlocutory in nature, and thus, it is not amenable to challenge under Article 227 of the Constitution of India.

The single bench of Justice C. Hari Shankar reiterated that interlocutory arbitral orders are amenable to challenge under Article 227 of the Constitution only in cases where the order is assailed on the ground of want of good faith, or where the party is otherwise remediless.

Challenge Under Section 17 Of The SARFAESI Act Against Action Taken By Secured Creditor, Would Not Bar Arbitration Proceedings: Delhi High Court

Case Title: Hero Fincorp. Limited versus Techno Trexim (I) Pvt. Ltd. & Ors.

The Delhi High Court has reiterated that arbitration proceedings and proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 (SARFAESI Act) can go hand in hand.

The single bench of Justice V. Kameswar Rao held that even if a party intended to take action under Section 17 of the SARFAESI Act by filing a petition before the Debt Recovery Tribunal (DRT), to challenge the action taken by the secured creditor under Section 13 (4) of the SARFAESI, that would not bar the initiation of arbitration proceedings by the secured creditor.

Acceptance Of Goods Does Not Constitute Acceptance To Arbitration Clause, Unilaterally Included In Delivery Challan: Delhi High Court

Case Title: M/s Hetampuria Tax Fab versus M/s Daksh Enterprises

The Delhi High Court has ruled that unilaterally including a clause in the Delivery Challan would not constitute an arbitration agreement between the parties merely because the opposite party had accepted the delivery of goods and had signed the Delivery Challan certifying the acceptance of goods.

The bench of Justices Vibhu Bakhru and Amit Mahajan held that in order to constitute an arbitration agreement, there must be a consensus between the parties. Therefore, the Court ruled that an arbitration agreement cannot come into existence by a party unilaterally issuing a Delivery Challan and the opposite party accepting delivery of the goods.

Non-Participation Of Defendant Is Good For Compliance Of Sec 12-A Of The Commercial Courts Act: Delhi High Court

Case Title: Kapil Goel versus Ram Dulare Yadav

The High Court of Delhi has held that the failure of the defendant to participate in the Pre-Institution Mediation suffice the requirement of Section 12-A of the Commercial Courts Act, 2015.

The bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad held that the consent of the plaintiff for instituting the pre-suit meditation would be irrelevant if the defendant refuses to participate to take part in the proceedings.

Extension Of Limitation For Section 34 Application, Is Not Contingent On Merits Of Section 33 Application: Delhi High Court

Case Title: Vidhur Bhardwaj versus Horizon Crest India Real Estate & Ors.

The Delhi High Court has ruled that the benefit of extension of limitation for filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), by virtue of an application filed under Section 33, for correction and interpretation of award, would not apply solely to the parties making the request under Section 33.

The single bench of Justice Vibhu Bakhru held that the issue whether the limitation for filing a Section 34 application would run from the date of disposal of the application under Section 33 or from the date of receipt of the award, is not contingent upon the arbitral tribunal's decision on the application filed under Section 33.

Kerala High Court:

Intention Of Parties As To Seat Of Arbitration Can Be Determined From Their Conduct: Kerala High Court

Case Title: M.A. Hakkim versus M/s Patanjali Agro India Pvt. Ltd.

Citation: 2022 LiveLaw (Ker) 616

The Kerala High Court recently reiterated that the intention of the parties to an agreement, as to the seat of arbitration, can be determined from their conduct.

Justice N. Nagaresh was dealing with a case where the Sale Contract between the parties prescribed Haridwar as the seat of arbitration but the subsequent High Sea Sale Agreement prescribed Kollam as the seat.