Arbitration Weekly Round-Up: 20th November to 26th November
ausaf ayyub
27 Nov 2023 10:00 PM IST
Calcutta High Court Exclusive Jurisdiction Clause Takes Precedence Over Generic Jurisdiction Clause In Another Agreement Between The Parties: Calcutta High Court Case Title: R.P. Infosystems Pvt Ltd v. Redington (India) Limited, AP 626 of 2018 The High Court of Calcutta has held that an exclusive jurisdiction clause within the arbitration agreement would override a...
Calcutta High Court
Case Title: R.P. Infosystems Pvt Ltd v. Redington (India) Limited, AP 626 of 2018
The High Court of Calcutta has held that an exclusive jurisdiction clause within the arbitration agreement would override a generic jurisdiction clause contained in another agreement between the parties.
The bench of Justice Shekhar B. Saraf held that the moment an arbitration clause confers exclusive jurisdiction on the Court at a particular place or the seat of arbitration is declared, it would mean that all other Courts would not have the jurisdiction to entertain any petition arising out of the arbitration agreement.
Case Title: ILEAD Foundation v. State of West Bengal, WPA No. 25102 of 2022
The High Court of Calcutta has held that a writ petition would not be maintainable due to an alternative remedy in the form of arbitration when the petition involves disputed questions of facts that requires detailed assessment.
The bench of Justice Sabyasachi Bhattacharya held that availability of alternative remedy is not always a bar to the maintainability of the writ petition, however, it would be beyond the domain of the writ court to embark upon a detailed assessment of material and evidences, therefore, the Court would refer the dispute to arbitration for proper adjudication.
Case Title: R.P. Infosystems Pvt Ltd v. Redington (India) Limited, AP 626 of 2018
The High Court of Calcutta has held that an arbitration clause contained in a tax invoice would be binding on the parties when the terms and conditions contained therein were accepted and acted upon by the parties.
The bench of Justice Shekhar B. Saraf held that when a party accepts an invoice incorporating a clearly visible arbitration clause and subsequently acts in accordance with it, the said party cannot later argue the absence of a valid arbitration clause. It also laid down conditions which an arbitration clause contained in a tax invoice has to fulfil for it to be considered valid and binding.
The Court also held that an arbitration clause need not be in any particular form, however, the intention of the parties to arbitrate must be clear and absolute. It held that an arbitration clause can be in myriad shapes and forms and it will be deemed valid as long as the intention of the parties is present. Further, it held that the words used in a clause must be the words of ‘choice’ and not of mere ‘possiblity’.
Case Title: IOCL v. Union of India, WPO No. 1624 of 2023
The Calcutta High Court has held that MSMED Act does not prevent a party from seeking an interim relief under Section 9 of the A&C Act anytime before approaching the Facilitation Council.
The bench of Justice Sabyasachi Bhattacharyya held that the reference of dispute to facilitation council cannot be refused merely on the ground that before making such a reference under Section 18 of the MSMED Act, the seller had approached the Court under Section 9 of the A&C Act for certain interim measures.
The Court held that there is no inconsistency between Section 9 of the A&C Act and Section 18 of the MSMED Act, therefore, despite MSMED Act prevailing over the A&C Act, Section 9 remedy before approaching the Facilitation Council is not barred.
The Court also held that the doctrine of election would not come into play as there is no corresponding provision similar to Section 9 of the A&C Act under the MSMED Act.
Delhi High Court
Case Title: Aman Hospitality Pvt Ltd v. Orient Lites, FAO 222 of 2020
The High Court of Delhi has held that a party cannot challenge an arbitral award on the ground that the tribunal went beyond the scope of reference when it admittedly did not raise any objection when the alleged breach was first committed by the tribunal.
The bench of Justice Dharmesh Sharma held that the tribunal’s decision to include certain invoices in the claim cannot be challenged under Section 34 as being beyond the reference to arbitration when no such objection was raised before the arbitral tribunal.
The Court held that supplies made prior to the date of the agreement would be governed by the arbitration clause in the agreement if the parties made verbal and written modifications to the agreement to include those supplies to settle their running accounts.
Case Title: Italian Thai Development v. NTPC Ltd, OMP(COMM) 343 of 2022
The High Court of Delhi has held that the Court cannot grant unconditional stay on the award under Section 36(3) unless a prima facie case is made out that making of the award is marred by fraud.
The bench of Justice Manoj Kumar Ohri refused to grant a stay in favour of a foreign entity with no roots in India. The Court observed that it has no assets that can be offered as security for securing stay on enforcement of the arbitral award. Moreover, it was not willing to deposit even part of the arbitral award and insisted on an unconditional stay which was not permissible since a case of fraud was not made out.
Case Title: Metal Engineering and Forging Company v. Central Warehousing Corporation, FAO(COMM) 5 of 2023
The High Court of Delhi has held that it would be difficult for any party claiming loss of goodwill to prove or establish the same with any mathematical precision.
The bench of Justices Vibhu Bakhru and Justice Amit Mahajan upheld an arbitral award wherein the arbitrator allowed a party to retain certain amount as penalty, being the genuine pre-estimate of the loss of goodwill without any proof of quantum of actual loss suffered by it.
Telangana High Court
Case Title: Union of India v. B.R. Enterprises, CMA 1007/2008
The High Court of Telangana has set aside an order of the District Court passed under Section 34 of the A&C Act by which the Ld. Additional Chief Judge, City Civil Court, Hyderabad had modified an arbitral award.
The bench of Justice M.G. Priyadarsini held that the Ld. Court committed an irregularity in modifying the amount of compensation awarded by the arbitrator. It held that the Court went beyond the scope of Section 34.
