“In Chandler v. Webster, [1904] 1 KB 493 Mr. Chandler rented space from Mr. Webster for viewing the coronation procession of King Edward VII to be held on 26th June, 1902. Mr. Chandler had paid part consideration for the same. However, due to the King falling ill, the coronation was postponed. As Mr. Webster insisted […]
Read more "The Doctrine of Frustration of Contract II"“While dealing with a case where instead of an odd number of Arbitrators, as is contemplated under Section 10, the parties had agreed to Arbitration of 2 Arbitrators and where objection in that behalf was not taken before the Arbitrators, a 3 Judge Bench of this Court in Narayan Prasad Lohia v. Nikunj Kumar Lohia, […]
Read more "Section 4 of The Arbitration Act I"Before 3-Judges in Mankastu Impex Private Limited v. AirVisual Limited, [Arbitration Petition No. 32 of 2018] it was submitted, i) declaration by 3-Judges in BGS Soma [Later Bench], to the effect 3-Judges in Hardy Exploration [Earlier Bench] did not declare ‘good law’, may not tantamount to an overriding of Hardy Exploration and ii) 3-Judges in BGS Soma […]
Read more "Seat of Arbitration I"“In Brojo Nath Ganguly, (1986) 3 SCC 156 this Court considered the concept of unconscionable bargain. “The word ‘unconscionable’ is defined in Shorter Oxford English Dictionary, [Third Edition, Volume II, Page 2288] when used with reference to actions, etc. as “showing no regard for conscience; irreconcilable with what is right or reasonable”. An unconscionable bargain […]
Read more "Unconscionable Bargain"“It is not quite accurate to say that the word ‘may’, by itself, acquires the meaning of ‘must’ or ‘shall’ sometimes.” – Dharti Dhan, (1977) 2 SCC 166. “It is not to be taken that once the word ‘may’ is used, it per se would be directory. In other words, it is not merely the […]
Read more "May & Shall I"We need to be cognizant of the fact, Arbitral Awards should not be interfered with in a casual and cavalier manner, unless Court comes to a conclusion, the perversity goes to the root of the matter, unpardonable under Section 34, without there being a possibility of an alternative interpretation which may sustain the Arbitral Award. […]
Read more "Section 34 of The Arbitration Act III"On a lighter note, the following observations of Hon’ble Justice R.F. Nariman in BGS SGS Soma JV v. NHPC Ltd., [Civil Appeal No. 9307 of 2019] is interesting for the reason, it points out Hon’ble Chief Justice of India Dipak Misra failed to apply Hon’ble Justice Dipak Misra. The percentage of seriousness can be increased […]
Read more "Referred to Larger Bench XIII Criticized: Venue v. Seat, Arbitration"“Section 11 was substantially amended by The Amendment Act of 2015. By virtue of the non obstante clause incorporated in Section 11(6A), Patel Engineering, (2005) 8 SCC 618 and Boghara Polyfab, (2009) 1 SCC 26 were legislatively overruled. The scope of examination is now confined only to the existence of the Arbitration Agreement at the […]
Read more "Section 16 of The Arbitration Act"My Lord, Amendments made in Section 34 are applicable to Applications under Section 34 after 23.10.2015? Yes. “Radical changes have been made by The Arbitration and Conciliation (Amendment) Act, 2015 with effect from 23.10.2015. See, Board of Control for Cricket in India v. Kochi Cricket (P.) Ltd., (2018) 6 SCC 287. We declare that Section […]
Read more "Section 34 of The Arbitration Act II"“It is clear from the bare reading of Sub-Section 1(a) of Section 14 that mandate of an Arbitrator shall terminate if it fails to act without undue delay. In the instant case, the Arbitrator became de jure unable to perform his functions. The parties agreed to bind themselves by the time fixed for the Arbitration […]
Read more "Section 14 of The Arbitration Act"“Section 11(6A) was added by The Amendment Act of 2015. Section 3 of The Amendment Act of 2019 insofar as it pertains to omission of this Sub-Section has not yet been brought into force. Omission of the Sub-Section is not so as to resuscitate law that was prevailing prior to The Amendment Act of 2015. […]
Read more "Section 11(6A) of The Arbitration Act"“To read Section 36, prior to 2015 Amendment Act, as inferring something negative, namely, that where the time for making an application under Section 34 has not expired and therefore, on such application being made within time, an automatic-stay ensues, is to read something into Section 36 which is not there at all. This also […]
Read more "Section 36 of The Arbitration Act"It is true, unless agreed, The Amended Act shall not apply to Arbitral Proceedings commenced, before The Amendment Act, in accordance with The Principal Act. “In Union of India v. M.P. Gupta (2004) 10 SCC 504; Union of India v. V.S. Engineering (P) Ltd., (2006) 13 SCC 240; Union of India v. Singh Builders Syndicate […]
Read more "Named Arbitrators"Dicitex was facing financial distress and economical duress. Oriental Insurance had insisted Dicitex to sign a clean discharge voucher and to withdraw the letter of protest addressed by it, failing which, Oriental Insurance would not release the amount reflected in the discharge voucher. HC allowed an application under Section 11(6), preferred by Dicitex, and appointed […]
Read more "Section 11(6) of The Arbitration Act III"“We must first consider whether it is the 1940 Act or the 1996 Act which applies to the Arbitration Applications. It is settled law, the date of commencement of Arbitration Proceedings for the purpose of deciding which Act applies, upon a conjoint reading of Sections 21 and Section 85(2)(a) of the 1996 Act, shall be […]
Read more "Statutory Limitation of Arbitration"Arbitration Agreements need not be a formal contract. Section 7(4)(b) states, an Arbitration Agreement can be derived from exchange of letters, telex, telegram or other means of communication, including through electronic means. What is required to be ascertained is, intention of parties to refer their disputes or differences to Arbitration. A common-sense approach must be […]
Read more "Non-Signatories to Arbitration II"In view of the allegations of fraud levelled that the compromise decree is vitiated by fraud, the parties cannot be referred to Arbitration. Such a plea could be decided only by Civil Court. Observing, where there are allegations of fraud which are so complicated that it becomes absolutely essential that such complex issues can be […]
Read more "Section 8 of The Arbitration Act VII"“Arbitration shall be under Indian Arbitration and Conciliation Law, 1996 and the Venue of Arbitration shall be Bhubaneswar.” “Where the contract specifies the jurisdiction of the Court at a particular place, only such Court will have the jurisdiction to deal with the matter and parties intended to exclude all other Courts. In the present case, […]
Read more "Venue of Arbitration"Sub-Section (3) of Section 36 uses the phrase “have due regard to”. In Pam Developments Pvt. Ltd. v. State of West Bengal, [Civil Appeal No. 5432 of 2019] the phrase has been interpreted to mean that CPC provisions, though to be taken into consideration, are not mandatory. Also see, Shri Sitaram Sugar Company Limited, (1990) […]
Read more "Section 36(3) of The Arbitration Act"The legal position as to when a Non-Signatory to an Arbitration Agreement can be impleaded and subjected to Arbitration Proceedings is no more res integra. Three-Judge Bench in Chloro Controls India Private Limited, (2013) 1 SCC 641 opined, invoking ‘Doctrine of Group of Companies’, Arbitration Agreement entered by a Company, being one within a Group […]
Read more "Non-Signatories to Arbitration I"
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