Arbitration Monthly Digest - April 2024
Ausaf Ayyub
3 May 2024 12:30 PM GMT
Allahabad High Court Allahabad High Court Directs Inquiry Against Officers Who Failed To File Arbitration Appeals Within Prescribed Limitation Case Title: Executive Engineer Drainage Division v. Ms Ayush Construction And Another [APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 89 of 2024] The Allahabad High Court has directed...
Allahabad High Court
Case Title: Executive Engineer Drainage Division v. Ms Ayush Construction And Another [APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 89 of 2024]
The Allahabad High Court has directed Principal Secretary/Additional Chief Secretary, Irrigation, Uttar Pradesh to conduct an inquiry against officers who were responsible for filing appeals under Section 37 of the Arbitration and Conciliation Act, 1996 which were filed after a delay of 513 days.
While dismissing the appeals filed under Section 37 of the Arbitration and Conciliation Act, 1996, the bench comprising of Chief Justice Arun Bhansali and Justice Vikas Budhwar held that “the proceedings have been conducted in reckless manner which is other than bona fide.”
Case Title: Blacklead Infratech Pvt. Ltd. v. Ekana Sportz City Pvt. Ltd, Civil Misc. Arbitration Application No. 94 of 2023
The High Court of Allahabad has held that the issue whether claims between the parties prior to the work order is question are covered by the arbitration clause or not is to be decided by the arbitrator and not by the Court at pre-arbitration stage under Section 11 of the A&C Act.
The Bench of Justice Rajnish Kumar also reiterated that after the judgment in Perkins an interested party cannot act as or appoint a sole arbitrator.
Case Title: North Eastern Railway vs Calstar Steel Ltd.
The Allahabad High Court division bench of Chief Justice Arun Bhansali and Justice Vikas Budhwar held that Section 6 of Commercial Courts Act, 2015 is an enabling provision and does not override agreements made between parties regarding jurisdiction. It held that even if a Commercial Court has jurisdiction as per Section 6, this jurisdiction can be excluded by an arbitration agreement between the parties specifying a different jurisdiction based on their territorial situs.
Case Title: M/S Docket Care Systems vs M/S Hariwill Electronics India Pvt. Ltd. 2024 LiveLaw (AB) 266
The Allahabad High Court division bench of Chief Justice Arun Bhansali and Justice Jaspreet Singh held that expression “in the manner directed by such court” in Section 19 of the Micro, Small And Medium Enterprises Development Act, 2006 gives the discretion to the court to allow the predeposit to be made, if felt necessary, in installments also.
Bombay High Court
Case Title: Kirloskar Pneumatic Company v. Kataria Sales Corporation, Commercial Arbitration Petition, No. 16 of 2023
The High Court of Bombay has held that there is no requirement of Section 21 notice for re-commencing the arbitration after the first award is set aside under Section 34 of the A&C Act.
The bench of Justice Bharati Dangre held that in such a situation there would be no requirement of a fresh invocation notice as the opposite party would already be aware of the existence of the dispute.
Case Title: Riak Insurance and Financial Services & Ors. vs HDFC Bank Limited
Case Number: Arbitration Petition No. 30 of 2021
The Bombay High Court single bench of Justice RI Chagla held that the ineligibility of the arbitrator could only be waived if both parties agree by an express agreement in writing as per Section 12(5) of the Arbitration Act. Parties' consent cannot be implied otherwise.
Case Title: Cardinal Energy and Infra Structure Private Ltd. vs Subramanya Construction and Development Co. Ltd.
Case Number: COMM ARBITRATION PETITION (L) NO.2603 OF 2024
The Bombay High Court single bench of Justice R I Chagla held that the arbitral tribunal has the power to decide whether the non-signatory is bound by the Arbitration Agreement and to implead the non-signatory.
The Court held that the absence of a specific prayer for the impleadment of a non-signatory in a Section 11 Application does not preclude the application of the 'group of companies' doctrine by the arbitral tribunal.
The High Court of Bombay (Goa Bench) has referred the issue of maintainability of a Section 29A application seeking extension of the arbitration before the Commercial Court to a larger bench in view of conflicting views by two co-ordinate benches of the High Court.
The Bench of Justice Bharat P. Deshpande observed that the since Section 29A of the A&C Act not just involves extension of the mandate of the arbitrator, but also questions relating to the substitution, termination and reduction of the fees of the arbitrator, therefore, the power under Section 29A can only lie with the High Court in view of the appointing power given to it under Section 11 of the Act.
However, the Court remarked that since conflicting decisions are taken by the two co-ordinate benches, Judicial Propriety demands that the issue must be referred to a larger bench for an authoritative pronouncement.
Case Title: N.P. Enterprises v. General Manager, Western Railway – Commercial Arbitration Application No. 30940 of 2023
The High Court of Bombay has held that appointment of arbitrator from a narrow panel of 4 arbitrators is violative of Section 12(5) of the A&C Act. It held that such practice of preparing narrow panels restricts free choice and give rise to suspicion that favourites are chosen.
The bench of Justice Bharati Dangre held that independence and impartiality of arbitrators is a hallmark of arbitration and the rule against bias is one of the fundamental principles of natural justice, which is applicable with equal force in all quasi-judicial proceedings.
Case Title: Glencore India Pvt Ltd v. Amma Lines Limited, Arbitration Petition No. 42 of 2024
The High Court of Bombay has held that an arbitrator's mandate would not terminate when the proceedings are not completed within timelines agreed by the parties, if the delays in the conduct of the proceedings are attributable to the party seeking termination of the mandate.
The bench of Justice Bharati Dangre held that generally, in an arbitration not governed by Section 29A, the arbitrator's mandate expires upon its failure to conclude the proceedings within the time period agreed by the parties, however, it would not hold true when the tribunal acted expeditiously and the delays in proceedings were on account of fault of the parties themselves.
Calcutta High Court
Case Title: United Machinery & Appliances v. Greaves Cotton Limited, CS. 2 of 2015
The High Court of Calcutta has dismissed an application filed under Section 8 of the A&C Act by observing that the allegations of fraud and forgery would be serious in nature when the cognizance of the same is take by the magistrate.
The bench of Justice Krishna Rao relied on the judgment of the Supreme Court in A. Ayyasamy vs. A. Paramasiva, (2016) 10 SCC 386 and Rashid Raza vs. Sadaf Akhtar, (2019) 8 SCC 710 to hold that dispute would not be referred to arbitration when the allegations of fraud and forgery are serious in nature and goes to the existence of the agreement containing arbitration clause.
Case Title: M/s Fullerton India Credit Company Limited vs Ms Manju Khati
The Calcutta High Court single bench of Justice Prasenjit Biswas held that a certified copy of the original agreement 'attested by a Notary Public' is sufficient to meet the requirement of Section 8(2) of the Arbitration Act. Once filed, the courts must refer the parties to arbitration.
Section 8(2) of the Arbitration Act provides, “The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.”
Case Title: Centrotrade Minerals & Metals Inc v. Hindusthan Copper Limited. IA. No. GA. 5 of 2021 in EOS. 11 of 2003
The High Court of Calcutta has dismissed an application by Hindustan Copper Limited (HCL) under Sections 48/49 of the A&C Act seeking to refuse enforcement of the foreign award in favour of the Centrotrade Minerals.
The bench of Justice Sugato Majmudar held that once the enforceability of an award is affirmed by the Supreme Court, it cannot be opposed on a new ground which could have been taken in earlier proceedings in relation to the enforceability. It held that such an application would be barred by constructive res-judicata.
Case Title: UpHealth Holdings Inc v. Glocal Healthcare Systems Pvt Ltd, AP-COM/490/2024
The High Court of Calcutta has held that ease of doing business in india with indian entities is also a matter of 'Public Policy'. These observations were made by the High Court while hearing an application under Section 9 of the A&C Act at post award stage in arbitration with seat in United States (US).
The Bench of Justice Ravi Krishan Kapur held that the fruits of the award must be made real and realizable so that the award is not rendered illusory or meaningless. It held that Courts must make serious attempts to protect awarded amount so that the awards are enforced and do not become mere paper awards.
Case Title: Uphealth Holdings Inc v. Glocal Healthcare Systems Pvt Ltd, AP-COM/490/2024
The High Court of Calcutta has held that power of a Court exercising powers under Section 9 of the A&C Act are wider than the powers of a Court under Order XXXVIII Rule 5 of CPC. It held that unlike under CPC, the dissipation of assets is not a mandatory requirement for interim relief under Section 9 of the A&C Act.
The bench of Justice Ravi Krishan Kapur a petitioner under Section 9 of the A&C Act cannot be burdened with the rigours of Order XXXVIII Rule 5 of CPC.
Case Title: Dhansar Engineering Company Pvt Ltd v. Eastern Coalfields Ltd, RVWO No. 38 of 2023
The High Court of Calcutta has held that a policy circular issued by a parent company contemplating arbitration would not be an arbitration agreement if it requires fresh consent of the contractor to refer the dispute to arbitration.
The bench of Justice Ravi Krishan Kapur held that when for existing contracts, the circular required consent of the contractor for reference to arbitration, it cannot be construed to be an arbitration agreement as it would require a fresh arbitration agreement to be executed between the parties prior to reference of dispute to arbitration.
Delhi High Court
The Single Bench of Justice Dinesh Kumar Sharma of Delhi High Court has held that merely because a criminal case of forgery/fabrication has been registered in relation to an agreement, any civil/commercial dispute arising out of such agreement would not become non-arbitrable.
The Court reiterated that pendency of criminal case is not an absolute bar to the maintainability of an arbitration petition. It held that to shut out the arbitration at the initial stage itself would destroy the very purpose for which the parties had entered into arbitration and that there is no inherent risk of prejudice in permitting the criminal proceedings to simultaneously proceed with the arbitration.
Case Title: Startupwala Pvt. Ltd v. Google India Pvt Ltd
Citation: 2024 LiveLaw (Del) 400
The High Court of Delhi has directed Google India to maintain status quo in respect of advertisement displayed on its platforms by observing that the main revenue for a party in an advertisement agreement comes from the ad revenue and en masse blocking of ads would result in irreparable loss to that party.
The bench of Justice Prathiba M. Singh also reiterated that a Section 9 petition would be maintainable in an arbitration with seat of arbitration outside India.
Case Title: BBNL v. Sterlite Technologies Ltd
Citation: 2024 LiveLaw (Del) 401
The Single Bench of Justice Prateek Jalan has referred the question 'Whether non-filing of statement of truth with a Challenge Petition would make the filing non-est' to a larger bench in view of conflicting views taken by two Division Benches.
Case Title: Hfcl Limited Vs Bharat Broadband Network Limited
Citation: 2024 LiveLaw (Del) 390
The Delhi High Court single bench of Justice Jasmeet Singh appointed Justice Mukta Gupta (Retd.) as an arbitrator for a dispute where a Petitioner invoked arbitration by referring to the work orders signed by the parties. The High Court observed the identical nature of the arbitration clauses in the tender and the work orders and held that there was no ambiguity even if the tender prevailed over the work orders in case of any conflict or ambiguity.
Case Title: Sharad Gupta & Ors Vs Shri Vinayak Infraland Pvt. Ltd. & Ors
Citation: 2024 LiveLaw (Del) 398
The Delhi High Court single bench of Justice Jasmeet Singh held that under the Arbitration and Conciliation Act, 1996 there is no provision for splitting of parties and referring part of the subject matter to arbitration. It held that where a suit encompasses matters outside the arbitration agreement and involves parties not party to the said agreement, Section 8 of the Arbitration and Conciliation Act, 1996 does not apply.
Case Title: Union Of India vs M/s Gitwako Farms Private Limited & Anr.
Citation: 2024 LiveLaw (Del) 399
The Delhi High Court division bench of Justice Vibhu Bakhru and Justice Tara Vitasta Ganju rejected an application for condonation of delay and termed it unreasonable that it took the Appellant nearly two months to collate documents that should have been readily available, considering they would have been submitted with the initial application under Section 34 of the Arbitration and Conciliation Act, 1996.
Case Title: North East Centre of Technology Application & Reach v. Divine Bamboo Mat Manufacturing, OMP (T) 1 of 2024
The Single Bench of Justice Neena Bansal Krishna of Delhi High Court has held that the period of limitation for filing an application under Section 14 of the A&C Act seeking substitution of the arbitrator is three years from the date when the right to apply accrues.
The Court also held that an arbitrator would be deemed to have abandoned the arbitration if no proceedings take place for a substantial period of time.
Case Title: NHAI v. M/s IRB Ahmedabad Vadodra Super Express Tollways, OMP(COMM) 455 of 2022
The Single Bench of Justice Prateek Jalan of High Court of Delhi has held that a decision of the arbitral tribunal to refuse to implead a party to the arbitral proceedings does not constitute an 'Interim Award' which can be directly challenged under Section 34 of the Act pending arbitral proceedings.
Case Title: STCI Finance Ltd v. Sukhmani Technologies Pvt Ltd, OMP (COMM) 340 of 2017
The High Court of Delhi has held that mere registration of shares in favor of the pledgee as the "beneficial owner" does not amount to a sale of shares, and the pledgee is not required to account for any sale proceeds until the shares are actually sold to a third party.
The bench of Justice Neena Bansal Krishna held that the pledgee's right of redemption of shares remains alive until such actual sale takes place. It set aside an arbitration award wherein the arbitrator held that once the pledgee becomes the beneficial owner of the pledged shares, it becomes entitled to the credit of the value of the pledged shares.
Case Title: G4S Secure Solutions v. Matrix Cellular (International) Services Ltd, ARB.P. 427 of 2024
The High Court of Delhi has held that the balance days of limitation which were available to a party on 15.03.2020 would become available with effect from 01.03.2022, which is the day on which the benefit of the Suo Moto Extension by the Supreme Court expired.
The bench of Justice Prathibha M. Singh held that a petition under Section 11(6) of the A&C Act would not be time barred when it is filed within the balance period of limitation calculated from 01.03.2022.
Use Of The Word 'Seat' Is Not Compulsory In An Arbitration Clause: Delhi High Court
Case Title: Anju Jain v. M/s WTC Noida Development Company Pvt Ltd, ARB.P. 1329 of 2023
The High Court of Delhi has held that the use of word 'seat' in an arbitration clause is not compulsory to determine the jurisdiction of the Court(s) which would have jurisdiction over the proceedings arising out of the arbitration agreement.
The bench of Justice Pratibha M. Singh held that there would be no seat and venue dichotomy when the jurisdiction conferred on other courts is made subject to the arbitration agreement. It held that in absence of any contrary Indicia, the referred place would be the seat of arbitration.
Case Title: T.V. Today Network Ltd Vs Home And Soul Pvt. Ltd.
The Delhi High Court single bench of Justice Dinesh Kumar Sharma held that court at the Section 11(6) stage should refrain from delving into hyper-technical aspects or intricacies of the arbitration agreement. Instead, the bench held that if an agreement visibly contains an arbitration clause and involves a dispute suitable for arbitration, it must be referred to the arbitrator as a matter of course.
Case Title: MyPreferred Transformation & Hospitality v. Faridabad Implements Pvt Ltd, FAO(OS) (COMM) 67 of 2023
The High Court of Delhi has held that a Petition under Section 34 of the A&C Act cannot be entertained by the Court even if the 30 days condonable grace period given under the proviso to Section 34(3) of the A&C Act expired during the Court breaks and the petition was filed on the date on which the Court reopened.
The bench of Justices Vibhu Bakhru and Tara Vitasta Ganju held that Section 10 of General Clauses Act, which provides that an act is considered to be done within limitation, if it is done on the next day on which the court reopens if the last day of limitation coincided with court holiday, does not apply to a petition challenging arbitration award.
Final Determination On Question Of Arbitrability Should Be Made By The Arbitrator: Delhi High Court
Case Title: Prince Chadha v. Amardeep Singh, ARB.P. 1361 of 2022
The High Court of Delhi has held that final determination on the issue of arbitrability of the dispute and the subject matter should be made by the arbitrator. It held that the scope of Court exercising power under Section 11 of the A&C Act is limited to a prima facie examination of the existence of the agreement.
The bench of Justice Prateek Jalan held that the Court can interfere only when the dispute is ex-facie not arbitrable. It held that an agreement prima facie exists when it contains the signature of the parties and attestation by a Notary Public.
The High Court of Delhi has held that an arbitration award, in which the tribunal rendered findings contrary to its own observations, falls within the rubric 'Public Policy' under Section 34 of the Act.
The bench of Justice Chandra Dhari Singh also held that in a situation wherein the arbitral tribunal has given conflicting awards on an identical issue involving the same parties and with same contractual conditions, the Court would have to set aside the award in such an anomalous situation.
Case Title: M/s Advance Stimul v. GAIL India, ARB.P. 13 of 2014
The High Court of Delhi has held that when the jurisdiction of the MSEF Council is wrongly invoked due to uncertainty in law, the time spent before the Council would not be counted while calculating limitation.
The bench of Justice Pratibha M. Singh held that benefit of Section 14 of Limitation Act, which exempts the bond fide time spent before the wrong forum, would be given in such a situation.
Case Title: Telecommunication Consultants India Ltd v. Shivaa Trading
Citation: 2024 LiveLaw (Del) 471
The High Court of Delhi has held that an award passed by a unilaterally appointed arbitrator can be challenged on ground of invalidity of such appointment and consequent lack of jurisdiction even by the party who made such an appointment.
The bench of Justice Anup Jairam Bhambhani held that a defect of jurisdiction can be challenged at any stage since it goes to the power of the tribunal to decide the dispute. It held that mere participation in the arbitral proceedings cannot be deemed to be an 'express waiver' in terms of Section 12(5) of the A&C Act.
Case Title: M/s Advance Stimul v. GAIL India
Citation: 2024 LiveLaw (Del) 457
The High Court of Delhi has held that a notice given by a party invoking jurisdiction of MSEF Council under Section 18 of the MSMED Act can be considered to be a notice of arbitration required under Section 21 of the A&C Act.
The bench of Justice Pratibha M. Singh held that prior to the judgment of the Supreme Court in Gujarat State Civil Supplies Corporation and M/S Silpi Industries, the position of law with respect to an entity not registered under the MSMED Act at the time of contract was not clear, therefore, the party wrongly invoking jurisdiction of MSEF Council cannot be faulted if it was due to uncertainty in law.
Case Title: Akhil Gupta v. Hindustan Unilever Ltd
Citation: 2024 LiveLaw (Del) 456
The bench of Justice Prathiba M. Singh of Delhi High Court has held that pre-arbitral steps providing for resolution of disputes through mutual talks or through Ombudsman would lose its relevance when a party fails to give reply to notices issued by the other party seeking amicable settlement.
Case Title: Lease Plan India Pvt Ltd v. Rudrakash Pharma Distributor
Citation: 2024 LiveLaw (Del) 454
The Single Bench of Justice Prateek Jalan of High Court of Delhi has held that service of the petition on the WhatsApp number and the Email address mentioned in the agreement between the parties constitutes a valid service.
Case Title: Cobra Instalaciones Y Servicios v. Haryana Vidyut Prasaran Nigal Ltd
Citation: 2024 LiveLaw (Del) 453
The High Court of Delhi has held that an arbitrator is empowered to award compensation to an aggrieved party that has suffered losses on the basis of 'rough and ready method' or 'guesswork' when the loss is difficult to prove.
The bench of Justices Rajiv Shakdher and Amit Bansal held that as long as there is material available with the arbitrator that damages have been suffered, but it does not give him an insight into the granular details, he is permitted the leeway to employ honest guesswork and/or a rough and ready method for quantifying damages.
Case Title: Paisalo Digital Limited v. Sat Priya Mehmia Memorial Educational Trust
Citation: 2024 LiveLaw (Del) 475
The High Court of Delhi has held that assurance given by a party to repay the debts in letter issued to the other party would amount to an acknowledgement of the debt within the meaning of Section 18 of the Limitation Act.
The bench of Justic Prathiba M. Singh held that such an acknowledgement would give rise to a fresh cause of action and the period of limitation would run afresh from the date of such acknowledgement as provided under Section 18 of the Limitation Act.
Case Title: Religare Finvest Limited v. Widescreen Holdings Pvt Ltd
Citation: 2024 LiveLaw (Del) 482
The High Court of Delhi has held that a Court exercising powers under Sections 14 & 15 of the A&C Act can extend the mandate of the arbitrator if no ground for its substitution is made out in the application.
The bench of Justice Neena Bansal Krishna held that once the Court is satisfied that there is no ground for substitution of the arbitrator, the Court can extend the mandate even without an application under Section 29A(4) of the Act.
Case Title: Samrata Constructions Company v. Union of India
Citation: 2024 LiveLaw (Del) 481
The High Court of Delhi has held that when the arbitral tribunal fails to deal with submissions of a party on a contentious issue, the resultant award would not fulfil the requirements of a reasoned award as required under Section 31 of the A&C Act. It held that the tribunal cannot simply accept unquantified claims without assigning reasons and without dealing with the objections to those claims.
The bench of Justices Vibhu Bakhru and Tara Vitasta Ganju held that once it is found that the agreement has been validly terminated in accordance with the terms of the Contract, it follows that the earnest money is not liable to be refunded.
Case Title: Religare Finvest Limited v. Widescreen Holdings Pvt Ltd
Citation: 2024 LiveLaw (Del) 479
The bench of Justice Neena Bansal Krishna of Delhi High Court has held that mandate of the arbitrator cannot be terminated when the delay in proceedings was on account of pendency of appeal against the decision of the arbitral tribunal.
The Court held that time consumed in the appeal and the consequent SLP and clarificatory applications cannot be attributed to the arbitral tribunal as a delay in the conduct of arbitral proceedings.
The High Court of Delhi has held that the appointment of the arbitrator cannot be called unilateral when the tribunal was constituted pursuant to the consent by the respondent to the appointment from a panel of 5 names.
The Bench of Justice Prathiba M.Singh held that appointment of arbitrator from a panel of 5 names consisting of retired govt. officials would be valid in terms of the judgment of the Supreme Court in Central Organisation for Railways which continues to hold the field despite pending before a larger bench in absence of a stay on the judgment.
Case Title: Pankaj Singh V. Bashir Ahmed Haroon
Citation: 2024 LiveLaw (Del) 477
The Delhi High Court single bench of Justice Dinesh Kumar Sharma has held that while the court's jurisdiction is limited at the time of making a reference, it is not expected to mechanically refer the dispute to arbitration.
The Court also held that once a party has chosen to file a civil suit to get the disputes resolved, it cannot be permitted to invoke arbitration when the suit fails. The Court also held that arbitration clause in an earlier agreement cannot be invoked if the subsequent agreement does not refer to the previous agreement.
Case Title: Paisalo Digital Limited v. Sat Priya Mehmia Memorial Educational Trust
Citation: 2024 LiveLaw (Del) 476
The High Court of Delhi has imposed costs of Rs. 5 lakhs on a party that failed to disclose an unfavourable order under SARFAESI Act while seeking interim relief under Section 9 of the A&C Act.
The bench of Justice Prathiba M. Singh held that pendency of proceedings under SARFASI Act is not a bar on initiation of proceedings under A&C Act, however, a party must disclose a fact essential for fair adjudication on the dispute.
Case Title: Hardy Exploration & Production (India) Inc v. Government of India
Citation: 2024 LiveLaw (Del) 497
The Delhi High Court on Tuesday imposed Rs. 50,000 cost on Central government for seeking repeated adjournments in a petition for enforcement of an arbitral award, allegedly having a monetary value of over Rs.1100 crores.
The bench of Justice Prateek Jalan noted that the Union had sought another adjournment despite the objections of party seeking enforcement and the assurance given by the Union on last hearing that no further adjournments shall be sought.
Gauhati High Court
The Gauhati High Court single bench of Justice Michael Zothankhuma held that while the primary authority to determine non-arbitrability lies with the Arbitral Tribunal, the Court may intervene in manifestly non-arbitrable claims to prevent resource wastage.
“To appoint an Arbitrator, even though there is no doubt in the view of this Court that the present dispute is not arbitrable, would lead to wastage of resources, besides being a sheer waste of time.”
Gujarat High Court
Case Title: M/s Ghakun Steels Pvt Ltd v. State of Gujarat, R/Special Civil Application No. 4876 of 2024
LL Citation: 2024 LiveLaw (Guj) 51
The bench of Justice Vaibhavi D. Nanavati of Gujarat High Court has held that an award passed by MSEF Council under Section 18 of the MSMED Act cannot be directly challenged in a writ petition and the aggrieved party has to challenge it under Section 34 of the A&C Act.
The Court relied upon the judgment of the Supreme Court in India Glycols Ltd., Vs. Micro and Small Enterprises Facilitation Council 2023 LiveLaw (SC) 992 wherein the Apex Court held that a writ against an award by MSEF Council is not maintainable and the award can be challenge only through Section 34 of the A&C Act r/w Section 19 of the MSMED Act providing for 75% mandatory pre-deposit of the awarded amount.
Himachal Pradesh High Court
Case Title: Pawan Sahni & others vs Satish Sharma & others
The Himachal Pradesh High Court single bench of Chief Justice M.S. Ramachandra Rao held that there is a tendency of the parties to impugn the motives of Arbitrators without affording them the opportunity under Section 13(2) of the Arbitration and Conciliation Act, 1996. It held that such baseless allegations and accusations could needlessly tarnish the reputation of Arbitrators especially of retired High Court Judges and undermine the arbitration process.
Karnataka High Court
Case Title: Buoyant Technology Constellations Pvt Ltd v. Manyata Infrastructure Developments Pvt Ltd, WP. 8654 of 2024
The High Court of Karnataka has dismissed a writ petition seeking termination of arbitral proceedings under Section 29A of the A&C Act by observing that the arbitrator had proceeded diligently and it was the petitioner itself who had taken various adjournments causing delay. It imposed a cost of Rs. 25,000/- on the petitioner.
The bench of Justices S.G. Pandit and C.M. Poonacha held that the 12 months period for delivery of an arbitral award under Section 29A would begin from the date of completion of proceedings which would also include a sur-rejoinder statement if permitted.
Case Title: M/s Azeem Infinite Dwelling v. M/s Patel Engineering, Commercial Appeal No. 60 of 2024
The High Court of Karnataka has held that a termsheet for buyout is only an offer and a contract if it was valid only for a limited period or till the execution of a definitive agreement.
The Bench of Justices Anu Sivaraman and Anant Ramanath Hedge ruled that a termsheet would expire if the specified period for executing a definitive agreement passes without such an agreement being made. It held that an expired termsheet cannot be enforced or acted upon.
The Issue Of Limitation Is Also Part And Parcel Of The Arbitrable Point: Karnataka High Court
Case Title: Shivaraj Kamshetty v. The Managing Director Karnataka State Agricultural Marketing Board, Civil Misc Petition No. 20003 of 2022
Citation: 2024 LiveLaw (Kar) 201
The bench of Justice C.M. Joshi of Karnataka High Court (Kalaburagi Bench) has held that the issue of limitation of claims is a part and parcel of the arbitrable point which can be decided by the arbitrator.
The Court relied upon the judgment of the Apex Court in BSNL v. Nortel Neworks, LL 2021 SC 153 wherein the Apex Court held that issue of limitation is a mixed question of law and fact which should be decided by the arbitral tribunal. Further, the Court had held that the Court exercising power under Section 11 of the A&C Act can refuse arbitration only when the claims are ex-facie barred by limitation.
Kerala High Court
The Kerala High Court single bench of Justice G. Girish held that the appointment of a sole arbitrator by the Government of Kerala violated Section 12(5) of the Arbitration and Conciliation Act, 1996, as well as the precedent set by the Supreme Court in the Perkins Eastman case.
The court held that the Government of Kerala being the holder of 99.99% of the equity shares with voting rights of a company had an interest in the dispute. Consequently, it held that this inherent interest made the Government of Kerala disqualified under Section 12(5) read with the Seventh Schedule of the Arbitration Act to appoint the sole arbitrator.
Madhya Pradesh High Court
Case Title: Ramesh Kumar Khandelwal v. The State of Madhya Pradesh, WP No. 11123 of 2019
The High Court of Madhya Pradesh, Jabalpur bench has held that a writ would not be entertained when the petitioners fail to avail the efficacious contractual remedy before the Arbitrator.
The bench of Justice Gurpal Singh Ahluwalia held that merely because the nominated arbitrator is the managing director of the respondent corporation, it cannot be assumed that it would not be able to fairly discharge its functions as an arbitrator.
Case Title: Fulkunwar v. Saksham Pradikari, Writ Petition NO. 6939 of 2024
The High Court of Madhya Pradesh has held that a writ petition filed to challenge an arbitral award is not maintainable in view of the efficacious alternative statutory remedy available under Section 34 of the A&C Act.
The bench of Justices Sushrut Arvind Dharmadhikari and Gajendra Singh held that a writ petition should be dismissed in limine when there is a statutory appeal available. It held that statutory remedies available under Sections 34 and 37 of the A&C Act cannot be bypassed by the parties.
Case Title: Ilwonhibrand Co. Ltd. vs Mahakali Foods Pvt. Ltd. and Others
The Madhya Pradesh High Court division bench of Justice Sushrut Arvind Dharmadhikari and Justice Devnarayan Mishra dismissed a petition seeking interim relief under Section 9 of the Arbitration and Conciliation Act, stating it should have been filed as a 'Miscellaneous Civil Case' rather than an 'Arbitration Case' based on Chapter 2 of the Arbitration and Conciliation (Conduct of Arbitral Proceedings) Rules, 2008.
Case Title: Ramesh Kumar v. Madhya Pradesh Rural Road Development Authority, Arbitration Revision No. 47 of 2022
The High Court of Madhya Pradesh, at Jabalpur, has held that the Arbitration under Section 7 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 cannot be invoked without first invoking the pre-arbitral in-house remedy provided under the agreement within the period of 30 days given under the Agreement.
The bench of Justices Sheel Nagu and Vinay Saraf held that the pre-arbitral in-house remedy must be invoked within the 30 days from the termination of the works order as provided under the agreement. It held the 3 year limitation period as provided under Section 7 of the Act of 1983 would not be available for reference before the in-house authority.
Madras High Court
Case Title: M/s Bagalkot Cement & Industries Ltd vs The Chairperson, Micro Small and Medium Enterprises and Anr.
Citation: 2024 LiveLaw (Mad) 144
The Madras High Court single bench of Justice R. N. Manjula held that the imposition of three times of the bank rate of interest on the award amount by the Micro Small and Medium Enterprises, Facilitation Council is violation of fundamental principles of reasonableness and fairness. It held that the Petitioner is indirectly deprived of his appeal remedy in view of such high rate of interest.
Case Title: Sahayaraj V. M/s Shriram Transport Finance Company Ltd, CRP(MD) No. 576 of 2024
Citation: 2024 LiveLaw (Mad) 166
The High Court of Madras at Madurai has held that an Executing Court cannot go behind an arbitration award and decides issues on merit of the award.
The bench of Justice G. Ilangovan held that an arbitration award can only be challenged under Section 34 of the A&C Act and party failing to challenge the award therein cannot raise contentious issues on merit of the award before the executing court.
Case Title: M/s Colorhome Developers Pvt Ltd v. M/s Color Castle Owners Society, OSA(CAD) No. 113 of 2022
Citation: 2024 LiveLaw (Mad) 169
The High Court of Madras has held that a plea regarding lack of jurisdiction or invalidity of the appointment of the arbitrator must be raised before the arbitrator during the arbitral proceedings. It held that if such a plea is not taken at the first instance or, the Court in appeal cannot entertain such an objection.
The bench of Justices R. Subramanian and R. Sakthivel also held that an objection regarding validity of the invocation of the arbitration dismissed by the Court under Section 11 cannot be raised again in appeal.
Case Title: M/s Geojit Financial Services Ltd v. Mrs. Nalani Rajkumar, Original Side Appeal (CAD) No.51 of 2021
Citation: 2024 LiveLaw (Mad) 170
The High Court of Madras has held that an arbitration award based on an evidence taken on record after the completion of arguments and behind the back of a party would be liable to be set aside under Section 34 of the A&C Act.
The bench of Justices R. Subramanian and R. Sakthivel held that when an evidence is taken behind the back of a party and after the completion of arguments, it deprives that party of its valuable opportunity to dispute such evidence/document.
Patna High Court
Case Title: Murari Prasad v. The National Highway Authority of India, Civil Writ Jurisdiction Case No. 15938 of 2023
The Bench of Justice Rajiv Roy of Patna High Court has held that a writ petition is not maintainable to challenge an order of Arbitrator dismissing reference under NHAI Act for default. It held that the aggrieved party should challenge the award under Section 34 of the Act.
Case Title: Shameen Sultana Khan vs Faizunnisaa Begum
The Telangana High Court single bench of Chief Justice Alok Aradhe held that under Section 16(1) of the Arbitration and Conciliation Act, 1996 the arbitral tribunals have the power to rule on its own jurisdiction including deciding the non-arbitrability of a dispute. Further, the court held that disputes related to insolvency and winding-up of a partnership concerning partners' rights and obligations are arbitrable.
Punjab & Haryana High Court
Case Title: Gaurav Rice Industries v. The Haryana State Coop. Supply and Marketing Fed. Limited, FAO-CARB No. 58 of 2023
The Division Bench of Justices Arun Palli and Vikram Aggarwal of the High Court of Punjab & Haryana has held that an arbitration award cannot be considered patently illegal due to arbitrator's acceptance of a claim in toto if the respondent did not file any written statement of defence nor led any evidence to contest the claimed amount.
Case Title: M/s SAARC Communication Private Ltd. vs The Doaba Cooperative Milk Producers Union Ltd. and Others
The Punjab and Haryana High Court single bench of Justice Suvir Sehgal dismissed an application under Section 11(6) of the Arbitration Act, 1996 and noted that the Petitioner failed to send a clear notice as per Section 21 of the Act. The bench held that a notice under Section 21 has to be unequivocal to leave no manner of doubt in the mind of the noticee that the claimant intends to invoke the arbitration clause.
Rajasthan High Court
Case Title: Vimlesh Baregama v. Manglam Cement Ltd, S.B. Arbitration Application No. 23 of 2021
The High Court of Rajasthan, Jaipur Bench, has held that an application seeking the appointment of an arbitrator would not be allowed if the parties had already entered into a full and final settlement, and the applicant had encashed the settlement amount without protest or objection. The Court held that in such cases, the dispute would be considered non-arbitrable.
Chief Justice Manindra Mohan Shrivastava's bench further clarified that a petition seeking the appointment of an arbitrator would be deemed frivolous if it fails to disclose the full and final settlement between the parties and the encashment of cheques issued as part of the settlement.
The Court explained that although there is limited scrutiny permissible under Section 11(6) of the Arbitration and Conciliation Act, a petition may still be allowed, and an arbitrator appointed, if the petitioner can demonstrate fraud or economic duress. However, the Court emphasized that if the settlement amount was accepted without protest, the petition seeking the appointment of an arbitrator would not be maintainable.
Case Title: M/s T.K. Engineering Consortium vs M/s Potin Pangin Highway Pvt. Ltd. and Ors.
Case Number: Arbitration Application No. 70 of 2023
The Telangana High Court single bench of Chief Justice Alok Aradhe held that the precondition for invoking the arbitration clause is considered fulfilled when parties explore the possibility of settling the dispute amicably through arbitration. Correspondence and exchanges between the parties can be perused to assess whether there was an agreement over an amicable settlement.
