Arbitration Cases Weekly Round-Up: 6th November - 12th November

Supreme CourtCourt Can Examine If Arbitration Clause Is Arbitrary & Violates Article 14 While Considering S.11(6) Application: Supreme CourtCase Title: Lombardi Engineering Ltd v. State of UttarakhandCitation: 2023 LiveLaw (SC) 958In a significant judgment, the Supreme Court held that a clause in an arbitration agreement which is not in consonance with the Constitution cannot be enforced. The Court further held that it can examine if the arbitration clauses are manifestly arbitrary and violative of Article 14 of the Constitution while considering an application for appointment of arbitrator.A bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra was deciding an application filed by Lombardi Engineering Ltd., a Swiss company, under Section 11(6) of the Arbitration and Conciliation Act 1996 seeking appointment of arbitrator in a dispute with the State of Uttarakhand.The company filed the application before the Supreme Court taking objection to two clauses in the arbitration agreement - one, the condition that 7% of the total claim must be pre-deposited for invoking the arbitration clause; two, the discretion vested with the Principal Secretary/Secretary (Irrigation) to appoint a sole arbitrator.Will The Mandate Of The Tribunal Terminate Under Section 29A Unless Extended During Its Subsistence? Supreme Court To ExamineCase Title: Rohan Builders (India) Pvt Ltd v. Berger Paints India Limited, SLP(C) No. 23320 of 2023The Supreme Court is set to examine an important issue related to the arbitration law that whether the mandate of the tribunal terminates upon the expiry of the time provided under Section 29A unless extended during its subsistence.The bench of Justices Sanjiv Khanna and S.V.N. Bhatti has issued notice in an SLP filed against the order of the Calcutta High Court wherein the High Court held that the mandate of the arbitrator terminates upon the expiry of the time period provided under Section 29A unless it is extended during its subsistence.Allahabad High CourtNo Explanation Of ‘Sufficient Cause’, No Special Concessions To Govt Body For Limitation Vis-A-Vis Commercial Courts Act: Allahabad High CourtCase Title: National Highway Authority Of India, Through Its Project Director v. Smt. Sampata Devi And 2 Others [Appeal Under Section 37 Of Arbitration And Conciliation Act 1996 Defective No. - 53 of 2023]The Allahabad High Court has held that no special concession can be granted to government bodies for condoning delay under Commercial Courts Act, 2015 if sufficient cause is not shown in application for delay condonation.Following the judgement of the Supreme Court in Government of Maharashtra vs. M/s Borse Brothers Engineers and Contractors, Justice Om Prakash Shukla held that appeal under Section 37 of the Arbitration and Conciliation Act, 1996 should be filed within 60 days from date of order under Section 13(1A) of the Commercial Courts Act, 2015. The Court held that in rare cases, where the specified value is less than Rs. 3 lakhs, the limitation period under Articles 116 and 117 of the Limitation Act would be applicable to the appeals, as the case may be.The Court further held that Section 5 of the Limitation Act would apply to arbitration appeals under Section 37 of the Act of 1996. However, even ‘sufficient cause’ made out under Section 5 of the Limitation Act is “not elastic enough to cover long delays” as there is no right to have delays condoned. The Court held that only short delays by way of exception can be condoned, and that too when the party has acted in a bona fide manner and not negligently.Bombay High CourtCourt Can Grant Mandatory Injunction At Interim Stage Under Section 9 Of The A&C Act When Builder Commits Multiple Breaches Eroding Housing Society’s Confidence In It: Bombay High CourtCase Title: Swashray Co-op. Housing Society Ltd v. Shanti Enterprises, Commercial Arbitration Petition (L) No. 10432 of 2023The High Court of Bombay has held that a Court exercising powers under Section 9 of the A&C Act can grant mandatory injunction at an interim stage when the builder is found to be in multiple breaches which results in the co-operative society losing its confidence in the builder.The bench of Justice Manish Pitale held that the relief of mandatory injunction at an interim stage is an extraordinary relief which ought not be granted in every case, however, the Court would not withhold such a relief it withholding such an injunction would be unjust and unconscionable.Calcutta High CourtNo ‘Contra-Indicia’ To Un-Seat Venue: Calcutta High Court Reiterates The Law On Seat & Venue In Arbitral Proceedings.Case: Damodar Valley Corporation v BLA Projects Pvt LtdCitation: 2023 LiveLaw (Cal) 325The Calcutta High Court has held that the venue for arbitration, as decided by the parties under their contractual agreement would automatically be the seat for arbitration, in the absence of any ‘contra-indicia.’In rejecting jurisdictional objections on its...

Arbitration Cases Weekly Round-Up: 6th November - 12th November

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