Calcutta High Court Weekly Round-Up: August 14 - August 20 , 2023

NOMINAL INDEXKobelco Construction Equipment India Private Limited vs. Lara Mining & Anr. 2023 LiveLaw (Cal) 222M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West Bengal 2023 LiveLaw (Cal) 223Prapti Chakraborty v State of West Bengal & Ors. 2023 LiveLaw (Cal) 224Dr. Sujoy Biswas Vs. State of West Bengal & Anr 2023 LiveLaw (Cal) 225Debarati Banerjee v The State of West Bengal & Anr. 2023 LiveLaw (Cal) 226Sk. Reajul Hoque @ Sk. Riajul Vs The State of West Bengal 2023 LiveLaw (Cal) 227HDFC Bank Limited & Anr. V The State Of West Bengal & Anr. 2023 LiveLaw (Cal) 2281. Arbitration Clause Cannot Be Incorporated By Reference, Without Clear Intention Of Parties: Calcutta High CourtCase: Kobelco Construction Equipment India Private Limited vs. Lara Mining & Anr.Citation: 2023 LiveLaw (Cal) 222The Calcutta High Court has recently dismissed applications for interim relief filed by Kobelco Construction Equipment India Private Limited under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”).In dismissing the prayer for an interim injunction on the respondents, and holding that the petitioners could not be allowed to incorporate an arbitration clause by-reference from the ‘Master’ agreement to the ‘Settlement’ agreement in the absence of unambiguous intention of both parties, a single-bench of Justice Moushumi Bhattacharya opined:The present case involves two arbitration clauses and the Court is being asked to hold that the arbitration clause of the first Agreement should be treated as being incorporated into the second Agreement by reference…there is no special reference indicating a mutual intention on the part of the petitioner, SREI and the respondent no. 1 to incorporate the arbitration clause from the Master Facility Agreement to the Settlement Agreement. A general reference to the Master Facility Agreement is not sufficient to incorporate the arbitration clause.2. Application For Removal Of Arbitrator Must Be Made Before Same ‘Court’ As Envisaged In s.2 (i) (e) & s.42 Of Arbitration Act: Calcutta High CourtCase: M/S. Gammon Engineers And Contractors Pvt. Ltd. V The State Of West BengalCitation: 2023 LiveLaw (Cal) 223The Calcutta High Court recently dismissed an application filed by M/S Gammon Engineers and Contractors Private Limited (“petitioners”) u/s 11(6), 14 and 15 of the Arbitration and Conciliation Act, 1996 (‘Act’), for removal of arbitrator while challenging their unilateral appointment.In dismissing the application, a single-bench of Justice Shekhar B Saraf held that a challenge for withdrawal/removal of arbitrator would not be maintainable before the High Court, since an earlier Section 9 application for interim relief had been filed before the Jalpaiguri District court.The understanding of ‘court’ under Section 42 is indisputably in terms of Section 2(1)(e) of the Act. The application under Section 9 is also made to a ‘court’ as understood under Section 2(1)(e) of the Act. Once such an application to a ‘court’ as understood under Section 2(1)(e) of the Act is made, all further applications under Part I to a ‘court’ must be to the ‘court’ to which the prior application has been made. This is the mandate of Section 42 of the Act. Therefore, the bar under Section 42 would lie and all applications to be made to a ‘court’ must be made to the District Judge at Jalpaiguri. In light of the above, A.P. 785 of 2022 is disposed of for not being maintainable before the High Court at this stage,” it held.3. Teachers Can Claim Transfer On Fulfilment Of Criterion Under Service Conditions, Authority Must Take Steps To Fill Resultant Vacancy: Calcutta HCCase: Prapti Chakraborty v State of West Bengal & Ors.Citation: 2023 LiveLaw (Cal) 224The Calcutta High Court has recently allowed an appeal, challenging the order of a single-bench dismissing the writ petition filed by a high-school teacher against refusal of her transfer application by the head of institution.In directing the Commissioner of School Education to consider the petitioners transfer application in accordance with prevalent norms and students’ interest, a division-bench of Justice Soumen Sen and Justice Uday Kumar held:We are not unmindful of the fact that in view of the Right of Children to Free and Compulsory Education Act, 2009 it is the obligation of the State to implement the provisions of the said Act. We cannot also lose sight of the fact that there is a need for rationalization of policy of transfers of the teachers. The service conditions gives right to claim transfer on fulfilment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of Institution and no sufficient material is produced before us to justify the said stand. 4. Calcutta High Court Refuses To Quash Case Against ‘Doctor’ Accused Of Criminal Intimidation By 85 Yrs Old AdvocateCase: Dr. Sujoy Biswas Vs....

Calcutta High Court Weekly Round-Up: August 14 - August 20 , 2023

Srinjoy Das

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