Weekly Digest Of Arbitration Cases: April 10 To April 17, 2022

Bombay High Court 1. Writ Petitions On The Ground Of 'Exceptional Circumstances' Against Order Passed By The Arbitral Tribunal Not Maintainable: Bombay High Court Case Title: Tagus Engineering Private Limited & Ors. versus Reserve Bank of India & Anr. and IDFC First Bank Limited versus Bell Invest India Limited & Anr. Citation: 2022 LiveLaw (Bom) 127 The Bombay High Court has ruled that remedy against orders passed under Section 16 of the Arbitration and Conciliation Act, 1996 lies elsewhere and the petitioners, aggrieved by the orders passed under Section 16, cannot file Writ Petitions under Article 226 or Article 227 of the Constitution of India on the ground of 'exceptional circumstances'. The Bench, consisting of Justices G.S. Patel and Madhav J. Jamdar, held that it is impermissible for the Court to exercise jurisdiction under Article 226 of the Constitution even on questions with respect to the jurisdictional competence of an Arbitral Tribunal, except in cases where the arbitral tribunal is a statutory tribunal created by a statute. 2. Court Does Not Have Adjudicatory Powers Under Section 27 Of The A&C Act: Bombay High Court Case Title: Dilip s/o. Bhavanji Shah versus Errol Moraes Citation: 2022 LiveLaw (Bom) 130 The Bombay High Court has ruled that the Court does not have the jurisdiction under Section 27 of the Arbitration and Conciliation Act, 1996 (A&C Act) to consider the legality of the reasons set out by the arbitral tribunal in its order permitting the examination of a witness. The Single Bench of Justice G.S. Kulkarni ruled that once the arbitral tribunal had formed a prima facie opinion that a particular witness is required to be examined by a party in the arbitral proceedings, the reasons laid down by the tribunal in its order cannot be revisited and scrutinized by the Court, since proceedings under Section 27 of the A&C Act are not in the nature of an appeal and the Court does not have any adjudicatory powers under Section 27. 3. Tax Invoices Containing Reference To Arbitration, Does Not Constitute An Arbitration Agreement: Bombay High CourtCase Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd. Citation: 2022 LiveLaw (Bom) 133 The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties. The Single Bench of Justice G.S. Kulkarni held that unilateral invoices cannot bring about an arbitration agreement between the parties. 4. Court Can Appoint An Arbitrator During The Pendency Of An Appeal Against An Award, Set Aside On Reasons Other Than Merit : Bombay High CourtCase Title: Wadhwa Group Holdings Pvt. Ltd. versus Homi Pheroze Ghandy and Anr. Citation: 2022 LiveLaw (Bom) 134 The High Court of Bombay has held that when an award is set aside for other reasons and not on merit, the parties are well within their rights to initiate fresh arbitration in respect of the same claims and pendency of an appeal against such an order is not a ground to refuse the appointment. The Single Bench of Justice A.K. Menon has further held that an objection as to the claims being barred by Res Judicata, since an appeal is pending before the Court, is outside the limited scope of judicial examination permissible under Section 11 of the A&C Act. The Court held that invocation of arbitration cannot be subjected to the fate of the appeal.Calcutta High Court 1. Scope Of Section 9 Of The A&C Act Cannot Be Extended To Enforcement Of The Arbitral Award: Calcutta High Court Case Title: M/s. Satyen Construction versus State of West Bengal & Ors.Citation: 2022 LiveLaw (Cal) 124 The Calcutta High Court has ruled that the scope of Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure. The Single Bench of Justice Ravi Krishan Kapur held that the right to withdraw the amount deposited by the award debtor, pursuant to an application filed for stay of operation of the award under Section 36(2), does not constitute as an interim protection under Section 9 of the A&C Act since it transgresses into the domain of enforcement of the award. 2. Arbitration Agreement Not Discharged By Death Of A Party And Is Enforceable Against The Legal Representatives: Calcutta High CourtCase Title: Dr. Papiya Mukherjee versus Aruna Banerjea and Anr.Citation: 2022 LiveLaw (Cal) 125 The Calcutta High Court has ruled that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party.The Single Bench of Chief Justice Prakash Shrivastava held that though the legal representatives were not...

Weekly Digest Of Arbitration Cases: April 10 To April 17, 2022

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