Arbitration Cases Weekly Round-Up: 15th May to 21st May, 2022

Bombay High Court: Novation Of Partnership Deed, Arbitration Clause Contained In The Deed Can Be Invoked: Bombay High Court Case Title: Praful A. Mehta versus Nainesh M. Gandhi The Bombay High Court has ruled that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator. The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm. Calcutta High Court The Finding Of The MSME Council On Its Jurisdiction Is Not AnInterim Award: Calcutta High Court Case Title: Board of Trustees for the Syama Prasad Mookerjee Port, Kolkata versus Marinecraft Engineers Private Limited Case Citation: 2022 LiveLaw (Cal) 194 The High Court of Calcutta has held that the decision of the MSME Council on its jurisdiction is an order under Section 16 of the A&C Act and it cannot be termed as an interim award that can be directly challenged under Section 34 of the A&C Act pending adjudication on the other issues. The Single Bench of Justice Ravi Krishan Kapur has held that the order of the MSME Council that pertains to its jurisdiction has to pass the drill of Section 16(5) and Section 16(6) of the A&C Act and the aggrieved party must wait till the passing of the final award. No Direction Can Be Passed To Sell Property To Third Party In Section 9 Petition Of The A&C Act: Calcutta High CourtCase Title: Aditya Birla Finance Ltd versus Mcleod Russel India Ltd. and Ors. Case Citation: 2022 LiveLaw (Cal) 189 The High Court of Calcutta has held that no direction can be passed to sell property to third party in Section 9 petition of the A&C Act. The Single Bench of Justice Moushumi Bhattacharya has held that a direction to sell the subject property to an outsider who was not a party to the arbitral proceedings would result in the property going out of the girdle of the arbitration and the purpose of a Section 9 application itself would be defeated. Delhi High Court: Rejected Claims By Resolution Professional In Insolvency Proceedings, To Be Decided By The Arbitrator: Delhi High Court Case Title: Bharat Petroresources Limited versus JSW Ispat Special Products Limited Citation: 2022 LiveLaw (Del) 469 The High Court of Delhi held that the claims rejected by Resolution Professional in the insolvency proceedings on the ground that they arose after the Insolvency Commencement Date (ICD), are to be decided by the arbitrator. The Single Bench of Justice Vibhu Bakhru held that extinguishment of claims that arose after the Insolvency Commencement Date (ICD) is a contentious issue that is to be decided by the arbitrator when the parties have an arbitration agreement. Deferment Charges On Liquidated Damages, No Liability To Pay When Liquidated Damages Itself Not Payable : Delhi High CourtCase Title: Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) versus Cobra Instalaciones Y Services S.A. and Shyam Indus Power Solution Pvt. Ltd. JV Citation: 2022 LiveLaw (Del) 454 The High Court of Delhi has held that there would be no question of recovery of deferment charges on the liquidated damages when the liquidated damages are themselves not payable. The Single Bench of Justice Vibhu Bakhru has held that deferment charges cannot be treated as separate charges payable irrespective of whether the liquidated damages are payable or not. The Court held that these would only be payable when the liquidated damages are held to be payable Challenge By NHAI On Fee Fixation By Arbitral Tribunal, Delhi High Court Holds That Tribunal Can Fix Its FeesCase Title: National Highway Authority of India versus MEP Chennai Bypass Toll Road Pvt. Ltd. & Anr. Citation: 2022 LiveLaw (Del) 453 The Delhi High Court has ruled that the Arbitral Tribunal is permitted to fix its fee, if its appointment is made by way of an ad hoc agreement between the parties. The Single Bench of Justice Sanjeev Narula held that where the Arbitral Tribunal has accepted its appointment outside the mandate of the International Centre for Alternative Dispute Resolution (ICADR), it is entitled to determine its fee and is not bound by ICADR Rules. The Court upheld the order of the Arbitral Tribunal fixing the arbitral fee separately for the claims and the counter-claims. Mere Pendency Of An Insolvency Petition Is Not A Bar To The Appointment Of The Arbitrator: Delhi High CourtCase Title: Millennium Education Foundation versus Educomp Infrastructure and School Management Limited Citation: 2022 LiveLaw (Del) 449 The High Court of Delhi has held that the mere pendency of an insolvency...

Arbitration Cases Weekly Round-Up: 15th May to 21st May, 2022

Parina Katyal

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