Arbitration Cases Weekly Round-Up: 1 January to 7 January 2022
Parina Katyal
8 Jan 2023 7:30 AM GMT
Bombay High Court: Dispute Between Service Providers Can’t Be Referred to Arbitration: Bombay High Court Case Title: World Phone Internet Services Pvt. Ltd. versus One OTT Intertainment Ltd. In Centre The Bombay High Court has ruled that the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) is a self-contained Code, intended to deal with all disputes arising out of...
Bombay High Court:
Dispute Between Service Providers Can’t Be Referred to Arbitration: Bombay High Court
Case Title: World Phone Internet Services Pvt. Ltd. versus One OTT Intertainment Ltd. In Centre
The Bombay High Court has ruled that the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) is a self-contained Code, intended to deal with all disputes arising out of the Telecommunication Services provided in the country and therefore, the dispute between service providers which is likely to affect the consumers/subscribers, cannot be referred to arbitration.
Case Title: Edufocus International Education LLP versus Yashovardhan Birla & Ors.
The Bombay High Court has reiterated that dispute between parties arising under the Leave and License Agreement, emanating from a relationship of a licensor and licensee, cannot be referred to arbitration in view of the statutory bar contained in Section 41 of the Presidency Small Cause Courts Act, 1882 (PSCC Act), as per which the Small Causes Court alone would have the jurisdiction to adjudicate the dispute.
The bench of Justice N. J. Jamadar, however, observed that an Agreement to Lease merely contemplates to create a lease in the future and thus, the bar under Section 41 will not apply to the dispute arising under it. Thus, specific performance of the Agreement to Lease can be sought even before an Arbitrator, the Court held.
Clause Contained In The Tax Invoice Amounts To An Arbitration Clause: Bombay High Court
Case Title: Bennett Coleman & Co. Ltd versus MAD (India) Pvt Ltd
The Bombay High Court has held that the clause contained in the invoices, which clearly stipulates a reference to arbitration, deserves to be construed as an arbitration clause.
The single bench of Justice Bharati Dangre has observed that any document in writing exchanged between the parties that provides a record of the agreement and in respect of which there is no denial by the other side, would squarely fall within the ambit of Section 7 of the Arbitration and Conciliation Act, 1996, and would amount to an arbitration clause.
Calcutta High Court:
Case Title: Uphealth Holdings Inc versus Glocal Healthcare Systems Pvt. Ltd. & Ors.
The Calcutta High Court has allowed the application filed under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking interim measures granted by the Emergency Arbitrator under the ICC Arbitration Rules.
The bench of Justice Ravi Krishan Kapur noted that the A&C Act does not provide for enforcement of orders passed by an Emergency Arbitrator in cases of a foreign seated arbitration. However, it observed that both the parties had participated in the proceeding before the Emergency Arbitrator and had agreed to be bound by its order, which was well-reasoned and elaborate. Thus, the Court concluded that the order of the Emergency Arbitrator can be taken into account at the stage of considering a Section 9 application.
Delhi High Court:
Case Title: Govind Singh versus Satya Group Pvt Ltd
The High Court of Delhi has held that mere participation in the arbitration proceedings cannot be considered to be waiver of Section 12(5) that provides for ineligibility of arbitrator.
The bench of Justices Vibhu Bakhru and Amit Mahajan held that applicability of Section 12(5) can only be waived off by an express agreement and not by the conduct of parties. The Court held that the objection to challenge an arbitration award on the ground of ineligibility of arbitrator due to his unilateral appointment can be raised regardless of no such objection being taken before the arbitrator.
Case Title: Raj Kumar Gupta versus M/s Narang Constructions & Financiers Pvt Ltd
The Delhi High Court has ruled that non-attestation of the affidavit accompanying the application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) is a mere procedural irregularity. Thus, it cannot be treated as fatal to the institution of the suit, the bench of Justice Neena Bansal Krishna concluded. The Court held that the application cannot be considered as non-est for the purpose of computing limitation under Section 34 (3).
Case Titled: M/s Fermina Developers Private Limited versus Indiabulls
The Delhi High Court has ruled that the dispute between the parties, relating to whether the petitioner/debtor had made a default in repaying the loan, empowering the respondent/creditor to proceed under Section 13 of the SARFAESI Act, involved the determination of debt. Thus, the dispute fell within the scope of adjudication contemplated under Section 13 of the SARFAESI Act and it cannot be referred to arbitration, the bench of Justice Yashwant Varma held.
Case Title: Sanghvi Movers Ltd. versus Vivid Solaire Energy Pvt Ltd
The Delhi High Court has ruled that the parties would be governed by the arbitration clause contained in the Contract, even though the arbitration clause is not specifically incorporated in the purchase orders.
The bench of Justice Mini Pushkarna held that the purchase order was not independent of the Contract and that the parties clearly intended the Contract to be the main agreement. Thus, the Court concluded that the parties would be governed by the arbitration clause contained in the Contract.
Madras High Court:
Case Title: M/s. Radha Meditech versus M/s Cook India Medical Devices Pvt Ltd
While disposing of a Section 11 application for the appointment of an arbitrator filed under the Arbitration and Conciliation Act, the Madras High Court followed the procedure adopted by the Supreme Court in Bharat Sanchar Nigam Limited and another Vs. Nortel Networks India Private Limited. In the above case, the Supreme Court had held that when there is no vestige of doubt that the claim was ex facie time barred, it must be referred to arbitration. However, when there was even the slightest of doubt, the rule was to refer to arbitration.
Punjab & Haryana High Court:
Case Title: M/s Simplex Infrastructure Ltd. & Anr. versus M/s J.P. Singla Engineers and Contractor
The Punjab and Haryana High Court has ruled that where the liability to pay dues under a Contract is admitted by the parties, the dispute between them relating to non-payment cannot be said to be a dispute that ‘arose out of’ or ‘in connection with’ the Contract and thus, it cannot be referred to arbitration. The bench of Justice Nidhi Gupta ruled that it was a simple case of non- payment of the final amount due under the Contract.
