Arbitration Cases Weekly Round-Up: February 26 To March 4, 2023

Bombay High Court: Clause Captioned As “Arbitration”, Doesn’t Conclusively Imply Mandatory Nature Of Arbitration: Bombay High Court Case Title: Nagreeka Indcon Products Pvt Ltd vs. Cargocare Logistics (India) Pvt Ltd The Bombay High Court has ruled that the use of the word ‘can’ in the relevant clause has the effect of qualifying Arbitration as a mode of settlement, and the mere fact that a particular clause is captioned as “Arbitration”, does not conclusively imply the mandatory nature of arbitration when the option is left to the parties to settle their disputes through arbitration. Calcutta High Court: Order Passed Under Section 11 Of The Arbitration And Conciliation Act Cannot Be Reviewed: Calcutta High Court Case Title: Sarada Construction vs. Bhupendra Pramanik The High Court of Calcutta has held that the A&C Act is a complete code in itself and it does not contain any provision for the review of an order passed under Section 11 of the Act. The Bench of Justice Shekhar B. Saraf held that power of review is a creature of statute and unlike the Supreme Court which has inherent power of review under Article 137 of the Constitution of India, no such power is conferred on the High Courts by the Constitution, therefore, it cannot review its order passed under Section 11 of the Act. Delhi High Court: Clause Exclusively Empowering Chief Project Manager To Appoint Arbitrator From A Panel Maintained By It, Illegal: Delhi High Court Case Title: Shapoorji Pallonji and Company Private Limited vs. Union of India The Delhi High Court has reiterated that when a person has itself become ineligible by operation of law to act as an arbitrator, it cannot nominate another person to act as arbitrator. The bench of Justice Yashwant Varma was dealing with an arbitration clause which exclusively empowered the Chief Project Manager to appoint the arbitrator from a panel which was itself maintained by it. The Court concluded that the constitution of the Arbitral Tribunal, as contemplated by the arbitration clause, was clearly tainted by fundamental illegality. S. 34 Petition Can’t Be Amended To Introduce New Grounds Containing New Facts, To Challenge Arbitral Award: Delhi High Court Reiterates Case Title: New Delhi Municipal Council vs. Decor India Pvt Ltd The Delhi High Court has reiterated that though it is permissible to introduce an amendment in a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), however, new grounds of challenge containing new material/ facts cannot be introduced when the said grounds were neither raised in the original petition under Section 34 nor before the Arbitral Tribunal. Section 11 Petitions Seeking Relief But Not Raised In The Previous Arbitration; Gross Abuse Of Process of Court: Delhi High Court Case Title: Tejpal Singh vs. Surinder Kumar Dewan The Delhi High Court has ruled that since the party had failed to challenge the termination of the Collaboration Agreement in the first round of arbitral proceedings, the demolition of the structure built by it under the said Collaboration Agreement would not give it a fresh cause of action. The bench of Justice Navin Chawla remarked that the cause of action for challenging the termination of the Collaboration Agreement and/or for claiming any relief under the said Collaboration Agreement, was available to the petitioner at the stage of the earlier arbitral proceedings. Reference To Wrong Agreement in Arbitration Notice, Not Invalid If Agreement Otherwise Exists: Delhi High Court Case Title: FIITJEE Ltd vs. Ashish Khare & Anr. The Delhi High Court has reiterated that mere reference to a wrong provision or term of the agreement cannot invalidate the notice invoking arbitration, if otherwise such power or provision exists in the document executed between the parties. The bench of Justice Navin Chawla remarked that since there was no dispute regarding the existence of an arbitration clause in the document executed between the parties, which was admittedly binding on them, merely because the claimant had referred to the wrong Agreement, the same will not invalidate the arbitration notice issued under Section 21 of the A&C Act. Court Has Almost “Nil” Scope Of Interference Against Order Disposing Of S. 34 Petition Under Arbitration Act: Delhi High Court Case Title: Municipal Corporation of Delhi vs. Narinder Kumar The Delhi High Court has ruled that, as a necessary corollary of the provisions of Section 34 and Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act), what cannot be considered by the adjudicating Court under a Section 34 petition can certainly not be adjudicated upon by the appellate Court under Section 37. The Court added that it has almost “Nil” scope of interference while dealing with a challenge against an order disposing of a Section 34 petition, unless ...

Arbitration Cases Weekly Round-Up: February 26 To March 4, 2023

Parina Katyal

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