Arbitration Weekly Round-Up: 27th November to 3rd December

Bombay High Court N.N. Global Judgment Does Not Affect The Power Of Court To Grant Interim Measures Under Section 9 Of The A&C Act Despite Inadequacy/Insufficiency Of Stamp Duty: Bombay High Court Case Title: L&T Finance Limited v. Diamond Projects Limited, Commercial Arbitration Petition No. 1430 of 2019 The High Court of Bombay has held that the judgment of the Constitution Bench in N.N. Global does not affect the power of Court to grant interim measures under Section 9 of the A&C Act despite the non-payment or insufficiency of payment of stamp duty on the arbitration agreement or the main agreement containing the arbitration clause. The bench of Justice Bharati Dangre held that unlike Section 11 or 8 of the A&C Act, the Court exercising powers under Section 9 of the Act is not required to make a determination on the existence and validity of the arbitration agreement rather the Court would have to grant interim relief on the parameters of three-fold test of (a) prima facie case (b) balance of convenience and (c) irreparable injury. The Court held that an inadequately/insufficiently stamped instrument/document/agreement shall not preclude the party from seeking interim measures as contemplated under Section 9 of the A&C Act. Court U/S 37 Of The A&C Act Can’t Undertake An Independent Assessment Of Arbitral Award,: Bombay High Court Case Title: Madgavkar Salvage v. Bergen Offshore Logistics Pvt Ltd, Comm. Arbitration Petitioner No. 13 of 2015. The High Court of Bombay has held that under Section 37 of the A&C Act, the challenge must be related to the impugned order passed under Section 34 of the Act and not merely to the arbitral award. It held that it is incumbent upon a party to point out errors in the order under Section 34 to make out a case in appeal under Section 37. The bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif. S. Doctor held that the Court while exercising powers under Section 37 of the A&C Act cannot take an independent assessment of the arbitral award, therefore, the challenge must be premised on the errors in the impugned order under Section 34. It held that it is not permissible for a party to challenge an arbitral award de hors any challenge to the impugned order. Calcutta High Court S.37 Court Must Be Circumspect When Interfering With Arbitrator’s Interim Orders: Calcutta HC Preserves Deceased LLP Partner’s Share Case: Concrete Developers LLP v Gaurav Churiwal and Ors. Citation: 2023 LiveLaw (Cal) 335 The Calcutta High Court has recently held that a Court exercising powers under Section 37 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) must be circumspect in its interference with interim orders of an arbitrator. In refusing to interfere with the order passed under Section 17 of the 1996 Act, for preserving the share of a deceased LLP partner, amounting to approx. Rs 6 crores in a separate interest bearing account in name of the LLP, a single-bench of Justice Moushumi Bhattacharya held: “There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse. Taking into account the legal position, the case law on the subject and the particular facts in the present matter, the Court is accordingly of the view that the impugned order does not call for any interference.” Delhi High Court Arbitral Tribunal Has No Jurisdiction To Create Security Over A Property Which Has A Third Party Charge: Delhi High Court Case Title: Asset Reconstruction Company India Ltd v. ATS Infrastructure Limited, ARB. A. (COMM) 7 of 2022 Citation: 2023 LiveLaw (Del) 1185 The High Court of Delhi has held that the arbitral tribunal has no jurisdiction to create security on a property over which a charge is created in favour of a third party. The bench of Justice Yogesh Khanna modified an interim order of the arbitral tribunal passed under Section 17 of the A&C Act to the extent to which the order created security on the property on which a charge was already created in favour of a third party which was not present before the arbitral tribunal. Arbitration | Decree Holder Cannot Seek An Unquantified Claim In Execution Proceedings: Delhi High Court Case Title: H.P. Cotton Textile Mills Ltd v. The Oriental Insurance Company Limited, OMP (ENF.) (COMM.) 123/2019 Citation: 2023 LiveLaw (Del) 1188 While dismissing a second execution petition filed in respect of “unsatisfied” claims in an Arbitral Award, the Delhi High Court has held that a court cannot go behind the Award in execution proceedings and enable decree holder to fill gaps in producing evidence. Considering that the cost statement in question was made...

Arbitration Weekly Round-Up: 27th November to 3rd December

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Arbitration Weekly Round-Up: 27th November to 3rd December

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