Supreme Court Weekly Digest With Nominal And Subject/Statute Wise [May 2 to May 8]

Advocate - Senior Advocate Designation - Instead of ten marks to be allocated to a counsel who has put in between ten to twenty years of practice, the marks be allocated commensurate with the standing of the person at the Bar, that is to say, one mark each shall be allocated for every year of practice between ten to twenty years. Indira Jaising v. Supreme Court of India, 2022 LiveLaw (SC) 451 Arbitration - Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 - The Act is liable to be held unconstitutional on the ground of encroachment upon the judicial powers of the State - The Act has the effect of annulling the awards which have become "Rules of Court", is a transgression on the judicial functions of the State and therefore, violative of doctrine of "separation of powers". (Para 122, 127(iii)) Secretary of Govt. of Kerala Irrigation Department v. James Varghese, 2022 LiveLaw (SC) 447 Arbitration Act, 1940 - The powers exercised by the court under the provisions of the 1940 Act are judicial powers and that the power to make an award "Rule of Court" is not a mechanical power. (Para 127 (ii), 113) Secretary of Govt. of Kerala Irrigation Department v. James Varghese, 2022 LiveLaw (SC) 447 Arbitration and Conciliation Act, 1996; Section 11(6) - An application under section 11(6) shall be maintainable only in a case where there is a contract between the parties containing the arbitration agreement and the appointment procedure is prescribed and is agreed upon in writing. (Para 6.2) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 Arbitration and Conciliation Act, 1996; Section 11(6),14(1)(a) - Once the arbitrator was appointed by mutual consent and it was alleged that the mandate of the sole arbitrator stood terminated in view of section 14(1)(a), the application under section 11(6) to terminate the mandate of the arbitrator in view of section 14(1)(a) shall not be maintainable - The aggrieved party has to approach the concerned "court" as per subsection (2) of section 14 of the Act. (Para 8) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 Arbitration and Conciliation Act, 1996; Section 12, 14(1)(a), 15(1)(a) - If the challenge to the arbitrator is made on any of the grounds mentioned in section 12 of the Act, the party aggrieved has to submit an appropriate application before the Arbitral Tribunal itself - Whenever there is a dispute and/or controversy that the mandate of the arbitrator is to be terminated on the grounds mentioned in section 14(1)(a), such a controversy/dispute has to be raised before the concerned "court" only and after the decision by the concerned "court" as defined under section 2(e) and ultimately it is held that the mandate of the arbitrator is terminated, thereafter, the arbitrator is to be substituted accordingly, that too, according to the rules that were applicable to the initial appointment of the arbitrator - So far as the termination of the mandate of the arbitrator and/or termination of the proceedings mentioned in other provisions like in section 15(1)(a) where he withdraws from office for any reason; or (b) by or pursuant to an agreement of the parties, the dispute need not be raised before the concerned court -The same procedure is required to be followed which was followed at the time of appointment of the sole arbitrator whose mandate is terminated and/or who is replaced. (Para 6.7) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 Arbitration and Conciliation Act, 1996; Section 31(7)(a) - If there is an agreement between the parties to the contrary, the Arbitral Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties - In the absence of such an agreement, the Arbitral Tribunal would have a discretion to exercise its powers under clause (a) of subsection (7) of Section 31- The discretion is wide enough. (Para 14-18) Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation, 2022 LiveLaw (SC) 452 Arbitration and Conciliation Act, 1996; Sections 11(5) - Even in the absence of any arbitration agreement in writing between the parties, with consent the parties may refer the dispute for arbitration and appoint a sole arbitrator/arbitrators by mutual consent and parties may agree mutually on a procedure for appointing an arbitrator or arbitrators even in the absence of any written agreement. (Para 7.2) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 Arbitration and Conciliation Act, 1996; Sections 8 and 11 - Group of Companies doctrine - There is a clear need for having a relook at the doctrinal ingredients concerning the group of companies doctrine - Whether the phrase 'claiming through or under' in Sections 8 and 11 could be interpreted to include 'Group of Companies' doctrine? Whether the 'Group of companies'...

Supreme Court Weekly Digest With Nominal And Subject/Statute Wise [May 2 to May 8]

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