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Novation of Contract = IMS Learning Resources Private Limited, the respondent herein, filed CS (OS) No.2316 of 2011 in the High Court of Delhi at New Delhi for a permanent injunction restraining infringement of a registered trademark, infringement of copyright, passing off of damages, rendition of accounts of profits and also for other consequential reliefs against the appellant herein. Appellant preferred IA No.18 of 2012 under Section 8, read with Section 5 -of the Arbitration and Conciliation Act, 1996 for rejecting the plaint and referring the dispute to arbitration and also for other consequential reliefs. The High Court rejected the application vide its order dated 16.04.2012 holding that that earlier agreements dated 01.04.2007 and 01.04.2010, which contained arbitration clause stood superseded by a new contract dated 01.02.2011 arrived at between the parties by mutual consent. = Exit paper would clearly indicate that it is a mutually agreed document containing comprehensive terms and conditions which -admittedly does not contain an arbitration clause. = We may indicate that so far as the present case is concerned, parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent. Above being the factual and legal position, we find no error in the view taken by the High Court. The appeal, therefore, lacks merit and stands dismissed, with no order as to costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40682 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6997 OF 2013 (Arising out of SLP(C) No.33459 of 2012) M/s Young Achievers ….. Appellant Versus IMS Learning Resources Pvt. Ltd. ….Respondent J U D G M E N T K.S. Radhakrishnan, J. Leave granted. 2. IMS Learning Resources … Continue reading
Arbitration and Conciliation Act, 1996: s. 45 – Reference to arbitration under – Scope of – International commercial arbitration – Multi-party agreements – Joint venture agreements with different parties – Some of the agreements contained arbitration clause while the others did not – Dispute between parties leading to filing of suit – High Court referred the entire suit (including the non-signatory parties to the arbitration agreement) for arbitration u/s. 45 – Joinder of non-signatory parties to arbitration – Permissibility – Held: Joinder of non-signatory parties to arbitration is permissible – They can be referred to arbitration, provided they satisfy the pre-requisites u/ss. 44 and 45 r/w Schedule I of the Act – The cases of group companies or where various agreements constitute a composite transaction with intrinsically interlinked cause of action, can be referred to arbitration, even if the disputes exist between signatory or even non-signatory parties – However, the discretion of the court has to be exercised in exceptional, limiting, befitting and cases of necessity and very cautiously – Expression `any person claiming through or under him’ used in s. 45, takes within its ambit persons who are in legal relationships via multiple and multi-party agreements, though they may not all be signatories to the arbitration clause – In the present case, the corporate structure of the companies demonstrates a definite legal relationship between the parties to the lis or persons claiming under them – Their contractual relationship spells out the terms, obligations and roles of the respective parties which they were expected to perform for attaining the object of successful completion of the joint venture agreement – All the other agreements were intrinsically inter-connected with the mother agreement – All the agreements were part of a composite transaction to facilitate implementation of principal agreement – Hence, all the parties to the lis were covered under expression “any person claiming through or under” the principal (mother) agreement – Arbitration clause in the principal agreement was comprehensive enough to include all disputes arising “under and in connection with” principal agreement – Conduct of parties and even subsequent events show that the parties had executed, intended and actually implemented composite transaction contained in principal/mother agreement – Hence, direction to refer the disputes to arbitration -Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) – Article II (3) – ICC Rules – UNCITRAL Model Rules. s. 45 – Issues under – Determination of – Issue of jurisdiction should be decided at the beginning of the proceedings itself and they should have finality – Determination of fundamental issues as contemplated u/s. 45 at the very first instance is not only appropriate but is also the legislative intent – Jurisdiction. Code of Civil Procedure, 1908 – s. 9 – Jurisdiction of civil courts – Jurisdiction of the court and the right to a party emerging from s. 9 is not an absolute right, but contains inbuilt restrictions – Civil courts have jurisdiction to try all suits except those which is either expressly or impliedly barred – The provisions of s. 45 of the 1996 Act would prevail over the provisions of CPC – Arbitration and Conciliation Act, 1996 – s. 45. Doctrines/Principles: `Group of Companies’ Doctrine; Principle of `incorporation by reference’; Principle of `composite performance’; Principle of `agreements within an agreement’ and Principle of `Kompetenz kompetenz’ – Discussed. Precedent – Observations – Precedential value – Held: The observations to be construed and read to support the ratio decidendi – They would not constitute valid precedent as it would be hit by the doctrine of stare decisis – Doctrine – Constitution of India, 1950 – Art. 141. Words and Phrases: Expression `connection’ – Meaning of. The questions which inter alia arose for consideration in the present appeals were: (1) What is the ambit and scope of Section 45 of the Arbitration and Conciliation Act, 1996; (2) Whether in a case where multiple agreements were signed between different parties some containing an arbitration clause and others not and where the parties were not identically common in proceedings before the Court (in a suit) and the arbitration agreement, a reference of disputes as a whole or in part could be made to the arbitral tribunal, more particularly, where the parties to an action were claiming under or through a party to the arbitration agreement; and (3) Whether the principles enunciated in the case of *Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya was the correct exposition of law.= Dismissing the appeals, the Court HELD: 1.1 Section 45 is a provision falling under Chapter I of Part II of the Arbitration and Conciliation Act, 1996 which is a self-contained Code. The expression `person claiming through or under’ would mean and take within its ambit multiple and multi-party agreements, though in exceptional case. Even non-signatory parties to some of the agreements can pray and be referred to arbitration provided they satisfy the pre-requisites under Sections 44 and 45 r/w Schedule I. Reference of non-signatory parties is neither unknown to arbitration jurisprudence nor is it impermissible. [Para 167] 1.2 An arbitration agreement, under Section 45 of the 1996 Act, should be evidenced in writing and in terms of Article II of Schedule 1, an agreement in writing shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams. Thus, the requirement that an arbitration agreement be in writing is an expression incapable of strict construction and requires to be construed liberally, as the words of this Article provide. Even in a given circumstance, it may be possible and permissible to construe the arbitration agreement with the aid and principle of `incorporation by reference’. Though the New York Convention is silent on this matter, in common practice, the main contractual document may refer to standard terms and conditions or other standard forms and documents which may contain an arbitration clause and, therefore, these terms would become part of the contract between the parties by reference. The solution to such issue should be case-specific. The relevant considerations to determine incorporation would be the status of parties, usages within the specific industry, etc. Cases where the main documents explicitly refer to arbitration clause included in standard terms and conditions would be more easily found in compliance with the formal requirements set out in the Article II of the New York Convention than those cases in which the main contract simply refers to the application of standard forms without any express reference to the arbitration clause. [Para 72] M.V. “Baltic Confidence” and Anr. v. State Trading Corporation of India Ltd. and Anr. (2001) 7 SCC 473: 2001 (1) Suppl. SCR 699; Olympus Superstructure Pvt. Ltd. v. Meena Vijay Khetan and Ors. (1999) 5 SCC 651: 1999 (3) SCR 490 – relied on 1.3 Under the Indian Law, greater obligation is cast upon the Courts to determine whether the agreement is valid, operative and capable of being performed at the threshold itself. Such challenge has to be a serious challenge to the substantive contract or to the agreement, as in the absence of such challenge, it has to be found that the agreement was valid, operative and capable of being performed; the dispute would be referred to arbitration. [Para 78] State of Orissa v. Klockner and Company and Ors. AIR 1996 SC 2140: 1996 (1) Suppl. SCR 368 – relied on. Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp.(1982) 2 Lloyd’s Rep. 425, CA – referred to. Law and Practice of International Commercial Arbitration by Alan Redfern and Martin Hunder (Fourth Edition) 1.4 The legislative intent and essence of the 1996 Act was to bring domestic as well as international commercial arbitration in consonance with the UNCITRAL Model Rules, the New York Convention and the Geneva Convention. The New York Convention was physically before the Legislature and available for its consideration when it enacted the 1996 Act. Article II of the Convention provides that each contracting State shall recognize an agreement and submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not concerning a subject matter capable of settlement by arbitration. Once the agreement is there and the Court is seized of an action in relation to such subject matter, then on the request of one of the parties, it would refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of performance. Still, the legislature opted to word Section 45 somewhat dissimilarly. Section 8 of the 1996 Act also uses the expression `parties’ simpliciter without any extension. In significant contra-distinction, Section 45 uses the expression `one of the parties or any person claiming through or under him’ and `refer the parties to arbitration’, whereas the rest of the language of Section 45 is similar to that of Article II(3) of the New York Contention. The Court cannot ignore this aspect and has to give due weightage to the legislative intent. It is a settled rule of interpretation that every word used by the Legislature in a provision should be given its due meaning. The Legislature intended to give a liberal meaning to this expression. [Paras 88 and 89] 1.5 The language and expressions used in Section 45, `any person claiming through or under him’ including in legal proceedings may seek reference of all parties to arbitration. Once the words used by the Legislature are of wider connotation or the very language of Section is structured with liberal protection then such provision should normally be construed liberally. [Para 90] 1.6 In view of the legislative object and the intent of the framers of the statute, i.e., the necessity to encourage arbitration, the Court is required to exercise its jurisdiction in a pending action, to hold the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious cause of action, parties and prayers. [Para 91] 1.7 The scope of concept of `legal relationship’ as incorporated in Article II(1) of the New York Convention vis-
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7134 OF 2012 (Arising out of SLP (C) No.8950 of 2010) Chloro Controls (I) P. Ltd. … Appellant Versus Severn Trent Water Purification Inc. & Ors. … Respondents WITH CIVIL APPEAL NOS. 7135-7136 OF 2012 (Arising out of SLP (C) No.26514-26515 … Continue reading
whether the provision of Madhya Pradesh Madhyasthan Adhikaran Adhiniyam, 1983 (hereinafter, `M.P. Act’) which statutorily provides for the parties to the Works Contract to refer all disputes 1 to the Arbitration Tribunal constituted under Section 7 of the Act will continue to operate in view of the provisions of Arbitration and Conciliation Act, 1996 (hereinafter `A.C. Act 1996′) which is a Central Act, subsequently enacted.=As a consequence and fall out of the aforesaid discussion, the impugned order of the High Court by which the dispute relating to termination of works contract by the M.P. Rural Road Development Authority itself was referred to an independent arbitrator appointed by the 34 High Court under the Arbitration and Conciliation Act, 1996 needs to be sustained and there is no need for a de novo reference of the dispute to the M.P. State Arbitration Tribunal. In the alternative, the consequence would have been otherwise and the matter could have been referred to the State Arbitration Tribunal if the dispute between the parties related to any dispute emerging out of execution of works contract which could fall within the definition of `works contract’ given out within the definition of `works contract’ under Section 2(i) of the M.P. Act of 1983. In order to avoid any ambiguity, it is reiterated that in view of cancellation of the works contract itself which is the position in the instant case, the proceedings before the Arbitrator appointed by the High Court cannot be treated as non-est so as to refer the same once again to the tribunal for adjudication as the dispute does not emerge or pertain to execution of works contract but relates to non-existence of works contract by virtue of its cancellation. 11. Thus the sum and substance of what I wish to emphasize is that the question as to whether the dispute would be referred to the M.P. Tribunal in terms of Section 7 of the M.P. Act of 1983 or to an independent arbitrator under the Arbitration and Conciliation Act, 1996 will depend upon the factum whether the works contract is existing between the parties or not out of which the dispute has arisen. In case, the works 35 contract itself has been repudiated/cancelled, then, in view of its non- existence, Section 7 of the M.P. Act pertaining to reference of dispute to tribunal would not come into play at all by virtue of the fact that the dispute relating to execution of works contract alone can be referred to the tribunal in view of the specific nature of works contract enumerated within the definition of works contract under the Act of 1983. However, when the works contract itself becomes non-existent as a consequence of its cancellation, the matter will have to be referred to an independent arbitrator under the Arbitration and Conciliation Act, 1996 and not to M.P. State Arbitration Tribunal. 12. Thus, while holding that the M.P. Act 1983 should operate in the State of M.P. in respect of certain specified types of arbitration, the appointment of an independent arbitrator by the High Court under the Arbitration and Conciliation Act, 1996 needs to be sustained since the works contract itself is not in existence by virtue of its cancellation and hence this part of the dispute could not have been referred to the M.P. State Tribunal. 13. Consequently, the instant appeal stands partly allowed. There will be no order as to costs. 36 ………………………………..J. (Gyan Sudha Misra) New Delhi, January 24, 2012. 37 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 974 OF 2012 (Arising out of SLP(C) No.907/2011) M.P.Rural Road Development Authority & Anr. …Appellant(s) – Versus – M/s. L.G. Chaudhary Engineers & Cont. …Respondent(s) ORDER In view of some divergence of views expressed in the two judgments delivered today by us, the matter may be placed before Hon’ble the Chief Justice of India for constituting a larger Bench to resolve the divergence. ………………………..J. (ASOK KUMAR GANGULY) ………………………..J. whether the provision of Madhya Pradesh Madhyasthan Adhikaran Adhiniyam, 1983 (hereinafter, `M.P. Act’) which statutorily provides for the parties to the Works Contract to refer all disputes 1 to the Arbitration Tribunal constituted under Section 7 of the Act will continue to operate in view of the provisions of Arbitration and Conciliation Act, 1996 (hereinafter `A.C. Act 1996′) which is a Central Act, subsequently enacted. = (GYAN SUDHA MISRA) NEW DELHI, 24-01-2012 38
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 974 OF 2012 (Arising out of SLP(C) No.907/2011) M.P.Rural Road Development Authority & Anr. …Appellant(s) – Versus – M/s. L.G. Chaudhary Engineers & Cont. …Respondent(s) J U D G M E N T GANGULY, J. 1. Leave granted. 2. The question which … Continue reading
we have to refer to the order passed by us on 28th January, 2011, whereby the Respondent had been allowed to continue with the running of the business, but she was directed to maintain a separate account in respect of the transaction and to place the same before us at the time of hearing of the matter. Such account does not appear to have been filed, but since we are disposing of the matter by restoring the order of the District Judge, Khurda, in ARBP No.576 of 2007, we further direct the Respondent, as and when arbitral proceedings may be taken, to furnish such account upto this day before the learned Arbitrator so that the claims of the parties can be fully decided by the learned Arbitrator.
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.10434-10435 OF 2011 (Arising out of SLP(C)Nos.3391-3392 of 2011) SURESH DHANUKA … APPELLANT Vs. SUNITA MOHAPATRA … RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. These appeals arising out of SLP(C)Nos.3391-3392 of 2011, are … Continue reading
arbitration = The petitioner has filed the present application under Sections 11(4) and (6) of the Arbitration and Conciliation Act, 1996 read with paragraph 2 of the Appointment of the Arbitrators by the Chief Justice of India Scheme, 1996. It is stated that the parties had entered into a legally valid and enforceable Memorandum of Understanding (`MOU’) – 1 –
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION PETITION NO.18 OF 2010 M/s. Reva Electric Car Co. P. Ltd. …Petitioner VERSUS M/s. Green Mobil …Respondent O R D E R SURINDER SINGH NIJJAR, J. 1. The petitioner has filed the present application under Sections 11(4) and (6) of the Arbitration and Conciliation … Continue reading
what is the arbitration agreement ? = the pre-requisites of a valid and binding arbitration agreement leading to an appropriate reference under the Act. Section 2(1)(b) defines `arbitration agreement’ to be an agreement referred to in Section 7. Section 7 of the Act states that an `arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement and shall be an agreement in writing. An arbitration agreement is in writing if it is contained in any of the clauses i.e. clauses (a) to (c) of Sub-section (4) of Section 7 of the Act. Once these ingredients are satisfied, there would be a binding arbitration agreement between the parties and the aggrieved party would be in a capacity to invoke the jurisdiction of this Court under Section 11(6) of the Act.
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION PETITION (CIVIL) NO. 5 OF 2010 Powertech World Wide Limited … Petitioner Versus Delvin International General Trading LLC … Respondent O R D E R Swatanter Kumar, J. 1. M/s. Powertech World Wide Limited, the petitioner, is a limited company registered under the Companies Act, … Continue reading
Arbitration and Conciliation Act, 1996: s. 9-Application for interim measures by court-Unregistered partnership firm in liquor trade-Application by one of the partners for appointment of receiver to take charge of business of the firm-Trial court dismissing the application on the ground that name of the applicant does not figure in the register of firms as partner of the firm-High Court allowed the application holding that s.69(3) of the Partnership Act is not attracted to an application u/s 9 of the Act-High Court further directed that the partners who were running the business would run the business as receivers till 31.12..2003 and from 1.1.2004 to 31.3.2004 the applicant and two other partners of his group would run the business as receivers s.9-Unregistered partnership firm-Application by one of the partners for directions to appoint receiver-Maintainability of- s. 9- “party “-Invoking s. 9-An application u/s. 9 is not a suit- ‘Parity’ is defined in s. 2(1 )(h) to mean a party to an arbitration agreement-So right conferred by s.9 is on a party to an arbitration agreement-Right conferred by s. 9 cannot be said to be one arising out of a contract-Filing of an application u/s 9 by a party by virtue of its being a party to.an arbitration agreement is for securing a relief which the court has power to grant before, during, or after arbitral proceedings by virtue of s.9 of the Act-The relief sought for in an application u/s 9 is neither in a suit nor a right arising from a contract-Party invoking s.9 may not have actually commenced arbitral proceedings but must be able to satisfy the court that the arbitral proceedings are actually contemplated or manifestly intended. =2004 AIR 1433, 2004(1 )SCR404 , 2004(3 )SCC155 , 2004(1 )SCALE297 , 2004(2 )JT352 =Held, order passed by court should fall within the meaning of expression ‘an interim measure of protection’ as distinguished from an alt time of permanent protection-It is a serious matter to appoint a receiver on a running business-This is not a case of oppression of minority by majority-A better course would have been to allow the conduct of the business continuing in the hands of the persons who were doing so but at the same time issuing such directions and/or devising such arrangement as would protect and take care of the interest of those who are not actually running the business-Purpose of enacting s. 9 is to provide ‘interim measures of protection’-Though order of High Court appointing a receiver on the partnership business is maintained, the rest of the order is set aside- Directions given inter alia, for running the business by the group of partners who were running it prior to interim order of High Court under their control but as receivers, and for appointment of an official as observer- Interim order-Partnership Act, I932-s.69(3). Held, Court u/s 9 is only formulating interim measures so as to protect the right under adjudication before the arbitral tribunal from being frustrated-Prima facie, the bar enacted by s. 69 of Partnership Act does not affect the maintainability of an application under s.9 of the Act-s. 69 of Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under s.9 of the Act. M/s. Sundaram Finance Ltd. v. Ms. NEPC India Ltd, AIR 1999 SC 565, relied on. Kamal Pushpa Enterprises v. DR Construction Company, AIR (2000) SC 2676; Jagdish Chandra v. Kajaria Traders (Ind.) Ltd., AIR (1964) SC 1882 and Delhi Development Authority v. Kochhar Construction Work and Anr., [1998] 8 SCC 559, referred to. M/s. Shreeram Finance Corporation Ltd. v. Yasin Khan and Ors., [1989] 3 SCC 476, cited. Words and phrases: Word ‘before’ in s. 9 of Arbitration and Conciliation Act, 1996-Connotation of. CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 132 and 131 of 2004. From the Judgment and Order dated 18.12.2003 of the Madhya Pradesh High Court in M.A. No.2484 of 2003. Harish N. Salve, Dr. A.M. Singhvi, Kapil Sibaii, P. Chidambaram, R.F. Nariman, Vivek Tankha, Rohit Arya, C. Mukhopadhyaii, Manu Nair, Ms. Shalini, Rakesh K. Khanna, Aseem Mehrotra, Kanahaya Singh, Rajeev Singh, Rajesh Prasad Singh, Akshay Arora, P.K. Bansal, Pankaj Kr. Singh, K.L. Janjani and Ms. Abha R. Sharma for the appearing parties.
CASE NO.: Appeal (civil) 131-132 of 2004 PETITIONER: FIRM ASHOK TRADERS AND ANR. ETC. RESPONDENT: GURUMUKH DAS SALUJA AND ORS. ETC. DATE OF JUDGMENT: 09/01/2004 BENCH: R.C. LAHOTI & ASHOK BHAN JUDGMENT: JUDGMENT 2004(1)SCR 404 The following Order of the Court was delivered : Leave granted in both the SLPs. The dispute is among 12 … Continue reading
Arbitration Act, 1940-Sections 20 and 39(iv)-Arbitration and Conciliation Act, 1996-Sections 21 and 85(2)(a)-Application for appointment of arbitrator in terms of arbitration clause in case of dispute between parties-Trial Court holding that firm being unregistered as such application not maintainable even though applicant firm filed amendment application with regard to the same-High Court holding that since 1996 Act has come into force parties to relegate under the new Act-On appeal held : Since the arbitral proceedings commenced before coming into force of the 1996 Act, provisions of 1940 Act applicable and matter remitted to High Court-Furthermore firm must be registered at the time of the institution of the suit and not later-Also, the High Court is to consider the correctness of the order passed by trial court-Partnership Act, 1932- Section 69. Appellant-State Sugar Corporation and respondent-construction company entered into a contract. Dispute arose between the parties but the appellant did not appoint any arbitrator as per the arbitration clause in the contract. Respondent filed application under section 20 of the Arbitration Act, 1940. Civil Judge held it to be not maintainable as the respondent firm was not registered even though the respondent had admitted that it failed to make necessary averment in the plaint as regard registration of the firm inadvertently and had filed an application for amendment of the petition. Respondent then filed an appeal. High Court allowed the appeal directing that since the Arbitration and Conciliation Act, 1996 has come into force, parties are to relegate under the new Act Hence the present appeal. Appellant-State Sugar Corporation contended the application for appointment of an arbitrator was not maintainable under the 1940 Act and the 1996 Act as the respondent firm was not registered; and that in any event, the impugned judgment is unsustainable in law as the arbitral proceeding was initiated prior to coming into force of the 1996 Act. Respondent-firm contended that in a similar matter this Court directed the trial court to appoint an arbitrator in terms of arbitration clause of the contract between the parties, on remitting the matter, and as such there being a similar stipulation in the instant case, it must be acted upon. =Allowing the appeal, the Court HELD : 1.1. In the event it is found by the High Court that the Civil Judge was wrong in rejecting the application for amendment of the plaint and in fact the respondent-firm was registered under the Partnership Act, the question of throwing out the said suit on that ground would not arise. High Court would consider these questions. Further, it is true that the arbitral proceedings would not be maintainable at the instance of an unregistered firm having regard to the mandatory provisions contained in Section 69 of the Partnership Act, 1932. The firm must be registered at the time of institution of the suit and not later. [830-F-G] Delhi Development Authority v. Kochhar Construction Work and Anr., [1998] 8 SCC 559, relied on. Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR (1964) SC 1882 and Firm Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors., [2004] 3 SCC 155, referred to. 1.2. Disputes and differences between the parties arose in the year 1991 and the respondent filed an application under Section 20 of the Arbitration Act, 1940 in the same year. It invoked the arbitration clause in the agreement. The arbitral proceeding was set in motion. In terms of Section 21 of the Arbitration and Conciliation Act, 1996 the arbitral proceedings in respect of a particular dispute commences on a date on which the request for that dispute to be referred to arbitration was received by the respondent. Therefore, in respect of the arbitral proceedings commenced before coming into force of the 1996 Act, the provisions of the 1940 Act would apply. Hence, the matter is remitted to High Court for afresh consideration. [831-A-B; 832-A-B] Milkfood Ltd. v. M/s. GMC Ice Cream (P) Ltd., JT (2004) 4 SC 393, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5479 of 2004. =2004 AIR 4335, 2004(3 )Suppl.SCR826 , 2004(7 )SCC332 , 2004(7 )SCALE307 , 2004(7 )JT61
CASE NO.: Appeal (civil) 5479 of 2004 PETITIONER: U.P. State Sugar Corporation Ltd. RESPONDENT: Jain Construction Co. & Anr. DATE OF JUDGMENT: 25/08/2004 BENCH: N. Santosh Hegde & S.B. Sinha JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.4459 of 2004) S.B. SINHA, J : Leave granted. This appeal … Continue reading
Indian Arbitration and Conciliation Act, 1996: Section 11(5)-Appointment of arbitrator-Application by the legal heir of the deceased partner-Held, maintainable. Indian Partnership Act, 1932; Section 46-Rendition of accounts-Legal representative of a deceased partner-Right to sue-Held, survives on the legal representative. The Short questions involved in the appeals were: (a) Where right to sue for rendition of accounts survives on the legal representative of a deceased partner, are the legal representative not entitled to invoke arbitration clause contained in the Partnership Deed? (b) Whether the arbitration can be commenced by the heirs after the death of partner especially where the dispute had arisen during the life time of the partner? (c) Whether in view of section 46 read with section 48 of the Indian Partnership Act, 1932 as well as section 40 of the Arbitration Act, 1996. The legal representative of the deceased partner is entitled to claim appointment of arbitrator under the arbitration clause of the Partnership Deed? =2007 AIR 1517, 2007(4 )SCR295 , , 2007(4 )SCALE562 , 2007(4 )JT523
CASE NO.: Appeal (civil) 1526 of 2007 PETITIONER: Ravi Prakash Goel RESPONDENT: Chandra Prakash Goel & Anr DATE OF JUDGMENT: 21/03/2007 BENCH: Dr. AR. Lakshmanan & Altamas Kabir JUDGMENT: J U D G M E N T (Arising Out of SLP (C) NO. 6723 OF 2006) Dr. AR. Lakshmanan, J. Leave granted. The above appeal … Continue reading
In the absence of arbitration clause, no case can be filed under arbitration act = mere use of the word ‘arbitration’ or ‘arbitrator’ in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as “parties can, if they so desire, refer their disputes to arbitration” or “in the event of any dispute, the parties may also agree to refer the same to arbitration” or “if any disputes arise between the parties, they should consider settlement by arbitration” in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that “if the parties so decide, the disputes shall be referred to arbitration” or “any disputes between parties, if they so agree, shall be referred to arbitration” is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.”
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Arbitration Application No.141 of 2010 18-07-2011 Ms.Jain Irrigation Systems Limited,Jalgaon, Maharashtra,Joint Managing Director Shri Ajit Bhavarlal Jain Ms.Satyam Computer Services Limited, Mahindra Satyam Infocity,Madhapur, Hyderabad !COUNSEL FOR APPLICANT: Ms.C.Kodandaram, Senior Counsel COUNSEL FOR RESPONDENT: Ms.Shireen Sethana Baria :ORDER: This Arbitration Application has been taken out by the applicant … Continue reading
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