Can Recall Section 11 A&C Act Order, If It Suffers From Patent And Manifest Error: Delhi High Court

The Delhi High Court has ruled that the power exercised by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) is not merely an administrative function but a judicial power, and that the Court does not cease to be a Court of Record while exercising power under Section 11. Thus, the bench of Justice Yashwant Varma held that the High Court can recall the order passed by it under Section 11 of the A&C Act if it suffers from a patent and manifest...

After Participating In The Arbitral Proceedings Without Any Protest, Can't Object To Jurisdiction Later : MP High Court

The Madhya Pradesh High Court has held that a party which has participated in the arbitration proceedings without any protest or challenge as to the jurisdiction of the tribunal cannot for the first time challenge the jurisdiction of the tribunal under Section 37 of the A&C Act. The bench of Justice S.A. Dharmadhikari held that an issue as to non-jurisdiction of the private arbitrator when the Madhyastham Adhikaran Adhiniyam, 1983 Act provides for statutory arbitration for 'works...

Venue Restriction Provision Contained In Section 42 of A&C Act, Not Applicable To Proceedings Seeking Enforcement Of Award: Delhi High Court

The Delhi High Court has reiterated that Section 42 of the Arbitration and Conciliation Act, 1996 (A&C Act) would have no application to proceedings seeking enforcement of arbitral award. The bench of Justice Yashwant Varma noted that execution application is neither an "arbitral proceeding" within the meaning of Section 42 of the A&C Act, nor is it a subsequent application arising out of the arbitration agreement and thus, the venue restriction provision contained in Section...

Employer Cannot Retain Performance Bank Guarantee After Acknowledging Of Due Performance: Delhi High Court

The High Court of Delhi has held that the employer cannot withhold the performance bank guarantee after acknowledgement of the due performance of the contract by the contractor. The bench of Justice V. Kameshwar Rao held that the employer cannot also withhold the performance bank guarantee merely for securing the amount of its counter-claims. Facts The parties entered into an agreement dated 05.11.2014. There was some delay in the execution of the project work which led to the...

Not Awarding LD- Finding Of Fact By Arbitrator, Need Not To Be Interfered: Calcutta High Court

The Calcutta High Court has reiterated that damage or loss is sine qua non for the applicability of Section 74 of the Indian Contract Act, 1872 and thus, in the absence of loss, penalty/liquidated damages cannot be claimed on breach of contract. The bench of Justices I. P. Mukerji and Md. Nizamuddin ruled that the finding arrived at by the Arbitrator, to the effect that the party was unable to prove any loss so as to claim liquidated damages/penalty under the Contract, was a finding of...

Challenge Relating To The Bias Of An Arbitrator Cannot Be Raised Under Section 14 Of The A&C Act: Delhi High Court

The High Court of Delhi has held a challenge to the mandate of the arbitrator on the ground of bias and a justifiable doubt with respect to the independence and impartiality cannot be raised under Section 14 of the A&C Act. The bench of Justice Yashwant Varma held that Section 14 of the Act confers the power on the Court to terminate the mandate of the arbitrator and appoint a substitute arbitrator only in circumstances that fall within the 7th schedule of the Act that deals with...

Application Of Hudson's Formula For Computation Of Loss In Construction Contract, Not Unreasonable: Bombay High Court

The Bombay High Court has ruled that while deciding the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), the Court is not precluded from considering the findings and conclusions contained in the dissenting opinion of a minority member of the Arbitral Tribunal. The bench of Justice Manish Pitale observed that the majority opinion in the arbitral award, while computing the compensation to be awarded to the claimant for the loss suffered by it, had...

Arbitration Cases Weekly Round-Up: 4 December To 10 December, 2022

Bombay High Court: Clause Merely Providing Departmental Remedies, For Faster Resolution Of Disputes; Does Not Constitute An Arbitration Agreement: Bombay High Court Case Title: M/s. Mehra & Company versus State of Maharashtra The Bombay High Court has ruled that the power of appointment of arbitrator by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), cannot be deemed to have a precedential value. However, the Court held that the...

Signing A Blank Discharge Voucher Indicates That A Party Was Acting Under Pressure And Compulsion: Delhi High Court

The High Court of Delhi has held that the fact that a party signed on a blank Discharge Voucher indicates that it was acting under pressure and compulsion and did not sign the document out of free will. The bench of Justice C. Hari Shankar held that a discharge voucher signed out of economic duress and compulsion would not extinguish the legitimate claims of a party and it would be open to the party to claim the remaining amount. The Court also held that the non-supply of documents...

Disclosure By The Arbitrator Is Not A Discretionary But A Mandatory Requirement, Non-Disclosure Vitiates The Award: Delhi High Court

The High Court of Delhi has held that disclosure by the arbitrator under Section 12 r/w 6th Schedule of the A&C Act is not a discretionary but a mandatory requirement. The Court held that the failure of the arbitrator to disclose a fact that might give rise to a justifiable doubt as to his impartiality vitiates the arbitral proceedings as well as the consequent award. The bench of Justices Vibhu Bakhru and Amit Mahajan set aside an arbitral award passed without the arbitrator ...

SAMA Hosts The 6th Indian Mediation Week

Indian Mediation Week, 6th Edition witnessed Enterprises discussing potential of ODR and top ADR/ODR professionals being felicitated in 'Resolutionary of the Year' Ceremony.To ease the growing burden on India's judiciary, Mediation is an accessible alternative whose awareness remains critically low. This gap in awareness is the chief problem IMW seeks to address while also recognising the efforts of those who are contributing to the access-to-justice movement. Since its inception, IMW has...

High Court Cannot Review The Order Passed Under Section 11 Of The A&C Act: Delhi High Court

The High Court of Delhi has held that the High Courts cannot review an order passed under Section 11 of the A&C Act as the Act does not contain any provision for review. The bench of Justice Neena Bansal Krishna held that power of review is not an inherent power but the creation of a statute, therefore, it cannot be exercised absence of a provision. The Court held that unlike the Supreme Court which by virtue of Article 137 enjoys the inherent power of review, there is no such power...