Arbitrator Appointment Without Written Waiver Under Section 12(5) Is Void Ab Initio: Delhi High Court

On 26 May, the Delhi High Court reiterated that waiver of the applicability of Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act cannot be inferred from conduct and must arise only from an express written agreement between the parties. A Bench of Justice Avneesh Jhingan set aside an arbitral award in a dispute between a developer and the Air Force Naval Housing Board (AFNHB) concerning construction of a residential complex. It observed: “The unilateral...

Delhi HC Refers Morgan Securities–BPL Post-Award Dispute To Arbitration, Appoints Justice U.U. Lalit

On 29 May, the Delhi High Court referred the disputes between Morgan Securities and Credits Pvt. Ltd. and BPL Limited to arbitration, appointed former Chief Justice of India Justice U.U. Lalit as sole arbitrator, and continued interim protection restraining alteration of BPL's assets, management, and control structure pending arbitration. A Single Judge Bench of Justice Harish Vaidyanathan Shankar held that alleged post-award breaches arising from subsequent transactions can give rise to a...

Mere Objections To Specific Performance Not Enough To Deny Interim Relief In Arbitration: Delhi High Court

The Delhi High Court has recently held that mere invocation of statutory restrictions on specific performance cannot, by itself, justify refusal of interim protective relief in arbitration proceedings. It observed that such objections must be clearly established before a court can decline measures aimed at preserving the subject matter of a dispute pending arbitration. Justice Harish Vaidyanathan Shankar made the observation while granting interim protection to Conscient Infrastructure Pvt....

Similarity With 'Excel' Alone Not Bad Faith; Delhi HC Sets Aside Award Transferring 'exceltotally.in' To Microsoft

The Delhi High Court has set aside an arbitral award that directed the transfer of the domain name "exceltotally.in" to Microsoft Corporation. The Court held that confusing similarity with Microsoft's "EXCEL" trademark, by itself, was not enough to establish bad faith under the .IN Domain Name Dispute Resolution Policy (INDRP). Justice Harish Vaidyanathan Shankar observed that the arbitrator had not independently examined whether the registrants intentionally sought to deceive users, exploit...

Arbitral Seat Cannot Be Shifted Merely Due To Convenience Venue: Allahabad High Court

The Allahabad High Court on 27 May held that the jurisdictional seat of arbitration cannot be altered merely because arbitral proceedings were conducted at another venue for convenience, once the seat has been contractually designated. Justice Piyush Agrawal allowed the petition by Bb Coachtech India Private Limited and set aside the order of the Commercial Court, Kanpur, remanding the matter for fresh consideration. He observed: “the hearing of the arbitration may have been taken place at...

Madras High Court Affirms Fresh Arbitration In ₹2.5 Cr. Isha Foundation-BSNL Call Billing Dispute

The Madras High Court on 9 June dismissed Isha Foundation's appeal, upheld a Single Judge's order setting aside the arbitral award, and directed a fresh adjudication of its dispute with Bharat Sanchar Nigam Limited (BSNL). A Division Bench of Justices P. Velmurugan and Govindarajan Thilakavadi held that an Arbitral Tribunal cannot reject Call Detail Records (CDRs) and decide a dispute involving abnormal call traffic without obtaining expert opinion where technical issues require...

Defendant Cannot Invoke Arbitration Clause After Participating In Trial Without Objection: Delhi HC

The Delhi High Court on 3 June reiterated that a defendant who files a written statement and participates in the trial without seeking reference to arbitration at the appropriate stage cannot later invoke an arbitration clause to challenge the maintainability of the suit. Justice Neena Bansal Krishna upheld a recovery decree of Rs. 2.91 lakh in favour of Dollar Security & Support Services against Amber Electrotech Ltd., finding that the company had never disputed the outstanding invoice...

Minority Opinion Awarding Lesser Amounts Does Not Invalidate Majority Arbitral Award: Madras High Court

The Madras High Court has held that a majority arbitral award does not become invalid merely because a dissenting arbitrator awarded lesser amounts. The court dismissed a challenge by the Chennai Metropolitan Water Supply and Sewerage Board to an award in favour of SPML Infra Limited arising out of a Chennai sewerage pipeline project. A division bench of Justices P. Velmurugan and K. Govindarajan Thilakavadi observed: "The Tribunal consisted of three Arbitrators and the impugned Award is a...

BOCW Cess Dispute Not Arbitrable, Must Be Decided Under Statutory Mechanism: Chhattisgarh High Court

The Chhattisgarh High Court on 13 May, refused to appoint an arbitrator in a dispute between SK Samanta and Co. (P) Ltd. and South Eastern Coalfields Ltd. (SECL), holding that issues relating to statutory cess under the Building and Other Construction Workers' Welfare Cess Act, 1996 (BOCW Cess Act) are non-arbitrable. Chief Justice Ramesh Sinha held that the dispute arose from statutory levy and not a purely contractual arrangement, and therefore did not fall within the scope of arbitration...

Section 11 Arbitration Orders Not Reviewable, Article 215 Powers Limited: Allahabad High Court

On 14 May, the Allahabad High Court held that it cannot review an order passed under Section 11 of the Arbitration and Conciliation Act, 1996, while exercising its statutory jurisdiction. However, as a Court of Record, it may invoke its inherent powers under Article 215 of the Constitution to correct the record or remedy a grave error that may otherwise result in a failure of justice. A Bench of Justice Jaspreet Singh dismissed an application seeking recall of an earlier order constituting a...

Patent Illegality Ground Unavailable To Challenge Awards In International Commercial Arbitrations: Bombay HC

The Bombay High Court has reiterated that an arbitral award arising from an international commercial arbitration seated in India cannot be set aside on the ground of patent illegality. The court held that allegations that an arbitral tribunal ignored evidence or arrived at perverse findings fall within the ground of patent illegality, which is unavailable for challenging such an award. It dismissed Oil and Natural Gas Corporation Ltd.'s challenge to an award in favor of Malaysia-based...

Mere 'Criminal Overtones' Or Claimed 'Public Overtones' Do Not Make Dispute Non-Arbitrable: Bombay High Court

The Bombay High Court has held that a dispute does not become non-arbitrable merely because one side alleges fraud or claims that it has criminal or public overtones. Referring a dispute between television production company Shashisumeet Production Pvt. Ltd. and investor Kuresh R. Kushesh to arbitration, the Court said such allegations, by themselves, do not take the matter outside the jurisdiction of an arbitral tribunal. "Merely on the ground that there are “criminal overtones” or because a...