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Supreme Court: In a civil appeal arising from a dispute concerning delayed delivery of a residential flat, the Division Bench of Vikram
“Alternate Dispute Resolution mechanisms or more particularly, arbitration, can only be the chosen method if both/all parties to the dispute can agree that it will be so. This freedom is not only insofar as choosing the medium, but it also encompasses choice of forum, applicable law and to some extent even procedural norms.”
“It was open to the petitioner to participate in the proceedings and to prefer an application under Section 16, A&C Act to challenge the existence of the agreement, but it chose to stay away, and such conduct indicated a strategy of taking a chance by relying on purported errors to undermine an adverse award.”
“The issue with regard to the time barred claim is not to be gone into at the reference stage under Section 11 of the Arbitration and Conciliation Act, 1996 but can be seen only by the Arbitrator/Arbitration Tribunal at the relevant stage.”
“A common reference to the Arbitral Tribunal for resolution of disputes and differences arising out of all such agreements and contracts was requested by the respondent which was agreed upon by the applicant.”
“It was not disputed that the plaintiff’s prayer in the suit for recovery of the amount would be arbitrable. However, the plaintiff also sought redemption of mortgages executed in its favour and this was where the plaintiff claimed that the said claim was not arbitrable.”
“The scope of the intervention of the court in arbitral matters is virtually prohibited, if not absolutely barred.”
“Order 2 Rule 2 and Section 11 CPC ensured that all claims were brought in one suit, and Section 11 CPC also operated to bar re-litigation of decided matters.”
“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” would not constitute an arbitration agreement”.
“The agreement executed between the parties is not disputed. This fact is not in dispute that the contract of the petitioner has been terminated and the money has been forfeited by the respondents in the month of October, 2019.”
Arguing that the LLP is a “third party” to the LLP Agreement is much like arguing that a company is a third party to its own Articles of Association.
The Court said that governmental entities must be treated in a similar fashion to private parties insofar as proceedings under the Arbitration Act are concerned, except where otherwise indicated by law.
In the present case, Clause 12 of the partnership deed indicated that the Partnership Act, 1932 and its Rules shall cover only those aspects not specifically mentioned in the deed.
“The legislative intent of inserting Section 29-A of the Act is only for expeditious disposal of the arbitration proceedings and not to confer a new defence upon an unsuccessful party to challenge the award and to reopen the entire proceedings.”
The Delhi High Court granted time to both parties to file written submissions on whether an arbitration clause in an invoice could constitute an arbitration agreement under Section 7 of the Arbitration and Conciliation Act, 1996.
The respondent raised an objection to the maintainability of the present application on the ground that the petitioner being an agent governed under Section 48 of the Bihar Cooperative Societies Act, 1935, was required to approach the Registrar of the Cooperative Societies for initiating a dispute resolution proceeding.
The Court noted Arbitration agreement specifying an even number of arbitrators cannot be a ground to render the arbitration agreement invalid. Appointed a sole arbitrator under Section 11(6) petition.
MSMED Act is a beneficial legislation for Micro Small & Medium Enterprises and provides that a buyer can also raise counter claims before the statutory arbitrator under the MSMED Act. Moreover, the scope of the Act as stated therein is to the extent that even if there is an agreement for arbitration between the parties, the MSMED Act will have overriding effect.
‘A reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document into the contract’