Op EdsOP. ED.

   

“I can imagine no society which does not embody some method of arbitration.”

– Herbert Read

Arbitration is one of the most common methods of dispute resolution which has gained popularity in the recent past in India owing to the plentiful advantages it offers. The Arbitration and Conciliation Act, 19961 (“the Act” for brevity) is the statute which at present regulates arbitration in India and comprehensively lays down the procedure of arbitration. The Act is a special legislation2 and is not bound by the Civil Procedure Code, 19083.

As far as the appointment of arbitrator(s) is concerned, Section 11 of the Act4 stipulates the process of the appointment. Sections 11(5) and (6) provides that on the failure to reach an agreement between the parties, upon the question of appointment or failure to act as required by the agreed procedure, the Court (Supreme Court, High Court or any institution designated by such court) shall make the appointment or take necessary measure.

In a recent case5, the Supreme Court held that the Court can hold a preliminary inquiry to determine whether the dispute is arbitrable or not when an application is made under Sections 11(5) & (6) and an objection to the same is made by the respondent. The Court in the light of Vidya Drolia v. Durga Trading Corpn.6 and Indian Oil Corpn. Ltd. v. NCC Ltd.7 remitted the matter to the High Court to hold preliminary inquiry.

154.4. Rarelyasademurrer the court may interfere at Section 88 or Section 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably “non-arbitrable” and to cut off the deadwood.9

The core of arbitration is a legally binding arbitration agreement. The cornerstone upon which the entire structure of the arbitral process is built is a valid arbitration agreement. The absence of such arbitration agreement calls for the interference of the Court to determine whether the dispute brought is arbitrable or not. However, the extent of judicial intervention in arbitration proceedings has been restricted10 to what has been expressly provided in the Act and the question of non-arbitrability is also to be determined by the Arbitral Tribunal. The legislative mandate and the general rule/principle is that it is the Arbitral Tribunal and not the court which determines the said question. Holding a preliminary inquiry has not been expressly provided in the Act and the same may be construed as being interference by the court, however, the Supreme Court has observed that:

134. Prima facie examination is not full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage.11

Preliminary inquiry to determine whether the dispute is arbitrable or not can save the parties from being unnecessarily dragged into arbitration. It has been observed that the courts can review the issue of non-arbitrability and determine whether the dispute was covered by the arbitration clause at the reference stage itself. The courts cannot leave the issue unresolved for the Arbitral Tribunal to review and decide12. The Supreme Court has in the recent judgment13 brought clarity to the question whether the Court can hold preliminary inquiry as to the arbitrability of the dispute by holding that preliminary inquiry can be made when an objection is preferred by the respondent.


* Associate Advocate, The Law Desk. Author can be reached at <ayushi@thelawdesk.org>.

1. Arbitration and Conciliation Act, 1996.

2. Consolidated Engg. Enterprises v. Principal Secy., Irrigation Dept., (2008) 7 SCC 169.

3. Civil Procedure Code, 1908.

4. Arbitration and Conciliation Act, 1996, S. 11.

5. Emaar India Ltd. v. Tarun Aggarwal Projects LLP, 2022 SCC OnLine SC 1328.

6. (2021) 2 SCC 1.

7. 2022 SCC OnLine SC 896.

8. Arbitration and Conciliation Act, 1996, S. 8.

9. VidyaDrolia v. DurgaTrading Corpn., (2021) 2 SCC 1, 121.

10. Arbitration and Conciliation Act, 1996, S. 5.

11. VidyaDrolia v. DurgaTrading Corpn., (2021) 2 SCC 1, 110-111.

12. GarwareWallRopesLtd. v. CoastalMarine Constructions&Engg. Ltd., (2019) 9 SCC 209 and UnitedIndia Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607.

13. Emaar India Ltd. v. Tarun Aggarwal Projects LLP, 2022 SCC OnLine SC 1328.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsHigh Courts

Gujarat High Court: A Bench of Sonia Gokani, J., while hearing the grievance of the petitioner regarding non-filing of FIR, ordered the authorities to do a necessary investigation after lodging FIR.

A writ petition was made by the petitioner who was aggrieved by non-registration of the first information report on the basis of complaint given in writing. S.D. Mansur, learned counsel for the petitioner contended that the offence being a cognizable offence doesn’t take away his right to lodge the FIR. Thus an application for appropriate order of the court was made by the petitioner.

Jirga Jhaveri, the learned counsel for the respondent, on the other hand, submitted that though a cognizable offence is made out, his first information report was not registered.

The Court after hearing the party relied on the Judgment of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, which mandates that registration of FIR is mandatory under Section 154 of Code of  Criminal Procedure, 1973.  The Court held that the police officer cannot avoid his duty of registering the offence if the cognizable offence is disclosed and the action should be taken against erring officer who does not register the FIR. The court further held that in order to ascertain the information regarding the cognizable offence it was important to conduct the preliminary inquiry. The court thus instructed the respondents to lodge the report and conduct the preliminary inquiry within one week and further instructed the petitioner that if the action is not taken, it shall be open to him to approach the higher officials, as provided under Section 154(3) of the Code of Criminal Procedure, 1973.[Avdhesh Bhawaniprasad Yadav v. State of Gujarat, Special Criminal Application No. 930 of 2019, Order dated 07-02-2019]

Case BriefsSupreme Court

Supreme Court: Dealing with the scope of initiating the proceedings under Section 340 CrPC, the Court said that the mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 IPC but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. It was further added that even after the above position has emerged, the court has to form an opinion that that such an inquiry is required in the interests of justice and appropriate in the facts of the case.

Explaining the provision under Section 340 CrPC, the Court said that there are two pre conditions for initiating proceedings under Section 340 CrPC:

  • materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and
  • (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

The bench of Kurian Joseph and R.F. Nariman, JJ said that in the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 of the CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. [Amarsang Nathaji v. Hardik Harshadbhai Patel, 2016 SCC OnLine SC 1316, decided on 23.11.2016]