19/03/2024

Under Section 36 of the Arbitration and Conciliation Act, 1996, the Court has complete discretion on the quantum which an award-debtor must put in for stay of the Arbitral Award – Everest Infra Energy Ltd. Vs. Transmission (India) Engineers and Anr. – Calcutta High Court

Hon’ble Calcutta High Court held that:

(i) There cannot be a straightjacket formula or even a mandate on the Court to grant stay of an award by directing the award-debtor to deposit a specified quantum, i.e., the principal sum + interest or the principal sum without interest or even the entire principal sum or the entirety of the interest component for stay of the Award. In other words, the Court has complete discretion on the quantum which an award-debtor must put in for stay of the award. The discretion must of course be wisely-exercised and expressed in writing.
(ii) Hyder Consulting (UK) Limited vs. Governor, State of Orissa; (2017) ibclaw.in 248 SC did not disturb the discretion conferred on the Court in sections 36(2) and (3) that is the Court deciding an application for stay of an arbitral award.

Under Section 36 of the Arbitration and Conciliation Act, 1996, the Court has complete discretion on the quantum which an award-debtor must put in for stay of the Arbitral Award – Everest Infra Energy Ltd. Vs. Transmission (India) Engineers and Anr. – Calcutta High Court Read Post »

Can Arbitration agreement between the parties and the chosen venue be overridden/superseded by the provisions of the MSMED Act, 2006? – Odisha Power Generation Corporation Ltd. Vs. Techniche Consulting Service and Others. – Calcutta High Court

In this important judgment, Hon’ble Calcutta High Court held that:

(i) Rule 9 of the 2016 Rules must be read in the above context and be construed as the venue and not the seat of arbitration. This is also by reason of the fact that the arbitration provided by the Facilitation Council cannot take away the free choice of the parties in the matter of seat and venue and override the same by the situs of the statutory arbitration.
(ii) Section 18(4) does not alter the seat-venue as decided in the arbitration agreement independently executed between the parties.
(iii) The non obstante clauses must therefore be given a limited meaning only in respect of section 18(1) and (4) and not beyond those provisions.
(iv) Section 18 of the MSMED Act including section 18(1) and (4) thereto does not exclude or obliterate the arbitration agreement executed between the parties.
(v) The Facilitation Council as arbitrator makes the deeming fiction of section 18(3) a necessity for that adjudication.
(vi) The office of the MSME Facilitation Council was the venue of the arbitration proceeding. The office of the Facilitation Council was not the seat.

Can Arbitration agreement between the parties and the chosen venue be overridden/superseded by the provisions of the MSMED Act, 2006? – Odisha Power Generation Corporation Ltd. Vs. Techniche Consulting Service and Others. – Calcutta High Court Read Post »

When there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto – NBCC (India) Ltd. Vs. Zillion Infraprojects Pvt. Ltd. – Supreme Court

Hon’ble Supreme Court held that:

(i) Inox Wind Ltd. Vs. Thermocables Ltd. (2018) ibclaw.in 116 SC has distinguished the law laid down in the case of M. R. Engineers & Contractors Pvt. Ltd. Vs. Som Datt Builders Ltd. (2017) ibclaw.in 255 SC.

(ii) A perusal of Section 7(5) of the Arbitration Act itself would reveal that it provides for a conscious acceptance of the arbitration clause from another document, by the parties, as a part of their contract, before such arbitration clause could be read as a part of the contract between the parties.
(iii) It is thus clear that 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.
(iv) When there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto.
(v) The present case is not a case of ‘incorporation’ but a case of ‘reference’. As such, a general reference would not have the effect of incorporating the arbitration clause. In any case, Clause 7.0 of the L.O.I., which is also a part of the agreement, makes it amply clear that the redressal of the dispute between the NBCC and the respondent has to be only through civil courts having jurisdiction of Delhi alone.

When there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto – NBCC (India) Ltd. Vs. Zillion Infraprojects Pvt. Ltd. – Supreme Court Read Post »

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