31/07/2023

Under Section 29A(3) of the Arbitration and Conciliation Act, 1996 there is no requirement that consent of the parties has to be expressed and that too, in writing, there can be a deemed consent, an implied consent of the parties, which can be gathered from their acts and conduct – Balak Ram and others Vs. NHAI – Himachal Pradesh High Court

In this case, District Judge in the impugned judgment has set aside the award passed by the Arbitrator primarily on the ground that the same was non-compliant to Section 29A of the A&C Act.
Hon’ble High Court of Himachal Pradesh held that:
(i) Both the contesting parties continued with the proceedings. None of the parties objected to the arbitration proceedings conducted by the Arbitrator beyond the 12 months. From the conduct of the parties, a tacit consent on their part for extending the period of arbitration can be inferred.
(ii) Consent of the parties envisaged under Section 29A(3) of the Arbitration & Conciliation Act for extending the arbitral period need not necessarily be either express or in writing.
(iii) There can be a deemed consent, an implied consent of the parties, which can be gathered from their acts and conduct. Their acquiescence in proceeding with the arbitration case beyond twelve months without raising any objection to the continuation of proceeding does amount to consent.
(iv) Under Section 29A(3) of the Arbitration and Conciliation Act, there is no requirement that consent of the parties has to be expressed and that too, in writing.

Under Section 29A(3) of the Arbitration and Conciliation Act, 1996 there is no requirement that consent of the parties has to be expressed and that too, in writing, there can be a deemed consent, an implied consent of the parties, which can be gathered from their acts and conduct – Balak Ram and others Vs. NHAI – Himachal Pradesh High Court Read Post »

Court cannot re-examine the evidence and reasonableness of the reasons given by Arbitrator since, the parties have themselves selected the forum then such forum must be conceded with the power of appraisement of evidence – Union of India Vs. Besco Ltd. (Wagon Division) – Delhi High Court

Hon’ble High Court held that:
(i) It is settled law that the ground of Patent illegality gives way to setting aside an Arbitral Award with a very minimal scope of intervention. A party cannot simply raise an objection on the ground of patent illegality if the Award is against them.
(ii) The reasoning of learned Sole Arbitrator is logical and all the material and evidence were taken note of by Learned Sole Arbitrator and this Court cannot substitute its own evaluation of conclusion of law or fact to conclude other than that of learned Sole Arbitrator.
(iii) As per the judgment in Reliance Infrastructure Ltd. v. State of Goa (2023) ibclaw.in 66 SC, the Hon’ble Supreme Court has settled the law on the limited grounds of challenge of Section 34 of the Act, 1996. The Court cannot re-examine the evidence and reasonableness of the reasons given by the Arbitrator since, the parties have themselves selected the forum then such forum must be conceded with the power of appraisement of evidence. The Arbitrator is the master of facts and law and has the jurisdiction and authority to decide the issue at hand and if the Tribunal has reached a conclusion after considering all the material on record.

Court cannot re-examine the evidence and reasonableness of the reasons given by Arbitrator since, the parties have themselves selected the forum then such forum must be conceded with the power of appraisement of evidence – Union of India Vs. Besco Ltd. (Wagon Division) – Delhi High Court Read Post »

A Court cannot entertain an application under section 36(2) of Arbitration and Conciliation Act, 1996 unless a buyer puts in 75% of the awarded amount before seeking setting aside of an award under section 19 of the MSMED Act, 2006 – The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata Vs. Marine Craft Engineers Pvt. Ltd. – Calcutta High Court

The issues for adjudication in this case are as follows:
A. Whether compliance of section 19 of the MSMED Act is mandatory for seeking stay of an award; and
B. Whether filing of an application under section 34 of the 1996 Act, without the pre-deposit under section 19 of the MSMED Act, makes the application for seeking stay of the award under section 36(2) of the 1996 Act, imperfect in the eye of law.

A Court cannot entertain an application under section 36(2) of Arbitration and Conciliation Act, 1996 unless a buyer puts in 75% of the awarded amount before seeking setting aside of an award under section 19 of the MSMED Act, 2006 – The Board of Major Port Authority for the Shyama Prasad Mookerjee Port, Kolkata Vs. Marine Craft Engineers Pvt. Ltd. – Calcutta High Court Read Post »

Not every violation of the law that is committed by the Arbitral Tribunal would be considered an instance of patent illegality – NTPC Ltd. Vs. Tata Projects Ltd. – Delhi High Court

Hon’ble High Court held that:
(i) The patent illegality should be an illegality which goes to the foundation of the matter. To put it in another way, not every violation of the law that is committed by the Arbitral Tribunal would be considered, an instance of patent illegality.
(ii) It is against the law for the courts to re-evaluate the evidence, in order to reach the conclusion that the award suffers from patent illegality.
(iii) The arbitral award is to contain reasons which are intelligible and adequate. Such reasons need not be elaborated, but must have three characteristics of being proper, intelligible, and adequate.
(iv) An arbitral award that does not provide any explanations for its conclusions leaves itself open to legal scrutiny for the reasons given above. The arbitrator has reached certain perverse conclusions, and those conclusions, to the extent that they are based on no evidence or have been arrived at by ignoring essential evidence, can be set aside on the basis that they are obviously illegal.

Not every violation of the law that is committed by the Arbitral Tribunal would be considered an instance of patent illegality – NTPC Ltd. Vs. Tata Projects Ltd. – Delhi High Court Read Post »

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