CH-09 Appeal and Ground of Appeal [Sec. 37]

What is the date to determine the Foreign Exchange Rate for converting the Arbitral award amount expressed in foreign currency to Indian rupees? | What would be conversion date, when the Award Debtor deposits some amount before the court during the pendency of proceedings challenging the award? – DLF Ltd. (Formerly Known as DLF Universal Ltd.) and Anr. Vs. Koncar Generators and Motors Ltd. – Supreme Court

Hon’ble Supreme Court held that:

i. The statutory scheme of the Act makes a foreign arbitral award enforceable when the objections against it are finally decided. Therefore, as per the Act and the principle in Forasol v. ONGC, the relevant date for determining the conversion rate of foreign award expressed in foreign currency is the date when the award becomes enforceable.
ii. When the award debtor deposits an amount before the court during the pendency of objections and the award holder is permitted to withdraw the same, even if against the requirement of security, this deposited amount must be converted as on the date of the deposit.
iii. After the conversion of the deposited amount, the same must be adjusted against the remaining amount of principal and interest pending under the arbitral award. This remaining amount must be converted on the date when the arbitral award becomes enforceable, i.e., when the objections against it are finally decided.

What is the date to determine the Foreign Exchange Rate for converting the Arbitral award amount expressed in foreign currency to Indian rupees? | What would be conversion date, when the Award Debtor deposits some amount before the court during the pendency of proceedings challenging the award? – DLF Ltd. (Formerly Known as DLF Universal Ltd.) and Anr. Vs. Koncar Generators and Motors Ltd. – Supreme Court Read Post »

The use of the word “in”, in the expression “in part performance of the contract” under Section 53A of Transfer of Property Act, 1882 merely connotes a nexus between the taking of possession of the property by the transferee and the contract which envisages transfer of the property – Sharad Bhansali and Anr. Vs. Mukesh Aggarwal and Anr. – Delhi High Court

Hon’ble Delhi High Court held that the taking of possession of the property is only to be “in part performance of the contract”. Section 53A does not, either expressly or by necessary implication, require the taking of possession to be simultaneous with the execution of the Agreement to Sell, or even immediately pursuant thereto. The use of the word “in”, in the expression “in part performance of the contract” merely connotes a nexus between the taking of possession of the property by the transferee and the contract which envisages transfer of the property. If, therefore, the transferee, in the case of an Agreement to Sell, acquires possession of the property forming subject matter of the Agreement to Sell, consequent upon its execution, Section 53A would ipso facto apply, even if the acquisition of possession is not simultaneous with, or immediately following, the execution of the Agreement to Sell.

The use of the word “in”, in the expression “in part performance of the contract” under Section 53A of Transfer of Property Act, 1882 merely connotes a nexus between the taking of possession of the property by the transferee and the contract which envisages transfer of the property – Sharad Bhansali and Anr. Vs. Mukesh Aggarwal and Anr. – Delhi High Court Read Post »

On a harmonious reading of 9(1) and 9(3) of the Arbitration Act, the Court is not denuded of its power to grant interim relief when an Arbitral Tribunal is constituted – Ambrish H. Soni Vs. Mr. Chetan Narendra Dhakan and Ors. – Bombay High Court

Hon’ble High Court held that, the Court:

(i) will not interfere with the exercise of discretion by the Arbitral Tribunal and substitute its own view except when the Arbitral Tribunal has acted arbitrarily, or capriciously or where the Arbitral Tribunal has ignored the well settled principles of law regulating the grant or refusal of interlocutory injunctions
(ii) cannot reassess the material based on which the Tribunal has arrived at its decision so long as the Tribunal has considered the material and had taken a plausible view,
(iii) cannot interfere with the exercise of discretion by the Tribunal, if the discretion of the Tribunal had been exercised in a reasonable and judicious manner, solely on the ground that would have come to a contrary conclusion,
(iv) that matters of interpretation of the provisions of a contract lie primarily within the domain of the Arbitral Tribunal and
(v) cannot constantly interfere with and micro manage proceedings which are pending before Arbitral Tribunals.

The Hon’ble Court further held that it is well settled and as held by the Hon’ble Supreme Court in the case of Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd. (2021) ibclaw.in 209 SC that on a harmonious reading of 9(1) and 9(3) of the Arbitration Act the Court is not denuded of its power to grant interim relief when an Arbitral Tribunal is constituted. What the Court has to examine is if the Applicant has an efficacious remedy under Section 17 or that circumstances exist, which may not render the remedy provided under Section 17 of the 1996 Act efficacious.

On a harmonious reading of 9(1) and 9(3) of the Arbitration Act, the Court is not denuded of its power to grant interim relief when an Arbitral Tribunal is constituted – Ambrish H. Soni Vs. Mr. Chetan Narendra Dhakan and Ors. – Bombay High Court Read Post »

While dealing with an appeal under Section 37 of Arbitration Act, Appellate Court can exercise the Power of Remand only when exceptional circumstances make an order of remand unavoidable | The scope of interference in a petition under Section 34 is very narrow and the jurisdiction under Section 37 is narrower – Bombay Slum Redevelopment Corporation Pvt. Ltd . Vs. Samir Narain Bhojwani – Supreme Court

In this important judgment, Hon’ble Supreme Court clarified following issues:

A. Jurisdiction of the Appellate Court dealing with an appeal under Section 37 of Arbitration Act.
B. Power of the Appellate Court under Section 37(1)(c) of Arbitration Act to pass an order of remand.
C. The job of the Appellate Court was to scrutinize.
D. Only legally permissible grounds in petitions under Section 34 and the appeals under Section 37.

While dealing with an appeal under Section 37 of Arbitration Act, Appellate Court can exercise the Power of Remand only when exceptional circumstances make an order of remand unavoidable | The scope of interference in a petition under Section 34 is very narrow and the jurisdiction under Section 37 is narrower – Bombay Slum Redevelopment Corporation Pvt. Ltd . Vs. Samir Narain Bhojwani – Supreme Court Read Post »

The contours of the proceedings under Section 37 of the Arbitration and Conciliation Act, 1996 also is limited to the scope and the ambit of challenge under Section 34 – Gaursons Promoters Pvt. Ltd. Vs. Aakash Engineers and Contractors – Allahabad High Court

Hon’ble Allahabad High Court held that:

A. Section 34 of the Arbitration and Conciliation Act, 1996 was deliberately engrafted in a couched manner bearing in mind the fact that there should be limited intervention of Courts in arbitral proceedings especially after the proceedings have been concluded and the award has been pronounced by the arbitral tribunal.
B. The yardsticks and the parameters under which intervention by the courts of law in the proceedings against the award stands bracketed in Section 34 of the Act which obviously starts with caveat that the arbitral award may only be set aside by the Court if the party making the application establishes on the basis of the record of the arbitral tribunal:
(i) was under some incapacity;
(ii) the arbitral agreement is not valid under the law for the time being in force;
(iii) a party making the application was not given proper notice of appointment of arbitrator or he was unable to present his case;
(iv) the arbitral award deals with a dispute not contemplated or not falling within the terms of the submission of the arbitrator;
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties unless such agreement was in conflict with the provisions;
(vi) the subject matter of dispute is not capable of settlement by arbitration under law for the time being in force;
(vii) the arbitral award is in conflict with the public policy of India.

The contours of the proceedings under Section 37 of the Arbitration and Conciliation Act, 1996 also is limited to the scope and the ambit of challenge under Section 34 – Gaursons Promoters Pvt. Ltd. Vs. Aakash Engineers and Contractors – Allahabad High Court Read Post »

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