Mr. Justice Manoj Misra

If Arbitral Tribunal has already provided full and sufficient opportunity for cross-examination, no further extension of time is warranted | The parties are treated with equality and each party is given full opportunity to present its case – Serosoft Solutions Pvt. Ltd. Vs. Dexter Capital Advisors Pvt. Ltd. – Supreme Court

The Hon’ble Supreme Court held that it is the statutory duty of the Arbitral Tribunal to ensure that the parties are treated with equality and each party is given full opportunity to present its case. At the same time, there is yet another statutory obligation, which is imposed on the judicial authorities. That is the statutory incorporation of judicial restraint in interfering with matters governed under Part I of the Act relating to arbitration agreement, composition and jurisdiction of Arbitral Tribunal, coupled with the conduct of the proceedings and making, challenge and enforcement of the award.

If Arbitral Tribunal has already provided full and sufficient opportunity for cross-examination, no further extension of time is warranted | The parties are treated with equality and each party is given full opportunity to present its case – Serosoft Solutions Pvt. Ltd. Vs. Dexter Capital Advisors Pvt. Ltd. – Supreme Court Read Post »

An unjustified interference with the proceedings initiated under the Insolvency and Bankruptcy Code 2016, breaches the discipline of law – Mohammed Enterprises (Tanzania) Ltd. Vs. Farooq Ali Khan and Ors. – Supreme Court

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An unjustified interference with the proceedings initiated under the Insolvency and Bankruptcy Code 2016, breaches the discipline of law – Mohammed Enterprises (Tanzania) Ltd. Vs. Farooq Ali Khan and Ors. – Supreme Court Read Post »

Circumstances when a sale of property by auction or other means may be set-aside after its confirmation | Henderson Principle | Applicability of Lis Pendens in case of subsequent transfer of the property sold under auction – Celir LLP v. Mr. Sumati Prasad Bafna and Ors. – Supreme Court

In this judgment, Hon’ble Supreme Court deals with the following points:
(i) Concept of Abuse of Process of Court and Collateral challenge to judgments that have attained finality.
(ii) Scope of Section 17 of the SARFAESI Act, 2002.
(iii) Once Borrower has elected to move the High Court for the very same cause of action and underlying prayers, the Borrower was precluded from pursuing its remedies before the DRT.
(iv) The ‘Henderson’ Principle as a corollary of Constructive Res-Judicata.
(v) Four situations where in second proceedings between the same parties doctrine res judicata as a corollary of the principle of abuse of process may be invoked
(vi) Applicability of Lis Pendens in the absence of any registration as required under the State Amendment to Section 52 of the Transfer of Property Act, 1882.
(vii) Interpretation of the Higher Court decisions.
(viii) Circumstances when a sale of property by auction or other means under the SARFAESI Act may be set-aside after its confirmation.

Circumstances when a sale of property by auction or other means may be set-aside after its confirmation | Henderson Principle | Applicability of Lis Pendens in case of subsequent transfer of the property sold under auction – Celir LLP v. Mr. Sumati Prasad Bafna and Ors. – Supreme Court Read Post »

Whether the appointment process under an arbitration agreement, which allows a party who has an interest in the dispute to unilaterally appoint a sole arbitrator or curate a panel of arbitrators and mandate that the other party select their arbitrator from the panel, is valid in law? – Central Organisation for Railway Electrification Vs. ECI SPIC SMO MCML (JV) A Joint Venture Company – Supreme Court

Conclusion:
a. The principle of equal treatment of parties applies at all stages of arbitration proceedings, including the stage of appointment of arbitrators;
b. The Arbitration Act does not prohibit PSUs from empanelling potential arbitrators. However, an arbitration clause cannot mandate the other party to select its arbitrator from the panel curated by PSUs;
c. A clause that allows one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts as to the independence and impartiality of the arbitrator. Further, such a unilateral clause is exclusive and hinders equal participation of the other party in the appointment process of arbitrators;
d. In the appointment of a three-member panel, mandating the other party to select its arbitrator from a curated panel of potential arbitrators is against the principle of equal treatment of parties. In this situation, there is no effective counterbalance because parties do not participate equally in the process of appointing arbitrators. The process of appointing arbitrators in CORE (supra) is unequal and prejudiced in favour of the Railways;
e. Unilateral appointment clauses in public-private contracts are violative of Article 14 of the Constitution;
f. The principle of express waiver contained under the proviso to Section 12(5) also applies to situations where the parties seek to waive the allegation of bias against an arbitrator appointed unilaterally by one of the parties. After the disputes have arisen, the parties can determine whether there is a necessity to waive the nemo judex rule; and
g. The law laid down in the present reference will apply prospectively to arbitrator appointments to be made after the date of this judgment. This direction applies to three-member tribunals

Whether the appointment process under an arbitration agreement, which allows a party who has an interest in the dispute to unilaterally appoint a sole arbitrator or curate a panel of arbitrators and mandate that the other party select their arbitrator from the panel, is valid in law? – Central Organisation for Railway Electrification Vs. ECI SPIC SMO MCML (JV) A Joint Venture Company – Supreme Court Read Post »

Landmark judgment on determination of Seat of Arbitration – Arif Azim Co. Ltd. Vs. Micromax Informatics FZE – Supreme Court

This judgment covers:
(i) Notional Doctrine of Concurrent Jurisdiction and Applicability of Part I of the Arbitration & Conciliation Act, 1996.
(ii) Criterion or Test for Determination of Seat of Arbitration: Conflict of ‘Venue’ versus ‘Seat’ of Arbitration.
(iii) Closest Connection Test – Place of Arbitration to be ascertained by the Law governing the Arbitration Agreement and not the Place of Arbitration.
(iv) The Shashoua Principle – ‘Venue’ to be construed as ‘Seat’.
(v) Non-exclusive jurisdiction clause in arbitration agreement.
(vi) Doctrine of Forum non Conveniens.

Landmark judgment on determination of Seat of Arbitration – Arif Azim Co. Ltd. Vs. Micromax Informatics FZE – Supreme Court Read Post »

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