Mr. Justice R. Subramanian

A right to set off itself will arise only if there is ascertained debt or a liability that has crystallised into a debt – Chennai Metropolitan Water Supply and Sewerage Board Vs. Chennai Water Desalination Ltd. – Madras High Court

Hon’ble High Court held that the right of the appellant is to recover damages on proof of breach. The DRP viz. Dispute Resolution Panel which is an Inter Departmental Mechanism, has concluded that the respondent was not at fault. The Arbitral Tribunal has not gone into the merits but it has only rejected the claim on the ground that it is barred by limitation. Therefore, the fact that there was a breach on the part of the respondent is yet to be established. Unless the breach is established, the right to claim damages cannot be said to have crystallised. If the appellant is allowed to set off the amount secured by the Bank Guarantee towards damages, it would definitely amount to allowing the appellant itself to decide as to who is in breach. The same cannot be done particularly when the claim has been rejected by the Arbitral Tribunal.

A right to set off itself will arise only if there is ascertained debt or a liability that has crystallised into a debt – Chennai Metropolitan Water Supply and Sewerage Board Vs. Chennai Water Desalination Ltd. – Madras High Court Read Post »

The bar under Section 9(3) of Arbitration and Conciliation Act, 1996 is not an absolute bar, the Court can exercise jurisdiction under Sec. 9(1), even after the constitution of Arbitral Tribunal | Whatever interim measure that could be taken under Sec. 17 can be only between the parties to the agreement and not against the third parties – Sri Kauvery Medical Care (India) Ltd. Vs. CeeDeeYes Health Care Services (P) Ltd. and Anr. – Madras High Court

Hon’ble Madras High Court held that:
(i) Section 9(3) of Arbitration and Conciliation Act, 1996 is in two parts. The first part seeks to curtail the power on the Court with reference to entertaining an application for interim measure / interim protection after constitution of the Arbitral Tribunal. The second limb of the said section carves out an exception or is akin to a proviso which vests the discretion in the Court.
(ii) If the Court finds that the remedy provided under Section 17 is not efficacious, de hors the prohibition contained in the earlier part of the Section, the Court can exercise jurisdiction under Section 9(1), even after the constitution of the Arbitral Tribunal. To put it simply, there is no absolute prohibition on the exercise of jurisdiction under Section 9(1).
(iii) The bar under Section 9(3) is not an absolute bar but, is qualified and is subject to the finding that the remedy available before the Arbitrator is efficacious.
(iv) Whatever interim measure that could be taken under section 17 can be only between the parties to the agreement and not against the third parties.

The bar under Section 9(3) of Arbitration and Conciliation Act, 1996 is not an absolute bar, the Court can exercise jurisdiction under Sec. 9(1), even after the constitution of Arbitral Tribunal | Whatever interim measure that could be taken under Sec. 17 can be only between the parties to the agreement and not against the third parties – Sri Kauvery Medical Care (India) Ltd. Vs. CeeDeeYes Health Care Services (P) Ltd. and Anr. – Madras High Court Read Post »

Whether a right of a partner to seek dissolution could be controlled by the contract between the parties | Whether the discretion that is vested in the Court under Section 44 could be used to deny the right of dissolution to a partner under Section 43 of the Partnership Act – Ramar Coir Industries and Ors. Vs. Dhana Natarajan and Anr. – Madras High Court

Hon’ble Madras High Court held that:

(i) The right of a partner to seek dissolution is a statutory right and the same cannot be contracted out. Once it is found that a partnership is a t will, it was open to a partner to seek dissolution and Section 43 invests a statutory right in a partner to seek dissolution.
(ii) The Trial Court has found that the plaintiff was excluded from the business of the firm. It is also evident that the plaintiff was not paid her due share in the partnership business. We therefore, have no hesitation in coming to the conclusion that there was exclusion of the plaintiff from the business and there was mismanagement also.

Whether a right of a partner to seek dissolution could be controlled by the contract between the parties | Whether the discretion that is vested in the Court under Section 44 could be used to deny the right of dissolution to a partner under Section 43 of the Partnership Act – Ramar Coir Industries and Ors. Vs. Dhana Natarajan and Anr. – Madras High Court Read Post »

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