Photo of Manasvi Nandu

Senior Associate in the Dispute Resolution Practice Area at the Mumbai office of Cyril Amarchand Mangaldas. Manasvi joined us in 2019, after having worked for more than 6 years at a tier 1 law firm of India and thereafter with a practicing Counsel of the Bombay High Court. She has extensive experience in handling disputes of general commercial nature. She focuses on litigation and arbitration arising out of contractual / corporate disputes. She can be reached at manasvi.nandu@cyrilshroff.com

Does an Arbitration Clause survive Novation of an Agreement 

Introduction:

Recently in Sanjiv Prakash v. Seema Kukreja & Ors.[1], the Delhi High Court has reiterated that novation of an agreement would necessarily result in destruction of the arbitration clause contained therein. In this regard, it was observed that an arbitration agreement being a creation of an agreement may be destroyed by agreement.

Facts of the case:

Respondent No. 3 had incorporated a company in 1971, under the name of Asian Films Laboratories Private Limited, which was subsequently renamed as ANI Media Private Limited in 1997 (“Company”). The shareholders of the said Company were Respondent No. 3’s son (“Petitioner”) and his daughter and wife (“Respondent No. 1” and “Respondent No. 2” respectively) (Petitioner and Respondents together hereinafter referred to as the “Family”). The Petitioner was the Managing Director of the Company. In 1996, Thomson Reuters Corporation Pte. Limited (“Reuters”) approached the Petitioner for a long-term equity investment in the Company on the condition that the Petitioner would play an active role in the management of the Company.
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The Final Word on the Limitation Period for Enforcement of Foreign Awards

The Supreme Court has, in its recent judgment of Government of India v. Vedanta Limited & Ors.[1], settled the law relating to limitation for filing petitions for enforcement and execution of foreign awards in India. The Court held that petitions seeking enforcement/execution of foreign awards are required to be filed within three years from the date when the right to apply accrues and in the event there is any delay in filing such petitions, the same can be condoned under Section 5 of the Limitation Act, 1963 (“Limitation Act”).
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The Age of the Indian Consumer

In a recent decision[1] passed by the Hon’ble Supreme Court, developers were directed to pay compensation in excess of the contractually stipulated amount to flat purchasers, on account of delay in handing over possession and non-fulfilment of certain representations made to them. It was also held that consumer forums established under the Consumer Protection Act, 1986 (CP Act, 1986), are empowered to award just and reasonable compensation (even beyond the contractually stipulated amount, wherever necessary) to alleviate the harassment and agony caused to a consumer.
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Arbitrator’s power to recall its order of termination of arbitral proceeding- A tale of Dubiety - Part II

In Part I of this post, we inter-alia attempted to highlight the law (and perhaps a relevant counter perspective) in relation to the power of the arbitrator to recall its order of termination of arbitral proceedings passed under Section 25(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”). In this post, we attempt to answer whether such a remedy would extend to termination of arbitral proceedings under Section 32(2)(c) of the Act, and other issues incidental thereto.
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Introduction:

This article analyses the legal basis and the genesis of the power of an arbitrator to recall its order of termination of proceeding on account of default of the Claimant.

India seated arbitral proceedings, whether ad-hoc or institutional, are governed by the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), which is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 (UNCITRAL Model Law). Whilst arbitrators are not bound by the Code of Civil Procedure, 1908 (CPC) or the Indian Evidence Act, 1872[1], they is usually guided by the broad principles enshrined in the said enactments, while conducting the arbitral proceedings. In this regard, it is pertinent to note that under Order IX Rule 13 of CPC, the Court has power to recall its order. Under the said rule, if the Court is satisfied that summons was not duly served on the defendant, or that there was sufficient cause for defendant’s failure to appear when the suit was called on for hearing, the Court is empowered inter-alia to pass an order setting aside an ex- parte decree that may have been passed against the defendant.


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In Shakti Bhog Food Industries Ltd. v. The Central Bank of India and Anr.[1], the Hon’ble Supreme Court has clarified as to when the three-year limitation period contemplated under Article 113[2] of the Limitation Act, 1963 (Act), commences. It has also reiterated the importance of considering the averments made in a plaint as a whole while determining an application for rejection of plaints under Order VII Rule 11[3] of the Code of Civil Procedure, 1908 (CPC).


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Public Interest versus Promissory Estoppel – Chalk another one up on the board for Public Interest

In its recent decision in Union of India & Anr. v. M/s. V.V.F. Limited & Anr.,[1] the Hon’ble Supreme Court held that government notifications which are issued in public interest are not hit by the doctrine of promissory estoppel.

Facts

The Gujarat Notifications

Post the devastating earthquake that struck the District of Kutch (in the State of Gujarat) in 2001, the Government of India issued a notification (“2001 Notification”) inter alia exempting those goods from excise duty which were manufactured in a new industrial unit (set up in the District of Kutch) for the purpose of sale. These new industrial units could claim a refund (in the manner stipulated in the 2001 Notification) of the excise duty paid on the goods manufactured by them. Further, July 31, 2003 was decided as the cut-off date for setting up of new industrial units in the District of Kutch with manufacturers allowed to claim excise refunds for a period of five years from the date of commencement of the commercial production of goods. The 2001 Notification was amended from time to time to inter alia extend the cut-off date for setting up new industrial units, from July 31, 2003 to December 31, 2005

Pursuant to two subsequent amendments to the 2001 Notification in 2008 (“2008 Notifications”), the benefit of refund granted under the 2001 Notification was restricted/ limited to the ‘value addition’ to the goods made by the new industrial units. Consequently, the new industrial units could now only claim a refund of 34% of the total duty paid by them, as opposed to the entire amount under the earlier notifications. The 2008 Notifications were challenged by way of several writ petitions before the Hon’ble Gujarat High Court and were quashed and set aside inter alia on the ground that the bar of promissory estoppel would operate.
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Extent of applicability of Code of Civil Procedure, 1908 to proceedings under the Consumer Protection Act, 1986

OVERVIEW

The Consumer Protection Act, 1986 (read with the rules and regulations framed thereunder) (hereinafter referred to as the “Act”) was enacted with the objective of providing better protecting the interests of consumers. Towards this end, the Act provides for the establishment of consumer councils and other authorities for settlement of consumer disputes and for matters connected therewith. The Act is a composite and complete code in itself, providing for exhaustive substantive and procedural provisions in relation to the redressal of consumer disputes. For speedy redressal of consumer disputes, the Act provides for setting up of quasi-judicial machinery at the District, State and Central Level (“Dispute Redressal Authorities”). These quasi-judicial authorities are creatures of the statute and have wide powers under the Act, to inter alia grant reliefs of a specific nature and to award, wherever appropriate, compensation to consumers.
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