As per the latest statistics available on the National Judicial Data Grid, impending cases before the District & Taluka Courts[1] stand at over 40 million, the backlog waiting to be heard at various High Courts[2] is close to 5.9 million, and the pending case inventory before the Hon’ble Supreme Court of India[3] totals approximately 71,000.Continue Reading Analysis: Mediation in India
In Part I[1] and II[2] of this post, we have analysed the contours of Section 34(4) of the Arbitration and Conciliation Act, 1996 (“the Act”), and the questions and ambiguities that may arise in its applicability. The purpose of this blog is to further analyse the limited scope of Section 34(4) of the Act, in light of the Hon’ble Supreme Court’s judgement in I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Limited[3] case, wherein it is observed that failure on the part of the arbitral tribunal in providing findings on contentious issues in the award is not a “curable defect” under Section 34(4) of the Act, and is an acceptable ground for setting the award aside (instead).Continue Reading Section 34(4) of the Arbitration and Conciliation Act, 1996: A Fly in The Ointment? (Part III)
In its recent judgement of Loop Telecom and Trading Limited v Union of India and Another[1], the Supreme Court denied the Appellant restitution of certain sums paid by it under a void agreement. The Court, while rejecting the claim for restitution u/s 65[2] of the Indian Contract Act, 1872 (“Act”), placed reliance on the doctrine of ‘in pari delicto’, and reiterated that courts shall not assist a party who has paid the money or handed over the property in pursuance of an illegal or immoral contract[3].Continue Reading Restitution Under the Contracts Act: The In Pari Delicto Exception
An arbitrator is a creature of a contract and is, therefore, equally bound by it. The Supreme Court, in the recent judgement of Union of India vs. Manraj Enterprises[i], set aside an arbitral award wherein the arbitrator had awarded pendente lite and future interest on the amount awarded, inspite of a contractual bar. The Court, relying upon a catena of judgments dealing with the inherent powers of an arbitrator to award pendente lite and future interest under Section 31(7) of the Arbitration and Conciliation Act, 1996 (the 1996 Act), held that such powers are exercisable only in the absence of an agreement to the contrary.Continue Reading The Power to Grant Interest Pendente Lite – Arbitrator Bound by the Agreement Between the Parties: The Supreme Court Reiterates
INTRODUCTION
Recently, in the case of Gyan Prakash Arya vs. Titan Industries Limited[1], the Supreme Court enunciated the limited scope of an arbitral tribunal’s power under Section 33 of the Arbitration and Conciliation Act, 1996 (the Act). The Court has authoritatively clarified that such power can only be exercised to correct clerical and/or arithmetic errors (and errors of similar nature).Continue Reading The Supreme Court Clarifies: The Power Under Section 33 is Limited to Rectifying Clerical/ Arithmetical Errors
In this digital age, it may not be out of place to say that data has replaced oil as the most valuable resource. The advancement of technology has led to the emergence of a new species of extortion, where ransom is sought in lieu of data, which is illegally assumed control over. This phenomenon is popularly known as a ransomware attack. A ransomware attack includes a malware that is introduced onto the host’s computer or mobile, thereby encrypting its data, with a subsequent demand for a ‘ransom’ for decryption of the same, to secure its release[i].Continue Reading Digital Age Warfare: Ransomware Attacks
The concept of freedom of contract has two meanings; first is the freedom of a party to enter into a contract on whatever terms it may consider advantageous to its interests, or to choose not to, and second, that there should be no liability without consent being embodied in a valid contract.[1]Continue Reading Vitiating Elements of Free Consent: A ‘How to Plead Guide’
Negotiated, as also standard format contracts, are rife with clauses proclaiming time is of the essence. Parties are usually rest assured after spelling this out, hoping (nay assured) that such words employed would by themselves be adequate to enforce rights through a Court or an arbitral process. Sadly, mere words are usually never enough.
The Supreme Court, in the recent judgement of Welspun Specialty Solution Limited vs. Oil and Natural Gas Corporation Ltd.[i], has reiterated the principles basis which Courts are required to construe whether time is of the essence of a contract. The Court held that a collective reading of the entire contract and its surrounding circumstances is imperative to come to such a conclusion. Merely having an explicit clause in the contract may not be sufficient to make time the essence of it. The Court also held that the availability of extension procedures to fulfil obligations under a contract, along with consequent imposition of liquidated damages, are good indicators to hold that time is not of the essence.
Continue Reading Time is the Essence of this Contract: Is it Really?
The Supreme Court, in the case of Sripati Singh vs. The State of Jharkhand & Anr[i], has provided much needed clarity on the often-used defence of a cheque having been issued as ‘security’ in proceedings under the Negotiable Instruments Act, 1881 (the Act). The Court held that a cheque issued by way of security, if dishonoured, would attract the provisions of the Act, if the same is issued in consequence of a legally enforceable debt, which has become recoverable at the time of its presentation.Continue Reading The “Security” Defence in Cases Relating to Dishonour of Cheques – Not a Get-Out-Of-Jail-Free Card
Recently, in the case of Godrej Properties Ltd. v. Goldbricks Infrastructure Pvt. Ltd.[i], the Hon’ble Bombay High Court has held that an arbitral tribunal cannot pass ex-parte orders on the mere filing of an Application under Section 17 of the Arbitration and Conciliation Act, 1996 (the Act) without giving the parties an opportunity to be heard. The Court has further distinguished the powers of an arbitral tribunal to pass interim orders under the Act from those enjoyed by a Civil Court under the Code of Civil Procedure, 1908 (CPC).Continue Reading Parties to be Given an Advance Notice of Hearing – The Bombay High Court Sets Aside an Ex-Parte Order Passed by the Arbitral Tribunal