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Queries regarding the Arbitration & Conciliation Act’1996
28-Jul-2023 (In Arbitration Law)
Respected Sirs, I shall be highly thankful if you can kindly through light / guide in the matter relating to the Arbitration & Conciliation Act’1996 on the following issues: 1. As to whether a person while seeking a general membership of a non-commercial body, just by singing its membership form, except of which there is no other arbitral agreement / contract, would be a party to the arbitration, 2. As to whether a provision of an arbitration clause in the Bye Laws of the said non-commercial body, applies on its own members as if a arbitral party, 3. As to whether the Arbitration & Conciliation Act’1996 has jurisdiction over a Declaration Suit filed by a member against the said non-commercial body for non-compliance of provisions of its Bye Laws (e.g. non conduction of elections / non invitation of AGMs / non approval of accounts in the general body etc.), The cases and / or rulings in the matter may kindly be quoted for reference please.
Dear Sir
The entire thing depend upon the clause of arbitration. the scope of jurisdiction and applicability can also be opined by going through conditions. Further it is also crucial that which type of orgainzation, that is. My be it governing some other laws which supersede the arbitration clause.
The entire thing depend upon the clause of arbitration. the scope of jurisdiction and applicability can also be opined by going through conditions. Further it is also crucial that which type of orgainzation, that is. My be it governing some other laws which supersede the arbitration clause.
Helpful?
23+
23+
Adv. J K Agrawal
Jaipur | 100+ Answers
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dear reader
IN THE HIGH COURT OF BOMBAY, Jet Airways (India) Limited Vs. Mr. Subrata Roy Sahara, decided on 17.10. 2011 an issue was discussed: Whether proceedings under Section 36 of the 1996 Act were proceedings under CPC?
Held, that 1940 Act clearly provided for a decree being passed by the Court. Proceedings under 36 were not proceedings under the CPC. Arbitration Act, 1940 (10 of 1940) amended Section 104 of the CPC and Sub-clause (a) to (f) of Sub-section 1 of Section 104 of CPC, which all dealt with arbitration proceedings, were deleted. Only the procedure for enforcement of a decree passed by Civil Court is to be utilised for enforcement of an award and, merely on that ground, the said proceedings did not become proceedings under the CPC. They continued to be proceedings under the 1996 Act. In fact Section 19 of the 1996 Act also makes it clear that the provisions of CPC do not apply to the arbitration proceedings. Section 36 of the 1996 Act uses the words "the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a Decree of a Court." The words "as if it were a decree of the "Court" used in section 36 have already been interpreted by the Supreme Court in Paramjeet Singh Patheja v. ICDS Ltd. The words Court, "adjudication" and "suit" conclusively show that only a Court can pass a decree and that too only in suit commenced by a plaint and after adjudication of a dispute by a judgment pronounced by the Court. It is obvious that an Arbitrator is not a Court, arbitration is not an adjudication and, therefore, an award is not a decree. The words "decision" and "Civil Court" unambiguously rule out an award by Arbitrators.
The Issue in relation to liability of a third party in arbitration seems to be duly settled by referred precedents. The Decision of THE SUPREME COURT OF INDIA in Deutsche Postbank Home Finance .Ltd Vs. Taduri Sridhar & Anr on 29 March, 2011 where Raveendran J took a strictly contractual view of arbitration agreements, and held that only parties to an agreement could be made party to arbitral proceedings under it. As a result, in arbitration between the prospective purchaser of property and the developer, the bank providing a loan for the purchase (with whom the purchaser had an independent arbitration agreement) was not impleaded. Similarly in S.N Prasad Vs. Monnet Finance Ltd. 2011, SC Held that there could be reference to arbitration only if there is an arbitration agreement between the parties. If there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of arbitration can be only with respect to the parties to the arbitration agreement and not the non-parties.
IN THE HIGH COURT OF BOMBAY, Jet Airways (India) Limited Vs. Mr. Subrata Roy Sahara, decided on 17.10. 2011 an issue was discussed: Whether proceedings under Section 36 of the 1996 Act were proceedings under CPC?
Held, that 1940 Act clearly provided for a decree being passed by the Court. Proceedings under 36 were not proceedings under the CPC. Arbitration Act, 1940 (10 of 1940) amended Section 104 of the CPC and Sub-clause (a) to (f) of Sub-section 1 of Section 104 of CPC, which all dealt with arbitration proceedings, were deleted. Only the procedure for enforcement of a decree passed by Civil Court is to be utilised for enforcement of an award and, merely on that ground, the said proceedings did not become proceedings under the CPC. They continued to be proceedings under the 1996 Act. In fact Section 19 of the 1996 Act also makes it clear that the provisions of CPC do not apply to the arbitration proceedings. Section 36 of the 1996 Act uses the words "the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a Decree of a Court." The words "as if it were a decree of the "Court" used in section 36 have already been interpreted by the Supreme Court in Paramjeet Singh Patheja v. ICDS Ltd. The words Court, "adjudication" and "suit" conclusively show that only a Court can pass a decree and that too only in suit commenced by a plaint and after adjudication of a dispute by a judgment pronounced by the Court. It is obvious that an Arbitrator is not a Court, arbitration is not an adjudication and, therefore, an award is not a decree. The words "decision" and "Civil Court" unambiguously rule out an award by Arbitrators.
The Issue in relation to liability of a third party in arbitration seems to be duly settled by referred precedents. The Decision of THE SUPREME COURT OF INDIA in Deutsche Postbank Home Finance .Ltd Vs. Taduri Sridhar & Anr on 29 March, 2011 where Raveendran J took a strictly contractual view of arbitration agreements, and held that only parties to an agreement could be made party to arbitral proceedings under it. As a result, in arbitration between the prospective purchaser of property and the developer, the bank providing a loan for the purchase (with whom the purchaser had an independent arbitration agreement) was not impleaded. Similarly in S.N Prasad Vs. Monnet Finance Ltd. 2011, SC Held that there could be reference to arbitration only if there is an arbitration agreement between the parties. If there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of arbitration can be only with respect to the parties to the arbitration agreement and not the non-parties.
Helpful?
21+
21+
Adv. Divesh Sharma
Jaipur | 100+ Answers
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