Category: Mediation

APPLICABILITY OF ARBITRATION AND CONCILIATION ACT 1940 AND ARBITRATION AND CONCILIATION ACT 1996.

In a peculiar case, where the parties under the agreement have agreed for the applicability of Arbitration and Conciliation Act, 1940, while the agreement was done after the Arbitration and conciliation Act 1996 had come in force.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4664 OF 2018

(Arising out of SLP (Civil) No.14589 of 2016)

Purushottam s/o Tulsiram Badwaik ……Appellant

VERSUS

Anil & Ors. ..…. Respondents

The SLP was filed as regards the issue under which provisions of the Arbitration act, the dispute has to be decided and which Act shall be applicable, when the parties in their agreement have agreed to refer to the Arbitration and Conciliation act 1940, while the agreement was done very well after the Arbitration and Conciliation act 1996 was in force.

HELD- In view of the Arbitration and Conciliation act 1996 and repeal provisions at Sec 85 – The provisions- The correct approach, according to us, would be in promoting the object of implementing the scheme of alternative dispute resolution as was rightly submitted in MMTC Ltd. (Supra). It would be farfetched to come to the conclusion that there could be no arbitration at all. As is clear from MMTC Ltd. (Supra) what is material for the purposes of the applicability of 1996 Act is the agreement between the parties to refer the disputes to arbitration. If there be such an arbitration agreement which satisfies the requirements of Section 7 of 1996 Act, and if no arbitral proceeding had commenced before 1996 Act came into force, the matter would be completely governed by the provisions of 1996 Act. Any reference to 1940 Act in the arbitration agreement would be of no consequence and the matter would be referred to arbitration only in terms of 1996 Act consistent with the basic intent of the parties as discernible from the arbitration agreement to refer the disputes to arbitration.

Viewed thus, the High Court was not right in observing that there could be no arbitration at all in the present case. In situations where the relevant clause made reference to the applicability of “the provisions of the Indian Arbitration Act and Rules made thereunder” as was the case in MMTC Ltd. (Supra), on the strength of Section 85(2)(a) the governing provisions in respect of arbitral proceedings which had not commenced before 1996 had came into force would be those of 1996 Act alone. On the same reasoning even if an arbitration agreement entered into after 1996 Act had come into force were to make a reference to the applicable provisions of those under Indian Arbitration Act or 1940 Act, such stipulation would be of no consequence and the matter must be governed under provisions of 1996 Act. An incorrect reference or recital regarding applicability of 1940 Act would not render the entire arbitration agreement invalid. Such stipulation will have to be read in the light of Section 85 of 1996 Act and in our view, principles governing such relationship have to be under and in tune with 1996 Act. As observed earlier, the requirements of “arbitration agreement” as stipulated in Section 7 of 1996 Act stand completely satisfied in the present matter nor has there been any suggestion that the agreement stood vitiated on account of any circumstances in the realm of undue influence, fraud, coercion or misrepresentation. In the circumstances, the attempt must be to sub-serve the intent of the parties to resolve the disputes by alternative disputes resolution mechanism. The High Court was, therefore, completely in error.

We therefore set aside the judgment and order passed by the High Court and accept the appeal preferred by the appellant. The matter will have to be dealt with by the trial court in terms of Section 8 of 1996 Act. The parties shall appear before the trial court on 14th May, 2018 for effectuating the arbitration agreement.

Unsigned Arbitration Agreements not invalid in all cases: SC

Unsigned Arbitration Agreements not invalid in all cases: SC

Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed.’…

Supreme Court in Caravel Shipping services pvt ltd.., VS  M/s Preimer Sea foods Exim pvt ltd.,

a document styled as “Multimodal Transport Document/Bill of Lading” dated 25.10.2008. This Bill of Lading states that the Consignor/Shipper is one M/s Premier Seafoods Exim Private Limited of Kerala, and that Caravel Shipping Services Private Limited, who is the appellant before us, is the agent who facilitates transport. The very opening Clause of the Bill of Lading specifies:

“In accepting this Bill of Lading the Merchant expressly agrees to be bound by all the terms, conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or otherwise.”

The Respondent filed a Suit being O.S. No. 9 of 2009 before the Sub-Judge’s Court in Kochi to recover a sum of Rs.26,53,593/- in which the Bill of Lading was expressly stated to be a part of cause of action. Soon after the Suit was filed, an I.A. being I.A. No. 486 of 2009 was filed by the appellant under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) in which it was pointed out to the Court that an arbitration clause was included in the printed terms annexed to the Bill of Lading.

The law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812, is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3).

Hon’ble Supreme court has held that the Arbitration agreement need not necessarily be a signed document to invoke the arbitration clause of the agreement. it prerequisites that the agreement shall be in writing.

CONDITIONAL GIFT DEED AND CANCELLATION

The Hon’ble supreme court has held that a conditional gift deed and its cancellation is valid while the condition of such a gift deed is not satisfied.

Question was: whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will.

A purported gift deed was executed by Donor in favor of the done, in consideration that the done will take care of her and her husband. further gift deed also clearly mentioned that the gift would take effect after the death of herself and her husband.

later on Donor who had executed the gift deed has cancelled by executing the cancelation of a gift deed. A suit came to be filed seeking for declaration of such cancellation as null and Void and to declare the donee as having right over the property under gift deed.

Under sec. 122 to 126 of Transfer of Property act 1882, mentions Gift Deed and Circumstances of gift deed. Under sec.126 of the act, Donor and donee may agree that on certain specified event the gift shall take place and such gift shall be revocable. as such in the present case as it is very clear that the Gift deed shall take place only after the death of the donor and her husband, thus it’s a revocable and gift to take place on happening of specified event.

A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.

A conditional gift only becomes complete on compliance of the conditions in the deed. That there was no completed gift of the property in question by the Donor to the Donee and the Donor was within her right in cancelling the deed.

HC allows child visit and custody to father under DV Act

Bombay High court IN,  Payal sudeep laad @payal Sharma v/s Sudeep Govind laad and another:

Section 21 of DV Act provision reads as follows:

21. Custody orders.: Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangement for visit of such child or children by the respondent :

Provided that if the Magistrate is of the opinion that any visit of the respondents may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

As such an application was made by the husband seeking for the custody of child. the wife has contended that the husband could have approached the Court under Section 26 of the Hindu Marriage Act seeking custody of the child.

The remedy lies before other forum and the application before the Trial Court in the present case was not maintainable. that the child was in custody of mother (applicant) from 2nd December 2017. In the complaint under the DV Act preferred on 17th July 2017, the same indicate that the applicant had preferred the said complaint u/s 18, 19, 20, 21, 22 and 23 of DV Act. The form/complaint reflects that the applicant had sought relief under the various provisions including Section 21 which relates to custody orders. It is the contention of the applicant that unless the applicant prefers any application under Section 21 for custody order, the access cannot be granted to the husband on an independent application preferred by him. It is contended that since section 21 does not provide any right to the husband to prefer such application, and since the legislature has not provided such right to the husband, except as stipulated in Section 21 of DV Act, the Court ought not to have entertained the application and granted relief as prayed by respondent no.1.that the wife had preferred an application under the Domestic Violence Act of 2005 for various reliefs against her husband and his family members. During the pendency of the aforesaid application, the husband filed an application under section 21 of the said Act praying that permanent custody of the minor child of the parties may be given to him and in the alternative it was prayed that visitation right may be granted to him to meet the minor child of the parties. A petition for grant of decree of divorce was also filed by the husband under Section 13 of the Hindu Marriage Act and the Family Court Jaipur with the consent of the parties passed an order regarding visiting rights of the Respondents to the effect that the petitioner will remain present along with the child on Second Saturday of every month and Respondent will be entitled to meet the child during that period. For the reasons stated herein above, I do not agree with the said decision and it was dealt in the peculiar facts and circumstances of the said case.

The application filed under Section 21 of the Domestic Violence Act seeking interim custody is maintainable before a Magistrate exercising jurisdiction in relation to area where family Court is established and the Magistrate has jurisdiction to decide such an application in accordance with law.

Thus the orders passed regarding custody of child under sec.21 of the DV act was allowed and thereby husband was given visiting rights and child custody for certain period of time in a month, under this provisions of the act.

Litigation Services

NCLAT HOLDs CLAIM UNDER SEC 138 & 141 OF NI ACT AMOUNTS TO ADMISSION OF DEBT, NOT THE EXISTENCE OF DISPUTE

 

NCLAT HOLDs CLAIM UNDER SEC 138 & 141 OF NI ACT AMOUNTS TO ADMISSION OF DEBT, NOT THE EXISTENCE OF DISPUTE.

The National Company Law Appellate Tribunal (NCLAT) has held that pendency of proceedings under Section 138/441 of the Negotiable Instruments Act, 1881 cannot be considered as a dispute pending before a court of law, and hence, cannot be used as a reason for rejection of an application under Section 9 of the Insolvency and Bankruptcy Code.

“The pendency of the case under Section 138/441 of the Negotiable Instruments Act, 1881, even if accepted as recovery proceeding, it cannot be held to be a dispute pending before a court of law. Thereby we hold that the pendency of the case under Sec.138/441 of Negotiable Instruments Act, 1881 actually amounts to admission of debt and not an existence of dispute.” .

As such NCLAT admitted the application under sec.9 and issued the Order for moratorium.