Section 2(1)(e), 9, 14, 34 – Commercial Courts Act, 2015 (4 of 2016), Section 3, 10, 15, 21 – Arbitration matters in Commercial court -- Whether in exercise of powers u/s 3 of the Commercial Courts Act, 2015, the State Government can confer jurisdiction to hear applications u/s 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District, contrary to the provisions of Section 2(1)(e) of the Arbitration Act? – Held, the Act, 2015 is the Act later in time and therefore when the Act, 2015 has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the Act, 1996 -- As per settled position of law, it is to be presumed that while enacting the subsequent law, the legislature is conscious of the provisions of the Act prior in time and therefore the later Act shall prevail -- There cannot be two fora with respect to different commercial disputes.

(SC) Decided on: 19.10.2022

Section 9, 36 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount -- Attachment before judgment – Absence of averment -- Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act –Court exercising power u/s 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC.

(SC) Decided on : 14.09.2022

Section 9 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount – Interim relief -- Attachment before judgment – Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief u/s 9 of the Arbitration Act -- A strong possibility of diminution of assets would suffice.

(SC) Decided on : 14.09.2022

Section 9, 37 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount by interim relief -- Essar House Private directed to deposit an amount of Rs.35.5 crores with the Prothonotary and Senior Master of the High Court or, in the alternative, to furnish bank guarantee of any nationalised bank for the entire amount along with interest thereon – Prima facie, the refundable security deposit is not being released to Arcellor on the purported ground of a convoluted series of internal arrangements between group companies for diversion of the security deposits towards liquidation of alleged dues of Essar Steel to third parties -- No infirmity in the well-reasoned judgment and order of the Division Bench -- Appeals dismissed.

(SC) Decided on : 14.09.2022

Section 31(7)(a)(b) – “unless otherwise agreed by the parties” -- “unless the award otherwise directs” – Post-award interest -- The words, “unless otherwise agreed by the parties” occurs at the beginning of clause (a) qualifying the entire provision -- However, in clause (b), the words, “unless the award otherwise directs” occurs after the words ‘a sum directed to be paid by an arbitral award shall’ and before the words ‘carry interest at the rate of eighteen per cent” -- Thereby, those words only qualify the rate of post-award interest.

(SC) Decided on : 01.09.2022

Section 31(7)(b) – Arbitration award -- Post-award interest – Discretion of Arbitrator -- Clause (b) does not fetter the discretion of the arbitrator to grant post-award interest -- It only contemplates a situation in which the discretion is not exercised by the arbitrator -- Therefore, the observations Hyder Consulting’s case (2013) 2 SCC 719 on the meaning of ‘sum’ will not restrict the discretion of the arbitrator to grant post-award interest -- There is nothing in the provision which restricts the discretion of the arbitrator for the grant of post-award interest which the arbitrator otherwise holds inherent to their authority.

(SC) Decided on : 01.09.2022

Section 31(7)(b) – Arbitration award – Purpose of Post-award interest – Discretion of Arbitrator -- Purpose of granting post-award interest is to ensure that the award-debtor does not delay the payment of the award -- With the proliferation of arbitration, issues involving both high and low financial implications are referred to arbitration -- Arbitrator takes note of various factors such as the financial standing of the award-debtor and the circumstances of the parties in dispute before awarding interest -- Discretion of the arbitrator can only be restricted by an express provision to that effect -- Clause (a) subjects the exercise of discretion by the arbitrator on the grant of pre-award interest to the arbitral award -- However, there is no provision in the Act which restricts the exercise of discretion to grant post-award interest by the arbitrator -- Arbitrator must exercise the discretion in good faith, must take into account relevant and not irrelevant considerations, and must act reasonably and rationally taking cognizance of the surrounding circumstances.

(SC) Decided on : 01.09.2022

Section 31(7)(a)(b) – Arbitration award -- Pre-award interest – Post-award interest – Discretion of Arbitrator -- Section 31(7)(a) confers a wide discretion upon the arbitrator in regard to the grant of pre-award interest -- Arbitrator has the discretion to determine the rate of reasonable interest, the sum on which the interest is to be paid, that is whether on the whole or any part of the principal amount, and the period for which payment of interest is to be made, whether it should be for the whole or any part of the period between the date on which the cause of action arose and the date of the award -- When a discretion has been conferred on the arbitrator in regard to the grant of pre-award interest, it would be against the grain of statutory interpretation to presuppose that the legislative intent was to reduce the discretionary power of the arbitrator for the grant of post-award interest under clause (b) -- Clause (b) only contemplates a situation where the arbitration award is silent on post-award interest, in which event the award-holder is entitled to a post-award interest of eighteen percent.

(SC) Decided on : 01.09.2022

Section 34 -- National Highways Act, 1956 (48 of 1956), Section 3G – Constitution of India, Article 226 -- Acquisition of land – Award by Arbitrator – Writ jurisdiction -- Competent authority assessed the amount of compensation, matter referred to arbitrator for re-assessment -- As per sub-section 6 of Section 3G the provisions of the Arbitration and Conciliation Act, 1996 shall apply to every arbitration under the Act -- Objections to the award of the Arbitrator are maintainable before the District Court -- Court did not find it appropriate to exercise its writ jurisdiction.

(P&H HC) Decided on: 12.07.2021

Section 11 -- Issue of Limitation – Jurisdiction of Arbitration Tribunal -- Issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal as a preliminary issue, or at the final stage after evidence is led by the parties.

(SC) Decided on: 10.03.2021

Section 11 -- Issue of Limitation – Time-barred claim – Power of Court – Scope of -- It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference -- However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.

(SC) Decided on: 10.03.2021

Section 11 -- Issue of limitation -- Notice invoking arbitration was issued 5 ½ years after rejection of the claims -- Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of the case -- Application filed u/s 11 dismissed.

(SC) Decided on: 10.03.2021

Section 11 -- Limitation Act, 1963 (36 of 1963), Section 5-20 -- Arbitration of dispute -- Period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters or mere settlement discussions, where a final bill is rejected by making deductions or otherwise -- Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions -- There must be a clear notice invoking arbitration setting out the “particular dispute” (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail.

(SC) Decided on: 10.03.2021

Section 11 -- Limitation Act, 1963 (36 of 1963), Section 43, Article 137 -- Limitation for Arbitration -- Period of limitation for filing an application u/s 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963 -- Period of limitation will begin to run from the date when there is failure to appoint the arbitrator -- It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings; -- In rare and exceptional cases, where the claims are ex facie time-barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.

(SC) Decided on: 10.03.2021

Section 11(6A), 16 -- Objection to arbitration -- Preliminary objections – Jurisdiction of – Doctrine of kompetenz-komptenz -- Court is required only to examine the existence of the arbitration agreement -- All other preliminary or threshold issues are left to be decided by the arbitrator u/s 16 -- 2019 Amendment Act has deleted sub-section (6A) in Section 11, however, the same is yet to be notified -- Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present.

(SC) Decided on: 10.03.2021

Section 11, 29-A, 43 -- Limitation Act, 1963 (36 of 1963), Section 43, Article 137 -- Appointment of Arbitrator -- Limitation of 3 years – No provision in Arbitration Act specifying period of limitation for filing an application u/s 11 of the Act -- One would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act and it would be covered by the residual provision Article 137 of the Limitation Act, 1963 -- Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months -- In view of the legislative intent, the period of 3 years for filing an application u/s 11 would run contrary to the scheme of the Act -- It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act.

(SC) Decided on: 10.03.2021

Section 8, 16, 24, 37 – Arbitration agreement – Existence of – Proof of -- So far as section 37(1)(a) is concerned, where a party is referred to arbitration u/s 8, no appeal lies -- This is for the reason that the effect of such order is that the parties must go to arbitration, it being left to the ld. Arbitrator to decide preliminary points u/s 16 of the Act, which then become the subject matter of appeal u/s 37(2)(a) or the subject matter of grounds to set aside u/s 34 an arbitral award ultimately made, depending upon whether the preliminary points are accepted or rejected by the arbitrator -- In either case, i.e. whether the preliminary ground for moving the court u/s 8 is not made out either by not annexing the original arbitration agreement, or a duly certified copy, or on merits, the court finding that prima facie no valid agreement exists, an appeal lies under section 37(1)(a).

(SC) Decided on: 11.02.2021

Section 8, 16, 37(2)(a) -- U/s 37(2)(a), where a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is made out, an appeal lies under the said provision, as such determination is final in nature as it brings the arbitral proceedings to an end -- However, if the converse is held by the learned arbitrator, then as the proceedings before the arbitrator are then to carry on, and the aforesaid decision on the preliminary ground is amenable to challenge u/s 34 after the award is made, no appeal is provided.

(SC) Decided on: 11.02.2021

Section 34 – Limitation -- Condonation of delay beyond 120 days -- Application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days -- Section 5 of the Limitation Act, 1963 does not apply -- Any delay beyond 120 days cannot be condoned. Himachal Techno Engineers’s case (2010) 12 SCC 210 relied.

(SC) Decided on: 11.02.2021

Section 34, 27(1)(c) -- Dismissal of application for condonation of delay – Appeal – Maintainability of -- Appeal u/s 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application u/s 34 of the Arbitration Act, 1996 to set aside an award.

(SC) Decided on: 11.02.2021