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The Supreme Court held that limitation under Section 34(3) of the Arbitration and Conciliation Act runs from disposal of a Section 33 request, not the original award.
The sole arbitrator's mandate terminated by operation of law on 28.02.2023 upon expiry of the period fixed by Section 29A; continuation of an arbitrator after mandate expiry is impermissible; the High Court erred in extending the arbitrator's tenure after mandate had ceased; Section 29A(6) empowers and obligates the Court to substitute the arbitrator and the substituted arbitrator must continue proceedings from the stage already reached; accordingly the impugned High Court order was quashed, the sole arbitrator's mandate terminated, and a substitute arbitrator was appointed with directions to…
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Under Section 11(6A) the referral court's scrutiny is confined to a prima facie examination of the existence of an arbitration agreement; the contracts in issue contain arbitration clauses and therefore the referral court must refer the disputes to arbitration. Mere pendency of criminal proceedings does not, by itself, render otherwise arbitrable disputes non-arbitrable; allegations of serious fraud that remove arbitrability must be established and, absent such a finding on prima facie examination, issues including limitation, res judicata and the merits of fraud are to be decided by the arbi…
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The High Court rightly refused to quash the Magistrate's order dated 01.07.2005 and FIR No.380/2005 because the Magistrate had recorded satisfaction that the complaint disclosed a cognizable offence (thus applying his mind), the informant's direct recourse to the Magistrate was a procedural irregularity but not a jurisdictional defect, and since investigations were completed and chargesheets filed the exercise of discretionary inherent jurisdiction to quash the FIR was not warranted; further, a subsequent FIR may be maintainable where the earlier FIR did not result in conviction or acquittal.
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Section 12(1) of the Limitation Act applies to Section 34(3) of the Arbitration and Conciliation Act, 1996 so the day of receipt (09.04.2022) is excluded; the three-month period therefore ran from 10.04.2022 to 09.07.2022, which was a court holiday, and Section 4 applied so the Section 34 application filed on the next working day 11.07.2022 was within limitation; ‘three months’ in Section 34(3) denotes calendar months and not 90 days; accordingly the High Court correctly allowed the Section 37 appeal and the Supreme Court dismissed the present appeal.
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Applying the three-stage test, neither clause expressly chose the law governing the arbitration agreement; on implied choice the lex contractus (Indian law) governs the arbitration agreement because Clause 16.5 makes the contract governed by Indian law and there are no factors displacing that presumption; therefore the Arbitration and Conciliation Act, 1996 applies and Indian courts have jurisdiction under Section 11(6) to appoint an arbitrator; accordingly the petition under Section 11(6) is allowed and a sole arbitrator is appointed.
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Section 18 of the MSMED Act, 2006 is not restricted to a registered "supplier" and the expression "any party to a dispute" is deliberate and open-ended; filing a memorandum under Section 8 by micro and small enterprises is discretionary and therefore lack of registration before contract execution is not a mandatory bar to making a reference under Section 18. Silpi Industries and Mahakali Foods did not decide the narrow issue before this Court and are distinguishable; for clarity and legal certainty the appeal is referred to a three Judge Bench for authoritative pronouncement.
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Where a sole arbitrator was appointed by the parties by mutual consent in the absence of any written arbitration agreement, an application under section 11(6) was not maintainable; disputes as to termination of an arbitrator's mandate on grounds in section 14(1)(a) must be raised and decided before the court under section 14(2) and cannot be decided via section 11(6); Trial Court rightly dismissed the Order VII Rule 11 challenge at plaint stage.
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The State Act is, in pith and substance, legislation on arbitration referable to Entry 13 of List III and, having been reserved for the President and having received presidential assent under Article 254(2), would prevail in Kerala over earlier central enactments. However, the State Act is unconstitutional because its effect annuls arbitration awards and the judgments/decrees making them Rules of Court, thereby transgressing judicial functions and violating the separation of powers; accordingly the State Act is liable to be struck down.
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Given that the NCLT proceedings were at an advanced stage (up to stage no.8), that the applicant had incurred expenditure and faced a real risk of insolvency and harm to employees, the Court granted FRL liberty to approach the Delhi High Court to seek continuation of the NCLT proceedings beyond stage no.8 and directed the High Court to consider the contentions of both parties and pass appropriate orders expeditiously and uninfluenced by any observations of this Court.
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