Hon'ble Judge(s): S. A. Bobde, A. S. Bopanna, V. RamasubramanianV. Sreenivasa Reddy v. B. L. Rathnamma
D.O.D : 08/04/2021
Arbitration and Conciliation Act (26 of 1996) , S.11(5), S.11(6)— Appointment of sole Arbitrator - Dispute relating to Cancellation of agreement of Sale deed between parties and forfeiture of advance amount - Plea of settlement taking place between parties - No material to indicate the nature of settlement due to which dispute does not subsist and arbitration clause cannot be invoked - Arbitrator appointed.
Civil P.C. (5 of 1908) , S.11, O.2 R.2— (Paras1416)
There is no definite material on record to indicate that there was a concluded settlement between the parties based on which the petition was disposed and, therefore there is no reason to hold that there is no dispute which required resolution through arbitration nor are Court is in a position to hold that there is Novation of the earlier agreement. Though the High Court had disposed of the petition under Section 11(6) of the Act, 1996 by recording the submission that the matter has been settled out of court, the so called settlement has not been recorded nor made a part of the order so as to bind the parties and to indicate that the dispute had been resolved and had accordingly erased the original dispute or amounted to Novation. That apart, no material is placed on record to show that the settlement had been reduced into writing and had been placed before the Court when the petition was disposed of so as to indicate that the right to arbitration under the original agreement cannot be claimed. If that be the position, the rejection of the IA also on the ground that the original order had merely recorded the settlement will not indicate that a concluded settlement was placed before the Court. Not just the original dispute but even the fact as to whether the matter was settled amongst themselves or not is a dispute arising out of and in connection with the agreement entered into between the parties. If that be the position, the learned Chief Justice, High Court of Judicature at Hyderabad was not justified in rejecting the application only on the contentions urged therein on behalf of the respondent about the petition being hit by Order II Rule 2 of CPC and also the principles of res judicata. It cannot be accepted in the present facts that there was abandonment of part of any claim nor was there a conclusive adjudication of the dispute between the same parties on merits to constitute res judicata. As already indicated above, the so called settlement has neither been recorded in the earlier proceedings nor any document brought on record to indicate that factually the settlement had taken place so as to wipe out the original dispute. In such circumstance, a party to the arbitration agreement contending that there was a dispute amongst them cannot be left without a forum for resolution of the dispute by taking a hyper technical view of the matter. In any event, whether the dispute which had arisen at the first instance has been settled, if the dispute subsisted, whether the claim is within the period of limitation, the nature of relief if any and all other contention on merits are to be considered in the arbitral proceedings. Hence, keeping open all contentions on merits, the sole Arbitrator is to be appointed to resolve the dispute between the parties.
Hon'ble Judge(s): S. A. Bobde, A. S. Bopanna, V. RamasubramanianDIPANKAR DEBAPRIYA HALDAR v. TEESTA DIPANKAR HALDAR
D.O.D : 08/04/2021
Civil P.C. (5 of 1908) , S.24— Transfer of proceedings - Matrimonial dispute - Settlement taking place between parties - As per terms of settlement parties shall file petition for divorce by mutual consent and disputes between parties shall stand resolved in terms of Settlement Agreement.
Hon'ble Judge(s): Chander Bhusan BarowaliaRuby v. State of Himachal Pradesh
D.O.D : 08/04/2021
Criminal P.C. (2 of 1974) , S.439— Bail - Grant of - Accused allegedly found in possession of 86 Gms. Heroin - Accused, lady neither in position to tamper with prosecution evidence nor to flee from justice - Custody of accused not required by police - Nothing remains to be recovered at her instance - She is ready and willing to abide by terms and conditions of bail - Bail granted.
Narcotic Drugs and Psychotropic Substances Act (61 of 1985) , S.29, S.61, S.85— (Para7)
Hon'ble Judge(s): S. A. Bobde, A. S. Bopanna, V. RamasubramanianMOHAMMAD SALIMULLAH v. UNION OF INDIA
D.O.D : 08/04/2021
Constitution of India , Art.14, Art.21, Art.19(1)(e), Art.51(c)— Illegal immigrants - Right not to be deported, is ancillary or concomitant to right to reside or settle in any part of territory of India guaranteed under Art. 19(1)(e) - Rohingyas in Jammu shall not be deported unless the procedure prescribed for such deportation is followed.
By filing interlocutory application in writ petition petitioner is praying for the issue of an appropriate writ directing Union of India, respondents to provide basic human amenities to the members of the Rohingya Community, who have taken refuge in India, the petitioners who claim to have registered themselves as refugees with the United Nations High Commission for refugees, have come up with the present interlocutory application seeking (i) the release of the detained Rohingya refugees; and (ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub jail in Jammu.
India is not a signatory to the Refugee Convention. Therefore, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention. But there is no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law. Regarding the contention raised on behalf of the petitioners about the present state of affairs in Myanmar. The rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e). Supreme Court has already dismissed Interlocutory Application filed for similar relief, in respect of those detained in Assam. Therefore, it is not possible to grant the interim relief prayed for. However, it is made clear that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.
Hon'ble Judge(s): Arijit BanerjeeUniversal Consortium of Engineers Pvt. Ltd. v. Kanak Mitra
D.O.D : 07/04/2021
(A) Arbitration and Conciliation Act (26 of 1996) , S.11— Appointment of arbitrator - Development Agreement between parties in respect of construction of building - Developer filed complaint against landowners before National Consumer Forum that he mistakenly handed over more constructed area to landowners than they were entitled to under Development Agreement - Said issue cannot be adjudicated by National Commission under Consumer Protection Act - Developer cannot be considered as 'Consumer' under Consumer Protection Act - Hence, pendency of proceedings before National Commission cannot be ground for disallowing application for appointment of arbitrator.
Consumer Protection Act (68 of 1986) , S.2(1)(d)— (Para16)
(B) Arbitration and Conciliation Act (26 of 1996) , S.11, S.21— Appointment of arbitrator - Notice u/S.21 - There is no mandate that S.11 application will not be maintainable unless a notice under S.21 has been served by petitioner on respondent - Application under S.11 is itself a request by the petitioner for arbitration.
S.21 merely lays down as to when the arbitral proceedings in respect of a particular dispute will be deemed to have commenced, which is when a request for the dispute to be referred to arbitration is received by the respondent. There is no mandate to the effect that a S.11 application will not be maintainable unless a notice under S.21 has been served by the petitioner on the respondent. An application under S.11 of the Act of 1996 is itself a request by the petitioner for arbitration. In commercial dispute, the letter written by developer for resolution through arbitration, when read in a commercial perspective, clearly constitutes a notice under S. 21 of the Act of 1996. Too much technicality should not be resorted to in interpreting such a notice. If the intention of the party issuing the notice is clear that he desires arbitration, that should suffice.