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NIA S. 138 – Before summoning Magistrate is expected to examine the nature of allegations and proceed with proper application of mind – Strict compliance.

Arbitration and Conciliation Act, 1996 S. 11(6), 12(5) – Once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator.

“Proclaimed Person” and “Proclaimed Offender” have distinct meanings. [PLRonline 216302]

Pleasure doctrine – Applicability – Nominated members continue only till the pleasure of the government – Municipality .

Motor Vehicles Act,  S. 173 – Pay and Recover  – Insurance Company exonerated – Appeal by claimants for making insurance company liable  – This Section empowers that any person can file Appeal so there is no need to consider who is aggrieved person – Appellants being  Claimants have right to file Appeal  – Though owner of offending truck has not challenged the impugned order, it cannot be said that the Claimants can’t challenge it – Order in appeal changed to Pay and Recover.

HMA – COI Art. 142 – Transfer Petition – Irretrievable breakdown of marriage – Mutual consent divorce granted. [2023 SCeJ 0234]

Punjab Land Revenue Act, 1887,   Section 28 – Lambardar – Appointment of – Age – Is a relevant factor . [PLRonline 119102]

Execution – Limitation – Filed after 12 years..  [PLRonline 114800]

Companies Act, S. 250 – Striking off – Even after dissolution of the company in view of striking off its name from the register, its existence remains only for the purpose of realising the amount due to the company or for the payment or discharge of the liabilities or obligations of  the company. [2023 PLRonline 0101 (NCLAT)]

NIA S. 138 – Conviction – courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount keeping in view the cheque amount and the simple interest thereon at nine per cent per annum [2014 PLRonline 0208 (SC)]

Criminal Trial –  Circumstantial evidence –  Chain of evidence must be so complete as to not leave any reasonable grounds for a conclusion consistent with the innocence of the accused; the accused ‘must be’ and not merely ‘may be’ guilty, before the Court can convict.  [2023 SCeJ 0226 = 2023 PLRonline 437602 (SC)]

IPC – Grevious hurt – The injuries were not intended to cause death but were sufficient to cause grievous injury. It was not a premeditated act – The scissors used by the appellant were little scissors used by tailors. [2023 PLRonline 0100]

Inference – Adverse inference

CPC S. 24 – Cardinal principle for exercise of power under S. 24 is that the ends of justice should demand the transfer. (2022-4)208 PLR 512 (SC), 2023 SCeJ 0223

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Home Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996 S. 11(6), 12(5) – Once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator.

by Punjab Law Reporter
in Arbitration and Conciliation Act, 1996
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Arbitration and Conciliation Act, 1996 – Section 11(6) – Once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person.

read HERE 2017 SCeJ 0003 = 2017 PLRonline 1400

Held,

Regard being had to the same, we have to compare and analyse the arbitration clause in the present case. Clause (c), which we have reproduced earlier, states that all disputes which cannot be settled by mutual negotiation shall be referred to and determined by arbitration as per the Act, as amended. Clause (c) is independent of Clause (d). Clause (d) provides that unless otherwise provided, any dispute or difference between the parties in connection with the agreement shall be referred to the sole arbitration of the Managing Director or his nominee.

The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee.

In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.

Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator.

2017 SCeJ 0003 = 2017 PLRonline 1400

. TRF Limited v. Energo Engineering Projects Limited, 2017 (8) SCC 377, 2017 SCeJ 0003 = 2017 PLRonline 1400

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Tags: Arbitration S. 11(6), Arbitration S. 12(5)
Tags: Arbitration S. 11(6)Arbitration S. 12(5)

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