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CIVIL

Current Exchange Rate in India [Notification dated the 21st June, 2018]

GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
(CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS)
*****

Notification No.55/2018 – Customs (N.T.)
New Delhi, dated the 21st June, 2018
31 Jyaistha 1940 (SAKA)

 

In exercise of the powers conferred by section 14 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Central Board of Indirect Taxes and Customs No.49/2018-CUSTOMS (N.T.), dated 7th June, 2018 except as respects things done or omitted to be done before such supersession, the Central Board of Indirect Taxes and Customs hereby determines that the rate of exchange of conversion of each of the foreign currencies specified in column (2) of each of Schedule I and Schedule II annexed hereto, into Indian currency or vice versa, shall, with effect from 22nd June, 2018, be the rate mentioned against it in the corresponding entry in column (3) thereof, for the purpose of the said section, relating to imported and export goods.

SCHEDULE-I

Sl.No. Foreign Currency Rate of exchange of one unit of foreign currency equivalent to Indian rupees

(For Imported Goods) (For Export Goods)

  1. Australian Dollar 51.65     49.20
  2. Bahrain Dinar 186.60        174.80
  3. Canadian Dollar 52.25       50.40
  4. Chinese Yuan 10.70           10.35
  5. Danish Kroner 10.80        10.40
  6. EURO 80.30                         77.35
  7. Hong Kong Dollar 8.85      8.55
  8. Kuwait Dinar 233.05        218.10
  9. New Zealand Dollar 48.00 45.85
  10. Norwegian Kroner 8.50 8.15
  11. Pound Sterling 91.35 88.15
  12. Qatari Riyal 19.30                18.25
  13. Saudi Arabian Riyal 18.80 17.60
  14. Singapore Dollar 51.10 49.20
  15. South African Rand 5.15 4.85
  16. Swedish Kroner 7.80 7.55
  17. Swiss Franc 69.80             67.05
  18. UAE Dirham 19.20            18.00
  19. US Dollar 69.10                67.40

SCHEDULE-II
Sl.No. Foreign Currency Rate of exchange of 100 units of foreign
currency equivalent to Indian rupees
(1) (2) (3)
(a) (b)
(For Imported Goods) (For Export Goods)
1. Japanese Yen 62.90 60.55

[F.No. 468/01/2018-Cus.V]
(Dr. Sreeparvathy S.L.)
Under Secretary to the Govt. of India
TELE: 011-2309 5541

READ THE ORIGINAL NOTIFICATION

Intellectual Property

Judicial Opinions, Statutes and Government Rules-Regulations are not Copyright Protected in United state of America [USA]

Wheaton vs Peter, 33 U.S, 991, 668 [1834] was the first copyright case in the United States till held good law and continuing as quoted in the recent decisions.

Case Title Citation Year Vote Classification Subject Matter Opinions Statute Interpreted Summary of Opinions
Wheaton v. Peters 33 U.S. (8 Pet.) 591 1834 5 – 2 Substantive Copyrightability/Common law Copyright/Formalities Majority:
McLean
Dissent:
Thompson, Baldwin		 There is no such thing as common law copyright and one must observe the formalities to secure a copyright.
Backus v. Gould 48 U.S. (7 How.) 798 1849 Substantive Majority:
McLean(unanimous)		 Copyright Act of 1831
Stephens v. Cady 55 U.S.(14 How.) 528 1852 9 – 0 Majority:
Nelson(unanimous)
Stevens v. Gladding 58 U.S.447 1854 Majority:
Curtis(unanimous)
Little v. Hall 59 U.S.(18 How.) 165 1856 Majority:
McLean(unanimous)
Paige v. Banks 80 U.S.(13 Wall.) 608 1872 Majority:
Davis(unanimous)
Perris v. Hexamer 99 U.S.674 1879 Majority:
Waite		  
Trade-Mark Cases 100 U.S.82 1879 9 – 0 Non-Copyright Constitutional basis for Trademark regulation Majority:
Miller(unanimous)		 Copyright Clause does not give Congress the power to regulate trademarks
Baker v. Selden 101 U.S.99 1879 9 – 0 Substantive Idea/Expression Dichotomy Majority:
Bradley(unanimous)		 Idea-expression divide; differences between copyright & patent law
Merrell v. Tice 104 U.S.557 1881 Majority:
Bradley		 Because statutory procedures exist for producing evidence of copyright formality observance, evidence of at least such veracity is required to prove copyright claims.
Schreiber v. Sharpless 110 U.S.76 1884 Majority:
Waite		 Charges of copyright infringement do not survive the death of the accused and may not be transferred to the executors of their will.
Burrow-Giles Lithographic Co. v. Sarony 111 U.S.53 1884 9 – 0 Substantive Copyrightability of photography Majority:
Miller(unanimous)		 Extended copyright protection to photography.
Thornton v. Schreiber 124 U.S.612 1888 Majority:
Miller
Banks v. Manchester 128 U.S.244 1888 9 – 0 Substantive Copyrightability of laws Majority:
Blatchford(unanimous)		 No copyright in state Supreme Court opinions.
Callaghan v. Myers 128 U.S.617 1888 Majority:
Blatchford(unanimous)		 Arrangements of public domain records can represent copyrightable intellectual effort.
Thompson v. Hubbard 131 U.S.123 1889 Majority:
Blatchford(unanimous)
Higgins v. Keuffel 140 U.S.428 1891 Majority:
Field(unanimous)		 A label describing the contents of a container is not subject to copyright.
Belford v. Scribner 144 U.S.488 1892 Majority:
Blatchford
Webster v. Daly 163 U.S.155 1896 Majority:
Fuller(unanimous)
Press Pub Co v. Monroe 164 U.S.105 1896 Majority:
Gray(unanimous)
Holmes v. Hurst 174 U.S.82 1899 Majority:
Brown(unanimous)
Brady v. Daly 175 U.S.148 1899 Peckham(unanimous)
Bolles v. Outing Co. 175 U.S.262 1899 Majority:
Brown (White) (unanimous)		 Copies already distributed are out of scope of copyright infringement damage lawsuits.
Bleistein v. Donaldson Lithographing Company 188 U.S.239 1903 7 – 2 Substantive Copyrightability of commercial art Majority:
Holmes
Dissent:
Harlan(McKenna)		 Copyright protection of illustrations made for advertisements
Mifflin v. R. H. White Company 190 U.S.260 1903 Majority:
Brown(unanimous)
Mifflin v. Dutton 190 U.S.265 1903 Majority:
Brown(unanimous)
McLoughlin v. Raphael Tuck & Sons Co. 191 U.S.267 1903 8 – 0 Majority:
White(unanimous)		 Articles of a class made illegal by a statute that existed in the United States before the statute came into effect are still legal.
American Tobacco Co. v. Werckmeister 207 U.S.284 1907 Majority:
Day(unanimous)
Werckmeister v. American Tobacco Co. 207 U.S.375 1907 Majority:
Day(unanimous)
United Dictionary Co. v. G. & C. Merriam Co. 208 U.S.260 1908 9 – 0 Substantive Formalities Majority:
Holmes(unanimous)		 Copyright Act of 1870, amendment in 1874 The requirement that notice reside in each copy of every edition does not extend to works published and sold abroad only.
White-Smith Music Publishing Co. v. Apollo Co. 209 U.S. 1 1908 9 – 0 Substantive Public performance right in music Majority:
Day(unanimous)
Concurrence:Holmes		 Reproduction of the sounds of musical instruments playing music for which copyright granted not a violation of the copyright.
Dun v. Lumbermen’s Credit Ass’n 209 U.S.20 1908 Majority:
Moody(unanimous)		 The existence of some copyright-infringing information in a rote reference work does not entitle the original author to seek an injunction against the printing the later article when the later article’s contents demonstrate significant original work.
Bobbs-Merrill Co. v. Straus 210 U.S.339 1908 9 – 0 Substantive First-sale doctrine Majority:
Day(unanimous)		 No license to use copyrighted material. License cannot extend holder’s rights beyond statute defined by Congress.
Scribner v. Straus 210 U.S.352 1908 Majority:
Day
Globe Newspaper Co. v. Walker 210 U.S.356 1908 Majority:
Day
Bong v. Campbell Art Co. 214 U.S.236 1909 Majority:
McKenna
Caliga v. Inter Ocean Newspaper Co. 215 U.S.182 1909 Majority:
Day
Hills and Co. v. Hoover 220 U.S.329 1911 Majority:
Day
American Lithographic Co. v. Werkmeister 221 U.S.603 1911 Hughes
Kalem Co. v. Harper Bros. 222 U.S.55 1911 9 – 0 Substantive Derivative works and Secondary liability Majority:
Holmes(unanimous)
Ferris v. Frohman 223 U.S.424 1912 9 – 0 Substantive Publication and Public Performance Majority:
Hughes(unanimous)
Henry v. A.B. Dick Co. 224 U.S. 1 1912 Non-Copyright Majority:
Lurton(McKenna, Holmes, Van Devanter)
Dissent:
White(Hughes, Lamar)
Bauer & Cie. v. O’Donnell 229 U.S. 1 1913 5 – 4 Non-Copyright Intersection of patents and first-sale doctrine Majority:
Day
Dissent:
Holmes(McKenna, Lurton, Van Devanter)
Straus v. American Publishers Association 231 U.S.222 1913 Majority:
Day
Order of St. Benedict of New Jersey v. Steinhauser 234 U.S.640 1914 Majority:
Hughes(unanimous)		 When someone joins an ecclesiastical order, subject to individual state law, their income from copyright may be dedicated to that order’s common fund as much as any other income or form of property. This does not violate any part of the Constitution if the member may withdraw from the order at any time.
Dejonge and Co. v. Breuker & Kessler Co. 235 U.S.33 1914 Majority:
Holmes
G & C Merriam Co. v. Syndicate Pub. Co. 237 U.S.618 1915 Non-Copyright Majority:
Day
Herbert v. Shanley Co. 242 U.S.591 1917 9 – 0 Substantive Public performance of live music in business establishments Majority:
Holmes(unanimous)		 Copyright Act of 1909 Hotels & restaurants that perform music must compensate composers, even if the venue is not separately charging patrons to hear the music.
International News Service v. Associated Press 248 U.S.215 1918 5 – 3 Non-Copyright Hot News Majority:
Pitney
Dissent:
Holmes(McKenna), Brandeis		 While the information found in AP news was not copyrightable and subject to publici juris, AP has a quasi-property interest during the production of “hot news”.
L. A. Westermann Co. v. Dispatch Printing Co. 249 U.S.100 1919 Majority:
Van Devanter
Ex parte Wagner 249 U.S.465 1919 Majority:
CLARKE
Meccano, Ltd. v. Wanamaker 253 U.S.136 1920 Majority:
McReynolds
Lumiere v. Mae Edna Wilder, Inc. 261 U.S.174 1923 Majority:
Brandeis		 A person or corporation cannot file suits under the Copyright Act in areas in which they do not have an office and do no business.
Fox Film Corporation v. Knowles 261 U.S.326 1923 Majority:
Holmes
Prestonettes, Inc. v. Coty 264 U.S.359 1924
Educational Films Corporation v. Ward 282 U.S.379 1931 Majority:
Stone
Sutherland(Van Devanter, BUTLER)
Buck v. Jewell-LaSalle Realty Co. 283 U.S.191 1931 9 – 0 Substantive Public performance right in radio broadcasts in business establishments Majority:
Brandeis(unanimous)		 Copyright Act of 1909
Fox Film Corp v. Doyal 286 U.S.123 1932 9 – 0 Substantive State government taxation of copyright royalties Majority:
Hughes(unanimous)		 States may tax copyright royalties, as they can patent royalties, because even though copyrights & patents are granted by the federal government, they are still private property subject to taxation.
Hurn v. Oursler 289 U.S.238 1933 Majority:
Sutherland
George v. Victor Co. 293 U.S.377 1934
Douglas v. Cunningham 294 U.S.207 1935
Interstate Circuit v. United States 304 U.S.55 1938 Majority:
Stone
Dissent:
O. Roberts(McReynolds, BUTLER)
Washingtonian Pub. Co. v. Pearson 306 U.S.30 1939 6 – 3 Substantive Formalities Majority:
McReynolds
Dissent:
Black (O. Roberts, Reed)		 Copyright Act of 1909 The 1909 Act’s deposit requirement did not require immediate deposit, or deposit before infringement occurs, in order to bring a suit for infringement
Gibbs v. Buck 307 U.S.66 1939 Majority:
Reed
Dissent:
Black
Buck v. Gallagher 307 U.S.95 1939 Majority:
Reed
Dissent:
Black
Sheldon v. Metro-Goldwyn Pictures Corp. 309 U.S.390 1940 8 – 0 Procedural Damages Majority:
Hughes(unanimous)		 Copyright Act of 1909 In the case of an unauthorized adaptation, court may elect to award only a portion of an infringer’s profits to the plaintiff.
Watson v. Buck 313 U.S.387 1941 Majority:
Black
Marsh v. Buck 313 U.S.406 1941 Majority:
Black
Fred Fisher Music Co. v. M. Witmark & Sons 318 U.S.643 1943 5 – 3 Substantive Renewal terms and assignment Majority:
Frankfurter
Dissent:
Black, Douglas, Murphy		 Copyright Act of 1909 The renewal of copyright for the second term is not an opportunity for an author to renegotiate terms made during the first term that extended beyond the first term’s length.
United States v. Paramount Pictures, Inc. 334 U.S.131 1948 7 – 1 Non-Copyright Antitrust Majority:
Douglas
Dissent:
Frankfurter (in part)		 Sherman Antitrust Act Practice of block booking and ownership of theater chains by film studios constituted anti-competitive and monopolistic trade practices.
Commissioner v. Wodehouse 337 U.S.369 1949 Majority:
Burton
Dissent:
Frankfurter(Murphy, Jackson)
F. W. Woolworth Co. v. Contemporary Arts, Inc. 344 U.S.227 1952 7 – 2 Procedural Election of remedies (Statutory Damages) Majority:
Jackson
Dissent:
Black(Frankfurter)		 Copyright Act of 1909 Court may grant statutory damages, even when infringer proves its gross profits were less than the statutory award. Judges granted wide latitude when determining legal remedies based on the facts of the case.
Mazer v. Stein 347 U.S.201 1954 7 – 2 Substantive Copyrightability of sculpture and Idea/Expression Dichotomy Majority:
Reed
Dissent:
Douglas(Black)		 Copyright Act of 1909 Extended copyright protection to functional art.
De Sylva v. Ballentine 351 U.S.570 1956 9 – 0 Substantive Renewal terms and beneficiaries Majority:
Harlan II(unanimous)		 Copyright Act of 1909 After the death of an author, the widow and children are eligible to renew copyright, equally as a class. Additionally, conditional on state laws, illegitimate children are also eligible for a share of the copyright.
Columbia Broadcasting System, Inc. v. Loew’s, Inc. 356 U.S.43 1958 4 – 4 Substantive Fair use in parody per curiam aff’d 4-4 sub. nom., Benny v. Loew’s, 239 F.2d 532 (9th Cir. 1956)
Miller Music Corp. v. Charles N. Daniels, Inc. 362 U.S.373 1960 5 – 4 Substantive Duration Majority:
Douglas
Dissent:
Harlan II(Frankfurter, WHITTAKER, Stewart)
Public Affairs Press v. Rickover 369 U.S.111 1962 per curiam
Concurrence:Douglas
Sears, Roebuck, & Co. v. Stiffel Co. 376 U.S.225 1964 Majority:
Black
Concurrence:Harlan II
Compco Corp. v. Day-Brite Lighting 376 U.S.234 1964
Fortnightly Corp. v. United Artists Television, Inc. 392 U.S.390 1968 5 – 1 Substantive Public performance of broadcast television Majority:
Stewart
Dissent:
Fortas		 Receiving a television broadcast (of a licensed work) does not constitute a “performance”
Goldstein v. California 412 U.S.546 1973 5 – 4 Non-Copyright Federal pre-emption of state criminal copyright law Majority:
Burger
Dissent:
Douglas(Brennan, Blackmun), Marshall(Brennan, Blackmun)		 California’s state statutes criminalizing record piracy did not violate the Copyright Clause
Teleprompter Corp. v. Columbia Broadcasting 415 U.S.394 1974 6 – 3 Substantive Public performance of broadcast television Majority:
Stewart
Dissent:
Blackmun (in part), Douglas(Burger)		 Receiving a television broadcast does not constitute a “performance”
Twentieth Century Music Corp. v. Aiken 422 U.S.151 1975 7 – 2 Substantive Public performance of radio broadcasts in business establishments Majority:
Stewart
Dissent:
Burger(Douglas)
Concurrence:
Blackmun		 Receiving a radio broadcast of a licensed work does not constitute a “performance”. This effectively overruled Buck v. Jewel-LaSalle Realty Co. (1931)
Williams & Wilkins Co. v. United States 420 U.S.376 1976 4 – 4 Substantive Fair use in photocopies per curiam aff’d by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344 (1975)
Zacchini v. Scripps-Howard Broadcasting Co. 433 U.S.562 1977 Majority:
White
Dissent:
Powell(Brennan, Marshall), Stevens
Broadcast Music v. Columbia Broadcasting System 441 U.S. 1 1979 8 – 1 Non-Copyright Antitrust and copyright collective rights organizations Majority:
White
Dissent:
Stevens		 Sherman Antitrust Act The issuance by ASCAP and BMI of blanket licenses does not constitute price-fixing per se unlawful under the antitrust laws
Sony Corp. of America v. Universal City Studios, Inc. 464 U.S.417 1984 5 – 4 Substantive Secondary liability and fair use in home recordings Majority:
Stevens
Dissent:
Blackmun(Marshall, Powell, Rehnquist)		 Copyright Act of 1976 The Betamax Case
Mills Music, Inc. v. Snyder 469 U.S.153 1985 5 – 4 Substantive Termination Majority:
Stevens
Dissent:
White(Brennan, Marshall, Blackmun)		 Copyright Act of 1976 Assignment of royalties under the Copyright Act
Harper & Row v. Nation Enterprises 471 U.S.539 1985 6 – 3 Substantive Fair use in excerpts Majority:
O’Connor
Dissent:
Brennan(White, Marshall)		 Copyright Act of 1976
Dowling. v. United States 473 U.S.207 1985 6 – 3 Non-Copyright Criminal law impact of infringement Majority:
Blackmun
Dissent:
Powell(Burger, White)		 Clayton Antitrust Act of 1914 Copyright infringement is not theft, conversion, or fraud; illegally made copies are not stolen goods.
Community for Creative Non-Violence v. Reid 490 U.S.730 1989 9 – 0 Substantive Work-made-for-hire Majority:
Marshall(unanimous)		 Copyright Act of 1976 Works for hire.
Stewart v. Abend 495 U.S.207 1990 6 – 3 Substantive Derivative works Majority:
O’Connor
Dissent:
Stevens(Rehnquist, Scalia)
Concurrence:
White		 Copyright Act of 1976 Rights of the successor of a copyright interest
Feist Publications, Inc. v. Rural Telephone Service Co. 499 U.S.340 1991 9 – 0 Substantive Copyrightability of Facts and Idea/Expression Dichotomy Majority:
O’Connor
Concurrence:
Blackmun		 Copyright Act of 1976 Affirmed the need for a minimal amount of creativity before a work is copyrightable. “Sweat of the brow” alone is not sufficient to bestow copyright.
Prei Inc. v. Columbia Pictures 508 U.S.49 1993 Majority:
Thomas
Fogerty v. Fantasy, Inc. 510 U.S.517 1994 9 – 0 Procedural Attorneys Fees Majority:
Rehnquist
Concurrence:
Thomas		 Copyright Act of 1976 Attorney’s fees in copyright litigation may be awarded to successful defendants, as well as to successful plaintiffs
Campbell v. Acuff-Rose Music, Inc. 510 U.S.569 1994 9 – 0 Substantive Fair use in Commercial Parody Majority:
Souter
Concurrence:
Kennedy		 Copyright Act of 1976 Commercial parody can be fair use.
Lotus Dev. Corp. v. Borland Int’l, Inc. 516 U.S.233 1995 4 – 4 Substantive Copyrightability of software program interfaces per curiam Copyright Act of 1976 Scope of software copyrights.
Quality King Distributors, Inc. v. L’anza Research Int’l, Inc. 523 U.S.135 1998 9 – 0 Substantive Reimportation Majority:
Stevens
Concurrence:
Ginsburg		 Copyright Act of 1976 First-sale doctrine applies to reimported goods
Feltner v. Columbia Pictures Television, Inc. 523 U.S.340 1998 9 – 0 Procedural Right to Jury Trial on Statutory Damages Majority:
Thomas
Concurrence:
Scalia		 Copyright Act of 1976 Seventh Amendment right to jury trial in a copyright infringement case
New York Times Co. v. Tasini 533 U.S.483 2001 7 – 2 Substantive Collective works Majority:
Ginsburg
Dissent:
Stevens(Breyer)		 Copyright Act of 1976 Freelance journalists did not grant electronic republication rights for collective work.
Eldred v. Ashcroft 537 U.S.186 2003 7 – 2 Substantive Term Extension Majority:
Ginsburg
Dissent:
Stevens, Breyer		 Copyright Act of 1976
Dastar Corp. v. Twentieth Century Fox Film Corp. 539 U.S.23 2003 8 – 0 Non-Copyright Intersection of TM law with public domain works Majority:
Scalia(unanimous)		 Lanham Act Trademark cannot preserve rights to a public domain work.
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S.913 2005 9 – 0 Substantive Secondary liability Majority:
Souter(unanimous)
Concurrence:
Ginsburg(Rehnquist, Kennedy), Breyer(Stevens, O’Connor)		 Copyright Act of 1976 Distributors of peer-to-peer file-sharing software can be liable for copyright infringement if there are “affirmative steps taken to foster infringement”.
Microsoft Corp. v. AT&T Corp. 550 U.S.437 2007 7 – 1 Non-Copyright Ginsburg
Concurrence:
Alito (Thomas, Breyer) (in all but part)
Dissent:
Stevens		 35 U.S.C. § 271(f)(Patent Act)
Reed Elsevier, Inc. v. Muchnick 559 U.S.154 2010 8 – 0 Procedural Registration Majority:
Thomas
Concurrence:
Ginsburg(Stevens, Breyer)		 Copyright Act of 1976 Settlement of copyright infringement claims relating to an electronic database
Omega S.A. v. Costco Wholesale Corp. 562 U.S.40 2010 4 – 4 Substantive First-sale doctrine per curiam Copyright Act of 1976 Affirming 541 F.3d 982 (9th Cir. 2008)
Golan v. Holder 565 U.S.302, 132 S. Ct. 873 2012 6 – 2 Substantive Restoration of copyright in public domain works Majority:
Ginsburg
Dissent:
Breyer (Alito)		 Copyright Act of 1976
Kirtsaeng v. John Wiley & Sons, Inc. 568 U.S.519, 133 S. Ct. 1351 2013 6 – 3 Substantive First-sale doctrine Majority:
Breyer
Dissent:
Ginsburg(Scalia (in part), Kennedy)
Concurrence:
Kagan (Alito)		 Copyright Act of 1976 The first-sale doctrine applies to copyrighted works made lawfully overseas.
Petrella v. Metro-Goldwyn-Mayer, Inc. 572 U.S. ____ 2014 6 – 3 Substantive Laches Majority:
Ginsburg
Dissent:
Breyer(Roberts, Kennedy)		 Copyright Act of 1976 The laches defense is not available in copyright infringement cases.
American Broadcasting Cos., Inc. v. Aereo, Inc. 573 U.S. ____ 2014 6 – 3 Substantive Public performance Majority:
Breyer
Dissent:
Scalia(Thomas, Alito)		 Copyright Act of 1976
Star Athletica, LLC v. Varsity Brands, Inc. 580 U.S. ___ 2017 6 – 2 Substantive Useful articles Majority:
Thomas
Concurrence:
Ginsburg
Dissent:
Breyer(Kennedy)		 Copyright Act of 1976

 

ARBITRATION

The Arbitration and Conciliation Act, 1996

EDITION 2018

Preliminary

Part 1 – Arbitration

Chapter I – General provisions
Chapter II – Arbitration agreement
Chapter III – Composition of arbitral tribunal
Chapter IV – Jurisdiction of arbitral tribunals
Chapter V – Conduct of arbitral proceedings
Chapter VI – Making of arbitral award and termination of proceedings
Chapter VII – Recourse against Arbitral Award
Chapter VIII – Finality and Enforcement of Arbitral Awards
Chapter IX – Appeals
Chapter X – Miscellaneous

Part 2-Enforcement of certain Foreign Awards[44-60]

Chapter I – New York Convention Awards
Chapter II – Geneva Convention Awards

Part 3-Conciliation [61-82]

Part 4- Supplementary Provisions

SEVEN SCHEDULES

Devider

The Arbitration and Conciliation Act, 1996

(26 of 1996)

[16th August, 1996]

An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.
Preamble. – Whereas the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985;
And Whereas the General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice;
And Whereas the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980;
And Whereas the General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation;
And Whereas the said Model Law and Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations;
And Whereas it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law and Rules;
Be it enacted by Parliament in the forty seventh year of the Republic as follows:

Preliminary

1. Short title, extent and commencement. – (1) This Act may be called The Arbitration and Conciliation Act , 1996.
(2) It extends to the whole of India:
Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.
Explanation. – In this sub-section, the expression international commercial conciliation shall have the same meaning as the expression international commercial arbitration in clause (f) of sub-section (1) of section 2, subject to the modification that for the word arbitration occurring therein, the word conciliation shall be substituted.
(3) It shall come into force on such [date] as the Central Government may, by notification in the Official Gazette, appoint.

Devider

Part I

Arbitration

CHAPTER I

General Provisions

2. Definitions. – (1) In this Part, unless the context otherwise requires,
(a) arbitration means any arbitration whether or not administered by permanent arbitral institution;

(b) arbitration agreement means an agreement referred to in section 7;

(c) arbitral award includes an interim award;

(d) arbitral tribunal means a sole arbitrator or a panel of arbitrators;

[(e) “Court” means—

(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]

(f) international commercial arbitration means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is

(i) an individual who is a national of, or habitually resident in, any country other than India; or

(ii) a body corporate which is incorporated in any country other than India; or

(iii) [* * *] an association or a body of individuals whose central management and control is exercised in any country other than India; or

(iv) the Government of a foreign country;

(g) legal representative means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;

(h) party means a party to an arbitration agreement.

Scope

(2) This Part shall apply where the place of arbitration is in India.

[Provided that subject to an agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.]
(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.
(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except insofar as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.
(5) Subject to the provisions of sub-section (4), and save insofar as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitration’s and to all proceedings relating thereto.

Construction Of References

(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.

(7) An arbitral award made under this Part shall be considered as a domestic award.

(8) Where this Part
(a) refers to the fact that the parties have agreed or that they may agree, or

(b) in any other way refers to an agreement of the parties,

that agreement shall include any arbitration rules referred to in that agreement.

(9) Where this Part, other than clause (a) of section 25 or clause (a) of sub-section (2) of section 32, refers to a claim, it shall also apply to a counter-claim, and where it refers to a defence, it shall also apply to a defence to that counter-claim.

3. Receipt of written communications. – (1) Unless otherwise agreed by the parties,

(a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and

(b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressees last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

(2) The communication is deemed to have been received on the day it is so delivered.
(3) This section does not apply to written communications in respect of proceedings of any judicial authority.

4. Waiver of right to object. – A party who knows that
(a) any provision of this Part from which the parties may derogate, or

(b) any requirement under the arbitration agreement,

has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.

5. Extent of judicial intervention – Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

6. Administrative assistance. – In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

CHAPTER II

Arbitration Agreement

7. Arbitration agreement. – (1) In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in
(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication [including communication through electronic means] which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
8. Power to refer parties to arbitration where there is an arbitration agreement. – [(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.]
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

9. Interim measures, etc., by Court. – (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court:

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.
(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.

CHAPTER III

Composition Of Arbitral Tribunal

10. Number of arbitrators. – (1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.

11. Appointment of arbitrators. – (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and
(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or

(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court].

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court].
(6) Where, under an appointment procedure agreed upon by the parties.
(a) a party fails to act as required under that procedure; or

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,

a party may request [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
[(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.
(6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.]
(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to [the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision].
[(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to—
(a) any qualifications required for the arbitrator by the agreement of the parties; and

(b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.]

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, [the Supreme Court or the person or institution designated by that Court] may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
[(10) The Supreme Court or, as the case may be, the High Court, may make such scheme as the said Court may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6), to it.]
(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to [different High Courts or their designates, the High Court or its designate to whom the request has been first made] under the relevant sub-section shall alone be competent to decide on the request.
[(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in an international commercial arbitration, the reference to the “Supreme Court or, as the case may be, the High Court” in those sub-sections shall be construed as a reference to the “Supreme Court”; and
(b) where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other arbitration, the reference to “the Supreme Court or, as the case may be, the High Court” in those sub-sections shall be construed as a reference to the “High Court” within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate, and where the High Court itself is the Court referred to in that clause, to that High Court.]

[(13) An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or the person or institution designated by such Court, as the case may be, as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.
(14) For the purpose of determination of the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal, the High Court may frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.
Explanation. – For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitration’s (other than international commercial arbitration) in case where parties have agreed for determination of fees as per the rules of an arbitral institution.]
[11A. Power of Central Government to amend Fourth Schedule. – (1) If the Central Government is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, amend the Fourth Schedule and thereupon the Fourth Schedule shall be deemed to have been amended accordingly.
(2) A copy of every notification proposed to be issued under sub-section (1), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the both Houses of Parliament.]

12. Grounds for challenge – [(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,—
(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and

(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.

Explanation 1. – The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.
Explanation 2. – The disclosure shall be made by such person in the form specified in the Sixth Schedule.]

(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.
(3) An arbitrator may be challenged only if.
(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or

(b) he does not possess the qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
[(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.]

13. Challenge procedure. – (1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.
(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.

14. Failure or impossibility to act. – [(1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if’]
(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.

15. Termination of mandate and substitution of arbitrator. – (1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate
(a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

CHAPTER IV

Jurisdiction Of Arbitral Tribunals

16. Competence of arbitral tribunal to rule on its jurisdiction. – (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

17. Interim measures ordered by arbitral tribunal – (1) A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to the arbitral tribunal—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as if it were an order of the Court.]

CHAPTER V

Conduct Of Arbitral Proceedings

18. Equal treatment of parties. – The parties shall be treated with equality and each party shall be given a full opportunity to present his case.

19. Determination of rules of procedure. (1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

20. Place of arbitration. – (1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

21. Commencement of arbitral proceedings. – Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

22. Language. – (1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.
(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings.
(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.
(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

23. Statements of claim and defence. – (1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.
(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
[(2A) The respondent, in support of his case, may also submit a counterclaim or plead a set-off, which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off falls within the scope of the arbitration agreement.]
(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

24. Hearings and written proceedings. – (1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.
[Provided further that the arbitral tribunal shall, as far as possible, hold oral hearings for the presentation of evidence or for oral argument on day-to-day basis, and not grant any adjournments unless sufficient cause is made out, and may impose costs including exemplary costs on the party seeking adjournment without any sufficient cause.]
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

25. Default of a party. – Unless otherwise agreed by the parties, where, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;

(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant [and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited];

(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.

26. Expert appointment by arbitral tribunal. – (1) Unless otherwise agreed by the parties, the arbitral tribunal may
(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.
(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.

27. Court assistance in taking evidence. – (1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.
(2) The application shall specify
(a) the names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;

(c) the evidence to be obtained, in particular,

(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;

(ii) the description of any document to be produced or property to be inspected.

(3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court.
(6) In this section the expression Processes includes summonses and commissions for the examination of witnesses and summonses to produce documents.

CHAPTER VI

Making Of Arbitral Award And Termination Of Proceedings

28. Rules applicable to substance of dispute. – (1) Where the place of arbitration is situate in India,
(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;

(b) in international commercial arbitration,

(i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute;

(ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;

(iii) failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

(2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.
[(3) While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms of the contract and trade usages applicable to the transaction.]

29. Decision making by panel of arbitrators. – (1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members.
(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by the presiding arbitrator.

29A. Time limit for arbitral award. – (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference.
Explanation. – For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period:
Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.
(5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.
(6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

29B. Fast track procedure. – (1) Notwithstanding anything contained in this Act, the parties to an arbitration agreement, may, at any stage either before or at the time of appointment of the arbitral tribunal, agree in writing to have their dispute resolved by fast track procedure specified in sub-section (3).
(2) The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be chosen by the parties.
(3) The arbitral tribunal shall follow the following procedure while conducting arbitration proceedings under sub-section (1):
(a) The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing;

(b) The arbitral tribunal shall have power to call for any further information or clarification from the parties in addition to the pleadings and documents filed by them;

(c) An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues;

(d) The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and adopt such procedure as deemed appropriate for expeditious disposal of the case.

(4) The award under this section shall be made within a period of six months from the date the arbitral tribunal enters upon the reference.
(5) If the award is not made within the period specified in sub-section (4), the provisions of sub-sections (3) to (9) of section 29A shall apply to the proceedings.
(6) The fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties.]

30. Settlement. – (1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.
(2) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and if, requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award.
(4) An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.

31. Form and contents of arbitral award. – (1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.
(2) For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated.
(3) The arbitral award shall state the reasons upon which it is based, unless
(a) the parties have agreed that no reasons are to be given, or

(b) the award is an arbitral award on agreed terms under section 30.

(4) The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.
(5) After the arbitral award is made, a signed copy shall be delivered to each party.
(6) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award.
(7)(a) Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
[(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two per cent. higher than the current rate of interest prevalent on the date of award, from the date of award to the date of payment.

(8) The costs of an arbitration shall be fixed by the arbitral tribunal in accordance with section 31A.]
Explanation. For the purpose of clause (a), costs means reasonable costs relating to
(i) the fees and expenses of the arbitrators and witnesses,

(ii) legal fees and expenses,

(iii) any administration fees of the institution supervising the arbitration, and

(iv) any other expenses incurred in connection with the arbitral proceedings and the arbitral award.

31A. Regime for costs – (1) In relation to any arbitration proceeding or a proceeding under any of the provisions of this Act pertaining to the arbitration, the Court or arbitral tribunal, notwithstanding anything contained in the Code of Civil Procedure,1908, shall have the discretion to determine—
(a) whether costs are payable by one party to another;

(b) the amount of such costs; and

(c) when such costs are to be paid.

Explanation. – For the purpose of this sub-section, “costs” means reasonable costs relating to—
(i) the fees and expenses of the arbitrators, Courts and witnesses;

(ii) legal fees and expenses;

(iii) any administration fees of the institution supervising the arbitration; and

(iv) any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral award.

(2) If the Court or arbitral tribunal decides to make an order as to payment of costs,—
(a) the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party; or

(b) the Court or arbitral tribunal may make a different order for reasons to be recorded in writing.

(3) In determining the costs, the Court or arbitral tribunal shall have regard to all the circumstances, including—
(a) the conduct of all the parties;

(b) whether a party has succeeded partly in the case;

(c) whether the party had made a frivolous counter claim leading to delay in the disposal of the arbitral proceedings; and

(d) whether any reasonable offer to settle the dispute is made by a party and refused by the other party.

(4) The Court or arbitral tribunal may make any order under this section including the order that a party shall pay—
(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date.

(5) An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event shall be only valid if such agreement is made after the dispute in question has arisen.]

32. Termination of proceedings. – (1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where
(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,

(b) the parties agree on the termination of the proceedings, or

(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

33. Correction and interpretation of award; additional award. – (1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties
(a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;

(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.
(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.
(4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.
(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.
(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) of sub-section (5).
(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.

CHAPTER VII

Recourse Against Arbitral Award

34. Application for setting aside arbitral award. – (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if

(a) the party making the application furnishes proof that

(i) a party was under some incapacity; or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

[Explanation 1. – For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2. – For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

[(2A) An arbitral award arising out of arbitration’s other than international commercial arbitration’s, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.

CHAPTER VIII

Finality And Enforcement Of Arbitral Awards

35. Finality of arbitral awards. – Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.

36. Enforcement. – (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.
(2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.
(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:
Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908.

CHAPTER IX

Appeals

37. Appealable orders. – (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:
[(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.]

(2) An appeal shall also lie to a Court from an order of the arbitral tribunal
(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

CHAPTER X

Miscellaneous

38. Deposits. – (1) The arbitral tribunal may fix the amount of the deposit or supplementary deposit, as the case may be, as an advance for the costs referred to in sub-section (8) of section 31, which it expects will be incurred in respect of the claim submitted to it:
Provided that where, apart from the claim, a counter-claim has been submitted to the arbitral tribunal, it may fix separate amount of deposit for the claim and counter-claim.
(2) The deposit referred to in sub-section (1) shall be payable in equal shares by the parties:
Provided that where one party fails to pay his share of the deposit, the other party may pay that share:
Provided further that where the other party also does not pay the aforesaid share in respect of the claim or the counter-claim, the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claim or counter-claim, as the case may be.
(3) Upon termination of the arbitral proceedings, the arbitral tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties, as the case may be.

39. Lien on arbitral award and deposits as to costs. – (1) Subject to the provisions of sub-section (2) and to any provision to the contrary in the arbitration agreement, the arbitral tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.
(2) If in any case an arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it, the Court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into Court by the applicant of the costs demanded, and shall, after such inquiry, if any, as it thinks fit, further order that out of the money so paid into Court there shall be paid to the arbitral tribunal by way of costs such sum as the Court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant.
(3) An application under sub-section (2) may be made by any party unless the fees demanded have been fixed by written agreement between him and the arbitral tribunal, and the arbitral tribunal shall be entitled to appear and be heard on any such application.
(4) The Court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting such costs and the arbitral award contains no sufficient provision concerning them.

40. Arbitration agreement not to be discharged by death of party thereto. – (1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased.
(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.
(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

41. Provisions in case of insolvency. – (1) Where it is provided by a term in a contract to which an insolvent is a party that any dispute arising there out or in connection therewith shall be submitted to arbitration, the said term shall, if the receiver adopts the contract, be enforceable by or against him so far as it relates to any such dispute.
(2) Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, become a party to an arbitration agreement, and any matter to which the agreement applies is required to be determined in connection with, or for the purposes of, the insolvency proceedings, then, if the case is one to which sub-section (1) does not apply, any other party or the receiver may apply to the judicial authority having jurisdiction in the insolvency proceedings for an order directing that the matter in question shall be submitted to arbitration in accordance with the arbitration agreement, and the judicial authority may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly.
(3) In this section the expression receiver includes an Official Assignee.

42. Jurisdiction – Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.

43. Limitations. – (1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitration’s as it applies to proceedings in Court.

(2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred in section 21.

(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.

Devider

Part II

Enforcement Of Certain Foreign Awards

CHAPTER I

New York Convention Awards

44. Definition. – In this Chapter, unless the context otherwise requires, foreign award means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and

(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.

45. Power of judicial authority to refer parties to arbitration. – Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
46. When foreign award binding. – Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.
47. Evidence. – (1) The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the Court
(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;

(b) the original agreement for arbitration or a duly certified copy thereof; and

(c) such evidence as may be necessary to prove that the award is a foreign award.

(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.
[Explanation. – In this section and in the sections following in this Chapter, “Court” means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.]
48. Conditions for enforcement of foreign awards. – (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the Court proof that
(a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

(2) Enforcement of an arbitral award may also be refused if the Court finds that
(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or

(b) the enforcement of the award would be contrary to the public policy of India.

[Explanation 1. – For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2. – For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]
(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

49. Enforcement of foreign awards. – Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.

50. Appealable orders. – (1) An appeal shall lie from the order refusing to
(a) refer the parties to arbitration under section 45;

(b) enforce a foreign award under section 48,

to the Court authorised by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

51. Saving. – Nothing in this Chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.

52. Chapter II not to apply. – Chapter II of this Part shall not apply in relation to foreign awards to which this Chapter applies.

CHAPTER II

Geneva Convention Awards

53. Interpretation. – In this Chapter foreign award means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924,
(a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and

(b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and

(c) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notification, declare to be territories to which the said Convention applies,

and for the purposes of this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.
54. Power of judicial authority to refer parties to arbitration. – Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement, whether referring to present or future differences, which is valid under that section and capable of being carried into effect, shall refer the parties on the application of either of them or any person claiming through or under him to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.
55. Foreign awards when binding. – Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.

56. Evidence. – (1) The party applying for the enforcement of a foreign award shall, at the time of application, produce before the Court
(a) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;

(b) evidence proving that the award has become final; and

(c) such evidence as may be necessary to prove that the conditions mentioned in clauses (a) and (c) of sub-section (1) of section 57 are satisfied.

(2) Where any document requiring to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

Explanation 1. – In this section and all the following sections of this Chapter, Court means the principal civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil Court of a grade inferior to such principal civil Court, or any Court of Small Causes.
[Explanation. – In this section and in the sections following in this Chapter, “Court” means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.]
57. Conditions for enforcement of foreign awards. – (1) In order that a foreign award may be enforceable under this Chapter, it shall be necessary that
(a) the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;

(b) the subject-matter of the award is capable of settlement by arbitration under the law of India;

(c) the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;

(d) the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;

(e) the enforcement of the award is not contrary to the public policy or the law of India.

[Explanation 1. – For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2. – For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]
(2) Even if the conditions laid down in sub-section (1) are fulfilled, enforcement of the award shall be refused if the Court is satisfied that
(a) the award has been annulled in the country in which it was made;

(b) the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;

(c) the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may decide.
(3) If the party against whom the award has been made proves that under the law governing the arbitration procedure there is a ground, other than the grounds referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c) of sub-section (2) entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.

58. Enforcement of foreign awards. – Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of the Court.

59. Appealable orders. – (1) An appeal shall lie from the order refusing
(a) to refer the parties to arbitration under section 54; and

(b) to enforce a foreign award under section 57,

to the Court authorised by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
60. Saving. – Nothing in this Chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.

Devider

Part III

Conciliation

61. Application and scope. – (1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.
(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.

62. Commencement of conciliation proceedings. – (1) The party initiating conciliation shall send to the other party a written invitation to conciliate under this Part, briefly identifying the subject of the dispute.
(2) Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate.
(3) If the other party rejects the invitation, there will be no conciliation proceedings.
(4) If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate and if he so elects, he shall inform in writing the other party accordingly.

63. Number of conciliators. – (1) There shall be one conciliator unless the parties agree that there shall be two or three conciliators.
(2) Where there is more than one conciliator, they ought, as a general rule, to act jointly.

64. Appointment of conciliators. – (1) Subject to sub-section (2),
(a) in conciliation proceedings with one conciliator, the parties may agree on the name of a sole conciliator;

(b) in conciliation proceedings with two conciliators, each party may appoint one conciliator;

(c) in conciliation proceedings with three conciliators, each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator.

(2) Parties may enlist the assistance of a suitable institution or person in connection with the appointment of conciliators, and in particular,
(a) a party may request such an institution or person to recommend the names of suitable individuals to act as conciliator; or

(b) the parties may agree that the appointment of one or more conciliators be made directly by such an institution or person:

Provided that in recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, with respect to sole or third conciliator, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

65. Submission of statements to conciliator. – (1) The conciliator, upon his appointment, may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party.
(2) The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party shall send a copy of such statement, documents and other evidence to the other party.
(3) At any stage of the conciliation proceedings, the conciliator may request a party to submit to him such additional information as he deems appropriate.
Explanation. – In this section and all the following sections of this Part, the term conciliator applies to a sole conciliator, two or three conciliators as the case may be.

66. Conciliator not bound by certain enactments. – The conciliator is not bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).
67. Role of conciliator. – (1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.
(2) The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.
(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.
(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.

68. Administrative assistance. – In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

69. Communication between conciliator and parties. – (1) The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.
(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place shall be determined by the conciliator, after consultation with the parties, having regard to the circumstances of the conciliation proceedings.
70. Disclosure of information. – When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate:
Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.

71. Co-operation of parties with conciliator. – The parties shall in good faith co-operate with the conciliator and, in particular, shall endeavour to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.

72. Suggestions by parties for settlement of dispute. – Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.

73. Settlement agreement. – (1) When it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations.
(2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.
(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.
(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

74. Status and effect of settlement agreement. – The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.

75. Confidentiality. – Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

76. Termination of conciliation proceedings. – The conciliation proceedings shall be terminated
(a) by the signing of the settlement agreement by the parties on the date of the agreement; or

(b) by a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or

(c) by a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or

(d) by a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

77. Resort to arbitral or judicial proceedings. – The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.

78. Costs. – (1) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties.
(2) For the purpose of sub-section (1), costs means reasonable costs relating to
(a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties;

(b) any expert advice requested by the conciliator with the consent of the parties;

(c) any assistance provided pursuant to clause (b) of sub-section (2) of section 64 and section 68;

(d) any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.

(3) The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party.
79. Deposits. – (1) The conciliator may direct each party to deposit an equal amount as an advance for the costs referred to in sub-section (2) of section 78 which he expects will be incurred.
(2) During the course of the conciliation proceedings, the conciliator may direct supplementary deposits in an equal amount from each party.
(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration.
(4) Upon termination of the conciliation proceedings, the conciliator shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the parties.

80. Role of conciliator in other proceedings. – Unless otherwise agreed by the parties,
(a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings;

(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.

81. Admissibility of evidence in other proceedings. – The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,
(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;

(b) admissions made by the other party in the course of the conciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.

Devider

Part IV

Supplementary Provisions

82. Power of High Court to make rules. – The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act.

83. Removal of difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

84. Power to make rules. – (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.
(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be, after it is made before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

85. Repeal and saving. – (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal,
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.

86. Repeal of Ordinance 27 of 1996 and saving. – (1) The Arbitration and Conciliation (Third) Ordinance, 1996 (27 of 1996) is hereby repealed.
(2) Notwithstanding such repeal, any order, rule, notification or scheme made or anything done or any action taken in pursuance of any provision of the said Ordinance shall be deemed to have been made, done or taken under the corresponding provisions of this Act.

Devider

The First Schedule

See section 44

Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Article I

1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
2. The term arbitral awards shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.
Article II

1. Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not, concerning a subject-matter capable of settlement by arbitration.
2. The term agreement in writing shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The Court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative and incapable of being performed.
Article III

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
Article IV

1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a) the duly authenticated original award or a duly certified copy thereof;

(b) the original agreement referred to in article II or a duly certified copy thereof.

2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

Article V

1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that
(a) the parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that
(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) the recognition or enforcement of the award would be contrary to the public policy of that country.

Article VI

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
Article VII

1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
2. The Ganeva Protocol on Arbitration Clauses of 1923 and the Ganeva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound by this Convention.

Article VIII

1. This Convention shall be open until 31st December, 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes member of any specialised agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations.
Article IX

1. This Convention shall be open for accession to all States referred to in article VIII.
2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article X

1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.

Article XI

In the case of a federal or non-unitary State, the following provisions shall apply:
(a) with respect of those articles of this Convention that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States;
(b) with respect to those articles of this Convention that come within the legislative jurisdiction of constituent States or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent States or provinces at the earliest possible moment;
(c) a federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.

Article XII

1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.
Article XIII

1. Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect.
Article XIV

A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.

Article XV

The Secretary-General of the United Nations shall notify the States contemplated in article VIII of the following:
(a) signatures and ratifications in accordance with article VIII;
(b) accessions in accordance with article IX;
(c) declarations and notifications under articles I, X and XI;
(d) the date upon which this Convention enters into force in accordance with article XII;
(e) denunciations and notifications in accordance with article XIII.
Article XVI

1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article XIII.

Devider

The Second Schedule

See section 53

Protocol on Arbitration Clauses

The undersigned being duly authorised, declare that they accept, on behalf of the countries which they represent, the following provisions:
1. Each of the Contracting States recognises the validity of an agreement whether relating to existing or future differences between parties subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection with such contract relating to commercial matters or to any other matter capable of settlement by arbitration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject.
Each Contracting State reserves the right to limit the obligation mentioned above to contracts which are considered as commercial under its national law. Any Contracting State which avails itself of this right will notify the Secretary-General of the League of Nations in order that the other Contracting States may be so informed.
2. The arbitral procedure, including the constitution of the Arbitral Tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.
The Contracting States agree to facilitate all steps in the procedure which require to be taken in their own territories, in accordance with the provisions of their law governing arbitral procedure applicable to existing differences.
3. Each Contracting State undertakes to ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made in its own territory under the preceding articles.
4. The Tribunals of the Contracting Parties, on being seized of a dispute regarding a contract made between persons to whom Article I applies and including an Arbitration Agreement whether referring to present or future differences which is valid in virtue of the said article and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the Arbitrators.
Such reference shall not prejudice the competence of the judicial tribunals in case the agreement or the arbitration cannot proceed or becomes inoperative.
5. The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratification shall be deposited as soon as possible with the Secretary-General of the League of Nations, who shall notify such deposit to all the Signatory States.
6. The present Protocol will come into force as soon as two ratifications have been deposited. Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary-General of the deposit of its ratification.
7. The present Protocol may be denounced by any Contracting State on giving one years notice. Deunciation shall be effected by a notification addressed to the Secretary-General of the League, who will immediately transmit copies of such notification to all the other Signatory States and inform them of the date on which it was received. The denunciation shall take effect one year after the date on which it was notified to the Secretary-General, and shall operate only in respect of the notifying State.
8. The Contracting States may declare that their acceptance of the present Protocol does not include any or all of the under-mentioned territories: that is to say, their colonies, overseas possessions or territories, protectorates or the territories over which they exercise a mandate.
The said States may subsequently adhere separately on behalf of any territory thus excluded. The Secretary-General of the League of Nations shall be informed as soon as possible of such adhesions. He shall notify such adhesions to all Signatory States. They will take effect one month after the notification by the Secretary-General to all Signatory States.
The Contracting States may also denounce the Protocol separately on behalf of any of the territories referred to above. Article 7 applies to such denunciation.

Devider

The Third Schedule

See section 53

Convention on the Execution of Foreign Arbitral Awards

Article 1.

(1) In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement, whether relating to existing or future differences (hereinafter called a submission to arbitration) covered by the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923, shall be recognised as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties.
(2) To obtain such recognition or enforcement, it shall, further, be necessary:
(a) that the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;

(b) that the subject-matter of the award is capable of settlement by arbitration under the law of the country in which the award is sought to be relied upon;

(c) that the award has been made by the Arbitral Tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;

(d) that the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appeal or pourvoi en cessation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;

(e) that the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon.

Article 2.

Even if the conditions laid down in Article I hereof are fulfilled, recognition and enforcement of the award shall be refused if the Court is satisfied:
(a) that the award has been annulled in the country in which it was made;

(b) that the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;

(c) that the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration.

If the award has not covered all the questions submitted to the arbitral tribunal, the competent authority of the country where recognition or enforcement of the award is sought can, if it thinks fit, postpone such recognition or enforcement or grant it subject to such guarantee as that authority may decide.
Article 3.

If the party against whom the award has been made proves that, under the law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1(a) and (c), and Article 2(b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.
Article 4.

The party relying upon an award or claiming its enforcement must supply, in particular:
(1) the original award or a copy thereof duly authenticated, according to the requirements of the law of the country in which it was made;
(2) documentary or other evidence to prove that the award has become final, in the sense defined in Article 1(d), in the country in which it was made;
(3) when necessary, documentary or other evidence to prove that the conditions laid down in Article 1, paragraph (1) and paragraph (2)(a) and (c), have been fulfilled.
A translation of the award and of the other documents mentioned in this Article into the official language of the country where the award is sought to be relied upon may be demanded. Such translations must be certified correct by a diplomatic or consular agent of the country to which the party who seeks to rely upon the award belongs or by sworn translator of the country where the award is sought to be relied upon.
Article 5.

The provisions of the above Articles shall not deprive any interested party of the right of availing himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
Article 6.

The present Convention applies only to arbitral awards made after the coming into force of the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923.
Article 7.

The present Convention, which will remain open to the signature of all the signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified.
It may be ratified only on behalf of those Members of the League of Nations and Non-Member States on whose behalf the Protocol of 1923 shall have been ratified.
Ratification shall be deposited as soon as possible with the Secretary-General of the League of Nations, who will notify such deposit to all the signatories.
Article 8.

The present Convention shall come into force three months after it shall have been ratified on behalf of two High Contracting Parties. Thereafter, it shall take effect, in the case of each High Contracting Party, three months after the deposit of the ratification on its behalf with the Secretary-General of the League of Nations.
Article 9.

The present Convention may be denounced on behalf of any Member of the League or Non-Member State. Denunciation shall be notified in writing to the Secretary-General of the League of Nations, who will immediately send a copy thereof, certified to be in conformity with the notifications, to all the other Contracting Parties, at the same time informing them of the date on which he received it.
The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary-General of the League of Nations.
The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary-General of the League of Nations.
The denunciation of the Protocol on Arbitration Clauses shall entail, ipso facto, the denunciation of the present Convention.
Article 10.

The present Convention does not apply to the Colonies, Protectorates or Territories under suzerainty or mandate of any High Contracting Party unless they are specially mentioned.
The application of this Convention to one or more of such Colonies, Protectorates or Territories to which the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923, applies, can be effected at any time by means of a declaration addressed to the Secretary-General of the League of Nations by one of the High Contracting Parties.
Such declaration shall take effect three months after the deposit thereof.
The High Contracting Parties can at any time denounce the Convention for all or any of the Colonies, Protectorates or territories referred to above. Article 9 hereof applied to such denunciation.
Article 11.

A certified copy of the present Convention shall be transmitted by the Secretary-General of the League of Nations to every Member of the League of Nations and to every Non-Member State which signs the same.

Devider

[The Fourth Schedule]

[See section 11 (14)]

Sum in dispute Model fee
Up to Rs. 5,00,000 Rs. 45,000
Above Rs. 5,00,000 and up to Rs. 20,00,000 Rs. 45,000 plus 3.5 per cent. of the claim amount over and above Rs. 5,00,000
Above Rs. 20,00,000 and up to Rs. 1,00,00,000 Rs. 97,500 plus 3 per cent. of the claim amount over and above Rs. 20,00,000
Above Rs. 1,00,00,000 and up to Rs. 10,00,00,000 Rs. 3,37,500 plus 1 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 10,00,00,000 and Rs. 20,00,00,000 up to Rs. 12,37,500 plus 0.75 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 20,00,00,000 Rs. 19,87,500 plus 0. 5 per cent. of the claim amount over and above Rs. 20,00,00,000 with a ceiling of Rs. 30,00,000

Note. – In the event, the arbitral tribunal is a sole arbitrator, he shall be entitled to an additional amount of twenty-five per cent. on the fee payable as per the table set out above.

Devider

[The Fifth Schedule]

[See section 12 (1)(b)]

The following grounds give rise to justifiable doubts as to the independence or impartiality of arbitrators:
Arbitrator’s relationship with the parties or counsel
1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.
2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.
3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.
4. The arbitrator is a lawyer in the same law firm which is representing one of the parties.
5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.
6. The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.
7. The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.
8. The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom.
9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.
10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.
11. The arbitrator is a legal representative of an entity that is a party in the arbitration.
12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.
13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case.
14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.
Relationship of the arbitrator to the dispute.
15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.
16. The arbitrator has previous involvement in the case.
Arbitrator’s direct or indirect interest in the dispute
17. The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.
18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.
19. The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.
Previous services for one of the parties or other involvement in the case
20. The arbitrator has within the past three years served as counsel for one of the parties or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter, but the arbitrator and the party or the affiliate of the party have no ongoing relationship.
21. The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter.
22. The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties.
23. The arbitrator’s law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.
24. The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties.
Relationship between an arbitrator and another arbitrator or counsel
25. The arbitrator and another arbitrator are lawyers in the same law firm.
26. The arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the same arbitration.
27. A lawyer in the arbitrator’s law firm is an arbitrator in another dispute involving the same party or parties or an affiliate of one of the parties.
28. A close family member of the arbitrator is a partner or employee of the law firm representing one of the parties, but is not assisting with the dispute.
29. The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm.
Relationship between arbitrator and party and others involved in the arbitration
30. The arbitrator’s law firm is currently acting adverse to one of the parties or an affiliate of one of the parties.
31. The arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in a professional capacity, such as a former employee or partner.
Other circumstances
32. The arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a material holding in one of the parties or an affiliate of one of the parties that is publicly listed.
33. The arbitrator holds a position in an arbitration institution with appointing authority over the dispute.
34. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the arbitration.
Explanation 1. – The term “close family member” refers to a spouse, sibling, child, parent or life partner.
Explanation 2. – The term “affiliate” encompasses all companies in one group of companies including the parent company.
Explanation 3. – For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.

[The Sixth Schedule]

[See section 12 (1)(b)]

Name:
Contact Details:
Prior Experience (Including Experience With Arbitrations):
Number Of Ongoing Arbitrations:
Circumstances disclosing any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to your Independence or Impartiality (List Out):
Circumstances which are likely to affect your ability to devote sufficient time to the arbitration and in particular your ability to finish the entire arbitration within twelve months (list out):

Devider

[The Seventh Schedule]

[See section 12 (5)]

Arbitrator’s relationship with the parties or counsel
1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.
2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.
3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.
4. The arbitrator is a lawyer in the same law firm which is representing one of the parties.
5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.
6. The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.
7. The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.
8. The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom.
9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.
10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.
11. The arbitrator is a legal representative of an entity that is a party in the arbitration.
12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.
13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case.
14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.
Relationship of the arbitrator to the dispute
15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.
16. The arbitrator has previous involvement in the case.
Arbitrator’s direct or indirect interest in the dispute
17. The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.
18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.
19. The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.
Explanation 1. – The term “close family member” refers to a spouse, sibling, child, parent or life partner.
Explanation 2. – The term “affiliate” encompasses all companies in one group of companies including the parent company.
Explanation 3. – For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.

ARBITRATION

Introduction to the Indian Law of Arbitration and Conciliation Act 1996

Arbitration is a mechanism or a method of resolution of disputes that unlike court takes place in private, pursuant to agreement between the parties. The parties agree to be bound by the decision rendered by a chosen arbitrator after giving hearing. The endeavour of the court should be to honour and support the award as far as possible[Markfed Vanaspati & Allied  vs Union Of India on 14 September, 2007]

Russell on Arbitration 19th Edition at Pages 110-111 described the entire genesis of arbitration as under:- An arbitrator is neither more or less than a private judge of a private court (called an arbitral tribunal) who gives a private judgment (called an award). He is a judge in that a dispute is submitted to him; he is not a mere investigator but a person before whom material is placed by the parties, being either or both of evidence and submissions; he gives a decision in accordance with his duty to hold the scales fairly between the disputants in accordance with some recognized system of law and rules of natural justice. He is private in so far as (1) he is chosen and paid by the disputants (2) he does not sit in public (3) he acts in accordance with privately chosen procedure so far as that is not repugnant to public policy (4) so far as the law allows he is set up to the exclusion of the State Courts (5) his authority and powers are only whatsoever he is given by the disputants agreement (6) the effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of those powers must not be contrary to the proper law of the contract or the public policy of England bearing in mind that the paramount public policy is that freedom of contract is not lightly to be inferred with.Whatever has been mentioned by Russell in this paragraph is equally true for Indian Arbitrators

The Arbitration and Conciliation Act, 1996 which has repealed the Arbitration Act of 1940 and which seeks to achieve the twin objectives of obliging the Arbitral Tribunal to give reasons for its arbitral award and reducing the supervisory role of Courts in arbitration proceedings. Section 31(3) of the said Act obliges the arbitral tribunal to state the reasons upon which it is based unless the parties have agreed that no reasons be given or the arbitral award is based on consent of the parties. There is, therefore, a paradigm shift in the legal position under the new Act which prescribes a uniform requirement for the arbitrators to give reasons except in the two situations mentioned above. The change in the legal approach towards arbitration as an Alternative Dispute Resolution Mechanism is perceptible both in regard to the requirement of giving reasons and the scope of interference by the Court with arbitral awards. While in regard to requirement of giving reasons the law has brought in dimensions not found under the old Act, the scope of interference appears to be shrinking in its amplitude, no matter judicial pronouncements at time appear to be heading towards a more expansive approach, that may appear to some to be opening up areas for judicial review on newer grounds falling under the caption “Public Policy” appearing in Section 34 of the Act. [M/S Anand Brothers P.Ltd.Tr.M.D vs Union Of India & Ors on 4 September, 2014]

Devider

This Paper Covers following Topics :

Indian Arbitration 

The Statute
FICCI Tribunal of Arbitration
Services in Arbitrations in India
Notifications and Circulars
Press Releases
Schemes, Reports & Forms
List of Institutions Providing
Supreme Court Judgments

International Arbitration

UNCITRAL Model Laws
International Convention and Treaties
International Statutes
International Arbitral Institutions-Rules & Procedures
Rules and Procedures of Other Institutions
Disputes Settled by Permanent Court of Arbitration
Institutional and Specialized Arbitration
International Commercial Arbitration

Sports Arbitration

  • International Cases
  • Model Arbitration Agreement
  • Model Arbitration Award (Domestic)

Devider

Arbitration and Conciliation Act, 1996

 PART I

Arbitration

1. General Provisions

2. Arbitration Agreement

3. Composition of Arbitral Tribunal [Ss. 10–11]

4. Jurisdiction of Arbitral Tribunals

5. Conduct of Arbitral Proceedings

6. Making of Arbitral Award and Termination of Proceedings

7. Recourse Against Arbitral Award

8. Finality and Enforcement of Arbitral Awards

9. Appeals

10. Miscellaneous

 PART II

Enforcement of Certain Foreign Awards

1. New York Convention Awards

2. Geneva Convention Awards

 PART III

Conciliation

Conciliation

 PART IV

Supplementary Provisions

Supplementary Provisions

First Schedule

Second Schedule

Third Schedule

 PART V

Alternative Disputes Redressal

Devider

 

ARBITRATION

Setting aside an Arbitral Award in India

The Arbitration and Conciliation Act, 1996

34. Application for setting aside arbitral award.

(1)Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2)An arbitral award may be set aside by the Court only if—

(a)the party making the application furnishes proof that—

(i)a party was under some incapacity, or

(ii)the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii)the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v)the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b)the Court finds that—

(i)the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii)the arbitral award is in conflict with the public policy of India.

Explanation 1. For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—

(i)the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii)it is in contravention with the fundamental policy of Indian law; or

(iii)it is in conflict with the most basic notions of morality or justice.

Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A)An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3)An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4)On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5)An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6)An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.

COMMENT –The principle of Intervention:  The law with regard to Section 34 of Arbitration and Conciliation Act, 1996, is well settled that the jurisdiction of the Court to interfere with the award made by an arbitrator is very limited and consequently the court while entertaining an objection petition under Section 34 of the said Act cannot sit as a Court of Appeal and that evidence is not to be re- appreciated. The Apex Court in the case of Markfed Vanaspati and Allied Industries v. Union of India reported in (2007) 7 Supreme Court Cases 679, while relying on Bijendra Nath Srivastava (Dead) through LRs v. Mayank Srivastava And Others reported in (1994) 6 Supreme Court Cases 117, has observed that “the arbitrator is the sole judge of the quality as well as the quantity of the evidence. It will not be for the court to take upon itself the task of being a judge of the evidence before the arbitrator. The court should approach an award with a desire to support it, if that is reasonably possible, rather than to destroy it by calling it illegal.” Further in Mcdermott International Inc. v. Burn Standard Co. Ltd. & Ors reported in (2006) 11 SCC 181 it has been held by the Apex Court that “the 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only like, in case of fraud or bias by the arbitrators, violation of natural justice, etc.” Recently, the observations of the Apex Court in para 21 in P.R. Shah, Shares and Stock Brokers Private Limited v. B.H.H. Securities Private Limited And Others reported in (2012) 1 Supreme Court Cases 594 is worth noting in this respect. Para 21 reads as under:-
“21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34 (2) of the Act. Therefore, in the absence of any ground under section 34 (2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.”

Appreciation of facts and evidence: Where the Arbitral Tribunal has assessed the material and evidence placed before it in detail, the court while considering the objections under Section 34 of the said Act does not sit as a court of appeal and is not expected to re-appreciate the entire evidence and reassess the case of the parties. The jurisdiction under section 34 is not appellate in nature and an award passed by an Arbitrator cannot be set aside on the ground that it was erroneous. It is not open to the court to interfere with the award merely because in the opinion of the court, another view is possible. The duty of the court in these circumstances is to see whether the view taken by the Arbitrator is a plausible view on the facts, pleadings and evidence before the Arbitrator. Even if on the assessment of material, the court while considering the objections under section 34 is of the view that there are two views possible and the Arbitral Tribunal has taken one of the possible views which could have been taken on the material before it, the court would be reluctant to interfere. The court is not to substitute its view with the view of the Arbitrator if the view taken by the Arbitrator is reasonable and plausible.

CIVIL

No power in a republic is irresponsible or irresponsive, the people in the last resort being the repositories and beneficiaries of public power.

G. Krishta Goud and J. Bhoomaiah  
Versus
State of Andhra Pradesh and Others

(1976) 1 SCC 157 : (1976) 2 SCR 73

(SUPREME COURT OF INDIA)

No power in a republic is irresponsible or irresponsive, the people in the last resort being the repositories and beneficiaries of public power. But two limitations exist in our Constitutional system. The Court cannot intervene everywhere as an omniscient, omnipotent or omnipresent being. And when the Constitution, as here, has empowered the nation’s highest Executive, excluding by implication, judicial review, it is officious encroachment, at once procedurally ultra vires and upsetting comity of high instrumentalities, for this Court to be a super-power unlimited. The second limitation conditions all public power, whether a court oversees or no. That trust consists in the purity of public authorities. All power, however majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed care and honestly for the public well.

8. Counsel’s contention that equality is denied in the matter of sentence where some get the benefit of clemency while others do not, has no foundation nor is there any trace of despotism involved in this matter in the case before us. The Court has deliberately awarded death sentence. The President is expected to, and we are sure will, consider all facts and circumstances bearing on the just discharge of his high duty. When the President is the custodian of the power, the Court makes an almost extreme presumption in favour of bonafide exercise. We have not been shown any demonstrable reason or glaring ground to consider the refusal of commutation in the present case as motivated by malignity or degraded by abuse of power. We therefore cannot find out way to interfere with what the President has done.

9. We must however sound a note of caution. Absolute, arbitrary, law-unto-oneself, malafide execution of public power, if gruesomely established, the Supreme Court may not be silent or impotent, Assuming as proved the case of a President gripped by communal frenzy and directing commutation of all the penalties where the convict belongs to a certain community and refusing outright where the convict belongs to a different community, there may be, as Shri Garg urged, a dilemma for the Court. Assuming the Governor in exercise of his power under Article 161 refusing to consider cases of commutation where the prisoner is above 40 years of age as a rule of thumb or arbitrarily out of personal vendatta rejecting the claim of clemency of a condemned prisoner, is the Court helpless? This large interrogation is highly hypothetical and whether the remedy is in Court or by impeachment in Parliament or by rising resentment in public opinion, it is not for us to examine now. Enough unto the day is the evil thereof.

A Constitutional order built on the founding faith of the rule of law may posit wide powers in high functionaries and validly exclude judge-power from eating these forbidden fruits. Article 72 (and Article 161) designedly and benignantly vests in the highest executive the humane and vast jurisdiction to remit, reprieve, respite, commute and pardon criminals on whom judicial sentences may have been imposed. Historically, it is a sovereign power; politically, it is a residuary power; humanistically, it is in aid of intangible justice where imponderable factors operate for the well-being of the community, beyond the blinkered court process. In Nanavati, 1961 CriLJ 173 this Court half-explored the area of ‘mercy’ power but switched on to a different question without pronouncing on the Court’s review of Presidential exercise of commutation or respite power. Sinha C J , speaking for the Court, observed :

Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty might lie, Whether the sovereign happened to be an absolute monarch or a popular republic or a Constitutional king or queen, sovereignty has always been associated with the source power the power to appoint or dismiss public servants, the power to declare war and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes.

(P. 516)

**********

“The Rule of Law, in contradistinction to the rule of man, include within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government”.

(P. 517)

 

CIVIL

Digest Indian Contract Act

A.S. Motors Pvt. Ltd. Vs. Union of India, (2013)10SCC114
Bharat Petroleum Corporation Ltd. Vs. Chembur Service Station,(2011)3SCC710
Bharat Sanchar Nigam Ltd. Vs. BPL Mobile Cellular Ltd.,(2008)13SCC597
Bharti Airtel Ltd. Vs. Union of India, 2015(6)SCALE479
Central Bank of India Vs. C.L. Vimla, 2015(5)SCALE615
Chloro Controls (I) P. Ltd. Vs. Severn Trent Water Purification Inc.,(2013)1SCC641
Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates P. Ltd.,2011(8)SCALE301
Construction & Design Services Vs. Delhi Development Authority,MANU/SC/0313/2015
Export Credit Guarantee Corpn. of India Ltd. Vs. Garg SonsInternational, (2014)1SCC686
I.S. Sikandar (D) by LRs Vs. K. Subramani, 2013 Indlaw SC 862
J.P. Builders Vs. A. Ramadas Rao,(2011)1SCC429
Mary Vs. State of Kerala, 2013(13)SCALE151
Pramod Buildings and Developers (P) Ltd. Vs. Shanta Chopra,(2011)4SCC741
State of Kerala Vs. M.K. Jose, MANU/SC/0869/2015
Swiss Timing Limited Vs Organising Committee, CommonwealthGames 2010, (2014)6SCC677
Zonal Manager, Central Bank of India Vs. Devi Ispat Ltd., (2010)11SCC186

EVIDENCE

Which Evidence the Court permits or requires to be made before it in a Suit or Proceeding [ Relevant evidence]

  1. Permissible hearsay Evidence [s 1to 16]

HERESAY EVIDENCE-Hearsay evidence is that which attempts to prove the event In question, not by the assertion of one who has personal knowledge of it, but by transmission of his extra judicial assertion through the medium of witness who knows not of the event, but of the former’s narration in respect to it.(STEFEN`S DIGEST)

2. DIRECT EVIDENCE -Direct evidence is term commonly used to denote testimony of witness asserting that he perceived with his senses the fact which is sought to be proved, as the execution of an instrument, the beating or killing of one person by another, the presence of person at given place and time, etc. In this sense it is distinguished from circumstantial evidence, which seeks to prove an act or matter, by testimony, not that any person directly perceived the act or matter, but that he perceived other things which would render the main fact or matter probable. The expression, “Oral evidence must be direct,” in Art. 62, Infra, is used in another sense, namely, that the person testify ing must speak of his own knowledge as to the matters about which he gives testimony, and not recite the hearsay statements of others.(STEFEN`S DIGEST)

3. Admission and Confession evidence [ s 17 to 30 ]

4. Statement by person not coming before the Court of Law [s 32 to 33]

5. Statements made through Documents [S 34 to 39 ]

6. Evidence in previous Judgments [ s 40 to 44 ]

7. Opinion Evidence[ expert] [s 45 to 50

8. Character Evidence  [s 52 55 ] 

A court shall Permit only  Relevant Fact or Facts in Issue forming the above eight items

“Relevant”.— One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
“Facts in issue”— The expression “facts in issue” means and includes—
any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.— Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

 

EVIDENCE

Handy explanation of Indian Evidence Act 1872

EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE AND RELEVANT FACTS —

Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation — This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations
(a)A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A’s trial the following facts are in issue:—
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.
(b)A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

EVIDENCE

What is Evidence and what is not

S 3 . EVIDENCE”.

“ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.

COMPETENT EVIDENCE-This term is used mostly as synonym of “admissible.” By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.[The word “incompetent” is frequently used in stating objections to evidence and has meaning practically identical with “Inadmissible” and “irrelevant].(STEFEN`S DIGEST)

EVIDENCE VS PROOF-There is an obvious difference between the words “evidence” and “proof.” The former, in legal acceptation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evidence.(STEFEN`S DIGEST)

Anecdote   Exceptions to the above rule [s 6 to 55 ]

Anecdote Material evidence [ Material exhibits] are not included because it need to be identified by a competent witness u/s 9. Sun gives light is a self evident fact but a dagger used in Murder is ned to be proved by credible Identification and corroboration direct witness along with opinion evidence u/ss 45 to 51.

Anecdote Circumstantial evidence is evidence per se within the exception Rules under  Exceptions to the above rule [s 6 to 55 ]

CIVIL

The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal

In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta and another, (1975) 1 SCC 858, this Court held :

“The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts.”

33. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

“Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

“Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

35. In light of the aforesaid legal position concerning jurisdiction of the High Court under Article 227, which the High Court failed to keep in mind, it must be held that in the facts and circumstances of the case and the findings recorded by the Additional Rent Controller as well as the Administrative Tribunal, High Court was not justified in interfering with the concurrent orders of eviction based on the ground of sub-letting in exercise of its power under Article 227 of the Constitution of India.

Babhutmal Raichand Oswal vs. Laxmibai R. Tarta and Anr., (1975) 1 SCC 858, dealing with supervisory power of a High Court under Article 227 of the Constitution, Bhagwati, J. (as His Lordship then was) stated;

“If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts”.

In Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, again this Court while interpreting the provisions of the Act in question, held that the High Court, while exercising powers under Articles 226 and 227 of the Constitution, cannot act like an appellate Court and re-appreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction. Only a patent error which did not require establishment by lengthy and complicated arguments or by long drawn process of reasoning is amenable to certiorari jurisdiction. If two opinions were reasonably possible, the finding arrived at one way or the other by the appellate authority, cannot be disturbed.

 

ARBITRATION

A Civil Court examining the validity of an arbitral award under Section 34 of the AC Act exercises supervisory and not appellate jurisdiction over the awards of an arbitral tribunal.

A Civil Court examining the validity of an arbitral award under Section 34 of the Act exercises supervisory and not appellate jurisdiction over the awards of an arbitral tribunal. A court can set aside an arbitral award, only if any of the grounds mentioned in Sections 34(2)(a)(i) to (v) or Section 34(2)(b)(i) and (ii), or Section 28(1)(a) or 28(3) read with Section 34(2)(b)(ii) of the Act, are made out. An award adjudicating claims which are `excepted matters’ excluded from the scope of arbitration, would violate Section 34(2)(a)(iv) and 34(2)(b) of the Act. Making an award allowing or granting a claim, contrary to any provision of the contract, would violate Section 34(2)(b)(ii) read with Section 28(3) of the Act.[J.G. Engineers Pvt. Ltd. Versus Union of India and Another AIR 2011 SC 2477 : JT 2011 (5) SC 380 : (2011) 5 SCALE 46 : (2011) 5 SCC 758]

Rent Control

The legal position of sub-tenant under Indian Law

  1. In the case of Associated Hotels of India Ltd., Delhi vs. S. B. Sardar Ranjit Singh, AIR 1968 SC 933,Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
  2. In Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others, (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
  3. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan and others, (1988) 3 SCC 57, held:

    “The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the. tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession”

  4. The question whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, fell for consideration in Gopal Saran vs. Satyanarayana, (1989) 3 SCC 56, This Court held :

    “sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. vs. H.C. Sharma ((1988) 1 SCC 70) where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty vs. Desu Rangiah (AIR 1954 Mad 182) were approved by this Court in which the legal position in Jackson vs. Simons ((1923) 1 Ch 373) were relied upon. The Madras High Court had also relied on a judgment of scrutton L.J. in Chaplin vs. Smith ((1926) 1 KB 198) of the report where it was said :

    He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them.

     

  5. A three-Judge Bench of this Court in Parvinder Singh vs. Renu Gautam and others, (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing :

    “The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

    A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction………”

     

  6. In yet another decision, a three-Judge Bench of this Court in Mahendra Saree Emporium (II) vs. G. V. Srinivasa Murthy, (2005) 1 SCC 481 considered earlier decisions, few of which have been referred above, while dealing with a matter relating to sub-letting of the premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961 and observed as follows :

    “The term “sub-let” is not defined in the Act – new or old. However, the definition of “lease” can be adopted mutatis mutandis for defining “sub-lease”. What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his subtenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee’s interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the rent control legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller, the burden of proving the availability of the ground is cast on the landlord i.e. the one who seeks eviction. In Krishnawati vs. Hans Raj ((1974) 1 SCC 289) reiterating the view taken in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548) this Court so noted the settled law (SCC p. 293, para 6) :

    “(The onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.”

    Thus, in the case of sub-letting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. In the context of the premises having been sub-let or possession parted with by the tenant by adopting the device of entering into partnership, it would suffice for us to notice three decisions of this Court. Murlidhar vs. Chuni Lal (1970 Ren CJ 922) is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant-firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub-letting. This Court discarded the contention as “entirely without substance” and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub-letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting. In Helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri ((1987) 3 SCC 538) the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for, there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere facturn of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam ((2004) 4 SCC 794) (Para 8) a three-Judge Bench of this Court devised the test in these terms (SCC p. 799, para 8) :

    “If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant”.”

     

  7. In Nirmal Kanta (Dead) Through L.Rs. vs. Ashok Kumar and another, (2008) 7 SCC 722, this Court held thus :

    “What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/ or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of sub-letting stands established.”

    28. The legal position that emerges from the aforesaid decisions can be summarised thus :

    (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

    (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

    (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

    (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

    (v) Initial burden of proving sub-letting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

    (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

     

  8. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

    “Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

    The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

    “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

 

Rent Control

Sub-tenancy under the West Bengal Premises Tenancy Act 1997

West Bengal Premises Tenancy Act 1997

26. Creation and termination of sub-tenancy to be notified. – (1) Where after the commencement of this Act, any premises is sublet, either in whole or in part, by the tenant with the previous consent in writing or the landlord, the tenant and every sub-tenant to whom the premises is sublet, shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such subletting and shall, in the prescribed manner, notify the termination of such subtenancy within one month of such termination.

(2) Where before the commencement of this Act, the tenant has, with or without the consent of the landlord, sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises has been sublet, shall give notice to the landlord of such subletting in the prescribed manner [within two years of the commencement of this Act] and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination.

(3) Where in any case referred to in sub-section (2), there is no consent in writing of the landlord, and the landlord denies that he gave any oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or by the sub-tenant within two months of the date of receipt of the notice of subletting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order, declare that the interest of the tenant in so much of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and the sub-tenant to the landlord from the date of the order. Rent so fixed shall be deemed to be the fair rent for the purposes of this Act.

  1. In the case of Associated Hotels of India Ltd., Delhi vs. S. B. Sardar Ranjit Singh, AIR 1968 SC 933,Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
  2. In Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others, (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
  3. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan and others, (1988) 3 SCC 57, held:

    “The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the. tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession”

  4. The question whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, fell for consideration in Gopal Saran vs. Satyanarayana, (1989) 3 SCC 56, This Court held :

    “sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. vs. H.C. Sharma ((1988) 1 SCC 70) where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty vs. Desu Rangiah (AIR 1954 Mad 182) were approved by this Court in which the legal position in Jackson vs. Simons ((1923) 1 Ch 373) were relied upon. The Madras High Court had also relied on a judgment of scrutton L.J. in Chaplin vs. Smith ((1926) 1 KB 198) of the report where it was said :

    He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them.

     

  5. A three-Judge Bench of this Court in Parvinder Singh vs. Renu Gautam and others, (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing :

    “The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

    A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction………”

     

  6. In yet another decision, a three-Judge Bench of this Court in Mahendra Saree Emporium (II) vs. G. V. Srinivasa Murthy, (2005) 1 SCC 481 considered earlier decisions, few of which have been referred above, while dealing with a matter relating to sub-letting of the premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961 and observed as follows :

    “The term “sub-let” is not defined in the Act – new or old. However, the definition of “lease” can be adopted mutatis mutandis for defining “sub-lease”. What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his subtenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee’s interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the rent control legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller, the burden of proving the availability of the ground is cast on the landlord i.e. the one who seeks eviction. In Krishnawati vs. Hans Raj ((1974) 1 SCC 289) reiterating the view taken in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548) this Court so noted the settled law (SCC p. 293, para 6) :

    “(The onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.”

    Thus, in the case of sub-letting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. In the context of the premises having been sub-let or possession parted with by the tenant by adopting the device of entering into partnership, it would suffice for us to notice three decisions of this Court. Murlidhar vs. Chuni Lal (1970 Ren CJ 922) is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant-firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub-letting. This Court discarded the contention as “entirely without substance” and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub-letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting. In Helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri ((1987) 3 SCC 538) the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for, there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere facturn of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam ((2004) 4 SCC 794) (Para 8) a three-Judge Bench of this Court devised the test in these terms (SCC p. 799, para 8) :

    “If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant”.”

     

  7. In Nirmal Kanta (Dead) Through L.Rs. vs. Ashok Kumar and another, (2008) 7 SCC 722, this Court held thus :

    “What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/ or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of sub-letting stands established.”

    28. The legal position that emerges from the aforesaid decisions can be summarised thus :

    (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

    (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

    (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

    (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

    (v) Initial burden of proving sub-letting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

    (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

     

  8. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

    “Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

    The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

    “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

     

 

CIVIL

Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession.

These questions are manifestations of the concepts of property know as “joint tenancy” and “tenancy-in-common”. They are marked by distinct features. Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession. Even among Hindus a joint gift or bequest creates tenancy-in-common. (Principles of Hindu Law Sir D.F Mulla, Fourteenth Edition, Pge 471).

Joint tenancy can be created by the joint tenants at the same time, usually through a deed. For example, an unmarried couple purchases a house. At the time of purchase, the real estate agent asks the couple how they want to own the home. If they opt for joint tenancy, the deed to the property will then name the two owners as joint tenants. Then if one person dies, the other person will automatically become the full owner of the property.When a property is owned by joint tenants, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. A joint tenancy can be broken if one of the tenants transfers or sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties

It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased-tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased-tenant. In other words, the heirs succeed to the tenancy as joint tenants.

In the case of coparceners of a Joint Hindu Family governed by the Mitakshara School of Hindu Law, persons inheriting a property, take the same as tenants-in-common and not as joint tenants. There is also no doubt that the estate of a lessee or a monthly tenancy is property within the meaning of Section 19 of the Hindu Succession Act. The defendants, therefore, inherited the property, namely, the monthly tenancy of their predecessor-in-interest as tenants-in-common and not as joint tenants. Section 19 of the Hindu Succession Act, 1956 states inter alia, that if two or more heirs succeed together with a property of an intestate, they should take the property save as otherwise expressly provided in the Act, per capita and not per stirpes and as tenant-in-common and not as joint tenants.

In this context, the general provisions relating to Hindu succession envisaged in the Hindu Succession Act, 1956 has significance. Section 19(b) of the said Act provides as under:

“if two or more heirs succeed together to the property of an intestate, they shall take the property , as tenants in common and not as joint-tenants”.

 joint tenancy is, that it connotes unity to title, possession, interest and commencement of title but in a case of tenancy-in-common or co-tenancy, there may be unity of possession and commencement of title, but the other two features would be absent. The Allahabad High Court in its Full Bench decision in the case of Ram Awalamb v. Jata Sankar, (FB) has explained such differences between joint tenancy and tenancy-in-common or co-tenancy in a very lucid way in paragraph 41 at pages 534-535 of the said decision in the following manner:

“41. ……. …….. …….. ……..

According to Halsbury’s Laws of England (Vol. 32, page 332) joint tenants are those who form one body of ownership. Each tenant has an identical interest in the whole land and every part of it. The title of each arises by the same act. The interest of each is the same in extent, nature and duration. Thus joint tenancy connotes four ideas — unity of title, unity of possession, unity of interest and unity of commencement of title. In a tenancy-in-common also there may be unity of possession and where title is derived from a common sale deed or by inheritance from one person it might very well commence at one and the same time. However, other ingredients which would be the main ingredients of the joint tenancy would be missing.”

Supreme Court itself in the case of Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri, . In paragraph 12 at page 2188 of its said decision, the Supreme Court observed inter alia, as follows :–

“…….. The estate of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants-in-common in specific shares. Where the heirs continue to hold the estate as tenants-in-common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule-I to the Limitation Act, 1908 would be the relevant Article.”

Tenancy rights are property rights, therefore, the same has been the subject of inheritance and rent control laws. Fundamentally, the legal relationship of the landlord and tenant are regulated and controlled by the specific statue such as the Rent Control Act. If the tenant or landlord dies intestate, the rights and obligations of the landlord and tenant, respectively, shall be governed by the provisions of Rent Control Act being a special statute. Moreover, if the special statute does not provide the method and manner in which the right of survivorship or devolution with respect to the legal heirs of landlord or tenant, as the case may be; naturally, then the provisions of Succession Act would be applicable, depending on the religion of the landlord or tenant.

 H.C. Pandey v. G.C. Paul, 1989 SC 1470. Therefore, the observations and reports in H.C. Pandey (Supra) are important which reads as under:

“It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidences of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.

CIVIL

PRECIS WRITING WITH MODEL ANSWER

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Make Precis and give suitable Title.

  1. In early civilisations, most communities were sharply divided into two classes, Precis Writing those who laboured and those who did not. The small number of rulers – kings, priests, military leaders – lived in great comfort, and did very little work. The vast majority of the population enjoyed very few comforts, did a lot of work, and had scarcely any political power. In some societies, there was an even more wretched
    class, the slaves, who had no rights at all.
    The Industrial Revolution of Europe led to the production of vast quantities of goods, and workers began to be dissatisfied with their poverty. The factory owners needed skilled workers, and gradually they realised that they must show goodwill to their workforce, in order to stay in business. As in many other reforms, some enlightened slowly spread that workers were entitled to some consideration. Since men were free to work for any master they chose, good master soon had the pick of the workers and old-fashioned employers found themselves with a factory full of lower-grade workforce. Such a situation soon led to an all-round improvement in standards, and good employers tried to raise working conditions still higher. These improvements were speeded up by the increased orgnisation of workers in Trade Union movements, particularly in low-standard factories, where the owner often had to deal with strike action by dissatisfied workers.
    Now that the working classes are getting better and better working conditions, the need to strike has lessened considerably; and employers and workers alike have come to realise that they depend on each other for their livelihood. (292 words)

INDUSTRIAL REVOLUTION AND THE WORKING CLASS

ANSWER: An important feature of this century is the improvement of the lot of the workers. In earlier ciyilisations, kings, priests, etc., lived confortably doing little, while the majority vhrked hard with few comforts and rights. Some societies had slaves too. During the Industrial Revolution, production increased and workers started feeling
dissatisfied. Clever employers attracted the best workers by offering better conditions and thus led to improvement in production. Some employers thought that workers had a right to better conditions. Soon Trade unions were organised to fight for workers rights with srrikes, if necessary. Now, there is increasing realisation of the mutual dependence of employers and their workers. (107 words)

2. The chief object of the repetitive form of advertisement is to help people to remember the prduct. The general principle is similar to that followed by Bajaj Automotives Ltd: “You just can’t beat a bajaj”. The repetition of a phrase, the inclusion of a trade name or a trade mark in every advertisement; is intended to impress upon the mind of the reader listener that name or phrase or picture. The response sought by the advertiser is achieved when a customer enters a shop for, say, toothpaste. To the shop-keeper’s question, “hy particular brand, please?, . the customer gives the reply that is in his mind, not necessarily because he has arrived at a decision by any process of reasoning, nor because some strong feeling has been aroused for some particular brand, but simply because he has repeatedly seen the name, wd it is associated in his mind with the idea of a good toothpaste. k Some trade names become so common that they displace the true name of the commodity itself, such as ‘vaseline’, the well-known trade name for ‘petroleum jelly’. Advertisements which have relied on repetition have, in the past, proved very powerful, b”t with the increased variety of proprietary articles and products
intended for the same purpose, this kind of advertising is losing some ok its value because of the confusion of names that arise in a customer’s mind when he wishes
to buy, say, cigarettes, tobacco, soap, chocolates, tea and other goods which are widely used. (248 words)

ADVERTISING BY REPETITION

ANSWER: The use of repetition is the simplest form of advertising. In advertisements, repeated use of a particular phrase or trade-mark aims to make such an impression on the customer that he will tend to buy that product. Indeed, some trade-names, ‘vaseline’ for example, have become so well known that they are used instead of the real name of the products. Owing to the large number of consumer articles and products now in the market, advertising by repetition is less effective than it was in the past. (87 words)

Make Precis and give suitable Title.

1]  Trees give shade for the benefit of others, and while they themselves stand in the sun and endure the scorching heat, they produce the fruit of which others profit. The character of good men is like that of trees. What is the use of this perishable body if no use is made of it for the benefit of mankind? Sandalwood, the more it is rubbed, the more scent does it yield. Sugarcane, the more it is peeled and cut up into pieces, the more juice does it produce. The men who are noble at heart do not lose their qualities even in losing their lives. What matters whether men praise them or not? What difference does it make whether they die at this moment or whether lives are prolonged? Happen what may, those who tread in the right path will not set foot in any other. Life itself is unprofitable to a man who does not live for others. To live for the mere sake of living one’s life is to live the life of dog and crows. Those who lay down their lives for the sake of others will assuredly dwell forever in a world of bliss.

Precis

Good men live for others
The character of good men is like that of trees. They live for others and do not lose their qualities even in losing their lives. They always follow the right path. Praise is immaterial to them To live for one’s own sake is to lead the life of beasts. Only those who lay down their lives for others will live for ever in a world of bliss.

2] It is physically impossible for a well-educated, intellectual, or brave man to make money the chief object of his thoughts just as it is for him to make his dinner the principal object of them. All healthy people like their dinners, but their dinner is not the main object of their lives. So all healthy minded people like making money ought to like it and enjoy the sensation of winning it; it is something better than money.

A good soldier, for instance, mainly wishes to do his fighting well. He is glad of his pay—very properly so and justly grumbles when you keep him ten years without it—till, his main mission of life is to win battles, not to be paid for winning them. So of clergymen. The clergyman’s object is essentially baptize and preach not to be paid for preaching. So of doctors. They like fees no doubt—ought to like them; yet if they are brave and well-educated the entire object to their lives is not fees. They on the whole, desire to cure the sick; and if they are good doctors and the choice were fairly to them, would rather cure their patient and lose their fee than kill him and get it. And so with all the other brave and rightly trained men: their work is first, their fee second—very important always; but still second.

Precis

Money-making is a common attraction in life. But it cannot be the principal aim of well educated, cultured and brave man. A brave soldier prizes honour and victory more than his pay. A good clergyman is more interested in the moral welfare of his people than his returns. A doctor (good) values the care of his patient far more than his fees. Thus with all the well-educated, intellectual persons, their work is first, money next.

3] Home is the young, who known “nothing of the world and who would be forlorn and sad, if thrown upon it. It is providential, shelter of the weak and inexperienced, who have to learn as yet to cope with the temptations which lies outside of it. It is the place of training of those who are not only ignorant, but have no yet learnt how to learn, and who have to be taught by careful individual trail, how to set about profiting by the lessons of teacher. And it is the school of elementary studies—not of advances, for such studies alone can make master minds. Moreover, it is the shrine of our best affections, the bosom of our fondest recollections, at spell upon our after life, a stay for world weary mind and soul; wherever we are, till the end comes. Such are attributes or offices of home, and like to these, in one or other sense or measure, are the attributes and offices of a college in a university.

Precis

Home shelters the young who are weak and inexperienced and unable to face the temptations in life. It is a centre of their elementary education and a nursery of sweet affections and pleasant memories. Its magic lasts forever. A weary mind turns to it for rest. Such is the function of a home and in some measure of the

4] Teaching is the noblest of professions. A teacher has a scared duty to perform. It is he on whom rests the responsibility of moulding the character of young children. Apart from developing their intellect, he can inculcate in them qualities of good citizenship, remaining neat and clean, talking decently and sitting properly. These virtues are not easy to be imbibed. Only he who himself leads a life of simplicity, purity and rigid discipline can successfully cultivate these habits in his pupils.

Besides a teacher always remain young. He may grow old in age, but not in spite. Perpetual contact with budding youths keeps him happy and cheerful. There are moments when domestic worries weigh heavily on his mind, but the delightful company of innocent children makes him overcome his transient moods of despair.

Precis

Teaching is the noblest profession. A teacher himself leading a simple, pure and disciplined life can mould the character of the young children and make them neat and good mannered citizens. Besides he remains every young forgetting his own domestic worries in the constant company of the young.

5] English education and English language have done immense goods to India, inspite of their glaring drawbacks. The notions of democracy and self-government are the born of English education. Those who fought and died for mother India’s freedom were nursed in the cradle of English thought and culture. The West has made contribution to the East. The history of Europe has fired the hearts of our leaders. Our struggle for freedom has been inspired by the struggles for freedom in England, America and France. If our leaders were ignorant of English and if they had not studied this language, how could they have been inspired by these heroic struggles for freedom in other lands? English, therefore, did us great good in the past and if properly studied will do immense good in future.

English is spoken throughout the world. For international contact our comrherce and trade, for the development of our practical ideas, for the scientific studies, English-is indispensable “English is very rich in literature,” our own literature has been made richer by this foreign language. It will really be a fatal day if we altogether forget Shakespeare, Milton, Keats and Shaw.

Precis

Notwithstanding its various defects English education has done great good to India. The ideas of democracy and self-government are its gifts. Nursed on English education the Indian leaders were inspired by the Western thought, culture and freedom struggles. They fought for and won their motherland’s freedom. Being spoken thought-out the world English is necessary for interna­tional contact, trade, commerce and science. English is rich in literature; its master mind cannot be neglected.

6] When we survey our lives and efforts we soon observe that almost the whole of our actions and desires are bound up with the existence of other human beings. We notice that whole nature resembles that of the social animals. We eat food that others have produced, wear clothes that others have made, live in houses that others have built. The greater part of our knowledge and beliefs has been passed on to us by other people though the medium of a language which others have created. Without language and mental capacities, we would have been poor indeed comparable to higher animals.

We have, therefore, to admit that we owe our principal knowledge over the least to the fact of living in human society. The individual if left alone from birth would remain primitive and beast like in his thoughts and feelings to a degree that we can hardly imagine. The individual is what he is and has the significance that he has, not much in virtue of the individuality, but rather as a member of a great human community, which directs his material and spiritual existence from the cradle to grave.

Precis

Being social animals, human beings have their actions and desires bound up with society. In matter of food, clothes, knowledge and belief they are interdependent. They use language created by others. Without language their mental power would not grow. They are superior to beast, because they live in human society. An individual life left alone from birth would grow utterly beast like. So human society and not individuality guides man’s material and spiritual existence.

7] All human beings are liable to err. To be at peace with oneself,the realization of this fact is essential.Humanity is faced with numerous struggles and difficulties.We should view our own problems as part of a universal struggle and brace ourselves to meet every difficulty with fortitude.To be frantic and desperate n such occasions cannot help the situation .Perhaps the greatest folly is for each of us to hug his troubles to himself.Often the path through our worst worries can be made smoother if we seek the guidance of a trusted friend. But there are limits to human wisdom.The only adequate way to endure large evils is to find large consolations.The key to this search is prayer.The faith in a beneficent “Higher Power” can carry us through our most anxious moments.It has cured many people of their diseases and banished melancholy from their hearts.It was faith in God coupled with hardwork, which enabled Alexis Carrel to face ridicule and rejection calmly and finally became the recipient of the Nobel Prize.Finally ,how much less we should be if we could see our struggle as a part of the struggle of a whole creation intent on growth and renewal. By doing so, we not only make our lives easier ,but we also add our bit to the sum of human dignity and faith.

Precis

Man is not perfect so one should not take his mistakes on heart and consider his problems as universal struggle.The best way to combat evils and hopelessness,one should rely on divine medicine,that is prayer and faith in Almighty.Only hard work along with faith leads to success like as Alexis Carrel who achieved Nobel prize.One should consider his individual struggle as contribution in betterment of humanity.

CIVIL

Precis writing for Examinations

FROM PREVIOUS PAGE

  1. Men and women are of equal rank but they are not identical. They are be peerless pair being supplementary to one another, each helps the other so that without one the existence of the other cannot be conceived and, therefore it follows as a necessary corollary from these facts that anything that will impair the status of either of them will involve the equal ruin of them both. In framing any scheme of women’s education this cardinal truth must be constantly kept in mind. Man is supreme in the outward activities of a married air and therefore it is in the fitness of things that he should have a greater knowledge thereof. On the other hand, noise life is entirely the sphere of woman and, therefore in domestic affairs, in the upbringing and education of children, woman ought to have more knowledge Not that knowledge should be divided into water tight compartment’s or that so that some branches of knowledge should be closed to anyone, but unless courses of instruction are based on discriminating appreciation of these basic principles, the fullest life of man and woman cannot be developed. Among the manifold misfortunes that may befall humanity, the loss of health is one of the severest. All the joys which life can give cannot outweigh the sufferings of the sick. Among the manifold misfortunes that may befall humanity, the loss of health is one of the severest. All the joys which life can give cannot outweigh the sufferings of the sick.[word:251]
  2. Almost every country in the world believes that it has some special dispensation from Providence, that it is of the chosen people or race and that others, whether they are good or bad, are somewhat inferior creatures. It is extraordinary now this kind of feeling persists in all nations of East as well as of the West without exception. The nations of the East are strongly entrenched in their own ideas and convictions and sometimes in their own sense of superiority about certain matters. Anyhow in the course of the last two or three hundred years, they have received many knocks on the head and they have been humiliated, and they have been debased and they have been humiliated, and they have been debased and they have been exploited. And so, in spite of their feeling that they were superior in many ways, they were forced to admit that they could be knocked about and exploited. To some extent, this brought a sense of realism to them. Three was also an attempt to escape from reality by saying that it was sad that we were not so advanced in material or technical things but that these were after all superficial things. Nevertheless we were superior in essential things, in spiritual things and moral values. I have no doubt that spiritual things and moral values are ultimately more important than other things, but the way one finds escape in the thought that one is spiritually superior simply because one is inferior in a material and physical sense, is surprising. It does not followed by any means. It is an escape from facing up the causes of one’s degradation.[word:- 278]
  3. India has witnessed great expansion of educational opportunities since the attainment of independence. However, the disables children have not yet benefited in any substantial manner from the growth in educational facilities. Education of handicapped children, ultimately become more dependent and non productive. It is therefore believed that scarce national resources should not be wasted on them. Further, it has been our misconceived notion that the education of handicapped children requires highly specialized people and as such, it must essentially be very costly. Maybe, precisely for these wrong notions we have not been able to involve clinical and educational specialization programmers of training and education exclusively meant for handicapped children. It is encouraging to note that the new National Policy on Education has recommended the placement of such children in regular schools so as to provide them integrated education along with normal students. The integrated education will take care of the different needs of various categories and types of disabled children. The objective is to place the disabled children in ordinary schools for imparting education with the help of special teachers, aids and other resources. For fulfilling this objective an array of the necessary infrastructure by way of training of teachers, provision of equipment and book etc are some of the basic pre-requisition. Hopefully, the parents and their handicapped children will be greatly relieved when the latter are transferred to regular schools. [WORD: 231 ]
  4. A drop of water fell out of the cloud into the sea, and finding itself lost in such an immensity of fluid matter, broke out into the following reflection: ‘Alas! What an inconsiderable creature am I in this prodigious ocean of waters: My existence is of no concern in the universe; ‘I am reduced to a kind of nothing, and am the least of the works of God’. It so happened that an oyster which lay in the neighbourhood of this drop chanced to gape and swallow it up in the midst of this his soliloquy. The drop, say the fables, lay a great while hardening in the shell, until by degrees it was ripened into a pearl, falling into the hands of a diver, after a long series of adventures, is at present that famous pearl which is fixed on the top of the Persian diadem.

ANSWER: Once, a drop of water, while falling into the sea, ruminated on its inconsequential existence in the vast ocean. Just then, an oyster swallowed it. The water drop, embedded in the shell, became a pearl in due course. A diver got it. After changing many hands, it now decorates the Persian crown .

5. Odisha, a small state in the east coast of India, was battered by Cyclone Philine in the last weekend. The cyclone came from the Bay of Begal. It was the result of a low pressure area developing in the sea. From a location a few hundred kilometers off the coast, Cyclone Philine gradually moved towards the land. The wind speed was nearly 220 kilometers per hour. The violent wind hit villages near the coastline with deadly force. Mud houses were flattened, trees uprooted and power lines were reduced to tangled heaps of wire. Fortunately, weather radars tracked the Philine doggedly as a result of which people were evacuated from their houses that fell in the projected path of Cyclone Philine. Millions of people were quickly moved to temporary shelters with remarkable efficiency. This reduced the death toll to negligible numbers. It was a remarkable success of disaster management in India. In another operation, the Coast Guard spotted a cargo ship at night that had tilted dangerously in the waters a few kilometers off Bengal. Responding to its SOS call, the Coast Guard rushed to its rescue and lifted out the sailors who were floating on their life boat in the dark near their ship.

ANSWER: Odisha suffers Nature’s Fury

Three days ago, Cyclone Philine coming from a low-pressure area in the Bay of Bengal tore through the coastal areas of the small eastern Indian state Odisha. With 220 kmph wind-speed, it flattened houses, and uprooted trees and power lines. Disaster management personnel evacuated millions to safety from the radar-predicted cyclone path. Also, the Coast Guard rescued some sailors from their life boat at night. Their ship had careened dizzily in the sea.

6. Trees give shade for the benefit of others, and while they themselves stand in the sun and endure the scorching heat, they produce the fruit of which others profit. The character of good men is like that of trees. What is the use of this perishable body if no use is made of it for the benefit of mankind? Sandalwood, the more it is rubbed, the more scent does it yield. Sugarcane, the more it is peeled and cut up into pieces, the more juice does it produce. The men who are noble at heart do not lose their qualities even in losing their lives. What matters whether men praise them or not? What
difference does it make whether they die at this moment or whether lives are prolonged?
Happen what may, those who tread in the right path will not set foot in any other. Life itself is unprofitable to a man who does not live for others. To live for the mere sake of living one’s life is to live the life of dog and crows. Those who lay down their lives for the sake of others will assuredly dwell forever in a world of bliss.

Good men live for others
The character of good men is like that of trees. They live for others and do not lose their qualities even in losing their lives. They always follow the right path. Praise is immaterial to them. To live for one’s own sake is to lead the life of beasts. Only those who lay down their lives for others will live forever in a world of bliss

7. Make a précis in about 110 words of the following passage and give it a title

The Department of Industrial Policy and Promotion (DIPP) will start working closely with banks to kick-start the government’s Start-Up India initiative in both rural and urban India. Commerce and Industry Minister Nirmala Sitharaman said the government would ensure that startups don’t run out of money and that their equity requirements don’t go unattended. The minister was talking to the media on the sidelines of a FICCI event.

The department is spearheading the Start-Up India initiative announced by Prime Minister Narendra Modi in his Independence Day address. Sitharaman said DIPP would work with banks across the country, especially in rural areas. “If each of these (bank) branches gives tribal or Dalit population something to start up with, it would take the whole startup and innovate India (initiative) thought to district level,” she said.

DIPP is also working on ways to reach out to the urban educated and the deprived section of the society to build entrepreneurship. “All over the country, youngsters are coming up with ideas of entrepreneurship. They don’t have time to wait, we don’t have time to lose,” Sitharaman said. The commerce minister said there is a need for greater participation of industry in driving ahead the movement of Skill India. “India needs an ecosystem where talent and skills can be nurtured. Through our 10,000 crore fund of fund for startups, we will provide soft loans, capital to those who want to start fresh enterprises,” she said.

The skill development and entrepreneurship ministry currently offers certified training in 31 different sectors under the Pradhan Mantri Kaushal Vikas Yojana. Sitharaman, in another event organized by the Confederation of Indian Industry, said India, which ranked 142 in the World Bank’s Ease of Doing Business Report this year, is likely to fare better next year since the government has initiated certain reforms to improve the standing. [WORD: 302]

Title- ‘Entrepreneurship: The Future of India’

The government has understood the importance of entrepreneurship and development of new ideas to make the country industrially developed. It has launched several programmes to support the youngsters financially by helping those getting loans without much hassle as well as with skill development in various disciplines. The government is also ensuring that both the rural and urban areas get the benefit of these schemes. This will make the new ideas sustainable in the long run because the young generation will be encouraged to take up entrepreneurship initiatives with fresh ideas. This approach of the government is expected to make India a better destination in the world to do business.

CIVIL

Precis Writing for Judicial Examinations

A  précis is a clear, concise, and logical summary of a passage preserving its essential ideas.

What to do 

  1. Read the paragraph and count the words
  2. Write important points and link them
  3. Start writing the paragraph and review them
  4. While writing, don’t go back and read the paragraph again
  5. Edit and modify
  6. Number of words in Precis should of 1/3 of the actual paragraph
  7. Don’t change the central idea of the paragraph
  8. Retain the keywords of the paragraph
  9. Don’t waste your time in counting words, instead count lines.
  10. Your precis should be completed in one paragraph only
  11. Avoid weak sentences
  12. Don’t give your personal opinion
  13. Don’t use any idiom of your own
  14. Never conclude anything of your own
  15. Never assume anything
  16. Give a name of the Precis, reflecting the theme.

 

1.

There is an enemy beneath our feet – an enemy more deadly for his complete impartiality. He recognizes no national boundaries, no political parties. Everyone in the world is threatened by him. The enemy is the earth itself. When an earthquake strikes, the world trembles. The power of a quake is greater than anything man himself can produce. But today scientists are directing a great deal of their effort into finding some way of combating earthquakes, and it is possible that at some time in the near future mankind will have discovered a means of protecting itself from earthquakes.An earthquake strikes without warning. When it does, its power is immense. If it strikes a modern city, the damage it causes is as great as if it has struck a primitive village. Gas mains burst, explosions are caused and fires are started. Underground railways are wrecked. Buildings collapse, bridges fall, dams burst, gaping crevices appear in busy streets.If the quake strikes at sea, huge tidal waves sweep inland. If it strikes in mountain regions, avalanches roar down into the valley. Consider the terrifying statistics from the past 1755: Lisbon, capital of Portugal – the city destroyed entirely and 450 killed. 1970: Peru: 50,000 killed.In 1968 an earthquake struck Alaska. As this is a relatively unpopulated part, only a few people were killed. But it is likely that this was one of the most powerful quakes ever to have hit the world. Geologists estimate that during the tremors, the whole of the state moved over 80 feet farther west into the Pacific Ocean. Imagine the power of something that can move an entire subcontinent! This is the problem that the scientists face. They are dealing with forces so immense that man cannot hope to resist them. All that can be done is to try to pinpoint just where the earthquake will strike and work from there. At least some precautionary measures can then be taken to save lives and some of the property. (330 Words)’

Earthquake – the deadly enemy of mankind.
Damage caused by an earthquake in general.
Damage caused by an earthquake-in particular,
What can the scientists do?

Earthquake – The Great Destroyer

Earthquake is the mankind’s deadly enemy. Earthquake strikes all without a distinction of nationality or political affiliation. The power of a quake is greater than that of any man-made weapon of destruction. An earthquake strikes mankind without a warning. A modern city when struck is reduced -to a nibble. A quake strikes plains, seas and mountains causing all round destruction. The quake struck Lisbon in 1755 killing 450; Peru in 1970 killing 50,000; Alaska in 1968 moving it 80 feet into the Pacific Ocean. Scientists are trying to find out means to combat earthquakes, to predict the origin of the quake so that precaution can be taken to save man and property from destruction.(115 words) 

Write a Precis of the following passage.

One of our most difficult problems is what we call discipline and it is really very complex. You see, society feels that it must control or discipline the citizen, shape his mind according to certain religious, social, moral and economic patterns.

Now, is discipline necessary at all? Please listen carefully. Don’t immediately say YES or NO. Most of us feel, especially while we are young, that there should be no discipline, that we should be allowed to do whatever we like and we think that is freedom. But merely to say that we should be free and so on has very little meaning without understanding the whole problem of discipline.

The keen athlete is disciplining himself the whole time, isn’t he? His joy in playing games and the very necessity to keep fit makes him go to bed early, refrain from smoking, eat the right food and generally observe the rules of good health. His discipline and punctuality is not an imposition but a natural outcome of his enjoyment of athletics. [171 words]

Hints: Though discipline seems to be a problem, it is necessary for all. Discipline shapes our mind and regulates our habits. Some want to be free and think that it is not necessary. Discipline and punctuality give enjoyment to athletes.

TITLE:-  DISCIPLINE IS IMPORTANT

Write a Precis of the following passage.

There are different types of forests in India. So, the products received from these forests are also several. The following are some of the forest products which are important in the growth and development of industries.

Forest products and the industries based on them:

(i) Timber : Timber from the forest are utilised in building activities, industries and in carpentry workshops. In Andaman Islands, Asia’s largest saw mill has been in operation.

(ii) Rubber : Rubber trees are grown in large numbers on the Western Ghats. As a consequence, there are a large number of industries dependent on rubber in the Peninsular India.

(iii) Wood Pulp : Wood pulp is made from the wood of the forests and paper is manufactured from the pulp. Paper mills are large in number in the States of Tamil Nadu, Maharashtra, West Bengal and Madhya Pradesh. In the city of Nepa in Madhya Pradesh, there is a newsprint industry.

(iv) Lac and Wax : Lac and Wax are forest products and they are used in manufacturing paints. Thus a number of industries make use of forest products.

(v) And for the growth of the cottage industries the forests have been responsible in many an instance. [197 WORDS]

FOREST PRODUCTS

Many forest products are useful to man. Timber, rubber, Wood pulp, Lac and Wax are some of them. Timber is used for building activities. Rubber is useful for making many things. Wood pulp is used for making paper. Lac and Wax are used in making paints. There are many industries in India which depend on forest products.

Write a Precis of the following passage.

Prevention is better than cure. It is recognised that the only way to get rid of malaria completely is o get rid of the mosquitoes which cause it. Malaria is always associated with damp and marshy land. This is not because the land is damp, but because the static water is the breeding place of the mosquitoes which begin their life as a larva in the water. Malaria does not frequently occur in dry desert countries because mosquitoes can not breed there. The only way to destroy mosquitoes is to prevent their breeding in static water. This can be done by draining all ponds and pools. And by keeping them covered in the breeding season with a film of kerosene oil which by depriving the larva of air, kills them.

Points 

 

  • Prevention is better than cure.
  • Mosquitoes cause malaria.
  • We should get rid of malaria.
  • The static water is the breeding place of mosquitoes.
  • If the land is dry, the mosquitoes will not breed there.
  • WE should destroy the mosquitoes by draining all ponds and pools.
  • Another way to destroy the mosquitoes is to cover the ponds and the pools with a layer of kerosene oil.
  • The larvas get air and ultimately die.

TIPS

  1. Summarize each section. Use your notes to write a brief summary for each section or paragraph, restricting the length to one or two sentences.
  2. Review and revise. Read through your précis. It should clearly express the original meaning of the text while retaining the same basic tone.
  3. Write in the present tense and maintain that tense throughout the paragraph.  Use active voice instead of passive voice.

2

Write a Precis of the following passage.

In her essay “Cyberspace and Identity” (1999), Sherry Turkle argues that “today’s life on the screen dramatizes and concretizes a range of cultural trends that encourage us to think of identity in terms of multiplicity and flexibility” . Turkle supports her assertion by juxtaposing theories of cyberspace and identity formation with older understandings of identity found in psychology, sociology, and philosophy. Her purpose is to show readers that theories on cyberspace and identity, which claim that identity is multiple and cyclical, do not overturn, but rather add to our understandings of identity in order to encourage her audience “to rethink our relationship to the computer culture and psychoanalytic culture as proudly held joint citizenship” (278). Turkle’s tone assumes a highly educated audience who is familiar with theories not only of cyberspace and identity, but sociology and psychology as well.

TIPS

MAINTAIN THE FOLLOWING WHILE WRITING A PRECIS

  • Clarity, which means your reader should understand what a writer intended to convey. Achieve it through using simple language and structure of your precis.
  • Correctness, which means you should watch spelling, grammar, and punctuation you use, as well as facts, figures, and dates you address.
  • Coherence, which means the logical interconnection of the original’s ideas. Your audience shouldn’t lose their interest while reading.
  • Conciseness, which means avoiding unnecessary details in your précis. Don’t omit essential facts but avoid wordy expressions, repetitions, wateriness, etc.

Write a Precis of the following passage

Water is the basis of all life. Every animal or every pliant contains a substantial proportion of free or combined water in its body and no kind of physical activity is possible in which water does not play an essential part. Water is necessary for animal life, while moisture in the soil is equally imperative for life and growth of plants and trees, though the quantity necessarily varies enormously from plant to plant.
The conservation and utilization of water is thus fundamental for human welfare. The main source of water is rainfall or snowfall. Much of Indian agriculture depends on seasonal rainfall and is therefore, very sensitive to any failure or irregularly of the some. During the rainy season large quantities of rain water flow down into the streams and rivers and ultimately find their way to the sea, and are, therefore, lost to the country. The harassing of our rivers is, therefore, it great national problem to be dealt with no national lines. Vast areas of land which at present are mere scrub, jungles could be turned into fertile and prosperous country by harassing this source of water.

Title: – Conservation and Utilization of Water.

Precis: – Water being so necessary for animal and plant life should be harnessed to our own use. The main source of water is rain. Most of
the rain water goes into rivers. This water must be used for making our barren land fertile. The conservation and utilization of water is,
therefore, a great national problem to be dealt with at the national level.

Write a Precis of the following passage

As early as the sixth or seventh century B.C. Panini wrote his great grammar of the Sanskrit language. He mentions previous grammars and already in his time Sanskrit had crystallized and become the language of an ever-growing literature. Panini͛s book is something more than a mere grammar. To has been described by the Soviet. Professor Th. Stcherabatsky, of Leningrad, as one of the greatest productions of the human mind Panini is still the standard authority on Sanskrit grammar. Through subsequent grammarians have added to it and interpreted it. It is interesting to note that Panini mentions the Greek script. This indicates that there were some kind of contacts between India and the Greeks long before Alexander came to the East. The study of astronomy was specially pursued and it often merged with astrology. Medicine had its textbooks and there were hospitals. Dhanwantri is the legendary found of the Indian science of medicine. The best known old textbooks however, date from the early centuries of the Christian era. These are by Charka on medicine and Sushruta on surgery. Charka is supposed to have been the royal court physician of kanishka who had his capital in the north-West.
These text books enumerate a large number of diseases and give methods of diagnosis and treatment. They deal with surgery, obstetrics, baths, diet, hygiene, infant feeding, and medical education. The approach was experimental, and dissection of dead bodies was being practiced in course of surgical training. Various surgical instruments are mentioned by Sushrutas, as well as operations including amputation of limbs, abdominal, caesarean section, cataract, etc. Wounds were sterilized by fumigator. In the third or fourth century B.C. there were also hospitals for animals. This was probably due to the influence of Jainism and Buddhism with their emphasis on non- violence. [300 WORDS]

Title:- India advancement in the Ancient Ages.

Precis:- Panini wrote his great grammar of Sanskrit in the 6th century B.C. This grammar is the standard grammar of Sanskrit language. In ancient India, the study of astronomy was merged with astrology. Medicine was also much developed at that time, Charka wrote books on medicine and Shushruta wrote on surgery. These books deal with many diseases and the methods of their treatment. They also deal with surgery, obstetrics, hygiene and medical education. Surgery was also much developed. The sterilization of wounds was known to physicians of that time. Due to the influence of Jainism and Buddhism, there were hospitals for animals in India in the third or fourth century.[109 WORDS]

Write a Precis of the following passage

It is physically impossible for a well-educated or brave man to make money the chief object of his thoughts, just as it is for him to make his dinner the principal object of them. All healthy people like their dinners, but their dinner is not the main object of their lives. So all healthy minded people like making money—ought to like it and enjoy the sensation of winning it; it is something better than money. A good soldier, for instance, mainly wishes to do his fighting well. He is glad of his pay—very properly so, and justly grumbles when you keep him ten years without it—still his main notion of life is to win battles, not to be paid for winning them. So of clergyman͛s object is essentially to baptize and preach, not to be paid for preaching. So of doctors. They like fees no doubt, — out to like them; yet if they are brave and well educated, the entire object of their lives is a not fee. They, on the whole, desire to cure the sick, and, if they are good doctors, and the choice were fairly put to them, would rather cure their patient and lose their fee than kill him and get it. And so with all the other brave and rightly trained men; their work is first, their fee second – very important always, but still second.[233 WORDS]

Duty First, Fee afterward

Precis: Moneymaking is not the sole object of the well educated, intellectual, or brave men. A brave soldier͛s main notion of life is to fight to win battles, not to be paid for winning them. A noble clergyman is concerned more with the welfare of the humanity than his pay. A good doctor desires far more to cure his patient than to get his fee. Thus, for all cultured people, their duty comes first, then their fee. [76 Words]

NEXT PAGE

Intellectual Property

Role Of Indian Judiciary In IPR Development And Adjudication

The principal function of Judiciary is to provide legal remedies against infringement of personal and property rights of persons.  Intellectual property is inchoate property when manifested in a legally recognizable way. Property right was, till the deletion of Article 19(1)(f) of the Constitution of India, a fundamental right for citizens, but now under Article 300-A it is separately notified as a Constitutional right ensuring that no person can be deprived of his property save by the authority of law.

Article 300-A of the Constitution of India guarantees that no person shall be deprived of property save by authority of law.

This provision in reference to IP ensures the right of the inventor/author over his or her invention/work. The enforcement of contractual obligations under contracts dealing with IP tantamounts to creating the intellectual property. There are different forms of IP  protection available in India:
1. Patent
2. Designs
3. Trade mark and service mark
4. Copyright
5. Plant varieties and plant breeder’s rights (under consideration of Parliament)
6. Trade secrets (along with data protection)
7. Geographical indications

In the field of intellectual property, injunction is almost always prohibitory in nature. Till the infringement of a right is established at the trial, interlocutory injunction would constitute a temporary redress to be granted at the discretion of the court and has great deal of practical efficacy.
The interim period is sometimes very long because of the delays in the disposal of the trial. It would therefore be important for the courts to invariably impose a condition on the plaintiff to undertake to make good any damage suffered by any defendant from the injunction, should the plaintiff fail at the trial. Thus it was already within the jurisdiction of the Indian Courts to make orders under the procedural rules contained in the Code like Anton Piller order or the Mareva injunction.

Case Reference

Dr. Reddy’s Laboratories Limited v. Manu Kosuri And Another, 2001 (58) DRJ 241

ISSUE:

Whether the mark/domain name is identical with or deceptively similar to the plaintiffs trade mark DR. REDDY’S for internet related services or any other business as may lead to dilution of the distinctiveness of the said trademark of the plaintiff?

Wipro Cyprus Private Limited v. Zeetel Electronics, 2010 (44) PTC 307

ISSUES
(1) Whether an order of interim injunction restraining the Respondent from manufacturing,selling, advertising and offering for sale using the trade mark YARDLEY or any other similar sounding expression could be granted?
(2) Whether an order of interim injunction restraining the Respondent from using the impugned name YARDLEY upon or in relation to any of their product including talcum powder, body spray and other cosmetic and toiletry preparation or any other name/marks which may be  identical to or deceptively similar to the applicant corporate name, trade mark YARDLEY could be granted?

Amar Nath Sehgal v. Union of India,2005 PTC (30) 253

ISSUE
Whether the plaintiff has rights under Section 57 of the Copyright Act,1957 in the impugned work although the copyright in the same has been vested to the defendant and whether the defendant violated the plaintiff’s rights under Section 57 of the said Act?

Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. AIR 2004 SC 3540

ISSUE
Whether domain name can be said to be word or name capable of distinguishing subject of trade or service made available to potential users of internet and whether principles of trade mark law and in particular, those relating to passing off, apply?

Held, yes. The original role of a domain name was no doubt to provide an address for computers on the internet. But the internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a  domain name can be said to be a word or name which is capable of distinguishing the subject of trade or service made available to potential users of the internet

Gramophone Co. Of India Ltd v. Mars Recording Pvt. Ltd. & Another 1996 PTC (16) 252

Supreme Court affirmed the decision given by the Trial Court in Bangalore and granted a temporary injunction in favor of the respondents. And further directed that the suit be tried and disposed of by the Trial Court within a period of six months.

Merck Sharp & Dohme Corporation & Ors. v. Glenmark Pharmaceuticals Ltd.
CS(OS) 586/2013, CC No. 46/2013, I.A. Nos. 9827/2013, 8048/2014 and 13626/2015 : MANU/DE/2963/2015

Whether the Defendants have infringed the Patent of the Plaintiff?

Symed Labs Ltd. v. Glenmark Pharmaceuticals Ltd.
CS (OS) No. 678/2013: MANU/DE/0163/2015

Whether suit for ad interim injunction restraining Defendants, their agents from manufacturing, selling, offering for sale, advertising or directly or indirectly dealing in product Linezolid manufactured in a manner so as to result in infringement of Plaintiff’s registered patent was liable to be granted to Plaintiff ?

Dr. Aloys Wobben and Anr. v. Yogesh Mehra and Ors.
Civil Appeal No. 6718 of 2013 : MANU/SC/0519/2014

Whether Defendant in an “infringement suit”, having raised a “counter-claim” seeking revocation of a patent, could file “revocation petition” before “Appellate Board” and that whether remedies, expressed in Section 64(1) of Patents Act, cannot be availed of by same person, simultaneously?

Kamal Trading Co. and Ors. v. Gillette U.K. Ltd.
1988 (8) PTC 1 (BOM)

whether the goodwill in the trade mark “7 O’CLOCK” stood extinguished because of nonavailability of blades with the mark in India after year 1958?

N.R. Dongre and Ors. v. Whirlpool Corpn. and Anr.
(1996)5SCC714

ISSUE
whether the exercise of discretion by the trial court is favour of the plaintiffs to grant the
interlocutory injunction is in accordance with the settled principles of law regulating grant of interlocutory injunctions or not and whether there is any cogent ground to interfere in this appeal with the exercise of discretion by the trial court?

Yahoo! Inc. v. Sanjay V. Shah and Ors.
2006 (32)PTC 263 (Del )

ISSUE
Whether the Trademark of the Plaintiff has been infringed?

Sholay Media and Entertainment Pvt. Ltd. and Ors. v. Parag Sanghavi and
Ors.
2015(64)PTC546(Del)

ISSUE
Whether present suit filed for permanent injunction restraining infringement of registered Trademarks, infringement of Copyright, passing off, rendition of accounts, damages and delivery up, etc. against Defendants is sustainable?