original arbitration agreement or a duly certified copy thereof should be filed along with the petition

Atul Singh & Ors vs Sunil Kumar Singh & Ors The trial Court dismissed the petition by the order dated 17.3.2005 mainly on the ground that as Shri Rajendra Prasad Singh (predecessor-in- interest of the plaintiffs) was not a party to the partnership deed which was executed on 17.2.1992, and as the main relief sought in the suit was that the said partnership deed dated 17.2.1992 was illegal and void, which question could only be decided by the civil Court, the dispute could not be referred to arbitration. This view was accepted by Hon'ble Supreme Court of India and also observed as, "there was a clear non- compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant no.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit."   

consensus ad idem to refer the disputes to arbitration

Jagdish Chander Vs Ramesh Chander  In this case there was a clause in agreement as,"16) If during the continuance of the partnership or at any time afterwards any dispute touching the partnership arises between the partners, the same shall be mutually decided by the partners or shall be referred for arbitration if the parties so determine."

Hon'ble Supreme Court of India observed as, "If the clause had merely said that in the event of disputes arising between the parties, they "shall be referred to arbitration", it would have been an arbitration agreement. But the use of the words "shall be referred for arbitration if the parties so determine" completely changes the complexion of the provision. The expression "determine" indicates that the parties are required to reach a decision by application of mind. Therefore, when clause 16 uses the words "the dispute shall be referred for arbitration if the parties so determine", it means that it is not an arbitration agreement but a provision which enables arbitration only if the parties mutually decide after due consideration as to whether the disputes should be referred to arbitration or not. In effect, the clause requires the consent of parties before the disputes can be referred to arbitration. The main attribute of an arbitration agreement, namely, consensus ad idem to refer the disputes to arbitration is missing in clause 16 relating to settlement of disputes. Therefore it is not an arbitration agreement, as defined under section 7 of the Act."

arbitrator can decides jurisdiction

The State Of Jharkhand, Through ... vs R.K. Construction (Pvt.) Ltd ...  Hon'ble High Court of Jharkhand observed as  'the Arbitrator, appointed as per the terms of the Arbitration Agreement within the meaning of Section 7 of the Act (not under the provisions of Section 11 of the said Act) is competent to decide the objection of his own jurisdiction'

Position of a guarantor for a loan, who is not a party to the loan agreement containing the arbitration agreement

S N Prasad Vs Monnet Finance Ltd - Hon'ble Supreme Court of India observed as "appeals involve the question whether a guarantor for a loan, who is not a party to the loan agreement containing the arbitration agreement executed between the lender and borrower, can be made a party to a reference to arbitration in regard to a dispute relating to repayment of such loan and subjected to the arbitration award....

13. To constitute an arbitration agreement under section 7(4) (c ) of the Act, what is required is a statement of claim containing a specific allegation about the existence of an arbitration agreement by the applicant and 'non- denial' thereof by the other party. An 'allegation' is an assertion or declaration about a fact and also refers to the narration of a transaction. As noticed above, in the entire application under section 11 of the Act, there was no allegation as to the existence of any arbitration agreement between first respondent and the appellant. Column (3) containing 'Names of other parties to arbitration agreement with addresses' cannot be considered to be an assertion or declaration about the existence of an arbitration agreement between the first respondent and appellant. Section 7(4)© of the Act cannot therefore be relied upon to prove the existence of an Arbitration agreement....

17. When the appellant gave the guarantee letter dated 27.10.1995, he could not be imputed with the knowledge that the loan agreements which were to be executed in future (on 28.10.1995 and 6.11.1995) would contain an arbitration clause. Further, the appellant did not state in his letter dated 27.10.1995 that he would be bound by the terms of loan agreement/s that may be executed by the borrower. Therefore the question of appellant impliedly agreeing to the arbitration clause does not arise. 

18. The apprehension of the first respondent that an anomalous situation may arise if there are two proceedings (one arbitration proceedings against the borrower and one guarantor and a suit against another guarantor), is not a relevant consideration as any such anomalous situation, if it arises, would be the own-making of the first respondent, as that is the consequence of its failure to require the appellant to join in the execution of the loan agreements. Having made only one of the guarantors to execute the loan agreements and having failed to get the appellant to execute the loan agreements, the first respondent cannot contend that the appellant who did not sign the loan agreements containing the arbitration clause should also be deemed to be a party to the arbitration and be bound by the awards. The issue is not one of convenience and expediency. The issue is whether there was an arbitration agreement with the appellant.

19. As there was no arbitration agreement between the parties (the first respondent and appellant), the imp leading of appellant as a respondent in the arbitration proceedings and the award against the appellant in such arbitration cannot be sustained."

Appellant had not raised objections prior to the first arbitration hearing

Bharat Sanchar Nigam Ltd.& Anr. vs Motorola India Pvt.Ltd. on 15 ... - Hon'ble Supreme Court of India observed as  "17.The provision under clause 16.2 that quantification of the Liquidated Damages shall be final and cannot be challenged by the supplier Motorolla is clearly in restraint of legal proceedings under section 28 of the Indian Contracts Act. So the provision to this effect has to be held bad.

18.Pursuant to section 4 of the Arbitration and Conciliation Act, 1996, a party who knows that a requirement under the arbitration agreement has not been complied with and still proceeds with the arbitration without raising an objection, as soon as possible, waives their right to object. The High Court had appointed an arbitrator in response to the petition filed by the appellant. At this point, the matter was closed unless further objections were to be raised. If further objections were to be made after this order, they should have been made prior to the first arbitration hearing. But the appellant had not raised any such objections. The appellant therefore had clearly failed to meet the stated requirement to object to arbitration without delay. As such their right to object is deemed to be waived."

Court ordinarily will not bypass the provisions of Arbitration Act

Bharat Sewa Sansthan vs U. P. Electronics Corporation ... on 29 ...
Hon'ble Supreme Court of India observed as  "22. Now, the question pressed before us is whether we should, in exercise of our power and jurisdiction under Article 142 of the Constitution of India as submitted by Shri Shanti Bhushan, grant the payment of balance of arrears of rent, payment of balance arrears of water & sewerage tax and interest on the arrears of rent to the appellant-Sansthan, which amounts are disputed by the respondent-Corporation before us. The nature and ambit of the power of this Court under Article 142 of the Constitution of India, no doubt, is meant to do complete justice between the litigating parties, but at the same time this Court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Human and equitable approach should be balanced to do complete justice to both the parties and not be tilted in favour of either party without ignoring the statutory provisions. This Court in exercise of its jurisdiction can grant appropriate relief where there is some manifest illegality, or where there is manifest want of jurisdiction, or where some palpable injustice is shown to have resulted to the parties.
23. In the light of above factual aspects, the claim relating to balance arrears of rent, balance arrears of water & sewerage tax and rate of interest on payment of arrears of rent raised by the appellant-Sansthan in its calculation statement filed before this Court is at variance with the calculation statement submitted by the respondent-Corporation. The respondent- Corporation has denied the payment of interest to the appellant-Sansthan. The above-said disputed claims can be appropriately tackled and adjudicated upon by the Arbitrator in terms of the arbitration clause. The main objectives of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of courts in the arbitral process and to permit an arbitral Tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes, etc. This Court ordinarily will not be obliged to bypass the provisions of the Arbitration and Conciliation Act, 1996 in exercise of its power and jurisdiction under Article 142 of the Constitution of India."

H Srinivas Pai Vs H V Pai

Hon'ble Supreme Court of India observed as  "5. There is absolutely no basis for the observation of the High Court that Arbitration and Conciliation Act, 1996 will not apply to ‘civil disputes’, but will apply only to ‘commercial disputes’ or international commercial disputes. The Act applies to domestic arbitrations, international commercial arbitrations and conciliations. The applicability of the Act does not depend upon the dispute being a commercial dispute. Reference to arbitration and arbitability depends upon the existence of an arbitration agreement, and not upon the question whether it is a civil dispute or commercial dispute. There can be arbitration agreements in non-commercial civil disputes also."
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obiter dicta

Mohandas Issardas v. A. N. Sattanathan AIR 1955 Bom 113

 “Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'.”

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VALIDITY OF RE-PROMULGATE ORDINANCES

Dr D C Wadhwa & Ors Vs State of Bihar & Ors (AIR 1987 SC 579)

"These petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re-promulgate ordinances from time to time without getting them replaced by Acts of the Legislature.....This is clearly contrary to the consti- tutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legisla- ture, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance--Raj in the country."
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CBI is not an authority

In Sh Navendra Kumar Vs UOI, Gauhati High Court on 08.10.13 declared constitution of CBI as ultra virus and also explains what is an obiter dictum as under,

“So far as constitution of police force is concerned, Union and the State, both have legislative competence to enact laws on ‘ police’. However, so far as law, enacted by Parliament, is concerned, it can operate only in the ‘Union territories’ and not in any ‘ State’, because ‘police’ is a subject falling under State List”

“The State, in D Bhuvan Mohan Patnaik Vs State of AP AIR 1974 SC 2092 which had acted on executive instructions in installing live high-voltage wire on the walls of the jail, could not justify installation of this mechanism on the basis of a ‘law’ or ‘ procedure established by law’ inasmuch as the executive instructions, which had been acted upon, were held by the Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) nor could these instructions, according to the Supreme Court, fall within the expression, “procedure established by law’, as envisaged by Article 21.”

“The elaborate discussions on the concepts of ratio decidendi and obiter dicta, made in the cases pointed above, can be summarized as follows:

(a) A decision is an authority for what it actually decides. What is the essence, in a decision, is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or the principles on which a question before a Court has been decided, is alone binding as a precedent.

(b) In a given case, two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question, which was necessary for the determination of the case would be the 'ratio decidendi' . However, the opinion of the tribunal on the question, which was not necessary to decide the case would be only an 'obiter dictum'.

(c) ‘Obiter dictum’ is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in[…]”

Validity of pre-constitutional laws

Madhu Limaye Vs Sub-Divisional Magistrate 1971 AIR 2486

 “ …Pre-Constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force the Constitution by reason of Article 13(1), read with any of the guaranteed freedoms…….a quotation extracted by Krishna Iyer, J. in B. Banerjee v. Anita Pan – It may a repetition to say that according to the learned Chief Justice, “there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles” and that, “it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made[…]”

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quiz 4

Selvi J Jayalalithaa & Ors Vs State of Karnataka & Ors

Hon'ble Supreme Court of India observed in Writ Petition (Crl.) No.154 of 2013 decided on 30.9.2013 as
“Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general.”

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quiz 3

Can a lady be prosecuted for gang rape?

Hon'ble Supreme Court of India observed in Priya Patel vs State Of M.P. & And on 12 July, 2006 as  “A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape" shall be punished etc.

The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape.

By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention”

“A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.”

Thus a lady cannot be prosecuted for rape even with the help of sec 34 (common intention) but whether she can be prosecuted for abetment left undecided.

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