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DR. SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY, LUCKNOW.
LAW FACULTY

SUBJECT:
LAW OF ALTERNATIVE DISPUTE RESOLUTION

TOPIC:
RELATED CASE LAWS

SUBMITTED TO: SUBMITTED BY:

Dr. Gulab Rai PRATEEK PANDEY

Asst. Professor B.Com. LLB. (Hons.)
& 4th Year, 8th Sem.
Addl. Procter
(Faculty of Law)
D.S.M.N.R.U, Lucknow.
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ACKNOWLEDGEMENT

The acknowledgement may go on like this. I would like to express my special thanks
of gratitude to my teacher.

Dr. Gulab Rai who gave me the golden opportunity to choose and do this wonderful
project on the topic RELATED CASE LAWS, which also helped me in doing a lot
of Research and, I came to know about so many new things I am really thank full to
them.

Secondly I would also like to thank my parents and friends who helped me a lot.

I am making this project not only for marks but also to increase my knowledge and
skills.

THANKS TO ALL OF YOU.

PRATEEK PANDEY
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WORKING BIBILIOGRAPHY

The research work and its related material based on many types of sources such as
books, internet, notes. I use the some books of LAW OF ALTERNATIVE
DISPUTE RESOLUTION. These names are –:

o N. V. Paranjape, Universal Law Publication, (Private International Law in

India, Haryana, 2nd ed./2013)
o Acharya. N. K, Law Relating To Arbitration and A.D.R. (2004), Asian Law
House
o Narayanan .P.S, Arbitration and Conciliation Act 1996, (2002), Lexis Nexis

I use the sum internet websites, these are following:-

http://indiankanoon.org
http://lawcafe.in
http://www.arbitrationindia.com
http://arbitrationandconciliation.org
www.findlaw.com
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TABLE OF CONTENTS

 COVER PAGE

 ACKNOWLEDGEMENT

 WORKING BIBILIOGRAPHY

 TABLE OF CONTENTS

 INTRODUCTION

 CASES

 ORDER

 EXAMINATION OF PARTIES BY THE COURT

 CERTIFICATE
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INTODUCTION

 ALTERNATIVE DISPUTE RESOLUTION IN CIVIL CASES

In February 1998, Chief Justice Ronald M. George appointed the Task Force on the Quality of
Justice. The task force was divided into two subcommittees: the Subcommittee on the Quality of
Judicial Service and the Subcommittee on Alternative Dispute Resolution and the Judicial System.
This is the report of the Subcommittee on Alternative Dispute Resolution and the Judicial System
(hereafter subcommittee) on alternative dispute resolution (ADR) in civil cases.
1
The subcommittee was charged with studying and making recommendations concerning:

The effects of ADR on courts, litigants and the public;
What state entity has or should have the authority to adopt ethical standards governing retired
judges, attorneys, and/or no attorneys acting as arbitrators or mediators and what ethical standards
should be adopted; and
Whether the standards governing the referral of disputes by courts to private judges Or
attorneys be should change.
The term ADR encompasses a wide variety of processes and programs, from predisposed, binding
contractual arbitration to voluntary community mediation. The effects of these different processes
or programs on courts, litigants, and the public vary and should be assessed separately.

 DEVELOPMENT AND PRACTICE OF ARBITRATION IN INDIA

HAS IT EVOLVED AS AN EFFECTIVE LEGAL INSTITUTION

The 2significant increase in the role of international trade in the economic development of
Nations over the last few decades has been accompanied by a considerable increase in the
Number of commercial disputes as well. In India too, rapid globalization of the economy
and the resulting increase in competition has led to an increase in commercial disputes. At
the same time, however, the rate of industrial growth, modernization, and improvement of
socio-economic circumstances has, in many instances, outpaced the rate of growth of
dispute resolution mechanisms. In many parts of India, rapid development has meant
increased caseloads for already overburdened courts, further leading to notoriously slow
adjudication of commercial disputes.1 As a result, alternative dispute resolution
mechanisms, including arbitration, have become more crucial for businesses operating in
India as well as those doing businesses with Indian firms.

1
http://www.mondaq.com/india/x/610502/trials+appeals+compensation/Case+Laws

2
http://www.mondaq.com/india/x/610502/trials+appeals+compensation/Case+Laws
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Keeping in mind the 3broader goal of exploring links between the quality of legal
performance and economic growth, this paper is an attempt to critically evaluate arbitration
in India as a legal institution. To this end, this paper presents an empirical inquiry into the
state of arbitration, as well as a more theoretical examination of the political economy and
arbitration as developed and practiced in India. In sum, although the huge influx of
overseas commercial transactions spurred by the growth of the Indian economy has
resulted in a significant increase of commercial disputes, arbitration practice has lagged
behind. The present arbitration system in India is still plagued with many loopholes and
shortcomings, and the quality of arbitration has not adequately developed as a quick and
cost-effective mechanism for resolution of commercial disputes.

Modern arbitration law in India was created by the Bengal Regulations in 1772, during
the British rule. The Bengal Regulations provided for reference by a court to arbitration,
with the consent of the parties, in lawsuits for accounts, partnership deeds, and breach of
Contract, amongst others.

 Until 1996, the law governing arbitration in India consisted mainly of three statutes:
 (i) the 1937 Arbitration (Protocol and Convention) Act,
 (ii) the 1940 Indian Arbitration Act, and
 (iii) the 1961 Foreign Awards (Recognition and Enforcement) Act

History of Arbitration Law in India

Arbitration has a long history in India. In ancient times, people often voluntarily submitted their
disputes to a group of wise men of a community—called the panchayat—for a binding resolution.

Modern arbitration law in India was created by the Bengal Regulations in 1772, during the British
rule. The Bengal Regulations provided for reference by a court to arbitration, with the consent of
the parties, in lawsuits for accounts, partnership deeds, and breach of contract, amongst others.

The government enacted the Arbitration and Conciliation Act, 1996 (the 1996 Act) in an effort to
modernize the outdated 1940 Act. The 1996 Act is a comprehensive piece of legislation modeled
on the lines of the UNCITRAL Model Law. This Act repealed all the three previous statutes (the
1937 Act, the 1961 Act and the 1940 Act). Its primary purpose was to encourage arbitration as a
cost-effective and quick mechanism for the settlement of commercial disputes. The 1996 Act
covers both domestic arbitration and international commercial arbitration.

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CASES
Madras High Court
Krishnamurthy vs Siva Kumar on 15 June, 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-06-2009
CORAM
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
C. R. P. (NPD) No.3076 of 2008
And
MP No.1 of 2008
Krishnamoorthy Petitioner
Vs.
1. Sivakumar
2. Sivaramalingam
3. Mrs.Rajamani
4. Ramalingam
5. Pandurangan
6. The Returning Officer-cum-

Commissioner,
Karamadai Panchayat Union,
Karamadai,
Mettupalayam Taluk.

7. The Secretary/Executive Officer,

Thekkampatti Village Panchayat,
Thekkampatti Post,
Seeliyur (via),
Mettupalayam _ 641 113.

8. The District Election Officer/District

Collector, Coimbatore.

9. The State Election Commission,

Chennai, Tamil Nadu. .. Respondents
This Revision is preferred Adr tuincdleer 227 of the Constitution of India, against the order
For Petitioner: Mr. R. Muthukumaraswamy,
Senior Counsel
For Respondent-1: Mr. V. Raghavachari
For Respondent-2: Mr. Srikanth Sideman
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ORDERS
The petitioner herein was elected as the President of Thekkampatti Panchayat, Mettupalayam
Taluk, Coimbatore District, in the elections held on 13.10.2006. Challenging his election on the
sole ground that he filed a false declaration suppressing details of the criminal cases pending trial
against him and that therefore his nomination ought to have been rejected by the Returning Officer,
the first respondent herein filed Election O. P. No. 296 of 2006 on the file of the District Court,
Coimbatore. It was allowed by the learned District Judge, declaring the election of the petitioner
herein as null and void and directing a fresh election to be conducted. Challenging the said order
upsetting his election, the petitioner has come up with the present Civil Revision Petition.

FINAL CONTENTION (NECESSARY INGREDIENT OF SECTION 259 (1)

(d) :
The third contention of Mr. R. Muthu kumara swamy, learned Senior Counsel for the petitioner is
that if the election of a candidate is sought to be set aside on any of the grounds specified in Clause
(d) of sub section (1) of Section 259, the election petitioner is required not only to prove the
existence of such a ground, but also to prove that the result of the election was materially affected,
on account of that ground. It is his contention that the grounds stated in Clauses (a), (b) and (c)
stand on a different footing than the grounds stated in Clause (d) of Section 259 (1).
4
In support the above contention, the learned Senior Counsel relied upon the decision of the Apex
Court in Manohar Joshi Vs. Nitin Bhaurao Patil {1996 (1) SCC 169} and the decision of Section
100 of the Representation of the People Act, 1951, is in pari materia with Section 259. Clauses (a),
(b) and (c) of sub section (1) of Section 100 of the R.P. Act, 1951, are equivalent to Clauses (a),
(b) and (c) of sub section (1) of Section 259 of the Tamil Nadu Panchayats Act, 1994. Clause (d)
is identical in both. In the decision of the Supreme Court relied upon by the learned Senior Counsel
for the petitioner, the Supreme Court noted the distinction between Clause (b) and Clause (d) in
paragraph-39, as follows:-

The distinction between clause (b) of sub-section (1) and sub-clause (ii) of clause (d) therein
significant. The ground in clause (b) provides that the commission of any corrupt practice by a
returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent by itself is sufficient to declare the election to be void. On the other
hand, the commission of any corrupt practice in the interests of the returned candidate by an agent
other than his election agent (without the further requirement of the ingredient of consent of a
returned candidate or his election agent) is a ground for declaring the election to be void only when
it is further pleaded and proved that the result of the election insofar as it concerns a returned
candidate has been materially affected. This ground is further subject to sub-section (2) of Section
100 of which the onus is on the returned candidate."

In the decision of S. S. Subramanian, J., in R. Vijayalakshmi's case, the election of the returned
candidate was challenged on the ground that her name was registered in two Wards. Though the

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allegation was found to be true, the Tribunal held that it did not vitiate the election. While agreeing
with the view taken by the Tribunal, the learned Judge held that to bring a case within any of the
grounds stated in Clause (d) of sub section (1) of Section 259, it must be pleaded and proved that
the irregularity complained, materially affected the result of the election.

There is no difficulty in accepting this contention of the learned Senior Counsel for the petitioner,
in view of the plain language of clause (d) of sub section (1) of Section 259, which stands on a
different footing from the language employed in the other clauses of the same sub section. But the
rider contained in the first part of Clause (d) has to be understood in the context in which it is
made. While clauses (a), (b) and (c) broadly deal with situations within the control of the returned
candidate, clause (d) contemplates situations beyond the control of the returned candidate.

Therefore the law makers have made a distinction between situations within the control of the
returned candidate and situations beyond his control. If the case of the returned candidate falls
within clauses (a), (b) or (c), he is liable to forfeit his victory, irrespective of whether his acts of
omission and commission had a bearing upon the ultimate outcome or not. But if something had
happened beyond his control and without his blessings and his case falls under clause (d), he need
not be penalized, for no fault of his, except when such act or omission on the part of the Returning
Officer or any other person, over whom he had no control or to whom he had not given his consent,
materially affected the outcome of the election. This is the broad frame work within which the
distinction between clauses (a), (b) and (c) on the one hand and clause (d) on the other hand, has
to be understood. That it is so is made clear also by sub section (2) of Section 259.
5
Keeping the above principles in mind, if we look at the case on hand, it is seen that the admitted
failure of the petitioner to make a disclosure of the full and complete information, regarding the 8
charge sheets filed against him, virtually amounted to an interference with the free exercise of the
electoral rights of the voters and consequently fell within the meaning of the expression "undue
influence". The voters had a choice not to vote for a candidate involved in 8 criminal cases, of
which cognizance had already been taken. The free exercise of that right, was infringed by the
failure to comply with the mandatory requirement prescribed by the notification of the Election
Commission. Therefore, the result of the election, in so far as it concerned the petitioner (returned
candidate) was in fact, materially affected, by his act of omission. Hence the order of the District
Judge, setting aside the election, though on a different ground, cannot be said to be perverse or
illegal, so as to warrant any interference under Article 227 of the Constitution.

1. The Returning Officer-cum-

Commissioner, Karamadai Panchayat Union, Karamadai, Mettupalayam Taluk.
2. The Secretary/Executive Officer, Thekkampatti Village Panchayat, Thekkampatti Post,
Seeliyur
(via.), Mettupalayam _ 641 113.
3. The District Election Officer/District Collector, Coimbatore.
4. The State Election Commission, Chennai, Tamil Nadu

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M/S. Afcons Infrastructure ... vs M/S. Cherian Varkey Construction ... on 11 October, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1219 of 2005()
1. M/S.AFCONS INFRASTRUCTURE LIMITED,
... Petitioner
2. M/S.AFCONS INFRASTRUTURE LTD.,
Vs
1. M/S.CHERIAN VARKEY CONSTRUCTION CO. (P)
... Respondent
2. THE COCHIN PORT TRUST,
3. THE GOSHREE ISLAND DEVELOPMENT AUTHORITY
For Petitioner: SRI M. RAMESH CHANDER
For Respondent: SRI K. L. VARGHESE
The Hon'ble MR. Justice R.BASANT
Dated: 11/10/2006
ORDER
R. BASANT, J.
--------------------
C. R. P. No. 1219 of 2005
--------------------
Dated this the 11th day of October, 2006

ORDER
Does the law, even after the introduction of amended Section 89 into the Code of Civil Procedure,
permit, tolerate or enable the court to compulsorily refer the parties to arbitration even without
their consent and against their volition? This is the question that is mooted for consideration in this
Revision.

The learned counsel for the petitioner submits that strict mandate of Section 89 has not been
followed in as much as the terms have not been formulated and given to the parties for their
observation. This court had directed the parties in the course of earlier hearing to specify whether
if not arbitration, any other method of ADR is acceptable to them.

There was no agreement between the parties on any mode of ADR other than arbitration. I did not
find any specific formulation or reformulation of the terms of settlement and to that extent I agree
with Sri. Ramesh Chander that the procedure has not been strictly followed. At any rate, there is
nothing to indicate that such procedure has been strictly followed. I say so because Sri K.L.
Varghese points out that the court below had formulated the terms after considering the
submissions of both counsel. I had therefore requested the learned counsel for the petitioners to
suggest reformulation of any terms, which are enumerated in the impugned order, if necessary. No
specific objections are raised nor need any specific improvements suggested by the learned counsel
for the respondents against the terms settled for reference and, in these circumstances, any
inadequacy in complying meticulously with the procedure prior with reference committed by the
court below not stand in the way of this Court. In fact, the memorandum of revision petition filed,
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no specific objection is taken against any terms of reference made already or against the omission
to raise any terms of reference. I consider the terms stipulated to be adequate and complete.
6
Before parting with the case, I think it necessary for the court to reiterate that reference under
Section 89(1) for any mode of ADR mechanism should not be undertaken as a matter of course by
any court. Such a mindless resort to Section 89(1) may become counterproductive and might
contribute to further delay of the proceedings. Alert application of mind is required. All the
relevant inputs must be taken into consideration.
7
The court must note that it is given a power to take decisions even transcending the decisions of
the litigants/parties to the dispute. Reference to arbitration must certainly be resorted to rarely and
only in exceptional cases. I am approving the course adopted by the court below in this case only
because for the special reasons earlier referred, and as it appears to me to be an eminently fit case
where the powers, if available, ought to be invoked. I must caution the courts of the risk involved
of making mindless reference to any of the four methods of alternative dispute resolution under
Section 89, particularly arbitration for the reason that reference to arbitration would be an
irretraceable step and the party can never come back to the regular stream of adjudication by
competent court of the list.
8
I must also before parting with this case place on record my appreciation for the able assistance
Rendered to this Court by9 counsel Shri K. L. Varghese and Shri. Ramesh Chander who appeared
for the parties as also Shri. Shreelal Varier, who accepted the request of this Court for assistance.
Unfortunate though it is, I must mention that it is not often that the Courts get such thorough
Assistance these days.

6
Indian Kanoon - http://indiankanoon.org/doc/654638/

7
Indian Kanoon - http://indiankanoon.org/doc/1678821/

8
Indian Kanoon - http://indiankanoon.org/doc/1678821/

9
Nearly 30 million cases pending in courts (www.rtiindia.org).
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Punjab-Haryana High Court

Mrs. Ramesh Rani Vs Unknown on 23 January, 2012
Civil Revision No. 3188 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 3188 of 2010 (O&M)
Date of decision: January 23, 2011
Mrs. Ramesh Rani
.. Petitioner
V.
Shri Raman Kumar Goyal and another
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Mandeep S. Sachdev, Advocate for the petitioner.
Mr. Chetan Mittal, Senior Advocate with
Mr. Kapil Aggarwal, Advocate for the respondents.

Rajesh Bindal J.

The plaintiff is before this court aggrieved against the order dated 1.2.2010 passed by the court
Below whereby the suit filed by her was dismissed under Order 10 Rule 4 CPC.

Briefly, the facts of the case are that the petitioner filed a suit on 3.1.2009, inter-alia, for dissolution
of partnership deed dated 1.4.1998 executed between the petitioner-plaintiff and respondent no.
Raman Kumar Goyal in the name and style of M/s New Hindustan Surgical Company and for
rendition of accounts. After filing of the written statement by the respondents on 11.5.2009, the
case was adjourned for filing of replication. After the same having not been filed, the learned court
below adjourned the case number of times. On 4.12.2009, the matter was adjourned to 1.2.2010
noticing that on failure of the parties to appear in person, provisions of Order 10 Rule 4 CPC would
apply. On the next date, i.e., 1.2.2010, the suit having been dismissed, the order is impugned before
this court.

Learned counsel for the petitioner submitted that firstly no application regarding admission and
denial of documents, as is noticed in the order dated 24.7.2009, was filed by either of the parties.
He further submitted that for admission or denial of any of the allegations in the pleadings, the
parties were not required to appear in person. It could be in the presence of counsels as well. On
all the occasions, counsels for both the parties were present but no questions were asked by the
court below. Without exhausting the option under Order 10 Rule 1 CPC, the court could not jump
to Order 10 Rule 2 CPC for oral examination of the parties or their companions. The tone and tenor
of the order shows that the court had proceeded on the assumption that it was the default of the
party under Order 10 Rule 2 CPC, hence the suit was liable to be dismissed. The provision itself
provides for extension of time. In support of his contention, reliance was placed upon the judgment
of Hon'ble the Supreme Court in M/s Kapil Core packs Pvt. Ltd. and others v. Shri Harbans Lal
(since deceased) through Lrs., 2010(4) Civil Court Cases 63 and of this court in Sarwan Singh v.
Onkar Singh and others, 2010(1) Civil Court Cases 231.
13 | P a g e

10
On the other hand, learned counsel for the respondents submitted that the impugned order passed by the
learned court below is strictly in terms of the provisions of law. The Code provides for examination of the
counsels or the parties before framing the issues to shorten the litigation. Keeping that object in view, a
stringent provision has been made in Order 10 Rule 4 CPC providing for passing of the judgment or such
order as the court deems fit. In the present case, a perusal of the zimni orders passed by the court below
shows that the petitioner had defaulted repeatedly. No replication to the written statement was filed, where
certain facts had been pleaded showing that the contentions raised in the plaint were totally wrong.
Considering the aforesaid facts, the petitioner is not entitled to the relief prayed for.

Heard learned counsel for the parties and perused the paper book.
Various orders in CPC provide for procedure in detail for conduct of trial in a suit after the parties have
appeared and filed written Civil Revision No. 3188 of 2010 [3] statement. Before framing of issues, which
is provided for under Order 14 CPC, to shorten the dispute between the parties, various provisions have
been laid down.
Before appreciating the contentions raised by learned counsel for the parties, a reference to
Section 89 and Order X CPC is required. The same are reproduced hereunder:
"Section 89 CPC
89. Settlement of disputes outside the Court. (1) Where it appears to the Court that there exist elements of
a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and
give them to the parties for their observations and after receiving the observations of the parties, the Court
may reformulate the terms of a possible settlement and refer the same for –

(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement including settlement through Lok Adalat; or
(d) Mediation

(2) Where a dispute has been referred--

(a) For Arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26
of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement
under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987)
and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok
Adalat;

(c) For judicial settlement, the Court shall refer the same to a suitable institution or person and
such institution or person shall be deemed to be a Lok Adalat and all the Civil Revision No. 3188
of 2010 provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the
dispute Were referred to a Lok Adalat under the provisions of that Act;
(d) For mediation, the Court shall effect a compromise between the parties and shall follow such
Procedure as may be prescribed. Order X of the Code of Civil Procedure ORDER X.

EXAMINATION OF PARTIES BY THE COURT

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1. Ascertainment whether allegations in pleadings are admitted or denied. At the first hearing of
the suit the court shall ascertain from each party or his pleader whether he admits or denies such
allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and
as are not expressly or by necessary implication admitted or denied by the party against whom
they are made. The Court shall record such admissions and denials.

1-A. Direction of the Court to opt for any one mode of alternative dispute resolution. After
recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode
of the settlement outside the Court as specified in sub-section (1) of Section 89. On the option of
the parties, the Court shall fix the date of appearance before such forum or authority as may be
opted by the parties. 1-B. Appearance before the conciliatory forum or authority.- Where a suit is
referred under rule 1-A, the parties shall appear before such forum or authority for conciliation of
the suit.

1-C. Appearance before the court consequent to the failure of efforts of conciliation. Where a suit
is referred under rule 1-A and the presiding officer of conciliation forum or authority is satisfied
that it would not be proper in the interest Civil Revision No. 3188 of 2010 [5] of justice to proceed
with the matter further, then it shall refer the matter again to the court and direct the parties to
appear before the court on the date fixed by it.

"Amendments: Objects and Reasons- Clause 7 provides for the settlement of disputes outside the
Court. The provisions of clause 7 are based on the recommendations made by Law Civil Revision
No. 3188 of 2010 [7] Commission of India and Malimath Committee. It was suggested by Law
Commission of India that the Court may require attendance of any party to the suit or proceedings
to appear in person with a view to arriving at an amicable settlement of dispute between the parties
and make an attempt to settle the dispute between the parties amicably. Malimath Committee
recommended to make it obligatory for the Court to refer the dispute, after issues are framed, for
settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok
Adalat. It is only when the parties fail to get their disputes settled through any of the alternative
disputes resolution method that the suit could proceed further. In view of the above, clause 7 seeks
to insert a new Section 89 in the Code in order to provide for alternative dispute resolution.
[Statement of Objects and Reasons (Bill 1999).

If the facts of the present case are considered in the light of enunciation of law, where Hon'ble the
Supreme Court provided that it is mandatory for the courts to explore the process for conciliation
as is provided for under Section 89 read with Order 10 Rule 1-A CPC and in Civil Revision No.
3188 of 2010 [20] case subject-matter of dispute cannot be referred to or the parties are not
consenting for that process, brief reasons are to be recorded therefor in the order. Though Order
10 Rule 1 CPC provides that facts can be ascertained even from the counsels. It is only Order 10
Rule 2 CPC, which provides that the parties are to be examined. The consequence of default under
11
Order 10 Rule 2 CPC is provided for under Rule 4. In the present case, though the counsels were
present on every date of hearing, nothing is evident from the zimni orders passed by the court

11
K Ravi Kumar, ‘Alternative Dispute Resolution in Construction Industry’, International Council of
Consultants (ICC) papers, www.iccindia.org. at p 2. K Ravi Kumar is assistant executive engineer,
Salarjung Museum, Hyderabad.
15 | P a g e

below on various dates that any facts were sought to be ascertained from them. The court merely
directed the parties to appear in person. In terms of Order 10 Rule 1-A CPC, the court is required
to direct the parties to appear in person after recording admissions and denials under Rule 1 CPC
to opt for either mode of settlement outside the court. The provisions have been held to be
mandatory. It is not that only the plaintiff had not appeared in the court, rather, the defendants had
also not appeared.

In the present case, the learned court below did not follow the procedure provided under Order 10
CPC and simply recorded that as the parties did not appear, the consequences under Order 10 Rule
4 CPC follow and the suit was dismissed. The order, being totally in violation of the provisions of
law, deserves to be set aside. Ordered accordingly.

The learned court below is directed to proceed further strictly in terms of the provisions of law,
As have been interpreted in the judgments, referred to above. The parties through their counsels
are directed to appear before the court below on 4.2.2012.The petition stands disposed of.

Provisions in the arbitration laws in India that require entire arbitral tribunals to impart effective
interim measures at par with the authority of a national court should be amended, and an effective
mechanism for carrying out these provisions should be put in place. Although the 1996 Act confers
12
powers on arbitral tribunals to issue interim relief, there is variance in the degree and efficacy of
these interim measures. Under the 1996 Act, the arbitral tribunal is possessed of limited powers to
direct interim measures, pertaining to: -

(a) Protection of the subject matters in dispute; and

(b) Providing appropriate security in connection thereof.
13
Moreover, an arbitral tribunal has no mechanism to enforce its own direction. For this reason, it
can well be said that the arbitral tribunal does not have any coercive authority to secure
implementation of its interim measures, which is like being a toothless tiger. No doubt, this is a
flaw that weakens the entire arbitration mechanism, and at times makes it appear spineless.

12
S K Dholakia, ‘Analytical Appraisal of the Arbitration and Conciliation (Amendment) Bill, 2003’, ICA’s
Arbitration Quarterly, ICA, New Delhi, 2005 vol. XXXIX/No.4 at page 3. S K Dholakia is a Member of
ICC International Court of Arbitration and Senior Advocate, Supreme Court of India.

13
CIAC is a Registered Society with its headquarters in New Delhi. Arbitration under the auspices of the
CIAC has the following features: (i) tight timelines for appointment of arbitrators and for rendering of
the award; (ii) trained arbitrators consisting of professionals from the construction industry as well as the
legal fraternity; (iii) strict codes of ethics for arbitrators; (iv) transparent management of arbitrator’s fees;
(v) published scales of fees; (vi) monitoring of the progress of the cases by the Secretariat of the CIAC;
and (vii) arrangement of facilities and services for hearings.
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CERTIFICATE

The project entitled, RELATED CASE LAWS Submitted to Faculty of Law of, Dr. Shakuntala
Mishra Rehabilitation University, Lucknow. Related to Subject LAW OF ALTERNATIVE
DISPUTE RESOLUTION, as a part of internal assessment is based on my original work carried
out under the guidance of Dr. GULAB RAI.

The research work has not be submitted elsewhere for award of any degree. The material borrowed
from other sources and incorporated in the thesis has been duly acknowledged.

DATE:

(SIGNATURE OF STUDENT)