Weekly Judgment Reckoner | 20 December 2021 – 26 December 2021

Arbitration

S.
Relevant
Tittle of the Case Citation Summary
Para
No.

Sections 8 & 11 of the Arbitration Act is identical but extremely limited and restricted and it
is only the arbitral tribunal, who is the preferred first authority to determine and decide all
questions of non-arbitrability.

ARB.P. 637/2021
Tarun Aggarwal Projects 19, 21, 22 While considering the petition
LLP & Anr v. M/S Emaar [Access here] under the provisions of Section
Mgf Land Ltd. 11(5) & (6) of the Arbitration and
Conciliation Act, 1996, the court
High Court of Delhi held that conjoint reading of
Clauses-36 & 37 of the Parties’
Decided : 24.12.2021 agreement makes it clear that a
party does have a right to seek
enforcement of agreement before
the Court of law but it does not bar
settlement of disputes through
1. Arbitration and Conciliation Act,
1996.

Whether or not M/s MGF

Developments Ltd. was a necessary
party to the proceedings, the court
accepted petitioner’s argument that
Sections 8 & 11 of the Arbitration
Act is identical but extremely
limited and restricted and it is only
the arbitral tribunal, who is the
preferred first authority to
determine and decide all questions
of non-arbitrability and left the
question to be agitated, considered
and decided by the arbitral tribunal.

3. Petition for appointment of arbitrator under Section 11 is not maintainable, unless the
request for appointment of arbitrator has been made to the ICC Secretariat under ICC Rules.

BTL EPC Limited vs Steel
Authority Of India Limited
High Court of Calcutta
Decided : 24.12.2021
14 A.P. No. 394 of Where the arbitration clause
2021 provided that the arbitration will be
governed by the Rules of
Arbitration of International
Chamber of Commerce (ICC),
[Access here] Paris, the court held that the
applicant has to apply to the
Secretariat of the ICC, as
mentioned in the Arbitration Rules
 of the ICC, and it cannot approach
the domestic Court for appointment
of an arbitrator. The entire
procedure of appointment of the
arbitrator has to be in accordance
with the Arbitration Rules of the
ICC, which requires that first a
request has to be made to the
Secretariat of the ICC.

Arbitrator is a creature of the contract and it has no power to award interest contrary to the
terms of the agreement/contract between the parties.

M/S KMC Construction 56, 57 O.M.P. While deciding a petition under

Ltd. vs National Highway (COMM.) Section 34, the court held that
Authority 458/2020, I.A. where the agreement expressly
NOS. 257/2021 provides for payment of interest;
High Court of Delhi & 2649/2021 unless the terms of the contract in
regard to interest are found to be
Decided : 23.12.2021 [Access here] invalid or inapplicable, the arbitral
5. tribunal is required to render an
arbitral award in conformity with
the terms of the Contract. In cases
where the agreement proscribes
award of interest, the arbitral
tribunal cannot award interest. In
cases, where the contract is silent as
to payment of interest, the arbitral
tribunal would have the discretion
to award interest as Section 31(7)
(a) of the A&C Act empowers the
arbitral tribunal to do so.

7. Section 18(3) of the MSMED Act creates a legal fiction, whereby the provisions of the A&C
Act are made applicable to arbitration pursuant to the reference under Section 18(3) of the
MSMED Act

O.M.P.
Indian Highways 38, 39, 44 Section 18(3) of the MSMED Act
(COMM)
Management Company Ltd provides that where the disputes are
376/2021 & IA
vs Sowil Limited referred to arbitration, the
Nos.
provisions of A&C Act would
High Court of Delhi 17159/2021,
apply to such disputes as if the
17160/ 2021
arbitration was in pursuance to an
Decided : 21.12.2021 arbitration agreement referred to in
[Access here]
Section 7(1) of the A&C Act.
However, in case of repugnancy
between the provisions of the A&C
Act and the MSMED Act, the
provisions of the MSMED would
prevail.
The court refused to interfere with
award of Arbitral Tribunal that
SOWiL is liable to pay interest
under Section 16 of the MSMED
Act and, thus, the impugned award
does conform to lex fori.