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National Buildings Construction ... vs Chief Executive Officer, Delhi Jal ... on 6 December, 2012
cites
Section 34 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Union Of India & Another vs Raunaq International Ltd on 8 May, 2008
Even the decision in Union of India v. Raunaq International Ltd. was in
the context of the 1940 Act. As far as 1996 Act is concerned, it is plain that
such an objection can be raised during the arbitral proceedings but within
the time limits specified under Section 16 of the 1996 Act. If a party fails to
raise such objection at that stage, it cannot be permitted to do so for the first
time in the petition under Section 34 of the 1996 Act. Consequently, this
Court negatives the objection raised by NBCC to the impugned Award on
the ground that the learned Arbitrator had no jurisdiction to entertain the
counter claims of DJB.
National Agricultural Co-Op. ... vs Gains Trading Ltd on 22 May, 2007
3. It is first submitted by Mr. N. Prabhakar, learned counsel for NBCC, that
the learned Arbitrator erred in entertaining DJB's counter claims since they
were beyond the scope of the reference of the disputes to arbitration. He
referred to the relevant clause of the contract dated 11th May 1992 entered
into between the parties which stated that "Only disputes/disputes out or
such disputes shall be referred to the arbitration as may be determined by the
Commissioner arising out of and relating to the contract and the decision of
the Commissioner in this respect shall be final, conclusive and binding on all
parties to this contract." He submitted that while NBCC invoked the
arbitration clause and submitted its claims to the Chief Executive Officer
('CEO'), DJB, by letter dated 9th October 2002, followed by another letter
dated 22nd October 2002, enclosing a list of 41 specific claims for reference
to arbitration, DJB never raised any disputes or claims. According to him the
letter dated 27th November 2002 by the CEO of DJB appointing the
Arbitrator showed NBCC as the Claimant and DJB as the Respondent.
Therefore, only the specific claims of NBCC were referred to arbitration and
not DJB's counter claims. He referred to the decisions in Olympus
Superstructures Pvt. Ltd. v. Meena Vijay Khetan AIR 1999 SC 2102, Oil
and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. AIR 2003 SC 2629,
O.M.P. No. 527 of 2006 Page 2 of 16
Food Corporation of India v. T.R. Behl ALR 1992 (2) 456, Bharat Coking
Coal Ltd. v. M/s. Annapurna Construction AIR 2003 SC 3660, Municipal
Corporation, Jabalpur v. M/s. Rajesh Construction Co. AIR 2007 SC 2069
and National Agricultural Co-op. Marketing Federation India Ltd. v.
Gains Trading Ltd. AIR 2007 SC 2327. While Mr. Prabhakar did not
dispute the fact that this plea was not raised before the learned Arbitrator, he
submitted that since it went to the root of the matter and was contrary to law,
it could be urged in the present proceedings as well.
Olympus Superstructures Pvt. Ltd. vs Meena Vijay Khetan & Ors. on 11 May, 1999
3. It is first submitted by Mr. N. Prabhakar, learned counsel for NBCC, that
the learned Arbitrator erred in entertaining DJB's counter claims since they
were beyond the scope of the reference of the disputes to arbitration. He
referred to the relevant clause of the contract dated 11th May 1992 entered
into between the parties which stated that "Only disputes/disputes out or
such disputes shall be referred to the arbitration as may be determined by the
Commissioner arising out of and relating to the contract and the decision of
the Commissioner in this respect shall be final, conclusive and binding on all
parties to this contract." He submitted that while NBCC invoked the
arbitration clause and submitted its claims to the Chief Executive Officer
('CEO'), DJB, by letter dated 9th October 2002, followed by another letter
dated 22nd October 2002, enclosing a list of 41 specific claims for reference
to arbitration, DJB never raised any disputes or claims. According to him the
letter dated 27th November 2002 by the CEO of DJB appointing the
Arbitrator showed NBCC as the Claimant and DJB as the Respondent.
Therefore, only the specific claims of NBCC were referred to arbitration and
not DJB's counter claims. He referred to the decisions in Olympus
Superstructures Pvt. Ltd. v. Meena Vijay Khetan AIR 1999 SC 2102, Oil
and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. AIR 2003 SC 2629,
O.M.P. No. 527 of 2006 Page 2 of 16
Food Corporation of India v. T.R. Behl ALR 1992 (2) 456, Bharat Coking
Coal Ltd. v. M/s. Annapurna Construction AIR 2003 SC 3660, Municipal
Corporation, Jabalpur v. M/s. Rajesh Construction Co. AIR 2007 SC 2069
and National Agricultural Co-op. Marketing Federation India Ltd. v.
Gains Trading Ltd. AIR 2007 SC 2327. While Mr. Prabhakar did not
dispute the fact that this plea was not raised before the learned Arbitrator, he
submitted that since it went to the root of the matter and was contrary to law,
it could be urged in the present proceedings as well.
The Arbitration Act, 1940
General Manager Northern Railways & Anr vs Sarvesh Chopra on 1 March, 2002
In Union of India v. Raunaq International Ltd. a reference
was made to the decision in General Manager, Northern Railway v.
Sarvesh Chopra AIR 2002 SC 1272 which arose under the Arbitration Act
1940 ('1940 Act') and which in turn referred to a passage from Arbitration
by Russell which mentioned that the issue of arbitrability usually arose at
three stages. The first stage was on an application to stay the arbitration.
The second "in the course of the arbitral proceedings" and the third "on an
application to challenge the award or to oppose its enforcement." Reference.
Oil & Natural Gas Corporation Ltd vs Saw Pipes Ltd on 17 April, 2003
3. It is first submitted by Mr. N. Prabhakar, learned counsel for NBCC, that
the learned Arbitrator erred in entertaining DJB's counter claims since they
were beyond the scope of the reference of the disputes to arbitration. He
referred to the relevant clause of the contract dated 11th May 1992 entered
into between the parties which stated that "Only disputes/disputes out or
such disputes shall be referred to the arbitration as may be determined by the
Commissioner arising out of and relating to the contract and the decision of
the Commissioner in this respect shall be final, conclusive and binding on all
parties to this contract." He submitted that while NBCC invoked the
arbitration clause and submitted its claims to the Chief Executive Officer
('CEO'), DJB, by letter dated 9th October 2002, followed by another letter
dated 22nd October 2002, enclosing a list of 41 specific claims for reference
to arbitration, DJB never raised any disputes or claims. According to him the
letter dated 27th November 2002 by the CEO of DJB appointing the
Arbitrator showed NBCC as the Claimant and DJB as the Respondent.
Therefore, only the specific claims of NBCC were referred to arbitration and
not DJB's counter claims. He referred to the decisions in Olympus
Superstructures Pvt. Ltd. v. Meena Vijay Khetan AIR 1999 SC 2102, Oil
and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. AIR 2003 SC 2629,
O.M.P. No. 527 of 2006 Page 2 of 16
Food Corporation of India v. T.R. Behl ALR 1992 (2) 456, Bharat Coking
Coal Ltd. v. M/s. Annapurna Construction AIR 2003 SC 3660, Municipal
Corporation, Jabalpur v. M/s. Rajesh Construction Co. AIR 2007 SC 2069
and National Agricultural Co-op. Marketing Federation India Ltd. v.
Gains Trading Ltd. AIR 2007 SC 2327. While Mr. Prabhakar did not
dispute the fact that this plea was not raised before the learned Arbitrator, he
submitted that since it went to the root of the matter and was contrary to law,
it could be urged in the present proceedings as well.
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