Arbitration and conciliiation
Querist :
Anonymous
(Querist) 19 November 2011
This query is : Resolved
I got a case today in which the facts are as follows:
1. It is a property dispute.
2. Both the parties in 1974 decided that if there will be any dispute the case shall go in arbitration.
3. The case is in dispute for past 2 years.
4. No Written statement is filed.
5. Defendant stating that this case should go in Arbitration.
My questions are :
1. Should we or should we not file the Written statement as I fear for the defence might get struck off because of the delay.
Here is the delhi HC judgment
: http://indiacorplaw.blogspot.com/2011/05/formalism-under-section-8-of.html
which states that "a Section 8 application under the Arbitration & Conciliation Act, 1996 (Arbitration Act) was not maintainable if brought after the filing of written statement, even if the written statement raised jurisdictional objections on grounds of existence of an arbitration agreement."
Please guide as it says "if brought after the filing of written statement". So it means that now we can/should file the written statement ?
2. Should we go ahead and file the Written Statement or wait for the court to decide on that application to appoint the arbitrator as the one appoint the advocate died long time back ?
Devajyoti Barman
(Expert) 19 November 2011
1. This decision does not seem to be in line with the quite unanimous presedence of supreme court that if there is an arbitration clause and any party invokes it, the civil court has no jurisdiction in it.
So since in your WS you seem to raise just that plea you should have no problem at all fro referring the dispute to arbitration.
2. Either way.
If the arbitrator mentioned in the agreement has dies then you can ask the other party to appoint one or after appointing one you may seek others consent or approach high court fir its appointment.
Advocate Bhartesh goyal
(Expert) 19 November 2011
Objection of sec 8 of Arbitration And Conciliation Act should be raised before filing of written statement so wait till the decision of your application.
Murali Krishna
(Expert) 19 November 2011
1. In the first place, decision of High Court is in consonance with the law on Arbitration under A&C Act, 1996.
2.From your query and from point 5, you have created some confusion as to who is the plaintiff.
3.If you, as defendant, seeks that the matter to be referred to arbitration, before filing written statement you can take objection before the court that "in view of arbitration clause in the agreement" under s.8 of A&C Act, 1996 matter has to be referred to arbitrator. Civil court has no jurisdiction to try the matter.
4. However, you as defendant, does not want matter to be referred to arbitration, can file your written statement and the court will entertain the matter and decide notwithstanding there being any arbitration clause between the parties. Plaintiff may not be interested in arbitration and for that purpose he invoked the jurisdiction of the civil court.
Querist :
Anonymous
(Querist) 19 November 2011
I agree too... Thank you...
