we are of the view that in the absence of existence of any arbitration tribunal, it is only the High Court to exercise its power under Section 11 of the Act to appoint an arbitrator to go into the disputes and differences between the parties.
Monday, April 28, 2008
Friday, April 25, 2008
consumer protection act is applicable on Regional Provident Fund
In fact, the same proposition has been explained in Regional Provident Fund Commissioner vs. Shiv Kumar Joshi [2000 (1) SCC 98], wherein in relation to the operation of the Consumer Protection Act to the Employees' Provident Fund Schemes it was held as follows:
"A perusal of the Scheme clearly and unambiguously indicates that it is a 'service' within the meaning of Section 2(1)(o) and the member a 'consumer' within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the Scheme are rendered free of charge and, therefore, the Scheme is not a 'service' under the Act. Both the State as well as the National Commission have dealt with this aspect in detail and rightly come to the conclusion that the Act was applicable in the case of the Scheme on the ground that its member was a 'consumer' under Section 2(1)(d) and the Scheme was a 'service' under Section 2(1)(o)."
"A perusal of the Scheme clearly and unambiguously indicates that it is a 'service' within the meaning of Section 2(1)(o) and the member a 'consumer' within the meaning of Section 2(1)(d) of the Act. It is, therefore, without any substance to urge that the services under the Scheme are rendered free of charge and, therefore, the Scheme is not a 'service' under the Act. Both the State as well as the National Commission have dealt with this aspect in detail and rightly come to the conclusion that the Act was applicable in the case of the Scheme on the ground that its member was a 'consumer' under Section 2(1)(d) and the Scheme was a 'service' under Section 2(1)(o)."
Wednesday, April 23, 2008
reference of dispute to Lok Adalat
It is evident from the said provisions that Lok Adalats have no
adjudicatory or judicial functions. Their functions relate purely to
conciliation. A Lok Adalat determines a reference on the basis of a
compromise or settlement between the parties at its instance, and put its seal
of confirmation by making an award in terms of the compromise or
settlement. When the Lok Adalat is not able to arrive at a settlement or
compromise, no award is made and the case record is returned to the court
from which the reference was received, for disposal in accordance with law.
No Lok Adalat has the power to "hear" parties to adjudicate cases as a court
does. It discusses the subject matter with the parties and persuades them to
arrive at a just settlement. In their conciliatory role, the Lok Adalats are
guided by principles of justice, equity, fair play. When the LSA Act refers to
'determination' by the Lok Adalat and 'award' by the Lok Adalat, the said
Act does not contemplate nor require an adjudicatory judicial determination,
but a non-adjudicatory determination based on a compromise or settlement,
arrived at by the parties, with guidance and assistance from the Lok Adalat.
The 'award' of the Lok Adalat does not mean any independent verdict or
opinion arrived at by any decision making process. The making of the award
is merely an administrative act of incorporating the terms of settlement or
compromise agreed by parties in the presence of the Lok Adalat, in the form
of an executable order under the signature and seal of the Lok Adalat.
But we find that many sitting or retired Judges, while participating in
Lok Adalats as members, tend to conduct Lok Adalats like courts, by
hearing parties, and imposing their views as to what is just and equitable, on
the parties. Sometimes they get carried away and proceed to pass orders on
merits, as in this case, even though there is no consensus or settlement. Such
acts, instead of fostering alternative dispute resolution through Lok Adalats,
will drive the litigants away from Lok Adalats. Lok Adalats should resist
their temptation to play the part of Judges and constantly strive to function
as conciliators. The endeavour and effort of the Lok Adalats should be to
guide and persuade the parties, with reference to principles of justice, equity
and fair play to compromise and settle the dispute by explaining the pros and
cons, strength and weaknesses, advantages and disadvantages of their
respective claims.
adjudicatory or judicial functions. Their functions relate purely to
conciliation. A Lok Adalat determines a reference on the basis of a
compromise or settlement between the parties at its instance, and put its seal
of confirmation by making an award in terms of the compromise or
settlement. When the Lok Adalat is not able to arrive at a settlement or
compromise, no award is made and the case record is returned to the court
from which the reference was received, for disposal in accordance with law.
No Lok Adalat has the power to "hear" parties to adjudicate cases as a court
does. It discusses the subject matter with the parties and persuades them to
arrive at a just settlement. In their conciliatory role, the Lok Adalats are
guided by principles of justice, equity, fair play. When the LSA Act refers to
'determination' by the Lok Adalat and 'award' by the Lok Adalat, the said
Act does not contemplate nor require an adjudicatory judicial determination,
but a non-adjudicatory determination based on a compromise or settlement,
arrived at by the parties, with guidance and assistance from the Lok Adalat.
The 'award' of the Lok Adalat does not mean any independent verdict or
opinion arrived at by any decision making process. The making of the award
is merely an administrative act of incorporating the terms of settlement or
compromise agreed by parties in the presence of the Lok Adalat, in the form
of an executable order under the signature and seal of the Lok Adalat.
But we find that many sitting or retired Judges, while participating in
Lok Adalats as members, tend to conduct Lok Adalats like courts, by
hearing parties, and imposing their views as to what is just and equitable, on
the parties. Sometimes they get carried away and proceed to pass orders on
merits, as in this case, even though there is no consensus or settlement. Such
acts, instead of fostering alternative dispute resolution through Lok Adalats,
will drive the litigants away from Lok Adalats. Lok Adalats should resist
their temptation to play the part of Judges and constantly strive to function
as conciliators. The endeavour and effort of the Lok Adalats should be to
guide and persuade the parties, with reference to principles of justice, equity
and fair play to compromise and settle the dispute by explaining the pros and
cons, strength and weaknesses, advantages and disadvantages of their
respective claims.
Tuesday, April 15, 2008
Saturday, April 12, 2008
Judgments and Awards
You can find here case laws ( Supreme Court and High Courts) on Aribtration and Conciliation Act 1996 against each section.
Friday, April 11, 2008
Wednesday, April 9, 2008
Important judgment
In terms of the decision in Bhatia International (supra), we hold that Part I of the Act is applicable to the Award in question even though it is a foreign Award.
Judgemnt on sec 16 of A & C Act 1996
We, therefore, hold that the respondent must be deemed to have waived any objection to the jurisdiction of the arbitral tribunal when it chose not to raise the plea now being raised by it, though it was fully aware of the terms of the agreement entered into between the parties. Section 34(iv) cannot come to the rescue of the respondent as the said section cannot be read in isolation and allowed to render otiose the provisions of Sections 4, 5 and 16 of the Act which, in a sense, are the high points of the Act. Any other interpretation of the aforesaid provisions of the statute would not only deprive the winning party of the fruit of its hard earned labour at the end of a long drawn out battle, but, in our considered opinion, would be opposed to public policy,as it would inevitably result in colossal waste of time, money and energy, all of which are necessarily expended in the arbitral process. This apart, it would frustrate the object of the Act itself viz., to provide for expeditious disposal of a dispute by recourse to arbitration.
Monday, April 7, 2008
free search engine/repository of Indian Supreme Court cases
OpenJudis is free search engine/repository of Indian Supreme Court cases ... I will be releazing patches that will allow you to automatically update the ...
liability of the guarantor — in view of the statutory provision under section 130 of the Indian Contract Act, 1872,
2008 SCCL.COM 365(Case No: Civil Appeal No.1878 of 2008) Sita Ram Gupta Appellant versus Punjab National Bank & others RespondentsDate of Decision(mm/dd/yy): 3/10/2008.Judge(s): Hon'ble Mr. Justice Tarun Chatterjee and Hon'ble Mr. Justice Harjit Singh Bedi. Subject Index: Indian Contract Act, 1872 — section 130 — liability of the guarantor — in view of the statutory provision under section 130 of the Indian Contract Act, 1872, whether the High Court was justified in holding that the appellant who was a guarantor of the loan advanced to the defendant nos.1 to 4 was liable to pay the decretal amount on the ground that the appellant had revoked the guarantee before such loan was actually paid to the defendant Nos.1 to 4 and long before the suit was filed by the bank against the defendants for recovery of such loan — not open to the appellant to revoke the guarantee as the appellant had agreed to treat the guarantee as a continuing one and was bound by the terms and conditions of the said guarantee — it is difficult to accept the submissions of the learned counsel for the appellant that in view of the statutory provision under Section 130 of the Act, after the revocation of the guarantee by the appellant, he was not liable to pay the decretal amount to the Bank.
Friday, April 4, 2008
link on section 27 of Indian Contract Act
find attached herewith the important link on judgments on section 27 of Indian Contract Act
Thursday, April 3, 2008
restrictive covenant in restraint of trade in service agreement
Convenant in restraint of trade-Contract Act, 1872, Section 27, scope of-Whether a post-service restrictive covenant in restraint of trade in service agreement between the parties is void-Even if it be valid, whether it could be enforceable, as enjoined by illustrations (c) and (d) to Section 57 of the Specific Relief Act, 1963.