
Ram Subramanian
๐๐จ๐ง๐ญ๐ซ๐๐๐ญ ๐๐ฅ๐๐ฎ๐ฌ๐ ๐ฐ๐ข๐ญ๐ก ๐ซ๐๐๐๐ซ๐๐ง๐๐ ๐ญ๐จ ๐๐ฑ๐ฉ๐๐ซ๐ญ ๐๐๐ญ๐๐ซ๐ฆ๐ข๐ง๐๐ญ๐ข๐จ๐ง ๐๐จ๐๐ฌ ๐ง๐จ๐ญ ๐๐จ๐ง๐ฌ๐ญ๐ข๐ญ๐ฎ๐ญ๐ ๐ ๐ฏ๐๐ฅ๐ข๐ ๐๐ซ๐๐ข๐ญ๐ซ๐๐ญ๐ข๐จ๐ง ๐๐ ๐ซ๐๐๐ฆ๐๐ง๐ญ (Calcutta High Court)
Mr. Birendra Bhagat vs. Arch Infra Properties Private Limited (Calcutta High Court)
The petitioner has filed the revised petition against the order of Commercial Court referring to the dispute between the parties to arbitration proceedings under section 8 of the Arbitration Act.
The petitioner contended that neither of the Contract clauses could not be termed as an arbitration clause since the clauses terms only the reference for settlement of drawings related dispute to an Architect.
โ29 Disputes/Arbitrations:
(๐) ๐น๐๐ ๐๐๐ ๐๐๐ ๐๐ข๐ก๐๐ ๐๐๐๐ ๐๐๐ ๐๐ข๐ก ๐๐๐๐๐๐๐๐๐ ๐๐ข๐๐๐๐ก๐ฆ ๐๐ ๐ค๐๐๐, ๐๐๐๐ค๐๐๐๐ , ๐๐๐ก๐๐๐๐๐๐ โ ๐โ๐ ๐ด๐๐โ๐๐ก๐๐๐ก๐ ๐๐๐๐๐ ๐๐๐ ๐ค๐๐๐ ๐๐ ๐ ๐๐๐๐๐๐๐ ๐๐๐ ๐กโ๐ ๐ธ๐๐๐๐๐ฆ๐๐ ๐๐๐ ๐กโ๐ ๐ถ๐๐๐ก๐๐๐๐ก๐๐.โ
(๐) ๐ท๐๐ ๐๐ข๐ก๐๐ ๐ค๐๐กโ ๐ ๐ข๐๐๐๐๐๐๐ ๐๐ก๐. : ๐ด๐๐ ๐๐๐ ๐๐ข๐ก๐๐ ๐ค๐๐กโ ๐ ๐ข๐๐๐๐๐๐๐ /๐๐กโ๐๐๐ ๐๐๐ ๐๐๐ก๐๐๐๐๐๐๐ก๐๐ ๐๐๐๐๐๐๐๐ ๐๐๐ ๐ก๐ ๐๐ ๐ ๐๐ก๐ก๐๐๐ ๐๐ฆ ๐กโ๐ ๐ถ๐๐๐ก๐๐๐๐ก๐๐ ๐๐๐ ๐๐ hashtag#๐๐๐๐๐ ๐คโ๐๐ก๐ ๐๐๐ฃ๐๐ ๐ค๐๐๐ ๐๐ ๐๐๐ก๐๐๐ก๐๐๐๐๐.โ
The Court observed the following:
โ๏ธ In this case, the arbitration clauses which have been discussed hereinabove does not reflect the intention of the parties to submit to the independent arbitrator. Neither present and future disputes arising out the contract nor disputes with regard to payment arising out of the contract in present or in future, have been included in the settlement clause.
โ๏ธAlso, the Courts shall interpret arbitration clause in a manner so as to give effect to the agreement, rather than invalidate the same. The courts should, if the circumstances allow lean in favor of giving effect to an arbitration clause.
โ๏ธMeaning thereby, the court should seek to give effect to the intention of the parties. Upon reading of the arbitration clauses and the circumstances, the court could not conclude that the parties intended to refer all kinds of disputes including money claims, payment/non-payment of bills etc. to an arbitrator.
โ๏ธThe court distinguished the expert determination from the Arbitral proceedings. The idea of expert determination is that during the implementation of a contract between the parties, the experts perform all such acts to ensure that the contract is successfully completed. Whereas an arbitral tribunal adjudicated the disputes based on on the evidence and submissions of the parties applying the law.
โ๏ธConsequently, the court concluded that the decision of the commercial court is perverse and flawed and hence the revision petition was allowed.
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