Newsletter ARBITRATION AND CONCILIATION ACT, 1996 NOVEMBER, 2021 Whether Arbitration and Conciliation (Amendment) Act, 2015 shall have prospective effect on applications filed under section 34 or not? Recently, the Hon’ble Supreme Court of India observed that 2015 amendment of Arbitration and Conciliation Act, 1996 will have prospective effect i.e. will only be applicable to Section 34 applications that have been filed after the date of amendment. The core issue in the case was whether an arbitration award can be challenged on the grounds of ‘patent illegality if the arbitration proceedings commenced before the 2015 amendment was introduced in the Act. Division bench comprising of Justice Sanjay Kishan Kaul and M.M. Sundaresh reaffirmed the decisions passed by the Hon’ble Supreme Court in  BCCI v. Kochi Cricket Pvt. Ltd. and Ors. [(2018) 3 SCC (Civ) 534], Ssangyong Engineering and Construction Company Ltd. v. NHAI [(2019) 15 SCC 131], S.P. Singla Constructions Pvt. Ltd. v. State of Himachal Pradesh [(2019) 2 SCC 488] to hold that legal position prior to 2015 amendment would prevail if the petition was filed before the date of amendment. Read More... Whether additional ground in appeal can be raised for setting aside an Arbitration Award or not? Recently, the Hon’ble Supreme Court of India while considering an appeal filed under section 37 of the Arbitration and Conciliation Act, 1996 sought for setting aside of the award, observed that if the ground raised falls under the domain of patent illegality then,  even if the state / party did not raise such an objection at the time of taking recourse of Section 34 petition, it can pursue such an action in the appeal under Section 37 before the Hon’ble Supreme Court of India. Read More... Whether section 33 of the Arbitration and Conciliation Act, 1996 allows limited modification of the Arbitral award? Recently, the Hon’ble Supreme Court comprising of Justice M.R. Shah and B.V. Nagarathna observed that only in a case of arithmetical and/or clerical error, can an award be modified and only such errors can be corrected. In the present case, an application was first preferred under Section 33 of the Act before the Arbitral Tribunal, whereafter the Arbitrator made certain corrections in the award. However, one of the parties challenged such modification, which was dismissed. Further, when an appeal was preferred before the Hon’ble Supreme Court of India, the aggrieved party contended that there was no arithmetical and/or clerical error in original award passed by the arbitrator. The Hon’ble Court while allowing the appeal observed that the order passed by the Arbitrator in the application under Section 33 of the Act was beyond the scope of Section 33 of the Act. Sa section 33 of the Arbitration and Conciliation act, 1996 only allows modification in a case of arithmetical and/or clerical error. Read More... INSOLVENCY AND BANKRUPTCY CODE, 2016 Application filed under Section 9 will not be Maintainable if a Dispute exists prior to issuance of Demand Notice The Hon’ble National Company Law Appellate Tribunal in the case titled as ‘Hukum Singh v. Adaab Hotels Ltd., CA (AT)(I) 905 OF 2021’ reaffirmed the law as previously settled by the Judgment passed by Hon’ble Supreme Court of India in Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd., (2018) 1 SCC 353 to hold that a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 will not be maintainable if there is an existence of dispute prior to issuance of demand notice. Read More... NCLT Lacks Jurisdiction to Adjudicate the issue of Termination of Contract unless an insolvency action has been initiated against the Corporate Debtor Recently, the Hon’ble Supreme Court while interpreting section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 held that the National Company Law Tribunal (‘NCLT’) lacks jurisdiction under Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 for determining any issue unless the same is covered under Insolvency proceeding of the Corporate Debtor and further while allowing the appeal observed that termination of the Facilities Agreement was not motivated by the insolvency of the Corporate Debtor. Hence, NCLT committed an error in adjudicating contractual dispute of like nature. Read More... The Code of Criminal Procedure, 1973 Surrender and Application for regular bail is not an alternative to an application for anticipatory bail Recently, the Hon’ble Supreme Court of India noted that if a party has an alternative to surrender and apply for regular bail after filing of charge-sheet, the said party is not precluded from applying for an anticipatory bail under Section 438 of C.r.P.C. The Special Leave Petition was preferred against the order of Allahabad High Court whereby Petitioner’s second anticipatory bail application was rejected on the ground that surrendering before the lower court and applying for a regular bail is pre-requisite for moving an anticipatory bail. The Hon’ble Supreme Court held that such a finding by High Court was based on an earlier order of Supreme Court in this matter and is not applicable on the present factual position. Thus, after filing of charge sheet, when application for grant of anticipatory bail if filed it was open for the Petitioner to surrender and apply for regular bail before the competent court. But that does not imply that the said application is a second application for grant of anticipatory bail, on same cause of action. Read More... Telangana High Court grants liberty to prisoners to initiate proceedings against the police officials if the procedure for arrest undersection 41A CrPC is violated Recently, the Telangana High Court observed that the police are under an obligation to follow the guidelines laid down by the Hon’ble Supreme Court in the Arnesh Kumar v. State of Bihar Judgment, [(2014) 8 SCC 273] while making an arrest. This order was passed by Justice Lalitha Kanneganti  while hearing the anticipatory bail application filed by the head of educational and consultancy firm in Secunderabad primarily accused of cheating under Section 420 of the Indian Penal Code, 1860. The Hon’ble High Court allowed an accused the right to inititate proceedings against the police officers upon violation of the arrest procedure in view of Section 41A CrPC. Read More... OTHER RELEVANT JUDGMENTS PASSED BY VARIOUS COURTS UNDER VARIOUS LAWS Supreme Court holds that injunction orders cannot be passed in detriment to the interest of third parties who are directly affected by it The Hon’ble Supreme Court of India set aside a Karnataka High Court judgment which had granted injunction against alienation to the extent of 1/7th share in the suit property without giving third party who were directly affected by such order, a right to be heard. The Division bench comprising of Justice MR Shah and B.V. Nagarathna noted that if the third party is the necessary and proper party, then their impleadment is mandatory. Thus, the Hon’ble Court held that before granting injunction, the Appellants ought to have been impleaded and should have been given the opportunity to be heard. Read More... The Hon’ble Delhi High Court grants ad-interim injunction to Britannia Industries against Oral Care The Hon’ble Delhi High Court granted ad-interim injunction to Britannia Industries against Oral Care for selling the goods under the identical trademark ‘Good Day’. A single Judge Bench comprising of Justice Sanjeev Narula observed that Britannia’s Trademark Good day has been acknowledged as a well-known mark and therefore it will be protected by way of injunction under Section 39(4)(b) of the Trademarks Act, 1999. Read More... Calcutta High Court explains the scope of the Specific Performance of an Agreement post Amendment in the Specific Relief Act, 1963 Recently, a single judge bench comprising of Justice Moushumi Bhattacharya reaffirmed the judgment passed by the Hon’ble Supreme Court of India in a case titled ‘B. Santoshamma v. D. Sarala and Sughar Singh v. Hari Singh’ to hold that specific performance of a contract is no longer discretionary after the amendment introduced in the statute. However, the Hon’ble Bench also noted that the enforcement of performance of a contract under the amended Section 10 of the Specific Relief Act will be subject to Section 11(2), 14 and 16 of Specific Relief Act, 1963. Read More...   NEW DELHI X -3, Green Park Main, New Delhi, 110016, Telephones: +91 11 2652 0041-42 For further / specific information, please contact us at: info@tandonandco.com Disclaimer: The contents of this newsletter are intended for information purposes only, and parts of this newsletter are based on news reports and have not been independently verified. The newsletter is not in the nature of a legal opinion or advice. They may not encompass all possible regulations and circumstances applicable to the subject matter and readers are encouraged to seek legal counsel prior to acting upon any of the information provided therein. 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