Tag Archives: Civil Court

Party Sought to be Impleaded – Must Have a Direct Interest in the Subject Matter of Litigation

It is trite that the question of addition of parties under Order I Rule 10(2) is not one of the initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. Under the provisions of Order I Rule 10(2), the Court is empowered to direct that a person be added as party to the suit, if his presence in court is necessary in order to enable the court to adjudicate all the questions involved in the suit effectively and completely. The real test to determine whether a party is a necessary party to the suit is, whether in the absence of the person sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely adjudicated. It is also well recognised that the expression “to settle all questions” employed in sub-rule (2) of Rule 10 of Order I receives a liberal and wide interpretation so as to facilitate the adjudication of all the questions pertaining to the subject matter of the suit. The jurisdictional condition is that the party sought to be impleaded must have a direct interest in the subject matter of litigation in contra-distinction to a commercial interest. Obviating multiplicity of proceedings is also one of the objects of the said provision. Jayashree Chandrakant Thite v. Padmavati Mohanlal Parekh, Chamber Summons No. 1359 of 2000 in Suit No. 2231 of 1986, Decided on February 7, 2020.

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In case of More than One Cause of Action – Order 2 Rule 2 CPC Will Not Apply

        It is undoubtedly true that the law does not compel a litigant to combine one or more cause of action is a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order 2 Rule 2 CPC will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order 2 Rule 2 CPC will not apply. It is undoubtedly also true that Order 2 Rule 2 CPC manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But there is an equally important principle that no person shall be vexed twice on the same cause of action. Pramod Kumar v. Zalak Singh, (2019) 6 SCC 621.

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Summons – Object of

Indeed, mentioning of the specific “day, year and time” in the summons is a statutory requirement prescribed in law (Civil Procedure Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and place to appear in the particular court in answer to the suit filed by the plaintiff against him.

       If the specific day, date, year and the time for defendant’s appearance in the court concerned is not mentioned in the summons though validly served on the defendant by any mode of service prescribed under Order 5, it will not be possible for him/her to attend the court for want of any fixed date given for his/her appearance.

       The object behind sending the summons is essentially threefold-first, it is to apprise the defendant about the filing of a case by the plaintiff against him; second, to serve the defendant with the copy of the plaint filed against him; and third, to inform the defendant about actual day, date, year, time and the particular court so that he is able to appear in the court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. Auto Cars v. Trimurti Cargo Movers Pvt. Ltd., (2018) 15 SCC 166.

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Arbitral Tribunal – Powers Under Section 17 of the Act

 

Under Section 17, the Arbitral Tribunal has the power to order interim measures of protection, unless the parties have excluded such power by agreement. Section 17 is an important provision, which is crucial to the working of the arbitration system, since it ensures that even for the purposes of interim measures, the parties can approach the Arbitral Tribunal rather than await orders from a court. The efficacy of Section 17 is however, seriously compromised given the lack of any suitable statutory mechanism for the enforcement of such interim orders of the Arbitral Tribunal.

In Sundaram Finance Ltd. v. NEPC India Ltd. [Sundaram Finance Ltd.v. NEPC India Ltd., (1999) 2 SCC 479], the Hon’ble Supreme Court observed that though Section 17 gives the Arbitral Tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that Section 9 gives the court power to pass interim orders during the arbitration proceedings. Subsequently, in Army Welfare Housing Organisationv. Sumangal Services (P) Ltd. [Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619] , the Court had held that under Section 17 of the Act no power is conferred on the Arbitral Tribunal to enforce its order nor does it provide for judicial enforcement thereof.

In the face of such categorical judicial opinion, the Hon’ble Delhi High Court attempted to find a suitable legislative basis for enforcing the orders of the Arbitral Tribunal under Section 17 in Sri Krishan v. Anand [Sri Krishan v. Anand, 2009 SCC OnLine Del 2472 : (2009) 112 DRJ 657 : (2009) 3 Arb LR 447] [followed in Indiabulls Financial Services Ltd. v. Jubilee Plots & Housing (P) Ltd. [Indiabulls Financial Services Ltd. v. Jubilee Plots & Housing (P) Ltd., 2009 SCC OnLine Del 2458] ]. The Delhi High Court held that any person failing to comply with the order of the Arbitral Tribunal under Section 17 would be deemed to be “making any other default” or “guilty of any contempt to the Arbitral Tribunal during the conduct of the proceedings” under Section 27(5) of Act. The remedy of the aggrieved party would then be to apply to the Arbitral Tribunal for making a representation to the court to mete out appropriate punishment. Once such a representation is received by the court from the Arbitral Tribunal, the court would be competent to deal with such party in default as if it is in contempt of an order of the court i.e. either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2-A of the Code of Civil Procedure, 1908. Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119 

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Reference of Dispute – To Arbitration

Once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the agreement, approaches the civil court and the other party, in terms of Section 8 of the Arbitration and Conciliation Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed, in view of the peremptory language of Section 8 of the Arbitration and Conciliation Act, it is obligatory for the court to refer the parties to Arbitration in terms of the agreement, as held in P. Anand Gajapathi Raju v. P.V.G. Raju, (2000) 4 SCC 539.
It was further explained in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503, thus:
“In cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that if, as contended by a party in an agreement between the parties before the civil court, there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator.”
In Magma Leasing and Finance Ltd. v. Potluri Madhavilata, (2009) 10 SCC 103, the position has been restated holding that no option is left to the court, once the prerequisite conditions of Section 8 are fully satisfied. Sundaram Finance Ltd. v. T. Thankam, (2015) 14 SCC 444.

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