Court : Mumbai
Reported in : 2008(6)BomCR546
..... thc apex court in sundaram finance' case (supra) clearly observed that prior to the promulgation of the new act, the law on arbitration in india was substantially contained in three enactments, namely, the arbitration act, 1940, the arbitration (protocol and convention) act, 1937 and the foreign awards (recognition and enforcement) act, 1961. ..... dealing with the question about the intention of the legislature in repealing the old act and enacting the new act and bearing in mind the object of the new act, the apex court while enumerating the difference between the provisions of law comprised under the new act vis-a-vis the old act clearly held that:a bare comparison of different provisions of the arbitration act of 1940 with the provisions of the arbitration and conciliation act, 1996 would unequivocally indicate that the 1996 ..... in fact, the very preamble of the new act provides that whereas the united nations commission on international trade law has adopted the uncitral model law on international commercial arbitration in 1985 and the general assembly of the united nations has recommended that all countries give due consideration to the said model law and in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice, the uncitral has adopted the uncitral .....
Tag this Judgment!Court : Mumbai
Reported in : AIR2007Bom149; 2007(3)ALLMR304; 2007(2)ARBLR362(Bom); 2007(3)BomCR393; 2008(1)CTC7
..... the law of arbitration in india was earlier substantially contained in three enactments, namely, the act of 1940, arbitration (protocol and convention) act, 1973 and the foreign awards (recognition and enforcement) act, 1961. ..... the definition of 'court' under section 2(e) could be divided in the following manner: (i) the principal civil court of original jurisdiction in a district, and includes the high court in exercise of its ordinary original civil jurisdiction; (ii) having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit; and (iii) it does not include any civil court of a grade inferior to such principal civil court, or any court of small ..... in omni bus industrial development corporation, the learned judge while dealing with the definition of 'court', under section 2(e) of the arbitration and conciliation act, 1996 (for short the 'act of 1996'), has taken a view that the court of civil judge, senior division, goa being the principal court of original civil jurisdiction, would be entitled to hear an appeal under section 34 of the act of 1996, while in cotton corporation of india ltd. ..... this act repeals the act of 1940. ..... even the preamble of a statute is equally an important part and can be pressed into service to aid the construction thereof.9. .....
Tag this Judgment!Court : Mumbai
Reported in : 2008(6)BomCR540
..... it is worthy to note that the arbitration act, 1996 not only repeals the arbitration act, 1940 but also repeals the arbitration (protocol and convention) act, 1937 and foreign awards (recognition and enforcement) act, 1961. ..... counsel submitted that the provisions contained in part ii and part iii are totally new provisions and were not contained in the arbitration act, 1940 and, therefore, the arbitration act, 1996 cannot be construed as a repeal and re-enactment of the arbitration act, 1940 so as to attract the provisions of section 8 of the general clauses act. ..... a counsel for the petitioners submitted that the arbitration act, 1940 was repealed and re-enacted by the arbitration act, 1996 and therefore reference to the arbitration act, 1940 in article 3 must be construed as a reference to the arbitration act, 1996 in view of section 8 of the general clauses act.16. ..... in my view sub-section (2) of section 85 of the arbitration act, 1996 is only a transitory provision and merely because the pending arbitration proceedings are saved from the application of the arbitration act, 1996, it cannot be said that the arbitration act, 1940 does not repeal by the arbitration act, 1996.19. ..... merely because the arbitration act, 1996 re-enacts the provisions relating to two or three acts, which were simultaneously repealed, it cannot be said that the arbitration act, 1996 is not a repeal and re-enacted the arbitration act, 1940. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1956Bom598
..... have filed a petition in the city civil court on 23-6-1955.this petition has been filed under section 5, arbitration (protocol and convention) act 6 of 1937. ..... 's real apprehension is that, if the petition succeeds and a decree follows on the petition, he will have no right of appeal.one way of looking at this position is that the legislature has intended that the decision in summary proceedings permitted under the provisions of the arbitration (protocol and convention) act should end with the making of a decree and should not be protracted by the provision of an ..... to contend that, even in respect of some matters covered by section 7 sub-section (1), the remedy by a separate suit cannot be said to be excluded altogether, and in support of this argument he wanted to refer to the corresponding provisions in the indian arbitration act prior to the amendment of 1940.on this part of the controversy again i do not propose to express any opinion. ..... affidavit in support of the notice of motion 'i am satisfied that reliance was placed on the inherent jurisdiction of the court under section 151 in support of the prayer for injunction, permanent and temporary, and that whoever drafted the plaint and the affidavit in support of the notice of motion did not purport to place his ease on order 39, rule 2 at all.that being the nature of the case which was made before the learned judge, i feel ..... to this conclusion the learned trial judge has considered the provisions of section 7 of act 6 of 1937. .....
Tag this Judgment!Court : Mumbai
Reported in : (1959)61BOMLR1195
..... (9) in my view, the agreement for arbitration in the case before me is one to which the protocol set forth in the first schedule to the arbitration (protocol and convention) act, 1937 applies and that the award is a foreign award within the meaning of the said arbitration (protocol and convention) act. ..... section 6 of the arbitration (protocol and convention) act, 1937, requires that in order that a foreign award may be enforceable under the act, it must have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed, it must have been made in conformity with the law governing the arbitration procedure, it must have become final in the country in which it was made and it must have been in respect of a matter which may lawfully be referred to arbitration under the law of india ..... in the preamble to the act, it has been recited as follows:'whereas india was a state signatory to the protocol on arbitration clauses set forth in the first schedule and to the convention on the execution of foreign arbitral awards set forth in the second schedule, subject in each cse to a reservation of the right to limit its obligations in respect thereof to contracts which are consdered as commercial under the law in force in the provinces of india. .....
Tag this Judgment!Court : Mumbai
Reported in : (1962)64BOMLR113
..... the agreement in clause 13 can in no event be available to the plaintiffs in this case who have taken proceedings under the provisions of the arbitration (protocol and convention) act, 1937, for enforcement of the award in this court, this is not again an application for setting aside of an award which must he made by a notice of motion in appropriate court in .england. ..... this is an arbitration suit, filed in accordance with the provisions of the arbitration (protocol and convention) act, 1937, for filing of an award dated may 22, 1952, made by the board of appeal of the london oil and tallow trades association directing the respondents-defendants to pay 5,600 to the petitioners-plaintiffs and for a decree in terms of that award and interest and costs.2. ..... clause 2 of the protocol on arbitration clauses runs as follows:-(2) the arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.article 1(c) of the convention of the execution of foreign arbitral awards runs as follows:-(c) that the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure ..... this provision is the result of clause (2) of the protocol on arbitration clauses as contained in the first schedule to the act and also sub-cl. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1964Bom71; (1963)65BOMLR487; ILR1964Bom151
..... 2 in the bill of lading and contended in that suit also that to the facts the provisions of section 34 of the indian arbitration act and section 3 of the arbitration (protocol and convention) act, 1937, apply and the defendants were entitled to stay. ..... defendants' application was merely based on section 34 of the indian arbitration act and section 3 of the arbitration (protocol and convention) act, 1937, which were never applicable to the facts. ..... hereinafter referred to as the defendants) application for stay of each of the suit was made on the ground that the claim made in each suit must be held to have been agreed to be referred to arbitration and that the provisions of section 34 of the indian arbitration act, 1940, and section 3 of the arbitration (protocol and convention) act, 1937, were applicable. ..... of clause 2 in the bills of lading relied upon on behalf of the parties in this case section 34 of the indian arbitration act, 1940, and section 3 of the arbitration (protocol and convention) act, 1937, are not applicable. ..... provisions of section 34 of the indian arbitration act and section 3 of the arbitration (protocol and convention) act, 1937, applied to these facts. ..... is difficult for us to accept thecontention made on behalf of the defendants that provisions of section 34 of the indian arbitration act and section 3 of the arbitration (protocol andconvention) act, 1937, are attracted to the factsof these cases by reason of the provisions in clause 2 of the bills of lading. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1965Bom114; (1964)66BOMLR758
..... the point is not without difficulty, but giving the matter the best consideration i can, i have come to the conclusion that , it is not possible to come to the conclusion that, it is not possible to read section 3 of the arbitration (protocol and convention) act as not limited to cases where there is not only an arbitration agreement, but in pursuance to that agreement, a reference to an arbitration has also bee made. ..... whatever the intent and purpose of the convention might have been and whatever the intent of the legislature was in enacting section 3 of the 1937 act, i am bound by the language of ..... also argued that since the defendants have filed their own counterclaim in this court, they are not entitled to reliefs either under section 3 of the 1937 act or under section 34 of the indian arbitration act. ..... x x x x x x x(11) this matter must, therefore, be considered as if the 1937 act was applicable to the agreement for arbitration as contained in art. ..... has relied upon the preamble and section 2 of the act and argued that to the arbitration clause and the contract between the parties the provisions of the act are not applicable at ..... the defendants is that admittedly there is an agreement between the parties to which the protocol set forth in the first schedule to the act of 1937 applies and that the plaintiffs are parties to that agreement and the plaintiffs have commenced this suit. ..... that the defendants in this suit are entitled to stay of the suit under section 3 of the 1937 act. .....
Tag this Judgment!Court : Mumbai
Reported in : (1978)80BOMLR34
..... application for stay was made under section 34 of the arbitration act, 1940, as also under section 3 of the arbitration (protocol and convention) act, 1937, as also under section 151 of the code of ..... defendant, tried to distinguish this authority first on the ground that this was an application for stay under section 3 of the arbitration (protocol and convention) act, 1937. ..... earlier, this was an application both under section 34 of the arbitration act as also under section 3 of the arbitration (protocol and convention) act and also under section 151 of the code of civil procedure. ..... , whenever an application for a stay of the suit was made, the affidavit in support of it should be so read as to imply in it that the defendant has satisfied all the conditions of section 34 of the arbitration act and that if the plaintiff desired to contend that one or more of these conditions were not satisfied, it was for him to take up the point in his affidavit in reply. ..... he further held that the scheme also was that the defendant who had applied for stay must be continuously ready and willing to do all things necessary for the proper conduct of the arbitration and that the intent of these provisions obviously was that if the defendant took any steps even subsequent to his application for stay of the suit, which might be considered as his own steps ..... section 4(1) of the english arbitration act of 1950 and section 4 of the arbitration act, 1889, which it repealed and reenacted, are in pari materia .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1978Bom106; (1979)81BOMLR49
..... it was a case under arbitration (protocol and convention) act, 1937, a precursor of 1961 act. ..... the act is a successor to the arbitration (protocol and convention) act, 1937. ..... it is undoubtedly true that the provisions of the said section 2 and the terms of the convention emphasise the award aspect of the matter, but there is no gainsaying the legal position that an arbitration agreement takes its colour from 'foreign award' as defined in section 2 ..... by its material terms the clause contemplates 'arbitration in india' to 'be governed by the rules of international chamber of commerce, paris' and fur-ther that 'the provisions of indian arbitration act, 1940, shall apply, save and except that where the rules of the said international chamber of commerce conflict with the indian arbitration act 1940, the said rules of the international chamber of commerce shall prevail.' ..... , if any party to an agreement to which article ii of the convention set forth in the schedule applies, or any person claiming through or under him commences any legal proceedings in any court against any other party to the agreement or any person claiming through or under him in respect of any matter agreed to be referred to arbitration in such agreement, any party to such legal proceedings may, at any time after appearance and before filing a written statement or taking any other step ..... the 1961 act gives effect to the convention on recognition and enforcement of arbitral awards adopted at new york on 10th june 1958 .....
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