Section 1 (2)
|
The ex-parte arbitration proceeding.
Non-issuance of notice by the Arbitrator is a legal misconduct on the part
of the Arbitrator which is very much patent in law and vitiates the
Award.Even in case of due notice for appointment of Arbitrator and the
party failure to appoint Arbitrator, the Arbitrator could not have
proceeded ex-parte without express notice upon the other side disclosing
the intention to do so.
Govt.of Bangladesh -Vs.- MOL Enterprise INC. 6 ALR (AD) 2015 (2) 33
|
Govt.of Bangladesh -Vs.- MOL Enterprise INC. |
6 ALR (AD) 33 |
Section 3
|
Section-3 of the First Schedule
Section 3 of the Arbitration Act provides that unless a different intention
is expressed in the arbitration agreement it shall be deemed to include the
provisions set out in the First Schedule which enacts that the arbitrators
shall make their award within four months after entering on the reference
or after having been called upon to act by notice in writing from any party
to the arbitration agreement or within such extended time as the Court may
allow. Thus where the arbitration agreement did not provide for the time
within which Arbitrators shall make their award but made the award beyond
four months from the date of entering on the reference the question arises
as to whether the award before such period without any extension of time is
valid or not.
M. Ahmed Rashid & Ors Vs. M. Shafi & Ors 15 BLT (AD)88
|
M. Ahmed Rashid & Ors Vs. M. Shafi & Ors. |
15 BLT (AD) 88 |
Section 5
|
Revocation of arbitral authority— Code of Civil Procedure 1908- Order 39
rule 1 and 2 and section 151- Scope of temporary injunction against
arbitration proceedings—
In an Arbitration case under section 5 of the Arbitration Act, 1940 seeking
revocation of arbitral authority of the tribunal and during the pendency of
the case the petitioner-respondent sought for temporary injunction under
Order 39 rule 1 and 2 read with section 151 C.P.C. for staying further
proceedings of the I.C.C. Arbitration case which was rejected by the
Arbitration court but in an appeal taken by the petitioner-respondent the
High Court Division granted adinterim injunction staying further proceeding
of the I.C.C.
Arbitration case for 8 weeks which was ultimately modified in the form of
restraining the petitioner-respondent from proceeding with the I.C.C.
Arbitration case No.7934/C.K. Since the High Court Division directed the
Subordinate judge to dispose of the Arbitration case positively by a
certain date without, fail, the Appellate Division declined to interfere
with the said order in the interest of justice.
Saipem S.P.A. Vs. Bangladesh Oil Gas and Mineral Corporation
(Petro-Bangla)-5 MLR (2000) (AD) 245.
|
Saipem S.P.A. Vs. Bangladesh Oil Gas and Mineral Corporation (Petro-Bangla) |
5 MLR (AD) 245 |
Section 8
|
Respondent praying for appointment of an Arbitrator by the court on the
ground that in respect of supply of certain quantity of coal of specf1c
size and quality by a contract, dispute arose between the respondent and
the petitioner but in spite of repeated request and a formal notice to
appoint an Arbitrator in terms of the contract, the petitioner failed to do
so and so the application to the court—section 8 of the Arbitration Act,
1940 was not at all attracted as contended by the learned petitioners
counsel.
Held: We find that the Arbitrator has already entered on the reference and
has started issuing notices to the parties. In that view of the matter we
are not inclined to entertain this technical objection at this stage.
[Para- 12]
Coal Controller Vs. Venture Industries Ltd. 1 BLT (AD)-50
|
Coal Controller Vs. Venture Industries Ltd. |
1 BLT (AD) 50 |
Section 8(2)
|
Jurisdiction of Court to appoint umpire
Jurisdiction of the court to make an appointment under sub-section (2)
arises only when (he parties have failed to come to an agreement in respect
of appointment of a new arbitrator or umpire within the time of 15 days
allowed for so doing.
Government of Bangladesh Vs. M/S. Samir & Co- (1976) 28 DLR (SC) 21.
|
Government of Bangladesh Vs. M/S. Samir & Co. |
28 DLR (SC) 21 |
Section 8(2)
|
While passing an award the Arbitration must consider the evidence produced
before him otherwise it will not be an award at all– The respondent has
not prayed for interest but the High Court Division has given 16% interest
to the contractor-respondent till realisation of award passed by the
Arbitrator.
Giving such interest to the respondent without any claim by it is nothing
but a gratuitous relief which is not permitted by law and even no reason
was assigned therefor. We do not approve of giving such interest without
any prayer made by the respondent.
While passing an award the Arbitration must consider the evidence produced
before him otherwise it will not be an award at all. This civil appeal is
allowed and the impugned judgment and order passed by the High Court
Division is set aside. ...Ministry of Defence, Bangladesh =VS= M/S. Aminul
Haq, (Civil), 2020 [9 LM (AD) 106]
....View Full Judgment
|
Ministry of Defence, Bangladesh =VS= M/S. Aminul Haq |
9 LM (AD) 106 |
Section 9(b)
|
Appointment of Arbitrator-notice of such appointment upon other party for
the purpose is imperative because only upon such notice being given the
right of each party to appoint Arbitrator arises but the right to appoint
the sole Arbitrator arises only if there is failure or default on the part
of other party to appoint his own Arbitrator within the statutory period as
required under law and failure to give such notice renders very appointment
of Arbitrator itself is illegal and imperative. In the facts, circumstances
and materials on record it appears that the award made by the sole
Arbitrator is a nullity and without jurisdiction under the provisions of
the Arbitration Act, 1940.
Govt.of Bangladesh and others-Vs.-MOL Enterprise INC. 4 ALR (AD) 2014 (2)
29
|
Govt.of Bangladesh and others-Vs.-MOL Enterprise INC. |
4 ALR (AD) 29 |
Section 14(2)
|
The Arbitration Act 1940
Section 14(2) read with
The Limitation Act
Article 181
The award to be filed in Court should be made within 3(three) years from
the date when right to apply accrues–
Knowledge of the filing of the award acquired otherwise than in the way
prescribed by section 14(2) should be distinguished from the service of
notice under section 14(2) of the Act, and that if no notice envisaged by
that section is served, direction to cause the award to be filed in Court
should be made within 3(three) years from the date when right to apply
accrues according to the residuary provision of Article 181 of the
Limitation Act.
.....Gomati Water Development Division, Comilla=VS=Md. Shah Alam, (Civil),
2018 (1) [4 LM (AD) 121]
....View Full Judgment
|
Gomati Water Development Division, Comilla=VS=Md. Shah Alam |
4 LM (AD) 121 |
Section 14
|
The partition award which was made on 16.7.48 was not made a rule of the
court and as such it is not valid and legal as contended by the learned
petitioner’s Advocate.
Held : With regard to the award it may be stated that the award was made 30
years back — from the materials on record it is abundantly clear that the
award which was made between the parties 30 years back was acted upon and
in that view of the matter the jointness of the properties and common
business cannot be denied. The parties have voluntarily acted on the basis
of the award 30 years back. Further in view of the fact that the plaintiffs
are in part possession of the suit properties in their own right, the
submission of the learned Advocate that the award is not legal and valid
cannot be accepted. [Para-71]
M.F. Ban & Ors. Vs. A. Razzaq & Ors. 4BLT (AD)-151
|
M.F. Ban & Ors. Vs. A. Razzaq & Ors. |
4 BLT (AD) 151 |
Section 16
|
Setting aside of an award by the court does not by itself supersede the
arbitral reference—
Section 16 leaves it to the discretion of the court while setting aside an
award to decide as to if the arbitral reference will be superseded thereby
or not. Unless the court expressly decides so to do, the setting aside of
an award does not by itself construct any such supersesion and as such the
arbitral reference shall continue notwithstanding the setting aside of the
award.
M/s. A. Z. Co. Karachi Vs. M/s Maula Boksha- (1965) 17 DLR (SC) 404.
|
M/s. A. Z. Co. Karachi Vs. M/s Maula Boksha |
17 DLR (SC) 404 |
Section 17
|
If the award directs a party to do an act which is prohibited by law or if
it is otherwise patently illegal or void, it would be open to the Court to
con-sider this patent defect in the award suo motu and when the Courts act
suo motu, no question of limitation can arise.
The Project Director, P.L. and another. -Vs.- Latiff Company Ltd. (Civil)
14 ALR (AD) 45-49
|
The Project Director, P.L. and another. -Vs.- Latiff Company Ltd. |
14 ALR (AD) 45 |
Section 20
|
Scope of challenge when parties submitted to the jurisdiction—
After the appellant, had submitted to the jurisdiction of the Court in an
arbitration proceeding arising out of contractual disputes and the
Arbitrators appointed by the Court from the respective panel of the parties
submitted, the award which was made rule of the Court, subsequently the
award so made cannot the challenged on the ground of non-maintainability of
the contract becoming not valid and enforceable. Award may be set aside
only on the ground of misconduct on the part of the arbitrators.
Bangladesh Telegraph and Telephone Board Vs. Lithi Enterprises Ltd- 3, MLR
(1998) (AD) 275.
|
Bangladesh Telegraph and Telephone Board Vs. Lithi Enterprises Ltd. |
3 MLR (AD) 275 |
Section-23, 30
|
The findings arrived at and the decision made by the High Court Division
having been based on proper appreciation of law and fact do not call for
interference. .....Md. Kabir & others =VS= Dreebajati Hore & others,
(Civil), 2016-[1 LM (AD) 332]
....View Full Judgment
|
Md. Kabir & others =VS= Dreebajati Hore & others |
1 LM (AD) 332 |
Section 28
|
Explanation 1— Submission to foreign jurisdiction for arbitration—
Explanation 1 of section 28 of the Contract Act provides for submission of
parties to the contract to foreign jurisdiction in matter of resolution of
dispute arising out of contractual obligation by arbitration. Since no
state can live in isolation and when reciprocal arrangements in commercial
deals are recognised, such provision relating to submission to foreign
jurisdiction is not opposed to Stale Sovereignty and inconsistent with
independent State Policy.
Bangladesh Air Service (Put.) Lid. Vs. British Air Ways P. L. C- 2, MLR
(1997) (AD) 169.
|
Bangladesh Air Service (Put.) Lid. Vs. British Air Ways P. L. C |
2 MLR (AD) 169 |
Section 29
|
Under this provision if award is brought to the Court then the Court in its
discretion may or may not grant interest on the award amount and it is not
the jurisdiction or power of the Arbitration/ Umpire.The jurisdiction or
power of Arbitrator/Umpire, in the absence of any agreement, to grant
future interest in the awarded amount till realisation thereof is not
within the power or jurisdiction of the arbitrator/Umpire but such power of
granting interest on the awarded amount or part thereof till realisation
could be awarded as per provision of section 29 of the Arbitration Act
which is within the jurisdiction of the Court or in other words, when the
Award is brought to the Court then the Court in its discretion may or may
not grant interest on the award amount or part thereof as decreed till
realisation.
Janab Md. Asalat Zaman -Vs.- The State 3 ALR(2014)(1)(AD) 205
|
Janab Md. Asalat Zaman -Vs.- The State |
3 ALR (AD) 205 |
Sections 30 and 33
|
During pendency of the order of stay any further order is clearly a
misconduct.
The Appellate Division observes that it is patently clear that the order
appointing the learned Arbitrator was stayed by the court making the
appointment and the fact of the stay order and the challenge against the
appointment before the High Court Division was brought to the notice of the
learned Arbitrator. It appears that the High Court Division has overlooked
this aspect of the case. It is also apparent that the learned Arbitrator
acted beyond his jurisdiction when the order appointing him as Arbitrator
was stayed. These facts having been brought to his notice in the
application for adjournment, it was clearly misconduct on the part of the
learned Arbitrator to proceed with hearing the arbitration and making an
award during the pendency of the order of stay.
Secretary, BADC -Vs.- M/S. Greeners Engineering Ltd. 5 ALR (AD)2015(1) 131
|
Secretary, BADC -Vs.- M/S. Greeners Engineering Ltd. |
5 ALR (AD) 131 |
Section 31(1)
|
Jurisdiction of Court for filing award—
The award shall be filed in a court for making the award rule of the court
which has the jurisdiction to entertain a suit in respect of the subject
matter of the reference as defined under section 2(c) of the Arbitration
Act.
Abdul Karim Dobash and others Vs. Abdur Razzak Dobash and others- 4, MLR
(1999) (AD) 133.
|
Abdul Karim Dobash and others Vs. Abdur Razzak Dobash and others |
4 MLR (AD) 133 |
Sections 32 and 33
|
No suit is maintainable without recourse to section 33—
A clear bar is put under section 32 of the Arbitration Act, 1940 against
maintain- ability of a suit challenging arbitral agreement or for setting
aside an award without having recourse by way of application under section
33 of the Act.
Badsha Mia and others Vs. Abdul Kader and others. 5 MLR(2000)(AD) 66.
|
Badsha Mia and others Vs. Abdul Kader and others |
5 MLR (AD) 66 |
Section 33
|
Arbitration Act, 1940
Section 33
Limitation Act(IX of 1908)
Section 158
The pleas that the application for setting aside of the application under
Section 30 of the Arbitration Act, 1940 having been filed beyond 30 days of
the service of notice, the award can not be set aside and appeal is liable
to be dismissed are of no substance and such plea is a pleas are dying
similar in the deep sea trying to save his life catching even a straw. In
view of the finding on materials that the award is void abinitio and as
such a nullity, the question of furnishing the statutory deposit as the
pre-condition for application for setting aside of the award pursuant to
the proviso to Section 33 of the Arbitration Act, 1940 for setting aside
the award is a myth and such requirement of law is not applicable in the
peculiar facts and circumstances of this case. Govt.of Bangladesh -Vs.- MOL
Enterprise INC. 6 ALR (AD) 2015 (2)33
|
Govt.of Bangladesh -Vs.- MOL Enterprise INC. |
6 ALR (AD) 33 |
Section 34
|
Jurisdiction of the Civil Court —The Appellant filed Money Suit against
the respondent No.1-6 —the respondent took steps on several occasions to
adjourn the case in the name of filing Written statement
—Held; when the arbitration proceedings commences the parties should be
ready and willing to do all things necessary to the proper conduct of the
arbitration. But as it appears before ICC Paris the respondent Nos. 1 and
2, expressing their unwilling to continue with the Arbitration proceeding.
backed out from the arbitration proceedings stating that ‘they will not
bear any further expenses in the arbitration proceeding. In view of above,
the arbitration proceeding could not commence at Dhaka —While staying the
proceedings of the trial court, did not at all take into consideration the
two basic lawful aspects of the case i.e. the respondent. Nos.3-6 took
steps on several occasions to adjourn the case in the name of filing
written statement and that the respondent Nos. 1 and 2 backed out from the
arbitration proceedings which was pending before the ICC Paris. So the
judgment and order dated 15.5.2000 passed by the High Court Division in
staying the suit cannot be sustained.
Popular Biscuit Ltd. Vs. Beximco Bremer Export Contor Brand, Repprecht Gmbh
& Ors 15 BLT (AD)282
|
Popular Biscuit Ltd. Vs. Beximco Bremer Export Contor Brand, Repprecht Gmbh & Ors. |
15 BLT (AD) 282 |
Section 34
|
Provides for stay of proceedings of suit for arbitral
reference—
Defendants in a suit before taking, any steps may seek for staying further
proceedings of the suit and referring the dispute for resolution through
arbitration. After certain steps are taken by the defendants upon
submission to the jurisdiction of the Civil Court, further proceedings of
the suit can not be stayed as contemplated under section 34 of the
Arbitration Act, 1940. Popular Biscuit Limited Vs. Biximco Bremer Export
Contor Brand and others 11 MLR (2006) (AD) 366.
|
Popular Biscuit Limited Vs. Biximco Bremer Export Contor Brand and others |
11 MLR (AD) 366 |
Section 39
|
It is well settled that in an appeal under section 39 of the Arbitration
Act the decision of the arbitrator cannot be reviewed and the appellate
Court cannot construct an award for the arbitrator. The appellate Court is
only to see whether the award can be challenged on the ground of excess of
jurisdiction or income, petence or misconduct on the part of the
arbitrator.
Bangladesh vs. National Construction And Consult Ltd. 17 BLD (AD) 308.
|
Bangladesh vs. National Construction And Consult Ltd |
17 BLD (AD) 308 |
Section-41
|
Rule—4 of the Second Schedule Read with Section-41
In the matter of a company, it is advisable that the court should not
interfere by granting injunction where in the internal management and
functioning of the company may be affected. (Para-4)
Mr. Mainul Hosein Vs. Mr. Anwar Hossain 4 BLT (AD)-76.
|
Mr. Mainul Hosein Vs. Mr. Anwar Hossain |
4 BLT (AD) 76 |