Act/Law wise: Judgment of Supreme Court of Bangladesh (AD & HCD)
Arbitration Act [I of 2001] (সালিস আইন) | |||
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Section/Order/ Article/Rule/ Regulation | Head Note | Parties Name | Reference/Citation |
Article 3 |
Article 3 of the First Schedule to the Act — Time for award 4 months
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Government of Bangladesh vs Jalaluddin Ahmed | 37 DLR (AD) 27 |
Section 3(3), 6, 7A & 12 r/w |
The Arbitration Act, 2001
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Dhaka North City Corporation (DNCC) =VS= Learned District Judge | 16 LM (AD) 605 |
Section 6 |
When a party before the arbitral tribunal does not raise any objection with regard to non-compliance of any provision of the Arbitration Act or with regard to non-fulfillment of any requirement set out in the arbitration agreement within the time prescribed in the Arbitration Act and/or within the time-limit stipulated in the arbitration agreement or, in the absence of any stipulation as to the time in the law or in the arbitration agreement, within a reasonable time without making any delay, for dealing with that scenario, the Legislature man-dated the arbitral tribunal and the Courts to take a presumption that the aforesaid party has waived his right to so object. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
7K (1) |
The substantive prayer in the Arbitration Miscellaneous case No. 7 of 2019 under section 7K (1) of the Arbitration Act, 2001 is basically a prayer for an order of restraint till arbitration proceedings are initiated and nothing else. Further I am also of the considered view that section 7K (1) sub-section Uma including other sections only contemplate the passing of an ad-interim order in case of urgency to address certain circumstances or situations either during an arbitration proceeding or before an arbitration case is initiated. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment |
Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 7ka (1) |
The provisions of any special statutory enactment must be construed
strictly unless a different intention is otherwise implied:
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Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 7ka |
It is a principle of law that a statute in particular where a statute is a special piece enactment of law and addressing certain situations and circumstances, in that event unless a different intention is expressed elsewhere in the law the statute must be construed and interpreted in accordance with the strict meaning of the language as it expressly appears. The language of section 17(ka) is quite clear and there is no ambiguity as such in the provision. It is also a settled principle of law that where a specific provision of law is expressly stated such specific provision shall prevail over the general law. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment |
Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 7K |
While issuing an order of ad-interim restraint or injunction the learned
District Judge is not empowered to pass an order under section 45 of the
Evidence Act, 1872:
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Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 7K, 17(ka) |
The power to issue an order for examination of any signature by hand writing expert is conferred upon the arbitral tribunal only under the provisions of section 17(ka) of the Arbitration Act, 2001. Section 7K has limited powers and the civil court cannot travel beyond the limited powers while exercising the power conferred upon it under Section 7K of the Act of 2001. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment |
Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 7 and 10 |
Civil suit is, never ipso facto intended to be barred in view of the
existence of an arbitration clause in the agreement–
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Roads & Highway Department (RHD) =VS= Md. Nurul Islam | 7 LM (AD) 132 |
Section 7 |
Constitution of Bangladesh
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Energy Prima Ltd. Vs. Bangladesh & ors | 8 SCOB [2016] HCD 84 |
Sections 9(1) & (2) |
Circumstances when the parties bound themselves for arbitration:
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Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp | 18 SCOB [2023] HCD 213 |
Sections 9, 12, 17 |
Arbitration Act, 2001 Sections 9, 12, 17 Absent of Arbitration agreement would not be a bar to arbitration when the parties consented mutually: In the case of international arbitration, this Court and, in the case of domestic arbitration, the District Judge Court is obligated to examine the issue as to whether there is an existence of an agreement between the parties for holding arbitration before entertaining an application under any provision/Section of the Arbitration Act. However, in absence of the arbitration agreement, if the parties decide to go for arbitration during pendency of an application under any Section of the Arbitration Act, they would be competent to proceed with arbitration in that the scheme of arbitration is founded on the mutual consent of the parties and there is no provision within the four corners of the Arbitration Act prohibiting initiation of arbitration proceeding during pendency of an arbitration application before this Court/the District Judge Court. ...Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp., (Civil), 18 SCOB [2023] HCD 213 ....View Full Judgment |
Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp | 18 SCOB [2023] HCD 213 |
Section 10 |
When parties to the suit submit themselves to the jurisdiction of the Civil
Court, the dispute should not be referred to arbitration.
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Executive Chairman, BEPZA -Vs.- M/S. Abdul Mannan | 3 ALR (AD) 168 |
Section 12 |
Code of Criminal Procedure [V of 1898]
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Mushfequr Rahman -Vs.- The State | 2019 ALR (HCD) Online 155 |
Sections 12 |
Existence of an arbitration agreement is a pre-condition for invoking the
power under sec 12 of the Arbitration Act:
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Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp | 18 SCOB [2023] HCD 213 |
Section 12 |
Each party to appoint their own arbitrator to proceed arbitration expeditiously– The High Court Division held that the Court below did not commit any illegality either by rejecting the application for dismissal of the arbitration miscellaneous case or in appointing two arbitrators, and thereby discharged the Rule. Both partiers indicated that they would each wish to appoint their own Arbitrator. Consequently, the learned Advocate for the plaintiff-respondent herein suggested the name of Mr. Justice Md. Abdur Rashid, a retired Judge of the Supreme Court of Bangladesh, and the petitioner before us (defendant) suggested the name of Mr. Justice Moyeenul Islam Chowdhury, a retired Judge of the Supreme Court of Bangladesh as his nominated Arbitrator. Appellate Division asked both the learned Advocates appearing for the parties concerned whether they have any objection to such appointment, to which each indicated that his client does not have any objection. Since each party has chosen his own arbitrator and there is no objection from his opponent, let the matter of arbitration proceed expeditiously in accordance with law. The judgement and order of the High Court Division is set aside and the Civil Petition for Leave to Appeal No.1976 of 2021 is disposed of. ...Quamrul Huda =VS= Mohammad Nazrul Islam Alam, (Civil), 2021(2) [11 LM (AD) 56] ....View Full Judgment |
Quamrul Huda =VS= Mohammad Nazrul Islam Alam | 11 LM (AD) 56 |
Sections 13 & 14 |
A party to an arbitration agreement may challenge any arbitrator’s competency and impartiality by making a written representation to the arbitral tribunal within 30 (thirty) days of knowing about the incompetency or partiality of the concerned arbitrator. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Sections 17, 19 |
The power to decide on the existence of a valid arbitration agreement has
been conferred upon the arbitral tribunal not upon the learned District
Judge:
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Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 17(ka) |
The existence of an arbitration agreement may be decided by the civil court being the learned District Judge, but where the existence of an arbitration agreement so far as its validity is challenged or under question that question must be decided by the arbitral tribunal following the provisions of section 17(ka) of the Arbitration Act, 2001. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment |
Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Sections 17(ka), 19(2)(c) |
The legislature has conferred the power to decide as to whether a valid
arbitration agreement is in existence upon the tribunal only:
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Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 17 |
The Arbitration Act permits a party to an arbitration agreement to challenge the competency and impartiality of a single arbitrator or all the arbitrators by filing a written representation to the arbitral tribunal, so that the arbitral tribunal itself can give a decision on the aforesaid application for challenge. Also, if a party to the arbitration agreement raises question that the arbitral tribunal is not properly constituted, it is a mandatory duty of the arbitral tribunal to pass an Order on the issue. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Section 19(1) and 19(2) r/w sec. 17(ka) |
Section 19(1) provides that any objection challenging the jurisdiction of the tribunal shall not be raised later than the submissions of the statement of defence. Section 19(2) of the Act contemplate a situation where any objection may be raised that the tribunal is exceeding the scope of its authority in that event such objection shall be raised as soon as the allegation is raised. Therefore it clearly appears that section 19(1) and 19(2) read along with other provisions of chapter 5 including section 17(ka) also contemplate that an objection against the jurisdiction of the tribunal shall also be heard by the tribunal itself and not by any other forum. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment |
Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors | 17 SCOB [2023] HCD 119 |
Section 20 |
A petitioner, who has invoked Section 20 of the Arbitration Act, is under a mandatory obligation to satisfy the High Court Division that all the conditions stipulated in clauses (a) to (c) of Section 20(2) of the Arbitration Act are satisfied be¬fore entertaining or registering an application. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Section 20 |
The power invested in the High Court Division for entertaining an application under Section 20 of the Arbitration Act is not an independent power, for, it can be exercised by the High Court Division only upon being satisfied that (a) the determination of the question is likely to produce substantial savings in costs, (b) the application was submitted without any delay and (c) there is good reason why the matter should be decided by the Court. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Section 20(2) |
Section 20(2) of the Arbitration Act requires that the petitioner must simultaneously satisfy all the three conditions laid down in clauses (a) to (c) thereof, for, none of the clauses (a) to (c) ends up with the word ‘or’. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Sections 23, 25, 42 and 43 |
Arbitral Tribunal is mandatorily required to follow the procedure and deal
with the issues at dispute fairly and impartially—
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M/S Saudi Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corporation | 14 MLR (HC) 441 |
Section 23 |
As per section 23 of the Arbitration Act, the arbitrators are obligated to dispose of the disputes on perusal of evidence of the parties, if produced. So, there should be modalities how long and under what modes the arbitrators will maintain the evidences and other documents of the parties after giving the award, because those may be necessary for perusal in any legal proceeding if initiated challenging the award in the Court as mandated by law. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment |
.Mitul Properties Ltd Vs. M.N.H. Bulu | 18 SCOB [2023] HCD 257 |
Section 24 |
As per Section 24 of the Arbitration Act, 2001 the arbitral tribunal in resolving disputes is not bound to follow the provisions of the Code of Civil Procedure and the Evidence Act, which signifies that the Tribunal in a given case is set to dispose of any dispute according to the terms and reference having set forth by them. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment |
.Mitul Properties Ltd Vs. M.N.H. Bulu | 18 SCOB [2023] HCD 257 |
Section 27 |
The dispute as to the breach of conditions laid down in the PG itself is the subject matter of arbitration. The petitioner has already appointed arbitrator and, according to the provision of section 27 of the Act, the arbitration proceeding has already been commenced. The disputed question as to weather the PG has been placed in the bank, before or after it has expired, is to be decided by arbitrators, not by this court. Siemens Bangladesh Ltd vs RZ Power Ltd (Statutory Original) 17 BLC 772. |
Siemens Bangladesh Ltd vs RZ Power Ltd (Statutory Original) | 17 BLC 772 |
Section 30 |
read with Limitation Act, 1905; Article – 158
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M/s. Chittagong Steel Mills Ltd. Vs. M/s. T.M. Syndicate & Ors. | 20 BLT (HCD) 380 |
Section 33 |
We have scrutinize the entire order sheet but we do not find any order giving entry of such bond or security. No application for filling his bond or security filed by the opposite party as such, it is clear that this bond or security placed in the record must be in connivance with some black under hand tricks stealthily which thus can not be accepted. Since there is no order entertaining this bond or security in record we are taken a back how the learned Judge work on it and accepted it when law does not permit him to do so. It may presume that bond was filed beyond the period prescribed proviso to section 33 of the Act, as such, there was no order entertaining the bond on record as such we can safely say that no bond has been filed. Md. Shah Alain Vs. Bd. Water Development Board & Ors 20 BLT (HCD) 181. |
Md. Shah Alain Vs. Bd. Water Development Board & Ors. | 20 BLT (HCD) 181 |
Sections 39, 42, 43 and 44 |
A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted. .....Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 212] ....View Full Judgment |
Md. Nurul Abser =VS= Alhaj Golam Rabbani & others | 1 LM (AD) 212 |
Sections 39, 42, 43 and 44 |
A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted. …Md. Nurul Abser Vs Alhaj Golam Rabbani & ors, (Civil), 6 SCOB [2016] AD 54 ....View Full Judgment |
Md. Nurul Abser Vs Alhaj Golam Rabbani & ors | 6 SCOB [2016] AD 54 |
Sections 42 and 43 |
Setting aside arbitral award on the grounds enumerated u/s 43—
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Bangladesh Power Development Board and others Vs. M/s Arab Contractors (BD) Ltd. and others | 15 MLR (AD) 153 |
Sections 42 & 43 |
The High Court Division was right in holding that the 3rd arbitrator was neither consulted nor given an opportunity by the Chairman to deliberate and express his views on the issues before making and signing the award in question. Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd 15 BLC (AD) 156. |
Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd. | 15 BLC (AD) 156 |
Section 42 |
The term “জেলা জজ আদালত” as mentioned in Section 2(Kha) of the Arbitration Act, will be deemed as the ‘Court of District Judge’, not ‘persona designata’ for carrying out the object under Section 42 of the Arbitration Act, and any decision to be passed in a proceeding under Section 42 of the Act is amenable to revisional jurisdiction under the code of Civil Procedure. ...Mitul Properties Ltd Vs. M.N.H. Bulu, (Civil), 18 SCOB [2023] HCD 257 ....View Full Judgment |
.Mitul Properties Ltd Vs. M.N.H. Bulu | 18 SCOB [2023] HCD 257 |
Sections 42 and 43 |
Setting aside the arbitral award on ground of being opposed to law and
public policy—
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Saudi Arabian Air Lines Corporation, represented by its Country Manager Vs. M/S Saudi Bangladesh Services Company Ltd, represented by its Managing Director | 15 MLR (AD) 153 |
Section 42(2) r/w section 43 |
The Arbitral tribunal travelled beyond its jurisdiction by entertaining and
deciding issues which has not been referred to by the contending sides–
The issues framed for determination by the arbitral tribunal it appears
that no such issue was framed to determine whether the Department would get
anything because it made no counter claim against the clamant company.
Since there was no counter claim the tribunal rightly did not frame any
issue on it. But passing an award of taka six crores and odd or the reduced
amount of taka three crores and odd in favour the Department the tribunal
has travelled beyond the terms of reference and as such the same is beyond
its jurisdiction.
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Ministry of Communication, Bangladesh =VS= Startus Construction | 11 LM (AD) 89 |
Section 42 |
সালিশ আইন, ২০০১ এর ধারা ৪২ ও
তামাদি আইনের ৫, ২৯(২) ধারাঃ
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Big Boss Corporation Limited Vs. Army Welfare Trust | 17 SCOB [2023] HCD 57 |
Section 43 |
Arbitration award– Order sheet of the arbitration proceeding and the judgment of the High Court Division. We do not find any element as provided in section 43 of the Arbitration Act, 2001 for setting aside the arbitral award in the pleadings and other materials produced by the respondent. We also did not find any allegation and proof of fraud or corruption or the arbitration award has been made in contravention of law or the arbitrator have failed to give reasons in the arbitration award. The High Court Division has committed error of law in setting aside the arbitral award of the majority arbitrators. We find substances in this appeal. ...Saudi Arabian Airlines Corporation =VS= M/S Saudi Bangladesh Services Co. Ltd., (Civil), 2021(1) [10 LM (AD) 212] ....View Full Judgment |
Saudi Arabian Airlines Corporation =VS= M/S Saudi Bangladesh Services Co. Ltd. | 10 LM (AD) 212 |
Section 43 (1)(b) (ii) and (iii) |
The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments. .....TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456] ....View Full Judgment |
TATA Power Company Ltd. =VS= M/S Dynamic Construction | 1 LM (AD) 456 |
Section 43 |
The Arbitration Act, 2001
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Bangladesh Rural Electrification Board =VS= Bangladesh Energy Regulatory Commission | 14 LM (AD) 509 |
Sections 45 and 46 |
On a careful examination of sections 45 and 46 of the Arbitration Act, 2001 it appears that there is a forum, for seeking remedy against the execution of an Arbitration Award but the opposite-party No. 1 without making an application under section 46 of the Arbitration Act made an application under Order XXI, rule 29 of the Code. Therefore, in the facts and circumstances of the case vis-a-vis the provision of section 46 of the Arbitration Act, 2001 the grievance of the learned Advocate for the petitioner does not appear to be without substance. The learned District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice. Smith Co-Generation (BD) Private Limited vs Bangladesh PDB 15 BLC 704. |
Smith Co-Generation (BD) Private Limited vs Bangladesh PDB | 15 BLC 704 |
Section 53 |
Once a party to an arbitration agreement approaches any Court, all the parties to the said arbitration agreement shall have to go to that Court for filing any additional or consequential or ancillary or any independent application, until the arbitral proceedings finally comes to an end. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Section 53 |
There are two vital aspects of the provisions of Section 53 of the Arbitration Act. The first aspect is that through its non-obstante provisions, it seeks to herald that irrespective of any statements, stipulations and provisions to the contrary made in the Arbitration Act, or any other law, the pro-visions of Section 53 of the Arbitration Act shall stand. The second aspect is - if any party to the arbitration agreement registers its name in a Court for any purpose, that Court shall assume jurisdiction over the arbitration agreement and arbitral agreement in whose connection a party have moved before the Court. Ghulam Mohiud-din (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
Section 53 |
The specific jurisdictions conferred upon the High Court Division, thus, are not meant to have been taken away by the pro-visions of Section 53 of the Arbitration Act. Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others (Spl. Original) 2019 ALR (HCD) Online 174 ....View Full Judgment |
Ghulam Mohiuddin (Bhutto) -Vs.- Mrs. Rokeya Din and others | 2019 ALR (HCD) Online 174 |
A legal notice cannot be construed |
Appointment of Arbitrators under the Arbitration Act, 2001:
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Adv. Abu Saleh Ahmadul Hasan Vs. The State | 19 SCOB [2024] HCD 161 |