"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, June 30, 2016

Prejuding a Dispute in a Section 11 Related Proceeding? A Case Comment

It was expected that the Supreme Court would pass several judgements on the first day of the Court after the vacations (29.06.2016). The Supreme Court did pass several decisions and twenty three of them have been uploaded onto the Court’s website. One such decision is M/s. Emm Enn Associates v. Commander, Works Engineer (Civil Appeal 7184/2008)(AM Sapre & A. Bhushan, JJ.), which is the subject of this post. 

The Supreme Court granted Special Leave to Appeal against a decision by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 refusing to refer a dispute to arbitration. The reason for refusal by the High Court was that there was no live claim. Payment on the final bill was made in April 2001 and the Appellant chose to invoke arbitration in February 2005.

An interesting argument was put forth by the Appellant that the Audit Clause contained in the Contract meant that limitation period would begin to run only from the expiry of the two year period specified in the Contract. If this was so, the two year period would have expired in April 2003 and the arbitration would have been invoked within three years from April 2003. 

Readers may note that Audit Clause is a standard term in Government Contracts, which allows the Government to (a) audit and examine the relevant documents and papers of the Contractor for any over-payment or other erroneous payment by the Government entity to the Contractor, and (b) if such over-payment or erroneous payment is discovered, demand/ adjust the said amount from the Contractor. The power to do so exists for a limited period, usually three to four years. The interpretation of audit clauses has rarely come up before the courts. Unfortunately, the Supreme Court did not give a ruling on the impact of the audit clause on limitation, although it was raised by the Appellant (see, Para 24-25). 

[The Court got its reference to case law wrong. Having extracted Para 13(!) of the SBP & Co., the Court stated that it had cited para 14 of the judgement in “Indian Oil Corporation Ltd.” The extracted para was para 13 and it was not from Indian Oil Corpn. but was from v. SBP v. Patel Engineering.] 

The Court decided the issue on based on different reasons. The Court found that the Appellant had signed the No-Claims Certificate (as is a practice in Government Contracts) only as regards the undisputed portion of the final Bill and the payment was made for the undisputed portion alone. As regards the disputed portion of the final bill, the Court held that whether there was a live claim or not cannot be decided, on facts, in the proceedings under Section 11 but only by the arbitrator. 

Having gone ahead with this view, the court unfortunately chose to comment on the merits of the case: “The claim raised by petitioner in the facts of the case could not have been said to be a dead claim.”. Surprisingly, the Court did not give any substantive reason for it but merely stated that such a conclusion was drawn “[e]specially in view of the additional documents which have been placed” before it. The reason why it is so was not fully substantiated by the Court. 

Ultimately, the Court remitted the case to the High Court to pass consequential orders for appointment of the arbitrator for deciding the disputes between the parties. 

Three questions:
  1. If the Court stated that it was not right on the part of the High Court to decide the question as to whether there was a dead claim or not, why did it choose to give a finding on the same issue? The arbitrator ought to consider the view of the Supreme Court on this point as only a prima-facie view and has to decide the issue de novo and in full, especially given that the Supreme Court did not offer a full justification as to why it reached the conclusion that the claim was not dead one. The only justification offered, that the No-Claims Certificate was only as regards undisputed amounts is not relevant in determining whether the debt was long time-barred in the facts. No other specific and compelling reason was given by the Court.
  2. Why did the Court not decide on the contention regarding the impact of the Audit Clause on limitation when it could have either taken up the issue head on or could have stated that it was for the arbitrator to decide? 
  3. The dispute related to an Agreement that was entered into in 1998. The dispute arose by 2001. The Special Leave to Appeal was probably granted in 2008. The adjudication of the dispute is yet to begin. Despite this, was the Court correct in remitting the matter back to the High Court for appointment of arbitrators? [There was two ways of seeing this. On the one hand, it could be argued that the Court simply wasted another month in the long march of the parties towards justice by remitting the matter. See, this article (pardon the self-promotion) at p.28 & 34) On the other hand, it could be argued that the Supreme Court could not have appointed the arbitrator since it probably did not have a list of arbitrators from whom it could appoint a suitable arbitrator depending on the location of the parties and the High Court was better suited to appoint a suitable arbitrator.] 

Monday, June 6, 2016

Part III: Applicability of the 2015 Arbitration Amendment Act to Arbitration Related Court Proceedings: The Lok Sabha Debates

We had done three posts on the retrospective operation of the Arbitration and Conciliation (Amendment) Act, 2015:

a) The blog post titled “Applicability of the 2015 Arbitration Amendment Act to Arbitration Related Court Proceedings: Part I” posted on 04.04.2016 in the Practical Academic Blog. The post dealt with Section 26 of the Amendment Act on the point and the conflicting decisions of various High Courts on the retrospective applicability of the 2015 Amendments. (link)

b) The blog post titled “Part II: Applicability of the 2015 Arbitration Amendment Act to Arbitration Related Court Proceedings posted on 07.04.2016 dealt with Thyssen (SC:1999) and compared of Section 26 of the 2015 Act and Section 85(2)(a) of the 1996 Act (link)

c) The blog post titled “Is the New Arbitration and Conciliation (Amendment) Ordinance, 2015 Prospective or Retrospective?” published in the blog on 28.10.2015 noted the possible divergence of views of different courts on the question (link)

It was suggested to this blawgger that these posts do not deal with the Lok Sabha Debates on the point. Hence, this post addresses the debates of the Lok Sabha on the applicability of the 2015 Amendment Act to pending arbitral proceedings. 

Before embarking on the Lok Sabha debates, it would do well to contextualise the discussion. The predecessor to the relevant Lok Sabha Debates seems to be the judgement of the Hon’ble Madras High Court in Delphi TVS v. Union of India (24.11.2015: MANU/TN/3726/2015) where the Court directed the Union of India (rep. by the Learned Addl. Solicitor General Shri Su. Srinivasan) to examine, among other things, if the Ordinance would apply to pending proceedings. The Court referred to the absence in the Ordinance of Section 85A recommended by the Law Commission and also predicted the possibility of unnecessary litigations on the question. The relevant portions of the judgement are extracted below:


"4. The first respondent, while filing the counter-affidavit, especially since the matter is at the Ordinance stage, must examine the issue of pending arbitration proceedings, as the provision in question apparently is not one which was recommended by the Law Commission in this form. There would be huge litigations unnecessarily generated in respect of the pending arbitrations and the provision being procedural in nature fixing the time limit, it can be clarified that it would be either not applicable to the pending arbitrations or if it is applicable to the pending arbitrations, the time period specified therein would commence from the date of the Ordinance, to obviate such unnecessary litigations.
5. In the aforesaid context, the learned counsel for the petitioners further points out that another issue which has given rise to considerable litigation already is the non-introduction of the proposed Section 85A by the Law Commission, which dealt with the aspect as to which provision would apply prospectively and which would apply retrospectively."

As regards the Lok Sabha Debates on the question, it appears that on 17.12.2015, an MP, Shri Jithender Reddy (Mahabubnagar) raised the issue of non-incorporation of the Law Commission’s Section 85A in the Bill. It was strongly recommended by the said MP to incorporate Section 85A into the Arbitration and Conciliation (Amendment) Bill considering that the Bill was introduce to install a sense of confidence in our judicial process.  (p. 151, Lok Sabha Debates dt. 17.12.2015):

"The Law Commission of India, in its 246th Report, which recommended amendments to the Arbitration & Conciliation Act, 1996, had proposed to insert a new Section 85-A to the Act, which would clarify the scope of operation to each amendment with respect to pending arbitration proceedings. However, this specific recommendation has not been incorporated into the Ordinance. One of the reasons for bringing about this ordinance is to instil a sense of confidence in foreign investors in our judicial process, with regard to certainty of implementation in practice and ease of doing business. Therefore, it is strongly urged to incorporate Section 85A as proposed by the 46th Report of the law Commission of India, where it clearly states the scope of operation of the amended provisions."

Another MP, Shri  Mekpati Raja Ram Mohan Reddy (Nellore) wanted the Bill to apply even to pending “cases where the arbitrator is already appointed” (p. 158).


Importantly, the Minister of Law and Justice stated (at p. 190): “One of the suggestions was that it should have retrospective effect. If the parties agree, then there will be no problem. Otherwise, it will only have prospective effect.” (emphasised)

It is not known if there was an agreement between the parties for applicability of the Act retrospectively. At least the Debates do not disclose such an agreement. Thereafter the Law Minister wanted to introduce Section 25A to the Bill which is Section 26 of the 2015 Amendment Act. The Bill was passed in this form. From the TVS Delphi decision and the statement made by the Law Minister, it would seem that he was in favour of applicability of the 2015 amendments to the pending proceedings only if all the parties agreed to it. From the legal theory angle, a statement made by a member of the Parliament cannot be taken as the view of the Legislature but it would seem that the intent behind Section 25A of the Bill (Section 26) was to make the 2015 Amendment inapplicable to pending arbitral proceedings given the absence of indication of consensus in the Lok Sabha on applying the 2015 Amendments to pending arbitral proceedings. 

Certain developments have taken place on the issue since the last post on the topic. These are discussed below: 

In M/S. Reliance Capital Limited vs Chandana Creations (17.05.2016), the question before the Calcutta High Court was whether execution proceedings can continue notwithstanding the pendency of a Section 34 application against the arbitral award sought to be executed. The Single Judge held that the 2015 Amendment Act did not apply to arbitral proceedings commenced prior to 23.10.2015. The Court held: 

"The bare look of the said provision gives an impression that the arbitral proceedings which commenced before coming in the said amended Act shall still be regularized and guided by the unamended provisions unless the parties agree that the amended provisions would apply."

The Court also noted that there was another decision of the Calcutta High Court [Shri Nitya Ranjan Jena vs. Tata Capital Financial Services Limited (AP No. 15 of 2016, GA No. 145 of 2016, decided on 2nd March 2016) which concurred with the aforesaid view. Curiously, the Single Judge did not cite Tufan Chatterjee v Rangan Dhar, which was a Division Bench judgement of the same High Court and which held the contrary view. 

The Gujarat High Court seems to have made the 2015 Amendment Act apply in arbitral proceedings pending before 23.10.2015 for termination of mandate of arbitrator. 

At the end of the day, the post dt. 28.102.2015 and the decision of the Madras High Court dt. 24.11.2015 were correct in predicting the difference of views on the issue.

Thursday, May 19, 2016

Supreme Court Undermines Sanctity of Bank Guarantees

The state of commercial law in India is in doldrums. This is exemplified by a recent decision of the Supreme Court in Gangotri Enterprises v. Union of India (Civil Appeal No. 4814/2016 dt. 05.05.2016) which not only erroneous but against the settled principles regarding restraint of bank guarantees.

Some of the salient facts in the case are that Northern Railways wanted to encash bank guarantee given by the Contractor in respect of a contract which was apparently satisfactorily performed. Northern Railways wanted to do so in respect an alleged breach of another contract. Northern Railways took support of a clause in the Contract which entitled it to encash bank guarantees given under a contract to set-off “any moneys… due” under that contract or any other contract.

The Contractor approached the court to restrain Northern Railways from encashing the bank guarantee. The question went up to the Supreme Court. The Supreme Court held, inter alia, the following:

  • The sum due meant a sum for which is presently payable and due and therefore, such sums may be recovered from the security deposit only if the sum which is to be set-off is payable. Northern Railways has sought encashment in respect of an amount which is in the nature of damages. But the Contractor has disputed the same and is a subject matter of an arbitration.
  • Sum sought to be recovered was in respect of a contract distinct from the contract under which the bank guarantee was furnished.
On the basis of the above, the Court concluded that there was “a prima facie case in their favour for granting of injunction against the respondents so also they have made out a case of balance of convenience and irreparable loss in their favour…”

It is humbly submitted that this decision is grossly erroneous. The decision of the Supreme Court does not seem to be a decision on injunction against bank guarantee but on a claim for damages for wrongful invocation of bank guarantee. Following are the reasons:

The Court has not taken into consideration the settled position of law that injunction will lie against bank guarantees only if there is fraud or special equities. In this case, no fraud was made out by the Contractor. Special equities would mean that the Contractor should establish that it would be impossible to reimburse himself even if he ultimately succeeds in a case for damages for wrongful invocation of bank guarantee. The Supreme Court in the instant case has not gone into such an enquiry at all! 

It is well-established that the three pronged test of prima facie case, balance of convenience and irreparable loss would alone not be sufficient in the case of injunctions against bank guarantees but the petitioner should establish fraud or special equities.

The Supreme Court fell in gross error when it went on to the merits of correctness of the decision of Northern Railways in invoking the bank guarantee. This is not required in a proceeding relating to injunction against a bank guarantee.

For all these reasons, the decision of the Supreme Court is grossly erroneous and has to be held per incurium. The decision of the Supreme Court is binding on all courts in India. This decision is likely to be cited in several courts in India in support of injunction against bank guarantees thereby undermining the sanctity of bank guarantees and thereby commerce. It is sad that when there is an urgent pressing need to overhaul commercial law in India, decisions like these take the Indian legal system several steps backwards. 

Thursday, May 12, 2016

Symposium Alert: 9th Annual NLSIR Symposium 2015-16 – Goods and Services Tax: The Changing Face of Fiscal Federalism in India

Symposium Announcement from NLSIU is quoted as was sent (with a few formatting changes):

The National Law School of India Review (NLSIR), the flagship journal of the National Law School of India University (NLSIU), Bangalore is pleased to announce the 9th Annual NLSIR Symposium on Goods and Services Tax: The Changing Face of Fiscal Federalism in India scheduled to be held on 14-15 May, 2016 at the International Training Centre, National Law School of India University, Bangalore. This year, the Symposium seeks to engage with the topical issue of the Goods and Services Tax (GST) regime that is proposed to be introduced by the Constitution (122nd Amendment) Bill, 2014. Having been stalled for a significant period of time, the passing of the Bill is now imminent, and the far reaching changes that it makes to the indirect taxation regime in India make it a ripe topic for detailed critical examination. Given the novelty of many of the proposed changes, the Symposium seeks to promote an informed discussion among various stakeholders regarding the impact and legal implications of such changes. 

Confirmed speakers for the Symposium include Mr. Arbind Modi (Joint Secretary, Tax Policy and Legislation, Ministry of Finance), Dr. M. Govinda Rao (Member, Fourteenth Finance Commission), Mr. N. Venkataraman (Senior Advocate, Supreme Court of India), Mr. Upendra Gupta (Additional Commissioner Member, CBEC (GST Cell)), Mr. Sudhir Krishnaswamy (Faculty, Azim Premji University), Mr. Alok Prasanna Kumar (Senior Resident Fellow (Vidhi Center for Legal Policy). Ms. Jayashree Parthasarathy (Partner, BMR & Associates LLP), Mr. Karthik Sundaram (Associate Partner, Economics Law Practice), Mr. Madhukar N. Hiregange, C.A., (Partner, Hiregange & Associates, Bangalore), Mr. TR Venkateswaran (Indirect Tax Director, PwC) and Mr. B. Sriram, Partner (Tax and Regulatory Practice, E&Y) among others. 
This year, the discussions will be divided into four panels:

Session I: Constitutional Challenges and Concerns
(Forenoon, May 14, 2016, Saturday)

Session II: Understanding the Dual GST System
(Afternoon, May 14, 2016, Saturday)

Session III: Integrated Goods and Services Tax (IGST)
(Forenoon, May 15, 2016, Sunday)

Session IV: Procedural Hurdles and Concerns in Implementing GST
(Afternoon, May 15, 2016, Sunday)

Registration fee for the Symposium is Rs. 500 for professionals and Rs. 250 for students. The payment has to be made at the venue. All those interested are requested to register at: https://docs.google.com/forms/d/1flQ1Zv86UPCAjLOlmYglY5WK_iDhj6DR3r7kPxMKqXU/viewform

For more details visit our Facebook page at https://www.facebook.com/events/997877953621577/

For further information, please contact Ashwini Vaidialingam (Chief Editor): +91-9663370310; Kaustav Saha (Deputy Chief Editor): +91-9916707621 or email us at mail.nlsir@gmail.com.