"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.

Saturday, September 13, 2014

Bombay High Court Follows Swiss Timing Instead of Maestro Engineers

We had noted in a previous post (Is this the End of N. Radhakrishnan v. Maestro Engineers? Swiss Timing v Organising Committee) the decision of the Supreme Court in Swiss Timing v Organising Committee, Commonwealth Games (May 2014: SC) where a Single Judge of the Supreme Court refused to follow a decision of a Two Judge Bench of the Supreme Court in N. Radhakrishnan v. Maestro Engineers (2009: SC) on the ground that it was rendered per incuriam

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Maestro Engineers was a decision by two judges of the Supreme Court while Swiss Timing was by a Single Judge. Therefore, the issue as to whether a Single Judge could effectively end the reign of a two judge precedent was expected to be canvassed while citing Swiss TimingIn Avitel Post Studioz Ltd v. HSBC PI Holdings (Mauritius) Ltd., a Division Bench of the Bombay High Court had the occasion to consider the binding force of Maestro Engineers. Therefore, the Court followed Swiss Timing and followed the ruling in Swiss Timing that Maestro Engineers was indeed rendered per incuriam despite the fact that one of the contentions was that Maestro Engineers prevailed over Swiss Timing due to the larger bench strength in Mestro Engineers. . 

It may however be noted that a Single Judge of the Calcutta High Court in Guiness Securities Limited vs Geeta Dilip Vyas has taken note of Swiss Timing but has leaned in favour of Maestro Engineers although he has not conclusively ruled on the issue. According to the Judge:

"In the instant case, there is no challenge to the existence of the arbitration agreement, or the agreement containing the arbitration clause. The arbitration is a mode of resolution of a dispute agreed by the parties. If the agreement is vitiated by fraud or by misrepresentation then it goes to the very root of the matter. Arbitration is consensual. A claim founded on the agreement containing an arbitration clause if is a product of fraud, the ratio of India House Hold and N. Radha Krishnan could apply." (emphasis supplied)

It is going to be interesting as to how the courts would deal with Swiss Timing. Going by the Supreme Court's pro-arbitration record in the past since 2012 (BALCO), Swiss Timing would probably be the end of Maestro Engineers

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