Arbitration
Act, 1950
Section
2(b)
Knowledge
of making of the award, if any, is not sufficient to fix one with the notice of
making of the award within the meaning of Article 178 of the Limitation Act.
Dhaka Leather Complex Ltd BCIC vs Sikder Construction Ltd and another 55 DLR
578.
Arbitration
Act, 1940
Section
9
Being
aggrieved by this judgment and order the present petitioner filed First Appeal
No.288 of 2002 before the High Court Division on the main ground that the
appointment of the sole arbitrator was illegal and as such the award passed by
him also was illegal and without jurisdiction. By the impugned judgment the
appellate court dismissed the appeal upon hearing both the parties holding that
the appointment of the sole arbitrator, in the given facts and circumstances,
was in accordance with Section 9(b) of the Arbitration Act, 1940 and as such
the said appointment was legal. Chairman BCIC vs. Anis U. Ahmed Tus- san
(Nazmun Ara Sultana J) (Civil) 9 ADC 181
Sections 9(1) & (2)
Circumstances when the parties bound
themselves for arbitration:
From a combined reading of the
provisions of sub-Sections (1) & (2) under Section 9 of the Arbitration
Act, it is crystal clear that a written arbitration agreement, either in a
clause of a main contract or in a separate agreement, must exist in order to
arbitrate any dispute between the parties. When (a) a written agreement
containing the arbitration clause is signed by the parties or (b) if the parties
through any written communication, which may be manual or digital, agree to
arbitrate or (c) if one party makes a written claim containing a stipulation of
holding arbitration in the event of denial of the claim and, in responding
thereto, the second party though comes up with a defense as to material claim/s
but remains silent about the proposal of holding arbitration, then, in those
scenarios, the law of our country dictates the Courts to hold that the parties
have bound themselves to go for arbitration. In addition thereto, if any
special law prescribes for resolving a dispute through arbitration, either upon
adopting the procedures laid down in the said special piece of legislation or
in reference to the Arbitration Act, then, there shall not be any question as
to having existence of any arbitration agreement. ...Agrocorp Int. Pte Ltd Vs.
Vietnam Northern Food Corp., (Civil), 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
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]
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
The Arbitration Act, 1940,
Section 31(2)
Plaintiff entered into an agreement
with the defendant, Bangladesh Agricultural Development Corporation (BADC) and
accordingly carried the goods. Over a dispute between the plaintiff and the
defendant according to clause 26 of the contract the matter was referred to
Arbitrator and Arbitration Case No. 13 of 1994 was started. The award was given
by the Arbitrator and the defendant BADC was filed Miscellaneous Case No. 16 of
1997 in the 5th Court of the Joint District Judge, Dhaka to set aside the
award passed in Arbitration Case No. 13 of 1994. Secretary, Bangladesh
Agricultural Development Corporation vs. M/S. M. Islam (M.M. Ruhul Amin CJ)
(Civil) 7 ADC 615
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.
Section 33-If the award is otherwise
patently illegal or void, it would be open to the Court to consider the defect
in the award suo motu and when the Courts act suo motu, the question of
limitation does not arise. Moreover, when the Court acts suo motu not no
question regarding making of deposit can arise.
The action of the arbitrator amounts
to misconduct when arbitrator ignores material documents produced and no award
can be given without any basis and an arbitrator must look into all the papers
and documents produced before it prior to making an award.
The conduct of the arbitrator in
making the award allowing the claim without himself looking into the report on
which the claim was based and without allowing the respondent an opportunity of
inspection thereof, amounts to misconduct of the arbitration proceedings,
resulting denial of natural justice and thus rendered the award liable to be
set aside.
The Appellate Division held that
misconduct is not a connotation of moral lapse. It comprises legal misconduct
which is complete if the Arbitrator on the face of the award arrives at an
inconsistent conclusion even on his own finding or arrives at a decision by
ignoring very material documents, which throw abundant light on the controversy
to arrive at a just and fair decision and it is in this sense that arbitrator
has misconducted the proceeding in the case. In this case there can be no
hesitation in setting aside such award. 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. The Appellate Division
does not approve of giving such interest without any prayer made by the
respondent. The High Court Division came to the finding that in this case one
of the parties went to make the award Rule of the Court and that required no
evidence. This is a very dangerous proposition and as such cannot be accepted.
While passing an award the Arbitration must consider the evidence produced
before him otherwise it will not be an award at all. In the light of the
findings made before, The Appellate Division finds substance in this appeal.
Accordingly, this civil appeal is allowed and the impugned judgment and order
passed by the High Court Division is set aside. Ministry of Defence, and
others. Vs.- M/S. Aminul Haq. (Civil) 21 ALR (AD) 201-206
Arbitration Act (x of 1940)
Section 33
Where the arbitrator has on the face
of the record committed illegality in awarding compensation and damage for
breach of contract, which is palpably absent from the contract itself, such
award may be challenged since the arbitrator, to that extent, acted beyond the
contract, which is the subject matter of arbitration. (22)
Arbitration Act (x of 1940)
Section 33
The rescission in the way and for
the reason that it was done, was not lawful, such action being beyond the terms
and conditions of the contract. Equally, deductions from the security money as
contemplated under the contract could only be made in accordance with the terms
of the contract and not for the reason that the company was black-listed. [72
DLR (AD) (2020) 72]
Existence of an arbitration
agreement is a pre-condition for invoking the power undersec 12 of the
Arbitration Act:
If the parties to the arbitration
have already devised a procedure for appointment ofarbitrator/s, then the
provisions of sub-Sections (2) to (13) under Section 12 of theArbitration Act
would have hardly any application. But in absence of any device agreed upon by
the parties, the provisions of sub-Sections (2) to (13) under Section 12 of
the Arbitration Act come into play. In both the above-mentioned
paths, the implied precondition is that there must be the existence
of an agreement between the parties togo for arbitration. In other words, in
order to make the provisions of sub-Sections (1) to(13) under Section 12 of the
Arbitration Act applicable, the parties must agree to resolve any dispute
through arbitration; absence of an agreement among the parties to hold
arbitration shall render the aforesaid provisions of the Arbitration Act
nugatory. (Para- 16)
Circumstances when the parties bound
themselves for arbitration:
From a combined reading of the
provisions of sub-
Sections (1) & (2) under Section
9 of the Arbitration Act, it is crystal clear that a written arbitration
agreement, either in a clause of a main contract or in a separate agreement,
must exist in order to arbitrate any dispute between the parties. When (a) a
written agreement containing the arbitration clause is signed by the parties or
(b) if the parties through any written communication, which may be manual or
digital, agree to arbitrate or (c) if one party makes a written claim
containing a stipulation of holding arbitration in the event of
denial of the claim and, in responding thereto, the second party though
comes up with a defense as to material claim/s but remains silent about the
proposal of holding arbitration, then, in those scenarios, the law of our
country dictates the Courts to hold that the parties have bound themselves to
go for arbitration. In addition thereto, if any special law prescribes
for resolving a dispute through arbitration, either upon adopting the
procedures laid down in the said special piece of legislation or in reference
to the Arbitration Act, then, there shall not be any question as to having
existence of any arbitration agreement. (Para- 19)
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. (Para- 23)
Existence of consensus ad idem between the parties is necessary to form contractual obligation:
It is the settled principle of the
law of contract in all jurisdictions of the world that inorder to treat a
document or any correspondence between the parties to be a
contract/agreement, the Courts must be satisfied as to the existence of
consensus adidem between the parties on the important term/s of the
contract, such as the terms of
quality, price, arbitration etc, not only from the mere wordings of the
document or correspondence but also from the facts on record. [18 SCOB [2023]
HCD 213]
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
Sections
33 and 30
Arbitrator's
power to award interest-Interest as to pre-reference period-In the absence of
any law or agreement providing for payment of interest by an Arbitrator it will
not be proper to vest in him power to award interest for the pre-reference.
Bangladesh Agricultural Development Corporation vs Kibria and Associates Ltd 46
DLR (AD) 97.
Arbitration
Act, 1950 read with Clause 14 of the Agreement dated 18.4.80
Clause
14 of the agreement is held to be a composite whole, a self-contained
indivisible covenant, having a meaning and content in its totality. Clause 14
is an arbitration clause stipulating not only that the parties shall submit all
their disputes to arbitration but also that the arbitration shall be “in
accordance with, and subject to the provisions of the Arbitration Act, 1950”.
[Per Mustafa Kamal J.] Bangladesh Air Service (Pv.) Ltd. vs. British Airways
PLC, 17 BLD (AD) 249
