What is Arbitration?
An arbitration is an alternative form of resolution of disputes between parties and as such the arbitrator must have power to decide all the differences and disputes between them. [Para- 121]
B.A.D.C Vs. MIs Kibria &Associates Ltd. 3BLT(AD)-97
What is Award?
The award made by the arbitrator is appealable under Section 34(1) of the Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance-l1 of1982). [Para-4]
Bangladesh Vs. Md. MaziburRahman 2 BLT(HCD)-163
-The decision of the Arbitration Appellate Tribunal is a judicial decision— Such decision although by fiction of Law is made final but the finality is subject to revision by High Court Division under section115(I) C.P.C. [Para-41]
Bangladesh Vs. Md. Mazthur Rahman 2 BLT (HCD))- 163
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
Section-9(b)
Sole Arbitrator—Clause 42 of the Agreement Is ‘There shall be two Arbitrators, one to be selected by the licencer of and the other by licencee”
Appellant appointed his Arbitrator and served notice In writing on the respondent of its appointment an Arbitrator and requested the respondent to appoint its Arbitrator. The respondent having failed to appoint an Arbitrator, the appellant appointed Its Arbitrator as the Sole Arbitrator in the Arbitration Reference. The said appointment is very much inconsonance and well sanctioned under the provision contained in Section-9(b) of the Act. [Para-301]
Mol Enterprises Inc. Vs. Govt. of Bangladesh 7BLT (HCD)-265
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 Section – 29
If the Arbitrators has no power to award interest, the party will have to go to the court to realise interest on the award; Interest pendent like is not a matter of substantive law like interest for the period anterior to the reference. [Para- 161]
Sonali Bank Vs. Mf s. Karnaphuli Works Ltd 2 BLT (AD)-78
Section-29
A retired Judge of the Supreme Court was appointed Arbitrator. He entered upon the Arbitration proceeding from 30th June, 1990 and gave his award on 20th September, 1990. He allowed interest at the rate of 16% from July, 1984 from the prereference period till realisation of their money — was he competent to allow interest in such a manner?
Held: Since the agreement between the parties did not provide for payment of interest for the pre-reference period the Arbitrator got no authority to allow it. As to interest pendent lite, i.e. the date on which the Arbitrator entered upon the proceeding to the date on which he gave award, he is competent to allow It. As to interest from the date of the award till realisation of the money thereunder, though It is permissible and within the power of the Arbitrator, but in the circumstances of the case this interest should not be allowed. Any interest from the date of the decree till realisation may be allowed only by the court and this is purely court’s discretion. [Para-251]
B.A.D.C. Vs. MIS Kibia & Associates Ltd 3BLT (AD)-97
Per Latifur Rahman J. (agreeing): The Arbitrator had no jurisdiction to grant interest beyond the date the decree as the power to grant interest after passing of the decree Vests exclusively in the court under section 29 of the Act. (Para-26)
B.A.D.C. Vs. MIS Kibria & Associates Ltd 3 BLT(AD)-97
Sections-30 & 33
The Award in respect of the sensation has been sought to be set aside under section 33 read with section 30 of the Arbitration Act on the ground that it was based on ‘no evidence as no witness was examined nor any deposition was recorded. The Arbitrator observed in his award that the lawyer of the appellant who appeared at the time of hearing of the reference admitted the claim of the 1st party contractor and did not press for taking any evidence.
Held : Court does not sit as a court of Appeal over the Arbitrator’s award and since court has got a limited scope of interference over an award, the Arbitrator’s finding cannot be questioned before the court on the ground of no evidence. (Paras-22 & 23)
B.A.D.C Vs. MIS Kibria & Associates Ltd 3BLT (AD)-97
Section-30(a)
Whether the Arbitrator misconducted himself –
Under the Agreement the breeding farm was to export 5000 monkeys during the first year, the Agreement being for a period of 10 years. The Arbitrator was of the positive view that selling of 6 monkeys out of 5000 monkeys, if a breach of clause 33 of the Agreement, would not be a material breach leading to termination of the agreement. This decision rendered by the Arbitrator cannot be characterised as a “misconduct’ and it cannot be said that the Arbitrator misconducted himself In making the Award. On the part of the Arbitrator there is no corruption nor conduct amounting to moral turpitude, no breach and neglect of duty and responsibility causing miscarriage of justice, no failure to perform the essential duties, no mishandling of the Arbitration proceeding amounting to some substantial displacement of the ordinary rules of justice and no indication of gross negligence or recklessness on the face of the Award. Para-281
Mol Enterprises Inc. Vs. Govt. of Bangladesh 7BLT (HCD)-265.
Section-31
Jurisdiction—In clause 42 of the Agreement which is Arbitration clause, there is no such agreement nor any clause that the Arbitration proceeding or reference would be held in Dhaka. Nothing has been stated about the venue of the Arbitration proceeding. In the absence of any agreement/clause prohibiting Arbitration in any other place or land other than Bangladesh or to put it differently any statement manifesting the venue of the Arbitration in Bangladesh, it is difficult to appreciate the contention advanced from the respondent that the Arbitration proceeding having taken place in the United States of America, the whole Arbitration proceeding and the Award given by the Arbitrator is without jurisdiction. The learned Subordinate Judge committed a patent Illegality in recording the finding that the Arbitration proceeding was required to be held in Dhaka and the appellant initiated the proceeding in the United States of America with mala fide intention. Para-321
Mol Enterprises Inc. Vs. Govt of Bangladesh 7BLT (HCD)-265
Section-33
Limitation—The application challenging the validity of the Award having been flied after a period of 30 days as enshrined in Article- 158 of the Limitation Act, the same could not be entertained and Section-5 of the Limitation Act was not at all applicable for condonation of delay. [Para-25]
Mol Enterprises Inc. Vs. Govt. of Bangladesh 7BLT (HCD)-265
Section – 33 Read with Limitation Act (IX of 1908) Article-158
Decretal amount — As no objection by the petitioner was filed under section 33 of the Arbitration Act within the time prescribed under Article 158 as the Limitation Act, it was barred by limitation — Petition dismissed. (Para-41)
Bangladesh Television Vs. Techno Consult Limited 2BLT (AD)-21
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.