Can Arbitration clause be superceded
Sanjay A
(Querist) 23 September 2014
This query is : Resolved
I (sub contractor) am staying in Pune, employer i.e. Main Contractor is Delhi based. As per contract clause all issues arising from Contract to be addressed in Arbitration at Delhi. In my case there is no dispute on outstanding liability amount, however my outstandings remain unrealised for last year. Employer is financial doldrums and is expected to file Insolveny suit. My intention prior to his filing suit is to secure by way of attaching his assest, as currently his liabilities far exceed his existing asset. Arbitration proceed may take too long, can I directly approach Court and seek my relief ?? Kindly guide.
P. Venu
(Expert) 24 September 2014
There is no employer-employee relationship between a contractor and a sub-contractor.
Rajendra K Goyal
(Expert) 24 September 2014
All the terms of the contract and related documents have to be referred, consult local lawyer.
Advocate. Arunagiri
(Expert) 24 September 2014
THE ARBITRATION AND CONCILIATION ACT, 1996
S.9.Interim measures etc.by Court.- A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure or protection in respect of any of the following matters, namely:-
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to
which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or
building in the possession of any party or authorising any samples to be taken or any observation to be made, or experiment to be
tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before
it.
Kumar Doab
(Expert) 24 September 2014
Since there is not dispute on outstanding payments you should however show all docs on record to your lawyer at Pune. At Pune you can access lawyer’s par excellence.
Your lawyer after examining all docs can suggest the remedies.
As per other thread by querist at:
http://www.lawyersclubindia.com/experts/owner-s-responsibility-for-payment-to-sub-contractor-496251.asp#.VCJHaZSSwb8
Show cause notice has been issued.
Saurendra Rautray
(Expert) 26 September 2014
Mr Sanjay.
I dont agree with your view that Arbitration takes time. Arbitration is one of best mode of resolving a dispute. Kindly note that it is faster, cost effective( as you save court fees varies from state to state) when compared to suit.
You cannot supercede Arbitration Clause. Once there is a Clause it can only be superceded if both party agrees that they dont want to refer the matter to resolved through Arbitration.
Please Note- Your only way to secure your amount is to file an Application under Scetion application under 1996 Arbitration Act and there by referring the matter to Arbitration. The matter wont take long since you said there is no dispute regarding the quantum of payment to be recived by you.
Saurendra Rautray
RAUTRAT&Co
09437008255
M V Gupta
(Expert) 26 September 2014
In the absence of a dispute the arbitration clause does not come into play. Hope u have a letter from the principal contractor accepting ur claims. Even of there is a dispute u can apply to the court under Sec 9 of the Arbitration and Conciliation Act (extracted by learned Expert Shri Arungiri) for securing the amounts due and payable to u. Pl consult ur Advocate at Pune and take immediate action.
Saurendra Rautray
(Expert) 28 September 2014
Section 9 cannot be filed if the matter is not referred Arbitration Tribunal. My Opinion is to create a dispute refer the matter to the Tribunal as envisaged in the contract along with filing of section -9 application. Should be a better way to secure your payment which is your legal dues.
Saurendra Rautray
RAUTRAY & Co
New Delhi
09437008255
Saurendra Rautray
(Expert) 01 October 2014
Section -9 or appointment of arbitrator if not named in the contract has to be filed in Delhi since Delhi has jurisdiction. Please keep that in mind.
Saurendra Rautray
RAUTRAY & Co
New Delhi
09437008255
T. Kalaiselvan, Advocate
(Expert) 01 October 2014
The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. Once the arbitration clause if a part of the contract, it cannot be superseded as rightly opined by expert Saurendra Rautray. In fact as rightly observed, an arbitration is one of the best modes to resolve the dispute faster and it is also cost effective when in a regular court for recovery, the court fee involved is compared to.
P. Venu
(Expert) 01 October 2014
Perhaps the query requires a restatement. The queriest does not mention of any dispute as to amount outstanding. His real concern is non-receipt of outstanding amounts because of the poor financial position of the principal. In my opinion there is no issue to set the arbitration process in motion; rather the queriest should resort to a civil remedy.
Saurendra Rautray
(Expert) 02 October 2014
Query resolved. Kindly Consult a good arbitration lawyer.
