saurabh (advocate) 08 October 2012

Arbitration

there was a dispute between the two brothers regarding properties...they entered into the arbitration agreement and appoint the sole arbitrator and then entered in the MOU in 2001
...MOU states that some companies and liabilites with one brother and other companies and liablities with another brother.... one brother ie my party obliged the MOU and trasfered shares but other brother refuses to pay the same..

Then ny client paid liability of elder brother too....in 2004 my client filled a suit of cancellation of MOU and 2007 withdrwn and filed a suit of specific performance before High court... in 2012 suit of specific performance was dismissed on limitaion on Order 7 R 11 app;lication of defendant ... now there is arbitration agreement can my client go in to arbitration of the same MOU after dismissal of specific performance on limitation

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5 Replies

Yogesh Anand (Head- Legal AVP) 09 October 2012

YES you can refer the dispute to the named sole arbitrator. If not on limitation, the suit could have been dismissed under arbitration and conciliation act 1996 and matter referred to Sole Arbitrator, because the arbitration agreement bars the jurisdiction of iil courts.

Amardeep Srivastava (Senior Law Officer) 10 October 2012

If the suit is limitation barred, wouldn't the arbitration be also limitation barred.

Yogesh Anand (Head- Legal AVP) 10 October 2012

The query is silent on the point of start of cause of action. If the cause of action is continuing then matter can be referred to named Arbitrator. The limitation was applied to the suit of other brother and not to the client of Saurabh. Cause of action for Saurabh's client is different from the cause of action and limitation for other brother. Even otherwise the limitaion can be got condoned on the ground of having pursued the matter before wrong forum, if facts allow.

Amardeep Srivastava (Senior Law Officer) 10 October 2012

The query doesn't indicate that Saurabh's client's brother filed any suit. As regards the cause of action, from the facts given it appears that the cause of action remains same for the suit as well as for the arbitration.

saurabh (advocate) 10 October 2012

well my client filled suit for cancellation first in 2004 and withdraw the same in 2007..then in 2007 filled suit for specific performance and which was dismissed for limitation in 2012...

my client paid the liability in 2009 itslef which is worth rs 7 crores... no more liability is need to paid now