Arbitration and conciliation

Querist : Anonymous (Querist) 29 July 2011 This query is : Resolved
If there is a contractual clause between 2 companies saying that every dispute has to be referred for conciliation before the initiation of legal proceedings will the clause be hit by sec 28 of the indian contract act because it is an agreement in restraint of legal proceedings?

Sec 28 says that "Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent."

How strictly does the term absolutely have to be interpreted?

Follow Query

Report Abuse

R.Ramachandran (Expert) 29 July 2011
If the parties had agreed for arbitration, is that not a term of the contract in itself. Therefore, if a particular term of the contract is sought to be enforced, how can it be termed as any restriction of enforcing of any right?

Advocate Rajkumarlaxman (Expert) 29 July 2011
as per yopur statement there is no absolute restraint as the clause you referred to itself states that before proceeding to court that means you are not deprived to move to court only thing is that you have to comply with the concilation proceedings and if you do not succeed in this then you have option left with you to initiate legal proceedings against defaulter.

DEFENSE ADVOCATE.-firmaction@g (Expert) 29 July 2011
Section 28 of contract act is not absolute bar , reasonable restrain are legal.

prabhakar singh (Expert) 29 July 2011
RE READ''is restricted absolutely from enforcing his rights ''

Devajyoti Barman (Expert) 29 July 2011
Arbitration is indeed a legal proceeding albeit a alternative dispute resolution.
So when the parties agree to a particular for of dispute resolution mechanism then section 28 could no way come into the picture.

DEFENSE ADVOCATE.-firmaction@g (Expert) 29 July 2011
when you entered into agreement and accepted restriction so now no use claiming protection.

Querist : Anonymous (Querist) 31 July 2011
thank you all

Previous

Next

You need to be the querist or approved LAWyersclub expert to take part in this query .

Click here to login now

Similar Resolved Queries :

Ask Query
Unanswered Queries