Arbitration
SANJEEV SRIVASTAVA
(Querist) 23 May 2014
This query is : Resolved
Dear All
I want an opinion on the section 26 and section 09 of the Arbitration Act.
Breif is:
We are for respondent. During the proceedings of cross examination of respondent's first witness, Respondent moved an application U/s 26 of Arb. Act 1996 and request from the sole arbitrator for appointment of an independent expert to bring some facts of CRANE(machine) such as maker and capacity(Please note maker and capacity is in dispute between the parties since beginning) and this will enable the respondent to prove that the machinery supplied by petitioner is not as per the contract issued by respondent and therefore was idle at respondent yard and despite of request petitioner neither took back the crane nor refund the advance money and thereby claim of petitioner for rent is not valid. The reason behind the inspection was to bring on record about the manufacturer company, design & capacity of machine and to convince the arbitrator that the design, manufacturer and load lifting capacity is different from the contract issued to petitioner. We also mentioned that the dispute machine is having engine number, chasis number and inspection of the machine can ascertain about manufacturer, chasis number, engine number which can cross verify with manufacturer for the capacity of the machine, moreover this machine may also have some RTO number just like other vehicles. The Hon'ble arbitrator dismiss our application on the ground of
Delay,
Machines specification and particularly capacity can not be identified being the reason of old or wear and tear.
Because the machines look alike.
This inspection would not help the arbitrator to decide the dispute.
Now We want to challenge this order please suggest how..? Can we go under section 09 which says that "during arbitration proceedings a party can move to court for (c)..........................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;
Your suggestions will be valuable to us.
Thanks in advance.
ROHIT SHARMA
(Expert) 23 May 2014
Dear Mr Sanjeev Srivastava,
1. S/ 9 (c) of the Arbitration & Conciliation Act, 1996, is applicable in the instance of your case matter. u/s 67 ( Role of the Conciliator i.e the Arbitrator) should be emphasized before the court and seeking setting of the decision of such conciliator to deny such arbitration on the grounds of delay. In fact the law of limitation is not attracted in such instance placed for Arbitration.
2. You have merit enough to file such suit before the civil court and get such interim measures declared by the court.
3. If need to have more realistic verbal discussion so as to finally satisfy you that the instant case matter can be filed before the civil court, you may opt to have a private legal consultation with this lawyer.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) : 09824047971.
E-Mail : lawgate1349@gmail.com.
Devajyoti Barman
(Expert) 23 May 2014
1. An interim order of Arbitrator can not be challenged in a proceeding u/s 9 of the Act. Such proceeding is for obtaining urgent interim order from civil court and that too before being referred to arbitrator.
2. You can however challenge such order u/s 11 of the Act in the Original side of High Court.
3.In the said application you can apply for alternative relief.
Rajendra K Goyal
(Expert) 23 May 2014
Agree with the expert Devajyoti Barman ji. Well advised.
