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SHIRISH PAWAR, 7738990900 (Advocate)     08 October 2008

arbitration award

Arbitration award passed ex-party and period of appeal has expired now execution has been filed. loan was of Rs. 7,50,000/-, repayment was Rs. 2,50,000/-, vehcile attached and sold for Rs. 4,50,000/- (came to know from reliable source) then also financial institution deliberately claiming 4,50,000/-. Award was for Rs. 4,50,000/-.


Q. 1) Whether award can be set aside?


Q. 2) No documents are in possession with me, how to get the document's copy related to loan account or statements and also get the inspection in execution application?


Q. 3) Can averments as above stated wiill be entertained in execution application u/s. 47 of CPC? or is there any provision to contest the execution application?


 



Learning

 2 Replies

Murali Krishna (Govt..Employee)     10 October 2008

 Answer to your first question depends on the information


i) Whether there is any agreement for settlement of disputes by arbitration.


ii) whether you have received any notices from the arbitrator with regard to the arbitration proceedings or not. 


Even after receipt of the notices, if your client ignored it, then he has no case since he had done it at his peril. Under A&C Act, it amounts to waiver of his rights, and even if the arbitrator passed an illegal award, I am sure, your client does not have any case. 


Further, the difference in the amount may be interest on the amount.

P.Elamaran (Law Officer in a CPSU)     11 October 2008

Hello Mr.Shirish,




 


With regard to your first query, to challenge an arbitral award, you need to prove the following points at the time of  filing of an application U/s-34 of the Arbitration & Conciliation Act-1996.




 


 




 


1)The opposite party has been undersome incapacity,           



2)Either the arbitration agreement or arbitration clause in the loan agreement entered with financial institution is not valid under the law,



                              



3)You have not been served a proper notice of the appointment of the arbitrator or about arbitral proceedings or have not been able to present your case.







4)The arbitral decision speaks about the circumstances which are not contemplated by the parties or does not fall within the ambit of arbitration.











5)The formation of arbitral tribunal or arbitration procedure has not been according to the terms of arbitration agreement  or  arbitration clause.







                            



6)The subject matter of case is uncapable of settlement by arbitration.



                                                



7)The arbitral decision is against the public policy of India.



                      



In connection with the fisrt part of your seocnd query, in order to get copies of documents to support your appeal, you may submit an application to the arbitral tribunal to get the certified copies. As far as your third query is concerned , you can file an application to stay the Execution Proceedings stating that you have filed an appeal to set aside the arbitral award in the higher court.



                                                   



It is very pertinent to mention here that an application for setting aside the arbitral award has to be made within 90 days from the date of passing of the arbitral award and if that period expires, then the higher judicial forum may grant another 30 days time ,that too on your application to the tribunal to condone the delay. No application for setting aside an arbitral award will be entertained after expiry of 120 days from the date of award.




 


 Warm regards.


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