LL.B. III Term Paper LB - 302 - Limitation and Arbitration

Part - A : Limitation

Prescribed Legislation: The Limitation Act, 1963 Prescribed Books:

1. M.R. Mallick, B.B. Mitra The Limitation Act,, 1963 (21st ed., 2005) 2. K. Shanmukham, Sanjiva Rows The Limitation Act (9th ed., 2000)

Topic 1 : Limitation of Suits, Appeals and Applications (Sections 3-11)

(a) Effect of expiry of limitation dismissal of suit, appeal, application (section 3)

1. R.B. Policies At Lloyds v. Butler (1949) 2 All ER 226 12. P.K. Kutty Anuja Raja v. State of Kerala, AIR 1996 SC 2212 33. Punjab National Bank v. Surendra Prasad Sinha,

AIR 1992 SC 1815

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(b) Extension of limitation (section 5)

4. Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353

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5. Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 106. State of Nagaland v. Lipok AO (2005) 3 SCC 752 16

(c) Reckoning of limitation in case of legal disability minors, insane persons,

idiots (sections 6-8)

7. Kolandevel Gounder v. Chinnappan, AIR 1965 Mad. 541 8. Darshan Singh v. Gurdev Singh, AIR 1995 SC 75 22

Topic 2: Computation of Limitation (Sections 12-24)

(a) Exclusion of time (sections 12-13)

9. The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal Das & Sons, Bareilly, AIR 1977 SC 523

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10. State of Uttar Pradesh v. Maharaj Narain, AIR 1968 SC 960 2911. Udayan Chinubhai v. R.C. Bali, AIR 1977 SC 2319 32

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12. India House v. Kishan N. Lalwani (2003) 9 SCC 393 39

(b) Exclusion of time for proceeding bonafide in a court without jurisdiction (Section 14)

13. Deena (Dead) Through LRS. v. Bharat Singh (Dead)Through LRS., AIR 2002 SC 2768

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14. Rameshwarlal v. Municipal Council, Tonk (1996) 6 SCC 100 48

(c) Exclusion of time in miscellaneous cases, e.g. stay/injunction order, requirement of notice or previous consent, etc. (sections 15-16)

(d) Effect of fraud or mistake (section 17), Effect of acknowledgment (section 18), effect of payment (section 19), Effect of substituting or adding new plaintiff or defendant (section 21)

15. Mahabir Kishore v. State of M.P., AIR 1990 SC 313 4916. State of Kerala v. T. M. Chacko (2000) 9 SCC 722 5517. Tilak Ram v. Nathu, AIR 1967 SC 935 5918. Sampuran Singh v. Niranjan Kaur (Smt.), AIR 1999 SC 1047 6519. Karuppaswamy v. C. Ramamurthy, AIR 1993 SC 2324 70

Topic 3 : Acquisition of Ownership by Possession (Sections 25-27) 20. Rajender Singh v. Santa Singh, AIR 1973 SC 2537 74

Topic 4 : Saving of Other Laws (Section 29)

21. Shantilal M. Bhayani v. Shanti Bai, 1995 Supp (4) SCC 578 8122. Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker,

AIR 1995 SC 2272

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Topic 5 : The Schedule Period of Limitation

(a) Article 54 Limitation for specific performance of contract

23. Venkappa Gurappa Hosur v. Kasawwa, AIR 1997 SC 2630 91 (b) Article 113 Any suit for which no period of limitation is provided elsewhere.

24. State of Punjab v. Gurdev Singh (1991) 4 SCC 1 92

(c) Article 136 For execution of any decree (other than decree granting a mandatory injunction) or order of any Civil Court. (d) Article 137 Limitation where no period is prescribed

25. Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd., AIR 1999 SC 1351

96

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Part - B : Arbitration and Conciliation

Prescribed Legislation: The Arbitration and Conciliation Act, 1996 Prescribed Books: 1. O.P. Malhotra and Indu Malhotra, The Law and Practice of Arbitration and Conciliation

(2nd ed., 2006) 2. N.D. Basu, Law of Arbitration and Conciliation (2001)

3. Prafulla C. Pant, The Arbitration and Conciliation Act, 1996 (6th ed., 2001) Recommended Books: 1. David St. John Sutton, John Kendall and Judith Gill, Russell on Arbitration (21st ed., 1997)

2. H.C. Johari, Commentary on Arbitration and Conciliation Act, 1996 (2nd ed., 2002) Topic 1 : Importance of Arbitration and Conciliation

General Provisions (sections 2-6) - Definitions, waiver of right of object, extent of judicial intervention in arbitration matters Arbitration Agreement (sections 7-9) - power to refer parties to arbitration where there is an arbitration agreement; interim measures, etc. by court:

26. K.K. Modi v. K..N. Modi (1998) 3 SCC 573 101 27. Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432 111 28. Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya, JT 2003 (4) SC 58 119 29. P. Anand Gajapathi Raju v. P. V. G. Raju (Dead)

AIR 2000 SC 1886

123 30. Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd.,

AIR 1999 SC 2354

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Topic 2 : Composition of Arbitral Tribunal (sections 10-15) - Number of arbitrators, Appointment of arbitrators, Grounds for challenge, challenge procedure, failure or impossibility to act, and termination of mandate and substitution of arbitrator

31. M.M.T.C. Limited v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716 126 32. Narayan Prasad Lohia v. Nikunj Kumar Lohia, AIR 2002 SC 1139 129 33. Datar Switchgears Ltd. v. Tata Finance Ltd.,2000 (3) Arb. LR 44 (SC) 134 34. SBP & Co. v. Patel Engg. Ltd.., 2005 (8) SCC 618 138

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35. Citation Infowares Limited v. Equinox Corporation, 2009(6) SCALE 430

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36. Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432 Topic 3 : Jurisdiction of Arbitral Tribunal (sections 16-17); Competence of arbitral Tribunal to rule on its jurisdiction and interim measures ordered by arbitral Tribunal Conduct of arbitral proceedings (sections 18-27); Making of arbitral award and termination of proceedings (sections 28-33)

Topic 4: Recourse against Arbitral award; and validity of Arbitral ward (section 34); Finality and enforcement of arbitral awards (sections 35-36); Appeals (section 37)

37. Krishna Bhagya Jala Nigam Ltd. v. G. Arischandra Reddy (2007) 2 SCC 720

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38. Union of India v. Popular Construction Co (2001) 8 SCC 470 . 172 39. Union of India v. G.S. Atwal & Co., AIR 1996 SC 2965 176 40. New India Civil Erectors (P) Ltd.. v. ONGC, (1997) 11 SCC 75 181 41. Oil & Natural Gas Corporation Ltd. v. SawPipes Ltd.,

2003 (4) SCALE 92

185 Topic 5: International Commercial Arbitration (a) Foreign Awards under New York convention (section 44) and Geneva Convention (section 53) (b) Foreign Awards when binding and when enforcement may be refused (section 46, 48, 55 and 57) and their enforcement (sections 49 and 58)

42. Bhatia International v. Bulk Trading SA, AIR 2002 SC 1432

Topic 6: Conciliation (section 61-81)

43. Haresh Dayaram Thakur v. State of Maharashtra, AIR 2000 SC 2281

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IMPORTANT NOTE: 1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases.

2. The students are required to study the legislations as amended up-to-date and consult the latest editions of books.

3. The question paper shall include one compulsory question and a student has further to select at least one question each from Part I and Part II. The sample of question papers set for the examinations held during 2007-08 and 2008-09 are printed below for the guidance of the students.

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LL.B. III Term Examinations, December, 2008 Note: Answer five question including Question No. 1 which is compulsory. All questions carry equal marks. 1. Attempt briefly any four of the following

(a) Law of Limitation bars the remedy and not the right. Comment. (b) Explain Time requisite in S.12 Limitation Act, 1963. (c) Effect of mistake on Limitation (d) Appointment of Arbitrator (e) Define International commercial Arbitration

Part I 2. The law of limitation is no doubt, the same for a private citizen as for governmental

authorities. It would (however) be unfair to put government and private parties on same footing in all respect. Explain the above statement with respect to condonation of delay on sufficient cause under S.5 Limitation Act, 1963.

3. (a) F, Father of X and Y, alienated certain joint family property. X was major on the date of alienation while Y was a minor. Xs Claim to set aside alienation became barred by limitation when he did not file suit within 12 years of the cause or action. Can X later take benefit of the coming of the majority of Y and file a suit with him?

(b) X incurs a debt of Rs. 80,000 in the year 2000 from a firm of which A, B and C are partners. A becomes insane while B is a minor admitted regains sanity in 2003 and B becomes major in 2004 for recovery of debt. Is the suit maintainable? Decide giving reasons.

4. L and M are friends who started a business but it soon ran into losses. L took over the entire business on 1-5-2001. He borrowed a sum of Rs. 3 lacs from M on the same date and executed a promissory note. Later, L made two payments to M on 16-5-2002 and 21-2-2003. M filed a suit for recovery of balance amount against L on 20-1-2006. L files a written statement admitting the above two payments but prays to the court to dismiss the suit as it is time barred. Decide with relevant statutory provisions and case law.

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Part II 5. (a) Explain the essential ingredients of an arbitration agreement.

(b) Decide whether the following facts constitute an arbitration agreement/clause: (i) Where the parties agree to be bound by the decision of even number of

arbitrators. (ii) Where the parties agree on decision of Public Health Engineer as final,

conclusive and binding in respect of all questions relating to meaning of specifications drawings, instruction etc.

6. (a) A and B entered into business contract which contains an arbitration clause. A dispute arose between them. X is appointed as arbitrator and the proceedings commerce during pendency of proceedings. A came to know that B is about to sell his entire property along with property which is subject matter of present dispute. In order to restrain B from selling the property during arbitration proceedings, A filed an application for interim protection in the district court B filed an objection that A should file the application before arbitrator since arbitral proceedings are pending. Decide upon the contention of A and B.

(b) Discuss the power of arbitrator to rule on his own jurisdiction and to give non-reasoned award.

7. (a) The main attraction of conciliation is the confidentiality of proceedings. How is this confidentiality maintained during and after the proceedings? Explain with reference to Aribitration and Conciliation Act, 1996.

(b) Discuss the status and effect of a domestic award, a foreign award and a conciliation settlement.

8. (a) What are the grounds on which a challenge may be made to an arbitral award? (b) Explain the conditions when the mandate of an arbitration terminates.

LL.B. III Term (Supplementary) Examinations, May-June, 2009

Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Meaning of the expression within such period under Section 5 of the Limitation Act,

1963. (b) Limitation bars the remedy, not the right. Comment. (c) Effect of acknowledgement on time-barred debt. (d) Effect of even number of arbitrators on the validity of arbitration agreement.

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(e) Can the question regarding winding up of the company be referred to an arbitrator?

PART I

2. (a) What are the guiding principles for condonation of delay under section 5 of the Limitation Act?

(b) A decree was passed against a person and he applied for certified copy of the decree for filing appeal on 29-7-2007. He also applied for another certified copy on 23-8-2007, which he got on 30-8-2007. He got 23-12-2007 certified copy of degree for which he had applied on 29-7-2007. He filed appeal on basis of this copy.

Appeal was within the period of limitation on basis of this copy. Respondent prayed for dismissal of appeal on the ground that it was time-barred. Decide.

3. (a) What is the effect on Selection 8 on Sections 6 and 7 of Limitation Act? (b) Do the provisions of Limitation Act apply in case a special law provides for a different

period of Limitation? 4. (a) What is the effect of mistake of law on limitation? Support your answer with the help of

decided cases. (b) Distinguish between Section 18 and Section 19 of the Limitation Act, 1963. does the

acknowledgement under Section 19 have to be made prior to the expiry of prescribed period of Limitation?

PART II 5. (a) What are the essentials of an arbitration agreement? Does the following covenant

constitute an arbitration agreement: The decision of the superintending Engineer or his nominee would be final, conclusive

and binding on all questions relating to the meaning of the specifications, designs and drawing.

(b) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Arbitration and Conciliation is a judicial power. Do you agree?

6. (a) What is the meaning of Foreign Award as given in Geneva Convention Awards? On what grounds can the court suo motu refuse to enforce the foreign award?

(b) Discuss the law laid down in Bhatia International v. Bulk Trading S.A., AIR 2002 SC 1432 in regard to application for interim measures under Section 9 of the Arbitration and Conciliation Act when the place of arbitration is out of India.

7. (a) Court appointed Mr. A as a conciliator in a matter. He formulated a settlement agreement on the basis of proceedings before him and sent it in a sealed envelope to the court without getting signature of the parties on it and without disclosing its terms to the parties. Discuss the status and effect of such a settlement agreement.

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(b) Discuss the power of the arbitrator to rule on his own jurisdiction under Section 16 of Arbitration and Conciliation Act, 1996.

8. Write short notes on any two of the following: (a) Form and contents of arbitral award; (b) Recourse against arbitral award; (c) Power of judicial authority to refer parties to arbitration under Part I and Part II

of Arbitration and Conciliation Act: (d) Conciliation proceedings from commencement to termination.

LL.B. III Term Examinations, December, 2010

Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Limitation bans and remedy and does not extinguish the title. Discuss. (b) The law of limitation is a statute of repose and peace. Comment. (c) Explain time requisite in Section 12 of Limitation Act, 1963. (d) Discuss the procedure to challenge the appointment of an Arbitrator. (e) What is meant by Termination of Conciliation proceeding? Explain.

PART I

2. X alienated his ancestral house to Y by executing a sale deed along with possession on 5-2-74. X died on 14-12-85 leaving behind three minor sons L, M and N born on 10-01-68, 10-10-71 and 30-8-73 M and N filed a suit against Y on 20-2-1992 for setting aside the alienation made by their father and for possession of their two-third share in the said house. According to Y the suit is barred by limitation. Do you agree? Decide with reference to provisions of law of limitation and case law. (Limitation period is 12 years from the Vendee).

3. (a) X moved an application for stay in a suit for permanent injunction against Y which was allowed by the court on 31.03.2001. Y filed an appeal court on 15.05.2001 against the order of the trial court along with application for condo nation of delay, mentioning that he had suffered heart attack and was admitted in the hospital from 24.04.2001 to 14.05.2011. (Authentic medical certificate was also enclosed).

Decide Ys application for condonation of delay with case law. (Limitation for filling appeal is 30 days). (b) A suit was decreed in favour of Sham and against Ram on 20.03.2001. on the request of

Sham the court staff prepared the decree on 15.05.2001. Ram knew that no decree was prepared upto 15.05.2001. Ram applied for the certified copy of the judgement and

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decree on 7.7.2001 which were ready on 10.09.2001 and were received by Ram on 11.09.2001. Ram filed appeal on 15.09.2001. Sham contests on the ground that the appeal is time-barred. Decide with relevant provisions of law and the case law.

(Period of filing appeal in the High Court is 90 days). 4. What are the essentials of a valid acknowledgement? Explain the distinction between

acknowledgement and a part-payment with reference to case law and the provisions of Limitation Act, 1963.

PART II 5. (a) Define an Arbitration agreement and explain its essential ingredients. (b) X and Y entered into a contract. Dispute arose. As per the arbitration agreement

clause both appointed their arbitrator. The two arbitrators thus appointed their arbitrator. The two arbitrators thus appointed started the proceedings in which both the parties participated till end. The award was made and pronounced. After the announcement of award X challenges the composition/appointment of arbitral tribunal as against the provisions of Section 10/11 of Arbitration Act, 1996. Discuss with case law.

6. (a) What is a Foreign Award as per New York Convention on Foreign Awards? (b) Discuss the law laid down in Bhatia International Vs. Bulk Tradings AIR 2002 SC

1432, when the place of arbitration is out of India and an application for interim measures under Section 9 is moved before the court of India.

7. Do you agree that the function of Chief Justice of High Court while appointing an arbitrator under Section 11(6) is judicial one? Discus the light of SBP & Co. Vs. Patel Engineering Ltd. 2005 (8) SCC 618.

8. (a) Under which provisions can the arbitral award e set aside? (b) Under which conditions does the mandate of an arbitration terminate? (c) Discuss the power of arbitrator to rule on its own jurisdiction. (d) When does the conciliation proceedings commence?

LL.B. III Term Supplementary Examinations, June-July, 2011

Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Limitation Bars the remedy, doesnt destroy the Right. (b) Objective and Scope of Law of Limitation (c) Define International Commercial Arbitration (d) Explain the meaning of Arbitration Agreement (e) Effect of Acknowledgement on limitation law.

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PART I

2. (a) The expression sufficient cause mean differently when the delay caused is required to be condoned for state, whereas it conveys a different meaning when the delay caused is required to b condoned in case of private individuals/parties. Comment.

(b) Explain the effect of fraud or mistake on Law of Limitation. 3. (a) Discuss the types of legal disabilities covered under law of limitation along with

illustrations. (b) What is the true meaning of expression. Time requisite for obtaining a copy of the

decree or order appealed from found in Sub section I of Sec. 12 of Limitation Act, 1963? 4. (a) Distinguish between Section 18&19 of the Limitation Act, 1963. (b) Discus the limitation period in the following circumstances: (i) Limitation for specific performance of contract. (ii) Any suit for which the limitation period is prescribed elsewhere. (iii) Limitation where no period is prescribed. (iv) for execution of any decree (other than decree granting a mandatory injunction) or order of any civil court.

PART II 5. When the subject matter of Arbitration is taken in the court by filing a suit what ought to be

the judicial approach as per the law of the Arbitration. Can the court suo-moto send the suit to the arbitral tribunal. Discuss with relevant case law on the subject. Can the Question relating to winding-up of company be refered to an Arbitrator.

6. Critically evaluate the appointment of Arbitrators by the court under the light of SBP & Co.

V. Patel Engineering & other recent judgements of the Apex court. 7. What is the scope of courts jurisdiction in case where award passed by the Arbitral tribunal

is challenged under Section 34 of Arbitration & Conciliation Act, 1996. 8. What is conciliation? Discuss all the important provision of conciliation briefly as given in

the Arbitration & Conciliation briefly as given in the Arbitration & Conciliation Act, 1996 under the light of the decided case; Haresh Daya Ram Thakur V. State of Maharashtra. (AIR 2000 SC 2281).

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LL.B. III Term

Limitation and Arbitration

Cases Selected and Edited by Niraj Kumar

FACULTY OF LAW UNIVERSITY OF DELHI, DELHI-110 007

July, 2011