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Report No. 76

8.34. Conflict of decision as to the scope of expression "existence" and recommendation to amend section 33.-

There is, however, a conflict of decisions on this point. According to one view, the word "existence" in section 33 connotes legal existence and not factual existence, and section 33 is available only to a party to an arbitration agreement and would apply only when the party admitted the factual existence of the arbitration agreement, but challenged its legality.1-2 A contrary view has, however,3-4 been expressed in another decision of the same High Court.

The Madras High Court has taken the view5 that the expression "any party" in section 33 must include a person who is put forward as being a party to an arbitration agreement, but who does not admit its existence.

To set the controversy at rest and to clarify the position, we recommend that in section 33, the words "including one alleged to be a party" should be added after the words Any Party.

1. Maniklal v. Shiv Jute Balling Co. Ltd., 52 CWN 389 (Das, J.), referred to in AIR 1951 Cal 147 (148), para. 16.

2. Baijnath v. Chhotu Lal, 52 CWN 397 (Clough, J.), referred to in AIR 1551 Cal 147 (148), para. 16.

3. Chatturbhuj v. Bhiam Chand Choria and Sons, 53 CWN 410 (Sinha, J.), referred to in AIR 1961 Cal 147 (148), para. 16.

4. The point was discussed in Bajrang v. Agarwal, AIR 1950 Cal 267 (268), paras. 11-12 (Chatter* J.). The point decided there was that a party affirming the award could not apply.

5. Muthu Kutty v. Varee Kutty, AIR 1950 Mad 64.



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