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Report No. 238

5.9 The Supreme Court also clarified:

"Neither Section 89 nor Rule 1-A of Order 10 of the Code is intended to supersede or modify the provisions of the Arbitration and Conciliation Act, 1996 or the Legal Services Authorities Act, 1987. On the other hand, Section 89 of the Code makes it clear that two of the ADR processe.- arbitration and conciliation, will be governed by the provisions of the AC Act and the two other ADR processe.- Lok Adalat settlement and mediation will be governed by the Legal Services Authorities Act. As for the last of the ADR processe.- judicial settlement... Section 89 makes it clear that it is not governed by any enactment and the section will follow such procedure as may be prescribed (by appropriate rules)."

5.10 In this context, the 'Summary' given by the Supreme Court at paragraphs 43 & 44 of the judgment in Afcons Infrastructure case, is appended to this Report as ANNEXURE II.

5.11 At the same time, the apex Court once again administered the caution that the procedure and consequential aspects referred to in paragraphs 43 & 44 are intended to be general guidelines subject to such changes as the court concerned may deem fit with reference to special circumstances of a case. The sum and substance of what the court discussed elaborately is stated in paragraph 45 thus:

"Know the dispute; exclude unfit cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to Judge-assisted settlement only in exceptional or special cases."

Amendment of Section 89 of the Code of Civil Procedure, 1908 and allied Provisions Back

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