The scheme is that the court explains the choices available regarding ADR process to the parties, permits them to opt for a process by consensus, and if there is no consensus, proceeds to choose the process.
In the instant case, the bench opined that even though there is no express statutory provision under the Criminal Code to refer the parties to mediation, such matters can be referred to ADR if they fall under the ambit of SectionCr.
The system cannot fight shy of bold experiments. The learned counsel for the petitioners, Sri. It is not difficult to assume that recalcitrant litigants with the sole purpose of protracting and delaying the matter may opt to request the court to follow one of the four courses available under section It will only be apposite briefly to refer to the circumstances under which the alternative dispute resolution mechanism has been pressed into service by the Legislature under Section The statement of objects and reasons in the Amendment Act in paragraph 3 d makes reference to the th report of the Law Commission supra and highlighted the important changes proposed to be made.
The third contention raised cannot also in these circumstances be of help to the petitioners. In Arbitration, adjudication by the Arbitrator takes place. One of the modes undoubtedly is arbitration. Such a power may not hence be assumed from the language of Sec.
I have already extracted the said rules. The process of resolution by C. Ramesh Chander, formulated the following ten points in support of his contention, that no such reference for arbitration is possible unless the parties agree to such course.
Bold innovations became necessary. It is only after the parties fail to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall proceed further in C. The establishment of courts - the concept of a higher and sublime Judge assisted by sublime counsel resolving the dispute is the process now accepted generally as the best available method of dispute resolution by the Anglo Saxon jurisprudence.
This distinction obviously was considered by the legislature to be irrelevant for the purpose of categorisation - the purpose of which evidently was to spare the regular system of its burden to tackle all cases that comes to it and to provide alternative mechanism to reduce the burden on courts.
It is only C. In all the three, the court and the parties reserve the right for an adjudicated decision; whereas, when it comes to arbitration there is no exit route. Such procedure instead of contributing to expedition in the settlement of dispute and disposal of case would contribute to further unnecessary delay and protraction.
And if yes, what should be the appropriate orders with respect to the criminal complaint case at hand. Should such awards, i. All cases relating to trade, commerce and contracts, All cases arising from strained or soured relationships, All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes; All cases relating to tortious liability; and All consumer disputes.
It is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. When Section 89 2 a says that a reference can be made for arbitration and thereafter the procedure under the Act is to be followed, naturally a doubt arises as to how the requirement under Section 7 can be harmonised with the power to dispose C.
I shall hence extract paragraphs 9 - 12 of the decision in Salem Advocate Bar Association v. Settlement of disputes outside the court - 1 Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for - a arbitration; b conciliation; judicial settlement including settlement thorough Lok Adalat; or d mediation.
That Rules 1-A to 1-C do not speak of a compulsory reference against the volition and without consent of the parties to any one of the modes cannot be given any undue importance as those rules do not speak of compulsory reference for conciliation, judicial settlement and mediation also.
We deserve to be bold in our task of legislation and interpretation. A fundamental question has been raised as to whether arbitration is at all an alternative dispute resolution mechanism.
This piece of law, if that is the interpretation, cannot pass the test of Article 21 which insists that any law must be just, fair and reasonable and not fanciful, whimsical or arbitrary.
Amounts were about to be paid by defendants 3 and 4 to defendants 1 and 2. Where the case falls under an excluded category there need not be reference to ADR Process. The mere fact that the remedy under Section 9 will not be available cannot be held to vitiate the statutory provisions or persuade the court to hold that the statutory provision is not fair, reasonable or just or fanciful, arbitrary or whimsical.
It is a settled principle that as far as a civil dispute is concerned, Courts shall adopt the principles as laid down in the case of Afcon Infrastructure Limited. The interim attachment was liable to be vacated, it was pleaded. The order was passed under Sec. Should such awards, i.
The observations in paragraph 56 have to be understood in the light of the very specific observations in the earlier paragraph 55 of SBA-I, where the Supreme Court, according to me, expressed its mind in unmistakable terms when it said "parties shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the section and if the parties do not agree, the court shall refer them to one or the other of the said modes.
Depending on the nature of the case, its facts, the contentions and the possible resolution, it is open to the court to come to the conclusion that even if the parties do not agree they can be referred to "one or the other modes of the said modes" of dispute resolution. In order to facilitate quicker resolution of disputes and to reduce the burden upon civil courts, Section 89 of the CPC enables civil courts which are seized of a matter to refer parties to arbitration so that the disputes may get resolved earlier.
I am, in these circumstances, unable to understand why the committee chose to group judicial settlement along with arbitration and not along with conciliation or mediation. Consent of all parties to the suit is mandatory for reference to arbitration even under Section 89 of CPC.
Jul 19, · In the Afcons Infrastructure case, the Supreme Court had held that "under Section 89 of CPC it is ascertaining whether it is feasible to have recourse mandatory for a civil court to have a hearing, after the completion of pleadings, for the purpose of to refer parties to.
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afcon infrastructure case analysis Research Paper afcon infrastructure ltd vs. cherian varkey construction ltd (This presentation is submitted as partial fulfillment of Assessment in the Subject of Alternative Dispute Resolution) SUMMER SESSION JULY–NOV SUBMITTED TO: Mr. Hari Shankar FACULTY OF LAW SUBMITTED BY: Aman.
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Hope this helps. k Views · View Upvoters. Related. afcon infrastructure case analysis Research Paper afcon infrastructure IX Semester case name: Afcon Infrastructure v. cherian varkey Construction Ltd Citation: () 8 SCR Facts-in-Brief I) In the instant matter, the Cochin Port Trust (Second Respondent) entrusted the work of construction of certain bridges to Afcon.
GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Amendment of Section 89 of the Code of Civil Procedure, and 2.
ANALYSIS OF SECTION 89 AND ITS SCHEME 6 - 10 JUDGMENT IN AFCON S INFRASTRUCTURE CASE 31 - .Afcon infrastructure case analysis