Chapter-Iv: How It Works, Reprint, 2002, p-24

CHAPTER-IV
LEGISLATIVE PROVISIONS OF
ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN INDIA
I. INTRODUCTION:
The India is not single or lone country buffeted
and burdened with arrears of cases. The problem has beleaguered the
entire globe. The developed countries like USA, U.K. France, Hong Kong,
New Zealand, South Africa, Switzerland etc. also suffers from the problem
of pendency and delay in dispensation of justice. These countries have
been inspired by USA and have followed the mechanism of ADR System.
The concept of speedy trial and dispensation of timely justice to the litigants
have become the global subject, which could be better adhered to by the
mechanism of ADR system because it encourages the disputants to arrive
at negotiated understanding with a minimum loss of time, money and
outside help\
The globalization of economy and international
commerce is on its expanding horizon and growing rapidly. The business
transactions and disputes are also increasing proportionately but without
quick remedy of dispute resolution. The ADR system except arbitration is
almost unknown to the people in India for want of sufficient publicity through
statutory recognition. The ADR system to be more successful requires three
things. First, the mechanism of ADR needs to be regulated through good
legal provisions as inserted in the Code of Civil Procedure, 1908 as
amended by Amendment Act [46 of 1999] and [22 of 2002] under S. 89^.
Second, it requires to be equipped with adequate infrastructure facilities to
conduct ADR proceedings^. Third is of the utmost importance i.e. it
^ See, P.C.Rao & William Sheffield, Alternative Dispute Resolution: What it is and
How it Works, Reprint, 2002, p-24.
^ See, Ttie Code of Civil Procedure, 1908 as amended by [Amendment] Act 46 of
1999 & 22 of 2002, Section 89.
^ Supra Note 1, p-30.
95
Legislative provisions of Alternative Dispute Resolution System in India
requires professionally trained ADR practitioners, who are well versed in

making settlement of dispute. All these facilities in one or other way, lacks
in India and reason thereby the cases are almost decided through a regular
trial in the Courts'*.
There are ample provisions of ADR system but
for want of proper recognition and application except in few. The shipping
and commodity trades of the world are unusual in that they do not regard
litigation or arbitration with abhorrence. On the contrary, they regard it as a
normal incident in commercial life - a civilized way of resolving many
difference of opinion^. When the International Chamber of Commerce at
Paris started offering the services of its Court of Arbitration, businessmen in
different countries found it convenient to avail themselves of that facility.
N.A.Palkhivala during his speech at International Chamber of Commerce
has emphasized the importance of arbitration that "In course of time that
convenience became a preference, and the preference has now ripened
into a necessity^.
The Arbitration and Conciliation Act, 1996 with
new chapter of conciliation is good achievement and form of ADR System
to decide the dispute at international and domestic level. There are also so
many other statues, which provide for the Mechanism of Alternative Dispute
Resolution System in India. These provisions are discussed below.
II. THE ARBITRATION AND CONCILIATION ACT,1996 :

[i] Preliminary background :
The law of arbitration in India till the year 1996
was governed by the Arbitration Act of 1940, which has been substituted by
the Arbitration and Conciliation Act, 1996 [No. 26 of 1996] [herein after Act].
The law on arbitration in India at the time of the adoption of the new Act
was contained in (i) The Arbitration (Protocol and Convention) Act, 1937, (ii)
'Ibid
^ See, Per Mr Justice Donaldson in Panda V Filmo [1975] 1 Q.B. p-742 at 747.
® See, N.A.Palkhivala, Speech Delivered at the International Chamber of
Commerce, New Delhi, February 9,1987.
96
The Arbitration Act, 1940, and (iii) The Foreign Awards [Recognition and
Enforcement] Act, 1961. It was an inevitable necessity to change the
Arbitration law with a view to make economic and social reforms fully
effective and to deal with settlement of both domestic and international
commercial disputes in peaceful manner. It is in the beginning of the year
1996 when the task for introduction of new Act could be accomplished''.
[ii] Preamble to the Act:
The Arbitration and Conciliation Act, 1996 is
having its consolidating and amending nature. The Act contains new
features of conciliation and settlement of dispute amicably through
mediation, which is remarkable achievement and improvement over the
repealed Acts®. The new Act of 1996 goes much beyond the scope of its
predecessor, 1940 Act. It provides for domestic arbitration, international
commercial arbitration and also enforcement of foreign arbitral awards. The
Act in opening words provides that
"An Act to consolidate and amend the law relating to
domestic Arbitration, International Commercial Arbitration
and enforcement of Foreign Arbitral awards as also to define
the law relating to conciliation and for matters connected
therewith or incidental thereto"^.
[Hi] The Objectives of the Act:
i. To comprehensively cover international
commercial arbitration and conciliation as also
domestic arbitration and conciliation,
ii. To make provision for an arbitral procedure
which is fair, efficient and capable of meeting the
needs of the specific arbitration,
iii. To provide that the Arbitral Tribunal gives
reasons for its arbitral award.
^ See, Avtar Singh, The Law of Arbitration and Conciliation, (2002) p-2.
^ (1) The Arbitration (Protocol and Convention) Act, 1937, (ii) The Arbitration Act,
1940, and (iii) The Foreign Awards [Recognition and Enforcement] Act, 1961.
^ See, The Arbitration and Conciliation Act, 1996, the Preamble
97
iv. To ensure that the Arbitral Tribunal remains

within the limits of its jurisdiction.
V. To minimize the supen/isory role of Courts in the
arbitral process.
vi. To permit an Arbitral Tribunal to use mediation,
conciliation or other procedures during the
arbitral proceedings to encourage settlement of
disputes.
vii. To provide that every final arbitral award is
enforced in the same manner as if it were a
decree of the Court.
viii. To provide that a settlement agreement reached
by the parties as a result of conciliation
proceedings will have the same status and effect
as an arbitral award on agreed terms on the
substance of the dispute rendered by an Arbitral
Tribunal.
Ix. To provide that, for purpose of enforcement of
foreign awards, every arbitral award made in a
country to which one of the two International
Conventions relating to foreign arbitral awards to
which India is a party applies, will be treated as
a foreign award^°.
[iv] Principles of Arbitration :
The object of arbitration is to obtain the fair
resolution of disputes by an impartial tribunal without unnecessary delay or
expenses. The parties should be free to agree how their disputes are to be
resolved subject to such safeguards as are necessary in the public interest.
In matter governed by the provision of the Part-I of the Arbitration Act, 1996,
^° Ibid, Statement of Object and Reasons published in the Gazette of India, Part-I I
dated 19'^ August, 1996.
98
the Court should not intervene except as provided by those provisions^\

The provisions of Part-! of the Arbitration Act, 1996 must not be constmed
as excluding the operation of any rule of law consistent with those
provisions'^.
[v] Construction of References :
[a] Written Communications and receipt:
The Section 3 of the Act deals with service of
the notice between the parties inter se or the arbitrator. The Section
provides for mode of services of notice. It provides that any written
communication to the party shall be deemed to have been received if it is
delivered to the addressee personally or at his residence or business place
or at any other mailing address. And the communication shall be deemed to
have been received on the day of its actual delivery'^. The mode of service
may be effected by telex, facsimile or electronic mail etc''*.
[b] Waiver of right to object :
The Section 4 of the Act provides that where a
party to an arbitration agreement participates in the arbitration proceedings
with clear knowledge that the matter is legally incapable of being submitted
to arbitration, he cannot thereafter raise the question of the lack of
jurisdiction or any thing that has not been complied with. The objection is to
be submitted within time frame. If undue delay has been caused, it shall be
deemed that the party has waived his right to such objections'^.
[c] Extent of Judicial Intervention :
The Section 5 of the Act limits the scope and
extent of judicial intervention in the matter governed by Part I of the Act. It
provides that the Court shall not intervene in the matters pertaining to
arbitration except those specifically provided. The Section specifically
debarred the civil Courts from exercising their jurisdiction once, the
" See, Halsbury's Laws of England 4^^ ed. [REISSUE], Vol.2(3). Arbitration, p-10.
'^ Ibid, p-9.
'^Supra Wote 10, S.3.
^"See, H.K.Saharay, The Law of Arbitration and Conciliation, {200^), p-252.
'^ Supra Note ^3, SA.
99
arbitration proceeding have been commenced. The proceedings cannot be

stayed by an order of Civil Court. It provides that the Civil Courts have no
jurisdiction to interfere or to intervene in arbitration proceedings. But the
language of the Section permits that except to the extent provided in Part-I,
the Court shall have jurisdiction^®.
This part provides for intervention of Courts in
the cases viz. (i) Section 8 of the Act provides for making reference for
arbitration by a judicial authority before which action is brought during
pending suit^^, (ii) Section 9 - Passing interim Orders, (iii) Section 11
provides for appointment of Arbitrator, (iv) Section 14(2) provides for
terminating mandate of Arbitrator, (v) Section 27 provides for Court
assistance in taking evidence, (vi) Section 34 provides for setting aside an
award, (vii) Section 37 provides entertaining appeals against certain order,
and (viii) Section 39 (2) directing delivery of award.
[d] Administrative assistance :
The Arbitration and Conciliation Act, 1996 has a
unique provision, which was not available in the repealed Arbitration Act,
1940. The Section 6 of the Act enables the parties and the Arbitral Tribunal
to obtain administrative assistance. In order to facilitate the conduct of the
arbitral proceedings. It has been provided that the parties or the Arbitral
Tribunal with the consent of the parties, may arrange for administrative
assistance by a suitable institution or person. The administrative assistance
means the acts of ministerial and clerical nature including the acts for which
one has necessarily to depend upon the skill and experience of another
persons^^
[vi] Arbitration agreement:
[a] There must be an Arbitration Agreement:
The existence of written agreement is condition
precedent to submit a dispute for arbitration. Section 2 (1) Sub-Clause (b)
'^ Ibid, S. 5.
'^ Id, S. 8,
'^ lof, S. 6.
100
defines that "Arbitration Agreement" means an agreement referred or

defined under S. 7 of the Act^^. An arbitration agreement as defined under
S.7 of the Act means an agreement by the parties to submit to arbitration all
or certain disputes which have arisen or may arise between them in respect
of a defined legal relationship, whether contractual or not. An Arbitration
agreement may be in the form of an arbitration clause in a contract made
between the parties or expressed in the form of a separate agreement^°.
The Section 7(3) envisages that an 'arbitration agreement' shall be
expressed in writing, which is the condition precedent to be an 'Arbitration
Agreement' under the law of Arbitration^\ An oral agreement between the
parties to submit a dispute to arbitration is not binding. On the other hand, if
the agreement is in written form that will bind both the parties^^. The same
version has been reiterated by the Supreme Court in the case of Union of
India V Rallia Ram^^ and has held that 'It is not necessary that the
agreement should be on a formal document, nor it is necessary that the
agreement should be signed by both or either party. It is sufficient that the
written agreement has been orally accepted by the parties or that one has
singed and other has accepted'^'*.
The Halsbury's Laws of England explain that the
agreement between the parties as to any matter is effective only if it is in
writing. There is an agreement in writing if the agreement made has been ;
(i) expressed in writing whether or not the parties sign it; (ii) there is
exchange of communications in writing; (iii) recorded by one of the parties
or by a third party, with the authority of the parties to the agreement; (iv)
Where the parties agree otherwise than in writing by reference to terms
which are in writing; and (v) exchange of written submissions in arbitral or
legal proceedings, in which the existence of an agreement otherwise than in
writing is alleged by one party against another party and not denied by the
19
Id, S. 2(1)(b).
^°ld, S.7Clauses(1)ancl(2).
^' Id, S.7(3).
^^ See, Banarsi Dass Vs Cane Comm. A.I.R. 1963 SC, p-1417.
^Â.I.R. 1963SC,p-1685
^^ See, Union of India Vs Rallia Ram, A.I.R. 1963 SC, p-1685.
101
other party in his response, that constitutes an agreement in writing to the

effect alleged between those parties^^.
[b] Stay of suit - powers of reference to arbitration :
The S.8, clause (1), of the act provides that if
any party to an arbitration agreement brings a suit before the Court and the
matter is covered by the arbitration agreement, the other party may apply
for stay of the suit and for order of reference to arbitration and Judicial
Authority may refer for arbitration. S.8 (2), of the Act requires that the
application should be accompanied by the original arbitration agreement or
duly certified copies of the original agreement. Where the party has not
filed such copies or the party so applying, the case can not be referred for
arbitration. S. 8 (3) is more liberal which envisages that despite the matter
having pending in the Court before the Judicial Officer and the application
made under S.8(1) of the Act, the arbitration proceeding can be
commenced or continued and in pursuance of that the arbitral award can be
made^^
[c] interim measures and reiief -- powers of Court:
The Section 9 of the Act enables the Court to
make an orders for interim measures providing interim relief to the parties.
A party may, before or during arbitral proceedings or at any time after the
making of the arbitral award but before it is enforced in accordance with
Section 36, apply to the Court to provide immediate and interim relief^^. The
Court may order for (i) the appointment of a guardian for a minor or a
person of unsound mind for the purposes of arbitral proceedings (ii) for the
preservation, protection or safety and interim custody or sale of any goods
which are the subject-matter of the arbitration agreement; (iii) to securing
the amount in dispute in the arbitration, (iv) for the detention, preservation
or inspection of any property or thing which is the subject-matter of the
dispute in arbitration, or as to which any question may arise therein and
^^ Supra Note 72, p-13.

^^ Supra Note 21, S.8.
^^ Ibid, S.9.
102
authorizing for any of the aforesaid purposes any person to enter upon any
land or building in the possession of any party, or observation to be made,
or experiment to be tried, which may be necessary or expedient for the
purpose of obtaining full information or evidence, (v) for the appointment of
a receiver, (vi) for the protection, custody or preservation of the things as
may appear to the Court to be just and convenient^^.
[vii] Composition of Arbitral Tribunal:
The Arbitral Tribunal is the creature of an
agreement. The parties are free to confer upon Arbitral Tribunal such
powers and prescribe such procedure for it to be followed. But the
agreement must be in conformity with the law and nothing in power or
procedure should be opposed to any law. An arbitrator is neither more nor
less than a private judge of a private Court, which is called Arbitral Tribunal.
The arbitrator gives a private judgement and that judgement is called
award. He is a judge in a dispute submitted to him. He is not mere a
investigator but a person before whom material is placed by the parties. He
gives a decision in accordance with his duty to hold the scales fairly
between the disputants^^. This part contains some general provisions and
provides for the composition of the Arbitral Tribunal, its jurisdiction, conduct
of proceedings, making of awards, termination of proceedings, recourse
against award and enforcement of awards etc^°.
[a] Number of Arbitrators:
The Section 10 of the Act provides that the
parties are free to determine the number of Arbitrators. But it prescribes the
condition that if the parties want to appoint more than one Arbitrator, they
will have to expressly provide numbers of arbitrators in the agreement
provided they are not an even number^\ Where the parties do not
determine the number of Arbitrator, a presumption of law arises that the
Arbitral Tribunal shall consist of sole Arbitrator. The S.10 (2) of the Act
^^ Icy, Clauses (i), (ii) Sub-Clauses [a -e].

^ See, Russell on The Law of Arbitration, (1982), p-104.
30
Supra Note 7, at p-81.
^' Supra Note 28, SAO {^).
103
provides in clear and unambiguous terms that in case the parties fails to
determine the number of Arbitrator, the Arbitral Tribunal shall consist of sole
Arbitrator^^.
[b] Appointment of Arbitrators by the parties :
The Section 11(1) of the Act envisages that a
person of any nationality may be appointed as Arbitrator except in the
situation where the parties agree othenwise. S.11 (2) of the Act says that
the parties are free to agree on the procedure for appointing the Arbitrator
or Arbitrators but subject to conditions prescribed under S.11 (6). S.11 (3)
provides to conduct arbitration by three Arbitrators. First of all each party
has to appoint one Arbitrator and then appointed two Arbitrators shall
appoint third Arbitrator, who shall act as the Presiding Arbitrator or may be
called Chairman of the Arbitral Tribunal ^^.
[c] Powers of Chief Justice of High Court to appoint
Arbitrators:
The Chief Justices of the High Courts are
competent to make appointment of the Arbitrators where party fails to
discharge their obligation in accordance with Act. The Section 11 (4) of the
Act provides that where a party fails to appoint an Arbitrator within thirty
days from the receipt of a request of other party to do so or the appointed
Arbitrator fail to appoint the third Arbitrator within the period of thirty days
from the date of their appointment, a party may make a request to the Chief
Justice of the High Court to make the appointment of Arbitrator. Then, the
appointment shall be made by the Chief Justice or by any person or
institution designated by him for this purpose^. The S.11 (5) of the Act
provides that if the parties fail to agree as to the appointment of a sole
Arbitrator within thirty days of the receipt of request, then upon the request
of a party, the appointment is to be made by the Chief Justice or by any
^^ Ibid, SAO (2).

^^ Id, S.11.
^ Id, S.11 (4).
104
other person or institution designated by the Chief Justice or entrusted to

make the appointment of Arbitrator^^.
The main purpose of the S. 11 is to enable and
effectuate the commencement of arbitration proceedings at the earliest.
This function has been left to the Chief Justice or his designate, with a view
to ensure that the nomination of the Arbitrator is made by a person
occupying high judicial office. It is his duty to take due care to see that a
competent, independent and impartial Arbitrator is appointed. The S.11 (6)
provides that where a party or parties fail to act in accordance with the
agreed procedure or two appointed Arbitrators fail to make appointment of
third Arbitrator or agree over their presiding Arbitrator or the person or
institution designated by the parties fails to act, then a request can be made
to the Chief Justice to take the necessary measures in order to facilitate the
appointment of Arbitrator. The request can also be made to the person or
institution so designated by the Chief Justice on his behalf to discharge
these functions^^. The Section 11 (8) of the Act entrusts the Chief Justice or
the person or institution designated by him with the duty in making the
appointment of an Arbitrator to take care and caution about the qualification
of the Arbitrator being appointed including other considerations as are likely
to secure the appointment of an independent and impartial Arbitrator^^.
[d] Arbitrator in International Commercial arbitration:

The S. 11(9) of the Act envisages that in the
case of the appointment of sole or third Arbitrator in an international
commercial arbitration or where the parties to arbitration belong to different
nationalities, the Chief Justice of India may appoint an Arbitrator of a
nationality other than the nationalities of the parties^®. But the Supreme
Court in Malaysian Airlines Svstem-ll Vs Stic Travels (P) Ltd^^.. has said
^^\d, s.11 (5).

36 Id, S.11 (6).
Ûd, S.11 (8).

^ I d , S.11(9).
^^ [2000] 1 SCO, p-509.
105
that "while nationality of the Arbitrator is a matter to be kept in view, it does

not follow from Section 11(9) that the proposed Arbitrator is necessarily
disqualified because he belongs to the nationality of one of the parties^".
[e] Grounds for challenge:

The S.12 of the Act provides sufficient grounds
for challenge of the appointment of an Arbitrator if there exist any doubt
about the Arbitrator's independence or impartiality. S. 12(2) casts a duty on
the Arbitrator after his appointment and throughout the arbitral proceedings
to make to the parties the disclosures, as prescribed by sub-section (1)
pertaining to those matters, which have arisen after his appointment as
Arbitrator'*\ The appointment of an Arbitrator under S.12 can be challenged
if (i) there exists circumstances, which give rise to justifiable doubts in the
mind of parties as to independence or impartiality of the Arbitrator, (ii) the
Arbitrator does not possess requisite qualification as agreed to by the
parties for the appointment of Arbitrator'*^. The Arbitrator can be challenged
by the party who has appointed him or have participated in making the
appointment and only for reasons of which he becomes aware after
appointment.'*^
The Section has been incorporated with an
intention to provide a fair and impartial justice to the parties reposing faith
on their Arbitrator working for them. There is an universal agreement
amongst jurists of all countries that it is of the first importance that Judicial
Tribunals should be honest, impartial and disinterested. The rule applies in
full force to Arbitral Tribunals, subject only to this exception, that parties
who are free to choose their own Arbitrator Tribunal may choose dishonest,
partial or interested arbitrator, provided they act with full knowledge'*'*.
'° Ibid
"^ Supra Note 38, S.12 (1) and (2).
"^ See, The Arbitration and Conciliation Act, 1996, S.12 (3) Sub-Clauses (a) and
(b).
"^/fe/of, S.12(4).
"" Supra Note 29, p-110.
106
[f] Procedure for Challenge of Arbitrator:

The Section 13 of the Act prescribes provisions
for challenging an appointment of Arbitrator. The Act under S. 13 provides
sufficient powers to parties to settle the issue by agreement and prescribe
the procedure by which the Arbitrator could be challenged. In case there is
no agreement between the parties or the parties have failed to agree on the
point, then the procedure under the Act is to be followed. The party intends
to challenge the appointment of Arbitrator is required to inform the Arbitral
Tribunal about his intention to challenge the Arbitrator. But the challenge is
to be done within fifteen day after becoming aware of the constitution of
Arbitral Tribunal or after becoming aware of circumstances described under
Section 12(3) of the Act'*^. The challenge is to be submitted to the Arbitral
Tribunal by the party in written statement stating the grounds and reasons
thereof. The Arbitral Tribunal have powers to decide the matter on
challenge and shall continue unless the Arbitrator challenged under Sub-
Section (2) withdraws from the office or other party agrees to the challenge
as proposed'^^. In case the challenge made by the party is not successful,
the Arbitral Tribunal shall continue with the proceeding and make an Arbitral
award in accordance with the procedure'*^. The party who challenged the
Arbitrator may challenge the award also and make an application for setting
aside in accordance with Section 34'*°. If the award is set aside after the
application is made under sub -Section 5, the Court can consider whether
the Arbitrator should be entitled to his remuneration and fee etc or nof*^.
[g] Termination of mandate or authority of Arbitrator:

[1] Failure or impossibility to act :
The S. 14 of the Act envisages and sets out the
grounds that the mandate of an Arbitrator shall be terminated if he become
"^ Supra Note 43, S.I3 (1) and (2).

^'/6/d, S.13(3).
47
Icf, S.13 (4).
'•îd, S.13 (5).
^^ id, S.13 (6).
107
unable to perform his function or discharge is duty within stipulated time. It

can also be terminated if the Arbitrator fails to act both either dejure [legally
disqualified] or de facto [disqualified on some factual positions and if he
withdraws from his office or the party agrees to terminate his mandate^°.
[ii] Substitution of arbitrator - proceedings de
novo:
The S. 15 (1) of the Act sets out an additional
grounds for terminating the mandate or authority of an Arbitrator. Once, the
authority of the existing Arbitrator has been terminated another Arbitrator or
his substitute has to be appointed in place of the outgoing Arbitrator whose
mandate has been terminated. Whatsoever may be the reason causing the
office of the Arbitrator vacant, the procedure for the appointment of new
Arbitrator or his substitute has to be applied on the same terms and
condition as has been followed in making the appointment of first Arbitrator.
The section 15(2) of the Act requires that after the replacement and
substitution of the Arbitrator by new one, the proceedings have to be
conducted again in applying the same process as has been applied by his
predecessor. The provision for de novo inquiry has been made knowingly in
order to provide the opportunity of hearing to all the Arbitrators. But parties
are competent and may accept and address that the proceedings may be
continued from the stage at which the substitution took place and onwards
instead of rearing back^\ The Section 15 (4) further provides that the order
or rulings made by the Arbitral Tribunal before the replacement would not
be invalidated merely because of the change in the composition of the
Tribunal. However, if the parties agree, the order or ruling made or issued
by the previous Arbitrator shall have the same effect as if substituting
Arbitral Tribunal did it. In case the parties agree to ignore eariier
proceeding, then all orders or rulings would become ineffective in its
entirety^^. The procedure adopted and applied at both the stages should be
^ Id, S.14 (1) Sub Clauses (a) and (b).

^' \d, S.15(3).
52
Id, S.15(4).
108
fair so as to enable the parties to have the fullest opportunity of presenting

their cases. If there is any objections as to the new Arbitrators or the
proceedings conducted earlier, it should be raised immediately or possibly
before the start of the proceedings. The plea cannot be accepted after the
award has been announced by the Arbitrator or appeal filed by opposite
party before the High Court.
[viii] Jurisdiction of Arbitral Tribunal:
The section 16 of the Act confers the jurisdiction
on the Arbitral Tribunal and has vested with the powers to rule on its own
jurisdiction. The Arbitral Tribunal has powers to decide the question as to its
jurisdiction including the objection as to the existence or validity of the
arbitration agreement^^. The arbitration clause in a contract, which forms
the part of it, shall be treated as an arbitration agreement independent of the
contract. If the Arbitral Tribunal hold that the contract is null and void it will
not result in the automatic invalidity of the arbitration clause^. Because an
Arbitrator has no authority or jurisdiction to act beyond that defined by the
terms of the contract or what the parties desire under the contract. The
Arbitrator is required to consider all terms expressed in the contract and he
is no authority to abdicate or ignore those terms and conditions agreed to in
the contract^^. The Supreme Court while deciding the matter pertaining to
Arbitral Tribunal and its power to rule on its own jurisdiction in Olympus
Superstmcture (P) Ltd. Vs Meena Viiav Khetan^^ has observed that "The
Arbitral Tribunal is invested with the power to mle on its own jurisdiction
including ruling on any objection with respect to the existence or validity of
the arbitration agreement. The objections must be raised before the
arbitration proceedings".
The objections pertaining to the jurisdiction to

entertain the reference must be filed before the submission of the statement
^Îd, S.16(1).
^ \d, S.16 (1), Sub-Clauses (a) and (b).
^^ See, Ispat Engg & Foundry Works Vs Steel Authority of India Ltd.. A.I.R. 2001
SC, p-2516.
56
A.I.R. 1999 SC, p-2102.
109
of defence but not later than such submissions or statement of defence. A

party will not be stopped from raising this plea merely because he was a
party and have actively participated in making the appointment of the
Arbitrator^^. The objections relates to having entertained matters beyond its
jurisdiction or acting beyond the scope of its authority can be raised before
the Arbitral Tribunal as soon as it is possible during the proceedings^^. But
the Arbitral Tribunal, if the parties justify the delay and it deem fit has
powers to condone the delay while entertaining the objections beyond
prescribed time. The Arbitral Tribunal under S. 16(4) has powers to
entertain the objections pertaining to the lack of jurisdiction or excess of
jurisdiction beyond which the Arbitral Tribunal has acted even beyond the
time limit if delay is justified ^^. The S. 16(6) provides for challenge of the
award made by the Arbitral Tribunal after rejection of the objections as to
lack or excess of jurisdiction. The aggrieved party may make an application
under S.34 of the Act to set aside the award^°. The Section 17 of the Act
vests the Arbitral Tribunal with the powers to issue orders or any direction to
the parties for taking of interim measures in respect of the subject matter of
the dispute for its protection. The Tribunal can pass the order if parties do
not exclude the exercise of such jurisdiction. The Arbitral Tribunal may also
require and order the parties to provide and furnish appropriate security by
the party for carrying out an interim measure ordered under S. ^7{^f\
[ix] Conduct of arbitral proceedings:
[a] Equality of opportunity :
The Arbitrator after his appointment and
undertaking his job has to reach a definite conclusion in order to end the
matter of difference between the parties. The parties have appointed him
with great confidence reposing trust in him. 'If an arbitrator could not be
trusted to ignore the negligible he might as well not be trusted as an
" Supra Wote 54, S. 16 (2).

^ Ibid, S.16 {3).
^'Id, S.16(4).
^°lcf, S.16(6).
^' Id, S. 17.
110
arbitrator at all'®^. The Arbitral Tribunal, like any other Tribunal performing
judicial functions, has the duty to act in accordance with the essential mles
of natural justice. He is required to give equal treatment to both the parties
in conducting the proceedings^^. The S. 18 of the Act envisages and casts
two-fold duty on the Arbitral Tribunal. First he must mete out equal
treatment to both the parties and for that he has to act independently and
impartially. Second, the Arbitrator must give to both the parties' full
opportunity to present their case before him^.
[b] Rules of procedure - determination:
The rules and procedure that is required to be
followed by the Arbitral Tribunal, the parties are free to agree on the
procedure to be applied in conducting its proceedings^^. But the Arbitral
Tribunal is not bound by the procedure prescribed by the Code of Civil
Procedure, 1908 or the rules and principles governed by the Indian
Evidence Act, 1872. S. 19(1) provides that the Code of Civil Procedure,
1908 and the Indian Evidence Act, 1872 are not applicable and binding in
conducting arbitration proceedings®®. The Act makes the provisions that the
parties may fix or lay down the procedure to be followed in the prbitration
proceedings. In the absence of any such agreement between the parties the
Arbitral Tribunal may prescribe and follow any procedure which it consider
appropriate under the circumstances and reference before hand®^. The
Section 19 (3) and (4) does not in any way allow the Arbitral Tribunal to
conduct the proceedings in accordance with the Civil Procedure Code and
the Indian Evidence Act. The Section 19(4) confers powers on the Arbitral
Tribunal to determine the rules and admissibility of evidence, their
relevance, materiality and weight keeping in view the reference and dispute
between the parties®®.
^^ See, Mr Justice Megaw, In Horsnell Vs Alliance Assurance Co. Ltd., (1967),

205, E.G.,p-319at321.
®^ Supra Note 44, p-208.
^ Supra Note 61, S.^S .
^Îd, S.19(2).
^îcf, S.19(1).
^Îcf, S.19 Clauses (2) and (3).
^'Id, S.19(4)
111
[c] Place of Arbitration :

The venue and place for conducting the arbitral
proceedings is most important , which must suits to both the parties. The
S.20 of the Act prescribes the procedure to fix the place and venue to
conduct the arbitral proceedings. The S. 20(1) provides freedom to the
parties to agree upon the place of arbitration by an agreement that the
arbitration proceedings will be held on such place^^. The Arbitral Tribunal
can also fix the place to conduct the arbitration proceedings. The Arbitral
Tribunal can fix the venue and decide the place in cases where there is no
agreement between the parties about the place of arbitration proceedings.
The Act specifically requires the Arbitral Tribunal to see nature and
circumstances of case and the convenience of the parties, where they can
attend the proceedings easily and without much loss of time and money^°.
The S.20(3) envisages that if the place of arbitration has been fixed by
mutual agreement between the parties either under S. 20(1) or by the
Arbitral Tribunal under S. 20(2) of the Act, even then, the Arbitral Tribunal
may meet at any other place that it considers appropriate and convenient.
But the place or venue must be selected only for the purpose of
consultations among its members, for hearing witnesses or experts, for
hearing the parties or for inspection of documents, goods or other property,
which is the subject matter of reference and dispute between the parties^V
[d] Commencement of the Arbitral

Proceedings :
The parties are free to determine by an
agreement the time and date for commencement of the arbitral proceedings.
The parties can fix from which date the arbitral proceedings shall
commence. If there is no such agreement between the parties or the
contract clauses are silent about commencement of proceedings, then S. 21
of the Act comes into play which prescribes that such date shall be the date
^Îcf, S.20(1).
^° \d, S.20 (2).
^' Id, S.20 (3).
112
on which a request is received by one party from the other to make a

reference of the dispute to arbitration^^.
[e] The Language in Arbitral Proceedings:
The parties are given full liberty by the Act to
agree upon the language to be used in the arbitral proceedings. In case
there is no such agreement between the parties the Arbitral Tribunal has
been empowered to determine the language to be used in the arbitral
proceedings. The agreement of the parties or determination by the Arbitral
Tribunal with regard to the language during the arbitral proceedings shall
also apply for submission of the written statements, hearing for arbitral
award and decision thereof including any other communications to or by the
Arbitral Tribuna^^. Keeping in view the difference in the language of the
States in India or different nationality at international level the choice of
language is an important consideration from a practical point of view and
procedural fairness. The Arbitral Tribunal may order that any documentary
evidence shall be accompanied by a translation into the language agreed
upon by the parties or determined by the Arbitral Tribunal^''.
[f] Statements of Claims and Defence :

The statements of 'claim' and 'defence' are two
different things. The claim is to be submitted before the Arbitral Tribunal by
the aggrieved party whereas the respondent has to reply for the claims in
his defence. The S.23 of the Act requires that the claimant shall state the
facts supporting his claim, the points at issue and the relief or remedy
sought in his statement of claim. The respondent shall submit the
statements of defence in respect of the particulars stated in the statement of
claim. The statement of defence shall also accompany the relevant
documents in support of his defence. The parties can either fix the time for
submission of statements of claims or defence in their agreement or in the
absencfe of any such clause, the Arbitral Tribunal can fix the time for filling
^^ Icf, S.21 .
" \d, S.22 Clauses (1), (2) and (3).
^^ Id, S.22 (4).
113
the papers^^. The Section 23(3) makes provision that the parties may
during the arbitral proceedings, amend or supplement their claim or defence
unless the parties have agreed othenwise. The Arbitral Tribunal may allow
the amendment of the statement of claim, if necessary. The Arbitral Tribunal
is to be guided on the matters by the general principles of law. But an
amendment may be allowed where it can be shown that no serious injustice
shall be caused to either party and such amendment is necessary to
determine and decide the matter under controversy between the parties^^.
[g] Hearing and written proceedings :
The Section 24 of the Act prescribes the modes
of hearing. Firstly, it is open to the parties to agree whether the Arbitral
Tribunal should hold any oral hearing or not. In the absence of any such
agreement the Act empowers the Arbitral Tribunal to decide the mode of
hearings either oral or written hearing. The proviso appended to S.24(1)
provides that Arbitral Tribunal shall hold oral hearings unless parties have
agreed that there shall be no oral hearing during arbitral proceedings^^. The
Act requires that the Arbitral Tribunal shall give sufficient time and advance
notice to the parties of any hearing or any meetings relating to arbitration
proceedings for purpose of inspection of documents, goods or other
property^®. The Act further provides that an Arbitral Tribunal can use only
those materials and documents, which the party has supplied to it. Neither
party can be allowed to use any means of influencing the Arbitrator or any
material, which is not known to the other side. There are two provisions
under S. 24 of the Act. First the Tribunal shall communicate to the other
party all the materials, including statements, documents, information and
applications supplied to the Arbitral Tribunal by one party. Second, the
Arbitral Tribunal shall communicate the entire material to all the parties
including expert report or evidentiary material on which it seeks to replies^^.
^^ \d, S.23 Clauses (1) and (2).

^^ Id, S.23 (3).
^Îcf, S.24(1).
^^ Id, S.24 (2).
'^ Id, S.24 (3).
114
[h] Ex Parte proceedings:

Once, the statements of claim has been filed, it
is mandatory to serve the notice on the other party and give sufficient time
to present his statements of defence. Where sufficient notice has been
served on the party and he is absent at the time of hearing; an Arbitrator is
authorized to proceed in his absence and may decide ex parte. The Act
provides that If the claimant fails to file any statements of claim in
accordance with the provision of Section 23(1), the Arbitral Tribunal shall
terminate the proceedings. On the other hand if the respondent fails to
submit his statements of defence, the Arbitral Tribunal shall continue the
proceedings ex parte. In case, after filing the statements by the parties, one
of them fails to appear at the oral hearing or produce any documentary
evidence before the Arbitral Tribunal, the Tribunal may continue
proceedings ex parte and may make an award accordingly®^.
[i] Appointment of Expert by Arbitral Tribunal :

In the absence of any contract to contrary
between the parties, the Arbitral Tribunal can appoint expert or more than
one expert to report on any specific issue and may direct a party to give the
expert any relevant information pertaining to the reference. The Arbitral
Tribunal may appoint expert to produce or to provide access to any relevant
documents, goods or other property for his inspection®^ The expert can be
asked by the Arbitral Tribunal to participate in the hearing after he has
submitted his report either oral or in writing, if the Arbitral Tribunal considers
it necessary and on the request of the parties®^. The expert may on the
request of the parties be required to make available to them for examination
of all relevant documents, goods or other property with which he was so
entrusted and required to prepare his report.®^.
'° Id, S.25.

^' Icf, S.26(1) Sub-Clauses (a) and (b).
82
Icf. S.26 (2).
^^ \d, S.26 (3).
115
[j] Assistance of Court in tailing Evidence :

The trial of cases in India completely depends
upon evidences adduced by the litigants and that is procured under Indian
Evidence Act, 1872. The procedural laws do not bind the Arbitral Tribunal,
even then, the assistance of Codes and Courts is imminent necessity. The
Act provides that the Arbitral Tribunal as well as any party with the approval
of the Arbitral Tribunal can apply to the Court for taking such assistance as
required in recording the evidence®^. This can be done either by Arbitral
Tribunal itself or on the application made by the party. The application must
contain the names and addresses of the parties and Arbitrators, the general
nature of the claim and the relief sought by the claimant, name of witness
or expert witness, including the description of any document to be produced
or property to be inspected as evidence^^.
The Act provides that the Court may direct or
execute the order that the evidence of the witnesses may be provided
directly to the Arbitral Tribunal. The Court is competent to issue such an
order keeping in view the circumstances and nature of the reference and
witness to be obtained^^. The Court while making an order under Section
27 (3) have powers to issue the same processes to witnesses as it may
issue in suits tried before it®^. The word 'processes' and its expression
according to Section 27 (6) means and includes summonses for the
examination of witnesses, issuance of commissions for the examination of
witnesses, and issuance of summonses to any witness for the productions
of any documents which is a subject matter of reference^^.
[k] Disobedience to the Court's orders:
In pursuance to lending assistance by the Court
any order executed or issued to any party and party fails to appear before
the Arbitral Tribunal, it shall amount disobedience of the Court's order. The
'Îd, S.27(1).
^^ Id, S.27(2),Sub-Clauses [a-c].
86
Id, S.27 (3).
^' Id, S.27 (4).
^^ Id, S.27 (6).
116
Act provides that any person or party ordered by the Court to attend the
Arbitral Tribunal in accordance with the process issued by it and the party or
person who fails to attend the Court, or make any other default or refuse to
give evidence is guilty of contempt of the Arbitral Tribunal. The Court on the
report or representation of the Arbitral Tribunal shall deal with the person
who is guilty of disobedience in the same way as a person who was guilty of
like offences in suits before the Court. He shall be subjected to such
disadvantages, penalties and punishment ordered by the Court on the
representation of the Arbitral Tribunal^^.
[x] Arbitral award and termination of proceedings :
[a] Application of substantive law In domestic
arbitration:
The Arbitral Tribunal in arbitration proceedings
other than international commercial arbitration, where the place of
arbitration is situated in India shall decide the arbitral dispute in accordance
with the substantive law. Neither the Arbitrator nor Tribunal can oppose the
law or grant anything beyond the permissible limits of the law. The Act
under S. 28 provides that the Arbitrator shall have to resort to the
substantive law of the country in domestic arbitration^. The expression
'substantive law' means the law of the land, which includes the Code of Civil
Procedure, 1908, the Indian Evidence Act, 1872 and all other laws
applicable for the time being and in force in lndia^\
[b] Rules Applicable in International Commercial

Arbitration :
The law applicable in an international
commercial arbitration during conduct of arbitration proceedings shall be the
rules designated and framed by the parties, which shall mean the
substantive law of that country. If there is no such prescription by the parties
then, the Arbitral Tribunal shall apply any rules of law that consider it fit and
^^ Icf, S.27 (5).

^° Id, S.28 [1] Sub Clause (a).
^' Supra Note 14, p - 397.
117
to be appropriate under the given circumstances and surrounding tiie

dispute. But nothing should be in conflict or inconsistent with rules of that
substantive law^^. The Act provides safeguards to the Arbitral Tribunal that
the decision of the Arbitral Tribunal shall be in accordance with the terms of
the contracts and the Arbitral Tribunal shall also take into account the
usages of the trade applicable to the transaction^^. In case the parties
authorize the Arbitral Tribunal to decide and apply the law or rules on its
own, the Arbitral Tribunal shall have to decide the dispute according to ex
aequo at bono which means according to good senses of the Arbitral
Tribunal and that deems fair and good. On the other hand the Arbitral
Tribunal may decide the dispute as amiable compositeur, which means on
the basis of amicable settlement. But in both the conditions it can be done if
the parties empower and authorize the Arbitral Tribunal to do so in this
respect^. The term ex aequo at bono means what is just and good. A
power explicitly conferred on Arbitrators by the parties in their arbitration
agreement or compromise permit the Arbitrator to go outside the.bounds of
law in order to reach a decision based primarily on concepts of fair dealing
and good faith. The parties in international disputes, public or private, must
expressly state in their arbitration agreement that the Arbitrator is authorized
to decide ex aequo at bono^^. Whereas the term Amiable Compositeur
means where the power is given to Arbitrator to render award what he
believes to be just and fair. It is known as amiable composition^^.
[c] Majority decision in case of disagreement among

Arbitrators:
The award of the Arbitral Tribunal shall be made
by a majority decision. It happens only if there is more than one Arbitrator
and there is disagreement among them. The Arbitration and Conciliation
^^ Supra Note 90, S. 28 (1) Sub Clause (b) [i - ill].

^^ Ibid, S. 28 (3).
^^ Id, S. 28 (2).
^^See, See, Katharine Seide and Henry Brown and Arthur Marriott: ADR Principles
and Practice, referred in H.K.Saharay, The Law of Arbitration and Conciliation,
(2001), Appendix 26, p-851.
^ Ibid, at p- 845.
118
Act, 1996 does not permit even number of Arbitrator^^. The Act provides
tiiat In the absence of any agreement and where there is more than one
Arbitrator, the decision of the Arbitral Tribunal shall be made by a majority of
its members. But the question or any other matters pertaining to procedure
shall be decided by the Presiding Arbitrator alone.^^
[d] Settlement through Conciliation :
The Arbitration and Conciliation Act, 1996 has
made commendable provision for settlement of dispute through
compromise, mediation or conciliation between the parties by inserting the
Section 30 in the Act. This Section is complete answer to the mechanism of
ADR system in India. The Section 30'provides that the Arbitral Tribunal with
the agreement of the parties may settle the dispute through mediation,
conciliation or other procedures conducive towards amicable settlement.
The settlement of the dispute can be done at any time during the arbitral
proceedings. It is implicit under the Act that encouragement of such a
settlement shall not be incompatible or in derogation with an arbitration
agreement made between the parties^^.
The Act under S.30 further provides that in case
the settlement reached between the parties, the Arbitral Tribunal shall
terminate the arbitration proceedings. The settlement reached between the
parties shall, if the parties desire and request the Arbitral Tribunal to do so
and the Tribunal does not have any objection, be reduced in writing. The
settlement reduced in writing shall be maintained in the form of an award on
agreed terms^°°. It must be stated that it is an award and it has been made
in accordance with the requirements of Section 31 of the Act and shall have
the same status and force and in the same manner as if it were an arbitral
award on the substance of the dispute^°\
^^ Supra Note 94, S. 10.

^^ id, S. 29.
^'Icf, S. 30(1).
'°° \d, S. 30 (2).
'°' \d, S. 30 Clauses (3) and (4).
119
[e] Form and contents of award :

The Act makes ample provisions that how the
arbitral award is to be made. The S. 31 of the Act provides that the arbitral
award shall be made in writing, which must have been signed by all the
members of the Arbitral Tribunal. In case the Arbitral Tribunal consists of
more than one Arbitrator, it will be sufficient if majority of its members have
signed the arbitral award. But the Act creates bounden duty on the Tribunal
that the reasons must be expressed for any omitted signature^°^.
[f] Reason for Award :

The principles of natural justice requires that
there should be speaking order, which means in writing and reason for its
order so that every person or authority may know the contents and reason
for its decision. The Act under S.31 have incorporated the rules of natural
justice. The Arbitration Act, 1940 did not contain any such provisions. There
were conflicting decisions on the issue of reasoned award . The Supreme
Court in the case of Raipur Development Authority Vs Chokhamal
Contractors^"^ has held that 'an arbitrator was not obliged to give reasons
for his award except when he was required to do so by the arbitration
agreement, the reference or deed of submission or the statue governing the
arbitration proceedings^""*. But Section 31 of the Act specifically provides
that an Arbitral Tribunal must express reasons for its award in the arbitration
proceedings. The Arbitral Tribunal may not express the reasons in two
situations, (i) Where the parties have agreed that no reasons may be given,
and (ii) When the settlement of award is based on compromise settlement,
under Section 30 of the Act^°^
The Section 31(4) provides that the arbitral

award must state the date of the award on which it has been announced
and signed. The arbitral award must name out the place of arbitration, which
'°^lc(, S. 31 Clauses (1) and (2).

'°^ A.I.R. 1990. SO, p-1426.
''' Ibid.
105
Supra Note 102, S. 31 (3), Sub Clauses (a) and (b).
120
has been determined either by the parties under the agreement or Arbitral
Tribunal required under Section 20 of the Act. The award shall be deemed
to have been made at that place^°^. The signed copies of the arbitral award
shall be provided to each party as required under S.31 (5). The S. 31 (6) of
the Act empowers the Arbitral Tribunal to make an interim award during the
arbitral proceedings. The Section 2 (1) (c) of the Act defines that the award
includes interim awards. The interim award shall be made only on those
matter with respect to which the Arbitral Tribunal can make a final award^°^.
The S. 31(7) of the Act provides for the grant of
interest by the Arbitral Tribunal on an award for the payments of money for
the period between the date on which cause of action arose and the date on
which the award is made. The Arbitral Tribunal is competent to grant
interest at any rate, which it considers reasonable under the circumstances.
In cases where the arbitral award pertains to the payment of money, the
Arbitral Tribunal may add a sum by way of interest to the amount awarded
at such rate, as the Tribunal deems just and reasonable. The Section 31(7)
further provides for the grant of interest on the sum of money awarded for
the period from the date of the award uptil the date of payment, subject to
maximum of eighteen percent per annum^°^. The Section 31(8) provides for
the Arbitral Tribunal to fix the cost of arbitration proceedings unless agreed
by the parties themselves that what cost may be paid. It shall specify by
whom [party] and to whom and in what manner the cost shall be paid^°^.
But the cost shall be reasonable including the fees and expenses of the
arbitrator, witnesses expenses, legal fees, administration fee of the
institution, which is supervising the arbitration and other allied expenses
incurred in connection with the arbitral proceedings and till the final arbitral
award"°.
'°^ Ibid, S. 31 (4).

'°^ Id, S. 31 (6).
'°^ \d, S. 31 (7) Sub Clauses (a) and (b).
'°^ Id, S. 31(8) Sub Clauses (a) and (b) [i-ivj.
110
Id, S. 31 (8) Explanation.
121
[g] Termination of Proceedings:

The Act provides modes for termination of arbitral proceedings
in two situations. First, automatic termination of arbitral proceedings. The
automatic termination of arbitration proceedings shall take place when the
Arbitral Tribunal has made final award and thereafter existence of Tribunal
is not required. In such a situation arbitration proceedings stand
automatically terminated^^\ Second, termination of proceedings by the
Arbitral Tribunal. Section 32 (2) explains that Arbitral Tribunal by issuance of
orders may terminate the arbitration proceedings when;
1. the claimant withdraws his claim as submitted in
the statements of claims before the Arbitral Tribunal. But the section
prohibits the unilateral withdrawal by the claimant. The withdrawal is subject
to the condition that if the respondent objects his withdrawal from arbitration
proceedings and the Arbitral Tribunal identifies that the interest of the
respondent is legitimate and genuine in final settlement, the Arbitral Tribunal
may reject the withdrawal of the claimant,
2. the parties to the arbitration proceedings
mutually agree to terminate the arbitration proceedings, the Arbitral Tribunal
may pass an order to this effect,
3. the continuation of the arbitration proceedings
has become impossible or are considered to be unnecessary ^^^.
The Section 32 further provides that the mandate
and authority of the Arbitral Tribunal, subject to Section 33 and Section 34
(4), comes to an end with the termination of arbitration proceedings^^^. It
means the provisions under S. 33 and S. 34(4) are exceptions and the
Arbitral Tribunal can not become a functus officio when;
1. the party with the notice and knowledge of other
party makes request to the Arbitral Tribunal for purpose of rectification or
corrections of computational, clerical or typographical errors in the arbitral
award,
' " id, S. 32(1).

''^ Icf, S.32 (2) Sub Clauses [a - c].
113
Icf, S. 32, Sub Clause (3).
122
2. the party makes request to the Arbitral Tribunal

for interpretation of specific point or any part of the arbitral award made in
the course of arbitration proceedings,
3. the Arbitral Tribunal is in the receipt of an
application from the party for purpose of making an additional award^^'*, and
4. the party has resorted to initiate proceedings in
the Court for setting aside the arbitral award. On receipt of an application
under Section 34(1), the Court may adjourn the proceedings for a period of
time determined by it to give the Arbitral Tribunal an opportunity to resume
the arbitral proceedings or to take such other action as in the opinion of the
Arbitral Tribunal will eliminate the grounds for setting aside the arbitral
award ^^^.
[h] Recourse against Arbitral Award :

The Act under Section 34(1) provides for setting
aside the arbitral award made by the Arbitral Tribunal. The Judicial Courts
enjoy exclusive powers to set aside arbitral award on an application made
by a party on the grounds that (i) the party was under some incapacity and
could not look after and protect his interest during arbitral proceedings; (ii)
the arbitration agreement is not valid under the law or is failing any
indication thereon under the law in force; (iii) the party was not given proper
notice of the appointment of an Arbitrator and arbitral proceedings; (iv) the
arbitral award deals with a dispute not contemplated by reference or not
falling within the terms of the reference submitted to arbitration, or the
arbitral award deals with the subject-matter, which was beyond the scope of
arbitration proceedings; (v) the composition of the Arbitral Tribunal was not
made according to agreement between the parties or the arbitral procedure
has not been followed according to the agreement of the parties or the
procedure prescribed by the Act has not been followed during the course of
arbitral proceedings^ ^^; (vi) the Court finds that the subject matter of the
dispute is not capable of settlement by arbitration under the existing law;
''^ Id, S. 33.

"^ \d, S. 34 (4).
116
\d, S. 34 (2) Sub Clause (a) [i - v].
123
and (vii) the Court finds that the arbitral award is in conflict with the public
policy of India as such the arbitral award has been induced or affected by
fraud or cormption or was in confidentiality of matters relating to conciliation
proceedings^^^.
[i] Time limit for setting aside the arbitral award :
The Act prescribes the maximum three months
time for submission of an application before the Court to set aside the
arbitral award. The application can not be filed after the expiry of three
months and the time shall run from the date on which the party received the
arbitral award or from the date of the disposal of the application under
Section 33 made for rectification of errors or interpretation of specific point
in the award etc. The proviso appended to S.34(3) makes provision for
extension of time limit beyond three months if the party is able to justify the
cause and reason of delay^^^. The Section 34(4) provides that when an
application has been made before the Court for setting aside an arbitral
award, the Court may adjourn the proceedings for the time being to enable
the Arbitral Tribunal to resume proceedings to eliminate those grounds and
accomplish the task ^^^.
[xi] Finality and enforcement of arbitral award :
The Section 35 of the Act makes the award
binding on all the parties and upon those claiming the arbitral award or
having any interest there upon. Finality clause means that neither there can
be further award on the same subject matter for which the reference had
been made nor there will be any challenge to award made by the Arbitral
TribunaP^°. The Act makes ample provisions for enforcement of arbitration
award. The arbitral award is a decree in itself and is directly enforceable in
the same manner as if it were a decree of the Court. But the arbitral award
shall be enforceable only when the time for setting award under Section 34
of the Act has been expired. The arbitral award shall not be enforceable
'^^ Id, S. 34 (2) Sub Clause (b) (i) & (11).

"^ Id, S. 34 (3).
119
Id, S. 34 (4).
''° Id, S. 35.
124
unless the application made by the party for setting aside the award has
been refused, rejected or made imfructuous^^\ Under the Arbitration Act,
1940 there were some obstacles during the enforcement of arbitral award.
First, an arbitral award had to be duly filed in the Court and that Court shall
convert the same into a judgement in terms of the award, which was known
as "making the award a rule of the Court". Thereafter, it was converted into
a decree for its enforcement. The Arbitration and Conciliation Act, 1996 has
removed the deficiency. As soon as the time limitation under Section 34 is
over the award becomes enforceable immediately under the Code of Civil
Procedure and without any further interference by the Court^^^.
[xii] Provisions for Appeals :
There are two types of appeals under the
Arbitration and Conciliation Act, 1996. First from the orders or against the
orders of the Court. Second against the orders of the Arbitral Tribunal.
[a] Appeal against the orders of the Court:
The Section 37 of the Act provides that an
appeal shall lie to the Court authorized by law to hear appeals from the
original decrees of the Court passing the order where (i) the Court either
granting or refusing to grant any measure under Section 9 of the Act; (ii) the
orders made by the Court under Section 34; setting aside or refusing to set
aside an arbitral award^^"^.
[b] Appeal against the orders of Arbitral Tribunal :
The Act provides for an appeal against the
orders of the Arbitral Tribunal made under Section 16 (2) & (3) for accepting
the pleas referred to under this Section. The appeal shall also lie against the
orders of the Arbitral Tribunal made under Section 17 granting or refusing to
grant an interim measure of protection^^"*. But no second appeal shall lie
from an order passed in appeal under Section 37. The Act further explains
that there is no provision of second appeal under the Arbitration and
'^' \d, S. 36.

^^^ See, Union of India Vs. Popular Construction Co., (2001) 8 SCC, p- 470.
123
Supra Note 72t, S. 37(1).
'^* Ibid, S. 37(2).
125
Conciliation Act, 1996. But the right of the parties to appeal to the Supreme
Court under Article 136 [SLP] of the Constitution of India has not been
affected under this section^^^.
III. PROVISIONS OF CONCILIATION :

[I] Statutory recognition for Conciliation in India :
Before the advent and commencement of the
Arbitration and Conciliation Act, 1996 there were very few provisions of
conciliation process in India. The mechanism of conciliation process for
dispute resolution in Indian statutes was available in the enactments viz. (i)
Order XXXI l-A, Rule 3 of the CPC, which creates duty of the Court to make
efforts for settlement of every family dispute by way of conciliation]; (ii)
Section 12 of the Industrial Disputes Act, 1947 requires the Conciliation
Officer to initiate and bring about a settlement in an industrial dispute; (iii)
the Section 23 of the Hindu Marriage Act, 1955; and (iv) the Section 34 of
the Special Marriage Act, 1954 provides for reconciliation of matrimonial
disputes before the judicial officer. But after enactment of the Act of 1996,
ample provisions have been made under Part -III of the Act, which deals
with the conciliatory provisions^^^.
[ii] Application and scope of conciliation:
The Section 61 requires that the Part-Ill of the
Act shall apply to conciliation of disputes, which arises out of legal
relationship. The provisions apply to both type of disputes whether
contractual or not. The section saves the provisions contained in any other
law except where the parties have othenvise agreed. The dispute must have
been arisen out of legal relationship between the parties and that is
mandatory for conciliation. The dispute must be of such nature as to give
one party the right to sue and other party the liability to be sued^^^. But Part
'^^ Id, S. 37(3).

^^Îc/. Ss.61 to 81.
^''Icf. S.61(1).
126
III of the Act does not apply and prohibits those disputes, which cannot be
submitted to conciliation by virtue of any law for the time being in force^^^.
[iii] Commencement of conciliation proceedings :
The conciliation proceedings are initiated by one
party and other party is called for settlement of dispute. The Section 62
provides that the party initiating conciliation must send a written notice of
invitation to the other side to conciliate upon particular dispute. The notice
so sent must specify the subject matter of dispute. The conciliation
proceedings are deemed to have commenced when the other party accepts
written notice or invitation^^^. The Section further provides that where the
other party rejects the invitation or notice of conciliation, there will be no
conciliation proceedings^^°. The offer and acceptance of written notice to
conciliate is condition precedent and that must be done within stipulated
period. The Section 62(4) requires that reply to an invitation or notice must
be sent with in the period of thirty days. In case no reply to the invitation is
received within thirty days from the date on which the invitation is sent or
within extended time granted or desired, the sender of the invitation may
elect to treat the invitation as a rejection. He shall also inform the decision of
rejection in writing to the other party accordingly^^\
[iv] Number and strength of Conciliators:
The Act generally provides that there shall be
one Conciliator. The Section 63 of the Act gives liberty to the parties to
decide upon numbers of Conciliators. The parties to the dispute may by an
agreement provide for two or three Conciliators. In case where the number
of Conciliators is more than one, it is binding upon them that they should act
jointly^^^.
'^Îd, S.61(2).
'''Id, 8.62(1) and (2).
'^° Id, S.62 (3).
'^' Id, S.62(4).
132
Id, S.63.
127
[v] Procedure for appointment of Conciliators:

The Section 64 of the Act provides for
appointment of Conciliators. There are three rules prescribed under this
section. First, If there is only one Conciliator appointed to conduct the
conciliation proceedings, the parties may agree on the name of single
Conciliator. Secondly, if there are two Conciliators each party has an
opportunity to appoint one Conciliator of their choice. Third, in case there
are three Conciliators each party is allowed to appoint one Conciliator and
the parties may agree on the name of the third Conciliator who shall be
designated as the Presiding Conciliator^^^. The Section further provides that
the parties to conciliation proceedings may obtain the assistance of a
suitable institution or person for the appointment of Conciliator and that may
recommend the name to act as Conciliators. The parties may also agree
and write to the institution or person that the appointment of one or more
Conciliators be made directly by such institution or persons^^. But the
proviso appended to the Section 64(2) requires that the institution or person
recommending or appointing individuals to act as Conciliators shall have
regard to such considerations as are necessary to secure the appointment
of an independent and impartial conciliator to secure balanced justice. The
nationality of a Conciliator in making the appointment of a sole or third
Conciliator must be taken into account and it is advisable to appoint the
Conciliator of nationality other than that of the parties^^^.
[vi] Submission of statements :
The Section 65 of the Act requires that the
Conciliator upon his appointment may request the parties to submit to him a
brief written statements of their claims. The statements must contain the
description and nature of their dispute including the points at issue for
conciliation. The first party must send a copy of such statements to the other
party. The conciliator may require each party to submit to him a further
^''Icf, S.64(1).
'"^ Id, S.64 (2).
135
\d, S.64 (2), PROVISO.
128
written statement of his position and the facts and grounds in its support.
The Act under Section 65(2) provides that written statements may be
supplemented by appropriate documents and evidences. The party is again
required to send a copy of such statements, documents and related
evidences to the other party. The Conciliator is also empowered to call for
any additional information from the parties, which he may deem appropriate
at any stage of the conciliation proceedings^^^. The Explanation appended
to Section 65 explains that 'Conciliator' under any section of Part III applies
to a sole, two or three Conciliators^^''.
[vii] Application of Procedural Codes:
Conciliator is not bound by the rules contained in the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872. The Act under Part Hi
provides some rules of procedure to be applied and adhered to during
conciliation proceedings. The Conciliator may not be bound by the
technicalities of rules prescribed under these procedural codes^^^.
[viii] Role of Conciliator and principles in conciliation
proceedings:
[a] independence and Impartiality:
The Act prescribes the rules of independence
and impartiality. The Conciliator should be independent and impartial in
conducting the conciliation proceedings and is required to assist the parties
in fair manners while attempting to reach an amicable settlement of
dispute^^^
[b] Objectivity, fairness and justice :
The Conciliator should be guided by the
principles of objectivity, fairness and justice. The Act envisages that the
Conciliator must take into consideration, inter-alia, the rights and obligations
" ' Id, S.65.

'^^ Id, S.65, Explanation.
"^ Id, S.66.
139
Id, S.67(1).
129
of the parties and the usages of the trade concerned. The Conciliator must
keep in mind the circumstances surrounding the dispute, including any
previous business practices being followed between and by the parties in
order to reach a just and fair settlement^'*°.
[c] Speedy settlement through oral hearing:
The main purpose of these provisions is to
provide speedy justice to the litigant parties apart from cheap and with
minimum loss of time and value. The Act provides for the Conciliator to
conduct the conciliation proceedings in such a manner as he considers
appropriate keeping in view the circumstances of the case. He must
consider the wishes of the parties they express before him. The Conciliator,
at the request of the parties, may hear oral statements instead of written
submission with a view to make speedy settlement of the dispute^'*\
[d] Proposals of settlement:
The Conciliator enjoys discretionary powers to
make proposals for a settlement of the dispute to the parties at any stage of
the conciliation proceedings. The Conciliator is not bound to make such
proposals in writing to the parties. The proposal so made need not be
accompanied by a statement of the reasons to be explained by the
Conciliator^^^.
[e] Disclosure of information :
When the Conciliator has received an
information about any factual position relating to the dispute from a party, he
should disclose the substance of that information to the other party also.
The purpose behind the incorporation of this provision is to enable the other
party to plan and present his defence, which he may consider appropriate
and conducive towards amicable settlement of their dispute^"^^.
"'° \d, S.67 (2).

'^' id, S.67 (3).
'"' \d, S.67 (4).
'^^ Id, S. 70.
130
[f] Rules of confidentiality:

The Proviso appended to the Section 70 is a
rule of confidentiality. It provides that the Conciliator must keep any
information made to him by the parties confidential and he is bound under
the provisions of the Act not to disclose any information to the other party^"*^.
The Section 75 of the Act also requires the Conciliator and parties to keep
all information and matters pertaining to the conciliation proceedings
confidential and the rule of confidentiality shall extend to the settlement
agreement. But there is difference in two sections. The provisions under S.
70 of the Act applies \Q the Conciliator only who is bound not to disclose the
information to the other party. Whereas Section 75 requires both the
Conciliator and parties not to disclose the information and matters relating to
conciliation proceedings and keep that confidentiaf'*^.
[g] Rules of co-operation:
It is trite proposition that nothing could be solved
or achieved without the co-operation of each other in any field. The Section
71 of the Act has also been incorporated on the same lines. It requires that
both the parties to conciliation should in good faith co-operate with the
Conciliator in all matters in order to make settlement of the dispute. The
parties should submit the written materials and provide evidences as
required by the Conciliator. They should make endeavour to attend all the
meetings and comply with all the requests made by the Conciliator during
conciliation proceeding^'*®.
[h] Communication between Conciliator and the
parties :
Conciliator may invite the parties to meet him at any time. He may have
meetings with the parties together or with each of them separately in order
'^^ Id, S. 70, Proviso.

'"' id, S. 75.
146
Icf, S. 7 1 .
131
Legislative provisions ofAttemative Dispute Resolution System in India
to facilitate for the right settlement. He may invite and communicate with
both the parties orally or in writing whatever is convenient^"*^.
[i] Place of meetings:
The Section 69 of the Act provides to choose
and fix the place of meetings to conduct the conciliation proceedings. First,
the parties under the Act have full freedom to fix the place where meetings
may be conducted with the Conciliator. This can be done by an agreement
between the parties. In case there is no such agreement between the
parties, the place of meeting will be fixed by the Conciliator. But in doing so
he is required to fix such place of meeting only after full consultation with the
parties. Because the nature and circumstances of conciliation proceedings
will have a prime importance in fixing the place of meetings^'*®.
[j] Administrative Assistance :
The Conciliator and the parties during
conciliation proceedings may have to face difficulties of any kinds. There
may be problem pertaining to infrastructure etc. The Section 68 provides
that the parties and the Conciliator may seek administrative assistant from a
suitable institution or the person in order to facilitate the conciliation
proceedings. But the assistance can be obtained with the consent of the
parties^"*^.
[k] Rule of suggestions:
The role of the Conciliator as provided under
Section 67 of the Act is to assist the parties in an independent and impartial
manner to reach an amicable settlement of the dispute by making proposals
to them. The proposal contains statement of suggestions to conciliate upon
the dispute. The Section 72 of the Act also provides for the parties to make
suggestion to the Conciliator in order to make proper and early settlement of
the dispute. The section envisages that any party may, either on his own
'"^1^,8.69(1).
'^^ \d, S. 69 (2).
'^^ Id, S. 68.
132
initiative or at the invitation of tfie Conciliator submits their suggestions for

the settlement of the dispute in right perspectives ^^.
[ix] Role of Conciliator in other proceedings :
Besides, the independence and impartiality of
the Conciliator, the Section 80 of the Act further puts two restrictions on the
role of the Conciliator while conducting conciliation proceeding. First under
Section 80 (a), the Act prohibits the Conciliator to act as an arbitrator. It
further requires that the Conciliator should not act as representative or
Counsel of a party in any arbitral or judicial proceedings in respect of a
dispute, which is subject-mater of the conciliation proceedings also. Second
Section 80 (b) of the Act places restriction on the parties that none of the
party may produce the Conciliator as a witness in any arbitral or judicial
proceedings that pertains to the conciliation proceedings^^V
[x] Admissibility of evidence in other proceedings :
The Section 81 of the Act places restriction on
the admissibility of evidence and creating bars on some admissions to be
made by the parties in and during the course of conciliation proceedings.
The parties can not rely on and introduce as evidence in arbitral or judicial
proceedings [i] any views expressed or suggestions made by the other party
in respect of a possible settlement of the dispute; [ii] an admission made by
the other party in the course of the conciliation proceedings; [iii] any
proposals made by the Conciliator, which may help or prejudice the
conciliation proceedings; [iv] the fact that the other party had indicated his
willingness to accept a proposal for settlement made by the conciliator^^^.
[xi] Settlement agreement in conciliation proceedings:
The settlement of the dispute between the
parties is the last urge to close the topic of the conflict forever. The contour
of settlement agreement is to be finally drawn up by the Conciliator. The Act
provides that as and when it appear to the Conciliator that there exist
^^° Icf, S. 72.

'^' Id, S.80.
'^îd, S. 81.
133
elements of a settlement and that are likely to be accepted by the parties,

he shall formulate the terms of a possible settlement and submit the same
to the parties for their observations^^^. Thereafter, the Conciliator on having
received the observations of the parties may reformulate the terms of a
possible settlement. The Section 73 of the Act requires that the settlement
agreement should be done or prepared in the light of observations made by
the concerned parties. In case the parties have reached at an agreement
and settled the dispute, they will draw up a written settlement agreement
which they will sign. The parties may request the Conciliator to assist them if
they feel inconvenience in preparing the settlement agreement and he may
draw up or assist the parties in drawing up the settlement agreement
accordingly^^. Once the parties have signed the settlement agreement
either prepared by them or by the Conciliator with their consultations, it
becomes final and binding on the parties. The settlement agreement shall
also be binding upon the persons and other parties claiming under them^^^.
Thereafter, the Conciliator shall authenticate the settlement agreement and
furnish its copy to all the parties^^^. The settlement agreement so made or
reduced is a document of much importance. The Supreme Court in the case
of Mysore Cements Ltd.. Vs Svedala Barmac Ltd^^^ has observed that 'It is
only that agreement which has been arrived at in conformity with the
manner stipulated and form envisaged and got duly authenticated in
accordance with Section 73 of the Act, alone can assign the status of a
settlement within the meaning of and for effective purposes of the Act, and
not othenvise"''^^
[xii] The status and effect of settlement agreement:
The settlement agreement so formed shall have
the same status and effect as if it is an arbitral award. The settlement
agreement is enforceable in the same manner as if it were the decree of the
'^Îd, S. 73(1).
'^ \d, S. 73 (2).
'^^ \d, S. 73 (3).
'^ \d, S. 73 (4).
157
(2003) 10 sec, p-375.
'^^ Ibid
134
Court. The Act provides that the settlement agreement shall have the same
status and effect as an arbitral award on agreed terms under Section 30 of
the Act. It shall be treated as a decree of the Court and enforceable In the
same manner .
[xiii] Termination of conciliation proceedings - modes:
The conciliation proceedings initiated to settle
the dispute between the parties shall also be terminated on having finalized
the settlement agreement and after obtaining the signature of the parties.
The Act provides four different modes as to how the conciliation
proceedings shall be terminated.
[a] By signature of the parties:
The Act provides that the conciliation
proceedings shall stand terminated by singing the settlement agreement
between the parties. The date of termination of conciliation proceedings will
be the date on which the settlement agreement have been drawn up and
singed by the parties^^°.
[b] Failure of Settlement:
The Act under S.76 provides that the conciliation
proceedings shall stand terminated when the conciliator declares in writing
that further efforts on conciliation proceedings are no longer required or
justified. The date of termination shall be the date of declaration made by
the Conciliator^^\
[c] Written declaration by parties to the Conciliator :
The Act under S. 76 further provides that
conciliation proceedings shall stand terminated by written declaration of
parties. The declaration shall be addressed to the Conciliator to the effect
that the conciliation proceedings have been terminated. The date of
termination of proceedings shall be the date of declaration made by the
parties in writing^^^.
'^^ Supra Note 156, S. 74.

'^° Ibid, S. 76. Sub Clause (a).
'^' \d, S. 76 Sub Clause (b).
'^^ Id, S. 76 Sub Clause (c).
135
[d] Unilateral declaration :

The conciliation proceedings are also terminated
by the act of single party. The party so intends shall declares in writing to
the other party and the Conciliator that the conciliation proceedings may not
continue and stand terminated. The date of termination shall be the date of
declaration by the party^®^.
[xiv] Bar on arbitral or judicial proceedings :
The parties are free to choose judicial or non-
judicial fomm for dispute resolution. The party may resort to conciliation or
arbitral process. Once the mode of conciliation under the Part III of the Act
has opted, the party can not initiate proceedings in any Court for the same
cause simultaneously. The Act bars other proceedings and provides that the
parties cannot not initiate arbitral or judicial proceedings during the
conciliation proceedings in respect of the same dispute, which is the
subject-matter of the conciliation proceedings under this Part. The Section
relax the provisions that the party may initiate arbitral or judicial proceedings
if in his opinion such proceedings in another Court are necessary for
preservation of his rights^^.
[xv] Cost of conciliation proceedings :
The cost and other expenses towards the
litigation is crucial and painful factor, which is beyond the paying capacity of
economically downtrodden. The expense has to be borne by the parties.
The Act provides that the Conciliator upon termination of the conciliation
proceedings shall fix the costs of the conciliation and give written notice to
the parties about the expenses incurred during the entire proceedings. The
expenses shall include fee and expenses of the Conciliator and witnesses
including expert^®^.
'^^ Id, S. 76 Sub Clause (d).

^^^ \d, S. 77.
165
Id, S. 78.
136
[xvi] Deposits in advance :

The. Act provides that the Conciliator may
estimate the cost, which is likely to be incurred during conciliation
proceedings and may direct each party to deposit it in advance in an equal
share of amount and may demand supplementary deposits from each party
in equal amount. The Conciliator is empowered to suspend or terminate the
proceedings in case of non deposits.^^^.
[xvil] Powers of High Court and Central Government to
make rules :
The Act confers powers on the High Court to
make rules to effectuate the proceedings under the Act. The rules made
shall not be inconsistent with any provision of Act^^^. The Central
Government has also been conferred rule making powers by the Act in
order to carry out the provisions of this Act. The rules, as soon as may be,
laid before each House of the Parliament while the House is in session^^^.
IV. CONCILIATION UNDER THE CONSTITUTION OF INDIA:
The Constitution of India under Article 51 also
provides for promotion of international peace and security and to encourage
settlement of international disputes by arbitration. The Article 51 (a)
provides that the State shall endeavour to promote international peace and
security. The Article 51(b) requires maintaining just and honourable
relations between the Nations. The Article 51(c) emphasized that the State
shall foster respect for international law and treaty obligations in the
dealings of organized people with one another. The Article 51(d) requires
the State to encourage settlement of international disputes by arbitration. It
can be concluded that the Mechanism of ADR system is not new rather the
generations are oblivious of the system. The Article 51 of the Constitution is
a good example of ADR System, which provides disputes resolution
'^^ Icy, S. 79.

'^^ Id, S. 82.
'^^ Id, S. 84..
137
through compromise settlement maintaining peace and security at

international level^^^.
V. CONCILIATION UNDER THE CODE OF CIVIL PROCEDURE:
[i] Conciliation at examination stage:
The CPC vide Order X, Rule 1 empowers the
Court to make examination of both the parties. The Court at the first hearing
of the suit shall ascertain from each party or their pleaders whether they
admits or denies such allegations of fact as are made in the plaint including
written statement of the opposite party. The Court shall record such
admissions and denials and other plan of defence put forward by the
parties^^°. But after the amendment made to the CPC by an amendment
Act 46 of 1999, has clothed the Court to resort to the mechanism of ADR for
dispute resolution. The Parliament have inserted three additional rules viz.
1A, 1B, 1C, which has made it mandatory on the part of the Judicial Officer
to direct the parties to opt for any of ADR modes to resolve the dispute by
way of mutual settlements. The Order X, Rule 1A requires that after the
recording the admissions and denials, the Court shall direct the parties to
the suit to opt either mode of settlement outside the Court as specified in
Sub-Section (1) of Section 89 viz. arbitration, conciliation, judicial
settlement including settlement through Lok Adalat or Mediation. In case
the parties accept the option, the Court shall fix the date of appearance
before such forum or authority to conduct settlement as may be opted by
the parties^^\
The Order X, Rule 1B provides that where a suit

has been referred under rule 1A, the parties shall appear before such forum
or authority for conciliation of the suit^^^. In case, where a suit was referred
under rule 1A and the presiding officer of conciliation forum is satisfied that
it would not be proper in the interest of justice to proceed with the matter
^^^ See, The Constitutional Law of India, Art. 51.

™ See, The Code of Civil Procedure, 1908 as amended by [Amendment] Act 46 of
1999 & 22 of 2002, Order X, Rule 1.
''' Ibid, Order X. Rule 1 A.
'^Îcf. Order X, Rule IB.
138
Legislative provisions of Alternative Dispute Resolution Systen) in India
and because there is no chance of compromise or conciliation, the

conciliation forum or authority shall refer the matter again to the Court along
with directions to the parties to appear before the Court on the date fixed by
it for trial of the case and decision^^^.
[ii] Conciliation in Suits against the Government or a
Public Officer:
The CPC under Order XXVII, Rule 5B, requires
the Judicial Officer on mandatory basis to assist in arriving at a reasonable
settlement where the suits has been instituted against the Government or a
Public Officer acting in his official capacity. The Rule 5B (1) envisages that
in every suit or proceeding to which the Government, or a public officer
acting in his official capacity, is a party, the Court shall make, in the first
instance, every endeavour, to assist the parties in arriving at a settlement in
respect of the subject-matter of the suit. The Judicial Officer is to resort for
compromise of the suit only where there is possibility to do so consistently
and keeping in view the nature and circumstances of the case^^'*. The Rule
5B (2) has convenienced the Judicial Officer for granting adjournment of the
case till final settlement between the parties. The rule further provides that if
it appears to the Court and is satisfied that there is a reasonable possibility
of a settlement between the parties, the Court may adjourn the proceedings
for such period as it thinks fit, enabling both parties to make an attempt
towards settlement. The Order XXVII Rule 58 (3) makes it clear that these
powers conferred under sub-rule (2) is in addition to any other powers of
the Court to adjourn proceedings for purpose of settlement^^^.
[iii] Conciliation in Family Suits:
The provision for reconciliation between the
parties to a dispute relating to family matters has also been introduced in
the CPC under Order XXXII A, which creates duty on the Court to make
efforts for their amicable settlement. The Order XXXIIA applies only to the
'^Îcf, Order X, Rule 1C.

'^'Îcf, Order XXVII, Rule 5B,(1).
"^ Id, Order XXVII, Rule 5B, (2) & (3).
139
suits or proceedings pertaining to matrimonial relief including declaration as

to the validity of marriage or their status, declaration as to the legitimacy of
any person, proceedings in relation to the guardianship of the person, the
custody of minor or other member of the family who is under any kind of
disability, suits instituted for grant of maintenance and alimony, adoption,
proceedings relating to wills, intestacy and succession or any other allied
matter concerning the family in respect of which the parties are subject to
their personal law^^^.
The Order XXXIIA Rule 3 provides that Court on
having perused the facts of the case, before which the suit or proceedings
have been instituted and if the judicial officer; keeping in view the nature
and circumstances of the case; is satisfied that it is consistent to settle the
subject matter, he shall in the first instance make an endeavour and assist
the parties in arriving at a reasonable settlement in respect of the subject-
matter of the suit.^^^ The main objective of Order XXXIIA is to bring the
parties close for compromise settlement instead of judicial trial. The
settlement of the dispute can be affected at any stage despite the fact that
the judicial proceedings have been initiated against the parties. The Order
XXXIIA, Rule 3 (2) envisages that in case there is a reasonable possibility
of settlement between the parties, the Court may adjourn the proceedings
for such period as the Court thinks fit enabling them to explore the attempts
to effect right settlement^^^. The powers under sub-rule (2) are in addition
to, and not in derogation of, any other power of the Court to adjourn the
proceedings. The Order XXXII A, Rule 4 empowers the Court to secure the
services of experts preferably a woman who is professional or master to
effectuate compromise and promote the welfare of the family or as the
Court consider appropriate for purpose of amicable settlement^^^. The word
'family' for purpose of Order XXXIIA has been defined under Rule 6 and
nothing beyond could be applied^°°.
'^^ Icf, Order XXXIIA, Rule 1.

^^^ Id, Order XXXIIA, Rule 3 (1).
™ Id, Order XXXIIA Rule 3 (2).
'^^ Id, Order XXXIIA Rule 4.
'^° Id, Order XXXIIA Rule 6.
140
[iv] Settlement by an agreement between the parties :

The CPC Vide Order XXIII, Rule 3 provides for
the parties to make adjustment of their claim in suit either wholly or in part
by lawful agreement or compromise between them and without recourse to
any Court, Authority or Tribunal. But the agreement must be expressed in
writing and signed by each party. In such a situation if the Court is satisfied
and it is proved before the judicial officer that suit has been adjusted wholly
or in part by an agreement, the Court shall order such agreement or
compromise to be recorded and pass a decree to this effect^®\ But
defendant has to satisfy the plaintiff in respect of the whole or part of the
subject matter, which is an essential requirement of the Order XXIII. The
adjustment or satisfaction so alleged by one party should not be denied by
another. The Court shall decide the question without further adjournment
unless the Court thinks fit to grant such adjournment and for doing so the
reasons must be recorded in writing^®^.
[v] Settlement of Dispute under Section 89 :
The Section 89 has been reinserted to the
QPQ183 i^y î^g amendment Act, 46 of 1999. The section provides for
settlement of dispute outside the Court. The enactment of these provisions
under section 89 are based on the recommendations made by the Law
Commission of India and the Mallimath Committee. The Law Commission
has emphasized the desirability of the Courts being empowered to compel
parties to a private litigation to resort to arbitration, conciliation or
mediation^^.
The Section 89 to CPC requires for settlement of
disputes outside the Court where it appears to the Court that there exists an
element of a settlement to the proceedings before him and that may be
'^' \d, Order XXIII Rule 3.

^^^ \d. Order XXIII. Rule 3, Proviso.
^^^ The Section was repealed by Act 10 of 1940 and has been again inserted by
Act 46 of 1999 and came into force w.e.f. 1" July, 2002.
^^ See, The Law Commission of India, 129"^ Report [on Urban Litigation].
141
acceptable to the parties. The Section 89 provides that the Court shall
formulate the terms of settlement and give them to the parties for their
observations. After receiving the observations from the concerned parties,
the Court may reformulate the terms of a possible settlement and refer the
suit or proceedings for arbitration, conciliation, and judicial settlement
including through Lok Adalat or mediation^^^. The Section 89 further
provides that in the event of reference under this section for arbitration or
conciliation, the provisions of the Arbitration and Conciliation Act,1996 shall
be applicable in the same manner as if the proceedings for arbitration or
conciliation were referred under the provisions of Arbitration and
Conciliation Act, 1996. In case the settlement of dispute has been resorted
through Lok Adalat, the Court shall refer in accordance with the provisions
of Section 20(1) of Legal Services Authority Act,1987 and all other
provisions of Legal Services Authority Act, 1987 shall apply to the
proceedings. Where the dispute has been referred for judicial settlement,
the Court shall refer the same to a suitable institution or person, which shall
be deemed to be a Lok Adalat and all provisions of the Legal Services
Authority Act, 1987 shall apply accordingly. In the event of mediation the
Court shall effect a compromise between the parties and shall follow such
procedure as may be prescribed^^^.
VI. CONCILIATION UNDER HINDU MARRIAGES ACT,1955 :
There is also provision for reconciliation of family

disputes and matrimonial causes under Section 23 sub-clause (2) of the
Hindu Marriage Act, 1955. The Act creates bounden duty on the judicial
officer and requires that before the initiation of the proceedings in order to
grant any relief to the party under the Hindu Marriage Act, 1955, it shall be
the duty of the Court in the first instance to make every endeavour to bring
about a reconciliation between the parties. The endeavour shall be made
where there is possibility to reach an amicable settlement. The Court will
offer reconciliation to the parties where it is possible to do so consistently
'^^ Supra Note ^82,8.89(1).

'"' Ibid, S.89. (2).
142
and without prejudice to any party keeping in view the nature and
circumstances of the case^®''.
VII. Conciliation under Special Marriages Act,1954:
The provision for amicable settlements of
dispute pertaining to the matrimonial relief also exists under the Special
Marriage Act, 1954. Section 34 Sub-clause (2) of the Special Marriage Act,
1954 casts a duty upon the Court to make every endeavour to bring about a
reconciliation between the parties. The settlement or reconciliation between
the parties [ spouse ] must be initiated before initiating legal proceeding and
granting any other relief under the Act^°^. These sections under Marriages
Act impose a duty on the Court to effectuate reconciliation between the
parties and the duty is of utmost care, which is required to be discharged
judicially and judiciously^^^. Because where the parties to the dispute are
not interested to bring compromise or settlement through reconciliation, the
Court can not resist on conciliation or compel any of the spouse to live with
another against his/her will and in desertion''^". There are suits or
proceedings to which judicial officer can not resort to reconciliation viz.
where the party has ceased to be a Hindu by conversion to another religion;
incurably of unsound mind; suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent; suffering from a
virulent and incurable form of leprosy; or suffering from venereal disease in
a communicable form; or the spouse has renounced the world by entering
any religious order^^V
VIII. THE LEGAL SERVICES AUTHORITY ACT,1987 :

[i] Meaning and object of Legal Aid :
The Legal-Aid means to provide free legal
assistance to the poor persons in any judicial proceedings before the Court
'^^ See, The Hindu Marriage Act, 1955. S.23 (2).

^^^ See, The Special Marriage Act, 1954, S.34 (2).
'"^ See, Raghu Nath Vs Urmila. A.I.R. 1973 All. 203.
'^° See, Bejoy Vs Aloka, A.I.R. 1969 Gal. [HC], p ^ 7 7 .
'^' See, Supra Note 187, S.23 (2), Proviso.
143
or Tribunals. The Legal Aid may also be provided to the litigants during
conciliation proceedings because its main objective is to provide free legal
assistance to those who are not able to enforce their right through judicial
proceedings for want of pecuniary assistance. Mr Justice P.N. Bhagwati in
his report submitted to the Government of India has observed that 'the legal
aid means providing an arrangement in the society so that the machinery of
administration of justice become easily accessible and is not out of reach of
those who have to resort to it for enforcement of rights given to them by
law. The poor and illiterate should be able to approach the Court and their
ignorance and poverty should not be an impediment in the way of their
obtaining justice from the Court'^^^.
The Legal Aid also means to provide legal
advice in the conduct of a case or legal proceedings before any Judicial
Court, Authority or Tribunal including (i) providing advocates at the State
expenses; (ii) paying Court fee on behalf of the eligible persons; (ill) bearing
expenses regarding preparation of documents; (iv) paying expenses for the
summoning of witnesses; and (v) paying other incidental expenses incurred
in connection with litigation^^^.
[ii] Provisions of Legal Aid under Constitution of India :
The Preamble to the Constitution of India
envisages that we the people of India solemnly resolved to constitute India
Sovereign, Socialist, Secular, Democratic and Republic and to secure
equality of justice to all the citizens, social, economic and politicar^'*. The
Article 14 of the Constitution provides that the State shall not deny to any
person equality before law or the equal protection of the laws within the
territory of India^^^. The Article 21 of the Constitution provides that no
person shall be deprived of his life or personal liberty except according to
procedure established by law^^^. The Article 38 envisages that the State
^^^ See, The Legal Aid Committee Report, (1971), p-5.

^^^ See Justice A.B.Srivastava, The Legal Services Authorities Act with Central &
State Rules & Regulations, (!999), p-xxxvii.
^^"^ Supra Note 169, Preamble
'^^ Ibid, Article 14.
'^^ \d, Article 21.
144
shall strive to promote the welfare of the people by securing and protecting
as effectively as possible it may be^®^. The Article 39-A provides for the
concept of free legal aid and requires that the State shall secure that the
operation of the legal system promotes justice on the basis of equal
opportunity irrespective of status. The legal system shall in particular,
provide free legal aid by suitable legislation or schemes or in any other way,
to ensure that the opportunity for securing justice are not denied to any
citizen by reasons of economic or other disabilities^^^. These Articles are
precursor for enactment of the Legal Services Authority Act,1987 [LSA Act].
The provisions of free legal aid are of such a importance that these requires
periodical review by the Government. The conference of the Law Ministers
and Law Secretaries, 2005 held at Shimla on 10'^ and 1V*" June,2005 is an
evidence to review the legal aid programmes in the country^^^.
[iii] Legal Aid to indigent person under the CPC :
The CPC vide Order XXXIII Rule 9A provides
that where a person who is permitted to sue as an indigent person, is not
represented by a pleader, the Court may, keeping in view the nature and
circumstances of the case where it is expedient and so require, assign a
pleader to an indigent person and the fee shall be paid by the Government.
The Order XXXIII, Rule 9A under sub-rule (2) empowers the High Court,
with the prior approval of the State Government, to make rules to facilitate
the mode of making selection of the pleaders and other facilities to be
provided to such pleaders by the Court. The High Court may also make any
other rules on other matter, which is required to be or may be provided by
the rules for giving effect to the provisions of sub-rule (1)^°°.
[iv] Legal Aid under the Code of Criminal Proicedure,1973 :
The Legal Aid provisions are not available to the
economically poor and indigent in the cases of civil nature only but the
'^^ Id, Article 38.

'^^ Id, Article 39-A.
^^ See,The Conference Agenda Papers of the Law Ministers and Law Secretaries,
held at Shimla dated the 10'^ and 11"^ June, 2005.
200
Supra Note 186, Order XXXIII, Rule 9A.
145
Legal Aid is also available to the accused in criminal offences. The person
accused of criminal offence is also entitled to be represented by a lawyer at
the state expenses. The Criminal Procedure Code, 1973 under Section 304
provides legal aid to the accused under trial of criminal case, where the
accused in a trial before the Court of Session is not represented by a
pleader and the Court is satisfied that the accused has not sufficient means
to engage a pleader, the Court shall assign a pleader for his defence at the
State Expenses. The Section 304 empowers the High Courts of the States,
with the prior approval of the concerned State Government, to make rules
and prescribe the procedures for selecting the pleaders, the facilities to
such pleaders and fees payable by the Government for carrying out the
purposes of the section^°\
[v] Constitution of National Legal Services Authority :
The LSA Act under Section 3 provides that the
Central Government shall constitute a body to be called the National Legal
Services Authority to exercise the powers and perform the functions
conferred on or assigned to the Central Authority. The Central Authority
according to Section 2(1) (aa) means the National Legal Services Authority
constituted under Section 3 of the LSA Act. The Central Authority shall
consist of the Chief Justice of India who shall be the Patron-in-Chief. The
President of India in consultation with the Chief Justice of India shall
nominate the executive Chairman to the Central Authority amongst from
serving or retired Judges of the Supreme Court. The Central Authority shall
consists of such number of other members, who are to be nominated by the
Government in consultation with the Chief Justice of India. The members
must possess the experience and qualification, which shall be prescribed by
the Central Government for their appointments. The Section 3(3) requires
that there shall be a Member-Secretary of the Central Authority who shall
be appointed by the Central Government in consultation with the Chief
Justice of India. The Member Secretary shall be under the Executive
201
See, The Code of Criminal Procedure, 1973, S. 304.
146
Chairman of the Central Authority to discharge and perfornn such duties as

assigned to him by the Central Government. He shall assist the Executive
Chairman in discharging his official duties. The Central Authority under
Section 3(5) may appoint such number of officers and other employees as
may be prescribed by the Central Government for the efficient discharge of
its functions under this Act. The Section 3(4) provides that the terms and
conditions of office of Members and the Member Secretary shall be for such
period as may be prescribed by the Central Government in consultation
with the Chief Justice of India. The Section 3(6) provides that the salary and
other allowances of the officers^ and other employees of the Central
Authority shall be prescribed by the Central Government commensurate to
their duties. The Section 3(7) envisages that the administrative expenses
of the Central Authority and the salaries, allowances and pensions payable
to the Member-Secretary, Officer and other employees shall be defrayed
out of the Consolidated Fund of lndia^°^.
[vi] Supreme Court Legal Services Committee :
The Section 3A provides that there shall be a
Supreme Court Legal Services Committee, which shall be constituted by
the Central Authority for the purpose of exercising such powers and
performing such functions as may be determined by regulations made by
the Central Authority. The Section 3A (2) requires that the Committee shall
be consisting of Chairman who shall be appointed amongst the sitting
Judges of the Supreme Court and such number of other members
possessing such experience and qualifications as required and prescribed
by the Central Government. These appointments shall be made on the
nomination made by the Chief Justice of India. The Section 3A (3)
empowers the Chief Justice of India to a.jpoint a persori who shall be the of
Secretary to the Committee and he must possess that experience and
qualifications as may be prescribed by the Central Government. The terms
of office and other conditions relating to the members and Secretary shall
be determined by regulations made by the Central Authority. The Section
202
See, The Legal Services Authorities Act, 1987, S.3.
147
3A (5) of the LSA Act further empowers the Committee to appoint such
number of officers and other employees as may be prescribed by the
Central Government in order to discharge its functions efficiently. All the
officers and employees of the Committee shall be entitled to such salary
and allowances and shall be subject to such other conditions of service as
may be prescribed by the Central government. But these appointments
shall not be made or salary and allowances of the officer shall not be fixed
by the Central Government without the consultation of Chief Justice of
India^"^
[vii] Functions of the Central Authority :
The LSA Act under Section 4 prescribes the
functions and other duties to be discharged by Central Authority. The
Central Authority shall (i) formulate the policies and principles in order to
make legal services available under the provisions of this Act; (ii) frame all
those schemes which are most effective and economical for the purpose of
making legal services available; (iii) utilize the funds at its disposal and
make appropriate allocations of funds to the State and District Authorities;
(iv) take necessary steps by way of social justice litigation with regard to
consumer protection, environmental protection or any other matter of
special concern to the weaker sections of the society and for this purpose,
give training to social workers in legal skills; (v) organize legal aid camps
especially in rural areas, slums or labour colonies with a view to educating
the weaker sections of the society about their rights and may encourage
them for settlement of disputes through Lok Adalats; (vi) encourage the
settlement of disputes by way of negotiations, arbitration and conciliation
being best and fine modes of ADR system; (vii) underrtake and promote
research in the field of legal services with special reference to the need for
such services among the poor; (viii) take necessary steps for purpose of
ensuring commitment towards the fundamental duties of citizens enshrined
under Part IVA of the Constitution; (ix) monitor and evaluate implementation
of the legal aid programmes at periodic intervals and provide for
203
Ibid, S.3A.
148
independent evaluation of programmes and other scheme; (x) provide

grants-in-aid for specific schemes to various voluntary social services
institutions and the State and District Authorities out of the amounts placed
at its disposal for the implementation of legal services schemes; (xi)
develop programmes for clinical legal education, promote guidance and
supervise the establishment and working of legal services clinic in
universities, law colleges and other institutions in consultation with the Bar
Council of India; (xii) work for spreading legal literacy and legal awareness
amongst the people, (xiii) make special efforts to enlist the support of
voluntary social welfare institutions engaged at grass-root level, particularly
among the scheduled castes and the scheduled tribes, women and rural &
urban labour; (xiv) coordinate and monitor the functioning of State
Authorities, District Authorities, Supreme Court Legal Services Committee,
High Court Legal Services Committees, Taluk Legal Services Committees
and voluntary social service institution and other legal services
organization. It may give general directions for the proper implementation of
the legal services programmes^°^. The Central Authority shall act in
coordination with other governmental and non-governmental agencies,
universities and other agencies engaged in the work of promoting the cause
of legal services to the poor and weaker Section of the society^°^.
[viii] State Legal Services Authority:
The LSA Act makes the provisions of the State
Legal Services Authority to effectuate the legal aid services in the State.
The Section 6 of LSA Act requires that every State Government shall
constitute a body to be called the Legal Services Authority for the State to
exercise the powers and perform the functions conferred on, or assigned to
a State Authority under this Act. The Section 6(2) provides that a State
Authority shall be consisting of the (i) Chief Justice of the High Court who
shall be the Patron-in-Chief, (ii) Executive Chairman who shall be serving or
retired Judge of the High Court and to be nominated by the Government in
^"^ Id, Section 4, Clauses [a - n].

^°^ Id, Section 5 .
149
consultation with the Chief Justice of the High Court, and (iii) such number
of other members to be nominated by that Government in consultation with
the Chief Justice of the High Court. It prescribes that they shall possess
such experience and qualifications as may be prescribed by the State
Government. The Section 6 (3) provides that the State Government shall
make the appointment of Member-Secretary of the State Authority. The
appointment to this post should not be made without consulting the Chief
Justice of the High Court. The appointment of the Member Secretary shall
be made of persons belonging to the State Higher Judicial Service who
shall not be lower in rank than that of a District Judge. His appointment
shall be made to exercise such powers and perform such duties under the
Executive Chairman of the State Authority as may be prescribed by that
Government or as may be assigned to him by the Executive Chairman of
that authority. The proviso appended to section 6 (3) envisages that a
person functioning as Secretary of a State Legal Aid and Advice Board
immediately before the date of constitution of the State Authority may be
appointed as Member-Secretary of that Authority despite the fact that he is
not qualified to be appointed as such under this sub-section. But the
appointment shall not exceed the period of five years^°®. The Section 6 (4)
of the LSA Act provides that the terms of office and other conditions of
Members and the Member Secretary of the State Authority shall be
prescribed by the State Government in consultation with the Chief Justice of
the High Court. The Section 6 (5) empowers the State Authority to make
appointment of such number of officers and other employees, which may be
fixed and prescribed by the State Government. But it should also be done in
consultation with the Chief Justice of the High Court. The salary and
allowance of officers and other employees of the State Authority shall be
prescribed by the State Government. The Administrative expenses of the
State Authority, including the salaries, allowances and pensions payable to
the Member-Secretary, officers and other employees of the State Authority
shall be defrayed out of the Consolidated Fund of the State. The Section 6
206
Id, Section 6.
150
(8) provides that all order and decisions of the State Authority shall be
authenticated by the Member Secretary or any other officer of the State
Authority authorized by the Executive Chairman. Whereas Section 6 (9)
provides safeguards that no act or proceedings of a State Authority shall be
invalid on the ground of the existence of any vacancy or any defect in
constitution of the State Authority^°^.
[ix] Functions of the State Authority:
The Central Authority is a superior body and can
issue the direction to the State Authority to effectuate the legal aid services
in the States. It shall be the duty of the State Authority to give effect to the
policy and directions issued by the Central Authority from time to time. The
State Authority shall perform all or any of the functions namely; (i) provide
legal service to person who satisfies the criteria laid down under the LSA
Act; (ii) conduct Lok Adalat for District and High Court cases; (iii) undertake
preventive and strategic legal aid programmes; (iv) perform such other
functions as it may, in consultation with the Central Authority, fix by
regulations^"^. The State Authority in the discharge of its functions shall act
in coordination with other governmental and non-governmental voluntary
social service institutions including universities and other bodies engaged in
the work of promoting the cause of legal services to the poor^°^.
[x] Constitution of High Court Legal Services Committee :
The Section 8A of LSA Act empowers the State
Authority to constitute High Court Legal Services Committee for every High
Court for the purpose of exercising such powers and performing such
functions as determined by the State Authority. The High Court Committee
shall be consisting of (i) Chairman, who shall be a sitting Judge of the High
Court and (ii) such number of other members determined by State
Authority. The State Authority shall by regulations, provide for experience
and qualification to be possessed by them. The Chief Justice of High Court
^°^ Id, Section 6.

^^\d, Section 7.
^°^ Id, Section 8.
151
shall nominate the Chairman and other members to the Committee. The
Chief Justice of the High Court is empowered under Section 8A(3) to
appoint a Secretary to the Committee. The State Government shall
prescribe the qualification and experience to the post of Secretary. The
State Authority under Section 8A(4) shall in exercise of the powers under
the LSA Act determine the terms of office and other conditions relating to
the Members and Secretary of the Committee. The High Court Committee
under Section 8A (5) may appoint such number of officer and other
employees for efficient discharge of its functions as prescribed by the State
Government. But their appointment should not be done without consultation
with the Chief Justice of the High Court. The officer and other employees
appointed and working in the Committee shall also be entitled to the salary
and other allowances fixed by the State Government in consultation with
the Chief Justice of the High Court^^°.
[xi] District Legal Services Authority:
The State Government under Section 9 (1) is
empowered to constitute the District Legal Services Authority for every
District in the State. The State Government while constituting the District
Legal Services Authority shall consult the Chief Justice of the High Court.
The District Authority shall exercise the powers and performs all those
functions conferred on, or assigned under this Act. The Section 9 (2)
envisages that the District Authority shall be consisting of (i) Chairman, who
shall be the District Judge and (ii) and such number of other members
possessing such qualifications and experience, which shall be prescribed
by the State Government. These members shall be nominated by the State
Government in consultation with the Chief Justice of the High Court. The
Section 9(3) empowers the State Authority to appoint, in consultation with
the Chairman of the District Authority, a person belonging to the State
Judicial Services. He should not be lower in rank than that of a Subordinate
Judge or Civil Judge posted at the seat of the District Judiciary and working
as Secretary of the District Authority. The Secretary shall exercise such
210
Icf, Section 8A.
152
powers and performs the duties assigned to him by the Chairman of that
Committee. The terms of office and other conditions of members and the
Secretary of the District Authority shall be determined by the State Authority
in consultation with the Chief Justice of High Court. The District Authority
under Section 9 (5) may appoint such number of other officers and other
employees as may be required for efficient discharge of functions. All the
officers and other employees of the District Authority shall be entitled to the
salary and other allowances as fixed by the State Government. The salary
and allowances shall be fixed in consultation with the Chief Justice of the
High Court. The Section 9 (7) envisages that the administrative expenses
of the every District Authority including salaries and other allowances and
pensions etc. payable to the Secretary and other officers and employees
shall be defrayed out the Consolidated Fund of the State. The Section 9(8)
provides that all order and the decisions of the District Authority shall be
authenticated by the Secretary or by any other officer of the District
Authority duly authorized by the Chairman. The section further provides that
no act or proceedings of the District Authority shall be invalid on the ground
of the existence of any vacancy or any defect in the Constitution of the
District Authority. It means that these are curable irregularities under the
LSAAct^^^
[xii] Functions of District Authority:
The Section 10 of LSA Act provides that every
District Authority shall perform such of functions of the State Authority in
the District as may be delegated by it. Besides, without prejudice to these
functions referred to in S.10 (1), the District Authority shall also performs
the functions namely ; (i) co-ordinate the activities of the Taluk Legal
Services Committee and other Legal Services in the District; (ii) organize
Lok Adalats within the District; and (iii) perform such other functions as the
State Authority may fix and delegate to it by regulations^^^. But the LSA Act
requires that the District Authority in the discharge of its functions under this
^'' Id, Section 9.

^^^ iGf, Section 10.
153
Act shall act in coordination with other governmental and non-governmental

institutions, universities and other bodies engaged in the work of promoting
the cause of legal services to the poor. The District Authority shall also be
guided by such directions as the Central Authority or the State Authority
give to it in writing from time to time for this purpose^^^.
[xiii] Taiuk Legal Services Committee:
The State Authority under Section 11A (1) is
empowered to constitute a Taluk Legal Services Committee. The Taluk
Legal Services Committee shall be constituted and work each for Taluk or
Mandal or for group of Taluks or Mandals. The Committee shall be
consisting of (i) the senior-most Judicial Officer operating within the
jurisdiction of the Committee who shall be the Ex-Officio Chairman; and (ii)
such number of other members, possessing such experience and
qualifications, as prescribed by the State Government for their appointment.
But these members shall be nominated by the Government in consultation
with the Chief Justice of the High Court. The Committee under Section 11A
(3) may appoint such number of officers and other employees as are
prescribed by the State Government for the efficient discharge of its
functions. The officers and other employees of the Committee shall be
entitled to such salary and allowances and shall be subject to such other
conditions of service as may be prescribed by the State Government. The
salary and other allowances so fixed by the State Government shall be
fixed in Consultation with the Chief Justice of the High Court. The Section
11A (5) provides that the District Authority shall defray the administrative
expenses of the Committee out of the District Legal Aid Fund^^"*.
[xiv] Functions of Taluk Legal Services Committee :
The Section 11B envisages that Taluk Legal
Services Committee shall (i) coordinate the activities of legal services in
the taluk; (ii) organize Lok Adalats within the taluk; and (iii) perform such
^'^laf, Section 11.

^'^ Id, Section 11 A.
154
other functions as the District Authority may assign to it from time to time to
effectuate the legal services in those areas^^^.
[xv] Entitlement to legal services and criteria thereof:
The main purpose of legal aid services is to
enable every person who intends to avenge his right through the law
Courts. It is trite proposition that none should be deprived of his legal right
for want of legal and economic assistance. But the right to legal aid
services is available only to those who are economically downtrodden. The
Section 13 of LSA Act provides that the person who satisfy the conditions
and criteria specified under Section 12 of LSA Act shall be entitled to
receive legal services. The authority providing legal aid services should be
satisfied by the seeker through an affidavit that the person has a prima facie
case either to prosecute or defend.^^®. The Section 12 of LSA Act lays
down that the person seeking legal aid shall be; (i) a member of Scheduled
Caste or Scheduled Tribe; (ii) a victim of trafficking in human beings or
beggar as referred to in Article 23 of the Constitution (iii) a Woman or a
Child; (iv) a person with disability as defined in Section 2 clause (i) of the
Persons with Disabilities [Equal Opportunities, Protection of Rights and Full
Participation] Act, 1995 (1 of 1996); (v) a person who is a victim of a mass
disaster, ethnic violence, caste atrocity, flood, drought, earthquake or
industrial disaster, or an industrial workman; (vi) a person who is in custody,
including custody in a protective home within the meaning of clause (g) of
Section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956) or in
juvenile home within the meaning of clause G) of Section 2 of the Juvenile
Justice Act, 1986 or in a psychiatric hospital or psychiatric nursing home
within the meaning of Clause (g) of Section 2 of the Mental Health Act, 1987
(14 of 1987); (vii) a person who is in receipt of annual income less than
rupees nine thousand or such other higher amount as may be prescribed by
the State Government, if the case is before a Court other than the Supreme
Court; and (viii) a person who is in receipt of annual income less than
^^^ Id, Section 11B.

^'^ Id, Section 13.
155
mpees twelve thousand or such other higher amount as may be prescribed

by the Central Government, if the case is before the Supreme Court.^^^
[xvi] National Legal Aid Fund :
The Section 15 of LSA Act imposes a duty upon
the Central Authority to establish a fund to be called the National Legal Aid
Fund. The section requires that (i) all sums of money given as grants by the
Central Government under Section 14; (ii) any grants or donations that may
be made to the Central Authority by any other person for the purposes of
this Act; and (iii) any amount received by the Central Authority under the
order of any Court or from any other source shall be credited to the National
Legal Aid Fund. The Section 15 (2) requires that the National Legal Aid
Fund shall be applied for meeting the cost of legal services provided under
this Act including grants made to State Authorities, and the cost of legal
services provided by the Supreme Court Legal Services Committee
including any other expenses which are required to be incurred by the
Central Authorit/^^
[xvii] State Legal Aid fund :
The Section 16 of LSA Act imposes a duty upon
a State Authority to establish the State Legal Aid Fund. The Section
requires that (i) all sums of money paid to it or any grants made by the
Central Authority for the purposes of this Act; (ii) any grants or donations
that may be made to the State Authority by the State Government or by any
person. ; and (iii) any other amount received by the State Authority under
the orders of any Court or from any other source shall be credited to a State
Legal Aid Fund. The fund shall be applied for meeting the cost of functions
referred to in Section 7 and the cost of legal services provided by the High
Court Legal Services Committees or any other expenses to be incurred by
the State Authorit/^^.
2'^ Id, Section 12.

2'® Id, Section 15.
2'^ Id, Section 16.
156
[xviii] District Legal Aid fund :

The Section 17 of LSA Act imposes duty upon
every District Authority to establish the District Legal Aid fund. The section
requires that (i) all sums of money paid or any grants made by the State
Authority to the District Authority for the purposes of this Act, (ii) any grants
or donations that may be made to the District Authority by any person, with
the prior approval of the State Authority, for the purposes of this Act, and
(iii) any other amount received by the District Authority under the orders of
any Court or from any other source shall be credited there to. The sub-
clause (2) requires that the District Legal Aid Fund shall be applied for
meeting the cost of functions referred to in Section 10 and 11B. The District
Legal Aid Fund may also be used to mitigate the expenses, which are
required to be met by the District Authority^^°.
[xix] Accounts and Audit :
The Section 18 of the LSA Act requires that all
the Central Authority, State Authority and the District Authority shall
maintain proper accounts and other relevant records and prepare an annual
balance statement of accounts pertains to the legal aid funds under their
control. The accounts of Authorities shall be audited by the Comptroller and
Auditor General of India. The Comptroller and Auditor-General of India and
any other person appointed by him in connection with the auditing of the
accounts of any authority under this Act shall have the same rights and
privileges and authority in connection with such audit as the Comptroller
and Auditor-General of India possess. The accounts of the Authorities, as
certified by the Comptroller and Auditor-General of India or any other
person appointed by him in this behalf shall be fonwarded annually by the
Authorities to the Central Government or the State Governments together
with the audit report. The Central Government shall cause the accounts to
be laid, as soon as may be, before each House of Parliament and the State
220
\d, Section 17.
157
Governments shall cause the accounts and the audit report to be laid
before the State Legislature^^\
IX. LOK ADALATS:
[i] Conduct of Lok Adalats- Organization and Authorities :

The Section 19 of the LSA Act empowers every
State Authority, District Authority, Supreme Court Legal Services
Committee, High Court Legal Services Committee and Taluk Legal
Services Committee to organize Lok Adalats at such intervals, places and
area for exercising jurisdiction as it thinks fit. The Authority may fix the
number of persons for its organization. The Section 19(2) envisages that
every Lok Adalat organized for an area shall consist of such number of
serving or retired judicial officers and other persons of that area as may be
specified by the authority conducting or organizing the Lok Adalat^^. The
Authority working for Lok Adalat shall prescribe the qualification and
experience of its other members. The Section 19(3) provides that the
experience and qualifications for other persons referred to in clause (b) of
Sub-Section (2) for Lok Adalats organized by the Supreme Court Legal
Services Committee shall be prescribed by the Central Government in
consultation with the Chief Justice of India. The experience and
qualifications for other persons referred to in clause (b) of Sub-Section (2)
for Lok Adalats other than referred to in sub-section (3) shall be prescribed
by the State Government in consultation with the Chief Justice of the High
Court^^l
[ii] Jurisdiction of Lol( Adalats :

The Section 19 (5) provides that a Lok Adalat
shall have jurisdiction to determine and to arrive at a compromise
settlement between the parties to a dispute in respect of any case pending
before any Court for which the Lok Adalat is organized. The Lok Adalat has
jurisdiction to arrive at compromise settlement on any matter, which is
^' Id, Section 18.

^2 Id, Section 19(1) and (2).
22'ld, Section19. (3)&(4).
158
falling within the jurisdiction of any Court and has not brought before it. But
the LSA Act under Proviso clause appended to Section 19(5) restricts its
jurisdiction to exercise powers in respect of any case or matter relating to
an offence not compoundable under any law^^'*.
[ii] Cognizance of cases by Lok Adalat:
The Lok Adalat shall take cognizance of those
matters referred by the Courts. The Court under Section 20(1) can refer a
pending matter either on the agreement of the parties or on an application
made by one of the parties. The parties has to show their willingness for
such settlement to be arrived at by or through Lok Adalat. The Court under
Section 20 (2) of LSA Act has power to make an independent reference if
the Court is satisfied that the case is an appropriate one and there exist an
element of settlement. But in every such matters or case the parties shall
be given reasonable opportunity of hearing on the matter^^^.
[iii] Procedure to be applied by Lok Adalat:
The Section 20(3) provides that where the
reference has been made by the Court to the Lok Adalat upon an
agreement between the parties, it clothed the Lok Adalat with the
responsibility to initiate the proceedings and dispose of the case by way of
compromise settlement. The Lok Adalat shall undertake the proceedings
immediately and make settlement as expeditiously as possible. The Lok
Adalat has to proceed in the case on the basis of principles of justice, equity
and fair play including other legal principles. This has been made with a
view to remove the scope of bias or any suspicion in the minds of the
parties. The Section 20 (5) provides that where no award could be made or
the Lok Adalat fails in its efforts to bring about a compromise or settlement
between the parties, it shall return the matter and relevant record to the
Court from which the reference has been made so that the Court may
dispose it off in accordance with the law. The Lok Adalat shall advise the
parties to seek remedy in a Court and the Court shall proceed to deal with
^^''Id, Section 19. (5).

^^^ Id, Section 20.
159
such case from the stage at which it had been reached before such
reference to the Lok Adalat^^^.
[iv] A w a r d of Lok Adalat :
The Section 21 provides that an award of the
Lok Adalat shall be deemed to be a decree of a Civil Court or an order of
any other Court. The award made by a Lok Adalat shall be final and binding
upon all the parties to the dispute and no appeal shall lie to any Court
against the award. The Section 20(1) provides that where a compromise or
settlement has been arrived at by a Lok Adalat in a case, the Court-fee paid
in such case shall be refunded in the manner provided under the Court
Fees Act, 1870^^^
[v] Powers of Lok Adalat or Permanent Lok Adalat :
The Lok Adalat or Permanent Lok Adalat shall
for purposes of holding any determination under this Act, have the same
powers as are vested in a Civil Court under the Code of Civil Procedure,
1908 in the matters; (i) the summoning and enforcing the attendance of
any witness and examining him on oath; (ii) the discovery and production of
any document; (iii) the reception of evidence on affidavits; (iv) the
requisitioning of any public record or document or copy of such record or
document from any Court or office; and (v) such other matters as may be
prescribed by regulations. The Section 22 (2) envisages that without
prejudice to the generality of the powers contained in 22 (1), every Lok
Adalat or Permanent Lok Adalat shall have the requisite powers to specify
its own procedure for the detemnination of any dispute coming before it. The
Section 22(3) provides that all proceedings before a Lok Adalat or
Permanent Lok Adalat shall be deemed to be judicial proceedings within the
meaning of Sections 193, 219 and 228 of the Indian Penal Code (45 of
1860). Every Lok Adalat or Permanent Lok Adalat shall be deemed to be a
^^ Icy, Section 20.

2^^ Id, Section 21.
160
Civil Court for the purpose of Section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974p^
[vi] Pre-Litigation Conciliation and Settlement:
The Section 22A envisages that "Permanent Lok
Adalat', 'Public Utility Service' and other services may be called the Public
Utility Service. The Central Government or the State Government may, in
public interest by notification, includes and declare any service to be public
utility service^^^.
[vli] Constitution of Permanent Lok Adalat, Chairman and
other Members :
The Section 22B provides that the Central
Authority and the State Authority shall establish the Permanent Lok Adalats.
These Authorities may issue notification to this effect and create Permanent
Lok Adalats at such places where they consider it to be appropriate and just
for exercising jurisdiction in respect of Public Utility Services. There shall
be a Chairman to preside over the Permanent Lok Adalat. He shall be
appointed amongst the persons who is, or has been, a District Judge or
Additional District Judge or has held judicial office, which is higher in rank
than that of a District Judge. The Central Government or the State
Government shall appoint by nomination two other persons to assist the
Chairman having adequate experience in Public Utility Service to the
Permanent Lok Adalat. The nomination can be made on the
recommendation of the Central Authority or the State Authority and these
Authorities may fix other terms and conditions for the appointment of the
Chairman and other person and as are prescribed by the Central
Government. ^^°
[viii] Cognizance of cases by Permanent Lok Adalat :
The Section 22C (1) provides that any party to a
dispute may by an application submit the dispute to the Permanent Lok
^2^ Id, Section 22.

^^ \d, S. 22A.
^^° \d, S. 22B.
161
Adalat for settlement. The party shall submit the dispute before it is brought
to any Court. But the Permanent Lok Adalat shall not have jurisdiction in
respect of any matter relating to an offence not compoundable under any
law or where the value of the property in dispute exceeds rupees ten lakhs.
The Central Govemment is empowered to increase the limit of ten lakhs in
consultation with the Central Authority. The LSA Act creates a bar on the
party to invoke jurisdiction of any Court simultaneously in the same dispute
if an application is made under sub-section (1) to the Permanent Lok
Adalat2^\
[ix] Procedure in Permanent Lok Adalat :
The Section 22C (3) envisages that where an
application is made to a Permanent Lok Adalat, it shall direct each party to
file a written statement stating therein the facts and nature of dispute, points
or issues including grounds upon which the party support their case. The
party may file additional statement before it at any stage of the conciliation
proceedings. The documents furnished shall also be communicated to the
other party enabling them to present their reply and plan of defence^^^. The
Section 22C (4) provides that after submission of the statements or
additional statements the Permanent Lok Adalat shall keeping in view the
nature and circumstances of the dispute, conduct the conciliation
proceedings. The Permanent Lok Adalat shall assist the parties in their
attempt to reach an amicable settlement of the dispute in an independent
and impartial manner. The parties shall also co-operate the Permanent Lok
Adalat. If the Permanent Lok Adalat find that there exists element of
settlement, it may formulate the terms for settlement of the dispute and give
it to the parties concerned for their observations. If the parties agreed, the
Permanent Lok Adalat shall sign the settlement agreement and pass an
award, furnish a copy of the same to the parties. Where the parties fail to
reach at an agreement under Sub-Section (7), the Permanent Lok Adalat
shall decide the dispute provided the dispute does not relate to any
2'^ Icf, S. 22C.

^^^ \d, S. 22C.
162
offence^^^. The Section 22D requires that during conciliation proceedings

or on deciding a dispute on merit, the Permanent Lok Adalat shall be
guided by the principles of natural justice, objectivity, fair play and equity.
The Permanent Lok Adalat shall not be bound by the Code of Civil
Procedure, 1908 (5 of 1908) and the Indian Evidence Act, 1872 (1 of
[x] Finality of Award :

The Section 22E provides that every award
made by the Permanent Lok Adalat shall be final and binding on all the
parties thereto including on persons claiming under them. The award of the
Permanent Lok Adalat shall be by a majority of the persons constituting the
Permanent Lok Adalat and be deemed to be a decree of a Civil Court. No
Award shall be called in question in any original suit, application or
execution proceeding. The Permanent Lok Adalat may transmit any award
made by it to a Civil Court having local jurisdiction and the Civil Court shall
execute the order as if it were a decree made by that Court^^^.
[xi] Miscellaneous Provisions :
The Section 23 of LSA Act provides that the
Members and Member-Secretary, Secretary of Central Authority, State
Authorities, District Authorities, Supreme Court Legal Services Committee,
High Court Legal Services Committees, Taluk Legal Services Committees
and Officers and other employees of these Authorities, Committees
including the members of the Lok Adalats or other persons constituting
Permanent Lok Adalats shall be deemed to be public servants within the
meaning of Section 21 of the Indian Penal Code (45 of 1860f^®.
[xii] Rule making powers of Central and State Government:
The Section 27 of the LSA Act provides that the
Central Government in consultation with the Chief Justice of India may, by
2^^ \d, S. 22C Clauses (4). (5), (6). (7) and (8).
^^ Id, S. 22D.
235 \d, S. 22E.
^^\d, S. 23.
163
notification, make the rules to carry out the provisions of this Act.^^^. The
Section 28 ennpowers the State Governments to make rules in consultation
with the Chief Justice of the High Court to carry out the provisions of this
Act^^°. These powers relates to the experience and qualification of
Chairman, Members, Member Secretary and other Officers and Employees
of Central and State Authority including other Service conditions.
[xiii] Powers of Central and State Authority to make
regulations :
The Section 29 provides that the Central
Authority may, by notification, make regulations, which are not inconsistent
with the provisions of this Act and are necessary or expedient for the
purposes of giving effect to the provisions of this Act. The Central Authority
is empowered to make regulations for exercise of the powers and functions
of the Supreme Court Legal Services Committee. The Central Authority
may fix the terms of office and other conditions relating thereto, of the
Members and Secretary of the Supreme Court Legal Services
Committee^^^. The State Authority under Section 29A has been empowered
to make regulation, which are necessary or expedient for the purposes of
giving effect to the provisions of this Act. But nothing should be inconsistent
with the provisions of this Act. These regulations pertains to some other
functions, which are to be performed by the State Authority, High Court
Legal Services Committee and its powers with regard to fix the number of
members of the High Court Legal Services Committee including their
experience and qualification. The State Authority may issue the regulations
of the terms of office and other conditions relating to the Member and
Member Secretary of High Court Legal Services Committee and District
Authority including Taluk Legal services Committee^'*".
^^^ \d, S.27.

^^ icf, S.28.
^^^ Icf, S.29.
''° Icf, S.29A.
164
X. CONCILIATION UNDER INDUSTRIAL DISPUTE

ACT,1947 :
[a] Meaning:
The Industrial Dispute Act makes provisions for
conciliation and an amicable settlement of Industrial disputes between the
employers and employees. The word Conciliation has not been defined
under the Industrial Dispute Act. But in Industrial parlance, it means the
amicable settlement by intervention of third party, which may be a private
body or a governmental representative for the purpose of bringing about
negotiations. The Conciliator is required to investigate the dispute and
evolve a recipe for settlement. He does not discharge judicial function in
bringing about settlement because the parties to an industrial dispute are
not the typical litigants. The conciliation ensures industrial peace. The
parties after dispute resolution go back and engage themselves under a
common roof in the industry's production^'*^ The conciliation is an 'assisted
bargaining process', which involves the intervention Conciliator for
persuasion, rationalization, suggestions and coercion very efficiently^'*^.
[b] Procedure:
Section 12(1) of Industrial Dispute Act, 1947
provides that a Conciliation Officer to hold conciliation proceedings in the
prescribed manner where an industrial dispute exists or is apprehended.
The Conciliation Officer is not competent to adjudicate upon the disputes
between the management and its workmen. He is expected to assist them
to arrive at a fair and just settlement. He is to play the role of an advisor and
friend of both the parties and to see that neither party takes undue
advantage of the situation. The Section 12(2) envisages that the
Conciliation Officer shall for purpose of bringing about a settlement of the
dispute investigate the dispute and all matters affecting the merits and the
^"^ See, Vish S.Suba Rao, Conciliation under the Industrial Disputes Act, 1947 :
Should It Necessanly Remain a Fifth Wheel to the Coach, J.I.L.I. Vol. 29 (1987),
p-236-237.
^'^^ See, V.P.Gupta, Law and Practice of Industrial Disputes with Central, Punjab
and Haryana Rules, (1984), p-19.
165
right settlement without delay. He may do all such things as he thinks fit for
the purpose of inducing the parties to come to a fair and amicable
settlement of the dispute. The S. 12 (3) requires that if the settlement of the
dispute or of any of the matters in dispute is arrived at in the course of the
conciliation proceedings, the Conciliation Officer shall send a report to the
appropriate government or an officer authorized in this behalf together with
memorandum of the settlement signed by the parties. The S. 12(4) provides
that if no such settlement is arrived at, the Conciliation Officer on completion
of the investigation shall send to the appropriate Government a full report
setting forth the steps taken by him for ascertaining the facts and
circumstances relating to the dispute and for bringing about a settlement
thereof, together with a full statement of such facts and circumstances and
the reasons that a settlement could not be arrived at between the parties.
The S.I2(5) requires that if on a consideration of the report referred to in
Sub-Section (4) the appropriate Government is satisfied that there is a case
for reference to a Board, Labour Court, Tribunal or National Tribunal it may
make such reference. Where the Government does not make such a
reference, it shall record and communicate to the parties concerned its
reasons therefor. Section 12(6) envisages that a report under this section
shall be submitted within fourteen days of the commencement of the
conciliation proceedings. The Government can fix this period, which may not
be beyond fourteen days^^^. The government under Section 12(5) has
discretion either to refer or refuse reference on the basis of report submitted
by the Conciliation Officer under Sub-Section (4). But in case the
government declines to make a reference the reasons have to be recorded
for such an action^'^.
[c] Duties of Board :
The Industrial Dispute Act, 1947 entrusts some
duties on the Board that where a dispute has been referred to a Board, it
shall be the duty of the Board to endeavour to bring about a settlement
^^^See, Industrial Dispute Act, 1947, S. 12.

2'^ See, C. Munichowdappa Vs. State of Karnataka, (1985) I LU Karn. [HC], p-
356.
166
between the parties. The Board for this purpose shall without delay,
investigate the dispute and all matters affecting the merits and the right
settlement thereof and may do all such things as it thinks fit for the purpose
of inducing the parties to come to a fair and amicable settlement of the
dispute^^^
Sum Up
The Arbitration and Conciliation Act, 1996,
provides plenty of scope to the litigants to avoid litigation in the law Courts.
There is remarkable achievement in the Act of 1996 with the incorporation
of separate chapter of conciliation for disputes resolution under Arbitration
and Conciliation Act, 1996. The new chapter is a viable and effective
alternative to litigation in India. The insertion of Section 89 in the Code of
Civil Procedure is another development in the field of ADR. The Legal
Services Authority Act, 1987 provides for settlement of dispute through Lok
Adalats. The dispute resolution through arbitration, conciliation, mediation
including with the help of Lok Adalats has made a qualitative change In its
style, which was an imperative need for sustaining the credibility of the legal
system and the role of law. The law and statutory recognition to ADR
System would hopefully, open up new vistas in the area of dispute
resolution in the country. It may usher an era of efficient processes of justice
delivery system and shall promote the mechanism of ADR system earnestly
in the country and would assuage the sentiment so f economically poor and
downtrodden.
icickicic
245
See, Supra Note 243, S. 13(1).
167

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CHAPTER-IV

requires professionally trained ADR practitioners, who are well versed in

II. THE ARBITRATION AND CONCILIATION ACT,1996 :

iv. To ensure that the Arbitral Tribunal remains

the Court should not intervene except as provided by those provisions^\

arbitration proceeding have been commenced. The proceedings cannot be

defines that "Arbitration Agreement" means an agreement referred or

other party in his response, that constitutes an agreement in writing to the

^^ Supra Note 72, p-13.

^^ Icy, Clauses (i), (ii) Sub-Clauses [a -e].

^^ Ibid, SAO (2).

other person or institution designated by the Chief Justice or entrusted to

[d] Arbitrator in International Commercial arbitration:

^^\d, s.11 (5).

^Ud, S.11 (8).

that "while nationality of the Arbitrator is a matter to be kept in view, it does

[e] Grounds for challenge:

[f] Procedure for Challenge of Arbitrator:

[g] Termination of mandate or authority of Arbitrator:

"^ Supra Note 43, S.I3 (1) and (2).

unable to perform his function or discharge is duty within stipulated time. It

^ Id, S.14 (1) Sub Clauses (a) and (b).

fair so as to enable the parties to have the fullest opportunity of presenting

The objections pertaining to the jurisdiction to

of defence but not later than such submissions or statement of defence. A

" Supra Wote 54, S. 16 (2).

^^ See, Mr Justice Megaw, In Horsnell Vs Alliance Assurance Co. Ltd., (1967),

[c] Place of Arbitration :

[d] Commencement of the Arbitral

on which a request is received by one party from the other to make a

[f] Statements of Claims and Defence :

^^ \d, S.23 Clauses (1) and (2).

[h] Ex Parte proceedings:

[i] Appointment of Expert by Arbitral Tribunal :

'° Id, S.25.

[j] Assistance of Court in tailing Evidence :

[b] Rules Applicable in International Commercial

^^ Icf, S.27 (5).

to be appropriate under the given circumstances and surrounding tiie

[c] Majority decision in case of disagreement among

^^ Supra Note 90, S. 28 (1) Sub Clause (b) [i - ill].

^^ Supra Note 94, S. 10.

[e] Form and contents of award :

[f] Reason for Award :

The Section 31(4) provides that the arbitral

'°^lc(, S. 31 Clauses (1) and (2).

'°^ Ibid, S. 31 (4).

[g] Termination of Proceedings:

' " id, S. 32(1).

2. the party makes request to the Arbitral Tribunal

[h] Recourse against Arbitral Award :

''^ Id, S. 33.

'^^ Id, S. 34 (2) Sub Clause (b) (i) & (11).

'^' \d, S. 36.

III. PROVISIONS OF CONCILIATION :

'^^ Id, S. 37(3).

[v] Procedure for appointment of Conciliators:

" ' Id, S.65.