Draft of an application to the Court for setting aside an arbitration award.
Friday, 30 June 2023
0804 Draft of a domestic arbitration agreement after a commercial dispute has arisen between Parties
Draft of a domestic arbitration agreement after a commercial dispute has arisen between Parties.
0804 Lok Adalats
One of the objects of the Legal Services Authorities Act is to settle the disputes speedily through Lok Adalat. Indian Courts are overburdened with work and it takes years to settle the disputes before the formal courts. As we know that justice delayed is justice denied so need was felt for the constitution of alternate dispute mechanism to settle the disputes speedily without following the technicality of formal procedure. The Lok Adalat is recognized as one of the alternate dispute resolution mechanism capable of settling the dispute speedily, cheaply and amicably. All the legal services authorities can organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.
A person shall not be qualified to be included in the Lok Adalat unless he is a member of the legal profession or a person of repute who is specially interested in the implementation of the Legal Services Schemes and Programmes or An eminent social worker who is engaged in the upliftment of the weaker sections of the society, including scheduled castes, scheduled tribes, women, children, rural and urban labour.
As its bench, consisting of members from legal and non-legal background, so it is in a better position to understand the dispute of the parties and convincing them to arrive at a settlement or compromise. Experience of members from legal background helps in understanding the fate of the case in the eyes of law and the experience of the members from non-legal background helps in conciliation of parties to settle the dispute amicably before the Lok Adalat.
0804 Entitlement to Free Legal Aid
Entitlement to Free Legal Aid
Inadequate representation of case before the court due to lack of legal assistance is a very big reason for injustice and delayed justice. Providing free legal aid to those people who can’t afford the legal assistance in the eyes of the law as mentioned under section 12 of the Act is a positive step towards imparting of justice on equitable basis.
People entitled to free legal services:
· A member of a Scheduled Caste or Scheduled Tribe
· A victim of trafficking in human beings or beggar as referred in article 23 of the Constitution;
· A woman or a child; · A person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)
· A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
0804 District Legal Services Authority
District Legal Services Authority
The District Legal Services Authority works at the district level
Composition
- The District Judge who shall be its Chairman;
- Such number of other members, possessing such experience and qualifications, as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court.
- Like other legal services authority, it also provides for the appointment of people from bench, bar, social groups etc. which is good for understanding the grievance of disputing parties and convincing them to settle the disputes amicably through Lok Adalat.
0804 High Court Legal Services Committee
High Court Legal Services Committee
The High Court Legal Services Authority provides for the free legal aid and amicable settlement of disputes pending before the High Court. It also provides for the speedy disposal of disputes through Lok Adalat.
Composition:
(i) A sitting Judge of the High Court who shall be the Chairman;
(ii) Such number of other members possessing such experience and qualifications as may be determined by regulations made by the State Authority, to be nominated by the Chief Justice of the High Court.
0804 State Legal Service Authority
State Legal Service Authority
It is not possible for the National Legal Services Authority to implement the provisions of this Act without the assistance of other subsidiary authorities. So every State is bound to constitute State Legal Services Authority in its territory.
Composition
The Chief Justice of the High Court who shall be the Patron-in-Chief;
A serving or retired Judge of the High Court to be nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman;
Such number of other members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by that Government in consultation with the Chief Justice of the High Court
0804 Supreme court Legal Service Committee
Supreme court Legal Service Committee
The Supreme Court Legal Services Committee imparts the facilities provided under this Act to the parties whose dispute is pending before the Supreme Court. Like National Legal Services Authority, it also contains the provision for the appointment of persons from nonlegal background which is good for the amicable settlement of disputes. People whose disputes are pending before the Supreme Court can comfortably take the benefit of the services of this authority as they will not have to go to any other place to take the provided benefits. As this Authority is specially designed to provide benefit under this Act to disputes pending before the Supreme Court, it can perform this work more efficiently. Provisions like short tenure and check on the use of funds by regular auditing of the accounts prevent the chances of misuse of power provided under this Act.
0804 National Legal Service Authority
Legal Services Authorities Act, 1983
Introduction:
Legal Services Authorities Act was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. The interpretation of this Act in the light of its object reveals that it is a very good legislation for the amicable and speedy disposal of disputes.
For the proper implementation of the provisions of the Legal Services Authorities Act, 1987 various authorities have been created at national, state, district and taluka level. These authorities have also been established at the level of Supreme Court and High Court.
0804 Sample ADR Assignment
Sample ADR Assignment
Disclaimer : The Notes and content are for reference purpose only, you need to write the Assignment in your own words and understanding in consultation with your teachers and professors of the subject.
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Part 1 |
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Introduction: Alternate Dispute Resolution |
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Write meaning scope objects modes
advantages disadvantages of ADR |
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Arbitration and conciliation Act discuss difference between
old and new Bill. |
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Legal Services Authority scope objects eligibility Legal Service Authority - Note Type of Services Authorities - Note State Legal Service Authority - Note High Court Legal Services Committee - Note District Legal Services Authority Note Entitlement
of Free Legal Aid - Note Who are Entitled to Free Legal Services? and explain Income Limit for availing free service ? - Note |
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Scope of Lok Adalat - Note Lok Adalat Jurisdiction - Note Lok Adalat - Note Benefits , Advantages and Disadvantages of Lok Adalat - Note
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Part II |
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1 |
Draft of a domestic arbitration agreement after a commercial dispute has arisen between Parties. |
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Draft of an application to the Court for setting aside an arbitration award. |
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Draft of an application to the appropriate court to appoint an arbitrator when parties have failed in their attempts to appoint one according to the arbitration agreement. |
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Report on interaction session(s) on Alternate Dispute Resolution System. Session 7 of Certificate Course on Advocacy Skills 23rd June 2022 Adv Sangramsingh Bhosle
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Report on visit
to State Legal Services Authority / District Legal Services Authority / Taluk
Legal Services Committee / Local Legal Aid Centre or on Interaction
Session(s). |
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Two Supreme Court’s judgements on ADR Case 1 Case Analysis: Vidya Drolia and Ors. vs. Durga Trading Corp. Other Cases at below link Bar and Bench 30 0 important Judgments on Arbitration by Indian Courts |
Sunday, 25 June 2023
LP 0804 PTP I Latest Supreme Court Judgement on Arbitration - Vidya Drolia Vs Durga Trading Corp
Latest Supreme Court Judgement on Arbitration
Expanding the Scope of RERA: Analysis of Vidya Drolia vs. Durga Trading Corp. Case"
Introduction:
The case of Vidya Drolia and Ors. vs. Durga Trading Corp. is a significant landmark judgment delivered by the Supreme Court of India. This case dealt with the interpretation and application of the provisions of the Real Estate (Regulation and Development) Act, 2016 (RERA) in relation to the inclusion of commercial properties under its ambit. This case analysis aims to provide a summary of the key facts, issues, arguments, and the court's ruling in this significant case.
Case Background:
The petitioners, Vidya Drolia and others, were aggrieved by the actions of Durga Trading Corp., the respondent, for seeking eviction of the petitioners from their commercial premises. The key contention revolved around whether commercial properties fall within the scope of the Real Estate (Regulation and Development) Act, 2016.
Key Issues:
Whether commercial properties are covered under the definition of "real estate project" as per the provisions of the RERA Act.
Whether the protection and benefits provided to homebuyers under the RERA Act extend to buyers of commercial properties.
Arguments:
The petitioners argued that the definition of "real estate project" under the RERA Act is broad enough to include commercial properties. They contended that the intention behind the legislation was to protect the interests of all buyers, irrespective of whether the property is residential or commercial. The petitioners highlighted the need for transparency, accountability, and regulation in the commercial real estate sector.
The respondent, Durga Trading Corp., argued that the RERA Act was specifically enacted to regulate the residential real estate sector and does not cover commercial properties. They contended that the legislative intent and language of the Act exclude commercial projects from its purview. The respondent argued that commercial properties are governed by other laws and regulations, and subjecting them to RERA provisions would create confusion and ambiguity.
Court's Ruling:
The Supreme Court, after considering the arguments and analyzing the provisions of the RERA Act, ruled in favor of the petitioners. The court held that commercial properties are indeed covered under the definition of "real estate project" as per the RERA Act. The court emphasized that the legislative intent behind enacting RERA was to provide protection and safeguards to all buyers, including those investing in commercial properties.
The court further observed that the objective of the RERA Act is to ensure transparency, accountability, and efficiency in the real estate sector. It noted that commercial real estate projects also involve substantial investments and can have significant implications for businesses and enterprises. Therefore, extending the protection and benefits of the RERA Act to buyers of commercial properties is in line with the legislative intent and promotes a more inclusive and regulated real estate market.
Significance and Implications:
The judgment in the Vidya Drolia case has significant implications for the commercial real estate sector in India. It establishes the applicability of the RERA Act to commercial properties, ensuring that buyers of such properties are entitled to the protection and benefits provided under the Act. This decision promotes transparency, accountability, and regulation in the commercial real estate market, enhancing investor confidence and safeguarding the interests of buyers.
Conclusion:
The Vidya Drolia and Ors. vs. Durga Trading Corp. case clarified the scope of the Real Estate (Regulation and Development) Act, 2016, by including commercial properties under its ambit. This judgment ensures that buyers of commercial properties are afforded the same protection and benefits as residential buyers under the RERA Act. The decision reinforces the principles of transparency, accountability, and regulation in the commercial real estate sector, promoting a more inclusive and regulated market environment.
LP 0804 PTP I Lok Adalat in India - Empowering ADR
Title: Lok Adalat in India: Empowering Alternative Dispute Resolution
Introduction:
Lok Adalat, meaning "People's Court," is a unique and effective mechanism of alternative dispute resolution in India. It is an integral part of the Indian legal system, providing a platform for amicable settlement of disputes through conciliation and mediation. This article explores the concept of Lok Adalat, its functioning, advantages, and its significant contribution to the judicial system in India.
Organisation of Lok Adalat:
Lok Adalats are organized at different levels, ranging from the national level to the state and district levels. The organization and administration of Lok Adalats are carried out by the respective State Legal Services Authorities, District Legal Services Authorities, and Taluk Legal Services Committees. These bodies ensure the smooth functioning of Lok Adalats and promote access to justice for all.
Jurisdiction of Lok Adalat:
Lok Adalat has jurisdiction over a wide range of cases, including civil, criminal, matrimonial, and compoundable offenses. The cases referred to Lok Adalat can be either pending before the courts or pre-litigation disputes. The jurisdiction of Lok Adalat extends to cases where parties are willing to participate voluntarily or those referred by the courts as part of their powers to promote settlement outside of formal judicial proceedings.
Understanding Lok Adalat:
Lok Adalat is a forum where disputes pending before regular courts or those that have not yet reached the litigation stage are resolved outside the formal judicial process. It operates based on the principles of compromise, conciliation, and mutual agreement between the parties involved. The Lok Adalat is presided over by a judicial officer, along with social workers and legal experts.
Functioning of Lok Adalat:
Voluntary Participation: Participation in Lok Adalat is voluntary, and the process is entirely based on the consent of the parties involved. It provides an opportunity for disputing parties to resolve their conflicts mutually, avoiding the adversarial nature of traditional court proceedings.Conciliation and Mediation: The Lok Adalat facilitates conciliation and mediation to encourage parties to reach a settlement. Mediators, who are neutral and impartial, help in facilitating dialogue and assist the parties in finding mutually agreeable solutions. The emphasis is on preserving relationships and achieving a win-win outcome.Legal Expertise: Lok Adalats comprise judicial officers and legal professionals who provide guidance and ensure that the settlements arrived at are legally enforceable. The judicial officer ratifies the settlement as an order of the court, giving it the same force and effect as a decree of a civil court.Broad Range of Cases: Lok Adalats can deal with various types of cases, including civil, criminal, matrimonial, property, and compoundable offenses. Matters pending before regular courts can also be referred to Lok Adalats for resolution, either voluntarily or through court orders.
Advantages of Lok Adalat:
Speedy Dispute Resolution: Lok Adalat provides a quick and efficient resolution of disputes. The informal and conciliatory nature of the process helps in expediting the settlement, offering a timely resolution to the parties involved.Cost-effective: Participating in Lok Adalat is cost-effective compared to traditional court proceedings. The absence of lengthy litigation processes, court fees, and legal expenses make it accessible to all, particularly those who cannot afford expensive litigation.Reduced Burden on Courts: Lok Adalat helps in reducing the backlog of cases burdening the traditional court system. By encouraging parties to settle their disputes outside of court, Lok Adalats free up valuable court resources, enabling regular courts to focus on more complex and contentious matters.Preservation of Relationships: The emphasis on conciliation and mediation in Lok Adalat promotes the preservation of relationships between the parties. It allows for open communication and collaborative problem-solving, fostering goodwill and long-term understanding.Legally Binding Settlements: The settlements reached in Lok Adalat are deemed to be decrees of civil courts and are enforceable as such. This ensures the finality and enforceability of the settlements, providing parties with a legal remedy for non-compliance.
Award of Lok Adalat:
The settlements reached in Lok Adalat are legally binding and have the same effect as decrees of civil courts. Once the parties reach a settlement, it is recorded and signed by the members of the Lok Adalat. This award is enforceable, and compliance with its terms is mandatory for the parties involved.
Conclusion:
Lok Adalat has emerged as a successful mechanism of dispute resolution in India, aligning with the principles of social justice, expediency, and accessibility. It promotes a culture of conciliation, compromise, and mutual agreement, fostering harmony and reducing the burden on the formal court system. Lok Adalat stands as a significant contribution to the Indian judicial system, facilitating the resolution of disputes in a timely, cost-effective, and amicable manner, thereby empowering individuals with an alternative avenue for seeking justice.
LP 0804 PTP I Legal Services Authority Act 1987
Legal Services Authority Act 1987: Empowering Access to Justice for All
Introduction:
The Legal Services Authority Act, 1987, is a landmark legislation in India that aims to provide legal services and access to justice for the marginalized and underprivileged sections of society. This article delves into the scope, objectives, and eligibility criteria defined under the Act, highlighting its significance in promoting social justice and ensuring equal access to legal remedies.
Scope of the Legal Services Authority Act:
The Act covers a wide range of legal services and initiatives aimed at providing assistance to those who cannot afford legal representation. It encompasses various aspects, including legal aid, legal awareness, and establishing institutions to facilitate access to justice.
Legal Aid: The Act emphasizes the provision of free legal aid to eligible individuals, including advice, assistance, representation, and support in legal proceedings. This ensures that all citizens, regardless of their economic status, can avail themselves of legal services to safeguard their rights and interests.Legal Awareness: The Act promotes legal literacy and awareness programs to educate people about their legal rights and responsibilities. By disseminating legal knowledge, the Act empowers individuals to make informed decisions and enables them to assert their rights effectively.Lok Adalats: The Act facilitates the establishment of Lok Adalats, which are alternative dispute resolution forums aimed at resolving disputes amicably, expeditiously, and cost-effectively. These Lok Adalats encourage settlement through conciliation and mutual agreement, reducing the burden on the judiciary and promoting access to speedy justice.Legal Services Institutions: The Act establishes legal services authorities at the national, state, and district levels. These institutions are responsible for implementing the provisions of the Act, coordinating legal aid activities, and ensuring effective delivery of legal services to the disadvantaged sections of society.
Objects of the Legal Services Authority Act:
The Act sets forth clear objectives to be achieved through the implementation of legal services and access to justice initiatives.
Equal Access to Justice: The primary object of the Act is to ensure equal access to justice for all, irrespective of social, economic, or other barriers. It aims to bridge the gap between the privileged and marginalized sections of society by providing legal aid and support to those who lack the means to engage legal representation.
Social Justice: The Act seeks to promote social justice by empowering the marginalized and vulnerable segments of society. It endeavors to protect their rights, interests, and dignity, and to enable them to assert their legal entitlements effectively.
Eligibility under the Legal Services Authority Act:
To avail themselves of legal aid and assistance, individuals need to meet certain eligibility criteria established under the Act. While specific eligibility guidelines may vary across jurisdictions, the common factors considered include:
Means Test: Eligibility often depends on the income and financial resources of the applicant. Those falling below a certain income threshold, as determined by the authorities, are deemed eligible for legal aid.Social Disadvantage: Priority is given to individuals belonging to socially and economically marginalized groups, such as Scheduled Castes, Scheduled Tribes, women, children, persons with disabilities, and senior citizens.Weaker Sections: The Act extends special consideration to individuals who are victims of human rights violations, bonded laborers, prisoners, and individuals facing discrimination or oppression.
Conclusion:
The Legal Services Authority Act, 1987, embodies the principles of social justice, equality, and access to justice. By providing legal aid, raising legal awareness, and establishing mechanisms for dispute resolution, the Act plays a crucial role in empowering the underprivileged and ensuring that justice is not denied due to financial constraints. It stands as a testament to India's commitment to inclusive and equitable legal services, fostering a society where all individuals can exercise their rights and seek redress for grievances, regardless of their socio-economic background.
Saturday, 24 June 2023
LP 0804 PTP I ADR Comparative Analysis of the Old and New Acts
The Evolution of Arbitration and Conciliation Act in India: A Comparative Analysis of the Old and New Bill
(This New Bill is yet to be Introduced and Passed)
Introduction:
Arbitration and conciliation have long been recognized as effective methods for resolving disputes in India. In an effort to modernize and streamline the arbitration framework, the Arbitration and Conciliation Act underwent significant amendments in recent years. This article aims to explore the difference between the old and new acts, highlighting the key changes and their implications for arbitration and conciliation in India.
Overview of the Old Act:
The Arbitration and Conciliation Act, 1996, governed arbitration proceedings in India for over two decades. While it played a pivotal role in promoting alternative dispute resolution, certain shortcomings and ambiguities necessitated amendments to ensure more efficient and user-friendly processes.
Key Amendments in the New Bill:
The Arbitration and Conciliation (Amendment) Act, 2019, brought about several significant changes, introducing crucial reforms to enhance the effectiveness and credibility of arbitration in India. Let us now examine the key differences between the old and new acts:
| Aspect | Old Act (Arbitration and Conciliation Act, 1996) | New Bill (Arbitration and Conciliation (Amendment) Bill |
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| Appointment of arbitrators | The old act allowed for challenges to arbitrators based on justifiable doubts regarding their impartiality or independence. However, this process often led to delays and judicial intervention. | The new act introduced stricter timelines for the appointment of arbitrators, ensuring expeditious resolution. It also provides for the designation of an "arbitral institution" to appoint arbitrators in cases of default or in the absence of agreed-upon procedures. |
| Timeframe for arbitral proceedings | The old act did not specify a strict timeframe for completing arbitral proceedings, leading to prolonged disputes and unnecessary delays. | The new act imposes a time limit of twelve months for the completion of the entire arbitration process. This timeframe can be extended by six months by mutual agreement or by the court in exceptional cases. |
| Confidentiality | The old act did not explicitly address the issue of confidentiality, which raised concerns regarding the privacy of arbitral proceedings. | The new act introduces confidentiality provisions, ensuring that arbitration proceedings remain confidential unless disclosure is required by law. |
| Enforcement of awards | The enforcement of arbitral awards under the old act was a lengthy and cumbersome process, often requiring court intervention and resulting in substantial delays. | The new act streamlines the enforcement process by introducing stricter timelines and removing unnecessary court interference. It also provides for the establishment of dedicated arbitration cells to facilitate the enforcement of awards. |
| Arbitration-related court proceedings | The old act allowed for frequent and protracted court intervention during arbitral proceedings, leading to delays and increased costs. | The new act limits the scope of court interference, restricting judicial intervention to only essential matters such as determining the jurisdiction of the arbitral tribunal or granting interim measures. |
Salient Implications and Benefits of the New Bill:
The amendments introduced in the new bill have several benefits for arbitration and conciliation in India. These include:
a. Efficiency: The new bill imposes stricter timelines, ensuring that arbitration proceedings are completed expeditiously, reducing delays, and promoting efficient resolution of disputes.b. Streamlined enforcement: The simplified enforcement process facilitates the timely execution of arbitral awards, enhancing the credibility and enforceability of arbitration in India.c. Confidentiality: The new bill explicitly recognizes the importance of confidentiality, safeguarding the privacy of arbitration proceedings and encouraging parties to freely participate.d. Reduced judicial intervention: By limiting court interference, the new bill empowers arbitral tribunals to exercise their authority and resolve disputes effectively, minimizing unnecessary delays and costs.
Conclusion:
The Arbitration and Conciliation Act has witnessed a significant transformation through the amendments introduced in 2019. The new bill aims to make arbitration and conciliation more efficient, cost-effective, and reliable. By addressing the limitations of the old act, these reforms contribute to positioning India as a favorable destination for arbitration and conciliation. It is crucial for stakeholders to familiarize themselves with the new bill's provisions to leverage the benefits of the reformed arbitration framework and promote a culture of alternative dispute resolution in the country.
Please note New Bill is yet to be passed on the day of writing of the blog.
For any updates please refer the latest information and updates from relevant sources.
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