Section 3 : Provisions implied in arbitration agreement
2020 CLC 106 LAHORE-HIGH-COURT-LAHORE
TBEA COMPANY (PRIVATE) LIMITED VS ALWASAY CONSTRUCTION COMPANY (PRIVATE) LIMITED
Ss. 20, 3, 8 & First Sched.—-Application to file in Court arbitration agreement—Provisions implied in arbitration agreement— Appointment of arbitrator—-Consent of parties—Sections 20 and 8 of the Arbitration Act, 1940—Nature and scope—Petitioner company impugned order of Trial Court whereby, upon respondent company’s application under S.20 of the Arbitration Act, 1940; an arbitrator nominated by respondent was appointed without the consent of the petitioner — Validity—Under the provisions of Arbitration Act, 1940 it was apparent that consent of parties was sine qua non for appointment of arbitrator and upon any dissent shown by a party, the same would result in a particular arbitrator not being appointed — Jurisdiction of Trial Court after an application under S. 20 of the Arbitration Act, 1940 was to move, did not allow it to unilaterally appoint a sole arbitrator proposed by one party that was not acceptable to the other party—Provisions of S.8 of the Arbitration Act, 1940 were not applicable to the present case and said provision was separate and distinct from S.20(4) of the Arbitration Act, 1940 and there was no embargo on appointment of more than one arbitrators—Impugned order was therefore made while exercising jurisdiction not vested in Trial Court, and was set aside—High Court remanded matter to Trial Court with direction to appoint arbitrator with consent of parties and expertise — Revision was allowed, accordingly.
2018 CLC 188 KARACHI-HIGH-COURT-SINDH
CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION VS PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA)
Ss. 3, 30 & 33—Award—Objection—Role of Court—Scope—High Court while hearing objections to award under Ss.30 & 33 of Arbitration Act, 1940, is not a court of appeal nor it is required to undertake reappraisal of evidence recorded by arbitrator in order to discover error or infirmity in award—Exception is available to such rule as well that if error or infirmity in award rendering it invalid is appearing on face of award and is discoverable by reading the award itself, then same can be looked into for either setting aside or modifying the award— Award can also be interfered within certain exceptional circumstances when finding of arbitrator is not based on evidence on record.
2018 PLD 115 ISLAMABAD
PAKISTAN REAL ESTATE INVESTMENT AND MANAGEMENT COMPANY (PVT) Ltd. VS SOHAIL A. KHAN, ASSOCIATES-ASSIGN JV
3 & First Sched. Para 1—Appointment of arbitrators by court—Agreement between parties silent as to number of arbitrators—Paragraph 1 of the First Sched. to the Arbitration Act, 1940 (“the Act”) provided that unless otherwise expressly provided, the reference shall be to a sole Arbitrator—Perusal of the arbitration agreement, in the present case, showed that the same was silent as to the number of Arbitrators who were to adjudicate upon dispute between the parties to the said agreement—In terms of S.3 read with Para.1 of the First Sched. to the Act, the reference, therefore, was to be made to a sole Arbitrator—Consequently, the impugned order of the civil court whereby the matter in dispute between the parties to the agreement had been referred to a two member Arbitral Tribunal, was not sustainable—High Court modified the order of the civil court and appointed a sole arbitrator with the direction that the arbitrator shall fix his own fees, which shall be paid by the parties to the arbitration agreement in equal proportion—Appeal was dismissed accordingly.
2017 PLD 497 KARACHI-HIGH-COURT-SINDH
NASIM AHMED VANA VS State
Chap. II, Ss. 3 to 19 & Chap. III, S.20—Reference to arbitration—Principle—Bar exists on invoking provisions of S.20 (Chap.III) of the Arbitration Act, 1940, when parties to arbitration agreement have invoked provisions of Chap. II (Ss. 3 to 19) of Arbitration Act, 1940.
2017 PLD 497 KARACHI-HIGH-COURT-SINDH
NASIM AHMED VANA VS State
Ss. 3 to 20 & 37(4)—Arbitration—Agreement fixed by time—Plaintiffs contended that parties had arbitration agreement between them and the matter be sent to arbitrator for decision—Validity—Agreement fixing time during which reference could be made to arbitration was impliedly considered valid by S.37(4) of Arbitration Act, 1940, which vested Court power to extend such time when it was of the view that some undue hardship was likely to be caused to parties by not extending same—Where agreement itself could not be acted upon having become inoperative due to invalidity, the Court was not entitled to appoint arbitrator of its own choice and substitute original agreement of parties—High Court declined to extend validity of arbitration agreement under S.37(4) of Arbitration Act, 1940, as circumstances did not warrant to do so nor any undue hardship would be caused to parties to arbitration agreement, who were pursuing their remedies in parallel legal proceedings which were more effective and expeditious—Suit was dismissed in circumstances.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
3 & First Sched. para. 1—Arbitrator, appointment of—Interpretation of arbitration clause—Arbitration clause silent as to the number of arbitrators and the manner of appointing them—Arbitration clause in the present case only mentioned referral of disputes to “arbitrator(s)”—Had the arbitration clause spoken of the appointment of an “arbitrator”, there would be no scope for the application of para 1 of the First Schedule to the Arbitration Act, 1940, because a single arbitrator would be indicated by the agreement itself; had the arbitration clause provided for the appointment of “arbitrators”, then the application of para 1 of the First Schedule would have been excluded because the word “arbitrators” certainly referred to more than one arbitrator— Present case, therefore, would be governed by S.3 of Arbitration Act, 1940 and the reference [to “arbitrator(s)”]shall be presumed to have been intended to be made to a single arbitrator by virtue of para 1 of the First Schedule, necessarily to be appointed by the consent of both parties.
2016 MLD 897 KARACHI-HIGH-COURT-SINDH
TRADING CORPORATION OF PAKISTAN LTD. VS GENERAL INDUSTRIAL MACHINES
Ss.3, 16, 26-A & 30 [as inserted by Arbitration (Amendment) Ordinance (XV of 1981)]—Law Reforms Ordinance (XII of 1972), S. 3—Arbitration—Intra-court appeal—Objection to award—Remission of case—Reasons not stated—Parties referred their dispute to arbitrator who unanimously appointed umpire and a unanimous award was given—Arbitrators filed the award in court and despite objections filed by appellant, single Judge of High Court made it rule of the Court—Appellant sought dismissal of award on the plea that arbitrators did not give reasons of award and after their death parties were not willing to appoint new arbitrator—Validity—Case fell under S. 16 (1)(c) of Arbitration Act, 1940, as objection raised by appellant to legality of award that it lacked reasons was apparent on the face of it—Such objection was also accepted by High Court when the matter was remitted to surviving arbitrator for reasons in sufficient details which order was upheld by Supreme Court—Surviving arbitrator failed to reconsider the award and to submit his decision and reasons in sufficient details within the stipulated period—Such award had become void under S. 16(3) of Arbitration Act, 1940—Arbitration agreement between parties ceased to have effect with respect to dispute referred thereunder and such reference was liable to be superseded under S. 19 of Arbitration Act, 1940—Parties were unwilling to appoint new arbitrators and the award could not be remitted to any other arbitrator—Award had become void and arbitration agreement between parties could not be given effect to and the same had become frustrated—Reference was superseded under S. 19 of Arbitration Act, 1940 and the arbitration agreement ceased to have effect with respect to differences/dispute referred in pursuance thereof to arbitrators and umpire—Division Bench of High Court set aside judgment and decree passed by single Judge of High Court resultantly award was set aside—Appeal was allowed accordingly.
2013 CLD 719 KARACHI-HIGH-COURT-SINDH
BESROCK (PVT.) LTD. VS PAKISTAN STEEL MILLS CORPORATION
Ss. 14, 3 & Sched.—Filing of arbitration award in the court—Section 14 of the Arbitration Act, 1940 was related to procedure in filing an award which was ministerial act and nowhere precluded an arbitrator or umpire from filing an award suo motu—Party other than an arbitrator could only file an award in the court when specifically authorized by the arbitrator and it was the role of arbitrator/umpire to either file award himself to make it rule of the court or to authorize one or both of the parties to file the award in the court.
2006 CLD 497 KARACHI-HIGH-COURT-SINDH
Messrs TRAVEL AUTOMATION (PVT.) LTD. through Managing Director VS ABACUS INTERNATIONAL (PVT.) LTD. through President and Chief Executive
–Ss. 3 & 4—Arbitration Act (X of 1940), S.3—Arbitration (Protocol & Convention) Act (VI of 1937), S.3—Contract Act (IX of 1872), Ss.20 & 56—United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 1958—Discretion
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
—Preamble, Chaps.II [Ss.3 to 19], III [S.20] & IV [Ss.21 to 25]—Modes of arbitration–Perusal of Arbitration Act, 1940, reveals that there are three modes of arbitration: Arbitration without intervention of Court; Arbitration with intervention of Cour
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
—S. 14 & Chap.II [Ss.3 to 19]—Award—Arbitrator, after passing the award, is required to file the award in the Court within the meaning of S.14, Arbitration Act, 1940 and then further proceedings would be conducted by the Court under the other provis
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
—Ss. 8(1)(a), 20, 34, 3 & Sched.—Parties, in the present case had not referred the matter to the Arbitrator because of non-cooperation of the defendant, though the plaintiff was pursuing to appoint Arbitrator and for that purpose he had already sent a
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
–Ss. 20, 8, 34 & Chap. II [Ss.3 to 19]—Civil Procedure Code (V of 1908), O. VII, R.11—Suit for dissolution of partnership, rendition of accounts, permanent injunction and declaration—Recovery of amount was stayed under S.34, Arbitration Act, 1940 o
2004 PLD 404 LAHORE-HIGH-COURT-LAHORE
Sh. SALEEM ALI VS Sh. AKHTAR ALI
—-S. 3(a)—Arbitration agreement—Such agreement need not necessarily be ‘incorporated in a formal document, it can be included by incorporating a clause in a contract—Arbitration agreement may be spelt out from correspondence or letters exchanged b
2004 YLR 2503 LAHORE-HIGH-COURT-LAHORE
RAVI GLASS MILLS LIMITED VS I.C.I. PAKISTAN POWERGEN LIMITED
—-Ss. 14(2), 17, 3, & 33—Civil Procedure Code (V of 1908), O. VII R. 10 — Approbate and reprobate,. waiver, estoppel, principles of –Application for return of plaint, dismissal of—Arbitrator was appointed in a dispute between petitioner and resp
2003 YLR 3321 KARACHI-HIGH-COURT-SINDH
AL-ABDULLAH CONSTRUCTORS (PVT.) LTD., KARACHI VS PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY
—-Ss. 3 (c), 14 (2) & 31—West Pakistan Civil Courts Ordinance (II of 1962), S.7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]—Civil Procedure Code (V of 1908), S.15—Filing of award–Conflict of pecuniary jurisdiction of Co
2003 YLR 3289 KARACHI-HIGH-COURT-SINDH
Syed MUKHTAR HUSSAIN NAQVI VS Mst. Hajiani ZUBEDA
—-Ss.3, 20, 21, 28 & First Sched.–Reference to arbitration with or without intervention of Court or in pending suit–Time for making award by Arbitrator not fixed/specified in reference—Statutory period of four months as fixed in para. 3 of First Sch
2003 CLC 180 KARACHI-HIGH-COURT-SINDH
GOVERNMENT OF SINDH VS TAUSIF ALI KHAN
Arbitration Act 1940 —-S. 3 & First Sched.—Implied conditions of arbitration agreement –Applicability—Number of Arbitrators—Arbitration clause in agreement in question was silent as to the number of Arbitrators–Effect—Same attracted the provisions of First Sched. to Arbitration Act, 1940, providing for implied conditions of arbitration agreement—In pursuance to the first condition, the reference was to be made to a sole Arbitrator accordingly.
2001 YLR 2860 LAHORE-HIGH-COURT-LAHORE
FAZAL MUHAMMAD VS MUHAMMAD ISMAIL
Arbitration Act 1940 —-Ss. 3, 5 & 23—Reference of matter to Referee—Decision of Referee—Decision to be bound by the statement of the Referee was outcome of a contract between the parties who were at liberty to revoke the same before it was acted upon—Where the statement of Referee was not clear, but was ambiguous, then the Court could hold further proceedings in the matter instead of deciding the controversy between the parties on the basis of the statement of the Referee—Case was remanded for decision according to law.
1999 YLR 2162 KARACHI-HIGH-COURT-SINDH
SUNSHINE CORPORATION (PVT.) LTD. VS E.D. DU PONT DE NEMOURS & COMPANY
?
1998 MLD 1718 PESHAWAR-HIGH-COURT
OBAIDULLAH KHAN VS INAYATULLAH KHAN
Arbitration Act 1940 —-S. 3—Arbitration agreement—Validity and binding force of—Parties were involved in a dispute over property left by their predecessor-in-interest and to resolve present and future differences, they entered into arbitration agreement–Law had acknowledged and encouraged sanctity of an agreement, if not opposed to public policy or if by such an agreement no law was violated—Law of arbitration was neither more nor less, but a law of compromise—Arbitration agreement entered into by parties of their free choice, was for all practical purposes a valid agreement within four corners of S. 3 of Arbitration Act, 1940 and like every agreement was binding upon parties and unless tainted with fraud, coercion or undue influence, its binding force could not be avoided and arbitrator’s authority could not be revoked—Once parties had selected a domestic Tribunal for resolution of their differences and disputes they would not be allowed to rely upon technicalities such as absence of a written authority in favour of one of the arbitrators and award based on basis of agreement by Arbitrators, would not be open to challenge on that store.
1998 CLC 1671 KARACHI-HIGH-COURT-SINDH
KHAN BROTHERS AND ASSOCIATES VS DIRECTOR-GENERAL FOOD,GOVERNMENT OF PAKISTAN
Arbitration Act 1940 —Ss. 3, 14, 28, 30 & 33—Objections against award—Duty of Court while hearing such objections—Court while hearing objections to award could not undertake reappraisal of evidence recorded by Arbitrator to discover error or infirmity therein—Error or infirmity in award which would render the same invalid must appear on the face of award and should be discovered by reading the same—Where reasons recorded by Arbitrator were impugned as perverse, such perversity in reasoning must be substantiated with reference to material considered by Arbitrator in award—Court while hearing objections against award was not legally competent to reappraise award or to assess and examine evidence to determine whether another possible conclusion could be drawn therefrom—Where dispute related to discharge and handling of cargo, claimant having actively participated in discharge and handling of same on behalf of respondent (Authority), it was not open to respondent to turn round and blow hot and cold at the same time—Award was not vitiated for having been made long after expiry of four months—Court was empowered to enlarge time for making award irrespective of fact whether time had expired or not and whether award had been made or not—Time for making award could be extended on oral application of parties or on Court’own accord—Provision of S.3, Arbitration Act, 1940, postulates that Arbitrator would make award within 4 months after entering on reference or after having been called upon to act by notice in writing from any party to. arbitration agreement or within such extended time as Court might allow—Where after expiry of four months, parties had submitted themselves to jurisdiction of Arbitrator and had taken part in proceedings enabling Arbitrator to make award, he could not be deemed to have acted without jurisdiction—Conduct and participation in proceedings by respondent would clearly reflect that he had consented to continuation of proceedings even after expiry of four months’eriod which was deemed to have been extended by consent of parties—Award was, thus, not vitiated by reason of making it beyond time fixed by law.
1996 CLC 503 LAHORE-HIGH-COURT-LAHORE
ALLAH DITTA VS MUHAMMAD GHAFFAR
—-Ss. 2(a), 3 & para. 2 of First Sched.—Arbitration agreement —Umpire–Appointment of—Arbitration agreement according to which parties voluntarily opted to refer their dispute to arbitration of their own choice, was duly executed in writing betwee
1989 MLD 2010 KARACHI-HIGH-COURT-SINDH
MUHAMMAD YASIN VS MUHAMMAD FAROOQ
Arbitration Act 1940 —Ss.2(e), 3, 5, 13 & 14–Jurisdiction of arbitrators–Objection to–Where a party to arbitration agreement allowed arbitrators to proceed with reference submitted to their jurisdiction without objection, led evidence, such party is estopped, from challenging jurisdiction of arbitrator: -[Estoppel].
1987 PLD 209 QUETTA-HIGH-COURT-BALOCHISTAN
SAMUNDA VS LAL MUHAMMAD
S.3??Arbitration agreement??Referring matter for arbitration??Object and purpose of??Power of Court to revoke reference??Main object of referring matter for arbitration is to obtain speedy disposal of dispute by avoiding technicalities and intricacies of procedure??Where, however, matter was being unreasonably delayed or arbitrator was causing inexcusable delay, Court had jurisdiction to revoke, reference or authority of nominating arbitrator.
1987 MLD 3001 KARACHI-HIGH-COURT-SINDH
Messrs ASCONS ENGINEERS and CONTRACTOR VS Messrs PAK STEEL MILLS CORPORATION
Arbitration Act 1940 —S.3 [First Sched., Condition No. 11–Arbitration agreement-Condition No. 1 of First Sched. when applicable–Arbitration agreement between parties under which dispute between parties was to be settled in accordance with arbitration procedure, not mentioning name or number of arbitrator–Provision set out in First Sched. of Arbitration Act, held, would be applicable and such dispute would be decided by a sore arbitrator.
1986 CLC 1350 KARACHI-HIGH-COURT-SINDH
KARACHI ELECTRIC SUPPLY CORPORATION LTD. VS CONSORTIUM 2000 P.E.C.H. SOCIETY, KARACHI
Arbitration Act 1940 S. 3–Arbitration agreement–Reference to arbitrator/umpire-Objection to–Party raising objection before arbitrator about jurisdiction over subject-matter–Arbitrator, nevertheless entering upon consideration of same would entitle objecting party to object to such arbitrator’s entering upon reference, then appear under protest, continue to attend proceedings and cross-examine witnesses on points objected to–By adopting such course party, held, would not thereby waive objection, nor would be estopped from objecting against excess of authority by arbitrator–Objection to jurisdiction of arbitrator, would not totally debar arbitrator from proceeding with reference–Question of jurisdiction, however, would ultimately be decided by Court which could pronounce whether ,jurisdiction was assumed rightly or wrongly.–[Jurisdiction] .
1982 CLC 750 KARACHI-HIGH-COURT-SINDH
PAKISTAN REFINERY LTD., KARACHI VS INDUS SHIPPING AND TRADING CO. LTD. KARACHI
3-Umpire, removal of-Umpire acting in such objectionable manner as to amount to legal misconduct-Held, parties to make application for his removal and not duty of Arbitrator to point out such irregularities and misconduct to Umpire.-[Arbitrator].
1981 CLC 828 KARACHI-HIGH-COURT-SINDH
MEHTABUDDIN VS ABDUL SATTAR
3 read with Sched., cl. (l)-Appointment of umpire-Parties appointing even number of arbitrators–Arbitration agreement postulating appointment of umpire only upon difference of opinion-No difference of opinion arising between arbitrators-Held, provision in arbitration agreement having been different from provisions of cl. (2) of Schedule, contrary provision in agreement to prevail portent over provisions contained in cl. (2) of Schedule.-[Arbitrator].
1978 PLD 829 LAHORE-HIGH-COURT-LAHORE
PROVINCE OF PUNJA VS MESSRS INDUSTRIAL MACHINE POOL, LAHORE
3-Reference to arbitration-Law of arbitration-Nothing but law of compromise within framework of agreement of parties if not opposed to public policy-Arbitration not different from conciliation-Open to parties to settle their differences through arbitration Parties have prerogative to enter into as many arbitrations as they deem fit.
1977 PLD 237 SUPREME-COURT
BROOKE BOND (PAKISTAN) LTD. VS CONCILIATOR
31(5) read with Arbitration Act (X of E 940), Ss. 3 read with c(. 7, Sched. T, 46 & 30-Award, questioning of-Awards made under Arbitration Act, 1940 and Industrial Relations Ordinance 1969, though final and non-appealable yet in suitable cases validity of award made under any enactment can be challenged in absence of a contrary provision in enactment sought to be invoked-Nothing to contrary appearing in Ordinance XXIII of 1969, award made under such. Ordinance, held, could be set aside under S. 30, Arbitration Act, 1940, for misconduct of arbitrators.–(Award].
1970 PLD 379 KARACHI-HIGH-COURT-SINDH
KARACHI CO OPERATIVE HOUSING SOCIETIES
UNION LTD.
VS SAFIA BAI AND 12 OTHERS
Arbitration Act 1940 Ss. 3 & 22 —-Arbitration—-Agreement for arbitration-Law does not require drawing up of agreement informal manner.
1970 PLD 69 DHAKA-HIGH-COURT
PROVINCE OF EAST PAKISTAN VS ABDUR RASHID
Arbitration Act 1940 First Sched, Art. 3 read with S. 3-Award-Arbitrator called upon to act on 22-6-66, but not entering on reference till 18-10-66-Arbitrator, held, failed to use all reasonable dispatch in entering on reference for purposes of making an award within prescribed period of four months and therefore liable to be removed.
1966 PLD 164 DHAKA-HIGH-COURT
MESSRS BADRI NARAYAN AGARWALLA, KHULNA VS MESSRS PAK. JUTE BALERS LTD., DACCA
Arbitration Act 1940 S. 3 read with First Schedule, item 3-Arbitrators cannot “enter on reference” before they are ‘appointed-Reference to Tribunal of Arbitration of Chamber of Commerce made on 1-4-57 and Court of arbitration constituted on 21-5-57-Award made on 21-8-57 (within four months of constitution of Court)-Cannot be said to have been made beyond time-Award not a nullity.
1964 PLD 490 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD AKRAM VS CH. MUHAMMAD SALIM
Ss. 3 & 13-Award-Mere absence of arbitration agreement-Does not change nature of award (Per S. A. Mahmood, J.).
1959 PLD 43 KARACHI-HIGH-COURT-SINDH
GHUFRAN AHMAD VS
Arbitration Act 1940 S. 3 and Schd. I, S. 1-Arbitration Agreement silent on number of arbitrators and manner in which arbitrators to be appointed-r-Reference presumed to be made according to provisions of Schd. I-Matter referred to more than one Arbitrator-Award, inoperative.
1958 PLD 378 KARACHI-HIGH-COURT-SINDH
HAJI SATTAR HAJI MUHAMMAD AND 9 OTHERS- VS ABDUL KARIM HAJI ISSA AND 3 OTHERS
Arbitration Act 1940 S. 3 and First Schedule-Contents of First Schedule-Do not have force of statutory provisions-Can be regarded as implied terns of arbitration agreement.
1955 PLD 268 SINDH-CHIEF-COURT
(MESSRS) SIND COTTON EXPORTERS VS (MESSRS) A. B. SADIQ BROTHERS
Arbitration Act 1940 S. 3 and paragraph 2 of Schedule I-Appointment of Umpire-Time-limit-According to agreement of parties, failing which, within 30 days from latest date of respective appointments of arbitrators.
1954 PLD 241 SINDH-CHIEF-COURT
MESSRS OVERSEAS COTTON CO. VS MESSRS S. M. FAZAIL & CO.
Arbitration Act 1940 ——S. 3 and Sched. 1, S. 2 Para. 2-Time limit as to appointment of umpire may be modified by agreement to refer.
1954 PLD 58 LAHORE-HIGH-COURT-LAHORE
NAWAB DIN VS ABDUR RASHID
Arbitration Act (X of 1940), Para. 3, First Schedule–Case remitted to arbitrator–Award should be made within four months from date of entering on reference-Court-can however extend time.