My opinion on your queries are as under:
Q1. I have signed on Standard “ Vakalat Nama “ with my Lawyer and submitted it to Arbitrator. I am feeling that my Lawyer is cheating me and is incompetent in dealing with my case. Can I change my Lawyer in between the proceedings? Moreover, we have only a verbal agreement of payment of fees.
Opinion: Yes, you can change your lawyer at any stage of the case or proceedings after obtaining a NOC from your lawyer.
Q2. Can the cost of litigation and expenses incurred on hiring a lawyer be recovered from opposite party on winning the case? If yes, is there an upper limit on that? Suppose my lawyer had charged Rs 50,000 for a representing me in arbitrator proceedings /court of law. After winning the case can I get whole amount of Rs 50,000 back or is there some fixed amount or it depends on the discretion of judge which may vary from case to case.
Opinion: If you win the case then the total cost of the litigation can be claim including the Fee of lawyer paid by you, there is no specific rule for fixation of amount.
Q3. I have seen the judgements where decision of arbitrator (solely appointed by the employer as per the service rules ) has giving decisions in favor of the employer(for obvious reasons).It is challenged by the employee in court of law where court citing valid arguments sets aside the judgment of the arbitrator but again refers the case to the Arbitrator. This seems to be the never ending loop. How to get out of it .
Opinion: If there is any arbitrary ordre passed by the arbitrator then the aggrieved party may file an application against that order before District Court Under section 34 of Arbitration & Conciliation Act.
read as under:
34. Application for setting aside arbitral award.
1. Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3).
2. An arbitral award may be set aside by the Court only if-
a. the party making the application furnishes proof that-
i. a party was under some incapacity, or
ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
iii. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
b. the Court finds that-
i. the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
ii. the arbitral award is in conflict with the public policy of India. Explanation.-Without prejudice to the generality of sub-clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.
3. An application for setting aside may not be made after three months have elapsed from the date on which die party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had bow disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
4. On receipt of an application under sub-section (1), the Court may, where it is 16 appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
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