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NCLT ALLAHABAD
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DRAT, ALLAHABAD
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Arbitration Law

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Arbitration & Conciliation Act 1996 (with 2016 Amendments) | Amendment 2019

PRACTICE Mr. Nikhil has been practising arbitration for a decade and has not only represented his clients before sole arbitrator or panel of arbitrators but has also been conducting some arbitration proceedings as arbitrator. He believes that arbitration is faster, more convenient and cost-effective than court litigation. The Nikhil Kumar & Associates, Advocates High Court Allahabad has considerable experience in dealing with the provisions of the Arbitration and Conciliation Act 1996 (“Arbitration Act”). We serve clients in arbitration cases, as we:
  • Issue legal notice, on behalf of one of the parties to an arbitration agreement, to the defaulting party invoking arbitration clause and calling for arbitration as per the terms of the contract.
  • File Objection u/s 8 of the Arbitration Act before the Civil Court or High Courts from the side of the defendant/ respondents for referring the matter to arbitration as per the arbitration agreement between the parties.
  • File Application  u/s 9(1)  of the Arbitration Act before the Allahabad High Court for interim order in international commercial arbitration matters.
  • File Application  u/s 9(1) of the Arbitration Act before the Civil Court for interim order in domestic arbitration matters. These application for interim relief are filed before above courts:
    • (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
    • (ii) for an interim measure of protection in respect of any of the following matters, namely:—
      • (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
      • (b) securing the amount in dispute in the arbitration;
      • (c) 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 authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
      • (d) interim injunction or the appointment of a receiver;
      • (e) such other interim measure of protection as may appear to the Court to be just and convenient,

 and the Court shall has the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

  • File Application before the Hon’ble High Allahabad u/s 11(4), 11(5) or 11(6), as the case may be, of the Arbitration Act 1996 for appointing arbitrator in case the parties fail, arbitrators fails to appoint third arbitrtor or if in case the terms of the arbitration agreement demand same, etc.
  • Participate in Arbitration proceeding between parties as lawyer to one of the parties in representative capacity as its advocate.
  • File application u/s 27(1) of the Arbitration Act before the a Civil Court/ Criminal Court for assistance in taking evidence. The parties may file such application only after taking prior leave from the arbitration tribunal/ arbitrators. Such applications specify— (a) the names and addresses of the parties and the arbitrators; (b) the general nature of the claim and the relief sought; (c) the evidence to be obtained, in particular,— (i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required; (ii) the description of any document to be produced or property to be inspected. (3) The Court according to its rules on taking evidence executes the request by ordering that the evidence be provided directly to the arbitral tribunal.
  • File Application u/s 34 for setting aside arbitral award before the District Judge in any District Court of Uttar Pradesh. Limitation 3 Months, from the date on which the party filing such application had received the arbitral award or corrected arbitral award. Beyond 3 Months, delay of only 30 days can be condoned by the court.
  • File Arbitration Execution case before the Civil Court for the enforcement of award like a decree of civil court. Section 36 of the Arbitration Act.
  • File appeal before the Allahabad High Court (u/s 37) against order of Court refusing to refer the parties to arbitration under section 8 of the Arbitration Act;
  • File appeal before the Allahabad High Court against the order of Civil Court granting or refusing to grant any measure under section 9 of Arbitration Act;
  • File appeal before the Allahabad High Court against the order of District Judge setting aside or refusing to set aside an arbitral award under section 34 the Arbitration Act;.
  • File appeal before the Allahabad High Court against an order of the arbitral tribunal where it rules as to the question of its own jurisdiction the Arbitration Act;.
  • File appeal before the Allahabad High Court against an order of the arbitral tribunal granting or refusing to grant an interim measure under section 17 the Arbitration Act.
  • Beside all above Mr. Nikhil Kumar also acts as Arbitrator on being appointed by the parties in writing.

Civil Law Practice

Normally anything that is not criminal comes under the civil and must not be confused with the the property related law. In Civil Law practice deal with follwing statutes and file or appear in cases thereunder before the Hon'ble High Court"   Constitution of India 
  • Writ Petitions.
  Code of Civil Procedure: 
  • Appeals
  • Revision
  • Review
  • First Appeal
  • Second Appeal
  Contempt Applications before the Hon'ble High Court agasin willful defiance of its order by any person. .   Real Estate (Regualtion & Developmenet) Act 2016 
  • Second Appeal before the Hon'ble Court which is known as RERA Appeals. This is filed agaisnt the order of the Real Estate Appellatte Tribunal.
Cooperative Socities Act  

Constitutional Law

  In constitutional law practice, we file writ petitions before the High Court under Article 226 of the constitution of India to protect fundamental or statutory rights of a person. Fundamental rights in India are enshrined in Part III (Articles 12 to 35) of the Constitution of India. There are six fundamental rights recognised by the Indian constitution:
  1. Right to equality(Articles. 14-18): includes equality before the law, the prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, equality of opportunity in matters of employment, the abolition of untouchability and abolition of titles.
  1. Right to Freedom(Articles. 19-22):  includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation, right to privacy, right to life, avoidance of double jeopardy, no self-incriminating evidence etc.
  1. Right Against Exploitation (Articles. 23-24): prohibits all forms of forced labour, child labour and trafficking of human beings.
  1. Right to Freedom of Religion(Articles. 25-28): includes freedom of conscience and free profession, practise, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
  1. Cultural and Educational Rights (Articles. 29-30), and preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
  1. Right to Constitutional Remedies(Articles. 32-35)
 
OUR PRACTICE   
  • The Hon’ble High Court at Allahabad and its benches, like all other high courts in India, have the original extraordinary jurisdiction under Article 226 of the Constitution of India. Under this article, the Hon’ble high court has the power to issue a writ to the state in cases of violation of fundamental rights as enshrined in the constitution of India or at places where there is no alternate and efficacious remedy. However, the alternate remedy is not a bar for the high court to entertain a matter in writ jurisdiction. Mr. Nikhil Kumar and associates practice in this original extraordinary jurisdiction of the Hon'ble High Court by filing writ petitions under Article 226 of the Constitution of India.
 
  • A writ petition is a petition in a form of plaint present before the High Court in its original extraordinary jurisdiction, thereby challenging the action / inaction of the state by taking  grounds of constitutional and statutory  violations and prays for issuance of a writ amongst the five writs available under Article 226 of the Constitution of India. At Nikhil Kumar and associates writ petitions of all five types are filed.
 
  • Under its original extraordinary jurisdiction under Article 226 of the Constitution of India five types of writs that can be issued by the Hon’ble Allahabad High Court and its bench at Lucknow.
Writ of Certiorari Issued for quashing an order of the executive on grounds like:
  • There is no alternative remedy and;
  • The order violates the fundamental or/ and statutory rights of the petitioner or;
  • The authority passing the order has no jurisdiction or;
  • The principal of natural justice were not followed or;.
  • The procedure prescribed in law was not followed.
 Examples:     An order of following effects and issued by the executive:
  • Cancelling any licenses or certificate which gave some vested rights to someone.
  • Imposition of fine on any person.
  • 3.       Stopping a media person from reporting.
  • Illegal Conducting election
  • Illegal Sanctioning of maps
  • Arbitration with state
  • Taxation computation
  • Restraining orders
  • The imposition of NSA on someone
  • False registration of first information report
  • Etc.
Writ of Mandamus A writ of mandamus is issued against state authority and in exceptional circumstances to private persons as well when they are obliged to take some action as per the statute regulating them but the concerned person is not taking the action as per law.
  • You have filed some statutory application but the same is not being processed by the officer responsible to decide same.
  • Certain facilities or requirements under some statute are to be provided but the same is not being followed.
  • Etc.
Writ of Habeas Corpus A writ of  Habeas Corpus is issued against state authority and in exceptional circumstances to private persons as well, where they are asked to produce some person who has gone missing or in the custody of state without following the procedure of law.
  • Detention under NSA
  • Illegal detention
  • Child custody
Writ of Quo Warranto The writ of quo warranto requires a person to show by what warrant an office or franchise is held, claimed, or exercised or Legal procedure by which an entity is stopped from continuing with a particular course of action, by demanding to know by what authority or right it is holding an office or doing any action.
  • An officer occupying an official post without being qualified for that as per the statute
Writ of Prohibition A writ of prohibition is a writ directing the executive to stop doing something the law prohibits. The state may take steps to solve a problem but the process followed the same should be legal.
 
Some important points on Writ Jurisdiction. 
  • High Court under its Writ Jurisdiction can always exercise its jurisdiction under Article 226 of the Constitution of India to see if there was any illegality committed. It has ample powers to take suo motu cognizance of any illegality which might appear from the record. Sources: AIR 1958 All 154 ( S. Barrow v. State of U.P. & Another), AIR 1962 SC 1044 (Calcutta Gas Company (Proprietary) Ltd. Vs State of West Bengal & Ors.), AIR 2006 All 23 (P.R. Transport Agency v. Union of India & Ors.), 2004 (55) ALR 807 (Dr. Ravindra Kumar Goel & Ors. v. State of U.P.), AIR 1959 All 695 (City Board, Saharanpur v. Abdul Wahid,) and 2011 (2) ALJ 116
  • Writ Court cannot oust any petition by saying that the same was not maintainable. However, it is a different matter that the court might choose to interfere or refrain from interfering. Degree of interference would, however, differ from case to case. source: 1999 (1) SCC 741 (U.P. State Cooperative Land Development Bank Ltd. vs. Chandra Bhan Dubey and Others).
  • The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy.
  • The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose - even one for which another remedy may exist.
  • When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast. However, High court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances.
  • High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial 'bull in a china shop' in the exercise of its jurisdiction under Article 226.
  • The writ court cannot oust any petitioner at the very outset by saying that a writ petition at his or her behest would not be maintainable and cited 1986 (2) SCC 594 (Chaitanya Kumar & Ors. vs. State of Karnataka & Ors). The court cannot close its eye to any illegality and uphold the mischievous acts of any Government executive whatsoever. If at the very first instance it is apparent from the record that a mischievous act was being upheld by the executive by their omission or by their active assistance then nobody should be stopped from coming to the writ court.
  • Meaning of "aggrieved person" is very broad and in the definition of an "aggrieved person", a personal harm had not to be essentially given out. A person could be aggrieved by the happenings around him. He can feel aggrieved by the action or omission of the executive which affects him as also his acquaintances. Definitely a person who makes a sweeping allegation of misdeeds or of omissions would not be allowed to approach the writ court but such a person who bonafidely comes across a misdeed which was taking place around him definitely can approach the writ Court.

Corporate Law

Read our Blog on Corporate Laws practice.
Click here to visit our NCLT Page to know about the corporates law practice of the firm.
The firm practices corporate law in:  
  • Companies Act, 2013. 
  • Insolvency and Bankruptcy Code,  2016.
  In corporate law we practice in:
  • issues relating to the incorporation of a company, striking off, articles of association of a company.
  • issues pertaining to credits taken by the company. we draft all sort of contracts for a credit facility, securities etc.
  • oppression and mismanagement
  • insolvency
  • recovery of corporate debt for a financial creditor
  • recovery of corporate debt for an operational creditor
  • merger, amalgamation, compromise etc. scheme sanction from the tribunal
  • all other company matters.
 

Criminal Law

Read our blog on Criminal Law for the latest articles on criminal law. 
Download|  Indian Penal Code  |   Criminal Procedure Code | Evidence Act
PRACTICE At Nikhil Kumar & Associates advocates practice criminal law to its core. Our practise areas in criminal law at Allahabad High Court include: Criminal Writs are filed in Allahabad High Court: 
  • for registration of First Information Report (in exceptional facts and circumstances).
  • for free, fair and expediting the investigation in First Information Report.
  • for quashing/ cancelling of First Information Report.
  • for providing police security to the witness or a victim in a criminal trial.
  • to transfer of investigation from Police to SIT, CID, CBI or any other special IO.
  • to transfer investigation from one state to another state.
  • to quash detention order against a person under the National Security Act.
  • against any arbitrary act of the Investigating Officer/Police during investigation like the use of torture against the accused, forcing the accused to give evidence which is self-incriminating in nature etc.

Bail Applications in High Court: 

  • Anticipatory Bail: An anticipatory bail application is filed in case police is hounding the accused person to arrest in a false, frivolous and concocted FIR. We represent the accused as well opposes anticipatory bail application from the side of the victim.
  • Regular Bail: A regular bail application is filed in the Hon'ble Allahabad High Court through an advocate once a bail application of the accused is rejected by the Session court and the accused person is already in judicial or police custody. We represent the accused as well as opposes bail application from the side of the victim.
  • Bail Cancellation Application: An application of cancellation of bail is filed against an order of bail given to accused by the court. It is most of the times filed by the victim on grounds like the accused suppressed material facts in his bail application like about his criminal history etc., filed false affidavit etc. There can a bail cancellation application where the accused may be jumping the conditions of the bail like threatening the witnesses or the victim to turn hostile in the criminal trial. We represent the victim as well as accused in bail cancellation applications.
  • Bail Application during Criminal Appeal: A bail application is filed during the pendency of criminal appeal against the conviction order of the trial court. This is based on the merit of the order passed by the trial court.
  • Second Bail Application: Second bail application is filed for the release of the accused from prison where the first/regular bail application has been rejected by the court and in that bail application the accused had failed to inform the court about some very important facts and circumstances to the court and the court did not consider same while rejecting the bail though same were mentioned in the first bail application. The second bail is also filed where there is change in circumstances of the case like some witnesses may have deposed in favour of the accused etc.

An application under section 482 of Cr.P.C. before High Court: 

  • for quashing of a charge sheet filed by police
  • for quashing of a non-bailable warrant.
  • for quashing summoning order in a complaint case.
  • for quashing the entire complaint case itself.
  • for quashing an order of magistrate or session court where any remedy in the form of revision is not a statutory right.
  • for expediting the trial.
  • against an order of the trial court where evidence is not being properly recorded by the court.
  • against an order of the trial court where defence witnesses are not being summoned.
  • against an order of the trial court which is not a final order under the proceedings.

Criminal Appeal

  • Criminal Appeal by the accused against conviction.
  • Criminal Appeal by the victim against acquittal.

Criminal Revision

 

Family Law

Read all our blog posts articles on family law.

  • Family matters before Allahabad High Court in its extraordinary writ jurisdiction. This is an exceptional jurisdiction and needs a high degree of satisfaction for the court to entertain the petition on the basis of the facts and circumstances of the specific case. Nikhil Kumar & Associates, Advocates High Court Allahabad represent the victims either as a petitioner or as respondent for:
      • Protection of married couple against first information report lodged by the guardians of the groom or bridegroom.
      • Quashing of first information report lodged by the family of the girl against the boy.
      • Protection of voluntarily married adult couple from their family.
      • Habeus Corpus petition against the family, guardian, relative or friend of married girl where a married girl has been detained by either of them.
      • Habeus Corpus petition for custody of a child.
      • Quashing of first information report lodged by wife against husband and his family under section 498A and other sections of the Indian Penal Code.
      • Mediation in the matters of 498A; cruelty to married women for want of dowry.
  • Civil Cases in Family Law at Allahabad High Court in its Appellate Jurisdiction.
      • An appeal against the order of Maintenance.
      • An appeal against the order of Child Custody.
      • An appeal against the order of restitution of conjugal rights.
      • An appeal against the order of Divorce.
      • An appeal against an order passed under the Domestic Violence Act.
  • Criminal Cases in Family Law
      • Quashing of the Charge sheet filed by police against husband and his family in 498A IPC case by invoking the inherent power of the High Court under section 482 of Cr.P.C.
      • Representing the wife in the Quashing of the Charge sheet filed by Husband before the high court.
      • Quashing of cognizance taken by the Police in Domestic Violence matter.
      • revision under Section 397/401 of Cr P C against a judgment and order passed by the Court of Sessions under Section 29 of the DV Act, 2005

Read our blog on family law