This is the second part of the article. The first part covering 30 judgments may be read here. (xxxiii)Court should not substitute its subjective satisfaction of urgency to grant interim measures with that of the Arbitral Tribunal Filing of Statement of Claim under S. 23 cannot be treated as a sine qua non for the maintainability of an application for interim protection under...
This is the second part of the article. The first part covering 30 judgments may be read here.
(xxxiii)Court should not substitute its subjective satisfaction of urgency to grant interim measures with that of the Arbitral Tribunal
Filing of Statement of Claim under S. 23 cannot be treated as a sine qua non for the maintainability of an application for interim protection under S. 17.
In Mr. Sanjay Arora & Anr. v Mr. Rajan Chadha & Ors. High Court of Delhi held that where the Arbitral Tribunal has returned a finding of urgency, supported by factual material, then, if the material is not found to be incorrect or irrelevant, the question of whether the material denotes urgency of a degree sufficient to grant interim protection is, essentially, a matter relating to the subjective satisfaction of the learned Arbitral Tribunal and the Court should not interfere with the same. The Court further held that read conjointly, S. 21 and 17 (as amended) empower the Arbitral Tribunal to pass orders in terms of S 17 at any point of time and thus there is no requirement of filing of statement of claim prior to filing an application u/s 17.
(xxxiv)Notice u/s 21 is sine qua non and there is no set form of the notice prescribed under the Act but nevertheless, the notice must specify that arbitration is being resorted to.
In De Lage Landen Financial Services India Pvt. Ltd. v Parhit Diagnostic Private Limited & Ors. High Court of Delhi observed that the notice u/s 21 of the Act is a request for initiation of arbitration proceedings, by reference of disputes to arbitration and the significance of such a notice is evident from the language of S. 21 which prescribes the date of commencement of arbitral proceedings and limitation will begin to run from the date when there is failure to appoint the Arbitrator. Court held that there is no defined or specific requirement as to the form of the notice prescribed under the Act but nevertheless, the notice must specify that arbitration is being resorted to. The Court held that the notice given in the facts of the case at hand complied with the requirement of such a notice as it gave notice to the Respondent that Petitioner would take recourse to legal proceedings under the agreement and thus it rejected the Respondent's objection that the S. 11 petition was premature due to non- compliance of S. 21. Court held that basic purpose of such a notice which is to have notice of Petitioner's intent to arbitrate, choice of Arbitrator, and identification of claims stood satisfied.
(xxxv)3 years for considering if claims are within limitation is to be reckoned from date of S. 21 notice and not date of filing of statement of claims
In Oil India Limited v Techno Canada Inc., High Court of Delhi held that for considering the question whether a claim was barred by limitation, the notice issued under S. 21 of the Act was relevant and not the date when the Statement of Claims was filed and period of limitation would end on receipt of notice u/s 21. The Court thus held that the Arbitral Tribunal had rightly held the claims to be within limitation.
(xxxvi)No scope for adding pre-award interest into the principal amount for calculating post-award interest by applying Section 31(7)(b) of the Act when the Tribunal has only awarded post-award interest on principal sum
In Overeas Drilling Limited v Directorate General Of Hydrocarbons Of India High Court of Delhi was dealing with a case where the Arbitral Tribunal had awarded post award interest only on the principal amount and the Appellant was seeking to claim post award interest on the principal as well as pre- award interest relying on S. 31(7)(b) as also the judgment of the Supreme Court in Hyder Consulting (UK) Limited v Governor, State of Orissa. The Court negativated the said contention as it held the arbitral award being explicit on the interest for the post-award period, the same has primacy over the default provision of S. 31(7)(b) of the Act. The Court also rejected Appellant's prayer for grant of post- award interest on costs by relying on S. 31(7)(b) as it held that u/s 31A(4) it was for the Arbitral Tribunal to grant interest, if any, on the costs, fixed and in absence of such grant, the appellant cannot rely on S. 31(7)(b) of the Act for grant of interest on the cost fixed by the Arbitral Tribunal.
(xxxvii)Merely because the contentions of the parties were extensively noted does not in any manner indicate that the findings rendered by the Arbitral Tribunal are unreasoned
In ITMA Hotels India Pvt Ltd. v M/s. Ammtys Interior (India) Projects Pvt Ltd. High Court of Delhi rejected the contention that the impugned award is unreasoned and falls foul of the provisions of S. 31 of the Act. It found that when a plain reading of the award, indicates that the reasons are articulated and the Arbitral Tribunal has provided sufficient reasons for the conclusions drawn by it, it cannot be said to be unreasoned. Further held, that merely because the contentions of the parties were extensively noted does not in any manner indicate that the findings rendered by the Arbitral Tribunal are, unreasoned.
(xxxviii) Only principles under O. XLI R. 5 and no other factor should be considered while dealing with a stay of arbitral award
In Toyo Engineering Corporation & Anr. v Indian Oil Corporation Ltd. Supreme Court reiterated that in dealing with application for stay of arbitral award, Order XLI Rule 5 principles are to be followed. The Court held that the discretion should not be exercised to grant stay on limited deposit only because large amounts are involved or that Government corporations have to pay the amounts and set aside order of partial deposit and directed full deposit.
(xxxix)Set aside award of future interest above 9%
In National Projects Construction Corporation Ltd. v M/s. Interstate Construction Company High Court of Delhi set aside the award to the extent it awarded future interest at the rate exceeding 9% p.a. from date of award till date of payment. It held that the Arbitral Tribunals' reasoning to award future interest @18% p.a. relying on S. 31(7)(b) was ex facie erroneous as the said section had been substituted by the 2015 amendment. It held that in terms of the amendment, the current rate of interest was to be seen and as the rate of interest had fallen considerably in the second decade of this century, the award in excess of 9% p.a. was liable to be set aside.
(xl)In case of contracts pertaining to public utilities there is a presumption of losses even without proof but the same is rebuttable
In NTPC Vidyut Vyapar Nigam Limited v Symphony Vyapar Private Limited & Anr. High Court of Delhi held that it is well settled that in case of contracts pertaining to public utilities, it is difficult to quantify the damages with any precision and therefore, it may not be necessary for the same to be proved. It further held that in such cases, it is assumed that a breach on the part of a party contracted to execute works in respect of such utilities results in a loss but such a presumption is rebuttable and does not preclude the party against whom claim of damages is made from establishing that no loss had been caused on account of its acts. In the facts of the case before it, the Court held that the presumption of loss did stand rebutted and thus the award of the arbitrator ordering release of bank guarantee cannot be faulted.
(xli) Refusal of arbitrator not to consider enhanced value of claims not specifically referred to it correct
In M/s. H.R. Builders v Delhi State Industrial & Infrastructure Development Corporation Ltd. High Court of Delhi was dealing with a challenge to an arbitral award where the Arbitrator had refused to adjudicate on the enhanced value of a particular in view of the fact that the same was beyond the original reference to arbitration. The Court held that while admittedly, the said disputes were not referred to the Arbitral Tribunal and its decision not to consider the same, cannot be faulted and no ground exists to challenge the award on the said ground and the remedy of the Petitioner would be for taking steps for reference of the additional claims to arbitration.
(xlii) Where it is possible to prove actual damage or loss, such proof is not to be dispensed with u/s 74
In Solar Energy Corporation Of India Ltd v M/S MBP Solar Pvt Ltd High Court of Delhi while upholding Arbitral Tribunal's finding that loss has not been proved by the Petitioner to justify retention of encashed PBG, held that damage or loss is a sine qua non for the applicability of the S. 74. The expression found in the said provision, "whether or not actual damage or loss is proved to have been caused thereby", means that where it is possible to prove actual damage or loss, such proof is not to be dispensed with. The Court held that was imperative for the Petitioner to have pleaded that it had suffered loss, and the amount recovered under the PBG is towards reasonable compensation under a pre-estimation clause.
(xliii) Rejection of claims due to non-incorporation of arbitration clause upheld
In Emaar MGF Construction P. Ltd. v Delhi Development AuthorityHigh Court of Delhi upheld the award rejecting the claims of the Petitioner on the ground that there was no arbitration clause in the agreement from which they arose. The Court rejected the contention of the Petitioner that the arbitration clause stood incorporated from the earlier agreement between the same parties containing the arbitration clause. The Court held the mere fact that the latter agreement inter alia recorded that the parties had agreed that "all other stipulations, liabilities, duties and responsibilities of either party under the DDA [2007 Agreement] shall remain unaffected by this agreement" [2009 Agreement] did not in any manner indicate that the parties had agreed to , by reference, incorporate the arbitration clause.
(xliv) Formula under general escalation clauses in infrastructure contracts can be applied by arbitrator even if clauses not made specifically applicable
In Delhi Development Authority v Swastic Construction Company High Court of Delhi while upholding the award of the arbitrator held that that the formula provided under Clause 10C, 10CA and 10CC can be relied upon for assessment of damages, even if the said clauses are not specifically made applicable. It held that the aforesaid provisions could thus be used by the Arbitrator to assist him to work out the amount of damages and the use of the applicable formulas as provided under the aforenoted clauses, is a discretion and prerogative of the Arbitrator for assessing damages.
(xlv)Courts cannot re-appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award
In Delhi Airport Metro Express Pvt. Ltd. v Delhi Metro Rail Corporation Ltd. Supreme Court observed that despite it consistently having interpreted S. 34 of Act to stress on the restraint to be shown by courts while examining the validity of the arbitral awards, there is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award. It observed that this approach would lead to corrosion of the object of the 1996 Act and the endeavours made to preserve this object, which is minimal judicial interference with arbitral awards. It reiterated that patent illegality should be illegality which goes to the root of the matter and every error of law committed by the Arbitral Tribunal would not fall within the expression 'patent illegality'. It held that erroneous application of law cannot be categorised as patent illegality nor can contravention of law not linked to public policy or public interest and it is prohibited for courts to re-appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award, as courts do not sit in appeal against the arbitral award. The permissible grounds for interference with a domestic award u/s 34(2-A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one, or interprets a Clause in the contract in such a manner which no fair-minded or reasonable person would, or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. The Court set aside the order of the High Court setting aside the arbitral award holding that that a possible view expressed by the Tribunal on construction of the terms of the agreement cannot be substituted by the High Court.
(xlvi)Clause which provided appointment of arbitrator from a panel of names in sequential preference is not violative of S. 12(5)
In Select Realty And & Ors. v Intec Capital Limited High Court of Delhi rejected the challenge to an arbitral award on the ground that the appointment of the arbitrator, who arbitrated on the dispute, was illegal and reliance was sought to be placed on Perkins Eastman Architects DPC v. HSCC (India) Ltd. The Court observed that the judgment in Perkins(supra) did not relate to a challenge against an award which stands passed. It further held that the clause in question where the parties had by consent in the agreement itself agreed to a panel of named arbitrators out of which one was to be chosen on basis of sequential preference was not violative of S. 12(5) or covered by the judgment in Perkins (supra) as it would not be a case of unilateral appointment.
(xlvii) Period of one month cannot be taken one day less than the corresponding date for every one month for calculating 3 months u/s 34(3)
In Union of India v M/s Rama Contractor High Court of Delhi rejected the contention of the Respondent that the period of limitation of three months as mentioned in S. 34(3) of the Act is required to be construed as three calendar months and, the period of one calendar month would expire one day prior to the corresponding date in the month following the date from which the period is required to be reckoned. Respondent had relied on the judgment in the case of Union of India v. Wishwa Mittar Bajaj & Sons & Anr. The Court placing reliance on the judgment in the case of State of Himachal Pradesh & Anr. v. M/s Himachal Techno Engineers & Anr. held that period referred in S. 34(3) is 3 calendar months and not 90 days. The Court held that the calculation of period of months as submitted by Respondent and as taken in case of Wishwa Mitter(supra) that the period of one month would be one day less than the corresponding date for every one month is erroneous. It held that if the said method of calculation is carried to a logical end, the period of twelve months from 1st January of any year would lapse on 18th December. However, the Court found the petition otherwise time-barred as it did not find the Petitioner entitled to benefit of S. 14 of Limitation Act as it held that the application seeking condonation of delay did not satisfy the necessary conditions of S. 14 as there was no averment petitioner had pursued the above petition diligently before the learned District Court and on bonafide belief that it was the correct forum.
(xlviii)No principle of law that mandates that damages must be allowed on normative basis in all cases.
In Siddharth Constructions Co. v India Tourism Development Corporation Ltd. High Court of Delhi rejected the challenge to the award on the ground of alleged wrongful rejection of the claim for loss of profit. It was the case of the Petitioner that the Arbitrator having held the petitioner entitled to extension of time should as a corollary have allowed the claim for losses on account of delay. The Court held finding that the petitioner was entitled to extension of time for completion of delay on account of reasons not attributable to it does not mean that the Arbitral Tribunal had found ITDC to be responsible for delay in completion of the works and in breach of the Agreement. The Court further held that the Arbitral Tribunal was not compulsorily required to accept the claim of losses on normative basis and held the Arbitral Tribunal's decision to not accept the petitioner's claim as the petitioner had failed to produce proof of actual damages, cannot be faulted.
(xlix)Arbitral Tribunal can award interest for the pre-reference period and yet deny pendente lite interest, but the said denial is required to be informed by reason
In M/s Poysha Packaging Private Limited And Anr v The Oriental Insurance Co. Ltd. & Anr High Court of Delhi held that although it may be open for the Arbitral Tribunal to award interest for the pre-reference period and yet deny pendente lite interest, the same is required to be informed by reason. In the case at hand, the Court found that there is no plausible reason for the Arbitral Tribunal to have not awarded pendente lite interest after concluding that the petitioner was entitled to interest as it was deprived of the use of money and thus set aside the Arbitral Award in respect of the petitioner's claim to the extent that it does not grant pendente lite interest to the petitioner.
(l) If Arbitral Tribunal is proscribed to award any interest by agreement, it would have no jurisdiction to award the same as compensation u/s 70
In M/s IRCON International Limited & Anr. v M/s Cannon Engineering Construction 'Cannon Cottage' High Court of Delhi held that if the contract proscribes the Arbitral Tribunal to award preaward interest; the Arbitral Tribunal could not do so by camouflaging the same as compensation under Section 70 of the Indian Contract Act, 1872 and thus set aside the award of such compensation. The Court, however clarified, that does not mean that a party is not entitled to claim interest, if it is otherwise entitled to do so, by instituting an appropriate action in accordance with law.
(li) An arbitral award cannot be considered non est if it is not stamped for the purposes of computing limitation u/s 34(3)
In NCS Sugars Ltd. v P E C. Limited High Court of Delhi rejected the contention of the Petitioner that period of limitation for filing a petition u/s 34 would only start from the date a duly stamped copy of the award is supplied to the petitioner. The Court held that contention that an arbitral award cannot be considered as such and is non est till it is stamped is misconceived and an instrument that requires to be stamped does not cease to be one if it is not stamped and thus an arbitral award is an award even if it is not stamped.
(lii)Execution petition not to be entertained prior to the expiry of the period as stipulated by S. 34(3) of the Act and if there is some grave exigency and some interim orders are to be sought, a petition under S. 9 can be filed by the decree holder
In Gati Kausar India Ltd. v B. K. Structural Contracts Private Ltd. High Court of Delhi was dealing with a case where the execution petition had been filed and entertained prior to the expiry of period of 90 days from the date of the Award but the Executing Court had issued warrants of attachment only after expiry of the period of limitation u/s 34. The Court held that it is necessary to sensitize all the judicial officers, including the Executing Courts, that an application seeking execution of the arbitral Award ought not to be entertained prior to the expiry of the period of 90 days as stipulated by S. 34(3) of the Act and if there is some grave exigency and some interim orders are to be sought, a petition under S. 9 can be filed by the decree holder.
(liii)Award set aside as no finding returned by arbitrator qua principal contention of Respondent having a bearing on entitlement for relief
In Bentwood Seating System P Ltd. v Airport Authority Of India, High Court of Delhi upheld the setting aside of the award by the Single Judge on the ground that one of the principal contentions, which had a vital bearing on entitlement of claim raised by the Respondent had not been considered and adjudicated upon by the arbitrator. The Court held that it being a case of no finding rather than a finding not supported with reasons, the Single Judge was right in not taking recourse to Section 34(4) of the Act.
(liv) Extended timelines for filing S. 34 Petitions in light of orders of Supreme Court to be followed
In Union of India v Naresh Kumar Gupta & Co Pvt Ltd. High Court of Delhi set aside the order of the District Court dismissing the petition u/s 34 on ground of limitation by relying on the judgment in Union of India vs. Popular Construction Company. The Court held that the concerned Court ought to have taken note of the orders passed by the Supreme Court extending limitation, generally, which also applied to limitation prescribed under special laws, such as, the Arbitration & Conciliation Act and thus reliance on judgment on Popular Construction (supra) was misplaced for dismissing a S. 34 petition filed with regards to an award passed after 15.03.2020 when the orders passed by the Supreme Court in exercise of powers under Article 142 read with Article 141 were in operation.
(lv)With respect to a claim qua which award had been set aside, Court by consent, appointed new arbitrator to decide on basis of pleadings as on record.
In United India Insurance Co. Ltd. v Worldfa Exports Pvt. Ltd , Division Bench of High Court of Delhi, set aside the award qua a particular claim under S. 37. Further, in view of the fact that, the award qua said claim is ambiguous, which cannot be set right in appeal, given the view taken by the Supreme Court in the case of Project Director, National Highways No. 45E and 220 National Highways Authority of India versus M. Hakeem and Another, the Court, with consent of parties appointed a new arbitrator for adjudication of the same while disposing off the appeal and directed that the new arbitrator would decide based on the pleadings already on record, as agreed by the parties.
(lvi) A dispute arises only when there is a claim and denial/repudiation of the claim for purposes of limitation
In South Delhi Municipal Corporation v M/s. Anand Prakash Gupta High Court of Delhi while reiterating the limited scope of interference u/s 37, rejected the challenge to the dismissal of the S. 34 petition premised on the ground that the Arbitrator and District Court fell in error in deciding time barred claims. The Court held that it is settled law that and that can only be a dispute when a claim is asserted by one party and denied by the other party on whatever grounds. The Court further held that in the present case, there has been no denial of the claims by the Appellant but only been a deferral of payments in the present case on the ground that the matters were under investigation by the CBI and the records were lying with CBI and thus the claims could not be considered time barred. It further took note of the fact that there had been acknowledgement of debts in the RTI replies by the Appellant and observed that continuing to acknowledge the debt in terms of S. 18 of the Limitation Act each year constitutes a fresh cause of action and thus a fresh period of limitation will run from each of such acknowledgment.
(lvi) Separate fees payable on claims and counter claims
In NTPC Ltd. v Afcons R.N. Shetty and Co. Pvt. Ltd JV, High Court of Delhi was dealing with a case where the Petitioner had challenged the fixation of fees by the Arbitral Tribunal on the ground that fees as per the Fourth Schedule are to be reckoned on the total of the claim and counter-claims, and not individually on each. The Court held that the scheme of 1996 Act is such that the provisions of S. 38(1), 31(8) and 31A are inextricably interlinked and these provisions cannot be read in isolation. The expressions "deposit", "costs" and "fees" are, therefore, intertwined by statute, and, as the interpreter thereof, the Court can hardly extricate them from each other. The Court held that proviso to S. 38(1) provides that, where the arbitral tribunal is seized of claims and counter-claims, it may fix separate amount of deposit for each. Further held that while there is no doubt, the use of the word "may" does involve an element of discretion; but, if the arbitral tribunal does fix separate fees for the claims and counter-claims, it cannot be held that it has acted irregularly, or contrary to the statutory mandate.
(lvii) Delay in filing in application for enforcement can be condoned on ground of uncertainity in law till it was settled by Supreme Court.
In Reebok International Limited v Focus Energy Limited, High Court of delay condoned the delay in filing of an application for execution/enforcement of a foreign award. The Court noted that the Supreme Court in Government of India v. Vedanta Ltd., decisively held that the limitation for filing of an application for execution/enforcement of a foreign award is required to be reckoned on the basis of Article 137 of the Schedule to the Limitation Act, 1963 and thus an application for execution of the award is required to be moved within three years of passing of the award. The Court noted that till the rendition of the judgment of the Supreme Court in Vedanta(supra) , there was a flux in the legal position , with several High Courts holding that period for filing enforcement is 12 years and in para 78 of Vedanta (supra), the Supreme Court recognised the right of the award holder, to seek condonation of delay on the ground of uncertainty in the law. Thus in view of the fact that the enforcement had been filed within 12 years and also taking note of the fact that S. 34 had been pending and awards also stood stayed by operation of statute, under the pre-amendment Section 36, the Court condoned the delay.
Section 47 & 48
(lviii)Scope of S. 48 explained
In Gemini Bay Transcription Pvt. Ltd. v Integrated Sales Services Ltd. & Anr., Supreme Court was dealing with a case where non-signatories to arbitration agreement against whom a foreign award had been passed were resisting the enforcement of the same. It firstly held that S. 47(1)(c) being procedural in nature does not go to the extent of requiring substantive evidence to "prove" that a non-signatory to an arbitration agreement can be bound by a foreign award and S. 47(1)(c) speaks of only evidence as may be necessary to prove that the award is a foreign award as per 6 ingredients of S. 44. Further held, that expression "proof" in S. 48 would only mean "established on the basis of the record of the arbitral tribunal" and such other matters as are relevant to the grounds contained in S. 48. The Court held that a non signatory's objection cannot possibly fit into S. 48(1)(a) which only refers to parties but it clarified it may perhaps be open in an appropriate case for a non-signatory to bring its case within Section 48(2) read with Explanation 1(iii). It held that the "public policy of India" ground after the 2015 amendment does not take within its scope, "perversity of an award" as a ground to set aside an award in an international commercial arbitration under S. 34, and concomitantly as a ground to refuse enforcement of a foreign award under S. 48. Lastly held, S. 48 does not contain any ground for resisting enforcement of a foreign award based upon the foreign award being contrary to the substantive law agreed to by the parties and which it is to apply in reaching its conclusion.
(lix)A legislative enactment cannot curtain a constitutional right, but at the same time the High Court in exercise of its power under Article 227 of the Constitution cannot frustrate the intent and purpose of the Act
In Ambience Projects & Infrastructure Pvt. Ltd. v Neeraj Bindal High Court of Delhi refused to entertain a petition under Article 226 challenging the order of the arbitrator dismissing the application of the petitioner by which it had sought to aver that the dispute is non-arbitrable. Court rejected the contention of the petitioner that it would be left remediless and held that the petitioner would have its remedies under S. 34 read with S. 16 of the Act. It took note of the fact that the Court while appointing the arbitrator had left the plea of arbitrability to be decided by the arbitrator and the Petitioner could thus not seek to circumvent the scheme of the Act. It held that in case of dismissal of an application under S. 16 of the Act by the Arbitral Tribunal, the Court can exercise writ jurisdiction only when such order is so perverse that it is indicative of a patent lack of jurisdiction
(lx) Provisos to S. 24(1) cannot be read to take away the absolute discretion of the arbitral tribunal as provided under S. 24(1) of the Act, or as making the presentation of evidence through oral hearing procedurally mandatory.
In Telecommunication Consultants India Limited v B. R. Sukale Construction High Court of Delhi was dealing with a petition under Article 227 by which the Petitioner had assailed the order passed by the Arbitrator by which it had rejected the request of petitioner for leading evidence and directly fixed the matter for arguments. The Court held that no exceptional circumstances or exceptional rarity have been demonstrated/made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are, there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. The Court, on merits, found that admittedly there is no agreement between the parties with regard to the procedure for carrying out the arbitration proceedings and thus in the absence of any agreement between the parties, the sole arbitrator u/s 24(1) has the absolute authority to decide on whether to allow evidence in a particular case or to proceed with the adjudication of the matter on the basis of documents and other materials. The Court further rejected the reliance of the Petitioner on the proviso to S. 24 and held that provisos to the main provision cannot be read as taking way the absolute discretion of the arbitral tribunal as provided under S. 24(1) of the Arbitration Act, or as making the presentation of evidence through oral hearing procedurally mandatory.
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