Himachal Pradesh High Court Weekly Roundup: August 14 - August 20, 2023

Nominal Index:Balak Ram Vs NHAI 2023 LiveLaw (HP) 57M/s Kundlas Loh Udhyog vs. M/s SRMB Srijan Pvt Ltd 2023 LiveLaw (HP) 58Om Prakash and another Vs Bishan Dass 2023 LiveLaw (HP) 59Krishan Dev Singh Vs State of Himachal Pradesh 2023 LiveLaw (HP) 60M/s Gujarat Co-Operative Milk Marketing Federation Ltd. V/s Additional E&T Commissioner 2023 LiveLaw (HP) 61Judgments/Orders:Arbitration | Written Consent By Parties Need Not Be In Writing For Extending Arbitral Period: Himachal Pradesh High CourtCase Title: Balak Ram Vs NHAICitation: 2023 LiveLaw (HP) 57The Himachal Pradesh High Court clarified the interpretation of Section 29A(3) of the Arbitration and Conciliation Act and maintained that consent from the parties to extend the arbitral period need not be expressly stated in writing. Instead, consent can be inferred from the parties' acts and conduct during the arbitration proceedings, it emphasised.“Consent of the parties envisaged under Section 29A(3) of the 2015 Arbitration & Conciliation Act for extending the arbitral period need not necessarily be either express or in writing. There can be a deemed consent, an implied consent of the parties, which can be gathered from their acts and conduct. Their acquiescence in proceeding with the arbitration case beyond twelve months without raising any objection to the continuation of proceeding does amount to consent”, Justice Jyostna Rewal Dua observed.Himachal Pradesh High Court Stays Arbitration Proceedings Commenced Without Fulfilling The Pre-Arbitration Condition Of NegotiationCase Title: M/s Kundlas Loh Udhyog vs. M/s SRMB Srijan Pvt Ltd.Citation: 2023 LiveLaw (HP) 58The Himachal Pradesh High Court stayed the arbitration proceedings that were unilaterally commenced by a party without complying/fulfilling the pre-condition of negotiation as mandated by the terms of the agreement between the parties.The bench of Justice Tarlok Singh Chauhan observed that when the dispute resolution clause in the agreement mandates the parties to explore negotiation before resorting to arbitration, and the arbitration would commence only on the failure of the negotiation, the parties have to act in terms of the agreement and not directly invoke the arbitration.Long-Standing Unauthorized Possession Insufficient To Prove Adverse Possession Unless 'Hostile Animus' Unequivocally Established: HP High CourtCase Title: Om Prakash and another Vs Bishan DassCitation: 2023 LiveLaw (HP) 59Clarifying the principles surrounding acquisition of title by adverse possession, the Himachal Pradesh High Court observed that the mere proof of long-standing unauthorized possession is not sufficient to establish adverse possession and that the 'hostile animus' to hold the land as an owner must be established unequivocally."Proof of long standing unauthorised possession can only be a relevant trait for consideration of plea for acquisition of title by adverse possession but cannot be the sole criteria. The underlying principle remains the proof to possess the land of another as owner with requisite hostile animus, as discussed above, and further proof of uninterrupted, open, peaceful continuity of same state for 12 years," Justice Satyen Vaidya observed.Accused Claiming Defence Of 'Unsound Mind' U/S 84 IPC Not Expected To Prove His Insanity Beyond Reasonable Doubt: Himachal Pradesh High CourtCase Title: Krishan Dev Singh Vs State of Himachal PradeshCitation: 2023 LiveLaw (HP) 60The Himachal Pradesh High Court observed that while Section 105 of the Evidence Act places the burden on the accused to prove his insanity during an unlawful act, cases under Section 84 of the Indian Penal Code require the application of "preponderance of probabilities" rather than proving beyond reasonable doubt.“This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the court and the prosecution to decipher the proof qua insanity by not treating it as adversarial”, Justices Tarlok Singh Chauhan and Ranjan Sharma observed.‘Milk Cream’ Can’t Be Classified As ‘Milk’: Himachal Pradesh High Court Upholds Tax DemandCase Title: M/s Gujarat Co-Operative Milk Marketing Federation Ltd. Versus Additional Excise & Taxation Commissioner and AnotherCitation: 2023 LiveLaw (HP) 61The Himachal Pradesh High Court held that ‘milk cream’ cannot be classified as ‘milk’.The bench of Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan Goel, while dismissing the revision petition of Gujarat Co-Operative Milk Marketing Federation Ltd., observed that a scientific or technical meaning of the term ‘milk cream’, as sought to be projected by the assessee, should not be adopted and the popular meaning of milk cream, as is commonly understood, should be taken note of, i.e., that it is a product that is different from milk.

Himachal Pradesh High Court Weekly Roundup: August 14 - August 20, 2023

Basit Amin Makhdoomi

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