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Complete Supreme Court Yearly...

Complete Supreme Court Yearly Digest 2022 Part-1

LIVELAW NEWS NETWORK

12 Feb 2023 11:56 AM GMT

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Aadhaar

Aadhaar Act 2016 - UIDAI directed to issue Aadhaar cards to sex workers without insisting proof of residence. Budhadev Karmaskar v. State of West Bengal, 2022 LiveLaw (SC) 525

Act of God

Act of God - Meaning - When nothing of any external natural force had been in operation in a violent or sudden manner, the event of the fire in question could be referable to anything but to an act of God in legal parlance. (Para 53-55) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13 : (2022) 6 SCC 223

Administrative Law

Administrative Law - Administrative/executive orders or circulars, as the case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the Legislature in the Statute. (Para 30) Bharat Sanchar Nigam Ltd. v. Tata Communications Ltd., 2022 LiveLaw (SC) 792 : 2022 (14) SCALE 1

Administrative Law - Appeal challenging adverse Remarks made in the Allahabad HC judgment regarding a Statutory authority - Allowed - Even if the High Court found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or omission on the part of the Assessing Authority or the Registering Authority; or that any 'tactics' were adopted. Chandra Prakash Mishra v. Flipkart, 2022 LiveLaw (SC) 359 : 2022 (6) SCALE 40

Administrative Law - Every erroneous, illegal or even perverse order/action by a Statutory authority, by itself, cannot be termed as wanting in good faith or suffering from malafide - For imputing motives and drawing inference about want of good faith in any person, particularly a statutory authority, something more than mere error or fault ought to exist. (Para 13, 16) Chandra Prakash Mishra v. Flipkart, 2022 LiveLaw (SC) 359 : 2022 (6) SCALE 40

Administrative Law - For holding the action of the Executive to be arbitrary, there must be a factual basis. (Para 13) State of Maharashtra v. Shaikh Mahemud, 2022 LiveLaw (SC) 363 : 2022 (6) SCALE 104

Administrative Law - Inter-departmental communications cannot be relied upon as a basis to claim any right - Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and second, it has to be communicated. (Para 14-15) Mahadeo v. Sovan Devi, 2022 LiveLaw (SC) 730 : AIR 2022 SC 4071

Administrative Law - The decision of the State in its executive power cannot be contradictory to the express provision of the statutory Rules, but where the statute and Rules are silent, the State Government, in exercise of its executive power, is competent to supplement the rules. The executive power of the State is to supplement and not supplant. Director of Teacher's Training Research Education v. OM Jessymol, 2022 LiveLaw (SC) 759

Administrative Law - The requirement to give reasons is satisfied if the concerned authority has provided relevant reasons. Mechanical reasons are not considered adequate. (Para 23) Ram Chander v. State of Chhattisgarh, 2022 LiveLaw (SC) 401 : AIR 2022 SC 2017

Accountability

Administrative Law - Accountability - Three essential constituent dimensions. (i) responsibility, (ii) answerability and (iii) enforceability. (Para 33-35) Vijay Rajmohan v. State, 2022 LiveLaw (SC) 832 : AIR 2022 SC 4974

Central Administrative Tribunal

Central Administrative Tribunal - Punishment for contempt imposed on Advocate for alleged intemperate behaviour in court- SC sets aside CAT order as no trial was conducted - We would think that in the facts of this case, denial of a right of trial which is contemplated also under Section 14(1)(c) of the Act as also Rule 15 of the Rules has resulted in miscarriage of justice. (Para 26) Mehmood Pracha v. Central Administrative Tribunal, 2022 LiveLaw (SC) 692 : AIR 2022 SC 3933

Doctrine of "Unreasonableness"

Administrative Law - Doctrine of "unreasonableness" - It is the intention of a legislature, when using statutory language that confers broad choices on the administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to the decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law. (Para 78) Satish Chandra Yadav v. Union of India, 2022 LiveLaw (SC) 798 : 2022 (14) SCALE 270

Judicial Review

Administrative Law - Judicial Review - The action based on the subjective opinion or satisfaction can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion - Scope discussed. (Para 28-37) Amarendra Kumar Pandey v. Union of India, 2022 LiveLaw (SC) 600 : 2022 (10) SCALE 42

Maternity Leave

Maternity Leave - A woman cannot be declined maternity leave under the Central Services (Leave Rules) 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage. Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718 : AIR 2022 SC 4108

Natural Justice

Administrative Law - Natural Justice - Importance of natural justice and an opportunity of hearing to be afforded to the affected party in any administrative or quasi judicial proceedings. (Para 28) Esteem Properties Pvt. Ltd. v. Chetan Kamble, 2022 LiveLaw (SC) 226 : 2022 (4) SCALE 284

Administrative Law - Natural Justice - Importance of natural justice and an opportunity of hearing to be afforded to the affected party in any administrative or quasijudicial proceedings. (Para 28) Esteem Properties Pvt. Ltd. v. Chetan Kamble, 2022 LiveLaw (SC) 226 : 2022 (4) SCALE 284

Administrative Tribunal Act, 1986

Administrative Tribunal Act, 1986 - Appeal against Jammu and Kashmir High Court judgment setting aside the Full bench judgment of Central Administrative Tribunal - Dismissed - We are in complete agreement with the view taken by the High Court on the procedure which was adopted by the Chairman of the Central Administrative Tribunal. Daljit Singh v. Arvind Samyal, 2022 LiveLaw (SC) 364

Section 17 - Power to punish for Contempt

Administrative Tribunals Act, 1985; Section 17 - Power of CAT to punish for contempt - Central Administrative Tribunal Rules 13 & 15 - CAT cannot punish for contempt committed in the face of it without trial when the alleged contemnor denies charges - Procedure under Section 14(1)(c) of the Contempt of Courts Act to be followed- CAT has no power of the Supreme Court under Articles 129 and 142 of the Constitution of India. (Paras 14, 15 & 24) Mehmood Pracha v. Central Administrative Tribunal, 2022 LiveLaw (SC) 692 : AIR 2022 SC 3933

Section 25 - Power of Chairman to transfer cases from one Bench to another

Administrative Tribunals Act, 1985; Section 25 - Any decision of Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. (Para 16) Union of India v. Alapan Bandyopadhyay, 2022 LiveLaw (SC) 12 : AIR 2022 SC 499 : (2022) 3 SCC 133

Administrative Tribunals Act, 1985 - Section 25 - Chairman could pass an order of transfer under Section 25 of the Act suo motu. (Para 8) Union of India v. Alapan Bandyopadhyay, 2022 LiveLaw (SC) 12 : AIR 2022 SC 499 : (2022) 3 SCC 133

Section 26 - Decision to be by majority

Administrative Tribunal Act, 1986; Section 26 - Once there is a difference of opinion between the Judicial Member and the Administrative Member of the Tribunal, the matter is required to be referred to the third Member/Chairman and the third Member/Chairman was required to give his own decision upon such a reference. However, the matter is not required to be referred to the Full Bench. Daljit Singh v. Arvind Samyal, 2022 LiveLaw (SC) 364

Admiralty

Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017; Section 12, 14 - Code of Civil Procedure, 1908; Order 1 Rule 10(2), Order XLIII Rule 1 - Commercial Courts Act, 2015 - An order for addition of a party under Order 1 Rule 10(2) of the CPC is not appealable under section 14 of the Admiralty Act - An appeal does not lie to the Commercial Appellate Division of the High Court from an order of the Commercial Division (Single Bench) of the same High Court for addition of a party in an admiralty suit governed by the Admiralty Act - An intra-court appeal under the Admiralty Act to the Commercial Division of the High Court would lie from any judgment, decree or final order under the Admiralty Act or an interim order under the Admiralty Act relatable to the orders specified in Order 43, Rule 1 - An order for addition of a party under Order 1 Rule 10(2) of the CPC is not appealable under section 14 of the Admiralty Act - It could not possibly have been the legislative intent of the Admiralty Act to make all interim orders appealable. (Para 81-88) Owners and Parties Interested in the Vessel M.V. Polaris Galaxy v. Banque Cantonale De Geneve, 2022 LiveLaw (SC) 793

Admission and Fee

Admission and Fee Regulatory Committee (for Professional Courses offered in Private UnAided Professional Institutions) Rules, 2006 (Andhra Pradesh); Rule 4 - The education is not the business to earn profit. The tuition fee shall always be affordable. Determination of fee/review of fee shall be within the parameters of the fixation rules and shall have direct nexus on the factors mentioned in Rule 4 of the Rules, 2006, namely, (a) the location of the professional institution; (b) the nature of the professional course; (c) the cost of available infrastructure; (d) the expenditure on administration and maintenance; (e) a reasonable surplus required for growth and development of the professional Institution; (f) the revenue foregone on account of waiver of fee, if any, in respect of students belonging to the reserved category and other Economically Weaker Sections of the society. All the aforesaid factors are required to be considered by the AFRC while determining/reviewing the tuition fees. (Para 5) Narayana Medical College v. State of Andhra Pradesh, 2022 LiveLaw (SC) 929 : AIR 2022 SC 5686

Admissions

Admissions - While generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law. (Para 24-25) Employees State Insurance Co. v. Union of India, 2022 LiveLaw (SC) 78 : AIR 2022 SC 1017

Adverse Possession

Adverse Possession - Suit for declaration based on adverse possession having matured into ownership – Maintainable. Darshan Kaur Bhatia v. Ramesh Gandhi, 2022 LiveLaw (SC) 246

Advocate

Advocate - Senior Advocate Designation - Instead of ten marks to be allocated to a counsel who has put in between ten to twenty years of practice, the marks be allocated commensurate with the standing of the person at the Bar, that is to say, one mark each shall be allocated for every year of practice between ten to twenty years. Indira Jaising v. Supreme Court of India, 2022 LiveLaw (SC) 451

Advocate Commissioners - The Advocate Commissioner is not a new concept. The advocates are appointed as Court Commissioner to perform diverse administrative and ministerial work as per the provisions of Code of Civil Procedure and Code of Criminal Procedure. (Para 36) NKGSB Cooperative Bank Ltd. v. Subir Chakravarty, 2022 LiveLaw (SC) 212 : AIR 2022 SC 1325 : (2022) 10 SCC 286

Advocates - Role of the advocate as being an officer of the court - An advocate is a guardian of constitutional morality and justice equally with the Judge. He has an important duty as that of a Judge. He bears responsibility towards the society and is expected to act with utmost sincerity and commitment to the cause of justice. He has a duty to the court first. As an officer of the court, he owes allegiance to a higher cause and cannot indulge in consciously misstating the facts or for that matter conceal any material fact within his knowledge - An advocate should be diligent and his conduct should conform to the requirements of the law by which he plays a vital role in the preservation of society and justice system. As an officer of the court, he is under a higher obligation to uphold the rule of law and justice system. (Para 37 - 39) NKGSB Cooperative Bank Ltd. v. Subir Chakravarty, 2022 LiveLaw (SC) 212 : AIR 2022 SC 1325 : (2022) 10 SCC 286

Advocates Act 1961 - Disciplinary action against striking lawyers - Bar Council of India to take appropriate action against all the executive members of different Bar Associations on strike contrary to directions of this Court and logically we would expect their licences to be suspended at least till the work is resumed and further action against the members of the Action Committee. PLR Projects Pvt. Ltd. v. Mahanadi Coalfields Ltd., 2022 LiveLaw (SC) 1006

Advocates Act 1961 - Supreme Court Rules - Advocates-on-Record System - Supreme Court has authority to prescribe who can act or plead in the court as per Article 145 of the Constitution read along with Section 52(b) of The Advocates Act, 1961 - Challenge against AoR system dismissed. Nandini Sharma v. Registrar, Supreme Court of India, 2022 LiveLaw (SC) 1018

Advocates Act, 1961; Section 32 - The enabling provision of Section 32, whereby any Court, authority or person may permit any non-advocate to appear before it or him in any particular case is difficult to be read as creating a corresponding bar in giving permission to a GPA holder of a party to represent that party as such, if the said GPA holder, during pendency of the proceedings in the Court, gets enrolled as an advocate. (Para 14) S. Ramachandra Rao v. S. Nagabhushana Rao, 2022 LiveLaw (SC) 861 : AIR 2022 SC 5317

Affidavits

Affidavits - Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given. (Para 16) New Okhla Industrial Development Authority v. Ravindra Kumar Singhvi, 2022 LiveLaw (SC) 184 : AIR 2022 SC 928 : (2022) 5 SCC 591

Affidavits - Therefore, affidavits filed were not mere sheets of paper but a solemn statement made before a person authorized to administer an oath or to accept affirmation. The plaintiff had breached such a solemn statement made on oath. (Para 17) New Okhla Industrial Development Authority v. Ravindra Kumar Singhvi, 2022 LiveLaw (SC) 184 : AIR 2022 SC 928 : (2022) 5 SCC 591

Agriculture

Agricultural Produce Markets Act, 1961 (Rajasthan) - Section 9 - It cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. (Para 9) Krishi Upaj Mandi Samiti v. Commissioner, 2022 LiveLaw (SC) 203 : AIR 2022 SC 1234 : (2022) 5 SCC 62

All India Services

All India Services (Conduct) Rules, 1968 - Civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency - Integrity, impartiality, neutrality, transparency and honesty are non-negotiable. Ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968. Vivek Krishna v. Union of India, 2022 LiveLaw (SC) 436

All India Services (Conduct) Rules, 1968 - Writ petition seeking to impose restrictions to prevent Civil Servants from contesting elections immediately after retirement or resignation from service, by imposing a "Cooling off Period" - Dismissed - It is not for this Court to decide whether or not there should be any rules/guidelines for a bureaucrat to contest elections - Whether there should be any "Cooling off Period" for civil servants for them to contest elections or not is best left to the concerned Legislature - The allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to contest elections, is vague, devoid of particulars and unsupported by any materials which could justify intervention of this Court. Vivek Krishna v. Union of India, 2022 LiveLaw (SC) 436

Amendment

Amendment - If power to amend or modify or relax a notification and/or order exists, the notification and/or order may be amended and/or modified as many times, as may be necessary. A statement made by counsel in Court would not prevent the authority concerned from making amendments and/or modifications provided such amendments and/or modifications were as per the procedure prescribed by law. (Para 47) Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318 : 2022 (5) SCALE 353

Amendment - Whenever the challenge is to the amended provisions, the scope of enquiry, inter alia, ought to be as to whether the same is in consonance with the Principal Act, achieve the object and purpose of the Principal Act and are otherwise just, rational and reasonable. (Para 21) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355 : 2022 (5) SCALE 775

Ancient Monuments

Ancient Monuments and Archaeological Sites and Remains Act, 1958; Sections 20A, 20C, 20D -The repairs and renovation of the buildings, which are existing and the constructions which are necessary for providing basic facilities like drainage, toilets, water supply and distribution of electricity are kept out of the rigour of requirement of statutory permissions. (Para 51) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539 : AIR 2022 SC 2695

Ancient Monuments and Archaeological Sites and Remains Act, 1958; Sections 20A, 20C, 20D - When subsection (4) of Section 20A of the said Act is read in harmony with clause (dc) of Section 2 and the provisions of Sections 20C and 20D of the said Act, we find that the submission that no construction at all can be made in the prohibited area or the regulated area, would be unsustainable. (Para 41) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539 : AIR 2022 SC 2695

Ancient Monuments and Archaeological Sites and Remains Act, 1958; Section 2(dc) - Definition of "Construction" - The legislative intent is clear that the reconstruction,repair, renovation of the existing buildings has been excluded from the definition. Similarly, the construction, maintenance etc. of drains, drainage works, public latrines and urinals; the construction and maintenance of works meant for providing supply of water to public; and construction etc. for distribution of electricity, which could be construed to be essential services for catering to the needs of the public at large, have consciously been kept out of the definition of "construction". (Para 41, 42) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539 : AIR 2022 SC 2695

Anganwadi

Anganwadi workers (AWW) and Anganwadi helpers (AWH) - It is high time that the Central Government and State Governments take serious note of the plight of AWWs and AWHs who are expected to render such important services to the society - They are being paid very meagre remuneration and paltry benefits under an insurance scheme of the Central Government. (Para 20) Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 LiveLaw (SC) 408 : AIR 2022 SC 2119

Anticipatory Bail

Anticipatory Bail - SLP Against Madras HC Judgment dismissing anticipatory bail with some observations about requirement of custodial interrogation- Dismissed - High Court, after having found no case for grant of pre-arrest bail, has otherwise not given any such direction of mandatory nature - Observations are essentially of the reasons assigned by the High Court in declining the prayer of the petitioner for pre-arrest bail. S. Senthil Kumar v. State of Tamil Nadu, 2022 LiveLaw (SC) 314

Anticipatory bail granted to Trinamool Congress leader Sheikh Sufiyan in a case relating to the murder of a BJP supporter during the West Bengal post -poll violence. Sk. Supiyan @ Suffiyan @ Supisan v. Central Bureau of Investigation, 2022 LiveLaw (SC) 146 : 2022 (3) SCALE 42

Arbitration

Arbitration Act, 1940

Arbitration Act, 1940 - The powers exercised by the court under the provisions of the 1940 Act are judicial powers and that the power to make an award “Rule of Court” is not a mechanical power. (Para 127 (ii), 113) Secretary of Govt. of Kerala Irrigation Department v. James Varghese, 2022 LiveLaw (SC) 447 : (2022) 9 SCC 593

Arbitration and Conciliation Act 1996

Arbitration and Conciliation Act 1996 - Can a person who is ineligible to be an arbitrator nominate another arbitrator? Supreme Court refers issue to larger bench. JSW Steel Limited v. South Western Railway, 2022 LiveLaw (SC) 693

Arbitration and Conciliation Act, 1996 - Appeal against Bombay HC judgment which dismissed appeal against interim award of the Arbitral tribunal holding that JDIL was not a party to the arbitration agreement and must be deleted from the array of parties - Allowed - The interim award of the Arbitral Tribunal stands vitiated because of: (i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC; (ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and (iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of. Oil and Natural Gas Corporation Ltd. v. Discovery Enterprises Pvt. Ltd; 2022 LiveLaw (SC) 416 : AIR 2022 SC 2080 : (2022) 8 SCC 42

Arbitrator’s fee

Arbitration and Conciliation Act, 1996 - Arbitrator’s fee cap is Rs 30 lakhs, ceiling limit applicable to individual arbitrators, not tribunal as a whole. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723 : AIR 2022 SC 4413

Arbitration and Conciliation Act, 1996 - Arbitrators cannot unilaterally fix their fee as it violates party autonomy. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723 : AIR 2022 SC 4413

Arbitration and Conciliation Act, 1996 - Arbitrators entitled to charge separate fee for claim & counter claim in arbitration proceedings. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723 : AIR 2022 SC 4413

Arbitration and Conciliation Act, 1996 - 'Hold preliminary hearings to fix arbitrator's fee': Supreme Court issues directives to govern fees of arbitrators. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723 : AIR 2022 SC 4413

Interest

Arbitration and Conciliation Act 1996 - Interest - Party not entitled to interest for the period during which the proceedings were deliberately delayed-A party cannot be permitted to derive benefits from its own lapses. [Para 12 to 14] Executive Engineer (R and B) v. Gokul Chandra Kanungo, 2022 LiveLaw (SC) 824 : AIR 2022 SC 4857

Arbitration and Conciliation Act, 1996 - Appeal against Bombay HC judgment which dismissed appeal against interim award of the Arbitral tribunal holding that JDIL was not a party to the arbitration agreement and must be deleted from the array of parties - Allowed - The interim award of the Arbitral Tribunal stands vitiated because of: (i) The failure of the arbitral tribunal to decide upon the application for discovery and inspection filed by ONGC; (ii) The failure of the arbitral tribunal to determine the legal foundation for the application of the group of companies doctrine; and (iii) The decision of the arbitral tribunal that it would decide upon the applications filed by ONGC only after the plea of jurisdiction was disposed of. Oil and Natural Gas Corporation v. Discovery Enterprises, 2022 LiveLaw SC 416 : AIR 2022 SC 2080

Jurisdiction

Arbitration and Conciliation Act, 1996 - Jurisdiction - When two or more Courts have jurisdiction to adjudicate disputes arising out of an arbitration agreement, the parties might, by agreement, decide to refer all disputes to any one Court to the exclusion of all other Courts, which might otherwise have had jurisdiction to decide the disputes. The parties cannot, however, by consent, confer jurisdiction on a Court which inherently lacked jurisdiction. (Para 47) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Arbitration and Conciliation Act, 1996 - Only if the agreement of the parties was construed to provide for seat/place of arbitration in India, would Part-I of the 1996 Act be applicable. If the seat/place were outside India, Part-I would not apply, even though the venue of a few sittings may have been in India, or the cause of action may have arisen in India. (Para 36) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 (Kerala)

Arbitration - Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 (Kerala) - The Act is liable to be held unconstitutional on the ground of encroachment upon the judicial powers of the State - The Act has the effect of annulling the awards which have become “Rules of Court”, is a transgression on the judicial functions of the State and therefore, violative of doctrine of “separation of powers”. (Para 122, 127(iii)) Secretary of Govt. of Kerala Irrigation Department v. James Varghese, 2022 LiveLaw (SC) 447 : (2022) 9 SCC 593

Seat and Venue

Arbitration and Conciliation Act, 1996 - Seat and Venue - Sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration, which has a different connotation. (Para 44, 45) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Arbitration and Conciliation Act, 1996 - Special leave petition against an order of the Calcutta High Court, allowing an Arbitration Petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator - Allowed - Calcutta High Court inherently lacks jurisdiction to entertain the application. Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Section 2(e) - “Court”

Arbitration and Conciliation Act, 1996; Section 11(6) and 2(1)(e) - An application under Section 11(6) of the A&C Act for appointment of an Arbitrator/Arbitral Tribunal cannot be moved in any High Court in India, irrespective of its territorial jurisdiction. Section 11(6) of the A&C Act has to be harmoniously read with Section 2(1)(e) of the A&C Act and construed to mean, a High Court which exercises superintendence/supervisory jurisdiction over a Court within the meaning of Section 2(1)(e) of the A&C Act. It could never have been the intention of Section 11(6) of the A&C Act that arbitration proceedings should be initiated in any High Court in India, irrespective of whether the Respondent resided or carried on business within the jurisdiction of that High Court, and irrespective of whether any part of the cause of action arose within the jurisdiction of that Court, to put an opponent at a disadvantage and steal a march over the opponent. Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Arbitration and Conciliation Act,1996; Section 2(1)(e), 34 - In the absence of the High Court of Orissa having original jurisdiction, the concerned District Court can be said to be `Court' - The proceedings under Section 34 against the award passed by the Arbitrator shall lie before the concerned District Court, as defined under Section 2(e). Yashpal Chopra v. Union of India, 2022 LiveLaw (SC) 900

Section 2(h) - “Party”

Arbitration and Conciliation Act, 1996; Section 2(h), 7, 8, 16 - Group of companies doctrine - An arbitration agreement entered into by a company within a group of companies, can bind its non-signatory affiliates or sister concerns if the circumstances demonstrate a mutual intention of the parties to bind both the signatory and affiliated, non-signatory parties - A non-signatory may be bound by the arbitration agreement where: (i) There exists a group of companies; and (ii) Parties have engaged in conduct or made statements indicating an intention to bind a non-signatory - In deciding whether a company within a group of companies which is not a signatory to arbitration agreement would nonetheless be bound by it, the law considers the following factors: (i) The mutual intent of the parties; (ii) The relationship of a non-signatory to a party which is a signatory to the agreement; (iii) The commonality of the subject matter; (iv) The composite nature of the transaction; and (v) The performance of the contract. (Para 18, 23, 26) Oil and Natural Gas Corporation v. Discovery Enterprises, 2022 LiveLaw SC 416 : AIR 2022 SC 2080

Arbitration and Conciliation Act, 1996; Section 2(h), 7, 8, 16 - Group of Companies Doctrine - An arbitration agreement entered into by a company within a group of companies, can bind its non-signatory affiliates or sister concerns if the circumstances demonstrate a mutual intention of the parties to bind both the signatory and affiliated, non-signatory parties - A non-signatory may be bound by the arbitration agreement where: (i) There exists a group of companies; and (ii) Parties have engaged in conduct or made statements indicating an intention to bind a non-signatory - In deciding whether a company within a group of companies which is not a signatory to arbitration agreement would nonetheless be bound by it, the law considers the following factors: (i) The mutual intent of the parties; (ii) The relationship of a non-signatory to a party which is a signatory to the agreement; (iii) The commonality of the subject matter; (iv) The composite nature of the transaction; and (v) The performance of the contract. (Para 18 , 23, 26) Oil and Natural Gas Corporation Ltd. v. Discovery Enterprises Pvt. Ltd; 2022 LiveLaw (SC) 416 : AIR 2022 SC 2080 : (2022) 8 SCC 42

Section 7 - Arbitration Agreement

Arbitration and Conciliation Act, 1996; Section 7 - Parties to the contract are free to agree on applicability of (1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration. Parties to the contract also may agree for matters excluded from the purview of arbitration - Unless the effect of agreement results in performance of an unlawful act, an agreement, which is otherwise legal, cannot be held to be void and is binding between the parties. (Para 13.3) Indian Oil Corporation Ltd. v. NCC Ltd., 2022 LiveLaw (SC) 616

Arbitration and Conciliation Act, 1996; Section 7 - Principles governing what constitutes an arbitration agreement - Arbitration agreement should disclose a determination and obligation on behalf of parties to refer disputes to arbitration - mere use of the word "arbitration" or "arbitrator" in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. (Para 8-9) Mahanadi Coalfields Ltd. v. IVRCL AMR Joint Venture, 2022 LiveLaw (SC) 657

Arbitration and Conciliation Act, 1996; Section 7, 11 - Section 7 of the Act does not mandate any particular form for the arbitration clause - Even if we were to assume that the subjectclause lacks certain essential characteristics of arbitration like "final and binding" nature of the award, the parties have evinced clear intention to refer the dispute to arbitration and abide by the decision of the tribunal. The party autonomy to this effect, therefore, deserves to be protected - The deficiency of words in agreement which otherwise fortifies the intention of the parties to arbitrate their disputes, cannot legitimise the annulment of arbitration clause - Courts to give greater emphasis to the substance of the clause, predicated upon the evident intent and objectives of the parties to choose a specific form of dispute resolution to manage conflicts between them. (Para 14-28) Babanrao Rajaram Pund v. Samarth Builders & Developers, 2022 LiveLaw (SC) 747 : AIR 2022 SC 4161 : (2022) 9 SCC 691

Section 8 - Power to refer parties to arbitration where there is an arbitration agreement

Arbitration and Conciliation Act, 1996; Section 8, 11 - Group of Companies Doctrine - There is a clear need for having a relook at the doctrinal ingredients concerning the group of companies doctrine - Whether the phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include ‘Group of Companies’ doctrine? Whether the ‘Group of companies’ doctrine as expounded by Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. (2013) 1 SCC 641 and subsequent judgments are valid in law? - Issues referred to a larger bench. Cox and Kings Ltd. v. SAP India, 2022 LiveLaw (SC) 455 : (2022) 8 SCC 1

Section 9 - Interim measures, etc., by Court.

Arbitration and Conciliation Act, 1996; Section 9 - Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief under Section 9 - A strong possibility of diminution of assets would suffice - The power under Section 9 should not ordinarily be exercised ignoring the basic principles of procedural law as laid down in the CPC, but the technicalities of CPC cannot prevent the Court from securing the ends of justice - If a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the Court exercising power under Section 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC. (Para 39-50) Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd., 2022 LiveLaw (SC) 765 : AIR 2022 SC 4294

Arbitration and Conciliation Act, 1996; Sections 2(1)(e), 9, 14 and 34 - State Government can confer jurisdiction to hear applications under Sections 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District - All applications or appeals arising out of arbitration under the provisions of Act, 1996, other than international commercial arbitration, shall be filed in and heard and disposed of by the Commercial Courts, exercising the territorial jurisdiction over such arbitration where such commercial courts have been constituted. (Para 6-11) Jaycee Housing Pvt. Ltd. v. Registrar (General), Orissa High Court, 2022 LiveLaw (SC) 860 : AIR 2022 SC 5239

Section 16 - Competence of Arbitral Tribunal to rule on its Jurisdiction

Arbitration and Conciliation Act, 1996; Section 16, 34, 37 - An appeal lies to the Court from the decision of the Arbitral Tribunal that it lacks jurisdiction - Parliament has not specifically constricted the powers of the court while considering an appeal under clause (a) of sub-section (2) of Section 37 by the grounds on which an award can be challenged under Section 34 - In the exercise of the appellate jurisdiction, the court must have due deference to the grounds which have weighed with the tribunal in holding that it lacks jurisdiction having regard to the object and spirit underlying the statute which entrusts the arbitral tribunal with the power to rule on its own jurisdiction - The decision of the tribunal that it lacks jurisdiction is not conclusive because it is subject to an appellate remedy under Section 37(2)(a). However, in the exercise of this appellate power, the court must be mindful of the fact that the statute has entrusted the arbitral tribunal with the power to rule on its own jurisdiction with the purpose of facilitating the efficacy of arbitration as an institutional mechanism for the resolution of disputes. (Para 34 - 39) Oil and Natural Gas Corporation v. Discovery Enterprises, 2022 LiveLaw SC 416 : AIR 2022 SC 2080

Section 11 - Appointment of Arbitrators

Arbitration and Conciliation Act, 1996; Section 11 - Arbitration application decided and disposed of after a period of four years by Telangana High Court - Very sorry state of affairs - Registrar General of the High Court directed to submit a detailed report/statement pointing out how many Section 11 applications are pending before the High Court and from which year. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 345

Arbitration and Conciliation Act, 1996; Section 11 - Court can undertake preliminary inquiry to ascertain if the dispute is arbitrable or falls under the excepted category in the agreement. (Para 7) Emaar India Ltd. v. Tarun Aggarwal Projects LLP, 2022 LiveLaw (SC) 823 : AIR 2022 SC 4678

Arbitration and Conciliation Act, 1996; Section 11 - Even if an aspect with regard to 'accord and satisfaction' of the claims may/can be considered by the Court at the stage of deciding Section 11 application, it is always advisable and appropriate that in cases of debatable and disputable facts, good reasonably arguable case, the same should be left to the Arbitral Tribunal. (Para 13) Indian Oil Corporation Ltd. v. NCC Ltd., 2022 LiveLaw (SC) 616

Arbitration and Conciliation Act, 1996; Section 11 - The arbitration applications for appointment of an Arbitrator are required to be decided and disposed of at the earliest, otherwise the object and purpose of the Arbitration Act shall be frustrated. (Para 2) Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 345

Arbitration and Conciliation Act, 1996; Section 11 - While dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non arbitrability are plainly arguable. In such case, the issue of non arbitrability is left open to be decided by the Arbitral Tribunal. (Para 11) Mohammed Masroor Shaikh v. Bharat Bhushan Gupta, 2022 LiveLaw (SC) 120 : AIR 2022 SC 1126 : (2022) 4 SCC 156

Arbitration and Conciliation Act, 1996; Section 11(5) - Even in the absence of any arbitration agreement in writing between the parties, with consent the parties may refer the dispute for arbitration and appoint a sole arbitrator/arbitrators by mutual consent and parties may agree mutually on a procedure for appointing an arbitrator or arbitrators even in the absence of any written agreement. (Para 7.2) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 : AIR 2022 SC 2193 : (2022) 10 SCC 235

Arbitration and Conciliation Act, 1996; Section 11(5), 11(6) - Delay in appointment of arbitrators - If the arbitrators are not appointed at the earliest and the applications under Sections 11(5) and 11(6) of the Arbitration Act are kept pending for a number of years, it will defeat the object and purpose of the enactment of the Arbitration Act and it may lose the significance of an effective Alternative Dispute Resolution Mechanism. If the Commercial disputes are not resolved at the earliest, not only it would affect the commercial relations between the parties but it would also affect economy of the country. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 523

Arbitration and Conciliation Act, 1996; Section 11(5), 11(6) - Directions issued to High Courts to dispose pending applications within 6 months - Ensure that all pending applications under Sections 11(5) and 11(6) of the Arbitration Act and/or any other applications either for substitution of arbitrator and/or change of arbitrator, which are pending for more than one year from the date of filing, must be decided within six months from today. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 523

Arbitration and Conciliation Act, 1996; Section 11(6) - A party to the arbitration agreement can appoint an arbitrator even after an Arbitration Petition has been filed by the other party before the High Court for appointment of an arbitrator if the party has not been given due notice of the same. (Para 16) Durga Welding Works v. Chief Engineer, 2022 LiveLaw (SC) 9 : (2022) 3 SCC 98

Arbitration and Conciliation Act, 1996; Section 11(6) - An application under section 11(6) shall be maintainable only in a case where there is a contract between the parties containing the arbitration agreement and the appointment procedure is prescribed and is agreed upon in writing. (Para 6.2) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 : AIR 2022 SC 2193 : (2022) 10 SCC 235

Arbitration and Conciliation Act, 1996; Section 11(6) - The court at the referral stage can interfere only when it is manifest that the claims are ex facie timebarred and dead, or there is no subsisting dispute. In the context of issue of limitation period, it should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed "no-claim certificate" or defence on the plea of novation and "accord and satisfaction". Meenakshi Solar Power Pvt. Ltd. v. Abhyudaya Green Economic Zones Pvt. Ltd., 2022 LiveLaw (SC) 988

Arbitration and Conciliation Act, 1996; Section 11(6) - Unless on the facet it is found that the dispute is not arbitrable and if it requires further/deeper consideration, the dispute with respect to the arbitrability should be left to the arbitrator. (Para 5.3) VGP Marine Kingdom Pvt. Ltd. v. Kay Ellen Arnold, 2022 LiveLaw (SC) 914 : AIR 2022 SC 5474

Arbitration and Conciliation Act; 1996; Section 11(6) - There cannot be two arbitration proceedings with respect to the same contract/transaction-in the present case, earlier the dispute was referred to arbitration and the Arbitrator passed an award on whatever the claims were made. Thereafter, a fresh arbitration proceeding was sought to be initiated with respect to some further claims, may be after final bill-The same is rightly refused (by the High Court) to be referred to arbitration in exercise of Section 11(6) of the Act. Tantia Constructions v. Union of India, 2022 LiveLaw (SC) 624

Arbitration and Conciliation Act, 1996; Section 11(6), 7 - High Court order proceeds on an understanding that the Counsel for both the sides did not dispute the fact that a clause of the Contract Agreement provided for appointment of an arbitrator - An understanding of counsel, cannot be regarded as a binding statement of law on the existence of an arbitration agreement. (Para 18) Mahanadi Coalfields Ltd. v. IVRCL AMR Joint Venture, 2022 LiveLaw (SC) 657

Section 12 - Grounds for Challenge

Arbitration and Conciliation Act, 1996; Section 12(5) read with Seventh Schedule - An arbitral tribunal constituted as per an arbitration clause before the 2015 amendment to the Arbitration and Conciliation Act 1996 will lose its mandate if it violates the neutrality clause under Section 12(5) read with the Seventh Schedule, which were incorporated through the 2015 amendment. (Para 8, 9) Ellora Paper Mills Ltd. v. State of Madhya Pradesh, 2022 LiveLaw (SC) 8 : AIR 2022 SC 280 : (2022) 3 SCC 1

Section 14 - Failure or Impossibility to Act

Arbitration and Conciliation Act, 1996; Section 11(6),14(1)(a) - Once the arbitrator was appointed by mutual consent and it was alleged that the mandate of the sole arbitrator stood terminated in view of section 14(1)(a), the application under section 11(6) to terminate the mandate of the arbitrator in view of section 14(1)(a) shall not be maintainable - The aggrieved party has to approach the concerned “court” as per subsection (2) of section 14 of the Act. (Para 8) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 : AIR 2022 SC 2193 : (2022) 10 SCC 235

Arbitration and Conciliation Act, 1996; Section 11, 11(6A) - Though the Arbitral Tribunal may have jurisdiction and authority to decide the disputes including the question of jurisdiction and nonarbitrability, the same can also be considered by the Court at the stage of deciding Section 11 application if the facts are very clear and glaring and in view of the specific clauses in the agreement binding between the parties, whether the dispute is nonarbitrable and/or it falls within the excepted clause. Even at the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to 'accord and satisfaction' of the claims. (Para 13) Indian Oil Corporation Ltd. v. NCC Ltd., 2022 LiveLaw (SC) 616

Section 15 - Termination of Mandate and Substitution of Arbitrator

Arbitration and Conciliation Act, 1996; Section 12, 14(1)(a), 15(1)(a) - If the challenge to the arbitrator is made on any of the grounds mentioned in section 12 of the Act, the party aggrieved has to submit an appropriate application before the Arbitral Tribunal itself - Whenever there is a dispute and/or controversy that the mandate of the arbitrator is to be terminated on the grounds mentioned in section 14(1)(a), such a controversy/dispute has to be raised before the concerned “court” only and after the decision by the concerned “court” as defined under section 2(e) and ultimately it is held that the mandate of the arbitrator is terminated, thereafter, the arbitrator is to be substituted accordingly, that too, according to the rules that were applicable to the initial appointment of the arbitrator - So far as the termination of the mandate of the arbitrator and/or termination of the proceedings mentioned in other provisions like in section 15(1)(a) where he withdraws from office for any reason; or (b) by or pursuant to an agreement of the parties, the dispute need not be raised before the concerned court -The same procedure is required to be followed which was followed at the time of appointment of the sole arbitrator whose mandate is terminated and/or who is replaced. (Para 6.7) Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, 2022 LiveLaw (SC) 454 : AIR 2022 SC 2193 : (2022) 10 SCC 235

Section 16 - Competence of Arbitral Tribunal to rule on its Jurisdiction

Arbitration and Conciliation Act, 1996; Section 16 - Party taking the plea of absence of jurisdiction is required to establish the grounds on which it set about to establish its plea. (Para 49) Oil and Natural Gas Corporation v. Discovery Enterprises, 2022 LiveLaw SC 416 : AIR 2022 SC 2080

Arbitration and Conciliation Act, 1996; Section 16 - Party taking the plea of absence of jurisdiction is required to establish the grounds on which it set about to establish its plea. (Para 49) Oil and Natural Gas Corporation Ltd. v. Discovery Enterprises Pvt. Ltd; 2022 LiveLaw (SC) 416 : AIR 2022 SC 2080 : (2022) 8 SCC 42

Arbitration and Conciliation Act, 1996; Section 16, 34, 37 - An appeal lies to the Court from the decision of the Arbitral Tribunal that it lacks jurisdiction - Parliament has not specifically constricted the powers of the court while considering an appeal under clause (a) of sub-section (2) of Section 37 by the grounds on which an award can be challenged under Section 34 - In the exercise of the appellate jurisdiction, the court must have due deference to the grounds which have weighed with the tribunal in holding that it lacks jurisdiction having regard to the object and spirit underlying the statute which entrusts the arbitral tribunal with the power to rule on its own jurisdiction - The decision of the tribunal that it lacks jurisdiction is not conclusive because it is subject to an appellate remedy under Section 37(2)(a). However, in the exercise of this appellate power, the court must be mindful of the fact that the statute has entrusted the arbitral tribunal with the power to rule on its own jurisdiction with the purpose of facilitating the efficacy of arbitration as an institutional mechanism for the resolution of disputes. (Para 34 - 39) Oil and Natural Gas Corporation Ltd. v. Discovery Enterprises Pvt. Ltd; 2022 LiveLaw (SC) 416 : AIR 2022 SC 2080 : (2022) 8 SCC 42

Section 17 - Interim Measures ordered by Arbitral Tribunal

Arbitration and Conciliation Act, 1996; Section 17 - Appeal against Delhi HC order which confirmed the interim order passed by Arbitral Tribunal directing the appellant to deposit the rental amount from March, 2020 onwards and up to December, 2021 - Partly allowed - No order could have been passed by the Tribunal by way of interim measure on the applications filed under Section 17 of the Arbitration Act in a case where there is a serious dispute with respect to the liability of the rental amounts to be paid, which is yet to be adjudicated upon and/or considered by the Arbitral Tribunal - The appellant will therefore have to deposit the entire rental amount except the period for which there was complete closure due to lockdown. Evergreen Land Mark Pvt. Ltd. v. John Tinson and Company Pvt. Ltd; 2022 LiveLaw (SC) 389 : AIR 2022 SC 1930 : (2022) 7 SCC 757

Section 20 - Place of Arbitration

Arbitration and Conciliation Act, 1996; Section 20 - The appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional 'seat' already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held - Once the jurisdictional 'seat' of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, 'the seat' cannot be changed. (Para 29) BBR (India) Pvt. Ltd. v. S.P. Singla Constructions, 2022 LiveLaw (SC) 493 : AIR 2022 SC 2673

Section 21 - Parties to suit may apply for order of reference

Arbitration Act, 1940; Section 21 - The word 'agree' in Section 21 of the Act refers to consensus ad idem between the parties who take a considered decision to forego their right of adjudication before a court where the suit is pending, and mutually agree to have the subject matter of the suit or part thereof adjudicated and decided by an arbitrator. (Para 17) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 : 2022 (7) SCALE 762

Arbitration Act, 1940; Section 21 - Distinction between the scope and functions of an arbitral tribunal and a commissioner - For submission to arbitration, there must be an arbitration agreement or an agreement in terms of Section 21 of the Act that the difference or dispute between the parties for which they intend to be determined in a quasi-judicial manner. Commissioners are appointed by the court. Appointment may be with consent of the parties, or even when there is objection to the appointment. Preexisting agreement or the requirement that the parties agree before the court, as is mandatory in case of arbitration, is not necessary when a court directs appointment of a commissioner. In the case of a reference to a commissioner, all that the parties expect from the commissioner is a valuation/ examination of the subject matter referred, which he would do according to his skill, knowledge and experience, which may be without taking any evidence or hearing argument. (Para 32) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 : 2022 (7) SCALE 762

Section 23 - Statements of Claim and Defence

Arbitration and Conciliation Act, 1996; Sections 23(2A), 34 - Counter-claim of a party cannot be dismissed merely because the claims were not notified before invoking the arbitration. National Highway Authority of India v. Transstroy (India) Ltd., 2022 LiveLaw (SC) 586 : 2022 (10) SCALE 429

Section 30 - Grounds for setting aside award

Arbitration Act, 1940; Section 30, 33 - Scope of interference by courts - A Court does not sit in appeal over an Award passed by an Arbitrator and the only grounds on which it can be challenged are those that have been specified in Sections 30 and 33 of the Arbitration Act, namely, when there is an error on the face of the Award or when the learned Arbitrator has misconducted himself or the proceedings. (Para 10-15) Atlanta Ltd. v. Union of India, 2022 LiveLaw (SC) 63 : (2022) 3 SCC 739

Section 31 - Form and Contents of Arbitral Award

Arbitration and Conciliation Act, 1996; Section 31 - Post-award interest can be granted by an Arbitrator on the interest amount awarded. (Para 4-6) UHL Power Company Ltd. v. State of Himachal Pradesh, 2022 LiveLaw (SC) 18 : (2022) 4 SCC 116

Arbitration and Conciliation Act, 1996; Section 31(7) - Arbitral tribunal can grant post-award interest on the sum of the award which also includes the interest component - The word sum used under Section 31(7) includes the interest awarded on the substantive claims, therefore, the post award interest would be on both the amount awarded in respect of the substantive claims and the interest awarded on such claims. Indian Oil Corporation v. U.B. Engineering, 2022 LiveLaw (SC) 409

Arbitration and Conciliation Act, 1996; Section 31(7) - The arbitrator has the discretion to award post-award interest on a part of the 'sum' - The arbitrator has the discretion to determine the rate of reasonable interest, the sum on which the interest is to be paid, that is whether on the whole or any part of the principal amount, and the period for which payment of interest is to be made - whether it should be for the whole or any part of the period between the date on which the cause of action arose and the date of the award - The arbitrator must exercise the discretionary power to grant post award interest reasonably and in good faith, taking into account all relevant circumstances - The purpose of granting post-award interest is to ensure that the award debtor does not delay the payment of the award. (Para 18-22) Morgan Securities and Credits Pvt. Ltd. v. Videocon Industries Ltd., 2022 LiveLaw (SC) 728 : AIR 2022 SC 4091

Arbitration and Conciliation Act, 1996; Section 31(7)(a) - If there is an agreement between the parties to the contrary, the Arbitral Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties - In the absence of such an agreement, the Arbitral Tribunal would have a discretion to exercise its powers under clause (a) of subsection (7) of Section 31- The discretion is wide enough. (Para 14-18) Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation, 2022 LiveLaw (SC) 452 : AIR 2022 SC 2165 : (2022) 9 SCC 286

Arbitration and Conciliation Act, 1996; Section 31(7)(a) - the section itself requires interest to be at such rate as the arbitral tribunal deems reasonable. When a discretion is vested to an arbitral tribunal to award interest at a rate which it deems reasonable, then a duty would be cast upon the arbitral tribunal to give reasons as to how it deems the rate of interest to be reasonable - When the arbitral tribunal is empowered with such a discretion, the arbitral tribunal would be required to apply its mind to the facts of the case and decide as to whether the interest is payable on whole or any part of the money and also as to whether it is to be awarded to the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. Executive Engineer (R and B) v. Gokul Chandra Kanungo, 2022 LiveLaw (SC) 824 : AIR 2022 SC 4857

Section 33 - Arbitration agreement or award to be contested by application

Section 34 - Application for setting aside Arbitral Awards

Arbitration and Conciliation Act, 1996; Section 34 - An error in interpretation of a contract in a case where there is valid and lawful submission of arbitral disputes to an Arbitral Tribunal is an error within jurisdiction. (Para 45) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Arbitration and Conciliation Act, 1996; Section 34 - Appeal against Punjab & Haryana HC order which allowed to proceed under section 34 of the Arbitration Act, 1996 without insistence for making pre-deposit of 75% of the awarded amount - Order passed by the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996 without insistence for making predeposit of 75% of the awarded amount is unsustainable and the same deserves to be quashed and set aside. Tirupati Steels v. Shubh Industrial Component, 2022 LiveLaw (SC) 383 : AIR 2022 SC 1939 : (2022) 7 SCC 429

Arbitration and Conciliation Act, 1996; Section 34 - Arbitral award can be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award - The award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. (Para 15) Haryana Urban Development Authority, Karnal v. M/s. Mehta Construction Company, 2022 LiveLaw (SC) 348 : (2022) 5 SCC 432

Arbitration and Conciliation Act, 1996; Section 34 - Limitation Act, 1961; Section 5 - Section 5 of Limitation Act is not applicable to condone the delay beyond the period prescribed under Section 34(3) of Act 1996. Mahindra and Mahindra Financial Services Ltd. v. Maheshbhai Tinabhai Rathod, 2022 LiveLaw (SC) 5 : (2022) 4 SCC 162

Arbitration and Conciliation Act, 1996; Section 34 - Patent Illegality - An Arbitral Tribunal being a creature of contract, is bound to act in terms of the contract under which it is constituted. An award can be said to be patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract. (Para 44) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Arbitration and Conciliation Act, 1996; Section 34 - The Court does not sit in appeal over the award made by an Arbitral Tribunal. The Court does not ordinarily interfere with interpretation made by the Arbitral Tribunal of a contractual provision, unless such interpretation is patently unreasonable or perverse. Where a contractual provision is ambiguous or is capable of being interpreted in more ways than one, the Court cannot interfere with the arbitral award, only because the Court is of the opinion that another possible interpretation would have been a better one. (Para 46) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 121 : (2022) 4 SCC 463

Arbitration and Conciliation Act, 1996; Section 34 - The court may condone delay of a period up to thirty days in filing of the objections if it is satisfied that the applicant is prevented by sufficient cause from making an application under Section 34(1) of the Act. (Para 10) Haryana Urban Development Authority, Karnal v. M/s. Mehta Construction Company, 2022 LiveLaw (SC) 348 : (2022) 5 SCC 432

Arbitration and Conciliation Act, 1996; Section 34 - The principle that a court while deciding a petition under Section 34 of the Arbitration and Conciliation Act has no jurisdiction to remand the matter to the Arbitrator for a fresh decision would be applicable where the Appellate Court decides the application under Section 34 of the Act on merits - Even in a case where the award is set aside under Section 34 of the Act on whatever the grounds which may be available under Section 34 of the Act, in that case the parties can still agree for the fresh arbitration may be by the same arbitrator - When both the parties agreed to set aside the award and to remit the matter to the learned Sole Arbitrator for fresh reasoned Award, it is not open to contend that the matter may not be and/or ought not to have been remanded to the same sole arbitrator. (Para 8) Mutha Construction v. Strategic Brand Solutions (I) Pvt. Ltd., 2022 LiveLaw (SC) 163

Arbitration and Conciliation Act, 1996; Section 34(4) - A harmonious reading of Section 31, 34(1), 34(2A) and 34(4) of the Arbitration and Conciliation Act, 1996, make it clear that in appropriate cases, on the request made by a party, Court can give an opportunity to the arbitrator to resume the arbitral proceedings for giving reasons or to fill up the gaps in the reasoning in support of a finding, which is already rendered in the award. But at the same time, when it prima facie appears that there is a patent illegality in the award itself, by not recording a finding on a contentious issue, in such cases, Court may not accede to the request of a party for giving an opportunity to the Arbitral Tribunal to resume the arbitral proceedings. (Para 21) I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd. 2022 LiveLaw (SC) 2 : AIR 2022 SC 301 : (2022) 3 SCC 121

Arbitration and Conciliation Act, 1996; Section 34(4) - If there are no findings on the contentious issues in the award or if any findings are recorded ignoring the material evidence on record, the same are acceptable grounds for setting aside the award itself. Under guise of either additional reasons or filling up the gaps in the reasoning, the power conferred on the Court cannot be relegated to the Arbitrator. In absence of any finding on contentious issue, no amount of reasons can cure the defect in the award. (Para 21) I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd. 2022 LiveLaw (SC) 2 : AIR 2022 SC 301 : (2022) 3 SCC 121

Arbitration and Conciliation Act, 1996; Section 34(4) - Merely because an application is filed under Section 34(4) of the Act by a party, it is not always obligatory on the part of the Court to remit the matter to Arbitral Tribunal. The discretionary power conferred under Section 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which are already recorded in the award. Under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award. (Para 21) I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd. 2022 LiveLaw (SC) 2: AIR 2022 SC 301 : (2022) 3 SCC 121

Arbitration and Conciliation Act, 1996; Section 34(4) - The discretion vested with the Court for remitting the matter to Arbitral Tribunal to give an opportunity to resume the proceedings or not. The words “where it is appropriate” itself indicate that it is the discretion to be exercised by the Court, to remit the matter when requested by a party. When application is filed under Section 34(4) of the Act, the same is to be considered keeping in mind the grounds raised in the application under Section 34(1) of the Act by the party, who has questioned the award of the Arbitral Tribunal and the grounds raised in the application filed under Section 34(4) of the Act and the reply thereto. (Para 21) I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Ltd. 2022 LiveLaw (SC) 2 : AIR 2022 SC 301 : (2022) 3 SCC 121

Section 37 - Appealable Orders

Arbitration and Conciliation Act, 1996; Section 34, 37 - An award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal - High Court cannot enter into the merits of the claim in an appeal under Section 37. (Para 8) Haryana Tourism Ltd. v. Kandhari Beverages Ltd., 2022 LiveLaw (SC) 38 : (2022) 3 SCC 237

Arbitration and Conciliation Act, 1996; Section 34, 37 - It would not be open for the court in the proceedings under Section 34 or in the appeal under Section 37 to modify the award, the appropriate course to be adopted in such event is to set aside the award and remit the matter. (Para 40) National Highways Authority of India v. P. Nagaraju @ Cheluvaiah, 2022 LiveLaw (SC) 584 : 2022 (9) SCALE 823

Arbitration and Conciliation Act, 1996; Section 34, 37 - While examining the award within the parameters permissible under Section 34 of Act, 1996 and while examining the determination of compensation as provided under Sections 26 and 28 of the RFCTLARR Act, 2013, the concept of just compensation for the acquired land should be kept in view while taking note of the award considering the sufficiency of the reasons given in the award for the ultimate conclusion. (Para 24) National Highways Authority of India v. P. Nagaraju @ Cheluvaiah, 2022 LiveLaw (SC) 584 : 2022 (9) SCALE 823

Arbitration and Conciliation Act, 1996; Section 34, 37 - Reference to wrong provision, as long as power exists would not matter. Premier Sea Foods v. Caravel Shipping Services, 2022 LiveLaw (SC) 54

Arbitration and Conciliation Act, 1996; Section 34, 37 - The jurisdiction conferred on Courts under Section 34 of the Arbitration Act is fairly narrow, when it comes to the scope of an appeal under Section 37 of the Arbitration Act, the jurisdiction of an Appellate Court in examining an order, setting aside or refusing to set aside an award, is all the more circumscribed - if there are two plausible interpretations of the terms and conditions of the contract, then no fault can be found, if the learned Arbitrator proceeds to accept one interpretation as against the other. (Para 15-21) UHL Power Company Ltd. v. State of Himachal Pradesh, 2022 LiveLaw (SC) 18 : (2022) 4 SCC 116

Arbitration and Conciliation Act, 1996; Section 37 - Limitation Act, 1963; Section 3, 5 - The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant. State of Uttar Pradesh v. Satish Chand Shivhare, 2022 LiveLaw (SC) 430

Arbitration and Conciliation Act, 1996; Section 37 - Limitation Act, 1963; Section 3, 5 - The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing of files and the rigmarole of procedures cannot be accepted as sufficient cause - A different yardstick for condonation of delay cannot be laid down because the government is involved. (Para 17) State of Uttar Pradesh v. Satish Chand Shivhare, 2022 LiveLaw (SC) 430

Arbitration and Conciliation Act, 1996; Section 37 - The High Court has no jurisdiction to remand the matter to the same Arbitrator unless it is consented by both the parties that the matter be remanded to the same Arbitrator -The High Court either may relegate the parties for fresh arbitration or to consider the appeal on merits on the basis of the material available on record within the scope and ambit of the jurisdiction under Section 37. (Para 3) Dr. A. Parthasarathy v. E Springs Avenues Pvt. Ltd; 2022 LiveLaw (SC) 199

Section 42 - Jurisdiction

Arbitration and Conciliation Act, 1996; Section 42 - The Section has obviously been enacted to prevent the parties from being dragged into proceedings in different Courts, when more than one Court has jurisdiction. Where with respect to any arbitration agreement, any application under Part I of the A&C Act has been made in a Court, that Court alone would have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement, and the arbitral proceedings, would have to be made in that Court and in no other Court, unless, of course, the Court in which the first application had been instituted, inherently lacked jurisdiction to entertain that application. The Section which starts with a non obstante clause, is binding irrespective of any other law for the time being in force, and irrespective of any other provision in Part I of the A&C Act. (Para 31) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Arbitration and Conciliation Act, 1996; Section 42 and 11(6) - Section 42 cannot possibly have any application to an application under Section 11(6), which necessarily has to be made before a High Court, unless the earlier application was also made in a High Court. (Para 32) Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, 2022 LiveLaw (SC) 329 : 2022 (5) SCALE 372

Architects

Architects Act, 1972 - Section 21, 45 - Minimum Standards of Architectural Education Regulations, 2017 - The Council of Architecture may prescribe minimum standards of architectural education, either by way of regulations issued under Section 45(2) or even otherwise. It is only in cases where the Council chooses to prescribe standards in the form of regulations that the requirement of approval of the Central Government under Section 45(1) would become necessary. (Para 15) Council of Architecture v. Academic Society of Architects (TASA), 2022 LiveLaw (SC) 172 : (2022) 5 SCC 161

Armed Forces

Armed Forces Tribunal (AFT) dismissed applications challenging the denial of Permanent Commission (PC) in the Indian Navy observing that there was no gender bias or mala fides in the grant of PC - Whether the AFT could have adjudicated on the validity of the selection proceedings when relevant material was disclosed only to the AFT in a sealed cover? The failure to disclose relevant material has caused substantial prejudice to the appellants. This case exposes the danger of following a sealed cover procedure - AFT to reconsider the entire matter afresh. Cdr Amit Kumar Sharma v. Union of India, 2022 LiveLaw (SC) 951

Armed Forces Tribunal Act, 2007; Section 15 - AFT would be justified in interfering with the finding of the court martial where its finding is legally not sustainable due to any reason whatsoever. It would be permissible to interfere with such a finding when it involves a wrong decision on a question of law - AFT would be justified in allowing an appeal against conviction by a courtmartial when there was a material irregularity in the course of the trial resulting in miscarriage of justice. (Para 27) Union of India v. Major R. Metri No. 08585N, 2022 LiveLaw (SC) 343 : AIR 2022 SC 1661 : (2022) 6 SCC 525

Arms

Arms Act, 1950; Section 27 - Supreme Court Patna High Court judgment which modified the judgment passed by the Trial Court convicting the appellants- accused under Section 307 read with Section 34 Indian Penal Code to Section 324 IPC and confirming their conviction under Section 27 of the Arms Act. Anuj Singh @ Ramanuj Singh @ Seth Singh v. State of Bihar, 2022 LiveLaw (SC) 402 : AIR 2022 SC 2817

Army

Army Act, 1950 - Army Regulations - Regulation 349 - Pending the Court of Inquiry, an opportunity of hearing not required to be afforded before suspending Army officers - Under Regulation 349 also, there is no requirement of such a procedure to be followed. Col. Vineet Raman Sharda v. Union of India, 2022 LiveLaw (SC) 606

Army Act, 1950 - Section 125 - Section 125 not only recognizes that an element of discretion has been vested in the designated officer, but it also postulates that the designated officer should have decided that the proceedings be instituted by the court -martial in which event the court -martial would take place. (Para 44) State of Sikkim v. Jasbir Singh, 2022 LiveLaw (SC) 116 : (2022) 7 SCC 287

Army Act, 1950 - Section 125 - The criminal court will have jurisdiction to try a case against an army personnel if the Commanding Officer does not exercise the discretion under Section 125 of the Army Act to initiate court -martial with respect to the offence - If the designated officer does not exercise this discretion to institute proceedings before a court -martial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court. (Para 30) State of Sikkim v. Jasbir Singh, 2022 LiveLaw (SC) 116 : (2022) 7 SCC 287

Army Act, 1950 - Section 70 - The ingredients of Section 70 are: (i) The offence must be committed by a person subject to the Army Act; (ii) The offence must be committed against a person who is not subject to military, naval or air force law; and (iii) The offence must be of murder, culpable homicide not amounting to murder or rape. (Para 43) State of Sikkim v. Jasbir Singh, 2022 LiveLaw (SC) 116 : (2022) 7 SCC 287

Army Act, 1950; Section 122 - For the purpose of Section 122, the two dates will be relevant i.e., the date when the alleged offence comes to the knowledge of the person aggrieved and the date on which the authority competent to initiate action comes to know about the alleged offence - In this case, a letter dated 13.08.2015 written by the aggrieved person to the concerned authority which showed that he was aware of the alleged offence - The date 13.08.2015 would be the crucial date on which the aggrieved person had the knowledge about the commission of the alleged offence. Therefore the time had started running from the said date for the purpose of Section 122 - The contention that the date of aggrieved person's knowledge about the commission of the alleged offence should be construed as the date when the authority prima facie concluded after the Court of Inquiry that the offence was committed, cannot be accepted - The Convening Authority having directed the trial by General Court Martial vide order dated 22.11.2018, the same was clearly beyond three years and therefore barred under Section 122 of the Act. Col. Anil Kumar Gupta v. Union of India, 2022 LiveLaw (SC) 931 : AIR 2022 SC 5626

Army Law - Appeal against Armed Forces Tribunal order of conviction and dismissal from service of former Lt Gen SK Sahni for allegations relating to procurement of ration by Army purchase organisation - Allowed - AFT has specifically come to a finding that the respondent has not committed any fraud or did not commit any act which resulted in actual loss or wrongful gain to any person. We are unable to appreciate as to on what basis the learned AFT comes to a conclusion that the acts lead to an inference that the attempts were made to cause a wrongful gain. Union of India v. Lt. Gen SK Sahni, 2022 LiveLaw (SC) 310 : (2022) 6 SCC 544

Atiyat Enquiries

Atiyat Enquiries Act, 1952 (Andhra Pradesh (Telangana Area)) - The Jurisdiction of the Atiyat Court would be limited to the disputes relating to Atiyat grants as defined in the Enquiries Act. (Para 165) State of Andhra Pradesh v. A.P. State Wakf Board, 2022 LiveLaw (SC) 136

Award of Tender

Award of Tender - Contractor cannot be blacklisted for life - One cannot be blacklisted for life. The order of blacklisting to the extent that it has not specified the period cannot be sustained. Chauhan Builders Raibareli v. State of Uttar Pradesh, 2022 LiveLaw (SC) 694

Award of Tender - There is no public duty on the part of the State to indicate the HSN code for GST rates in the tender document - Para 56- We are at a loss to further understand how in the name of producing a level playing field, the State, when it decides to award a contract, would be obliged to undertake the ordeal of finding out the correct HSN Code and the tax applicable for the product, which they wish to procure. This is, particularly so when the State is not burdened with the liability to pay the tax. The liability to pay tax, in the case before us, is squarely on the supplier. (Para 47) Union of India v. Bharat Forge Ltd., 2022 LiveLaw (SC) 691 : AIR 2022 SC 3821

B

Bail

Bail - Appeal against Allahabad HC granting bail to an accused - Allowed - Order of High Court granting bail to co-accused was earlier set aside - Reasons which have weighed with this Court in cancelling the bail which was granted to the co-accused would equally apply to the case of the first respondent which also arises out of the same first information report and incident. Rishipal @ Rishipal Singh Solanki v. Raju, 2022 LiveLaw (SC) 344

Bail - Economic Offences - The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another - It is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. (Para 66) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577 : AIR 2022 SC 3386 : (2022) 10 SCC 51

Bail - Post-conviction bail – All persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail. Sonadhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 788

Bail - The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. (Para 72-73(a)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577 : AIR 2022 SC 3386 : (2022) 10 SCC 51

Bail - While granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. (Para 9) Sunil Kumar v. State of Bihar, 2022 LiveLaw (SC) 85 : AIR 2022 SC 715 : (2022) 3 SCC 245

Banking

Banking - The Bank employee always holds the position of trust where honesty and integrity are the sine qua non. (Para 11) United Bank of India v. Bachan Prasad Lall, 2022 LiveLaw (SC) 164 : AIR 2022 SC 943 : (2022) 4 SCC 358

Banking Law - Bank’s Liability for acts of employees - Acts of bank/post office employees, when done during their course of employment, are binding on the bank/post office at the instance of the person who is damnified by the fraud and wrongful acts of the officers of the bank/post office. Post office / bank, can and is entitled to proceed against the officers for the loss caused due to the fraud etc., but this would not absolve them from their liability if the employee involved was acting in the course of his employment and duties. (Para 37) Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139 : (2022) 6 SCC 351

Banking Law - Bank’s Liability for acts of employees - What is relevant is whether the crime, in the form of fraud etc., was perpetrated by the servant/employee during the course of his employment. Once this is established, the employer would be liable for the employee’s wrongful act, even if they amount to a crime. Whether the fraud is committed during the course of employment would be a question of fact that needs to be determined in the facts and circumstances of the case. (Para 38) Pradeep Kumar v. Post Master General, 2022 LiveLaw (SC) 139 : (2022) 6 SCC 351

Banking Regulation (Amendment) Act, 2020 - Transfer Petitions filed by RBI - All the writ petitions which have been filed before the High Courts challenging the validity of the Banking Regulation (Amendment) Act 2020 and/or the circular dated 25 June 2021 shall stand transferred to the High Court of Madras. Reserve Bank of India v. Big Kancheepuram Cooperative Town Bank Ltd., 2022 LiveLaw (SC) 850

Bar Council

Bar Council of India Rules - Provisional enrolment - Persons engaged in other employments can be permitted to provisionally enrol with the concerned Bar Council and to appear in the All India Bar Examination (AIBE), and that upon clearing the AIBE, they can be given a period of 6 months to decide whether to join legal profession or continue with the other job. Bar Council of India v. Twinkle Rahul Mangonkar, 2022 LiveLaw (SC) 414

Basic Structure Doctrine

Basic Structure Doctrine - It is therefore, inaccurate to say that provisions that enable, exercise of power, would not violate the basic structure of the Constitution. The enabling provision in question's basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court's inquiry therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. (Para 157) Janhit Abhiyan v. Union of India, 2022 LiveLaw (SC) 922

Benami Transactions

Benami Transactions (Prohibition) Amendment Act, 2016 - The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions. (Para 18.1) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700 : AIR 2022 SC 4558

Blacklisting

Blacklisting - "Debarment" is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission. It is for the State or appropriate authority to pass an order of blacklisting/debarment in the facts and circumstances of the case - "Debarment" is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. (Para 8.7 and 9.1) State of Odisha v. Panda Infraproject, 2022 LiveLaw (SC) 206 : (2022) 4 SCC 393

Blacklisting - Guidelines issued by Odisha Government that blacklisting period per offence shall be limited to three years subject to an overall maximum cumulative period of ten years for multiple offences - Disapproved - Duration of blacklisting cannot be solely per offence. Seriousness of the lapse and the incident and/or gravity of commission and omission on the part of the contractor which led to the incident should be the relevant considerations. In a given case, it may happen that the commission and omission is very grave and because of the serious lapse and/or negligence, a major incident would have taken place. In such a case, it may be the contractor's first offence, in such a case, the period/duration of the blacklisting/banning can be more than three years. However, as the said guidelines are not under challenge, we rest the matter there and leave it to the State Government to suitably amend and/or modify the said office memorandum. However, what we have observed above can be a guide while determining the period of debarment/blacklisting. (Para 9.1) State of Odisha v. Panda Infraproject, 2022 LiveLaw (SC) 206: (2022) 4 SCC 393

Blacklisting - Show cause notice was issued upon the contractor by which the contractor was called upon to show cause why he be not blacklisted; the show cause notice was replied to by the contractor and thereafter, after considering the material on record and the reply submitted by the contractor and having found the serious lapses which led to a serious incident in which one person died and eleven others were injured, the State Government took a conscious decision to blacklist the contractor. Therefore, it cannot be said the order blacklisting the contractor was in violation of principles of natural justice. (Para 8.5) State of Odisha v. Panda Infraproject, 2022 LiveLaw (SC) 206 : (2022) 4 SCC 393

Bonded Labour

Bonded Labour System (Abolition) Act, 1976; Sections 16-17- For attracting the provision of Section 16 of the Act, the prosecution must establish that an accused has forced and compelled the victim to render bonded labour. This force and compulsion must be at the instance of the accused and the prosecution must establish the same beyond reasonable doubt. Similarly, under Section 17 of the Act, there is an obligation on the prosecution to establish that the accused has advanced a bonded debt to the victim. (Para 11) Selvakumar v. Manjula, 2022 LiveLaw (SC) 786

Buildings

Buildings (Lease, Rent and Eviction) Control Act, 1960 (Andhra Pradesh); Section 10 - Bonafide Requirement - The landlord was carrying on business and that he had children for whom he wanted to set-up a business - Rent Control Appellate Authority passed Eviction Order - Andhra Pradesh HC, while allowing Revision Petition observed that the eldest son of the Landlord was still pursuing studies and therefore the requirement of the land lord was not bona fide - Allowing the appeal, the SC observed: There is no bar for someone who is pursuing higher studies, to start a business. The High Court, for a moment did not realize that it was dealing with a revision, where its jurisdiction was limited. Mohammed Sadiq v. Deepak Manglani, 2022 LiveLaw (SC) 957

C

Carriage by Air

Carriage by Air Act, 1972; Rule 30 - Limitation Act, 1963; Section 29(2) - Rule 30 expressly excludes the Limitation Act as provided in Section 29 - Rule 30 (2) does not enable applicability of exclusion of periods for the purpose of reckoning the period of two years. (Para 43) Bhagwandas B. Ramchandani v. British Airways, 2022 LiveLaw (SC) 645

CBI Investigation

CBI Investigation - Keralite Medical Student Death in Mangaluru in 2014 - Writ petition filed by his father seeking CBI investigation - Allowed - It appears prima facie that it is not a case of simple accident as opined by the Investigating Agency - CID, Bengaluru has failed to perform its duty by not thoroughly investigating the case and tried to find out the truth - It is unheard of that an abated charge-sheet can be filed against the deceased who is alleged to have been murdered/killed - Abated charge-sheet set aside. M.S. Radhakrishnan v. State of Karnataka, 2022 LiveLaw (SC) 918

CBSE

CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body - CBSE itself is not a statutory body nor the regulations framed by it has any statutory force. Secondly, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management - Thus, where a teacher or non teaching staff challenges action of Committee of Management that it has violated the terms of contract or the rules of the Affiliation Byelaws, the appropriate remedy of such teacher or employee is to approach the CBSE or to take such other legal remedy available under law. It is open to the CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the Committee of Management has not performed its duties in accordance with the Affiliation Byelaws. (Para 28-33) St. Mary's Educational institute v. Rajendra Prasad Bhargava, 2022 LiveLaw (SC) 708

Central Educational Institutions (Reservation in Teachers' Cadre) Act, 2019

Central Educational Institutions (Reservation in Teachers' Cadre) Act, 2019 - Supreme Court directs Centre and IITs to follow the reservation and act as per the reservations provided under the Act. Sachchida Nand Pandey v. Union of India, 2022 LiveLaw (SC) 1037

Central Electricity Authority

Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 - Regulation 116 - The width and amplitude of Regulation 116 cannot be restricted by interpreting the word 'deviation' as having lesser scope than exemption. 'Deviation' from the Regulations would amount to either exemption or relaxation. Therefore, we are in agreement with the Division Bench that the order dated 13.02.2019 cannot be said to have been issued beyond the power conferred by Regulation 116 of 2010 Regulations. Muhammed A.A. v. State of Kerala, 2022 LiveLaw (SC) 188 : AIR 2022 SC 1251

Central Excise

Central Excise Act, 1944; Section 11B - Central Excise Rules, 2002 ; Rule 18 - While making claim for rebate of duty under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 shall have to be applied and applicable. (Para 15) Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru, 2022 LiveLaw (SC) 997

Central Excise Act, 1944; Section 173L - For the purpose of considering the value for refund under Section 173L what is required to be considered is the value of the returned goods - "value" means the market value of the excisable goods and not the exduty value thereof. Therefore, the submission on behalf of the assessee that the returned goods may be treated as a raw material and therefore the "value" of the raw material can be considered for the purpose of "value" while determining the refund under Section 173L cannot be accepted. (Para 5) Peacock Industries Ltd. v. Union of India, 2022 LiveLaw (SC) 740 : AIR 2022 SC 4132

Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 - The absence of a provision for filling up a post in the Commissionerate by absorption of persons belonging to the cadre of another Commissionerate clearly indicates that the cadre is treated as a posting unit and there is no occasion to absorb a person from outside the cadre who holds a similar or comparable post. (Para 32) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Central Excise Rules, 1944 - Commissioner of Customs and Central Excise could not have invoked the powers under Rule 173Q(2) of the Central Excise Rules, 1944 on 26.03.2007 and 29.03.2007 for confiscation of land, buildings etc., when on such date, the said Rule 173Q(2) was not in the Statute books, having been omitted by a notification dated 12.05.2000. (Para 47) Punjab National Bank v. Union of India, 2022 LiveLaw (SC) 208 : AIR 2022 SC 1475 : (2022) 7 SCC 260

Central Excise Tariff Act, 1988 - Modified Vapour Absorption Chiller Machines cannot be categorized as a Heat Pump to avail concessional tariff benefits - The end use of MVAC is to produce Chilled Water. The use of heat as one of the sources in the airconditioning system would not take away the primary or basic function of the MVAC, which is to cool and not heat water - Definition of a product given in the HSN should be given due weightage in the classification of a product for the purpose of levying excise duty. Thermax Ltd v. Commissioner of Central Excise, Pune-1, 2022 LiveLaw (SC) 881 : AIR 2022 SC 5067

Central Goods and Services

Central Goods and Services Tax Act, 2017; Section 174(2)(c) - Whether the Union of India can be directed to adhere to the representation as made by it in the Office Memorandum dated 7th January 2003 even after the enactment of the CGST Act ? - Proviso to Section 174(2)(c) provides therein that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded - If the contention is accepted, it will amount to enforcing a representation made in the said O.M. of 2003 and 2003 Notification contrary to the legislative incorporation in the proviso to Section 174(2)(c) of the CGST Act. Hero Motocorp Ltd. v. Union of India, 2022 LiveLaw (SC) 852 : AIR 2022 SC 5572

Central Goods and Services Tax Act, 2017; Section 56 - In terms of the principal part of Section 56 of the CGST Act, the interest would be awarded at the rate of 6 per cent. The award of interest at 9 per cent would be attracted only if the matter was covered by the proviso to the said Section 56 - Wherever a statute specifies or regulates the interest, the interest will be payable in terms of the provisions of the statute - Wherever a statute, on the other hand, is silent about the rate of interest and there is no express bar for payment of interest, any delay in paying the compensation or the amounts due, would attract award of interest at a reasonable rate on equitable grounds. (Para 18-19) Union of India v. Willowood Chemicals, 2022 LiveLaw (SC) 398 : AIR 2022 SC 3009 : (2022) 9 SCC 341

Central Sales Tax

Central Sales Tax Act 1956 - Court directed the state of Andhra Pradesh to transfer to Jharkhand the amount of central sales tax deposited by Tata Motors with respect to the sale of buses to the Andhra Pradesh State Road Transport Corporation (APSRTC) -transaction in question, namely, sales effected through RSO, Vijayawada with respect to vehicles/buses sold to APSRTC, the sale/s is/are found to be in the nature of inter-state sale/s. In that view of the matter, the appellant – Tata Motors Limited was liable to pay central sales tax to the State of Jharkhand. However, treating the sale as stock transfer, the appellant/its representative had paid the tax on the aforesaid transaction to the State of Andhra Pradesh which is not leviable by the State of Andhra Pradesh. Therefore, the amount of central sales tax recovered by the State of Andhra Pradesh is required to be transferred to the State of Jharkhand and the same is required to be adjusted towards the amount of tax to be paid to the State of Jharkhand. Tata Motors Ltd. v. Central Sales Tax Appellate Authority, 2022 LiveLaw (SC) 847

Central Sales Tax Act 1956 - Prior to insertion of Section 22(1B) to the Central Sales Tax Act, 1956, there was no provision by which the Appellate Authority could have issued directions for refund of the tax collected by the State which has been held by the Appellate Authority to be not due to that State, or alternatively, direct that State to transfer the refundable amount to the State to which central sales tax is due on the same transaction. However, by the Finance Act, 2010, Section 22(1B) has been inserted to Act 1956 providing for refund-in line with Section 22(1B) of the Act 1956, the State of Andhra Pradesh is directed to transfer to the State of Jharkhand the amount of central sales tax deposited by the appellant with the State of Andhra Pradesh with respect to transaction in question. Tata Motors Ltd. v. Central Sales Tax Appellate Authority, 2022 LiveLaw (SC) 847

CETSTAT

CETSTAT judgments overruled - Some judgments relied upon by the assessee and the CESTAT have limited precedential value - the Apex Court had merely affirmed the ruling of CESTAT in these judgements without providing independent reasoning - Overruled Volkswagen India Pvt. Ltd. v. CCE, Pune-I; Computer Sciences Corporation India Pvt. Ltd. v. Commissioner of Service Tax; SRF Ltd. v. Commissioner and Commissioner of Central Excise v. Coca Cola India Pvt. Ltd. [Para 59] C.C. C.E. & S.T. Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526 : AIR 2022 SC 2450

Child Custody

Child Custody - Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance in custody matters - One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson - Grand Parents are more attached emotionally with grandchildren. (Para 7.2) Swaminathan Kunchu Acharya v. State of Gujarat, 2022 LiveLaw (SC) 547 : AIR 2022 SC 2774 : (2022) 8 SCC 804

Child Custody - The question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child - Unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned' - Welfare of the child should be the paramount consideration. (Para 8) Rohith Thammana Gowda v. State of Karnataka, 2022 LiveLaw (SC) 643 : AIR 2022 SC 3511

Cinematograph

Cinematograph Act, 1952 - An injunction action can be initiated even after a certificate is issued under the Cinematograph Act. The Court may examine the film and judge whether its public display, breaches the norms of decency or contravenes the law. A film which is defamatory or indecent or breaches copyright cannot be allowed to be exhibited only because a certificate has been issued. The examples are of course illustrative. (Para 10) Shri Babuji Rawji Shah v. S. Hussain Zaidi, 2022 LiveLaw (SC) 213 : 2022 (4) SCALE 440

Cinematograph Act, 1952 - Guidelines for certification of films - A book or a film that illustrates the consequences of a social evil must necessarily show that social evil. A film that carries a message and depicts social circumstances of a group of underprivileged women is not impermissible. (Para 11) Shri Babuji Rawji Shah v. S. Hussain Zaidi, 2022 LiveLaw (SC) 213 : 2022 (4) SCALE 440

Cinematograph Act, 1952 - SLP Against Bombay High Court order refusing to grant interim injunction against release of the film "Gangubai Kathiawadi" - Dismissed - The film certificate issued by the CBFC prima facie shows that the film is not defamatory. Prima facie, it appears that the movie is an artistic expression within the parameters of law. (Para 25) Shri Babuji Rawji Shah v. S. Hussain Zaidi, 2022 LiveLaw (SC) 213 : 2022 (4) SCALE 440

Cinematograph Act, 1952 - The fact that the film has been certified by CBFC, which comprises of a body of experts prima facie shows compliance with the requirements of the guidelines. (Para 13) Shri Babuji Rawji Shah v. S. Hussain Zaidi, 2022 LiveLaw (SC) 213 : 2022 (4) SCALE 440

Circumstantial Evidence

Circumstantial Evidence - Five golden principles regarding appreciation of evidence when the case of the prosecution hinges on the circumstantial evidence discussed. (Para 22) Mohd Firoz v. State of Madhya Pradesh, 2022 LiveLaw (SC) 390 : AIR 2022 SC 1967 : (2022) 7 SCC 443

Circumstantial Evidence - In order to sustain conviction, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [Para 33] Rahul v. State of Delhi Ministry of Home Affairs, 2022 LiveLaw (SC) 926

CISF

CISF Rules, 2001; Rule 52 - Appellate power under Rule 52 of the CISF Rules, 2001, cannot be equated with power of judicial review exercised by constitutional courts. (Para 9) Union of India v. Managobinda Samantaray, 2022 LiveLaw (SC) 244 : 2022 (4) SCALE 667

Civil Cases

Civil Cases - Pleadings - Relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice. (Para 15-18) Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638 : AIR 2022 SC 3544

Civil Litigation

Civil Litigation - Eviction order passed in 1989 yet not permitted to be executed by the judgment debtor by initiating the proceedings one after another - This is a clear example of the abuse of the process of law and the Court and not permitting the judgment -creditor to get the benefit under the decree which is passed in his favour in the year 1989 - Special Leave Petitions dismissed with cost which is quantified at Rs.25,000/ -. M. Chinnamuthu v. Kamaleshan @ Shanmugam, 2022 LiveLaw (SC) 209

Civil Litigation – Judgment Creditor is entitled to enjoy the fruit of the litigation within a reasonable time - In our justice delivery system, the real litigation starts only after the decree is passed and the judgment -creditor has to wait for number of years for enjoying the fruit of the decree and the litigation. If such a delayed tactics is permitted, the litigant would lose the confidence in the justice delivery system. Every litigation has to put to an end at a particular time. M. Chinnamuthu v. Kamaleshan @ Shanmugam, 2022 LiveLaw (SC) 209

Civil Suit

Civil Suit - If a party to a suit does not appear in the witness box to state their own case and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up is not correct. (Para 12) Seethakathi Trust Madras v. Krishnaveni, 2022 LiveLaw (SC) 58 : AIR 2022 SC 558 : (2022) 3 SCC 150

Civil Suit - If the title to the property was the basis of the relief of possession, the relief for permanent injunction can be said to be a consequential relief. (Para 11) Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241 : 2022 (4) SCALE 352

Civil Suit - Injunction - Once the dispute with respect to title is settled and it is held against the plaintiff, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. (Para 9) Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241 : 2022 (4) SCALE 352

Civil Suit - The rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Shankarlal Nadani v. Sohanlal Jain, 2022 LiveLaw (SC) 367 : AIR 2022 SC 1813

Civil Trial

Civil Trial - Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court to reexamine the order or issue. Sirikonda Madhava Rao v. N. Hemalatha, 2022 LiveLaw (SC) 970

Coal Mines

Coal Mines (Nationalisation) Act, 1973; Section 3 - What was transferred to and vested in the Central Government were the coal mines - The ownership of the land was immaterial. If the land fell within the definition of the expression “mine” under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1). (Para 13) Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, 2022 LiveLaw (SC) 350 : AIR 2022 SC 1646 : (2022) 6 SCC 99

Coal Mines (Nationalisation) Act, 1973; Sections 2(h) and 3(1) - Focus is on the property and not on who the owner of the property is - Even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word “mine”. (Para 15) Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, 2022 LiveLaw (SC) 350 : AIR 2022 SC 1646 : (2022) 6 SCC 99