Larger Bench References Made By Supreme Court in 2021

In the COVID-19 affected 2021, where the Supreme Court was functioning in a hybrid model throughout except for the first three months of the year, several substantial points of law were settled by answering long-pending references. Also, some new points of public importance were referred to a larger bench. Here is a look at some of such important judgments(in no particular order.Whether non-payment of stamp duty On Commercial Contract Will Invalidate Arbitration AgreementIn N.N.Global Mercantile Pvt Ltd v Indo Unique Flame Ltd a three judge bench of the Supreme Court has observed that non-payment of stamp duty on the commercial contract will not invalidate the arbitration agreement. Disagreeing with two earlier judgments in this regard, the bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee. Disagreeing with earlier judgments in this regard (SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. Pvt. Ltd.(2011) 14 SCC 66; Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited (2019) 9 SCC 209; Vidya Drolia & Ors. v. Durga Trading Corporation), the bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee referred the following question to the Constitution Bench."Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument?"Appointment of Arbitrator by Ineligible Person: Union of India v Tantia Constructions Ltd In the case of Union of India v Tantia Constructions Ltd, the Supreme Court referred to a larger bench the issue of whether the appointment of an arbitrator by a person, who is disqualified to be an arbitrator as per Section 12(5) of the Arbitration Act, is valid. A bench comprising Justices RF Nariman, Navin Sinha, and KM Joseph doubted the correctness of the decision in Central Organisation for Railway Electrification vs.M/s ECI-SPIC-SMO-MCML (JV) A Joint Venture Company and referred the issue to a larger bench. In the decision delivered on December 17, 2019 in Central Organization of Railway Electrification, a division bench comprising Justices R Banumathi and AS Bopanna had held that such appointments by an authority who is disqualified from being an arbitrator can be valid depending on the facts. On the other hand, an earlier decision delivered by a 2-judge bench headed by Justice Nariman in the case Bharat Broadband Network Ltd vs United Telecoms Ltd(April 2019) had held that the appointment of arbitrator by a person who himself is ineligible to be an arbitrator as per Section 12(5) of the Arbitration and Conciliation Act 1996 is void ab initio. On January 11, 2021, the three-judge bench headed by Justice Nariman observed that it prima facie disagreed with the decision in Central Organisation for Railway Electrification vs.M/s ECI-SPIC-SMO-MCML (JV) A Joint Venture Company and asked the Chief Justice to constitute a larger Bench to look into the correctness of this judgment. Inclusion of Day of Remand in Default Bail claim In the case of Enforcement Directorate v Kapil Wadhawan, a Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy referred to a larger bench the question of whether the day of remand is to be included for considering a claim for default bail. The Court was considering the appeal filed against the Bombay High Court judgment which held that the day of remand has to be included for the purpose of computing the period of 90 days or 60 days as contemplated in Section 167 (2)(a)(ii) of the Code of Criminal Procedure. The bench noticed that, in State of M.P. Vs. Rustom & Ors, Ravi Prakash Singh Vs. State of Bihar and M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence, it was held that the date of remand is to be excluded for computing the permitted period for completion of the investigation. On the other hand, the judgments in Chaganti Satyanarayan Vs. State of Andhra Pradesh, CBI Vs. Anupam J Kulkarni, State Vs. Mohd. Ashraft Bhat, State of Maharashtra Vs. Bharati Chandmal Varma, and Pragyna Singh Thakur Vs. State of Maharashtra, has held that the date of remand must be included for computing the available period for investigation for determining entitlement to default bail. The Bench observed that since "the earlier position of law was not considered and the latest decision is of a 3 judges bench, it is necessary for a bench of appropriate strength to settle the law taking note of the earlier precedents. Unless the issue is appropriately determined, the courts across the country may take decision on the issue depending upon which judgment is...

Larger Bench References Made By Supreme Court in 2021

Sneha Rao

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