Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [May 8 – 14]

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 Code of Civil Procedure, 1908; Order VIII Rule 1 - The time limit for filing of the written statement is not mandatory - Delay in filing of the written statement could very well be compensated with costs. (Para 3-4) Bharat Kalra v. Raj Kishan Chabra, 2022 LiveLaw (SC) 465 Code of Civil Procedure, 1908; Order XIV Rule 2 - The plea of res judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact - Preliminary issues can be those where no evidence is required and on the basis of reading of the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the Court may decide such issues with the sole objective for the expeditious decision. (Para 20, 30) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 Code of Civil Procedure, 1908; Order XIV Rule 2, Order XX Rule 5, Order XLI Rules 24 & 25 - To avoid the possibility of remanding back the matter after the decision on the preliminary issues, it is mandated for the trial court under Order XIV Rule 2 and Order XX Rule 5, and for the first appellate court in terms of Order XLI Rules 24 and 25 to record findings on all the issues. (Para 33) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 Code of Civil Procedure, 1908; Order XLI Rules 24 and 25 - If evidence is recorded by the learned Trial Court on all the issues, it would facilitate the first Appellate Court to decide the questions of fact even by reformulating the issues - It is only when the first Appellate Court finds that there is no evidence led by the parties, the first Appellate Court can call upon the parties to lead evidence on such additional issues, either before the Appellate Court or before the Trial Court. (Para 32) Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458 Code of Civil Procedure, 1908; Order XXVI Rule 11 - 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 Code of Civil Procedure, 1908; Order XXVI Rule 11 - We would like to introduce the principle of a 'facilitator' which a court may appoint, be it a commissioner or an expert, for a specific purpose and cause for ascertainment of a fact which may be even disputed. In some cases, the commissioner may even hear the parties and give his expert opinion based on the material or evidence produced by the parties before the commissioner. (Para 32) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 Code of Civil Procedure, 1908; Order XXVI Rule 9,11 - The commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties - It is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. (Para 33) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471 Code of Criminal Procedure, 1973; Section 313 - Offering no explanation on incriminating circumstances mentioned above would become an additional link in the chain of circumstances. (Para 47) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480 Code of Criminal Procedure, 1973; Section 354(3) - Death Sentence - The 'crime test'...

Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [May 8 – 14]

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