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

LIVELAW NEWS NETWORK
17 May 2022 6:16 AM GMT
Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [May 8 – 14]
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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...

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' and the 'criminal test' require to be followed before awarding capital sentence - Consideration of the aggravating and mitigating circumstances with application of mind required. Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Code of Criminal Procedure, 1973; Section 432 - Remission or pre­mature release has to considered in terms of the policy which is applicable in the State where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court - The appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments under Section 432(7) CrPC. (Para 13, 14) Radheshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat, 2022 LiveLaw (SC) 484

Code of Criminal Procedure, 1973; Section 432 - Remission Policy - The application for grant of pre­mature release will have to be considered on the basis of the policy which stood on the date of conviction. (Para 9) Radheshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat, 2022 LiveLaw (SC) 484

Code of Criminal Procedure, 1973; Section 53A - The lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder - Even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. (Para 28) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Companies Act, 1956; Section 10­F - Re­appraisal of entire evidence by the High Court is not permissible - Has to restrict its determination to the purported questions of law arising from the order of CLB. (Para 24) Mahima Datla v. Renuka Datla, 2022 LiveLaw (SC) 479

Companies Act, 1956; Section 397 - An order could be made on application made under sub­section (1), if the Court is of the opinion that (i) the Company's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive of any member or members, and; (ii) the facts would justify the making of a winding up order on the ground that it was just and equitable that the Company should be wound up, and; (iii) the winding up order would unfairly prejudice the Petitioners - An application for relief can be brought by any member who complain that the 25 affairs of the Company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members. The intention of the legislature is that majority shareholders who oppress the minority shareholders and conduct the affairs of the company prejudicial to public interest may invoke the jurisdiction of CLB. (Para 39) Mahima Datla v. Renuka Datla, 2022 LiveLaw (SC) 479

Companies Act, 2013; Section 196, Schedule V - No person shall be eligible to be a whole­time Director of a Company after attaining the age of 70 years unless such appointment is approved by a special resolution of the Company. (Para 35) Mahima Datla v. Renuka Datla, 2022 LiveLaw (SC) 479

Constitution of India, 1950; Article 145(3), 239AA(3)(a) and Entry 41 of List II of Seventh Schedule - interpretation of the phrases: "in so far as any such matter is applicable to Union Territories" and "Subject to the provisions of this Constitution" as contained in Article 239AA(3)(a) of the Constitution - Referred for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution. (Para 8-10) Govt of NCT Delhi v. Union of India, 2022 LiveLaw (SC) 459

Constitution of India, 1950; Article 226 - An order of the Registrar directing the registration of a document is amenable to a challenge under Article 226 of the Constitution - The mere existence of the remedy available before a civil court, under Section 9 of the CPC to avoid the document or to seek a declaration in regard to its invalidity, will not divest a person, who complains that the order passed by Registrar for the registration of the document was contrary to statutory provisions, of the remedy which is available in the exercise of a court's writ jurisdiction under Article 226 of the Constitution. (Para 30) Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462

Constitution of India, 1950; Article 227 - Consumer Protection Act, 2019; Section 58 (1)(a)(iii & iv) - Writ petition under Article 227 maintainable against the order passed by the National Commission in an appeal under Section 58 (1)(a)(iii) or Section 58(1)(a) (iv) of the 2019 Act - While granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India. (Para 11-14.1) Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd; 2022 LiveLaw (SC) 481

Constitution of India, 1950; Article 246 - Reserve Bank of India Act, 1934; Chapter III B - Kerala Money Lenders Act, 1958 - The moment the Parliament stepped in to codify the law relating to registration and regulation of NBFCs, by inserting certain provisions in Chapter III­B of the RBI Act, the same would cast a shadow on the applicability (even assuming it is applicable) of the provisions of the Kerala Act to NBFCs registered under the RBI Act and regulated by RBI - In cases of this nature, Article 246(1) would squarely apply. (Para 8, 8.3) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Constitution of India, 1950; Article 246, 254 - Three important tests of inconsistency or repugnancy - (i) whether there is direct conflict between the two provisions; (ii) whether Parliament intended to lay down an exhaustive Code in respect of the subject matter replacing the Act of the State legislature; and (iii) whether the law made by Parliament and the law made by State legislature occupy the same field. (Para 7.9) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Constitution of India, 1950; Article 254 - Repugnancy under Article 254 would arise only if both the Parliamentary law and the State law are referable to List­ III. Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Constitution of India, 1950; Article 32,226 - Judicial Review - Unless the Court is satisfied that the decision which has been taken by the authorities is without application of mind to relevant circumstances or was manifestly arbitrary, there would be no reason for the Court to interfere. (Para 13) Dr. R. Dinesh Kumar Reddy v. Medical Counselling Committee, 2022 LiveLaw (SC) 486

Constitution of India, 1950; Articles 227, 136 - NCDRC can be regarded as a 'Tribunal' within the meaning of Article 227 and/or 136 of the Constitution of India. (Para 12) Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd; 2022 LiveLaw (SC) 481

Constitution of India, 1950; Articles 227, 136 - When the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution. (Para 13) Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd; 2022 LiveLaw (SC) 481

Constitution of India,1950; Article 243E, 243U - Constitutional Mandate to hold local body elections in time inviolable- Neither the State Election Commission nor the State Government or for that matter the State Legislature, including this Court in exercise of powers under Article 142 of the Constitution of India can countenance dispensation to the contrary. (Para 5) Suresh Mahajan v. State of Madhya Pradesh, 2022 LiveLaw (SC) 463

Contract Act, 1872; Sections 176 & 177 - Pledge, Pawnee & Pawnor -Contract Act does not conceive of sale of the pawn to self and consequently, the pawnor's right to redemption in terms of Section 177 of the Contract Act survives till 'actual sale' (Para 8.2) PTC India Financial Services Ltd v. Venkateswarlu Kari, 2022 LiveLaw (SC) 475

Criminal Trial - Being related to the victim, by itself, is no reason at all to discredit the testimony of a witness. (Para 34) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - Circumstantial Evidence - Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. (Para 10) Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461

Criminal Trial - Death sentence imposed on accused in case of rape and murder of 8 year old commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years - The present case cannot be considered as one falling in the category of 'rarest of rare cases'. Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - Description of a witness as 'chance witness' cannot and will not by itself denude the admissibility or relevance of the evidence of such a witness if nothing was brought out to make his version suspicious and thereby unacceptable. (Para 37) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - Last seen theory – discussed. (Para 32-32.5) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - The evidence tendered by the related or interested witness cannot be discarded on that ground alone. However, as a rule of prudence, the Court may scrutinize the evidence of such related or interested witness more carefully. (Para 26) Surendran v. State of Kerala, 2022 LiveLaw (SC) 482

Criminal Trial - The recovery of the dead body, which was in a concealed condition from an unused and dilapidated building based on the disclosure statement of an accused is a crucial incriminating circumstance - Discovery of the body at the instance of the accused is a crucial circumstance, in a case resting on circumstantial evidence. (Para 41) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - There would be nothing wrong in relying on the testimony of police officers if their evidence is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence. (Para 40) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

Criminal Trial - When other circumstances are available non-detection of blood group by itself would not be fatal. (Para 44) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

CRZ violations - Maradu Flats Demolition - The owners of the flats in the four buildings in Maradu, Kochi, which were demolished in 2020 for CRZ violations, are not entitled to interest on the refund payable to them by the builders. Kerala Coastal Zone Management Authority v. Maradu Municipality, 2022 LiveLaw (SC) 485

Depositories Act 1996 - Exercise of right on the part of the pawnee and consequent action on the part of the 'depository' recording the pawnee as the 'beneficial owner' is not 'actual sale'-Right to redemption under Section 177 of the Contract Act continues and can be exercised even after the pawnee has been registered and has acquired the status of 'beneficial owner'. The right of redemption would cease on the 'actual sale', that is, when the 'beneficial owner' sells the dematerialised securities to a third person. Once the 'actual sale' has been affected by the pawnee, the pawnor forfeits his right under Section 177 of the Contract Act to ask for redemption of the pawned goods. (10.4) PTC India Financial Services Ltd v. Venkateswarlu Kari, 2022 LiveLaw (SC) 475

Depositories Act 1996 - Principle that pawner has right to redeem on failure of reasonable notice will not apply to pledge of shares - We, however, accept that the Depositories Act, by-laws and rules relating to sale of dematerialised securities would be gravely undermined in case the pawnor is entitled to redeem the dematerialised shares from the third party on the ground that reasonable notice, as postulated under Section 176 of the Contract Act, was not given to the pawnor. (10.5) PTC India Financial Services Ltd v. Venkateswarlu Kari, 2022 LiveLaw (SC) 475

Depositories Act 1996 - Section 12 of the Depositories Act is not ex-facie inconsistent with pawnee and pawnor's contractual rights and obligations under the Contract Act and the common law. (Para 10.2) PTC India Financial Services Ltd v. Venkateswarlu Kari, 2022 LiveLaw (SC) 475

Duomatic Principle - Duomatic Principle applicable even in the Indian context - Strict adherence to a statutory requirement may be dispensed with if it is demonstrated otherwise on facts, if the same is consented by all members - Principle is only applicable in those cases wherein bona fide transactions are involved - Fraud is a clear exception. (Para 26-29) Mahima Datla v. Renuka Datla, 2022 LiveLaw (SC) 479

Easements Act, 1882; Section 52 - Licence - The inmates in the old age home are licensees and are expected to maintain a minimum level of discipline and good behaviour and not to cause disturbance to the fellow inmates who are also senior citizen - They have a legal right to stay in the room of the old age home only so long as they comply with the terms and conditions of such license - As a licensee, the plaintiffs have no right to stay in the accommodation allotted which is purely an approach to a human problem faced by the people in old age. (Para 23-26) Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal, 2022 LiveLaw (SC) 460

Electricity Act, 2003; Section 2(8), 2(49), 9, 42 - Even an association of corporate bodies can establish a captive power plant. The only requirement would be that the said plant must be established primarily for their own use. (Para 16) Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478

Electricity Act, 2003; Section 9 - National Electricity Policy, 2005 - The provision with respect to establishing captive power plant has been made with a view to not only securing reliable, quality and cost­ effective power but also to facilitate creation of employment opportunities through speedy and efficient growth of industry - A liberal provision has been made in Section 9 of the said Act so as to promote establishment of captive power plants. (Para 21-23) Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478

Environmental Law - Adherence to the principle of sustainable development is a constitutional requirement- Precautionary Principle essential feature of the principle of 'Sustainable Development' - In case of a doubt, protection of environment would have precedence over the economic interest - Precautionary principle requires anticipatory action to be taken to prevent harm and that harm can be prevented even on a reasonable suspicion. (Para 15-18) T.N. Godavarman Thirumulpad v. Union of India, 2022 LiveLaw (SC) 467

Environmental Law - Supreme Court revoked the approval granted by the Standing Committee of National Board for Wildlife (NBWL) for doubling of existing railway line from Castlerock (Karnataka) to Kulem (Goa) - Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. T.N. Godavarman Thirumulpad v. Union of India, 2022 LiveLaw (SC) 467

Evidence Act, 1872; Section 32(1) - Penal Code, 1860; Sections 498A, 304B, 302, 306 - Dying Declaration - In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge under Section 498A of the IPC under Section 32(1) of the Evidence Act , subject to meeting certain necessary pre­conditions (1) That her cause of death must come into question in the matter - For instance, matters where along with the charge under Section 498A of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC - As long as the cause of her death has come into question, whether the charge relating to death is proved or not is immaterial with respect to admissibility. (2) Prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case. No specific straitjacket formula or rule can be given with respect to this. Surendran v. State of Kerala, 2022 LiveLaw (SC) 482

Evidence Act, 1872; Section 32(1) - Test for Admissibility - The cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the 'circumstances of the transaction' relating to the death - The test is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. (Para 17) Surendran v. State of Kerala, 2022 LiveLaw (SC) 482

Evidence Act, 1872; Section 65B(4) - Certificate under Section 65B(4) is a mandatory requirement for production of electronic evidence - Oral evidence in the place of such certificate cannot possibly suffice. (Para 20-21) Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461

Evidence Act, 1872; Section 8 - Doctrine of Res Gestae - The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself. A conduct of the accused after the incident may become admissible under Section 6 of the Evidence Act, though not in issue, if it is so connected with the fact in issue. (Para 36) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480

General Clauses Act, 1897; Section 21 - Assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. (Para 9) Gomantak Mazdoor Sangh v. State of Goa, 2022 LiveLaw (SC) 466

Insolvency and Bankruptcy Code, 2016; Section 14, 60(6) - Section 60(6) does contemplate exclusion of the entire period during which the moratorium was in force in respect of corporate debtor in regard to a proceeding as contemplated therein at the hands of the corporate debtor - Present an order of Moratorium under Section 14, the entire period of the Moratorium is liable to be excluded in computing the period of limitation even in a suit or an application by a corporate debtor. (Para 25-28) New Delhi Municipal Council v. Minosha India Ltd., 2022 LiveLaw (SC) 469

Insolvency and Bankruptcy Code, 2016; Section 61 - An appeal against the order of NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. The Appellate Tribunal has the power to extend the period of limitation by another 15 days. Safire Technologies Pvt. Ltd. V. Regional Provident Fund Commissioner, 2022 LiveLaw (SC) 472

Insurance Law - Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies - two or more insurers must have insured the same assured in respect of the same risk on the same interest in the same subject-matter - once the first insurer has paid a complete indemnity to the assured, the second insurer would be entitled to decline liability - in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance. (Para 46, 47) United India Insurance Co. Ltd. v. Levis Strauss (India) Pvt. Ltd., 2022 LiveLaw (SC) 487

Insurance Law - Exclusion of liability in insurance policies - as a matter of general principle, it is well established that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed. (Para 19) United India Insurance Co. Ltd. v. Levis Strauss (India) Pvt. Ltd., 2022 LiveLaw (SC) 487

Interpretation of Statutes - Courts would not indulge in interpretation of a report of a body and when there is better material in the form of the Act itself available for interpretation. (Para 18) New Delhi Municipal Council v. Minosha India Ltd., 2022 LiveLaw (SC) 469

Interpretation of Statutes - Golden rule of interpretation discussed - If the words of a statute are not ambiguous, the scope of interpretation dwindles. (Para 19-23) New Delhi Municipal Council v. Minosha India Ltd., 2022 LiveLaw (SC) 469

Interpretation of Statutes - Principles that govern the interpretation to be given to proviso in the context of main provision discussed. (Para 50) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Interpretation of Statutes - The interpretation which advances the object and purpose of the Act, has to be preferred. (Para 24) Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478

Local Body Elections - Ongoing activity of delimitation or formation of ward cannot be a legitimate ground to be set forth by any authority much less the State Election Commission - to not discharge its constitutional obligation in notifying the election programme at the opportune time and to ensure that the elected body is installed before the expiry of 5 (five) years term of the outgoing elected body. (Para 11) Suresh Mahajan v. State of Madhya Pradesh, 2022 LiveLaw (SC) 463

Marine Policy - Marine Insurance Act, 1963; Section 4 - A contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage - warehouse risks, combined with voyage and other marine risks, are considered as part of marine insurance policies in India. (Para 19) United India Insurance Co. Ltd. v. Levis Strauss (India) Pvt. Ltd., 2022 LiveLaw (SC) 487

Minimum Wages Act, 1948; Section 10 - Only the clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages can be corrected - An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made. (Para 7.1-7.2) Gomantak Mazdoor Sangh v. State of Goa, 2022 LiveLaw (SC) 466

Minimum Wages Act, 1948; Section 3-5, 10 - Errata Notification dated 14.07.2016 issued by the State of Goa modifying/correcting its earlier notification dated 23/24.05.2016 by which it fixed the rates of minimum wages in various sectors - Wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948 - The minimum wages were revised and determined even after consultation with the Minimum Wage Advisory Board as required under Section 5 of the Act, 1948. Therefore, once there was no mistake, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948. Gomantak Mazdoor Sangh v. State of Goa, 2022 LiveLaw (SC) 466

National Medical Commission (Foreign Medical Graduate Licentiate) Regulations 2021; Regulations 4(a)(i), 4(a)(ii), 4(b) & 4(c) - National Medical Commission (Compulsory Rotating Medical Internship) Regulations, 2021; Schedule ­II 2(a) and 2(c)(i) - Constitutional validity upheld - NMC has the power to frame the Regulations - Regulations not arbitrary - Not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration - The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. Aravinth R.A. v. Secretary to Government of India, 2022 LiveLaw (SC) 473

NEET-PG - Plea to postpone NEET-PG 2022 scheduled for May 21 rejected - Postponement will create chaos and uncertainty and will impact patient care and will cause prejudice to over 2 lakh students who have prepared. Dr. R. Dinesh Kumar Reddy v. Medical Counselling Committee, 2022 LiveLaw (SC) 486

Negotiable Instruments Act, 1881; Section 141 - The burden is on the prosecution to show that the person prosecuted was in charge of and responsible to the company for conduct of its business. (Para 7) Dilip Hariramani v. Bank of Baroda, 2022 LiveLaw (SC) 457

Negotiable Instruments Act, 1881; Section 141 - Vicarious liability in the criminal law in terms of Section 141 of the NI Act cannot be fastened because of the civil liability - Vicarious liability arises only when the company or firm commits the offence as the primary offender - Unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. (Para 11-14) Dilip Hariramani v. Bank of Baroda, 2022 LiveLaw (SC) 457

Negotiable Instruments Act, 1881; Section 141(1) Proviso - The onus to satisfy the requirements and take benefit of the proviso is on the accused. Still, it does not displace or extricate the initial onus and burden on the prosecution to first establish the requirements of sub-section (1) to Section 141 of the NI Act. (Para 7) Dilip Hariramani v. Bank of Baroda, 2022 LiveLaw (SC) 457

Negotiable Instruments Act, 1881; Section 141(2) - The onus under Section 141(2) of the NI Act is on the prosecution and not on the person being prosecuted - Sub-section (2) to Section 141 of the NI Act does not state that the persons enumerated, can be prosecuted and punished merely because of their status or position as a director, manager, secretary or any other officer, unless the offence in question was committed with their consent or connivance or is attributable to any neglect on their part. (Para 8) Dilip Hariramani v. Bank of Baroda, 2022 LiveLaw (SC) 457

Penal Code, 1860; Section 124A - Sedition - All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused - If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India - We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration. (Para 8) S.G. Vombatkere v. Union of India, 2022 LiveLaw (SC) 470

Penal Code, 1860; Section 124A - Sedition -Centre's affidavit that it has decided to re-examine and re-consider the provision - it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law. (Para 5) S.G. Vombatkere v. Union of India, 2022 LiveLaw (SC) 470

Penal Code, 1860; Section 420 - To make out a case against a person for the offence under Section 420 of IPC, there must be a dishonest inducement to deceive a person to deliver any property to any other person. (Para 8) Rekha Jain v. State of Karnataka, 2022 LiveLaw (SC) 468

Possession - Three types of possession - One as that of an owner, including co-owners; second as a tenant, when a right is created in the property; and thirdly permissive possession, the possession which otherwise would be illegal or that of as a trespasser. (Para 12) Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal, 2022 LiveLaw (SC) 460

Protection of Child from Sexual Offences Act, 2012; Section 5, 6 - Conviction of accused set aside after noticing that he married the victim and has two children - Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. We have been informed about the custom in Tamilnadu of the marriage of a girl with the maternal uncle. Dhandapani v. State, 2022 LiveLaw (SC) 477

Protection of Women from Domestic Violence Act, 2005; Section 12 - There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting - Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act. (Para 52, 42-44) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Protection of Women from Domestic Violence Act, 2005; Section 12 - Not mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order- Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order - The Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. (Para 52, 45-51) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Protection of Women from Domestic Violence Act, 2005; Section 17(1) - Every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent - She cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence - She can accordingly enforce her right under Section 17(1) of the D.V. Act (Para 25-30,40) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Protection of Women from Domestic Violence Act, 2005; Section 17,19 - It is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act. (Para 52, 22-41) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Protection of Women from Domestic Violence Act, 2005; Sections 2(f), 17 - The expression 'joint family' cannot be understood as understood in Hindu Law - The expression 'family members living together as a joint family', means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Section 17(2) comes into play. (Para 36) Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474

Registration Act, 1908; Section 35 - The "execution" of a document does not stand admitted merely because a person admits to having signed the document - In a situation where an individual admits their signature on a document but denies its execution, the Sub-Registrar is bound to refuse registration in accordance with Sections 35(3)(a). (Para 57, 64) Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462

Registration Act, 1908; Section 35, 73, 74 - While the Sub-Registrar under Section 35(3)(a) has to mandatorily refuse registration when the execution of a document is denied by the person purported to have executed the document, the Registrar is entrusted with the power to conduct an enquiry on an application under Section 73 by following the procedure under Section 74. (Para 35) Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462

Registration Act, 1908; Section 72 - If a person by whom the document is purported to be executed denies its execution and registration is refused on those grounds, an appeal against the order of the Sub-Registrar denying execution would not be maintainable under Section 72 of the Registration Act. (Para 33) Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462

Registration Act, 1908; Section 72, 73 - Mis-labelling of an application under Section 73 as an appeal under Section 72 would by itself not vitiate the proceedings before the Registrar. (Para 38) Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462

Reserve Bank of India Act, 1934; Chapter III B - Chapter III­B of the RBI Act provides a supervisory role for the RBI to oversee the functioning of NBFCs, from the time of their birth (by way of registration) till the time of their commercial death (by way of winding up), all activities of NBFCs automatically come under the scanner of RBI. (Para 6.19, 7) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Reserve Bank of India Act, 1934; Chapter III B - Kerala Money Lenders Act, 1958- Gujarat Money Lenders Act, 2011 - The Kerala Act and the Gujarat Act will have no application to NBFCs registered under the RBI Act and regulated by RBI - Though the provisions of the Tamil Nadu Pawn Brokers Act and the Tamil Nadu Money Lenders Act not examined, the principles of law laid down herein, would apply equally to these State enactments also. (Para 11.2)) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Reserve Bank of India Act, 1934; Section 45JA(1) - The words "relating to" appearing in Section 45­JA(1) can be taken to restrict the power of RBI to give directions, only in relation to the matters mentioned after the words "relating to" - The items mentioned after the words "relating to" can only be taken to be illustrative and not exhaustive. (Para 7.5-7.77) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Reserve Bank of India Act, 1934; Section 45L(1)(b) - Power upon the RBI to give directions to NBFCs "relating to the conduct of business by them" - To say that RBI has no power in respect of such an important aspect such as the rate of interest chargeable on the loans, may not be correct. (Para 7.8) Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; Section 24 - Two conditions to be established for acquisition proceedings to lapse - possession not taken and/or compensation not paid - Purchaser has no right to claim lapsing of acquisition proceedings - Since the original land owner never filed any objections under Section 5-A of the Act, the purchaser cannot seek the relief which was not available even to the original land owner. [Para 29, 43, 37] Delhi Development Authority v. Godfrey Phillips (I) Ltd., 2022 LiveLaw (SC) 476

Service Law - Rejection of candidature of a candidate who applied to post of constable upheld - An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary any act in deceit and subterfuge cannot be tolerated. State of Rajasthan v. Chetan Jeff, 2022 LiveLaw (SC) 483

Service Law - Suppression of material fact by candidate in respect of his criminal antecedents and making a false statement in the application Form - Principles discussed. (Para 6-7) State of Rajasthan v. Chetan Jeff, 2022 LiveLaw (SC) 483

Words and Phrases - Interest - The compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use; especially, the amount owed to a lender in return for the use of the borrowed money. (Para 10-12) Kerala Coastal Zone Management Authority v. Maradu Municipality, 2022 LiveLaw (SC) 485

2022 LiveLaw (SC) May 8 – 14 Weekly Nominal Index Part 2 (457 to 487)

  1. Aravinth R.A. v. Secretary to Government of India, 2022 LiveLaw (SC) 473
  2. Bharat Kalra v. Raj Kishan Chabra, 2022 LiveLaw (SC) 465
  3. Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478
  4. Delhi Development Authority v. Godfrey Phillips (I) Ltd., 2022 LiveLaw (SC) 476
  5. Dhandapani v. State, 2022 LiveLaw (SC) 477
  6. Dilip Hariramani v. Bank of Baroda, 2022 LiveLaw (SC) 457
  7. Dr. R. Dinesh Kumar Reddy v. Medical Counselling Committee, 2022 LiveLaw (SC) 486
  8. Gomantak Mazdoor Sangh v. State of Goa, 2022 LiveLaw (SC) 466
  9. Govt of NCT Delhi v. Union of India, 2022 LiveLaw (SC) 459
  10. Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd. 2022 LiveLaw (SC) 481
  11. Kerala Coastal Zone Management Authority v. Maradu Municipality, 2022 LiveLaw (SC) 485
  12. M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service, 2022 LiveLaw (SC) 471
  13. Mahima Datla v. Renuka Datla, 2022 LiveLaw (SC) 479
  14. Nedumpilli Finance Company Ltd. v. State of Kerala, 2022 LiveLaw (SC) 464
  15. New Delhi Municipal Council v. Minosha India Ltd., 2022 LiveLaw (SC) 469
  16. Prabha Tyagi v. Kamlesh Devi, 2022 LiveLaw (SC) 474
  17. PTC India Financial Services Ltd v. Venkateswarlu Kari, 2022 LiveLaw (SC) 475
  18. Radheshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat, 2022 LiveLaw (SC) 484
  19. Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461
  20. Rekha Jain v. State of Karnataka, 2022 LiveLaw (SC) 468
  21. S.G. Vombatkere v. Union of India, 2022 LiveLaw (SC) 470
  22. Safire Technologies Pvt. Ltd. V. Regional Provident Fund Commissioner, 2022 LiveLaw (SC) 472
  23. Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal, 2022 LiveLaw (SC) 460
  24. Sathyanath v. Sarojamani, 2022 LiveLaw (SC) 458
  25. State of Rajasthan v. Chetan Jeff, 2022 LiveLaw (SC) 483
  26. Surendran v. State of Kerala, 2022 LiveLaw (SC) 482
  27. Suresh Mahajan v. State of Madhya Pradesh, 2022 LiveLaw (SC) 463
  28. T.N. Godavarman Thirumulpad v. Union of India, 2022 LiveLaw (SC) 467
  29. United India Insurance Co. Ltd. v. Levis Strauss (India) Pvt. Ltd., 2022 LiveLaw (SC) 487
  30. Veena Singh v. District Registrar / Additional Collector, 2022 LiveLaw (SC) 462
  31. Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480


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