- Apprentice Lawyer
The Lawyer's Digest is a collection of concise summaries of all the judgments passed by the Supreme Court of India over the course of a month.
Topics have been sub-divided into areas of law including arbitration, criminal law, consumer law, service and administrative law, etc. for ease of reading.
Here are the summaries of judgments passed in September 2020.
In Government of India v. Vedanta Limited and Others, a three judge Bench held as follows:
1. The time period for filing a petition for enforcement of the foreign award would be three years and governed by Article 137 of the Limitation Act 1963
2. There was a difference between the seat court exercising its powers of setting aside an award under Article 34 of the UNCITRAL Model Law and an enforcement court exercising its powers of refusal to enforce under Article V of the New York Convention
3. While the seat court will judge the award on the basis of public policy prevailing in the seat court (curial law), the enforcing court will apply public policy as prevalent within the latter’s territorial jurisdiction, uninfluenced by the former court’s observations.
4. Para 76.4 of Reliance (2014) 7 SCC 603 was obiter.
The Bench further reiterated that there could be four laws governing an arbitration: law governing the contract, law governing the arbitration agreement, curial law and lex fori. [Key Words: BALCO v. Kaiser (2012) 9 SCC 552, public policy, limitation period, substantive law of arbitration agreement, Sumitomo, New York Convention, Production Sharing Contract, comity of nations, curial law, Renusagar 1994 Supp (1) SCC 644] [Coram: S. Abdul Nazeer, J., Indu Malhotra, J., Aniruddha Bose, J.]
In Balasore Alloys Limited v. Medima LLC, following Olympus Superstructures (1999) 5 SCC 651, the Court held that when there are two different arbitration clauses in two related agreements between the same parties, the Court ought to harmonise both the clauses and the parties should get the disputes resolved under the main agreement. [Key Words: ICC Tribunal, anti-arbitration injunction, Sections 11(6) and 11(12)(a) of the Arbitration and Conciliation Act 1996] [Coram: S.A. Bobde, CJI., A.S. Bopanna, J., V. Ramasubramanian, J.]
In Anwar Ali v. Himachal Pradesh, the Supreme Court held that where the Trial Court has appreciated all evidence on record and there was no perversity, the High Court could not intervene and reverse an order of acquittal. The Court, relying on Suresh Chandra Bahri 1995 Supp (1) SCC 80 held that if motive is proved in the case of murder, it would supply a link in the chain of circumstantial evidence. The absence of the same is not a ground for acquittal. However, the Court noted that the absence of motive in a case depending on circumstantial evidence is a factor which weighs in favour of the accused. [Key Words: Reversal of acquittal, grounds for interference] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J.,M.R. Shah J.]
In Abhilasha v. Parkash & Ors., the Court stated that a Hindu unmarried daughter was entitled to claim maintenance from her father under Section 125, CrPC only till she attains majority. She is entitled to maintenance as a major only if she can she plead and prove that she is unable to maintain herself. [Key Words: Section 20 of the Hindu Adoptions and Maintenance Act 1956, Muslim Women (Protection of Rights on Divorce) Act 1986] [Coram: Ashok Bhushan, J., R. Subash Reddy, J., M. R. Shah, J.]
In Jeet Ram v. The Narcotics Control Bureau, Chandigarh, while dismissing the appeal against the order of the High Court where the latter disagreed with the Trial Court’s acquittal of the accused-appellant, the Bench held that it is always open for the appellate court to re-appreciate evidence on which the acquittal was founded and further that appellate courts were vested with the powers to review and come to their own conclusion. The Bench further held that when an accused offers false answers under Section 313, CrPC, the same could be used against him and the onus was on him to explain the possession of narcotics. It was found that the accused-appellant had physical control over charas and that he had the knowledge of its presence and character. [Key Words: Sections 30, 50, 54 of Narcotic Drugs and Psychotropic Substances Act 1985] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In Jugut Ram v. The State of Chhattisgarh, the Court altered the conviction from Section 302, IPC to Section 304, Part II IPC on the ground that a lathi was a common item carried by a villager in India and “linked to his identity” and that the fact that “it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter”. It held that in the facts before it where there was an assault on the head, it was a question of fact as to whether there was an intention to cause death or only knowledge that death was likely to occur. It held that the acts did not amount to murder as the accused-appellant was also injured in the process and the fight plainly erupted in the heat of the moment. [Key Words: Virsa Singh v. The State of Punjab 1958 SCR 1495, premeditation] [Coram: R.F. Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In Neetu Kumar Nagaich v. The State of Rajasthan and Others, the Bench noted that while the closure report noted the death as a homicidal death, it could not ascertain the offenders. This was despite the fact that the State had earlier repeatedly stated that the death was accidental. Holding that the entire investigation and the closure report lacked bonafides, the Supreme Court noted that justice required a de novo investigation to sustain society’s confidence in rule of law. Thus, the closure report was set aside and a de novo investigation directed “to be headed by a senior police officer of the State consisting of efficient personnel well conversant with use of modern investigation technology also” and that “..no officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation”. [Key Words: NLU Jodhpur, student, murder, inquest proceedings, Sections 173(8) and 174 CrPC, fair investigation, Article 21, de novo investigation] [Coram: R.F. Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In Stalin v. State represented by the Inspector of Police, the challenge was to the conviction of the Appellant in an offence under Section 302, IPC. Notice was issued on a limited point as to whether the accused had been rightly convicted under Section 302, or whether he ought to have been convicted for any lesser offence, viz. Section 304, Part II, IPC. Although the Court held that there is no hard and fast rule that cases of single injury cannot attract Section 302, IPC, in the facts of the present case, the accused was sitting with his friends in a beer party, and in a scuffle arising in the heat of passion, he stabbed the deceased with a knife. The Court ultimately held that the offence would fall under Section 304, Part I, IPC, and not under Part II thereof. [Key words: Culpable homicide not amounting to murder] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In Maheshwar Tigga v. Jharkhand, the Court held that in the absence of positive evidence regarding the age of the prosecutrix, the possibility of her being above the age of eighteen cannot be ruled out and that the benefit of doubt must be given to the appellant. The Court also reiterated that circumstances not put to an accused under Section 313, CrPC cannot be used against him and must be excluded from consideration. The Court also held that a delay of 4 years in lodging an FIR, 7 days prior to the appellant solemnizing his marriage with another woman raised doubts about the truth and veracity of allegations. The Court also held that for Section 90, IPC to apply, the misconception of fact has to be temporally proximate to the occurrence and cannot be spread over 4 years. Relying on Dhruvaram Murlidhar AIR 2019 SC 327, the Court held that where the accused and the prosecutrix engaged in physical relations but could not marry due to the fact of belonging to different castes, the accused could not be punished for rape. [Key Words: Sections 323, 342, 376 IPC, 313 CRPC] [Coram: RF Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In Ashoo Surendranath Tewari v. The Deputy Superintendent of Police, EOW, CBI, the Appellant was discharged from the penal offences pertaining to the diversion of funds. This was done relying on the principle laid down in para 38 of Radheshyam Kejriwal (2011) 3 SCC 581 that in case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. [Key words: threshold of evidence, sanction for prosecution] [Coram: R.F. Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In Satish @ Sabbe v. Uttar Pradesh, the Court held that the length of the sentence or the gravity of the original crime cannot be the sole basis for refusing premature release and that the assessment regarding predilection to commit a crime on release must be based on antecedents, the conduct of prisoner in jail, and not merely on age and apprehensions of the victims and witnesses. [Key Words: Grounds for refusing premature release] [Coram: NV Ramana, J., Surya Kant. J., Hrishikesh Roy, J.]
In Rizwan Khan v. State of Chattisgarh, the challenge was to the Appellant’s conviction of 5 years RI and Rs. 25,000 fine for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psycotropic Substances Act, having been found in possession of 20 kg of ganja. The Court held that there was no law that the evidence of the police officials, unless supported by independent evidence, is to be discarded. In terms of Pradeep Kumar (2018) 13 SCC 808, and Surinder Kumar (2020) 2 SCC 563, it is clear that the testimony of the official witness cannot be rejected on the ground on non-corroboration by an independent witness, particularly when the police witnesses are found to be reliable and trustworthy. The conviction of the Appellant was, therefore, upheld. [Key words: Police witness, Independent Witness, NDPS Act] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In M/s Bandekar Brothers Pvt. Ltd. & Anr. v. Prasad Vassudev Keni, Etc. Etc., the proceedings arose out of two criminal complaints filed by the Appellants against the Respondents under Sections 340 and 195 of the CrPC in respect of offences alleged under Sections 191 and 192 of the IPC. The Court reinstated the complaints in their original form so that they are proceeded with, following the drill of Sections 195 and 340, CrPC. A question further arose whether the “forging” of the debit notes can be said to attract the provisions of these Sections. It was held that even if all the averments made in the two complaints were put aside (which clearly attract the provisions of Sections 191 and 192, IPC), and only the debit notes that are said to have been “created” by the Respondents are seen, it is clear that the debit notes were not “false documents” under Section 464 of the IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person. Since this basic ingredient of forgery itself was not made out, none of the sections that were sought to be relied upon in Chapter XVIII of the IPC was held even prima facie attracted. [Key words: Forged debit notes, false evidence, private complaints] [Coram: R.F. Nariman, J., Navin Sinha, J.]
In Ilangovan v. State of Tamil Nadu, the Appellant / accused challenged the judgment of the Madras High Court whereby his appeal was partly allowed and his conviction was under Section 302, IPC was modified into one under Section 304, Part II and the sentence was reduced to five years RI, instead of the earlier life imprisonment. The Appellant argued that conviction based merely upon the testimonies of the relatives of the deceased was erroneous and that he ought to have been granted benefit of doubt. Relying on Sudhakar v. State (2018) 5 SCC 435, the Court rejected this argument. The second argument that the benefit of doubt extended to his co-accused ought to have been extended to him as well was also rejected on the basis of the ratio is Yanob Shaikh (2013) 6 SCC 428. Accordingly, the judgment of the High Court was upheld [Key words: testimonies of the relatives of deceased, nature and quality of evidence] [Coram: N.V. Ramana, J., S. Abdul Nazeer, J., Surya Kant, J.]
In Subed Ali v. Assam, the Supreme Court, relying on Ramaswami Ayyangar (1976) 3 SCC 779, held that a person need not be actively involved in the physical activity of assault to be convicted on the ground of common intention and that if the evidence displays a pre-arranged plan and acting in concert, common intention can be inferred. [Key Words: Common Intention] [Coram: RF Nariman, J., Navin Sinha, J., Indira Banerjee]
In National Alliance for People’s Movements v. Maharashtra, the Court held that the relief of interim bail to undertrial and convicted prisoners due to COVID-19 is not a statutory right but merely a humanitarian consideration and thus could not be availed as a matter of right. The Court further held that the categorization of prisoners by High Power Committees on the basis of the nature of the crime and length of punishment was not arbitrary or unconstitutional. [Key Words: Bail for prisoners due to Covid] [Coram: SA Bobde, J., AS Bopanna, J., V Ramasubramanian]
In Kaushik Chatterjee v. Haryana, in a transfer petition sought on the ground of lack of territorial jurisdiction, the Court held that the difference between the jurisdiction of a Court in civil and criminal cases is twofold:
1. The stage at which an objection as to jurisdiction can be raised is regulated in civil proceedings by Section 21, CPC while there is no corresponding provisions in the CrPC.
2. In civil proceedings, a plaint can be returned under Order VII Rule 10 CPC at any stage of the proceedings while in criminal proceedings, a limited power is available to a magistrate under Section 201, CrPC to return a complaint. The power is limited in the sense that it is available before taking cognizance and that the power is limited only to complaints and does not include a police report.
The Court also held that if a magistrate not empowered by law to try an offender wrongly tries him, such proceedings shall be void under Section 461 and such proceedings will not be saved by Section 462. Relying on Sabir Ali AIR 1964 SC 1673 the Court held that Section 26(a) of CrPC is subject to other provisions of the Code. The Court concluded that territorial jurisdiction must be established by evidence and that it cannot allow a transfer petition even before evidence is marshalled.
[Key Words: Ss. 406, 408, 420, 120-B IPC, Territorial Jurisdiction in Criminal Cases, Ss. 461, 462 CrPC] [Coram: V Ramasubramanian, J.]
In Kerala v. RDS Project Ltd., the Supreme Court held that where a State Government accepted the report of an Expert Committee on whether certain measures had to be taken to repair a bridge, the State Government Committee cannot be said to have behaved arbitrarily. [Key Words: Article 14, Arbitrariness] [Coram: RF Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
Service Law and Administrative Law
In Madhya Pradesh v. Amit Shrivas, the Supreme Court held that a work-charged employee who has been paid off a work-charged/contingency fund would be a permanent employee but would not ipso facto enjoy the status of a regular employee. Therefore, the Court held that his son was not entitled to compassionate appointment. Relying on Ram Naresh Rawat (2017) 3 SCC 436, the Court held that the status of permanent employee would entitle one only to a minimum of the pay-scale without any increments and not the benefits of a regular employee. [Key Words: Compassionate Appointment, Permanent and Regular employment] [Coram: Sanjay Kishan Kaul, J., Aniruddha Bose, J., Krishna Murari, J.]
In Rajasthan State Board Transport Corporation & Ors. v. Goverdhan Lal Soni & Anr., certain surplus employees of the closed Rajasthan Agro Industries Corporation were absorbed in to the RSRTC. A procedure was laid down for the employees who wanted to opt for the CPF Scheme, or the GPF and Pension Scheme. The Respondent opted for the Pension Scheme. It was held that the Respondent having opted for pension, Regulation 43 of the Pension Regulations, 1989 read with Notification dated 12.02.1997 became applicable. The Respondent was covered by the CPF Scheme in his erstwhile State employment (where the employer deposits matching contribution). It was held that in terms of Clause 11(b), the employee’s contribution shall go to the GPF account, and the employer’s proportion to the Pension Fund. Nothing more was required to be done, and once the same is done, it was the statutory obligation of the appellant to credit both the aforesaid amounts, and calculate the pension after retirement accordingly. Thus, the claim of pension by the Respondent was upheld. [Key words: Contributory Pension Scheme] [Coram: Ashok Bhushan, J., K.M. Joseph, J.]
In Pravin Kumar v. Union of India & Ors., the challenge was to the order of dismissal of the Appellant on charges of corruption and extra constitutional conduct while being employed as a paramilitary officer. Relying on BC Chaturvedi (1995) 6 SCC 749, it was re-emphasized that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. It was held that the High Court was, thus, rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant’s guilt through documents and statements. Interestingly, the argument that the Enquiry Officer (EO) putting his own questions to the prosecution witness amounted to prosecutor becoming the judge, was rejected on the ground that under Section 165, Evidence Act, the Judges have the power to ask any question to any witness, and strict rules of evidence being inapplicable to disciplinary proceedings, direct questioning by EO is often necessary to discover the truth. [Key words: Scope of judicial review, disciplinary proceedings, fair trial, proportionality of punishment] [Coram: N.V. Ramana, J., S. Abdul Nazeer, J., Surya Kant, J.].
Practice and Procedure
In a petition seeking the transfer of a divorce petition, the Court in Neetu Yadav v. Sachin Yadav held that merely because the respondent’s brother was photographed with judicial officers at a public event, it did not cause any reason to believe that there was real likelihood of bias and denied the transfer petition. [Key Words: Judicial Bias] [Coram: V. Ramasubramanian]
In Union of India v. GS Chatha Rice Mills, the Court held that with the publication of gazette notifications in the digital mode, the precise time of publication in the electronic mode is significant and that notification 5/2019 issued under Section 8A of the Customs Tariff Act 1975 would not operate before it was published online. Therefore, the Court held that this notification would not apply to transactions where the bill of entry was presented prior to the publication of said notification. [Key Words: Delegated Legislation, Publication of Notification in Gazette, Customs Tariff] [Coram: DY Chandrachud, Indu Malhotra, KM Joseph]
In M/s L.R. Brothers Indo Flora Ltd. v. Commissioner of Central Excise, the Appellant challenged the customs duty levied upon it on the sale of cut flowers within the Domestic Tariff Area (DTA). The Court held that on a combined reading of the Notification dated 18.05.2001 with the conditions laid down in the EXIM policy, it was clear that the fulfilment of the conditions prescribed therein were a condition precedent to become eligible to make DTA sales. Resultantly, if goods were cleared in DTA sales in breach of the said conditions, customs duty would be leviable, as if such goods were imported goods. [Key words : Section 28, Customs Act, 1962, Customs Duty] [Coram: A.M. Khanwilkar, J., Dinesh Maheshwari, J.]
In The Designated Authority & Ors. v. M/s The Andhra Petrochemicals Ltd., the challenge was to three orders of the Telangana High Court relating to the question of imposition of anti-dumping duty. Andhra Petro applied to the Central Government, seeking imposition of anti-dumping duty on imports of normal Butanol or N-butyl alcohol originating in and exported into India from Saudi Arabia. This application resulted in the initiation of an investigation by the Designated Authority (D.A.) into the import of the subject articles from Saudi Arabia. Setting aside the said orders, it was held that Section 9A of the Customs Tariff Act clearly discloses an intent that investigations should be completed within pre-determined time limits and the levy itself cannot be more than five years, which may, after due review in accordance with the prescribed procedure, before the expiry of the said period, be extended by another period not more than five years. These timelines are crucial and the D.A. was duty bound to follow them. [Key words: Anti-dumping Duty, Investigation by Designated Authority] [Coram: Arun Mishra, J., Vineet Saran, J., S. Ravindra Bhat, J.]
In Bangalore Club v. The Commissioner of Wealth Tax & Anr., the short question was whether Bangalore Club was liable to pay wealth tax under the Wealth Tax Act. A sub question was concerned the meaning of the expression “association of persons” in Section 21AA of the Act. It was held that Bangalore Club was a social club, whose objects make it clear that persons who are banded together do not band together for any business purpose or commercial purpose in order to make income or profits, as similarly set out in Cricket Club of India v. Bombay Labour Union (1969) 1 SCR 600, referred to with approval in Calcutta Club Ltd. (2019) 13 SCALE 474. The Court further held that Bangalore Club is an association of persons and not the creation, by a person who is otherwise assessable, of one among a large number of associations of persons without defining the shares of the members so as to escape tax liability. [Key words : Bangalore Club, Wealth Tax] [Coram: R.F. Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In National Co-Operative Development Corporation v. Commissioner of Income Tax, Delhi-V, the Supreme Court made a significant ruling in regard to intra-governmental commercial disputes. Expressing its angst at finally deciding a 44-year old dispute, tt observed that:
1. One of the main impediments of the two-tiered structure embedded in the Administrative Mechanism for Resolution of CPSEs disputes (conceptualised to replace the Permanent Machinery of Arbitration) was that the bureaucrats are reluctant to accept responsibility of taking such decisions, due to the apprehension that their decision may be called into question unnecessarily due to which there might be post-retirement consequences.
2. Thus, it might be appropriate to have a committee of legal experts presided by a retired Judge to give their “imprimatur” to the settlement so that the bureaucracy feels indemnified.
3. Mediation is an efficient remedy and the subject matter of the Court’s angst was the lack of mediation inter se the government authorities or government departments. It was noted that India was a signatory to the Singapore Convention on Mediation.
4. The petition rate of the Revenue before the Supreme Court was 87.8%. To reduce the number, it will be fruitful if the Central Public Sector Enterprises and the Revenue promote a vibrant system of Advance Ruling.
5. The average rate of disposal of AAR applications was supposed to be 6 months but in practice, it was about 4 years.
6. It was recommended to the GoI to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers. A council for Advance Tax Ruling based on the Swedish model and New Zealand system may be a possible way forward.
7. In order to decide whether a particular source is business income, the notion of what is the business activity has to be looked at, the activity having a “set purpose”. Further, the “…fact that the appellant-Corporation does not carry on business activity for profit motive is not material as profit making is not an essential ingredient on account of self-imposed and innate restriction arising from the very statute which creates the appellant-Corporation and the very purpose for which the appellant-Corporation has been set up”.
8. Further, the “…scheme of the IT Act requires the determination of ‘real income’ on the basis of ordinary commercial principles of accountancy. To determine the ‘real income’, permissible expenses are required to be set off” and that “every application of income towards business objective of the appellant-Corporation is a business expenditure and nothing else”.
[Key Word: Sections 37(1), 56, 245N(a) of the Income Tax Act 1961, National Cooperative Development Corporation Act, capital receipt, real profits, commercial accountancy, docket explosion, High Powered Committee, Electronics Corporation of India (2011) 332 ITR 58 (SC), certificate cases, 126th Law Commission Report on “Government and Public Sector Undertaking Litigation Policy and Strategies, National Litigation Policy, bureaucracy, AAR in Sweden, USA, OECD countries, Direct Taxes Enquiry Committee, Authority for Advance Ruling, Wanchoo Committee] [Coram: Sanjay Kishan Kaul, J., Indu Malhotra, J.]
In Shridhar C. Shetty v. The Addl. Collector and Competent Authority & Ors., the appellant was aggrieved by the order of the High Court affirming the demand dated 15.10.2005 for Rs. 51,97,196/ plus interest, penalty and recovery expenses as arrears of land revenue. The demand was raised consequent to the failure of the appellant to handover seven tenements to government nominees as required under the conditions of exemption granted under Sections 20 and 21 of the Urban Land (Ceiling and Regulation) Act, 1976. Setting aside the impugned order, it was held that the demand for the market value of the remaining seven tenements, falling outside the purview of the Act, cannot be construed as money due to the Government so as to vest in it the nature of an arrears of land revenue recoverable under Section 265 of the Maharashtra Land Revenue Code, 1966. [Key words: Government Nominees, recovery of market value] [Coram: R.F. Nariman, J., Navin Sinha, J.]
Insolvency and Bankruptcy
In Union of India v. Association of Unified Telecom Service Providers of India Etc. Etc., three issues arose. The first was whether spectrum can be subjected to proceedings under the Insolvency and Bankruptcy Code. The Court directed NCLT to decide the said question and held that it being a jurisdictional question, requires to be decided at the outset. The second was whether in case of sharing, how the payment is to be made by the Telecom Service Provider (TSP). It was held that Shared operator TSPs cannot be saddled with the liability to pay the past dues of AGR of licensees that have shared the spectrum with the original licensees. The third was whether in case of trading, how the liability of the seller and buyer is to be determined. It was held that the seller's dues prior to the concluding of the agreement/spectrum trading shall not be upon the buyer. [Key words: Spectrum, Telecom Service Provider, DoT] [Coram: Arun Mishra, J., S. Abdul Nazeer, J., M.R. Shah, J.]
In The Karad Urban Cooperative Bank Ltd. v. Swwapnil Bhingaedevay & Ors., it was held that if all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern. If they have been placed before the Committee of Creditors, and the CoC has taken a conscious decision to approve the resolution plan, then the NCLT will have to switch over to the hands off mode. On challenge to the advertisement issued by the Resolution Professional on the ground of non-conformity with Regulation 36A of IBBI Regulations, 2016, it was held that the said Regulation was inserted only w.e.f. 06.02.2018 and was amended only on 03.07.2018. Therefore, at the relevant time, the Regulation did not mandate the publication of invitation of Resolution Plans, and hence, not required. [Key words: Commercial wisdom of CoC, Challenge to Resolution Plan] [Coram: S.A. Bobde, CJI, A.S. Bopanna, J., V. Ramasubramanian, J.]
In Srei Equipment Finance Ltd. v. Rajeev Anand & Ors., it was held that the NCLAT was incorrect insofar as it held that pleadings filed in an earlier round of litigation (by way of a supplementary affidavit) was not a “document” which could be relied upon to prove an outstanding loan. The Bench held that the “document” was not a pleading but a counter affidavit by the corporate debtor in which a clear admission of the debt being outstanding was made [Key Word: Admission of loan, NCLT, document] [Coram: R.F. Nariman, J., Navin Sinha, J., Indira Banerjee, J.]
In Rakesh Kumar Agarwalla v. NLSIU, the Court, relying on Dr Preeti Srivastava (1999) 7 SCC 120 held that the norms of admissions have a direct impact on the standards of education while discussing the powers of the Academic Council and Executive Council of NLSIU and therefore, the actions of the Executive Council without consulting the Academic Council to have not been in accordance with the provisions of the NLSIU Act. The Court rejected NLSIU’s argument that the doctrine of necessity was applicable due to the ongoing pandemic and that NLSIU was therefore enabled to conduct alternate entrance tests. The Court noted that the UGC, the body to maintain educational standards in the country had asked universities to modify their academic calendar for the new academic year. The Court also held that NLAT was not transparent and that the short notice and technological requirements violated Article 14 of the Constitution of India. Therefore, NLSIU was directed to rejoin the CLAT consortium and conduct its admission pursuant to CLAT and not NLAT. [Key Words: Setting aside of NLAT, CLAT Consortium, Law admissions] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., MR Shah, J.]
In Shreyas Sinha v. The West Bengal National University of Juridical Sciences & Ors., the Appellant had sought admission to the five-year law course offered by NUJS on the basis of a 2019 amendment in the WBNUJS Act, which inter alia provided for reservation of seats for students domiciled in the State of West Bengal to the extent of at least 30% of the total intake. Rejecting the appeal, it was held that since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given. The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session, which decision was upheld [Key words: Prospective nature of Amendment]. [Coram: L. Nageswara Rao, J., Hemant Gupta, J., S. Ravindra Bhat, J.]
Motor Vehicles Law
In Beli Ram v. Rajinder Kumar, the Supreme Court held that the owner of a vehicle is required to ensure that his driver carries a valid driving license and may not affix liability on the insurance company by claiming that he had checked the validity of license at the time of granting employment to his driver. Thus, the Court held that in such cases, the insurance company would not be liable where the driver has not renewed his driving license. [Key Words: reasonable care standard] [Sanjay Kishan Kaul, J., Aniruddha Bose, J., Krishna Murari, J.]
In New India Assurance Co. Ltd. v. Smt. Somwati & Ors., the challenge was by the Insurance companies to the compensation awarded in favour of the Claimants under the heads of ‘loss of consortium’, and ‘loss of love and affection’. Relying inter alia on Satinder Kaur (2020) SCC Online 410, and Pranay Sethi (2017) 16 SCC 680, it was reiterated that ‘loss of love and affection’ is comprehended in ‘loss of consortium’, and hence, there was no justification to award compensation towards ‘loss of love and affection’ as a separate head. On the question of consortium, it was held that the mandate in Satinder Kaur is that apart from spousal consortium, parental and filial consortium is payable. Therefore, the award of compensation under the head of Consortium was upheld. [Key Words: Compensation, S. 166, Motor Vehicles Act, 1988] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J.]
In Lalan D. @ Lal & Anr. v. The Oriental Insurance Company Ltd., the Bench awarded a sum of INR 7,00,000 as lumpsum, composite amount for medical attendant charges and future medical treatment to the victim’s family who was a construction worker. It was held that going by the victim’s profession and his physical state after the accident, “conclusion has to be inevitable that he required and still requires caregiver round the clock and round the year to remain barely functional. Judging by the stratum of the society he comes from, it would be irrational to expect that he would have been in a position to directly engage a caregiver after his accident. It would not be an unreasonable assumption that his family members must have had to fit into that role. They could perform the role of caregiver only by diverting their own time from any form of gainful employment which could have generated some income.” [Key Words: Pranay Sethi, paralysis, permanent disability, informal sector] [Coram: Sanjay Kishan Kaul, J., Ajay Rastogi, J., Aniruddha Bose, J.]
In Pappu Deo Yadav v. Naresh Kumar and Others, the Bench reiterated that in assessing motor vehicle compensation claims, the Courts’ duty was to place the victim in as near a position as s/he was in before the accident, with other compensatory directions for loss of amenities and other payments. This was “just compensation”. Cautioning against a stereotypical and myopic approach, the Bench urged courts to be realistic. It observed that as a “typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law”. It noted that what had to be examined was the “impact of the injury upon the income generating capacity of the victim” and there could not be a blind arithmetic formula. [Key Words: Pranay Sethi, data entry operator, Article 21, informal sector] [Coram: L. Nageswara Rao, J., Krishna Murari, J., S. Ravindra Bhat, J.]
In M/s MSD Real Estate LLP v. The Collector of Stamps & Anr., it was held that the facility to deposit the penalty for not paying the stamp duty could not be cured by depositing post-dated cheques and the appellant/subsequent purchaser was liable to deposit the penalty amount (outstanding against the property and subject matter of the concerned gift deed). [Key Words: deficiency in stamp duty, gift deed, Madhya Pradesh Public Premises Eviction Act, HC Dhanda Trust] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In Trustees of HC Dhanda Trust v. State of Madhya Pradesh & Ors, the Bench held that the purpose of penalty was generally deterrence and not retribution. When a discretion was vested in a public authority, such public authority should exercise such discretion reasonably and not oppressively. It further noted that the responsibility to exercise the discretion reasonably law more in cases where the discretion was unfettered. In the facts before it, it held that imposition of the harshest penalty i.e. ten times of the duty or deficient portion thereof could not be based on mere factum of evasion of duty but the reason had to account for more, like fraud or deceit in order to deprive the Revenue or undue enrichment. [Key Word: Sections 331 and 332 of the Indian Succession Act 1925, Sections 33, 35(a), 38, 39(1)(b) and 40(1)(b) of the Indian Stamp Act 1899, deed of assent, gift deed, administrative discretion, “an amount not exceeding ten times”] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In Sarika v. Administrator, Mahakaleshwar Mandir Committee, Ujjain (M.P) & Ors., the issue concerned monitoring the compliance of the judgment of the Court dated 02.05.2018 in Civil Appeal No. 4676/2018 qua erosion of Shivalinga in Shri Mahakaleshwar Temple at Ujjain. After taking into account the suggestions of the Expert Committee, it was directed that that the Expert Committee shall visit the temple and submit a report by 15th December, 2020, as to the steps to be taken to prevent deterioration of Shivlinga and the steps to be taken to preserve the temple structure, including Chandranageshwar Temple. It was also directed to do a yearly survey and submit a report to the Court. A slew of other specific measures were also laid down in Para 9 of the Judgment. [Coram: Arun Mishra, J., B.R. Gavai, J., Krishna Murari, J.]
In R. Poornima & Ors. v. Union of India & Ors., the only prayer in the Writ Petition considered by the Court was as regards the entitlement of the Petitioners to be considered for appointment as Judges of the Madras High Court by virtue of having put in 18 years, cumulatively as an Advocate and a District Judge. Holding that P. Ramakrishna Raju (2014) 12 SCC 1 had no application in the facts, and on a careful consideration of Dheeraj Mor (2018) 4 SCC 619, as also the Reference dated 19.02.2020, it was held that the queue to which a person is assigned, depends upon his status on the date of consideration. If a person is an advocate on the date of consideration, he can take his place only in the queue meant for members of the Bar. Similarly, if a person is a judicial officer on the date of consideration, he shall take his chance only in the queue meant for service candidates. Hopping on and hopping off from one queue to the other, is not permissible. [Key words: Appointment to the High Court, clubbing of experience] [Coram: S.A. Bobde, CJI, A.S. Bopanna, J., V. Ramasubramanian, J.]