2016 SCC Vol. 6 June 28, 2016 Part 1

Arbitration Act, 1940 — Ss. 13, 29, 30, 33 and 34 — Powers of arbitrator to award interest pendente lite: Award of pendente lite interest depends upon nature of ouster clause in each case. It also depends on several factors such as overall intention of agreement, phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute under reference and on what items power to award interest is expressly excluded and for what period. Further held, bar to award interest on delayed payment by itself cannot be inferred as express bar to award interest pendente lite by arbitrator since ouster of power of arbitrator has to be considered on various relevant aspects. However, if contract expressly prohibits award of interest pendente lite, arbitrator has no power to award such interest. [Union of India v. Ambica Construction, (2016) 6 SCC 36]

Civil Procedure Code, 1908 — S. 92 — Public trust — Suit under S. 92 CPC — Ambit of: Trustees of a trust are entitled to a wide discretion in administration of trust. A disagreement with exercise of discretion by trustees, however passionate said disagreement might be, does not necessarily lead to a conclusion of maladministration in relation to trust, unless the exercise of discretion is perverse. [Aurobindo Ashram Trust v. R. Ramanathan, (2016) 6 SCC 126]

Civil Procedure Code, 1908 — Ss. 98 and 4(1) — Reference to third Judge — When warranted — Law applicable:  S. 98 CPC is a general provision whereas S. 23 of Travancore-Cochin High Court Act, 1125 (5 of 1125 ME) is special provision, hence, latter would operate to the exclusion of former in view of conflict between the two. Cl. 36 of Letters Patent of High Court of Kerala being special law prevails over S. 98 and S. 23 of Travancore-Cochin Act being pari materia to Cl. 36, same analogy applicable. Test of “principal subject-matter plus particular perspective” applied for determining general and special laws. [Pankajakshi v. Chandrika, (2016) 6 SCC 157]

Constitution of India — Arts. 32, 226, 14, 105, 194, 122 and 212: Judicial review of internal proceedings of legislative bodies (Parliament, State Legislatures), in case of adverse decision having civil or evil consequences taken against MLAs/MPs in alleged non-compliance with principles of natural justice in violation of Art. 14, can be undertaken. [Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, (2016) 6 SCC 82]

Courts, Tribunals and Judiciary — Judicial Process — Administration of justice: Quality of justice administered is directly proportional to assistance rendered by advocates to court. Effective assistance from advocates is necessary for a fair quick and satisfactory adjudication. Thus capable advocates are necessary not only to uphold the rule of law but also to assist court in doing complete justice which courts are obliged to do in each and every case. Ability of Government Counsel to present case before court thus not only affects public interest but also affects higher value of justice itself. Thus, appointment procedure of Government Counsel should be based on merit and should be fair, reasonable, transparent and non-discriminatory. [State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1]

Criminal Procedure Code, 1973 — S. 216 — When can court alter or add to any charge: Court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on material available on record. It can be on basis of complaint or FIR or accompanying documents or material brought on record during course of trial. It can also be done at any time before pronouncement of judgment. If court has not framed a charge despite material on record, it has jurisdiction to add a charge. Similarly, it has authority to alter charge. The principle that has to be kept in mind is, that the charge so framed by Magistrate is in accord with materials produced before him or if subsequent evidence comes on record. It is not to be understood, that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of S. 216 CrPC. In addition to the aforementioned, it is obligatory on part of court to see that no prejudice is caused to accused and he is allowed to have a fair trial. There are in-built safeguards in S. 216 CrPC. Accused must always be made aware of the case against him so as to enable him to understand the defence that he can lead. [Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC 105]

Government Contracts/Tenders — Works contract — Construction works contracts: Condition in Circular dt. 6-10-2008 requiring mandatory submission of short-term permit (STP) for mining minor minerals by ‘A’ class contractors executing works contract for Government and deduction of royalty from bills of contractors that would be refunded on production of vouchers showing payment of royalty, is not an unreasonable and arbitrary condition imposed on contractors. Purpose of said STP is to ensure that material and minerals used in construction work purchased by contractor from market are legally mined and on which due royalty is paid and that non-royalty paid mineral (illegally mined mineral) is not used in execution of government works. Such a stipulation is inserted in order to check illegal mining. Said Circular did not impose any obligation on all contractors to obtain short-term permit but only on those contractors who are registered as ‘A’ class contractors undertaking works awarded by Government/government departments. Contractors who are doing private work are not obliged to obtain STP. Said condition, thus held, cannot be treated as unreasonable or arbitrary. Further, said Circular does not impose any levy of royalty but only provides procedure for collection of royalty for minerals used by contractors doing works contract for Government. Also held, it is prerogative of employer (Government herein) to impose and stipulate conditions, eligibility criteria, and terms and conditions on which contract would be executed before awarding any work and fulfilment of said conditions is incumbent on contractor for making any bid therefor or undertaking said work. Hence, contractors cannot contend that condition requiring compulsory production of STP is unreasonable or arbitrary. Said Circular having been issued to check evasion or loss to public exchequer, said condition cannot be said to be unreasonable and arbitrary and therefore, no prejudice could be said to have been caused to the contractors. [State of Rajasthan v. Deep Jyoti Co., (2016) 6 SCC 120]

Maharashtra Cooperative Societies Act, 1960 (24 of 1961) — S. 18 — Division of society: Consultation with federal society is only contemplated once, at draft scheme stage, thereafter, Registrar, after preparing draft order and obtaining objections or suggestions, if any, of society concerned, not required to again send the order to federal society for consultation, for a second time. [Hemant Vimalnath Narichania v. Anand Darshan C.H.S. Ltd., (2016) 6 SCC 142]

Maharashtra Project Affected Persons Rehabilitation Act, 1986 (32 of 1989) — Ss. 13(1), 13(2), 13(3) and 14 r/w Slab I & Slab III, Pt. II Schedule — Change in slab or area to be acquired after publication of first notification — Notice to affected persons: In terms of S. 13(3), if, at any time, during course of execution of project, change in notified area becomes necessary, such change can be effected only in compliance with Ss. 13(1) & (2) (since any adverse change in slab would impact lands in benefitted zone) which mandate that before publishing notification declaring extent of affected zone, benefitted zone and applicable slab, public notice inviting objections/suggestions in respect of proposed acquisition need to be issued. [Chandrakant Adinath Utture v. State of Maharashtra, (2016) 6 SCC 150]

Negotiable Instruments Act, 1881 — Ss. 141 and 138 — Dishonour of cheque — Offence by company: It is necessary to specifically aver in complaint under S. 141, that at the time offence was committed, person accused was in charge of, and responsible for conduct of business of company. Such averment is essential requirement of S. 141 and has to be made in complaint. Without such averment, requirements of S. 141 cannot be said to be satisfied. Liability depends on role one plays in affairs of company and not on his designation or status. Further, there cannot be any vicarious liability unless there is prosecution against company. [Standard Chartered Bank v. State of Maharashtra, (2016) 6 SCC 62]

 Negotiable Instruments Act, 1881 — Ss. 141 and 138 — Offence by Company — Preconditions for fastening liability on Director: Merely a person acting as Director does not make him responsible for cheque issued on behalf of company. Director must be in charge and responsible for conduct of business of company and there has to be specific averment in complaint that person accused was in charge of conduct of business of company at the time of commission of offence. [T.N. News Print & Papers Ltd. v. D. Karunakar, (2016) 6 SCC 78

 

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