2016 SCC Vol. 10 November 28, 2016 Part 1

Associations, Societies and Clubs — Body discharging public functions but not amounting to “State” — BCCI: Root and branch reform of BCCI directed in Cricket Assn. of Bihar, (2016) 8 SCC 535, but BCCI adopted obstructionist and defiant attitude and released funds to State Cricket Associations without permission of Court-appointed Committee, hence, directions issued regarding the funds and other issues involved. [BCCI v. Cricket Assn. of Bihar, (2016) 10 SCC 23]

Central Excise Act, 1944 — Ss. 11-B and 12-B — Refund — When can be claimed: The sine qua non for a claim for refund is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. [CCE v. Addison & Co. Ltd. , (2016) 10 SCC 56]

Companies Act, 1956 — S. 205(3) — Issue of bonus shares — Principle of fair play — Application of: The issue of bonus shares out of revaluation reserves when the articles of the company do not confer any such power upon Board of Directors, is impermissible. Board resolution pursuant to which bonus shares were issued in present case indicates that the real purpose for issuance of the bonus shares was to raise funds which were badly needed by the company at that point of time. Held, the purpose indicated in the resolution was a sham and a pretence inasmuch as revaluation of the existing assets of the company and issuance of bonus shares against such revaluation could not and did not generate any additional funds as the additional capital available was purely fictional or notional. [Tin Plate Dealers Assn. (P) Ltd. v. Satish Chandra Sanwalka, (2016) 10 SCC 1]

Constitution of India — Arts. 21, 32 and 226 — Human dignity — Prison Reforms: Directions issued to Ministry of Women and Child Development of the Government of India to expedite preparation of Model Prison Manual for Juveniles in line with Model Prison Manual, 2016. [Inhuman Conditions In 1382 Prisons (II), In Re, (2016) 10 SCC 17]

Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 — Rr. 7 and 16 — Confidential information: Essential requisites for consideration of information as confidential are: (i) Designated Authority (DA) is satisfied as to the confidentiality of material and, (ii) A claim of confidentiality has been made by any of the parties supplying the information. Held, though the examples in Art. 6.5 indicate the information required to be kept confidential, yet DA is not entitled to presume such effects without any claim being made by the party supplying the information. Examples given in Art. 6.5 of General Agreement on Tariffs and Trade, 1994 (GATT) are only meant to be a guiding factor for DA. DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of R. 7 and claim as well as accept information to be confidential. [Union of India v. Meghmani Organics Ltd., (2016) 10 SCC 28]

Debt, Financial and Monetary Laws — Banks — Banking business — Bank guarantee/Indemnity: Bank guarantee is an independent and separate contract between guarantor bank and person entitled to benefit thereof i.e. guarantee-recipient and is not qualified by the main contract on performance of obligations in the present case. Though in terms of bank guarantee, invocation thereof is permissible only against a breach of conditions in LoI (Letter of Intent), between guarantee-recipient and Bank, it has been stipulated that decision of guarantee-recipient as to breach of conditions is absolute and binding on the Bank. Hence, the moment written demand was made on bank invoking the guarantee pursuant to breach of covenants between guarantee-recipient and respondent, Bank was bound to honour the payment under the guarantee. [Gujarat Maritime Board v. Larsen & Toubro Infrastructure Development Projects Ltd., (2016) 10 SCC 46]

Service Law — Pension — Pension Scheme — Withdrawal of Pension Scheme: Although as soon as employees came to be governed by Pension Scheme a contingent right vested in them which was to crystallise upon their acquiring qualifying service for claim of pension, but such contingent right is not irrevocable in this case. In absence of any employer-employee relationship between appellant State Government and respondent employees of corporate bodies, employees’ challenge to withdrawal of Pension Scheme by Government in exercise of its administrative review power and their claim for pension under that Scheme was not based on any right or obligation between the parties. Once Pension Scheme had become operational administrative review by Government was permissible and such review was based on due considerations. No right of respondent employees under Arts. 14, 16, 21 and 300-A of the Constitution violated. Legality and constitutionality of government notification revoking Pension Scheme, upheld. [State of H.P. v. Rajesh Chander Sood, (2016) 10 SCC 77]

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