2016 SCC Vol. 10 December 14, 2016 Part 3

Arbitration and Conciliation Act, 1996 — Ss. 16, 5, 8 and 11 — Power and jurisdiction of arbitrator to adjudicate disputes when fraud is alleged by one party against other party: Arbitrator can go into the matter whether entire contract is vitiated by alleged commission of any fraud on part of either of the parties to contract. Even jurisdiction of arbitrator can be gone into by arbitrator itself. [Meguin GMBH & Co. v. Nandan Petrochem Ltd., (2016) 10 SCC 422]

Arbitration and Conciliation Act, 1996 — Ss. 8, 5, 27 and 45, S. 8 r/w Ss. 34(2)(b) & 48(2) — Reference to arbitration: Mere allegation of fraud simpliciter is not ground to nullify effect of arbitration agreement between parties. Arbitration clause need not be avoided and parties can be relegated to arbitration where simple allegations of fraud touching upon internal affairs of party inter se that has no implication in public domain. Arbitration clause can be ignored by court. Court may refuse reference to arbitration and proceed with suit on merits only: (i) where court finds very serious allegations of fraud that make a virtual case of criminal offence, or (ii) where allegations of fraud are so complicated that it becomes essential that such complex issues can be decided only by civil court on appreciation of voluminous evidence, or (iii) where serious allegations of forgery/fabrication of documents in support of the plea of fraud or (iv) where fraud is alleged against arbitration provision itself, or (v) where fraud alleged permeates the entire contract, including agreement to arbitrate where fraud goes to the validity of contract itself or contract that contains arbitration clause or validity of arbitration clause itself. [A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386]

Armed Forces — Dismissal — Overstaying leave period without sufficient cause and absenting himself without leave — Justiciability of dismissal order: Single Judge and Division Bench of High Court, erroneously set aside dismissal order on grounds that (i) Impugned order did not state that respondent Corporal was habitual deserter or was in habit of overstaying his leave period; (ii) Averments made in memo of appeal as also in Para 26 of writ application that respondent never accepted his guilt remained uncontroverted; (iii) Contents of letter dt. 21-5-2004, Annex. 24 addressed to Station Commander complained of fact that respondent was being pressurized by his superiors to plead guilty and also to permit him to engage private advocate; and (iv) Authorities had kept respondent in confinement during enquiry in contravention of S. 107, Air Force Act, 1950, as none of these grounds were made out or vitiated the dismissal, dismissal restored. [Union of India v. Devjee Mishra, (2016) 10 SCC 445]

Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 — S. 2(1)(d) and Ss. 2(m), 2(k), 2(l) & 6, Factories Act, 1948 — Construction activity for setting up factory: Such construction activity falls within definition of “building or other construction work” under S. 2(1)(d) of BOCW Act, 1996 and does not fall in exclusionary clause therein i.e. “but does not include any building or other construction work to which the provisions of the Factories Act … apply”. Benefit of BOCW Act, 1996 and BOCW Welfare Cess Act, 1996 hence, held, available to workers working on such construction activity. [Lanco Anpara Power Ltd. v. State of U.P., (2016) 10 SCC 329]

Civil Procedure Code, 1908 — Or. 41 Rr. 23, 23-A & 25 and Ss. 96, 100 and 107 — Power to remand case: In absence of any pleadings for remand before High Court or first appellate court, matter cannot be remanded to lower court. Where parties to appeal never complained at any stage of proceedings that trial of suit was unsatisfactory resulting in prejudice, under such circumstances remand cannot be made. If High Court did not frame substantial question of law as to remanding matter while admitting second appeal, then it cannot exercise power to remand matter. Party seeking remand must make out case under R. 23 or R. 23-A or R. 25 of Or. 41 CPC. While remanding the matter, appellate court needs to assign its reasons for such remand. In absence of any pleadings regarding remand or where party fails to state as to why remand is justified under R. 23 or R. 23-A or R. 25 of Or. 41 CPC, matter cannot be remanded. [Syeda Rahimunnisa v. Malan Bi, (2016) 10 SCC 315]

Criminal Procedure Code, 1973 — S. 427(1) — Person already undergoing a sentence of imprisonment — Subsequent conviction and sentence: Subsequent sentence, would normally commence at the expiration of imprisonment to which he was previously sentenced. However, such normal rule is subject to a qualification, and it is within the powers of court to direct that subsequent sentence shall run concurrently with the previous sentence, and not consecutively. [Benson v. State of Kerala, (2016) 10 SCC 307]

Criminal Procedure Code, 1973 — Ss. 301 and 302 — Distinction between: Under S. 301 CrPC, counsel engaged by informant or private party is required to act under the directions of Public Prosecutor. Regarding S. 302 CrPC, power is conferred on Magistrate to grant permission to complainant to conduct the prosecution independently. Proper mode of seeking permission under S. 302 CrPC, is only by written application. [Dhariwal Industries Ltd. v. Kishore Wadhwani, (2016) 10 SCC 378]

Criminal Trial — Circumstantial evidence — Duty of court while scrutinising circumstantial evidence: Circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of accused. [Nathiya v. State, (2016) 10 SCC 298]

Specific Relief Act, 1963 — Ss. 20, 12, 13 and 19 — Equitable relief by court: In suit for specific performance of agreement of sale of immovable property, as property was not readily capable of valuation, plaintiff purchaser throughout ready and willing to perform its part of obligations under the agreement and its conduct being bona fide while defendants’ conduct was questionable right through, decree for specific performance of agreement for state of 3/4ths of the suit property granted by High Court, confirmed. [Syscon Consultants (P) Ltd. v. Primella Sanitary Products (P) Ltd., (2016) 10 SCC 353]

Trusts and Trustees — Succession to trusteeship: Under trust deed “donor trustee” given power to nominate any person as member in his place for lifetime, and amended trust deed provided that after donor trustee’s lifetime, his senior most lineal descendant or a member of his family, “or his wife” was to succeed and in case of failure of this mode of succession, powers of donor trustee were to be exercised by State Government. Deed of nomination executed by donor trustee nominating his wife as a member after his lifetime by amending relevant clause of trust deed, although nomination deed was registered subsequently but it operated from date of its execution in view of S. 47 of Registration Act. When appellant State accepted that its approval was obtained to deeds of amendment and nomination in context of another person as one of the trustees, it cannot deny such approval to donor trustee’s wife, as appellant cannot be allowed to approbate and reprobate. Government’s approval in case of donor trustee’s wife proved. [State of Karnataka v. Ragini Narayan, (2016) 10 SCC 424]

U.P. Lokayukta and Up-Lokayuktas Act, 1975 (42 of 1975) — S. 12(3) — Implementation of Lokayukta Report:  Considering fact that investigation had already commenced against tainted public servants (Cabinet Minister in State Government and an MLC), time to complete investigation extended. Directions for completion of investigation within fixed time-frame issued. [Jagdish Narain Shukla v. State of U.P., (2016) 10 SCC 433]

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