2017 SCC Vol. 5 June 7, 2017 Part 2

Arbitration and Conciliation Act, 1996 — Ss. 8(1) & (2) — “Shall not be entertained” — Import of: Explaining meaning of term “shall not be entertained”, held, what is prohibited is “entertainment of application” unless it is accompanied by original arbitration agreement or its certified copy. Thus, an application filed under S. 8(1) without such original or certified copy of arbitration agreement shall not entail rejection under S. 8(2) when original arbitration agreement or its certified copy is brought on record at the time when court is considering said application. [Ananthesh Bhakta v. Nayana S. Bhakta], [(2017) 5 SCC 185]

Central Excise Act, 1944 — S. 11-AC — Quantum of penalty that may be imposed: Applying three-Judge Bench ruling in Dharamendra Textile Processors, (2008) 13 SCC 369, that by no stretch of imagination can it be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable, held, there is no discretion left with the Tribunal to reduce the quantum of penalty amount once it held that a case for penalty is made out. [CCE v. Stesalit Ltd.,  (2017) 5 SCC 231]

Civil Procedure Code, 1908 — Or. 6 R. 17 and Or. 7 R. 14(3) — Amendment of pleadings and consequential submission of additional documents — When can be allowed: Some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:(1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. [Chakreshwari Construction (P) Ltd. v. Manohar Lal, [(2017) 5 SCC 212]

Civil Procedure Code, 1908 — S. 100 — Interference in second appeal: As perversity in findings of first appellate court, was only substantial question of law framed and pressed before High Court and weighty evidence which was rightly appreciated by trial court, was ignored by first appellate court, High Court was well within its jurisdiction under S. 100 CPC in restoring decree of eviction passed by trial court. [Fateh Singh v. Hari Chand, (2017) 5 SCC 175]

Constitution of India — Art. 226 — Limits of judicial review/activism — Policy matter: Power of High Court to issue directions to State Government to create separate wings of State Police for investigation of crime and prosecution in order to have speedy completion of investigations, which are in exclusive domain of legislature and within sphere of amendment to statute, not available. Courts are required to exercise power of judicial review in relation to the controversy before it. Even a laudable object must flow from the facts before the court or from a specific litigation placed before the court. In any case, High Court cannot enter into the domain where amendment to legislations and other regulations are necessary to give effect to its directions. [State of U.P. v. Subhash Chandra Jaiswal, (2017) 5 SCC 163]

Contempt of Court — Practice and Procedure — Notice — Issue of show-cause notice and consideration of reply thereto: As no show-cause notice or opportunity to reply was granted to the appellant-accused in this case, held, the High Court shall grant an opportunity to the appellant to file his reply and on the reply being filed, the appellant may be heard and only thereafter, the High Court may form an opinion as to whether the court should proceed against the appellant for contempt of court. [Agyapaul Singh v. SBI, (2017) 5 SCC 235]

Criminal Procedure Code, 1973 — S. 439 — Bail — Saradha Chit Fund Scam: Conditional bail granted after in-depth balancing of competitive imperatives of investigation and right to liberty. However, directed that this order would not act as precedent. [Manoranjana Sinh v. CBI, (2017) 5 SCC 218]

Drugs (Price Control) Order, 1995 — Paras 3, 7, 8 and 9: Central Government can fix the retail price or ceiling price of formulations under Paras 8 and 9 (as the case may be) without determining the norms for cost of packing material as required by Para 7 or without fixing the maximum sale price under Para 3 of the bulk drug utilised in the formulation. [Union of India v. Cipla Ltd., (2017) 5 SCC 262]

Education and Universities — Employment and Service Matters re Educational Institutions — Appointment/Recruitment: In dispute as to validity of appointments/TET certificates on Assistant Teachers’ posts in State of U.P. as there was non-compliance with interim orders dt. 7-12-2015, Shiv Kumar Pathak, (2015) 17 SCC 230 and 24-2-2016 and similar IAs seeking similar relief, directions issued in the matter. [State of U.P. v. Shiv Kumar Pathak, (2017) 5 SCC 246]

Finance Act, 1994 — S. 65(105)(zza) r/w S. 65(102) — “Storage and warehousing services”: Sharing of expenditure for collection of HCN gas and incidental incineration charges by one of joint partners when handling facilities located in premises of one of them, held, not “service”. Further, to levy service tax on “storage and warehousing” of goods, fulfillment of two conditions i.e. (i) goods in question fall within definition of “storage and warehousing”, and (ii) existence of element of service provided by one person to other for which charges for providing such services are to be collected, are necessary. [Gujarat State Fertilizers & Chemicals Ltd. v. CCE, (2017) 5 SCC 198]

Income Tax Act, 1961 — S. 245-H(1-A) — Immunity from prosecution: Grant of further time for payment under S. 245-H(1-A) by court instead of relegating assessee to Settlement Commissioner for enlargement of time, since the payments had already been made. [Sandeep Singh v. Union of India, (2017) 5 SCC 241]

Infrastructure Laws — Telecommunications Laws — Subscriber verification: Imposition of penalty for violation of licence terms viz. failure to supply CAF (customer acquisition form)/comply with requirement of subscriber verification, upheld, with prospective effect. [Union of India v. IDEA Cellular Ltd. Co., (2017) 5 SCC 210]

Justice k.k. Mathew — “The Cardozo of India”: In this article, the author’s opinion about Justice K.K. Mathew has been expressed. It has also been stated that Justice Mathew’s minority opinion in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (one out of several in a Bench decision of 13 Judges) “ensures him the fame of being the Cardozo of India”. [Justice k.k. Mathew — “The Cardozo of India” by Fali S. Nariman, (2017) 5 SCC J-1]

Kerala Court Fees and Suits Valuation Act, 1959 — S. 76 — S.R.O. No. 226 of 2002 dt. 5-4-2002 — Levy of additional court fee in respect of appeal or revision — Validity of: Government of Kerala in exercise of powers under S. 76(1) authorized the tribunals and appellate authorities to levy additional court fee in respect of each appeal or revision and that the amount so collected was to be credited to the Kerala Legal Benefit Fund. The amount set apart from the Legal Benefit Fund was to be credited to the Advocates’ Welfare Fund, for providing efficient legal services for the people of the State and social security measures for the legal profession. It was held that the purposes for which the Fund is to be utilised was for providing efficient legal services for the people of the State which amounts to quid pro quo; advocates playing an important role in the administration of justice and discharging public duty of the highest utility. Further, providing social security to the legal profession is an essential part of any legal system which is to be effective, efficient and robust to enable it to provide necessary service to the consumers of justice. Therefore, additional court fee imposed has a direct nexus to the objective sought to be achieved in relation to the service available to the appellants or others who approach the courts/tribunals for redressal of their grievances. Thus, the validity of the said notification, upheld. [Cardamom Mktg. Corpn. v. State of Kerala, (2017) 5 SCC 255]

Land Acquisition Act, 1894 — S. 54 — Appeal — Additional evidence: Application under Or. 41 R. 27 CPC for producing awards/orders in cases of same/similar nature of land acquired for same purpose in other States, declined by High Court on ground that said evidence would not assist applicants without first adjudicating on admissibility thereof, not proper. [Sarla Devi v. State of Punjab, (2017) 5 SCC 243]

Motor Vehicles Act, 1988 — S. 166 — Compensation — Monthly income of deceased husband of appellant — Determination of: Tribunal and High Court considered monthly income as Rs 27,219 whereas monthly income prior to death of deceased was Rs 33,037 and in IT Return income is shown as Rs 37,477. Parties have had already two rounds of litigation, on suggestion of Supreme Court, matter disposed of on payment of lump sum additional compensation without interest, in full and final settlement of claim. [Suja George v. National Insurance Co. Ltd., (2017) 5 SCC 229]

Public Accountability, Vigilance and Prevention of Corruption — Corruption/Abuse of Power — Banking and Financial Sector: In this case, there were allegations of fraudulent loan taken on deposits but no evidence of involvement of depositors was there. CBI, after due investigation, permitted bank to release funds to depositors. High Court judgment directing that depositors can withdraw their matured deposit amount, affirmed. [Central Bank of India v. Husainy Fakhruddin, (2017) 5 SCC 249]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 13 — Recovery proceedings initiated by Bank under SARFAESI Act — Continuance of, if warranted: As arbitrator was only sought for one more month’s time to pass final award and once award is passed, aggrieved party has a remedy, by way of revision under S. 34 of Arbitration and Conciliation Act, 1996. Thus, held, it is not necessary for Supreme Court, at this stage, to go into validity of amendment or notification issued. Further held, it is not necessary at this stage for respondent Bank to continue proceedings under SARFAESI Act. [M. Waseeq Cafetaria v. Union of India, (2017) 5 SCC 227]

Service Law — Appointment — Eligibility Criteria/Conditions/Zone of Consideration — Eligibility criteria: For appointment to post of Language Pandit (Telugu) Grade II, Bachelor’s degree in Telugu Literature as single subject from Open University, is equivalent to Bachelors’s degree in Telugu from another university. [State of A.P. v. Sk. Mahibulla Sharief, (2017) 5 SCC 237]

Specific Relief Act, 1963 — S. 20(2)(a) and S. 20(2)(b) and S. 20 Explns. 1 and 2, Ss. 21(1) and (2) — Specific performance of contract — Grant of: Court is not bound to grant relief of specific performance merely because it is lawful to do so. S. 20(1) of Specific Relief Act, 1963 indicates that jurisdiction to decree specific performance is discretionary. Yet, discretion of court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles” and exercise of discretion is capable of being corrected by a court of appeal in hierarchy of appellate courts. S. 20(2) contains stipulation of cases where court may exercise its discretion not to grant specific performance qualifications added thereto by stipulations Explns. 1 and 2. [Jayakantham v. Abaykumar, (2017) 5 SCC 178]

Town Planning — Slum Rehabilitation/Development: Eviction of tenement holders to facilitate redevelopment of area concerned as out of a total of 393 tenements holders, as many as 357 had given their consent for redevelopment of the area and as many as 229 tenements already stood vacated and only 74 tenement holders were resisting eviction against whom proceedings under S. 95-A of 1976 Act were instituted., having considered affidavits filed by respective parties, on consent of parties Supreme Court directed appellants to vacate tenements under their occupation to avoid any further delay in completion of said project and to raise issues such as their entitlement to accommodation and facilities under Regn. 33(5) of Development Control Regulations for Greater Mumbai, 1991. [Muniraj R. Kurmi v. State of Maharashtra, (2017) 5 SCC 204]

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