2018 SCC Vol. 1 January 28, 2018 Part 4

Arbitration and Conciliation Act, 1996 — S. 34 — Award — Setting aside of, when the same is allegedly contrary to public policy of India, being violative of Indian statute (FEMA) and effected and induced by fraud: Arbitration dispute between Satyam Computer Services Ltd. and Venture Global Engineering LLC, referred to a larger bench in view of divergent opinions. [Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656]

Armed Forces — Promotion — Criteria/Eligibility — Zone of consideration: In terms of Promotion Policy, Board Members were empowered to award marks not exceeding two (2) out of total marks of 95 on overall profile of officer while 93 marks were to be objectively quantified on basis of ACR, academic qualifications as well as military awards and decorations. In original SPB meeting dt. 20-1-2016, one S awarded 1.70 out of 2 marks by Board Members while respondent was awarded 1.50 marks since marks allotted to him out of 93 were less than S i.e. marks commensurate with quantified marks awarded instead of overall profile of candidates. Subsequently, in terms of redressal granted to respondent vide letter dt. 30-1-2017, quantified marks of respondent became higher than S necessitating Review SPB. However, in Review SPB, Board Members granted him same marks as in original SPB. The Supreme Court held that Review SPB should be on same standards as original SPB since it is only extrusion of original SPB, which would be in conformity with Art. 14 of the Constitution. After redressal, since respondent’s quantified marks had become higher than S, he was entitled to commensurate marks by Board Members. No interference with impugned judgment was called for. It was also clarified that in future selections, Board Members would be at liberty to award 2 marks on basis of overall profile of candidate in terms of Promotion Policy dt. 14-1-2004 as amended vide letter dt. 17-5-2006. [Union of India v. Manomoy Ganguly, (2018) 1 SCC 552]

Citizenship Act, 1955 — S. 6-A — Special provision as to citizenship for persons covered under Assam Accord — Verification of claims by Tribunal under S. 6-A for inclusion in National Register of Citizenship (NRC) — Illustrative list of documents admissible: Document No. xiii, that is, married woman’s migration certificate issued by Secretary of the Village Panchayat and countersigned by local revenue official in respect of females who have migrated to other villages after marriage or such certificates issued by jurisdictional circle officers in respect of urban areas is only a supportive document which enables holder to establish a link with her legacy prior to marriage. Though said document is no proof of citizenship, there is no reason why it cannot be used along with other evidence for establishing claim of citizenship under S. 6-A, if it can be properly verified. [Rupajan Begum v. Union of India, (2018) 1 SCC 579]

Civil Procedure Code, 1908 — S. 96 and Or. 41 R. 31 — First appeal — Proper mode of disposal of — Principles reiterated: As first appellate court dismissed appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in case and discussing arguments raised by parties in support of their case, disposal of two first appeals could not be said to be in conformity with requirements of S. 96 r/w Or. 41 R. 31 CPC. Hence, matter remanded for disposal afresh. [C. Venkata Swamy v. H.N. Shivanna, (2018) 1 SCC 604]

Constitution of India — Art. 136 — Ram Janmabhoomi/Babri Masjid suit — Dispute ownership of land on which stood as to place of worship: Documents and oral evidence in regional languages directed to be translated to English within time specified. Prayer for substitution and deletion of parties, also permitted. [M. Siddiq v. Mahant Suresh Das, (2018) 1 SCC 649]

Constitution of India — Art. 32 — Successive writ petition intending to scandalise highest judicial functionaries with frivolous allegations: As the prayer for constitution of Special Investigation Team (SIT) headed by retired Chief Justice with regard to same FIR has already been dismissed by earlier writ petition, present petition, held to be wholly frivolous, contemptuous, unwarranted and without any accountability by petitioner who professes to espouse cause of accountability. Hence, writ petition dismissed with costs of Rs 25 lakhs and warning that such petitions/contemptuous conduct can result in debarring petitioner from filing PILs in future. [Campaign for Judicial Accountability & Reforms v. Union of India, (2018) 1 SCC 589]

Negotiable Instruments Act, 1881 — Ss. 138, 142 to 147 [as amended by Negotiable Instruments (Amendment & Misc. Provisions) Act, 2002] — Trial proceedings: Offence under S. 138 primarily in nature of civil wrong and proceedings primarily compensatory in nature. Summary procedure should normally be followed except where exercise of power under second proviso to S. 143 considered necessary. Court has jurisdiction under S. 357(3) CrPC to award suitable compensation with default sentence under S. 64 IPC with further powers of recovery under S. 431 CrPC. Court may close proceedings if accused deposits amount as assessed by it having regard to cheque amount, interest/costs, etc. within stipulated period. Compounding at initial stage and even at later stage is acceptable. Certain proceedings can be conducted online. [Meters And Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560]

Negotiable Instruments Act, 1881 — Ss. 139, 118, 119 and 138 — Presumptions in favour of holder of cheque — When do not arise — Advocate-client relationship — Burden to prove contract/fee — On whom lies: Advocate claiming fees on contingent fee basis i.e. claim based on percentage of subject-matter/expected decretal amount in litigation, not proper. It was held, firstly, mere issuance of cheque by client may not debar client from contesting liability to pay fees claimed by advocate. If liability is disputed, advocate has to independently prove contract. Secondly, a contingent fee claim cannot be the basis for a complaint by an advocate under S. 138, NI Act. Thirdly, in any case contingent fee claim is a professional misconduct and against public policy. [B. Sunitha v. State of Telangana, (2018) 1 SCC 638]

Penal Code, 1860 — Ss. 499, 500, 501 and 502 — Offence of defamation: To constitute an offence of defamation requires a person to make some imputation concerning any other person; (i) Such imputation must be made either (a) With intention, or (b) Knowledge, or (c) Having a reason to believe that such an imputation will harm the reputation of the person against whom the imputation is made. (ii) Imputation could be, by (a) Words, either spoken or written, or (b) By making signs, or (c) Visible representations (iii) Imputation could be either made or published. [Mohd. Abdulla Khan v. Prakash K., (2018) 1 SCC 615]

Property Law — Adverse Possession: Claim of adverse possession by member of one family against other members in respect of family property, not tenable. There cannot be adverse possession amongst members of one family for want of animus among them over land belonging to their family. [Nanjegowda v. Ramegowda, (2018) 1 SCC 574]

Schedule (Special Provisions as to Manner of Preparation of National Register of Indian Citizen in State of Assam) to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 — Paras 2 and 3 — National Register of Citizens (NRC) for State of Assam — Procedure of identification of citizens: Relaxed standards for original inhabitants, that is, on basis of proof of citizenship alone and nothing else. Apprehension that said procedure would make original inhabitants of Assam superior citizens, conferring on them special status, held to be baseless. All citizens whether original inhabitants of Assam or not are equally entitled to be registered as citizens of India. Clarification of expression “originally inhabitants of the State of Assam” in Para 3(3), not necessary and prayer in this regard, rejected. [Kamalakhya Dey Purkayastha v. Union of India, (2018) 1 SCC 594]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13(4), 17(1) & (2) and R. 9(5) of Security Interest (Enforcement) Rules, 2002: Proper forum before which challenge can be made to forfeiture of deposit money of auction-purchaser by secured creditor is DRT. In view of S. 17(2) and R. 9(5), an action of secured creditor in forfeiting the deposit made by the auction-purchaser is a part of the measures taken by the secured creditor under S. 13(4). Further, the expression “any of the measures referred to in S. 13(4) taken by secured creditor or his authorized officer” in S. 17(1) would include all actions taken by the secured creditor under the rules which relate to the measures specified in S. 13(4). Further, the auction-purchaser fell within the expression “any person” as specified under S. 17(1). Therefore, auction-purchaser is entitled to challenge the action of the secured creditor before the DRT by filing an application under S. 17(1) of the SARFAESI Act. [Agarwal Tracom (P) Ltd. v. Punjab National Bank, (2018) 1 SCC 626]

Service Law — Appointment — Nature of — Ad hoc appointment, or, part-time appointment for fixed period and fixed salary: Respondents, have not applied pursuant to advertisement dt. 12-1-1988 inviting applications for post of ad hoc Lecturers but submitted independent applications thereafter seeking appointment against post of part-time Lecturer, in furtherance of which they were appointed as such for a fixed period of three months on fixed salary till end of April 1990. Hence it was held that there was absolutely no question of respondents having been appointed on ad hoc basis or pursuant to advertisement dt. 12-1-1988 or any basis other than part-time. High Court by impugned judgment erred in remanding matter to Director of Education for regularisation of respondents after considering provision of S. 31-C of 1980 Act. Besides, since respondents were not appointed on ad hoc basis they had no right to be regularised even if they fulfilled S. 31-C. Moreover, neither did statue provide for regularisation of part-time Lecturers nor any evidence was produced to prove that they had worked beyond April 1990 and thus, no question of regularisation arose. [LLN Degree College v. Director, Higher Education, (2018) 1 SCC 597]

Transfer of Property Act, 1882 — S. 53-A — Prospective buyer in possession pursuant to part-performance of agreement for sale — Suit for specific performance filed by such prospective buyer dismissed — Effect thereof: Once suit for specific performance filed by such prospective buyer is dismissed, his possession becomes unauthorized and illegal. Protection under S. 53-A is thereafter no longer available. Seller entitled to claim back possession from prospective buyer on ground of ownership. [Revanasiddayya v. Gangamma, (2018) 1 SCC 610]

Transfer of Property Act, 1882 — S. 54 — Execution of sale deed: For proof of execution of sale deed absence of attesting witness, is irrelevant. [Bayanabai Kaware v. Rajendra, (2018) 1 SCC 585]

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