2018 SCC Vol. 2 February 28, 2018 Part 3

Arbitration and Conciliation Act, 1996 — S. 7(5) — Arbitration clause in a standard form of contract of a party — Incorporation of, by reference — Law summarized: Though a general reference to an earlier contract (Two-contract case) is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form contract (Single-contract case) would be enough for incorporation of the arbitration clause. M.R. Engineers & Contractors (P) Ltd., (2009) 7 SCC 696, inter alia, lays down that where the contract provides that the standard form of terms and conditions of an independent trade association or professional institution will bind the parties or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. [Inox Wind Ltd. v. Thermocables Ltd., (2018) 2 SCC 519]

Arbitration and Conciliation Act, 1996 — Ss. 34 and 37 r/w Ss. 16 and 31(6) — Award: Disputes having arisen between the parties, the respondent invoked arbitration and the arbitrator, on 23-7-2015 took up the issue of limitation first, and then decided the same in favour of the claimant stating that their claims had not become time-barred. Following Siemens Atkeingesellschaft, (2007) 4 SCC 451, held, that award dt. 23-7-2015 was an interim award, which being an arbitral award, could be challenged separately and independently under S. 34 of the Act. Moreover, ruling on issue of limitation is not a ruling on issue of jurisdiction of arbitrator, for it to be appealable under S. 37(2)(a). [IFFC Ltd. v. Bhadra Products, (2018) 2 SCC 534]

Civil Procedure Code, 1908 — Or. 32 Rr. 1, 2, 3, 6, 7, 9, 12, 13 and 14 — Next friend and guardian ad litem: For institution of suit by next friend, court’s permission is not necessary, if next friend is not otherwise incapacitated. Any person can act as next friend if he has no adverse interest against minor. Next friend need not be a duly appointed guardian under Hindu Minority and Guardianship Act, 1956. Concept of guardian under that Act is different from that of next friend or guardian ad litem under Or. 32 CPC as purpose of next friend/guardian ad litem is limited only to looking after interest of minor in particular suit. Merely because certain formalities not observed in appointment of guardian ad litem, decree cannot be set aside if no prejudice is caused to minor defendant thereby. Guardian appointed under 1956 Act can also represent minor in suit if he has no adverse interest against minor. Court required to give notice to minor on his attaining majority about pendency of litigation. It would then be open to him either to continue with suit or to abandon the same. If he chooses to continue, then he may file application before court and consequently next friend/guardian ad litem would stand discharged. Thereafter guardian as defined under S. 4(b) of 1956 Act would automatically continue as guardian. However, if minor after attaining majority continues with the suit of his own, no formal application would be needed. [Nagaiah v. Chowdamma, (2018) 2 SCC 504]

Criminal Procedure Code, 1973 — S. 439(2) — Application for cancellation of regular bail: Issuance of non-bailable warrant of arrest against appellant by High Court on filing of application for cancellation of regular bail granted to appellant herein by trial court (i.e. Addl. Sessions Judge), not proper. [Upendra Sharma v. State of Bihar, (2018) 2 SCC 472]

Human and Civil Rights — Disabled and Differently-Abled Persons — International Human Rights Law — Rights of visually disabled persons for proper, adequate and safe access to public places: Equality, in international human rights law, founded upon two complementary principles: non-discrimination and reasonable differentiation. Non-discrimination seeks to ensure that all person can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities of equal participation. Equality not only implies preventing discrimination but remedies discrimination against groups suffering systematic discrimination in society i.e. it embraces notion of positive rights, affirmative action and reasonable accommodation. Earlier traditional approach to disability which depicted it as health and welfare issue to be addressed through care provided to persons with disabilities from a charitable point of view resulted in marginalising disabled persons and their exclusion both from mainstream of society and enjoyment of their fundamental rights and freedoms. However, there was a market shift in the ideology in 1970s and focus now is on providing them with suitable and adequate facilities so that their full potential is realised which in turn leads to augmentation of human resources with progress of nation. [Rajive Raturi v. Union of India, (2018) 2 SCC 413]

Interpretation of Statutes — Basic Rules — Determination of legislative intent — Language of statutory provisions clear and unambiguous: When language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out meaning of statute inasmuch as language used by legislature is indication of legislative intent. [All Kerala Parents’ Assn. of Hearing Impaired v. State of Kerala, (2018) 2 SCC 410]

Land Acquisition Act, 1894 — Ss. 23(1), 4(1) and 6 — Market value — Determination of — Relevant date for determining compensation: Sale deed relied upon by appellant claimants dt. 27-12-1988 is post notification. Applying Gobinda Chandra Makal, (2011) 9 SCC 207, held, S. 23(1) provides that compensation to be awarded shall be determined by reference court, based upon market value of acquired land at date of publication of notification under S. 4(1) in Gazette. Hence, post-notification instances cannot be taken into consideration for determining compensation of acquired land. [Maya Devi v. State of Haryana, (2018) 2 SCC 474]

Motor Vehicles Act, 1988 — Ss. 166, 168 and 173 — Death in motor accident — Award of compensation — Reversed by High Court: As false case was set up by appellants to support a claim for compensation, no interference warranted. [Anil v. New India Assurance Co. Ltd., (2018) 2 SCC 482]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: In this case repeated six knife-blows by accused to different body parts of deceased, resulted in death of deceased. Said blows were inflicted without premeditation in sudden fight in heat of passion and no evidence was present to suggest that accused had assaulted deceased with intention to cause his death. Moreover, accused showed some contrition upon recovering his senses and took deceased to hospital, etc. Hence, neither fact i.e. merely using knife in commission of offence nor factum of multiple injuries given by accused, sufficient to deny him benefit of S. 300 Exception 4. Conviction under S. 304 Pt. II, restored. Sentence, however, enhanced from 5 yrs’ RI to 10 yrs’ RI. [Atul Thakur v. State of H.P., (2018) 2 SCC 496]

Rent Control and Eviction — Subletting/Sub-Tenant/Sub-Tenancy — Subletting of tenanted premises — Seeking eviction of tenant on ground of: Sine qua non for proving case of subletting is that tenant has either wholly or in part transferred or/and parted with possession of tenanted premises in favour of any third person without landlord’s consent. If tenant is able to prove that he continues to retain exclusive possession over tenanted premises notwithstanding any third party’s induction in said premises, no case of subletting is made out against such tenant. [Flora Elias Nahoum v. Idrish Ali Laskar, (2018) 2 SCC 485]

Rights of Persons with Disabilities Act, 2016 — Ss. 31, 32 and 2(r): Full compliance with statutory provisions directed i.e. (i) 5% seats in government institutions of higher education and other higher educational institutions receiving aid from Government to be reserved for persons with disabilities; (ii) Right to free education to children with benchmark disabilities between age of 6 to 18 yrs. Educational institutions directed to submit list of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner as case may be and appropriate consequential actions to be taken by them against defaulting institutions. Additionally, law colleges to send intimation in this behalf to BCI while other institutions to notify compliance to UGC. [Disabled Rights Group v. Union of India, (2018) 2 SCC 397]

SCs, STs, OBCs and Minorities — Reserved category status — Determination of — Claim to SC community “Jatav” status on basis of caste status of husband: Caste is determined by birth, which cannot be changed by marriage with person of Scheduled Caste. Since appellant wife was born in “Agarwal” family which falls in general category she should not have been issued with SC certificate. [Sunita Singh v. State of U.P., (2018) 2 SCC 493]

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