2018 SCC Vol. 4 May 7, 2018 Part 2

Arbitration and Conciliation Act, 1996 — S. 7(5) r/w S. 11 — Intention to incorporate arbitration clause from another agreement — When cannot be inferred: In this case agreement between appellant and respondent did not contain any arbitration clause, however, Cl. 2 of agreement provided that conditions relating to works and quality specified in agreement between Construction Contractor and employer would be binding on subcontractor/appellant and cl. 9.10 provided that terms and conditions of agreement between Contractor and employer will be applicable for items not mentioned in agreement clauses. Hence, following the ruling in M.R. Engineers and Contractors (P) Ltd., (2009) 7 SCC 696, wherein it was inter alia, held, that where a contract between the parties provides that execution or performance of that contract shall be in terms of another contract (which contains terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, terms of referred contract in regard to execution/performance alone will apply, and not arbitration agreement in referred contract, unless there is special reference to arbitration clause also, held, that arbitration clause was not intended to be made as a part of contract between appellant and respondent. Thus, appellant’s petition under S. 11 rightly dismissed by High Court. [Elite Engg. and Construction (Hyd.) (P) Ltd. v. Techtrans Construction India (P) Ltd., (2018) 4 SCC 281]

Civil Procedure Code, 1908 — Or. 43 R. 1(r) and Or. 39 R. 1 — Interference in interim order/Interlocutory Orders/Injunction/Stay: When main appeal itself is pending for consideration before High Court and order being interim in nature, interference with interim order must be declined. Expeditious disposal of first appeal on merits, emphasized. [B. Muthukrishnan v. S.T. Reddiar Educational & Charitable Trust, (2018) 4 SCC 298]

Competition Act, 2002 — Ss. 4(2)(c) Expln. (a), 2(b), (f)(ii) & (m): Abuse of dominant position by cable operators’ group by unlawful premature termination of agreement with broadcaster of a TV channel resulting in denial to broadcaster of market access, is violative of S. 4(2)(c). Words “in any manner” in S. 4(2)(c) are of wide import and should be given natural meaning. Once dominant position of the group made out on facts, question whether broadcaster is in competition with the group irrelevant for purpose of application of S. 4(2)(c). [CCI v. Fast Way Transmission (P) Ltd., (2018) 4 SCC 316]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail by High Court, in a case of murder, being on a very little reference to/or discussion on merits of bail applications. Reason for release mainly one, which reason can, on a fair reading, be understood or misunderstood almost as a mitigating circumstance or a kind of a justification for murder. High Court’s order(s) set aside and bail applications restored to file of High Court, for hearing matter(s) afresh, after giving liberty to parties to file additional affidavits. [Mubin Shaikh v. State of Maharashtra, (2018) 4 SCC 312]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Jurisdiction/Judicial Interference/Parens Patriae Jurisdiction/Conflict of Laws/Private International Law: Principle of comity of courts or forum conveniens cannot alone determine threshold bar of jurisdiction. In these matters, paramount consideration is always best interest of child. This cannot be subject-matter of final determination in proceedings under Or. 7 R. 11 CPC. [Jasmeet Kaur v. Navtej Singh, (2018) 4 SCC 295]

Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 8(2), (3), 10-B and 11 — Mining leases declared to be illegal in Goa Foundation, (2014) 6 SCC 590 — Grant of second renewal — Impermissibility of: State of Goa should have granted fresh mining leases instead of granting a second renewal. Such second renewal, held, illegal in view of Goa Foundation, (2014) 6 SCC 590. Second renewal of mining leases set aside and consequential directions also issued. [Goa Foundation v. Sesa Sterlite Ltd., (2018) 4 SCC 218]

Penal Code, 1860 — Ss. 467, 468 and 471 r/w S. 120-B — Bail — Grant of — Reasons for: Appellant-accused was facing trial under Ss. 467, 468 and 471 r/w S. 120-B IPC. His period of custody was more than one year. High Court rejected his bail application mainly on basis of FSL Report. Though case is pending for a long time, trial has not yet commenced. Evidently, co-accused was granted bail. In aforesaid circumstances, held, it is just and proper to release appellant on bail. Hence, appellant directed to be released on bail on certain conditions. [Vijay Kumar v. State of Rajasthan, (2018) 4 SCC 315]

Public Accountability, Vigilance and Prevention of Corruption — Government Contracts and Tenders — Purchase of helicopters by State Governments — Unsubstantiated and baseless allegations: In this case involving purchase of Agusta Westland helicopter by the State of Chhattisgarh, where allegations of kickbacks and deposit in foreign accounts, specific allegation of deposit in account of Chief Minister’s son were imposed. Prayer for direction for investigation into allegations, was rejected as there was nothing on record to show that said purchases could have been made at a lesser price. CAG did not attribute any extraneous consideration in deal concerned. It was clarified that Government was entitled to make choice in purchase of helicopters which were purchased after evaluation of global tenders. Son of the Chief Minister was not personally a party. Disclosure in Panama Papers is a matter which is still under investigation. Hence, petition filed by Swaraj Abhiyan seeking probe into the alleged anomalies in the purchase of Agusta Westland helicopter by the State of Chhattisgarh, dismissed. [Swaraj Abhiyan v. Union of India, (2018) 4 SCC 300]

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