2018 SCC Vol. 9 October 28, 2018 Part 2

Arbitration Act, 1940 — S. 29 — Award of pre-reference, pendente lite and future interest by arbitrator — Permissibility of: Under the 1940 Act, an arbitrator has power to grant pre-reference interest under the Interest Act as well as pendente lite and future interest, however, he is constricted only by the fact that an agreement between the parties may contain an express bar to the award of pre-reference and/or pendente lite interest. Further, the Court has evolved the test of strict construction of such clauses, and unless there is a clear and express bar to the payment of interest that can be awarded by an arbitrator, clauses which do not refer to claims before the arbitrators or disputes between parties and clearly bar payment of interest, cannot stand in the way of an arbitrator awarding pre-reference or pendente lite interest. Further, unless a contractor agrees that no claim for interest will either be entertained or payable by the other party owing to dispute, difference, or misunderstandings between the parties or in respect of delay on the part of the engineer or in any other respect whatsoever, leading the Court to find an express bar against payment of interest, a clause which merely states that no interest will be payable upon amounts payable to the contractor under the contract would not be sufficient to bar an arbitrator from awarding pendente lite interest. Further, the grant of pendente lite interest depends upon the phraseology used in the agreement, clauses conferring power relating to arbitration, the nature of claim and dispute referred to the arbitrator, and on what items the power to award interest has been taken away and for which period. Also, the position under S. 31(7) of the 1996 Act, is wholly different, inasmuch as S. 31(7) of the 1996 Act sanctifies agreements between the parties and states that the moment the agreement says otherwise, no interest becomes payable right from the date of the cause of action until the award is delivered. [Reliance Cellulose Products Ltd. v. ONGC Ltd., (2018) 9 SCC 266]

Citizens, Migrants and Aliens — National Register of Citizens of India (NRC): Complete draft prepared after claims/objections cannot be basis for any action by authorities. Authorities must grant reasonable opportunity to each concerned. Statements made by authorities before media touching upon matters pending before Supreme Court, strongly deprecated. [Assam Public Works v. Union of India, (2018) 9 SCC 229]

Civil Procedure Code, 1908 — Or. 2 and Or. 6 R. 17, Or. 14 R. 5 and Or. 18 R. 17 — Suit to include whole claim: When family property dispute resulted in two different civil suits before two different courts, respective claims of parties are required to be decided in one suit rather than in two different suits. [P.K. Narayanan Raja v. Ambika, (2018) 9 SCC 164]

Civil Procedure Code, 1908 — Ss. 96 and 100 — Appeal — Locus standi to file appeal: Appeal by person who was not a party to the civil suit or in first appeal is not maintainable when the judgment in appeal is not adverse to any party in the suit. [Lakshmi Sreenivasa Coop. Building Society Ltd. v. Puvvada Rama, (2018) 9 SCC 251]

Education Law — Fee Structure/Capitation Fee/Fee Regulatory Committee — Statutory prohibition of fees in excess of that prescribed by Fee Fixation Committee constituted under T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 — Institutions covered by: T.N. Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 is applicable to medical and engineering courses in Annamalai University deemed to be constituted under Annamalai University Act, 2013. For this it is not necessary to notify a statutory university like present one as an “educational institution” under S. 2(b) of 1992 Act. In relation to imparting of education leading to a degree in Medicine or Engineering, S. 4(2-A) of 1992 Act has been given an overriding effect by incorporating non obstante provision. S. 4(2-A), unlike S. 4(1) of 1992 Act does not require any notification by the Government. [M. Aamira Fathima v. Annamalai University, (2018) 9 SCC 171]

Government Contracts and Tenders Termination/Discharge/Repudiation/ Cancellation/Suspension of Contract — Generally — Proper exercise of power by State: In this case dealership of petroleum products was terminated as factum of breach of conditions of dealership agreement was established. Division Bench of High Court issued mandamus in favour of party who breached standard requirements by overturning Single Judge order. The Supreme Court held that writ court is not appellate court nor can it substitute its decision in administrative matters where there is no case of arbitrariness. Consequently, termination of dealership was upheld. [Indian Oil Corpn. Ltd. v. T. Natarajan, (2018) 9 SCC 235]

Information Technology Act, 2000 — S. 70(1) as existing prior to Amendment Act 10 of 2009 r/w S. 17 r/w Ss. 2(o) and 2(k) of Copyright Act, 1957 — Power to declare “protected system” in respect of “government work” — Permissibility of: The provisions of S. 70(1) of the IT Act have to be read conjointly with Ss. 2(k) and 17 of the Copyright Act, 1957 in order to give due effect to related provisions of the two different enactments made by the legislature. Further, plainly read, the power of declaration of a “protected system” may invade a copyright which may be vested in a private owner, however, such a situation is taken care of by the provisions contained in S. 2(k) of the Copyright Act, 1957 which defines “government work” and S. 17(d) of the Copyright Act, 1957 which vests in the Government, copyright in a government work as defined by S. 2(k). The balance is struck by S. 17 between copyright pertaining to any other person and copyright vested in the Government in a “government work”. Therefore, S. 70 cannot be construed independent of the provisions of the Copyright Act. If S. 70 of the IT Act has to be read in conjunction with Ss. 2(k) and 17 of the Copyright Act, 1957 the rigours that would control the operation of S. 70(1) of the IT Act are clearly manifested. [B.N. Firos v. State of Kerala, (2018) 9 SCC 220]

Land Acquisition Act, 1894 — S. 23 — Market Value — Compensation — Determination of — Particular class of land — Wet lands vis-à-vis dry and chira lands: Award of Rs 2000 per cent for wet land appears is just, proper and reasonable keeping in view nature of land, its surroundings and location and similarity with land owned by other landowners to whom compensation was awarded at Rs 2000 per cent. [K.S. Rajan v. State of Kerala, (2018) 9 SCC 167]

Penal Code, 1860 — Ss. 326, 331, 343 and 346: In this case of illegal detention and custodial torture of one B, by appellant-accused (police officials), High Court reversed their acquittal, convicting them under Ss. 326, 331, 343 and 346 IPC and imposing 2 yrs’, imprisonment upon them. Occurrence was of year 1992 and appellants, after acquittal by trial court, also attained age of superannuation. One was 80 yrs old and the other was more than 70 yrs. Appellants have already undergone about 15 months’ imprisonment and victim was also given government job and is presently working. Hence, considering facts and circumstance of case, imprisonment of appellants was reduced by the Supreme Court to period already undergone. However, reduction of sentence was in peculiar facts and circumstances of instant case and the same may not be treated as precedent. [Bhagwan Dass v. State of Haryana, (2018) 9 SCC 227]

Penal Code, 1860 — Ss. 363, 366 and 376 — Abduction and rape — Age of prosecutrix — Relevance: In this case, appellant-accused was convicted by High Court under Ss. 363, 366 and 376. Evidence of PW 6 (prosecutrix) regarding incident was contradicted by her previous statement under S. 161 CrPC. Materials on record indicated that PW 6 remained in company of appellant for about 12 days until she was recovered and she had freely moved around with appellant, in course of which movement, she came across many people at different points of time, yet, she did not complain of any criminal act on part of appellant. The Supreme Court held that in view of above, age of prosecutrix becomes relevant for determining whether she was a major so as to give her consent. Herein, prosecution had not succeeded in proving that prosecutrix was a minor on date of alleged occurrence. Possibility of prosecutrix being a consenting party cannot be altogether ruled out. Hence, order of High Court was set aside and appellant was acquitted on benefit of doubt. [Rajak Mohammad v. State of H.P., (2018) 9 SCC 248]

Police — Police Atrocities/Inaction/Custodial Death/Custodial Violence/ Illegal Detention: In this case involving allegation of custodial torture, parties relegated to High Court permitted to seek appropriate remedy. It was, however, clarified that grant of such liberty should not be construed as expression of any doubt regarding investigation process. [Sahil Sharma v. Union of India, (2018) 9 SCC 234]

Prevention of Corruption Act, 1988 — Ss. 7, 13(1)(d) and 20 — Illegal gratification: Demand and acceptance of illegal gratification is sine qua non to constitute offence under Ss. 7 and 13(1)(d). In this case demand of money by first accused and acceptance of bribe amount by second accused at the behest of first accused, was proved by evidence of complainant and trap witness. The Supreme Court held that findings of trial court did not suffer from any infirmity and High Court was not justified in setting aside conviction of both accused. No explanation was also offered by accused to rebut presumption under S. 20, hence, conviction under Ss. 7 and 13(1)(d), restored. [State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242]

Service Law — Judiciary — Appointment — Nature of appointment: Appointments on ad-hoc basis are not “contractual appointment” when against sanctioned posts or on pay scale. Hence, appointment of appellants as Fast Track Court Judges for five years which was extended against sanctioned posts on ad hoc basis on pay scale, not contractual appointment. [K. Anbazhagan v. High Court of Madras, (2018) 9 SCC 293]

Service Law — Recruitment Process — Eligibility criteria/conditions — Relaxation of norms/conditions: In this case, for recruitment to posts of Assistant Traffic Inspectors, 75% was by promotion and 25% by direct recruitment, however, due to existence of large number of vacancies and dire need of Assistant Traffic Inspectors but absence of qualified people for promotion, relaxation of requirement of experience of 5 yrs was given, which was notified as part of educational qualifications in terms of Kolhapur Municipal Corporation Regulation No. 119 dt. 14-5-1991, and appellants (15 candidates) were appointed by direct recruitment. It was held by the Supreme Court that interest of justice would be served if appellants and others recruited along with them who had worked for over 23 yrs now are allowed to continue as having been regularly recruited and appointed since in case their appointments are quashed there would only be 1 Asstt. Traffic Inspector actually working and 2 Assistant Traffic Inspectors eligible for promotion against 25 available posts. It was also noted that notification relaxing criteria was also challenged by respondent Trade Union only after appointments were made. [Sunil Shamrao Jadhav v. Kolhapur Municipal Corpn., (2018) 9 SCC 215]

Trade Marks Act, 1999 — Ss. 9, 11 and 18 — Registration of the phonetically similar mark “NANDHINI” to the earlier registered/in use mark “NANDINI” — Test of deceptiveness/confusion — Application of: Registration is permissible when such latter mark is used for different goods/nature of business and visual appearance of two marks is so different that average person of ordinary intelligence would not be deceived or confused between goods concerned. Further, registration of trade mark qua certain goods falling under one class does not vest monopoly over the entire class of goods with the proprietor of registered mark. [Nandhini Deluxe v. Karnataka Coop. Milk Producers Federation Ltd., (2018) 9 SCC 183]

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