2019 SCC Vol. 2 February 21, 2019 Part 2

Arbitration and Conciliation Act, 1996 — Ss. 2(1)(f)(ii) and (iii) and 11 — “International commercial arbitration” — Requirements of: In this case a contract was entered into between MMRDA and a Consortium, comprising, of an Indian and a Malaysian company in which the Indian Company was the lead partner, it was held that an association in S. 2(1)(f)(iii) would include a Consortium consisting of two or more bodies corporate, at least one of whom is a body corporate incorporated in a country other than India. Further, the order of the High Court, in the earlier litigation, holding that it was not open for the petitioners to rely upon their independent identities and that they would have to deal with the respondent as a consortium only, not having appealed against had attained finality. Thus, held, the unincorporated “association” referred to in S. 2(1)(f)(iii) would be attracted on the facts of this case and not S. 2(1)(f)(ii) as the Malaysian body could not be referred to as an independent entity. Also, considering that the Indian company was the lead partner, the Consortium’s office was in Mumbai as also that the lead member was to lead the arbitration proceedings, held, that the central management and control of this Consortium appeared to be exercised in India. Thus, petition under S. 11 was dismissed as there was no “international commercial arbitration”. [L&T-Scomi v. MMRDA, (2019) 2 SCC 271]

Consumer Protection — Services — Medical practitioners/services — Medical negligence — Test to determine: Test laid down in Bolam, (1957) 1 WLR 582 and subsequently reiterated in Eckersley, (1988) 18 Con LR 1 (CA), is consistently followed by all the courts all over the world including Indian courts. Principles of law on above issue as stated by Supreme Court in Jacob Mathew, (2005) 6 SCC 1 after extensively referring to Bolam case and Eckersley case, reiterated. Said principles being: (a) a professional may be held liable for negligence either (i) when he was not possessed of the requisite skill which he professed to have possessed, or, (ii) when he did not exercise, with reasonable competence in the given case, the skill which he did possess, (b) the fact that the defendant charged with negligence acted in accord with the general and approved practice, is enough to clear him of the charge, (c) the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time of incident and not at the date of trial, and (d) the standard to be applied for judging the negligence would be that of an ordinary competent person exercising ordinary skill in that profession. [S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 282]

Crimes Against Women and Children — Death Sentence — Kidnapping, rape and murder of minor, and causing disappearance of evidence — Sentence — Death Sentence: Death penalty to be imposed only when alternative of life imprisonment is totally inadequate and after balancing aggravating and mitigating circumstances crime falls in “rarest of rare” category. [Viran Gyanlal Rajput v. State of Maharashtra, (2019) 2 SCC 311]

 Criminal Procedure Code, 1973 — S. 482 — Quashment application: For proper disposal of quashment application there is need to refer to factual matrix of case. [Omveer Singh v. State of U.P., (2019) 2 SCC 182]

Criminal Trial — Identification — Test Identification Parade — Delay — Effect — Proper mode of conduct of: In this case there were allegations of offence of rioting and firing at police personnel causing death of senior official and injuring others. Out of seven eyewitnesses who participated in TIP, five of them identified accused with 100% precision. On the issue of credibility of the TIP, the Supreme Court held, such specific identification from group of 200-300 rioters, without mentioning of any distinguishing marks seem highly improbable considering distance of witnesses from place of occurrence. Furthermore, no documentary evidence was provided to prove that the identity of accused was kept concealed. Besides, there was an inordinate delay of 55 days in conducting TIP for which no reasonable explanation was put forth. Hence, it was held that aforesaid circumstances create doubt about genuineness of TIP. [State of U.P. v. Wasif Haider, (2019) 2 SCC 303]

Election — Conduct of Election — Voting Mechanism: Ballot Paper/Electronic Voting Machine — Electronic Voting Machine: Claim for VVPAT verification, rejected on basis of the decision in Prakash Joshi, 2017 SCC OnLine SC 1734. [Kamal Nath v. Election Commission of India, (2019) 2 SCC 260]

Government Grants, Largesse, Public Property and Public Premises — Modes of Allocation of State Largesse: In this case, auction and sale pursuant to the auction was cancelled, when the reserve price fixed was very less and also when the auction itself was otherwise subject to the outcome of writ proceedings. It was held, (i) the auction proceedings conducted by the Parishad were made subject to final outcome of the writ petition filed by appellant (bidder) and, therefore, even if the Parishad had proceeded to finalise the sale of the land in question in favour of respondent (second bidder), it did not affect any of the rights of the appellant, (ii) Parishad did not give adequate publicity for sale of the land while conducting the auctions and only two bidders could participate in the auctions, (iii) Parishad committed an error in fixing reserve price of the land at a very less amount and it should have seen that the land had a tremendous potential in commercial market. In view thereof, it was held, the land deserved to be re-auctioned. [Suresh Chandra v. U.P. Avas Evam Vikas Parishad, (2019) 2 SCC 172]

Government Grants, Largesse, Public Property and Public Premises — Modes of Allocation of State Largesse — Auction: Arbitrariness in acceptance of offers for sale of flats, non-consideration of offer made by one of the interested parties makes validity of sale/disposal of such flats, vitiated as being unreasonable, arbitrary and violative of the principles enshrined in Art. 14 and not legally sustainable. Powai Panchsheel Coop. [Housing Society v. MHADA, (2019) 2 SCC 294]

 Motor Vehicles Act, 1988 — S. 166 — Non-exhibition of documents i.e. a procedural lapse: Non-exhibition of documents i.e. a procedural lapse does not disentitle a claim, when otherwise sufficient evidence is adduced and documents established the identity of the offending vehicle. [Vimla Devi v. National Insurance Co. Ltd., (2019) 2 SCC 186]

Penal Code, 1860 — Ss. 148/149 r/w S. 302: Conviction with aid of Ss. 148/149 cannot be recorded in the absence of at least 5 accused: either at least 5 accused should stand convicted, or total number of convicted accused plus unnamed accused should not be less than 5. [Ramvir v. State of U.P., (2019) 2 SCC 237]

 Punjab Package Deal Properties (Disposal) Act, 1976 (21 of 1976) — S. 16 — Civil suit barred under: Suit being against State and its authorities without notice under S. 80 CPC, also not maintainable on this ground. [Gopal Singh v. Swaran Singh, (2019) 2 SCC 177]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 17(1) and 13(4): Application under S. 17(1) of SARFAESI Act, at the instance of a borrower before physical or actual possession of secured assets is taken by banks/financial institutions i.e. at the stage of possession notice under Rr. 8(1) and 8(2), maintainable. [Hindon Forge (P) Ltd. v. State of U.P., (2019) 2 SCC 198]

Service Law — Recruitment Process — Panel/Select List/Reserve List/Waiting List/Merit List/Rank List — Wait List: In terms of government orders issued, validity of wait list was for period of one year only. Against requisition for 178 number of posts, appellant Commission initially recommended 156 candidates vide letter dt. 12-8-2010 while last recommendation for one post was made on 28-8-2012, the Supreme Court held that when recommendations for substantive number of posts were made on 12-8-2010 period of one year for operating wait-list is to be computed from that day. Hence, impugned judgment quashing communication dt. 23-7-2013 issued by the appellant rejecting request to recommend 7 more names on ground that validity of wait list had expired and further directing names of requisite number of candidates to be recommended, was held unsustainable. [U.P. Public Service Commission v. Surendra Kumar, (2019) 2 SCC 195]

Specific Relief Act, 1963 — S. 14(3)(c) — Specific performance of a development agreement: Giving a purposive interpretation to S. 14(3)(c)(iii), held, where the developer brings a suit for specific performance against the owner, he will have to satisfy the two conditions laid out in sub-clauses (i) and (ii) of S. 14(3)(c). However, when a pure construction contract is entered into, the contractor has no interest in either the land or the construction which is carried out, it was held that the terms of the agreement are crucial in determining whether any interest has been created in the land or in respect of rights in the land in favour of the developer and if so, the nature and extent of the rights. [Sushil Kumar Agarwal v. Meenakshi Sadhu, (2019) 2 SCC 241]

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