2019 SCC Vol. 5 May 28, 2019 Part 2

Arbitration and Conciliation Act, 1996 — S. 48 — Enforcement of foreign award — Limited scope of interference with — Objections to enforcement of foreign award — Constructive res judicata — Applicability:  Issue of maintainability of execution case concerning foreign awards and issue of enforceability thereof cannot be segregated and considered piecemeal. Court is expected to consider both these aspects simultaneously at threshold. [LMJ International Ltd. v. Sleepwell Industries Co. Ltd., (2019) 5 SCC 302]

Arbitration and Conciliation Act, 1996 — S. 7(5) r/w S. 11(6) — Arbitration clause — Incorporation by reference: Arbitration agreement need not necessarily be in the form of a clause in substantive contract itself and it could be an independent agreement; or it could be incorporated by reference either from a parent agreement, or by reference to a standard form contract. [Giriraj Garg v. Coal India Ltd., (2019) 5 SCC 192]

Companies Act, 2013 — S. 212: Time-limit for completing investigation under S. 212(3) i.e. as specified under the clause providing “such period as may be specified” by Central Government, held (per curiam), directory and not mandatory. Thus, arrest made after completion of time specified by Central Government, not illegal. [Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266]

Contract and Specific Relief — Remedies/Relief — Restitutionary Remedies — Contractual Restitution Clause: Art. 13.2 of the PPA is an in-built restitutionary principle which compensates the party affected by such change in law and which must restore, through monthly tariff payments, the affected party to the same economic position as if such change in law had not occurred i.e. the party must be given the benefit of restitution as understood in civil law. Further, Art. 13 as a whole, leads to the position that subject to restitutionary principles contained in Art. 13.2, the adjustment in monthly tariff payment, had to be from the date of the withdrawal of exemption which was done by administrative orders dt. 6-4-2015 and 16-2-2016. [Uttar Haryana Bijli Vitran Nigam Ltd. v. Adani Power Ltd., (2019) 5 SCC 325]

Contract and Specific Relief — Remedies/Relief — Restitutionary Remedies — Recompense for benefit conferred — Quantum Meruit (“as much as is deserved”): Compensation quantum meruit is awarded for work done or services rendered, when the price thereof is not fixed by a contract and for work done or services rendered pursuant to the terms of the contract. Compensation quantum meruit cannot be awarded where the contract provides for the consideration payable in that behalf. [MTNL v. Tata Communications Ltd., (2019) 5 SCC 341]

Government Grants, Largesse, Public Property and Public Premises — Recovery of possession/Re-entry by State upon Termination/Cancellation/ Resumption/Lapse — Dispossession notice: As Authorities have not resorted to statutory provisions, dispossession notice quashed. However, liberty granted to initiate fresh proceedings in accordance with provisions of law. [S. Kumar v. Commr., Chennai, (2019) 5 SCC 244]

Land Acquisition Act, 1894 — S. 23 — Acquisition of large area of land of 9 villages (3 districts) for construction of canal — Market value — Determination: High Court judgment considering all factors including location and potentiality and distance from City of Chandigarh while calculating market value and enhancing 10% for each year and deducting 20%, affirmed. [Rameshwar Dass v. State of Punjab, (2019) 5 SCC 204]

Penal Code, 1860 — S. 300 Exception 4 — Conditions to be satisfied, in order to bring case within — What are: Following conditions must be satisfied in order to bring case within the exception: (i) act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without offenders having taken undue advantage; and (iv) accused had not acted in a cruel or unusual manner. However, even if fight is unpremeditated and sudden, if weapon or manner of retaliation is disproportionate to the offence and if accused had taken undue advantage of deceased, accused cannot be protected under Exception 4 to S. 300. [Nandlal v. State of Maharashtra, (2019) 5 SCC 224]

Penal Code, 1860 — Ss. 302/149 or S. 302 simpliciter: In this case, conviction of main assailant under S. 302 simpliciter when co-accused stood acquitted (some erroneously acquitted) under Ss. 302/149, confirmed. The Supreme Court held that merely because appellant alone has been convicted under S. 302 simpliciter, while other co-accused have been acquitted (some erroneously), it does not follow that appellant should be given benefit of doubt despite the clinching evidence on record to establish his guilt and involvement in the commission of offence. [Pappi v. State of Rajasthan, (2019) 5 SCC 351]

Penal Code, 1860 — Ss. 302/34 or Ss. 304 Pt. II/34 [S. 300 Exception 4] — Deceased victim stabbed to death: In this case, cause of altercation between rival parties was related to taking water from common well. After altercation, accused persons went away and returned after 10 minutes armed with weapon. While appellant accused held neck of deceased, other accused stabbed him with knife. Circumstances and events were duly corroborated by eyewitnesses. Manner of incident clearly indicated that both accused had common intention and there was meeting of minds between them, for the act. Hence, it was held that the High Court did not commit any error in converting conviction of accused from Ss. 304 Pt. II/34 to Ss. 302/34. Appellant’s conviction under Ss. 302/34, was confirmed. Test for applicability of S. 34 in a fact situation of an offence, restated. [Asif Khan v. State of Maharashtra, (2019) 5 SCC 210]

Practice and Procedure — Remand — When warranted — Ex parte Decision: In this case, (i) Appellant suffering adverse ex parte award; (ii) Sufficient cause was shown for absence before Tribunal; (iii) Since inception appellant did not get any opportunity to contest matter since they had no knowledge of proceedings; (iv) No reason was there to disentitle appellant to contest on merit; and (v) Having regard to subject-matter of reference, both parties were held entitled to opportunity to contest case on merit. [Bundi Zila Petrol Pump Dealers Assn. v. Bundi Zila Petrol Mazdoor Sangh, (2019) 5 SCC 337]

Presidency Small Cause Courts Act, 1882 — Ss. 47, 41 and 43 — Refusal under S. 47 to stay S. 41 application for vacant possession — Scope of power High Court in appeal against such refusal order: High Court, held, could not have given direction for vacate property in such appeal when S. 41 applicationfor vacant possession was pending before trial court. [Pradeepkumar Gordhandas Patel v. Chandrakant Jivanlal Patel, (2019) 5 SCC 241]

Service Law — Benefits of Service — Appointment against reserved post which was subsequently de-reserved — Grant of monetary benefits from initial date of appointment: In this case, Appellant was appointed as Lecturer in R-4 College against reserved category post on 26-12-1989 and continued in service with technical breaks due to requirement of advertising post for reserved category. On 8-12-1997, he represented to R-2  praying for dereservation of that post in terms of GR dt. 25-1-1990. In view of circular dt. 28-7-1999 and letter dt. 17-4-2001, employees were restrained from approaching courts straightway without first seeking redressal of their grievance by representing to Government. Since no decision was taken on his representation he filed petition in the year 2011. The Supreme Court held that appellant was vigilant from very beginning and no delay could be attributed to him. It was for State and appropriate authorities to take decision and dereserve post on which appellant was working. Hence, High Court was not justified in restricting benefits to preceding last three years only i.e. w.e.f. 3-7-2008. Only in case where delay is attributable to employee, benefit can be restricted. Appellant was held to be entitled to arrears/monetary benefits from date of his first appointment i.e. 26-12-1989 and paid all consequential benefits accordingly within stipulated time. [Giridhar v. State of Maharashtra, (2019) 5 SCC 230]

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 — Ss. 2(2)(b), 6(1) and 7(1) — Forfeiture of illegal property under S. 7(1), SAFEMA belonging to persons detained under COFEPOSA: Order of detention was neither revoked by any postulate under S. 2(2)(b) proviso nor set aside by any competent court. Further, authorities on merit, found property of detenu illegal by giving opportunity of hearing. Though detenu challenged forfeiture order and a writ petition remained pending during detention period, detenu did not agitate matter on merits in said writ petition before High Court.  Thus, forfeiture order, held, valid. Impugned order of High Court affirmed. SAFEMA, on facts, held, applicable as all the requirements therefor were met and present case not covered by four exceptions in S. 2(2)(b) proviso, SAFEMA. [Narender Kumar v. Union of India, (2019) 5 SCC 247]

Specific Relief Act, 1963 — Ss. 16 and 20 — Specific Performance of Contract — Agreement to sell immovable property: In case of absence of specific pleadings, and cogent evidence to establish payment, and dubious conduct, grant of decree for recovery, held, unsustainable. [Manohar Ganapathi Ravankar v. H. Gurunanda Raikar, (2019) 5 SCC 236]

Unlawful Activities (Prevention) Act, 1967 — S. 43-D(2)(b) and Ss. 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 — Default bail under S. 43-D: Default bail is not available if stipulated period for filing charge-sheet is extended by court on basis of report of Public Prosecutor (PP). Undoubtedly, request of an investigating officer (IO) for extension of time is not a substitute for report of PP, but detailed grounds given by PP endorsing such request by IO certainly constitute specific reasons for seeking extension for the period of investigation, and satisfies requirements of S. 43-D(2)(b). [State of Maharashtra v. Surendra Pundlik Gadling, (2019) 5 SCC 178]

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