2018 SCC Vol. 2 February 14, 2017 Part 1

Arbitration and Conciliation Act, 1996 — Ss. 31(7)(a) and (b) — Challenge to award of interest for pre-reference period, pendente lite and post reference period — Waiver of, when may be inferred: If a plea is available, whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law and if not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. [Union of India v. Susaka (P) Ltd., (2018) 2 SCC 182]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso — Proviso barring entertainment of application for amendment of pleadings after commencement of trial — Trial when commences: After framing of issues, the case was fixed for recording of evidence of plaintiff, but instead of producing evidence, plaintiff took adjournment and in meantime he filed application under R. 17. Plaintiff led evidence thereafter. According to plaintiff, he led evidence even on amended pleadings; hence, the Court held that amendment application deserved to be allowed. [Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court under — Nature and scope of: Supervisory jurisdiction of High Court under this section is confined only to see whether inferior court or tribunal has proceeded within the parameters of its jurisdiction. In exercise of jurisdiction under Art. 227, High Court does not act as an appellate court or tribunal and, therefore, cannot review or reassess the evidence upon which the inferior court or tribunal passed the order assailed before it. Thus, where trial court in the considered exercise of its jurisdiction under Or. 6 R. 17 CPC allowed amendment of written statement, interference with that order by High Court under Art. 227 entering upon merits of the case sought to be set up by appellant-defendant in amendment, held, was impermissible. [Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87]

Constitution of India — Arts. 21, 14, 15 and 32 — Gender equality and gender sensitivity: Ordinary criminal law proceeds on gender neutrality but concept of gender neutrality seems to be absent in S. 497 as prima facie a charge of adultery under S. 497 IPC cannot be brought against an erring woman but only against an erring man, when fact remains that both should have been liable for the criminal offence. Secondly, it is doubtful whether the erring woman should be presumed as a victim in all circumstances but such a presumption seems to have been there in S. 497 IPC on basis of which earlier judgments have upheld it. Thirdly, language of S. 497 IPC tantamounts to subordination of woman and affects her independent identity when offence thereunder is destroyed if consent or connivance of husband is established. Fourthly, time has come when society must realise that a woman is equal to a man in every field. S. 497 IPC prima facie seems to be quite archaic. In view of change in position and rights of women, validity of S. 497 IPC and S. 198(2) CrPC, though upheld by earlier judgments, requires reconsideration at present. [Joseph Shine v. Union of India, (2018) 2 SCC 189]

Contract and Specific Relief — Termination/Discharge of Contract — Termination/Repudiation for Breach of Contract: District Forum had not properly appreciated scope and ambit of insurance policy. Violation of carrying passengers in goods vehicles, has consistently been held not to be a fundamental breach. To avoid its liability, Insurance Company must not only establish defence that policy has been breached, but must also show that breach of policy is so fundamental in nature that it brings contract to an end. Driver giving a lift to some passengers may be a breach of policy, but it cannot be said to be such a fundamental breach as to bring insurance policy to an end and to terminate insurance policy. [Manjeet Singh v. National Insurance Co. Ltd., (2018) 2 SCC 108]

Criminal Procedure Code, 1973 — S. 91 — Summons to produce document or other thing: Invocation of S. 91 by accused, at the stage of framing of charge dehors satisfaction of court. For exercising such power, court has to be satisfied, that material available with investigator, not made part of charge-sheet has crucial bearing on issue of framing of charge. [Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93]

Criminal Trial — Circumstantial Evidence — Inference of guilt — When can be drawn, in a case based on circumstantial evidence: In a case based on circumstantial evidence, circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances must be conclusive in nature unerringly pointing towards guilt of accused. Moreover, all circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further, proved circumstances must be consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence. [State of H.P. v. Raj Kumar, (2018) 2 SCC 69]

Drugs and Cosmetics Act, 1940 — S. 26-A r/w S. 5 and Ss. 33, 33-EED and 33-N — Prohibition of certain fixed dose combinations (FDCs) by Central Government without prior consultation with Drugs Technical Advisory Board (DTAB) — Validity of: DTAB is only an advisory body and it would be desirable for the Central Government to take its advice on technical matters arising out of the administration of the Drugs Act, but this does not lead to the conclusion that if such advice is not taken, power under S. 26-A cannot be exercised. Further, S. 26-A was brought in by an amendment in 1982 which specifically made changes in Ss. 33 and 33-N and in which it added the words “on the recommendation of the Board”. However, S. 26-A does not refer to and, therefore, mandate any previous consultation with the DTAB. So long as the Central Government’s satisfaction can be said to be based on relevant material, it is not possible to say that not having consulted the DTAB, the power exercised under S. 26-A would be non est. [Union of India v. Pfizer Ltd., (2018) 2 SCC 39]

Environment Law — Development vis-à-vis Ecology: National, Urban and Rural Development — Urban Ecology/Green Areas/Belt/Town Planning/Urban Environmental Balance — Change in Land Use/Unauthorised Construction/Commercial/Industrial Establishments in Residential Premises: Sealing commenced pursuant to directions of Court. Appeals before statutory Appellate Tribunal were filed under Delhi Laws (Special Provisions) Act, 2006. IAs before Court were transferred to Appellate Tribunal. Where such IAs or appeals were not filed, 30 days’ time had been given to approach Appellate Tribunal. Regarding those who have not filed IAs, nor preferred appeal within 30 days like pesent applicants, authorities were directed to deseal residential premises of said applicants on certain terms and conditions (upon payment of costs imposed for delay in approaching Court). Further directed that if Monitoring Committee is satisfied, said premises can be desealed. If not, applicants directed to approach Supreme Court. Similar procedure to be followed for persons who have not yet approached Court or Appellate Tribunal. It was clarified that said order is only for premises sealed at the instance of Monitoring Committee. Further clarified that said relief and procedure is only for residential premises which were put to commercial non-industrial usage. [M.C. Mehta v. Union of India, (2018) 2 SCC 144]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment — Specific Clearances — Water/Coastal Areas — Housing project: When project was at first considered to be valid, later contradiction by authorities at a late stage, without credible evidence, held, not fair to DLF (builder) and impermissible. Such approach if permitted would cause grave uncertainty. Instead, direction of fine of Rs 1 crore with the direction for strict adherence to the norms in future and avoidance of such contradictions by the authorities, upheld. [Kerala State Coastal Management Authority v. DLF Universal Ltd., (2018) 2 SCC 203]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Visitation Rights: In this custody case of major daughter (18 yrs as on 19-9-2016) and minor son, lower court gave custody to father living in Kuwait and visitation rights to mother staying in Thiruvananthapuram. In appeal under Art. 136, parties agreed for said arrangement and court rejected mother’s claim for custody. As mother brought allegations of contempt, court directed personal presence of daughter and found that she wanted to pursue her studies in Kuwait. Contempt therefore, disposed of. Directions regarding visitation rights of minor son, issued. Father directed to pay Rs 50,000 to mother for every visit of minor son. It was clarified that when daughter attained 18 yrs, she has full freedom to make her choice which she openly declared in presence of court. [Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197]

Government Contracts and Tenders — Judicial Review/Validity — Opinion of project owner/Experts on satisfaction of eligibility criteria — Relevance of — Judicial restraint: In the absence of any mala fides or perversity in the technical expert reports, any appreciation by the Court of technical evaluation would be outside its ken and best left to technical experts. [Sam Built Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176]

Income Tax Act, 1961 — S. 80-IB — Benefit of deduction available for 10 yrs in respect of profit and gains of a small-scale industry — Denial of, for the years where such assessee/industry outgrows and ceases to be a smallscale industry: On analysing the scheme of S. 80-IB, held, each assessment year being a different assessment year, the incentive meant for small-scale industrial undertakings cannot be availed by industrial undertakings which do not continue as small-scale industrial undertakings during the relevant period. [CIT v. ACE Multi Axes Systems Ltd., (2018) 2 SCC 158]

Insurance — Generally — Underinsurance — Meaning and Effect of — Stated with illustrations: Insured had taken out insurance policy where insured valued items for sum which is less than actual value. This is normally done to pay lesser premium. Underinsurance is harmful to policy-holder and not to insurance company. If entire property underinsured is lost, policy-holder would get maximum sum for which that property was insured and nothing more. [I.C. Sharma v. Oriental Insurance Co. Ltd., (2018) 2 SCC 76]

Intellectual Property — Passing-off: Passing-off action for a mark having goodwill and reputation in jurisdictions other than India cannot be successfully maintained in the absence of such mark having sufficient goodwill or reputation in India. [Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1]

Legal Metrology Act, 2009 — Ss. 2(r) & (l) — Sale of mineral water at a price in excess of MRP to customers in hotels and restaurants — Permissibility of: Definition of “sale” contained both in 1976 Act and in 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either Act. Therefore, neither Standards of Weights and Measures Act, 1976 r/w 1985 Act, nor Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices above the MRP. [Federation of Hotel and Restaurant Assn. of India v. Union of India, (2018) 2 SCC 97]

Rent Control and Eviction — Arrears of Rent/Default/Tender of Rent/Striking off Defence — Arrears of rent: The tax recoverable from the tenant under S. 67(3) of the New Delhi Municipal Council Act, 1994 as arrears of rent by the landlord cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the tenant who defaults in payment of such recoverable tax as rent. [Atma Ram Properties (P) Ltd. v. Oriental Insurance Co. Ltd., (2018) 2 SCC 27]

Rent Control and Eviction — Eviction petition/suit — Non-renewal of rent agreement, determination of tenancy and transfer of tenancy rights in violation of rent agreement — Proof — Nature of: For determination of tenancy and transfer of tenancy rights in violation of rent agreement, reliance on documents which were categorically denied by appellant landlord without further proof, not proper. [Syed Sugara Zaidi v. Laeeq Ahmad, (2018) 2 SCC 21]

Trade and Merchandise Marks Act, 1958 — Ss. 111/107 and Ss. 46/56 — Rectification proceedings under either set of provisions — Relative scope and manner of invocation of, explained in detail: If an aggrieved party does not approach the Tribunal for a decision on the issue of invalidity of registration as provided for under Ss. 111(2) and (3) r/w S. 107 of 1958 Act, the right to raise the issue (of invalidity of trade marks concerned) would no longer survive between the parties to enable the party concerned to seek enforcement of the same by recourse to or by a separate action under the provisions of Ss. 46/56 of the 1958 Act. Further, the right to raise the issue of invalidity is lost forever if the requisite action to move the High Court/IPAB (now) is not initiated within the statutorily prescribed time-frame. [Patel Field Marshal Agencies v. P.M. Diesels Ltd., (2018) 2 SCC 112]

Transfer of Property Act, 1882 — S. 54 — Agreement for sale/agreement to sell of immovable property: Unlike sale, agreement for sale/agreement to sell of immovable property, does not create any interest in favour of purchaser in respect of property. Hence it cannot be regarded as “transfer” within meaning of S. 48(d) of Maharashtra Cooperative Societies Act, 1960. [Balwant Vithal Kadam v. Sunil Baburaoi Kadam, (2018) 2 SCC 82]