2019 SCC Vol. 4 April 21, 2019 Part 1

Arbitration and Conciliation Act, 1996 — Ss. 34 and 37 — Arbitrability of dispute: Limited grounds on which arbitral award may be interfered with, are (i) in exercise of jurisdiction under S. 34 the Court does not sit in appeal over the arbitral award and may interfere on merits only on the well-settled limited grounds, (ii) interference under S. 37 cannot travel beyond the restrictions laid down under S. 34, and (iii) in case an arbitral award has been confirmed by the Court under S. 34 and by the Court in an appeal under S. 37, Supreme Court must be extremely cautious and slow to disturb such concurrent findings. Further, while interpreting the terms of the contract, the conduct of parties and correspondences exchanged would be relevant factors and it is within the arbitrator’s jurisdiction to consider the same. [MMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163]

Civil Procedure Code, 1908 — Or. 39 Rr. 1 and 2 — Temporary injunction — Dismissal of application — When justified: In this case, respondents were seeking temporary injunction to restrain State Electricity Board from interfering with their alleged possession over suit land, for construction of electricity sub-station thereon by Board. Respondents failed to make out prima facie case to justify grant of interim injunction. Respondents also failed to specify area in their alleged possession on which Board proceeded to set up sub-station. Balance of comparative convenience and hardship and public interest inclined in favour of Board for construction of power sub-station over land. In case respondents succeed in establishing their title and possession over any part of land utilised by sub-station they would be entitled to compensation under S. 67(3) of Electricity Act, 2003 or any other statutory provisions. It was held that temporary injunction rightly declined by court. [State of Jharkhand v. Surendra Kumar Srivastava, (2019) 4 SCC 214]

Criminal Procedure Code, 1973 — S. 456: Limitation of 30 days for restoration of possession of property is not applicable where trial court had already passed specific order for restoration, or in proceedings before appellate courts. 30 days’ limitation period is applicable where trial court does not pass order for restoration of possession at the time of convicting accused. [Mahesh Dube v. Shivbodh, (2019) 4 SCC 160]

Criminal Procedure Code, 1973 — S. 482: Dissmisal of application of appellant-accused under S. 482, for setting aside charge-sheet under Ss. 420, 498-A, 323, 376 and 506 IPC and Ss. 3 and 4, DP Act, 1961, without application of mind to case, not proper. [Monu v. State of U.P., (2019) 4 SCC 140]

Criminal Procedure Code, 1973 — Ss. 227, 245, 397 and 399 — Discharge application — Manner in which to be considered: While considering petition for discharge, courts cannot act as appellate court and start appreciating evidence by finding out inconsistencies in statements of witnesses. Consideration of record for discharge purpose is different from consideration of record while deciding appeal. [State v. J. Doraiswamy, (2019) 4 SCC 149]

Criminal Trial — Sentence — Minimum sentence/Minimum statutory sentence — Minimum sentence without discretion: Awarding sentence less than the minimum sentence, not permissible. [State of M.P. v. Vikram Das, (2019) 4 SCC 125]

Family and Personal Laws — Muslim Law — Irregular (fasid) marriage: Marriage between Muslim male and Hindu woman, irregular (fasid) and not void (batil). Word “fasid” synonymously regarded as invalid or irregular. Children born from such wedlock treated as legitimate and entitled to share in father’s property. [Mohd. Salim v. Shamsudeen, (2019) 4 SCC 130]

Forest Act, 1927 — Ss. 52 & 54 and 41 & 42 — Prosecution for offences under Forest Act — Non-production of seized wood and vehicle — Effect of: In this case appellants apprehended with vehicle carrying 22 logs of Khair wood without authorisation or permit, acquitted under S. 379 IPC and convicted under Forest Act for six months. The Supreme Court held, non-production of seized wood and vehicle, primary evidence of offence, renders prosecution case fragile and unsustainable. Mere production of seizure memo does not tantamount to production of seized woods and lorry. Unless seized wood was produced, mere production of a sample, and no material in support that sample was out of same 22 logs, conviction of appellants by High Court not sustainable. [Pawan Kumar v. State of H.P., (2019) 4 SCC 182]

Income Tax Act, 1961 — S. 80-HH r/w S. 80-A (Ch. VI-A) and Ss. 32 & 32-AB (Ch. IV) — Deductions under Ch. VIA and those under Ch. IV — Distinguished: Ch. VI-A, is a stand-alone chapter dehors Ch. IV and provisions relating to various kinds of deductions mentioned in Ch. VI-A have to be construed independent of Ch. IV. Further, the purpose of deduction under Ch. IV is to arrive at true income after making such expenditure admissible for deduction while deductions provided under Ch. VI-A, are largely in the nature of incentives. Further, conceptually “income or total income” is different from “profits and gains” and S. 80-A itself uses the expression “from his gross total income”. Also, different provisions from Ss. 80-C to 80-U, while mentioning the percentage at which and for which period a particular deduction is allowable, also specify as to how such a deduction is to be worked out, namely, specific percentage of deduction of which component. S. 80-HH r/w S. 80-A clearly signifies that a deduction under S. 80-HH has to be of gross profits and gains i.e. before computing the income as specified in Ss. 30 to 43-D. Also, the restrictive clause S. 80-AB, inserted w.e.f. 1-4-1981 being a provision made with prospective effect, cannot apply to Assessment Years 1979-1980 and 1980-1981. [Vijay Industries v. CIT, (2019) 4 SCC 184]

Infrastructure Laws — Energy and Power — Electricity Act, 2003 — Ss. 152 and 135 — Compounding of offences: In this case of initiation of prosecution for power theft and subsequent settlement between Electricity Company and consumer, while dismissing petition for quashment of prosecution for power theft, S. 152 was not considered. Hence, matter remanded to High Court for reconsideration of petition in light to S. 152 of Electricity Act, 2003. [Mukesh Chand v. State (NCT of Delhi), (2019) 4 SCC 171]

Insolvency and Bankruptcy Code, 2016 — Ss. 7, 8 and 9 r/w Ss. 5(7), 5(8) and 5(20): Classification of creditors i.e. as financial and operational creditors, held, valid. Operational creditors are not discriminated against and Art. 14 of the Constitution has not been infracted either on the ground of equals being treated unequally or on the ground of manifest arbitrariness. Since equality is only among equals, no discrimination results if the Court can be shown that there is an intelligible differentia which separates two kinds of creditors so long as there is some rational relation between the creditors so differentiated, with the object sought to be achieved by the legislation. Financial creditors generally lend finance on a term loan or for working capital while operational creditors are relatable to supply of goods. Further, financial creditors are, from the very beginning, involved with assessing viability of corporate debtor and engage in restructuring of loan as well as reorganisation of corporate debtor’s business when there is financial stress, which operational creditors do not and cannot do. Further, they differ qua repayment schedule, security requirement for dues, contractual terms for giving credit, remedy in case of defaults and fora before which dispute resolution takes place. Further, financial debts made to banks and financial institutions are well documented and defaults made are easily verifiable. Also, generally the quantum of dues of operational creditors and the number of such creditors are comparatively less. Preserving the corporate debtor as a going concern, while ensuring maximum recovery for all creditors being the objective of the Code, financial creditors are different from operational creditors and therefore, there is an intelligible differentia between the two which has a direct relation to the objects sought to be achieved by the Code. [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17]

Kerala Abkari Act, 1077 ME (1 of 1077) — Ss. 8(2) and 63 — Sentence warranted — Imprisonment reduced: In this case search of house of appellant-accused, led to recovery of 4.5 litres of arrack and 3.750 litres of Indian made foreign liquor, from his possession. Trial court convicted him under Ss. 8(2) and 63, and sentenced him to undergo simple imprisonment for 1 year and fine of Rs 1,00,000 under S. 8(2), and fine of Rs 5000 under S. 63. High Court, while confirming conviction, modified sentence by reducing SI to 9 months, while maintaining sentence imposed under S. 63. Looking at gravity of offence and quantum of liquor seized during search, and as appellant was already in custody for 35 days, the Supreme Court reduced the imprisonment to the period already undergone. However, penalty amount imposed by trial court, as upheld by High Court, was confirmed. [Lalichan v. State of Kerala, (2019) 4 SCC 224]

Negotiable Instruments Act, 1881 — S. 139: This section raises presumption of law that cheque duly drawn was in discharge of debt or liability. However, presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. This presumption is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against accused beyond reasonable doubt. [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197]

Penal Code, 1860 — S. 302 r/w S. 34: In this case of daylight murder, accused was named in FIR. There were eyewitnesses and there was neither any contradiction nor any inconsistency in their statements on material version such as on the question of identity of accused, who hit, where the assault was made and who fired. There was previous enmity between accused and deceased. A case of common intention under S. 34 IPC also stood fully made out against all the accused persons, hence, conviction was confirmed. [Madan Mohan Mahto v. State of Jharkhand, (2019) 4 SCC 142]

Penal Code, 1860 — Ss. 307/149 and Ss. 325/149, 147, 148, 451, 294/149 & 506/149: In this case charges were framed under all of the above sections by trial court. However, noticing nature of injuries sustained by appellant complainant, High Court quashed and set aside trial court’s order framing charge under S. 307. The Supreme Court held that the High Court had not committed any error in setting aside order passed by trial court insofar as framing charge under S. 307 is concerned. [Champa Lal Dhakar v. Naval Singh Rajput, (2019) 4 SCC 146]

Penal Code, 1860 — Ss. 376(2)(f) and 201: In this case of rape and murder of girl aged 7½ yrs, death sentence commuted to life imprisonment, in the facts and circumstances of the case, due to mitigating circumstances outweighing the aggravating circumstances. [Vijay Raikwar v. State of M.P., (2019) 4 SCC 210]

Police — Director General of Police (DGP) — Residual tenure: Incumbent to be selected as DGP should have a minimum residual tenure of six months (two years or more, preferable) and he should not be on verge of retirement. Minimum residual tenure of 6 months is reasonable and would ward off favouritism. Once appointed, incumbent should get a minimum tenure of two years of service irrespective of his date of superannuation. Selection should be on basis of merit. Above direction to hold field until validity of Police Acts in force is examined and dealt with by Court. [Prakash Singh v. Union of India, (2019) 4 SCC 1]

Police — Director General of Police (DGP) — Tenure and selection: All State Governments directed to scrupulously comply with the directions passed in Prakash Singh, (2006) 8 SCC 1 and approach Court in case of any grievance. Any legislation/rule running counter to directions issued herein shall remain in abeyance. [Prakash Singh v. Union of India, (2019) 4 SCC 13]

Police — Director General of Police (DGP): Selection as per direction in Prakash Singh, (2006) 8 SCC 1, held, wholesome and does not require any modification. Prayer for modification of selection procedure as per said direction, rejected. [Prakash Singh v. Union of India, (2019) 4 SCC 6]

 Property Law — Transfer of Property Act, 1882 — Ss. 111(e), 111(f) and 105 to 117 — Lessor-Lessee Relationship — Non-termination of, ipso facto on execution of an agreement to sell tenanted premises to tenant: Mere entering into of such an agreement to sell does not determine the lease/tenancy. Rather, it is necessary to determine whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises, or they intended to keep the lease subsisting notwithstanding the execution of such agreement. If the parties really intended to surrender their tenancy rights as contemplated in Ss. 111(e) or (f) of the TP Act while entering into an agreement to sell, it would have made necessary provision to that effect by providing a specific clause in the agreement. In the absence of such clause/clause akin thereto in the agreement or the conditions in the agreement which discerned the intention of the parties to surrender the tenancy either expressly or impliedly, held, the same did not result in determination of the tenancy. [H.K. Sharma v. Ram Lal, (2019) 4 SCC 153]

Service Law — Pay — Parity in pay/Pay scale — Claim to — Factors to be considered — Competent authority — Extent of judicial review permissible: Equation of pay scales must be left to Government and decision of experts. Courts must refrain from interfering therewith. [Punjab SEB v. Thana Singh, (2019) 4 SCC 113]

Transfer of Property Act, 1882 — S. 43 — Object — Embodies doctrines of estoppel and equity — Applicability: It is clear from Section 43 of the TP Act that if at the time of transfer, the vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer. [Tanu Ram Bora v. Promod Ch. Das, (2019) 4 SCC 173]

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