2019 SCC Vol. 5 June 7, 2019 Part 3

Arbitration and Conciliation Act, 1996 — S. 11(6) r/w S. 11(6-A) — Appointment of arbitrator: Appointment of arbitrator is not permissible in the absence of an arbitral dispute. Appointment of arbitrator is a judicial power and is not a mere administrative function, thus leaving room for some degree of judicial intervention. When it comes to the question to examine existence of prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted. [United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362]

Banking Regulation Act, 1949 — Ss. 21, 35-A, 35-AA, 35-AB and Ss. 36-ACA(1), 36-AE and 36-AF, 45-Y, 52(1) & 55-A and S. 45-L(3) of RBI Act — RBI Circular dt. 12-2-2018 for Resolution of Stressed Assets — Validity of: Without the authorisation of Central Government to RBI to issue directions to a banking company/companies for initiating the insolvency resolution process, RBI would have no such power i.e. after enactment of S. 35-AA, it may do so only within the four corners of S. 35-AA of 1949 Act. Held, when it comes to issuing directions to initiate the insolvency resolution process under the Insolvency Code, S. 35-AA power of RBI to issue directions for initiation of insolvency proceedings is the only source of power. When it comes to issuing directions in respect of stressed assets, which directions are directions other than resolving this problem under the Insolvency Code, such power falls within S. 35-A r/w S. 35-AB. Further, the power to be exercised under the authorisation of the Central Government requires “due deliberation and care” to refer specific defaults. Thus, the impugned circular, held, is ultra vires S. 35-AA of the Banking Regulation Act. [Dharani Sugars & Chemicals Ltd. v. Union of India, (2019) 5 SCC 480]

Civil Procedure Code, 1908 — Or. 6 R. 17 proviso — Amendment of plaint — When not permissible: In this case, R-1 filed an application for amendment of plaint in partition suit rejected by trial court and High Court allowed it by impugned order The Supreme Court held that trial court was right in rejecting application, firstly, because it was wholly belated; secondly, it was filed when trial in suit was almost over and case was fixed for final arguments; and thirdly, suit could still be decided even without there being any necessity to seek any amendment in plaint. Amendment in plaint was not really required for determination of issues in suit. For these reasons, impugned order was held legally unsustainable and set aside and order of trial court was restored. [Vijay Hathising Shah v. Gitaben Parshottamdas Mukhi, (2019) 5 SCC 360]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Proper mode of disposal — Substantial question of law: Disposal of second appeal without answering substantial questions of law which were framed, but answering other questions not framed as substantial questions of law, not permissible. [Ranjit Kumar Karmakar v. Hari Shankar Das, (2019) 5 SCC 477]

Constitution of India — Arts. 139-A and 32 — Remand/Transfer — Transfer of case from Supreme Court to High Court: In these writ petitions constitutional validity of Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 was challenged. Similar reliefs were prayed in transferred case as well. The Supreme Court held, transferring of these matters would enable Supreme Court to have benefit of findings of High Court, if required. Further, no prejudice would be caused to parties if matter transferred to High Court for decision as court of first instance instead of Supreme Court acting as court of first instance. Hence, all matters transferred to Bombay High Court for expeditious disposal on merits. [Lunawat Construction Co. v. Union of India, (2019) 5 SCC 467]

Consumer Protection — Services — Supply of goods/Service-supply contracts: Supply of instruments without there being commitment in brochure about particular specifications, and insistence by supplier to comply with pre-installation conditions, held, do not amount to deficiency in service or restrictive trade practice. Further held, communication of foreign manufacturer of the instruments cannot override locally prescribed pre-installation requirements. [D.J. De Souza v. CPC Diagnostics (P) Ltd., (2019) 5 SCC 414]

Criminal Procedure Code, 1973 — S. 357-A — Acid attack victims — Rehabilitation — Compensation to victim: In this case in addition to 5 yrs’ RI, both accused directed to pay Rs 1.50 lakhs each as additional compensation to the victim in addition to Rs 25,000 already paid by each of them. Default sentence of six months’ RI to be served in case of non-payment of said additional compensation. State to further pay compensation as admissible under Victim Compensation Scheme. [State of H.P. v. Vijay Kumar, (2019) 5 SCC 373]

Criminal Procedure Code, 1973 — S. 482: In this case, High Court partly allowed application for quashing and setting aside FIR, insofar it related to offences punishable under Ss. 392, 395 and 397 IPC and upheld it insofar as it relates to offences punishable under Ss. 143, 147, 148 and 323 IPC r/w S. 135(1) of the GP Act. Pursuant to directions issued by High Court, charge-sheet has been filed in relation to minor offences, which survived after quashing of FIR. The Supreme Court held, FIR did disclose prima facie allegations of commission of offences concerned. High Court erred in entertaining petition filed under S. 482 CrPC and further erred in allowing it in part. No proper investigation could be made by investigating officer. High Court should have directed the IO to make proper investigation on basis of FIR. IO shall now make full and proper investigation into allegations made in original FIR and after conclusion of investigation will file additional charge-sheet in relation to any other offences, if found made out. [Rafiq Ahmedbhai Paliwala v. State of Gujarat, (2019) 5 SCC 464]

Criminal Procedure Code, 1973 — Ss. 178, 179 and 177 — Exceptions under Ss. 178 and 179, to the “ordinary rule” contained in S. 177 — Scheme explained: S. 178 creates an exception to the “ordinary rule” engrafted in S. 177 by permitting the courts in another local area where the offence is partly committed to take cognizance. Also if the offence committed in one local area continues in another local area, the courts in the latter place would be competent to take cognizance of the matter. Under S. 179, if by reason of the consequences emanating from a criminal act an offence is occasioned in another jurisdiction, the court in that jurisdiction would also be competent to take cognizance. Thus, if an offence is committed partly in one place and partly in another; or if the offence is a continuing offence or where the consequences of a criminal act result in an offence being committed at another place, the exception to the “ordinary rule” would be attracted and the courts within whose jurisdiction the criminal act is committed will cease to have exclusive jurisdiction to try the offence. [Rupali Devi v. State of U.P., (2019) 5 SCC 384]

Education Law — Professional Colleges/Education — Nursing Colleges/Institutions — Affiliation/Recognition: As there was non-compliance with requirements for recognition under M.P Nursing Shikshan Sanstha Manyata Niyam, 2018, High Court judgment affirming denial of recognition for academic year 2018-2019, affirmed. [Pt. Bateswari Dayal Mishr Shiksha Samiti v.  M.P. Nurses Registration Council, (2019) 5 SCC 379]

Government Grants, Largesse, Public Property and Public Premises — Arbitrary/Improper Allocation and Cancellation/Mala fide/Biased Action/Irregularities — Land reserved for primary school: In exercise of power under Art. 142 of the Constitution and on basis of submissions and facts, and in public interest land reserved for primary school, directed to be allotted to R-3, Municipal Corporation for starting a primary school to cater to needs of growing population of area. Arbitrary and illegal allotment to R-4, cancelled. Appellant’s prayer for allotment rejected as it had never made a proper application specifically asking for land for primary school. [Jawed Urdu Primary School v. Collector, Mumbai, (2019) 5 SCC 451]

Insurance — Personal Accident Insurance — Insurer’s liability — “Accident” — What is — Death or injury caused by disease, if included: Death due to mosquito bite i.e. as a result of encephalitis malaria, in a malaria prone area cannot be considered as an “accident” and thereby not covered under insurance policy covering accidental death. [National Insurance Co. Ltd. v. Mousumi Bhattacharjee, (2019) 5 SCC 391]

National Company Law Appellate Tribunal Rules, 2016 — R. 48 r/w R. 52 — Service of notice of appeal to respondent — Necessity of: An advance copy of the appeal cannot be treated as service of notice as stipulated under R. 48 of the NCLAT Rules. Further, R. 52 of the NCLAT Rules categorically states that Judicial Section of Registry of NCLAT shall record, in “Notes of the Registry” column in order-sheet, details regarding completion of service of notice on respondents. In this case, held, no notice was served upon appellant before NCLAT as stipulated under the Rules, and right of appellant to be heard, audi alteram partem, had been violated. Thus, matter remanded to NCLAT for fresh consideration. [Jai Balaji Industries Ltd. v. SBI, (2019) 5 SCC 410]

Negotiable Instruments Act, 1881 — Ss. 118, 138 and 139: Principles summarized regarding drawing of presumption under, and how said presumption can be rebutted. While prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. [Basalingappa v. Mudibasappa, (2019) 5 SCC 418]

Penal Code, 1860 — S. 304-B — Dowry death — Appeal against acquittal: No perversity was found in judgment of trial court finding that prosecution was unable to prove cruelty on the part of appellant and other accused, nor demand nor payment of dowry. Possibility of another view cannot be a ground for reversing acquittal by appellate court. Hence, acquittal restored. [Sham Lal v. State of Haryana, (2019) 5 SCC 460]

Penal Code, 1860 — Ss. 302 and 498-A: In this case of dowry murder, victim wife burnt to death by A-1 husband for not bringing additional dowry. Dying declaration, held, was reliable and thus, reversal of acquittal confirmed. [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436]

Penal Code, 1860 — Ss. 302, 302/149, 307/34, 436/149, 323/34 and 148 — Murder trial: In this case, deceased was shot dead and others injured due to firing by accused persons. Main assailant alone, held, could be convicted under S. 302 simpliciter. It could not be established that other accused shared common object to murder. Rather, it could only be established that they shared common object of rioting and setting fire to house of deceased, etc. Hence, accused other than main assailant, acquitted under Ss. 302/149, but their conviction under lesser offences i.e. Ss. 436/149, 323/34 and 148 IPC, confirmed. [Bal Mukund Sharma v. State of Bihar, (2019) 5 SCC 469]

Penal Code, 1860 — Ss. 365 and 352: In this case of kidnapping in order to compel marriage, A-1, proprietor of a chain of hotels allegedly had illegal intention of taking PW 1 J, as his third wife, even though his second wife was still alive, conviction of A-1 to A-9, all implicated for the above offences, confirmed. [P. Rajagopal v. State of T.N., (2019) 5 SCC 403]

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