2019 SCC Vol. 8 October 7, 2019 Part 4

Arbitration and Conciliation Act, 1996 — Ss. 7 and 8 — Arbitration agreement/clause — Applicability of: In this case, Respondent developer filed a petition under S. 23 of the Andhra Pradesh Societies Registration Act, 2001 before the Principal District Judge making an allegation that their purported share in the rentals were not being paid to them and prayed for a direction to A-1 Society to produce the entire accounts for the rental amounts received by it from tenants along with audit reports and minute books from 2011 to 2015. In light of arbitration agreement i.e. Cl. 19 of addendum to supplementary development agreement, appellants filed petitions under S. 8 of 1996 Act seeking appointment of arbitrator. On analysing Cl. 19, it was held that clause was applicable in event of any dispute and difference arising among parties out of, in connection with or relating to the agreement. Further, rejecting the contention that dispute between respondents and appellants did not fall in any of the sub-clauses of Cl. 19, held, developers, owners, societies and original owners and even subsequent societies formed were parties to agreement and addendum. Also, the dispute was with respect to sharing of rent of the leased space and respondents were claiming the share relying upon development agreements, supplementary development agreements and addendum, and therefore, the dispute could be said to be in connection with or relating to agreements. Thus, order passed by District Judge rejecting applications submitted by appellants under S. 8 quashed and set aside and disputes between respondents and appellants directed to be referred to arbitration. [Avinash Hitech City 2 Society v. Boddu Manikya Malini, (2019) 8 SCC 666]

Armed Forces — Discharge/Dismissal — Discharge on ground of medical unfitness: In this case, it was held that in case of discharge on ground of medical unfitness, Cl. (iii) of R. 13(3) Item III of 1954 Rules are applicable and appellant could not have been invalidated without recommendation of Invalidating Board. It was further held, submission of respondent that discharge of appellant was under Cl. (v) of R. 13(3) Item III which is a residual clause liable to be rejected in absence of any reference to it in order of discharge. Besides, it is not recital of provision in charge which is relevant for determining clause of discharge but object, language and purport of discharge, hence, discharge order was held unsustainable. While considering that appellant had joined service on 23-10-1987 and was entitled to be retained for ten years being in rank of personnel of other ranks, he would be deemed to be discharged only on 22-10-1997. Consequently, appellant was also held to be entitled to pension in addition to disability pension. [Ram Khilawan v. Union of India, (2019) 8 SCC 581]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Concurrent findings of the two courts below: Though concurrent finding of fact is usually binding on High Court while hearing second appeal, this rule of law is subject to certain exceptions. Where concurrent finding of fact is recorded dehors the pleadings, or is based on no evidence or misreading of material documentary evidence, or is recorded against any provision of law, or the decision is one which no Judge acting judicially could reasonably have reached, such grounds will constitute substantial question of law within the meaning of S. 100 CPC. Hence, concurrent finding in such a case can be interfered with in second appeal. [State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637]

Constitution of India — Art. 162 and Sch. VII List III Entry 25 and List I Entries 63, 64, 65 and 66 — Subject of education, including technical education, medical education and Universities: In case of absence of legislation regarding education, including technical education, medical education and Universities, State Government, held, competent to issue executive instructions imposing condition of service bonds at time of admission to postgraduate courses and superspeciality courses in medical science. [Assn. of Medical Superspeciality Aspirants & Residents v. Union of India, (2019) 8 SCC 607]

Contempt of Court — Nature and Scope — Broadly — Aiding and abetting contempt: In this case, scandalous allegations were made in alleged communication but there was no direct material to connect R-4 with said communication, hence, R-4 was discharged but it was clarified that if during hearing of contempt petition against R-1 to R-3, if it is found that R-4 is behind communication, or that he has connived with R-1 and R-2, he might be summoned again. [Vijay Kurle, In re, (2019) 8 SCC 658]

Criminal Law — Penal Code, 1860 — Ss. 302 & 364 r/w S. 34 and S. 420 — Cheating and abduction followed by murder — Circumstantial evidence: In this case, none of the circumstances relied upon by the prosecution were proved beyond reasonable doubt. Complete chain of circumstances was also not formed that would point towards guilt of accused persons, thus, accused was entitled to benefit of doubt, hence, conviction of accused was reversed. [Umesh Tukaram Padwal v. State of Maharashtra, (2019) 8 SCC 567]

Criminal Procedure Code, 1973 — S. 319 — Summoning of additional accused: In this case, as exercise required to be undertaken by trial court before exercising power under S. 319 CrPC, as laid down by Supreme Court, not having been undertaken, matter remanded to trial court to decide the issue in accordance with law. [Shishupal Singh v. State of U.P., (2019) 8 SCC 682]

Criminal Procedure Code, 1973 — S. 482 — Matrimonial proceedings — Abuse of process of law — Quashment of proceedings against near relatives of husband, who resided at different address than matrimonial home of complaint: In this case, A-5, sister of mother of husband and wife of husband’s paternal uncle; A-6, her son (appellant herein), and A-7, wife of A-6, as proceedings had been quashed against A-7, held, appellant stood on no different a footing, hence, proceedings quashed against him also. [Seenivasan v. State, (2019) 8 SCC 642]

Education Law — Medical and Dental Colleges — Admission — Postgraduate/Superspeciality courses’ admission: Regarding eligibility for admission against 15% all-India quota as fixed by CBSE in consultation with MCI under modified scheme approved by Supreme Court, it was clarified that satisfaction of “State requirements” cannot be insisted upon i.e. fixation of additional eligibility criteria impermissible in view of three-Judge Bench decision in Harsh Pratap Sisodia, (1999) 2 SCC 575. It was further clarified that allotment of seats can obviously only be in respect of seats approved by MCI. [Anand S. Biji v. State of Kerala, (2019) 8 SCC 630]

Land Acquisition Act, 1894 — Ss. 11-A and 16 — Passing of award within two years and taking possession — Stay granted in respect of one pocket of land — Effect of: Stay granted in respect of one pocket of land operates concerning entire notification and, consequently, authorities were justified in not proceeding ahead in given facts and circumstances of case. Such period of stay is excluded in computation of two years. Even stay regarding possession also saves acquisition. Expression “stay of the action or proceedings under S. 11-A of the Act” means any interim effective order passed by court which may come in the way of the authorities to proceed further. [State of Maharashtra v. Moti Ratan Estate, (2019) 8 SCC 552]

Local Government — Town Planning — Slum redevelopment/rehabilitation scheme (SR Scheme): Withdrawal of consent by Slum Dwellers’ Society for slum development, being based on fabricated document, held, cannot be taken into account. Thus, considering interest of slum dwellers, societies involved in litigation permitted to independently develop respective slums. [Adarsh Estate Sahakari Griha Nirman Sanstha Maryadit v. State of Maharashtra, (2019) 8 SCC 632]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Computation of — Income: In this case, deceased bachelor was on consolidated fellowship as Fellow A (Hydro Power) having an MTech degree working in IIT Roorkee. It was held that there was no justification and ground to interfere with findings recorded by High Court in adding fellowship of Rs 12,000 p.m. to salary of Rs 3000 p.m. for computing loss of dependency. Tribunal clearly erred in excluding fellowship component notwithstanding annual income certificate issued by IIT. Salary of Rs 3000 p.m. was ridiculously low and entire compensation package has to be taken into account. It was held that the High Court was right in computing annual income at Rs 3,00,000 p.a. with benefit of future prospects. [National Insurance Co. Ltd. v. Satish Kumar Verma, (2019) 8 SCC 660]

Penal Code, 1860 — S. 302 — Murder — Circumstantial evidence: In this case, last seen evidence, recovery of murder weapon and other circumstances in the chain established by prosecution squarely led to one inference alone, that of guilt of appellant and there were only minor contradictions, hence, conviction of accused was confirmed. [Laxminath v. State of Chhattisgarh, (2019) 8 SCC 685]

Penal Code, 1860 — S. 302 — Murder of wife — Circumstantial evidence: In this case of murder of wife, death was caused by suffocation with hands/smothering. Medical evidence established violent asphyxial death in the form of suffocation by use of the hands, causing smothering, hence, conviction of accused was confirmed. [Vijay Nathalal Gohil v. State of Maharashtra, (2019) 8 SCC 663]

Penal Code, 1860 — S. 302 — Murder: In this case, conviction was based solely on dying declarations as all material witnesses turning hostile. First dying declaration being in the nature of FIR and second dying declaration being statement of deceased was recorded under S. 161 CrPC. Infirmities and omissions therein, held, raised reasonable doubt as to identity of accused persons and accused have not been linked clearly with the offence. Thus, it was held that benefit of doubt has to be given to them, hence, appellants were acquitted. [Hari Singh v. State of M.P., (2019) 8 SCC 677]

Penal Code, 1860 — S. 302 r/w S. 34 or S. 149, or S. 302 simpliciter or S. 324 — Invocation of S. 34 or S. 149 — When permissible: In this case, all other accused were acquitted of offence of murder, except A-1 (appellant herein). A-2 was convicted only for inflicting simple injuries. Hence, it was held that A-1 could not be convicted for murder with aid of either S. 34 nor S. 149. Fatal injuries on deceased were not matching injuries alleged to be inflicted by A-1, hence, held, he could not be convicted for murder under S. 302 simpliciter. Hence, benefit of doubt given to A-1 acquitting him of offence of murder, but was convicted under S. 324. [Karuppanna Gounder v. State, (2019) 8 SCC 673]

Penal Code, 1860 — Ss. 141 and 149 — Ingredients of unlawful assembly: The important ingredients of an unlawful assembly are the number of persons forming it i.e. five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. [Manjit Singh v. State of Punjab, (2019) 8 SCC 529]

Penal Code, 1860 — Ss. 141 to 149 — Unlawful assembly and punishment for offence(s) committed in furtherance of common object of unlawful assembly: Non-inclusion of S. 141 while framing charges, would not render complete trial illegal, nor would it result in finding that there would be no occasion to invoke S. 149, held, as long as necessary ingredients of unlawful assembly are set out and proved, as enunciated in S. 141. Actions of unlawful assembly and punishment thereafter, are set out in subsequent provisions, after S. 141, and as long as such ingredients are met, S. 149 can be invoked. S. 141 IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the sections thereafter, inviting the consequences of the appropriate punishment in the context of S. 149 IPC. [Dev Karan v. State of Haryana, (2019) 8 SCC 596]

Service Law — Appointment — Eligibility conditions/criteria: Eligibility conditions/criteria cannot be changed midstream during selection process nor can qualifications other than notified ones be accepted. Jurisdiction of Court to determine equivalence of qualifications, held, is limited. Moreover, once having participated in selection process, candidates are bound by decision of appointing authority as to equivalence/non-equivalence of prescribed requirements with qualifications possessed by them. [Bank of India v. Aarya K. Babu, (2019) 8 SCC 587]

Service Law — Practice and Procedure — Evidence/Additional Evidence: Records maintained by employer can be considered when brought on record in appropriate manner unless authenticity of said documents in doubt. [Supt. of Post Offices v. Hanuman Giri, (2019) 8 SCC 645]

 Specific Relief Act, 1963 — Ss. 16(c) and 20 — Grant of discretionary relief of specific performance — Principles summarized: Specific performance cannot be enforced in favour of a person who fails to prove that he has performed or was always ready and willing to perform essential terms of contract which were to be performed by him. Jurisdiction to decree a suit for specific performance is discretionary jurisdiction. Court is not bound to grant such relief merely because it is lawful. A party cannot claim that though he may not perform his part of contract he is entitled for specific performance of same. It is incumbent on party, who wants to enforce specific performance of contract, to aver and prove that he has performed or has always been ready and willing to perform essential terms of contract. Merely because plaintiff is legally right, court is not bound to grant him relief. Court while exercising discretionary power is bound to exercise the same on established judicial principles and in reasonable manner. Discretion cannot be exercised in arbitrary or whimsical manner. Even if contract is otherwise not voidable but circumstances make it inequitable to enforce specific performance, courts can refuse to grant such discretionary relief. [Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575]

Transfer of Property Act, 1882 — S. 58(c) — Conditional sale mortgage (CSM) or absolute sale — Determination of: Question regarding determination of conditional sale mortgage (CSM) or absolute sale has to be considered in facts of each case. Where document appearing to be sale deed contains clause for reconveyance as per S. 58(c), it will be agreement of mortgage by conditional sale. However, execution of separate agreement for reconveyance either contemporaneously or subsequently, acts against that agreement being mortgage by conditional sale. There must exist debtor and creditor relationship. The valuation of property, transaction value, along with duration of time for reconveyance, are important considerations to decide then nature of agreement. There will have to be cumulative consideration of these factors, along with recitals in agreement, intention of parties, coupled with other attendant circumstances, considered in holistic manner. [Ganpati Babji Alamwar v. Digambarrao Venkatrao Bhadke, (2019) 8 SCC 651]

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