2020 SCC Vol. 5 Part 2

Arbitration in electricity matters: It has been explained in this article that the judgment in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755 having been passed dehors the settled principles of statutory interpretation, is per incuriam and the same needs to be revisited by the Supreme Court as and when the opportunity presents itself in an appropriate case, so that the right of power sector entities to have recourse to alternative adjudicatory mechanism of “arbitration” is not subjected to the additional (discriminatory) requirement of approval of SERCs. Arbitration in electricity matters: a discordant Note struck by Supreme Court by Rajiv Yadav.[(2020) 5 SCC (J-12)]

Civil Procedure Code, 1908 — S. 9-A (as applicable in Maharashtra prior to its deletion in 2018) and Or. 14 R. 2 — Objection as to jurisdiction to be decided by the court as a preliminary issue under S. 9-A: As held by the three-Judge Bench in Nusli Neville Wadia, (2020) 6 SCC 557, under the provisions of S. 9-A and Or. 14 R. 2, it is open to decide a preliminary issue only if it is purely a question of law, and not a mixed question of law and fact requiring recording of evidence. Thus, held, “jurisdiction” in S. 9-A does not include issue of limitation as the same involves mixed questions of fact and law. Issue of limitation has to be considered along with other issues that would arise for adjudication in the suit concerned. [Shyam Madan Mohan Ruia v. Messer Holdings Ltd., (2020) 5 SCC 252]

Copyright Act, 1957 — Ss. 55, 51 and 18: The cause of action to a plaintiff to file a suit accrues when there is a clear and unequivocal threat to infringe a right.  The cause of action for filing suit for declaration and injunction qua infringement of copyright in scheduled films which had been assigned earlier by plaintiff arise, after the lapse of assignment period. [Zee Telefilms Ltd. v. Suresh Productions, (2020) 5 SCC 353]

Criminal Procedure Code, 1973 — Ss. 200 to 204, 156(3), 173, 300 and 362 — Second complaint — Maintainability or otherwise under different scenarios: Principles regarding scope of inquiry under S. 202 and duty of Magistrate while entertaining private complaints, discussed in detail, and summarised. Second protest petition, held, stands on a similar footing as second complaint. [Samta Naidu v. State of M.P., (2020) 5 SCC 378]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Crown Debt/Debt owed to State/Tax arrears: Transfer/Auction-sale of property pursuant to orders of Debts Recovery Tribunal (DRT), inspite of the property being attached by Income Tax Department is valid when there is already a prior charge on the property and the attachment by DRT is prior in time. There is primacy of dues of a secure creditor, over Crown debt, in the absence of a preference given to the Crown debt by statute. [Connectwell Industries (P) Ltd. v. Union of India, (2020) 5 SCC 373]

Decriminalisation of adultery: A critical analysis of the judgment of the Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, Decriminalisation of adultery, the Indian experience and experiment: how much shine in the Joseph Shine verdict? by Rajesh Kapoor., [(2020) 5 SCC (J-25)]

Education Law — Medical and Dental Colleges — Admission — Allotment of Seats/College/Speciality/Counselling/Wait list — Counselling: In this case, there was common counselling or single online counselling for filling up seats for postgraduate courses leading to MD and MS, Diploma and Diplomate of National Board (DNB). As counselling was in advanced stage, Court declined to issue any directions for present academic session which would disturb entire process. Further, as the authorities were ready for next academic session 2021-2022, permission granted for holding common counselling from academic session 2021-2022. [Alapati Jyotsna v. Union of India, (2020) 5 SCC 320]

Effect of limitation of liability and exclusion of liability clauses: It is sometimes misunderstood that limitation of liability and exclusion of liability clauses simply fall away, under Indian law, in all cases of fundamental breach. This article, therefore, attempts to analyse whether such clauses would fall away in all cases of fundamental breach; and whether the liability of the party in breach would become unlimited, subject to proof of actual damage, in all cases of fundamental breach. Effect of limitation of liability and exclusion of Liability clauses in the event of fundamental Breach of contract by Gaurav Pachnanda.[(2020) 5 SCC (J-1)]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exim Policy of 1997-2002 — Paras 9.9(b) and 9.17(b) — Exemption Noti. No. 8/97 dt. 1-3-1997 as amended by Noti. No. 21/97-CE dt. 11-4-1997 — Circular dt. 22-5-2000: The terms “sale” and “purchase” under the Excise Act, if construed literally, would give a wider scope and also include transfer of possession for valuable consideration under the definition of the term “sale”. Thus, the transfer of manganese ore by TISCO to UFAC (assessee) in this case for the purposes of processing the same and converting it into Silicon Manganese, being for a valuable consideration, held to be “sale” for purposes of Excise Act. Para 9.9(b) of the Exim Policy, the circulars issued by the Board, particularly, the Circular dt. 22-5-2000 and reply to the query of the Customs Authorities by the Development Commissioner, SEEPZ showed that UFAC was entitled to carry out the job-work on behalf of TISCO on payment of duty as provided under exemption notification of 1997. In this case, held, the transaction between UFAC and TISCO satisfied all the three conditions of exemption notification, namely, the goods are produced and manufactured by UFAC, an 100% export oriented unit; they are manufactured wholly from the raw materials produced or manufactured in India; and, thirdly, they have been allowed to be sold in India in accordance with the provisions of Para 9.9(b) of the Exim Policy. Thus, assessee was held to be entitled to avail the benefit. [CCE v. Universal Ferro & Allied Chemicals Ltd., (2020) 5 SCC 332]

Family and Personal Laws — Succession Act, 1925 — Ss. 87, 82 and 88 — Will — Interpretation — Principles: The intention of testator has to be gathered from language of will read as a whole, having regard to nature and grammatical meaning of words and surrounding circumstances. The rule of last intention (contained in S. 88 of Succession Act) is only applicable when there are two bequests in the will which are inconsistent with each other. [M.S. Bhavani v. M.S. Raghu Nandan, (2020) 5 SCC 361]

Hindu Adoptions and Maintenance Act, 1956 — Ss. 6, 7 and 11: The mandatory requirements of a valid adoption are consent of wife and proof of ceremony of actual giving and taking in adoption. In absence of proof of these requirements, mere fact of child being brought up by another couple and their names being entered in child’s school/college record as parents would not be sufficient to prove child’s adoption by them. [M. Vanaja v. M. Sarla Devi, (2020) 5 SCC 307]

Human and Civil Rights — Epidemics and Pandemics — COVID-19 Pandemic — Effect, prevention and medical facilities in prisons: There are greater chances of proliferation of this virus in overcrowded and closed places like prisons. Imminent need to take immediate measures for checking this contagious virus in prisons and for quarantining and providing medical treatment to affected prisoners, emphasized. [Contagion of Covid-19 Virus in Prisons, In re., (2020) 5 SCC 313]

 Income Tax Act, 1961 — S. 43-B(f) (as inserted vide Finance Act, 2001 w.e.f. 1-4-2002) — Validity: The validity of Cl. (f) providing for tax disincentive in deductions claimed by assessee from income tax in lieu of liability accrued under leave encashment scheme but not actually discharged by employer i.e. it making actual payment of liability condition precedent for extending benefit of deductions, affirmed. [Union of India v. Exide Industries Ltd., (2020) 5 SCC 274]

Labour Law — Transfer of Employee/Service — Challenge to transfer order: In this case, letter of appointment categorically stated that services of respondent can be transferred at any location in India. There was grant of interim stay to transfer order by Industrial Court prima facie finding it to be case of victimisation/mala fides without any evidence in support thereof. Hence, impugned order of High Court declining to exercise its writ jurisdiction, held unsustainable. [Godrej & Boyce Mfg. Co. Ltd. v. Rameshwar P. Gawade, (2020) 5 SCC 316]

Motor Vehicles Act, 1988 — Ss. 173 and 166 — Enhancement of compensation: In this case, even though claimant appellants did not file appeal against award of Tribunal before High Court, it was held appropriate to enhance compensation by exercising jurisdiction under Art. 142 of the Constitution in order to do complete justice between parties. [Sangita Arya v. Oriental Insurance Co. Ltd., (2020) 5 SCC 327]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 50 and 18 — Search and seizure: In this case there was recovery of contraband, weighing 6.3 kg, from bag carried by accused, hence compliance with S. 50 was not required. Hence, conviction of accused under S. 18, confirmed. [Than Kunwar v. State of Haryana, (2020) 5 SCC 260]

Property Tax In New Delhi: Property tax has been one of the main sources of revenue for New Delhi Municipal Council. This article gives you a brief understanding of the levy of property tax in New Delhi. Property Tax In New Delhi — A General Overview by Achal Gupta.[(2020) 5 SCC (J-39)]

Service Law — Judiciary — Seniority — Determination of seniority — Relevant date: The relevant date for determination of seniority is the date from which other candidates in same selection process were appointed. [C. Jayachandran v. State of Kerala, (2020) 5 SCC 230]

Service Law — Public Sector, Statutory Corporations and Local Bodies — Power of State Government to give directions in respect of conditions of service of Statutory Body/Corporation — Scope of — Scheme of applicable statutes: As relevant statutory provisions were not considered in earlier decision of Supreme Court, matter referred to larger Bench. [State of U.P. v. Virendra Kumar, (2020) 5 SCC 209]

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