2021 SCC Vol. 9 Part 1

Ranging from Arbitration, Service Law to Family Law, this Volume 9 Part 1 brings in some very carefully and expertly analysed Judgments of the Supreme Court. Do check out the short notes of these cases that have been expertly created by our team of legal editors.


Arbitration and Conciliation Act, 1996 — S. 34 — Jurisdiction of Court under — Scope of — Modification of arbitral award by Court under — Impermissibility of: Power of Court under S. 34 to “set aside” award, held, does not include power to modify such an award. Given limited scope of judicial interference with award under S. 34 on extremely limited grounds not dealing with merits of an award, “limited remedy” under S. 34, held, is coterminous with “limited right”, namely, either to set aside an award or remand matter under circumstances mentioned in S. 34. Scheme of S. 34 of the A&C Act, 1996 distinguished from scheme prevailing under the Arbitration Act, 1940. Lastly held, S. 34 jurisdiction cannot be assimilated with revisional jurisdiction under S. 115 CPC. [NHAI v. M. Hakeem, (2021) 9 SCC 1]

Civil Procedure Code, 1908 — Or. 7 R. 11(d) and S. 11: Rejection of plaint where suit appears from statement in plaint to be barred by any law. Applicability of bar of res judicata cannot be determined at stage of rejection of plaint. The same can only be determined upon trial of the suit. Plaint in subsequent suit cannot be rejected on ground that it is barred by principles of res judicata as same will require production of pleadings, issues framed and judgment in previous suit, to compare it with present suit and that cannot be done for deciding an application under Or. 7 R. 11(d), as only the averments in the plaint itself may be considered at this stage. [Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99]

Courts, Tribunals and Judiciary — Judicial Process — Role of the Bar, Administration and Public Institutions/Officers: In this case, prayer was made for expunction of adverse remarks made against appellant, a senior lawyer, by High Court while deciding four cases in which appellant was representing one of the contesting parties. The Court observed that while it is of fundamental importance in realm of administration of justice to allow Judges to discharge their functions freely and fearlessly without interference from anyone, it is equally important for Judges to exercise restraint and avoid unnecessary remarks on conduct of counsel which has no bearing on adjudication of dispute. [Neeraj Garg v. Sarita Rani, (2021) 9 SCC 92]

Criminal Procedure Code, 1973 — S. 482 — Quashment application: Principles summarized regarding manner of consideration of quashment application, at: (A) Stage of FIR/complaint, as contrasted with (B) When proceedings are at stage when statements are recorded, evidence is collected and chargesheet is filed after conclusion of investigation/inquiry. Restraint to be exercised by High Court while exercising inherent jurisdiction under S. 482. [Kaptan Singh v. State of U.P., (2021) 9 SCC 35 ]

Criminal Procedure Code, 1973 — Ss. 432, 433 and 433-A — Power of appropriate Government to suspend, remit and commute sentences: Remission policies may be composite ones referable both to S. 432/S. 433 CrPC and Art. 161 of the Constitution. Remission power exercisable under a particular remission policy whether would be one exercisable: (A) under S. 432/S. 433 CrPC, and/or (B) under Art. 161 of the Constitution, inter alia, depends on: the terms of the remission policy in question, the nature of the sentence imposed, and, the actual period of imprisonment served by the prisoner concerned. In respect of sentences of the nature mentioned in S. 433-A CrPC, if the actual period of imprisonment is not less than 14 yrs, then appropriate Government is free to exercise its powers under S. 432/S. 433 CrPC, with or without approval of the Governor. However, in respect of sentences of the nature mentioned in S. 433-A CrPC, if actual period of imprisonment is less than 14 yrs, then remission power is only exercisable by Governor under Art. 161 of the Constitution on aid and advice of State Government as restrictions under S. 433-A CrPC cannot apply to constitutional power under Art. 161 of the Constitution. Furthermore, applicable sentence remission policy, reiterated, must be the one existing on date of conviction of accused and not the one existing on the date of consideration of his case for premature release by appropriate authority. [State of Haryana v. Raj Kumar, (2021) 9 SCC 292]

Criminal Procedure Code, 1973 — Ss. 482 and 156(3) — Extraordinary relief of stay of further proceedings in complaint cases, including stay on arrest of accused persons — Grant of, by High Court under S. 482: It is permissible for High Court to pass an interim order under S. 482 CrPC of the nature impugned herein, in exceptional cases with caution and circumspection, giving at least brief reasons. What is not permissible is the tendency of the courts to pass blanket, cryptic, laconic, non-speaking orders reading merely “no coercive steps shall be adopted”. A.P. Mahesh Coop. [Urban bank Shareholders Welfare Assn. v. Ramesh Kumar Bung, (2021) 9 SCC 152]

Disaster Management Act, 2005 — Ss. 12(iii), 48, 6(1) and 6(2)(g) — Notified disaster: Ex gratia monetary compensation to families of deceased who have succumbed to pandemic of COVID-19: Word “shall” used in S. 12, held, cannot be interpreted and considered as “may”. It is mandatory for National Authority to recommend guidelines for minimum standards of relief to be provided to persons affected by disasters including ex gratia assistance on account of loss of life. However, held, Court cannot issue writ directing Central Government/National Authority/State Governments to pay a particular amount by way of ex gratia assistance. [Reepak Kansal v. Union of India, (2021) 9 SCC 251]

Family and Personal Laws— Hindu Law — Partition/Family Arrangement/Settlement — Revocation/Cancellation/Reunion/Blending/Surrender/Relinquishment/Renunciation — Reunion of family: Concept of reunion of joint family, manner in which to be proved, presumption against reunion after partition, principles explained in detail. [R. Janakiammal v. S.K. Kumarasamy, (2021) 9 SCC 114]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender — Tender Conditions/Criteria/Norms/Request for Proposal (RFP) Conditions/Notice Inviting Tender (NIT)/Advertisement/Invitation to offer/Reserve price/Prequalifications/Scope of judicial review: In this case, one of clauses of NIT stipulating that notification of award will constitute formation of contract “subject only” to furnishing of security deposit. Letter of intent (LoI) in this case was merely a letter of intent and not a concluded contract. Bidder failed to comply with preconditions specified in NIT and in LoI. Consequently work order was not issued nor was contract executed. Thus, held, there was no concluded contract between parties. Mobilisation at site by bidder would not amount to concluding contract. Thus, held, cancellation of award work and forfeiture of bid security not illegal. However, held, in this case High Court correctly held that appellant employer not entitled to recover differential amount in the contract value between bid of respondent and the new contractor to whom the contract was finally awarded. [South Eastern Coalfields Ltd. v. S. Kumar’s Associates AKM (JV), (2021) 9 SCC 166]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic — Public health response: There was daily requirement of 700 MT of oxygen for National Capital Territory of Delhi (NCTD) and obligation of Central Government and allegedly, Central Government defaulted in providing 700 MT of oxygen to NCTD on daily basis, hence directions and clarifications issued. Central Government directed to remedy the situation forthwith. Plea that this would affect oxygen supply to other States and Union Territories (UTs), is not tenable. Plea based on method of computation for arriving at said requirement, also not tenable. [Union of India v. Rakesh Malhotra, (2021) 9 SCC 222]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic — Public health response: There was daily requirement of 700 MT of oxygen for National Capital Territory of Delhi (NCTD) and it was the obligation of Central Government to supply oxygen. The High Court initiated contempt proceedings for non-compliance with directions for performance of said obligation. Contempt notice by High Court stayed as no useful purpose would be served thereby. It was clarified that said restraint order would not affect High Court from continuing to monitor issues therein. Issues requiring attention have many dimensions like proper method for computing requirement of oxygen, proper management of the resource of oxygen, scientific audit of the requirement of oxygen and replicating efficient administrative modalities of Municipal Corporation of Greater Mumbai. [Union of India v. Rakesh Malhotra, (2021) 9 SCC 241]

Penal Code, 1860 — S. 323 r/w S. 319: Production of an injury report, held, not a sine qua non for establishing case under S. 323. Non-visible injuries and even causing bodily pain, held, come within ambit of causing “hurt”. Thus, non-production of injury report, held, not fatal, when offence under S. 323 proved otherwise based on evidence on record. [Lakshman Singh v. State of Bihar, (2021) 9 SCC 191]

Penal Code, 1860 — S. 364-A — Kidnapping for ransom — Ingredients of offence — Necessity to prove each and every ingredient prescribed in S. 364-A: All conditions as enumerated in S. 364-A must be fulfilled before recording conviction under S. 364-A. First essential condition, held, must mandatorily be established with at least any one of the three conditions mentioned thereafter also being affirmatively established, to ground conviction under S. 364-A. [Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59]

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Ss. 32, 33 and 47 — Reservation in promotion for persons with disabilities: Reservation in promotion cannot be denied to persons with disabilities. Such reservation cannot be confined to initial stage of induction of service resulting in stagnation of disabled. Further held, operation of reservation and computation must be made with reference to total number of vacancies in cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion. Moreover, Rules must be framed providing for promotion from feeder cadre to promotional posts and posts must be identified in terms of S. 32 in promotional cadre capable of being filled by persons with disabilities. [State of Kerala v. Leesamma Joseph (2021) 9 SCC 208]

Service Law — Judiciary — Compulsory retirement — Report/decision of Vigilance/Disciplinary Committee — Binding effect — If any: In this case, Full Court of High Court recommended compulsory retirement of petitioner from post of Additional District & Sessions Judge for irregular deposits/withdrawal from his bank account, rejecting reports of Vigilance/Disciplinary Committee dt. 17-10-2018 and 18- 12-2019 exonerating him. The Supreme Court held, decision/report of Vigilance/Disciplinary Committee not binding on Full Court. On facts it was held, considering that there were multiple transactions showing deposits and withdrawals of substantial amounts of money, Full Court was justified in taking the view it did and no interference with impugned judgment called for. [Rajinder Goel v. High Court of P&H, (2021) 9 SCC 88]

Service Law — Practice and Procedure — Parties — Necessary/Proper parties — Prayer for impleadment — Grant of — Sufficient interest in outcome of proceedings: In this case, Police officers belonging to IPS seeking impleadment in instant SLPs which arise out of common judgment delivered by High Court in five writ petitions filed by Group A officers of the Central Armed Police Forces, apprehending that posts in CAPFs allocated for filling up by deputation by officers of IPS would get diluted in event main plea of petitioners to exclude deputationists from senior administrative posts of respective CAPFs was accepted. It was held that applicants establish sufficient interest in outcome of proceedings, hence, application for impleadment was allowed. [Sanjay Prakash v. Union of India, (2021) 9 SCC 79]

Transfer of Property Act, 1882 — S. 58(c) and proviso thereto — Conditional sale mortgage, or, absolute sale with right of repurchase — Determination of: Converse, whether true i.e. merely because entire transaction is contained in one document it would necessarily imply that it is a conditional sale mortgage. Rather, whether the intention of the parties has also to be ascertained to determine the true nature of the transaction. It is impossible to compare one case with another. Each case must be decided on its own facts and circumstances. The document has to read as a whole and court must determine the true intention of the parties as to the nature of the transaction they intended. If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a conditional sale mortgage irrespective of whether the documents are contemporaneously executed, as that would be contrary to requirements of S. 58(c) proviso. [Bhimrao Ramchandra Khalate v. Nana Dinkar Yadav, (2021) 9 SCC 45]

Wakf Act, 1995 — S. 83: Scope of revisional jurisdiction of High Court is limited. Principles summarized regarding when interference is justified. [Telangana State Wakf Board v. Mohd. Muzafar, (2021) 9 SCC 179]

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