2022 SCC Vol. 5 Part 3

2022 SCC Vol. 5 Part 3

Arbitration and Conciliation Act, 1996 — S. 34(3) proviso — Challenge to award — Limitation for: Court had power to condone eight days’ delay, which was less than thirty days, in terms of proviso to sub-section (3) to S. 34 of the 1996 Act. In this case, in application seeking condonation of delay, it was inter alia stated that after receiving a copy of award appellant had engaged an empanelled advocate and records pertaining to arbitration case were constructed and examined. Short delay had also occurred as sanctions and approvals were required from higher/competent authority. Given aforesaid background and short condonable delay which had occurred, High Court and Additional District Judge, held, were not justified in refusing to condone delay. Moreover, objections under S. 34 of the 1996 Act did require consideration and in-depth examination and should not have been dismissed without proper and full application of mind by the Court. Hence, delay was condoned and matter was remitted to Court concerned to hear objections to the award afresh on merits, in accordance with law. [HUDA v. Mehta Construction Co., (2022) 5 SCC 432]

Civil Procedure Code, 1908 — Or. 23 R. 3 — Modification of consent judgment/decree: Modification of consent judgment/decree is not permissible when not vitiated by fraud, misrepresentation or a patent or obvious mistake. Application seeking modification of consent judgment/decree filed under S. 152 must be dismissed, even on considering such application as one under proviso to Or. 23 R. 3 r/w S. 151, when it did not meet the requirements of law. [Ajanta LLP v. Casio Keisanki Kabushiki Kaisha, (2022) 5 SCC 449]

Civil Procedure Code, 1908 — S. 25: In this case, transfer petition by wife from one State to another where she was residing with her parents was allowed. Husband had not appeared in spite of notice and had not contested transfer petition. Respondent husband was held entitled to seek modification/recall of transfer order within a period of three months if it is found that he was not served with AD notice as reported by the office. [Sharmila Bagchi v. Sourav Gangopadhayay, (2022) 5 SCC 543]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail under S. 439 — Mandatory requirement of recording of reasons: Requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. Clarified, however, that while the court is not required to give elaborate reasons while granting bail, an order dehors any reasoning whatsoever cannot result in grant of bail. Thus, if bail is granted in a casual manner, the prosecution or the informant has a right to assail the order before a higher forum. [Jaibunisha v. Meharban, (2022) 5 SCC 465]

Energy, Power and Electricity — Electricity — Generation and Transmission/Supply/Distribution of electricity — Power Projects/Supply Obligations/Contract/Licence for Supply of Power/SEZ/Power Purchase Agreements (PPAs)/Dispute Resolution — Electricity procurement contract — Binding effect: State and its instrumentality are required to be guided by public interest and public good and by the touchstone of non-arbitrariness, reasonableness and rationality. In this case, IAs of appellant distribution company in OPs, held, adversely affect public good and public interest, and are without any reasonable basis. Said acts of appellant squarely fit in the realm of legal malice or malice in law, though allegations of personal mala fides were not made out. [Andhra Pradesh Southern Power Distribution Power Co. Ltd. v. Hinduja National Power Corpn. Ltd., (2022) 5 SCC 484]

Hindu Marriage Act, 1955 — S. 13(1)(i-b) and S. 13(1) Expln. — Divorce — Desertion as a ground for divorce: Desertion means intentional abandonment of one spouse by other without consent of other and without a reasonable cause. There should be animus deserendi on part of deserting spouse. Whether a case of desertion is established or not will depend on peculiar facts of each case. It is a matter of drawing an inference based on facts brought on record by way of evidence. Wife staying for one night in her matrimonial home at time of death of her mother-in-law cannot be said to be resumption of cohabitation. [Debananda Tamuli v. Kakumoni Kataky, (2022) 5 SCC 459]

Insolvency and Bankruptcy Code, 2016 — S. 7: Application through power-of-attorney holder, for initiating corporate insolvency resolution is permissible. Specific authorisation for filing such application is not required. [Rajendra Narottamdas Sheth v. Chandra Prakash Jain, (2022) 5 SCC 600]

Penal Code, 1860 — S. 304-B — Dowry death — “Dowry” — Scope of: “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. Interpretation of a provision of law that will defeat the very intention of the legislature must be shunned in favour of an interpretation that will promote the object sought to be achieved through the legislation meant to uproot a social evil like dowry demand. [State of M.P. v. Jogendra, (2022) 5 SCC 401]

Penal Code, 1860 — Ss. 302/34 and 201: In this case, death of deceased was due to burning in her matrimonial home. Case was based on circumstantial evidence and involvement of husband and mother-in-law (both appellant-accused herein) of deceased was alleged. Conviction of appellants under Ss. 302/34 and 201 IPC was upheld by High Court. The said order was held, unsustainable. [Satye Singh v. State of Uttarakhand, (2022) 5 SCC 438]

Protection of Children from Sexual Offences Act, 2012 — Ss. 3(b), 5(m) and 5/6 or 7/8 — “Penetrative sexual assault” as well as “aggravated penetrative sexual assault” — Determination: As per S. 5(m), penetrative sexual assault being committed on victim girl aged four years (below twelve years), held, the same is also “aggravated penetrative sexual assault” punishable under S. 6. [Nawabuddin v. State of Uttarakhand, (2022) 5 SCC 419]

Protection of Children from Sexual Offences Act, 2012 — Ss. 7 to 12, 29 and 30 — “Sexual assault” as defined in S. 7 — Meaning and Ingredients of: Expressions “touches” or “touch” in first part of S. 7, and, “physical contact” in second part of S. 7, cannot be construed as “skin-to-skin” contact. The most important ingredient for constituting offence of “sexual assault” under S. 7 is “sexual intent” and not “skin-to-skin” contact. Crucially, neither S. 7 nor any other provision of the POCSO Act even remotely suggests that “direct” physical contact unimpeded by clothing is essential for an offence to be committed. Both direct and indirect contact with sexual intent, come within the umbrage of “sexual assault” as defined in S. 7. Furthermore, expression “assault” in S. 7 of the POCSO Act has a meaning entirely removed from the definition of “assault” in S. 351 IPC. Emphasis and intent of S. 7 is to address the felt social need of outlawing behaviour driven by sexual intent i.e. that the offending behaviour (whether by direct or indirect contact as explained above), should be motivated with sexual intent. The very object of enacting the POCSO Act is to protect children from sexual abuse. Hence, the key is the proscription of behaviour driven by sexual intent, and not the nature of the “touch” or “contact”. Hence, held, offence of “sexual assault” under S. 7 can be made out even in the absence of skin-to-skin contact. Restricting the interpretation of the words “touch” or “physical contact” to “skin-to-skin contact” would not only be a narrow and pedantic interpretation of the provision contained in S. 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. The very object of enacting the POCSO Act is to protect the children from sexual abuse. If such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case, to give a few instances, touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to offence of sexual assault under S. 7 of the POCSO Act. [Attorney General v. Satish, (2022) 5 SCC 545]

Transfer of Property Act, 1882 — S. 111(g) — Cancellation of lease — Grounds for: False affidavit filed re eligibility criteria for allotment of plot which was subject-matter of the lease concerned is a legitimate ground of cancellation of lease. Termination of lease for violation of terms of lease, held, is not the same as cancellation of lease when a condition precedent for grant of the lease has been violated. [NOIDA v. Ravindra Kumar Singhvi, (2022) 5 SCC 591]

U.P. Motor Vehicles Taxation Act, 1997 (21 of 1997) — Ss. 2(h), 4, 9, 10, 12 and 20 — Transport vehicle — Liability to pay advance tax: Financier taking possession of transport from purchaser, is liable to pay advance tax and/or claim exemption as financier not putting vehicle to use. Position of law regarding onus of financier in possession to comply with procedural requirements for claiming exemption and/or refund for not putting the vehicle to use, explained. [Mahindra & Mahindra Financial Services Ltd. v. State of U.P., (2022) 5 SCC 525]

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