2022 SCC Vol. 6 Part 1

SCC Part

   

“Law” under Section 23 of the Contract Act: This article is an exploration of what amounts to “law” under Section 23 of the Contract Act in an attempt to analyse the restrictions while contracting in India. It is specifically examined whether agreements contrary to delegated legislation like rules, regulations, notifications, and circulars are unenforceable in India due to Section 23 of the Contract Act. Analysing “Law” under Section 23 of the Contract Act by Raghav Seth. [(2022) 6 SCC (J-11)]

Coal Mines (Nationalisation) Act, 1973 — Ss. 3(1) and 2(h): “Mine” as defined in S. 2(h) has wide scope, particularly in light of S. 2(h)(xi) which provides that even lands and buildings used solely for location of management, sale or liaison offices, or, for residence of officers and staff are also included in definition of word “mine”. [Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, (2022) 6 SCC 99]

Companies Act, 2013 — Ss. 230 to 232 — Sanction of composite scheme — Liberty to approach High Court re continuation of NCLT proceedings: In this case, proceedings before NCLT were stated to have reached stage at Serial No. 8 (meeting of the shareholders and creditors) and it was contended that it would take six to eight months for completing all the fifteen steps. Liberty was granted to appellant FRL to approach High Court by filing an application seeking continuation of the NCLT proceedings beyond the 8th stage. [Future Coupons (P) Ltd. v. Amazon.Com NV Investment Holdings LLC, (2022) 6 SCC 121]

Consumer Protection — Services — Housing and Real Estate — Complaint to enforce sale of immovable property i.e. for execution of the conveyance deed in terms of agreement to sell: Limitation period for filing of complaint to enforce sale of immovable property i.e. for execution of the conveyance deed in terms of agreement to sell commences, on the expiry of period of notice of complainant’s notice for executing the deed of conveyance. [Bharati Bhattacharjee v. Mohd. Maksuduzzaman, (2022) 6 SCC 146]

Criminal Law — Penal Code, 1860 — Ss. 302/149, 307/149 and 148: In this case, it was to be determined that whether the appellant shared common object to murder the deceased victim. Evidence on record established that all accused persons had come to spot with deadly weapons with intention to kill deceased. All accused had fired on deceased with their firearms, as a result of which deceased had sustained 16 bullet injuries. Hence, held, all the accused including the appellant correctly convicted under Ss. 302/149, 307/149 and 148 IPC by the courts below. [Karan Singh v. State of U.P., (2022) 6 SCC 52]

Criminal Procedure Code, 1973 — S. 438: In this case, anticipatory bail re FIR under S. 306 IPC was rejected by the High Court. However, herein, while issuing notice, Supreme Court granted interim relief of stay of arrest to appellant. He had enjoyed said relief for last more than 3½ yrs. Consequently, held, without making any reflection on merits of matter, order passed by High Court set aside with necessary directions. [Dheeraj Bhadviya v. State of Rajasthan, (2022) 6 SCC 63]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Establishment, Running, Closure and Nationalisation of Medical/Dental Colleges — New College/Courses/Upgradation of College/Increase in capacity/seats — Criteria for establishment of dental college — Scope of powers of DCI: It is within competence of DCI to make Regulations prescribing any other conditions, which are otherwise not found in clauses (a) to (f) of S. 10-A(7) of the Dentists Act, 1948. Scope of powers of DCI in this regard, explained in detail. [Dental Council of India v. Biyani Shikshan Samiti, (2022) 6 SCC 65]

Error in BALCO, (2012) 9 SCC 552, Repeated: In a recent decision of the Supreme Court in BGS SGS SOMA JV v. NHPC Ltd., (2020) 4 SCC 234, the Supreme Court has followed and explained the decision in BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, and held that a choice of a city in India as a seat confers exclusive supervisory jurisdiction on the courts of that city over the arbitration proceeding. This article submits that the above view is erroneous. BGS SGS SOMA JV v. NHPC Ltd., (2020) 4 SCC 234 — Error in BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, Repeated, by Ketan D. Parikh. [(2022) 6 SCC (J-1)]

Government Contracts and Tenders — Remedies/Relief — Public Law/Writ Remedies/Interim relief — Judicial review in cases involving tenders/contracts involving public interest/importance, as in the present case for construction of roads: Since the construction of road is an infrastructure project and keeping in view the intent of the legislature as evidenced under S. 41(ha) of the Specific Relief Act, 1963, that infrastructure projects should not be stayed, High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. This principle is now statutorily enshrined in S. 41(ha) of the Specific Relief Act, 1963 as inserted vide Act 18 of 2018. Hence, the principle underlying S. 41(ha) of the Specific Relief Act should be kept in view even by the writ court while exercising its jurisdiction under Art. 226 of the Constitution. [N.G. Projects Ltd. v. Vinod Kumar Jain, (2022) 6 SCC 127]

Income Tax Act, 1961 — Ss. 260-A and 271(1)(c) — Appeal — Maintainability of, when tax effect falls below the required threshold based on subsequent order(s)/demand — Tax effect at the time of filing of appeal to be considered: In this case, in order passed by CIT (A) and in subsequent demand, penalty amount was reduced to Rs 6,00,000 and therefore in view of CBDT Circular dt. 10-12-2015 tax effect fell below permissible limit to prefer appeal before High Court. It was held that what was assailed by Revenue was penalty amounting to Rs 29,02,743 and not penalty reduced by CIT (A). Before Tribunal, both Revenue, as well as assessee, preferred appeals and entire penalty amounting to Rs 29,02,743 was an issue before Tribunal as well as before High Court. Subsequent reduction in penalty in view of subsequent order cannot oust jurisdiction. Therefore, appeal before High Court at instance of Revenue challenging order passed by ITAT was maintainable even in view of CBDT Circular dt. 10-12-2015. [Gyan Chand Jain v. CIT, (2022) 6 SCC 92]

Insolvency and Bankruptcy Code, 2016 — Ss. 30, 31 and 62 — Modification/Amendment of resolution plan: In this case, appellant’s proposal for modification/amendment of the resolution plan was declined by the resolution professional and thereupon, the appellant approached the adjudicating authority by filing an IA. Adjudicating authority passed the order dt. 13-12-2021 granting the prayer of the appellant but, at the same time, correspondingly allowed the other resolution applicant to place any modification in their submitted resolution plan before the CoC as well. On a perusal of the order dt. 13-12-2021, held, that certain key features/stipulations of the resolution plan were sought to be amended by the appellant and whether it was done in response to the requirement of the CoC or otherwise, the fact of the matter remained that there was going to be modification of the relevant terms of the resolution plan of the appellant. Further, when that was being permitted at the request of the appellant himself, no fault could be found inthe adjudicating authority having passed an order so as to balance the position of the respective parties and to provide a level playing field by granting corresponding permission to the other resolution applicant to place its modification for consideration of CoC. Also, so far as the factor relating to divulging of the contents of the plan was concerned, the same had been of the making of the appellant himself. If the appellant had chosen to divulge/disclose the terms of its resolution plan before the adjudicating authority, there had not been any fault on the part of the resolution professional or the CoC or the other resolution applicant. [Ajay Gupta v. Pramod Kumar Sharma, (2022) 6 SCC 86]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Multiple Insurance Policies/Double Insurance: Liability of insurer with regard to fire incident at the warehouse of assured under the first policy is excluded, where fire incident also covered by a second policy (a “marine policy” as per terms of the first policy in this case) and the first policy excludes liability in such event. Exclusion clause(s) in insurance policy must be strictly interpreted. [United India Insurance Co. Ltd. v. Levis Strauss (India) (P) Ltd., (2022) 6 SCC 1]

Labour Law — Misconduct — Deliberate “go slow” tactic: Pro rata deduction/reduction in wages, held, permissible, but only after providing proper hearing in respect thereof to the workmen concerned. [Bata (India) Ltd. v. Workmen, (2022) 6 SCC 95]

Penal Code, 1860 — Ss. 302, 498-A and 201 r/w S. 34: In this case, demands for dowry and dowry-related harassment of bride by husband and in-laws culminated in her murder. She done to death by strangulation in her matrimonial home and thereafter attempt made to camouflage her death as one which arose out of burn injuries. Medical evidence is quite clear that deceased was strangulated first and after her life was extinguished, her body was subjected to post-mortem burn injuries in an attempt to camouflage death as one which arose out of burn injuries. Considering entirety of material on record, it is not possible to take a different view than one that weighed with courts below. Thus, conviction and sentences recorded against Accused 1 and 2 (husband and mother-in-law of deceased, respectively, both appellant-accused herein), confirmed. [Sarepalli Sreenivas v. State of A.P., (2022) 6 SCC 116]

Rent Control and Eviction — Bona Fide Requirement of Landlord — Eviction on ground of, under S. 14(1)(e) of the Delhi Rent Control Act, 1958 1958 Act — Leave to defend — Requirements of: For availing leave to defend as envisaged under S. 25-B(5) of the 1958 Act, a mere assertion by the tenant per se would not suffice as S. 14(1)(e) of the 1958 Act creates a presumption subject to satisfaction of Rent Controller qua bona fide need in favour of landlord which is obviously rebuttable with some material of substance to extent of raising a triable issue. Satisfaction of Rent Controller in deciding on an application seeking leave to defend is obviously subjective. Degree of probability is one of preponderance, for formation of subjective satisfaction of Rent Controller. Thus, quality of adjudication is between a mere moonshine or mere assertion of tenant, and, adequate material and evidence meant for rejection of a normal application for eviction. [Abid-Ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30]

Service Law — Promotion — Upgradation of Post/Cadre — Post whether promotional post, or, upgradation of post — Determination of — Factors to be considered: Differential pay scale along with process of selection qua suitability fixing eligibility criteria are factors to determine whether particular post is same as other or a promotional one. Further held, such exercise is not required when the norms concerned are clear in this regard, as in this case. [Union of India v. Manpreet Singh Poonam, (2022) 6 SCC 105]

Specific Relief Act, 1963 — S. 21(5): Damages/compensation in lieu of specific performance of the agreement is not-grantable when no such relief was claimed. [Universal Petro-Chemicals Ltd. v. B.P. PLC, (2022) 6 SCC 157]

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