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2021 SCC Vol. 5 Part 4

Bhumika Indulia

In this Part, read 6 Articles and 10 very interesting Supreme Court decisions.

Following are the Articles:

Arbitrability of fraud: This article attempts to explore the issue of fraud and arbitrability through the lens of Russell v. Russell, (1880) LR 14 Ch D 471 and its application and evolution in the Indian jurisprudence. Fraud and Arbitration — Deconstructing the Russell Principles by Nandini Khaitan.[(2021) 5 SCC (J-39)]

Arbitration and Conciliation Act, 1996 — S. 11(6) r/w S. 21 — Appointment of arbitrator under S. 11(6): Commencement of Limitation period for filing application for appointment of arbitrator is from date on which agreement procedure for appointment of arbitrator can be said to have “failed” in terms of Ss. 11(6)(a), (b) or (c). Commencement of said limitation period on the expiry of the notice period stipulated in notice invoking arbitration, when the other side fails to make the appointment within the period stipulated in the notice i.e. period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Mere exchange of letters or mere settlement discussions is not sufficient for extending the period of limitation. Rejection of arbitration proceedings by the other side at a subsequent time i.e. post expiry of such limitation period or writing of reminder letters to the other side does not extend the limitation period. [Secunderabad Cantonment Board v. B. Ramachandraiah & Sons, (2021) 5 SCC 705]

Arbitration and Conciliation Act, 1996 — Ss. 11(6) and 43 r/w S. 21: Limitation period for filing application for appointment of arbitrator under S. 11 is governed by residuary Art. 137 of the Limitation Act i.e. application for appointment of arbitrator under S. 11(6) to be filed within 3 yrs from date on which “right to apply” under S. 11(6) accrues. It was clarified that period of limitation for filing a petition seeking appointment of an arbitrator(s) cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying contract. Commencement of said limitation period for filing application under S. 11(6) is from date on which agreement procedure for appointment of arbitrator can be said to have “failed” in terms of Ss. 11(6)(a), (b) or (c). Commencement of said limitation period from the date of refusal to appoint the arbitrator by the other side or upon the failure to make the appointment within the period stipulated in the notice invoking arbitration, whichever is earlier. That is to say, the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. [BSNL v. Nortel Networks (India) (P) Ltd., (2021) 5 SCC 738]

Arbitration and Conciliation Act, 1996 — Ss. 8 & 11 and S. 16 — Dispute regarding existence of arbitration agreement itself — Reference of such dispute to arbitration — When warranted: Prima facie review at the referral stage by Court i.e. prima facie examination to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes is inadequate, where such prima facie review would be inconclusive/inadequate as matter requires detailed examination of documentary evidence and cross-examination of witnesses. In such cases, issue of existence of arbitration agreement is to be referred to arbitrator for determination as a preliminary issue. [Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg. (P) Ltd., (2021) 5 SCC 671]

Concurrent Expert Evidence: In this article the novel device of concurrent expert evidence has been discussed. Concurrent Expert Evidence — A Novel Evidentiary Device By Aditya Shiralkar [(2021) 5 SCC (J-21)]

Education Law — Admission — Punishment/Relief for Irregular/Illegal admission/Non-compliance with prescribed procedure/Cancellation of admission: In this case of cancellation of illegal admissions, coercive methods were directed by Court for refund of fees. The Supreme Court by a Consent order dt. 29-8-2018 directed return of fees, imposing costs and putting other conditions for permitting admissions. Admittedly, fees of some students still remained to be paid/decided. It was held that University can decline to give permission for affiliation for non-compliance with conditions and rightly did so in this case. The order of the High Court staying order of the University, reversed. Conditional relief granted to College on basis of developments and determinations made by Admission Supervisory Committee for Professional Colleges in Kerala (ASC) and High Court. [Lalitha R. Nath v. Kannur Medical College, (2021) 5 SCC 768]

Insolvency and Bankruptcy Code, 2016 — S. 60(5)(c) r/w S. 5(13) — Power of NCLT to determine fees and expenses, etc. payable to a professional: Availability of grievance redressal mechanism under the IBC against an insolvency professional does not divest NCLT of its jurisdiction under S. 60(5)(c) IBC. [Alok Kaushik v. Bhuvaneshwari Ramanathan, (2021) 5 SCC 787]

Insolvency Law: The author discusses the scope and applicability of Insolvency and Bankruptcy Code, 2016, in this article. No Smooth Sailing for Insolvency Law by Shyam Kapadia And Dhruva Gandhi [(2021) 5 SCC (J-31)]

Judiciary as a Temple of Justice: Speech delivered by Justice Ashok Bhushan at the Farewell Function organised by the Supreme Court Bar Association. Judiciary as a Temple of Justice by Justice Ashok Bhushan [(2021) 5 SCC (J-7)]

Motor Vehicles Act, 1988 — S. 110(1) r/w Rr. 112 to 116, 126 and R. 126-A of the Central Motor Vehicles Rules, 1989: In this case criminal complaint was filed by a purchaser of motor vehicle (an independent party), inter alia, alleging misrepresentation regarding use of defeat devices in vehicle. It was held to be maintainable, even when appeal against National Green Tribunal (NGT) proceeding, also involving use of such device, is sub judice. Interim relief restraining coercive steps against the manufacturer in the context of NGT’s order is not a deterrent for a third party (independent party) to lodge a police complaint and seek an investigation. Criminal complaint of a purchaser and NGT related proceedings are independent and distinct actions. Hence, criminal complaint proceedings in question to proceed further in accordance with law. [Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 37, 19, 24 and 27-A — Object and scope of S. 37 regarding bail: Manner in which power of High Court to suspend sentence under S. 389 CrPC, to be exercised in NDPS Act cases, where trial has ended in order of conviction under NDPS Act, explained. [State (NCT of Delhi) Narcotics Control Bureau v. Lokesh Chadha, (2021) 5 SCC 724]

National Green Tribunal Act, 2010 — Ss. 14 to 18: Punitive measures for delay in compliance with order of deposit made by NGT are not permissible, when extension has been granted by Supreme Court. [Volkswagen India (P) Ltd. v. Satvinderjeet Singh Sodhi, (2021) 5 SCC 806]

Penal Code, 1860 — Ss. 302 and 224 r/w S. 511 — Circumstantial evidence — Last seen theory — Necessity of explanation: In this case, accused allegedly killed the deceased Head Constable in the office of the Video Piracy Cell. At the relevant point of time the accused and the deceased found alone inside the premises of the office of the Video Piracy Cell. Resultantly, the accused was held liable to explain under what circumstances the deceased had died. In this case, last seen theory, held, stood proved against the appellant and considering absence of explanation on his part as to how the deceased had died, requisite chain held to be completed and, thus, his conviction was affirmed. [Shanmugam v. State, (2021) 5 SCC 810]

Penal Code, 1860 — Ss. 302/120-B/34: In this case of murder of girl child, it was held that all three witnesses who were claimed to be eyewitnesses to occurrence and on whose testimonies, reliance was placed by prosecution, could not be relied on. Further, not only were circumstances established by prosecution not conclusive in nature but they also did not form cogent and consistent chain so as to exclude every other hypothesis except guilt of accused persons. Therefore, held, case of prosecution not proved beyond reasonable doubt, hence conviction was reversed. [Yogesh v. State of Haryana, (2021) 5 SCC 730]

Rule of Law: This article discusses the concept, nature, scope and importance of “rule of law” in democracy. Rule of Law in Democracy by Justice N.V. Ramana [(2021) 5 SCC (J-1)]

Service Law — Penalty/Punishment — Proportionality/Quantum of punishment: Judicial forums do not sit as appellate authority over findings of disciplinary authority. However, proportionality of punishment can always be adjudged by Court. In this case, allegations pertaining to receiving of illegal gratification were not proved but only procedural lapses in performance of duties were proved. Hence, it was held that imposition of punishment of compulsory retirement was disproportionate and harsh. [Union of India v. P. Balasubrahmanayam, (2021) 5 SCC 662]

States’ Suits against the Union under Article 131: This article seeks to explore the contours of Article 131 of the Constitution of India, to determine the appropriate forum for adjudication of disputes between States and Union Government. Maintainability before Merit: The Prerequisite in States’ Suits against the Union under Article 131 by Rahul Agarwal & Madhav Goel [(2021) 5 SCC (J-9)]

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