2021 SCC Vol. 10 Part 2

In this part, read three really interesting Articles along with some very carefully analysed decisions of the Supreme Court by our editors.

Adjudication in Multi-Contract and Multi-Party Disputes: The author in this article explains the scope of two neighbouring concepts in arbitration law: (a) composite reference and composite adjudication; (b) consolidation of references for analogous (or consolidated) adjudication, in adjudication of disputes involving multiple contracts and multiple parties. Composite Adjudication And Analogous (Or Consolidated) Adjudication By Arbitral Tribunals In Multi-Contract And Multi-Party Disputes — A Comparative Analysis by Avni Sharma, (2021) 10 SCC (J-14)]

Consumer Protection — Services — Medical practitioners/services — Medical negligence: Res ipsa loquitur may be considered applicable where negligence alleged is glaring, in the facts and circumstances of a case, if the evidence on record establishes the same. It was emphasised that findings of medical negligence of doctors and/or the hospital, must be based on proper medical evidence on crucial medical aspects. Court or Consumer Forums cannot take decision on basis of mere legal principles and general standard of assessment sans expert medical evidence on highly technical medical issues. Such decision would amount to a situational perception by the court or the Consumer Forums. [Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291]

Criminal Procedure Code, 1973 — Ss. 457 and 451 — Seizure of property pending trial — Release of mutual funds — Directions for, subject to furnishing of guarantee: Interim directions for release of mutual funds, subject to furnishing of guarantee, modified while adopting pragmatic approach in respect of matters of high value commercial assets. [SEBI v. IL&FS Securities Services Ltd., (2021) 10 SCC 389]

Election — Democracy and General Principles — Criminalisation of politics/Electoral Reform: Right to information of voter re criminal antecedents of candidates must be made more effective and meaningful. Direction issued to political parties to publish information regarding criminal antecedents of candidates on homepage of their websites with caption “Candidates with Criminal Antecedents”. Detailed directions also issued to Election Commission of India (ECI) so as to make such information freely available and to spread awareness re criminal antecedents of all contesting candidates. [Brajesh Singh v. Sunil Arora, (2021) 10 SCC 241]

Election — Elections to Particular Bodies/Offices — Local Government/Bodies/Municipalities/Panchayats/Autonomous and Other Bodies — Reservation — Office of Mayor of Corporation: There is reservation for SCs/STs/Backward Class citizens/Women in proportion to population of such category. The manner in which provision for rotation of the different reserved categories in Office of Mayor across the State, by draw of lots as mandated by scheme of Act and Rules concerned read with Art. 243-T of the Constitution, to be worked out, explained. [Sanjay Ramdas Patil v. Sanjay, (2021) 10 SCC 306]

Insolvency and Bankruptcy Code, 2016 — S. 61: Applicability of principles underlying S. 14 of the Limitation Act, to proceedings before a quasi-judicial tribunal, despite the provision itself not being applicable thereto, determined. The proper approach is to advance the cause of justice, rather than to abort the proceedings. Time spent prosecuting bona fide before wrong forum must be excluded for computing limitation period. [Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., (2021) 10 SCC 401]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A, 7 and 3(12) — Limitation period for initiation of corporate insolvency resolution process (CIRP): Final judgment and/or decree of any court or tribunal or any arbitral award for payment of money, if not satisfied, would fall within the ambit of a financial debt. A judgment and/or decree for money in favour of the financial creditor, passed by the DRT, or any other tribunal or court, or the issuance of a certificate of recovery in favour of the financial creditor, would give rise to a fresh cause of action for the financial creditor, to initiate proceedings under S. 7 within three years from the date of the judgment and/or decree or the date of issuance of the certificate of recovery, if the dues under the judgment and/or decree and/or in terms of the certificate of recovery, or any part thereof remained unpaid. [Dena Bank v. C. Shivakumar Reddy, (2021) 10 SCC 330]

Kerala Abkari Shops Departmental Management Rules, 1972 — R. 13 r/w R. 10 of Kerala Abkari Shops (Disposal in Auction) Rules, 1974: R. 13 as amended, held, is prospective. Amount collected as departmental management fee has to be given as credit towards dues from licensee. Contracts entered into before amendment of R. 13 of 1972 Rules, which is prospective in nature. Therefore licensee, held, was liable to pay only actual loss suffered by Government, in realisation of rentals and excise duty. Hence, amounts calculated as departmental management fees had to be adjusted thereagainst. [Excise Commr. v. Esthappan Cherian,(2021) 10 SCC 210]

Land Acquisition Act, 1894 — S. 23 — Market value — Determination of — Matters which may be considered: For determination of market value, exemplar sales which had taken place subsequent to acquisition notification is irrelevant. Where different lands belonging to different survey number were acquired for same purpose and they have identical features, categorisation of lands by Reference Court is not warranted. [Manmohan Lal Gupta v. Market Committee, Bhikhi, (2021) 10 SCC 395]

Tenancy and Land Laws — Occupancy Rights/Tenant/Tenancy/Patta/Particular tenures — Bhumiswami — Kashtkar — Muafidar (tenant in cultivation) — Pujari — Status and function: Pujari cannot be treated as Bhumiswami, Muafidar, Inamdar or Kashtakar Mourushi. [State of M.P. v. Pujari Utthan Avam Kalyan Samiti, (2021) 10 SCC 222]

The Effects of Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79: This article attempts to harmonise the potentially problematic observations made in a recent judgment passed by the Supreme Court in Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79, with a long-settled position of law regarding the status of a nominee and the legal effects of nomination To Nominate or Not: The Effects of Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79 by Shyam Kapadia & Spenta Havewala, (2021) 10 SCC (J-29)]

Transparency in Functioning of Statutory Bodies: In this article, author has discussed the meaning, role, significance of transparency in the functioning of the statutory authorities along with its scope, extent and limits. It has also been emphasised that action must be taken by the legislature and executive in clearly spelling out the scope, extent and limits of transparency to be exercised by the various authorities. Transparency in Functioning of Statutory Bodies — Need for Legislative Intervention by Saket Singh, (2021) 10 SCC (J-1)]