2015 SCC Vol. 9 October 21, 2015 Part 1

Arbitration and Conciliation Act, 1996 — Ss. 2(2), (1)(f), Pt. I or Pt. II — International commercial arbitration: As arbitration agreement entered into between the parties was controlled and governed by conditions postulated in the principal contract which pre-dated Balco, (2012) 9 SCC 552 and nothing was there in the addendum to suggest any arbitration clause therein, hence law rendered in Bhatia International, (2002) 4 SCC 105 applicable. [Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd., (2015) 9 SCC 172]
Central Excise Act, 1944 — S. 11-A — Show-cause notice before passing of recovery order — Mandatory requirement of: Order passed under S. 11-A without any notice to respondents as required is bad and this cannot be reagitated. [Union of India v. Tata Yodogawa Ltd., (2015) 9 SCC 102]
Constitution of India — Art. 21 — Quashment on ground of delay in initiation of criminal proceedings/filing criminal complaint: While it is true that cases covered by statutory bar of limitation may be liable to be quashed without any further enquiry, cases not covered by statutory bar can be quashed on ground of delay in filing of criminal complaint in appropriate cases. In such cases, question for consideration is, whether there is violation of right of speedy trial, which has been held to be part of Art. 21 of Constitution, having regard to nature of offence, extent of delay, person responsible for delay and other attending circumstances. However, mere delay in completion of proceedings, may not be, by itself, a ground to quash proceedings, where offences are serious but court, having regard to conduct of parties, nature of offence and extent of delay in facts and circumstances of given case, may quash proceedings in exercise of jurisdiction under S. 482 CrPC, in the interest of justice and to prevent abuse of process of court. [Sirajul v. State of U.P., (2015) 9 SCC 201]
Courts, Tribunals and Judiciary — High Courts — Letters Patent Appeal — When maintainable: When the order of Single Judge of High Court is not in exercise of ordinary original jurisdiction, but in exercise of writ jurisdiction, the principal question to be decided is whether the order of Single Judge is in substance one under Art. 226 of Constitution and not under Art. 227 of Constitution. If order of Single Judge is in substance one under Art. 226 of Constitution, regardless of nomenclature used by parties in the writ petition or by Single Judge in his order, then LPA to Division Bench is maintainable. What is important is to ascertain the true nature of order passed by the Single Judge. If order of Single Judge in substance is not under Art. 226, or cannot be one under Art. 226, but is one under Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is not maintainable. When order of Single Judge is under both Art. 226 and Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is maintainable. LPA not maintainable in writ petitions against judicial orders of civil court. LPA not maintainable in such cases, as Single Judge’s order in such cases can only be under Art. 227 of Constitution. Judicial order of civil court is only assailable under Art. 227 and is not amenable to writ jurisdiction under Art. 226 of the Constitution. Thus, LPA maintainable in writ petitions against orders of tribunals/authorities (other than civil courts) when Single Judge’s order is in substance under Art. 226. LPA is maintainable in such cases so long as Single Judge’s order in substance falls under Art. 226, either wholly or partially. Division Bench to which LPA is made, is required to ascertain whether facts justify assertions made in writ petition to invoke jurisdiction under Art. 227 or Art. 226 or under both/whether Single Judge exercised jurisdiction under Art. 227 or Art. 226 or under both having regard to nature, contour and character of his order. [Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1]
Entertainment, Amusement, Leisure and Sports — Tourism — New Package Scheme of Incentives for Tourism Projects, 1995-2000 announced by Gujarat Government — Cls. 4.7(a), 8, 8.1 and 10: As the appellants started constructing the multiplex to avail of the incentives under the Scheme, which promised an initial period for completion of the project under Cl. 10(a) as two years, Cl. 10(b) promised an extension for two years subject to satisfaction of State Level Committee and Cl. 10(c) further entitled such unit to approach the State Government even after the aforesaid aggregate period of four years. Cls. 8 and 8.1 dealt with incentives and period of eligibility which would go up to ten years after a unit was found to be fully eligible. State contended that the Scheme was to remain in force up to 31-7-2000 which period was further extended up to 30-11-2000 and that the Scheme including Cl. 10 in its entirety ceased to be operative thereafter and that the right to seek an extension of the validity period beyond the cut-off date did not survive. It was held that clauses of Scheme [Cls. 4.7(a), 8, 8.1 and 10] clearly show that such stages or eventualities would survive even after the expiry of period of the operation of the Scheme. No fresh application and TRCs could be granted after the period of operation but those who had crossed the threshold and were given TRC, would be entitled to the full benefit of the stages contemplated in S. 10. It would be incorrect to say that all the clauses including Cl. 10 would cease to operate after the period of operation had come to an end. [Devi Multiplex v. State of Gujarat, (2015) 9 SCC 132]
Excise — Dutiable Event/Excisable Goods/Liability/Exigibility to Excise: Excise duty is payable on intermediate goods/products. Hence, transmission assembly which comes into existence during the manufacture of tractors made by the appellant is exigible to excise duty. Fact that not a single sale of such assembly had been made by appellants would have no effect on exigibility. [Escorts Ltd. v. CCE, (2015) 9 SCC 109]
Industrial Disputes Act, 1947 — Ss. 18(3), 12 and 19 — Award passed by Labour Court or Industrial Tribunal: Award passed by Labour Court/Industrial Tribunal is binding till it is substituted by another award/court order/court compromise indicating such substitution, or is replaced by another settlement, or terminated by either party under S. 19(6). Settlement/compromise/scheme in question arrived at before court after passing of awards concerned, did not amount to substitution of the awards in absence of any specific indication as to such substitution given in order passed by court pursuant to compromise. [T.N. Terminated Full Time Temporary LIC Employees Assn. v. LIC, (2015) 9 SCC 62]
Labour Law — Regularisation — Entitlement to regularisation — Employer-employee relationship: For entitlement to regularization, determination of employer-employee relationship is a prerequisite. Status of respondent workers i.e. whether they were engaged by contractor or were engaged directly by appellant Food Corporation of India (FCI) as casual workers needs to be established based on cogent material, before question of regularisation can be considered. Question of regularisation to be decided thereafter as per law. [FCI v. Sankar Ghosh, (2015) 9 SCC 104]
Motor Vehicles Act, 1988 — S. 166 — Age: Since deceased had completed only 45 yrs at the time of accident, age for purposes of award of compensation under 1988 Act to be taken as 45 yrs. [Shashikala v. Gangalakshmamma, (2015) 9 SCC 150]
Motor Vehicles Act, 1988 — S. 166 — Compensation/Damages: As divergent opinions were reflected in Rajesh, (2013) 9 SCC 54 and Reshma Kumari, (2013) 9 SCC 65, regarding addition of income for future prospects vis-à-vis persons who are self-employed or on fixed wages, for compensation, matter referred to larger Bench. [National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166]
Penal Code, 1860 — S. 376 — Rape of minor of unsound mind: As the prosecution case of rape of minor of unsound mind suffers from inherent inconsistencies and flaws, hence, acquittal of respondent-accused by courts below, stands confirmed. [State of M.P. v. Keshar Singh, (2015) 9 SCC 91]
Penal Code, 1860 — Ss. 302/34 — Murder of child — Child offered as sacrifice in practice of Tantrism — Appreciation of evidence: As the case of respondent-accused mainly based on circumstantial evidence, respondent-accused, rightly given benefit of doubt in the case of murder of child. [State of U.P. v. Satveer, (2015) 9 SCC 44]
Penal Code, 1860 — Ss. 406, 409, 415 and 420 — Criminal breach of trust and cheating: As none of the essential ingredients for criminal breach of trust and cheating, which are; entrustment of property/acting as banker, factor, agent, etc./inducement of delivery of property by deception, present in the case, proceedings quashed. [Robert John D’Souza v. Stephan V. Gomes, (2015) 9 SCC 96]
Prevention of Corruption Act, 1988 — S. 19 and S. 13(1)(d) r/w S. 13(2) — Sanction for prosecution: Since power to grant sanction for prosecution already existed with Secretary, Department of Law and Legislative Affairs from February 1988 and Circular dt. 28-2-1998 only clarified that Secretary, Department of Law and Legislative Affairs was competent authority not only in respect of investigations made by Lokayukta Organisations but also EOW. Besides, after amendment of relevant rules, conferred power to grant sanction for prosecution on Secretary, Department of Law and Legislative Affairs, Administrative Department of State had no power to decline sanction, hence, order of High Court quashing sanction for prosecution under Prevention of Corruption Act, 1988, set aside. [State of M.P. v. Anand Mohan, (2015) 9 SCC 35]
Specific Relief Act, 1963 — Ss. 20 and 28(1) — Conditional self-operative decree: As there was non-compliance with conditions of decree, automatic/Deemed dismissal of suit as per terms of decree, proper. [P.R. Yelumalai v. N.M. Ravi, (2015) 9 SCC 52]

Source: Legal news India

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