ROAR | Research Opinions and Review

ROAR
Research, Opinions and Reviews:
Registered Users can write a blog/article/post up to 2,000 characters. The entire Law Fraternity is keen to hear from Lawyers, Solicitors, Judges and Legal professionals from respective Bar associations, state and territory to share ideas, give opinions and light on important matters.
Read More...
NEWS
BAR ASSOCIATION
LAW COLLEGE
EVENTS
TEMPLATES
SERVICES
JOB CENTRE
MOOT COURT
SL CONFIDENTIAL
RESOURCE CENTRE
Need a Lawyer
LAWYER’S FEE

Research Opinions and Review (ROAR) Login

Active Members view all

Imtiaz Ahmed (Lawyer)

imtiazahamed219@gmail.com
9903869074
Kolkata, India
Kishan Dutt Kalaskar (Lawyer)

Bengaluru, India
Indirect Taxes/GST/VAT Domestic Violence Will
Rtn. Adv. Sonia Rajesh (Lawyer)

Bengaluru, India
Divorce Domestic Violence 498A
Trademarkclick .com (Law Firm)

New Delhi, India
Intellectual Property Copyrights Trademarks
Rajveer Singh (Lawyer)

Ranchi, India
Marriage Divorce Alimony
Jr. Toprani (Law Firm)

Gurugram, India
Indirect Taxes/GST/VAT Alimony Property Law
Inkeshaf Ahmed Md (Lawyer)

Hyderabad, India
Landlord Sarfaesi DRT
Linda Louis (Lawyer)

Chennai, India
Domestic Violence Criminal Law Constitution Law
Nisha Tyagi (Lawyer)

Adoni, India
Nidaan Intelligence Services (i) Pvt. Ltd. (Intelligence Services)

Jamshedpur, India

Start a Post

Title

Upload Image

EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

Team SoOLEGAL 17 Jan 2020

EVOLUTION OF THE CONCEPT OF CURATIVE PETITIONCurative petition is the last constitutional remedy open to an individual whose review petition has been rejected by Supreme Court. Although the Constitution read more

EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

Curative petition is the last constitutional remedy open to an individual whose review petition has been rejected by Supreme Court. Although the Constitution makes explicit reference to the Supreme Court's review power pursuant to Article 137, it is silent on ' curative jurisdiction.’

In the case, Rupa Ashok Hurra v. Ashok Hurra & Anr the curative petition was shaped and structured, where the apex court reconsidered its judgment in exercising its inherent power to prevent misuse of its proceedings and to cure a serious miscarriage of justice.

In the said decision it was clarified that the Court's curative power derives from Article 142 of the Constitution, which grants the Court the power to do justice.

The Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power", observed the 5-judge bench in that case.

Article 137 of the Indian Constitution supports the idea of curative petition. This provides that the Supreme Court has the right to review any judgment rendered by it in the matter of laws and rules made pursuant to Article 145. Such a petition must be filed within 30 days of the date of the judgment or decision.

WHEN IS A CURATIVE PETITION AVAILABLE TO A PERSON?

a) Violation of the principles of natural justice where he was not a party to the lis but whose rights were adversely affected by the judgment.

b)He was a party to the lis, but the notice of the proceedings was not given and the case continued as if he has the choice.

c)Where a Learned Judge failed to disclose its connection to the subject-matter in the proceedings.

d)The parties to suspect prejudice and the verdict adversely affect the petitioners.

The petitioner shall, in the curative petition thus filed, assert that the reasons given in the petition for review had been taken and that it was dismissed by circulation. The curative petition should also include a Senior Advocate certification for the fulfillment of the requirements set out above.

PROCEDURE FOR FILING A CURATIVE PETITION

1. After an appeal for review against the final sentence is rejected a curative petition may be submitted.
2. It can be pursued if the petitioner claims that there was a breach of natural justice standards and that before issuing an order he was not heard by the court.
3. Curative petitions should be a rarity rather than regular.
4. Curative petition must first be submitted to a Bench of the three highest judges and, if appropriate, the judges who passed the judgment in question. It is only when a majority of judges agree that the matter needs hearing that it should be put before the same Bench.
5. The Bench will ask a senior counsel to assist it as amicus curiae (friend of the court) at any point of consideration of the curative petition.
6. Judges in the chamber usually decide on a curative petition, unless a specific request for an open court hearing is allowed.

REASONS FOR REFUSAL:

It may impose a penalty on the petitioner in case the Bench holds at any point that the petition is without any merit.

A recent examples of dismissed curative petitions-

The Supreme Court has rejected the curative pleas filed in the 2012 Nirbhaya gangrape and murder case by two of the four death row convicts. The hearings were in-chamber.The five judges were unanimous in stating that the two disqualified petitioners did not have any substance in the curative petitions filed.

The bench said “The applications for stay of execution of death sentence are also rejected. We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed,".

FEW EXAMPLES WHERE CURATIVE PETITIONS WERE ALLOWED

The Supreme Court set aside its own judgment which held that the conduct of a woman simply kicking her daughter-in-law or threatening her with divorce would not fall within the scope of "cruelty" pursuant to Section 498 A of the Indian Penal Code. The three judge Bench allowed the National Commission for Women's (NCW) curative petition by restoring the Special Leave Petition.

CONCLUSION

In the case Rupa Hurra V/s Ashok Hurra, the Court gave shape to the contours of curative jurisdiction, in order to do justice. Even though there is a narrow line that differentiates between a curative petition and a petition for review, the apex court has set out specific grounds for filing both of these petitions and this makes it clear that the two petitions are totally different.

Therefore it can be said that the concept of a curative petition is a statutory remedy that is a last resort that arose in order to rectify the Supreme Court's decision by itself as a legal and moral duty in determining the rarest of the rarest case.

1 Like
0 Comment
4968

Like
Comment
Share

Adultery abolished: Section-497 of Indian Penal Code struck down by the Supreme Court

Team SoOLEGAL 16 Jan 2020

A five-judge bench explicitly ruled on 28 September 2018 that Section-497 of Indian Penal Code,1860 is unconstitutional. The Hon’ble Supreme Court has ruled over its earlier judgments. Until now, the Supreme Court in many cases has held that decriminalization of the crime of adultery would erode the sanctity of marriage and the whole fabric of society.

In December 2017, Joseph Shine filed a petition challenging validity of Section-497, the matter was referred to a five-judge bench from a three-judge bench in the Supreme Court.

Issues/ questions raised before the court:

· Whether Section-497 is unconstitutional?

· If adultery should be made gender neutral?

· Women were treated as an object under law, is it justified with regard to current scenario?

History of judicial decisions relating to adultery:

It is obvious from a simple reading to bare provision of Section 497 of IPC that this section punishes the male offender for committing adultery with a married woman without her husband's permission or connivance.

In the case of Yusuf Abdul Aziz v State of Bombay 1954 SCR 930, the accused i.e. Yusuf was on a trial for adultery, he further challenged Section-497 on the grounds that it violates Article-14 of the Constitution. The decision was given against him in the Bombay High Court. He moved the matter to the Supreme Court and argued that Section-497 does only apply to males and confers no criminality on women and is also in violation of Article-14 and 15. The court held against the appeal relying heavily on the provision mentioned in Article-15(3) and the apex court further said that Section-497 is a special provision which is made for women and is saved under the same.

It has to be kept in mind that the Indian Penal Code was framed by Britishers in 1860 when women were considered to be a property of their husband. Back then it was the result of the patriarchal structure and a clear reflection of the same was Section-497.

Further, Justice Nariman said, “the background in which this provision was enacted now needs to be stated”.

In 1860 when Penal Code was enacted, the Hindu majority which was prevalent at that time had no law of divorce as marriage was considered sacramental and also pre-1955 era a Hindu could marry as many wives as he can. By analyzing this Justice Nariman said adultery did not exist at that time as there was no divorce law and a man could marry any number of women.

Back then, the scope of adultery was much wider than it is now. At that time it was termed as a consideration of marriage as a sacred institution and punishment for breach of trust.

Legislative intent: The intent behind Section-497 was that men should be held liable for the offence and this was due to the fact that the position of women during that period was not at par, they were considered to be a property of their husband and the law was to protect interests of women.

Flaws in the adultery laws in India: Then CJI Dipak Misra made certain observations that the adultery law in India was based on a discriminative basis as it assumes one of the parties as victims and the other one as criminal. He also took the ‘consent’ aspect into consideration as it implies that a woman can sleep outside her marriage with the permission of her husband which implies that the husband controls and keeps a check on the sexual autonomy of his wife.

Another major problem has been that instead of dealing with personal issues in marriage, this law gave an opportunity to the married couple to blame a third party because of inadequacy of their marriage. Hence, it would be rather be more sensible to approach the court for mutual divorce rather than putting a third party behind bars.

Decision given by the court:

The Hon’ble Supreme Court struck down the provision and contented that “husband cannot be the master of his wife”

The Court observed:-

· Section-497 is archaic and constitutionally invalid- Section 497 disposes women of their autonomy, their independence and their privacy. It is seen as a violation of their right to life and personal freedom by embracing the notion of marriage that overthrows true equality. Equality has been overthrown by introducing penal code penalties for a gender-based approach to man-woman relationships. Under Article 21 of the Constitution of India, sexual integrity falls within the domain of personal liberty.

· Adultery is no longer a criminal offence- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

· Husband is not the master of his wife- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

After the historical verdict, it was expected to have mixed opinions amongst the community as some critics were in favor of the verdict and some were opposing the decision. People who were in favor of the verdict had put forward their views that the society perceives adultery as incorrect and a moral wrong. The law of adultery was constituted in the past because of the weaker position of women and to safeguard their safety which was more or less in the hands of their husbands Although now the situation has changed and women have become more independent and literate.

Critics who are opposing the notion said it is influenced by western culture and it should be noted that divorce rates in western countries are 52% and rising and they do not want India to follow the same trend. Further, in order to sustain marriage it is recommended to not encourage extra-marital affairs.

The intention behind passing of adultery law was misinterpreted by people; the law only had one intent behind it which was to protect interests of women with keeping in regard the position of women in the society at that time. But, the fact that women nowadays are getting independent and so much aware of their rights and society as a whole, needs consideration and with due regard this law should have been reformed as it has been by the Apex court in this case.

It must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not be criminal, and a remedy may be found in civil law, where adultery already has a place. It is a ground for divorce in personal laws.

0 Like
0 Comment
3658

Like
Comment
Share

Delhi High Court Critics Bare Denials And Decrees A Suit, Considered Suzuki a Well-known Mark

Parul Madaan 16 Jan 2020

Suzuki Motor v Suzuki (India) LimitedSuzuki Motor (Plaintiff) filed a lawsuit along with an interim appeal seeking injunction against the defendant and other co-defendants for violating their trademark read more

Suzuki Motor v Suzuki (India) Limited

Suzuki Motor (Plaintiff) filed a lawsuit along with an interim appeal seeking injunction against the defendant and other co-defendants for violating their trademark / trade name / corporate name Suzuki. The Defendant and the other co-defendants were injuncted by provisional order of the court. However, the other co-defendants were excluded during the trial stage as they were not necessary parties. Therefore, during the trial stage, the Defendant was the only disputed entity. The plaintiff sought a decree against the defendant pursuant to Order XII Rule 6 of the CPC, as the only defense raised by the defendant in his written statement was questioning the Court's territorial jurisdiction on the ground that the defendant does not have a office in Delhi, which he failed to prove.

The Plaintiff's submissions were as follows:

1. Since its inception / incorporation in 1909, the Plaintiff has being using the trade mark Suzuki as part of its corporate name. Suzuki, being the Plaintiff's founder's family name, is in no way linked to the Defendant;

2. The Plaintiff is the registered owner of the Suzuki trade mark in several countries around the world, including India; his earliest Indian registration dates back to 1972.

3. In 1982, the Plaintiff entered into a joint venture with the Government of India and also licensed its technology to Maruti Suzuki India Limited, a joint venture; the Plaintiff made extensive efforts to promote and publicize the same.

4. Around 1982, the Defendant adopted its corporate name Suzuki India Limited in relation to its financial and investment business with a malicious and dishonest intention to embrace the tremendous goodwill, name and reputation acquired by the Plaintiff and to pass off and mislead the public that the Defendant's business was related to that of the Plaintiff;

5. The defendant is not justified in using a Japanese surname and the defendant should have knowledge of the statutory and exclusive right of the Plaintiff to use the Suzuki trade mark

6. The explanation given (during the hearing) by the Defendant's Managing Director that his father knew someone by Suzuki's name is an afterthought;

7. Pursuant to the provisions of the CPC, pleadings in the written statement should be clear and an evasive denial of the evidence claimed in the complaint would be considered to be an admission under Order VIII Rule 3 and Rule 5 of the CPC and, thus, the Court would pass a judgment against the defendant under Order XII Rule 6 of the CPC.

The Defendant’s submissions were as follows:

1. The Defendant is an honest and concurrent user and, since 1982, the Defendant has acquired considerable credibility because of its continuous and uninterrupted use of the Suzuki trade mark / brand as part of its trade name Suzuki India Limited.

2. The present case brought in 2005 amounts to an acquiescence on the part of the Defendants after a delay of more than 25 years.

3. The name Suzuki was adopted because the father of the Defendant's Managing Director knew someone by Suzuki's name.

4. That the Plaintiff's use of Suzuki relates exclusively to Automobiles, therefore, claim control over all classes of goods;

5. That an injunction is not required pursuant to Order XII Rule 6 of the CPC since the defendant made no admission in the written statement.

The Court found that in the present case the defendant chose not to deny the claim of the plaintiff that the adoption of the Suzuki mark by the defendant was deceptive, calculated to be deceiving, and that the defendant had constructive knowledge of the statutory and exclusive right of the plaintiff over the Suzuki mark. The Defendant also refused to dispute that at the time of the adoption of its mark it was fully aware of the Plaintiff's mark Suzuki and that the defendant's wrongful use of the mark Suzuki would cause harm to the Plaintiff and his goodwill and credibility painfully established by the Plaintiff over the years at considerable cost.

On the Defence of 25 years delay and concurrent consumer, the Court also observed that the defendant, being a fraudulent infringer, could not complain of delay and hide behind the defense of delay, laughter or consent as the infringement itself was fraudulent at the very initial stage. The delay and laches alone would not confer legitimacy character on fraud. Since the adoption of the trademark was fraudulent, a delay in bringing an action is not enough to negate the injunction award.

On the argument that the nature of the business of the defendant is different, the Court observed that it is not appropriate, with the evolving principle in the passing-off rule, that the plaintiff and the defendant should engage in the same business field. The Court held that ample material had been collected by the plaintiff to prove that the Suzuki mark of the plaintiff was a well-known mark in India back in 1982 when the defendant took the same. In the industry the name Suzuki has gained distinctive. Accordingly, under Order XII Rule 6 of the CPC, the suit was decreed in favor of the Plaintiff with a finding that Suzuki is a well-known mark.

0 Like
0 Comment
1367

Like
Comment
Share

PROPRIETOR OF A TRADEMARK CANNOT ENJOY MONOPLOLY OVER ENTIRE CLASS OF GOODS

RISHABH SACHDEVA 16 Jan 2020

M/S. Nandhini Deluxe vs M/S. Karnataka Cooperative Milk 9 SSC 183ISSUE:- The dispute is about the use of a mark ' NANDHINI ' under Section 1, 9 11 and 18 of the Trademark Act,1999.It read more

M/S. Nandhini Deluxe vs M/S. Karnataka Cooperative Milk 9 SSC 183

ISSUE:- The dispute is about the use of a mark ' NANDHINI ' under Section 1, 9 11 and 18 of the Trademark Act,1999.

It is important to note that in Bangalore both the Appellant and the respondent carry on business. In the year 1985, KARNATAKA CO-OPERATIVE MILK adopted the aforementioned Trademark' NANDINI' and produced and sold milk and milk products under this brand name. they had this trademark registered under Class 29 and Class 30 as well. On the other hand, the appellant is in the business of running restaurants and in 1989 he adopted the' NANDHINI’ Tademark for his restaurants and applied for the registration of the said mark in respect of various food items sold by him in his restaurants. The respondent had objected to the registration and the respondent's objections were rejected by the Trade Mark Deputy Registrar and gave decision in favour of appellant. This order discloses that the applicant's application for registration of the trade mark ' NANDHINI DELUXE WITH LOGO (Kannada) had been transferred herein.

The respondent objects to the appellant on the ground that it is deceptively close to the respondent's mark and is likely to deceive the public or cause confusion. The respondent approached the Intellectual Property Appellate Board when those complaints were dismissed by the Deputy Registrar and the registration issued to the appellant. The appeal have been accepted by the IPAB. Registration was objected to under Sections 9,11,12 and 18 of the Act. The IPAB rejected the respondent's opposition to the registration of a trade mark ' NANDHINI ' as demanded by the appellant and enabling the appellant to apply for registration, except for milk and milk products. The IPAB noted that the respondent deals with milk and milk products in the instant case whereas the appellant deals with other items such as meat and fish etc. The High Court upholding the IPAB's and dismissing the appellant's written petitions herein did nothing but accept the IPAB's foregoing reasoning, namely that

(a) the NANDINI mark retained by the respondent acquired a distinctive character and became well-known;

(b) the use of another mark differed only in one alphabet but without any differences;

(c) the appellant's claim that the restaurant business had been in service since 1989 and that since 1985 the respondent had started to use the mark ' NANDINI ' only for milk and not for other items was dismissed on the grounds that there was no justification for the aforementioned statement and that no evidence was created to substantiate the same argument.

SUPREME COURT OBSERVATION

The Hon’ble SC relied on National Sewing Thread Co. Ltd. vs. James Chadwick and Bros, accepted the following principle of this case which are applied to this case which states that “ The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of Section 8 and therefore it should be registered. Moreover in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark .

Applying the aforesaid principle described above to the instant case, the SC considers that not only the visual appearance of the two marks different, they also apply to different products. However, it is difficult to imagine that an average man of ordinary intelligence will equate the appellant's goods with that of the respondent in the manner in which they are exchanged by the appellant and the respondent, respectively, illustrated above. Another significant factor that both the IPAB and the High Court have lost sight of is that the appellant runs a restaurant under the ' NANDHINI ' trademark and applied the trademark for products such as coffee, tea, cocoa, sugar, rice, rapioca, sago etc. Having reached the above conclusion, the High Court's argument that the products belonging to the appellant and the respondent (although the essence of the goods is different) belong to the same class and it would therefore be inadmissible for the appellant to have the registration of the trade mark in question in his favour, would have no significance.

As a result, IPAB and High Court orders are rescinded. These appeals are permitted and the order of the Deputy Registrar granting registration in favor of the appellant is hereby restored, subject to the amendment that the registration is not issued in respect of those milk and milk products for which the appellant has abandoned his argument.

0 Like
1 Comment
1238

Like
Comment
Share

Essentials of a valid contract under the Indian Contract Act, 1872

Lakshay Parmar 13 Jan 2020

Essentials of a valid contractA contract defined under Section-2(h) of The Contract Act, 1872(hereinafter referred to as “the act”) means “any agreement which is enforceable by law”. Contracts can be read more

Essentials of a valid contract

A contract defined under Section-2(h) of The Contract Act, 1872(hereinafter referred to as “the act”) means “any agreement which is enforceable by law”. Contracts can be written by using formal or informal terms, or could be entirely verbal or spoken.

According to Salmond, “A contract is an agreement creating and defining obligation between two or more persons by which rights are acquired by one or more acts or forbearance on the part of others”.

There are certain elements that, when fulfilled, would constitute a valid contract and contrary to that it would be considered null and void depending on the circumstances. Section-10 of “the act” enumerates certain conditions which must be fulfilled in order to constitute a valid contract.

1- Offer and acceptance: There needs to be a lawful offer and acceptance to form a contract. The term 'lawful ' means that, in relation to this, the offer and acceptance must meet the requirements of the contract act. The offer or proposal is defined under section-2(a) of the Contract Act. Section-2(b) of the Act provides that when an offer is accepted then it becomes a promise.

Mere knowledge of the contract does not constitute acceptance, it must be expressed as was held in the case of Lalman Shukla v Gauri Dutt.

2- Intention of creating a legal relationship: There must be a clear intention among the parties that the agreement should be attached by legal consequences and create a legal obligation. What this means are those arrangements which are not enforceable by law, e.g. social or domestic agreements between spouses or friends, which cannot be enforced in a court of law would not constitute contract. Legal relationship will be implied when failure of a said act mentioned in the contract would result in legal consequences.

3- Lawful Consideration: In Currie v. Misa, Justice Lush defined consideration, “A valuable Consideration in the sense of law may consist either in some Rights, Interest, Profit or Benefit accruing to one party or some forbearance detriment, loss or responsibility given, suffered or undertaken by the other”. Consideration means ' something in return ' which means that the parties have to accrue in some form, whether it be profit, rights, interest, etc. or agree to have some form of beneficial "consideration."

Section-25 states that any contract without consideration is void as it is considered the essence of a contract. However under section-23 there are certain considerations that would be unlawful as:

· They are forbidden by law.

· It is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent.

· It involves or implies injury to the person or property of another.

· The Court regards it as immoral or opposed to public policy.

If even one of these conditions is fulfilled, it will further render the agreement illegal.

4- Parties must be competent to contract: In order to constitute a contract, the parties engaging in the same must be competent to contract. Section 11 of “the act” states the criteria of parties who are competent to contract:

· The parties must attain the age of majority i.e. 18 years. An agreement with a person who is a minor, will be considered void ab intio(Mohri Bibi v Dharmodas Ghose, 1903)

· The person must be of sound mind i.e. not an insane person.

· He/she should be disqualified from the law to engage in a contract.

5- Free consent by the parties: This implies to the fact that parties entering into a contract shall enter with their free will and their decision of engaging should not be influenced by any external factors. Section-14 of “the act” deals with free consent and provide certain factors, if so found, would deem a contract invalid. These factors are-

· Coercion: Committing any act forbidden by the Indian Penal Code or unlawful detain of property, or threatening to commit these acts.

· Undue influence: The use of one party’s dominant position to hold an unfair advantage over other party.

· Fraud: When a party makes presentation of the terms of contract with the intention to cause damage to the other party, it amounts to Fraud.

· Misrepresentation: False representation of facts

· Mistake: While engaging in a contract, there should not be any mistake (either of fact or law) from both or either of the parties.

Further, for a contract to be valid in the eyes of law , it shouldn’t be expressly declared void for example agreement without consideration(Section-25), agreement in restraint of marriage(Section-26), agreement in restraint of trade(Section-27), agreements in restraint judicial proceedings(Section-28), an agreement by way wager(Section-30) etc.

0 Like
2 Comments
30074

Like
Comment
Share

What is offence? Or what acts ammount to an offence?

NOUSHAD KHAN 12 Jan 2020

Offence means an act or instance of offending, 'commit an illegal act' and an illegal means, contrary to or forbidden by law'. "Offence" has been prescribed under the provisions of Sections 40,41 and read more

0 Like
0 Comment
1261

Like
Comment
Share

Section-87 of the Arbitration and Conciliation (Amendment) Act 2019 quashed by the Supreme Court

Team SoOLEGAL 10 Jan 2020

Section-87 of the Arbitration and Conciliation (Amendment) Act 2019 quashed by the Supreme CourtIn a case between Hindustan Construction Company v Union of India, WP (CIVIL) NO. 1074 OF 2019, the Hon’ble read more

Section-87 of the Arbitration and Conciliation (Amendment) Act 2019 quashed by the Supreme Court

In a case between Hindustan Construction Company v Union of India, WP (CIVIL) NO. 1074 OF 2019, the Hon’ble Supreme Court of India quashed Section-87 of the Arbitration and Conciliation Act (hereinafter referred to as “the Act”) through an amendment in 2019.

The quashing of Section 87 by the apex court marks another turning point in the arbitration law in India. The bench lead by Justice R.F Nariman criticized the respective provision by saying that “it turns the clock back and pushes the firms into insolvency due to the delay in enforcement of awards”.

Background/facts of the case: The case was filed by the Hindustan Construction Company (HCC) through a writ petition under Article 32 of the Constitution of India. The contention by the petitioner was, due to this provision they were forced into insolvency even though the NHAI (National Highway Authority of India) owed them an amount which was over ₹6000 crore.

Chronology of the issues: The core issue of this case involves two amendments to “the Act”, one was in 2015 and the other one was in 2019 and also with a provision that was present in the parent Act i.e. 1996.

Section 36 of the Arbitration and Conciliation Act, 1996 provided that an arbitral award would be enforceable as a decision only after either (a) a complaint pursuant to Section-34 of the Arbitration Act contesting an arbitral award has been dismissed or (b) the time limit for contesting an arbitral award pursuant to Section 34 of the Arbitration Act has expired. In other words, if a petition under Section-34 (Challenge to an award) is in its pending stage, an arbitral award, even though awarded cannot be enforced unless the conditions above are not fulfilled. This clogged the rights of a bona fide award holder and was subsequently termed as “Automatic stay”.

In 2015, an amendment was made in the Act with the aim of reducing delay in the arbitration proceedings and enforcement of awards. The main significance of the amendment was the substitution of Section 36 which implied that although previously challenging an award under Section-34 would constitute an “Automatic stay” but after the amendment mere challenging an award would not constitute an “automatic stay”, unless a specific stay has been granted by filing a separate petition.

Further, Section-26 of the 2015 amendment specifically specified that the 2015 amendment will extend to arbitral proceedings commencing on or after 23 October 2015 (hereinafter referred to as “Cut-off Date”).

Hence, despite the substitution of Section 36, the concept of “Automatic stay” was still holding its value in cases where petitions of Section 34 were pending as on the “cut-off date”.

Furthermore, in 2018, in the case of BCCI v Kochi Cricket , (2018) 6 SCC 287 the question of interpreting Section-26 of the 2015 amendment and its applicability to the proceedings pending before such amendment was put before the Indian Supreme Court. The Supreme Court observed that Section 36 is a procedural provision and a judgment debtor is unable to enjoy the substantive right of an automatic stay on the execution of an arbitral award when filing a petition under Section 34 of the Arbitration Act.

In view of the observations made, the Supreme Court held that substituted Section-36 of the Arbitration Act also applies to arbitral awards in situations where a complaint has already been filed pursuant to Section-34 of the Arbitration Act as of the Cut-off Date.

Introduction of Section-87 to the Act by 2019 Amendment:

The introduction of Section 87 in the Arbitration Act was one of the major amendments introduced by way of amendment made in 2019, which provided that 2015 amendment would apply only to the arbitral proceedings initiated on or after the “Cut Off Date” and to such arbitral proceedings. In furtherance to this, Section-15 of the Amendment also omitted Section-26 introduced by way of the 2015 Amendment.

The main impact of this legislation was that it nullified the ruling given in BCCI v Kochi Cricket case and it restored the position before the 2015 Amendment i.e. “Automatic stays”.

In the present case of Hindustan Construction Company (HCC) v. Union of India, the 2019 amendment was questioned before the Indian Supreme Court on the grounds of the application of Section 87 of the Act and the abolition of Section 26 of the 2015 amendment.

In BCCI v. Kochi Cricket, the Supreme Court of India explained that the new Section 36 adopted by way of the 2015 amendment would also extend to awards in cases where a petition pursuant to Section 34 of the Act had already been lodged as on / before the Cut-off Date, thus abolishing the grant of an automatic stay pursuant to Section 34 of the Act on merely pending of the petition. The Supreme Court's view was seen to be in line with the purpose of the 2015 amendment, i.e. reducing the delay in arbitration proceedings and enforcing the resulting arbitral awards. The apex court further observed that due to the delay in enforcing arbitral awards because of an automatic stay granted to the judgment debtor as a "claimed right" or "privilege" defeats the purpose of granting the relief by way of passing an award.

Justice Nariman, in his judgment stated that “An arbitral award-holder is deprived of the fruits of its award— which is usually obtained after several years of litigating— as a result of the automatic stay, whereas it would be faced with immediate payment to its operational creditors.”

For the aforesaid reasons, the Supreme Court has struck down Section-87 ruling that it defeats the purpose of the 2015 Amendment as it not only hinders the enforcement of arbitral awards and delays the arbitral proceedings but also results in interruption in seeking relief and justice leaving the scope of judicial intervention.

0 Like
0 Comment
3326

Like
Comment
Share

Impact of Social Media on the Functioning of the Indian Government: A Critical Analysis

Prof.(Dr.) Priya Sepaha 7 Jan 2020

Social media has loomed as the most effective tool in recent times to flag the causes, contents, opinions and direction of any social movement and has demonstrated that it will have a far-reaching effect read more

0 Like
4 Comments
1940

Like
Comment
Share

Conundrum between "Seat" and "Venue" of arbitration and case laws

Lakshay Parmar 4 Jan 2020

Seat of the arbitration The arbitration seat is a vital aspect of any method of arbitration. The situs is not just about where an organization is located, where trials are going to be held, or read more

Seat of the arbitration

The arbitration seat is a vital aspect of any method of arbitration. The situs is not just about where an organization is located, where trials are going to be held, or where a good pool of arbitrators can be found. It also deals with which courts have supervisory jurisdiction over the arbitration and the scope of those powers. A recent Commercial Court decision reminds us that while the governing law of an arrangement may provide for one national law that may suit the nationality of one or both parties, it is the seat of arbitration that is essential for the security and enforceability of an arbitral award.

In cases where a seat in the arbitration clause has not been allocated by the parties and there is no default seat under the arbitration rules, confusion may arise as to which statute governs the proceedings and which courts administer the arbitration. It is always recommended that parties specify the seat of arbitration in the clause, in case of failure of specification the arbitral rules will usually decide the seat. However, the rules can differ significantly in the same.

Parties should avoid giving the respondent the unilateral right to select a seat, as was the case in the case of Taizhou, because unless the parties have agreed on the law governing the arbitration clause, this approach will not only lead to uncertainties, but will also give the recalcitrant respondent the opportunity to try to frustrate the arbitration by selecting a seat under the law of which the arbitrator is responsible.

Confusion between “seat” and “venue” of arbitration

Place of arbitration.—(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

The main difference between the “place/venue” of arbitration and seat of the same lies in the fact that place/venue only determines the physical location where arbitration will take place and “seat” of arbitration determines the court having jurisdiction over the nullity claim of an award

Cases with reference to the arbitration in Singapore and India.

Judgements: The Supreme Court noted in the case of Union of India v Hardy Exploration and Production that “seat” and “place” of arbitration can be used interchangeably where there is no agreement between the parties on the place of arbitration, the arbitral tribunal the decide the same.

The Supreme Court stated that although the award had been signed and announced in Kuala Lumpur, the place of arbitration by the arbitral tribunal had not been specifically decided. The Court held that a constructive act and an express opinion would require "determination." The Supreme Court overturned the Delhi High Court's judgment and held that the Kuala Lumpur was the venue. The Supreme Court held that the Indian courts would have jurisdiction to consider the appeal to set aside the award pursuant to s.34 of Part I of “The Arbitration And Conciliation Act, 1996”, as the award given is not an "international award."

Through this judgment, the Supreme Court has stipulated and reiterated the manner of determination of the seat of arbitration as below: Parties can expressly agree upon the seat or place of arbitration in their arbitration agreement; If the seat is not expressly agreed upon, it can be deduced from the arbitration clause and concomitant factors, such as the venue and an additional factor; The seat of arbitration can also be determined through the incorporation of rules such as the Model Law in the arbitration agreement, which stipulates that if parties do not agree on the place of arbitration, the same shall be determined by the arbitral tribunal.

Arbitration system in Singapore

Of 452 new cases earned in 2017, the Singapore International Arbitration Center or SIAC is one of the fastest growing arbitration institutions in the world. In compliance with the SIAC Arbitration Rules, the parties to a contract can agree to refer their disputes to arbitration. By doing so, the parties agree that their disputes will be decided in arbitration and that, in addition to any necessary rules at the arbitration seat, the arbitration proceedings will be controlled by the procedural rules in the SIAC Arbitration Rules. The arrangement between the parties is generally reported in an arbitration clause.

The Singapore courts ' approach to assessing the controlling or' proper' law of the contract is set out in Overseas Union Insurance Ltd v Turegum Insurance Co(' Teregum Insurance') and includes three phases not unlike those applicable in the arbitration agreement's governing rule:

(a) Examine the contract itself to decide whether it clearly specifies what the governing law is.

(B) In the absence of an explicit clause, see whether it is possible to infer from the circumstances the intention of the parties as to the governing statute.

(C) If none of the foregoing can be done, determine the legal system with which the contract has the most real and close connection.

Case law where the seat of arbitration was in question and further the law governing the arbitration

:BNA v BNB and another (2019) SGHC 142

The conflict between the parties emerged from a Takeout Agreement ("TA"). The agreement stated explicitly that it was regulated by PRC law. The arbitration provision provided for eventually "submitting disputes for arbitration in Shanghai to the Singapore International Arbitration Center" (SIAC), "which would be administered under the SIAC Arbitration Rules. Nevertheless, there was no clear choice of law provision in the arbitration clause.

Subsequently the defendants commenced the proceedings against the plaintiff in the SIAC (Singapore International Arbitration Centre). The plaintiff then challenged the tribunal’s jurisdiction stating that the arbitration was invalid PRC law as it prohibits any foreign arbitral institution such as SIAC from administering a PRC seated administration.

Singapore’s High Court decision-

The Court found that the arbitration clause applied to two geographical locations, namely Singapore and Shanghai, in deciding the seat of arbitration selected by the parties. The arbitration clause did not state clearly that Shanghai was the legal seat or just the location. The seat decides which legislation regulates and supervises the arbitration proceedings. The empirical site, on the other hand, is simply the geographical location where trials and other proceedings are conducted.

The Court noted that the SIAC Rules, which had been incorporated by reference into the arbitration clause, established that Singapore was the seat of any arbitration under the SIAC Rules in the absence of a counter-agreement by the parties or a counter-agreement by the court. The Court concluded that the specific reference to the SIAC Rules was the clearest possible expression of the intention of the parties to have all potential arbitrations under their Singapore arbitration clause.

The Court put particular importance on the fact that the arbitration clause of the parties merely referred to Shanghai as a city, rather than the PRC, being a "law district" that could be perceived as a reference to a location rather than a position. The Court contrasted this with the (indirect) reference to Singapore as the seat under the rules of the SIAC.

The problems in this case could have been avoided if the seat of arbitration was designated in clear terms and by avoiding giving mere references to geographical locations without designating them as “seat”.

The parties must also keep in check whether any restrictions under any applicable national law may apply as in this case the PRC law.

In case where “seat” of arbitration is not specified or there is conundrum on the determination of “seat” or the “venue” in the arbitration agreement, what can the parties sort to-

There can be sometimes a defect in the arbitration agreement with respect to either “seat” or the “venue” of the proceedings. Firstly the difference between both the terminologies was given by the supreme court in the case of Union of India v Hardy exploration and production as mentioned earlier in the article that-

The arbitration seat is a vital aspect of any method of arbitration. It is not just about where an organization is located, where trials are going to be held, or where a good pool of arbitrators can be found. It also involves which courts are responsible for supervising the arbitration and the extent of those powers. The “seat” of the arbitration will decide which law will govern the dispute(if any arises)

in the future between the parties. There should be a clarity in the agreement by the parties as to the determination of the seat of the proceedings as in absence of that clarity it will lead to confusions and large amount of time and resources can be wasted.

Whereas the “venue” only means a physical location as to where the arbitration proceedings will be held it does not confer which law or institution will govern the proceedings. In an agreement “venue” only means where the case will be constituted physically and does not relate to the law governing unless there is no specific condition precedent attached to it or something, reference to the case of Union of India v Hardy exploration and production court held that “mere the arbitrator meeting and signing the award in Kuala Lumpur does not amount to the determination of the seat unless a condition is attached to it as a “concomitant”.

In case where there is a dispute which is subject to arbitration and in the agreement parties are failing to determine a “seat” for the proceedings and also there is a confusion as to which law will govern the proceedings, the issue will be settled as mentioned in the case of BNA v BNB and another and it also provided the clarity on the what law will govern the proceedings. This case followed a three stage approach while determining the law governing the case, that approach was adopted by the tribunal from the “Sulamérica” case. That approach involved three determinants as to find the seat in the arbitration agreement:

a) Have the parties expressly chose the proper law on which the proceedings will be governed?

b) If not, is there any implied intention by the parties of choosing the law governing?

c) If there is no express or implied intention as to which law will govern the dispute, it is said to be the law which will have the most close and real connection with the dispute.

The cases mentioned above were adjudicated by the courts but in the end there was still a sense of ambiguity and confusion among the people as to the respective decisions and the court while deciding the cases also held that (a) the arbitration agreement must be treated as any commercial agreement, (b) the agreement should be construed as to reflect the parties intention to arbitrate,(c) if there is any defect in the arbitration the whole agreement should not considered void ab intio unless the defect is fundamental to the extent that it negated the parties interest to arbitrate.

In the end it is always recommended that while constituting an agreement parties should have a clarity and must clearly specify the “venue” and “seat” in the agreement if they want them to be distinct from each other.

0 Like
6 Comments
5176

Like
Comment
Share

Sexual Offences Against Children: “For an Inhuman Act there should be an Inexorably Punishment”

Parul Madaan 4 Jan 2020

Sexual Offences Against Children: “For an Inhuman Act there should be an Inexorably Punishment”Children are prone to violence and abuse due to their tender age. They can also be vulnerable to adverse read more

Sexual Offences Against Children: “For an Inhuman Act there should be an Inexorably Punishment”

Children are prone to violence and abuse due to their tender age. They can also be vulnerable to adverse influences and ' at-risk ' behavior because of several reasons. As child exploitation has existed in the form of sexual molestation, child marriage, underfeeding, verbal abuse, child prostitution, child pornography, child abduction, incest, robbery, child labor, child trafficking, child abuse, etc. In this context, child protection is considered one of the main responsibilities of both the government and society to take preventive steps in a strong and positive way through various laws and policies while taking into account the difficulties and problems faced by the children.

According to the National Crime Records Bureau’s report, in the last few months, i.e. between January 1, 2019 and June 30, 2019, there were 24, 212 cases of child abuse reported in India, meaning 4,000 cases in a month, 130 in a day and one in every five minutes. The judiciary has given paramount importance to ensure holistic development of child’s physical, emotional, intellectual and social faculties.

Recently the Bombay High Court in the case Baburao @Sagar Rupaji Dhuri versus The State of Maharashtra , Criminal Appeal No. 1068 of 2018 IN POCSO SPL. CASE NO. 295 OF 2015 That, in her neighborhood, the victim, an five-and – a – half-year-old girl came to play a boy when the Appellant brought the girl to his home on the excuse that he'd have her songs on his cellphone and later PW 6 (eyewitness) asked PW 3 (mother relative of the victim) to see what the victim was doing when PW 3 looked at the house, when she saw that the victim was forced to lie on the ground. Victim told PW3-M that when she went to look for Babu to play, the appellant took her into the house, clamped the door from the inside, pulled her slacks down and put her lying on the ground in a prone position..

It was specified that, pursuant to Rule 33(7) of the POCSO Act, the victim's identity as well as all members of the family, friends, community or any other details disclosing the victim's identity must be concealed.

In compliance with Sections 376, 342, 366A, 377 of the IPC read with Sections 6 and 10 of the POCSO Act, Investigating Officer laid a charge sheet. Special Judge convicted and sentenced the defendant after considering the evidence on record and hearing the prosecution and defense.

By referring to the Forensic Science Lap report, counsel for appellant Aniket Vagal argued that there was no detection of male DNA in the victim's vulval swab or anal swab.

While opposing the claim of the appellant's lawyer, APP, S.V. Gavand argued that there was no need to refer the medical evidence because the appellant had been stopped from inserting his penis in the anus of the victim. Appellant has violated the victim's trust that used to call him ' Dada. ' She was with that of the appellant in a fiduciary capacity. Therefore, it is argued that this is not a case where the appellant must be shown leniency.

Appellant was about to commit aggravated penetrative sexual assault on PW 2 but he was unable to succeed in his malicious scheme due to PW 3's interference and thus the act was actually about to be completed by him as he had already begun to move his penis over the victim's back.

The appellant made an attempt to commit an act of aggravated penetrative sexual assault and, therefore, by passing an appropriate sentence of imprisonment, the trial court correctly appreciated all the circumstances and facts recorded.

Bench cited the case of the Supreme Court – Madan Gopal v. Naval Dubey, (1992) 3 SCC 204, in which it was held that "offenders threatening civilized society should be punished in the most severe terms mercilessly and inexorably." The bench also noted that the Court is loud and clear in the above-mentioned case as to how such crimes should be dealt with which are challenges to civilized society and should therefore be punished inexorably and mercilessly.

There is no question in the present case of the appellant's reformation as he was quite an adult male who knew the consequences of his act.

0 Like
1 Comment
2166

Like
Comment
Share

SAARTH A SoOLEGAL Technologies Initiative

New Members view all

Suryansh Dwivedi (Lawyer)

Allahabad, India
A & J Advocates (Law Firm)

Kochi, India
Divorce Conjugal Rights 498A
Shantanu Sinha (Lawyer)

Kolkata, India
Adv Shaikh Zafar (Lawyer)

Bhusawal, India
Divorce Alimony Conjugal Rights
Adv Aditya Mishra (Lawyer)

Allahabad, India
Osama Ikram (Tax Lawyer)

Moradabad, India
Metis Law Chamber (Law Firm)

Mohali, India
Vivs Analytics (Consultant)

Navi Mumbai, India
Ra & Associate (Lawyer)

Glendale, United States
Arshiya Bari (Lawyer)

Muzaffarpur, India

Legal News Headlines

Legal Notice issued to CM Bhagwant Maan…

21 Mar 2024 4:16pm
Justice Ritu Bahri Becomes First Woman Chief…

5 Feb 2024 4:11pm
The Alliance for Corporate Counsel and Company…

18 Oct 2023 11:00am
Create WhatsApp group for each criminal…

26 Sep 2023 12:28pm
Delhi High Court allows Delhi University…

20 Sep 2023 12:03pm

C2RM… To Know More

Something Awesome Is In The Work

DAYS

HOURS

MINUTES

SECONDS

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.

EVOLUTION OF THE CONCEPT OF CURATIVE PETITION

Adultery abolished: Section-497 of Indian Penal Code struck down by the Supreme Court

Delhi High Court Critics Bare Denials And Decrees A Suit, Considered Suzuki a Well-known Mark

PROPRIETOR OF A TRADEMARK CANNOT ENJOY MONOPLOLY OVER ENTIRE CLASS OF GOODS

Essentials of a valid contract under the Indian Contract Act, 1872

What is offence? Or what acts ammount to an offence?

Section-87 of the Arbitration and Conciliation (Amendment) Act 2019 quashed by the Supreme Court

Impact of Social Media on the Functioning of the Indian Government: A Critical Analysis

Conundrum between "Seat" and "Venue" of arbitration and case laws

Sexual Offences Against Children: “For an Inhuman Act there should be an Inexorably Punishment”

C2RM… To Know More

Something Awesome Is In The Work

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

SAARTH… To Know More

Launching Soon : SAARTH, your complete client, case, practise & document management SAAS application with direct client chat feature.

If you want to know more give us a Call at :+91 98109 29455 or Mail info@soolegal.com

C2RM… To Know More

Something Awesome Is In The Work

Sign-up and we will notify you of our launch.We’ll also give some discount for your effort :)

SAARTH… To Know More

Launching Soon : SAARTH, your complete client, case, practise & document management SAAS application with direct client chat feature.

If you want to know more give us a Call at :+91 98109 29455 or Mail info@soolegal.com

Upload Document

Edit Documents

INVOICE

Invoice: Share & Send

Add Client

Client Details

Add Client Address2

Delete Confirmation

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)