Interim orders cannot be granted in Arbitration proceedings where claim cannot be specifically enforced

May
11
2017


Bombay High Court in the matter of B E Billimoira and Company Vs Mahindra Bebanco Developers Limited; Commercial Arbitration Petition (Ldg) No.




Calculation of damages on account of defective goods

May
2
2017


Delhi High Court in the matter of Thyssen Krupp Materials Vs Steel Authority of India; FAO (OS) 150/2002 held that Section 73 of Indian Contract Act stipulates the rule of damages for breach of contract, aimed at compensating the injured party, as far as money can, by placing him in as good situation as if the contract had been performed. In regard to defective goods, the measure of damages is usually the price paid for the defective goods to the seller reduced by the price received when such defective goods are sold by the buyer.




Limitation Act applies to Arbitration and Conciliation Act 1996

Mar
17
2017


Delhi High Court in the matter of Jammu and Kashmir State Power Development Corporation Vs K J M C Global Market; FAO (OS) 263/2016 held It is now well settled that the provisions of the Limitation Act, 1963 apply to all proceedings under the Arbitration and Conciliation Act, 1996, including both in court and arbitration proceedings except to the extent expressly excluded by the provisions of the Arbitration Act, 1996. 




Lowest bidder not necessarily entitled to grant of tender

Mar
17
2017


Delhi High Court in the matter of Inderjit Mehta Vs Union of India; WP (C ) 683/2017 decided on 2nd March, 2017 held there is no vested right of a participant in a tender to have an agreement of award concluded in its favour. There cannot be any insistence for carrying on with the tender on the ground that a particular participant was adjudged as the lowest tenderer. All that can be demanded and be ensured to a tenderer is that he is given a fair, equal and non discriminatory treatment in the matter of evaluation of his tender.




Reciprocal Advertising #legalupdates

Mar
2
2017


Hon'ble Delhi High Court in a matter explained propositions relating to comparative advertising which means "any trader is entitled to puff his own goods even though such puff as a matter of pure logic involves the denigration of his rival's goods". Factors constituting disparagement were also laid down which were the intention, the overall effect and the manner of advertising the specific commercial. Taking in account the statements of law in both the commercials, concept of "reciprocal advertisement" was propounded, in which they disgrace each other products with the same level of malicious contents. Hence the court in the aforesaid matter held that interim injunction will not be granted.

Procter & Gamble Home Products vs Hindustan Unilever Ltd. CS (OS) No. 459/16,463/16 and 507/16 decided on 17th February, 2017

 

 




Which orders can be appealed against under Commercial Courts Act #indianlaws

Feb
20
2017


Division Bench of Delhi High Court in the matter of HPL (India) Limited Vs. QRQ Enterprise, FAO (OS) (COMM) No. 12/2017 was considering the effect of Section 13 of Commercial Courts, Commercial division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act).




Courts cannot impose unlimited costs in civil proceedings #indianlaws

Feb
20
2017


Division Bench of Delhi High Court in the matter of Bikramjit Ahluwalia Vs. Avnija Ahluwalia FAO(OS) 173/2016 held that there is no question of exercising of inherent powers contrary to the specific provisions of the Code of Civil Procedure. Under Section 35A CPC, which deals with vexatious litigation and exemplary costs, the outer limit has been fixed. The Courts cannot enforce cost beyond what is prescribed in Section 35A.




Rebutting the presumption against accused in Section 138, N I Act #indianlaws

Feb
13
2017


Delhi High Court in the matter of Mukesh Kumar Vs. State Crl. L P 555/2017 decided on 2nd Feburary, 2017 held the fact that the cheque has been signed by the accused is not denied by the accused, itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration.  The presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption, and the standard of proof required to rebut the said presumption is on preponderance of probabilities.




What is "sufficient cause" in terms of order 37 Rule 4 CPC #indianlaws

Feb
13
2017


Bombay High Court in the matter titled as Purnendu Shekhar Mal Jain Vs. ACG Associated Capsules Private Limited in Appeal (L) no. 98 of 2016 decided on 1st Feb, 2017 held that the words "special circumstances" in Order XXXVII Rule 4 CPC for setting aside ex-parte decree is different from expression "sufficent cause" an application under Order 9 Rule 13 of CPC. The expression "special circumstances" is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex.




A co-owner can maintain suit for eviction without impleading other co-owners

Feb
11
2017


Delhi High Court in the matter titled as  Ram Niwas Singh Vs. Rajendra Singh, RSA 25/2017 decided on 20.01.2017, held that co-owners to a property can file a suit for eviction of a tenant in the property. It was also re-emphasized that there is hardly any distinction between a suit for eviction and recovery of possession against a tenant after determination of tenancy, which determination only a co-owner is allowed to do and thereafter, maintain a suit for eviction of such tenant.




Remedies under Consumer Protection Act are in addition of other provisions for addressing grievances

Feb
11
2017


NCDRC in the matter titled as Western Railway Vs Vinod Sharma First appeal no. 451/2015 decided on 18th January, 2017 has held notwithstanding provisions of Railways Act, 1989 and availability of Railways Claims Tribunal Act 1987, consumer Courts will have the power to adjudicate upon the consumer issues with regard to Railway passengers. It was observed that Consumer Protection Act is a special legislation, enacted to provide better protection for the interest of the consumers in diverse areas.




Insurance Company not liable if the keys of vehicle are left inside the Vehicle

Feb
11
2017


NCDRC (National Commission) in the matter of Mahavir Prasad Gupta Vs Oriental Insurance Co Ltd First Appeal no. 1060/2016 decided on 19th January, 2017 has held that Insurance company would not be liable to pay insured amount to the Claimant, where the keys of the vehicles are left inside the ignition socket as this amount to grave negligence on the part of the claimant.




Mandate of arbitrator shall be terminated where parties agree to terminate proceedings

Feb
11
2017


Delhi High Court in a matter titled as Power Grid Corporation of India Ltd Vs. Deepak Cables (India) Limited; OMP (T)(COMM) 4/2017 decided on 25th January, 2017 held that under  14 (1)(b) of the Arbitration and Conciliation Act 1996  the mandate of an Arbitral Tribunal may be terminated where the parties so agree and the Arbitrator shall terminate arbitral proceedings by or pursuant to an agreement between the parties. The Tribunal is only required to enquire whether, there was an agreement between the parties.




Bar of Section 92 Evidence Act does not operate when the document is sham and not to be acted upon #legalupdates

Jan
11
2017


In a case before the Madras HC, the court relied on judgments by the Apex Court in Gangabai vs. Chhabubai AIR 1982 SC 20 and Ishwar Dass Jain vs. Sohan Lal AIR 2000 SC 426 and held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar of Section 92 Evidence Act arises only when the document is relied upon and its terms are sought to be varied and contradicted.




For an apology to be accepted in contempt proceedings, it should be immediate #indianlaws

Jan
1
2017


Division Bench of Delhi High Court while dealing with a contempt proceedings held that an apology offered in contempt proceedings should be offered clearly and immediately, a belated apology may purge contempt but there is always a risk of it not being accepted. Relying upon a Supreme Court judgement it was held that an apology offered at the time when the contemnor finds that the Court is about to impose punishment, is no apology and can be rejected. Punishment for contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority.




Employer has the independence to decide the eligibility criterion for recruitment #indianlaws

Jan
1
2017


In a case before the Delhi High Court, petitioner was denied appointment on ground that he only had three years diploma in Hotel Management instead of the required graduation degree of a recognized university. The degree required for the recruitment as advertised, was graduation degree.

The Hon’ble Court held that it is privilege of employer to decide the qualifications it wants from a candidate for applying and granting appointment to a post and an employee cannot dictate, that instead of qualifications as prescribed by proposed employer some other qualifications be taken.




Unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty #indianlaws

Dec
14
2016


The Delhi High Court in an appeal before them has held that unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty. In a case filed by a husband against a trial court's order by which the couple, who got married in March 2004, mutually decided to separate but the husband withdrew his consent at the time of recording of second motion. The trial court allowed the woman's petition for divorce on the ground of cruelty. Challenging the trial court verdict, the husband moved the High court in an appeal.




Copyright Act includes all copying done for academic use if“justified by the demands of the course” #indianlaws

Dec
14
2016


The Delhi High Court Division Bench in a landmark judgment has held that photocopying of copyrighted material for use “in the course of instruction” that is allowed under Section 52(1)(i) of the Copyright Act would include all copying done for academic use in a university, as long as the text being copied was “justified by the demands of the course”. The Division Bench upheld the expanded scope of interpretation of “course of instruction” under Section 52(1)(i) to include the entire academic exercise from the setting of the syllabus to the actual classroom teaching.




Is suit for Partition maintainable in presence of a Will? #indianlaws

Dec
14
2016


Delhi High Court in this case had to decide questions relating to whether legal heirs can maintain a suit for partition when the parent has left a will, and second one related to payment of ad valorem court fee when the plaintiff was not in possession of suit property? The court held that there exists in law a doctrine of election. It means that if two or more rights are available to a party on the same subject, it would be open to a party to elect which one right it would like to avail of.




Proviso to Section 34(3) of the Arbitration Act is applicable only when there is sufficient cause for not making the application within the prescribed period #indianlaws

Dec
14
2016


Delhi High Court in a recent judgment has held that for application of the provisions of Section 34(3) of the Arbitration Act and, in particular, the proviso thereto, before the further period of 30 days is triggered, the condition precedent is that the court must be satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed period of three months.




Meaning of Seat of Arbitration#indianlaws

Jun
21
2016


The term "subject matter of the arbitration" cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process.The provision in Section 2(1)(e)has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. The legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process.




Transfer of the minor's immovable property without the permission of the Court is not binding on the minor# indianlaws

Jun
21
2016


Any transfer of the nature mentioned in sub- Section 2 of Section 8 Hindu Succession Act, of the minor's immovable property without the permission of the Court is not binding on the minor irrespective of the fact whether it was necessary or for an evident advantage to him/her and that such a transfer even made with Court's permission shall be voidable at the instance of the minor if he/she can show it does not fall in the category of acts which were necessary or reasonable or proper for the benefit of the minor or for realization, protection or benefit of the minor's estate.




No service tax chargeable in respect of composite contracts like the ones between property buyers and builder# indianlaws

Jun
21
2016


The arrangement between the buyer and the builder is a composite one which involves not only the element of services but also goods and immovable property. In order to sustain the levy of service tax on services, it is essential that the machinery provisions provide for a mechanism for ascertaining the measure of tax, that is, the value of services which are charged to service tax. Service tax since  is a tax on value addition and charges for preferential location in one sense embody the value of the satisfaction derived by a customer from certain additional attributes of the property developed. Such charges cannot be traced directly to the value of any goods or value of land but are as a result of the development of the complex as a whole and the position of a particular unit in the context of the complex. Court accordingly held that no service tax under section 66 of the Act read with Section 65(105)(zzzh) of the Act could be charged in respect of composite contracts such as the ones entered into by the Petitioners with the builder. 




As long tenancy continues to be effective, tenanted premises remains a shared household under Domestic Violence Act #indianlaws

Apr
19
2016


The tenanted premises where a woman lives with her husband would definitely come within the category of shared household but as long as the tenancy survives. A deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant she  would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as by availing the benefit of the provisions of the Transfer of Property Act and rent control legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end. 




Rule of estoppel does not apply to proceedings under Section 13-B of Hindu Marriage Act #indianlaws

Apr
19
2016


When a decree of divorce is sought under Section 13 of the Act, in view of compromise between the petitioner and the respondent, estoppel cannot operate against the Respondent. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. Parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.




Consequences of non- compliance of an order, cannot be avoided on the ground that order was void or a nullity unless declared so #indianlaws

Apr
3
2016


In the context of breach of an interim order, the order can be void or nullity but, the consequences flowing from its non­ compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity. In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground. In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not lose its efficacy only on that ground. The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal. Void order has to be so declared. The party has to approach the Court for seeking such declaration 




Writ Petitions against order passed by DRT in exercise of jurisdiction U/s 17 of the SARFAESI Act cannot be entertained #indianlaws

Apr
3
2016


Writ petition under Article 226 of the Constitution should not be entertained when the alternate remedy is available under the Act, unless exceptional circumstances are made out. The writ remedy cannot be permitted to be availed as a routine/ matter of course, but only in exceptional circumstances.Unless the Court is convinced that the case falls under the exceptional categories, the writ petition filed against the order of the Tribunal, passed in exercise of the jurisdiction under Section 17 of the SARFAESI Act, on account of the legislative intent behind the enactment of the SARFAESI Act and RDDB Act and the ratio of law laid down by the Apex Court cannot be entertained.




Child Marriage does not automatically become void #indianlaws

Mar
9
2016


Section 3 makes provision for avoidance of marriage by contracting party, who was a child at the time thereof, through filing a petition for annulling the marriage by such party. Section 3(3) has to be read that in the case of a male, a petition for annulment of child marriage should be filed before he completes two years of attaining twenty-one years of age. 




TRAI Regulations compensating consumer for call dropping, upheld #indianlaws

Mar
3
2016


Delhi High Court has held that the TRAI under the scheme of Act exercises both regulatory and regulation making powers. The Court stated that the regulation of TRAI which prescribes the liability of the Companies to compensate the consumers is limited only to originating calls with a cap of three calls per day per consumer and nominal compensation of one rupee for each call drop and therefore the impugned regulation cannot be struck down on the ground of being manifestly arbitrary.




Qualification clause for the purposes of pre-natal diagnostic tests(PNDT) invalid #indianlaws

Feb
25
2016


Delhi High Court has held that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognised by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification; Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent that it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in the manner prescribed in the Six Months Training Rules.








© 2010-15