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• 2022 (10) TMI 89
  
  Appointment of arbitrators to resolve the dispute between the parties - preliminary inquiry or inquiry on whether the dispute is arbitrable or not, ws not held - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- On a bare reading of Clause 36 of the Agreement, it clearly stipulates that in the event of any dispute as mentioned in Clauses 3, 6 and 9, other party shall have a right to get the Agreement specifically enforced through the appropriate court of law - with respect to any dispute as mentioned in Clauses 3, 6 & 9, such disputes are not arbitrable at all. It cannot be disputed that both the parties are governed by the Addendum Agreement dated 19.04.2011. In the recent decision in the case of Vidya Drolia [2020 (12) TMI 1227 - SUPREME COURT], which, as such, is post insertion of Section 11(6A) of the Arbit....... + More

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• 2022 (10) TMI 53
  
  Validity of decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 - validity of the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP - whether the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary? - HELD THAT:- The respondent No.1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that ....... + More

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• 2022 (10) TMI 52
  
  Award of interest - it is alleged that learned Arbitrator has grossly erred in awarding interest for the period from 1977 to 1989 inasmuch as the respondent was in deep slumber for a period of twelve years and did not take any step for raising his claim - HELD THAT:- The undisputed position is that though final measurement was done on 30st August 1977, for a period of twelve years, i.e., till 25th July 1989, the respondent did not take any step to raise his claim. It is only on that date, i.e., 25th July 1989, the respondent issued a notice to the appellants regarding his claim. As such, the very conduct of the respondent for remaining silent for such a long period would disentitle him for the interest during the said period. Similarly, though a decree was passed on 14th February 1990 and the respondent was directed to file the original a....... + More

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• 2022 (10) TMI 51
  
  Detention of detenue - Delay in passing the order of detention from the date of proposal - snapping the “live and proximate link” between the prejudicial activities - failure on the part of the detaining authority in explaining such delay - suppression of facts - vital fact of the appellant detenu being released on bail in both the cases was suppressed or rather not brought to the notice of the detaining authority by the sponsoring authority at the time of forwarding the proposal to pass the appropriate order of preventive detention. Delay in passing the order of detention - HELD THAT:- It becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of th....... + More

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• 2022 (10) TMI 50
  
  Direction to deposit the amount of performance bank guarantees pertaining to purchase order Nos. 01, 02 and 03 - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- When the bank guarantees were already invoked and the amounts under the respective bank guarantees were already paid by the bank much prior to the Commercial Court passed the order under Section 9 of the Arbitration Act, 1996 and looking to the tenor of the order passed by the Commercial Court, it appears that the Commercial Court had passed the order under Section 9(ii)(e) of the Arbitration Act, 1996 to secure the amount in dispute, it is opined that unless and until the preconditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless primafacie the Court is satisfied that the appell....... + More

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• 2022 (9) TMI 1292
  
  Enforcement of Foreign Arbitral Award - contempt of the order of court or not - acts of commission or omission on part of Contemnor Nos.9 and 10 and the entities controlled by them - control on assets of entity - banks and financial institutions sold the shares which were pledged with them, purely as a matter of commercial expediency or whether there was any deliberate act of defiance to defeat the rigour and width of the orders passed by the High Court and this Court ? - deliberate attempt to defeat the processes of Court or not - Whether the acts of commission or omission on part of Contemnor Nos.9 and 10 and the entities controlled by them, were calculated to put the assets of the companies under their control beyond the reach of Daiichi? - Having given clear assurances to the High Court and this Court, whether such acts of commission ....... + More

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• 2022 (9) TMI 1207
  
  Legality and validity of the notification dated 11.06.2020 issued by the Ministry of Environment, Forest and Climate Change - advisory for dealing with import of exotic live species of animals and birds in India and declaration of stock - HELD THAT:- The judgment of the Allahabad High Court in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT] is a complete answer to the present PIL filed by the petitioner. Any interpretation to the contrary as suggested by the petitioner would defeat the very object of the Advisory. Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exoti....... + More

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• 2022 (9) TMI 1154
  
  Possession of the secured assets in exercise of powers under Section 14 of the SARFAESI Act - tenancy rights - scope and ambit of the powers to be exercised under Section 14 of the SARFAESI Act - while exercising the powers under Section 14 of the SARFAESI Act, the District Magistrate/designated authority could have passed such an order that unless and until the secured creditor terminates the tenancy rights of the third person by following due procedure of law and further orders regarding possession of the mortgaged property then and then only an application under Section 14 of the SARFAESI Act will be decided? HELD THAT:- On a fair reading of Section 14 of the SARFAESI Act, it appears that for taking possession of the secured assets in terms of Section 14(1) of the SARFAESI Act, the secured creditor is obliged to approach the District M....... + More

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• 2022 (9) TMI 1119
  
  Decree for recovery of possession in respect of plot - It is alleged that the said adjacent plot of land is also in the unauthorised occupation of the Appellant - mesne profit - HELD THAT:- The existence of a cause of action and/or, in other words, the existence of circumstances giving cause for initiation of action is imperative for initiation of a suit. A suit can only be entertained when the cause of action has arisen and not otherwise. Any future event does not constitute cause of action. The cause of action is the fact or bundle of facts which would be necessary for the plaintiff to plead and prove, in order to get a judgment of the Court in his favour. The cause of action is the expiry of the lease of the suit property, that is Plot No.4/4 and refusal of the Appellant to vacate the suit property in spite of request, and the conseque....... + More

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• 2022 (9) TMI 997
  
  Levy of anchorage charges claimed by the Port Trust - sale of vessel - levy of Light Dues Charges and/or Anchorage Charges from the date on which physical possession of the vessel was made over to NKD, i.e., 11th November 2020 - HELD THAT:- The Division Bench rightly held that the argument was without merit. As held by the Division Bench, it is far-fetched to suggest that prior anchorage was of the Vessel under sale and the rate that it attracts as a result of such prior anchorage are in the nature of encumbrances for the purposes of anchorage fees to be applied after the date of Bill of Sale and till the Vessel sells at the instance of the purchaser. As held by the Division Bench, NKD purchased the Vessel on ‘as is, where is’ basis free from encumbrances in the instant case, anchorage charges have been levied from the date of....... + More

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• 2022 (9) TMI 894
  
  Validity of Arbitral Award - seeking grant of stay of Award - section 36 of Arbitration and Conciliation Act, 1996 - seeking to furnish security against the amount awarded by the Arbitral Tribunal u/s 9 of the Act - HELD THAT:- Under Section 36, where the time for making an application to set aside arbitral award has expired, the award might be enforced in accordance with the provisions of the CPC in the same manner as it were a decree of the Court. Section 36(2) makes it clear that filing an application for setting aside of an award under Section 34 is not to render the award unenforceable, unless the Court expressly grants an order of stay of operation of the arbitral award in accordance with the provisions of subsection (3) of Section 36, on a separate application made for that purpose - Section 9 of the Arbitration Act confers wide po....... + More

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• 2022 (9) TMI 846
  
  Dishonor of Cheque - vicarious liability can be fastened on the partner of the firm or not - role of the respondent as a partner in the firm is sufficient or not - who is the person liable to be proceeded against under the provisions of subsection (1) of Section 141 for being incharge of and responsible to the company at the time the offence was committed? - Section 141 and 138 of the NI Act - HELD THAT:- The time when the offence under Section 138 can be said to have been committed by the company. It is common place that an offence means an aggregate of facts or omissions which are punishable by law and, therefore, can consist of several parts, each part being committed at different time and place involving different persons. The provisions of Section 138 would require a series of acts of commission and omission to happen before the offe....... + More

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• 2022 (9) TMI 845
  
  Reopening of award by the Facilitation Council - Sub-section (3) of Section 18 of MSMED Act - HELD THAT:- In the case on hand, the claim of respondent no.1 was rejected by the Facilitation Council by the decision dated 17.02.2009. Since the claim stood rejected, it was like an award and respondent no.1 ought to have initiated other proceedings to challenge the award. Instead, he chose to put repeated pressure on the Facilitation Council to review its earlier decision. Unmindful of the fact that they have no such power, the Facilitation Council reopened its earlier decision and passed the award. The High Court completely overlooked the inherent lack of jurisdiction on the part of the Facilitation Council to pass the award dated 27.01.2016. What is worse is the fact that the illegality committed by the Facilitation Council in the year 2016 ....... + More

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• 2022 (9) TMI 672
  
  Seeking grant of interim relief - direction to deposit an amount of Rs. 35.5 crores with the Prothonotary and Senior Master of the High Court or, in the alternative, to furnish bank guarantee of any nationalised bank for the entire amount along with interest thereon - remove or dispose of whole or part of its property with intent to obstruct or delay the execution - Section 9 of the Arbitration Act - novation of contract or set off is allowed or not - HELD THAT:- Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act. All that the Court is required....... + More

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• 2022 (9) TMI 530
  
  Levy of Occupation charges - effect of the order passed by this Court, in case of non-payment of the charges - HELD THAT:- When an order has been passed by this Court, it has to be given effect in letter and spirit. An order passed by this Court cannot be permitted to be treated as a paper order. The spirit behind the order dated 23.08.2016 passed by this Court is clear that in the event the respondent fails to clear the arrears, he will not be permitted to defend her case and the trial will proceed without her defence. The learned trial Judge has permitted indirectly to do what has been prohibited directly by this Court vide order dated 23.08.2016 - the orders passed by the learned Civil Judge (Senior Division) dated 14.01.2022 and 08.04.2022 is modified and it is clarified that the respondent-defendant would be permitted only to cross-examine the plaintiff with regard to the documents produced by the plaintiff. The contempt petition is disposed off.

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• 2022 (9) TMI 264
  
  Dishonor of Cheque - permission to engage a hand-writing expert to seek an opinion on whether “the authorship on the questioned writings” - rebuttal of presumption - Section 139 of the NI Act - HELD THAT:- Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the respondent had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was handed over. Therefore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer addu....... + More

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• 2022 (9) TMI 108
  
  Post-award interest - To be calculated on principal sum due u/s 31(7)(b) of the Act - Claim of post award interest on the aggregte of the principal and pre-award interest - whether the arbitrator has the discretion to grant post-award interest only on the principal sum due under Section 31(7)(b) of the Act? - HELD THAT:- The issue is whether the phrase ‘unless the award otherwise directs’ in Section 31(7)(b) of the Act only provides the arbitrator the discretion to determine the rate of interest or both the rate of interest and the ‘sum’ it must be paid against. At this juncture, it is crucial to note that both clauses (a) and (b) are qualified. While, clause (a) is qualified by the arbitration agreement, clause (b) is qualified by the arbitration award. However, the placement of the phrases is crucial to their int....... + More

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• 2022 (8) TMI 1087
  
  Execution of the award passed by the learned Arbitral Tribunal/Court - Direction to appellant - NHAI to deposit the entire compensation amount as awarded by the learned Arbitrator - HELD THAT:- Apart from the fact that the award dated 12.06.2018 has been challenged by the NHAI by initiating proceedings under Section 34 of the Arbitration Act which are reported to be pending, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India seeking the reliefs to execute the award passed by the learned Arbitral Tribunal/Court, when the award passed by the learned Arbitral Tribunal/Court is to be executed by initiating an execution proceeding before the concerned Executing Court. But, by passing the impugned order/directions the High Court has virtually converted itself into Executing Court. There....... + More

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• 2022 (8) TMI 924
  
  Dishonor of Cheque - acquittal of the accused - cross-examination of witnesses - requirement of payment of interim compensation as directed in terms of Section 143A of the Act is not complied with - HELD THAT:- After empowering the court to pass an order directing the accused to pay interim compensation under Sub-Section 1 of Section 143A, Sub-Section 2 then mandates that such interim compensation should not exceed 20 per cent of the amount of the cheque. The period within which the interim compensation must be paid is stipulated in Sub-Section 3, while Sub-Section 4 deals with situations where the drawer of the cheque is acquitted. Said Sub-Section 4 contemplates repayment of interim compensation along with interest as stipulated. Sub-Section 5 of said Section 143A then states “the interim compensation payable under this Section ca....... + More

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• 2022 (8) TMI 822
  
  Rejection of application for appointment of an Arbitrator - non-renewal of the lease - Section 11(6) of the 1996 Act - HELD THAT:- The Division Bench fell in error in arriving at the finding that the arbitration clause could only be invoked if the proposal for renewal was accepted by the lessor, but there was dispute with regard to the period of renewal or there was dispute with regard to the quantum of rent proposed to be paid by the lessee to the lessor. It is well settled that clauses in a lease deed cannot be read and construed in isolation. The lease deed is to be construed as a whole. Clause 4(xiii) has to be read with Clause 3 which clearly provides that the initial term of the lease under the deed shall be a period of 24 years from 1st June 1997 to 31st May 2021 and shall be renewable for such acceptance of the lessee’s offe....... + More

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