SUPREME COURT

• CONSTITUTION

University of Kerala Vs. Council, Principals', Colleges, Kerala and Ors. Decided on 11.11.2009 (MANU/SC/1834/2009)

Constitution - Judicial Legislation - Doctrine of separation of powers - Matter regarding conduct of election in universities and colleges before Court - Appointment of committee to give recommendations in said matter - Thereafter, Court by interim order directed implementation of report of committee - Whether after getting the recommendations of some expert body by a Court order, the Court itself can implement the said recommendations by passing a judicial order or whether the Court can only send it to the Legislature or its delegate to consider making a law for implementation of these recommendations ?

Held, once the Committee's Report was received by the Court, the Court should have thereafter, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or its delegate (which in this case is the University which can make delegated legislation in the form of Statutes or Ordinances). It is for the Legislature or the concerned authorities to make a law accepting the Report in toto or accepting it in part, or not accepting it at all but it is not for the Court to pass judicial orders for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.

• MOTOR VEHICLES

S. Suresh Vs. Oriental Insurance Co. Ltd. and Anr. Decided on 14.09.2009 (MANU/SC/1835/2009)

Motor Vehicles - Motor Vehicle Accident - Loss of right leg  - Whether loss of right leg ipso facto meant a "total disablement" under Section 2(1)(l) of Motor Vehicles Act and as such compensation payable to claimant had to be computed on that basis?

Held, if the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident it amounted to total disablement (Pratap Narain Singh Deo v. Srinivas Sabata and Anr. applied). In case on hand, on account of amputation of his right leg below knee, claimant is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act.

• ELECTION

Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Ors. Decided on 23.11.2009 (MANU/SC/1838/2009)

Election - Petition for scrutiny of ballot papers and re-counting of votes - Parameters to be applied by courts while considering petition seeking re-counting of votes

Held, since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied.

HIGH COURT

• CONTEMPT OF COURT

DELHI HIGH COURT

Aarti Sabharwal Vs. Jitender Singh Chopra and Ors Decided on 18.11.2009 (MANU/DE/2918/2009)

Contempt of Court - Conviction for Contempt of Court - Pre-requisite before passing of punitive orders by Court in contempt proceedings

Held, the punitive nature of orders that may be passed by the Court in contempt proceedings may include incarceration for a period upto six months but the Court must be fully satisfied that a party has wilfully disobeyed Court orders before punishment is delivered. Such a decision would be predicated on a persuasive preponderance of evidence, as in the case of criminal proceedings.

A person cannot be convicted for contempt of Court if one Judge finds that the case has not been sufficiently made good by the Complainant since the benefit of two opinions would invariably work in favour of the alleged contemnor.

• BANKING

GUJARAT HIGH COURT

Aquafil Polymers Company Pvt. Ltd, thro Managing Director Vs. ICICI Bank Limited and Anr. Decided on 10.11.2009 (MANU/GJ/0699/2009)

Banking - Bank Guarantee - Invocation of Bank Guarantee - Law regarding invocation of Bank Guarantee

Held, the law in respect of invocation of bank guarantee is well settled. There is no dispute about the proposition that the Bank guarantee is an independent contract between the Bank and the beneficiary thereof. Irrespective of any dispute between the beneficiary and the party at whose instance, the Bank has given the guarantee, the Bank is obliged to honour its guarantee, as long as the guarantee is unconditional and irrevocable. It is true that a Bank Guarantee must be honoured in accordance with its terms as the Bank which gives the guarantee is not concerned with the relations between the beneficiary and the obligee. The Bank is also not concerned with the question as to whether any of them have failed in their contractual obligations. In other words, the Bank must pay according to the tenor of its guarantee, on demand, without proof or condition.

• CRIMINAL

BOMBAY HIGH COURT

Yair Daniel Lavon Vs. The State of Goa through Anti Narcotic Police Decided on 16.10.2009 (MANU/MH/1223/2009)

Criminal - Conviction based on evidence by witness - Witness alleged not to be independent witness as acquainted with police - Veracity of evidence by such witness

Held, acquaintance with the police by itself would not destroy a man's independent outlook. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action.

• FAMILY

 BOMBAY HIGH COURT

Rajiv Dinesh Gadkari through P.A. Depamala Gadkari Vs. Smt. Nilangi Rajiv Gadkari Decided on 16.10.2009 (MANU/MH/1218/2009)

Family - Dissolution of marriage - Evidence in matter by Power of Attorney - Petition for decree of dissolution of marriage on ground of cruelty by Respondent-wife - Application by NRI husband for exemption from appearance in matter and permission for giving evidence in matter through Power of Attorney

Held, in a matrimonial matter, the presence of spouses before the Court is vital as there are certain aspects which are only within the personal knowledge of the spouse and therefore, the Power of Attorney cannot give evidence regarding the facts which are only within the personal knowledge of either of the husband or wife.