• ARBITRATION LAWS

Held, On perusal of the arbitration clause in the Agreement and the words "at any time" which appeared in Clause 21 was of considerable importance. "At any time" expressed a time when an event took place expressing a particular state or condition that was when the dispute or difference arose. The arbitration Clause 21 had no nexus with the life time of the named arbitrator. Such expression used in the arbitration clause has nexus only to the time frame within which the question or dispute or difference arose between the parties be resolved. Those disputes and differences could be resolved during the life time of the named arbitrators or beyond their life time. The incident of the death of the named arbitrators had no nexus or linkage with the expression "at any time" used in Clause 21 of the Agreement. Time factor mentioned therein was the time within which the question or dispute or difference between the parties was resolved as per the Agreement. Arbitration clause would have life so long as any question or dispute or difference between the parties existed unless the language of the clause clearly expressed an intention to the contrary. Question might also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation also, it was possible for the parties to appoint a substitute arbitrator unless the clause provided to the contrary. Objection could be raised by the parties only if there was a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator. Hence, Clause 21 did not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties could persuade the court for appointment of an arbitrator under Clause 21 of the agreement.

• MOTOR VEHICLE LAWS

Held, Scope of an enquiry under this Section was extremely limited only to ascertain as to whether : (i) the accident has arisen out of use of the motor vehicle; (ii) the said accident has resulted in a permanent disablement of the person who is making the claim or the death of a person whose legal representatives are making the claim; and (iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident. Once these three factors were established prima facie, the Claimant was entitled to succeed in an Application under S.140 of the Act. Even if two vehicles were involved, the Tribunal was not required to consider the proportionate liability of the vehicles involved in the accident. Once it was found that vehicle or vehicles were involved in the accident, the Tribunal was obliged to pass interim award under the principle of "no fault liability". Very concept of "no fault liability" was that the amount was payable not because there was fault on the part of the driver of the vehicle, but because the vehicle was involved in the accident. That being so, in the case where two or more vehicles were involved in the accident, the Tribunal was not required to consider at the stage of passing the order under Section 140 of the Act as to driver of which vehicle was more responsible and what could be the liability of the driver of each vehicle. In such cases, liability of the owners of all the vehicles involved in the accident and of course of the Insurance Company, if the vehicles were insured, should be joint and several. This appeared to be the true import of Section 140(1) of the Act. Therefore, the order passed by the Tribunal need to be modified.

• INSURANCE LAWS

M/s. Tulip Diagnostics Pvt. Ltd Vs.  Regional Director Employees State Insurance Corporation (Decided on 12.06.2012) MANU/MH/0753/2012

Held, In the present case, in the light of the contentions of the Appellants that at the relevant time the records were not available with the Appellants, it would not preclude the Judge to rely on the oral evidence to consider the question of fact. Further, the witness had categorically made a statement about the remuneration received by him from the Appellants. Judge ought to have tested the statement of the concerned witness in the affidavit in the light of the cross examination by the Respondents to consider the veracity of such statement. As no such exercise had been done by the Judge, Court found that the appreciation of evidence on that count by the Judge could not be sustained and was perverse. As such, to that extent the impugned judgment deserved to be quashed and set aside. It was incumbent upon the Judge to appreciate the evidence on record and the statement made in the affidavit and in the cross examination and the rebuttal evidence if any adduced by the Respondents and come to some concrete conclusion. Therefore, this Court considered it appropriate to consider the said aspect is relevant so as to consider as to whether the Directors were drawing a salary more than the statutory limit at the relevant time to extend the coverage on the Appellants.

• CIVIL LAWS

Held, It was difficult to hold that the Tribunal had not followed the procedure stipulated in Section19(4) of Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. Similar was the situation insofar as Regulation 17 of the Debts Recovery Tribunal Regulation was concerned. In the present case, the Tribunal had ordered service by advertisement in newspaper. It was not the case of the Petitioners that the advertisement was published by the Respondent No. 1 in the newspaper which did not have wide circulation and, hence, the contention canvassed by the Petitioner's Counsel in this regard lacked merit. Further, Court wanted to observe that the Act had been introduced to provide speedy remedy for recovery of debts. The Legislature, therefore, in its wisdom thought it expedient to provide special remedy for recovery of debts of more than Rs.10 lakhs. Prime object of the establishment of the Tribunal was to provide expeditious adjudication of recovery of debts due to banks and financial institutions. Hence, the Tribunal was required to conclude the debt recovery proceedings as expeditiously as possible, otherwise, the primary objective of the Act would be frustrated. Petition dismissed

• LABOUR AND INDUSTRIAL LAWS

Mr. Sarjerao Janardhan Hande and ors Vs. Maharashtra State Cooperative Marketing Federation Ltd. (Decided on 18.06.2012) MANU/MH/0782/2012

Held, If case was made out in a given case, the Court, might consider the documents and material placed on record only to just verify whether the defence so raised by the employer and/or other side was just false plea and just to avoid the due and crystalised payment. In the present case, all those things were missing. Hence, this was not an incidental issue which the Court under Section 33, in the present facts and circumstances, should have gone into and should have adjudicated in favour of the Petitioners as contended. Petition dismissed

• CONSTITUTIONAL LAWS

Held, procedure and principle for the acquisition of land as well as determination of compensation, etc. under the impugned Act and Land Acquisition Act are contrary to each other. Since there is an existing law made by the Parliament on a matter in the concurrent list and if there is repugnancy exist between a State law and the existing law the law made by the Parliament will prevail and the State law to that extent of such repugnancy shall be void as per the Article 254 of the Constitution, which specifically provided that law made by the legislature of the State shall to the extent of the repugnancy, be void. Accordingly, the impugned Act can be saved only if the Presidential assent is obtained under Article 254(2) and in the absence of assent from the President of India the Singur Act is hit by Article 254(1) of the Constitution of India.

• INTELLECTUAL PROPERTY LAWS

Held, A fact was an integral part of the bundle of facts constituting a cause of action only when for succeeding in the case it was to be pleaded and proved. There was no reason to say that if the Petitioners failed to plead and prove the fact concerning the step taken by the office of the Appellate Board for service of the pronounced order pursuant to Rule 21 of the Intellectual Property Appellate Board (Procedure) Rules, 2003, then their writ Petition questioning the order would have failed. Hence service and receipt of the order at a place within the territories in relation to which this Court exercised jurisdiction under Article.226 had nothing to do with the cause of action on which this writ Petition was filed. In the present case, it was not correct to say that since the Petitioners were affected by the order in West Bengal, - the case stated in the writ Petition taken at face value,- a part of the cause of action on which the writ Petition was filed had arisen within the territories in relation to which this Court exercised jurisdiction under Article 226. The order was to affect the Petitioners wherever they were. A part of the cause of action was not to arise at all their business places. It was not that the order had been affecting them at the place it was served due to any enforcement step taken by the Appellate Board. This was the test. Therefore, for the aforesaid reasons, it was held that this Court had no jurisdiction to entertain the writ Petition. Writ Petition dismissed accordingly.

• TENANCY LAWS

Eviction – Challenge thereto - Present revision Application has been filed under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1992 against the decree and order of eviction passed by Munsif against the Defendant/Petitioner

Held, Court below had placed reliance upon the depositions of the witnesses of the Plaintiff who had come to depose that the Defendant had been paying rent to the Plaintiff. Further, it had also relied upon the deposition of the Plaintiff wherein she had stated that the Defendant had stopped payment of rent since after the filing of the suit. In absence of the necessary pleading regarding the payment of rent or non- payment of rent, no amount of evidence in that regard could have been looked into and relied upon by the Court below. Court below had also failed to take into notice that the sale deed on the basis of which the Plaintiff had claimed her title, had been executed by a co-sharer only who had got only 1/6th share in the property. The denial and absence of evidence from the side of the Plaintiff regarding the want of title or any right in the property acquired by the Defendant on the basis of his case of inheritance had not at all been examined by the Court below. Conclusion arrived at by the Court below regarding the relationship of Landlord and Tenant was clearly vitiated for non-consideration of the case of the Defendant as pleaded in the written statement and also by relying upon the evidence which had no basis in the pleadings. Application allowed.

• DIRECT TAXATION LAWS

Held, It was observed that the Commissioner of Income Tax (Appeals) (CIT-A) in the order for assessment year 1989-90 had categorically concluded that, the year in which the concerned property was acquired up to the date of conversion in 1987 as stock-in-trade, the same was held only as an investment and conversion of the same in the year 1987 as stock-in-trade of the Assessee Company would give rise to capital gains by virtue of provisions of Section 45(2) of the Income Tax Act,1961 (Act). It was also held that the difference between the actual sale consideration and the fair market value as on the date of conversion was to be assessed as business income. Finding of the CIT(A) for the assessment year 1989-90 had attained finality. Therefore, the Department could not be allowed to take a different stand when the factual situations for these assessment years were identical with that of the assessment year 1989-90. Hence, the finding of the CIT(A) that the gains arising on sale of the concerned property was assessable under dual head i.e. "business income" and "Capital gains", instead of assessing the entire gains under the head "business", was correct and in accordance with law and no interference is called for. Appeal by Revenue dismissed.

Held, Court observed that the point in dispute before them was that when the Assessee undisputedly earned capital gains and when the deposited equivalent amount in the bank under Capital Gains Accounts Schemes, whether the Assessing Officer was justified in denying benefit of Section 54F of the Income Tax Act,1961 on the ground that part of such deposit has source in borrowal of funds and part of such gains are diverted elsewhere for other purposes. On this, Court found that this issue was covered by the decision of the Hyderabad Bench of Shri Muneer Khan v. ITO, wherein it has been held that money has no colour and all that is required to be eligible for relief under Section 54F of the Act is compliance with the condition of investment within the specified time. Appeal by Assessee allowed.