SUPREME COURT

• ARBITRATION

Deepak Kumar Bansal vs. Union of India and Anr. (Decided on 17.02.2009) MANU/SC/0214/2009

Appointment of Arbitrator - High Court vide impugned order, rejected the application for appointment of Arbitrator on the ground that since value of the claim was more than 20% of the value of the work, the disputes could not be referred to Arbitrator in view of the Circular issued by the Respondent-Union of India - Circular was issued on 11th of June, 2003 whereas the agreement entered into by the parties was long before issuance of said circular

In the instant case High Court misdirected itself in holding that the claim was in excess of 20% of the total cost of the work. The Circular which came into effect from 11.06.2003 would not be applicable in the case of the Appellant as the said Circular came into force only from that date i.e. 11.06.2003 and not before that, in the absence of any subsequent insertion of that Clause in the original contract, namely, Clause 64 of the General Conditions of Contract. Accordingly, question of applicability of the said Circular intimating intention of the Respondent to insert Clause 18 could not arise at all. Impugned order set aside and appeal was allowed.

• CRIMINAL LAWS

Santokh Singh Vs. State of Punjab (Decided on 12.02.2009) MANU/SC/0192/2009

Appeal against Conviction - Offence committed punishable under section 302 of the Indian Penal Code, 1860 - Plea of private defence or in the alternative that of incident occurring as a result of sudden quarrel

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary.

In the instant case since no evidence much less cogent and credible was adduced in this regard and hence the right of private defence was rightly discarded.

Fourth Exception of Section 300 Indian Penal PC covers acts done in a sudden fight

The exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds, which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. There is no previous deliberation or determination to fight. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame, which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation.

S.P. Devaraju Vs. State of Karnataka (Decided on 12.02.2009) MANU/SC/0197/2009

Appellant held guilty and convicted for offence punishable under Section 304 part II of the Indian Penal code, 1860 - Conviction based on dying declaration

Basis of conviction of the accused was dying declaration. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. There was no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. The dying declaration clearly implicates the accused Appellant. To add to that is the recovery of the weapon of assault.

• CONSUMER LAWS

Martin F. D'Souza Vs. Mohd. Ishfaq (Decided on 17.02.2009) MANU/SC/0225/2009

Medical Negligence - Liability of professional, a doctor in the instant case

The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness. The professional is one who professes to have some special skill. A professional impliedly assures the person dealing with him (i) that he has the skill which he professes to possess, (ii) that skill shall be exercised with reasonable care and caution. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm.

HIGH COURT

• BANKING

DELHI HIGH COURT

Kotak Mahindra Bank Limited Vs. Stiefel Und Schuh India Ltd. and Ors (Decided on 9.1.2009) MANU/DE/1904/2008

Banking- Jurisdiction - Loan given to the Respondent by Predecessor-in-interest of Appellant- Suit filed before Civil Court as it is not a banking company - Appellant bank substituted in the case -  Whether the civil court loses jurisdiction to entertain the suit and the matter now comes under the exclusive domain of DRT which only has the jurisdiction to entertain the matters?

In the instant case, the fact remains, the original claimant was not a bank and, therefore, when the suit was instituted after the appointed date on which the RDB Act came into force, it is the civil court only which had the jurisdiction. Such proceedings by the predecessor-in-interest could not have been filed before the DRT. For that matter, as on that date, the DRT had no jurisdiction to entertain such proceedings. 

Before the enactment, suits in the civil courts were competent. However, the civil courts lost jurisdiction to entertain even pending suits in view of the provision like Section 31 of the RDB Act providing for transfer of the pending suits.

DELHI HIGH COURT

Mr. Suresh Sharma Vs. New Coolwell Industries and Ors (Decided on 23.01.2009) MANU/DE/0119/2009

Banking- Impugned cheques issued in favour of M/s. Jiya Lal Sumair Chand Jain and when presented for encashment,returned back unpaid - Question before the Court was whether compliant filed in the individual capacity with out authorisation on behalf of the Firm is valid or not ?

Section 142 of the Negotiable Instruments Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. 

Court was of the opinion that mere admission of document in evidence does not amount to its proof. 

Even though a complainant that is the payee of the cheque or the holder in due course can present a complaint even through a Manager or an authorized representative, such complaint has to be on behalf of the payee or the holder in due course and cannot be filed in the personal capacity either by the Manager or by the authorized representative without filing the said complaint for and on behalf of the payee or the holder in due course

• CIVIL

MADRAS HIGH COURT

E.P.K. Mani @ E. Palaniappan Vs.Nagasamy and R. Chinnusamy (Decided on 23.01.2009) MANU/TN/0056/2009

Civil - Specific performance - Exparte decree was passed against the petitioner - Respondent no1 filed Execution petition and during the pendency of the the Execution Petition, Petition was filed under Section 47 CPC by the Petitioner and Court has rejected the same- Question before the High Court was whether the Petition filed under Section 47 of C.P.C would be treated as Separate petition or not ?

Petition filed under Section 47 of CPC cannot be disposed of like any other petition. It is a well settled proposition of law that an application filed under Section 47 of CPC is to be disposed of like a suit after giving due opportunities to the parties concerned to let in evidence on either side.

DELHI HIGH COURT

Mahesh Bhatt Vs. Union of India (UOI) and Anr (Decided on 23.01.2009) MANU/DE/0087/2009

Constitution - Art 14 and 19 - Smoking ban in Films- -Challenged on grounds of (a) the impinging of the constitutional right as the Rules would amount to a gag order resulting in curtailment of the freedom of expression and the right to communicate and inform the public-(b) the Rules being beyond the powers conferred under the said Act- Whether ban is Ultra vires of Constitution? 

Reading of Section 5 read with Section 3(a) of the said Act provides the canvass for what is prohibited under the said Act and nothing more nothing less. The act complained of must be in an advertisement within the definition of Section 3(a) for it to fall within the mischief of Section 5 of the said Act. 

There is nothing contained in Section 31 of the said Act which directly or indirectly empowers making of Rules in respect of television serials and films. 

The coverage of news is of paramount importance in any free and democratic society. I am of the considered view that the restriction placed upon the newspapers in terms of Rule 4(8) is violative of both Articles 14 & 19(1)(a) of the Constitution, as it seeks to create a distinction between the electronic and print media, which is an unreasonable classification in terms of Article 14 of the Constitution. Thus, the Rule is also violative of Articles 14 & 19(1)(a) as it imposes an unreasonable restriction upon the press.

Rules, will, as they are, clearly impinge the valuable rights granted under Article 19(1)(a) of the Constitution of India apart from the fact that they are outside the ambit of the authority conferred under the said Act. Directors of films should not have multifarious authorities breathing down their necks when indulging in creative Article The concept of censorship itself is a deviation and due care has been taken to incorporate the discouragement of any propagation or advertisement of smoking by incorporating the relevant provisions in the guidelines of the Censor Board.

 Rule 4(6), 4(6A), 4(6B) & 4(8) are held to be ultra vires the parent Act as well as violative of Article 19(1)(a) of the Constitution and are accordingly struck down being unconstitutional.

No final view was expressed in this behalf in view of the findings on the interplay between Article 19(1)(a) and Article 21 of the Constitution of India.

• LIMITATION

MADRAS HIGH COURT

Yanaimal Thottam Trust rep. by it s Trustee, G.N. Chandirabalan Vs. B. Jayaraman, (Decided on 21.01.2009) MANU/TN/0053/2009 

Condonation of Delay - Delay of 2024 days - Civil court condoned the delay on payment of costs- Whether Court can use its discretion while condoning the delay, when delay is with out any proper reasons ? 

As for this aspect, the order impugned is silent in the matter of recording of its satisfaction as to the reason assigned in the affidavit. The reasons adduced by the Court below for allowing the application are not at all sustainable for the reason that they are not based on reasoning. In other words, it could be held that allowing an application, which did not contain any reason or explanation for the delay, could not get the seal of approval by the Court. In such view of this matter, this Court could not justify the order challenged

There is no doubt true that this Court under the revisional jurisdiction, should not disturb the finding. However, the order impugned shall itself get qualified to pass the test that is to say, the discretion was not exercised by the Court below on untenable ground. In the case on hand, in view of the absence of any sufficient cause in the affidavit, the petition cannot be allowed.

• RIGHT TO INFORMATION

KARNATAKA HIGH COURT

Sri H.S. Satish Babu Public Information Officer Vs. Sri K.L. Srinivasan and The State Information Commission rep. by its State Chief Information Commissioner (Decided on 24.10.2008) MANU/KA/0432/2008

Right to information - Penalty - Complaint filed against the Petitioner under Section 18(1) of the Right to Information Act, 2005 for not providing information to informant within statutory time limit - Maximum penalty imposed by State Information Commissioner - Whether order is sustainable or not ?

A reference has been made in the order regarding the conduct of the petitioner, he being the Tahsildar-cum-Execute Magistrate of the Taluk, he is duty bound to submit the required information and inspite of giving sufficient opportunity, he has not mend his attitude nor made any sincere efforts to appear personally and explain the difficulties and there is no intentional or deliberate delay on his part for furnishing the required information

Consistently, petitioner has failed to assist and comply the directions issued by the Commissioner and he has compelled the Commissioner to invoke Section 20(1) of the Right to Information Act, and therefore, there is no other option for the Commissioner to take such a stringent action which is mandatory in nature, under Section 20(1) of the Act, and accordingly, he has passed the order vide Annexure-B imposing penalty on the petitioner with directions.

• FAMILY

BOMBAY HIGH COURT

Hashim Huzursab Sayeed Vs. Goribi Hashim Sayeed, Sohil Hashim Sayeed and The State of Maharashtra (Decided on 23.01.2009) MANU/MH/0072/2009

Maintenance -Question before the Revisional court was whether in view of the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the application under Section 125 of Cr.P.C. filed by the respondents, was maintainable or not ?

Court was of the view that the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, the application filed by the wife for maintenance under Section 125 of Cr.P.C. was not maintainable.

Status of the present applicant/respondent No. 1 on 22.9.1997 was divorcee and therefore, her application under section 125 of Cr.P.C. was not maintainable in view of the provisions of Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986

• CONTEMPT OF COURT

DELHI HIGH COURT

Santosh Kapoor Vs. Apex Computers P. Ltd. (Decided on 28.01.2009) MANU/DE/0115/2009

Contempt of Court -Question before the court was whether the breach of undertaking given in court would amount to Contempt of court or not ?

Breach of an undertaking given to a Court amounts to contempt as would be apparent from the categorical and explicit definition of 'Civil Contempt' under Section 2(b) of the Contempt of Courts Act, 1971.

Failure to pay the amount undertaken, amounts to a contempt which in a situation of this nature is a continuous wrong. Therefore, in my view, the present contempt petition is not barred by limitation as prescribed in Section 20 of the Contempt of Courts, Act.