Supreme Court Weekly Digest March 25 - 29, 2019

Arbitration Act, 1940 - Section 15 - Power of Court to modify award. Ranjan Gogoi (CJI), Sanjay Kishan Kaul & K.M. Joseph, JJ. K. Marappan v. Superintending Engineer T.B.P.H.L.C. Circle Anantapur, C.A. No. 159 of 2010 27-03-2019

Arbitration and Conciliation Act, 1996 - The High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. A.M. Khanwilkar & Ajay Rastogi, JJ. Union of India v. Parmar Construction Company, C.A. No. 3303 of 2019 29-03-2019

Civil Procedure Code, 1908 - Section 100 - Substantial Question(s) of Law - the High Court has no jurisdiction to allow the second appeal without framing a substantial question of law as provided under Section 100 of the Code - the sine qua non for allowing the second appeal is to first frame the substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Chand Kaur v. Mehar Kaur, JT 2019 (3) SC 595 C.A. No. 3276 of 2019 28-03-2019

Companies Act, 2013 - S. 212(1)(c) - Limited Liability Partnership Act, 2008 - Ss. 43(2) & (3)(c)(i) - Companies (Arrests in connection with Investigation by Serious Fraud Investigation Office) Rules, 2017 - Rule (2) - Establishment of Serious Fraud Investigation Office - Investigation of the affairs of limited liability partnership. Abhay Manohar Sapre & U.U. Lalit, JJ. Serious Fraud Investigation Office v. Rahul Modi, JT 2019 (3) SC 597 Crl.A. No. 538 of 2019 27-03-2019

Consumer Law - A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. D.Y. Chandrachud & Hemant Gupta, JJ. Kolkata West International City Pvt. Ltd. v. Devasis Rudra, C.A. No. 3182 of 2019 25-03-2019

Consumer Law - Insurance - Loss and damage to the roads which had been worked upon due to “abnormal rainfall and water logging” - due to heavy rains on 29 June 2007, the roads were inundated and the top layer had been washed out - Held, there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation - the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters - failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission - Insurance policy specifically excluded normal wear and tear - In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormal rainfall and water logging - Evidence on the record did not sustain the basis of such a claim. D.Y. Chandrachud & Hemant Gupta, JJ. Mahavir Road and Infrastructure Pvt. Ltd. v. Iffco Tokio General Insurance Co. Ltd., C.A. No. 7315 of 2016 25-03-2019

Criminal Trial - While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. N.V. Ramana & Mohan M. Shantanagoudar, JJ. Pattu Rajan v. State of Tamil Nadu, Crl.A. No. 680 of 2009 29-03-2019

Employees' Provident Funds and Miscellaneous Provisions Act, 1952 - Employees' Provident Funds Scheme, 1952 - Relevant Stipulations in the Scheme - Objects and Reasons behind the Act of 1952 - Relevant Provisions - Discussed. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Modern Transportation Consultation Services Pvt. Ltd. v. Central Provident Fund Commissioner Employees Provident Fund Organisation, C.A. No. 7698 of 2009 26-03-2019

Environmental Law - Airports - Scheme of the 2006 notification and the Guidance manual for Airports - EIA process - Guidance manual for airports - Forests - Ecologically Sensitive Zones (ESZs) - Sampling Points - Air Quality - Water Quality - Noise Quality - Flora and Fauna - Felling of Trees - Public Consultation - Appraisal by the EAC - The appellate jurisdiction of the NGT: the requirement of a merits review - Environmental Rule of Law - Directions. D.Y. Chandrachud & Hemant Gupta, JJ. Hanuman Laxman Aroskar v. Union of India, C.A. No. 12251 of 2018 29-03-2019

Excise Duty - National Calamity Contingent Duty (‘NCCD’) - Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Bajaj Auto Limited v. Union of India, C.A. No. 3239 of 2019 27-03-2019

Fair Trial - All the contesting parties to the suit must get fair opportunity to contest the suit on merits in accordance with law. A decision rendered by the Courts in an unsatisfactory conducting of the trial of the suit is not legally sustainable. It is regardless of the fact that in whose favour the decision in the trial may go. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Rajinder Tiwari v. Kedar Nath, C.A. No. 3282 of 2019 28-03-2019

Forest Act, 1927 - Ss. 41, 52 & 52A - Wildlife Protection Act, 1972 - Ss. 27, 29, 39(1)(d), 51 & 52 - Criminal P.C. 1973 - Ss. 451 & 482 - Order for custody and disposal of property pending trial in certain cases - The jurisdiction under Section 451 of the CrPC was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings. D.Y. Chandrachud & Hemant Gupta, JJ. State of Madhya Pradesh v. Uday Singh, Crl.A. No. 524 of 2019 26-03-2019

Income Tax Act 1961 - Section 142 (2C) - Interpretation of - the provisions of Section 142 (2C) of the Act, as they stood prior to the amendment which was enacted with effect from 1 April 2008 by the Finance Act, 2008 did not preclude the exercise of jurisdiction and authority by the assessing officer to extend time for the submission of the audit report directed under subsection (2A), without an application by the assessee - the amendment was intended to remove an ambiguity and is clarificatory in nature. D.Y. Chandrachud & Hemant Gupta, JJ. Commissioner of Income Tax, New Delhi v. Ram Kishan Dass, C.A. No. 3211 of 2019 26-03-2019

Industrial Disputes Act, 1947 - Section 10 - Factual controversy cannot be adjudicated in OA by the Tribunal or by the High Court in a writ petition. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Sunil Kumar Biswas v. Ordinance Factory Board, C.A. No. 3290 of 2019 29-03-2019

Insurance Law - Accident - Disease - In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. Where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen. D.Y. Chandrachud & Hemant Gupta, JJ. National Insurance Co. Ltd. v. Mousumi Bhattacharjee, JT 2019 (3) SC 532 C.A. No. 2614 of 2019 26-03-2019

Mala Fides - Plea of - Averments by itself do not constitute a plea of mala fides without there being any substantial material in its support. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. V. Krishnamurthy v. State of Tamil Nadu, JT 2019 (3) SC 543 C.A. No. 7703 of 2009 26-03-2019

Negotiable Instrument Act, 1881 - Section 138 - Remand - there was neither any need and nor any occasion to remand the case to the Magistrate - there was enough material before the Appellate Court on the basis of which the appeal on merits could have been decided one way or the other instead of remanding the case to the Magistrate for deciding it afresh. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Susanta Dey v. Babli Majumdar, JT 2019 (4) SC 1 Crl.A. No. 2103 of 2008 28-03-2019

Penal Code, 1860 - Section 376 - the prosecutrix was in habit of implicating all the persons by making wild allegations of such nature against those with whom she or/and her husband were having any kind of disputes. Ganga Prasad Mahto v. State of Bihar, JT 2019 (3) SC 530 Crl.A. No. 526 of 2019 26-03-2019

Penal Code, 1860 - Ss. 170, 412 & 395 - Incident had occurred nearly 19 years ago - there was no previous antecedents - ready to pay the enhanced fine, although his monetary condition is poor - in the peculiar facts and surrounding circumstances of the case, Court reduced the sentence from seven years R.I. to five years R.I. and enhance the fine to Rs.20,000/ each. L. Nageswara Rao & M.R. Shah, JJ. Jahangir Hussain v. State of West Bengal, Crl.A. No. 712 of 2009 29-03-2019

Penal Code, 1860 - Ss. 302 r/w. 149 & 147 - Mere presence in an unlawful assembly cannot render a person liable unless there was a common object. N.V. Ramana, Mohan M. Shantanagoudar & Indira Banerjee, JJJ. Amrika Bai v. State of Chhattisgarh, Crl.A. No. 1036 of 2011 29-03-2019

Penal Code, 1860 - Ss. 302, 392 r/w. 34 - Police Act, 1951 (Bombay) - Ss. 37(1) r/w. 135 - Arms Act, 1959 - S. 3 (25) - Circumstantial Evidence - There are too many missing links - benefit of doubt - Acquitted. U.U. Lalit & Indu Malhotra, JJ. Pavan Vasudeo Sharma v. State of Maharashtra through Secretary, Crl.A. No. 519 of 2019 25-03-2019

Real Estate (Regulation and Development) Act, 2016 - Section 2 (zk) - “promoter” - Definition of. D.Y. Chandrachud & Hemant Gupta, JJ. Association for Consumer Welfare and Aid v. Granite Gate Properties Private Limited, C.A. No. 259 of 2019 25-03-2019

Service Law - Life Insurance Corporation Act, 1956 - Caretaker on temporary basis - It is now almost 19 years that the respondent has been out of appellant’s services - the interest of justice would be met if a compensation of Rs.One Lakh (Rs.1,00,000/­) is awarded to the respondent in full and final satisfaction in lieu of his right to claim reinstatement in the appellant's services and also in lieu of all his service claims against the appellant. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Life Insurance Corporation of India v. Dinesh Singh, JT 2019 (3) SC 542 C.A. No. 3197 of 2019 26-03-2019

Tax Law - Karnataka Sales Tax Act, 1957 - S. 6­B (1). A.M. Khanwilkar & Ajay Rastogi, JJ. Achal Industries v. State of Karnataka, C.A. No. 4837 of 2011 28-03-2019

Tax Law - Rajasthan Value Added Tax Act, 2003 - Which is the proper Entry under the VAT Act for charging tax on "Mobile Crane Wire Ropes" - Whether the goods "Mobile Cranes Wire Ropes" fall under Entry 155 of Schedule IV or under the Residuary Entry of Schedule V of the VAT Act - Held, the wire ropes used in the Mobile Cranes are a part of the Mobile Cranes and thus fall in Entry 155 of Schedule IV of the VAT Act - It is taxable at the rate of 4%. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. CTO, Anti Evasion, Circle III, Rajasthan, Jaipur v. Prasoon Enterprises, Jaipur, JT 2019 (3) SC 590 C.A. No. 3198 of 2019 26-03-2019
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