“The common law rule of construction ‘verba chartarum fortius accipiuntur contra proferentem’ means that ambiguity in the wording of a policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law, [9th ed., 1997] deals with the rule of Contra Proferentem as follows: “The Contra Proferentem rule of construction arises only […]
Read more "The Contra Proferentem Rule IV"My Lord, Is a Tribunal, whose Order is challenged under Articles 226, 227 of The Constitution, a Necessary Party? The issue has been considered in Jogendrasinhji, (2015) 9 SCC 1. It holds, Tribunals, who in law are entitled to defend Orders passed by them, are Necessary Parties and if they are not arrayed as Parties, […]
Read more "Writ Against Order of Tribunals I"My Lord, Can a Trust Deed, including an Arbitration Clause, constitute an ‘Arbitration Agreement’ within the meaning of Sections 2(b) and 2(h) read with Section 7 of The Arbitration and Conciliation Act, 1996? No. “Though the case of Vijay Kumar Sharma, (2010) 2 SCC 486 dealt with the execution of a ‘Will’ whereas the case […]
Read more "Arbitration Clauses in Trust Deeds"The party issuing a tender (employer) ‘has the right to punctiliously and rigidly’ enforce the terms of the tender. Here is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor, (1979) 3 SCC 489: “Where a power is given to […]
Read more "Tender Law II"Section 230 of The Indian Contract Act, 1872 categorically makes it clear that an agent is not liable for the acts of a disclosed principal subject to a contract of the contrary. In Marine Contained Services South Pvt. Ltd. v. Go Go Garments, (1998) 3 SCC 247 the SC held that the defence under Section 230 […]
Read more "Section 230 of The Indian Contract Act, 1872"My Lord, Is it permissible and advisable to provide Statutory Appeals directly to Supreme Court, from Orders of Tribunals, on issues not affecting National or Public Interest? “In an Article by Shri T.R. Andhyarujina [Former Solicitor General of India], ‘Restoring, Character and Stature of Supreme Court of India’, Learned Author states… Supreme Court of India […]
Read more "Referred to Larger Bench XI: Statutory Appeals to Supreme Court"“It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organized, non-violent protest marches were a key weapon in the struggle for Independence, and the […]
Read more "Compensatory Jurisprudence of Constitutional Courts V: Peaceful Protests of Kashmir"The ‘statutory period of waiting’ has been waived again in Wadhera v. Wadhera, [Transfer Petition (Civil) No. 569 of 2014]. SC held, “having regard to the background of the several litigations between the parties over a period of 5 years, background of the parties living separately for more than 5 years, submission of the Husband […]
Read more "Section 13B of The Hindu Marriage Act II"Enviro Legal Action v. Union of India, (2011) 8 SCC 161 elaborated scope of Article 137. Kamlesh Verma v. Mayawati, (2013) 8 SCC 320 further held as under: (A) Review Maintainability: Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge or could not be produced; […]
Read more "The Nature of Judicial Power: Powers of Review of Supreme Court I"Bl. Titus Brandsma courageously resisted Nazi ideology and died at Dachau in 1942. The Titus Brandsma Award recognizes a journalist who has made a major contribution to the struggle for human rights. Anto Akkara was conferred the Award in 2013 for having exposed the brutal persecution of Christians in India. In its Award Citation, The […]
Read more "Compensatory Jurisprudence of Constitutional Courts IV: Swami Laxmanananda Saraswati"“The interpretation of the first part of Article 54 of Schedule 1 of The Limitation Act, 1963 is no longer res integra. In Ahmadsahab, (2009) 5 SCC 462 this Court considered the meaning of the word “date” and “fixed” appearing in Article 54… the Court held that the expression “date fixed for the performance” is […]
Read more "The Plea of Limitation VIII: Article 54 of The Limitation Act, 1963"Clearly ignoring The ‘Far Outweigh’ Standard in Recovery from Employees, SC has ruled recently in High Court of Punjab & Haryana v. Jagdev Singh, [Civil Appeal No. 3500 of 2006], even though recovery from retired employees, or employees who are due to retire within one year of the order of recovery, is impermissible, the “principle […]
Read more "The ‘Far Outweigh’ Standard in Recovery from Employees II"“In K.K. Velusamy, (2011) 11 SCC 275 while dealing with the power of Court under Order 18, Rule 17 this Court held that :- “Order 18, Rule 17 of the Code enables Court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the […]
Read more "Order 18, Rule 17 of The Code of Civil Procedure, 1908"While authorities are given latitude in formulating tender conditions, Court has been consistent in requiring adherence to conditions once framed, and has entered into fairly detailed scrutiny of administrative decisions. “The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corporation, (1991) 3 SCC 273, […]
Read more "Tender Law I"“The jurisdiction which this Court exercises under Article 136 has its own self-imposed restrictions. It is sufficient to refer to this Court’s decision reported in Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 where this Court after referring to various decisions has laid down certain principles for exercising the power of this […]
Read more "Article 136 and Criminal Appeals III"Respondent entered into a contract for construction of a commercial complex. Certain disputes arose. Sole Arbitrator passed an Award on 11.11.2010. Both parties appeared before Arbitrator. Arbitrator did not find any justification to allow any claim of Respondent-Contractor. Respondent believed he could take a somersault. It propelled him to file an application under Section 11 […]
Read more "The Plea of Limitation VII: Section 14 of The Limitation Act, 1963"“The Court must necessarily abide the parameters which govern a nuanced exercise of judicial power. Hence, where an effort is made to bring issues of governance before the Court, the basic touchstone on which the invocation of jurisdiction must rest is whether the issue can be addressed within the framework of law or the Constitution. […]
Read more "Battle of the Articles II: 32/226"My Lord, Clarificatory Amendments – Retrospective Effect? Yes. “An Explanation was added by The Consumer Protection (Amendment) Act, 1993 to the definition of the expression ‘consumer’ under Section 2(1)(d) of The Consumer Protection Act, 1986. In Laxmi Engineering Works, (1995) 3 SCC 583 the consumer complaint in question was filed before adding of the said […]
Read more "Section 2(1)(d) of The Consumer Protection Act, 1986 I"My Lord, Consecutive – Term Sentence – Life Sentence? Yes. “The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of The Code of Criminal Procedure, 1973. The Court can, therefore, legitimately direct that the prisoner shall first undergo the […]
Read more "Section 31 of The Code of Criminal Procedure, 1973"My Lord, Independent of the provisions contained in Codes of Civil and Criminal Procedure is there a source of power which the Supreme Court can invoke for directing transfer of a case from or to the State of Jammu and Kashmir? Yes. “The fact that there is no such enabling provision for transfer from or […]
Read more "The Real Apprehension in Transferring Cases II"
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