“Insurance is a contract of speculation. Good faith forbids either party, by concealing what he privately knows, to draw the other into a bargain from his ignorance of the fact, and his believing the contrary.” – Lord Mansfield, Carter v. Boehm, (1766) 3 Burr 1905. What is necessary to be disclosed are ‘material facts’ which […]
Read more "Contracts of Insurance IV"Court has propounded several tests for determining reasonableness for purpose of Article 19(1)(g). These have ranged from testing restrictions for arbitrariness [Dwarka, AIR 1954 SC 224; Shree Meenakshi Mills, AIR 1974 SC 366], excessiveness [Chintaman Rao, AIR 1951 SC 118] and discerning their objective of compliance with Directive Principles of State Policy [Saghir Ahmad, (1955) […]
Read more "Proportionality in Culture of Justification I"As per settled proposition of law, mere mentioning and using of word ‘fraud’/’fraudulent’ is not sufficient to satisfy test of ‘fraud’. Hon’ble Justice Vivian Bose, Bishundeo Narain v. Seogeni Rai, (1951) SCR 548: “Now if there is one rule which is better established than any other, it is – in cases of fraud, undue influence and […]
Read more "Fraud I"A dispute arose relating to recovery of 3648.80 grams of pure gold. Arbitration Clause was invoked. High Court appointed a Retired District Judge as Sole Arbitrator. Gyan Prakash Arya was directed, “return 3648.80 grams of pure gold within three months along with interest @18% per annum calculating value of gold at Rs. 740/- (Rupees Seven […]
Read more "Section 33 of The Arbitration Act / Arbitration of Gold"Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service, [1985] AC 374; Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All ER 680. An administrative action is subject to judicial review on grounds of illegality, irrationality and procedural impropriety. _____ When a person takes a chance […]
Read more "Risky Participation / The Revival of Ray LXXV"An interpreter, to deviate from defined meaning, should record reasons to show word/expression in a particular provision carries a different meaning; contrary context is not to be assumed or accepted easily, in absence of indication and reason to differ from defined meaning. Repugnancy is not indicated and does not arise in context of clause 22(ix)(a) […]
Read more "Repugnancy II"Welspun Specialty Solutions Limited was formerly known as Remi Metals Gujarat Limited. Arbitral Tribunal held, merely having a clause in contract making ‘time of essence’ would not be determinative. Learned Senior Counsel, appearing for Remi Metals (now Welspun), submitted, view taken by Arbitral Tribunal was reasonable, plausible and can be sustained. We need to ascertain […]
Read more "Time of Essence"Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189; State of Karnataka v. Pratap Chand, (1981) 2 SCC 335; Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1; Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala, (1983) 1 SCC 9; National Small Industries Corporation Limited v. Harmeet Singh Paintal, (2010) 3 […]
Read more "Vicarious Liability"The word ‘laches’ is derived from French, meaning “remissness and slackness”. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches is one of fact and so also of prejudice. The said principle may not have any application when […]
Read more "The Doctrine of Fairness"It is clear, if contract prohibits pre-reference and pendente lite interest, Arbitrator cannot award interest for said period. Clause 17, barring interest, is very clear and categorical. See, Sayeed Ahmed, (2009) 12 SCC 26; Kamatchi Amman Constructions, (2010) 8 SCC 767; Bharat Heavy Electricals Limited, (2015) 5 SCC 718; Chittaranjan Maity, (2017) 9 SCC 611. […]
Read more "Section 31(7) of The Arbitration Act VII"Sushil, on 28.07.2011, went to Jodhpur, for business purposes, in one Bolero [Temporary Registration No. PB-11-T-5101 from 20.06.2011 to 19.07.2011]. Sushil stayed at Geeta Guest House and found next morning, his Bolero had been stolen. There is nothing on record to suggest, Sushil had applied for registration or was awaiting registration. Narinder Singh v. New […]
Read more "Contracts of Insurance III"Soutrik was successful in JEE 2020 (Mains) and was qualified and eligible to appear in JEE (Advanced), 2020. He scored Rank 4015. He secured admission in Chemical Engineering at IIT Kharagpur. Soutrik had also been offered B.S. (Mathematics) in IIT Bombay through a separate admission process based on his performance in Mathematics Olympiad. IIT alleges, […]
Read more "Matters of Education II"In service jurisprudence, retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind, retrospective seniority, unless directed by Court or expressly provided by applicable Rules, should not be allowed. As in so doing, others who had earlier entered service will […]
Read more "Compassionate Appointment III"The locus classicus is State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19. Justice Y.V. Chandrachud elaborated on extent of judicial review in matters of classification in public employment. On whether Educational Qualifications can be recognized as a criterion for classification, State of Mysore v. P Narasing Rao, AIR 1968 SC 349; Ganga […]
Read more "Educational Qualifications in Promotion II / The Revival of Ray LXXI"The employer terminated services on non-disclosure of pending criminal case. B. Chinnam Naidu, (2005) 2 SCC 746 observed, when a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service. Daya Shankar Yadav, (2010) 14 SCC 103 observed, purpose of seeking information with respect to antecedents […]
Read more "Moral Turpitude III"Ssangyong Engineering, (2019) 15 SCC 131 has in clear terms delineated the limited area for judicial interference, taking into account amendments brought about by 2015 Amendment Act. As has been held in Ssangyong Engineering, mere contravention of substantive law as elucidated in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 is no longer […]
Read more "Section 34(2A) of The Arbitration Act II"Chief Justice A.N. Ray, speaking for a Two-Judge Bench of this Court, in K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, (1974) 2 SCC 506 observed, Municipality functions for public benefit and when it “acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is […]
Read more "Unauthorized Constructions / The Revival of Ray LXX"Constitution Bench of this Court in Marri Chandra Shekhar Rao, (1990) 3 SCC 130 had an occasion to examine, whether Scheduled Castes in relation to a particular State would be entitled to benefits or concessions allowed to Scheduled Castes in matters of education/employment in another State. Court observed, if such a contention is to be […]
Read more "Relation to State"The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. _____ The seniority-cum-merit principle is well established in service jurisprudence and does not need much discussion. Three-Judge Bench in B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720 observed: […]
Read more "Seniority in Promotion / The Revival of Ray LXVIII"A ‘letter of intent’ merely indicates a party’s intention to enter into a contract in future. No binding relationship between parties at this stage emerges and totality of circumstances have to be considered in each case. It is no doubt possible to construe a ‘letter of intent’ as a binding contract if such an intention […]
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