Where an agreement is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. The principle is Contra Proferentem, also known as ‘interpretation against the draftsman’. Such rules are rarely if ever of any assistance when it comes to construing commercial contracts. The principle may […]
Read more "The Contra Proferentem Rule I"December 22, 2014: “In 1923, Scrutton L.J. expressed his regret that the “Counsel who argued this case would probably not recognize any of the Judgments as having any relation to the arguments they addressed to us” [Smith v. Smith, (1923) P. 191, 202]. Lord Maugham too lamented once that it was hard for him to […]
Read more "Cent Percent, Sen Precedent"‘Stare Decisis’ is a Latin phrase which means “to stand by decided cases; to uphold precedents; to maintain former adjudication.” SC in Paragraph 26-A, Indra Sawhney, (1992) 3 SCC 217 observed, in law, certainty/consistency/continuity are highly desirable features. Doctrine of Stare Decisis is not an ‘imprisonment of reason‘. Concepts are good servants but bad masters. […]
Read more "Stare Decisis, Not Logic Intolerant"“Ecclesiastical Jurisprudence in India revolves around exposition of Constitutional Guarantees under Articles 25 and 26 as made from time to time. The development of this branch of jurisprudence primarily arises out of claimed rights of religious groups and denominations to complete autonomy and prerogative of exclusive determination of essential religious practices. A decision on such […]
Read more "Indian Ecclesiastical Jurisprudence"To convict for the offence punishable under Section 304-B, the following essentials must be satisfied: (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; “Section 304B IPC does not categorize death as homicidal or suicidal or accidental. This is because death caused by […]
Read more "Landmark Judgment on Dowry Deaths"My Lord, Is there a Fundamental Distinction between a “Repeal” and an “Omission” in that in the case of a “Repeal” the Statute is obliterated from the very beginning whereas in the case of an “Omission” what gets omitted is only from the date of “Omission” and not before? No. We do not find any […]
Read more "Lawyer Profiles II: Repeal v. Omission"It is well settled that a “means and includes” definition is exhaustive in nature and that there is no scope to read anything further into the said definition. Hon’ble Justice Nariman has yet again quoted P. Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC 348 to re-establish the proposition [See, State Bank of […]
Read more "A “Means and Includes” Definition III"“We are conscious of the principle that the word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive. However, there may be circumstances where these words are to be read as vice-versa to give effect to manifest intention of Legislature as disclosed from the context. Of course, these two words normally ‘or’ and ‘and’ are […]
Read more "Disjunctive, Conjunctive I"“You wait, little girl, on an empty stage For fate to turn the light on Your life, little girl, is an empty page That men will want to write on You are sixteen going on seventeen Baby, it’s time to think Better beware, be canny and careful Baby, you’re on the brink.” Oscar Hammerstein II, […]
Read more "Sixteen Going On Seventeen"Is there a method to this madness? No. Use the following words in your decision: axe, vengeance, crusade, combat, contestation, discord, scuffle, surreptitious, Sphinx, Rome. Accepted. “The present appeal, by special leave, on a summary glance may appear that a victim who might have an axe to grind against the accused, the Respondent No. 2 […]
Read more "Drafting Judgments/Literary Challenges"Hon’ble Justice Vikramajit Sen turns 65 on the last day of this year and retires duly. I shall forever associate him with ‘precedents’. What binds and what holds is a recurrent theme in several of his Judgments. Rashmi Metaliks, (2013) 10 SCC 95: SC often has to “face lengthy arguments in each case because of the […]
Read more "Sen J I"A meeting was called by Chief Justice of India after Bomb Blasts outside Delhi High Court on 07.09.2011. Court on its Administrative Side, after deliberations with Delhi Police, prohibited vendors to squat along the perimeter of Supreme Court. There is a road called Bhagwan Das Road after Supreme Court compound wall. After crossing the road, […]
Read more "Safety and Security of Supreme Court"In Julius v. Bishop of Oxford, (1880) 5 AC 214 it was observed, “The words ‘it shall be lawful’ are plain and unambiguous. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to […]
Read more "Power Coupled With Duty I"The Last Word: As per standards of Hurra, (2002) 4 SCC 388 a Curative Petition shall be circulated amongst “3 Senior-Most Judges” of SC and “Judges who passed the Judgment complained of, if available”. When a Majority concludes, a hearing is required – it should be listed. Hon’ble Justice Dipak Misra: “Needless to say, the availability […]
Read more "The Yakub Hanging"“It may not always be safe for a Writ Court to decide issues and facts having great impact on general public or a large part of it only on basis of Oath against Oath.” – Hon’ble Justice Dipak Misra, Riju Prasad Sharma v. State of Assam, [Civil Appeal Nos. 3276-3278 of 2013]. ‘Oath against Oath’ […]
Read more "Oath Against Oath"My Lord, What is Truth? “‘Satyameva Jayate’ is a mantra from the ancient scripture Mundaka Upanishad. It was adopted as the National Motto of India. It is inscribed in Devanagari script at the base of the National Emblem. The meaning is as follows: truth alone triumphs; not falsehood. Through truth the divine path is spread […]
Read more "The Importance of Being Earnest I"In Hemlata Singh v. Collector [MANU/UC/0315/2008], Hon’ble Justice Sudhanshu Dhulia [High Court of Uttarakhand] notes, “Chutzpah is a remarkable expression in Hebrew. Chutzpah is said to happen when a man kills his mother and father and then asks for clemency on the ground that he is now an orphan.” Hon’ble Justice S. Dhulia is the […]
Read more "Chutzpah"“In M/s. Motilal Padampt Sugar Mills Company, (1979) 2 SCC 409 this Court, on an exhaustive survey of the law pertaining to Doctrine of Promissory Estoppel, held, the same was equitable and would yield when equity so required. While propounding, the same had been evolved to avoid injustice where it is demonstrated that a party acting on […]
Read more "Promissory Estoppel II"“Statutes often use expressions such as “deems it necessary”, “reason to believe” et cetera. Suffice it to say, these expressions have been held not to mean: subjective satisfaction of the officer concerned. Such power given to the concerned officer is not an arbitrary power and has to be exercised in accordance with the restraints imposed […]
Read more "Reason To Believe"“The expression Flies in the Face of Common Sense is taken from an interesting Judgment of the House of Lords reported in R v. Secretary of State for the Home Department, (1995) 2 All ER 244. Lord Browne Wilkinson was faced with an argument that Section 171 of The Criminal Justice Act of 1988 vests in […]
Read more "Flies in the Face of Common Sense"
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