While stating, ‘genesis’ of creamy layer principle is to be found in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 Hon’ble Justice R.F. Nariman quoted a few words of Hon’ble Justice Krishna Iyer in Jarnail Singh v. Lachhmi Narain Gupta, [Special Leave Petition (Civil) No. 30621 of 2011]. Of course, Ray CJ had […]
Read more "The Revival of Ray VI"Section 15 of The Hindu Marriage Act, 1955: “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has […]
Read more "Section 5(1) + Section 15 of The Hindu Marriage Act"TOYOTA JIDOSHA KABUSHIKI KAISHA launched the world’s first hybrid car, ‘Prius’, in Japan in 1997. In India, the car was released in 2009 and until that point of time Toyota had not obtained registration of the mark ‘Prius’ in the Indian jurisdiction. M/S PRIUS AUTO INDUSTRIES LIMITED had got the mark ‘Prius’ registered way back […]
Read more "The Goodwill in Passing Off Actions: The Toyota Prius Story"My Lord, Section 2(1)(d) of The Protection of Children from Sexual Offences Act, 2012 should engulf and embrace, in its connotative expanse, the mental age of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person, who even has crossed […]
Read more "The Nature of Judicial Power: The Theory of Creative Interpretation"The Shashoua Principle [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] “When there is an express designation of the Arbitration venue as London and no designation of any alternative place as seat, combined with a supranational body of rules [i.e. ICC] governing the Arbitration and no other significant contrary indicia, the inexorable conclusion is, […]
Read more "Implied Exclusion of Part I of The Arbitration Act IV: The Shashoua Principle"SC in Mohapatra, (2002) 8 SCC 1 had accorded primacy to Hon’ble Chief Justice in consultative process for appointment of an Orissa Lokayukta. Justice Lokur in Chandrashekaraiah, (2013) 3 SCC 117 however confined law laid down in Mohapatra to the facts of that case only. It was held, views expressed by Chief Justice of High Court […]
Read more "Primacy of Views III: The Lokpal and Lokayuktas Act, 2013"My Lord, Difference between Amendment and Waiver, in context of The Indian Contract Act, 1872? Amendment It is settled law that an amendment to a contract being in the nature of a modification of the terms of the contract must be read in and become a part of the original contract in order to amount […]
Read more "Section 62 – Amendments and Section 63 – Waivers"“Purposive interpretation in a social amelioration legislation is an imperative, irrespective of anything else. This is eloquently brought out in Atma Ram, (1988) 4 SCC 284. How labour legislations are to be interpreted has been stated and restated by this Court time and again. In Surendra Kumar, (1980) 4 SCC 443, this Court reminded, semantic […]
Read more "Etymological Excursions in Bread & Butter Statutes"In Gibson v. Skibs, (1966) 2 All ER 478 it was held, “prima facie one would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning.” SC held in […]
Read more "Synonymous Words, Different Meanings"My Lord, 1997 Amendment to Section 28 of The Indian Contract Act, 1872 – Retrospective? No. “What emerges on a reading of the Law Commission Report together with the Statement of Objects and Reasons for the Amendment is that the Amendment does not purport to be either declaratory or clarificatory. It seeks to bring about […]
Read more "Section 28 of The Indian Contract Act, 1872"The rule of construction by reference to ‘contemporanea expositio‘ is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly expressed in Crawford on Statutory Construction […]
Read more "The Doctrine of Contemporanea Expositio I"Throughout the history of the use of the term in Latin, ‘prima facie’ meant only the most cursory, initial impression. It retained that meaning upon its adoption into colloquial English. The term ‘prima facie’ is used in the law both as an adjective and as an adverb. Common Law Courts which developed the judicial meaning […]
Read more "Prima Facie"“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"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"Any attempt at interpretation of a long line of cases proves to be tiresome. Modern Dental College and Research Centre v. State of Madhya Pradesh, [Civil Appeal No. 4060 of 2009], delivered on 02.05.2016, provides a brave summary. Accept it with abundant caution. 5 Judges have no jurisdiction to interpret 7 or 11 erstwhile Lords. The […]
Read more "Look, T.M.A. Pai Again"“The power to invalidate a Legislative or Executive Act lies with the Court. A Judicial Pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a Subsequent Legislative Act for that would amount to an encroachment on the Judicial Powers. However, the Legislature would be competent to pass an Amending […]
Read more "The Nature of Judicial Power: Hon’ble Justice Ranjan Gogoi"“It needs no special emphasis to mention, provisos can serve various purposes. Hidayatullah, J had observed, a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt within the proviso, the […]
Read more "The Proviso I"Though the Rule of Casus Omissus i.e. “what has not been provided for in the statute cannot be supplied by Courts” is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 should be taken […]
Read more "Casus Omissus"My Lord, What is the James Scott Cumberland Reid Principle? Rules of construction are not rules in the ordinary sense of having some binding force. They are our servants not our masters. They are aids to construction, presumptions or pointers. In each case we must look at all relevant circumstances and decide as a matter […]
Read more "Lord Reid"“The Contra Proferentem rule is a principle of last resort.” – North v. Marina, [2003] NSWSC 64. _____ In Fruit Juice Stalls, [Civil Appeal Nos. 618-620 of 2016] Senior Advocate Raju Ramachandran has quoted K. Mohandas, (2009) 5 SCC 313 to elaborate upon the Contra Proferentem rule. The rule is a “a late‐inning tiebreaker, one used when […]
Read more "The Contra Proferentem Rule III"
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