Moral Misconduct of an Arbitrator II

In Cochin Shipyard, Misra and Pant JJ specifically declined to enter upon a discussion pertaining to any moral misconduct of an Arbitrator or its relevance under The Arbitration Act, 1940. Recently, in Harish Chandra & Company v. State of Uttar Pradesh, [Civil Appeal No. 8829 of 2016] SC has held, “One cannot dispute the legal […]

Legal Proceeding

“The expression ‘legal proceeding’ has been the subject matter of consideration in the Federal Court decision in Governor-General in Council v. Shiromani Sugar Mills Ltd., AIR 1946 FC 16. In that decision Section 171 of The Indian Companies Act, 1913 came up for consideration. “When a winding-up order has been made or a Provisional Liquidator […]

The K3G National Anthem Scene

“It is quite demonstrable and patently clear that the National Anthem was used in a variety show of a school. It was presented as an item on behalf of Class IV students. It is also noticed that when the boy started singing the National Anthem the audience do not stand up immediately. The movement is […]

Prima Facie

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 […]

Indubitably, Yatin Narendra Oza

Yatin Narendra Oza is as an outspoken Senior Advocate. He was Designated at 39. He has served as President of Gujarat High Court Advocates Association 16 times. YNO, while contemptuously alleging that 2 Judges had proximity to the Prime Minister, was “under the impression that he was making a genuine effort to protect the interest […]

Ex Debito Justitiae I

“The principle of ‘ex debito justitiae’ has been elaborately dealt with in the concurring Judgment of Umesh C. Banerjee J in Rupa Ashok Hurra, (2002) 4 SCC 388, Paragraph 69. The principle is founded on a recognition of a debt that justice delivery system owes to a litigant to correct an error in a judicial […]

রাজ্য সরকারের মতামত পরিবর্তন

As the governing hands of Kerala have changed, so have its stands on the Sabarimala Controversy. This has attracted widespread reportage. An inspired Dr. Abhishek Manu Singhvi, Senior Advocate argued recently, a State Government cannot be allowed to change its stand before SC in proceedings borne out of Article 136, at time of arguments especially, […]

First Information Report I

Manoj Kumar Sharma, serving in the Indian Air Force at the relevant time, got married to one Nandini on 27.04.1999. On 20.09.1999, Nandini Sharma committed suicide at her matrimonial home. Ambala Police closed the case after fulfilling the requirements of Section 174 of The Code of Criminal Procedure, 1973 holding, there was no foul play […]

Section 45 of The Arbitration Act

My Lord, What is the scope of enquiry under Section 45 of The Arbitration and Conciliation Act, 1996? “It is settled law that an Arbitration Agreement is an independent or ‘self-contained’ agreement. Notwithstanding the fact that rights and obligations arising out of a substantive contract and the agreement to have the disputes settled through the […]

Order 6, Rule 16 of The Code of Civil Procedure, 1908

“We think it profitable to examine the scheme of Order 6, Rule 16: “16. Striking out pleadings – Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading – (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, […]

Section 311 of The Code of Criminal Procedure, 1973 I

Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a Presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. Presiding Judge must cease to be a spectator and a mere recording machine. […]

The Contra Proferentem Rule IV

“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 […]

Writ Against Order of Tribunals I

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, […]

Arbitration Clauses in Trust Deeds

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 […]

Tender Law II

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 […]

Section 230 of The Indian Contract Act, 1872

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 […]

Referred to Larger Bench XI: Statutory Appeals to Supreme Court

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 […]

Compensatory Jurisprudence of Constitutional Courts V: Peaceful Protests of Kashmir

“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 […]

Section 13B of The Hindu Marriage Act II

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 […]

The Nature of Judicial Power: Powers of Review of Supreme Court I

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; […]

The Last Word

A Diversion for Lawyers and Others