2021 SCC Vol. 4 Part 3
Arbitration and Conciliation Act, 1996 — Pt. II and S. 20 — Law of arbitration/curial law/seat of arbitration — Determination of, by consent of parties: In this case, Cl. 67 of the contract between the parties inter alia provided that in the absence of an Arbitration Act in Bhutan, the Arbitral Tribunal shall follow/be guided by the basic principles and procedures as contained in the Indian Arbitration and Conciliation Act, 1996 while Cl. 67(vii)(a) provided that all arbitration shall be held at New Delhi, India/Thimphu, Bhutan. On 25-2-2013, the Kingdom of Bhutan enacted the Alternative Dispute Resolution Act, 2013 while on 28-7-2020, the respondent Contractor sent a notice of arbitration to the appellant Authority under Cl. 67(ii) of the Contract, and nominated its arbitrator. Since the appellant Authority had failed to appoint its arbitrator, High Court exercised its jurisdiction under S. 11 of the Indian A&C Act, 1996 and made the appointment and also directed that the two arbitrators would proceed to appoint the presiding arbitrator. Appellant Authority did not have an issue with respect to the panel of arbitrators appointed and their grievance was limited to the applicability of the Indian A&C Act, 1996 and the seat of arbitration at New Delhi. In view of the consensus arrived at between the parties, the order of High Court was modified to the extent that all disputes arising out of the agreement dt. 14-4-2009 shall be conducted in accordance with the Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of arbitration at Thimphu. [Punatsangchhu-1 Hydroelectric Project Authority v. Larsen & Toubro Ltd., (2021) 4 SCC 511]
Arbitration and Conciliation Act, 1996 — Ss. 8 and 11 — Arbitration clause/agreement contained in substantive contract/instrument on which stamp duty has to be compulsorily paid: Issues referred to larger Bench of five Judges that whether the arbitration clause can be enforced/acted upon, when such substantive contract/instrument is unstamped, whilst adjudication of the rights and obligations under the underlying substantive contract cannot proceed before the deficit stamp duty is paid in accordance with law; Authority which must impound the unstamped instrument at different stages, so that the deficit stamp duty may be paid in accordance with law and adjudication of the rights and obligations under the underlying substantive contract, by the arbitrator may commence thereafter. [N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379]
Constitution of India — Art. 226 — Exercise of power under — Reasoned and independent analysis — Necessity: Technology enables Judges to bring speed, efficiency and accuracy to judicial work but prolific use of “cut-copy-paste” function should not become substitute for substantive reasoning which, in ultimate analysis is defining feature of judicial process. The fact that Judges are indeed hard pressed for time, faced with burgeoning vacancies and large caseloads acknowledged and perhaps crisp reasoning could be answer to the issue. [UPSC v. Bibhu Prasad Sarangi, (2021) 4 SCC 516]
Contempt of Court — Civil Contempt — Wilful disobedience/contumacious conduct: Conduct lacking in bona fides alone, of successful resolution applicant under Insolvency Code is insufficiency to invite the penal consequences which emanate from the exercise of the contempt jurisdiction of the Court. [AMTEK Auto Ltd. Committee of Creditors v. Dinkar T. Venkatasubramanian, (2021) 4 SCC 457]
Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Tribunals — Tenure of Members/Chairperson — Competent authority — Scope of judicial interference: In this case, tenure of Chairperson of Tribunal directed/specified by Government under the applicable statutory provisions which held the field at the relevant time, come to an end. Prayer for extension of tenure on ground that incumbent Chairman was the only judicial member of the Board and that there was no other judicial member, held not tenable in the light of principles laid down in Rojer Mathew, (2020) 6 SCC 1 and Madras Bar Assn., (2021) 7 SCC 369. [International Assn. for Protection of Intellectual Property (India Group) v. Union of India, (2021) 4 SCC 519]
Government Grants, Largesse, Public Property and Public Premises — Affirmative Action Schemes, Pension and Other Schemes — Pension Schemes — Generally — Different pension schemes for freedom fighters: In this case, applicant had not produced required documents as per scheme concerned, hence he was held, not entitled to pension under that scheme though he might be getting Freedom Fighter’s Pension under some other scheme. [Union of India v. A. Alagam Perumal Kone, (2021) 4 SCC 535]
Insolvency and Bankruptcy Code, 2016 — Ss. 7 & 9 and S. 238 — Petition under S. 7 or S. 9 IBC — Maintainability of, even when there exists an admitted winding-up petition regarding the same company: IBC has overriding effect over winding-up provisions of the Companies Act, including S. 446 of the Companies Act, 1956/S. 279 & S. 434(1)(c) of the Companies Act, 2013. (1) Pendency of admitted winding-up proceedings, thus held, not a bar to S. 7 or S. 9 IBC petitions, as the latter are independent and overriding proceedings. (2) Transfer of such pending admitted winding-up petition to NCLT for adjudication under IBC, further held, is not the only route to IBC in such case, as S. 7 or S. 9 IBC petition are independent proceedings and IBC has overriding effect over winding-up provisions of the Companies Act. (3) Fresh petition under S. 7 or S. 9 IBC, or, transfer of pending admitted winding-up petition to NCLT under IBC, are subject only to: (i) test of irreversible/irretrievable act(s)/stage having been done or reached in the winding-up proceedings as laid down in Action Ispat, (2021) 2 SCC 641, or, (ii) where a company in winding up is near corporate death. These have to be determined in the facts and circumstances of each case, and an irresistible conclusion reached in this regard. (4) Irreversible/irretrievable act(s)/stage in the winding-up proceedings, clarified, must be act(s) or stage in or of the winding-up proceedings themselves. Sale of property of corporate creditor/company which is under winding-up proceedings by secured creditor who stood outside the winding-up proceedings, held, is not irreversible/irretrievable act/stage in the winding-up proceedings themselves, hence, not a bar to fresh petition under S. 7 or S. 9 IBC. (5) Fresh S. 7 or S. 9 IBC petition being an independent proceeding having overriding effect over winding-up provisions of the Companies Act, and which has to be determined on its own merits, held, it is irrelevant that pendency of winding-up proceedings was suppressed in S. 7 or S. 9 IBC application, nor would such act be a subterfuge. [A. Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435]
Insolvency and Bankruptcy Code, 2016 — Ss. 9 and 8 — Application under S. 9 by operational creditor — Prerequisites for: In this case, operational creditor failed to prove operational debt and its default and there was a pre-existing dispute as to existence of such debt. Disputes raised by corporate debtor prior to receipt of demand notice and the demand notice also replied to within the statutory prescribed period of 10 days. The Supreme Court held that application under S. 9 was rightly rejected by NCLT and NCLAT. [Allied Silica Ltd. v. Tata Chemicals Ltd., (2021) 4 SCC 515]
Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Acquittal of co-accused: Claim of parity is not available to the appellant, when unlike the appellant, none of the co-accused were apprehended at the spot and no evidence produced to connect them with the alleged offence. Contrarily, not only was appellant apprehended at the spot of the incident but also found in conscious possession of the contraband. [Sk. Sakkar v. State of W.B., (2021) 4 SCC 483]
Reservation, Concession, Exemption, Relaxation and Affirmative Action — Migration of Category: Candidates belonging to vertical reservation categories are entitled to be selected in “Open or General” category on basis of their merit and in such circumstances their selection cannot be counted against their respective quota for vertical reservation. In case of migration to open category based on merit, manner in which vertical reservation and horizontal reservation are to be applied, explained in detail. [Saurav Yadav v. State of U.P., (2021) 4 SCC 542]
Rights of Persons with Disabilities Act, 2016 — Ss. 2(5) and 2(zc) r/w S. 2(i) of the 1995 Act — Dilated Cardiomyopathy — Whether disability: S. 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, taking into account visual disability, locomotor disability, mental illness, mental retardation, hearing impairment and leprosy but not heart ailment. Under S. 2(s) of the 2016 Act, “a person with disabilities” is defined as a person with long term physical, mental, intellectual or sensory impairment which prevented his full and effective participation in society. S. 2(zc) defines “specified disability” as those mentioned in Schedule to the 2016 Act which envisage “physical disability”, “intellectual disability” and “mental behaviour”. Dilated Cardiomyopathy condition neither specified disability her relatable to broad spectrum of impairments, which hinders full and effective participation in society. Thus, Dilated Cardiomyopathy condition of appellant does not bring his case either within ambit of 1995 Act or the 2016 Act. [Nawal Kishore Sharma v. Union of India, (2021) 4 SCC 487]
Service Law — Pension — Cut-off date/point — Validity and binding effect of — Scope of judicial review — Freedom of employer to introduce new schemes and benefits having regard to its financial health: In this case, Pension scheme was introduced vide Noti. dt. 6-10-1995 w.e.f. 5-6-1995 i.e. the date on which scheme was approved by Cabinet/Government. Respondent Union employees retiring prior to 5-6-1995 and governed by CPF scheme, held not entitled to pension under pension scheme in question. [Himachal RTC v. Retired Employees Union, (2021) 4 SCC 502]
Service Law — Police — Recruitment Process — Post of Police Sub-Inspector: Recruitment over and above notified vacancies, not permissible. [Gajanan Babulal Bansode v. State of Maharashtra, (2021) 4 SCC 494]