K.M. MANJUNATH VS ERAPPA.

G (D)
Bench:

Justices CT Ravikumar and Sudhanshu Dhulia

Facts:

In a suit for eviction filed by a landlord, the tenant took a contention that there was no valid
termination of tenancy as per Section 106 of the Transfer of Property Act, 1882. Accepting this

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contention, the Trial Court dismissed the suit. Allowing the revision petition filed by the plaintiff-

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landlord under Section 18 of the Karnataka Small Cause Courts Act, the Karnataka High Court

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held that in view of Section 111(a) of the Act, the lease would determine by the efflux of time and
under such circumstances notice of termination under Section 106 of the Act was not required.

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The High Court held that mere acceptance of the landlord after the expiry of the period of lease

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would not amount to waiver of the termination of lease. Therefore, the defendant, approached the

Issue:

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Apex Court by filing a Special Leave Petition.

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The main issue before the court was that whether mere acceptance of rent by the landlord after the

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expiry of the lease period would amount to waiver of termination of lease.

Relevant Provision:

Section 111 (Transfer of Property Act, 1882). Determination of Lease:

A lease of immovable property determines:

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some event—by the happening
of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the
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same extends only to, the happening of any event—by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at
the same time in one person in the same right;

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 (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to
the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides
that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as
such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is
adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of
such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee
of his intention to determine the lease;

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(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the
property leased, duly given by one party to the other.

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Section 106, 113, 116 TPA, 1882

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Ratio:

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The SC re-iterated that mere acceptance of the rent by the landlord
9O4Oafter the expiry of the period

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of lease would not amount to waiver of the termination of lease.

Cases Referred:

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1. Shanti Prasad Devi v. Shankar Mahto [(2005) 5 SCC 543]: Mere acceptance of rent after
expiry of lease period would not amount to waiver of termination of lease.
2. Pooran Chand v. Motilal [AIR 1964 SC 461]: On expiry of lease period there is no need to
issue notice to tenant for termination of such lease.

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 DEEPAK YADAV VS STATE OF UP
Bench:

CJI NV Ramana, Justices Krishna Murari and Hima Kohli

Facts:

The case relates to the matter of cancellation of a bail order where the High Court had denied
cancellation of the bail on the ground that since there are no supervening circumstances since the

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passing of the order, bail cannot be set aside.

Issue:

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The main issue before the court in this case was that whether cancellation of bail can only be done
in case of supervening circumstances.

Relevant Provisions:

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Section 439(2) CrPC, 1973:

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A High Court or Court of Session may direct that any person who has been released on bail

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under this Chapter be arrested and commit him to custody.

Ratio:

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The Supreme Court set aside the bail order and observed that cancellation of bail cannot be limited
to supervening circumstances only.

Observations:

1. The High Court has not taken into consideration the criminal history of the Accused, nature
of crime, material evidences available, involvement of the Accused in the said crime and
recovery of weapon from his possession.
2. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail
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where the accused istr-5N
charged with a serious offence. The sound reasoning in a particular
case is a reassurance that discretion has been exercised by the decision maker after
considering all the relevant grounds and by disregarding extraneous considerations.

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 3. This Court certainly has the inherent powers and discretion to cancel the bail of an accused
even in the absence of supervening circumstances. Following are the illustrative
circumstances where the bail can be cancelled :-
a. Where the court granting bail takes into account irrelevant material of substantial
nature and not trivial nature while ignoring relevant material on record.
b. Where the court granting bail overlooks the influential position of the accused in
comparison to the victim of abuse or the witnesses especially when there is prima
facie misuse of position and power over the victim.

while granting bail.

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c. Where the past criminal record and conduct of the accused is completely ignored

d. Where bail has been granted on untenable grounds.

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e. Where serious discrepancies are found in the order granting bail thereby causing
prejudice to justice.

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f. Where the grant of bail was not appropriate in the first place given the very serious

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nature of the charges against the accused which disentitles him for bail and thus

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cannot be justified.

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g. When the order granting bail is apparently whimsical, capricious and perverse in

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the facts of the given case.

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 MALKEET SINGH GILL VS STATE OF CHHATTISGARH
Bench:

Justices Indira Banerjee and JK Maheshwari

Facts:

The trial court convicted the accused under Sections 409, 420, 409 r/w 120B and 420 r/w 120B
IPC, 1860 and directed the accused to serve the sentence one after the other. The Appellate Court

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upheld the judgment. The High Court partly allowed the revision and directed the serving of

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sentences to be concurrent.

Issue:

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One of the issues that ultimately arose was that what was the scope to which the trial/appellate

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court could award concurrent or consecutive sentences to the convicts.

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Relevant Provision:
Section 39(1) CrPC, 1973:

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When a person is convicted at one trial of two or more offences, the Court may, subject to the

To
provisions of section 71 of the Indian Penal Code (45 of 1860 ), sentence him for such offences,
to the several punishments prescribed therefor which such Court is competent to inflict; such
punishments when consisting of imprisonment to commence the one after the expiration of the
other in such order as the Court may direct, unless the Court directs that such punishments shall
run concurrently.

Ratio:

The SC observed that trial/appellate court has full discretion to order sentences to run concurrently
or consecutively as they deem fit according to the circumstances of the case.

Cases Referred: tr-5N7R4N5L8M

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1. O.M. Cherian alias Thankachan v. State of Kerala & Ors. [(2015) 2 SCC 501]: Section 31
CrPC leaves full discretion with the court to order sentences for two or more offences at
one trial to run concurrently, having regard to the nature of offences and attendant
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 SHRIRAM HOUSING FINANCE AND INVESTMENT INDIA LTD VS OMESH MISHRA
MEMORIAL CHARITABLE TRUST
Bench:

Justices Indira Banerjee and JK Maheshwari

Facts:

A decree was passed by the trial court in favor of the plaintiff restricting the defendant from interfering
with the right of passage of the plaintiff. During the execution proceedings, a third party claiming to be the

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bona-fide purchaser of the property and also in possession of the property, filed objections before the
executing court that the plaintiff were interfering with the possession of the property. The trial court and

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the High Court held that the objections of the purchaser were not maintainable. The appellant pleaded before
the SC that objections under Order 21 Rule 97 CPC, 1908 were maintainable. The respondent pleaded that

Issue:

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the appellant was neither ‘decree holder’ not ‘auction purchaser’ and hence the objections wont lie.

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The main issue in this case was that the whether purchaser of suit property could file objections

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under Order 21 Rule 97 CPC, 1908 challenging the execution
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To
Important Provisions:

Order 21 Rule 97 CPC, 1908. Resistance or obstruction to possession of immovable property:

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or obstructed by any person in obtaining
possession of the property, he may make an application to the Court complaining of such resistance
or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon
the application in accordance with the provisions herein contained.

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The SC held that a purchaser of suit property cannot file objection under Order 21 Rule 97 CPC,
1908 challenging the execution of the decree by the decree holder.

Observations:
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 1. Under Rule 97, it is only the 'decree holder' who is entitled to make an application in case
where he is offered resistance or obstruction by 'any person'.

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 NEILAN INTERNATIONAL CO. LTD. VS POWERICA LIMITED
Bench:

Justice JK Maheshwari

Facts:

The petitioner had filed a transfer petition under Section 25 CPC, 1908 for transfer of an
application seeking setting aside of an arbitral award passed vide International Court of Arbitration

m
Case No. 19933/TO in London. The petitioner claimed that Bengaluru Court (where application

o
u/s 34 Arbitration Act was made) had no jurisdiction to entertain an award passed under
International Commercial Arbitration.

Issue:

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Whether the question pertaining to jurisdiction could be raised before the SC under a transfer

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petition u/s 25 CPC, 1908.

Relevant Provision:

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Section 25 CPC, 1908 Power of Supreme Court to transfer suits, etc.:
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(1) On the application of a party, and after notice to the parties, and after hearing such of them as
desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section
is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred
from a High Court or other Civil Court in one State to a High Court or other Civil Court in another
State……..

Ratio:

The Supreme Court held that the scope of Section 25 CPC is very limited and the questions
pertaining to jurisdiction of civil courts cannot be raised under this provision.
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Observations: tr-5N7R4N5L8M

1. The plea of jurisdiction or the lack of it can be prompted before the Court in which the
proceedings are pending.

Cases Referred:
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 1. Naivedya Associates v. Kirti Nutrients Ltd [LL 2021 SC 356]: Question of jurisdiction
cannot be entertained in a transfer petition.

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To

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 M/S MARTIN & HARRIS PRIVATE LTD VS RAJENDRA MEHTA
Bench:

Justices Indira Banerjee and JK Maheshwari

Facts:

The appellant had challenged the order of Rajasthan High Court putting a condition on the
appellant tenant to pay a sum of Rs. 2,50,000 per month as mesne profits to the landlord in order

m
to stay the execution of an eviction decree passed against him.

Issue:

.c o
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The SC observed whether mesne profits were payable to the landlord once a decree of eviction
passed against the tenant had been stayed.

Relevant Provision:

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Section 2(12) CPC, 1908. Mesne Profits:

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"Mesne profits" of property means those profits which the person 4Owrongful possession of such
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property actually received or might with ordinary diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person in
wrongful possession.

Ratio:

The SC re-iterated that once a decree of eviction is stayed, it is necessary for the appellate court to
fix the mesne profits to be paid by the tenant to the landlord for continuing the possession of the
premises.

Observations:

1. After passing the decree of eviction

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the tenancy terminates and from the said date the
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landlord is entitled for mesne profits or compensation depriving him from the use of the
premises.
2. The Court further observed the the basis of determination of the amount of mesne profit
depends on the facts and circumstances of each case considering place where the property
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 is situated i.e. village or city or metropolitan city, location, nature of premises i.e.
commercial or residential are and the rate of rent precedent on which premises can be let
out are the guiding factor in the facts of individual case.

Cases Referred:

1. Marshall Sons & Co. Ltd. v. Sahi Oretrans Pvt. Ltd. [(1999) 2 SCC 325]: Once a decree
for possession has been passed and the execution is delayed depriving the decree holder to
reap the fruits, it is necessary for the Appellate Court to pass appropriate orders fixing

by a person who is holding over the property.

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reasonable mesne profits which may be equivalent to the market rent required to be paid

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2. Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd. [(2005) 1 SCC 705]: Appellate
Court does have jurisdiction to put reasonable terms and conditions as would in its opinion

the decree while granting the stay.

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reasonable to compensate the decree holder for loss occasioned by delay in execution of

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 STATE OF MADHYA PRADESH V SEEMA SHARMA

Bench:

Justices Indira Banerjee and CT Ravikumar

Facts:

Seema Sharma, who was appointed as Librarian-cum-Museum Assistant, Government Dhanvantri

Ayurvedic College, Ujjain, after completion of 8 years of service, had claimed the UGC scale of

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pay as paid to the persons in the senior scale of Librarian in colleges under the Higher Education
Department. Since her request was not acceded to by the State Authorities, she had approached

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the High Court and the High Court granted relief to her. Appeal was filed before the Supreme
Court on the ground that the respondent was under the Ayush Department and not the Higher

Ayush Department.

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Education Department and hence no UGC pay scale was payable to her under the rules of the

Issue:

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The issue before the court was that whether an employee could claim equal pay on par with other

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similarly designated persons or persons carrying on similar work.

Relevant Provisions:

Article 39(d) of Constitution:

The State shall, in particular, direct its policy towards securing that there is equal pay for equal
work for both men and women.

Ratio:

The Supreme Court held that mere similarity of designation or similarity of quantum of work does
not entitle an employee to claim equal pay.
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Observations:

1. The doctrine of equal pay for equal work could only be invoked when the employees were
similarly circumstanced in every way. Mere similarity of designation or similarity or
quantum
9B4I of work was not determinative of equality in the matter of pay scales. The Court
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 had to consider all the relevant factors such as the mode of recruitment, qualifications for
the post, the nature of work, the value of work, responsibilities involved and various other
factors.
2. Fixation of pay scales is a matter of policy that can be interfered by the courts only in
exceptional cases where there is discrimination between two sets of employees appointed
by the same authority, in the same manner, where the eligibility criteria is the same and the
duties are identical in every aspect.
3. In a previous case, a physical training instructor in a Government Ayurvedic College had

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been granted UGC pay scale and the respondent relied on the said case. In this respect, the
SC held that, “It is also well settled that there can be no equality to a wrong and/or

c
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illegality. Just because a librarian may have been erroneously granted the UGC pay scale,
that would not entitle others to claim the UGC pay scale, if not applicable under the Rules.”

Cases Referred:

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1. State of Madhya Pradesh v. Ramesh Chandra Bajpai [(2009) 13 SC 635]: Equal pay for
equal work can be invoked by only those persons who are similarly placed in all respects.

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2. State of Madhya Pradesh v. Narmada Bachao Andolan [(2011) 7 SCC 639]: Policy

To
decisions of the government can only be interfered by the courts in exceptional
circumstances.

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 UNION OF INDIA VS UNITED PLANTERS ASSOCIATION OF SOUTHERN INDIA
Bench:

Justices Dinesh Maheshwari and Vikram Nath

Facts:

A transfer petition was filed before the SC by the Union of India in relation to more than 140 writ
petitions filed before 18 High Courts across the country challenging the constitutional validity of

m
Payment of Bonus (Amendment) Act, 2015. The contention was that there is possibility of varying

o
judgments passed by the various High Courts which would lead to an undesirable situation.

Issue:

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The issue in this matter was that whether a likelihood of divergence of views can be the ground of
a transfer petition before the Supreme Court.

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Relevant Provision:

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Article 139A of the Constitution. Transfer of certain cases:

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(1) Where cases involving the same or substantially the same questions of law are pending before

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the Supreme Court and one or more High Courts or before two or more High Courts and the
Supreme Court is satisfied on its own motion or an application made by the Attorney General of
India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court or
the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after
determining the said questions of law return any case so withdrawn together with a copy of its
judgment on such questions to the High Court from which the case has been withdrawn, and the
High Court shall on receipt thereof, proceed to dispose of the case in conformity with such
judgment.
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(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any
case, appeal or other proceedings pending before any High Court to any other High Court.

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 Ratio:

The SC held that mere likelihood of diverging views cannot be a ground for filing transfer petition
before the SC.

Observations:

1. No hard and fast rule or any structured formula is provided nor appears desirable; a
comprehensive view of all the facts and relevant surrounding factors is the best guiding
light for exercise of this jurisdiction under Article 139A of the Constitution of India.

c o m
2. There appears no reason to transfer the matters to any one High Court; rather it appears
just and proper that the petitions in the jurisdictional High Courts are decided with

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reference to their own factual background and the law applicable.

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 IN RE PERRY KANSAGRA
Bench:

Justices UU Lalit and PS Narasimha

Facts:

The proceedings relate to an order passed by the SC in 2021 relating to the grant of custody of a
child to a Kenyan citizen of Indian origin. This order was recalled by the SC after finding that the

m
case was based on a fraud by the Kenyan citizen and material facts had been suppressed by him.

Issue:

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The main issue before the court was that whether furnishing false statements/undertakings before
the courts amounts to a contempt of court.

Ratio:

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The Supreme Court held that tendering of false affidavits/undertakings before the courts can

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amount to the offence of contempt of court.

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Observations:

To
1. A person who makes a false statement before the Court and makes an attempt to deceive
the Court, interferes with the administration of justice and is guilty of contempt of Court.

Cases Referred:

1. Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757]: Filing of false affidavit is the
basis of initiation of action under contempt jurisdiction.

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 SATENDER KUMAR ANTIL VS CENTRAL BUREAU OF INVESTIGATION
Bench:

Justices Sanjay Kishan Kaul and MM Sundresh

Facts:

The SC had taken cognizance of the non-compliance of procedures regarding arrests made by
authorities as well as the plight of the undertrial prisoners who are denied bail indiscriminately.

Issue:

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The main issue before the court in this case was that whether a breach of provisions of Section
41/41A CrPC, 1973 would entitle a person to bail.

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Relevant Provisions:

Ratio:

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Code of Criminal Procedure, 1973: Sections 41, 41A, 60A, 437, 439

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A person would be entitled to bail if the authorities don’t follow procedure under Section 41/41A
CrPC, 1973.

Observations:
To
1. The investigating agencies and their officers are duty-bound to comply with the mandate
of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of
Bihar (2014). Any dereliction on their part has to be brought to the notice of the higher
authorities by the court followed by appropriate action.

Directions issued by the court:

1. The Government of India may consider the introduction of a separate enactment in the
nature of a Bail Acttr-so
5Nas to5Lstreamline
7R4N 8M9O4O the grant of bails.
2. The investigating agencies and their officers are duty-bound to comply with the mandate
of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar
(supra). Any dereliction on their part has to be brought to the notice of the higher authorities
by9Bthe
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4I court.
 3. The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the
Code. Any non-compliance would entitle the accused for grant of bail.
4. All the State Governments and the Union Territories are directed to facilitate standing
orders for the procedure to be followed under Section 41 and 41A of the Code while taking
note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608
of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of
2020, to comply with the mandate of Section 41A of the Code.
5. There need not be any insistence of a bail application while considering the application
under Section 88, 170, 204 and 209 of the Code.

c o m
6. There needs to be a strict compliance of the mandate laid down in the Siddharth v. State

accused at the time of filing chargesheet).

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of UP [2021] (in which it was held that investigating officer need not arrest each and every

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7. The State and Central Governments will have to comply with the directions issued by this
Court from time to time with respect to constitution of special courts. The High Court in

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consultation with the State Governments will have to undertake an exercise on the need for
the special courts. The vacancies in the position of Presiding Officers of the special courts

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will have to be filled up expeditiously.

To
8. The High Courts are directed to undertake the exercise of finding out the undertrial
prisoners who are not able to comply with the bail conditions. After doing so, appropriate
action will have to be taken in light of Section 440 of the Code, facilitating the release.
9. While insisting upon sureties the mandate of Section 440 of the Code has to be kept in
mind.
10. An exercise will have to be done in a similar manner to comply with the mandate of Section
436A of the Code both at the district judiciary level and the High Court as earlier directed
by this Court in Bhim Singh v. Union of India (2015), followed by appropriate orders.
11. Bail applications ought to be disposed of within a period of two weeks except if the
provisions mandate otherwise, with the exception being an intervening application.
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Applications for anticipatory bail are expected to be disposed of within a period of six
weeks with the exception of any intervening application.
12. All State Governments, Union Territories and High Courts are directed to file affidavits/
status
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reports within a period of four months.
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 NANDA DULAL PRADHAN VS DIBAKAR PRADHAN
Bench:

Justices MR Shah and BV Nagarathna

Facts:

In this case, the defendants were set ex parte by the Trial Court. Their application under Order IX
Rule 13 was also dismissed by the Trial Court. The First Appellate Court allowed the appeal filed

m
by defendants and set aside the exparte judgment and decree observing that on restoration of the

o
suit the same be disposed of after affording opportunities to the parties to adduce their respective

rs .c
evidence and rebuttal evidence. Allowing the petition filed by the plaintiff, the Orissa High Court
set aside the order passed by the First Appellate Court solely on the ground that as the defendants

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did not file the written statement and contested the suit, the reopening of the suit would become

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futile.

Relevant Provision:

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Order IX Rule 13 CPC, 1908. Setting aside decree ex-parte against defendant:

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In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by

T
which the decree was passed for an order to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that
there has been an irregularity in the service of summons, if it is satisfied that the defendant had
notice of the date of hearingtr-and had sufficient
5N7R4N5L8M
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Issue:

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 The main issue before the court was whether the defendants can take any further part in
proceedings after setting aside of an ex-parte decree if no written statements have been submitted
by the defendant.

Ratio:

The Supreme Court held that on setting aside of an ex-parte decree, the defendants can take part
in proceedings by way of cross-examination of witnesss.

Observations:

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1. On setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall

c
.
be put to the same position as they were at the time when the exparte judgment and decree

rs
was passed and the defendants may not be permitted to file the written statement as no

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written statement was filed.

cross-examine the witnesses.

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2. However, at the same time they can be permitted to participate in the suit proceedings and

Cases Referred:

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1. Sangram Singh v. Election Tribunal [AIR 1955 SC 425]; Arjun Singh v. Mohindra Kumar
[AIR 1964 SC 993]: The defendants can be permitted to cross-examine witnesses after
setting aside ex-parte decree.

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 AMRIK SINGH VS STATE OF PUNJAB
Bench:

Justices MR Shah and BV Nagarathna

Facts:

The accused persons were convicted under Section 302 r/w 34 IPC, 1860 on the basis of the
testimony of the complainant. The accused were identified for the first time by the complainant in

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the court itself and no prior test-identification parade (TIP) was conducted.

Relevant Provision:

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Section 54A CrPC, 1973. Identification of person arrested:

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Where a person is arrested on a charge of committing an offence and his identification by any other

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person or persons is considered necessary for the purpose of investigation of such offence, the
Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the

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person so arrested to subject himself to identification by any person or persons in such manner as

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Provided that, if the person identifying the person arrested is mentally or physically disabled, such

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process of identification shall take place under the supervision of a Judicial Magistrate who shall
take appropriate steps to ensure that such person identifies the person arrested using methods that
person is comfortable with;
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be video graphed.

Section 291A CrPC, 1973; Section 9 IEA, 1872

Issue:

The main issue before the court was that whether an accused can be convicted on the sole basis of
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identification for the first time in court without TIP.

Ratio:

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 The Supreme Court held that it is not prudent to convict an accused solely on the basis of their
identification for the first time in court.

Observations:

1. It may be true that as per the settled position of law the FIR cannot be encyclopedia.
However, at the same time when no TIP was conducted the first version of the complainant
reflected in the FIR would play an important role. It is required to be considered whether
in the FIR and/or in the first version the eyewitness either disclosed the identity and/or

and identify the accused for the first time in the Courtroom?

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description of the accused on the basis of which he can recollect at the time of deposition

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2. Nothing has been mentioned in his first statement that he had seen the accused earlier and
that he will be able to identify the accused. The aforesaid was not disclosed in the FIR.

the accused.

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Even in the cross examination as admitted by PW1 he did not disclose any description of

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 NATIONAL HIGHWAYS AUTHORITY OF INDIA VS P. NAGARAJU @ CHELUVAIAH
Bench:

Justices Indira Banerjee and AS Bopanna

Facts:

The case pertains to a land acquisition case in which the award passed by the original authority
was modified by the appellate authority and the compensation amount was enhanced.

Relevant Provision:

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Section 34 Arbitration Act. Application for setting aside arbitral award
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Section 37. Appealable Orders

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Issue:

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Section 34/37 Arbitration Act.

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The main issue before the court was that whether a court can modify an arbitral award under

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Ratio:

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The Supreme Court held that a court exercising jurisdiction under Section 34/37 Arbitration Act,
1996 cannot modify such award. The appropriate course of action is to set aside the award and
remand the case back to the original authority.

Observations:

1. The position of law being clear that it would not be open for the court in the proceedings
under Section 34 or in the appeal under Section 37 to modify the award, the appropriate
course to be adopted in such event is to set aside the award and remit the matter to the
learned Arbitrator in terms of Section 34(4) to keep in view these aspects of the matter.

Cases Referred: tr-5N7R4N5L8M

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1. MMTC Ltd. V. Vedanta Ltd. [(2019) 4 SCC 163]: Jurisdiction under Section 34 is not as
an appeal.
2. Associate Builders v. Delhi Development Authority [(2015) 3 SCC 49]: Interference in
an arbitral award is only permissible if the findings of the arbitrator are arbitrary,
capricious
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 VIDARBHA INDUSTRIES POWER LTD. VS AXIS BANK LIMITED
Bench:

Justices Indira Banerjee and JK Maheshwari

Facts:

In this case, the Adjudicating Authority (NCLT) and the Appellate Tribunal (NCLAT) proceeded
on the premises that an application must necessarily be entertained under Section 7(5)(a) of the

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Insolvency and Bankruptcy Code, 2016 if a debt existed and the Corporate Debtor was in default

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of payment of debt. In other words, the Adjudicating Authority (NCLT) found Section 7(5) (a) of
the IBC to be mandatory.

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Before the Apex Court, it was contended that the Legislature, in its wisdom, has chosen to use the

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expression "may" in Section 7(5)(a) of the IBC and therefore the provision is directory.

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Relevant Provision:

Section 7(5) IBC, 2016:

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Where the Adjudicating Authority is satisfied that—

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(a) a default has occurred and the application under sub-section (2) is complete, and there is
no disciplinary proceedings pending against the proposed resolution professional, it may,
by order, admit such application; or
(b) default has not occurred or the application under sub-section (2) is incomplete or any
disciplinary proceeding is pending against the proposed resolution professional,
it may, by order, reject such application:
Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of
sub-section (5), give a notice to the applicant to rectify the defect in his application within seven
days of receipt of such notice from the Adjudicating Authority.
Issue: tr-5N7R4N5L8M
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The main issue before the court was whether Section 7(5) IBC was mandatory or discretionary in
nature.

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 The Supreme Court held that the adjudicating authority has the discretion to not admit the CIRP
application of a financial creditor even on the default made by a corporate debtor.

Observations:

1. The Adjudicating Authority may in its discretion not admit the application of a Financial
Creditor.
2. However, such discretionary power cannot be exercised arbitrarily or capriciously.

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 BARUN CHANDRA THAKUR V. MASTER BHOLU AND ANR.
Bench:

Justices Dinesh Maheshwari and Vikram Nath

Facts:

The case related to the trial of a juvenile as an adult under the provisions of the Juvenile Justice
Act, 2015.

Relevant Provision:

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Section 15 JJ Act, 2015. Preliminary Assessment into heinous offences by the Board.:

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(1) In case of a heinous offence alleged to have been committed by a child, who has completed or

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is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to

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his mental and physical capacity to commit such offence, ability to understand the consequences
of the offence and the circumustances in which he allegedly committed the offence, and may pass

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an order in accordance with the provisions of subsection (3) of section 18:

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Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.

Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a
trial, but is to assess the capacity of such child to commit and understand the consequences of the
alleged offence……………..

Issue:

The main issue before the court was that whether assistance of experienced psychologists or
psychological workers under Proviso8Mto9OSection
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15(1) JJ Act, 2015 is mandatory.
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Ratio:

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 The Supreme Court held that when the Juvenile Justice Board does not constitute of a practicing
professional with a degree in child psychology or child psychiatry, it would be mandatory to take
assistance of an experienced psychologist.

Observations:

1. As the report of the preliminary assessment decides whether the accused child would be
tried as a child or an adult, the evaluation of 'mental capacity and ability to understand the
consequences' of the child in conflict with law cannot be conducted in a routine manner. It

psychologist is significant.

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requires meticulous psychological evaluation. In this context, the assistance of an expert

specific guidelines would be required for the same.

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2. Preliminary assessment under Section 15 of the Act is a delicate task and appropriate and

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3. While considering a child as an adult one needs to look at his/her physical maturity,
cognitive abilities, social and emotional competencies. It must be mentioned here that from

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a neurobiological perspective, the development of cognitive, behavioural attributes like the
ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc.

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continues until the early 20s. It is, therefore, all the more important that such assessment is

To
made to distinguish such attributes between a child and an adult. Cognitive maturation is
highly dependent on hereditary factors. Emotional development is less likely to affect
cognitive maturation. However, if emotions are too intense and the child is unable to
regulate emotions effectively, then intellectual insight/knowledge may take a back seat.
4. The fact that the child had the mental capacity to commit the offence would not be
sufficient to indicate that they also had the capacity to understand the consequences of the
offence.

Cases Overruled:

1. Bacchan Devi v. Nagar Nigam [(2008) 12 SCC 372]: In the interest of equity and justice,
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the term ‘may’ can be
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