December - 2010
- Alternate Dispute Resolution (ADR) through Civil Court: With respect to referring the dispute to any of five ADR mechanisms under s.89 of Code of Civil Procedure, 1908, following are the guiding principles:
- Family disputes or matrimonial matters may be referred for ADR immediately on service of notice and before filing of counter-affidavit.
- In all other cases, after completion of pleadings and before settlement of issues, accordingly, not after the evidence has commenced. Further, such reference shall be with consent of all the parties.
- Disputes which pertain to representative suits, elections, grant of probate/administration, cases involving allegations of fraud, etc., and cases which requires protection of the Court may not be referred to ADR.
- Disputes which pertain to (i) trade, commerce & contracts, (ii) arising out of strained & soured relationships, (iii) where there is a need for continuation of pre-existing relationship, (iv) tortious liability and (v) consumer disputes, are suitable for reference to ADR.
Afcons Infrastructure Limited v. Cherian Varkey Construction Company, (Supreme Court).
- CBI Enquiry: When a rare case is made out for enforcement of fundamental right, then Supreme Court under Article 32 or High Court under Article 226 of Constitution of India are empowered to direct CBI enquiry even without consent of the State government and does not interfere with the federal structure. However, such powers shall be exercised sparingly, cautiously and in exceptional situations. State of West Bengal v. Committee for Protection of Democratic Rights, (Supreme Court) (5J); State of Maharashtra v. Farook Mohammed Kasim, (Supreme Court).
- Crime against society: The Hon’ble Supreme Court while considering a case of Section 302 of the Indian Penal Code has reiterated that a crime is committed against the society/state and not only against the family and therefore, the pardon accorded by the family and the Panchayat has no significance in such a heinous crime. Paramjeet Singh v. State of Uttarakhand,(Supreme Court).
- Insurance: The Hon’ble Supreme Court while distinguishing its earlier decision has held that under section 147 the liability of the Insurance Company to indemnify in case of death of an employee would arise only when the death of the employee has a direct and proximate connection with the accident of the motor vehicle and not otherwise. Mamtaj Bi Bapusab Nadaf and Others v. United India Insurance Company and Others, (Supreme Court).
- Practise & procedure: Under the Trade Marks Act, 1999, when the original certificate was not produced before the Trial Court, than the appellate Court cannot allow the same to be taken on record without affording any opportunity to the defendant to rebut the same. Such photocopy ought to have been rejected by the trial Court itself as certificate gives prima facie evidence of validity. Shalimar Chemical Works v. Surendra Oil & Dal Mills, (Supreme Court).
- Provident Fund: It has been held that while conducting enquiry u/s.7A of EPF Act, 1952 assessing authorities shall be required to ask for specific documents from the assessee establishment failing which no adverse assumption could be drawn on the basis that the documents produced by the assessee are not relevant. It was further held that when the assessee establishment seeks to rebut the assumptions in the assessment order by way of filing of review application, than the same are required to be considered on merits by the authority and cannot be rejected on premise that the said documents were not produced during assessment proceedings. Further held that Assumption of 25% of work cost as labour charges cannot be made when requisite documents are produced by the assessee establishment. Vikas Electricals v. RPFC & another, (Madhya Pradesh High Court).
- Service law:Departmental Enquiry: The Hon’ble Supreme Court in a detailed judgment on compliance of principles of natural justice in cases of departmental enquiry in the realm of service law, while considering several earlier pronouncements has held that the enquiry officer or the disciplinary authority should not be a person having any interest in the proceedings he cannot act as a witness on one hand and adjudicate on the other, since no person can be judge of his own cause and no witness can certify that his own testimony is true. This rule has been held to sacred and any violation thereof would render the order null and void. Mohd. Yunus Khan v. State of U.P., (Supreme Court).
- Whistleblower: He is a person who raises a concern about the wrongdoing occurring in an organisation or body of people. The revealed misconduct may be classified as violation of law, rule, regulation, threat to public interest, fraud, health/safety violations and corruptions. Such whistleblowers may make allegations internally, i.e., within the organisation or externally, i.e., to the regulators. Depending on the content of the malfunctioning reported, the Courts shall be obliged to protect the freedom of speech as well as avoid issuance of notice of contempt. Indirect Tax Practitioners Association v. RK Jain, (Supreme Court).
- Winding up petition: The Hon’ble Supreme Court while deciding the scope of a winding up petition has ruled that if the creditor’s debt is bonafide disputed on substantial grounds, then the court should dismiss the winding –up petition and leave the creditor first to establish his claim in an action, lest there is a danger of abuse of winding-up procedure. If there is a bonafide dispute, there cannot be ‘neglect to pay’ within the meaning of section 433(1)(a) of the Companies Act, 1956. Where the company has a bonafide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. IBA Health India Private Limited v. Info-Drive Systems SDN. BHD (Supreme Court).
* As compiled by Advocates Harsh Wardhan & Uttam Maheshwari.