January - 2011

  • Arbitration - public policy: An award would be against public policy when it is opposed to (a) fundamental policy of Indian law, (b) interests of India, and (c) justice or morality. Considering the varying concept of public policy in various countries, s.34(2) of Arbitration & Conciliation Act, 1996 encapsulates the international meaning of public policy, i.e., if anything is found to be in excess of jurisdiction or lack of due process of law. Similarly, when an award is induced or affected by corruption, than it would fall within the aforesaid parameters of excess of jurisdiction. Venture Global Engineering v. Satyam Computer Services, (Supreme Court).

  • Attachment: An attachment of the immoveable property which has been effected in execution of a decree continues over the said property until the same is sold & sale is confirmed, unless it is determined or removed under following clauses of Code of Civil Procedure, 1908: (a) by deemed withdrawal under Order 21 Rule 55, (b) by determination under Order 21 Rule 57, (c) by release from attachment under Order 21 Rule 58, (d) by operation of law, i.e., on account of any statute declaring the attachment in execution shall cease to operate, (e) by the decree being nullified, (f) by execution being held to be barred by limitation & (g) by consent of parties. CS Mani v. B Chinnsamy, (Supreme Court).
  • Criminal law: Quashing of charges u/s.482, Cr.P.C.: Factors: Charges/complaint cannot be quashed at the behest of the complainant in cases which are not compoundable, such as extortion, as the same are crimes against society. Charges also cannot be quashed on the apprehension that with the complainant withdrawing, it would not be possible for the prosecution to prove its case. State of Maharashtra v. Arun Gulab Gawali, (Supreme Court).
  • Marriage: When a man & woman have cohabited continuously for substantial period of time then the presumption would be in favour of marriage rather than concubine or live-in relationship. Further held that children born during such period would be considered as legitimate. Madan Mohan Singh v. Rajni Kant, (Supreme Court).
  • Sale in course of export: It has been constitutionally provided under Article 286(1) that no tax could be imposed under State enactment on a sale which takes place in course of export. Analysing the statutory provisions of Central Sales Tax Act, 1956, held that a sale would be construed to be in course of export only when: (a) There must be intention of both buyer & seller to export, (b) There must be an obligation to export & there must be actual export, (c) Such an obligation may arise out of statute, contract, mutual understanding, agreement or even from the transaction, (d) Each link in the transaction must be inextricably linked to the effect that without a single link it could not be termed as sale in course of export. State of Karnataka v. Azad Coach Builders Pvt. Ltd., (Supreme Court) (5J).
  • Value of services of house-wife: In case of death of house-wife/mother, the dependants are entitled for adequate compensation in lieu of loss of gratuitous services rendered by the deceased to her children as a mother and to her husband as a wife. Although it is not possible to quantify any amount, however the same to be quantified in light of evidence. Further, in light of Constitution of Combodia, report of Statistical Officers of United Nations International Research & Training Institute for the Advancement of Women, suggested to the Parliament that appropriate changes be made in law for quantification of value. Arun Kumar Agrawal v. National Insurance Company, (Supreme Court).
  • Wakf property:When the suit pertains to eviction of tenant from the wakf property, than the same does not fall within s.6, 7 & 85 of Wakf Act, 1995 which excludes the jurisdiction of civil court with respect to Tribunal, and such suit for eviction would be maintainable only before the Civil Court. Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (Supreme Court).

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