Madras High Court Weekly Round-Up: September 12 To September 18 2022

Citations: 2022 LiveLaw (Mad) 398 To 2022 LiveLaw (Mad) 405

NOMINAL INDEX

Andal Dorairaj & Ors. versus M/s. Rithwik Infor Park Pvt. Ltd. & Ors., 2022 LiveLaw (Mad) 398

TCI Freight Versus The Assistant Commissioner, 2022 LiveLaw (Mad) 399

Kasthuribha and Indira Nagar Residents Welfare Forum v. Secretary, PWD, 2022 LiveLaw (Mad) 400

Nordex India Private Limited Versus Commissioner of Customs, 2022 LiveLaw (Mad) 401

Deepan v State, 2022 LiveLaw (Mad) 402

B Ramkumar Adityan v District Collector, Thoothukudi, 2022 LiveLaw (Mad) 403

Registrar Judicial v. Shankar @ Savukku Sankar and others, 2022 LiveLaw (Mad) 404

Innovators Facade Systems Ltd. versus Larsen & Toubro Limited, 2022 LiveLaw (Mad) 405

REPORT

1. Parties Can Deviate From Terms Of Jurisdiction Under The Arbitration Clause Only Once: Madras High Court

Case Title: Andal Dorairaj & Ors. versus M/s. Rithwik Infor Park Pvt. Ltd. & Ors.

Citation: 2022 LiveLaw (Mad) 398

The Madras High Court has ruled that the parties have got the liberty to deviate from the terms with respect to the jurisdiction, as contained in the Arbitration Clause; however, the number of such deviations is limited to only one.

The Single Bench of Justice R.N. Manjula held that waiver of the jurisdiction clause contained in the arbitration agreement can be presumed from the conduct of the parties. The Court added that if the parties have waived the earlier agreement on jurisdiction and have substituted a new jurisdiction by conduct, then, in view of Section 42 of the Arbitration and Conciliation Act, 1996 (A&C Act), the parties cannot make any further diversions with respect to the jurisdiction.

2. Transporter Of Goods May Seek Release Of Only The Conveyance: Madras High Court

Case Title: TCI Freight Versus The Assistant Commissioner

Citation: 2022 LiveLaw (Mad) 399

The Madras High Court has held that the transporter may seek release of only the conveyance upon satisfaction of the statutory conditions.

The division bench of Justice Anitha Sumanth has observed that the phrase 'person transporting the goods' in Sections 129(1) and (6) to mean the owner or his agent who has contracted to supply the goods, and not the transporter who will provide the carriage for the same. Both sub-Sections 129(1) and (6) use the phrase 'goods or conveyance' whereas the proviso extends the benefit of release, upon terms, to the transporter, but is restricted to the conveyance alone.

3. Every Individual Has Duty To Protect National Environment: Madras High Court Orders Removal Of Encroachments From Buckingham Canal

Case Title: Kasthuribha and Indira Nagar Residents Welfare Forum v. Secretary, PWD

Citation: 2022 LiveLaw (Mad) 400

While disposing of a writ petition filed by Kasturbha and Indira Nagar Residents Welfare forum seeking to remove encroachments from the Buckingham Canal lying between Chennai and Puducherry, the Madras High Court emphasised that it was the duty of every individual to protect and improve the national environment and the national assets

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the citizens and the government were two wheels of development and if any one wheel derails, it will affect the development.

The court also pointed out that encroachments were a direct reflection on the failure of the Government to provide basic facilities to the poor.

4. Madras High Court Allows Concessional Customs Duty Benefit On Goods Used In Rotor Of Windmills For Notional Billing To Customer

Case Title: Nordex India Private Limited Versus Commissioner of Customs

Citation: 2022 LiveLaw (Mad) 401

The Madras High Court has allowed the concessional customs duty benefit on goods used in the rotor of windmills for notional billing to customers.

The single bench of Justice M. Nirmal Kumar has observed that the imported rotor blades need no customization and mechanisation. Hence, raising an invoice in the name of the client after importing and transporting it to the customer's site is only a notional exercise. It cannot be said that the petitioner is not the importer and that he is the person who has used it for a specific purpose for which it was imported.

5. Madras High Court Asks Man To Distribute Pamphlets Against Drunken Driving As Condition For Bail

Case Title: Deepan v State

Citation: 2022 LiveLaw (Mad) 402

The Madras High Court recently set a unique condition for bail for a man accused of drunken driving. While granting bail, the bench of Justice AD Jagadish Chandira, directed the petitioner Deepan to distribute pamphlets against "Drunken Driving" everyday in the morning and evening for a period of two weeks.

6. "Denigrates Hindu Religious Sentiments": Madras High Court Asks Police To Prohibit All Obscene & Vulgar Dance Performances During Dasara Festival

Case Title: B Ramkumar Adityan v District Collector, Thoothukudi

Citation: 2022 LiveLaw (Mad) 403

The Madras High Court recently directed the Thoothukudi District Collector and police authorities to strictly implement a Circular Memorandum regarding procedure to be followed while granting permission to conduct cultural events, sports events, procession/meeting etc. The authorities were thus to ensure that no obscene or vulgar dance performance or other procession takes place during the Dasara festival in the Arultharum Mutharamman temple.

The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad were hearing a petition filed by one Ramkumar Adityan to direct the police authorities to obtain a declaration from the organisers of all Dasara Groups and Sound Hire Service Providers not to sing and play any non Devotional Songs and Kuthu Pattu during Dasara festival in connection to the festival of Arultharum Mutharamman Thirukovil, Kulasekarapattinam, Thoothukudi District. By doing so, the petitioner sought to stop vulgar and obscene dance performances in the name of Dasara Groups and to protect the Traditional Culture, Traditional Viradham System and Religious sentiments of lakhs of Devotees.

7. Madras High Court Sentences Savukku Shankar To 6 Months Imprisonment In Contempt Case, Refuses To Suspend Sentence

Case Title: Registrar Judicial v. Shankar @ Savukku Sankar and others

Citation: 2022 LiveLaw (Mad) 404

The Madras High Court(Madurai Bench) on Thursday sentenced Savukku Shankar to six months simple imprisonment in a suo moto contempt proceeding for his remarks against the higher judiciary. The bench also refused to entertain the request of Mr. Shankar to suspend the sentence until filing of appeal before the Supreme Court. The court thus directed that Mr. Shankar be forthwith taken to custody and lodged in Central Prison, Madurai.

The orders were passed by a bench of Justice GR Swaminathan and Justice B Pugalendhi. This was the second suo moto contempt proceeding initiated against Mr Shankar.

8. Clause Giving Only Supervisory Powers To Third Party With Respect To Disputes; Not An Arbitration Agreement: Madras High court

Case Title: Innovators Facade Systems Ltd. versus Larsen & Toubro Limited

Citation: 2022 LiveLaw (Mad) 405

The Madras High Court has ruled that where the parties have agreed to give only supervisory powers to a third party with respect to the disputes arising between them, and a clause which does not disclose the intention of the parties to give any adjudicatory powers to the third party, does not qualify as an 'arbitration agreement', as defined under Section 2(1)(b) read with Section 7 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Single Bench of Justice M. Sundar held that the adjudicatory process is an essential feature of arbitration, in contra-distinction to mediation, and hence, when there is nothing to demonstrate that the contracting parties intended to put an adjudicatory mechanism in place, an arbitration agreement cannot be said to exist.

OTHER DEVELOPMENTS

1. RSS Workers Move Madras High Court Seeking Permission To Conduct Route March

Case Title: S. Shanmugasundaram v. State of Tamilnadu and others

Case No: WP No. 24540 of 2022

The members of the Rashtriya Swayamsevak Sangh (RSS) have moved the Madras High Court seeking permission to conduct a procession (Route March) wearing their uniform and led by a musical band on 2nd October 2022 and conduct a public meeting thereafter.

When the seven petitions came up before the bench of Justice GK Ilanthiraiyan, the bench was informed that fifty more petitions are to be filed. The court, thus adjourned the matter to September 22 to consider all the matters together.

2. How Is A Judge Supposed To Handle Single Typed Set Of 800 Pages? Madras High Court Seeks Explanation From Registrar General

The Madras High Court recently directed its Registrar General to render an explanation as to how a judge can handle a single typed set (single volume) containing 800 pages.

Justice R Subramanian sought an affidavit in this regard after it was informed that the Registry was insisting on filing single volume, even if the pages were in excess.

3. Madras High Court Refuses To Quash FIR Against ABVP Activists For Protesting Outside CM Stalin's Residence

Case Title: S Kaushik and others v. State

Case No: Crl OP 19887 of 2022

The Madras High Court on Thursday refused to quash the FIR registered against 31 students belonging to the Akhil Bharatiya Vidyarthi Parishad (ABVP) for protesting near Chief Minister MK Stalin's residence.

Justice GK Ilanthiraiyan observed that such protests near high security places could not be allowed.

The case of prosecution is that the students had attempted to siege the house of the Chief Minister. When police party attempted to stop them, they pushed the police, tore their uniform and also broke the barricades. They also damaged the rear view mirror and the indicator light of the police jeep, it is alleged. The students then shouted slogans seeking justice for a student who died by suicide due to forceful conversion.

4. Madras High Court Dismisses Plea Alleging Abuse Of Police Protection By Former CM Paneerselvam To Ransack AIADMK Office

Case Title: Aadi Rajaram v. State of Tamil Nadu and others

Case No: WP No. 24978 of 2022

The Madras High Court on Thursday dismissed a petition alleging that former Tamil Nadu CM O. Paneerselvam had misused the personal security granted to him.

Justice GK Ilanthiraiyan dismissed the petition holding that the Petitioner has no locus standi.

The petitioner, Aadi Rajaram had contended that the former CM had misused the personal security granted to him for his personal agendas and illegal activities. Mr. Paneerselvam was granted Y+ security by the Government of India in April 2017. Later, in January 2020, this security was withdrawn. The petitioner contends that even though the security was withdrawn, the Respondent authorities have continued to give police protection to Mr. Paneerselvam, even though he is not holding any prominent position and there is no real threat to his life.

5. No Plans To Return Elephant Joymala To Assam: TN Govt Tells High Court

Case Title: N Sivaganesan v. The Secretary to Government and others

Amid rifts between the Assam and the Tamil Nadu government over the custody of Joymala- a temple elephant leased by Assam to Tamil Nadu, the Tamil Nadu government on Thursday informed the Madras High Court that it did not intend to send the elephant back to Assam.

Additional Advocate General J Ravindran made the submission before a bench of Acting Chief Justice M Duraiswamy and Justice Sunder Mohan. The court was hearing an urgent PIL filed by N Sivaganesan, a field scientist on wildlife conservation.

6. Moving Education From Concurrent List To State List: Madras High Court Refers Issue To Larger Bench

The Madras High Court recently referred to a larger bench, an issue pertaining challenge to the removal of Education from the State List to the Concurrent List.

The bench of Acting Chief Justice M Duraiswamy and Justice Sunder Mohan directed the registry to place the note on the administrative side before the Acting Chief Justice for constitution of a Full Bench.

The directions were issued in a plea by Aram Seyya Virumbu Trust which challenged the validity of Section 57 of the Constitution (Fourty-Second Amendment Act) 1976 so far as it relates to Entry 11 of List II and Entry 25 of List III. The petitioner contended that the section was ultra vires the basic structure of the Constitution of India.