Supreme Court Weekly Round Up: Nov 8 To Nov 14, 2021

JUDGMENTS THIS WEEK

1. Merely Having An Explicit Clause Not Sufficient To Make Time The Essence Of The Contract: Supreme Court

Case name: Welspun Specialty Solutions Limited vs Oil and Natural Gas Corporation Ltd

Citation: LL 2021 SC 646

The Supreme Court observed that merely having an explicit  clause may not be sufficient to make time the essence of the contract.

The contractual clauses having extension procedure and imposition of liquidated damages, are good indicators that 'time was not the essence of the contract', the bench comprising CJI NV Ramana and Justice Surya Kant observed.

The court added whether time is of the essence in a contract', has to be culled out from the reading of the entire contract as well as the surrounding circumstances.

2. Sec 40 RERA - Homebuyers Entitled To Recover Amount Invested Along With Interest As Land Revenue Arrears From Builder : Supreme Court

Case name: Newtech Promoters And Developers Pvt. Ltd. vs. State of UP

Citation: LL 2021 SC 641

The Supreme Court in its judgment delivered on Thursday (11th November) had, inter alia, held that the amount invested by the allottees, which is often their life savings, along with the interest thereon as quantified by the regulatory authority or the adjudicating officer can be recovered as arrears of land revenue by them from the builders, under Section 40(1) of the Real Estate (Regulation and Development) Act 2016 ("Act").

"While harmonising the construction of the scheme of the Act with the right of recovery as mandated in Section 40(1) of the Act keeping in mind the intention of the legislature to provide for a speedy recovery of the amount invested by the allottee along with the interest incurred thereon is self­explanatory. However, if Section 40(1) is strictly construed and it is understood to mean that only penalty and interest on the principal amount are recoverable as arrears of land revenue, it would defeat the basic purpose of the Act", the Court held. 

3. Employer Can Terminate Service In The Event Of Suppressing Or On Submitting False Information By The Employee: Supreme Court

Case name: Rajesh Kumar vs Union of India

Citation: LL 2021 SC 644

The Supreme Court reiterated that in the event of any suppression or on submitting false information, it is always open for the employer to cancel the candidature or terminate service of the employee/candidate.

In the year 1994, the appellant in this case was selected and appointed as Sub-Inspector in Delhi Police Service. His services were terminated on the ground that that he was a deserter from the Army. It was noted that he had not disclosed about his earlier employment in Army and suppressed the said information.

The contention raised by the appellant was that the employer ought to have conducted inquiry by giving opportunity before his termination. On the other hand, the employer contended that, as the order impugned is a termination simpliciter, there was no need to conduct an inquiry, as much as, the service of the appellant was not confirmed.

The bench comprising Justices R. Subhash Reddy and Hrishikesh Roy noted that the order that it is only a termination simplicitor without any allegation against the appellant.

4. High Court Cannot Quash Criminal Proceedings U/Sec 482 CrPC Relying On 'Draft Charge Sheet' Which Is Yet To Be Filed Before Magistrate: Supreme Court

Case name: Jitul Jentilal Kotecha vs State of Gujarat

Citation: LL 2021 SC 642

A High Court cannot place reliance on a "draft charge-sheet" which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482 of Criminal Procedure, the Supreme Court observed in a judgment delivered on Friday (12 November 2021).

The bench comprising Justices DY Chandrachud and BV Nagarathna observed that a High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding under Section 482 relying on such a report when the report has not been submitted to the Magistrate. 

5. Arbitration - 2015 Amendment Won't Apply To Section 34 Applications Filed Prior To It : Supreme Court

Case Name: Ratnam Sudesh Iyer v Jackie Kakubhai Shroff

Citation : LL 2021 SC 637

The Supreme Court has held that the 2015 amendment to Section 34 of the Arbitration and Conciliation Act 1996 will apply only to Section 34 applications that have been made after the date of the amendment.

"Section 34 as amended will apply only to Section 34 applications that have been made to the Court on or after 23.10.2015, irrespective of the fact that the arbitration proceedings may have commenced prior to that."

A Bench of Justices Sanjay Kishan Kaul and M.M.Sundaresh made the above observations in a case where the applicability of S.34 to international commercial dispute was in question.

6. Advocate Losing A Case After Arguing Is Not 'Deficiency Of Service' For Filing Consumer Complaint: Supreme Court

Case name: Nandlal Lohariya vs Jagdish Chand Purohit

Citation: LL 2021 SC 636

The Supreme Court observed that an advocate losing a case cannot be said to be deficiency in service on his/her part.

"In every litigation, either of the party is bound to lose and in such a situation either of the party who will lose in the litigation may approach the consumer fora for compensation alleging deficiency in service, which is not permissible at all", the bench comprising Justices MR Shah and BV Nagarathna observed while dismissing a Special Leave Petition filed against the order passed by National Consumer Disputes Redressal Commission.

The court observed that such complaints may lie only in a case where it is found that there was any deficiency in service by the advocate.

7. Sec 138 NI Act - Merely Because Complaint Mentions Managing Director's Name First, It Can't Be Held That Complaint Is Not On Behalf Of Company : Supre

Case Title : Bhupesh Rathod versus Dayashankar Prasad Chaurasia and another | Criminal Appeal No.1105/2021

Citation : LL 2021 SC 633

The Supreme Court has held that a complaint filed on behalf of a company under Section 138 of the Negotiable Instruments Act is not liable to be dismissed for the sole reason that it stated the name of the Managing Director first followed by the company's name.

A bench comprising Justices Sanjay Kishan Kaul and MM Sundersh held that though this format may not be perfect it cannot be termed defective.

"There could be a format where the Company's name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company", the bench observed in the order.

8. Low Age Of Rape Victim Is Not Considered As The Only Or Sufficient Factor To Impose Death Sentence: Supreme Court

Case name: Irappa Siddappa Murgannavar vs State of Karnataka

Citation: LL 2021 SC 632

The Supreme Court observed that the low age of the rape victim is not considered as the only or sufficient factor for imposing a death sentence.

The bench of Justices L. Nageswara Rao, Sanjiv Khanna and BR Gavai observed thus while commuting death sentence awarded to Irappa Siddappa Murgannavar who was found guilty of having subjected a five year old girl (R) to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into the stream named Bennihalla.

In this case, the court addressed the prosecution submission that the matter falls in the category of 'rarest of the rare' cases as the accused, under the pretext of giving biscuits, committed rape and murder of a five-year old girl, and threw her dead body into the stream.

9. Conviction Based On Disclosure Statement Can Be Sustained Only When Resultant Recovery Is Unimpeachable: Supreme Court

Case name: Bijender @ Mandar vs State of Haryana

Citation: LL 2021 SC 630

The Supreme Court observed that to convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material, the recovery should be unimpeachable and not be shrouded with elements of doubt.

In this case, the High Court of Punjab and Haryana had upheld the Trial Court judgment which convicted an accused ­Bijender @ Mandar under Sections 392 and 397 of the Indian Penal Code. The issue considered by the Apex court in appeal was whether the conviction on the strength of the purported disclosure statement and the recovery memo in the absence of any corroborative evidence, can sustain?

The court noted that the Trial Court and the High Court have shifted the burden on the accused to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. 

10. Supreme Court Raps Manipur Govt For Not Inviting Fresh Tenders To Transport Grains From FCI Depot To Child Development Project Officers

Case name: BK Enterprise v State of Manipur 

Citation: LL 2021 SC 645

The Supreme Court deprecated State of Manipur for lethargy and negligence on the State and Social Welfare Department ("Department") part for not issuing the fresh tender process and Notice Inviting Tenders ("NIT") after 2018 for transporting rice and other micronutrients from Food Corporation of India's depots in the State to offices of Child Development Project Officers.

IMPORTANT APEX COURT UPDATES

1. Farmer Bashing Has Become A Fashion Now; Stubble Burning Not The Only Reason For Pollution': Supreme Court Asks About Firecracker Ban, Vehicular Emissions

The Supreme Court this week said that stubble burning by farmers cannot be blamed entirely for the Delhi's worsening air quality.

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice DY Chandrachud said that there are other contributors to pollution such as vehicular emissions, firecrackers, industrial emissions, dust etc., which need to be addressed on an emergent basis.

At one point, the bench commented that it has become a fashion these days to "bash farmers" for Delhi's air pollution. The bench also critically commented that the Delhi Police did not done enough to enforce the firecrackers ban in Delhi during the Diwali celebrations.

Also Read: Delhi's Air Quality Crisis : 'If Necessary, Think Of 2 Days Lockdown' : Supreme Court Asks Centre To Take Emergency Steps

2. Future v. Amazon: Supreme Court To Hear on 23 Nov Future's Plea Against Delhi HC's Refusal To Stay Singapore Tribunal's Order Halting Reliance Deal

The Supreme Court this week agreed to hear Future Group's special leave petition challenging Delhi High Court's 29th October order refusing to grant an ad interim stay on the order passed by a Singapore based Arbitration Tribunal which refused to interfere with the Emergency Award restraining it to continue with the Reliance deal.

The Singapore International Arbitration Centre had in October rejected Future Group's plea to vacate the interim stay on the company's deal with Reliance passed in October last year

The matter will be listed on 23rd November 2021.

3. Many Child Care Institutions Misusing Foreign Contributions : NCPCR Tells Supreme Court

The National Commission for Protection of Child Rights ("NCPCR") has told the Supreme Court that NGOs having FCRA registration receive foreign funds and further give the same to other NGOs, which don't have FCRA registration.

To bring on record the work done by NCPCR to stop the misuse of foreign funds by various NGO's, the Apex Child Rights Body has filed an affidavit in the writ petition Vinay Vinayak Joshi v. Union of India which had challenged the Ministry of Home Affairs, Government of India Notification dated May 18, 2021 that extends the date for compliance of the specific provisions of the Foreign Contribution Regulation (Amendment) Act, 2020.

Filed through Advocate Swarupama Chaturvedi, NCPCR has submitted that there are some NGOs, where violations of statutory provisions have been found. The Supreme Court has reserved judgment in a petition challenging the FCRA amendments.

4. The Army May Be Supreme In Its Authority But This Constitutional Court Is Also Supreme In Its Jurisdiction": Supreme Court Warns Army In 'Permanent Commission to Women' Matter

After the Supreme Court made clear its intent to record a finding of contempt against it, the Indian Army on Friday communicated the decision to grant PC within 3 weeks to all women officers (including those who have not approached the court) who meet the criteria stipulated in the March judgment in Lt. Col. Nitisha's case.

The Supreme Court had on October 22 directed the Centre to tender a statement in a tabulated form indicating reasons for the denial of permanent commission to 25 women officers, together with an affidavit expressly stating that no reasons independent of the directions issued by the Court have weighed in the grant/refusal of PC to the total 72 petitioners. "In other words, once the final judgment and order of this court has been pronounced, the consideration for the grant of PC has to be confined to the specific directions issued and not be based upon grounds independent of the judgment", the bench had clarified.

5. Lakhimpur Kheri Case : Supreme Court Adjourns Hearing Till Nov 15 At UP Govt Request

The Supreme Court adjourned the hearing of the PIL seeking proper investigation of the Lakhimpur Kheri violence of October 3, which resulted in the killing of 8 persons, including 4 farmers who were allegedly mowed down by the vehicles in the convoy of Ashish Mishra, the son of Union Minister and BJP MP Ajay Kumar Mishra.

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli adjourned the matter at a request made by Senior Advocate Harish Salve, who is appearing for the State of Uttar Pradesh.

6. Gujarat Riots | SIT Ignored Tehelka Sting Tapes In Zakia Jafri's Case, Though They Were Accepted By Court In Naroda Patya Case : Sibal To Supreme Court

This week, while making his submissions in the Zakia Jafri's appeal, Senior Advocate Kapil Sibal contended that the Special Investigation Team had not conducted any form of investigation in the matter.

A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard submissions in the plea challenging the SIT report giving clean chit to the erstwhile Gujarat Chief Minister, Narendra Modi and other high functionaries in the Gujarat riots of 2002. During the course of 3 days, Mr. Sibal took the bench through the documents to demonstrate the failure of the SIT in investigating the matter. Mr. Sibal submitted that SIT showed absolutely no commitment to the investigation process.

7. Tripura Violence : Supreme Court Agrees To Give Urgent Listing To Petition Challenging UAPA Against Lawyers, Journalists

The Supreme Court this week agreed to urgently list a petition challenging the invocation of UAPA by the Tripura police against journalists, lawyers and activists over their social media posts regarding the recent communal violence in the State.

Advocate Prashant Bhushan mentioned the matter before a Bench comprising CJI NV Ramana, Justice AS Bopanna and Justice Hima Kohli seeking urgent listing of the case

The Tripura police recently invoked the draconian anti-terror law Unlawful Activities Prevention Act (UAPA) against two lawyers who were part of a team which published a fact-finding report about the recent communal violence which shook the state.

The West Agartala Police served notices to Delhi-based human rights lawyers Mukesh of Peoples Union for Civil Liberties and Ansar Indori of National Confederation of Human Rights stating that a case has been registered against them under Section 13(punishment for unlawful activities) of the UAPA over their social media posts and statements.

8. Consumer Commission Vacancies : Supreme Court Warns States Of Exemplary Costs If Status Report Is Not Filed In A Week

The Supreme Court this week warned that costs in the range of Rupees 1 to 2 lakhs will be imposed on States which fail to submit status report within a week regarding the vacancies in State Consumer Dispute Redressal Commission. The Court added that the costs will be recovered from the concerned officials.

A Bench of Justices Sanjay Kishan Kaul and M.M Sundresh made the above observations while considering the suo-motu case taken by it to deal with the vacancies in Consumer Commissions across the country. Earlier, on 22/09/2021, the Bench had issued a clarification that the judgement of the Bombay High court striking down the Consumer Protection Act would not impede the appointment already made and processes imitated in other states. The Bench had also expressed its anguish at the mounting vacancies in the consumer commissions across the country.