The Lawyer's Digest: Supreme Court Judgments passed in November 2023

The Lawyer's Digest is a collection of concise summaries of judgments passed by the Supreme Court of India over the course of a month.

Topics have been sub-divided into areas of law for ease of reading. Here are the summaries of judgments passed in November 2023.

In Lombardi Engineering Ltd v. Uttarakhand Jal Vidyut Nigam Ltd, the instant case concerned the arbitration clause which firstly prescribes the contractor to deposit of 7% of the total claimed amount as a pre-requisite to initiate arbitration and secondly, refers claims valuing upto Rs. 10 Crore to a sole arbitrator to be appointed by the Principal Secretary, Irrigation Department of the Government. On the aspect of pre-reference deposit, the Court reiterated that pre-reference deposit is violative of Article 14 of the Constitution for being manifestly arbitrary as held in ICOMM Tele Ltd v. Punjab State Water Supply and Sewerage Boad, and proceeded to hold that there is no conflict between the judgments of the Court in ICOMM Tele Ltd and S.K Jain v. State of Haryana inasmuch as pre-reference deposit is concerned, as in the latter judgment there was no plea of manifest arbitrariness taken, and that the nature of the arbitration clause in S.K Jain stood on a materially different footing. As regards the Principal Secretary being designated as an appointing authority, the Court referred to the ruling in Perkins Eastman Architects v. HSCC to hold that post the 2015 Amendment, the clause shall be hit by the rigors of the Seventh schedule to the Arbitration Act and the appointee arbitrator shall be ineligible. Holding thus, the court proceeded to appoint an arbitrator.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: pre-deposit of 7% claim amount, arbitrariness, neutrality of the arbitrator, 2015 Amendment, ineligibility]

In Digvijaysinh Himmatsinh Jadeja v. The State of Gujarat & Ors., the Supreme Court held, in an order, that the High Court could not have used its powers under Section 482 CrPC to quash a FIR after examining and recording conclusions on disputed facts.

[Sanjiv Khanna J., SVN Bhatti J.]

[Keywords: Section 482 CrPC, vicarious liability of spouse]

In Pavana Dibbur v. Directorate of Enforcement, the Supreme Court inter alia held as below:

i. It is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged, must have been shown as the accused in the scheduled offence;

ii. Even if an accused, shown in the complaint under the PMLA, is not an accused in the scheduled offence, s/he will benefit from the acquittal of all the accused in the scheduled offence or discharge of all the accused in the scheduled offence. Similarly, s/he will get the benefit of the order of quashing the proceedings of the scheduled offence;

iii. On the facts before the Court, the first property could not said to have any connection with the proceeds of the crime as the acts constituting scheduled offence were committed after the property was acquired;

iv. It was a matter of trail as to whether the appellant had used tainted money, i.e. forming part of the proceeds of crime, for acquiring the second property can be decided only at the time of trial;

v. The offence punishable under Section 120B IPC will become a scheduled offence only if the conspiracy alleged is of committing an offence which is specifically included in the Schedule.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: PMLA, money laundering, Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. (2022) SCC Online SC 929] [Also see https://www.barandbench.com/news/pmla-criminal-conspiracy-section-120b-ipc-money laundering-supremecourt]

In Pop Singh & Ors. v. State of Madhya Pradesh, the Supreme Court held that, from the nature of injuries, it was evident that the injuries, being lacerated wounds, were caused by the blunt side of the weapons and not the sharp edges. Thus, the accused did not have an intention of killing the deceased and hence the case would neither fall under Section 325 nor Section 326 IPC. At the same time, the Bench noted that, judging from the nature of the injuries, it was clear that the acts were done with the knowledge that the injuries were likely to cause the death of the accused. Hence, the Bench thought it fit to convict the accused under Section 304 (Part-II) and not Section 304 (Part-I).

[BR Gavai J., Pamidighantam Sri Narasimha J.]

[Keywords: Section 304 Part I IPC and Section 304 Part II IPC, nature of the injuries]

In Ved Pal & Anr. v. State of Haryana, the Supreme Court overturned concurrent judgments convicting the appellants under Section 376(2)(g), Section 342 IPC read with Section 34 IPC, on the basis that, contrary to the prosecution case, there were no injury marks on the prosecutrix, semen was found in the accused’s underwear but neither on the prosecutrix’s cloths nor in the vaginal swab, there was evidence of prior correspondence between the accused and the prosecutrix. The Court also found evidence of prior enmity between the families involved. 

[BR Gavai J., Pamidighantam Sri Narasimha J.]

[Keywords: rape, physically handicapped, minor contradictions, neighbours]

In Markash Jajara v. The State of Assam & Anr., the Bench held that the offence attributed to the accused fell within the ambit of Exception I of Section 300 IPC and was, therefore, not murder but culpable homicide. The Bench found that the accused-appellant was not motivated into murdering his son-in-law but only to deter him into not being violent with his daughter after daily consumption of liquor. The aggravating circumstance was that the deceased also stayed with wife’s family and was abusive in their presence.

[Surya Kant J., Dipankar Datta J.]

[Keywords: ghar javai, habitual drunkard]

In Prabhatbhai Aatabhai Dabhi v. State of Gujarat, the Appellant had been convicted of the offence under Section 302 IPC, and the same was upheld by the High Court. The Court held that when the prosecution relies upon the evidence of extra judicial confession, the evidence of the person before whom such extra judicial confession is made, must be of sterling quality. The blood stains on the clothes of the appellant also did not match with the blood group of the Appellant. Therefore, having regard also to the fact that the appellant had already undergone incarceration of 11 years, the impugned judgments were set aside.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: Extra judicial confession, beyond reasonable doubt, confessional statement]

In Balaram v. State of Madhya Pradesh, relying on Vedivelu Thevar v. State of Madras, the Court reiterated the principle that there are three kinds of witnesses, i.e., wholly reliable, wholly unreliable, and neither wholly reliable nor wholly unreliable. It is in the third category of witnesses that the court needs to separate chaff from the grain to find out the truth. In the facts of the case, the testimony of two witnesses was found to be wholly unrealiable, and therefore, the conviction, based on their testimony, was set aside. (AIR 1975 SC 614) 

[B.R. Gavai J., Pamidighantam Sri Narasimha J., Aravind Kumar J.]

[Keywords : wholly reliable and wholly unreliable witnesses, previous enmity, ocular testimony, medical evidence, locus classicus case]

In Priya Indoria v. State of Karnataka and Ors. Etc., the Court held that the Court of Session or the High Court can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction. Further if the accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that FIR has not been registered within its territorial jurisdiction, the Court must at least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such time as the accused approaches the competent Court seeking full-fledged anticipatory bail.

[Nagarathna J., Ujjal Bhuyan J.]

[Keywords: FIR, Multiple FIRs, anticipatory bail, pre arrest bail, transit bail, territorial jurisdiction, S. 438 Cr.P.C.]

In Tarun Kumar v. Assistant Director Directorate of Enforcement, the Appellant challenged the judgment of the High Court dismissing his bail application for offences under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120B, 420, 465, 467, 468 and 471 IPC. Relying on Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46, the Court rejected the appellant’s contention that bail ought to be granted since the Appellant was not named in the FIR nor in the three supplementary complaints, and was implicated only on the basis of statements of witnesses recorded pursuant to the summons under Section 50 of the Prevention of Money Laundering Act. The Court held that apart from the witness statements, there was sufficient documentary evidence to prima facie show how the appellant was involved in the proceeds of crime. The Court also rejected the argument for grant of bail on parity, i.e., the other similarly placed co-accused had been granted bail, by holding that Article 14 cannot be used to perpetuate any illegality or irregularity committed in favour of any individual. The Court also rejected the argument that bail be granted since investigation qua the appellant was complete and the trial was likely to take a long time, on the premise that economic offences constitute a class apart, having deep rooted controversies, and therefore, need to be visited with a different approach in the matter of bail.

[Aniruddha Bose J., Bela M. Trivedi J.]

[Keywords: Twin conditions for grant of bail, Prevention of Money Laundering Act, economic offences, principle of parity, Vijay Madanlal Choudhary v. Union of India]

In Nababuddin @ Mallu @ Abhimanyu v. State of Haryana, the appellant was convicted for the offence under Section 15 of the NDPS Act, 1985, the charge being that the accused were found in conscious possession of poppy straw worth 205 kg without any license or permit. It was held that the two circumstances on which the prosecution relied upon against the accused were not put to him in his examination under Section 313 Cr.P.C, and therefore, the same could not be relied upon to convict the Appellant, since the same went to the root of the matter. It was further held that since the incident was of May 2001, it will be unjust to subject the appellant to further examination under Section 313 Cr.P.C. at this stage. Accordingly, the Appellant’s conviction was set aside.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: Section 313 Cr.P.C., further examination, NDPS Act, material prosecution witness, acquittal]

In Sivamani and Anr. v. State Represented by Inspector of Police, Vellore, the challenge was to the conviction of the appellant under Section 307 IPC. The allegation in the FIR was that the accused conspired to cause the death of the complainant, where, upon trial, three of the accused were acquitted, and the two appellants were convicted under Section 307 IPC. The Court found that in the present case, there was no allegation of repeated or severe blows having been inflicted, and that the injuries on PW1 and PW2 were found to be simple in nature. On a conspectus of facts and evidence, the Court held that only an offence under Sections 323 and 324 was made out, and the conviction under Section 307 IPC was held to be unsustainable.

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: conspiracy to kill, civil dispute, reduction of sentence, simple injury, attempt to murder]

Vishnu Kumar Shukla and Anr. v. State of Uttar Pradesh and Anr. was an appeal against an order rejecting prayer for discharge of the accused, as upheld by the High Court in a case under Sections 482, 378 and 407 Cr.P.C. Noting that in Minakshi Bala v. Sudhir Kumar (1994) 4 SCC 142, the Court has taken a view that once charges are framed under Section 240 Cr.P.C., the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Ss. 239 and 240, nor would it be ordinarily justified in invoking its inherent jurisdiction under S. 482 to quash the same, the Bench expressed its reservations in acceding to the said view (though it did not refer the same for reconsideration to a Larger Bench). The Court held that if the said ratio is accepted as it is, the necessary concomitant would be that despite examining the matter in detail, a Court would find its wings clipped to intercede, which would amount to forcing the accused to stand the trial despite material pointing to his innocence. On facts, it was held that there was no suspicion that the appellants were guilty of the offence alleged, and therefore, the appellants were discharged. 

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: discharge, perjury, warrant case, personal liberty, framing of charge]

In Shambhubhai Kalabhai Raval v. State of Gujarat, the Supreme Court reiterated if a dying declaration is the sole ground on which the conviction is secured, then the same ought to be of an unimpeachable character and consistent with the chronology of the events alleged. The appellant-accused is the husband of the deceased and was convicted for offence under Sections 306 and 498-A of the Indian Penal Code for abetting the death caused due to extensive burns. The dying declaration, which was recorded by PW-3 was not recorded in the Yadi to carry the certificate of fitness as provided by the doctor. However, the Court recorded that Prosecution’s case suffered from the grave infirmity of withholding the evidence of the deceased’s sister who was named in the dying declaration to be present at the scene of crime. Further, the court observed that the panchnama recording the incident holds the deceased as unable to speak, while the alluded dying declaration was taken sometime between 09:45 PM to 10:00 PM. On observing thus, the court notes that the dying declaration is not of a sterling quality, sole reliance on which cannot secure the appellant’s conviction.

[Abhay S. Oka J, Pankaj Mithal J]

[Keywords: dying declaration, doubt on the correctness of, hostile witnesses, unimpeachable quality, endorsement of fitness to provide dying declaration, absence of corroborative evidence]

In State of Karnataka v. T. Naseer, the Supreme Court examined the correctness of the High Court’s order upholding the Trial Court’s decision to not admit the certificate under Section 65-B of the Evidence Act and the application for recall of PW-189 under section 311 of the Criminal Procedure Code filed by the appellant state. The case concerns the seizure and production of the electronic devices recovered during investigation from accused no.3 in connection to the Bangalore serial blasts case. At the time of production of the seized electronic devices, a section 65-B affidavit was not filed and the Trial Court came to reject the CFSL report as inadmissible in evidence. The Court examined the judgment in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 which held that production of a section 65-B affidavit is not necessary if the electronic devices are adduced as primary evidence. Further, reliance was placed on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 which held that non-production of a section 65-B affidavit is a curable defect and can be produced at any stage during pendency of the trial. It was concluded that allowing the prosecution to present the section 65-B affidavit when the trial is pending and when the devices themselves are marked as MOs shall not result in prejudice to the accused. Holding thus the appeal was allowed and the High Court’s order was set aside.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: Section 65-B affidavit, production of electronic devices, CFSL report, pendency of trial, prejudice to accused, right to fair trial, curable defect, abundant caution]

In Manjunath & Ors v. State of Karnataka, the instant case concerned the overturning of the acquittal of appellant accused by the High Court, as against the findings of the trial court. Before the trial court, the Prosecution relied on five kinds of evidence, which include the dying declaration of the deceased, ocular evidence, incriminating material recovered and circumstantial evidence. The High Court has proceeded to reverse the acquittals on ground that the statements of ocular witnesses corroborate the dying declaration. On finding that the dying declaration is not proved by the person who recorded the same, and such person was not presented as a witness by the accused, the Court disbelieved the dying declaration. The court also notes that the testimonies of the eyewitnesses in the present case is not of a sterling quality. Finally it was observed that section 27 of the Evidence Act does not come to the Prosecution’s aid with respect to recovery of the alleged murder weapons as the same were recovered from a place accessible to public. Holding thus, the Court restored the Trial Court’s acquittal.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: ocular evidence, dying declaration, sterling quality, acceptance at face value, incriminating evidence, recovery from a public place]

In Parshuram v. State of M.P., the Bench reduced the conviction from Section 302 IPC to 304 Part II IPC since the prosecution failed to prove that the purpose of the unlawful assembly was to cause the death of the accused, the injuries on the accused persons were unexplained, witnesses were interested, the incident took place after certain incidents where two groups of people had tried to hurt one another over cattle going stray over one other’s fields. It was reiterated that to prove a case under Section 149 IPC, each person’s active role need not be explained.

[BR Gavai J., BV Nagarathna J., Prashant Kumar Mishra J.]

[Keywords: Section 302 IPC read with Section 149 IPC]

In Madan v. State of Uttar Pradesh, the Court held that merely because some witnesses are interested or inimical or because there was certain lacunae in police investigation, their evidence cannot be discarded but should only be scrutinized with greater care and circumspection. Relying on the Prison Conduct Report, when the convict had spent over 18 years in prison, the court did not impose the death penalty, even though it found that the crime would fall into the rarest of rare cases.

[BR Gavai J, BV Nagarathna J, Prashant Kumar Mishra J]

[Keywords: criminal appeal, conviction, capital punishment]

In Ramakant Singh & Ors. v. The State of Jharkhand & Anr., the Bench stated that the Chief Judicial Magistrate could not entertain a protest petition against its earlier order of taking cognizance since that Code of Criminal Procedure did not allow a judicial magistrate to modify its earlier order of taking cognizance.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: protest petition, Section 200 and 202 CrPC]

[Editor’s Note: Though not stated in the judgment itself, the principle on the basis of which the bench was, perhaps, persuaded to allow the appeal was that no review is maintainable in a criminal case unlike in civil cases.]

In Hariprasad @ Kishan Sahu v. State of Chhattisgarh, the Bench acquitted the accused of the conviction under Section 302 IPC. This was done on the basis of that the prosecution could not establish that (a) the accused had a clear motive to administer poison to the deceased, (b) the deceased died of poison said to have been administered, (c) the accused had the poison in his possession, and (d) the accused had an opportunity to administer the poison to the deceased.

[Bela M Trivedi J., Dipankar Datta J.]

[Keywords: circumstantial evidence, First Information Report, delay in filing FIR]

In Jaffar Ali Nawab Ali Chaudhari v. The Municipal Corporation of Greater Mumbai, the Supreme Court disposed off the Civil Appeal of the Appellant with a direction to the Respondent Corporation to consider the prayer of the Appellant for allotment of alternative land or compensation in lieu of the acquisition of Appellant’s property for construction of the 60 feet T.D Road. The acquisition was preceded by notices by the Respondent under Sections 89 and 165 of the Maharashtra Regional and Town Planning Act, 1966 for surrendering possession. In a suit filed by the appellant challenging the circulars and notices of the Respondent, the appellant was awarded a decree holding the said notices as illegal, which was set aside by the High Court. The Court found that even by the Respondent’s own admission, the appellants are in possession of the property since 1976, and are entitled to compensation and rehabilitation as per the term of the Scheme notified under the 1966 Act. The appeal was allowed by the Court despite the objections raised by Respondent on ground of limitation.

[Vikram Nath J., Rajesh Bindal J]

[Keywords: compensation, allotment of alternative plot, scheme notified under the Maharashtra Regional and Town Planning Act, surrender of possession]

In M/s Multicon Builders v. Sumandevi & Ors, the Appellant approached the Supreme Court, challenging the order of the High Court which upheld the preliminary decree passed in the Respondent’s favour. Respondent was the original plaintiff seeking partition of the suit property against the other Respondents. Appellant is a buyer claiming interest from one of the Respondents who is a co-sharer as per the preliminary decree, directing partition of the property by metes and bounds. In the High Court, the decree was modified with a direction to Appellant and the other Respondent to demolish the existing structure built in violation of the municipal laws. It was held that Appellant has no share in the suit property. The appeal was dismissed on grounds that the other co-sharers have not joined the appellant in challenging the preliminary decree, however the High Court’s order was modified to not demolish the existing structures pending final decree in the partition suit and a direction for expeditious disposal of the suit.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: suit for partition, partition by metes and bounds, challenge by co-sharers, demolition of construction]

In Bani Amrit Kaur v. State of Haryana, the predecessor-in-interest of the Appellant, Mr. Sukhvir Singh filed a suit in 1968 impugning two sale deeds from 1956 and 1958 vide which Sukhvir Singh’s father sold land to one Harjit Singh vide the first sale deed, and who in turn sold the land to State of Punjab (as it was then) in 1958. Sukhvir Singh contested the said sale in 1968 on the ground that since the first sale deed was executed after the enactment of the Hindu Minority and Guardianship Act, 1956, and that since Sukhvir Singh was a minor at the time of the sale, a permission ought to have been taken from Court under Section 8 of the 1956 Act. On the strength of the said averment, the trial court and the first appellate court have decreed in Sukhvir Singh’s favour. However, the High Court in Second Appeal reversed the said judgments. It was found by the Court that there were no pleadings nor evidence led by the Appellant disclosing how his interest in the suit property has devolved, save and except the recital in the first sale deed recording the purpose of the sale to be in Sukhvir Singh’s benefit and welfare. Further, it was noted that the State has attempted to settle the matter with the Appellant which was rejected. Observing thus, the Court proceeded to uphold the order of the High Court and dismissed the appeal.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: Hindu Minority and Guardianship Act, 1956, sale for the benefit and welfare of a minor, permission from the court under Section 8]

In Mohar Singh (Dead) Through LRs. & Ors. v. State of Uttar Pradesh Collector & Ors., the Bench condoned a delay of more than a decade while holding that the Supreme Court had “consistently held in a catena of decisions that the inordinate delay in filing appeal in compensatory matters, per se, may not be fatal as the rights and equities between the parties can be well balanced by denying the statutory benefits, such as interest for the delayed period.” At the same time, the Bench rejected Appellant’s prayer for higher rate of compensation on the basis that it had condoned a delay of nearly 13 years in filing first appeals only to “accord parity between the similarly placed land-owners on the anvil of Article 14 of the Constitution” and that “if the appellants are granted compensation higher than their co-landowners, despite the fact that such counterparts were vigilant in pursuing their remedy promptly, it will lead to hostile discrimination viz those landowners whose fate already stands sealed upto this Court” and that it would also amount to “granting premium on, what can be aptly termed as stale, belated and chance claim of the appellants”.  

[Surya Kant J., Dipankar Datta J.]

[Keywords: solatium, delay, Section 34 of the Land Acquisition Act]

In Vivek Kaisth and Anr. v. The State of Himachal Pradesh and Ors., the appellants challenged the judgment of the High Court whereby their appointment to the post of Civil Judge (Junior Division) was quashed. The Court held that appointments cannot be made over and above the vacancies which had been advertised, i.e., clear and anticipated vacancies. In the present case, the appointment of appellants was made on posts which were not advertised and did not even exist at the time of advertisement. However, the Court noted that the two appellants had already served as judicial officers for nearly 10 years and had also been promoted to the next higher post, and that there had been no allegations of nepotism, etc. Accordingly, though the findings of the High Court on law were upheld, the Court exercised its power under Article 142 to continue the service of appellants as judicial officers.

[C.T. Ravikumar J., Sudhanshu Dhulia J.]

[Keywords: existing and anticipated vacancies, Article 142, Malik Mazhar Sultan, Judicial Officers, public interest, special equity]

In Union of India & Ors. v. K. Suri Babu, the Court upheld the orders of the High Court and stated that service conditions of the workmen, employed by the Nuclear Fuel Complex-Hyderabad, would be governed by the Standing Orders, passed under the Industrial Employment (Standing Orders) Act 1946, as far as disciplinary proceedings are concerned as such Standing Orders were in the nature of special rules and would override any other general rule such as the Central Civil Services (Classification, Control and Appeal) Rules 1965. It was held that the Standing Orders would override unless modified under Section 10 of the 1946 Act, which has admittedly not been done. Further, even powers under Section 13B of the 1946 Act was not exercised. Referring to precedent, it was held that conditions of appointment were inapplicable to a worker if such condition makes any other rule in derogation of the Standing Orders without recourse to Section 10 and 13B of the Standing Orders.

[Sanjay Kishan Kaul J., CT Ravikumar J., Sudhanshu Dhulia J.]

[Keywords: Section 13B of the CCA Rules 1965, workmen, Standing Orders]

In Jaiveer Singh and Ors. v. State of Uttarakhand and Ors., the challenge was to the judgment of the High Court, which held that the 18 months Diploma in Elementary Education conducted through the Open and Distance Learning (ODL) mode in elementary education by the National Institute of Open Schooling is a valid diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of  Uttarakhand. While setting aside the judgment of the High Court, the Court held that the entire scheme was for the purpose of providing a window to the in-service teachers inasmuch as unless they would have acquired requisite qualifications prior to 01.04.2019, they could not have continued to remain in service and would have faced dismissal from service. Accordingly, the Court held that the 18 months diploma course in Elementary Education was not equivalent to the 2 year Diploma, particularly since there was no notification to that effect issued by the NCTE in supersession of earlier Notifications, which provided minimum 2 years diploma as the minimum qualification for appointment of teachers.

[B.R. Gavai J., Prashant Kumar Mishra J.]

[Keywords: Right to Education Act, minimum qualification, diploma in elementary education, service rules, expert body, National Council for Teacher Education]

In Jyotirmay Ray v. Field Manager, Punjab National Bank, the appellant was dismissed from service by compulsory retirement on grounds of gross misconduct. The Appellant approached the single judge of the High Court for disbursal of leave encashment, pension, gratuity and provident fund. The Single Judge directed the Bank to release the employer’s

contribution of the provident fund as well as gratuity with interest as per the 1979 Service Regulations of the Respondent Bank, which came to be set aside by the Division Bench. The Court observed that the departmental enquiry is silent on the quantification of loss or damage caused to the Bank as a result of the Appellant’s actions, which was alleged for the first time before the Single Judge. The Court found that withholding of gratuity was done by the Respondent’s Board without affording opportunity to the Appellant. As regards gratuity, the Court observed that a conjoint reading of the 1979 Service Regulations and the Gratuity Act does not term compulsory retirement, a major penalty, as a ground for withholding gratuity. Holding thus, the Court allowed the appeal, set aside the Division Bench’s order and restored the Single Judge’s order.

[J.K Maheshwari J. K.V Viswanathan J]

[Keywords: Compulsory retirement, gratuity, provident fund, quantification of loss, lack of opportunity, gross misconduct, Payment of Gratuity Act]

In Union of India v. Dilip Paul, the instant case concerned two complaints of sexual harassment made against the Respondent, who was found to be a non-combatised officer of the SSB. After the allegation of sexual harassment was levelled against the Respondent, there was initially a Frontier Complaints committee constituted by the IG’s office which conducted an inquiry and has found that the complaint was delayed by two years from the date of incident and unaccompanied by any documentary proof. However, upon the frontier complaint committee submitting its inquiry report, the Ministry of Home Affairs has constituted a Central Complaints Committee for conducting inquiry on the basis of the complainant’s report. Before the Central Complaints Committee, the complainant submitted a second complaint along with certain supporting documents. During pendency of the Central Complaints committee’s inquiry, Respondent approached the CAT challenging the inquiry wherein his petition was dismissed. However, the High Court has held that the Central Complaints Committee was incorrect in considering the second complaint made later in time. The Court held that the High Court erred in holding that the Central Complaints Committee could not look into the second complaint, and has found that the second complaint was made at the earliest stage possible upon constitution of the Central Complaints Committee. Further, it was held that a hypertechnical approach cannot be taken in order to vitiate the enquiry proceedings on account of non-adherence to procedural rules.

[D.Y Chandrachud J, J.B Pardiwala J, Manoj Misra J]

[Keywords: hypertechnical approach, frontier complaints committee, central complaints committee, inquiry report, test of prejudice, sexual harassment, questions to witnesses, second complaint]

In Dr. P.N Shukla v. Union of India & Ors, the case concerned the issue of higher pay granted to Respondent No.4 who joined the Centre for Scientific and Technical Terminology in 1999 as a Research Assistant, and was placed in a higher pay scale with effect from the date of his appointment, once the post of Research Assistant was redesignated as the post of Assistant Scientific Officer. It was shown that until 2007, Respondent No.4 was on deputation to various other organizations, and has joined his parent organization once the redesignation has taken effect. When the appellants made representation to the competent body, the post of Assistant Scientific Officer was declared as an ex-cadre post. Aggrieved, the Appellants approached the Central Administrative Tribunal, which dismissed their application. An appeal before the High Court was also dismissed. On facts, the Supreme Court found that this was a fit case of favoritism where the competent authorities have skirted the rules in order to place Respondent No.4 in a higher pay scale with effect from the date of his appointment, causing prejudice to the Appellants who are similarly placed, perform the same duties and who have joined the Centre prior to the Respondent No.4. Holding that the competent authorities were hand-in-glove with Respondent No.4 in extending special treatment to him, the Court ordered that the excess amount paid to Respondent No.4 be recovered from the officers in-charge of making the decisions at various stages concerning his pay scale and allowances.

[Hima Kohli J, Rajesh Bindal J]

[Keywords: Re-designation, joining of service as per advertisement, upgradation of pay scales, deputation, special treatment, bona fide error]

In Nitisha and Others v. Union of India and Others, the bench was concerned with the issue of empanelment of female officers who are granted permanent commission for promotion as Colonels by selection. The Bench was constrained to note that the attitude of the army was to find a way to defeat the judgment of the Supreme Court in Lieutenant Colonel Nitisha and Others. It passed a slew a of directions and directed, inter alia, as below:

i. A fresh exercise of reconvening Special No 3 SB within 2 weeks for all the women officers who were considered by the earlier Special No 3 SB (except for those officers who have already been empaneled);

ii. A common cut off of June 2021 to be taken into consideration in the course of Special No 3 SB to be convened in pursuance of the above direction;

[DY Chandrachud CJI., JB Pardiwala J., Manoj Misra J.]

[Keywords: non-empanelment for promotion to the rank of Colonel by selection, Lieutenant Colonel Nitisha and Others vs Union of India and Others]

In Ankita Thakur v. The HP Staff Selection Commission & Ors, the Court held that a relaxation order approved after the last date fixed by advertisement for receipt of application was not legally sustainable as no opportunity was afforded to similarly placed candidates who might not have applied as they would not have been eligible prior to the relaxation

[Hrishikesh Roy J, Manoj Misra J]

[Keywords: recruitment for Class III Junior Office Assistant]

In Thankamma Baby v. The Regional Provident Fund Commissioner, Kochi, Kerala, the Bench upheld the judgments of the Learned Single Judge and the Division Bench of the High Court that stated that all industries not finding a mention in Schedule I would still be covered under Section 1(3)(b) in the absence of an exemption under Section 16 of the 1952 Act.

[Abhay S Oka J., Sanjay Karol J.]

[Keywords: Section 1(3)(b) of the Employees’ Provident Fund and Miscellaneous Provisions Act 1952, social welfare legislation]

In Ashwini Kumar Upadhyay v. Union of India, the Court passed directions, including that Chief Justices of High Courts should register suo moto cases to monitor early disposal of criminal cases against members of the Parliament and legislative assemblies, to ensure expeditious disposal of criminal cases against elected members. 

[DY Chandrachud CJI]

[Keywords: Representation of Peoples Act, 1951, guidelines, writ petition, Art. 32]

In M/s IFCI Limited v. Sutanu Sinha, the Court held that CCDs would not be treated as debt, even though a simpliciter debenture would be treated as a financial debt, especially where security was provided under a debenture subscription agreement but the obligations were those of the sponsor company and not the special purpose vehicle. The Court also held that courts should not step in to read into or add to what commercial documents between sophisticated business parties provided.

[Sanjay Kishan Kaul J, Ahsanuddin Amanullah J]

[Keywords: Compulsorily Convertible Debentures, NHAI, conversion to equity, put option, CIRP, IBC]

In Dilip B Jiwrajka v. Union of India, the Court held that there was no requirement for hearing under S. 97(5) IBC, the moratorium under S. 96 was prospective, the demand for information does not violate privacy rights, restrictions on alienation apply only after the admission of the application under S. 100, and the adjudicating authority does not mechanically adopt the recommendations of the resolution professional. Thus, the Court upheld the constitutionality of Ss. 95-100 IBC.

[DY Chandrachud CJI, JB Pardiwala J, Manoj Misra J]

[Keywords: constitutionality, insolvency of personal guarantor to corporate persons]

In Maharashtra State Electricity Distribution Company Limited v. Ratnagiri Gas and Power Private Limited, the Court held that a commercial document cannot be interpreted in. a manner which is at odds with the original purpose and intendment of the parties to the document.

[DY Chandrachud CJI, JB Pardiwala J, Manoj Misra J]

[Keywords: Electricity, APTEL, CERC, Central Electricity Regulatory Commission, Power Purchase Agreement]

In Vijay v. Union of India & Ors., it was held that an Agreement to Sell executed in 1988 was not required to be stamped at the relevant period to attract the bar of Section 35 of the Stamp Act as it preceded the Indian Stamp (Madhya Pradesh) Amendment Act 1989, which could not have retrospective application. It was further held that a copy of a document may be adduced as secondary evidence if other legal requirements are met. In the present judgment, the Bench summarized the law relating to Section 63 and Section 65 of the Indian Evidence Act 1872.

[Abhay S Oka J., Sanjay Karol J.]

[Keywords: Section 35 and 36 of the Indian Stamp Act 1899, Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao (1971) 1 SCC 545, best evidence, secondary evidence, SECTION 63 and 65(a) of the Indian Evidence Act 1872, Hariom Agrawal v. Prakash Chand Malviya (2007) 8 SCC 514, Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656, clarificatory and explanatory amendment]

In Sabir Hussain (D) thr. L.Rs  v. Syed Mohammad Hasan (D) thr. L.Rs the Supreme Court had set aside the order of the High Court in appeal, which in turn has set aside the decree granted to the appellants in a suit for eviction against the Respondents. The predecessor-in-interest of the appellants, Mr. Reza Hussain has purchased it from one Mohd. Jafar. Mohd. Jafar is admitted to be the son of the brother of one Kallu Bhai, who is the father of the respondent-defendant. The subject property was purchased by Kallu Bhai in the name of Mohd. Jafar when the latter was three years old, in 1913. However, in 1975, Mohd. Jafar sold the property to Reza Hussain as the respondent-defendant, who used to stay in the same property has failed to take care of him in his old age. The Court was satisfied of the genuineness of the sale deed in question, and has found that the sole reason provided by the High Court in setting aside the decree was a mismatch in the buyer’s signature in the Sale Deed and the Agreement to Sell. Court found that the first appellate court has failed to appreciate the entire evidence on the record, which included the testimonies of the witnesses who signed the sale deed, the strength of the sale deed and agreement to sell which were registered documents, and the handwriting expert’s opinion which formed the basis of the trial court’s decree. Holding thus the matter was remanded to the High Court for fresh adjudication.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: appreciation of entire evidence, reasons for setting aside the decree, registered documents, identification of signatures]

In Moturu Nalini Kanth v. Gainedi Kaliprasad (dead, through LRs.)., the Appellant, then a minor, claimed absolute right and title over the properties of late Venkubayamma under a registered Will. It was also claimed that he was adopted by her in terms of an Adoption Deed. The Appellant filed a suit for declaratory reliefs in respect of Venkubayamma’s properties. The suit was decreed in favour of the Appellant, but rejected by the High Court in appeal. The Court held, relying on Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91, that mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of S. 63 of the Indian Succession Act, read with Ss. 68 and 69 of the Indian Evidence Act. The contention that S. 69 of the Evidence Act does not require actual proof of handwriting of at least one attesting witness and proof of signature of the executant being in that person’s handwriting, was not accepted. Insofar as the issue of adoption was concerned, though the Adoption Deed was registered, the court held that the presumption in favour of such Deed under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 is a rebuttable presumption, which was sufficiently rebutted in the present case. The judgment of the High Court was, accordingly, confirmed.

[C.T. Ravikumar J., Sanjay Kumar J.]

[Keywords: Registered Will, suspicious circumstances, Adoption Deed, rebuttable presumption, testator, attesting witness]

In P. Kishore Kumar v. Vittal K. Patkar, the Court reiterated that revenue records are not documents of title, and that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. In the present case, the Commissioner’s order distinctly denying the rights of occupancy to the plaintiff’s vendor is evidence that renders the revenue entries unworthy of acceptance. The Court further held that the first appellate court having examined the facts in extenso, the High Court ought not to have interfered with the findings rendered therein by virtue of being in second appeal.

[Bela M. Trivedi J., Dipankar Datta J.]

[Keywords: Mixed question of law and fact, Section 100 CPC, first appellate court, second appeal, revenue record, mutation, title, Inamdar]

In Additional Tehsildar & Ors v. G. Urmila, the Supreme Court clarifies that the Jurisdiction exercised by a Lokayukta/Upa Lokayukta is a recommendary jurisdiction and that the said bodies are not competent to pass a positive direction to the statutory authorities. In the instant case, the Respondents have initiated a complaint before the Lokayukta citing maladministration by the Revenue Officials in recording the mutation of the land the deceased person who is the predecessor-in-interest of the Respondents. Upon perusing the case history, it was found that the Revenue has considered the application filed by the Respondents for mutation, and the same was rejected. The Respondent has not taken any steps to challenge the said order, and has instead appealed to the Lokayukta to direct the Revenue to record the mutation. Upon finding that the Lokayukta’s order directing the Revenue to mutate the records was without jurisdiction, the Court proceeded to set aside the order, and the Respondent was directed to seek the appropriate remedies under statute.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: recommendary jurisdiction, direction to statutory authorities, remedies under statute, Lokayukta Act 1999]

In Bharat Petroleum Corporation Ltd v. ATM Constructions, the question that arose before the Supreme Court was whether a suit for damages is maintainable when there exists a decree from an earlier suit for recovery of possession of the immoveable property. On facts, the Appellant is the successor-in-interest of the Burma Shell Oil Company which entered into a lease deed in 1958 with the Respondent’s predecessor-in-interest for a period of twenty years, and with an option for extension of lease for another twenty years. The said period of forty years has expired in 1998 following which the Respondent filed a suit for recovery of possession, which was decreed in 2006. However, in 2010, the Respondent filed a suit for damages for unauthorized occupation of the premises. Appellant has preferred an application under Order VII Rule 11(d) of the Civil Procedure Code for dismissal of the suit for damages before the High Court, which was dismissed. Relying on the judgment in Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd which held that the cause of action for mesne profits may not coincide with the cause of action for recovery of possession, the Court held that a subsequent suit for damages is maintainable, subject to objections that the claim or a portion thereof is time-barred.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: Subsequent suit, suit for damages, suit for recovery of possession Order II Rule 2, pendente lite and future mesne profits, cause of action, maintainability of subsequent suit]

In Eldelco Housing and Industries Ltd v. Ashok Vidhyarthi, the Appellant and Respondent have entered into a Memorandum of Understanding for executing a sale deed with respect to the Respondent’s interest in the suit property, which was the subject matter of litigation between the Respondent and his family members. The Memorandum prescribes a condition for executing the sale deed for a consideration determinable upon the Respondent succeeding in the pending litigation. However upon non-receipt of updates from the Respondent and the possibility of creating third-party rights, Appellant has filed a suit for injunction. Later, when a suit for specific performance was instituted, the Respondent moved an application under Order VII Rule 11 (d) for dismissal of the said suit as per Order II Rule 2. While the trial court has rejected the said application, Respondent’s prayer was allowed in a review application by the High Court. The Court proceeded to rely on its ruling in Inbasegaran and another v. S. Natarajan (dead) through legal representatives and held that the cause of action in the suit for injunction is different from the cause of action in the suit for specific relief. Holding thus, the Court set aside the judgment of the High Court and the matter was remanded to the trial court for a decree in the suit for specific performance.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: Rejection of Plaint under Order VII Rule 11, separate cause of action, maintainability, Memorandum of Understanding, refund of earnest money, consideration of merits at the stage of Order VII Rule 11]

In Government of NCT of Delhi v. Union of India & Ors, a three-judge Bench of the Supreme answered two questions in the affirmative on a prima facie basis i.e. the Union Government had the unilateral power to appoint the Chief Secretary of NCTD and that the Union Government has the power to extend the service of the incumbent Chief Secretary

[DY Chandrachud CJI., JB Pardiwala J., Manoj Misra J.]

[Keywords: State (NCT of Delhi) v. Union of India (2018) 8 SCC 501, Govt. of NCT of Delhi v. Union of India (2023) 9 SCC 1, Government of National Capital Territory of Delhi Act 1991,  Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993] [Please see https://www.barandbench.com/news/supreme-court-allows-centre-extend-tenure-delhi-chief-secretary-says-move-prima-facie-not-illegal]

In State of Punjab v. Principal Secy. Governor of Punjab & Ors, the Supreme Court was called upon to adjudicate the correctness of the Governor of Punjab stalling four bills passed by the Punjab Legislative Assembly in June 2023, citing breach of law and procedure. Specifically, the Court was called upon to interpret the first proviso of Article 200 of the Constitution of India empowering the Governor to provide assent to a bill passed by the State Legislative Assembly. It was clarified that assent to a bill passed by the legislature cannot be withheld for indeterminate period. It was further held that the constitutional power granted to the Governor cannot be used to thwart the lawmaking power of the State Assemblies. A second issue on the Speaker’s power to adjourn the budget session of the house sine die only to be reconvened for three days in June to pass the subject bills was examined. It was held that reconvening a session which has not been prorogued is permissible and thus the bills passed in such a session do not suffer from any legal infirmity.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: prorogation of the session, indefinite withholding of assent, bills recommended to President, exclusive guardian of privileges of the House, breach of law and procedure]

In State of Jharkhand and Anr v. Sociedade De Fomento Industrial Pvt Ltd and Ors., the challenge was to the judgment of the High Court whereby the decision of the State to annul the tender and the auction notice were held to be vitiated. The Court held the effect of allowing the Writ Petition was that the directions of the Writ Court compel the Government to open the price bid and evaluate the feasibility of awarding the subject mining lease to the Respondent. Once the NIT is held as a non-responsive tender, the State cannot be compelled to evaluate the sole price bid of the Respondent. The Court also held that the High Court examined the decision making process of the State in annulling the tender process and set aside the well reasoned judgment of the Single Judge, which was unsustainable. Accordingly, the appeal of the State was allowed.

[Sanjiv Khanna J., S.V.N. Bhatti J.]

[Keywords: Tender, scope of judicial review, Jagdish Mandal v. State of Orissa, e-auction, decision making process, sole bidder, non-responsive bid, de novo auction, mining lease, Article 14]

In Dr. Premchandan Keezhoth v. The Chancellor, Kannur University¸ the Supreme Court laid down the dictum that the Governor, in his capacity as the Chancellor of Kannur University cannot act as a Governor, and that the re-appointment notification of June 2021 of the then Vice-Chancellor, made on the aid and advice of the State Government amounted to unwarranted interference. Reference was made to the Kannur University Act, 1996 which designates the University as an Autonomous Institution and the powers of the post of Chancellor. In exercise of his duties as the Chancellor, the Court held that the governor assumes an independent personality and he is not bound to act on the aid and advice of the council of ministers. On facts, the Court observes that there was a public announcement for the recruitment of Vice-Chancellors, which came to be halted at the behest of a communication from the Minister of Education, and in the successive events, the serving Vice Chancellor, i.e. Respondent No.4’s name was proposed for re-appointment. The Court observed that the Chancellor does not merely play a titular role in the scheme of the 1996 Act, and that he is the sole judge on the decision to appoint a Vice-Chancellor.

[Dr. D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: abdication of statutory duty, sole judge, vitiation of decision-making process, external influence, aid and advice of the Council of Ministers, Independent capacity, writ of quo warranto]

In M/s Sweta Constructions v. Haryana State Pollution Control Board & Anr, the Appellant preferred an appeal from an order by the National Green Tribunal, which in turn quashed the order of the Appellate Authority under Air Act, 1981 and the Water Act, 1974, wherein the Appellate Authority quashed the order of 21.07.2017 of the Respondent Board to prosecute the directors of the Appellant board for violation of the provisions of Air Act and Water Act. The Appellants are a construction firm which sought approval from the Respondent Board to construct a housing society. A Consent to Establish “CTE” has been granted in 2007, however, the applications for renewal of the CTE have been rejected. While things stood thus, the Appellant’s application for renewal of the Environment Clearance “EC” has been granted by the MoEF & CC and the Respondent Board itself has granted an ex post-facto CTE on 18.10.2017 along with a condition that the directors of the Appellant will be prosecuted in terms of order dated 21.07.2017. The Court observed that the Appellate Authority has misdirected itself in considering the grant of EC by the MoEF & CC while adjudicating the correctness of the order dated 21.07.2017. Further, it was observed that the Appellant failed to challenge the condition prescribing prosecution in the ex post-facto CTE granted in October 2017, and has also acted upon the same. On the said grounds, the order by NGT interfering with the Appellate Authority’s order stood confirmed.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: Consent to Establish, Environmental clearance, ex post-facto Consent to Establish, prosecution for past violations]

In Adithi alias Mithi v. Jitesh Sharma, the Supreme Court took exception to the High Court’s order which reduced the amount of maintenance payable to the Appellant minor from Rs. 20,000 as fixed by the Family Court to Rs. 7,500. The appellant is the daughter of the Respondent who was entitled to maintenance as per the Family Court’s order in a claim for maintenance. It was observed by the Court that the High Court has, without any reason, reduced the maintenance payable to the minor daughter on the basis of the plea of the respondent citing financial distress. The court has also observed that an Affidavit of disclosure of Assets and Liabilities has not been filed by the respondent at the time of adjudicating the petition for maintenance, as was laid down in the case of Rajnish v. Neha. Holding thus, the Court set aside the order of the High Court and remanded the matter for fresh consideration, along with a direction to the High Courts and Judicial Academies on the requirement of compliance with the directions laid down in Rajnish v. Neha.

[Vikram Nath J, Rajesh Bindal J]

[Keywords: Maintenance, minor child, Affidavit of disclosure of assets and liabilities, plea of financial distress, lack of record]

In M/s Modi Naturals Ltd v. Commissioner of Commercial Tax, UP, the Supreme Court adjudicated two appeals filed by the assessee Appellant, challenging the judgment of the High Court which reversed the findings of the Commercial Tax Tribunal awarding Input Tax Credit for the full value of raw material to the Appellant. The Appellant’s manufacturing process results in an end product which is amenable to tax under the UP VAT Act and a by-product which is exempted. The assessment officer rejected the assessee’s claim for full amount as Input Tax Credit on the ground that Input Tax Credit ought to be granted only against taxable goods. The Additional Commissioner of Commercial Tax was of the opinion that the appellant was entitled to full refund, which was affirmed by the Commercial Tax Tribunal. The High Court reversed the findings of the Commercial Tax Tribunal on the basis of the judgment in State of Karnataka v. M.K. Agro Tech Private Limited. The Court examined the statement of object of the UP VAT Act and Section 2(m) read with section 13 to hold that ‘goods’ would not be restricted to ‘taxable goods’. Further, reference was made to section 2(ai) of the UP Act defining ‘taxable goods’ and held that section 13 does not limit input tax credit with respect to taxable goods alone. The court also notes the deeming fiction created by Explanation (ii) of Section 13(3)(b) which deems for the purposes of input tax credit that the purchased goods have been used to produce the final product. The court proceeded to distinguish M.K Agro Tech and allowed the appeal.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: Input Tax Credit, exempted goods, taxable goods, full refund, loss to state exchequer, deeming fiction, literal interpretation, manufacture, sale, UP VAT Act.]

In Sacchidanandam (D) thr. LRs v. E.Vanaja, the case concerned the partition of the suit schedule property which was sought to be bifurcated as amongst the legal heirs of one Mr. Nallatambi Chettiar. Respondent is the wife of Mr. Chettiar’s son who has pre-deceased Mr. Chettiar. The Appellants are the sons and daughters of Mr. Chettiar. In a suit filed by the Respondent, the Trial Court arrived at a finding that the various components of Mr. Chettiar’s estate which was bifurcated as ancestral property, Mr. Chettiar’s self-acquired property and the property purchased from the proceeds of Mr. Chettiar’s estate was found to be in joint possession of the family, and accordingly, the trial court decreed that the plaintiff is entitled to 1/8^th of the estate in toto. The High Court in Second Appeal has further held that the plaintiff is entitled to 1/16^th of her mother-in-law’s share in the estate who has died intestate. The Court refused to interfere with the finding that all properties were joint properties. However, the court proceeded to modify the direction of the High Court with respect to plaintiff’s entitlement to 1/16^th share of the mother-in-law’s interest, on the basis of principles governing intestate succession of a hindu female wherein the widow of a pre-deceased son does not hold first entitlement over the estate.

[B.R Gavai J, Hima Kohli J, Prashant Kumar Mishra J]

[Keywords: Joint property, intestate succession of Hindu female, entitlement of the widow of pre-deceased son, partition by metes and bounds, disproved will]

In Bajaj Allianz General Insurance Co. Ltd. v. Mukul Aggarwal & Ors., the appeal arose from a claim made by the Respondent on account of damage caused to his BMW 3 series car due to an accident in Gurgaon in the year 2012 which rendered the car completely damaged. At the time of purchase, the owner took a motor insurance policy of the Appellant, and a BMW Secure Advance Policy of BMW. The Respondent argued that a conjoint reading of the two policies provided that since the car suffered more than 75% damage, a new car must be provided to the insured. On a consumer complaint made by the Respondent, the State Commission and the National Commission, both held in his favour. The Court held that the insured cannot claim anything more than what is covered by the insurance policy and that the rule of contra proferentem is not applicable to a commercial contract like a contract of insurance. It was further held that BMW can be held liable under BMW Secure when it is established that the insurer under the motor insurance policy has accepted the case of total loss / constructive loss of the vehicle. In terms of the Policy, since BMW had not pleaded whether a car of exactly similar make was available on the date of accident and the price of vehicle, an adverse inference was drawn against it. The Court, thus, held the insured to be entitled to compensation from both, the BMW and the insurer.

[Abhay S Oka J., Rajesh Bindal J.]

[Keywords: Insurance, contra proferentem, constructive total loss, surveyor, intimation of accident, repudiation of policy]

In New India Assurance Co. Ltd. and Ors. v. M/S Mudit Roadways, the Appellant challenged the order of the NCDRC directing it to pay Rs. 6,57,55,155/- for a fire insurance claim with 9% interest from claim denial date within eight weeks. The Court held that the surveyor’s report cannot be considered a sacred document and contrary evidence, including an investigation report, is subject to rebuttal. The key question was whether the investigation report is indispensable, or if the survey report alone was sufficient to determine the cause of fire. It was observed that the precise cause of fire, whether attributed to a short circuit or any other alternative factor, remains immaterial, provided the claimant is not the instigator of fire. In the present facts, the cause of fire was not attributed to the insured, in any of the survey reports. Further, noting that the customs duty package policy was also obtained by the insured from the insurance company, the inclusion of customs duty in the insurance claim was held justified, but was directed to be paid directly by the Insurance company to the Customs Department.

[Hrishikesh Roy J., Sanjay Karol J.]

[Keywords: Leave and License Agreement, letter of repudiation, surveyor’s report, Insurance Act, 1938, uberrimae fidei, insurance contract, Customs Act, 1962]

About the authors: Subhro Prokas Mukherjee, Sahil Tagotra, Abhinav Hansaraman and Venkata Supreeth K are advocates mainly practicing in Delhi before the Supreme Court of India.