ALTERNATIVE DISPUTE RESOLUTION
- PSA Sical Terminals Pvt. Ltd. v. The Board of Trustee of V.O. Chidambranar Port Trust Tuticorin & others
Arbitrator cannot rewrite contract for parties-28 July 2021
The Division Bench of the Supreme Court has held that an arbitral award which is based on no evidence and/or in ignorance of evidence would come under the realm of patent illegality. The Court also held that an arbitrator cannot rewrite the contract for the parties.
In 2012, an Arbitral Tribunal passed an award in favor of PSA Sical Terminals Pvt. Ltd. directing amendment of the license agreement entered between the Parties to convert the royalty model into revenue sharing model.
A petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside an arbitral award was presented by the Trust and the Court held that: “In this scenario, the finding of the Arbitral Tribunal, that there was a law when the Agreement was entered into between the parties, which provided royalty as a pass-through and that the said law has been changedfor the first time in 2003 and subsequently again changed in 2005, in our view, is a finding based on ‘noevidence‘. It was further held that ‘a unilateral addition or alteration of a contract has been foisted upon an unwilling party’ and that ‘a party to the Agreement cannot be made liable to perform something for which it has not entered into a contract and rewriting a contract for the parties would be breach of fundamental principles of justice.’
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/psa-sical-terminals-pvt-ltd-vs-board-of-trustees-of-vo-chidambranar-port-trust-tuticorin-ll-2021-sc-329-38654201732150128824judgement28-jul-2021-1-1-397489.pdf - Amazon.com NV Investment Holdings LLC v. Future Retail Limited
No appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator’s order made under Section 17(2) of the Act – 05 August 2021
The Supreme Court ruled in favour of e-commerce giant Amazon in its dispute with Future Retail Limited (FRL) over the latter’s merger deal with Reliance group. The court held that that Emergency Award passed by Singapore arbitrator stalling FRL-Reliance deal is enforceable in Indian law. The Court held that an award/order by an Emergency Arbitrator would be covered by Section 17 of the Arbitration and Conciliation Act and it can be enforced under the provisions of Section 17(2). It also held that no appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator’s order made under Section 17(2) of the Act.
The judgment can be accessed at:
https://main.sci.gov.in/supremecourt/2021/3947/3947_2021_32_1501_29084_Judgement_06-Aug-2021.pdf
COMPETITION & UNFAIR TRADE PRACTICE
- Flipkart Internet Pvt. Ltd.v. Competition Commission of India
CCI enquiry against Amazon, Flipkart cannot be crushed at initial stage -23 July 2021
The High Court of Karnataka has upheld the Competition Commission of India’s decision to conduct an investigation through its Director General into whether they had entered into anti-competitive agreements in violation of the provisions of the Competition Act 2002. Observing that the enquiry initiated by the CCI cannot be crushed at the initial stage, the division bench has described the approach of both the e-commerce majors as ‘an attempt to ensure that the enquiry does not attain finality’.
The CCI had acted on a complaint by Delhi Vyapar Mahasangh (DVM), which had alleged that Amazon and Flipkart were giving preference to select sellers and offering deep discounts after entering into anti-competitive agreements.
The Order can be accessed at:
https://indiankanoon.org/doc/144176021/
CORPORATE
- M/S Orator Marketing Pvt. Ltd. v. M/S Samtex Desinz Pvt. Ltd.
Lender who advanced interest free loans corporate body is also Financial Creditor; can initiative CRIP-26 July 2021
The Supreme Court observed that a lender who advanced interest free loans to finance the business operations of a corporate body is a Financial Creditor and competent to initiate the Corporate Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016.The bench observed that ‘there is no discernible reason, why a term loan to meet the financial requirements of a Corporate Debtor for its operation, which obviously has the commercial effect of borrowing, should be excluded from the purview of a financial debt’.
The Judgement can be accessed at:
https://main.sci.gov.in/supremecourt/2021/9171/9171_2021_40_30_28762_Judgement_26-Jul-2021.pdf
TECHNOLOGY, MEDIA AND TELECOM
- Elangbam Ranjita v. The State of Manipur & Anr.
Manipur journalist held under NSA for Facebook post freed after HC order-23 July 2021
Manipur journalist Kishorchandra Wangkhem aka Wangkhemcha Wangthoi, who was detained under the National Security Act (NSA) for his Facebook post that cow dung and cow urine cannot cure Covid, was freed from Imphal jail on Friday evening by the state government following an order of Manipur High Court.The Manipur High Court, noting the Supreme Court order, said: “We find no distinction or difference between the case of the petitioner’s husband (Kishorchandra) and that of Erendro Leichombam. Both of them put up similar Facebook posts, critical of the utility of cow dung and cow urine in treating Corona virus. As they stand identically situated, we are of the opinion that the continued incarceration of the petitioner’s husband would be as much a violation of Article 21 of the Constitution, as it was in the case of Erendro Leichombam.”
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/wpcril-9-of-2021-wangkhemcha-kishorchandra-digitally-signedwatermark-397188.pdf - Union of India v. Association of Unified Telecom Service Providers of India and Ors.
SC rejects telcos’ plea for recalculation of AGR dues-23 July 2021
The Supreme Court has dismissed a plea of telecom companies for correction of alleged errors in adjusted gross revenue (AGR) calculation.
The court had in September last year granted telecom companies a period of 10 years to clear their pending AGR dues to the central government with 10 per cent payment every year. The matter came back to the court after the telcos didn’t submit the amount disputing the calculation done by the department of telecom (DoT).
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/agr-judgment-23072021-397249.pdf - Saahil Nalwaya v. State of Rajasthan
Rajasthan High Court dismisses plea seeking ban on online fantasy games with money stake-22 July 2021
The Rajasthan High Court has dismissed a petition seeking prohibition in the state on offering or playing of online fantasy games and other online games of mere skill by putting money at stake in expectation of winning.
The Court observed that all the prayers sought by the Petitioner were considered and decided by the High Court in the case of Ravindra Singh Chaudhary vs Union of India & Others vide order dated October 16, 2020 and thatin essence, the present writ petition is an attempt to review this judgment which has been passed by this Court by placing reliance on various judgments rendered by the Supreme Court.
The Court held that, “Since the result of Fantasy Game depends on skill of participant and not sheer chance,and winning or losing of the virtual team created by the participant is also independent of the outcome ofthe game or event in the real world, we hold that the format of Online Fantasy Game is a game of mereskill and their business has protection under Article 19(1)(g) of the Constitution of India, as repeatedlyheld by various Courts and affirmed by the Hon’ble Supreme Court.”
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/2052000202620213-1-397507.pdf
LITIGATION
- Larsen & Toubro Limited & Anr. v. Punjab National Bank & Anr.
Does Exception 3 to S. 28 of Contract Act deal with claim period within which beneficiary is entitled to lodge claim? Court discusses-28 July 2021
The Court observed that “Exception 3 to section 28 of the Contact Act deals with the rights of acreditor to enforce his rights under the bank guarantee after happening of a specified event”.
The Court pointed out that respondent also admits that Exception 3 to section 28of the Contract Act deals with a clause in a bank guarantee to the effect that in case no claim is filed beforethe court of law within a period which is not less than 12 months from the date of occurring or non-occurring of the specified event, the liability of the bank shall get extinguished.
Such a term is not contrary to law.In view of the above, the court held that the communications issued by the bank to the extent of itsinterpretation of Exception 3 to Section 28 of the Contract Act on the basis of which, it insisted on a mandatory and an unalterable claim period of a minimum 12 months for BGs, was held by the Court to be erroneous.
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/lt-vs-pnb-claim-period-bank-guarantee-397676.pdf
