Orders and Judgments Duration January 08-22, 2021

"THAT GOVERNMENT IS BEST WHICH GOVERNS THE LEAST, BECAUSE ITS PEOPLE DISCIPLINE THEMSELVES."

HENRY DAVID THOREAU

ALTERNATIVE DISPUTE RESOLUTION

  • Bhaven Construction Through Authorised Signatory Premjibhai K Shah v. Executive Engineer Sardar Sarovar Narmada Nigam Ltd & Anr
    Powers under Articles 226/ 227 should be used sparingly by High Court (HC) when interfering with arbitral process-6 January 2021
    The Supreme Court has ruled that powers under Articles 226/227 should be used sparingly by High Court (HC) when it comes to interfering with arbitral process. Such power should be exercised only in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. “It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This high standard set by this Court is in terms of the legislative intention to make the Arbitration fair and efficient,” the Court said.
    The Judgement can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-386987.pdf
  • N Global Mercantile Pvt Ltd v. Indo Unique Flame Ltd & Others
    Constitution Bench of Supreme Court (SC) to decide whether non-payment of stamp duty on contract will invalidate Arbitration clause in the contract-11 January 2021
    A Constitution Bench of the Supreme Court (SC) will decide whether non-payment of stamp duty on a commercial contract would invalidate even the Arbitration clause, which is part of such contract, and make it invalid or unenforceable in law. This development came about after a three-judge Bench of the Supreme Court on Monday differed with the earlier judgments of the top court in this regard in SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari TeaCo. Pvt. Ltd, Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited and Vidya Drolia v. Durga Trading Corporation. The Court also framed the following question to be “authoritatively settled by a Constitution bench of five judges:” “Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the Arbitration Agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument?” The three-judge Bench was of the view that an Arbitration Agreement/clause being a separate and distinct Agreement from the underlying commercial contract, would survive independent of the substantive contract. Hence, the non-payment of stamp duty on the commercial contract, would not invalidate the Arbitration clause, or render it un-enforceable, since it has an independent existence of its own. “In our view, there is no legal impediment to the enforceability of the Arbitration Agreement, pending payment of stamp duty on the substantive contract. We hold that since the Arbitration Agreement is an independent Agreement between the parties, and is not chargeable to payment of stamp duty, the nonpayment of stamp duty on the commercial contract, would not invalidate the Arbitration clause, or render it un-enforceable, since it has an independent existence of its own,” the Court held.
    The Judgement can be accessed at:
    https://main.sci.gov.in/supremecourt/2020/23926/23926_2020_38_1502_25365_Judgement_11-Jan-2021.pdf
  • PCL Suncon v. National Highway Authority of India
    An Order terminating an arbitral proceeding is not an Award-12 January 2021
    An order terminating an arbitral proceeding under Section 25(a) of the Arbitration & Conciliation Act is not an award and an application under Section 34 of the Act to set aside the said order is not maintainable.
    The Judgement can be accessed at:
    https://images.assettype.com/barandbench/2021-01/cbb7cfe5-de19-4f00-b29d-54a134a0b852/PCL_Suncon_vs_NHAI.pdf

COMPETITION & UNFAIR TRADE PRACTICE

  • Competition Commission of India (CCI) approves acquisition of 100% shareholding of the Columbia Asia Hospitals Private Limited by Manipal Health Enterprises Private Limited-8 January 2021
    The Competition Commission of India (CCI) approves acquisition of 100% shareholding of the Columbia Asia Hospitals Private Limited by Manipal Health Enterprises Private Limited. Manipal Health Enterprises Private Limited (Acquirer/MHEPL) is a part of Manipal Educational and Medical Group, operating a network of hospitals, providing multi-specialty care. Its focus is to develop an affordable, high quality healthcare framework through its multi-specialty and tertiary care delivery spectrum and further extend it to homecare. MHEPL is not engaged in any business activity outside India, except in Malaysia.
    The Order can be accessed at:
    https://www.pib.gov.in/PressReleasePage.aspx?PRID=1687115
  • Competition Commission of India (CCI) approves acquisition by Total SE through its subsidiary Total Renewables SAS in share capital of Adani Green Energy Limited-11 January 2021
    The Competition Commission of India (CCI) approves acquisition by Total SE (‘Total/Acquirer’) through its subsidiary Total Renewables SAS in share capital of Adani Green Energy Limited (“AGEL”) under Section 31(1) of the Competition Act, 2002. The Proposed Combination entails minority investment by Total SE, through its wholly owned subsidiary Total Renewables SAS, in AGEL which is the renewable energy arm of the Adani Group.
    The Release can be accessed at:
    https://www.pib.gov.in/PressReleasePage.aspx?PRID=1687711
  • Competition Commission of India (CCI) approves Proposed Combination in acquisition of 100% equity interest and joint control in Virtusa Corporation by Austin HoldCo., GIC Investor and CPPIB Investor-12 January 2021
    The Competition Commission of India (CCI) approves the Proposed Combination relating to the acquisition of 100% equity interest and joint control in Virtusa Corporation by Austin HoldCo., GIC Investor and CPPIB Investor. The Proposed Combination relates to the acquisition of 100% equity interest and joint control in Virtusa Corporation (Virtusa) by Baring Private Equity Asia (BPEA) (through Austin HoldCo.), Atago Investment Pte Ltd. (GIC Investor) and CPP Investment Board Private Holdings (4) Inc. (CPPIB Investor).
    The Order can be accessed at:
    https://www.pib.gov.in/PressReleasePage.aspx?PRID=1687847

CORPORATE

  • Subhash Chandra Agarwal v. Ministry Of Corporate Affairs
    Plea to publish names of recipients of unclaimed dividends in 'Public Interest'-21 December 2020
    The Central Information Commission (CIC) recently agreed that an appeal that raised the issue of dividend encashment for such people who had lost track of their investments was one of “public interest”. In a recent ruling, the Commission also held that there are numerous people who lose track of the funds owed to them. It said some people are not aware of the investments made by their parents and do not possess the complete records of those investments and even nominees and legal heirs may fail to stake a claim if they are not aware of such assets.
    The Judgement can be accessed at:
    https://indiankanoon.org/doc/161175791/
  • Naresh Kumar Poddar v. Union of India, through Secretary, Ministry of Corporate Affairs and another
    Amendments made in the year 2014 and 2018 to the Companies Act, 2013 are prospective-5 January 2021
    On 5th January, 2021, Calcutta High Court (HC) while hearing a case, Naresh Kumar Poddar v. Union of India, had held that, the 2014 and 2018 Amendments of Section 164 (2) and proviso of Section 167 (1) of Companies Act, 2013, are predictive in nature. The Court was also of the view that, the retrospective application of these amendments would be unnatural and could have the ability to ruin the economy. The said provisions of the Act deal with the disqualification of a Director of a company. If a Director fails to file financial statement for a continuous period of three years and balance sheet for a period of 30 days then the Director would be disqualified for a term period of five years. The Court has clarified that, the amendment to Section 164 (2) was introduced on 1st April, 2014 and it must be applied in a prospective manner. The Court had also clarified that, the amended proviso to Section 167 (1) of the Companies Act, 2013, must be interpreted prospectively only after 7th May 2018. The Court had also stated that, these types of disqualifications violate the fundamental rights of a Director. The Court had also stated that, no power is given to the authorities regarding the disqualification of Directors. The principle of natural justice would have no role to play in these types of matters.
    The Judgement can be accessed at: ReadMore
  • Sunteck Realty Limited v. Goodwill Theatres Private Limited
    Advance given by Real-Estate Developer to Property Owner is Operational Debt under Insolvency and Bankruptcy Code (IBC)-7 January 2021
    The National Company Law Tribunal (NCLT) ruled that the advance amount received by a property owner from the real-estate developer for a re-development project qualifies as operational debt under the Insolvency & Bankruptcy Code, 2016.
    The Order can be accessed at: ReadMore

INFORMATION TECHNOLOGY

  • Union of India v. Internet Service Providers Association of India & Ors
    Supreme Court (SC) stays refund of licence fee to UL-ISPs-5 January 2021
    The Supreme Court (SC) has sought replies from Internet Service Providers (ISPs) on an appeal by Centre against a TDSAT order which had asked Centre to maintain parity between Unified License (UL) Internet Service Providers (ISPs) and old licensees with respect to license fees. ISPs will have to file replies within 6 weeks, and Centre will get 4 weeks to file its counter reply before the apex court hears the case for final disposal after April 12. The top court has partially halted the TDSAT order by allowing the Centre to not refund the excess license fee charged from UL holder ISPs.
    The Order can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-386891.pdf
  • Rajendra v. Union of India and Others
    No channel can telecast ads on religious items-5 January 2021
    In a significant ruling, the Bombay High Court (HC) has held that no TV channel or actor must propagate advertisements to sell certain religious items with a claim that the product could enhance the lives of human beings. The HC has held that any TV channel, company or actor found promoting any such products would be prosecuted for cheating as well as under provisions of the Black Magic Act.
    The Judgement can be accessed at:
    https://images.assettype.com/barandbench/2021-01/83b0083d-e3a2-4c97-a679-108bbd374af1/Rajendra_Ambhore_v__State_of_Maharashtra.pdf
  • Sri Kunal Bahl v. State of Karnataka
    Intermediary not responsible for action of vendor, seller-7 January 2021
    The High Court (HC) said an intermediary governed by the Information Technology Act, or its directors/officers, will not be liable for action or inaction on the part of a vendor/seller, who makes use of its website or marketplace facility.
    The Judgement can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-387152.pdf
  • Rakesh Kumar Singla v. Union of India
    Can rely on WhatsApp messages during probe-14 January 2021
    The Punjab and Haryana High Court (HC) has ruled that an investigating agency can rely upon WhatsApp messages during the course of a probe.
    The Judgement can be accessed at:
    https://images.assettype.com/barandbench/2021-01/b81179c2-4b82-47af-b648-393bf8279cbb/Rakesh_Kumar_Singla_v__State_of_Haryana_Jan_14.pdf

CONTRACTS

Disclaimer “This information has been gathered from various sources. Nothing herein is or may be construed as legal advice”.