CS Professional:Multidisciplinary Case-Studies [Ch-3 FEMA,Economic and Business Laws]

3.1

• the court considered the Consumer Protection Act,1986 and Arbitration Act,1996 and concluded this to be a special remedy under consumer protection act despite there being an arbitration agreement.
• consumer forum proceedings shall go on as they are special
• The remedy provided is in case of defects and is confined to the complaint by the consumer.
• cheap and quick remedy
• some other fields where agreement stands irrelevant
• action of party amounting to an offence to be examined by a criminal court
• cheque dishonored examined by criminal court despite of an arbitration agreement
• non-arbitrable issues
• judgements referred
• Booz Allen & Hamilton Inc v. SBI Home Finance Ltd. & Ors. (2011)
• again reiterated by this Court in A. Ayyasamy v .A. Paramasivam & Ors. (2016)
• Section 8 amendment can't be given such expansive meaning to inundate special legislations where disputes were held non-arbitrable
• Something which legislation never intended cannot be accepted as side wind to override the settled law.
• The petitioner's submission that post-amendment law is no longer a good law can't be accepted.
• “notwithstanding any judgment, decree or order of the Supreme Court or any Court” were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall entitle to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void.
• if a person doesn't opt to avail additional/special remedy and is a party to arbitration agreement.
• only when an option is availed can the authority refuse to relegate arbitration parties.
• no error committed by NCDRC

3.2

• whether common questions of law/fact arise in causes of action of Infringement & passing off could be joined under Order II Rule 3 CPC
• not decided under:
  
• Dabur India Limited v. K.R. Industries, (2008)
• Dhodha House v. S.K. Maingi (2006)
• but the general law on joinder was referred and held in
• Prem Lata Nahata & Anr v. Chandi Prasad Sikaria, (2007)
• whether evidence/substantial evidence in both causes of action would be common
• different evidence=no joinder
• In the present case, it would be instructive to refer to:
• M/s. Jay Industries v. M/s. Nakson Industries, 1992 SCC Online Del 84; AIR 1992
• as it lays down the ratio for the issue at hand and where there can be a joinder
• 2 different causes of action can be part of the same transaction.
• for example, selling & packing/labelling which infringes trademark and copyright
• common facts bundle
• since sale results in infringement of trademark and copyright therefore,permissible to join and avoiding multiple proceedings
• once a sale transaction results in infringement of 2 rights and includes common questions of law/facts; it can be joined and filed as a composite suit by plaintiff against defendant
• one of infringement of the registered design of the plaintiff and the second of the defendant passing off its goods as that of the plaintiff on account of the goods of the defendant being fraudulent or obvious imitation i.e. identical or deceptively similar.

3.3

• Section 69 deals with effects of non-registration and bar on suits to enforce a right arising out of a contract against any third party.
• respondents/plaintiff filed a suit for recovery of a total of 24,41,967 against petitioners/defendants on account of dishonoring cheques which is the suit amount.
• KHC in Afsal Baker observed by Section 30/37 of Negotiable Instruments Act (NIA), creates a liability on drawer apart from general contract law
• right to sue on the contract is available/open to the party
• If the suit is on the original cause of action based on the original contract; it would be hit by 69(2)
• but in this case, the suit is based upon NIA liability and not on original cause by producing cheques as evidence.
• the suit itself is laid in the instrument
• bar under 69(2) of partnership Act would apply where a suit is sought to be laid on a contract and not where statutory/liability is sought to be enforced.
• The contract stands irrelevant and the suit can't be held to be barred
• revision petition is dismissed with no order as to costs

3.4

• prosecution based on 2nd/successive cheque dishonor permissible/not no longer res integra.
• In Sadanandan’s case [(1998) 6 SCC 514] it was held that while second and successive presentation of the cheque is legally permissible so long as such presentation is within the period of six months or the validity of the cheque whichever is earlier.
• the second/subsequent dishonour of the cheque would not entitle the holder/payee to issue a statutory notice to the drawer nor would it entitle him to institute legal proceedings against the drawer in the event he fails to arrange the payment.
• The correctness of the decision in Sadanandan’s case was doubted and referred to a larger bench
• in MSR Leathers v. S. Palaniappan & Anr 2013 ((1) SCC 177 held that there is nothing in the provisions of Section 138 of the Act that forbids the holder of the Cheque to make successive presentation of the cheque and institute the criminal complaint based on the second or successive dishonour of the cheque on its presentation.
• In the present case, cheques were presented twice and notices issued on 31/08/2009 & 25/01/2010
• inferring from the above cases, the complaint isn't barred on the basis of second statutory notice and HC ought not have been quashed.
• Complaint CC No. 4029 of 2010 before the Court of XVIII, Metropolitan Magistrate at Saidapet, Chennai is restored to the file of the Trial Court and the Trial Court shall proceed with the matter in accordance with law after affording sufficient opportunity to both the parties.

3.5

• dispute genesis has been encapsulated in notice invoking arbitration by which SC cancelled licenses granted including LOOP TELECOM.
• resulted in fresh recommendations by TRAI followed by an auction and spectrum allocation along with award of licenses.
• even court judgements could trigger investment disputes resulting in enormous claims being raised against the govt.
• as under public international law, governing BIT agreements; articles of state responsibility specifically provide for any organ's conduct to be called in question.
• grounds upon which Indian Republic sought an anti-arbitration injunction are:
• Khaitan Holdings is not a genuine investor due to the clear link and control by Sh. Ishwari Prasad Khaitan and Smt.Kiran Khaitan of both Khaitan Holdings (Mauritius) and Loop Telecom
• BIT cannot be invoked by an entity, though incorporated in Mauritius, but is actually controlled by Indian citizens
• no expropriation as due process has been followed and the decision to cancel the licences was rendered by the Supreme Court of India in public interest
• entire foreign investment, being through the automatic route, was subject to Indian laws under the UASL
• Loop Telecom has already availed of its remedies against the cancellation of its licences under Indian law and hence rights under the BIT stand waived
• Overlapping claims raised by Loop Telecom in arbitral proceedings
• all above can be decided by arbitral tribunal and ought to be raised before them under Article 21.
• proceedings already underway aren't "oppressive/vexatious/abuse of process" at this stage and so interim relief seeking stay is accordingly rejected.

3.6

• HC misconstrued Section 139 of NIA which mandates, unless contrary proved, presumption that cheque holder received cheque of nature referred in Section 138 for discharge of debt/liability
• above a rebuttable presumption but the onus of proving that cheque wasn't in discharge of debt/liability is on the accused drawer.
• referring to various judgements onus to prove it is on accused and a post-dated cheques doesn't absolve drawer of penal consequences of Section 138
• meaningful reading of provisions makes it amply clear that who signs a cheque over to payee remains liable unless adduces evidence to rebut the above mentioned presumption.
• immaterial whether filled by someone other than a drawer is duly signed by the drawer.
• if cheques are valid,penal provisions of Section 138 shall be attracted
• if a signed blank check voluntarily presented to a payee, the payee may fill up particulars but this wouldn't invalidate the cheque and onus would still be on the accused.
• attract 139's presumption if no cogent evidence that cheque wasn't issued in debt discharge
• The respondent didn't sign/parted with the cheque under threat or coercion nor had it been stolen
• The fiduciary relationship between payee and drawer wouldn't disentitle payee to presumption benefit under 139 in absence of evidence/undue influence/coercion.
• reasonably presumed that cheque was filled by appellant/complainant being payee in respondent's presence at his request/with his acquiescence.
• subsequent filling of an unfilled signed cheque not an alteration
• no change in particulars
• HC ought not have acquitted respondent under 138 of NIA

3.7

• impugned judgement/order dated 08/1/2018 doesn't call for interference but HC's awarded punishment deserves modification.
• In the present case,even after drawing presumption under Section 139, Trial Court (TC) questioned want of evidence/witness exam of complainant as regards fund source for loan advancement
• this approach had been at variance with principles of law presumptions
• The onus shifted to the accused and not being discharged by bringing on record to show preponderance of possibilities tilting in the accused's favor.
• doubt on the complainant's case couldn't have been raised for evidence.
• SC concluded that the trial court's finding suffered from perversity and fundamental error of approach and HC was justified in reversing this judgement.
• TC's observation that there was no documentary evidence to show the source of funds/respondent didn't record the transaction at all/statement inconsistencies of complainant would be relevant if onus was on complainant.
• above contrast the fact that legally enforceable debt is a presumption in favor of the complainant by virtue of Section 118/139
• under such presumption,documentary evidence/inconsistencies hold no relevance while examining if accused was able to rebut it.
• TC made an order to acquit on mere "creation of doubt/denial" as a probable defence; that appellant had successfully rebutted the presumption under 139 which was a misplaced assumption and insufficient.
• major considerations of TC show its fundamental error of approach where even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt.
• Such being the fundamental flaw on the part of the Trial Court.
• HC has conscientiously/carefully considered TC's views and after examining evidence on record found that TC's findings are vitiated by perversity.
• hence,HC's interference was inevitable for just/proper decision
• hereinabove, the findings of the High Court convicting the accused- appellant deserves to be, and are, confirmed.

3.8

• from a conspectus,arbitration amendment,2015 when someone is approached with a possible appointment as arbitrator,
• duty to disclose (as in the 6th schedule & grounds stated in 5th serving as a guide),reasons likely to raise doubts as to their independence/impartiality.
• Once done,the appointment may be challenged as ineligible under 12(3) subject to caveat under 12(4)
• challenge procedure:Section 13
• time limit:13(2)
• arbitrator's de jure inability:12(5)
• The arbitral tribunal must decide on a challenge and if unsuccessful,continue with the proceedings and make an award.
• only post-award, can the award be set aside a/c to Section 34
• any contradictory prior agreement is wiped out by the non-obstante clause in 12(5) at the moment of dispute falling under 7th schedule.
• the only way to remove said ineligibility under 12(5) is to waive its applicability by an express agreement in writing with reference to indicted person but is stated by parties as having faith in them.
• if they become ineligible, no question of challenge and shall be substituted by another under 14(1)
• if  a controversy occurs,they have become de jure unable to perform their functions and thus, no challenge procedure availed.
• if an arbitrator continues even after being ineligible,a party may apply to court and mandate could be terminated.
• 12(5) waiver by express agreement subsequent to disputes may be contrasted to Section 4 deemed waivers
• in the present case,MD can't act as an arbitrator under item 5 of the 7th schedule
• whether he could appoint another is made clear in supra judgement that such an appointment is void ab-initio
• so, Shri Khan's appointment would be void
• disputes and appointments made after introduction of 12(5)
• the judgement doesn't state to be prospective, i.e, appointments valid if made before judgement
• Section 26 states applicability on/after 23/10/2015
• considering subsequent appointment in above judgement was set aside as being non-est in law,Shri Khan's appointment must follow suit
• allow the appeals and set aside the impugned judgment.
• The mandate of Shri Khan having terminated, as he has become de jure unable to perform his function as an arbitrator, the High Court may appoint a substitute arbitrator with the consent of both the parties.

3.9

• acc. to NC,though all appellants had a common grievance,respondents were deficient in rendering services.
• not shown how many allottees had booked units solely for self-employment
• in Chairman, Tamil Nadu Housing Board, Madras v. T. N.Ganapathy (1990)
• persons represented under Rule 8 Order 1 of CPC needn't have the same cause of action and all that is required is common interest/grievance
• interest sameness is a requirement
• same as Ambrish Kumar Shukla and Ors. v. Ferrous Infrastructure Pvt. Ltd. [Consumer Case No.97 of 2016, decided on 07.10.2016]
• provision must receive an interpretation subserving enactment object
• oneness of interest is akin to a common grievance
• However,NC completely lost sight of principles laid down in decisions referred above and approach was totally erroneous
• appeal is allowed and order set aside
• appellant app held maintainable and case restores to file to be proceeded in accordance with law

3.10

• the info sought by respondents has been denied as being exempted from disclosure under Section 8 of RTI act
• RBI having fiduciary relationship with other banks and no larger public interest
• The primary question being correctness of RBI's refusal on ground of fiduciary relationship
• RBI doesn't actually put itself in such a relationship except in words because the documents obtained by RBI aren't under the pretext of trust/confidence and nor in mutual interest.
• attaching an additional “fiduciary” label to the statutory duty, the Regulatory authorities have intentionally or unintentionally created an in terrorem effect.
• RBI is a statutory body set up by the RBI Act as India’s Central Bank for overseeing functioning/issue directions in public interest and secure proper mgmt along with other far-reaching statutory powers.
• supposed to uphold public interest and of individual banks
• no legal duty to maximize any sector's benefit warranting no "trust"
• act with transparency/not hide info and duty bound to comply with RTI act
• the baseless/unsustained argument put forth by RBI that disclosure would hurt economic interest is totally misconceived
• if sovereign people are made aware of irregularities would endanger economic security is not only absurd but baseless as well
• In the present case, weighing between public interest and fiduciary relationships is done.
• RTI Act is enacted to empower the common people,test to determine limits of Section 8 of RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? 
• To what extent should the public be allowed to get info?
• PIOs have evaded the general public under the guise of Section 8 just like RBI/banks on pretext of "fiduciary relationship/economic interest"
• which further attracts suspicion/disbelief even under this context
• banks are factually trying to cover their underhand actions and are even more liable to be subjected to public scrutiny
• RBI should take rigid action against using disreputable practices
• ‘Government by the people’ makes it necessary that people have access to information on matters of public concern.
• The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government.
• creates a condition for ‘open governance’
• Central Info Commissioner has passed impugned orders giving valid reasons and therefore,needs no court interference.
• lacking appeal; they are dismissed

3.11

• money laundering case, serious threat to national economy/interest
• calculative schemes with deliberate design and personal gain motive regardless of effects upon society
• complaint filed on basis of Section 4 of PMLA
• appellant contended no offence under Section 24 of which no competent court has passed orders
• criminal revision praying for quashing proceedings against appellant still pending for hearing before HC
• Section 45 will have an overriding effect on 439 of CrPC which imposes 2 conditions for bail grant
• proviso indicates an exception for grant by Special Court if person is under 16/woman/sick/infirm
• appellant floated as many as 27 companies to allure investors on the promise of high returns and funds were collected and subsequently laundered in assctd. co. used for purchasing properties.
• HC @ refusing bail duly considered it and RBI,kolkata's statements along with others
• HC hasn't exercised discretion capriciously/arbitrarily and called for all relevant papers to take note of it
• committed no wrong in refusing bail and find no reason to interfere with impugned order
• so, appeal praying to challenge it is dismissed and refused consequently

3.12

• Article 55 could have been possibly made applicable in this case
• loan agreement had a tenure 10/08/2007-10/06/2012
• respondent failed to adhere to repayment schedule
• wouldn't deprive appellant's right to treat each breach as fresh cause of action
• last breach occurred in may-june 2012
• suit admitted on 20/07/2012
• per clause 48 of loan agreement is conferred with power to decide the triggering time of recalling loan on default occurrence
• any of the defaulted EMIs could be treated as a default event
• once default occurred, loan recall procedure could be initiated
• limitation period triggered when notice issued relating to defaulted EMI
• recall-cum-demand notice dated 26/06/2012 dispatched to respondent on 29/06
• The limitation period would relate back to the last defaulted EMI when appellant gave final opportunity for repayment due/payable on notice date
• right to sue in judge's opinion would occur each time of EMI default as per clause 48
• The limitation period commenced from last defaulted EMI in the subject matter of notice and not from the notice date
• article 113 of limitation act applicable instead of article 55
• TC while dismissing the suit hasn't alluded to any specific article of 1963 act
• recourse taken under Section 3 empowering court to dismiss a time-barred suit even if limitation not set up as defence
• this alone couldn't have been the reason for TC to bar the suit
• furthermore,reference to article 37 holds no relevance as appellant didn't sue either on promissory note/bond
• appeal is allowed and impugned judgement is set aside

3.13

• undisputed that property sought to be attached and purchased on 18/03/2005,i.e. prior to the act being enforced
• principal controversy is whether proceedings could lie on mentioned asset
• impugned order under Section 5(1)
• conjoined reading with 2(u) states that property/value attachable only which is obtained from criminal activity relating to a scheduled offence (crime)
• The scheduled offence is a substratal condition for crime proceeds
• contention that act is independent of crime giving rise to proceeds is unmerited
• act's substratal subject is preventing money-laundering/confiscating proceeds
• inextricable link between act and crime
• money laundering ,separate offence under Section 3,punishable under Section 4 but still relates to crime proceeds; whose genesis is a scheduled offence
• identification of the scheduled crime is necessary
• proviso to Section 5,no order of attachment shall be made unless a report has been forwarded to a Magistrate under Section 173 CrPC, 1973 or a complaint has been filed by a person authorised to investigate the scheduled offence before a Magistrate or Court for taking cognizance of the scheduled offence.  
• where schedule offence is negated itself/not ultimately established,fundamentally the premise of proceedings also vanishes
• The central issue is not the happening of crime but whether attachment under SECTION 5 can be sustained where offences have been committed prior to the act coming in force.
• act, a penal statute and can have no retrospective/retroactive operation just like article 20(1) of the constitution
• no greater penalty can be inflicted than what could have been
• clearly, no proceedings can be initiated/sustained of offences prior to act
• However,the subject matter of present case is not a scheduled offence but a money-laundering offence with no retrospective operation
• next contention is whether money-laundering offence has been made out to warrant an issuance of impugned order
• it was argued that all actions of integrating money by purchasing immovable property would fall under money-laundering
• sale deed executed on 18/03/2005,i.e. prior to act
• even if funds received were assumed to be crime proceeds,such were possessed prior to act
• thus, already projected as untainted/unconnected with crime
• laundered at a time when money laundering wasn't an offence and proceedings can't be initiated
• In the present case, the respondent couldn't point out any materials to counter the petitioner which refuted that petitioner is likely to transfer/conceal stated property resulting in frustrating proceedings of confiscation of property.
• no reference to any such fact/material leading to this inference
• mere mechanical recording wouldn't meet 5(1) requirements
• consequently,impugned order set aside and petition allowed

3.14

• said suit instituted prior to petition institution
• petition not maintainable on this ground alone
• unmaintainable under article 226 for relief which petitioner has already availed under civil law.
• in Jai Singh Vs. Union of India (1977)
• The appellant having filed a suit in which same question as subject matter in the writ petition was agitated could not be permitted to pursue two parallel remedies in same matter at same time
• similarly, Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd. (1995) 1 SCC 642
• petitioner had already availed alternate statutory remedy and petition shouldn't have been entertained
• yet again,S.J.S Business Enterprises (P) Ltd Vs. State of Bihar (2004) 
• this rule was based upon public policy
• other references include:K.S. Rashid and Son Vs. Income Tax Investigation Commission AIR 1954,Madura Coats Limited Vs. Union of India (UOI) 112(2004),Lal Harsh Deo Narain Singh Vs. State of U.P. MANU/UP/1143/2004, Major Jasbinder Singh Bala S/o Sri Bachan Singh Bala Vs. IInd Additional District Judge MANU/UP/1679/2005 and D.D Shah and Brothers Vs. The Union of India (UOI) MANU/RH/0268/2004.
• even otherwise, banks can't be left high and dry by granting relief of releasing security without constituting/new partners substituting it.
• petitioner prior to signing the deed of reconstitution of firm ought to have ensured that the security furnished by him is released, if that was the agreement with the respondents

3.15

• main question=appeal would lie from order under Section 8 allowing/refusing arbitration application
• referring to Bombay High Court in Conros Steels Pvt. Ltd v. Lu Qin (Hong Kong) Company Ltd. AIR 2015 Bom 106 (FB).
• sequitur is that Section 8 order is passed by judicial authority/forum/court by drawing power from Section 8
• right to file an appeal against it being statutory has also to be found in act
• if act doesn't provide/specifically prohibits,then none would lie
• since order is passed under this act,reliance can't be placed on Delhi High Courts Act,1966/letters patent
• since Section 37 doesn't permit filing an appeal:NO APPEAL WOULD LIE
• The present appeal impugning order of app rejection isn't maintainable and accordingly dismissed leaving parties to bear their own costs.

3.16

• concurrent findings recorded by NC in impugned judgement/order are erroneous in law as
• admitted that the accident caused by rash/negligent driving of offending vehicle
• FIR dated 11/02/2010 was registered against driver of offending vehicle
• The appellant's vehicle was badly damaged and the surveyor report assessed damage of 90,000 but actual amount being 1,64,033
• said claim arbitrarily rejected by respondent on grounds that damage doesn't fall within purview/scope of insurance policy as contravention of T&C
• NC upheld complaint dismissal order of State Commission but didn't consider Supreme Court's (SC) decision in
• B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan, IV 2010 CPJ 315 (SC). In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident.
• said plea of the insurance company was rejected as it didn't amount to a fundamental breach so as to allow the insurer to eschew their liability towards damage caused.
• In this instant, the respondent has not put forth evidence that the accident occurred on account of overload
• further,the breach must be fundamental that it ends the contract
• undisputed that offending vehicle caused the accident against which an FIr has been lodged
• above facts not considered by both commissions, therefore, NC order dated 26/04/2013 passed in the revision petition is liable to be set aside as set findings are erroneous in law.
• appeal allowed and district forum's judgment/order restored
• 25,000 awarded as litigation cost as respondent unnecessarily dragged this case forward despite clear pronouncement on terms violation/insurer's liability.

3.17

• referring to New India Assurance Co Ltd v. R. Srinivasan [(2000) 3 SCC 242] wherein this precise question had arisen as mentioned in paragraph 5
• only question in view of 1st complaint's dismissal filed by respondent,second complaint on same facts/cause of action wouldn't lie and dismissed as not maintainable.
• it held in para 16:
• “This Rule [Rule 9(6) of the Tamil Nadu Consumer Protection Rules, 1988] is in identical terms with sub-rule (8) of Rule 4 and sub-rule (8) of Rule 8. Under this sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose of it on merits.
• NC has similar powers
• they don't provide that if the complaint is dismissed in default/by SC, a 2nd complaint wouldn't lie
• no parallel provision to order 9 rule 9 of CPC containing that if the suit was dismissed in plaintiff's default,the 2nd suit wouldn't lie on the same cause of action.
• prohibition rule can't be extended to commission proceedings
• The case wasn't decided on merits and was dismissed due to non-appearance should be considered,therefore permissible to file a 2nd complaint explaining why previous couldn't be pursued.
• no similar rule showed as order IX rule 9 of CPC,1908
• 2nd complaint was maintainable and NC's impugned order is set aside
• matter is remitted back to NC for adjudication on merits

3.18

• EITZEN questioned Gujarat HC and Bombay HC's decision questioned by ASHAPURA interim order dated 05/10/2011
• Bombay HC's decision upheld
• The main question on which contentions advanced is whether Part I of arbitration act excluded in case of foreign award,arbitration not held in India and governance by foreign law. (according to clause 28)
• parties intended for the arbitration seat be at london and governed by foreign law
• above show intentions of exclusion of Part I as held outside India?
• in SC's opinion, clause 28 evinces the same intention by governing from english  and expressly providing exclusion of indian/other laws
• any object to arbitration conduct/award shall also follow english law
• express exclusion of Part I
• clause 28 states 2 arbitrators appointed by charterers and owners and 1 Umpire in case of no agreement
• indian act makes no provision for umpires but english act does
• clearly excluding Part I
• both the seat and the governing law clearly exclude Part I
• In the present case, the losing side has relentlessly resorted to apparent remedies for stalling award execution even attempted to prevent arbitration
• A typical case where arbitration fruit is interminably delayed even though it has been settled that Part I will be excluded when parties choose such
• hence,Part I won't have any application and award debtor not entitled to challenge it by raising objections under Section 34 before an Indian court as it has no jurisdiction such objections

3.19

• appellant granted various opportunities of personal hearing to produce requisite evidence of export obligation fulfillment but he failed to do so
• from docs submitted by a firm with a letter dated 03/09/2014:part-2 of DEEC book not logged by customs
• not been able to produce shipping bills showing authorization
• repeatedly advised to provide docs
• appellant clearly didn't have docs to prove they fulfilled export obligns w.r.t advance license dated 22/12/1999
• such findings recorded by statutory authorities warrant no interference by the court in exercise of writ jurisdiction under article 226
• The dispute wasn't whether exports had taken place before license granted but whether appellant could produce doc evidence?
• therefore respondents committed no error in imposing penalty under FTDR act,1992
• no substance in contention that show cause notices being silent about proposed penalty and so act can't be applied
• petitioner was warned of their failure via these notices dated 01/12/2009
• issued under Section 14 proposing to take action under Section 11(2)
• decisions referred by appellant Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. (2006) 7 SCC 592; Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. (2007) 8 SCC 89 and Commissioner of Central Excise v. Gas Authority of India Limited(2007) 15 SCC 91 is not relevant.
• also contending that directors aren't liable also deserves no consideration and since none of the directors approached the court
• appeal is devoid of merit and accordingly dismissed

3.20

• whether filing for extension to file a written statement constitutes submitting 1st statement
• referencing Manna Lal Kedia & Ors. v. State of Bihar & Ors. AIR 2000 Pat 91; Rashtriya Ispat Nigam Ltd & Anr v. Verma Transport Co (2006) 7 SCC 275 and in Booz Allen and Hamilton Inc. v. SBI Homes Finance Ltd & Ors. (2011) 
• we find it difficult that merely moving an extension would amount to making 1st statement
• The application filed without replying to allegation doesn't constitute 1st statement
• and the same doesn't appear from the language of Section 8(1)
• in present case, unable to conclude that appellant waived right to object by filing for extension
• HC also didn't see whether this case/reliefs sought falls under arbitration on the basis of agreement between parties
• it would be just and proper if HC decides this case afresh a/c to judgements referred above except the points already answered by this court
• appeal allowed

3.21

• The arbitrator didn't draw the petitioner's attention to 3 addresses appearing in petition where logical sequitur would be to seek clarification
• not allowing to clarify might lead to a grave error fatal to award which could also be a procedural lapse
• a mistake about trademark registration not produced was also made which was annexed to complain as per petitioner
• petitioner showed that he took prompt action
• but the arbitrator seems to have erroneously concluded that trademark didn't belong to petitioner while no opportunity provided to refute it
• decision in Stephen Koenig v. Arbitrator, National Internet Exchange of India & Anr 186 (2012) DLT 43, which was subsequently upheld by the Division Bench of this Court because of the fact that a mere delay in lodging the complaint would not disentitle the aggrieved party from proceeding against the ‘squatter’
• In the present case,the arbitrator failed to apply his mind to facts on record 
• complaint contained details of various registrations
• in case of doubts arbitrator could have clarified them
• no finding was returned for whether name use by respondent would lead to deception/confusion
• even though the domain name contains the entire name of petitioner
• The court is satisfied that impugned order opposes fundamental indian policy as it contains numerous glaring errors
• Consequently,the impugned award is set aside and petition allowed with no order to costs

3.22

• whether there was a concluded contract
• Ms. daisy liu sent a co-signed contract and asked to nominate a vessel for LC amt./quantity
• contention that parties had only agreed to agree and there was no concluded contract is unsustainable
• also maintained by the arbitral tribunal
• plain reading of the agreement indicates that all terms had been agreed to
• since FPL was asked to nominate a vessel,signed agreement couldn't be considered concluded is unsustainable
• undisputedly, agreement attached contained an arbitration clause and contention of no arbitration agreement is devoid of merits
• whether impugned award falls foul of fundamental Indian policy
• arbitral tribunal's finding that sara has breached the agreement can't be assailed and is final/binding
• but the award without sufficient proof of loss would fall foul of the fundamental Indian policy
• both parties agreed that breach damages measured in terms of Section 51(3) of UK sale of goods act
• not disputed that the parties had agreed on a list of market prices on various dates which were drawn from Umetal Figures. On the basis of the said list, the Arbitral Tribunal determined the market value of the ore by making due adjustments
• difference between market value and contracted value is not in dispute
• only contention advanced is since FPL is a trader  and neither had procured goods from another source at a higher value nor transacted goods further
• no damages could be afforded to FPL
• sufficient for a trader to show that market value of promised goods had increased
• Thus,the FPL is entitled to the difference between market and contracted value as representing damages actually suffered
• goods at contracted value weren't delivered to the trader would indicate a loss of value drop
• so,the application dismissed

3.23

• above decision overruled in Hyder Consulting (UK) Ltd. v. Governor, State of Orissa: (2015) 2 SCC 189, albeit, only to the extent that interest under Section 31(7) (b) of the Act would also be payable on any interest included in the sum awarded.
• contractual stipulations for interest can't be ignored is good law and SL arora continues to be a binding precedent
• Also the arbitration tribunal would still have reasonable discretion for interest where the contract is silent while considering facts of the case at hand.
• Presently,an impugned order doesn't indicate a discernible reason why the interest claim has been rejected
• contract provisions have also been ignored expressly entitling interest @ 14% for delay in payment
• petition liable to be allowed and impugned judgement set aside to extent of interest rejection @ 12.25% p.a.from invoices till award
• petition accordingly disposed

3.24

• no force in submission that present submission under Section 9 is premature
• petitioner's submission is premised in Section 36 which states only after time expired for applying to set aside the award, award deemed to be a decree
• according to appeal, no decree as on date
• not acceptable under Section 9
• court power exercised only when proceedings contemplated/ pending/ completed
• The present case is completed and the court has powers to order interim measures after passing the award but before enforcement under Section 36
• order dated 30/05/2017 only interim and all issues kept open for consideration
• no grounds found to interfere firstly, it's an interim order,secondly for the amount to be deposited and thirdly for the amount to go through Axis Bank
• present appeal/application dismissed

3.25

• The submission that respondent 1 has acted as arbitrator in one's own case and decided quantum of damages unilaterally, it stands fully answered in:
• Hindustan Steelworks Construction Ltd. v. Tarapore & Co. and Another, (1996) 5 SCC 34
• appellant granted a contract for civil works construction in a steel plant to contractor and despite extensions didn't complete within time and appellant rescinded the contract
• as per terms appellant assessed loss/damages and invoked bank guarantees
• contractor requested trial court restraining appellant by injunction and further in HC saying guarantees encashable only when breach/damage decided
• HC reversed TC's decision saying damages arise after breach is established
• apex court reversed HC's decision by observing:
• The correct position of law is bank commitment must be honoured free from court interference except in cases of fraud/irretrievable injustice
• In the present case,fraud hasn't been pleaded and an injunction sought by contractor/respondent 1 on ground of special equities/circumstances
• special circumstance being disputes referred to arbitrators and no amount can be said  to be due/payable to the contractor till arbitrators declare their award.
• these factors are insufficient to make this case exceptional justifying interference from enforcing bank guarantee
• HC was therefore right in not restraining appellant
• even other grounds urged by petitioner failed to make this case a special equity
• other claims can be adjudicated by arbitration
• Furthermore,the respondent being a state instrument poses no danger to petitioner not being able to recover it's award
• similar grounds raised in CWHEC-HCIL (JV) and were rejected
• presently, petitioners are not able to establish special equity against a ground to stay the bank guarantee being an independent doc
• no grounds to stay bank guarantees

3.26

• court framed following issues:

1. non-filing of retirement/partnership deed along with app dated 09/05/2014 entailed dismissal per Section 8(2)
• presently, original deeds filed on 12/05
• deeds relied by plaintiffs and so non-filing arguments rejected and unacceptable
2. whether fact that all parties to suit not parties to deed,court disentitled to reference relying on arbitration agreement
• plaintiffs are parties to arbitration agreement
• can't contend that one of the defendants whom they implemented wasn't a party to arbitration agreement
• said defendant hasn't inherited any share
• district judge's view supported by SC:no question of bifurcation of parties/cause of action
• disputes relating to deed benefits can't be referred to as unsustainable
3. dispute to unregistered partnership deed can't be referred to arbitration despite of arbitration agreement
• presently,no dispute upon arbitration clause contained in deed
• When the partners and those who claim through partners agreed to get the dispute settled by arbitration, it is not open for the appellants to contend that partnership being unregistered partnership, the dispute cannot be referred.

• petitioners not able to show through provisions of act/another statute saying dispute concerning unregistered partnership can't be referred to arbitration
• no merit in appeal and accordingly dismissed

3.27

• established by respondent that appellant took a loan and defaulted in repayment
• respondent proved claim in arbitration, impugned award dated 11/02/2016 couldn't've been interfered by court under Section 34
• not only because court hearing objections can't sit as an appellate court to reprise evidence/findings
• but also because if it was a civil court
• yet the impugned award couldn't be set aside even as a decree as respondent was entitled to recovery with agreed interest rate
• appellant contended that respondent should've adjusted mount by sale of hypothecated equipment 
• however when the appellant was queried about returning machinery to respondent it was answered negatively
• appellant also contended respondent liable to adjust security, to which there was no dispute as when arbitrator directed recovery, he also directed adjustment of amount
• appellant argued that principal amount had to bear interest but so wasn't pleaded in arbitration but appellant chose to remain ex-parte
• plea on merits not raised before arbitration can't be raised before court hearing objections under Section 34 and much less this court having appeal against objection dismissal
• accordingly, this court cannot adjudicate issues on merit which weren't discussed in arbitration
• so, no merit in appeal and is hereby dismissed

3.28

• can't be held that breach alone was cause for loss of anticipated profits,much less primary/dominant
• appellate court adequately discussed appellant's letter dated 04/07/1987 thanking respondent for ad support
• they also spent in 1986-87,1987-88
• on the contrary,the appellant spent much less for both years and was unable to pay for deferred payment
• continued to suffer losses for next 6 years up to 92-93
• sought long term credit for 5 years and acknowledged not to press for consultancy fees
• failure to deploy manpower demos poor financial condition as inability to run
• appellate court discussed that appellant failed to mitigate losses under Section 73 of contract act
• it could have continued business or taken steps earlier to earn profits
• reliance loss and expectation loss
• maintainable simultaneously/mutually exclusive
• in Pullock & Mulla, 14th Edition, Volume II, page 1174, the primary object for protection of expectation interest, has been described as to put the innocent party in the position which he would have occupied had the contract been performed.
• The general aim to protect an innocent party's financial expectation and bargain loss subject to rules of causation/remoteness
• loss may include expenses incurred in preparation by the innocent party’s own performance, expenses incurred after the breach or even pre-contract expenditure but subject to remoteness.
• appellant not entitled to any loss as all lapses it's own
• no deficiency allegation in the plant
• claiming plant cost,judge awarded amount without discussion for the basis
• though appellant preferred a cross-appeal but didn't press it
• above leads to conclusion that appellant failed to establish its claim that profitability projection was cause for loss of anticipated profits
• appellant failed to abide by obligations and lacked infrastructure,finances and manpower to run its business and failed to mitigate losses
• appeal lacks merit and is dismissed

3.29

 

• counsel relied upon Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. & Ors. (2013)
• various agreements constitute composite transaction
• court can refer to arbitration if all ancillary agreements relate to principal and performance of one intrinsically linked to another
• even though they established "composite performance/reference", their ratio is inapplicable to this case
• in chloro controls, arbitration clause in principal agreement required to be settled per ICC
• all other performances had to fall in line with the principal and settled with a "composite reference"
• The present case stands entirely different
• all five different packages and corporate guarantee have separate arbitration clauses not depending upon original agreement or MoU which is intended to have clarity in execution
• Duro Felguera being a foreign co.; an international commercial arbitration tribunal has to be constituted
• M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Along with the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.
• packages 6,7,8 and 9 are awarded to indian co. FGI sp the same arbitrators shall set up a domestic arbitral tribunal for resolving the dispute

3.30

• The question involved in appeal no longer res integra and is answered by Natraj Studios (P) Ltd. v. Navrang Studios & Anr, 1981(1) SCC 523 and Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. & Ors., (2011) 5 SCC 532 against the appellant and in favour of the respondent.
• in natraj,landlord also filed case against tenant claiming eviction
• tenant inducted pursuant to "leave and license" agreement
• The court rejected the tenant's application filed under Section 8 and held that the landlord's civil suit was maintainable
• held that such disputes not arbitrable
• yet in booz allen, court laid down that
• well-recognised examples of non-arbitrable disputes
• (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences
• (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody
• (iii) guardianship matters
• (iv) insolvency and winding-up matters
• (v) testamentary matters (grant of probate, letters of administration and succession certificate); and
• (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction
• only the specified courts are conferred jurisdiction to grant eviction or decide the disputes
• applying above to the facts of this case,concluded that both courts were correct in rejecting appellant and maintaining landlord's suit despite parties agreeing to refer to arbitration
• Delhi rent act is a special act and according to Section 3 act doesn't apply to certain premises but that doesn't mean ipso facto arbitration act would be applicable
• in such cases rights will be governed by the Transfer of Property Act and civil suits triable by civil courts
• no merits in appeal and accordingly dismissed

3.31

• general reference to earlier contract insufficient for arbitration clause in later contract but a general reference to standard form would be enough
• in M.R. engineers court restricted exceptions to standard form
• after development of law, a general reference by one party to consensual standard is sufficient
• In the present case,the purchase order issued by appellant mentioned that supply would be as per terms and attached standard terms
• respondent confirmed except delivery period
• dispute arose after delivery and respondent was aware of standard terms
• general reference to standard was enough to incorporate arbitration clause
• appeal allowed and HC judgement set aside

3.32

• under statutory provisions and case law above,arbitrator had resolved limitation issue,award dated 23/07/2015 is an "interim award" subsumed within "arbitral award" and could have been challenged under Section 34
• however,Shri Sinha argued that the award being a ruling on jurisdiction would fall within Section 16 and limitation decision was rejected
• sec. 16 was to be followed and when all other issues had been decided, then were to be challenged under Section 34
• kompetenz-kompetenz principle:arbitral tribunal may rule on its own jurisdiction
• clearly award is interim and can be challenged under Section 34
• award which doesn't relate to an arbitration tribunal's own jurisdiction doesn't have to follow 16(5,6)
• also, parliament may consider amending Section 34 to consolidate interim awards with final award and so that one challenge can be made
• piecemeal challenges like peacemeal awards lead to unnecessary delay/additional expense
• appeal accordingly allowed,impugned judgement set aside and Section 34 proceedings may be decided and no order as to costs

3.33

• in view of virtual acceptance of conditional injunction order by defendants,a truncated scope of appeal would be HC's correctness with use of the name 'prius'
• and by such use passing off products as that of plaintiff
• indeed 'prius' has acquired great goodwill before its use/registration in India
• if governed by the "territoriality principle",adequate evidence to show plaintiff had acquired substantial goodwill
• introduced in 2009-10 in India
• advertisements in automobile magazines, international business magazines;data in information- disseminating portals like Wikipedia and online Britannica dictionary and the information on internet, even if accepted, will not be a safe basis to hold the existence of the necessary goodwill and reputation.
• coupled with the above, evidence of plaintiff's witness themselves would be suggestive of very limited sale and absence of ads prior april 2001
• showing lack of goodwill/knowledge amongst a significant section is not prominent
• all this leads us to eventually agree with the conclusion of the division bench that prius didn't acquire enough goodwill,reputation,market or popularity so as to vest in plaintiff right of a prior user.
• controversy core is appreciation of evidence amongst parties which the court agrees with other courts
• eventual conclusion would nonetheless have to be sustained
• plaintiff's delayed approach to court has remained unexplained and can't be allowed to work in defendant's prejudice during long silence of plaintiff
• HC's order dated 23/12/2016 & 12/01/2017 is affirmed and appeal dismissed

3.34

• HC's decision concluded impugned order based on detailed consideration of on-record materials
• petitioner hadn't demonstrated that he was 1st user
• notwithstanding customer class, can't be said that logos/marks wouldn't raise confusion
• IPAB's views can't be accepted that the possibility of being misled will depend on individual customers.
• writ petition has to be allowed and IPAB order set aside
• HC conclusions can't be said to be unreasonable/unacceptable, rather they are perfectly possible and justified and this conclusion can be reached from balanced consideration of evidence/materials
• The present case is not fit for interference and so,
• special leave petition is dismissed and leave to appeal refused

3.35

• unnecessary to go into further details of proceedings but suffice to say that the trial court vide order dated 20/03/2014 return execution application for lack of jurisdiction
• as an effect, the appellant is first required to file under a competent court, i.e., tamil nadu, obtain decree transfer and then file at trial court in Morena
• madhya pradesh and karnataka HC agree while rajasthan and delhi don't
• petitioner didn't approach HC against trial court's order but straightaway approached this court by special leave petition on ground that no useful purpose would be served approaching Madhya Pradesh HC.
• The award is to be enforced in accordance with code as if it were a decree but the award itself is not a decree as no decree is passed by civil court
• arbitral tribunal renders an award and tribunal doesn't have decree executionary powers
• line of reasoning to be filed in court of competent jurisdiction and obtain a transfer based upon jurisdiction clause in Section 42
• above applicable with an application/subsequent apps filed under Part I
• but Section 32 states arbitral proceedings would terminate by final award
• thus 42 holds no relevance
• provisions of arbitration act and CPC have been mixed up
• award enforcement through execution can be filed anywhere where such decree can be executed and no transfer required from court having jurisdiction over arbitral proceedings

3.36

• when reading clause 13,quite limpid that once insurer disputes policy liability,arbitrator can't be referred to
• contained in the 2nd part of clause
• 3rd part stipulates that before any right of action/suit is taken recourse to arbitration with regard to loss/damage is a condition precedent
• HC as the impugned order showed has laid emphasis on 2nd part and opined that 2nd and 3rd parts don't have harmony
• scheme can't be split in 2: arbitration/suit
• arbitration cause needs to be strictly construed,i.e, unequivocal expression of arbitration intent
• lay postulates in which arbitration clause can't be given effect
• non arbitrary situations and then appointment controversy can be put to rest
• as in clause 13
• matter thrust: whether the insurer disputed or not accepted liability?
• rejection made via letter dated 26/12/2014 ascribing reasons by communication doesn't amount to liability denial
• disputation comes squarely under part II of clause 13
• denial of liability in toto
• not disputation pertaining to quantum/no inference with respect to quantification
• not concerned with whether policy was void as it is not the issue
• denial is itself a dispute and therefore has to be referred to arbitration
• parties are agreed under T&C
• not a case where fraud allegations leaned upon to avoid arbitration
• not a case of excepted matters which are non arbitrable
• HC fallen into grave error by expressing incongruity between Part II and part III
• runs counter to principles laid down in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit.
• civil suit within 2 months, hence benefit of limitation act,1963
• appeal allowed and the HC order set aside

3.37

• conspectus reading tells us the people styled as mediators/arbitrators are surely escrow agents appointed to keep vital docs in escrow and ensuring a successful completion of transaction
• using "/" instead of "and" shows loose language
• cleared when clauses 8 and 11 are seen minutely
• clause 8 states for a successful transaction for avoiding unforeseen litigations;2 escrow agents have been appointed
• clause 11 states their appointment
• clause 12 is read under MoU and "decision" is only pro tem such that agents make decisions only during transaction and not thereafter
• "functus officio" post-transaction
• "breaches" in clause 12 refer to undertaking in clause 10, which the escrow agents would have to decide before proceeding further
• therefore,escrow agents don't have to decide disputes before/after transaction
• after hearing parties and observing natural justice principles,MoU invests powers only as escrow agents and not even remotely to decide disputes as arbitrators
• agreement is inconsistent for dispute resolution
• 3 of 4 purchasers didn't read clause 12 as arbitration clause but instead approached civil courts showing that clause 12 wasn't an arbitration clause

3.38

• The moot question is whether applicants are entitled to seek registration of "NANDHINI" and if such registration would infringe respondent's rights
• The entire case revolves around adaptation by appellant similar to respondent not bonafide and curated to benefit from respondent's goodwill
• respondent alleges it to cause deception/confusion
• undisputed facts--

1. The respondent started using trademark for milk/milk products in 1985 whereas appellant adopted in 1989
2. though,the respondent is prior-user; appellant also used it for 12-13 years before registration
3. goods of both parties fall under clause 29/30 but are different as appellant sells fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. and it has given up its claim of qua milk and milk products.
4. trademarks are generic and represent cow/goddess name in hindu mythology so not invented/coined
5. business nature/style of both parties are different
6. although,there being a phonetic similarity, logos are altogether different on grounds of writing styles/images/suffixes

• keeping in mind the above, difficult to sustain IPAB order dated 04/10/2011 as well has HC's impugned order that mark adopted will cause confusion
• visual appearance and product ranges are entirely different, difficult to imagine an ordinary man of avg. intelligence would mix up the trademarks
• Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods when he is not using the said trademark in respect of certain goods falling under the same class.
• Section 11 prohibits registration for similar/different goods but they don't cover the same class
• appellant has not adopted the trademark to take unfair advantage nor would it be detrimental to purported distinctive character/repute of respondent
• no doc/material by respondent to show the respondent acquired distinctiveness by 1989,i.e, within 4 years of adoption.
• concurrent trademark user by appellant
• IPAB/HC orders set aside

3.39

• whether forfeiture clause is valid and legally enforceable
• clearly states that if you engage in competing business/service within 2 years after leaving cargill,outstanding amounts can be forfeited
• settled in India that no employer can rightfully restrain employees to take up competing employment after their employment desists
• such a clause is invalid/unenforceable as per Section 27 of indian contract act
• cargill isn't restraining to take up competition but he is refusing to disburse balance incentive after he allegedly engaged in competing business
• deferred incentive is awarded to employees for good performance "during employment"
• said awarded fully in favor but only payment postponed partially with interest
• This amount belongs to the employee and ought to be disbursed when awarded but deferred as part of co. policy
• deferment is to enforce an unenforceable clause, forfeiture itself is illegal as it belongs to employee
• cargill can't forfeit the amount under garb of interest payment on the basis of invalid/unenforceable clause
• The condition for employees not engaging in competition is restraint of trade referring to Percept D’Mark India Pvt. Ltd. v Zaheer Khan, (2006) 4 SCC 227 and Niranjan Shankar Golikari v. Century Spinning and Manufacturing (1967) 
• by said clause, co. seeks to abrogate money by vesting in an employee which is also in restraint of trade
• award factum/conditions of deferred incentive/resignation & acceptance are undisputed
• cargill's arguments stating plaintiff's construct raising a triable issue may not be correct but this case does not adjudicate violation of fiduciary relationship/employment agreement
• as on date, whether defendants took an action against plaintiff  in leave to defend app or if sought refund of amount already provided, answer was a categorical no.
• if cash has not been withdrawn and amt. vested in plaintiff; they can't withhold the same
• forfeiture clause clearly unenforceable as it's in restraint of trade

3.40

• main contention: whether the award includes a foreign award
• The only award in indian stamp act which is made in british india not pursuant to suit/court order
• several princely states having sovereign laws at that time
• only awards as in written decisions by an arbitrator/umpire made in british India otherwise then a suit/court order would be included
• continued even when 2nd schedule in CPC,1908 substituted arbitration in CPC,1882 stating parties may apply for arbitration followed by an award
• award under item 12 Schedule I of Indian stamp act has remained unchanged
• only amendment relating to current India as against British India
• award has never included a foreign award and hence no stamp duty applicable

3.41

• whether the respondent waived the intimation-delay condition by appointing a surveyor?
• waiver=intentional relinquishment of right involving conscious abandonment of existing legal right/advantage/benefit/claim
• agreement not to assert a right
• to invoke the waiver, the waiverer must be fully informed about their rights and intentionally abandon them
• specific waiver plea
• In the present case, common ground that repudiation letter elucidates that claim wasn't rejected on ground that intimation/particulars not provided within stipulated time
• breach of T&C of clause 6 under general conditions
• surveyor report predicates impossible to estimate damage and that claim not payable on account of breach
• no dispute about policy subsistence so answered from Standard Fire and Special Perils Policy obligation insured to give forthwith intimation
• both clauses materially and relatively different
• different policies
• incomparable being qualitatively different
• Galada's case was dissimilar
• fulfillment of clause 6 is sine qua non to maintain a valid claim
• The event occurred on 04/08/2004 but intimated on 30/11/2004 after 3 months 25 days
• no explanation offered much less plausible/explanatory
• clause 6 to facilitate meaningful investigation into damage/loss
• thus, the surveyor appointment after loss intimation coupled with 2000 regulations+express stand in repudiation letter after surveyor report, can't be construed to be waiver
• commissioner's conclusion is upheld of not waiving condition
• accordingly appeals must fail

3.42

• correspondence exchanged between parties would show no ad idem for "seat" change from london to new delhi though this being respondent's initial request
• "venue" can't be considered "seat" and parties were well aware of the distinction
• petitioner agreed to change in "venue" as he thought it wouldn't require amending Charter Party Agreement
• Once the arbitration was invoked by the respondent,the petitioner wanted such a change but the respondent refused.
• parties agreed to "venue" change
• this was the understanding of petitioner
• applying Union of India v. Hardy Exploration and Production (India) INC 2018 SCC Online SC 1640 to the facts of the present case
• not only clause 24 but also parties conduct gathered from correspondence leading up to this trial concludes that parties agreed on london to be arbitration "seat".
• So the court lacks jurisdiction for present petitions under Section 34 and same are accordingly dismissed

3.43

• The petitioner submitted that arbitration clause wasn't with the company
• contract awarded to firm being sole proprietor
• absence of arbitration agreement; arbitration void ab initio and award liable to be set aside
• The respondent submitted a reference by lieutenant governor on company's request,doesn't deserve to be set aside
• per Section 7,every arbitration agreement has to be in writing and signed by parties
• in present case, co. not awarded arbitration agreement
• co. being distinct from sole proprietorship
• arbitration clause is independent and unassignable which is clear from Delhi Iron and Steel Company Limited v. U.P. Electricity Board & Another (2002) 61 DRJ 280
• thus,arbitration reference was contrary to law and award liable to be set aside on this ground+merits

3.44

• "consumer" defined in Section 2 (1)(d) of consumer protection act
• purchases goods/avail services for consideration
• whether the complainant said to have hired/availed services
• in court opinion,granting permission for family tomb construction in cathedral's cemetery doesn't amount to rendering services in 2(1)(d)
• permission granted by religious organisations to devotees even if some amount charged
• devotee ≠ consumer
• therefore consumer complaints are not maintainable
• fora views can't be sustained and are liable to be set aside
• impugned orders were set aside and complaints consequently dismissed with liberty to the complainant to avail such other remedies available in law including approaching a civil court.

3.45

3.46

• The Supreme Court observed that patent illegality which goes to the root of the matter
• every legal error committed by arbitral tribunal wouldn't fall within "patent illegality"
• contravention not linked to public policy/interest is beyond the scope of "patent illegality"
• courts can't re-appreciate evidence to conclude "patent illegality" as courts don't sit in appeal against arbitral award
• permissible grounds for interference with a domestic award under Section 34(2-A) on patent illegality is when arbitrator takes an impossible view/interprets how a fair-minded/reasonable person wouldn't/commits jurisdiction error by wandering outside contract and dealing with unallotted matters.
• arbitral award stating no reasons for finding would make itself susceptible to challenge
• arbitrator conclusions based on evidence/ignoring vital evidence are perverse and can be set aside on patent illegality
• consideration of docs not supplied to other parties is a facet of perversity within patent illegality
• 34 (2)(b) refers to other grounds on which court can set aside arbitral award
• if dispute incapable of arbitration settlement or conflicting with Indian Public Policy, liable to be set aside
• 2015 amendment act clarified 'Indian Public Policy' for reviewing arbitral awards
• when induced/affected by fraud/corruption OR violates Section 75/81 of 1996 act
• contravenes fundamental policy or with basic notions of morality/justice

3.47

• HC has opined that contravention in 10(6) is a continuing offence
• indisputable that penalty provided is on account of civil obligation under FEMA
• if delinquency is a civil obligation,defaulter is obligated to make efforts by penalty payment
• imposed goods remain uncleared and obligation to submit bill of entry not discharged,contravention continues until corrective steps are taken
• appellant is in charge on/after 22/10/2001
• was aware of contravention yet failed to rectify it until action initiated,can't be permitted to invoke only defence available in 42(1) of FEMA
• in reply to show cause notice, no such specific plea is taken 
• AA committed no error if finding appellant/MD liable too
• appellate authority and HC justly affirmed AA's view