1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 8550 OF 2019 (ARISING OUT OF SLP (C) NO. 34186 OF 2015) THE ORIENTAL INSURANCE CO. LTD. & ANR. …APPELLANTS VERSUS DICITEX FURNISHING LTD. …RESPONDENT J U D G M E N T S. RAVINDRA BHAT, J. Leave granted. With the… Read More Concept of economic duress- when the discharge/final and full settlement letter was excuted involutarly – he is entitled for appointment of arbitrator under sec.11 for ascertaing his claim The Oriental Insurance Co. Ltd (hereafter “the insurer” or “the appellant”) appeals the decision of a single judge of the Bombay High Court, who allowed the respondent’s application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereafter “the Act”) and appointed an arbitrator. – The insurer’s objection about maintainability of the application on the ground that the respondent (hereafter “Dicitex”) had signed the discharge voucher and accepted the amount offered, thus, signifying accord and satisfaction, which in turn meant that there was no arbitrable dispute, was rejected. Apex court held that An overall reading of Dicitex’s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) proceeding. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus, precluding the applicant of its right event to approach a civil court. There are decisions of this court (Associated Construction v Pawanhans Helicopters Ltd. (2008) 16 SCC 128 and Boghara Polyfab (supra) upheld the concept of economic duress. Having regard to the facts and circumstances, this court is of the opinion that the reasoning in the impugned judgment cannot be faulted.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5401 OF 2009 M/s Oriental Kuries Ltd. represented by its Chairman P.D. Jose …Appellant versus Lissa & Ors. …Respondents J U D G M E N T INDU MALHOTRA, J. The issue which has arisen for consideration in the present Civil Appeal… Read More what is the jural relationship between a chit fund entity and the subscribers, created by a chitty agreement; and whether it is a debt in prasenti or a promise to discharge a contractual obligation.= The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest. The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund. Without punctual payments, the system would become unworkable, and the foreman would not be in a position to discharge his obligations to the other members of the chit fund. In view of the aforesaid discussion, the relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2019 (D. NO.27229/2019) Jaiprakash Associates Ltd & Anr. … Appellant Versus IDBI Bank Ltd. & Anr. … Respondents WITH CIVIL APPEAL NO. 6486 of 2019 O R D E R Permission to file the appeal is granted in Diary No.27229/2019. These… Read More Corporate Resolution Process – time limit ?= By this judgment, the NCLAT granted relief as sought for by the IDBI Bank to exclude period from 17th September, 2018 till 4th June, 2019 for the purpose of counting 270 days Corporate Resolution Process period and issued consequential directions.= Appeals were filed before Apex court – Indeed, the third proviso to Section 12(3) predicates time limit for completion of Insolvency Resolution Process, which has come into effect from 16th August, 2019.The same reads thus : “Provided also that where the insolvency resolution process of a corporate debtor is pending and has not been completed within the period referred to in the second proviso, such resolution process shall be completed within a period of ninety days from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019.” Taking an overall view of the matter, we deem it just, proper and expedient to issue directions under Article 142 of the Constitution of India to all concerned to reckon 90 days extended period from the date of this order instead of the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019. That means, in terms of this order, the CIRP concerning JIL shall be completed within a period of 90 days from today. = Accordingly, we pass the following order to do substantial and complete justice to the parties and in the interest of all the stakeholders of JIL: i) We direct the IRP to complete the CIRP within 90 days from today. In the first 45 days, it will be open to the IRP to invite revised resolution plan only from Suraksha Realty and NBCC respectively, who were the final bidders and had submitted resolution plan on the earlier occasion and place the revised plan(s) before the CoC, if so required, after negotiations and submit report to the adjudicating authority NCLT within such time. In the second phase of 45 days commencing from 21st December, 2019, margin is provided for removing any difficulty and to pass appropriate orders thereon by the Adjudicating Authority. ii) The pendency of any other application before the NCLT or NCLAT, as the case may be, including any interim direction given therein shall be no impediment for the IRP to receive and process the revised resolution plan from the abovenamed two bidders and take it to its logical end as per the provisions of the I & B Code within the extended timeline prescribed in terms of this order. iii) We direct that the IRP shall not entertain any expression of interest (improved) resolution plan individually or jointly or in concert with any other person, much less ineligible in terms of Section 29A of the I & B Code. iv) These directions are issued in exceptional situation in the facts of the present case and shall not be treated as a precedent. v) This order may not be construed as having answered the questions of law raised in both the appeals, including as recognition of the power of the NCLT / NCLAT to issue direction or order not consistent with the statutory timelines and stipulations specified in the I & B Code and Regulations framed thereunder. 22. Both the appeals are disposed of in terms of this order with no order as to costs. Along with the appeals, applications filed therein also stand disposed of.
Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 559- 560 of 2008 The Government of Tamil Nadu & Anr. Etc. Etc. …. Appellant(s) Versus Arulmighu Kallalagar Thirukoil Alagar Koil & Ors. Etc. Etc. …. Respondent(s) J U D G M E N T L. NAGESWARA RAO, J. H.H. Sri Sundara… Read More Lost Grant -presumption – when not – it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. likewise be no scope for this presumption, if there is no person capable of making a grant: Suit for Declaration of title and possession and injunction against forest department H.H. Sri Sundara Ramanuja Periya Jeer Swamigal of Periya Jeer Swamigal Mutt, Tirupati and five others (hereinafter referred to as “devotees”) filed O.S.No.178 of 1982 in the Court of Subordinate Judge, Madurai for a declaration that the entire forest area in Alagar Hills belongs to Sri Arulmighu Kallalagar also called Sri Sundarajasami or Sundara Bahu or Paramasamy, the Presiding Deity of the Respondent-temple. A consequential relief of possession of the said forest area was also sought. O.S. No.171 of 1987 was filed by Arulmigu Kallalagar Thirukoil Alagar Koil (for short “the Respondent”) in the Court of Subordinate Judge, Madurai for a direction to the Government of Tamil Nadu (for short “the Appellant”) to deliver possession of the schedule mentioned property i.e. Alagar hills. Relief of permanent injunction restraining the Defendant i.e. the Appellant-herein and the Chief Conservator of Forest Department from disturbing the underground water reserves by digging wells or in any other manner was also sought. = Apex court held that We have carefully examined those documents which only show that honey and other forest produce were being collected by those who were permitted by the Respondent-temple. The right, title or possession of the temple over Alagar hills cannot be determined on the basis of the above documents. – The circumstances in which the presumption of lost grant can be made has been settled by this Court in a judgment reported in Sri Manohar Das Mohanta v. Charu Chandra Pal & Ors. as under ; “7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. “It cannot be the duty of a Judge to presume a grant of the nonexistence of which he is convinced” observed Farwell, J.in Attorney-General v. Simpson [(1901) 2 Ch D 671, 698]. So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431, 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsbury’s Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. We do not agree that the respondent was in continuous possession under an assertion of title as there is no evidence on record to reach such a conclusion. The presumption of lost grant is therefore not permissible. The finding recorded by the High Court that there is adequate material to hold that Alagar hills belong to the temple is erroneous. The trial Court is right in holding that the Respondent miserably failed in producing any material to prove its title. we were informed that the parties were attempting a settlement. This Court directed the Member Secretary, Hindu Religious and Charitable Endowments Board (HR & CE) to convene a meeting with all the stakeholders to facilitate a settlement. A meeting was conducted on 03.08.2019 in the Office of the Commissioner, HR & CE in which all the stakeholders participated. The significant proposals of the Respondent were that the title in respect of the Alagar Hills should be with that of the presiding deity of the Respondent-temple and that the income from the forest shall be shared equally by the Respondent-temple and the Forest Department. The Appellant did not accept the said proposals. After joint inspection by the Forest Department and the HR & CE Department, the Appellant was willing to divert an area of 18.3032 hectares of land including the various religious spots for ease of movement of the devotees. The Forest Department was willing to permit 50 ft. of pathway to reach all the spots and shrines from the foothill. The Forest Department was of the view that the temple should undertake very strict vigil on the ecosystem and environment and no non-forest activities shall be permitted within the 18.3032 hectares, except religious activities. We are in agreement with the proposal made by the Appellant. The Forest Department shall permit 50 ft. of pathway to reach all the spots and shrines from the foothills for which the earmarked area of 18.3032 hectares of land can be used. No non-forest activities shall be permitted to be undertaken by anybody, including the Respondent-temple administration within the 18.3032 hectares of land which is diverted for ease of movement of devotees to reach all the spots and shrines from the foothill.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8497/2019) (Arising out of SLP(C) No. 13042 OF 2014) UNION OF INDIA & ORS. …………. APPELLANTS VERSUS GANDIBA BEHERA …………..RESPONDENT WITH CIVIL APPEAL NO. 8979/2014 CIVIL APPEAL NO.8498/2019 (Arising out of SLP(C)No.979/2015) CIVIL APPEAL NO. 9886/2014 CIVIL APPEAL NO. 8674/2015 CIVIL APPEAL NO………………../2019… Read More whether services rendered by the employees in the postal department in the capacity of Gramin Dak Sevaks (GDS) ought to be computed or notfor the purpose of calculation of the qualifying service of their pension after they got selected in regular posts in the said department. ? Apex court held that There is no provision under the law on thebasis of which any period of the service rendered by the respondents in the capacity of GDS could be added to their regular tenure in the postal department for the purpose of fulfilling the period of qualifying service on the question of grant of pension. We are also of the opinion that the authorities ought to consider their cases for exercising the power to relax the mandatory requirement of qualifying service underthe 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the appellants that just because thatexercise would be prolonged, recourse to Rule 88 oughtnot to be taken. The said Rules is not number specific,and if undue hardship is caused to a large number of employees, all of their cases ought to be considered. If in the cases of any of the respondents’ pension order hasalready been issued, the same shall not be disturbed, as has been directed in the case of Union of India & Ors. v Registrar & Anr. (supra). We, accordingly allow these appeals and set aside the judgments under appeal, subject to the following conditions: (i) In the event the Central Government or the postal department has already issued any order for pension to any of the respondents, then such pension should not be disturbed. In issuing this direction, we are following the course which was directed to be adopted by this Court in the case of Union of India & Ors. v. Registrar & Anr.(supra). (ii) In respect of the other respondents, who have not been issued any order for pension, the concerned ministry may consider as to whether the minimum qualifying service Rule can be relaxed in their cases in terms of Rule 88 of the 1972 Rules
Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos.4780-4781 of 2018 Union of India & Ors. …. Appellant(s) Versus 794898 T. Ex. Corporal Abhishek Pandey. …. Respondent (s) J U D G M E N T L. NAGESWARA RAO, J. These Appeals are filed against the judgment of the Armed Forces… Read More Habitual Offenders Policy = a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. Habitual Offenders Policy, the habitual offenders can be considered for discharge from service under Rule 15 (2) (g) (ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the Air Force Rules, 1969 (hereinafter, ‘the Rules’), under the Clause “His Service No Longer Required Unsuitable for Retention in the Air Force”. The Respondent was cautioned and counselled to mend himself and desist from acts of indiscipline. He was also warned that any addition of another punishment entry would render him liable for discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2) (k) read in conjunction with Rule 15(2) of the Rules = As the Respondent was not showing any improvement, he was found to be a poor Airman material and not amenable to service discipline. The Respondent submitted his explanation on 05.08.2012 in which he admitted that he had indulged in acts of indiscipline due to bad company. He requested for a final chance to improve. After considering the explanation submitted by the Respondent, the Air Officer-in-Charge approved the discharge of the Respondent from service under Rule 15 (2) (g) (ii) of the Rules as he was found unsuitable for the Indian Air Force.= The Tribunal was of the opinion that the Respondent was given only one warning. As the second warning which is mandatory according to the Policy was not given to the Respondent, the Tribunal was of the view that the order of discharge was vitiated. The Tribunal failed to take into account the fact that para 2 (b) provides for a second warning only when the competent authority considers issuance of final orders but is also of the opinion that another chance should be given to the Airman. The requirement of the second warning letter would be only in such circumstances.= The Respondent was initially a potential habitual offender before he was considered as a habitual offender. He was entitled for a warning to be issued in 2008. Admittedly, there was a delay in issuance of the warning letter. Ultimately, the warning letter was issued on 18.04.2012. The Respondent did not mend himself for which reason a show cause notice was issued to him. Even in the explanation to the show cause notice, the Respondent did not dispute the allegations of misconduct made against him. He, in fact, admitted to having indulged in acts of indiscipline and sought for another opportunity to correct himself. The show cause notice issued to the Respondent is in accordance with the Habitual Offenders Policy. A second warning letter is not required when it is decided to pass a final order without giving another chance. There is no violation of the procedure prescribed by the Policy dated 16.12.1996. For the aforementioned reasons, the judgment of the Tribunal is set aside. Accordingly, the Appeals are allowed.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4714-4715 OF 2012 UNION OF INDIA & ORS. …..APPELLANT(S) VERSUS V.R. NANUKUTTAN NAIR …..RESPONDENT(S) J U D G M E N T HEMANT GUPTA, J. 1) The challenge in the present appeals is to the orders passed by the Armed Forces Tribunal,… Read More whether the respondent is entitled to service element of disability pension from the date of discharge.? yes the applicant was discharged on 30th June, 1978 after completion of 10 years and 169 days of service. He was in low medical category since 1970. He was granted disability pension @50% on account of suffering from Viral Myocarditis post discharge, but the applicant was denied the benefit of service element of disability pension. It is the denial of this service element which led the applicant to invoke the jurisdiction of the Tribunal. – the objection is that applicant is not entitled to service element of disability pension as he was released on expiry of engagement before completion of pensionable qualifying service of 15 years and was not invalided out of service on account of disability, though he has been paid service gratuity and death-cum-retirement gratuity. – The learned Tribunal relied upon Regulation 101 of Navy (Pension) Regulations, 19643 to hold that since applicant has been invalided from service on account of disability, therefore, he is entitled to full disability pension including the service element. The reliance was also placed upon Regulation 107 of the Regulations which contemplates that where the individual has not rendered sufficient service to qualify for service pension, the personnel will be entitled to proportion of the minimum service pension appropriate to the individual’s ranks and group. It is the said order passed by the Tribunal which is the subject matter of challenge in the present appeals. -Apex court held that In the present case, we are concerned with the situation where the individual has completed his period of engagement in the low 8 medical category but not the qualifying service for pension in terms of Regulation 78 of the Regulations. The question is whether the applicant is entitled to service element of disability pension corresponding to the number of years he has put in the service of Navy.- The quantification of disability pension in the cases of an individual, who has not completed qualification service is dealt with in Regulation 107. Sub-clause (a) of Clause (1) of Regulation 107 deals with the situation where the individual has rendered sufficient service to qualify for a service pension i.e. 15 years of service in terms of Regulation 78. However, sub-clause (b) comes into play where the individual has not rendered sufficient service to qualify for service pension. In cases where the disability was suffered while flying or parachute jumping, the minimum service pension is appropriate to his rank and group but in all other cases, the service pension is restricted to minimum of two-thirds of the minimum service pension. For such reason, the disability element would be in addition to the service pension by cumulative reading of Regulation 78, Regulation 105B and Regulation 107 of the Regulations. The service pension is to be assessed on the basis of the minimum service pension laid down for an able individual of the same group in Regulation 107 of the Regulations. Learned counsel for the appellants refers to an order passed by this Court in Bhola Singh v. Union of India & Ors. We find that this Court has not referred to Regulation 105B as well as Regulation 107 of the Regulations to maintain an order of the High Court to deny service element of pension to an individual who has completed the initial fixed period of 10 years. Since the appeal has been decided without any reference to statutory regulations, we find that the reliance of the appellants on the said order is not helpful to the arguments advanced. We find that the reliance on the judgment of this court T.S. Das is not tenable for the reason that it was not the case of grant of disability pension. It was the case of grant of special pension. In view of the above, we find no merit in the present appeals, the same are dismissed. The appellants shall pay the arrears of service element preferably within a period of four months from today in terms of directions issued by the Tribunal