Wednesday, 25 November 2015

Whether arbitration clause contained in MOU will stand even though MOU is terminated?

Dealing with the said Clause and the arguments raised on behalf of
the respective parties, the law has been laid down as under in
paragraphs 82 and 83 which are to the following effect:
“82. Further, the arbitration agreement contained in Clauses
18.1 to 18.3 of IPLA is very widely worded and would include
all the disputes, controversies or differences concerning the
legal relationship between the parties. It would include the
disputes arising in respect of the IPLA with regard to its
validity, interpretation, construction, performance,
enforcement or its alleged breach. Whilst interpreting the
arbitration agreement and/or the arbitration clause, the court
 must be conscious of the overarching policy of least
 intervention by courts or judicial authorities in matters
covered by the Indian Arbitration Act, 1996. In view of the
aforesaid, it is not possible for us to accept the submission of
Mr Nariman that the arbitration agreement will perish as the
IPLA has not been finalised. This is also because the
arbitration clause (agreement) is independent of the
underlying contract i.e. the IPLA containing the arbitration
clause. Section 16 provides that the arbitration clause forming
part of a contract shall be treated as an agreement
 independent of such a contract.
 The concept of separability of the arbitration
clause/agreement from the underlying contract is a necessity
to ensure that the intention of the parties to resolve the
disputes by arbitration does not evaporate into thin air with
every challenge to the legality, validity, finality or breach of
the underlying contract. The Indian Arbitration Act, 1996, as
noticed above, under Section 16 accepts the concept that the
main contract and the arbitration agreement form two
independent contracts. Commercial rights and obligations are
contained in the underlying, substantive, or the main contract.
It is followed by a second contract, which expresses the
agreement and the intention of the parties to resolve the
disputes relating to the underlying contract through
arbitration. A remedy is elected by parties outside the normal
civil court remedy. It is true that support of the national courts
would be required to ensure the success of arbitration, but
this would not detract from the legitimacy or independence of
the collateral arbitration agreement, even if it is contained in
a contract, which is claimed to be void or voidable or
unconcluded by one of the parties.”

(Emphasis added)
(@ SLP (C) NO.1963 of 2014)
Ashapura Mine-Chem Ltd. ….Appellant
Gujarat Mineral Development Corporation ….Respondent
Citation;(2015) 8 SCC 193
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Accused avoiding to receive summons whether liable for punishment?

In our opinion, the appeal is required to be
dismissed for more than one reason. The fact that the
adjudicating officer chose to drop the proceedings
against the appellant herein does not absolve the
appellant of the criminal liability incurred by him by
virtue of the operation of Section 40 read with Section
56 of the Act. The offence under Section 56 read with
Section 40 of the Act is an independent offence. If the
factual allegations contained in the charge are to be
proved eventually at the trial of the criminal case, the
appellant is still liable for the punishment
notwithstanding the fact that the presence of the
appellant was required by the adjudicating officer in
connection with an enquiry into certain alleged
violations of the various provisions of the Act, but at a
subsequent stage the adjudicating officer opined that
there was either insufficient or no material to proceed

against the appellant for the alleged violations of the
Act, is immaterial. The observations made by this
Court in Roshanlal Agarwal (supra), in our opinion,
must be confined to the facts of that case because this
Court recorded such a conclusion “having regard to
the material existing against the respondent and the
reasons and findings given in the aforesaid
orders…..”. The said case cannot be read as laying
down a general statement of law that the prosecution
of the accused, who is alleged to be guilty of an
offence of not responding to the summons issued by a
lawful authority for the purpose of either an inquiry or
investigation into another substantive offence, would
not be justified. Exonerating such an accused, who
successfully evades the process of law and thereby
commits an independent offence on the ground that
he is found to be not guilty of the substantive offence
would be destructive of law and order, apart from
being against public interest. Such an exposition of
law would only encourage unscrupulous elements in
the society to defy the authority conferred upon the

public servants to enforce the law with impunity. It is
also possible, in certain cases that the time gained by
such evasive tactics adopted by a person summoned
itself would result in the destruction of the material
which might otherwise constitute valuable evidence
for establishing the commission of a substantive
offence by such a recalcitrant accused.
 Secondly, an appeal against the conclusion of the
adjudicating officer that the proceedings against the
appellant herein for the alleged violation of the various
provisions of the FERA Act are required to be dropped
has not even attained finality. Admittedly, such an
order of the adjudicating officer confirmed by the
statutory appellate authority is pending consideration
in an appeal before the High Court. Though, in our
opinion, the result of such an appeal is immaterial for
determining the culpability of the appellant for the
alleged violation of Section 40 read with Section 56,
we must record that the submission made on behalf of
the appellant in this regard itself is inherently
 For all the abovementioned reasons, we do not
see any merit in the appeal. We are also of the
opinion that the entire approach adopted by the
appellant is a sheer abuse of the process of law. Any
other view of the matter would only go to once again
establishing the notorious truth stated by Anatole
France that – “the law in its majestic equality, forbids
the rich as well as the poor to sleep under bridges, to
beg in the streets and to steal bread”.
 The appeal is dismissed with exemplary costs
quantified at rupees ten lakhs to be paid to the
Supreme Court Legal Service Authority.
Citation; JULY 13, 2015
Citation;(2015) 8 SCC799
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Tuesday, 24 November 2015

Govt bungalow can not be used for purposes other than residence: Supreme court

NEW DELHI: Former President A P J Abdul Kalam's grand nephew A P J Sheikh Salim has quit BJP riled by the NDA government's refusal to earmark the ex-President's official bungalow in Lutyen's Delhi as a 'Knowledge Centre' as a mark of respect to the departed. 

But Salim might not know that the government's hand are tied in this issue. The Supreme Court on July 5, 2013 had taken serious note of official bungalows in New Delhi and state capitals under unauthorized occupation and ordered eviction of the illegal occupants. 

A bench of Justices P Sathasivam and Ranjan Gogoi had taken objection to official residences getting converted into memorials for departed political leaders. It had ordered - "Henceforth, no memorials should be allowed in future in any government houses earmarked for residential accommodation." 

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Daughter should get preference over son in compassionate appointments: HC

A Punjab and Haryana high court bench has said that women should be given preference over men in compassionate appointments, when both are born of public servants dying in harness.
The high court bench of justice Rajiv Narain Raina, while dismissing the plea of a Hoshiarpur youth, said able-bodied men should be left to fend for themselves in the country today in the war of attrition fought daily in the employment market and in court. “This special provision is meant to secure chastity of the weaker sex and that they are not driven to red-light areas, to put it bluntly,” justice Raina said.
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