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Is an order passed under Section 9 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as 'the Arbitration
Act') by a Commercial Court appealable under Section 13(1) of
the Commercial Courts Act, 2015 (hereinafter referred to as 'the
Commercial Courts Act')? This question essentially falls for
consideration in the instant case.
In
the instant case, the impugned order is an order of injunction. It
is appealable under Order XLIII of the Code of Civil Procedure,
1908. It is an order passed under Section 9 of the Arbitration
Act. It is also appealable under Section 37 of the Arbitration Act.
Section 37(1)(b) of the Arbitration Act states that an appeal shall
lie from an order granting or refusing to grant any measure
under Section 9 of the said Act. Right of appeal is the creature of
a statute. It is well settled that right of appeal is a substantive
right. Nothing contained in Section 13(1) or Section 13(2) of the
Commercial Courts Act curtails this right of appeal.
21. At this juncture, it is to be noted that the heading of
the unamended Section 13 of the Commercial Courts Act also
read as “Appeals from decrees of Commercial Courts and
Commercial Divisions”. There was a proviso to unamended
Section 13(1) of the Act which now stands as the proviso to
Section 13(1A) of the Act. This proviso restricts the right of
appeal from orders that are specifically enumerated under Order
XLIII of the Code of Civil Procedure and Section 37 of the
Arbitration Act. If the contention of the learned counsel for the
petitioners is accepted, the proviso to Section 13(1A) of the
Commercial Courts Act would be meaningless.
22. The scope of the proviso to the unamended Section
13(1) of the Commercial Courts Act, which now stands as the
proviso to Section 13(1A) of the Act, was considered by the
Supreme Court in Kandla Export Corporation v. M/s OCI
Corporation : (2018) 14 SCC 715 and it was held as follows:
“Section 13(1) of the Commercial Courts Act,
with which we are immediately concerned in
these appeals, is in two parts. The main provision
is, as has been correctly submitted by Shri Giri, a
provision which provides for appeals from
judgments, orders and decrees of the
Commercial Division of the High Court. To this
main provision, an exception is carved out by the
proviso. ..... The proviso goes on to state that an
appeal shall lie from such orders passed by the
Commercial Division of the High Court that are
specifically enumerated under Order XLIII of the
Code of Civil Procedure Code, 1908, and Section
37 of the Arbitration Act. It will at once be
noticed that orders that are not specifically
enumerated under Order XLIII of the CPC would,
therefore, not be appealable, and appeals that
are mentioned in Section 37 of the Arbitration
Act alone are appeals that can be made to the
Commercial Appellate Division of a High Court”.
23. Moreover, in order to find out whether an appeal
against an order passed under Section 9 of the Arbitration Act is
maintainable or not, the provisions of the said Act have to be
looked into. There is no independent right of appeal provided
under Section 13(1) of the Commercial Courts Act. It merely
provides the forum of filing appeals. Section 37(1) (b) of the
Arbitration Act creates the right to file an appeal against an order granting or refusing to grant any measure under Section 9 of the said Act. It is the parameters of Section 37(1) of the Arbitration Act alone which have to be looked at in order to determine whether an appeal against an order under Section 9 of the said Act is maintainable or not (See BGS SGS Soma JV v. NHPC Limited : (2020) 4 SCC 234).
24. The question whether the proviso in Section 13 of the
Commercial Courts Act applies only to Section 13(1A) or whether
it applies to Section 13(1) also, does not arise for consideration
in the instant case. The reason is that, the order impugned in this
original petition, is an order passed under Section 9 of the
Arbitration Act and therefore, appealable under Section 37 of the
said Act, which is specifically mentioned in the proviso.
25. The discussion above leads to the conclusion that an
order under Section 9 of the Arbitration and Conciliation Act,
1996 passed by a Commercial Court below the level of a District
Judge is appealable under Section 13(1) of the Commercial
Courts Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
OP(C).No.1467 OF 2020
PRANATHMAKA AYURVEDICS PVT LTD. Vs COCOSATH HEALTH PRODUCTS
Coram: MR. JUSTICE R. NARAYANA PISHARADI
Dated this the 24th day of November, 2020
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The Hon’ble Supreme
Court of India in the case of K.S. Puttaswamy v. Union of
India (supra) held that purpose limitation is integral for
executive projects involving data collection – unless prior
permission is provided, third parties cannot be provided access
to personal data.See Para 166 of K.S. Puttaswamy Judgment
This principle is embodied in S.5 of the yet to-
be-implemented Personal Data Protection Bill, 2019.
Purpose Limitation enhances transparency in data processing
and helps examine the proportionality of the mechanism used
to collect data for a specific purpose. Moreover, it prevents the
emergence of permanent data ‘architectures’ based on
interlinking databases without consent. In the present case
the proposition of purpose limitation is not applicable as the
question of seeking consent does not arise at all. No person
much less a woman would want to create and display gray
shades of her character. In most of the cases, like the present
one, the women are the victims. It is their right to enforce the
right to be forgotten as a right in rem. Capturing the images
and videos with consent of the woman cannot justify the
misuse of such content once the relation between the victim
and accused gets strained as it happened in the present case.
If the right to be forgotten is not recognized in matters like the
present one, any accused will surreptitiously outrage the
modesty of the woman and misuse the same in the cyber
space unhindered. Undoubtedly, such an act will be contrary
to the larger interest of the protection of the woman against
exploitation and blackmailing, as has happened in the present
case. The sloganeering of “betibachao” and women safety
concerns will be trampled.
14. Section 27 of the draft Personal Data Protection Bill, 2018
contains the right to be forgotten. Under Section 27, a data
principal (an individual) has the right to prevent continuing
disclosure of personal data by a data fiduciary. The aforesaid
provision which falls under Chapter VI (Data Principal Rights)
of the Bill, distinctly carves out the "right to be forgotten" in no
uncertain terms. In terms of this provision, every data
principal shall have the right to restrict or prevent continuing
disclosure of personal data (relating to such data principal) by
any data fiduciary if such disclosure meets any one of the
following three conditions, namely if the disclosure of personal
data:
(i) has served the purpose for which it was made or is no
longer necessary; or (ii) was made on the basis of the data
principal's consent and such consent has since been
withdrawn; or (iii) was made contrary to the provisions of the
bill or any other law in force.
In addition to this, Section 10 of the Bill provides that a
data fiduciary shall retain personal data only as long as may
be reasonably necessary to satisfy the purpose for which it is
processed. Further, it imposes an obligation on every data
fiduciary to undertake periodic reviews in order to determine
whether it is necessary to retain the personal data in its
possession. If it is not necessary for personal data to be
retained by a data fiduciary, then such personal data must be
deleted in a manner as may be specified.
15. In the instant case, prima facie, it appears that the
petitioner has not only committed forcible sexual intercourse
with the victim girl, but has also deviously recorded the
intimate sojourn and uploaded the same on a fake Facebook
account. Statement recorded under Section 161 of Cr. P.C. of
the victim girl is also clearly in sync with FIR version.
Considering the heinousness of the crime, the petitioner does
not deserve any consideration for bail at this stage. However,
this Court is of the view that Indian Criminal Justice system is
more of a sentence oriented system with little emphasis on
the disgorgement of victim’s loss and suffering, although the
impact of crime on the victim may vary significantly for
person(s) and case(s)-- for some the impact of crime is short
and intense, for others the impact is long-lasting. Regardless,
many victims find the criminal justice system complex,
confusing and intimidating. Many do not know where to turn
for help. As in the instant case, the rights of the victim to get
those uploaded photos/videos erased from Facebook server
still remain unaddressed for want of appropriate legislation.
However, allowing such objectionable photos and videos to
remain on a social media platform, without the consent of a
woman, is a direct affront on a woman’s modesty and, more
importantly, her right to privacy. In such cases, either the
victim herself or the prosecution may, if so advised, seek
appropriate orders to protect the victim’s fundamental right to
privacy, by seeking appropriate orders to have such offensive
posts erased from the public platform, irrespective of the
ongoing criminal process.BLAPL No.4592 OF 2020
(In the matter of an application under Section 439,
Criminal Procedure Code, 1973)
Subhranshu Rout @ Gugul Vs State of Odisha
PRESENT
SHRI JUSTICE S.K. PANIGRAHI
Date of judgment: 23.11.2020
The question involved in the above reference is that,
when there is a change in circumstances between the spouses,
especially when there is a dissolution of marriage and substantial
time had elapsed, whether the trust created between them would
be extinguished.
6. It is settled law when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force. When S.10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke S.10 of the Limitation Act and file a suit at her will and pleasure at any point in time.
9. As per S.6 of the Dowry Prohibition Act, 1961, when a
statutory trust is created in respect of dowry, the principle
aforestated shall apply.
10. In the case of ornaments which are given in the form of
dowry, definitely, a statutory trust is created. Even otherwise, if
the ornaments owned by the wife do not form part of the dowry
and if there is an entrustment of gold ornaments by the wife to
the husband or his parents, a trust gets created, in which event,
the trustee or trustees, as the case may be, are liable to return
the same and there is no limitation for claiming the same by the
wife/divorced wife.
In the light of the aforesaid discussion, we are in full
agreement with the law laid down in Chacko's case (supra) and
we uphold the view expressed in Bindu K.P.'s case (supra).
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE A.M.SHAFFIQUE
MR. JUSTICE SUNIL THOMAS
and
MR. JUSTICE GOPINATH P.
Mat.Appeal.No.358 OF 2019
SHEELA.K.K., Vs N.G.SURESH,
Author: Shaffique, J.
Dated: 24TH DAY OF SEPTEMBER 2020
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