Wednesday, 25 November 2020

Excellent article on Conflict of Laws Aspects of Maritime Disputes and Maritime Arbitration by Philip Teoh

Reproduced from Semophore September 2020 with kind permission of MLAANZ 
 Received from: Philip Teoh

Partner

Head – shipping, litigation and arbitration practice

Azmi & Associates, Malaysia

+603 2118 5000 (ext 5010)

philip.teoh@azmilaw.com

www.azmilaw.com


https://drive.google.com/file/d/1Wotd8r3VEd1JtwVZV2y7svb7E4EiyKEt/view?usp=sharing

Print Page

Whether Order Of Commercial Court U/Sec 9 Of Arbitration & Conciliation Act isAppealable?

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

Print Page

Tuesday, 24 November 2020

Orissa HC recognizes Right To Be Forgotten: Allowing Videos/Photos Of Rape Victims To Remain On Social Media Is Violative Of Their Fundamental Right To Privacy

 


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.

HIGH COURT OF ORISSA: CUTTACK

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

Print Page

Monday, 23 November 2020

Whether there is the limitation for claiming property by wife entrusted to husband?

 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

Print Page