- Judicial orders – reasoned one, cogent and convincing reasons – even while granting a stay orderThe need for passing a reasoned order need not be emphasized. For, it is well known that a judicial order necessarily has to be a reasoned one, where the mind of the learned Court needs to be revealed, and cogent and convincing reasons need to be stated even while granting a stay order.
Uttarakhand State Warehousing Corporation and others v. Kohli Enterprises,: AIR 2022 UTTARAKHAND 1 : AIROnline 2021 UTR 820
[SPECIAL APPEAL NO.382 OF 2021, decided on 22-11-2021]
- Person not a party to arbitration agreement cannot invoke jurisdiction of court for interim relief under S. 9 of the Arbitration and Conciliation ActSection 9 of the Act, 1996 is enacted with the intention of preserving and protecting the subject matter of the arbitral proceedings. Therefore, for invoking the jurisdiction of the court, under Section 9 of the Act, 1996, the person should be a party to an arbitration agreement. Thus, a person not a party to the arbitration agreement cannot invoke the jurisdiction of the court for the interim relief under Section 9 of the Act, 1996.
In the instant matter, the appellants were not “partners” under the “Partnership Deed Retirement-cum-Admission Deed”, dated 19.02.2016. The appellants are not “parties” to the arbitration agreement to invoke the arbitration clause. Therefore, the appellants have neither made out a prima facie case nor is the balance of convenience in their favour and in the facts and circumstances of the case, no irreparable injury would be caused to the appellants if interim injunction is not granted.
Mohd. Yusuf and others v. Ashish Aggarwal and another. : AIR 2022 UTTARAKHAND 7, AIROnline 2021 UTR 801 [APPEAL FROM ORDER NO. 188
OF 2021, decided on 10-11-2021]
- Original Partnership deed vis a vis Amended partnership – Appointment of sole ArbitratorPartnership dissolved at Will. Arbitration clause in deed providing that any dispute arising amongst partners in respect of any matter relating to partnership firm, shall be referred for arbitration. Amended partnership deed substituted original partnership deed, but nothing to indicate either expressly or impliedly any novation or substitution of original partnership deed, except change of allocation of shares of partners.
Arbitration clause contained in contract constitutes separate agreement and it is agreement inside agreement. Amended deed, even if taken as separate deed and firm not registered thereafter afresh, still applicant can seek for arbitration as it has not substituted original partnership deed . Upon termination of main contract, arbitration agreement does not ipso facto come to end. Dispute regarding dissolution of partnership firm and aspect of rendition of accounts and distribution of accounts needs to be referred to Arbitrator:
Somuri Ravali v. Somuri Purnachandra Roa And Others :
[AIR 2022 (NOC) 30(TEL), AIROnline 2021 TEL 81]
- Evidence Act 1872, S.134- Summoning of witness – in Matrimonial petitionWife claiming maintenance with specific case that she has no means of income. It is necessary and relevant to examine witnesses to re but assertion made by wife -Application of husband was rejected on ground that husband already examined four witnesses. Section 134 of Evidence Act does not provide any specific number of witness party can examine for proof of any fact . Right of husband to lead further evidence was closed without assigning any plausible and cogent reasons . The rejection is erroneous . Husband directed to declare names of witnesses sought to be examined by him as witness.
Dharmendrakumar Maganbhai Parmar v. Pushapaben Dharmedra Kumar Parmar.,
[AIR 2022 (NOC) 41(GUJ) , AIROnline 2021 GUJ 226]
- Interpretation of statutes – Proviso – Cannot expand or limit operation of substantive provision except to extent that it expressly provides and carves out as exceptionA proviso may be used for manifold purposes. In its most fundamental form, a proviso excludes or qualifies something in the sense that if the proviso had not been included, the substantive provision would have applied to that something which has been excluded or qualified. A proviso may also be used to remove special cases from the general enactment. In the classical sense, a proviso may not have any impact on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by the clear words of the substantive provision. The only appropriate construction of a proviso would be that it cannot expand or limit the operation of the substantive provision except to the extent that it expressly provides and carves out as an exception. Equally, a proviso may be used as a guide in the selection of one or the other of two possible constructions of the words in the substantive provision, as it has been judicially recognised that the terms of an intelligible proviso may throw considerable light on the ambiguous import of the statutory words. It is a balance which has to be struck between the two main principles which operate in understanding the impact of a proviso on the enactment. The apparently opposing principles being when the words of the enactment are clear, the proviso may not be read to detract there from; and, if the enactment appears to be ambiguous, the proviso may be used as a tool to resolve the ambiguity. At any rate, a proviso may not be seen as surplusage, in the sense that the proviso would have no impact on the operation of the enactment.
Hindustan Unilever Limited Ponds House 101, Santhome High Road, Chennai v. Shanthi Proprietrix: Lakshmi Soaps Through Her Power Holder D. Suyaraj And Another:
[AIR 2022 (NOC) 86 (MAD), AIROnline 2021 MAD 2727]
- Stamp duty and Court fees – Difference betweenStamp-duty is levied under the Maharashtra Stamp Act. It is a taxing statue and fiscal measure to secure revenue for the State. The Stamp-duty is the State levy paid on instrument which includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy or receipt. The State has power to legislate on Stamp duty under Entry 44, List III in Schedule VII of the Constitution of India.
Court fee is a fee that is imposed on a litigant to contest a case in the court of Law. The Court fees is levied by the Govt. on the people seeking judicial remedies through a legislation.
There is difference between the stamp duty and Court-fees. Stamp duty is clearly a Tax and the court-fees is not strictly a tax but a payment in return for service. Stamp Act relates to the stamps and rates of stamp duties other than those in respect of the document specified in Entry 91 of List-I in the Seventh Schedule to the Constitution of India. Court-fee Act is the legislation relating to the administration of civil justice. The court fee is taken in all courts. The stamp duty is charged on the instruments other than the duties or fees collected by means of judicial stamps.
Shankar Patilba Satpute v. State of Maharashtra And Others:
[AIR 2022 (NOC) 136(BOM), AIROnline 2021 BOM
Restitution – Principal of – Explained : CPC sec 144
Doctrine of restitution is that on a reversal of a decree, the law imposes an obligation on the party to the suit who receives any unjust benefit of the erroneous decree to make restitution to the other party for what he has lost. The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from. It would be seen that it is not only the duty of the Court of restoring the things to its proper owner but that also encompasses with it to make such other order including orders for refund of costs or for payment of interests damages and mesne profits which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
Satish Kumar v. Ram Kishore: [AIR 2022 (NOC) 146 (ALL), AIROnline 2021 ALL 2613]
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|Handbook on Taxation of Partnership Firms & Limited Liability Partnerships: Frequently Asked Questions
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|151 Landmark Judgment of the Honorable Supreme Court
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|GAAR General Anti-Avoidance Rules