Sub:Limits of challenge to Arbitral Award u/s 34 of Arbitration and Conciliation Act, 1996
Issue :
Scope of challenge to Arbitration Award
Decision:
Govt of Maharashtra through its Health Department challenged the Arbitral Award passed by Hon’ble Shri Justice S.N. Variyava ( Retired S.C. Judge) before the District Court, Kolhapur u/s 34 of Arbitration and Conciliation Act, 1996. As per the award, the Govt of Maharashtra was directed to pay a sum of Rs 1,64,59,700/- towards the work of building of Govt Hospital. The award was challenged on the grounds of jurisdiction and calculations. We appeared on behalf of the Company and showed that scope Sec. 34 of Arbitration and Conciliation Act, 1996 is limited and it is not an appeal in disguise Reliance was placed by us on various rulings of Apex Court interpreting Sec. 34 as giving very limited scope to the Court for interference in the award of the arbitrator. The District Court was pleased to dismiss the application u/s 34 of Arbitration and Conciliation Act, 1996.
Sub: Requirements for success in cheque dishonor cases u/s 138 Negotiable Instrument Act
Issue :
When can partners be held responsible u/s 138 of Negotiable Instruments Act
Decision:
Criminal Appeals were filed by us on behalf of a partnership firm and its partners against their conviction u/s 138 of Negotiable Instruments Act, 1881. It was shown to the Appellate Court that there was doubt about the amount shown in the cheques, the accounts, the discrepancy in the signed receipt and the actual payment, non- production of relevant documents by the complainant admissions in a cross, lack of averments relating to the role of the partners. Reliance was placed on recent judgments of Bombay High Court and Supreme Court. It was pointed out that reliance placed by the Trial Court on Sec. 92 of Indian Evidence Act in such cases is erroneous as though receipt was signed, the proviso to Sec. 92 allows the accused to show that it was fraudulent, suffered from want or failure of consideration, mistaken in fact or law. The Appellate Court accepted the contentions and allowed the appeal by setting aside the conviction.
Sub: Medical Negligence : Infection not medical negligence
Issue :
Is infection medical negligence?
Decision:
Recently, we dealt with a Consumer Complaint against an ophthalmologist before the State Consumer Dispute Redressal Commission, Mumbai, Camp. Kolhapur. The complainant alleged that after undergoing cataract surgery, he lost eyesight of one of his eyes and hence claimed compensation from the ophthalmologist. The matter was dismissed by the District Forum and complainant took up the matter to the State Commission. We appeared on behalf of the ophthalmologist in the State Commission and showed with reference to the case – papers and medical texts that the complainant developed an infection after cataract surgery. The ophthalmologist had done everything necessary for such surgery i.e. prior and post. Thus, in spite of the doctor taking all the necessary precautions and performing surgery as per established medical procedure, infection occurred which was beyond the control of the doctor. Medical science does record the possibility of such an infection. We relied on the following rulings: 1] Kushum Sharma and Ors Vs Batra Hospital and Medical Research Centre and Ors 2010 (2) AIR Bom R. 644. 2] Rameshbhai P. Prajapati and Vs Dr. P.N. Nagpal – I ( 1997) CPJ 471. 3] Hari Prasad Chunkai Vs Mannulal Jagannath Trust Hospital and or – I ( 2005) CPJ 783. Considering the arguments of both sides, the State Commission was pleased to dismiss the appeal
Sub: Recovery from Sugar Factory relating to contract for supply of molasis.
Issue :
1. Is time essence of contract in all cases?
2. Does statutory notice extend the period of limitation for filing of suit?
Decision:
A Suit was filed by us on behalf of a Company against a Sugar Factory for the refund of the amount paid to sugar factory for the supply of molasses. The sugar factory took a plea that molasses was not lifted in time and that time was the essence of the contract and hence the sugar factory was entitled to forfeit the amount for breach of contract by the company. We showed and proved before the court that as per the documents, time was not strictly essence of the contract. Further, time was once extended. The sugar factory, therefore, has shown to have wrongfully withheld the amount. We placed reliance on M/s Hind Construction Contractors by its Sole proprietor Bhikamchand Mulchand Jain ( dead) by L.R’s Vs State of Maharashtra reported in AIR 1979, Supreme Court, 720. Another Law point which was raised by the sugar factory was that the suit was not in limitation. We showed to the court that, the time provided for the filing of the suit gets extended in view of the notice sent by us u/s 164 of Maharashtra Co-operative Societies Act, 1960, entitling the plaintiff to get the exclusion of notice period of two months from limitation. The court accepted our contentions and decreed the suit with interest.
Sub: Use of common space in Apartment
Issue :
Can injunction be issues against builder for putting up construction in common space?
Decision:
A case was filed against a builder in the Civil Court seeking an injunction against putting construction in the space provided for common use and enjoyment of the flat owners in a building. The builder took a contention that the said space was actually shown for construction in the sanctioned map of the local authority. However, it was shown to the court by us that, the map which was shown by the builder to the plaintiff and the map which was got sanctioned were different and the builder did not obtain the consent of the plaintiff for change in the map. The court thus gave an injunction in favour of the plaintiff against the builder injecting him from putting any construction in the suit passage. The Court relied upon Sec. 3 and 7 of Maharashtra Ownership of Flats & Regulation Act.
Comment
The new Real Estate Regulation and Development Act ( RERA), the law will bring in a lot of transparency and regulation on the building activity. Under the new regulation, the builders will have to register their projects with the competent authority, but the projects on the website and complaints relating to the projects will be dealt with by competent authorities under the new regime.
Sub: Anticipatory Bail
Issue :
What are the parameters for grant of anticipatory bail in corporate criminality cases?
Decision:
These days cases of corporate criminality are on the rise. A complaint came to be filed by renowned corporate group against another corporate group alleging offences punishable u/s 406, 409, 420, 467, 468, 471, 477 -A r/w 34 of Indian Penal Code with Jaysingpur Police Station.
The amount alleged to be involved ran in to crores of Rupees. The Magistrate passed order of investigation u/s 156 (3) of Cr.P.C. We therefore moved the Session Court behalf of our client seeking anticipatory bail u/s 438 of Cr.P.C. The matter was hotly contested. The complainant company is engaged their private Lawyer in addition to APP for the State. The Hon’ble Court accepted our following arguments :
i. Discrepancy in the complaint before Magistrate and Complaint before the police.
ii. The suit for recovery of amount were filed in Civil Court
iii. The parties were having business transactions for years.
iv. All the transactions were through bank and through written documents.
v. Custodial interrogation is not required.
vi. The applicants are people from good background and having repudiation in the society.
vii. No public money was involved.
The Hon’ble Court therefore granted anticipatory bail to our clients on appropriate conditions.
Sub: Enforcement of Negative covenant under mining contracts
Issue :
Can negative covenant in contract be enforced?
Decision:
Recently we handled an interesting case undermining the law. It is usual practice in the mining area in this country that people who are granted the mining rights normally do not have the capacity to actually carry out mining. They, therefore, enter into an agreement of raising/ extraction and sale with different entities. In a recent case handled by us, an agreement for extraction /raising was entered into by our client with the mining leaseholders.
Eventually, however, disputes arose between the parties and the leaseholders started obstructing the raising activity of our client. The agreement had an arbitration clause under the provisions of the Arbitration and Conciliation Act, 1996. We, therefore, moved the District Court in Kolhapur u/s 9 of the Arbitration Act and sought interim relief against the mining leaseholders from obstructing our client in carrying out raising activities. The matter was very hotly contested on behalf of the mining leaseholders. The court applying the principles of a grant of an injunction- prima facie case, the balance of convenience and irreparable injury and interpreting the agreement was pleased to grant an injunction in favour of our client as prayed.