Award of Interest by Arbitrator

The discretion of the arbitrator to award interest must be   exercised   reasonably.

An   arbitral   tribunal   while making   an   award   for   Interest   must   take   into  consideration a host of factors, such as:

(i) the ‘loss of use’  of   the   principal   sum;

(ii)   the   types   of   sums   to which the Interest must apply;

(iii) the time period over which   interest   should   be   awarded;

(iv)   the internationally prevailing rates of interest;

(v) whether simple or compound rate of interest is to be applied;

(vi)   whether   the   rate   of   interest   awarded   is commercially   prudent  from  an  economic  stand­point;

(vii)   the   rates   of   inflation,

(viii)   proportionality   of   the count   awarded   as   Interest   to   the   principal   sums awarded.

Continue reading “Award of Interest by Arbitrator”

Advertisements

Specific Performance of Development Agreement between Builder and Owner

Meaning of “development agreement”:

The expression “development agreement” has not been defined statutorily. In a sense, it is a catch-all nomenclature which is used to be describe a wide range of agreements which an owner of a property may enter into for development of immovable property. As real estate transactions have grown in complexity, the nature of these agreements has become increasingly intricate. Broadly speaking, (without intending to be exhaustive), development agreements may be of various kinds:

(i) An agreement may envisage that the owner of the immovable property engages someone to carry out the work of construction on the property for monetary consideration. This is a pure construction contract;

(ii) An agreement by which the owner or a person holding other rights in an immovable property grants rights to a third party to carry on development for a monetary consideration payable by the developer to the other. In such a situation, the owner or right holder may in effect create an interest in the property in favour of the developer for a monetary consideration;

(iii) An agreement where the owner or a person holding any other rights in an immovable property grants rights to another person to carry out development. In consideration, the developer has to hand over a part of the constructed area to the owner. The developer is entitled to deal with the balance of the constructed area. In some situations, a society or similar other association is formed and the land is conveyed or leased to the society or association;

(iv) A development agreement may be entered into in a situation where the immovable property is occupied by tenants or other right holders. In some cases, the property may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and

(v) An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner. Continue reading “Specific Performance of Development Agreement between Builder and Owner”

Conviction on the basis of Extra Judicial Confession.

Conviction under Prevention of Corruption Act.

Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction.

Misappropriation of funds u/s 409 of IPC:

Continue reading “Conviction on the basis of Extra Judicial Confession.”

Proof of medical negligence by Doctor

Gall bladder surgery:

Initially Doctor proceeded to perform the laparoscopy surgery of the Gall Bladder of respondent No.1 as advised but while so performing he noticed some inflammation, adhesion and swelling on the Gall Bladder and, therefore, decided to perform the conventional surgery, which he actually did on respondent No.1, to remove the Gall Bladder.

Allegations that even the surgery performed was not successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in Common Bile Duct. It was alleged that all these ailments were incurred due to the negligence of the appellant, who did not perform the surgery properly. Continue reading “Proof of medical negligence by Doctor”