Right to die with dignity.

Permission for passive Euthanasia

Dignity of an individual has been internationally recognized as an important facet of human rights in the year 1948 itself with the enactment of the Universal Declaration of Human Rights. Human dignity not only finds place in the Preamble of this important document but also in Article 1 of the same. It is well known that the principles set out in UDHR are of paramount importance and are given utmost weightage while interpreting human rights all over the world. The first and foremost responsibility fixed upon the State is the protection of human dignity without which any other right would fall apart. Continue reading “Right to die with dignity.”

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Powers of Supreme Court under article 136.

Interference with finding of fact:

In exercise of jurisdiction under Article 136 of the Constitution of India, this Court does not normally reappreciate the evidence and findings of fact; but where the findings of the High Court are perverse or the findings are likely to result in excessive hardship, the Supreme Court would not decline to interfere merely on the ground that findings in question are findings of fact. After referring to various judgments on the scope in exercise of power under Article 136 of the Constitution of India, in Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141, this Court in para (35) summarized the principles as under:-

“35. From a close examination of the principles laid down by this Court in the aforesaid series of decisions as referred to hereinabove on the question of exercising power to interfere with findings of fact by this Court under Article 136 of the Constitution, the following principles, therefore, emerge:

• The powers of this Court under Article 136 of the Constitution of India are very wide.

Continue reading “Powers of Supreme Court under article 136.”

Redemption of mortgage subject to SARFAESI Act

Section 13(8) of SARFAESI Act.

Failure to deposit full amount dues:

In the present case, the appellant failed to comply with the provisions of Section 13(8). The statute mandates that it is only where the dues of the secured creditor are tendered together with costs, charges and expenses before the date fixed for sale or transfer that the secured asset is not to be sold or transferred. Continue reading “Redemption of mortgage subject to SARFAESI Act”

Does Arbitration bars remedy under SARAFESI Act

Effect of Arbitration Clause.

Loan agreements contained arbitration clauses which were invoked by the appellant with the filing of cases under Section 9 of the Arbitration and Conciliation Act, 1996. In view thereof, initiation of any other proceedings under the SARFAESI Act if impermissible in law?

Because arbitration is an alternative to the proceedings under the RDB Act, it would not be obligatory on the Bank/Financial Institution to withdraw the proceedings pending before the arbitrator, prior to resorting to secure its interest under the SARFAESI Act. The Bank/financial institution can simultaneously proceed before the Arbitral Tribunal for adjudication of disputes and also take recourse to Section 13 of the SARFAESI Act for enforcement of its security interest. Both the proceedings can continue parallel to each other. Continue reading “Does Arbitration bars remedy under SARAFESI Act”

Value added tax: If price is reduced.

Effect of reduction of price on Value Added Tax.

A bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines “sale price” clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. Continue reading “Value added tax: If price is reduced.”

Sanction for prosecution of corrupt Government Official

Prosecution of corrupt official.

The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official.

This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law. Continue reading “Sanction for prosecution of corrupt Government Official”

Interpretation of Price Adjustment aka Price Escalation/Variation Clause

Judicial Review of Arbitration Award:

The main reason because of which the NHAI lost in those proceedings was that two possible interpretations could be given to the clause in question and, therefore, the recourse taken by the Arbitral Tribunal by adopting one particular interpretation was not required to be interfered with. SLP against that was dismissed. In a situation like this, this Court would not have undertaken further exercise in the matter. However, another Arbitral Tribunal in the case of M/s. Ssangyong Engineering and Construction Co. Ltd. has accepted the other view, which goes in favour of the NHAI. It leads to an anomalous situation. The NHAI has entered into multiple contracts with different parties containing the same clauses of price variation. Once we find that Arbitral Tribunals are taking different views, and the view taken in favour of the NHAI is also one of the possible interpretations, the effect thereof would be to uphold both kinds of awards even when they are conflicting in nature in respect of the same contractual provision. It may not be appropriate to countenance such a situation which needs to be remedied. Therefore, under this peculiar situation, we deem it proper to go into the exercise of interpreting the said clause so that there is a uniformity in the approach of the Arbitral Tribunals dealing with this particular dispute and a sense of certainty is attached in the outcomes. Continue reading “Interpretation of Price Adjustment aka Price Escalation/Variation Clause”

Power of Court to release on personal bond.

Can an accused seek to be released on personal bail bond without an application to be released on bail?

Section 88 in The Code Of Criminal Procedure, 1973 is as under:

88. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.

‘May’ if mandatory or confers discretion on the court?

Continue reading “Power of Court to release on personal bond.”

Legality of Multi-Nation Accounting Firm

Whether the MAFs are operating in India in violation of law in force in a clandestine manner, and no effective steps are being taken to enforce the said law?

If so, what orders are required to be passed to enforce the said law.

Acts constituting violation of law:

i) There is a bar under CA Act to practice as CAs for a company which includes a limited liability common partnership which has company as its partners. Continue reading “Legality of Multi-Nation Accounting Firm”

Difference between Court and persona designata!

A persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.

[per Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao]

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

[Source: Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I.A. 192 : S.C. 18 Bom. L.R. 1007 relied in Adaikappa Chettiar v. R. Chandrasekhara Theva, (1948) 50 BOMLR 18]

Whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designata?

Continue reading “Difference between Court and persona designata!”