Newsletter ARBITRATION AND CONCILIATION ACT, 1996 JUNE, 2021 Arbitral Tribunal cannot apply Public Law principles against public body Recently,  the Hon’ble Bombay High Court while setting aside the arbitration award against the BCCI over the termination of Deccan Chargers from IPL, held that an arbitral tribunal cannot apply public law principles on fairness and reasonableness. The arbitrator had held that BCCI, though not a state under Article 12 of the Constitution, was performing ‘public functions’ and hence had the public law duty to act fairly. Interestingly, in an appeal against the arbitration award under Section 34 of the Arbitration and Conciliation Act, the Hon’ble High Court bench observed that it was immaterial whether BCCI was a ‘State’ or whether it was performing ‘public functions’, as public law duty cannot be enforced in a private contract. The Court further observed that commercial arbitrators are not entitled to settle a dispute by applying what they conceive is ‘fair and reasonable’ unless specifically mentioned in the terms of the contract. Read More... Order of Blacklisting a Company shall not be implied as failure to comply with the conditions of the tender Recently, the Ld. Single Bench of the Delhi High Court comprising of Justice VibhuBakhru allowed a Petition under Section 9 of the Arbitration and Conciliation Act, 1996 whereby the Petitioner sought stay on the operation of the letter, whereby the Respondent has rejected the Petitioner’s tender and blacklisted it for a period of one year from participating in any CPWD tender. The Hon’ble Court while placing strong reliance on Kulja Industries v. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Ltd., (2014) 14 SCC 731, observed that the factors that must be weighed for blacklisting a contractor are materially different than those to recognise non-performance of any obligation. It was further held that the Kulja Industries Judgment passed by the Hon’ble Supreme Court enlists certain factors(on a non-exhaustive basis) that are required to be considered before blacklisting a contractor. None of these factors were applied in the present case and thus the Hon’ble High Court allowed the Petition and stayed the blacklisting order  for six months alongwith a direction for the Respondent to remove the order from its website blacklisting the Petitioner. Read More... INSOLVENCY AND BANKRUPTCY CODE, 2016 Liquidation proceedings quashed on the ground that sole decision of the Committee of Creditor could be fatal for the existence of the Corporate Debtor as the CoC is comprised of the related Parties. Recently, the Hon’ble National Company Law Appellate Tribunal at Delhi quashed the liquidation proceedings against the Corporate Debtor- 'INCAB Industries Limited and directed to appoint another IRP/ Resolution Professional in place while restoring the application u/S. 9 of the Insolvency Bankruptcy Code, 2016 to the NCLT. The Bench clarified that without verification and admission of a claim, the IRP cannot assign voting share to a creditor, and without that, there cannot be a meeting of the Committee of Creditors. The Hon’ble Bench further observed that CIRP in the instant case is totally in disregard of the provision of the Code and Regulations thereunder. The formation of the Committee of Creditors in the instant case is a nullity. Since the illegally constituted committee of creditors took the decisions at every stage of CIRP. Therefore, the entire CIRP of the CD is found to be vitiated. Therefore the impugned order of liquidation passed by the AA deserves to be set aside. Financial being the related Party of the Corporate Debtor are not entitled to represent, participate and vote in the CoC of the corporate debtor. Read More... Date of Default does not shift to period post signing of an OTS Agreement The Principal Bench of the National Company Law Appellate Tribunal dismissed an Appeal preferred by suspended management of the Corporate Debtor against admission of Section 7 Application. The primary contention of the Appellant was that the date of default mentioned in Part-IV of the Application was 27.12.2014 was wrong, as after this date the Corporate Debtor and the Bank had entered into One Time Settlement (‘OTS’) dated 29.03.2016. Thus, the argument was that the date of default if any could only be after the OTS and that the Application deserved to be rejected on this ground itself. On the contrary, the Respondent Banks contended that the OTS offer should be considered as acknowledgment and thus claimed that the Application filed under Section 7 of IBC was within limitation. The Hon’ble Bench observed that the date of default would not shift to period post OTS and also conformed the decision of Ld. National Company Law Tribunal, Ahmedabad to the extent that the Application was within limitation. Read More... The Code of Criminal Procedure, 1973 Obligation of a father to maintain his son will not come to an end when he attains majority under Section 125 CrPC The Ld. Single Judge Bench of the Delhi High Court directed that a sum of Rs. 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. Thus, the Hon’ble Court was of the view that the object of Section 125 CrPC is to prevent vagrancy and destitution of a deserted wife and her children by providing them for the food, clothing and shelter by a speedy remedy. Read More... The Hon’ble Andhra Pradesh High Court allowed regular bail to suspended Judicial Officer who expressed dissatisfaction with Government functioning A Ld. Single Judge Bench of Andhra Pradesh High Court granted regular bail under Section 439 of CrPC to a suspended Judicial Officer. The complaint was made against Petitioner that in course of a television debate, Petitioner made intemperate statements against the Government and also against the Hon’ble Chief Minister. However, the Hon’ble High Court held that neither condition as provided in Section 124 A, 153 and 153A of the Indian Penal Code appears to apply as the crime is based on a statement that is said to have been made in a television debate which is recorded and cannot be altered or tampered with. Further, a period of 60 days have already been elapsed, and as such, the question of any further tampering with or affecting the investigation would not arise. The Hon’ble Court also observed that since the Petitioner is a suspended Judicial Officer, it is highly unlikely that he would seek to abscond. Read More... OTHER RELEVANT JUDGMENTS PASSED BY VARIOUS COURTS UNDER VARIOUS LAWS The Hon’ble Supreme Court held that a citizen has right to criticize the Government as long as he does not incite people to violence The Hon’ble Supreme Court pronounced a judgment in the case titled ‘Vinod Dua v. Union of India’., wherein it quashed the sedition case registered against Journalist Vinod Dua by holding that a citizen has a right to criticize or comment upon the Government or on the measures undertaken by the Government and its functionaries so long as he does not incite violence against the Government or with the intention of creating public disorder. In the judgment, the Court observed that it is only when the words or expressions have a pernicious tendency or intention of creating public disorder that Section 124A of the Indian Penal Code is attracted.  The Court also rejected the plea to constitute Committees to hold preliminary inquiries before lodging sedition cases against senior journalists as that would amount to encroachment of the field reserved for the legislature. The Hon’ble Court however clarified that every journalist is entitled to protection under 1962 Kedar Nath Judgment. It added that every prosecution under Section 124A and 505 of IPC must be in strict conformity with scope and ambit of the said section as explained in and completely in tune with the law laid down in the Kedar Nath Judgment Read More... The Hon’ble Bombay High Court granted ad-interim relief in favour of “DR FIXIT” marks and labels of Pidilite Industries in Trademark Infringement Suit The Hon’ble Bombay High Court in Pidilite Industries Ltd. v. O-Chem Sealers Pvt. Ltd. granted an ad-interim injunction restraining the defendant from using any marks or designs infringing the plaintiff’s registered marks and designs such as ‘DR FIXIT’, ‘LW’, ‘LW+’, and ‘URP’. The Plaintiff’s grievance was about how the Defendants have wrongfully used not only the LW, LW/LW+ labels, the URP mark but also attempted to pirate the design-protected DR FIXIT container. The Petitioner submitted that if, for instance, it is found even prima facie that there is no meaningful distinction between the design of the Defendant's container and the Plaintiff's DR FIXIT container, then the question of bona fides in adoption of the marks and similarity of the labels will inform the discussion in regard to trade mark and copyright violations. Thus, the Hon’ble Court observed that there was a very strong prima facie case made out both in infringement and passing off for all three forms of intellectual property that the Plaintiff sought to protect. There was no valid justification for the Defendants’ adoption of the marks, use of the labels and use of the container. Read More... IMPORTANT NOTIFICATIONS/ORDERS PASSED BY THE COURTS/TRIBUNALS IN VIEW OF THE OUTBREAK OF COVID-19 AND LOCKDOWN DECLARED BY THE CENTRAL / STATE GOVERNMENT IN VARIOUS STATES The Hon’ble Supreme Court of India released a circular regarding mentioning of matters The Hon’ble Supreme Court of India issued a circular on 24.06.2021 regarding mentioning of matters either by the Advocates-on-record or parties-in-Person may mention their matters both physically or virtually with effect from 05.07.2021. Read More...   NEW DELHI X -3, Green Park Main, New Delhi, 110016, Telephones: +91 11 2652 0041-42 For further / specific information, please contact us at: info@tandonandco.com Disclaimer: The contents of this newsletter are intended for information purposes only, and parts of this newsletter are based on news reports and have not been independently verified. 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