A strenuous task of #vaccinating over billions of people lies on India’s shoulders. In furtherance of this, the Centre-led two-day dry run of the #COVID19 Vaccination Programme has been concluded on 29th December 2020 in four states, i.e., Krishna district of Andhra Pradesh, Ludhiana and Shaheed Bhagat Singh Nagar (Nawanshahr) in Punjab, Rajkot and Gandhinagar in Gujarat and Nalbari District in Assam.

In order to facilitate a more systematic roll out of the Vaccine, the Union Health Ministry has developed a digital platform, including an Application called #CoWin, for real-time monitoring of COVID-19 Vaccine delivery, recording data and to enable people to get themselves registered for Vaccination.

A “dry run” or practice run is a testing process aimed at analysing the preparedness and possible loopholes in the planning and preparation of the COVID -19 Immunization Program. This would help to mitigate the possible failures. In this process, a complete testing of the system mimicking all components of the actual process is undertaken before it is delivered to the actual end-users. The goal of this exercise is to enable an end-to-end mobilisation and testing of Vaccination process (except the actual vaccine) and check the usage of CoWIN in-field environment.

While India is all set to roll out the COVID-19 Vaccine in January,2021, it has to be wary of a possible misuse of the situation via circulation of a counterfeit vaccine. In this regard, a Public Interest Litigation (PIL)has been filed before the Supreme Court seeking the following directions:

  • Centre to issue strict guidelines under the Disaster Management Act 2005 to prevent selling of fake and counterfeit vaccine for COVID-19. 
  • Constitution of a special committee to prevent such selling and advertising by organisations, companies or online applications, and
  • Directions to the Centre to run an awareness program to educate citizens against the danger of counterfeit vaccination.

Meanwhile, a global warning has been issued by International Criminal Police Organisation (INTERPOL) asking law enforcement agencies to equip themselves to prepare an “onslaught on all types of criminal activity linked to COVID-19 vaccine” as these networks would be targeting unsuspecting members of the public with the lure of false cures which can pose a significant risk to their lives. India too needs to be well equipped to cope up with COVID crimes that can penetrate its vulnerable market of a billion people.


Intern at The Indian Lawyer

LLM (IADR) student at National University of Singapore


In a reference of a case V. Padamakumar vs. Stressed Assets Stabilization Fund (SASF) & Anr [CA (AT)(Ins)No. 57/2020] (V. Padma Kumar Case) by the Three Members Bench to  the Five Members Bench of National Company Law Appellate Tribunal, New Delhi (#NCLAT), vide its Judgment dated 22.12.2020 in the case of Bishal Jaiswal v. Asset Reconstruction Company (India) Ltd and Anr [CA (AT) (Ins) No. 385/2020] opined and held that Judgment rendered by Five Hon’ble Members of NCLAT in the Case of V. Padma Kumar Case, do not require reconsideration with respect to whether reflection of debt in a balance sheet is ‘acknowledgement of #debt’ for the purpose of Section 18 of the #Limitation Act 1963 (Limitation Act).

In V. Padama Kumar Case (Supra) wherein the issue was considered explicitly by the Five Hon’ble Members of the NCLAT and it was held that the Books of Accounts are to be prepared as per Section 92 of the Companies Act, 2013. Therefore, it cannot amount to an acknowledgement under Section 18 of the Limitation Act. The acknowledgement to extend the period of limitation should be voluntary and cannot be given under the compulsion of law or with the threat of any penalty or punishment.

Brief facts of the instant case are that the Corporate Power Ltd (Corporate Debtor) had availed the loan from the Infrastructure Finance Co. Ltd., (Consortium Lenders or Banks) for setting up 1080 MW coal-based plant at Chandwa of Latehar District in the State of Jharkhand in two phases. The Corporate Debtor has availed loan facilities aggregating to Rs.5997,80,02,973/- (Rupees Five Thousand Nine Hundred Ninety-Seven Crore Eighty Lakhs Two Thousand Nine Hundred Seventy-Three only) from Consortium Lenders and loan agreements have been executed between the Corporate Debtor and the Consortium Lenders.

However, the Corporate Debtor failed to repay the dues under the facilities granted by the Banks. The Banks had assigned the debt in favour of Asset Reconstruction Company (India) Ltd (Financial Creditor). Therefore, the Financial Creditor has filed the Application under Section 7 of the Insolvency and Bankruptcy Code 2016 (IBC).

NCLT Decision: The National Company Law Tribunal, New Delhi (NCLT) has admitted the Application on the ground that the debt and default are not under-challenge and with respect to the issue of limitation of the said Application it observed that in the Balance Sheet the Corporate Debtor, admitted its liability, which was signed prior to the expiry of three years from the date of default. It is an acknowledgement of debt in terms of Section 18 of the Limitation Act and is therefore, not barred by Limitation. Being aggrieved with the said decision the Corporate Debtor filed the Appeal before the NCLAT.

NCLAT– During the course of arguments before the Three Member Bench of NCLAT (‘Referral Bench’), a Judgment rendered by Five Hon’ble Members of NCLAT in V. Padma Kumar Case (Supra) has been cited. After hearing the contentions of the Parties the NCLAT referred the matter to a Bench of Five Hon’ble Members of NCLAT for reconsidering its Judgment inV. Padma Kumar Case (Supra).

In this view, the Five Hon’ble Members of NCLAT, vide its Judgment dated 22.12.2020 rejected the Referral Bench Order dated 25.09.2020 for reconsideration of the Judgment inV. Padma Kumar. It observed that NCLAT is not a Constitutional Court. It is the creation of a Statute viz. Companies Act, 2013. Therefore, the NCLAT has to apply the law as laid down by the Hon’ble Supreme Court of India and as embodied in the Statutes.

The NCLAT found the reference as incompetent for the following reasons:

  1. That the Referral Bench failed to take note of the fact that the Judgment rendered in ‘V. Padmakumar’s Case’ was passed with a majority of 4:1 on the basis of the authoritative pronouncements and binding precedents of the Hon’ble Supreme Court.
  2. The Bench observed that the whole mechanism of triggering of corporate insolvency resolution process (CIRP) revolves round the concept of ‘debt’ and ‘default’. Once debt and default are established, the Financial Creditor, the Operational Creditor or the Corporate Person can initiate the CIRP by filing application under Sections 7, 9 or 10 of IBC. The date of default is extendable within the ambit of Section 18 on the basis of an acknowledgement in writing made by the Corporate Debtor before the expiry of period of limitation.
  3. In “Jignesh Shah & Anr. vs. Union of India & Anr., (2019)10 SCC 750”, the Hon’ble Apex Court, after noticing various judgments, observed that when time begins to run it can only be extended in the manner provided in the Limitation Act.
  4. The NCLAT then referred to the various Supreme Court Judgments to state the circumstances in which a reference of a case will be competent. The noticed that in “Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr.”, (2005) 2 SCC 673, it was held that a Bench of co-equal strength can only express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength.
  5. In “Keshav Mills Co. Ltd. vs. CIT (1965) 2 SCR 908”, it was held that nature of infirmity or error would be one of the factors in making a reference. Also referred to the case of “Supreme Court Advocates on Record Association vs. Union of India, (2016) 5 SCC 1”.
  6. In ‘Sub-Inspector Rooplal & Anr. Vs. Lt. Governor & Ors.’ (2000)1 SCC 644, it was observed that the judgments of coordinate benches are binding on the Tribunal. Judicial discipline required that the Tribunal follow such judgments.

Therefore, the Bench after considering the aforesaid circumstances and various other Judgments of the Supreme Court held that the Judgment in V. Padmakumar’s Case’ was passed based on the various judicial and binding precedents of the Supreme Court as a settled law on the subject. It is settled that a coordinate bench of a court cannot pronounce a judgment contrary to declaration of law made by another bench therefore it is a matter of judicial discipline for the Referral Bench to follow the Judgment of the Five Members Bench in ‘V. Padmakumar’s Case’ as a binding precedent.

Lakshmi Vishwakarma


The Indian Lawyer & Allied Services


The #DelhiHighCourt has in a recent case of Reena Gambhir Vs Central Bank of India and Ors. (W.P.(C) 10276/2020 & W.P.(C) 10325/2020) passed a Judgement dated 22.12.2020 upholding the decision of #Debt Recovery Appellate Tribunal (#DRAT) and stating that the Banks have the power to initiate proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (#SARFAESI Act) and take over possession of the #property if the dues are not duly paid.

The Respondent No. 2 and 3 (Debtor) herein had taken financial assistance from the Respondent No. 1- Central Bank against collateral security/mortgage of two of their properties – a Residential Flat and a piece of Land located at Kartarpur, Rajasthan (Mortgaged Properties), the title of which was to be perfected. The Petitioner-Guarantor gave an unconditional guarantee for the said Loan. The Debtor intended to use the former Property, i.e. the Flat as an “interim security” till the other Property, i.e. the Land was perfected. On this representation, a sanction of Rs. 20.6 Crore (Loan) was extended to the Debtor and a time limit of up to 30.11.2013 was granted to perfect their Land.

Thereafter, the Debtor’s account turned into a non-performing asset (NPA) and the Respondent issued a notice under Section 13(4) of SARFAESI Act and initiated further steps to take over possession of the Mortgaged Properties under Section 14 of SARFAESI Act.

The Respondent-Bank filed an Application before the Debt Recovery Tribunal (DRT) III, Delhi, which was dismissed. Then a second Application was filed by the Respondent-Bank at DRT II, Delhi which held that the securities offered by the Debtor was only a stopgap arrangement till the mortgaged Land was perfected. The Bank challenged the DRT Order before DRAT, which held as follows:

  • The Guarantee Deed given by the Debtor did not contain any clause stating that the guarantee was only given as a stopgap arrangement.
  • The DRAT also held that there is nothing on record to show that any sort of assurance was given by the Respondent-Bank to the Debtor that the security given was only a stopgap arrangement.
  • The DRAT further held that when the notice under Section 13(2) and 13(4) of the SARFAESI Act was issued by the Respondent-Bank and when O.A. 157/2018 was filed for recovery of debt, the securities given by the Respondents No. 2 and 3 had not been perfected. Thus, there was nothing to show that the Respondent No 1-Bank had agreed to replace the Mortgaged Properties with any other security.

Challenging the said DRAT Order, a writ petition was filed before the Delhi High Court.

The Delhi High Court while taking cognizance of the facts of the case held that:

  • There is nothing in the guarantee given by the Petitioner which indicates that such guarantee was offered only as an interim arrangement only .The defects were not rectified and nor were the securities perfected before the stipulated deadline given by the Respondent-Bank.
  • Notice under Section 13(2) was given but the Debtor did not clear the dues of the Respondent-Bank. The Respondent-Bank, therefore, cannot be faulted for taking over possession of the Petitioner’s properties. The fact that the security was perfected after proceedings were initiated before DRT-III, cannot absolve the Petitioner of her liability.
  • The purpose of legislating the SARFAESI Act is to enable banks and financial institutions to recover the money due to them by exercising the powers to take over possession of securities, sell them and reduce the NPAs by adopting measures for recovery and reconstruction. The Respondent-Bank cannot be faulted for taking further steps to auction the property given by the Petitioner as a security. In any event, the Petitioner has given an unqualified guarantee to repay the amount taken by the Debtor and the said guarantee is co-extensive to the liability of the principal borrower.
  • It cannot be said that the orders of the DRAT is so perverse that it would warrant interference under Article 227 of the Constitution of India. The High Court elicited the well settled principle  that the supervisory jurisdiction under Article 227 of Constitution of India is exercised to keep the subordinate courts within the bounds of the jurisdiction. It is not available to correct errors of facts or law unless it can be shown that the error is manifest and apparent on the face of the proceedings. It is equally settled that the High Court in exercise of its supervisory jurisdiction under Article 227, cannot convert itself into a court of appeal and indulge in re-appreciation or re-evaluation of the evidence or correct the errors in drawing inferences.

Thus, the Delhi High Court upheld the DRAT Order and the auction-sale of the Petitioner-Guarantor’s properties.

Pooja Singh


The Indian Lawyer


The Three Judge Bench of the Hon’ble Supreme Court of India comprising of Justices Dr. Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee passed an Order dated 14-12-2020 in the case of DLF Home Developers Ltd. and Another v. Capital Greens Flat Buyers Association Etc. Etc. (Civil Appeal Nos. 3864-3889 of 2020) and held that an offer by the #Developer-Appellant to #refund the consideration amount of an #apartment shall not disentitle the #flatpurchasers from claiming #compensation for the inordinate #delay caused by the Developer in handing over the timely possession of the flat.

In the present case, the National Consumer Disputes Redressal Commission (NCDRC) had passed a Judgment dated 03-01-2020, wherein Complaints were filed by an Association representing the flat purchasers, called the Capital Greens Flat Buyers Association and by individual flat buyers (Respondents) against the Appellant. There was a substantial delay in handing over the possession of the apartments and as a result of which the flat buyers claimed a compensation for the delay caused in handing over the possession of the flats. In the NCDRC, the Developer (Appellant) contended that they could not deliver the possession on time due to certain Force Majeure conditions. The NCDRC allowed the Complaints filed by the flat purchasers and directed the Appellant to pay compensation in the form of simple interest @ 7% per annum from the expected date for delivery of possession till the date on which the possession was actually offered.

Aggrieved, the Appellant file an Appeal in the Hon’ble Supreme Court of India on the following grounds:

  1. The Appellant could not deliver the timely possession of the apartments as it could not fulfil its contractual obligations due to certain Force Majeure conditions;
  2. That the Appellant had given exit offers to the flay buyers on two occasions. Firstly, when the Appellant admitted to the fact there is a delay beyond the contractual period of thirty six months and secondly, when the Appellant had offered refunds of the consideration together with interest @ 9% per annum;
  3. 45% of the flat buyers in the project have sold away their apartments;
  4. The flat buyers have the benefit of an appreciation in the capital value of the apartments purchased;
  5. The Appellant has extended the benefit of other contractual terms.

The Respondents contended that the Judgment passed by the NCDRC against the Appellant for the payment of compensation is justified since the Appellant has inordinately delayed the completion of the Project beyond the contractual period of thirty-six months.

Taking into consideration the contentions raised by the Parties to the dispute, the Apex Court on the issue of Force Majeure held that a delay in the approval of building plans is a normal incident of a construction project. The Appellant must be aware of these delays and cannot take up this defense and delay the completion and handing over of the possession as per the contractual period stipulated in the Builder Buyer Agreement. Further, in the present case, the Court observed that the fatal accidents that took place at the site were due to a failure of the Appellant to take proper safety measures. Hence, the Court concluded that the Appellant cannot take up the defense of Force Majeure conditions.

Furthermore, on the aspect of exit option given by the Appellant, the Supreme Court observed that merely an exit option has been offered by the Developer, it would not disentitle the flat purchasers from claiming compensation. The Court held the following:

“For a genuine flat buyer, who has booked an apartment in the project not as an investor or financier, but for the purpose of purchasing a family home, a mere offer of refund would not detract from the entitlement to claim compensation. A genuine flat buyer wants a roof over the head. The developer cannot assert that a buyer who continues to remain committed to the agreement for purchase of the flat must forsake recourse to a claim for compensation occasioned by the delay of the developer. Mere refund of consideration together with interest would not provide a just recompense to a genuine flat buyer, who desires possession and remains committed to the project.”

Partly allowing the Appeal, the Apex Court passed the following directions:

  1. The Judgment passed by the NCDRC is upheld, however, the Order passed by the NCDRC for refund of parking charges and club charges and interest on these two shall be set aside.
  2. The compensation on account of delay in handing over the possession of the flats to the flat purchasers shall stand reduced from 7% to 6%.
  3. These directions have to be complied with within 2 months from the date of the Order.

Suchitra Upadhyay


The Indian Lawyer & Allied Services


The Special Judge (SPE/CBI), Thiruvananthapuram has passed a verdict in the infamous #SisterAbhaya #Murder case, namely, Central Bureau of Investigation (CBI), ACB, Cochin vs Father Thomas Kottoor and Sister Sephy. The Special #CBI Court passed a Judgment dated 23-12-2020 and held Father Thomas Kottoor (the Accused 1) and Sister Sephy (the Accused 3) guilty of committing murder of Sister Abhaya (the Deceased) and other offences under the Indian Penal Code 1860 (#IPC), 28 long years after the incident happened.

In this case, the Deceased, aged 21 years, was a Nun and an inmate of St. Pius X Convent Hostel, Kottayam, Kerala. On 27-03-1992 morning, she was found dead inside the Convent, where she was staying with other nuns and students and her body was recovered from a well (Incident).

Police investigation- On the same day, a First Information Statement (FIS) was lodged with the Police under Section 174 of the Code of Criminal Procedure 1973 (CrPC) for unnatural death.

Crime Branch investigation (around 1 year)- Thereafter, the investigation was transferred to the Crime Branch, Kottayam around 07-04-1992. Upon investigation, the Crime Branch concluded around 30-01-1993 that it was a case of suicidal death by drowning.

CBI First Investigation (around 2 years)- But upon request by the family members of the Deceased and on public demand, the case was transferred to the Central Bureau of Investigation (CBI), Delhi on 29-03-1993. Upon conducting investigation for around 2 years, the CBI reported on 05-12-1996 that they could not confirm if the death was suicidal or homicidal. But the Chief Judicial Magistrate, Ernakulam (CJM) directed the CBI to conduct further investigation.

CBI Second Investigation (around 2+ years)- Upon further investigation, the CBI, Delhi reported around 12-07-1999 that it was a case of homicidal death, but that they could not identify the accused. But the CJM directed the CBI to reopen the investigation around 23-06-2000.

CBI Third Investigation (around 5 years) – Thereafter, the investigation was transferred to CBI, Cochin, which submitted its Report around 25-08-2005 and requested the CJM to close the matter as an untraced one. But the CJM refused to allow the said request vide Order dated 21-08-2006.

CBI Fourth Investigation (around 5 years) – Thereafter, CBI Cochin conducted further investigation and laid down a Final Report dated 17-07-2009, thereby, arraying three persons as accused, namely, Accused 1, who was a Priest and Lecturer of Psychology at BCM College, Kottayam; Father Jose Poothrikkayil (Accused 2), also a Priest and Lecturer at BCM College, Kottayam; and Accused 3, who was a nun residing at St. Pius X Convent Hostel along with the Deceased and other nuns. All three Accused were charge-sheeted.

Later, the Accused 2 was discharged by the Court and the trial began against Accused 1 and 3 before the Special CBI Court on 05-08-2019.

Prosecution – It has been alleged by the Prosecution that the Deceased had seen the Accused 1 in a compromising position with the Accused 3 in the latter’s Hostel room on 27-03-1992 around 4.15 AM. Therefore, in order to silence her, the Accused had hit on the back of the Deceased’s head with an axe kept in the kitchen. Thereafter, when the Deceased fell unconscious, the Accused in their attempt to dispose of her body and cause disappearance of the evidence, they carried her body to the terrace and threw her in the well.

The Special CBI Court made the following observations in this case:

1- That as per the testimony of the Autopsy Doctor, injury on the head of the Deceased was caused by a hard and blunt object. Such injury cannot be caused during movement inside water. As the body had travelled to a certain depth through the water, which establishes that there was no object to block its movement through the water and no object for the body to strike against through its movement towards the surface of the well. In fact, there is possibility of an assault on the body of the Deceased prior to its fall into the water.

2- That as per the medical evidence and testimonies of the Doctors in this case, it is established that the death of the Deceased was due to combination of head injury and drowning.

3- That Sister Abhaya was a pious and honest person, who devoted herself passionately to studies and academics. On the night of the Incident as well, she was engaged in combined study with her inmate around 4 AM. Therefore, it cannot be a case of suicidal death, as otherwise, a person bent on ending her life, would not worry about her academic prospects and deny herself sleep for the sake of improving her examination performance. Hence, the death of Sister Abhaya was homicidal.

4- Further, the following circumstantial evidence relied upon by the Prosecution establishes the charges against the Accused 1 and 3:

i) Strange disturbance in the kitchen area of the Hostel on 27-03-1992 morning, i.e. the day of the Incident. For instance, an axe lying on the kitchen floor, the Deceased’s veil, slipper and water bottle scattered in the kitchen, etc.

ii) The presence of Accused 1 in the Convent Hostel on 26-03-1992 night. This has been corroborated with the oral testimony of a thief and supporting witnesses. The thief had sneaked into the Hostel to commit thief on 26-03-1992 night and he saw Accused 1 approaching the staircase of the Hostel. The Court observed that his statement has been the same throughout the investigations, examinations and cross-examinations. The evidence of a witness who had got a criminal background is to be viewed with caution. But if such evidence gets sufficient corroboration with the evidence of other witnesses, there is nothing wrong in accepting such evidence.

iii) The presumption of innocence of Accused 3 is ruled out, as it has been established through medical evidence and her testimony that she was involved in sexual activities in the past. Though she did not admit to sexual activity with Accused 1, but the relevant facts about her sexual antecedents are connected to the allegations made in the present case. The basic test of relevancy is the logical probativeness of one to the other.

Hence, taking into consideration, the nature of the head injury suffered by Sister Abhaya that is sufficient to cause her death and the direct (not hearsay) oral evidence of the witnesses under Section 60 of the Evidence Act 1872, it is established that she was attacked by the Accused with the intention to kill.

Thus, the Accused 1 and 3 have been held guilty under the following offences and have been awarded the punishment accordingly. The said sentences of A1 and A3 would run concurrently:

1) Accused 1 and 3 have been punished with life imprisonment and a fine of Rs. 5,00,000/- has been imposed under Section 302 (Punishment for murder) r/w Section 34 (Acts done by several persons in furtherance of common intention) of IPC;

2) Accused 1 and 3 have been punished with rigorous imprisonment for seven years and a fine of Rs. 50,000/- has been imposed under Section 201 (Causing disappearance of evidence of offence, or giving false information, to screen offender) r/w Section 34 of IPC;

3) Accused 1 has been punished with life imprisonment and a fine of Rs.1,00,000/- has been imposed under Section 449 (House-trespass in order to commit offence punishable with death) of IPC.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer


The object of the #Arbitration and Conciliation Act, 1996 (the ‘Act, 1996’) is to provide an #alternative redressal mechanism to resolve the #disputes and to reduce the intervention and burden on the #courts in India. However, the Act does not specify disputes which are #arbitrable in India and it is the courts who decide this contested issue on a case-to-case basis.  

In one such case, recently the Three Judges Bench of the Hon’ble Supreme Court of India in the case of Suresh Shah vs. Hipad Technology India Private Limited [AP (Civil) No(S). 08/2020], vide its Judgment dated 18.12.2020 held that disputes pertaining to eviction or tenancy are governed by special statutes, where the tenant enjoys statutory protection against eviction. Such special statutes have also given power to specific courts/forum alone to adjudicate the disputes. Hence, such disputes are held non­-arbitrable.

In this case, Mr Suresh Shah (‘Petitioner’) has filed a petition under Section 11(5) of the Act, 1996 for the appointment of a Sole Arbitrator for resolving the disputes that have arisen between the Petitioner and Hipad Technology India Private Limited (‘Respondent’) in relation to the Sub­-Lease Deed dated 14.11.2018.

Background: The property in question (‘Property’) initially allotted and leased by the New Okhla Industrial Development Authority under a Lease dated 26.03.2003 had changed hands and the Lease was ultimately transferred in favour of the Petitioner under a Transfer Memorandum dated 13.04.2011.

The Petitioner has sub­leased the said Property to the Respondent under the Sub-Lease Deed dated 14.11.2018. Certain disputes have arisen between the Parties with respect of the said Sub­Lease. The Deed provides for resolution of disputes through arbitration vide Clause 12.  The Petitioner invoked the said Clause and issued a Notice dated 11.12.2019 to the Respondent and proposed the name of Justice (Retired) Mukul Mudgal as the Sole Arbitrator and stated that if the Respondent does not agree to the same, the Petitioner would seek appointment of Sole Arbitrator through Court. The Respondent did not respond to the Notice or raise any objection with respect to the appointment of the Sole Arbitrator. Therefore, the Petitioner filed a Petition under Section 11(5) of the Act, 1996 before this Court seeking appointment of the Arbitrator. The Court issued Notice of the Petition to the Respondent vide its Order dated 02.03.2020. Despite service, the Respondent did not appear and oppose the said Petition.

The Supreme Court noticed that the Arbitration Clause states that the Parties have agreed to secure appointment of the Arbitrator through the High Court of Delhi at New Delhi.

In this regard, the Supreme Court observed that the Petitioner is an an individual who is a national of Kenya and has entered into a contract/Deed. Since, the disputes have arisen under the said Deed, the same qualifies as an ‘International Commercial Arbitration’ as defined in Section 2(f) of Act, 1996. In such circumstance, it said that the Apex Court has to appoint an Arbitrator as provided under Section 11(6) of the Act, 1996 and not by the High Court as stated in the Deed entered into between the Parties.

The Supreme Court also pointed out that the first part of Arbitration Clause provides for arbitration of dispute relating to lease/tenancy agreements/deeds, but such Lease is governed by Transfer of Property Act, 1882 (‘TP Act’).

Issue: The Supreme Court formulated the issue as to find out whether in the instant case the dispute arising under the Sub-Lease Deed dated 14.11.2018 being governed under the TP Act, is arbitrable.

In this regard, the Petitioner contended that the tenancy in the instant case is not created nor is the leased/tenanted Property governed by a special statute, where the tenant enjoys statutory protection and as such there is no impediment for resolving the dispute through arbitration. 

Decision: The Supreme Court has taken note of the provisions contained in Section 111, 114 and 114A of the TP Act. These provisions indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant by breaching the written conditions agreed between the parties or provided in law. The Supreme Court said that it is an enabling provision as to exercise of an equitable jurisdiction in appropriate cases as a matter of discretion.

The Supreme Court also clarified that if the Parties to the Lease Deed have agreed upon the alternate mode of dispute resolution such as arbitration, then the landlord would be entitled to invoke the arbitration clause and make a claim before the Learned Arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the Arbitrator who would take note of the same and act in accordance with the law and pass the award.

The Supreme Court concluded that insofar as matters related to eviction or tenancy that are governed by special statutes, where the tenant enjoys statutory protection against eviction and wherein the Court/Forum is specified and jurisdiction is conferred, such matters would be adjudicated under the said special statute alone. Therefore, in such cases the dispute is non-arbitrable.

Similarly, if the special statutes do not apply to the premises/property and the lease/tenancy created thereunder when the cause of action arises to seek for eviction, in such transaction, if the parties are governed by an arbitration clause, then the dispute between the parties is arbitrable.

Thus, the Supreme Court held that in view of the fact that the Respondent neither replied to the said Notice nor objected to the Arbitrator proposed by the Petitioner, therefore, the Petition for appointment of Sole Arbitrator was allowed and Justice (Retired) Mukul Mudgal was appointed as the Sole Arbitrator.

Lakshmi Vishwakarma


The Indian Lawyer & Allied Services


Justice Fali S. Nariman has stated in a speech at the inauguration function of the Indian Study Centre at the George Washington University Law School in 2009 that,“ Indian sentiment (encouraged by the fraternity of lawyers) simply abhors the finality attaching to arbitral awards! Asubstantial volume of case law in India bears testimony to the long and arduous struggle to be freed from binding arbitral decisions. Try to win if you can; if you cannot, do your best to see that the other side cannot enforce the domestic or foreign award in India for as long as possible”. Eleven years hence, Indian Arbitration has certainly evolved to cope up with dynamic international standards of practice.

Arbitration Law and Amendments:

Since, its enactment in 1996, the Indian Arbitration and Conciliation Act (#ArbitrationAct) has gone through a number of #amendments to make India more international-arbitration-friendly. The most recent being the Arbitration and Conciliation Ordinance, 2020 that came into force on 4th November, 2020. It introduced the following major changes:

  1. Proviso to Section 36 (3):

Section 36 (3) provides that the court may grant stay of the operation of arbitral award.

The new Proviso to sub-section (3) provides that the court may grant an unconditional stay on the enforcement of arbitral awards, if a prima facie case is made out that there is fraud or corruption in making such award or in the arbitration agreement/contract, which forms the basis of the award.

2. Section 43J:

Section 43J provides that the norms for accreditation of arbitrators would henceforth be governed by the criteria laid down in the Regulations.

The issues that may arise pertaining to the first Amendment listed above are:

  • As per Section 34 (2) (b) Explanation (ii) of the Act, the only ground (in cases involving allegations of fraud or corruption) to refuse enforcement is where “the making of the award” is induced or affected by fraud or corruption. It does not include the ground where the basis of the award itself is induced by fraud or corruption. Therefore, one might argue that if the new ground is not available for setting aside an award under Section 34, then how can it be available to an applicant seeking a stay of its enforcement under Section 36 (3).
  • Another interesting point to note is that if any agreement or contract is affected by fraud or corruption, it is a matter that will be brought up by the parties before the arbitral tribunal itself and in most cases the tribunal will look into it in great detail. Therefore, a situation may arise where second guessing a tribunal’s reasoning maybe contrary to 34 (2A) proviso which states that “an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence”.

The Explanation to the new Proviso to Section 36(3) of the Act makes it abundantly clear that the said Proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after 23rd October 2015. This is in conformity with the decisions in BCCI v Kochi Cricket Pvt. Ltd. (2018) 6 SCC 287 andHindustan Construction Co. Ltd v UoI 2019 SCC OnLine SC 1520, where Section 36 of the Act was held to be retrospective in its applicability. Hence, the 2020 Amendment, settles the debate from a procedural aspect by formally acknowledging the maintainability of an application for stay of enforcement on the grounds mentioned in the newly added Proviso to Section 36(3) of the Act, irrespective of when that application was filed.

Here an issue may arise thatwhere an application under Section 36(2) of the Act is already pending adjudication before a court, the applicants will now have to make fresh applications based on the grounds listed in the new Proviso. This is likely to involve delays and increased costs unless the courts can sua sponte take notice of this new Proviso and dispense with the filing of fresh submissions.


The year 2020 witnessed some very interesting judgements in the field of arbitration law in India, few of which are stated below:

1- Arbitrability of dispute

a) The Supreme Court in the case of Vidya Drolia Vs Durga Trading Corporation (CA 2402 of 2019), while overruling the Delhi High Court Judgement in HDFC Bank Ltd vs. Satpal Singh Bakshi, 2012 held that disputes which are to be adjudicated by the Debt Recovery Tribunal under the DRT Act is non arbitrable.

Referring to the case of Transcore Vs UOI, 2006 SCthe Apex Court held that as far as recovery of debt is concerned, the DRT Act is a complete code in itself. Therefore, where a statute does not create a special right or liability and provides for the determination of such rights and liabilities by a specified court or public forum, then in such a case the dispute shall not be arbitrable.

The Supreme Court also overruled the Judgement in Radha Krishnan vs Maestro Engineers and held that the allegations of fraud can be arbitrable when they relate to a civil dispute. The Supreme Court while upholding the sanctity of arbitration as a dispute resolution mechanism held that “The possibility of failure to abide by public policy considerations in a legislation, which does not expressly or by necessary implications exclude arbitration, cannot form the basis to overwrite and nullify the arbitration agreement.”

b) Similarly, in the case of Avitel Post Studioz Ltd & Ors vs HSBC PI Holdings (Mauritius) Limited  (CA No. 5145 of 2016), the Supreme Court held that, for fraud to make a dispute non arbitrable must be of a very serious nature and will have to pass the twin test –it must be of such nature so as to caste a serious doubt upon the existence of an arbitration clause i.e. the court finds that the party against whom breach is alleged cannot be said to have entered into the agreement relating to arbitration at all and secondly, it must have a public law element for example allegations made against the State or its instrumentalities relating arbitrary, fraudulent, or malafide conduct. 

c) In the case of Vidya Darola and Ors vs Durga Trading Corporation (CA 2402 of 2019), the Supreme Court in its Judgement dated 14th December 2020 overruled Himangni Enterprises vs Kamaljeet Singh Ahluwalia to hold that landlord-tenant disputes under the Transfer of Property Act are arbitrable, except when they are covered by specific forums created by rent control laws.

2- The Vodafone Case, September 2020

The Vodafone Group won an International Arbitration against the Indian Government in a tax dispute of Rs 20,000 crores. The Permanent Court of Arbitration at the Hague ruled that the Indian Government’s tax demand on Vodafone is in breach of the Investment Treaty Agreement between India and the Netherlands.


The Bombay High Court upheld the tax demand of the Indian Government against the Vodafone Group which was ultimately reversed by the Supreme Court, in 2012, which absolved Vodafone of the tax liability. To overcome the verdict, the Central Government had brought an amendment to the Income Tax Act with retrospective effect. Following a fresh tax demand on the basis of the amended law, Vodafone moved the Arbitration Tribunal in 2014, invoking the India-Netherlands Bilateral Investment Treaty of 2013.

3- Seat is important

The Supreme Court in the case of Mankastu Implex Private ltd. vs Air Visual Limited, Judgement dated March 5, 2020 (AP No. 32 of 2018) held that since the arbitration was seated in Hong Kong, the petition cannot be maintainable under S 11(6) of the Arbitration Act. While reiterating that seat is an important aspect of any arbitral proceeding, the Apex Court held seat is significant as it determines the applicable law while deciding the arbitration proceedings, arbitration procedure as well as judicial review over the arbitration award.

4- Setting aside of a foreign award

In Vijay Karia v. Prysmian Cavi E Sistemi SRL & Ors., Judgement dated 13th February 2020 (C APP No 1544 of 2020) the court held that the foreign awards that fail to determine the material issues which go into the root of the matter may be set aside if it “shakes the conscience “of the court. However, the award has to read as a whole and if it addresses the basic issues and decides claims and counter claims of the parties, it must be enforced.

5- Waiver of arbitration clause

In SSIPL Lifestyle Pvt. Ltd. v. Vama Apparels (India) Private Limited & Anr. [Judgment dated February 19, 2020 in CS (COMM) 735/2018], the Delhi High Court held that the arbitration clause can be waived by a party under two circumstances – one by filing a statement of defence or submitting to the jurisdiction of a judicial authority and secondly, by unduly delaying the filing of the application under Section 8 (Power to refer parties to arbitration where there is an arbitration agreement) and not filing the same till the date by which the statement of defence could have been filed. Owing to the recent amendments in the Code of Civil Procedure 1908 (CPC) and the Commercial Courts Act, 2015, the High Court held that the limitation period for filing of written statement as prescribed in the CPC as well as Commercial Courts Act would be applicable for filing of an application under Section 8 of the Arbitration Act.

Arbitration in India has slowly but surely gained momentum with changing times. The year 2020 saw some interesting judgements and fresh perspective by the Indian judiciary with respect to arbitration. We may expect to see many more interesting developments in 2021 especially owing to the latest developments in the Arbitration Act.

Pooja Singh

Student at National University of Singapore

Intern at The Indian Lawyer & Allied Services


The Three Judge Bench of the Hon’ble Supreme Court of India comprising of J. Dr. Dhananjaya Y Chandrachud, J. Indu Malhotra and J. Indira Banerjee passed a Judgment dated 15.12.2020 in the case of Smt. S Vanitha v. The Deputy Commissioner, Bengaluru Urban District & Ors. {Civil Appeal No.3822 of 2020 (Arising out of Special Leave Petition (C) No. 29760 of 2019}) and held that provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (#SeniorCitizens Act) cannot be invoked by in-laws to evict their #daughterinlaw as it would deprive her of rights in a shared household under the Protection of Women from Domestic Violence Act, 2005 (#DomesticViolence Act).

In the present case, the Appellant got married with the Fourth Respondent on 30.05.2002. Thereafter, due to certain matrimonial disputes, the Fourth Respondent-estranged Husband filed for divorce in 2009. The Second Respondent filed a Suit for Permanent Injunction on 17.08.2020 and sought to restrain the Appellant from interfering with the possession of a residential house (Premises) owned by the Respondent-Mother-in-Law. This Suit is pending.

Thereafter, the marriage between the Appellant and the Fourth Respondent got dissolved on 05.12.2013 by the Trial Court and the Appellant filed a Suit for Maintenance on 19.03.2014. The proceedings for maintenance are pending.

But the Appellant filed an Appeal against the Decree for Dissolution of Marriage before the Division Bench of the Karnataka High Court on 14.01.2016, which set aside the Order of the Trial Court and remanded the case back to the Family Court. During the pendency of the Appeal, the Fourth Respondent entered into a marriage with another woman. The said proceedings for divorce are pending.

Subsequently, the Third and Fourth Respondent moved an Application before the Assistant Commissioner, Bengaluru in 2015 under the Senior Citizens Act and sought for maintenance from the Fourth respondent and for eviction of the Appellant from the Premises.

The Appellant objected to the Application on the ground that it was a malicious proceeding and that the sole intent behind the same was to evict her from the Premises. Further, the Appellant raised an objection to the jurisdiction of the Authorities to entertain the proceedings. The Appellant also contended that the Senior Citizens Act provides for the maintenance of a senior citizen or a parent and that there is no such provision for eviction, and the Authorities had no jurisdiction to order her eviction form the Premises. But both the Assistant Commissioner, Bengaluru and the Deputy Commissioner, Bengaluru District allowed the said Application.

Aggrieved, the Appellant filed a Writ Petition under Article 226 of the Constitution of India before the High Court of Karnataka, whereby the Single Judge and thereafter, the Division Bench of the High Court passed Orders directing eviction of the Appellant.

Aggrieved by the said Orders, the Appellant filed a Special Leave Petition under Article 136 of the Constitution in the Hon’ble Supreme Court of India and contended that in view of the protection afforded by Section 17 of the Domestic Violence Act, she cannot be evicted from the residential house. She further challenged the jurisdiction of the Authorities who have ordered the Appellant’s eviction under the Senior Citizens Act, 2007.

Taking the arguments of the Parties into consideration, the Apex Court held that “The Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent.

The Supreme Court further noted that provisions of Section 3 of Senior Citizens Act shall have effect notwithstanding anything contained in any other law and as per the Rules of statutory interpretation, if two special Acts contain non obstante clauses, the latter law shall prevail. However, in the event of a conflict between the special Acts, then the dominant purpose of each enactment will have to be analysed and taken into consideration in order to ascertain as to which Act shall prevail.

The Apex Court held that “Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law particularly that of a womans right to a shared household under Section 17 of the PWDV Act 2005. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her estranged spouse (Fourth respondent) is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the PWDV Act 2005.”

The Apex Court passed a direction to set aside the Impugned Order and Judgment dated 17.09.2019 of the Division Bench of High Court of Karnataka. Secondly, the Supreme Court stated that it is open for the Appellant to pursue her remedies under the provisions of Protection of Women from Domestic Violence Act, 2005 including interim protections.

Suchitra Upadhyay


The Indian Lawyer & Allied Services


The Supreme Court has in a recent case of Samir Agrawal vs Competition Commission of India and Others passed a Judgment dated 15-12-2020 and held #Ola and #Uber #Cab Aggregator Companies not guilty of facilitating #cartelization or anti-competitive practices.

In this case, the Appellant, Mr. Samir Agrawal, had sought the Competition Commission of India (CCI) to inquire into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd. (Ola), and Uber India Systems Pvt. Ltd., Uber B.V. and Uber Technologies Inc. (Uber). He alleged that both Ola and Uber have entered into price-fixing agreements in contravention of Section 3 of the Competition Act 2002 (the Act). Further, that Ola and Uber Apps are designed in a manner that the rider and the driver do not have the discretion to negotiate on the pre-calculated fares. Thus, the pricing algorithm fixed in the Apps takes away the freedom of the rider and the driver to choose the best price based on competition. Therefore, Ola and Uber have a greater bargaining power than the rider, which enables them to implement price discrimination and charge less or more based on rider’s willingness to pay. Thus, this conduct shows that that the Ola and Uber Apps function like a trade association, thereby facilitating the operation of a cartel.

As per Section 2 of the Act, “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services.

As per Section 3 (1) of the Act, no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

As per Section 3 (3) (a), any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which— (a) directly or indirectly determines purchase or sale prices, such agreement shall be presumed to have an appreciable adverse effect on competition.

The CCI conducted an inquiry under Section 26 of the Act and passed an Order dated 06-11-2018. The CCI held that existence of an agreement or arrangement or meeting of minds, is a pre-essential condition for establishing anti-competitive practices under Section 3 of the Act. But in this case, there is no such agreement between the drivers inter-se or between the Cab Aggregators and the drivers, to set prices on the platform. When a rider books a ride, an anonymous driver available in the nearest location accepts the ride and thus, there is no opportunity to the driver to collude with other drivers. Hence, such an activity cannot amount to cartelisation.

Being aggrieved by the CCI Order dated 06-11-2018, the Appellant herein filed an appeal before the National Company Law Appellate Tribunal (NCLAT), which passed a Judgment dated 29-05-2020. In the said Judgment, the NCLAT held that there is no exchange of information between Ola and Uber and their drivers or their drivers inter-se about commuters, their earnings, etc. Further, the rider and the driver have the choice to accept a ride based on price and other factors or choose alternative mode of transport. Therefore, it is established that the Cab Aggregators do not function as an association of its driver partners. Thus, the NCLAT held that there cannot be any collusion between the drivers inter-se or between the Companies in this case. Aggrieved by the NCLAT Judgment dated 29-05-2020, the Appellant herein filed an appeal before the Supreme Court.

The Apex Court held that Ola and Uber are distinct entities operating independently of each other. The drivers also act independently of each other. There is no agreement or evidence to show that they have colluded for price-fixing. Thus, the Supreme Court passed a Judgment dated 15-12-2020 and upheld the decisions of CCI and the NCLAT to the extent that Ola and Uber do not facilitate cartelization or anti-competitive practices between themselves or between drivers inter-se.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer


The Government of India vide Notification S.O. 1205 (E) dated 24.03.2020 (“Notification“) raised the minimum #threshold of #default amount to Rs. 1 Crore, from the earlier amount of Rs. 1 Lakh, in order to trigger Corporate Insolvency Resolution Process (“#CIRP“) under the Insolvency and Bankruptcy Code, 2016 (“#IBC“).

The purpose was to prevent large-scale insolvency proceedings, especially against micro, small and medium enterprises (MSMEs), as they are undergoing financial stress caused by the Pandemic. The Notification comes into force with effect from 24.03.2020, which makes it clear that the object of the increased threshold is also in line with the object of the IB (Amendment) Ordinance, 2020 regarding suspension of fresh insolvency proceedings for a period of 6 months. The Ordinance further makes it clear that it applies only to those defaults arising on or after 25.03.2020.

Recently, the Hon’ble National Company Law Tribunal (“NCLT“), Kerala in the case of M/s Tharakan Web Innovations Pvt. Ltd v. Cyriac Njavally [IBA/34/KOB/2020], vide its Order dated 01.12.2020 ordered that the Notification increasing the threshold with respect to CIRP is prospective in nature and does not apply to the defaults arising before 25.03.2020.

In this case Cyriac Njavally(‘Operational Creditor’) filed an Application under Section 9 of IBC against M/s Tharakan Web Innovations Pvt. Ltd (‘Corporate Debtor’) on 07.03.2020. The debt became due on 06.07.2019. The Operational Creditor therein had sent a Demand Notice under Section 8 of the IBC to the Corporate Debtor demanding payment of Rs. 31,33,595/- on 25.02.2020. But no reply raising any dispute has been received by the Operational Creditor within the stipulated statutory period of 10 days from 25.02.2020.

In this regard, the Corporate Debtor had also moved an Application numbered as IA/175/KOB/2020 in IBA/34/KOB/2020 under Rule 32 of the NCLT Rules, 2016 challenging the maintainability of the said Section 9 Petition, in view of the Notification dated 24.03.2020.

The issues before the NCLT, Kerala was whether the modification in IBC threshold with respect to CIRP is prospective in nature?

The Bench of NCLT, Kerala analyzed the facts of the case and observed that it is evident that despite the expiry of 10 days from the date of service of the Demand Notice, the Corporate Debtor failed to dispute or repay the due amount to the Operational Creditor. This clearly indicated that the Corporate Debtor is not able to pay its debts taken in the normal course of business. That the Operational Creditor filed the Application under Section 9 IBC only after waiting for 10 days from the service of Demand Notice.

However, the Corporate Debtor contented that the Application was filed on 07.03.2020 by the Operational Creditor, which is not maintainable in view of the fact that the Corporate Debtor received the Demand Notice only on 02.03.2020. Therefore, the mandatory period of 10 days to object to the Notice or repay the alleged debt had not elapsed. Further, the admitted date of initiation of the proceedings on the part of the Operational Creditor is 25.09.2020 and the claim is Rs. 25 Lakhs. Therefore, this Application is clearly hit by Section 4 of IBC as the minimum amount of debt required to file an Application now stands enhanced to Rs. 1 Crore, and that the Application is to be dismissed.

On the other hand, the Operational Creditor contented that the Application dated 07.03.2020 was filed on 25.09.2020 for a default that occurred before 24.03.2020.

In this regard, NCLT referred to the Hon’ble NCLAT Order dated 12.10.2020 in Madhusudhan Tantia VS. Amit Choraria and Anr. [CA (AT) (Insolvency) No. 557/2020] holding that the said Notification is only Prospective in nature’ and not a retrospective’ one because of the simple reason that the said Notification does not expressly provide for retrospective or ‘retroactive’ applicability.

In this view, the NCLT observed that the debt has become due on 06.07.2019 as per the Application filed under Section 9 of IBC. It further noted that the Demand Notice demanding payment of Rs. 31,33,595/- was sent to the Corporate Debtor at its Registered Office on 25.02.2020. However, the Respondent/Operational Creditor did not receive any repayment or reply within the stipulated period of ten days from 25.02.2020.

Therefore, the NCLT did not accept the contentions of the Corporate Debtor as the Insolvency Application was filed 10 days after the Demand Notice was sent. Further, the Notification dated 24.03.2020 is prospective in nature and does not apply to the defaults that have occurred on or before 24.03.2020.

Therefore, since the Section 9 Application under IBC has been filed by the Operational Creditor after complying with the statutory provision under Section 8 of IBC against the default of Rs. 31,33,595/- that has occurred before 24.03.2020, the Application is maintainable. Hence, IA/175/KOB/2020 challenging the maintainability of the Application in view of the Notification dated 24.03.2020 was dismissed by the NCLT.

Lakshmi Vishwakarma


The Indian Lawyer & Allied Services