ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity Paras 30, 31, 32, 33, 43 Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment – Validity

Paras 30, 31, 32, 33, 43

Sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager – Said authority falls within categories of Seventh Schedule – Person ineligible to act as arbitrator cannot nominate another arbitrator – Appointment of sole arbitrator held invalid – Arbitrator lacked inherent jurisdiction to pass award – Held, award without jurisdiction and non est.

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ARBITRATION – Section 12(5) r/w Seventh Schedule – Ineligibility – Effect

Paras 25, 26, 33, 41, 42

Ineligibility under Section 12(5) is statutory – Person having relationship covered under Seventh Schedule becomes de jure unable to act – Mandate of such arbitrator automatically terminates – Appointment by such ineligible person is ex facie invalid – Held, arbitrator had no jurisdiction.

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ARBITRATION – Unilateral appointment – Article 14 – Equal treatment of parties

Paras 21, 23, 43

Clause permitting unilateral appointment of sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Such unilateral power violates principle of equal treatment of parties – Held, violative of Article 14 of Constitution of India.

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ARBITRATION – Waiver – Section 4 vs Section 12(5) – Distinction

Paras 36, 37, 41

Waiver under Section 4 relates to procedural non-compliance – Waiver of ineligibility under Section 12(5) requires express agreement in writing after dispute – In absence of such express written waiver, plea of waiver not sustainable – Held, no waiver in present case.

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ARBITRATION – Express waiver – Requirement

Paras 25, 36, 42

Right to object to appointment of ineligible arbitrator cannot be waived by implication – Requires clear and unequivocal express agreement in writing – In absence of such agreement, statutory ineligibility continues – Held, proviso to Section 12(5) not attracted.

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ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction of arbitrator can be raised at any stage, including collateral proceedings – Even in execution or revision proceedings such plea maintainable – Held, objection permissible.

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ARBITRATION – Execution of award – Validity

Paras 7, 32, 43

Execution proceedings based on award passed by arbitrator lacking jurisdiction – Such award being non est cannot be executed – Order of attachment founded on such award unsustainable.

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ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Arbitration proceedings and SARFAESI proceedings are cumulative remedies – Both can proceed simultaneously – One does not bar the other – Issue not pressed in view of settled law.

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CIVIL PROCEDURE – Article 227 – Scope of interference

Para 2

Civil Revision Petitions under Article 227 maintainable to examine jurisdictional errors – Where order suffers from lack of jurisdiction, interference warranted.

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Ratio

Unilateral appointment of sole arbitrator held invalid – Award without jurisdiction – No waiver – Execution proceedings unsustainable – Revisions liable to be allowed/set aside (as per final operative portion).

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...

ADVOCATEMMMOHAN: CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admissi...: advocatemmmohan CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope Paras 1, 7, 8, ...

CRIMINAL LAW – Section 354 IPC – Outraging modesty – Conviction confirmed – Revisional jurisdiction – Scope

Paras 1, 7, 8, 9, 18

Conviction of the petitioner under Section 354 IPC by the trial Court and its confirmation by the appellate Court – Challenge in revision – Scope of interference by revisional Court is limited to cases of illegality, impropriety, perversity, or miscarriage of justice – Where both Courts below recorded concurrent findings based on evidence on record and no procedural irregularity or perversity is established, revisional Court would not interfere – Held, no justification to interfere – Revision dismissed.

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EVIDENCE – Testimony of victim – Sufficiency – Corroboration

Paras 10, 11, 14, 15

Prosecution case primarily based on testimony of victim girl (P.W.2) – Statement of victim corroborated by P.Ws.1 and 3 – Minor discrepancies regarding description of act (touching entire body vs pressing particular part) explained and held not to be material contradictions – Evidence of victim found reliable – Held, testimony of victim sufficient to sustain conviction.

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EVIDENCE – Non-examination of witnesses – Effect

Para 14

Non-examination of other students who allegedly accompanied the victim – At the time of incident, other students had already left the place – Held, non-examination not fatal to prosecution case where victim’s evidence is clear and reliable.

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EVIDENCE – Ocular witnesses – Appreciation

Paras 10, 12

Trial Court disbelieved P.Ws.4 and 6 (alleged eye witnesses) – Appellate Court, however, considered their evidence and held that mere non-mention by victim does not render their testimony wholly unreliable – Conviction sustained even otherwise based on victim’s testimony and corroboration – Held, appreciation by appellate Court justified.

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CRIMINAL PROCEDURE – Section 313 Cr.P.C. – Admission of presence

Para 11, 16

Accused admitted presence of victim at his shop at relevant time in statement under Section 313 Cr.P.C. – Such admission supports prosecution case regarding presence and opportunity – Held, strengthens prosecution version.

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CRIMINAL LAW – Delay in FIR – Effect

Para 17

Delay in lodging FIR in case involving outraging modesty of minor girl in village setting – Social stigma, family prestige, and hesitation in reporting considered – Held, delay explained and does not vitiate prosecution case.

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CRIMINAL LAW – Defence plea of false implication / counter blast

Paras 12, 16

Defence plea that case is counter blast to earlier incident – Evidence shows natural conduct of family reacting to incident – No material to disbelieve prosecution case – Held, defence not substantiated.

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REVISION – Interference with concurrent findings

Paras 7, 8, 18, 19

Concurrent findings of trial and appellate Courts – No perversity, illegality, or miscarriage of justice – Revisional Court declined interference – Revision dismissed with direction to petitioner to surrender and undergo remaining sentence. 

Numbering of application — Office objections — Procedure — Execution Application filed by third party claimant seeking adjudication of right over E.P. schedule property was repeatedly returned by office without numbering — Held, when objections raised by office are not satisfied even after repeated representations, the office cannot indefinitely keep the matter unnumbered — Proper course is to place the matter before the Presiding Officer for judicial determination — Claim of party cannot be stifled at the threshold by administrative process. (Paras 12–18, 24)

 

Civil Procedure Code, 1908 — Order XXI Rule 58 — Execution — Third party claim — Numbering of application — Office objections — Procedure —

Execution Application filed by third party claimant seeking adjudication of right over E.P. schedule property was repeatedly returned by office without numbering — Held, when objections raised by office are not satisfied even after repeated representations, the office cannot indefinitely keep the matter unnumbered — Proper course is to place the matter before the Presiding Officer for judicial determination — Claim of party cannot be stifled at the threshold by administrative process.

(Paras 12–18, 24)

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Practice & Procedure — Ministerial acts vs judicial function —

Held, scrutiny by office is administrative in nature — Once objections are not resolved, decision on maintainability must be taken by Court through a speaking order — Office cannot assume adjudicatory role.

(Paras 15–17)

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Access to justice — Delay at numbering stage — Effect —

Held, indefinite return of pleadings results in denial of access to justice and may render proceedings infructuous, especially when execution proceedings are continuing — Litigant cannot be left remediless due to procedural bottlenecks at filing stage.

(Paras 18, 22–23)

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Court procedure — Limitation on number of returns —

Held, as per procedural guidelines, objections shall not be raised piecemeal and returns should not exceed three times — If objections persist, matter must be placed before Court for orders.

(Paras 16, 24)

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Execution proceedings — Protection of third party rights — Interim safeguard —

Held, where third party claim petition is pending consideration, continuation of execution proceedings may cause irreparable injury — Execution proceedings liable to be suspended till adjudication of maintainability of claim petition.

(Paras 13, 20(ii)–(iii))

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Directions —

Held, office directed to list Execution Application before Presiding Officer within one week — Court to decide maintainability after notice to parties on day-to-day basis — Execution proceedings to remain suspended till such decision.

(Para 20)

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Administrative directions — Judicial discipline —

Held, Registrar (Judicial) directed to circulate order and guidelines to all judicial officers to prevent indefinite returns and ensure proper procedural compliance.

(Paras 25–26)

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RATIO DECIDENDI

When objections raised by the office to a pleading are not resolved despite repeated returns, the matter must be placed before the Presiding Officer for judicial determination, as the office cannot indefinitely withhold numbering or assume an adjudicatory role, and such procedural delays cannot defeat a litigant’s right to have his claim decided in accordance with law.

Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction — Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction. (Paras 31–34, 43)

 

Arbitration and Conciliation Act, 1996 — Section 12(5) r/w Seventh Schedule — Unilateral appointment of sole Arbitrator — Ineligibility — Jurisdiction —

Arbitration award passed by sole Arbitrator appointed unilaterally by Finance Company through its Legal Manager — Such appointing authority having direct interest in dispute falls within ineligibility under Seventh Schedule — Held, a person who is ineligible to act as Arbitrator is equally ineligible to nominate another Arbitrator — Unilateral appointment of sole Arbitrator is invalid and violative of Article 14 — Arbitrator lacked inherent jurisdiction to adjudicate dispute — Award is non est and without jurisdiction.

(Paras 31–34, 43)

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Arbitration — Award — Executability — Lack of inherent jurisdiction —

Held, where Arbitrator lacks inherent jurisdiction due to statutory ineligibility under Section 12(5), the award itself is void and incapable of execution — Execution proceedings based on such award are unsustainable.

(Paras 32–34, 43)

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Arbitration — Section 4 — Waiver — Scope — Distinguished from Section 12(5) —

Plea that petitioner waived objection by not participating in arbitration — Held, waiver under Section 4 applies only to procedural irregularities — Ineligibility under Section 12(5) is a matter of law and cannot be waived except by express agreement in writing after disputes arise — Absence of such express agreement → no waiver — Section 4 has no application.

(Paras 36–42)

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Arbitration — Section 12(5) Proviso — Express waiver — Requirement —

Held, waiver of ineligibility must be by clear, unequivocal written agreement after disputes arise — Mere silence or non-objection does not amount to waiver — Statutory ineligibility cannot be cured by implication.

(Paras 36, 42)

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Arbitration — Jurisdictional objection — Stage —

Held, objection relating to inherent lack of jurisdiction of Arbitrator can be raised at any stage, including in collateral proceedings and execution — Such defect strikes at root and is not curable.

(Paras 27, 12, 43)

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Arbitration — SARFAESI proceedings — Co-existence —

Held, arbitration proceedings and SARFAESI proceedings are cumulative remedies and can proceed simultaneously — However, said issue not pressed in present case.

(Para 8)

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Result / Directions —

Held, unilateral appointment of Arbitrator invalid — Award suffers from lack of jurisdiction — Consequential execution proceedings including attachment order liable to be set aside — Parties at liberty to proceed in accordance with law.

(Para 43)

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RATIO DECIDENDI

A unilateral appointment of a sole arbitrator by an interested party or its official, who is statutorily ineligible under Section 12(5) read with the Seventh Schedule, renders the arbitrator devoid of inherent jurisdiction, and consequently the arbitral award is void, non est and incapable of execution, such defect not being curable by implied waiver under Section 4 and capable of being raised at any stage.

Outraging modesty of minor girl — Appreciation of evidence — Conviction — Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy. (Paras 14–15)

 

Indian Penal Code, 1860 — Section 354 — Outraging modesty of minor girl — Appreciation of evidence — Conviction —

Criminal Revision Case filed challenging concurrent findings of conviction under Section 354 IPC by trial Court and appellate Court — Prosecution case based primarily on testimony of victim girl supported by evidence of her parents — Held, testimony of victim, if found reliable and corroborated by surrounding circumstances, is sufficient to sustain conviction even in absence of independent witnesses — Non-examination of other witnesses not fatal when evidence of victim is cogent and trustworthy.

(Paras 14–15)

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Evidence — Minor contradictions / omissions — Effect —

Held, minor variations in statements of witnesses regarding manner of occurrence do not amount to material contradictions — Such variations are natural and do not discredit prosecution case when core allegation remains consistent — Explanation of appellate Court accepting such variation upheld.

(Para 15)

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Evidence — Sole testimony of victim — Sufficiency —

Held, in offences relating to outraging modesty, conviction can be based on sole testimony of victim if it inspires confidence — Corroboration, though desirable, is not mandatory in every case.

(Paras 14–15)

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Criminal Procedure — Delay in lodging FIR — Effect —

Held, delay in lodging FIR in offences involving sexual misconduct, particularly in rural background, is not fatal — Social stigma, family honour and hesitation are relevant factors — Delay satisfactorily explained.

(Para 17)

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Revisional jurisdiction — Sections 397 & 401 CrPC — Scope — Concurrent findings —

Held, revisional Court will not interfere with concurrent findings of fact unless findings are perverse, illegal or result in miscarriage of justice — Reappreciation of evidence is limited — Where courts below have properly appreciated evidence, no interference warranted.

(Paras 8–9, 18)

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Directions / Result —

Held, revision dismissed — Conviction and sentence affirmed — Petitioner directed to surrender before trial Court to serve remaining sentence, failing which coercive steps to follow.

(Paras 19)

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RATIO DECIDENDI

Conviction for an offence under Section 354 IPC can be sustained on the credible testimony of the victim supported by surrounding circumstances, and in the absence of perversity or illegality, concurrent findings of the courts below cannot be interfered with in revisional jurisdiction, particularly when delay in FIR and minor discrepancies are satisfactorily explained.