ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity 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 – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

 

ARBITRATION – Appointment of Arbitrator – Unilateral appointment by interested party – Invalidity

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 – Held, unilateral appointment invalid – Arbitrator lacked inherent jurisdiction – Award void and non est.

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

Paras 25, 26, 33, 40, 41

Ineligibility under Section 12(5) arises by operation of law – Covers persons having direct/indirect relationship with parties – Such ineligibility extends to power of nomination – Mandate of arbitrator automatically terminates – Held, arbitrator becomes de jure incapable of acting.

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ARBITRATION – Equal treatment of parties – Article 14 – Effect on arbitration clause

Paras 21, 23, 43

Clause enabling one party to unilaterally appoint sole arbitrator gives rise to justifiable doubts as to independence and impartiality – Violates principle of equal treatment – Such clauses held violative of Article 14 – Held, arbitration clause unenforceable to that extent.

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

Paras 36, 37, 41, 42

Waiver under Section 4 relates to procedural non-compliance – Ineligibility under Section 12(5) can be waived only by express agreement in writing after disputes arise – Absence of such agreement – Held, no waiver – Section 4 not applicable to cure statutory ineligibility.

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ARBITRATION – Express waiver – Requirement of written agreement

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 – Held, proviso to Section 12(5) not satisfied – Appointment remains invalid.

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ARBITRATION – Jurisdiction – Inherent lack – Stage of objection

Paras 27, 28, 12

Objection to inherent lack of jurisdiction can be raised at any stage – Even in collateral proceedings such as execution or revision – Arbitrator lacking jurisdiction cannot render valid award – Held, objection maintainable.

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ARBITRATION – Execution proceedings – Validity of award

Paras 2, 4, 7, 43

Execution initiated based on arbitral award – Where award itself is void due to lack of jurisdiction – Execution proceedings including attachment orders unsustainable – Held, liable to be set aside.

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ARBITRATION – SARFAESI and Arbitration – Concurrent remedies

Paras 6, 8

Proceedings under SARFAESI Act and arbitration can proceed simultaneously – Remedies are cumulative and not mutually exclusive – Issue not pressed in view of settled legal position.

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CIVIL REVISION – Article 227 – Scope of interference

Paras 2, 13, 43

High Court in exercise of supervisory jurisdiction can interfere where subordinate court acts without jurisdiction – Revision maintainable to correct jurisdictional error – Held, interference justified.

CIVIL PROCEDURE – Ministerial act vs judicial function Paras 15, 17, 18, 19 Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

 

CIVIL PROCEDURE – Execution – Order XXI Rule 58 CPC – Third party claim

Paras 3, 4, 5, 11

Third party claiming right over E.P. schedule property filed Execution Application under Order XXI Rule 58 CPC – Claim based on registered sale deed and possession – Prayer to exclude property from execution proceedings – Held, such claim requires adjudication by executing Court.

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CIVIL PROCEDURE – Numbering of applications – Delay – Legality

Paras 12, 13, 14

Execution Application returned multiple times and kept unnumbered – Meanwhile execution proceedings continued – Such indefinite delay at numbering stage prejudicial to applicant – Held, improper practice.

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CIVIL PROCEDURE – Ministerial act vs judicial function

Paras 15, 17, 18, 19

Where office is not satisfied with explanation for defects, matter cannot be indefinitely returned – Proper course is to place matter before Presiding Officer – Judicial determination required by passing speaking order – Held, issue must be decided judicially, not administratively.

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CIVIL PROCEDURE – Return of plaint / application – Limitation on number of returns

Paras 16, 24

Guidelines prescribe that objections must be raised at once and return of plaint/application should not exceed three times – After third return, matter to be placed before Court – Piecemeal objections impermissible – Held, procedure mandatory for subordinate courts.

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CIVIL PROCEDURE – Right to remedy – Duty of Court

Paras 18, 19

Claim of citizen must be adjudicated – Delay or inaction may render proceedings infructuous – Judicial order enables parties to avail further remedies – Held, Courts must ensure adjudication of claims.

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EXECUTION – Auction proceedings – Protection of third party rights

Para 13

If execution proceeds without adjudicating third party claim, applicant would suffer irreparable injury – Held, necessary to decide claim before proceeding further with execution.

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CIVIL PROCEDURE – Directions to subordinate courts

Paras 20, 24, 25, 26

Where application returned thrice – Office directed to list matter before Presiding Officer – Court to decide maintainability after notice – Execution proceedings to be suspended till decision – Directions issued to circulate guidelines to all Judicial Officers.

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CIVIL REVISION – Scope – Article 227

Paras 2, 20

Revision maintainable against procedural inaction of subordinate court – High Court can issue directions to ensure proper exercise of jurisdiction – Petition disposed with directions without examining merits.

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.