Some appeals that reach the Supreme Court unravel such grim stories that judges find it difficult to write a decent finale. Two such cases in recent days relived Kafkaesque nightmares.

M J Antony: Justice below poverty line

Business Standard

Justice Altamas Kabir, who will be the Chief Justice of India next month, recently said when he was in the Calcutta High Court, it was very difficult to get a particular record. &ldquo;It was even more difficult to find a person who can find the record.

M J Antony: Back to the digital future

The Supreme Court has severely criticised the Patna high court for ordering the release of huge amounts of wheat stock bearing Food Corporation of India marking from a private flour mills, Harsh Tejas Nutrition Ltd. The authorities raided the mill premises in Patna exercising powers under the Essential Commodities Act and found that subsidised food grains meant for the public distribution system were being diverted to black market. The mill owner moved the high court to quash the confiscation and the prayer was granted in a terse order, without reasons. The government appealed to the Supreme Court. It set aside the high court order and remarked that the high court acted in a &ldquo;most casual and cavalier manner, showing complete disregard of legislature enacting provisions for general welfare.

M J Antony: PDS wheat sent to black market

Every new economic legislation opens up a fresh front for legal battle in the courts. Magistrates&rsquo; courts are now flooded with bounced cheque cases. Last week, the validity of the relevant provision in the Negotiable Instruments Act (Section 138) itself was challenged, and the Supreme Court issued notice to the central government.

M J Antony: Creditors in a domineering role

The Supreme Court last week set aside the injunction granted by the Allahabad high court in favour of Ishan Systems Ltd in a debt recovery case. Without notice to the creditor companies, Optiemus Infracom Ltd and Phoenix Arc Ltd, the high court passed restraining orders against the auction purchaser of the property of Ishan Systems. The latter company had challenged the auction in the debt recovery tribunal and the appellate tribunal without success.

M J Antony: Creditors' right in debt recovery

The Supreme Court has ruled that an arbitration clause in a deed which is compulsorily registrable but not registered and insufficiently stamped cannot be enforced. In this case, Naina Thakkar vs Annapurna Builders, the Hyderabad civil court rejected her application invoking the Arbitration and Conciliation Act because the lease deed was not registered properly. The Andhra Pradesh High Court upheld the civil court order. She moved the Supreme Court contending that she should have been given an opportunity to make up the deficit stamp duty and pay penalty following the procedure prescribed in the Indian Stamps Act. The court rejected her contention remarking that &ldquo;it is not the duty of the court to adjourn the suit indefinitely until the defect on stamp duty concerning the arbitration agreement is cured.

M J Antony: Arbitration deed must be registered

The Supreme Court has ruled that a high court has the power to appoint an arbitrator in a dispute between two parties if one of them refuses to name an arbitrator according to the contract. If a party is aggrieved by the refusal of the other party to nominate the arbitrator, he can move the court and then the other party cannot object to the court appointing an arbitrator under the Arbitration and Conciliation Act. In this case, Hindustan Petroleum Corporation vs Vijay HP Filling Centre, the oil company terminated its contract with the dealer. The latter invoked the arbitration clause and asked HP to name the arbitrator. It did not. So the dealer moved the Punjab and Haryana High Court. It appointed a district judge as arbitrator. HP appealed against that order to the Supreme Court. It upheld the view of the high court and named one of the retired judge of the Supreme Court as the arbitrator.

M J Antony: HC names arbitrator to avoid tie

The testimony of witnesses is often suspect, whether they are professionals on the police roster or tutored ones brought to the court by lawyers. Even those who swear by what they saw or heard could have been deceived by their brain. There could be Rachmanesque delusions. In the US, a number of those convicted on the basis of witness accounts have escaped execution after DNA reports became admissible as evidence. Machines are overtaking humans in reliability.

M J Antony: Experts for all causes

Most of us would be baffled if we were asked whether the tomato is a fruit or a vegetable, or whether hide and leather are the same, or if a crane on four wheels can be classified as an equipment or a vehicle. But ask a tax lawyer and you will find a glint in her eyes. This is the stuff that would release forensic hot air and tons of judicial ink.

M J Antony: Tax by any other name

The Supreme Court last week dismissed a batch of writ petitions moved by six mining companies of Jharkhand and cleared the way for grant of lease of iron ore mines to public sector undertakings. The grant of lease was not possible for six years due to litigation and stay orders. The companies, including Monnet Ispat &amp; Energy, Adhunik Alloys and Ispat Industries, challenged the notifications allowing public sector units to engage in mining, excluding private firms.

M J Antony: Private miners lose licence case

As students prepare for entrance exams and admissions to professional colleges, parents should draw up a back-up plan by looking for a good lawyer. The field of education has become rich ground for litigation in recent years. There is an element of luck at the tipping point of admissions. The next bet is in the courts that face tricky legal issues related to admissions.

M J Antony: Legal lane in the admission race

IF auction of property to recover public dues fetches more than the amount payable, the balance should be paid to the owner. Failure to do so will make the entire auction sale illegal. All consequential proceedings are liable to be quashed, the Supreme Court stated last week in its judgment in Ram Kishun vs State of UP. A person had taken an agricultural loan from Union Bank of India which he could not refund. The bank initiated recovery proceedings against one of the guarantors.

M J Antony: Return excess auction amount: SC

The number of road deaths in the country has swelled over the years. While 15 people died every hour in 2010 due to road accidents, last year the figure was 17. India is ahead of all other countries in road deaths. It also has a clear lead in the longest response time in securing first aid and medical treatment.

M J Antony: Stranded, despite a road map

The Supreme Court has set aside the judgment of the Madhya Pradesh High Court and upheld the rule that imposed two per cent levy as stamp duty on transactions of immovable property through power of attorney. According to the state amendment to the Stamp Act, the power of attorney given without consideration to a stranger will attract the two per cent levy on the market value of the property, though there is no such levy on near relatives executing such document.

M J Antony: MP stamp duty rule upheld

The Supreme Court ruled last week that even if the arbitrators named in a contract had expired, the dispute may be referred for arbitration by others. In this case, ACC Ltd vs Global Cements Ltd, the arbitration clause in the 1989 contract stated that if disputes arose at any time, they shall be &ldquo;referred either to Mr. N.A. Palkhivala or Mr. D.S.Seth, whose decision in the matter shall be final and binding on both the parties.&rdquo; In the event, both had died when the disputes arose. ACC maintained that the arbitration clause expired with the demise of both the nominees. It was pointed out that Palkhivala was named since he was the chairman of the company and DS Seth was named since he was the director of the company. Both of them were nominated as they were closely associated with the company and also due to their eminence, impartiality and familiarity in all commercial transactions and the corporate laws.

M J Antony: Death does not end arbitration

The Supreme Court has recommended auction as the most preferable mode of disposal of property and national resources, though the president has referred back to the court the government&rsquo;s serious reservations about it in the 2G controversy. The auction process itself is not all that foolproof and is often the subject of bitter litigation.

M J Antony: Under the judicial hammer

The Supreme Court has ruled that members cannot be appointed part-time to the Appellate Tribunal for Foreign Exchange, nor can the chairman be selected from them. It struck down the rule introduced to enable the government to appoint part-time members in the tribunal. The court pointed out that the Foreign Exchange Management Act did not approve of part-time members and therefore Rule 5 providing for such appointment was illegal. Even if a candidate met the eligibility criteria, he could not be appointed. The government justified the appointment contending that members of the Indian Legal Services could be appointed as a stop gap arrangement and even the chairman could be selected form the part-time members. The writ petitions challenging the appointments were earlier allowed by the Delhi high court. The appeal of the government, Union of India vs S Srinivasan, was dismissed.

M J Antony: No part-timers in FEMA tribunal: SC

The Supreme Court judges, who were on vacation, will return next week to a pile of some 55,000 cases that have accumulated over the decades. There are no criteria known to the public that give priority to certain cases over the others. There is no chronological order, as corporate entities can be seen occupying the fast lane and even jumping the queue.

M J Antony: Out of sight and mind

Ever since arts and music left the privileged precincts of temples and palaces, they have become crassly commercial, much like education and health care. Copyright laws have become inadequate with advances in technology that propel frantic transmission of creative work to everyone&rsquo;s palm. Even as court battles are being fought on new frontiers in cyber piracy, the old-fashioned disputes over playing recorded music on radio or in public places have not been settled. Two judgments of recent weeks dealt with them.

M J Antony: Copyrights and wrongs

The Supreme Court has set aside the order of the Kerala high court which allowed tourist sites to come up in Lakshadweep islands without obtaining various clearances regarding environment, coastal zone restrictions, conversion of land and other rules. The high court proceeded on &ldquo;humanitarian and equitable considerations, neglecting more important questions that have an impact on the future development of the islands,&rdquo; the Supreme Court observed in the judgment, Union Territory of Lakshadweep vs Seashells Beach Resorts. Such considerations are misplaced in a situation where the erection of buildings violated the coastal regulatory zones requirements. The court appointed an expert committee headed by its ex-judge, Justice R V Raveendran, to make a comprehensive report on all aspects of development of the islands from the tourist and environmental angles.

M J Antony: Panel on Lakshadweep resorts

Contracts with the government and its corporations seem to hold a special attraction. Though it might be one-sided, private contractors apparently sign on the dotted line with open eyes. Though the agreements are whetted by veterans of legalese, arbitration clauses carry seeds of prolonged litigation. The choice of arbitrator is one such point that has surfaced repeatedly in the court.

M J Antony

M J Antony

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