Gone are the days when people use to save money and then use it for future. The scenario is just opposite these days. People are living on credit. This is because the young people who have just started earning don’t want to wait for very long for their biggest necessities i.e. a flat and a car. Taking up a Loan is very popular these days. Home loan, car loan, education loan is taken by every second person. When there is a loan, there’s a debt, and the debt re-payment.

What happens if your debt increases your monthly income and you are unable to repay it? There is a solution for it too, ‘Legal debt settlement’. The debt settlement depends on your monthly income; if it is low then you are a strong applicant fordebt settlement. It does not at means that you will not have to re-pay the debt, but it means that there will be a considerable relaxation in the amount of the debt. Legal debt settlement means a lawful agreement where the creditor is ready for accepting a lower value of the debt.

How to get it done and by whom? Simply contact a certified debt settlement counselor and he will help you out for debtsettlement. First of all inform the targeted creditors to look for credit protection at the bankruptcy court law. This act provides support while negotiation with the creditors. At this point of time you just need to tell them that you are looking for some alternative options and not debt settlement.

Never ever get entangled in the web of a counselor who says 100% debt settlement. Such figures are simply impossible. Sit with your counselor and discuss the actual debt settlement options which are viable. Also confirm that is it the only lowest cost option?

Sit down with the debt management credit counselor and evaluate the debt relief options that are available to you. Inquire if a settlement is the best option for reducing debts at the lowest cost. Discuss with him all your expenses, debts, and liabilities so that he can assess for you the most affordable settlement bid. Ask for a written agreement and sign it and pay the agreed amount.

Author: Myrina Stein

Adultery is an instance of Over-Criminalization in India

Abstract: Recently Supreme Court has agreed with the criticism of Section 497 of the Indian penal code which punishes a man alone for adultery for having consensual sex with a married woman and whereas it is provided expressly therein that the wife cannot be prosecuted against even as an abettor.

The two judge bench comprising of Justices AftabAlam and R M Lodhamade the criticism on the two grounds[1],

1. That the provision engulfed in section 497 makes or treats a married woman as a property of the husband, and
2. That provision for punishment is only against the maninvolved in the act of adultery in spite of the fact, that the woman with whom he has consensual sex was an equal partner in the alleged crime.

Another highly debated concern of some jurists and thinkers is that, whether the act of adultery is a Civil Wrong or a Criminal Offence? All these issues which are concerned with discrimination and the wrong categorization of an act of adultery as a criminal offence are the subject matter of this research article.

There are discussions on some prominent judgments of the Apex court relevant to adultery along with step by steparguments that why adultery shall be treated as civil wrong in the form of “Breach of Trust” rather than a criminal offence.

Introduction

Adultery is being criminalized in many countries of the world on the basis of moral beliefs.Adultery also known as philandery is a form of extramarital sex. It is sexual infidelity (disloyalty) to one’s spouse and originally it was referred only to sexual intercourse between a woman who is married and a person other than her spouse.

It is evident from the plain reading of the section 497[2] that only a man can be prosecuted and punished for the act of adultery while woman is not considered as an offender. The rationale considered is that a woman, even if she is involved in an illicit relationship, cannot be punished for adultery because she is treated as the victim and not as having her will to enter into such unfair relationshipor abettor under the law. But a question arises here that

“If the act of Adultery is not committed on account of her will or if she is a victim then why she is not given a fair chance to prosecute her adulterer on her own initiative?And “why only the husband of the so-called victim is only eligible to drag the offender in the court under Section 198 of ‘The Code of Criminal Procedure’?”

All these questions are worth noticeable because questions always arise in problems and problems arise in turn because of wrong classification of certain acts as criminal acts and imposing criminal liability on such acts.Good judgment comes from experience and experience comes from bad judgments and by looking on some recent judgments it seems that apex court is determined to rectify the existing law which ought to be changed with the changing scenario of the society.

Now before going into the gist there are some important questions which are very necessary to be dealt with.

1. What is the basic philosophy behind making the act of Adultery as a criminal offence?
2. If it is morality then what comes into the definition of morality?and
3. Does a so-called immoral act like adultery really deserve to be criminalized?

Jurisprudential Study:

Morality is a sense of behavioural conduct that differentiates intentions, decisions, and actions between those that are good or bad and right or wrong while immorality is an active opposition to morality, and amorality is variously defined as an unawareness of, indifference toward, or disbelief in any set of moral standards or principles.

Morality is a subjective phenomenon that can be meant as either descriptively referring to a code of conduct put forward by a particular society or some other group such as a religion, or as an accepted behaviour by an individual, or normatively refers to a code of conduct that when given specified conditions would be put forward by all rational people. Criminal laws are directed at the conduct society recognizes as inherently wrongful and in a sense, immoral. In the past these acts were wrongs in and of themselves (mala in se) such as murder, rape, and robbery but recently, criminal law expanded its reaches to address conduct that is wrongful and not because of its intrinsic nature but because of being a prohibited wrong (mala prohibitum) by the society itself and adultery is one such prohibited wrong.

Actually crimes against morality are usually victimless crimes and in that there is no true victim of the crime. Crimes against public decency and morality are termed as “victimless crimes” by virtue of the fact that they generally involve willing participants. Crimes against morality are those that may offend another’s sensibilities; in effect, another may be offended if a person engages in sexual activity for hire or as adultery or has multiple wives. But with these offenses, there is nothing inherently harmful to others or in other words it can be said that society in no way harmed by such offences. Thus, criminal law overreaches its authority by criminalizing conduct that poses no harm to others or conduct that is consensual. Again it can be said that if there is no victim in an act then how it can be seen or considered as a crime. In support of it, an example can be taken of a recent judgment given by the Supreme Court of India on 28^th April, 2010.

It said that in the present social milieu, some people view pre-marital sex as an attack on the centrality of marriage while a significant number see nothing wrong in it. Thus this conflict of opinion on morality did not make pre-marital sex an offence.

It said the courts attach a lot of importance to personal autonomy and a person indulging in an immoral act need not necessarily be a culprit in the eyes of law. “Morality and criminality are non-co-extensive,” said a Bench comprising of former Chief Justice of India Justice K G Balakrishnan and Justice Deepak Verma and Justice B S Chauhan. It also said that notions of social morality are inherently subjective and criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.

But a major setback came again when Justice Chauhan said, “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery’ as defined under Section 497 of the Indian Penal Code.” Now here comes an excessive logical self-contradiction. If the Supreme Court is of the view that morality and criminality are non-co-extensive then what is the basis for upholding Adultery as a crime!

Earlier the Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz and V. Revathi.

In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.

In the cases of V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband. The court also said that in between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court. They can either overlook the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce.

Now here occurs a paradox that court rejected its own view by saying that policies cannot be questioned whereas policies are subject of judicial review which is a basic feature of the constitution decided in several casesheld in Supreme Court per se.

Now if we accept the judgment of the Honourable Supreme Court then the question arises that, what harm has been inflicted on the society by an act of Adultery? Or does it create any kind of fear in the community? Or does it create any kind of Social Volatility? And above all does the provision engulfed in Section 497 contribute effectively in prevention of Adultery as an offence against the matrimonial home? All these are core questions to ascertain that whether an act is crime or not,and while answering to these we will get a big ‘No’.

In spite of the fact that there is no substantive harm afflicted to the society, legislative bodies, Judicial Courts and interest groups sometimes justify the criminalization of consensual activity which is against morality, because they feel it offends cultural norms, or because one of the parties to the activity is considered a “victim” despite their informed consent.Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unambiguous in their condemnation of adultery. However in most cultures both the man and the woman are equally punishable.

The Report of the Mali math Committee on Criminal Justice Reforms says that, “As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man. The object of Section 497 is to preserve the sanctity of marriage. Society dislikes marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man other than her husband,” the Committee said in its report submitted to the Centre”. It therefore suggested that “section 497 be suitably amended to the effect that whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.

Similarly the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery. The Central Government accordingly has sought the views of all the 30 states in the country regarding the implementation of the said recommendations.

However the National Commission for Women (NCW) has shot down proposals for amending Section 497 of the Indian Penal Code, which provides expressly that the wife cannot be punished even as an abettor based on the reasoning that the woman, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.

The commission, according to its sources, does not think that by merely prescribing punishment for women by amending Section 497, marriage can be protected or saved.

This view of NCW seems correct but it failed in giving a solution to the problem and unfortunately Commission has, however, recommended suitable amendments to Section 198(2) of the Criminal Procedure Code (CrPC), which disqualifies a woman from prosecuting her husband for his promiscuity.

It argued that as already the woman can take action against her husband under various other legal provisions such as Section 498A of the IPC, there is no reason that she should be barred from initiating prosecution under Section 198 of the CrPC. The wife, in such cases, ought to be the person aggrieved and competent to file a complaint under Section 198.

Thus the law of adultery in India has three unsettling aspects. The first is, apart from being a ground for divorce under the personal laws governing marriage adultery is a crime punishable with imprisonment. The second is, only the husband concerned can complain against such a crime. Third, the complaint can only be against the male concerned with whom the wife has sexual relations. The wife is specifically excluded from consideration as a participant.

Now the question is that “where does a woman stand in all this”? She cannot complain of adultery committed by her husband. She is not even treated as a consenting participant to the adultery. By shifting adultery to the realm of crime (rather than a personal issue concerning only the spouses), the law recognises a proprietorial interest of the husband in the wife, and adultery to be a violation of such a right by another man.

This law was unsuccessfully challenged in 1985 by a woman, Sowmitra Vishnu, on the ground that the law resulted in treating the woman as a property. She argued that the criminal law of adultery (Section 497, Indian Penal Code) conferred upon the husband the right to prosecute the adulterer but it did not confer any right upon the wife to prosecute her husband or the woman with whom her husband has committed adultery. She argued that the provision was a kind of `romantic paternalism’, which resulted from the assumption that women, like chattels, are the property of men.

The Supreme Court’s responses to these arguments were unfortunate. It ruled that the above arguments “have a strong emotional appeal but they have no valid legal basis to rest upon”. It said the offence of adultery, by its very nature, can be committed by a man and not by a woman. It is commonly accepted that it is the man who is the seducer (A man who takes advantage of women) and not the woman.Further, in completely excluding any participation of the woman in the extra-marital sexual relations, the Supreme Court said the wife, who is involved in a sexual relationship with another man, is a victim and not the author of the crime. The offence of adultery, in their opinion, is an offence against the sacredness of the matrimonial home. Therefore, men who overstep that sacredness are brought within the net of the law. Consequently, this law still remains in its original form.

Now the contradiction arises when the woman is indulged in committing adultery on her own will then why should consider her as a victim and innocent and if she is considered as victim then why not consider this act of the male as a rape! The inclusion of adultery as a crime in the IPC, drafted in 1860, was justified on the ground that it would deter immorality. But it seems that the rationale envisaged in section 497 is that only the male member of the society can commit immoral acts and not the female members or does the law makers was having a presumption the only the male members of the society can initiate and be the sole cause of such type of immoral act like adultery!

Now there are certain shortcomings of Supreme Court. Considering the limited question of Constitutional validity before it, the object of Section 497, was never brought before the Supreme Court. The decisions of the Court therefore have erred to the limited extent of holding adultery as an offence against the matrimonial home.

If adultery had been a matrimonial offence neither the husband would have had the freedom to indulge in extra-marital sexual relations with unmarried women nor the consent of the husband of the wife when she had sexual intercourse with other men would make any difference in its constitution. Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass. There is no doubt then that this section treats a woman like a man’s chattel.

It is true that our society dislikes marital infidelity and these laws have been passed to maintain and preserve the sanctity of marriage but by merely prescribing a punishment for women by amending Section 497, the marriage cannot be protected or saved. Moreover, most women in rural India are socially disempowered, open to exploitation and are even forced into adultery. Rather than making the woman culpable, adultery should not be treated as a criminal offence at all. Actually we need to do away with criminalising adultery. Adultery is socially harmful, but it is obsolete on the part of the IPC and the Malimath report to jail people and tarnish them forever for such an act and criminalising adultery will not achieve anything substantive.

Now the issue is that if adultery should be decriminalized then how to prevent this socially and morally act from happening!

Actually unlike other criminal acts adultery is a violation of the mutually agreed-upon rules or boundaries of an intimate relationship, which constitutes a significant to extreme breach, or outright default, on the good faith contract of a relationship, or a betrayal of core shared values with which the honesty and nature of the relationship is defined. In common use, it describes an act of unfaithfulness to one’s husband or wife and no doubt it is considered as heinous immorality but the issue of adultery should be viewed as a breach of trust and be treated as a civil wrong rather than as a criminal offence.

Breach of trust:

While the need for this law was not questioned in any case held by the Supreme Court, we need to consider if adultery needs to remain a `crime’? However, it is important to understand adultery as a problem only to the extent it actually is one.

There may be many instances in which the woman wants to save marriage and sees the adulterous relationship as an aberration. The issue of adultery should be viewed as a breach of trust and treated as a civil wrong rather than as a criminal offence.

The National Commission for woman in its recommendation has said that adultery should be treated as a civil wrong and not as criminal offence. It has, however, said this should be done only after a national consensus is formed on the issue.

Adultery is an issue and a matter of outrage for the spouses and the spouses alone. This law makes a crime of what is essentially a breach of trust between spouses, and shifts the obligation and penalty from the partners to marriage to a third party. While the disapproval for adultery is understood, recourse and remedy against the same should be available only to the parties to the relationship of marriage and against the spouse at fault.

There is no justification whatsoever for the Section 497 to exist, more particularly in its present form anymore.

Marriage is both, a sacrament and a civil contract and the society has certain notions about the same. Yet, it is not a standard form contract. The spouses are and should be at a liberty to choose their own terms of the contract. Therefore, whether they allow each other to have or maintain sexual relations with third parties should be at the sole discretion of the parties alone. The National Commission for women recommends that adultery should be made merely a civil wrong and the Supreme Court impliedly agrees that husband and a wife should not strike each other with the weapon of criminal law. Making provisions in Penal law to regulate civil contracts and particularly the contract of marriage, which is private and personal, is unwarranted.

Thus i feel that rather than making the woman culpable, adultery should not be considered as a criminal offence at all. In fact we need to do away with criminalising adultery.

Conclusion:

Traditionally crime is considered to be the commission or omission of an act by which a sort of harm is done to the community by spreading a widespread fear in it. It is also said that a criminal act is the root cause of social volatility which is considered as a sheer wrong against the community and commission of crime is itself an expressed violation of the values of the community and criminal law itself. But when an act like adultery is put into the category of the crime then all the aforesaid conditions or requisites of a crime are not fulfilled. In spite of this adultery is considered as a crime in section 497 of IPC on the basis of the morality. It is true that there is a deep connection between morality and law but Crime is a special sort of wrong and a person doing or refraining from any act can be made liable for civil wrong and not criminal wrong if such an act or omission is against morality.

Adultery cannot be committed without a woman’s consent and when a woman has voluntary sexual intercourse with a third person it cannot be considered as a crime at all. But the section makes man liable alone for the offence. It is highly improbable that even in such a situation the woman would always be the victim and not as the person who provokes the offender for the crime. Thus there is no doubt that the law, as it stands today, is totally inadequate.

Punishment to the person committing adultery is not and cannot be a remedy for a person aggrieved of adultery. The object of prosecution for adultery is more often to reach a settlement with the offender at the mercenary level and seldom to send the offender to jail. To this extent, the conditions are not appreciably different even today. The existence of Section 497 has no apparent effect on society. Acknowledging this most western countries have decriminalised adultery. It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most of our laws. In the United States, in those states where adultery is still on the statute books, offenders are rarely prosecuted.

BIBLIOGRAPHY:

1. Conceptions of over criminalization by:Andrew Ashworth.
2. The Crisis of over criminalization by: Sanford H. Kadish.
3. The Constitution of India, Universal law Publication, 2010.
4. The Indian Penal Code by Ratanlal and Dhirajlal.
5. What is crime? By: Grant lamond.
6. Code Of Criminal Procedure by: RATANLAL & DHIRAJLAL
7. Committee on Reforms of Criminal Justice SystemGovernment of India, Ministry of Home Affairs-: sourced from –

http://www.mha.nic.in/pdfs/criminal_justice_system.pdf

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2001 SCCL.COM 697(Case/Appeal No: Civil Appeal Nos. 6734-6745 of 2000 (with C.A. Nos. 6746/2000, 6750/2000, 6747/2000, 6748/2000 & 6749/2000))
Government of Andhra Pradesh and others Appellants Vs. V.S.R. Murthy and others Respondents, decided on 9/18/2001.
Name of the Judge: Hon’ble Mr. Justice S. Rajendra Babu and Hon’ble Mr. Justice D.P. Mohapatra.
Subject Index: Board of Industrial and Financial Reconstruction (bifr) — tendency of proceedings before — settlement reached — MOU signed agreeing arrangement for deployment elsewhere — High Power Committee appointed — recommendations of Committee accepted by Government — scheme sanctioned by bifr – later promulgation of ordinance prohibiting absorption of employees — held the scheme already having been sanctioned by the bifr, it must be taken that the employees in different establishments have been identified and their placement in the various Government Departments and the public sector undertakings is complete.

2003 SCCL.COM 390(Case/Appeal No: Transferred Case (C) No. 8 of 2000 (with T.C.(C) Nos. 2, 4, 3, 9, 10, 11, 12, 13, 15, 35/2000 and T.P.(C) No. 326 of 2002))
A.K. Bindal and another Petitioners Vs. Union of India and others Respondents, decided on 4/25/2003.
Name of the Judge: Hon’ble Mr. Justice S. Rajendra Babu and Hon’ble Mr. Justice G.P. Mathur.
Subject Index: Service — pay scale — issue of revision of pay-scales of officers of Fertilizer Corporation of India and Hindustan Fertilizer Corporation — the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves — the employees cannot legitimately claim that their pay scales should necessarily be revised and enhanced even though the organisations in which they are working are making continuous losses and are deeply in red — petitions dismissed.

2003 SCCL.COM 479(Case/Appeal No: Writ Petition (C) No. 488 of 2002)
Kapila Hingorani Petitioner Vs. State of Bihar Respondent, decided on 5/9/2003.
Name of the Judge: Hon’ble the Chief Justice, Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Companies Act — corporate veil — lifting of — if at all and to what extent the Government of the State of Bihar is vicariously liable for payment of arrears of salaries to the employees of the State owned corporations, public sector undertakings or the statutory bodies — the State cannot escape its liability when a human rights problem of such magnitude involving the starvation deaths and/ or suicide by the employees has taken place by reason of non-payment of salary to the employees of Public Sector Undertaking for such a long time — committee be appointed.

2003 SCCL.COM 829(Case/Appeal No: Civil Appeal No. 14572 of 1996 (With W.P.(C) Nos. 34/88, 1073, 1074/89, T.P.(C) No. 289/88,  W.P.(C) Nos. 152/88, 214/89, 218, 44, 134, 211/88, 161/87, 579/89,  T.P.(C) No. 290 of 1988))
Chairman-cum-Managing Director, National Textiles Corporation Ltd. and others Appellants Vs. N.T.C. (WBAB & O) Ltd. Employees Union and others Respondents, decided on 10/14/2003.
Name of the Judge: Hon’ble Mr. Justice Brijesh Kumar and Hon’ble Mr. Justice Arun Kumar.
Subject Index: Equal Pay for equal work — the issue involved in these cases is regarding the claim of the staff/sub staff engaged by the various textile mills under the NTC for ‘equal pay for equal work’. The staff working in the mills is claiming pay equal to or in parity with the pay scales prevailing for the staff working in the corporate offices of the mills — over the years by disparity between the pay scales of the staff working in the corporate offices and staff working in the mills has become highly disproportionate — as per the provisions of Section 5(2)(c) of the Sick Textile Undertakings (Nationalisation) Act, 1974, the waves, salaries and other dues of the employees of the sick textile undertakings after the takeover of their managements by the Central Government are the responsibility of the Central Government. The Central Government has failed to discharge its responsibility for all these years by raising such specious pleas. The Central Government has to discharge its responsibility de hors the bifr schemes.

2004 SCCL.COM 1059(Case/Appeal No: Writ Petition (C) No.427 of 1999)
National Confederation of Officers Asson. of Central Public Sector Undertaking and Others Petitioner Vs. Union of India and Others Respondents, decided on 11/30/2004.
Name of the Judge: Hon’ble Mr. Justice Ashok Bhan and Hon’ble Dr. Justice AR. Lakshmanan.
Subject Index: Constitution of India — Article 32 — petition — concerning release of revised IDA pay scale in respect of the British India Corporation (a Government Undertaking) and its two units situated at Cawnpore Woollen Mills, Kanpur and New Egerton Woollen Mills, Dhariwal (Punjab) — the brief controversy involved in this matter is that by order dated 19.7.1995, the Central Government has denied the benefit of revised IDA pay scale to those sick public sector undertakings which are registered with the bifr – Court passed the order directing the implementation of the Scheme as sanctioned Scheme by the bifr in so far as the petitioners are concerned.

2005 SCCL.COM 382(Case/Appeal No: Civil Appeal No. 3271 of 2005 (with I.A. No.2 in CA. No. 3271/2005 @ SLP(C) No. 7405/05, C.A. Nos. 3272-73/2005, I.A. Nos. 7-11 in C.A. Nos. 3272-3273@ SLP(C) Nos. 7549-7550/2005, C.A. No. 3274/2005, I.A. No. 3 in C.A. No. 3274 @ SLP(C) No. 10511/2005, C.A. No. 3275/2005, I.A. No. 2 in C.A. No. 3275/2005@ SLP(C) No. 7453/2005, C.A. No. 3276/2005, I.A. No. 2-3 in C.A. No. 3276/2005@ SLP(C) No. 7451/2005, C.A. No. 3277/2005, I.A. No. 2 in C.A. No. 3277/2005@ SLP(C) No. 8362/2005 and C.A. No. 3278/2005, I.A. No. 2 in C.A. No. 3278/2005 @ SLP(C) No. 8378 of 2005))
Bombay Dyeing and Manufacturing Co. Ltd. Appellant Vs. Bombay Environmental Action Group and others Respondents, decided on5/11/2005.
Name of the Judge: Hon’ble Mr. Justice N. Santosh Hegde and Hon’ble Mr. Justice S.B. Sinha.
Subject Index: Bombay Cotton Textile Mills Case — Development Control Regulations, 1991 — Regulation 58 — lands of Cotton Textile mills measuring about 600 acres — interest of justice would be sub-served if the National Textile Corporations are permitted to complete the transactions in terms of the scheme framed by the bifr but the same shall be subject to the conditions that in the event, the writ petition ultimately succeeds, the vacant land available from other mills, if necessary, shall be offered by way of adjustment — scheme, rules, regulations and byelaws, framed under the provisions of Maharashtra Regional & Town Planning Act, 1966 shall be strictly complied while granting permission — the committee appointed in terms of the regulation shall grant its approval only in accordance with the extant regulations — any further constructions and/ or creation of any third party rights by the mill owners will be at their own risk wherefor they would not claim any equity whatsoever and furthermore the same subject to the orders of the Court.

2005 SCCL.COM 608(Case/Appeal No: Civil Appeal Nos. 5199-5201 of 2004 (with C.A. Nos. 5202-5205 of 2004))
M/s. NGEF Ltd. Appellant Vs. M/s. Chandra Developers Pvt. Ltd. and another Respondents, decided on 9/29/2005.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice C.K. Thakker.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — Sections 20(4) and 32 — Companies Act, 1956 — Sections 433 and 536(2) — Companies (Court) Rules, 1959 — Rules 6 and 9 — winding up — powers of Company Court — company directed to execute sale deed by Company Court under provisions of the Companies Act — provisions of SICA prevails over provisions of the Companies Act — u/s 20(4) of SICA only bifr has jurisdiction as regard sale of assets till winding up order is passed — order of sale set aside — appeals allowed.

2006 SCCL.COM 341(Case/Appeal No: Civil Appeal No. 6217 of 1999 (With C.A. Nos. 6171-6172 of 1999, and C.A. No. 6176 of 1999))
State of U.P. & Anr. Appellants Vs. Uptron Emp. Union CMD.I & Ors. Respondents, decided on 4/26/2006.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — Section 15 — sick company a fully owned to subsidiary of a government company owned and controlled by State of U.P. — direction given by bifr to State of U.P. to make on account payment of wages to workers of the sick company on humanitarian grounds challenged — no provision in SICA which authorities bifr to pass such order — impugned orders set aside — appeals allowed.

2007 SCCL.COM 626(Case/Appeal No: Civil Appeal No. 1672 of 2006)
G.L. Sultania and another Appellants Vs. The Securities and Exchange Board of India and others Respondents, decided on 5/16/2007.
Name of the Judge: Hon’ble Mr. Justice B.P. Singh and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Securities and Exchange Board of India Act, 1992 — Section 15Z — appeal under — shares not valued in accordance with the parameters laid down under Regulation 20(5) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 1997 — as per the appellants — respondents contended that the valuation of shares was done having regard to the parameters laid down under Regulation 20(5) of the Takeover Code and the Board had taken all necessary precautions to safeguard the interest of the shareholders so as to ensure payment of best price for the shares to be sold by them — the question there arises as to who shall determine whether the valuation of shares is reasonable and acceptable — the valuer, Patni & Company have not committed any such error which may justify our interference. They have considered all the factors relevant under Regulation 20(5)) of the Takeover Code and have adopted a reasonable approach which does not call for interference — the Board has acted in a reasonable manner and made its best efforts to secure a reasonable price for the shares of the shareholders. It has exercised its discretion wisely and we find no reason to interfere.

2007 SCCL.COM 1036(Case/Appeal No: Civil Appeal No. 2805 of 2005)
Carona Ltd. Appellant Vs. M/s Parvathy Swaminathan & Sons Respondents, decided on 10/5/2007.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice P. Sathasivam.
Subject Index: Landlord and tenant — in spite of determination of tenancy, the tenant did not hand over vacant and peaceful possession of the suit premises to the landlord. The landlord, therefore, filed a suit in the Small Causes Court, Bombay on April 2, 2001. In a written statement, dated August 1, 2001, the tenant disputed the averments made and allegations levelled by the landlord and contended that it was not liable to be evicted. The Small Causes Court, Bombay, however, passed a decree of eviction against the tenant on December 16, 2002 which was confirmed by a Bench of that Court as also by the High Court. The said order is challenged in the present appeal — on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises. It is true that a resolution was passed by the Company to reduce the paid up share capital to less than rupees one crore, but the said resolution was never approved by bifr — the tenant has not paid ‘rent’/'mesne profits’ since more than ten years. Even after approaching this Court, it had made part payment pursuant to interim order made in April, 2005. But nothing was paid/deposited thereafter even though two years have passed — the appellant-tenant cannot ask for discretionary and equitable relief.

2007 SCCL.COM 1187(Case/Appeal No: Civil Appeal No. 5275 of 2007)
Bijli Cotton Mill (Unit of National Textile Corporation U.P. Limited) Appellant Vs. U.P. Power Corporation Limited & others Respondents,decided on 11/16/2007.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat and Hon’ble Mr. Justice Lokeshwar Singh Panta.
Subject Index: Recovery proceedings — quashment requested — appellant involved in manufacture of cotton yarn — matter referred to bifr — electricity connection was disconnected — payment of surcharge — request for waiver — the High Court is requested to consider the matter within four months of the receipt of the order of bifr.

2007 SCCL.COM 1217(Case/Appeal No: Civil Appeal No. 5347 of 2007)
Zenith Steel Tubes & Industries Ltd & Another Appellants Vs. SICOM Limited Respondent, decided on 11/23/2007.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice B. Sudershan Reddy.
Subject Index: Sick Industrial Companies (Special Provision) Act, 1985 — section 22 — suit — meaning of — in view of the intention of the legislature to protect sick industrial companies where references were pending before the bifr. It is also evident from the decision in Paramjeet Singh Patheja’s case that the views expressed in Kailash Nath Agrawal’s case had not been brought to the notice of the learned Judges who decided the matter — fit and proper that the matter should be referred to a larger Bench to resolve the existing anomaly resulting from the different views expressed in the two above-mentioned cases.

2008 SCCL.COM 605(Case/Appeal No: Civil Appeal No. 573 of 2005)
Sajjan Textile Mills Ltd. Appellant Vs. ICICI Bank Ltd. & others Respondents, decided on 5/16/2008.
Name of the Judge: Hon’ble Mr. Justice Tarun Chatterjee and Hon’ble Mr. Justice Harjit Singh Bedi.
Subject Index: Loan to company — not paid — Recovery suit — court appointed Receiver — application before bifr filed for declaration of sick unit — the appellant had suffered serious prejudice on account of remaining unrepresented on being unaware of the proceedings — the litigation has had a chequered career in several forums including this Court — till such time the High Court takes its decision in the matter, the status quo order passed by this Court on 29th October 2004 will continue to operate — appeal allowed.

2008 SCCL.COM 831(Case/Appeal No: Civil Appeal No. 4324 of 2008)
Shivanand Gaurishankar Baswanti Appellant Vs. Laxmi Vishnu Textile Mills and others Respondents, decided on 7/11/2008.
Name of the Judge:  Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice D.K. Jain.
Subject Index: Constitution of India — Article 226 — petition under — summary dismissal — appeal — Laxmi Vishnu Textile Mills operating 2 cotton mills — there were large number of workers in the mill and there was considerable profit in the business. By the passage of time, however, the Company started incurring losses and things turned worse in later eighties. Proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 — the High Court dismissed the writ petition observing that it was not a fit case to interfere with by an order dated February 12, 2007 in exercise of extraordinary jurisdiction under Article 226 of the Constitution. The said order is challenged by the appellant in this appeal — the very width of the power under Article 136 is a warning against its `freewheeling exercise save in grave situations’. Circumspection and circumscription must, therefore, induce the Court to interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other recognized grounds are made out — no secured or unsecured creditor has come forward making grievance that though he was entitled to more amount, he has not been paid such amount. So far as workers are concerned, Court has already dealt with rights of Representative-Union in detail and have held that the Representative Union has preferential right to appear in the proceedings under the Act. Hence, taking any view of the matter, this is not a fit case to exercise discretionary and equitable jurisdiction under Article 136 of the Constitution.

2008 SCCL.COM 1101(Case/Appeal No: Civil Appeal No. 5225 of 2008)
KSL & Industries Ltd. Appellant Vs. M/s. Arihant Threads Ltd. and others Respondents, decided on 8/25/2008.
Name of the Judge: Hon’ble Mr. Justice C.K. Thakker and Hon’ble Mr. Justice Altamas Kabir.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — section 22 — C.K. Thakker, J. and Altamas Kabir J. — in view of the difference of opinion on interpretation of Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Registry is directed to place the papers before the Hon’ble the Chief Justice of India for taking appropriate action in accordance with law — C.K. Thakker, J. — the present appeal raises a question of great public importance having far- reaching consequences. The appeal is filed by KSL & Industries Ltd. against final judgment and order passed by the Division Bench of High Court of Delhi on February 23, 2006 in Writ Petition (Civil) Nos. 2041-42 of 2006. By the said judgment, the High Court, set aside the order passed by the Debt Recovery Appellate Tribunal, Delhi and held that in view of the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, no recovery proceedings could be effected against the first respondent-Company in the light of the bar contained therein — question is whether the High Court was right in holding that the proceedings were barred under Section 22 of SICA — the High Court has committed an error of law in invoking and applying provisions of Section 22 of SICA and in dropping proceedings against the Company — Altamas Kabir, J. — unable to travel the same path which my learned Brother has chosen to traverse.

2009 SCCL.COM 863(Case/Appeal No: Civil Appeal No. 3411 of 2009)
V.N. Devadoss Appellant Vs. Chief Revenue Control Officer-cum-Ins. and others Respondents, decided on 5/8/2009.
Name of the Judge: Hon’ble Dr. Justice Arijit Pasayat, Mr. Justice D.K. Jain and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Indian Stamp Act, 1899 — section 47-A — appeal under — bifr & AIFR are mediators and the sale value could not be the market value — all deal was done to evade stamp duty. High Court affirmed the order of District Court. Supreme Court held — the judgment of High Court cannot be sustained and is set aside. The appeal is allowed helding no scope for exercising power under section 47-A of the Act.

2009 SCCL.COM 1014(Case/Appeal No: Civil Appeal No. 3603 of 2009)
M.D., Bhoruka Textiles Limited Appellant Vs. M/s. Kashmiri Rice Industries Respondent, decided on 5/15/2009.
Name of the Judge: Hon’ble Mr. Justice S.B. Sinha and Hon’ble Dr. Justice Mukundakam Sharma.
Subject Index: Sick Industrial Companies (Special Provisions) Act, 1985 — section 16 and section 22 — Board’s enquiry for determining sick industrial company and suspension of legal proceedings, contracts etc. — respondent’s firm entered into a contract for supply of paddy husk with the appellant — appellant neglected to pay the price — appellant raised contention that has become a sick industry under Section 22 and a reference having been made to the Board of Industrial and Financial Reconstruction — appeal — respondent aware that the appellant had made reference to the bifr in terms of the provisions of the Act — appellant is an industrial undertaking — a suit is barred when an enquiry under Section 16 is pending — prior to institution to the suit, respondent did not obtain consent of Board — a judgement and decree passed by a Court or tribunal lacking inherent jurisdiction would be a nullity — impugned judgement set aside — appeal allowed — appellant deposited 50% of the decretal amount — Civil Court shall transfer the said amount to bifr.

2010 SCCL.COM 33(Case/Appeal No: Civil Appeal No. 5181 of 2002)
State of Bihar and others Appellant(s) Vs. Kalyanpur Cements Ltd. Respondent(s), decided on 1/8/2010.
Name of the Judge: Hon’ble Mr. Justice Tarun Chatterjee and Hon’ble Mr. Justice Surinder Singh Nijjar.
Subject Index: Industrial Policy, 1995 — clause 24 — Sales Tax Exemption Notification — the Company applied to the State Government for grant of Sales Tax Exemption for 5 years — State Government consistently gave assurances to the Company that the necessary Sales Tax exemption notification will be issued — no such notification was issued even after 3 years — Company filed petition for issuance of the writ of mandamus directing the State to issue necessary Notification under Clause 24 of the 1995 Policy — High Court allowed the writ petition in favour of Company — appeal — whether the Company could have invoked the principle of `promissory estoppel’ in support of its claim — Yes — for more than 3 years, the Company and the financial institutions had been assured by the Government that the notification will be issued forthwith — held that mere claim of change of policy would not be sufficient to exonerate the Government from liability and thus, discontinuance of the Sales Tax Exemption could not have affected the rights of the Company under the Industrial Policy, 1995 — held the entire sequence of meetings considering the rehabilitation package of the Company and the two Committees recommended granting of exemption much before the policy lapsed — the amount of Rs. 60 crores collected by the Company from the consumer to offset the tax liability, thus, tax lawfully levied and realized cannot be refunded — no interference to the orders of the High Court — appeal filed by the State dismissed and directed that the amount deposited by the Company with accrued interest be released to the appellant.

2010 SCCL.COM 331(Case/Appeal No: Special Leave Petition (Civil) No. 33984 of 2009)
Kanpur Electricity Supply Co. Ltd. and another Petitioners Vs. M/s. L.M.L. Limited and others Respondents, decided on 5/7/2010.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir, Mr. Justice Cyriac Joseph and Hon’ble Mr. Justice C.K. Prasad.
Subject Index: U.P. Electricity Supply Code, 2005 — Clause 4.41 read with Clause 4.49 — the Respondent-Company applied for reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006 which was approved by the UPERC. However, the electricity bill for the month of May, 2006 based on 8 MVA load was presented to the Respondent — the respondent paid the bill on the basis of 1.25 MVA load and also invoked the provisions of the Sick Industrial Companies Act, 1985. The KESCO directed to the Respondent-Company for submitting a Bank Guarantee for the arrears of the amount as per Clause 4.49 of the U.P. Supply Code, 2005 so that action could be taken to reduce the load from 8 MVA to 1.25 MVA which was not done — thereafter, the Respondent-Company restarted its manufacturing activities and requested KESCO to increase the load from 1.25 MVA to 2.25 MVA that was rejected by the KESCO on the ground of non-submission of the Bank Guarantee by the Respondent-Company for the balance amount of the bill raised for the month of May, 2006. As the respondent was registered as a Sick Unit, thebifr directed KESCO to continue to accept Rs.5 lakhs per month against their arrears, besides payment of current electricity bills on actual consumption basis, and not to adopt coercive measures to disconnect the supply of electricity. However, a disconnection notice was issued by KESCO — the High Court concluded that the reduction of the load of the Respondent-Company stood approved on 19th April, 2006, and, accordingly, the effective date of such reduction would have to be reckoned from the first day of the following month, namely, from 1.5.2006, in terms of Clause 4.41(e) of the Code — appeal — this Court observed that instead of helping the Respondent-Company to come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon, thus, held that the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondent No.1-Company in respect of its outstanding dues, had the effect of negating the decisions to revive the Company — no interference to the impugned orders of the High Court — petition dismissed — no costs.

2011 SCCL.COM 381(Case/Appeal No:  Civil Appeal No. 3911 of 2011 With Civil Appeal No. 3912 of 2011)
Dunlop India Limited Appellant Vs. A.A. Rahna and another Respondent(s), decided on 5/4/2011.
Name of the Judge: Hon’ble Mr. Justice G.S. Singhvi and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Kerala Buildings (Lease & Rent Control) Act, 1965 — sections 11(2)(b), 11(3), 11(4)(i), 11(4)(v) — eviction petitions against the appellant — to vacate the leased suit premises — Sick Industrial Companies (Special Provisions) Act, 1985 — the Rent Control Court concluded that the appellant had ceased to occupy the suit premises since September, 2001 without any reasonable cause and, accordingly, directed it to vacate the premises. The Appellate Authority reiterated the finding recorded by the Rent Control Court — the High Court confirmed the said orders — hence, the appeals — whether pendency of the proceedings under the 1985 Act, which implies that the appellant was facing financial difficulty in conducting its business constituted reasonable cause for cessation of occupation of the premises — the appellant did not produce any evidence to prove physical occupation of the premises or any business transaction. It also failed to produce any evidence to show that there was reasonable cause for non occupation of the suit premises — the appellant neither pleaded nor any evidence was produced to show that financial stringency was due to the reasons beyond its control and on that account, the suit premises could not be used from September, 2001 onwards for the purpose specified in the lease deeds — the Supreme Court held that the evidence produced by the parties was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause — appeals dismissed.

2009 SCCL.COM 939(Case/Appeal No: Civil Appeal No. 4429 of 2009 With Civil Appeal No. 4433 of 2009)
Authorized Officer, Indian Overseas Bank and another Appellants Vs. M/s. Ashok Saw Mill Respondent, decided on 7/16/2009.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: sarfaesi Act — section 13(4) — the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT.

2009 SCCL.COM 475(Case/Appeal No: Civil Appeal No.5990 of 2010)
United Bank of India Appellant(s) Vs. Satyawati Tondon and others Respondent(s), decided on 7/26/2010.
Name of the Judge: Hon’ble Mr. Justice G. S. Singhvi and Hon’ble Mr. Justice Asok Kumar Ganguly.
Subject Index: Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — sections 13(2)&(4) — issuance of notice under — section 14 — application filed under — whether the Division Bench of the High Court was justified in restraining the appellant from proceeding under Section 13(4) against the property of respondent No.1 — the appellant sanctioned a term loan of Rs.22,50,000/- in favour of respondent no.2 and respondent no.1 executed agreement of guarantee making herself liable for repayment of the loan amount with interest — the respondent no.1 deposited Rs.50,000/- as outstanding dues and gave written undertaking to pay the balance amount in instalments. However, she did not fulfil her promise & offered to pay a sum of Rs.18 lakhs for settlement of the loan account — on the issuance of notice by the appellant, the respondent no.1 filed writ petition and prayed for restraining the appellant from taking coercive action in pursuance of the notices issued under Section 13(2) and (4) — the Division Bench did not even advert to the appellant’s plea that the writ petition should not be entertained because an effective alternative remedy was available to the writ petitioner under Section 17 of the sarfaesi Act and passed the impugned order restraining the appellant from taking action in furtherance of notice issued under Section 13(4) of the sarfaesi Act — appeal — the respondents no.1&2 did not bother to pay the outstanding dues and also the respondent no.1 did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted — impugned orders of the High Court set aside — appeal allowed.

2010 SCCL.COM 525(Case/Appeal No: Writ Petition (C) No.291 of 1998)
Common Cause (A Regd. Society) Petitioner Vs. Union of India & another Respondents, decided on 8/19/2010.
Name of the Judge: Hon’ble Mr. J.M. Panchal and Hon’ble Mr. Justice A.K. Patnaik.
Subject Index: Non-Performing Assets and bank frauds — increase of — substantial funds of banks not being available for development of the country’s economy — whether legislative and administrative measures taken by the Union Government have been effective or not is not for the Court but for the Union Government and Parliament to consider because reduction and control of NPAs are not within the domain of judiciary but within the domain of the Executive and Legislature under — constitution — this court found — that through various legislative measures such as the DRT Act, the sarfaesi Act, 2002, the Credit Information Companies (Regulation) Act, 2005 and through some administrative measures, the respondents are trying to reduce the number and amount of NPAs and to detect and check bank frauds in future — the Central Government has constituted a Committee of Experts under the Chairmanship of Ex-Deputy Governor of Reserve Bank of India to suggest effective measures, legislative or administrative, to ensure that bank frauds are prevented in future and the NPAs are kept to the minimum — petition and the application for impleadment /intervention disposed — no costs.

2010 SCCL.COM 866(Case/Appeal No:  SLP (Civil) No(s). 29421 of 2010 with Contempt Petition (Civil) No. 271 of 2010 In Special Leave Petition (Civil) No. 29421 of 2010)
M/s. Bharat Steel Tubes Ltd. Petitioner(s) Vs. IFCI Limited Respondent(s) with Mr. Manoranjan Sharma & another, decided on11/30/2010.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Debts Recovery Act, 1993 — section 17 — application filed under — Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — section 13(2) — the petitioner-Co. borrowed moneys from the Punjab National Bank which it was unable to repay in full. A One-Time Settlement was arrived at between the parties for a sum of Rs.26.16 crores. The Petitioner-Company paid a sum of Rs.13.80 crores and defaulted in payment of the rest. It entered into an agreement with ACE to pay off the entire dues of Punjab National Bank, which it did. The entire dues of the Bank, therefore, stood satisfied, but a new liability was created by the Petitioner-Company in favour of ACE which assigned its rights to IFCI Ltd — the Tribunal directed the Petitioner to deposit a sum of Rs.35 crores with the IFCI Ltd. without prejudice to its rights and contentions. The High Court directed that during the pendency of the writ petition, the writ petitioner would be free to proceed in pursuance of the Public Notice but the bid was not to be finalized — this Court stayed the operation of the order of the High Court. Despite such order of stay, the alleged contemnors continued with the auction process in violation of the order of stay passed by this Court — this Court found that the question regarding the auction of the assets of the Petitioner Company is still the subject matter of the proceedings pending before the Tribunal. The issues involved regarding steps taken under the sarfaesi Act are yet to be determined by the Tribunal — this Court gave direction to the Tribunal to dispose of the pending appeal and till the time, the auction proceedings being conducted under the sarfaesiAct shall remain stayed — petition disposed.

2011 SCCL.COM 288(Case/Appeal No:  Special Leave Petition (Civil) No(s). 9728-9729 of 2011)
M/s. Bharat Steel Tubes Ltd. Etc. Petitioner(s) Vs. IFCI Ltd. & others Respondent(s), decided on 4/4/2011.
Name of the Judge: Hon’ble Mr. Justice Altamas Kabir and Hon’ble Mr. Justice Cyriac Joseph.
Subject Index: Companies Act, 1956 — section 4A(2) — sarfaesi Act, 2002 — section 2(1)(m) — public financial institution — the High Court held that the Respondent, IFCI Ltd. is a ‘financial institution’ and as a consequence would be entitled to take recourse to the provisions of the sarfaesiAct in order to enforce a “security interest” which had accrued in its favour — impugned order in challenge — in view of Section 4 A(1)(ii) of the Act, 1956, the Industrial Finance Corporation of India was admittedly regarded as a `public financial institution’ for the purpose of the said Act — the Supreme Court held that the conversion of the Industrial Finance Corporation of India into a Company did not alter its position and status as a financial institution — impugned judgment and order of the High Court not interfered — petition dismissed — no costs.

Arbitration Definition

Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts. Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all disputes to arbitration, without knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.

Conciliation Definition

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includesdispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process (formal litigation – court).

History, origins and meaning of Arbitration

Arbitration is generally defined to mean the determination of disputes between parties by a person appointed or chosen by them (arbiter). It is thus an informal method of dispute resolution with flexibility in procedures and rules.  As a method of dispensing justice, arbitration is not a modern phenomenon. The Western idea of private arbitration can be traced back to the Roman and Canon law. Arbitration as a dispute resolution mechanism was used in Common Law since the 14th Century.  However arbitration and other methods of dispute resolution have become of considerable significance after the 19th Century, with the advent of trans-national trade and commerce and with a view to have speedy and inexpensive means of resolving grievances. Thus there is a clause for arbitration in most modern day trading contracts.

History of panchayats dispensing justice

However in India, panchayats (both village and the notorious ‘khap’ caste panchayats) have been arbitrating on property disputes, torts and even criminal offences like murder and rape since time immemorial. Panchayat (literally five wise men) is a representative body of the members of a particular caste or village (usually headed by the elder most people or the most respected and experienced elder).  One of the most important functions of these panchayats is the dispensing of justice.

Index, Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation

We Provide international arbitration services, legal arbitration services, domestic arbitration services. The Arbitration process in India is based on the UNCITRAL Model Law on International Commercial Arbitration. The Indian Arbitration and Conciliation Act, 1996 is the governing arbitration statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.
Previous statutory provisions on arbitration were contained in three different enactments, namely, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 and also the Acts of 1937 and 1961.
India is a party to the following conventions:

• The Geneva Protocol on Arbitration Clauses of 1923
• The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927; and
• The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. It became a party to the 1958 Convention on 10th June, 1958 and ratified it on 13th July, 1961.

There are no bilateral Conventions between India and any other country concerning arbitration.

• Arbitration and Conciliation
• Arbitration Judgments, Orders by Supreme Court of India
• Arbitration lawyers
• Books on Arbitration and Conciliation
• CHAPTER I General provisions
• CHAPTER II Arbitration Agreement
• CHAPTER III Composition of Arbitral Tribunal
• CHAPTER IV Jurisdiction of Arbitral Tribunals
• CHAPTER IX Appeals
• CHAPTER V Conduct of Arbitral Proceedings
• CHAPTER VI Making of arbitral award and termination of proceedings
• CHAPTER VII Recourse against arbitral award
• CHAPTER VIII Finality and enforcement of arbitral awards
• CHAPTER X Miscellaneous
• CHAPTER XI New York Convention Awards
• CHAPTER XII Geneva Convention Awards
• CHAPTER XIII SUPPLEMENTARY PROVISIONS
• Development of Arbitration Law
• Geneva Convention, 1927
• Geneva Protocol, 1923
• How to Draft an Arbitration Agreement?
• International Conventions on Arbitration
• Model Arbitration Agreement
• National Thermal Power … vs Singer Company And Ors on 7 May, 1992
• Requirements of an Arbitration Agreement
• Schedule 1-Convention on the recognition and enforce
• Schedule 2-Protocol on arbitration clauses
• Schedule 3-Convention of the execution of foreign arbitral awards
• The Applicable Arbitration Law
• The Arbitration Act, 1940
• The Arbitration And Conciliation Act, 1996
• The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards
• The Types of Arbitrations
• Validity of an Arbitration Agreement