2016 SCCL.COM 12(Case No: Arbitration Case (Civil) No. 37 of 2014)
Sanghi Brothers (Indore) Pvt. Ltd. Petitioner versus Muktinath Airlines Private Limited & another Respondents
Date of Decision(mm/dd/yy): 10/15/2016.
Judge(s): Hon'ble Mr. Justice Ranjan Gogoi.
Subject Index: Arbitration and Conciliation Act, 1996 – section 11(6) – application filed under – for appointment of an arbitrator – dispute arose between the petitioner-Company and the respondents under an Agreement/Memorandum of Understanding. Clearly and evidently, sale and purchase of the Helicopter and delivery thereof in terms of the MoU has not materialized till date and whether the petitioner is entitled to performance of the terms of the MoU is the precise dispute between the parties – Shri Justice Mukul Mudgal, Chief Justice (Retd.) Punjab and Haryana High Court is appointed as the Arbitrator and all the disputes raised in the petition referred to the learned sole Arbitrator – petition disposed.
2016 SCCL.COM 182(Case No: Civil Appeal No. 4997 of 2016)
Mukul Sharma Appellant versus Orion India (P.) Ltd. through its Managing Director Respondent
Date of Decision(mm/dd/yy): 10/5/2016.
Judge(s): Hon'ble Justice Kurian Joseph and Hon'ble Justice Rohinton Fali Nariman.
Subject Index: Title suit – filed by the appellant praying for specific performance of the instrument between the appellant and the respondent – the Agreement says that half of the built up area on the ground floor of the proposed North Block of the complex as per the drawing No.GBA/891/03A and half of the built up area on the mezzanine floor of the same building and complete built up area on the first floor in the same building, were liable to be handed over to the appellant. On a dispute as to what is the built up area, the appellant filed the civil suit – the trial Court decreed the suit, however, the High Court viewed that the built up area includes the common area as understood by the parties and held that if plaintiff had once accepted the position in regard to the concept of 'built-up area' he cannot resile subsequently in view of bar under section 5 of the Indian Contract Act, 1872, once offer and acceptance is complete – the appeal – the defendant himself subsequently accepted the dispute raised by the plaintiff with regard to the concept of 'built-up area' and in express terms subsequently agreed that the built-up area will not include the common area like lift well, corridor, lobby, duct, etc. It is a situation where there is a dispute on a concept relating to an expression/concept which is not explained in the agreement – the plaintiff initially understood the concept in a particular angle or manner, but that does not prevent him from raising a dispute and on raising such a dispute, nothing prevented the defendant from insisting the plaintiff to stick to his original stand. On the contrary, it is the defendant who changed his stand as per Ex.3 and Ex.4 and accepted the position as raised by the plaintiff. Thereafter and therefore, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position – impugned judgment of the High Court with regard to the finding on the 'built-up area' set aside and that of the trial Court restored.
2016 SCCL.COM 181(Case No: Civil Appeal No.4646 of 2006 with Civil Appeal No.4930 of 2006 )
Indrani Wahi Appellant versus Registrar of Coop. Societies and other Respondents
Date of Decision(mm/dd/yy): 10/3/2016.
Judge(s): Hon'ble Justice Jagdish Singh Khehar and Hon'ble Justice C.Nagappan.
Subject Index: West Bengal Cooperative Societies Act, 1983 – section 79 – transfer of title in favour of nominee – allotment of flat in the name of the member-deceased. After the death of her father, the appellant addressed a communication to the Secretary of `the Cooperative Society', for entering her name in place of the name of her father, with reference to Flat – the transfer of the flat in the name of the appellant was declined on the ground, that the appellant being a married daughter did not fall within the definition of term `family' as contemplated under Section 79 of the 1983 Act – writ petition filed – the ld. Single Judge held that the Deputy Registrar of the Cooperative Societies was not justified to exclude the appellant being a daughter of the original member from the purview of the provisions of the 1983 Act, and the 1987 Rules framed there under thus, directed the Registrar of the Cooperative Societies to grant the necessary approval for transfer of the membership in the name of appellant as nominee of the original owner. However, the Division Bench held that to protect the interest of the appellants in the flat which they have inherited, it is necessary for the said Society to record their interest expressly in the share Certificate as well as in its records pertaining to members and, in particular in the register of members so that one of the joint owners merely because of the nomination in her favour cannot transfer either the share, in which she has a part interest, or the allotment, where also she has a part interest, for the same is expressly declared to be transferable and, accordingly, can only be transferred by expressing consent of all the heirs – the appeal – the original member in whose name Flat was entered, had recorded the name of his daughter-appellant as his sole nominee in terms of Section 79 of the 1983 Act – the rights of others on account of an inheritance or succession is a subservient right. Only if a member had not exercised the right of nomination under Section 79, then and then alone, the existing share or interest of the member would devolve by way of succession or inheritance. Rule 128 also provides that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate – transfer of share or interest, based on a nomination under Section 79 in favour of the nominee, is with reference to the concerned Cooperative Society, and is binding on the said society – appeal allowed.