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Ms. Anita Sahni, Advocate has been appointed sole Arbitrator in these petitions to adjudicate the dispute between the Parminder Jit kaur and others versus Splendor Buildwel Pvt. Ltd. & Anr. By Hon’ble Mr. Justice Suresh Kumar Kait [ARB.P. 841/2021, ARB.P. 842/2021, ARB.P. 843/2021].

The present petitioner have been filled under the provisions of Section11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator to adjudicate the dispute with respondents. With the consent of all the parties the matter is being heard together as the petitions are more or less similar.

According to petitioner(s), respondent No.1 & 2 are companies registered under the Companies Act, 1956 and pursuant to understanding between two of them, respondent No.1-company agreed to undertake to develop and construct IT Building/Tower(s) consisting of IT Office Spaces on the land admeasuring 6.775 acres situated in Sector-58 in the revenue estate of Village Behrampur, Tehsil Sohna and District Gurgaon, Haryana owned by respondent No.2. For this purpose, respondents No.1 and 2, who were said to be sister concerns, entered into a Space Buyers Agreement and Memorandum of Understanding dated 28.07.2021 in [ARB.P.841/2021]; Space Buyers Agreement 24.10.2016 and Memorandum of Understanding dated 25.10.2016 in [ARB.P.842/2021] and Space Buyers Agreement and Memorandum of Understanding dated 06.05.2015 in [ARB.P.841/2021] whereunder respondent No.1 undertook to register conveyance deed in the name of petitioner within six months of receipt of Occupancy Certificate. The petitioner(s) claimed to have paid entire amount of Rs.25,70,400/ towards sales consideration with respect to unit No.404, super area of 765 Sq.ft on the Second Floor of Tower-D (in ARB.P.841/2021) and Rs.40,94,310/- towards sales consideration with respect to unit No.412, super area of 1306 Sq.ft on the Second Floor of Tower-D 9 (in ARB.P.842/2021) and Rs.41,48,3201/ – towards sales consideration with respect to unit No.205, super area of 975 Sq.ft on the Second Floor of Tower-B (ARB.P.843/2021).

The petitioner has submitted that the Space Buyers Agreements and Memorandum of Understandings have been violated, whereunder in Clause-31 & 34 it was agreed between the parties that disputes, if any, first shall be tried to be resolved through mutual discussion, failing which the same shall be settled through arbitration. After various demands by the petitioners for the payment of pending assured terms and execution of sale deed, the respondent provided no reply and therefore the present petition is present.

The Delh High Court following the dictims of the Surpeme Court in the cases of Perkins Eastman Architects DPC & Anr. Vs. HSCC (India) Ltd. 2019 SCC Online SC 1517, allowed the petitioner and thus Ms. Anita Sahni has been appointed as the sole arbitrator in the present matter.

The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration, concludingly the present petitions are disposed of by the Delhi High Court.

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Judgment Reviewed by: Ashwin Singh

Remit to the tribunal to assess the compensation with regard to future loss of income.: High Court of Delhi

The amount that has already been released to the appellant, under the original award, shall be appropriately taken into account by the tribunal while reassessing compensation if any. The decision was granted by Hon’ble Mr. Justice Sanjeev Sachdeva in the case of Ratan Majumdar Versus Vipul Goel & Anr [MAC.APP. 134/2019].

The present application is filled by the appellant seeking a remit for the purpose of leading additional evidence on behalf of the appellant. In the present case there is no liability of respondent 1, therefore respondent 1 is dispensed with.

The Delhi High Court had directed the Medical Superintendent of Jag Parvesh Chandra Hospital to constitute a medical board to assess the permanent disability of the appellant, if any and to submit a report to the Delhi High Court. The Petitioner has pointed out that pursuant the said directions, the Medical Superintendent by its letter dated 05.02.2019 has forwarded the disability certificate and has assessed 40% permanent disability in relation to the lower limbs, the petitioner further states that at the time of leading evidence, the educational record of the appellant was not available and subsequently the same has been traced out and placed on record.

It has been noted that the impugned award that there is no discussion with regard to the permanent disability or grant of future loss of income, if any, to the appellant. Furthermore the tribunal also nnnoted that in the award that there was no record produced with regard to his academic status and accordingly the monthly income was notionally assessed on the benchmark of prevalent minimum wage of unskilled workers. In the present case as per the medical examination of the medical board, the appellant has sustained 40% permanent disability in relation to both his lower limbs, in the view of the present court, it is a fit case for a remit to the tribunal to assess the compensation with regard to future loss of income. Further, since the appellant claims to have traced out the educational documents, the tribunal shall also revisit the award based on evidence that may be produced by the appellant and reassess the income, if so warranted.

Concludingly the amount which has already been released to the appellant, under the original award, shall be appropriately taken into account by the tribunal while reassessing compensation if any.

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Judgment Reviewed by: Ashwin Singh

The appeals involve three sets of Employment compensation cases. Challenging the liability and the quantum in the employment compensation case as held by the Hon’ble Cuttack High court before the Hon’ble Justice Biswanath Rath in the matter of Tillotama Dash & Ors. V. Secretary Managing Committee, Paradeep Port Trust, Paradeep. [FAO No.321 of 2018].

The case arises from the fact wherein, the managing committee of Paradeep Port Trust in filling the appeal agitated the issue of liability and submitted that respondent management has no responsibility for making payment of compensation involving the death due to the accident in question and have no remote connection with the management involved herein. The appeal arises out of three sets of accidents involving the death of three persons. Section 2(e) of the Employment compensation act of 1923 states employer includes anybody to person whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer and the service is temporary lent or hire to another person.

Respondent managing Committee contended that there is no establishment of the role of the Principal Employer in the accident. The claimant strongly disputed the claim of the Respondent Managing Committee filed FAO [First Appeal Order] seeing enhancement of the compensation amount. The material document and evidence are able to establish that the accident connects the Principal employer and there is a complete failure in distributing such material by the respondent management. Section 3 of the Employment Compensation Act of 1923 the employer is liable for compensation when the injury is caused during the course of employment and has permanent incapacitates.

The Hon’ble Court held that the claim on the managing committee is related to the fact that the accident in question has not arisen in course of employment and management has no liability to pay the compensation and cannot be forced. The Hon’ble Justice Biswanath Rath stated from the pleadings and the discussion with the authority finds out that there is a force in the submitting of the material documents. It concluded by stating that, “There is a slight reduction in the compensation amount as awarded in the disposal of the employment compensation case. The compensation award by the authority to a sum of Rs. 5,80,000/- from Rs. 6,25,880/- from the interim director of the lower authority court to the respondent Management to release 30% of the compensation amount.”

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Judgement Reviewed by – Kaviya S.

The psyche and mental maturity of the victim at the relevant point of time ought also to be looked into to ascertain as to whether the alleged act of sexual intercourse between the accused and the victim, was participatory from both ends. Such an opinion was held by the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya in the matter of Sushanka Ghosh Vs. The State of West Bengal [C.R.A. No.209 of 2017].

It appears that the appeal had been preferred against the conviction of the appellant under Sections 417 and 376 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). It was contended by the learned advocate representing the appellant that the prosecution did not produce any document in evidence to show that the victim was a minor at the relevant date. Learned advocate contends that the trial court relied on an Admit Card, which was never revealed at all. Moreover, the counsel for the appellant referred to a case reported in the Hon’ble Supreme Court which was Mahadeo S/o KerbaMaske Vs. State of Maharashtra and another [ (2013) 4 SCC 637], wherein the Hon’ble Supreme Court categorically held that under Rule 12 of the Juvenile Justice (Care and Protection Children) Rules, 2007, that clearly provides the mode of proving the age. The victim admitted that the accused offered to marry her and cohabited with the victim one or two times. The learned counsel next contends that as admitted by the victim there was an affair going on between the accused, who was aged about 20 years, and the victim, who was allegedly 17 years 5 months old at the relevant point of time.

Furthermore, it was contended on behalf of the appellant that the prosecution witness, who accompanied the victim to the hospital for her medical examination on November 10, 2015, had not stated anything in her evidence regarding the collection of any vaginal swab. Whereby, the medical report and the witnesses’ visit with the victim to the hospital oppose each other. Learned counsel representing the State contends that the Trial Judge, in the impugned judgment, indicated that the Admit Card of the victim was exhibited in the Court, which revealed the date of birth of the victim was May 30, 1998. The State representative submits that there is sufficient corroborative evidence on record to prove the prosecution case. However, the Hon’ble Court mentions that unless proved in accordance with the law, no document, including the alleged Admit Card, could even be looked into by the Trial Judge, since there was no probative value of such document, even if handed over during trial to the court below. 

The Hon’ble Court was of opinion that a simple refusal to marry, subsequently after the alleged incident cannot be a handle to implicate the appellant on the charges clamped against him. Therefore, keeping all the facts, evidence in check,  the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya ruled out  “… the judgment and orders of conviction and sentence dated February 7, 2017, and February 8, 2017, passed by the Additional District and Sessions Judge, Second Court at Krishnanagar, District-Nadia in Sessions Trial No.IX(III)/2016. The appellant is hereby acquitted of all the charges and shall immediately be released, if in custody. The appellant is further discharged from any condition or bond if furnished by the appellant in connection with any order of bail obtained by the appellant at any point of time”.

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Judgment reviewed by Bipasha Kundu

The accused was deprived of his liberty and freedom due to the impugned judgment by the learned Trial judge who overlooked to assess the materials on record objectively and proceeded more on gut feeling and vague legal principles. The Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya held such views in the matter of  Sk. Dilkhus Alam @ Sk. Dilkhush Alam Vs. The State of West Bengal [C.R.A. No.457 of 2019].

The facts of the case relate to an appeal that was raised out of the conviction of the appellant under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act,2012). The learned advocate representing the appellant argues that there was no valid evidence that was enough to make out a rational case against the appellant. The learned advocate said that leaving out the 10-year-old victim girl alone just to fetch the victim’s parent’s AADHAR card was not at all acceptable. It was further known that the complainant alleged himself to be the maternal uncle of the victim, but during the cross-examination, it was admitted that the complainant did not know the victim’s father’s name. Moreover, all the witnesses belong to the same village as that of the complainant. 

The accused in his statement further stated that some people complained against Jhuma and her husband who were selling forms of AADHAR cards at a price of Rs 200. Thereby, the case seemed clear according to the learned counsel representing the appellant said that the case was devised against the accused since he protested against the illegal sale of AADHAR Card forms. 

On the other hand, the learned counsel representing the state denied the submissions of the appellant and contended that all the statements of the victim girl were verified by other evidence of the prosecution witnesses, all these proofs were sufficient to convict the accused. The Hon’ble Court had views that the entire evidence of the prosecution witnesses was hearsay and the knowledge of the said alleged incident derived from all the witnesses was from the complainant Raju Mal himself. 

Furthermore, during the cross-examination, Jhuma Let admitted that the place of occurrence was a crowdy and congested place that had traffic police, many people and shops, fruit stalls, meat-chicken shop, doctor’s chamber, utensil shop, sweet shop, etc. in front of the State Bank, Bolpur branch, within which the AADHAR Card office was located. However, no outcry was raised immediately after the alleged incident was discovered, for some unknown reason, neither the complainant approached the bank officials, nor was anybody present at the place of occurrence produced as a prosecution witness to make out a positive case, at least regarding the accused had taken the victim girl inside the AADHAR Card office. The investigation officer could not get their hands on the bank CCTV footage on a mere pretext that the bank officials refused to hand over them. The Hon’ble Court in this regard held “Withholding such witnesses and the CCTV camera footage of the bank gives rise to adverse inference against the prosecution under Section 114, illustration (g) of the Evidence Act, 1872”. 

It seems that various salient features from the mentioned facts remain unexplained. For instance, the reason still remains unknown for leaving the victim girl alone in the AADHAR card office; the fact that all the witnesses who were being produced as prosecution witnesses were all from the same village as that of the complainant, including some of his relatives; it was still unexplained that why none saw the victim girl being taken by the accused inside the room where the incident allegedly occurred. 

The Hon’ble High Court of Calcutta held “… In the light of the above considerations, the impugned judgment and order of conviction were bad in law as well as on facts and ought to be set aside. Accordingly, the appeal succeeds … thereby setting aside the judgment and order of conviction dated July 17, 2019, passed by the Additional District and Sessions Judge-cum-Judge, Special Court (POCSO Act) at Bolpur, Birbhum in Sessions Trial No.18 (June) of 2019 arising out of Special (POCSO) Case no.12 of 2019 and the consequential sentence awarded against the appellant”. 

The Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya pronounced “The appellant is hereby acquitted honourably and shall be discharged from custody, if at present in incarceration, and stands discharged of all conditions and bail bonds, if furnished by the appellant for obtaining bail at any point of time”. 

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Judgment reviewed by Bipasha Kundu