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  • Punjab & Haryana High Court Upholds Mandatory Pre-Deposit Under Section 43(5) of RERA for Promoter

    Punjab & Haryana High Court Upholds Mandatory Pre-Deposit Under Section 43(5) of RERA for Promoter

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 10.08.2026

    Punjab & Haryana High Court Upholds Mandatory Pre-Deposit Under Section 43(5) of RERA for Promoter

    This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com . Β 

    The Punjab and Haryana High Court recently delivered a significant judgment in the case of Vrinda Krishna Realtech Private Limited v. State of Punjab and Others, addressing the enforceability of the pre-deposit requirement for appeals under the Real Estate (Regulation and Development) Act, 2016 (RERA). This article provides a detailed analysis of the case, its background, legal arguments, and the implications for real estate promoters and stakeholders.

    Background of the Case

    Vrinda Krishna Realtech Pvt. Ltd., a real estate promoter, was developing a residential colony in Pathankot, Punjab. The company faced a penalty of Rs. 50 lakhs imposed by the Punjab RERA for violation of Section 3 of the RERA Act, primarily for not obtaining the required project registration. The penalty was imposed ex parte after the promoter failed to respond to multiple notices and did not appear before the authority.

    Subsequently, the promoter sought to challenge the penalty but was confronted with the statutory requirement under Section 43(5) of the RERA Act: a mandatory pre-deposit of 30% of the penalty amount as a condition for filing an appeal. Arguing that the project had not taken off, no third-party rights were created, and the penalty was imposed without proper service, the promoter approached the High Court seeking a waiver or reduction of the pre-deposit requirement.

    Legal Arguments Presented

    Petitioner’s Contentions

    1. No Project Execution or Third-Party Rights: The promoter argued that since the project was never executed and no third-party rights were created, the penalty was arbitrary and caused undue hardship.
    2. Ex Parte Proceedings: The penalty was imposed without proper service or opportunity to be heard.
    3. Request for Waiver/Reduction: The promoter cited previous cases where courts had relaxed pre-deposit requirements in exceptional circumstances, arguing that the High Court had the power to grant relief in cases of genuine hardship.

    Respondents’ Position

    The State and RERA authorities maintained that the pre-deposit requirement was statutory and had been upheld by the Supreme Court. They argued that the promoter had been duly served with notices but chose not to participate in the proceedings.

    Court’s Analysis and Findings

    1. Validity of Pre-Deposit Requirement: The Court emphasized that the Supreme Court, in M/s Newtech Promoters and Developers Pvt. Ltd. v. State of U.P., had upheld the validity of Section 43(5) of the RERA Act, confirming that the pre-deposit obligation for promoters is neither onerous nor unconstitutional.
    2. Scope for Waiver: Referring to M/s Technimont Pvt. Ltd. v. State of Punjab, the Court acknowledged that while the High Court can interfere in cases of genuine hardship, such discretion is to be exercised sparingly and only in exceptional circumstances.
    3. Petitioner’s Conduct: The Court found that the promoter had been served with multiple notices, including personal delivery and newspaper publication, but failed to respond or appear. The penalty was imposed only after due process.
    4. No Exceptional Hardship: The Court held that the facts did not demonstrate any exceptional hardship warranting waiver or reduction of the pre-deposit. The promoter’s arguments could be raised in the appeal, provided the statutory pre-deposit was made.

    Key Takeaways from the Judgment

    • Strict Enforcement of Pre-Deposit: The High Court reaffirmed that the pre-deposit requirement under Section 43(5) of RERA is mandatory for promoters seeking to file an appeal against penalties or orders.
    • Limited Scope for Waiver: Courts may consider waiving or reducing the pre-deposit only in rare cases of genuine hardship, which must be clearly demonstrated by the petitioner.
    • Importance of Compliance: Promoters must respond to notices and participate in proceedings to avoid ex parte penalties and subsequent procedural hurdles.

    Implications for Real Estate Promoters

    1. Mandatory Pre-Deposit: Promoters must be prepared to deposit 30% of the penalty or compensation amount when appealing RERA orders.
    2. Timely Participation: Ignoring notices or failing to appear can lead to adverse orders and limit the scope for judicial relief.
    3. Strategic Legal Planning: Before initiating appeals or writ petitions, promoters should assess the statutory requirements and ensure compliance to avoid dismissal on technical grounds.

    Conclusion

    The Vrinda Krishna Realtech judgment underscores the judiciary’s commitment to upholding the statutory framework of RERA and ensuring that promoters comply with procedural requirements. The decision serves as a cautionary tale for real estate developers, highlighting the importance of timely engagement with regulatory authorities and adherence to legal processes.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Punjab & Haryana High Court

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  • Supreme Court Upholds Amendments to the Insolvency and Bankruptcy Code

    Supreme Court Upholds Amendments to the Insolvency and Bankruptcy Code

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 10.08.2026

    Supreme Court Upholds Amendments to the Insolvency and Bankruptcy Code

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Supreme Court of India recently delivered a landmark judgment in the case of Manish Kumar v. Union of India, addressing the constitutional validity of key amendments to the Insolvency and Bankruptcy Code (IBC), 2016. This article provides a comprehensive overview of the case, the challenged amendments, arguments from both sides, and the Court’s reasoning and verdict.

    Background: The Amendments in Question

    The petitions challenged Sections 3, 4, and 10 of the Insolvency and Bankruptcy Code (Amendment) Act, 2020. These amendments introduced significant changes:

    1. Section 3: Amended Section 7(1) of the IBC, requiring that certain financial creditors (notably, allottees in real estate projects and debenture/security holders) must file insolvency applications jointlyβ€”by at least 100 creditors or 10% of the total in the same class/project, whichever is less.
    2. Section 4: Added an explanation to Section 11, clarifying that a corporate debtor undergoing insolvency can still initiate insolvency proceedings against another corporate debtor.
    3. Section 10: Inserted Section 32A, granting immunity to the corporate debtor from prosecution for offences committed prior to the insolvency process, provided there is a change in management.

    Who Were the Petitioners?

    The majority of petitioners were homebuyers (allottees) in real estate projects, joined by money lenders and other financial creditors. They argued that the new thresholds for initiating insolvency proceedings were arbitrary, discriminatory, and violated their constitutional rights under Articles 14, 19(1)(g), 21, and 300A.

    Key Arguments Presented

    Petitioners’ Contentions

    1. Hostile Discrimination: The amendments created an unjust distinction between different classes of financial creditors, especially disadvantaging homebuyers and small investors.
    2. Practical Difficulties: Homebuyers lack access to information about other allottees, making it nearly impossible to meet the new threshold requirements.
    3. Retrospective Application: The third proviso required pending applications (filed under the old regime) to comply with the new thresholds within 30 days, or be deemed withdrawn, which was argued to be arbitrary and unfair.
    4. Section 32A: Granting immunity to corporate debtors was claimed to undermine remedies for offences and harm creditors’ interests.

    Union of India’s Defense

    1. Reasonable Classification: The amendments were based on recommendations from an expert committee and aimed to address the unique challenges posed by large numbers and heterogeneity among homebuyers and debenture holders.
    2. Preventing Abuse: The threshold was intended to prevent frivolous or speculative insolvency applications by individual allottees, which had led to a surge in cases and burdened the adjudicating authorities.
    3. Procedural, Not Substantive: The right to file an application under Section 7 is statutory and can be conditioned by procedural requirements.
    4. Section 32A: The immunity was necessary to encourage resolution applicants to take over distressed companies without fear of past liabilities, while still holding previous management accountable.

    Supreme Court’s Analysis and Reasoning

    On Threshold Requirements (Section 7(1) Provisos)

    • The Court recognized the unique position of homebuyers and debenture holders, marked by large numbers and diverse interests, justifying a different procedural threshold.
    • The amendments were found to be a reasonable classification, not arbitrary or discriminatory, and aligned with the objectives of the IBC to ensure speedy and collective insolvency resolution.
    • The Court noted that even before the amendment, joint applications were permissible, and the new requirements merely formalized a minimum number for certain classes.
    • Practical difficulties in gathering information were acknowledged, but the Court held that mechanisms under RERA and the Companies Act provided sufficient means to obtain necessary data.

    On Retrospective Application (Third Proviso)

    • The Court held that the third proviso, which required pending applications to comply with the new thresholds within 30 days, was a one-time measure and not manifestly arbitrary.
    • It clarified that withdrawal of applications under this proviso would not bar fresh applications if the threshold was later met, and directed that court fees need not be paid again for such refiled cases.

    On Section 32A (Immunity for Corporate Debtors)

    • The Court upheld Section 32A, finding it balanced the need to attract resolution applicants with the imperative to hold previous management accountable for past offences.
    • Immunity applied only if there was a genuine change in management and did not extend to individuals responsible for the offences.

    Impact and Relief Granted

    • The Supreme Court upheld the constitutional validity of the challenged amendments.
    • It provided relief to petitioners by exempting them from paying court fees again if they refiled applications after meeting the new thresholds and allowed for condonation of delay in such cases.

    Conclusion

    The Supreme Court’s judgment in Manish Kumar v. Union of India affirms the validity of the 2020 amendments to the IBC, emphasizing the legislature’s prerogative in economic matters and the need for procedural safeguards to ensure the effective functioning of insolvency law. The decision strikes a balance between protecting the interests of homebuyers and creditors and maintaining the integrity and efficiency of the insolvency resolution process.

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    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Supreme Court

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  • CESTAT Delhi Resolves Customs Classification Dispute on Imported LED Modules

    CESTAT Delhi Resolves Customs Classification Dispute on Imported LED Modules

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 10.08.2026

    CESTAT Delhi Resolves Customs Classification Dispute on Imported LED Modules

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi, recently delivered a significant judgment in the case involving M/s Elektron Lighting Systems Private Ltd and the Principal Commissioner of Customs. The dispute centered on the correct customs classification and duty assessment for imported LED modules used in manufacturing LED lights and fixtures. This article provides a detailed overview of the case, the arguments presented, the legal reasoning, and the implications for importers and the lighting industry.

    Background of the Case

    M/s Elektron Lighting Systems Pvt Ltd imported LED modules under various Bills of Entry between 2015 and 2019, declaring them under Chapter Tariff Headings (CTH) 8538 11090 and 8541 4020, attracting a Basic Customs Duty (BCD) of 10%. The Customs Department, after analysis, contended that these goods were more appropriately classifiable under CTH 9405 9900, which attracts a higher BCD of 20%. This led to reassessment, confiscation orders, and demands for differential duty, penalties, and interest.

    Key Issues in Dispute

    1. Correct Classification of Imported LED Modules:
      • Whether the LED modules should be classified under CTH 8541 4020 (LED diodes), CTH 8539 9090 (LED lamps and parts), or CTH 9405 9900 (parts of lamps and lighting fittings not elsewhere specified).
    2. Applicable Rate of Basic Customs Duty:
      • Whether the goods attract 10% or 20% BCD.
    3. Invocation of Extended Limitation Period:
      • Whether the department was justified in invoking the extended period for demanding duty and imposing penalties.

    Arguments Presented

    By the Appellant (Elektron Lighting Systems)

    • Classification Under CTH 8541 4020:
      • The imported modules are essentially LEDs, even if arranged on a printed circuit board (PCB), and do not have control drivers, thus fitting the description under CTH 8541 4020.
    • Alternative Classification Under CTH 8539 9090:
      • The modules could also be considered as parts of LED lamps, as per HSN Explanatory Notes.
    • Rejection of CTH 9405 9900:
      • CTH 9405 is a residuary entry and should not override more specific headings. The imported goods are not finished lamps or lighting fittings but components.
    • On Limitation:
      • The department had cleared similar imports in the past without objection, indicating no suppression or misdeclaration by the importer.

    By the Department

    • Classification Under CTH 9405 9900:
      • The LED modules are parts of lamps for exterior lighting (e.g., street lights) and should be classified under CTH 9405 9900, attracting 20% BCD.
    • Support from Precedents:
      • Relied on previous tribunal and Supreme Court decisions supporting classification of LED lighting fixtures under CTH 9405.

    Tribunal’s Analysis and Findings

    • Application of General Rules for Interpretation (GRI):
      • The Tribunal emphasized the sequential application of GRI 1-4, giving primacy to specific headings and HSN Explanatory Notes.
    • Nature of Imported Goods:
      • The goods were found to be LED modules (multiple LEDs on a PCB), lacking control drivers, and not finished lamps or fixtures.
    • Classification Decision:
      • The Tribunal held that the modules are more appropriately classifiable under CTH 8539 (LED lamps and parts), not under the residuary CTH 9405.
      • The essential character of the goods at the time of importation was decisive, not their intended use.
    • Duty Assessment:
      • Since CTH 8539 attracts a BCD of 10%, and this had already been paid, there was no short payment of customs duty.
    • On Limitation and Penalties:
      • The Tribunal found no justification for invoking the extended limitation period or imposing penalties, as the department had previously accepted similar classifications.

    Final Order and Implications

    • Orders-in-Original Set Aside:
      • The Tribunal set aside the orders demanding differential duty and penalties.
    • Appeal Allowed for Importer:
      • The appeal by Elektron Lighting Systems was allowed, and the department’s appeal was dismissed.

    Implications for Importers and Industry

    1. Clarity on Classification:
      • LED modules without control drivers are to be classified under CTH 8539, not under the residuary CTH 9405.
    2. Duty Rate Certainty:
      • Importers of similar goods can rely on a 10% BCD rate, provided the goods match the description in CTH 8539.
    3. Importance of Documentation:
      • Accurate and consistent classification in Bills of Entry and supporting technical documentation is crucial.
    4. Precedent Value:
      • The ruling provides a strong precedent for future disputes involving LED modules and similar components.

    Conclusion

    The CESTAT Delhi’s decision in the Elektron Lighting Systems case provides much-needed clarity on the customs classification of LED modules. By emphasizing the importance of specific tariff headings and the actual nature of imported goods, the Tribunal has set a clear standard for both importers and customs authorities. This judgment is expected to streamline import processes and reduce litigation in the LED lighting sector.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Delhi

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  • Punjab & Haryana High Court Clarifies RERA Rules for Haryana Real Estate: Pre-Deposit, Adjudication Powers, and Retroactive Application Upheld

    Punjab & Haryana High Court Clarifies RERA Rules for Haryana Real Estate: Pre-Deposit, Adjudication Powers, and Retroactive Application Upheld

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 08.08.2026

    Punjab & Haryana High Court Clarifies RERA Rules for Haryana Real Estate: Pre-Deposit, Adjudication Powers, and Retroactive Application Upheld

    This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com .  

    The High Court of Punjab and Haryana at Chandigarh delivered a comprehensive judgment addressing a series of writ petitions filed by real estate developers, infrastructure companies, and other stakeholders against the Union of India and state authorities. The core issues revolved around the interpretation and constitutional validity of several provisions of the Real Estate (Regulation and Development) Act, 2016 (RERA), the Haryana Real Estate (Regulation and Development) Rules, 2017, and their subsequent amendments. This article provides a detailed analysis of the judgment, its background, and its implications for the real estate sector in Haryana and beyond.

    Background: The Disputes and Stakeholders

    The judgment consolidated numerous petitions from prominent real estate companies such as Experion Developers Pvt. Ltd., Jasmine Buildmart, SS Group, Bestech India, Parsvnath Developers, Emaar MGF Land, Supertech, BPTP, and others. These petitions challenged various aspects of the regulatory framework governing real estate projects, including:

    • The requirement for promoters to make a pre-deposit before appealing orders of the Real Estate Regulatory Authority (RERA) or Adjudicating Officer (AO).
    • The division of adjudicatory powers between the RERA Authority and the AO.
    • The validity of amendments to Haryana Rules 28 and 29 and related forms.
    • The retroactive application of RERA to ongoing projects.

    Key Legal Issues Addressed

    1. Pre-Deposit Requirement for Appeals (Section 43(5) of RERA)

    Issue: Whether the statutory requirement for promoters to deposit at least 30% of the penalty or the total amount payable to allottees before their appeal is heard is constitutional and reasonable.

    Court’s Findings:

    • The High Court upheld the validity of the pre-deposit requirement, citing Supreme Court precedents that allow legislatures to impose conditions on the right to appeal.
    • The Court found that promoters and allottees are distinct classes with different rights and obligations, justifying the differential treatment.
    • The pre-deposit is intended to deter frivolous appeals and ensure timely delivery of real estate projects.

    Example: If a developer is penalized by RERA and wishes to appeal, they must first deposit 30% of the penalty or the amount owed to the buyer, ensuring only serious appeals proceed.

    2. Division of Powers: RERA Authority vs. Adjudicating Officer

    Issue: Whether the amendments to Haryana Rules 28 and 29, which delineate the powers of the Authority and AO, are valid and consistent with the Act.

    Court’s Findings:

    • The Authority has broad powers to adjudicate complaints regarding violations of the Act, including refund, interest, and penalties.
    • The AO’s role is limited to determining the quantum of compensation or interest by way of compensation for violations under Sections 12, 14, 18, and 19.
    • The amended rules and forms (CRA and CAO) harmonize the adjudicatory process and are not ultra vires the Act.

    Example: If a buyer seeks both a refund and compensation, the Authority first determines if a violation occurred. If so, the matter of compensation is referred to the AO for quantification.

    3. Retroactive Application of RERA to Ongoing Projects

    Issue: Whether applying RERA to projects that commenced before the Act’s enforcement is constitutional.

    Court’s Findings:

    • The Act and Haryana Rules were intended to cover ongoing projects (those without a completion certificate as of May 1, 2017).
    • The retroactive application is justified by the need to protect buyers and regulate the sector, and does not violate constitutional rights.
    • Agreements entered into before RERA are subject to the new legal regime for the benefit of consumers.

    Example: A project started in 2015 but not completed by 2017 must register under RERA and comply with its provisions, ensuring buyers have recourse under the new law.

    4. Procedural Directions and Reliefs

    • The Court provided a one-time opportunity for petitioners to make the required pre-deposit by November 16, 2020, to have their appeals heard.
    • All interim orders were vacated, and pending appeals were directed to proceed as per law.

    Implications for the Real Estate Sector

    • For Developers: The judgment reinforces the need for compliance with RERA’s procedural safeguards, especially the pre-deposit for appeals. Developers must be prepared for stricter regulatory oversight and cannot avoid RERA’s provisions for ongoing projects.
    • For Homebuyers: The decision strengthens consumer protection, ensuring that buyers of ongoing projects have access to RERA’s remedies, including compensation and timely possession.
    • For Legal Practitioners: The clear delineation of powers between the Authority and AO streamlines dispute resolution and reduces jurisdictional confusion.

    Conclusion

    The High Court’s judgment is a landmark in clarifying the regulatory landscape for real estate in Haryana. By upholding the constitutionality of key provisions and amendments, the Court has reinforced the objectives of RERA: transparency, accountability, and consumer protection in the real estate sector. Stakeholders must align their practices with these legal standards to ensure compliance and foster trust in the market.

    Connected Matter

    Jurisdiction of RERA Authority to Grant Refund/Interest and Scope of High Court’s Power to Waive Pre-Deposit under Section 43(5) of the RERA Act- 2016

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Punjab & Haryana High Court

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  • Bombay High Court on Interim Measures in Arbitration: Enforceability of Undisputed Invoices and Third-Party Directions under Section 9

    Bombay High Court on Interim Measures in Arbitration: Enforceability of Undisputed Invoices and Third-Party Directions under Section 9

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 08.08.2026

    Bombay High Court on Interim Measures in Arbitration: Enforceability of Undisputed Invoices and Third-Party Directions under Section 9

    This Short Article has been prepared & written by Arbitrator Shobhit Mallik. The views expressed are based on his interpretation of the law. He can be reached at his email id shobhit.Ica23@gmail.com .

    This article provides a comprehensive overview and analysis of the Bombay High Court’s judgment in the commercial appeals involving Valentine Maritime Ltd (VML), Kreuz Subsea Pte Limited (KSS), and Oil and Natural Gas Corporation Ltd (ONGC). The case centers on interim measures granted in arbitration proceedings, the enforceability of undisputed invoices, and the rights of subcontractors and third parties in complex commercial contracts.

    Background of the Dispute

    • Parties Involved:
      • Valentine Maritime Ltd (VML): Contractor, incorporated in Liberia, with operations in Abu Dhabi.
      • Kreuz Subsea Pte Limited (KSS): Subcontractor, incorporated in Singapore.
      • Oil and Natural Gas Corporation Ltd (ONGC): Principal employer, based in Mumbai, India.
    • Project Scope:
      • ONGC contracted VML for subsea pipeline installation and related works.
      • VML subcontracted part of the work to KSS.
    • Key Contractual Events:
      • ONGC awarded the contract to VML in August 2019.
      • VML appointed KSS as subcontractor in October 2019.
      • Disputes arose over payment of invoices, performance guarantees, and liquidated damages.

    Core Issues in the Case

    1. Non-Payment of Invoices:
      • KSS claimed VML failed to pay for work completed and certified by ONGC, despite VML receiving payment from ONGC.
      • VML withheld payments citing KSS’s failure to provide a performance bank guarantee and alleged delays.
    2. Interim Measures under Arbitration Act:
      • KSS sought interim relief under Section 9 of the Arbitration and Conciliation Act, 1996, requesting the court to secure payment by directing VML (or, failing that, ONGC) to deposit the disputed amount in court.
    3. Impleadment of ONGC:
      • ONGC challenged its inclusion as a party, arguing there was no arbitration agreement between ONGC and KSS.

    Court’s Analysis and Findings

    1. Undisputed Invoices and Payment Obligations

    • The court found that VML was contractually obligated to pay KSS within 7 days of receiving payment from ONGC for work certified by ONGC.
    • VML did not dispute the May 2020 invoices within the stipulated 5-day period, making the claim crystallized and undisputed.
    • VML’s subsequent attempts to withhold payment based on counterclaims (liquidated damages, performance guarantees) were not valid grounds to delay payment of undisputed invoices.

    2. Interim Measures and Security for Claims

    • The court upheld the Single Judge’s order directing VML to deposit the amount of US $2,403,073 (the value of the May 2020 invoices) in court.
    • If VML failed to deposit, ONGC was directed to deposit the amount from sums due to VML, ensuring KSS’s claim was secured pending arbitration.
    • The court emphasized that such interim measures are essential to preserve the efficacy of arbitration and prevent frustration of the arbitral process.

    3. Impleadment and Orders Against Third Parties (ONGC)

    • The court clarified that while ONGC was not a party to the arbitration agreement between VML and KSS, it could be impleaded in Section 9 proceedings if its interests were likely to be affected.
    • The court has the power to direct third parties to deposit amounts in court to secure claims, provided such orders do not adjudicate disputes between the third party and the parties to the arbitration agreement.

    4. Legal Principles Applied

    • The court relied on established precedents regarding:
      • The enforceability of undisputed invoices.
      • The scope of interim measures under Section 9 of the Arbitration Act.
      • The ability to grant orders against third parties to secure the subject matter of arbitration.

    Key Takeaways and Implications

    • Prompt Dispute Notification: Parties must raise disputes within contractually stipulated periods; failure to do so can crystallize claims and limit defenses.
    • Securing Claims in Arbitration: Courts can order deposits or security to protect the interests of claimants in arbitration, especially where there is a risk of dissipation of assets or non-payment.
    • Third-Party Involvement: Even non-signatories to the arbitration agreement (like ONGC) can be directed to act (e.g., deposit funds) if necessary to secure the subject matter of the dispute.
    • Balance of Equities: The court balanced the interests of all parties, ensuring that interim measures did not prejudice ONGC’s rights vis-Γ -vis VML.

    Conclusion

    The Bombay High Court’s judgment in this case reinforces the importance of honoring contractual payment mechanisms, the role of interim measures in arbitration, and the court’s willingness to secure claims even against third parties when justice so requires. The decision provides valuable guidance for contractors, subcontractors, and employers involved in large infrastructure projects and complex commercial arbitrations.

    Connected Matter

    Bombay High Court’s Analysis of Interim Relief and Contractual Obligations under Section 37 of the Arbitration and Conciliation Act, 1996

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Bombay High Court

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  • Bombay High Court Upholds Single-Member Authority and Strict PCPNDT Act Enforcement

    Bombay High Court Upholds Single-Member Authority and Strict PCPNDT Act Enforcement

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 08.08.2026

    Bombay High Court Upholds Single-Member Authority and Strict PCPNDT Act Enforcement

    This Short Article has been prepared & written by Advocate Madhumita Jha-Bombay High Court. The views expressed are based on her interpretation of the law. She can be reached at her email id jhamadhumita27@gmail.com .  

    This article provides a detailed overview and analysis of a recent judgment by the Bombay High Court, Nagpur Bench, in the case involving Dr. Niraj Kadam and Dr. Rekha Kadam (“the petitioners”) versus the State of Maharashtra and others. The case centers on the implementation and enforcement of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, particularly regarding the appointment of appropriate authorities and compliance with statutory requirements by medical practitioners.

    Background of the Case

    The petitioners, both medical practitioners and gynecologists, challenged:

    • The validity of a government notification dated 16 March 2016, which appointed single-member appropriate authorities at the taluka (sub-district) level under Section 17(2)(3) of the PCPNDT Act.
    • The criminal proceedings initiated against them for alleged violations of the PCPNDT Act, including improper maintenance of records and other procedural lapses during an inspection of their clinic.

    The petitioners also sought the quashing of the seizure of their sonography machines and related orders.

    Key Facts

    • The petitioners operated a registered Genetic and Ultrasound Clinic in Wardha district, Maharashtra.
    • An inspection by the appointed authority (Dr. Mohan Sute) on 18 January 2022 revealed several discrepancies, including missing signatures on consent forms, absence of a copy of the PCPNDT Act in the waiting area, and incomplete patient records.
    • Based on these findings, criminal proceedings were initiated, and the clinic’s sonography machines were seized.

    Legal Issues Raised

    1. Validity of Single-Member Appropriate Authority:
      • The petitioners argued that the law requires a multi-member committee for any appropriate authority, even at the sub-state level, and that the notification appointing a single-member authority was illegal.
    2. Compliance with PCPNDT Act:
      • The State contended that the petitioners failed to comply with mandatory record-keeping and consent requirements, justifying the inspection, seizure, and prosecution.

    Court’s Analysis and Findings

    1. Structure of Appropriate Authority under the PCPNDT Act

    • Section 17(3)(a): For the whole state, the appropriate authority must be a three-member committee (including a senior health officer, an eminent woman from a women’s organization, and a law department officer).
    • Section 17(3)(b): For any part of the state, the law allows the government to appoint an authority “of such other rank as the State Government may deem fit,” without mandating a multi-member committee.

    Judicial Precedents Considered

    • The court reviewed conflicting judgments from various High Courts:
      • Punjab & Haryana High Court: Favored a multi-member authority even at the sub-state level.
      • Gujarat, Delhi, Rajasthan, and Madhya Pradesh High Courts: Held that a single-member authority is valid for parts of the state.
    • The Bombay High Court aligned with the latter view, emphasizing legislative intent and operational flexibility, and held that the notification appointing a single-member authority was valid.

    2. Compliance and Enforcement

    • The court found that the petitioners had committed serious violations of the PCPNDT Act, including:
      • Failure to maintain required records and forms.
      • Missing signatures and declarations on consent forms.
      • Absence of statutory documents in the clinic.
    • The court held that these lapses justified the inspection, seizure of equipment, and initiation of criminal proceedings.

    3. Interpretation of Welfare Legislation

    • The court reiterated that the PCPNDT Act is a social welfare statute aimed at preventing female foeticide and ensuring gender equality.
    • It emphasized that strict compliance and robust enforcement are necessary to achieve the Act’s objectives.

    Conclusion and Impact

    • Petitions Dismissed: The court dismissed the petitions, upholding the validity of the single-member authority and the actions taken against the petitioners.
    • Legal Precedent: This judgment clarifies that, in Maharashtra (and by persuasive authority elsewhere), a single-member appropriate authority is legally valid for sub-state jurisdictions under the PCPNDT Act.
    • Enforcement Message: The decision underscores the judiciary’s commitment to strict enforcement of the PCPNDT Act and the importance of meticulous compliance by medical practitioners.

    Key Takeaways for Medical Practitioners

    • Strict Record-Keeping: All forms, consent letters, and statutory documents must be properly maintained and available for inspection.
    • Awareness of Authority Structure: Clinics should be aware that inspections and enforcement actions by single-member authorities are legally valid.

    Legal Compliance: Non-compliance, even in minor procedural aspects, can lead to severe penalties, including criminal prosecution and equipment seizure.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Bombay High Court

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  • Supreme Court Ruled on Classification of ‘Soft Serve’ Ice-Cream

    Supreme Court Ruled on Classification of ‘Soft Serve’ Ice-Cream

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 08.08.2026

    Supreme Court Ruled on Classification of ‘Soft Serve’ Ice-Cream

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    In a landmark judgment, the Supreme Court of India addressed a crucial question affecting the food and beverage industry: Should ‘soft serve’β€”the popular dessert sold at McDonald’s and similar outletsβ€”be classified as ‘ice-cream’ for the purposes of excise duty under the Central Excise Tariff Act? The case, Commissioner of Central Excise, New Delhi vs. M/s Connaught Plaza Restaurant (P) Ltd., has significant implications for manufacturers, retailers, and consumers alike.

    Background of the Case

    Connaught Plaza Restaurant (P) Ltd., the franchisee operating McDonald’s outlets in India, was engaged in selling various food items, including ‘soft serve.’ The company procured a liquid soft serve mix, which was processed and served to customers as a semi-solid, aerated dessert. The central issue was whether this ‘soft serve’ should be classified as ‘ice-cream’ (attracting 16% excise duty under heading 21.05) or under a different heading with nil or lower duty, as argued by the company.

    The Legal Dispute

    • Revenue’s Stand: The Commissioner of Central Excise argued that ‘soft serve’ is commonly understood as ‘ice-cream’ by consumers and should be taxed accordingly under heading 21.05.
    • Assessee’s Stand: Connaught Plaza contended that ‘soft serve’ is technically different from ‘ice-cream’ due to its lower milk fat content (less than 6%) and semi-solid state. They argued for classification under headings 04.04 or 2108.91, which would attract nil duty.

    Tribunal and Lower Authorities

    The case saw conflicting decisions at various levels:

    • The adjudicating authority initially classified ‘soft serve’ under heading 04.04 (other dairy produce), then later under 21.05 (ice-cream), and finally under 2108.91 (edible preparations not elsewhere specified).
    • The Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) ruled in favor of Connaught Plaza, holding that ‘soft serve’ was not ‘ice-cream’ as per technical definitions and thus attracted nil duty.

    Supreme Court’s Analysis

    The Core Question

    The Supreme Court had to decide whether, in the absence of a statutory definition, ‘ice-cream’ should be interpreted by its technical meaning or by how it is understood in common parlance (everyday language).

    The Common Parlance Test

    The Court reviewed several precedents and reaffirmed that, unless a statute provides a technical definition, goods in excise law should be classified according to how they are understood by the average consumer. The Court noted:

    • Most consumers visiting McDonald’s for a ‘soft serve’ would consider it a type of ‘ice-cream,’ regardless of technical distinctions like milk fat content or serving temperature.
    • Marketing terminology or technical specifications do not override the common understanding of the product.

    Rejection of Technical Arguments

    The Court rejected the argument that ‘soft serve’ should be excluded from the ‘ice-cream’ category due to its lower fat content or semi-solid state. It also clarified that definitions from other statutes (like the Prevention of Food Adulteration Act) should not be imported into excise law, as their purposes differ.

    Reference to Trade Notices

    The Court also referred to a trade notice from the Central Excise Department, which classified ‘soft serve’ dispensed by vending machines as ‘ice-cream’ under heading 21.05, further supporting the revenue’s position.

    The Final Ruling

    The Supreme Court set aside the Tribunal’s decision and ruled in favor of the Commissioner of Central Excise. The Court held:

    • ‘Soft serve’ is to be classified as ‘ice-cream’ under heading 21.05 of the Central Excise Tariff Act.
    • The product is subject to excise duty as claimed by the revenue.

    Excerpt from the Judgment:

    “In conclusion, we reject the view taken by the Tribunal and hold that β€˜soft serve’ is to be classified as β€œice-cream” under heading 21.05 of the Act. … the appeals are allowed and the impugned orders of the Tribunal are set aside, leaving the parties to bear their own costs.”

    Implications of the Judgment

    • For Businesses: Outlets selling ‘soft serve’ must classify it as ‘ice-cream’ for excise purposes and pay the applicable duty.
    • For Consumers: The decision clarifies that, in the eyes of the law, ‘soft serve’ is considered ‘ice-cream,’ aligning with popular perception.
    • For Legal Interpretation: The judgment reinforces the principle that, in the absence of technical definitions, common parlance prevails in tax classification.

    Conclusion

    The Supreme Court’s decision in the Connaught Plaza Restaurant case provides clarity on the classification of ‘soft serve’ and sets a precedent for similar disputes. By prioritizing the common understanding of products over technical distinctions, the Court has ensured that tax laws remain aligned with consumer perception and commercial reality.

    Connected Matter

    CESTAT Kolkata- Umbrella Panel Fabrics Classified as Made-Up Textile Articles, Not Woven Fabrics

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    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Supreme Court

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  • Jurisdiction of RERA Authority to Grant Refund/Interest and Scope of High Court’s Power to Waive Pre-Deposit under Section 43(5) of the RERA Act- 2016

    Jurisdiction of RERA Authority to Grant Refund/Interest and Scope of High Court’s Power to Waive Pre-Deposit under Section 43(5) of the RERA Act- 2016

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 07.08.2026

    Jurisdiction of RERA Authority to Grant Refund/Interest and Scope of High Court’s Power to Waive Pre-Deposit under Section 43(5) of the RERA Act- 2016

    This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com .  

    The Punjab & Haryana High Court recently delivered a significant judgment in a batch of writ petitions involving major real estate developers and the Haryana Real Estate Regulatory Authority (RERA). This article provides a detailed analysis of the case, the legal questions involved, the court’s reasoning, and its implications for promoters, allottees, and the real estate sector at large.

    Background of the Case

    Multiple real estate companies, including Ramprastha Promoters and Developers Pvt. Ltd., Athena Infrastructure Ltd., Selene Constructions Ltd., M/s Vipul Limited, SS Group Private Limited, and M/s Assotech Moonshine, challenged orders passed by the Haryana RERA. The core issues revolved around:

    1. Jurisdiction of RERA to order refunds and interest to allottees under Sections 12, 14, 18, and 19 of the Real Estate (Regulation and Development) Act, 2016 (RERA Act).
    2. Whether the High Court can waive or relax the mandatory pre-deposit condition under Section 43(5) of the RERA Act for promoters appealing RERA orders.

    Facts and Petitions

    • The developers had allotted flats to buyers under various projects, with agreements specifying possession dates and compensation for delays.
    • Due to delays in possession, buyers filed complaints before RERA, which ordered the developers to pay interest for the delay and, in some cases, refund amounts.
    • Developers argued that RERA lacked jurisdiction to grant such relief and that the mandatory pre-deposit for appeals was onerous and caused financial hardship.

    Legal Issues Examined

    1. Jurisdiction of RERA Authority vs. Adjudicating Officer

    • Developers’ Argument: Only the Adjudicating Officer (AO) could grant compensation and interest, not the RERA Authority.
    • Court’s Analysis:
      • The RERA Act distinguishes between ‘interest’ (for delayed possession/refund) and ‘compensation’ (for specific breaches or damages).
      • The Supreme Court in M/s NewTech Promoters and Developers Pvt. Ltd. v. State of UP clarified that RERA Authority can order refunds and interest for delayed possession, while the AO exclusively decides compensation claims.
      • The High Court affirmed that RERA Authority has jurisdiction to order refunds and interest, and such orders are within its statutory powers.

    2. Waiver/Relaxation of Pre-Deposit for Appeals (Section 43(5))

    • Developers’ Argument: The pre-deposit requirement (depositing the amount ordered by RERA before appeal) is harsh and should be waivable by the High Court.
    • Court’s Analysis:
      • The pre-deposit is a statutory mandate to protect allottees and ensure serious appeals.
      • The Supreme Court has upheld such requirements as constitutional and not discriminatory, given the different obligations of promoters and allottees.
      • The High Court retains constitutional powers under Article 226 to waive the pre-deposit in cases of extreme hardship, but the burden is on the petitioner to prove genuine inability with documentary evidence.
      • In these cases, the developers failed to provide sufficient evidence of hardship or inability to pay; mere inconvenience or financial difficulty is not enough.

    Key Findings and Directions

    1. RERA Authority’s Jurisdiction:
      • RERA can order refunds and interest for delayed possession or non-delivery, but compensation claims must go to the Adjudicating Officer.
    2. Pre-Deposit Requirement:
      • The statutory pre-deposit for appeals is valid and mandatory.
      • High Courts can waive it only in proven cases of extreme hardship, not as a routine matter.
      • Petitioners must provide clear financial evidence to support claims of hardship.
    3. Relief to Petitioners:
      • The court granted an additional four weeks for the petitioners to make the pre-deposit, subject to a nominal payment to a welfare fund, to avoid further delays in appeals.

    Implications for Real Estate Stakeholders

    • For Promoters:
      • Appeals against RERA orders require strict compliance with pre-deposit conditions.
      • Jurisdictional challenges to RERA’s power to order refunds/interest are unlikely to succeed post this judgment and the Supreme Court’s clarification.
      • Claims of financial hardship must be substantiated with concrete evidence.
    • For Allottees:
      • The judgment strengthens the enforceability of RERA orders for refunds and interest.
      • Allottees can expect timely relief and reduced delays in execution of RERA orders.
    • For Legal Practitioners:
      • The distinction between ‘interest’ and ‘compensation’ under RERA is now judicially settled.
      • The scope for challenging pre-deposit requirements is narrow and fact-specific.

    Conclusion

    This High Court judgment, in line with Supreme Court precedents, clarifies the powers of RERA Authorities and the appellate process under the RERA Act. It reinforces the statutory protections for homebuyers while balancing the rights of promoters, setting a clear precedent for future disputes in the real estate sector.

    Connected Matter

    Punjab & Haryana High Court Clarifies RERA Rules for Haryana Real Estate: Pre-Deposit, Adjudication Powers, and Retroactive Application Upheld

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    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Punjab & Haryana High Court

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  • Bombay High Court’s Analysis of Interim Relief and Contractual Obligations under Section 37 of the Arbitration and Conciliation Act, 1996

    Bombay High Court’s Analysis of Interim Relief and Contractual Obligations under Section 37 of the Arbitration and Conciliation Act, 1996

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 07.08.2026

    Bombay High Court’s Analysis of Interim Relief and Contractual Obligations under Section 37 of the Arbitration and Conciliation Act, 1996

    This Short Article has been prepared & written by Arbitrator Shobhit Mallik. The views expressed are based on his interpretation of the law. He can be reached at his email id shobhit.Ica23@gmail.com .

    A recent judgment by the Bombay High Court in the case of Hella Infra Market Metal Private Limited versus Pushkaraj Ispat (India) LLP has brought to light important legal principles regarding interim measures in commercial arbitration, the enforceability of contract terms, and the protection of parties’ interests during ongoing disputes. This article provides a detailed overview of the dispute, the court’s findings, and its broader implications for commercial contracts and arbitration in India.

    Background of the Dispute

    1. The Agreement
      • Hella Infra Market Metal Pvt. Ltd. (“Hella”) and Pushkaraj Ispat (India) LLP (“Pushkaraj”) entered into an Operating License Agreement on September 11, 2023.
      • Under this agreement, Pushkaraj licensed certain industrial sheds, office space, and plant and machinery in Ahmednagar to Hella for five years (until September 2028) on an “as-is-where-is” basis.
      • Key financial terms included a security deposit of Rs. 3 crores and a monthly license fee of Rs. 30 lakhs, with a three-year lock-in period.
    2. Termination and Dispute
      • Hella terminated the agreement on March 18, 2024, citing a material breach by Pushkaraj.
      • Upon termination, the agreement required the exchange of the licensed property and the security deposit, with interest on delayed refunds.
      • Disputes arose regarding payment of electricity charges, license fees, and the refund of the security deposit.

    Key Contentions

    Hella’s Position

    • Argued that the arbitral tribunal’s interim order was, in effect, a final award without addressing the refund of the security deposit.
    • Claimed that electricity charges and license fees were ordered to be paid without proper consideration of Hella’s submissions.
    • Asserted that all dues up to January/February 2024 were paid and that certain license fees had been waived by Pushkaraj.

    Pushkaraj’s Position

    • Maintained that Hella’s termination was not in dispute, but the property should have been handed over.
    • Highlighted that the plant and machinery were encumbered to a bank, and license fees were to be deposited with the lender.
    • Contended that Hella’s claims for the security deposit were an afterthought and that Hella still owed significant dues, especially for electricity.

    The Arbitral Tribunal’s Interim Order

    • Directed Hella to hand over the licensed property within six weeks, with Pushkaraj to refund the security deposit (with interest) depending on the arbitration outcome.
    • Issued a mandatory injunction against Hella from creating third-party rights on the property.
    • Ordered Hella to deposit Rs. 5.31 crores (half the license fees for early termination) and pay Rs. 2.71 crores towards electricity charges, plus Rs. 73.48 lakhs to the electricity distribution company.

    Court’s Analysis and Findings

    1. Nature of the Interim Order
      • The court found that the arbitral tribunal’s order was a reasonable interim measure, not a final award.
      • The tribunal correctly interpreted the contract, especially regarding deductions from the security deposit for amounts owed.
    2. Contractual Obligations
      • Hella was contractually obliged to pay for electricity consumed and half the license fee for the residual lock-in period upon early termination.
      • The tribunal’s directions were based on crystallized and admitted liabilities, not speculative amounts.
    3. Protective Measures
      • The court modified the order slightly, directing Pushkaraj to create a fixed deposit of Rs. 5.31 crores with a lien in favor of Hella, ensuring the deposit’s security pending arbitration.
      • The court emphasized that such interim measures are within the tribunal’s powers when amounts are clearly due and the subject matter of the dispute needs protection.
    4. Legal Precedents
      • The judgment referenced several Supreme Court and High Court decisions, affirming that interim protection is justified when there is little dispute over the amounts owed and the subject matter is at risk.

    Implications for Commercial Contracts and Arbitration

    • Enforceability of Contract Terms: The case underscores the importance of clear contractual provisions regarding termination, dues, and security deposits.
    • Interim Relief in Arbitration: Tribunals can grant interim measures to protect parties’ interests, especially when liabilities are clear and the subject matter is at risk.
    • Judicial Intervention: Courts will intervene only to the extent necessary to make interim orders workable, not to substitute their own views for those of the tribunal.

    Conclusion

    The Bombay High Court’s decision in Hella Infra Market Metal Pvt. Ltd. vs. Pushkaraj Ispat (India) LLP provides valuable guidance on the scope of interim measures in arbitration and the enforceability of commercial contract terms. Businesses entering into similar agreements should ensure clarity in their contracts and be prepared for the possibility of interim relief being granted to protect the subject matter of disputes during arbitration proceedings.

    Connected Matter

    Bombay High Court on Interim Measures in Arbitration: Enforceability of Undisputed Invoices and Third-Party Directions under Section 9

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Bombay High Court

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  • Constitutional Safeguards and Judicial Review in Death Penalty Execution

    Constitutional Safeguards and Judicial Review in Death Penalty Execution

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 07.08.2026

    Constitutional Safeguards and Judicial Review in Death Penalty Execution

    This Short Article has been prepared & written by Advocate Madhumita Jha-Bombay High Court. The views expressed are based on her interpretation of the law. She can be reached at her email id jhamadhumita27@gmail.com .  

    The Supreme Court of India’s decision in Shatrughan Chauhan & Ors. vs. Union of India is a milestone in the evolution of death penalty jurisprudence, focusing on the rights of death row convicts, the constitutional powers of the President and Governors, and the humane execution of capital punishment. This article provides a comprehensive overview of the judgment, its legal reasoning, and its far-reaching implications.

    Background and Context

    The case consolidated multiple writ petitions filed by death row convicts, their families, and public interest groups. The central issue was whether executing a death sentence after prolonged delays or in the presence of supervening circumstances (such as mental illness or procedural lapses) violates Article 21 of the Constitution, which guarantees the right to life and personal liberty.

    Key Legal Issues Addressed

    1. Constitutional Powers under Articles 72 and 161

    • Article 72 empowers the President to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute sentences, including death sentences.
    • Article 161 grants similar powers to the Governors at the state level.
    • The Court clarified that these powers are not mere acts of grace but constitutional duties to be exercised with care, circumspection, and in the public interest.

    2. Judicial Review of Executive Clemency

    • The Court reaffirmed that while the President and Governors have wide discretion, their decisions are subject to limited judicial review.
    • Grounds for review include mala fide actions, non-application of mind, extraneous considerations, or arbitrariness.

    3. Supervening Circumstances Warranting Commutation

    The Court identified several circumstances that may justify commuting a death sentence to life imprisonment:

    1. Inordinate Delay: Prolonged, unexplained delays in deciding mercy petitions can amount to torture and violate Article 21.
    2. Insanity or Mental Illness: Execution of mentally ill or insane convicts is prohibited under international law and Indian prison manuals.
    3. Solitary Confinement: Prolonged solitary confinement before the rejection of mercy petitions is unconstitutional.
    4. Procedural Lapses: Failure to follow prescribed procedures in processing mercy petitions can be grounds for commutation.

    4. No Distinction Between IPC and TADA Offences

    • The Court overruled previous judgments that excluded convicts under anti-terror laws (like TADA) from relief on grounds of delay, holding that all death row convicts are entitled to constitutional protections.

    Case-by-Case Analysis

    The judgment meticulously reviewed individual cases, highlighting delays ranging from 6 to 12 years in processing mercy petitions. In each instance, the Court found the delays to be unexplained and unjustified, warranting commutation of the death sentence to life imprisonment.

    Guidelines Issued by the Supreme Court

    To ensure humane and fair treatment of death row convicts, the Court laid down several binding guidelines:

    1. No Solitary Confinement: Solitary or single-cell confinement before the rejection of mercy petitions is unconstitutional.
    2. Legal Aid: Convicts must be provided legal aid at all stages, including for mercy petitions and post-rejection remedies.
    3. Expeditious Processing: All records and documents must be gathered and forwarded promptly to minimize delays.
    4. Written Communication: Rejection of mercy petitions by the President or Governor must be communicated in writing to the convict and their family.
    5. Minimum 14 Days’ Notice: At least 14 days must elapse between the communication of rejection and the scheduled execution date.
    6. Mental Health Evaluation: Regular mental health assessments and appropriate medical care are mandatory for death row convicts.
    7. Final Family Meeting: Prison authorities must facilitate a final meeting between the convict and their family before execution.
    8. Post-Mortem Reports: Post-mortem examinations are required after executions to ensure the process was humane and lawful.

    Impact and Significance

    This judgment has set a new standard for the protection of the rights of death row prisoners in India. It emphasizes that the right to life and dignity continues until the last breath, and that the process of execution must be just, fair, and reasonable. The guidelines ensure transparency, accountability, and humanity in the administration of the death penalty.

    Conclusion

    The Supreme Court’s decision in Shatrughan Chauhan & Ors. vs. Union of India is a landmark in Indian constitutional law, reinforcing the principle that even those convicted of the gravest crimes are entitled to the full protection of their fundamental rights. The judgment not only commuted several death sentences but also established robust procedural safeguards for all future cases, marking a significant step forward in the evolution of mercy jurisprudence in India.

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    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Supreme Court

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