Claim

Case BriefsHigh Courts

Bombay High Court: R.I. Chagla, J., while addressing a matter held that,

“Cause of action in rem does not merge with the Order / Judgment in personam given in respect of a cause of action in personam arising out of the same facts.”

Senior Advocate, Prashant Pratap stated that there is no Caveat against the arrest of the defendant-Vessel. Varsha Gawande, Court Associate upon checking the caveat against arrest Register stated that there is noCaveat against the arrest of Defendant Vessel.

Background

Claim in the Suit is for a Decree against the Defendant Vessel and for the arrest, sequestration, condemnation and sale of the Defendant Vessel, for securing and / or satisfying the Plaintiff’s claim of the principal amount of USD 1,120,914 and USD 25,000 for cost of litigation in India aggregating USD 1,145,914 plus poundage with interest at the rate of 2% per month from the date of the Suit till payment and / or realization as per the Particulars of Claim.

Plaintiff has not been paid in respect of equipment supplied and services rendered, which were necessary for the operation of the Defendant Vessel.

Thus, to recover the above-stated unpaid amounts, present suit was filed and Judge’s Order had been taken out for arrest of Defendant Vessel.

Urgent relief which had been sought is for the arrest of the Defendant Vessel as there was an apprehension as stated in the Plaint that if the Defendant vessel was permitted to sail, Plaintiff would have no legal recourse whatsoever to recover the amounts due to it and eventually these proceedings will be rendered infructuous.

In Court’s opinion, case for arrest of defendant-vessel was made out.  Dues of the Plaintiff for providing equipment and services to the Defendant vessel is evidenced from the Letter of Award read with Sub Contract and invoices annexed.

Thus, Claim would fall within the meaning of a maritime claim under Section 4(1)(I) of the Admiralty (Jurisdiction of Settlement of Maritime Claims) Act, 2017.

Plaintiff fled the present suit seeking attachment of the Defendant vessel, which is currently within jurisdiction of this Court.

Further it was submitted that the proceedings before the Courts in Abu Dhabi are in personam and the present Suit is in rem against the Defendant Vessel.

Hence for the above, Bench stated that,

“proceedings before the Courts in Abu Dhabi are in personam and cannot come in the way of the present Suit, which is an action in rem and that the Plaintiff is entitled to commence an action in rem, whilst the action in personam is still pending and has not proceeded to a final Judgment.”

Balance of convenience lies with plaintiff to whom, almost irreversible prejudice would be caused if reliefs were to be denied.

Therefore, Court directed the Sheriff of Mumbai to effect the arrest/seizure or detention of defendant vessel along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, plant and machinery at present at anchorage at the Port of Mumbai or wherever she has within the territorial waters of India until the satisfaction of the Plaintiff’s claim.

Further the Bench stated that,

after service of this Order of Arrest, if the arrested Vessel is not released by the furnishing security or bail amount within 6 weeks of service, or an application for vacating the order of arrest is not fled, or the vessel is found abandoned by the person-in-charge of the Vessel or owner, or is found unmanned, then, in such an event, on an application being made by the Plaintiff, the office of the Sheriff of Mumbai shall present a Sheriff’s report for auctioning the Vessel within a period of fourteen days from the date of receiving communication from the Plaintiff’s Advocate or from the date of knowledge of abandonment of Vessel.

[Fugro Survey (Middle East) Ltd. v. DLB 1600 (IMO No. 9681651), DHOC NO. LD-VC-53-2020, decided on 02-05-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Aparesh Kumar Singh and Kailash Prasad Deo, JJ. dismissed the writ petition being devoid of merits.

Brief facts of the case are that the father of the applicant died on 24.08.2009. After which his mother filed an application dated 13.04.2010 for grant of compassionate appointment in his favour as the deceased employee died leaving behind a widow, two sons and one married daughter. The name of the applicant was at serial number 30 out of 73 persons and 19 out of 59 candidates in 2012 and 2013 respectively. 

Now by the impugned order dated 21.05.2015, the cases of applicants got rejected because they have been considered five and they could not find place in the list of deserving candidates, either in view of non-availability of vacancies or more deserving persons listed above. The Tribunal rejected the arguments of the applicants and held the applicant has received due consideration along with others and no case of discrimination holds ground. 

The applicant being aggrieved by an order passed by Central Administrative Tribunal, seeking quashing of the order of rejection of compassionate appointment dated 21.05.2015 has preferred this writ petition.

The counsel for the petitioner, Ajay Kumar Pathak, submitted that the claim of compassionate appointment has been rejected on arbitrary grounds. Proper evaluation of the claim as per the defined yardstick has not been made. Learned Tribunal should have accorded sympathetic consideration since the father of the applicant had died on 24.08.2009 in harness.

The counsel for the respondent, Laxman Kumar, has opposed the prayer. He submitted that applicant’s claim was considered as per the uniform defined criteria on five occasions, one after the other on applications made for reconsideration. The previous orders of rejection were not challenged.

The Court observed that in the matter of compassionate appointment, vacancies are limited for a particular year out of the total post in the cadre i.e., 5%. Applicant’s claim was considered four times earlier and each time he did not find place amongst the candidates falling within the vacancies for that year against the quota of compassionate appointment. Applicant has not been able to show that he had a better claim then the other candidates above in the list. Moreover, the earlier orders of rejection were also not challenged and had become stale.

In view of the above, the Court decided not to interfere in the impugned order passed by the learned CAT and dismissed the writ petition. [Mukesh Kumar Das v. Union of India, 2020 SCC OnLine Jhar 231, decided on 02-03-2020 ]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: Full Bench of Buwaneka Aluwihare, Vijith K. Malalgoda, and S. Thurairaja, JJ. allowed the appeal by setting aside the order of the Learned High Court Judge and directed the District Court to proceed to conclude the case.

In the present case, the appellant filed the case against the judgment of the High Court of the Western Province holden in Gampaha (also referred to as the ‘High Court’) in a Testamentary Case. The concerned parties had raised their objections on the Letter of Administration at the Testamentary Case which the 12th Respondent-Respondent-Appellant had obtained from the District Court of Negombo. The District Court had ordered to dispose of this matter on written Submissions of 06-10-1998. Since the original petitioner had died, his son was substituted in the above mentioned testamentary. The substituted petitioner had raised an objection with regard to the inventory and thus, made an application to re-inquire the matter orally. Later, the 12th Respondent- Respondent-Appellant objected and by order dated 01-03-2013 District Judge decided not to allow the fresh submissions.

Further, the Substituted Petitioner-Petitioner- Respondent appealed to the Provincial High Court of Gampaha. The appeal was allowed by the Civil Appellate Court. The question of law, is whether a substituted party in any action can deny the acceptance of the original party, also whether the substituted party can be estopped from taking a contrary position to the party. As per, Section 395 of the Civil Procedure Code Act, if the sole plaintiff has died the legal representative may be substituted by the court if the right to sue is still there. The pleas available to a Legal Representative was observed in an Indian Order, Gurdial Singh v. Gurdev Singh, 1991 SCC OnLine P&H 579. In the following case, it was held that in case of any dispute the legal representative has the right to continue the suit but he cannot claim anything which was not mentioned by the original plaintiff.

Thus, in the present case, it was held that the District Court’s order passed on 01-03-2013 is correct. Lastly, the Court ordered the Judge of the District Court to conclude this long-running case and the parties are directed to co-operate with the District Judge. [Kandiahpillai Shanmuganathan v. Kandiahpillai Vythilingam, 2019 SCC OnLine SL SC 13, decided on 11-09-2019]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. dismissed a second appeal filed against the judgments of the lower courts wherein the partition suit brought by the appellant was dismissed.

One Maghadeo, ho was the biological father of the appellant, had given the appellant in adoption to his real brother Fakira, who was childless. The appellant had now brought a partition suit, claiming his share in the property of Mahadeo. The Civil Judge dismissed the appellant’s suit holding that he was not entitled to claim partition in the property of his real father. The appeal filed before the District Judge was also dismissed. Hence, the appellant filed the instant second appeal.

R.L. Khapre, Advocate for the appellant, contended that the appellant had never been given in the adoption and, therefore, he had a right in the property left by his real father. Mahadeo, Per contra, S.R. Deshpande, Advocate representing the respondent, opposed the instant appeal.

On perusal of the record, the High Court found that the factum of the appellant having been given in adoption by Mahadeo to Fakira had been duly proved by the documents as well as his own admissions. Also, the testimony of the priest in whose presence the process of adoption was completed, was also found reliable and creditworthy. It was held: “The admission of the plaintiff in his cross-examination shows that his father Mahadeo died in 1963. Since then, till filing of the suit in the year 2001, he did not claim any partition from the defendants. The silence for a long time on the part of the plaintiff partition from the defendants. The silence for a long time on the part of the plaintiff itself shows that he was given in adoption to Fakira. His conduct shows that he is adoptive son of Fakira. His admissions and documents clearly show that he has inherited the property left by his adoptive father Fakira. Therefore, he cannot claim any partition in the property of his real father Mahadeo.”

Incidentally, it was submitted on behalf of the appellant that the issue in respect of adoption was not framed by the trial court. Therefore, there was no opportunity for the plaintiff to adduce proper evidence.

On this aspect, the Court relied on Satyadhyantirtha Swami v. Raghunath Daji Patil, 1925 SCC OnLine Bom 107, wherein it was held: “If there is no issue framed on a question but the parties have adduced evidence and discussed it before the Court, and the Court decides it as if there was an issue about it, the decree need not be set aside in appeal on the ground merely that no such issue was framed.” In the instant case, it was held that Issue 1 framed by the trial court included the issue of adoption and it could not be said that the appellant had no opportunity to adduce evidence on the said issue.

In such view of the matter, the appeal was held to be without merits and was, thus, dismissed. [Pandhari v. Vithoba, 2019 SCC OnLine Bom 3006, decided on 17-10-2019]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Deepak Roshan, JJ., set aside the impugned orders and directed the Assessing Authority to re-examine the claim of the petitioner in view of original tax invoices.

The facts of the case were that the petitioner has claimed Input Tax Credit (ITC) to the tune of Rs 5,34,22,304.71. The assessing officer had allowed ITC only to the tune of Rs 3,40,37,182.46 and denied the balance ITC claim on the ground that for this amount, JVAT 404 form was not submitted by the petitioner.

The counsel for the petitioner submitted that as per provision of Section 18(6) of the JVAT Act, 2005, claim of ITC of the petitioner was required to be considered by the assessing officer on the strength of tax invoices in originally produced by the petitioner showing payment of tax. However, the said claim of the petitioner was denied by the Assessing Officer by relying upon Rule-35(2) of the JVAT Rules, 2006 which apart from prescribing the condition of original tax invoices also lays down additional condition of producing a declaration in Form JVAT 404. The contention of the petitioner is that Rule 35(2) of the JVAT Rules, 2006 provides for furnishing declaration Forms JVAT 404 for availing benefit of ITC to the extent that it cannot be treated to be mandatory in nature but as directory in nature, especially in view of fact that Section 18(6) of the JVAT Act, 2005 does not provide for furnishing of JVAT 404 forms for the purpose of claiming benefit of ITC and it only contemplates production of tax invoices in original.

In view of the above, the court held that the instant matter is squarely covered by the judgment of Brahmaputra Metallics Ltd. v. State of Jharkhand, 2019 SCC OnLine Jhar 816 allowed by this Court vide order dated 09-07-2019 and directed the respondent to re-examine the claim of the petitioner towards its claim of ITC in respect of which the petitioner has not submitted JVAT-404 Forms, by verifying the said claim from tax invoices in original containing particulars of sale evidencing the amount of input tax paid and if satisfied, extend the benefit of ITC to the petitioner.[Simplex Infrastructures Ltd., Ranchi v. State of Jharkhand, 2019 SCC OnLine Jhar 1059, decided on 20-08-2019]

Case BriefsHigh Courts

Patna High Court: Rajendra Kumar Mishra, J. disposed of the writ petition saying that the final decision regarding the petitioner’s claim rested with the respondent authorities.

A special leave application was filed on behalf of the appellant under Section 378(4) of the Code of Criminal Procedure, seeking leave to file an appeal against the judgment passed by the Additional Chief Judicial Magistrate wherein he had acquitted the respondent from the charges under Sections 323 and 420 of the Penal Code, 1860.

The mother of the appellant had filed a complaint case in the Court of SDJM., Sheohar at Sitamarhi. The mother of the appellant, aged about 85 years used to live with her son Daya Shankar Mishra (Appellant) and her other son, Ashutosh Mishra (Respondent) used to live separately. In absence of Daya Shankar Mishra, the respondent took her to Sheohar for treatment on 25-01-2008 and 28-01-2008, but in the garb of such treatment, he managed to take her thumb impression and signature on papers saying that her thumb impression and signature were required for her treatment. The respondent got the property transferred to his name by way of the thumb impression and signatures that he had obtained, and when he was questioned by the appellant he threatened her in return.

The learned ACJM, Sheohar at Sitamarhi acquitted the respondent on the grounds that the prosecution failed to prove the charges under Sections 323 and 420 of the Penal Code.

The Panchnama clearly indicated that the said plot of land was transferred in the name of the respondent and the trial Court committed an error in not considering the evidence.

The Court held that the Trial Court concluded that neither the complainant had filed any suit for cancellation of the sale deed nor any competent jurisdiction has declared the sale deed null and void and that the complainant had not denied giving the thumb impression and signature on the sale deed, rather, her claim was that her thumb impression and signature obtained on papers were converted into a sale deed. The Court instead failed to make an attempt to compare the thumb impression and signature of the sale deed with the signature and thumb impression of the register maintained in the office of Sub-Registrar. The Court found no reason to allow this Special Leave to Appeal.

In view of the above-noted facts, the instant application was dismissed accordingly.[Daya Shankar Mishra v. State of Bihar, 2019 SCC OnLine Pat 1429, decided on 08-08-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. contemplated the mercy petition filed by a petitioner who sought re-employment in a Coal Company.

Counsel for the petitioner Ranjan Kumar Singh, submitted that petitioner was dismissed from services on the ground of absent for 58 days and that after dismissal, the petitioner, who is an illiterate person, approached the authorities for re-employment in terms of the scheme but his representation was not considered in the true spirit of the Scheme.

On the contrary, the counsel for the respondent Company submitted that the petitioner had filed the representation after nine years of his dismissal, thus, the writ was liable to be quashed due to delay.

The Court observed that the petitioner was an illiterate person, as it was evident from the representation he had filed with the respondents-authorities on which he gave his thumb impression, and he wasn’t able to understand the legal impediment of approaching at a belated stage. Hence, his claim was not denied solely on the ground of delay and needs consideration.[Dulal Bouri v. BCCL, 2019 SCC OnLine Jhar 804, decided on 08-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: A Coram of Justice SVS Rathore (Judicial Member) and Air Marshal BBP Sinha (Administrative Member) allowed an ex-hawaldar’s application for disability pension holding that stress and strain of military service can also happen in peace areas.

Applicant herein was enrolled in the Indian Army in 1971 and after serving the Army for 22 years, he was discharged from service in 1973. Thereafter, the applicant was inducted in the Defence Security Corps (DSC) as Sepoy in medically fit condition and after serving for 15 years in the DSC, he was discharged therefrom in 2010. Before applicant’s discharge, the Release Medical Board (RMB) considered his disability as ‘primary hypertension’ and opined the disease as “neither attributable nor aggravated” (NANA) by military service and assessed it as 30% for life. The Medical Board further assessed the disability qualifying for a disability pension as NIL for life. Aggrieved with non-payment of disability pension, the applicant preferred representation which was rejected by the appropriate authority. Hence, the present petition.

The Tribunal noted that the only reason given by the RMB for declaring the disease as NANA was that it had not started in peace area and not in a field, high altitude area or counter-insurgency operation area. This reason was outrightly dismissed by the Tribunal opining that it amounted to saying that there is no stress and strain of military service in peace areas. Therefore, in terms of the judgment of Dharamvir Singh v. Union of India, (2013) 7 SCC 316 it was held that the applicant’s disability of ‘primary hypertension’ be considered as aggravated by military service.

The impugned order was set aside and the applicant was held to be entitled to benefit of rounding-off of disability pension. Relying on Shiv Dass v. Union of India, (2007) 9 SCC 274 he was directed to be granted disability pension at 30 percent for life which would be rounded off to 50 percent from three years prior to the filing of this application.[Ex Havildar Anand Singh v. Union of India, 2019 SCC OnLine AFT 1408, decided on 26-03-2019]

Case BriefsHigh Courts

Bombay High Court: M.S. Sonak, J. while disposing of a petition filed by eatery owners whose licences have been cancelled, directed the Municipal Corporation of Greater Mumbai to accept petitioners’ application for renewal of license and thereafter dispose of such application on its own merits and in accordance with law as expeditiously as possible.

The challenge in the present petition was to the order dated 20-4-2019 by which the Additional Chief Judge (Appeal Court) had dismissed petitioners’ application seeking interim relief pending disposal of the Municipal Appeal in which the petitioners have challenged certain orders cancelling the license to operate the eating places. 

The High Court was of the view that no case for interference was established. The grant of an interim injunction would virtually amount to allowing the appeal filed by the petitioners. It is pertinent to note that the petitioners had prayed for an interim mandatory injunction to direct the Municipal Corporation of Greater Mumbai to renew their license which has already expired. Such orders, according to the Court, cannot normally be made at the interim stage and that too in the absence of a very strong prima facie case. It was held by the Court: “Since the license has already expired, there is no question of the petitioners claiming for any interim relief and on the basis of same continuing or commencing the business from the suit premises”.

Jamshed Master, Advocate for the petitioners submitted, however, that the Municipal Corporation was not even accepting petitioner’s application for renewal of license, much less considering them in accordance with the law. The High Court held the Municipal Corporation of Greater Mumbai cannot simply refuse to accept the application and thereby avoid making a decision as to whether the petitioners were entitled to renewal or not. 

Accordingly, without disturbing the impugned order, the Court directed the Municipal Corporation of Greater Mumbai to accept petitioners’ application for renewal of license and thereafter dispose of such application on its own merits and in accordance with law as expeditiously as possible and in any case within a period of two months from the date of such application. [Vijay D. Shetty v. Municipal Corpn. of Greater Mumbai, WP (ST) No. 13549 of 2019, dated 03-05-2019]

 

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Local Division: This application was filed before G.J. Gajjar, AJ., under Rule 28(4) of the Uniform Rules of Courts by which the applicant seeks to amend its particulars of claim pursuant to a notice of objection filed by the respondent.

Respondent had objected to the amendment in particulars on the ground that it was not possible to determine what work was undertaken to remedy the alleged defective work or what portion of invoices was reduced by a certain aggregate sum. The applicant and respondent had entered into an oral agreement under which respondent had provided a programmer who was not appropriate for managing the PLC program due to which applicant had to recheck and get it corrected by a third party and company E for necessary and related costs. Applicant in its proposed amended particulars of claim has attached seven invoices made out to company E. The amended particulars was thus reducing this amount by 50% as a discount by the third party. Thus, this reduced amount as an amendment to the particulars was criticized by respondents. Respondent submitted that the plaintiff, at the very least, is required to specifically stipulate what portion of the attached invoices was not for its account and that Rule 18(4) should be read conjunctively with the provisions of Rule 18(10) in regard to the particulars required when claiming damages.

High Court was of the view that proposed amended particulars of claim do not disable the defendant from assessing the quantum of the claim. Therefore, the objection made by the respondent was dismissed and the particulars of claim was amended. [Shones Automation (PTY) Ltd. v. Smokey Mountain Trading 444 (PTY) Ltd., Case No. 1554 of 2018, decided on 19-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member) dismissed an appeal filed by a jeweller, assailing repudiation of his claim for insurance.

The complainant/appellant obtained a Jewellers Block Policy from the respondent company for Rs 48 lakhs. During the period of the policy, some burglars entered their jewellery shop and took away ornaments kept in a safe. Respondent was intimated and a surveyor was appointed to visit the site and assess the loss. Surveyor submitted a report recommending repudiation of the claim on the ground that there was no sign of breaking the safe or its locks. Aggrieved appellant approached the State Commission by way of a consumer complaint. State Commission dismissed the complaint on the ground that the insured had failed to take all reasonable steps for safety of the property.

NCDRC noted an exception clause in the policy which stated that if it is established that the safe had been opened by the intruders, using either the original or a duplicate key of the safe belonging to the complainant, the loss would not be covered unless it is shown that the key, or duplicate key, as the case may be, had been obtained by threat or by violence. In the present case, the alleged use of key belonging to the insured was based upon the fact that one key of the safe was found in a glass showcase underneath a weighing scale. It was opined that in the normal course of human conduct, burglars would either take away the key or just throw it somewhere in the shop, instead of making efforts of keeping it under a weighing scale inside the glass showcase.

The Commission further noted that it was a condition of the policy that the premises where the jewellery was kept were to be protected by employing a watchman. But the said condition had not been met by the appellant.  Lastly, the appellant was not maintaining proper books of accounts and had failed to prove the actual loss suffered by him.

For the aforesaid reasons, it was held that the order of State Commission, dismissing the complaint filed by the appellant, did not call for any interference by this Commission.[S.B. Jewellers v. United India Insurance Co. Ltd., First Appeal No. 154 of 2013, Order dated 04-04-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Bench of Manoj K. Tiwari, J. while allowing the petition quashed the order of the Chief Education Officer.

In the present matter, the petitioner was a Class-IV employee, serving in a Government aided minority institution. He was appointed in the year 2002 on the post of Night Chowkidar and having been completed 17 years of continuous satisfactory service, and being the seniormost Class-IV employee, he was eligible for promotion to Class-III post of Clerk. Therefore, the petitioner through learned counsel Mr Alok Mehra, approached the Court being aggrieved by the communication of the Chief Education Officer, Almora where the petitioner was declared ineligible for promotion only on the ground that he was appointed on the post of Night Chowkidar.

The Court while quashing the said order of the respondents held that, “Promotion is governed by Statutory Rules and every candidate, who is eligible in terms of the Rules, has a Fundamental Right to be considered for promotion against available vacancies. Therefore, imposition of new condition regarding eligibility by the Chief Education Officer, which has the effect of taking away right to be considered for promotion to the petitioner, cannot be sustained”.

Respondents were further directed to consider petitioner’s claim for promotion along with other eligible persons.[Lal Singh Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 229, Order dated 07-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Bench of S.V.S. Rathore, J. and Lt. General N.B. Singh (Member) dismissed an application challenging the denial of family pension, holding that the same was without any substance.

Applicant herein claimed to be the eldest son of a deceased soldier Mohd. Rafique and applied for a family pension as he was totally blind. His claim for pension was denied by respondent on the ground that his name did not figure in the service book of Mohd. Rafique. Aggrieved thereby, the instant application was filed under Section 14 of the Armed Forces Tribunal Act, 2007.

Learned counsel for the applicant placed reliance on relation certificate issued by the SDM, Sultanpur, wherein apart from five other sons and daughters of Mohd. Rafique, the name of the applicant was also mentioned. Learned counsel for the respondents raised an objection to this certificate stating that the certificate clearly mentioned that it had been issued only for administrative purposes and that it could not be used in any court of law.

The Tribunal held that a plain reading of Regulations 216 and 219 of the Pension Regulations for the Army, 1961 (Part-1) made it clear that name in the service record as son of the applicant was a condition precedent to grant the relief claimed. Admittedly, the name of the applicant was not mentioned as nominee in the service record of the deceased soldier. This gave rise to an inference that the father of the applicant deliberately avoided mentioning the name of the applicant in the service record to debar him from such pension. Thus, the application was dismissed holding that there was no infirmity in the impugned order.[Akhtar v. Union of India, 2019 SCC OnLine AFT 3, Order dated 13-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Bench of S.V.S. Rathore, J. and Air Marshal BBP Sinha; Members, dismissed an application claiming disability pension, on the grounds that the disease was neither attributable to nor aggravated by the military service.

In the present case, the original applicant (deceased) developed pain and swelling in his right thigh following an injury while doing the parade. The Categorisation Medical Board was held on 14-08-1964 at Military Hospital, Lucknow for the disability “Leomyo Sarcoma Right Thigh” and the applicant was placed in category CEE (temporary) for 6 months. On account of the said disability, grant of disability pension was sought for. The respondents filed a counter affidavit stating that the documents relating to the case were destroyed after the expiry of the period of retention i.e. 25 years and in the absence of a medical report, it is not possible to give any specific finding.

The Court opined that it was not in the position to accept that the disease of the applicant was either attributable to or aggravated by military service, primarily since, there was a substantial delay of 44 years and also because the reason as to why the disease could not be detected at the time of enrolment cannot be scrutinised to decide attributability.[Faquir Baksh Singh v. Union of India, Original Application No. 543 of 2017, Order dated 18-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Bench of S.V.S. Rathore, J. and Air Marshal BBP Sinha (Member) dismissed a Lance Naik’s claim for pension on the ground that he had been declared as a deserter and dismissed from service.

Petitioner herein joined the Indian Army on 31-10-1985 and was sanctioned casual leaves for five days from 08-05-2001 to 12-05-2001. During the course of casual leave, he became mentally disturbed and could not reach his home. In the year 2003, after recovering, he reported to his unit on 25-03-2003. Petitioner pleaded that he was entitled to service pension as he had completed 15 years of service; but since no pension was sanctioned in his favour, he filed a writ petition in the High Court of Allahabad. The said Court transferred his petition to this Tribunal under Section 34 of the Armed Forces Tribunal Act, 2007.

Respondents’ contention was that petitioner did not report back after availing casual leave therefore, he was declared a deserter and apprehension roll was issued against him on 28-05-2001. He was advised to report to his unit, but the petitioner never approached his unit and continued to remain a deserter. Thus, he was dismissed from service with effect from the date of his desertion and, since his entire service was confiscated, he was not entitled to any pension.

The Tribunal noted that the petitioner had been declared as a deserter and dismissed from service under Section 20 (3) of the Army Act. He claimed for a pension without challenging his dismissal order and hence the said dismissal order had become final. It was concluded that since the petitioner had been dismissed from service, therefore, in view of provisions contained under Regulation 113 (a) of Pension Regulations for Army, 2008, his entire service stood confiscated and he had no pensionable service to his credit.

In view of the above, the instant application was dismissed.[Lal Chand Ram v. Union of India, 2019 SCC OnLine AFT 2, Order dated 07-02-2019]

Case BriefsHigh Courts

Meghalaya High Court: Yaqoob Mir, CJ dismissed a petition for compassionate appointment holding it to be without merits.

Petitioner’s father was in Meghalaya Police who died in harness in the year 1999 while debuted for operational duty at Shillong, West Khasi Hills District. In 2017, after a lapse of 18 years, petitioner applied for the compassionate appointment. His application was considered and rejected stating that in terms of the relevant Department Order, the application for appointment on compassionate grounds had to be filed within 1 year from the date of death of the Government servant or from the date of acquiring a necessary educational qualification. Therefore, petitioner’s claim was rejected as time-barred.

R. Sharon, Advocate for the petitioner admitted that he acquired the necessary qualification in 2011 but applied only in the year 2017.

The High Court found favour with submissions of Advocate General A. Kumar. It observed, “Compassionate appointment admittedly is a departure from normal rules of appointment but same has laudable object of saving the deceased’s family from crisis and financial complications. Here in the instant case, the family has survived for 18 years.” Petitioner failed to show any rule which would provide for considering his application and resultantly, the petition was dismissed. [Ravi Koch v. State of Meghalaya, 2019 SCC OnLine Megh 4, dated 04-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) allowed an appeal filed against the order of National Company Law Tribunal (New Delhi) whereby it had admitted respondent’s application under Section 7 of the Insolvency and Bankruptcy Code, 2016 and appointed an Interim Resolution Professional.

Senior Advocate K. Venugopal assisted by Pawan Sharma, Anuj Shah and Rishabh Sharma, Advocates representing the appellant–Shareholder of the Corporate Debtor, submitted that NCLT failed to notice inter alia that the parties had already settled the claim. The factum of the settlement was accepted by Ashish Agarwal, Advocate appearing for the respondent.

It was informed by the Interim Resolution Professional that advertisement was issued asking for claims but Committee of Creditors was not yet constituted.

The Appellate Tribunal relied on Swiss Ribbons (P) Ltd. v. Union of India, 2019 SCC OnLine SC 73 wherein the Supreme Court held, “at any stage where the committee of creditors is not yet constituted, a party can approach the NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement.”

In such view of the matter, the impugned order of NCLT was set aside as the parties had settled the claim before the constitution of Committee of Creditors and the respondent did not want to proceed with the matter. The appeal was thus allowed. [Arjun Puri v. Kunal Prasad, 2019 SCC OnLine NCLAT 5, dated 31-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The petition was filed before a Division Bench of Rajiv Sharma and Harinder Singh Sidhu, JJ. against the order passed by the Central Administrative Tribunal, Chandigarh where original application filed by petitioner assailing the communication of respondents declining petitioner’s request for consideration for promotion to the post of Chief Engineer was dismissed.

A post of Chief Engineer in the Engineering Department, Chandigarh Administration was due to become vacant. Petitioner submitted a representation that he be considered for the aforementioned post. He submitted that he was eligible for the post under PSEB Regulations, 1965 which was rejected, thus an original application was filed which was dismissed was thus. This order was impugned in this petition. Respondent contended that the Electricity Operations Circle (Electricity Wing) under which the petitioner was serving is not a part of the B&R Branch. Thus, he could not claim promotion to a post of Engineering Department, Chandigarh. The question before Court was to see if the petitioner, working as Superintending Engineer (Electricity) was eligible for promotion to the post of Chief Engineer in the Engineering Department of UT of Chandigarh.

High Court observed that petitioner’s services were governed by PSEB Regulations, 1965 and his prior promotions were done under this regulation itself along with this he had also received certain benefits under the regulation and the post he was claiming in the impugned order had already been proposed to be created. Court was of the view that a person governed by one set of rules and regulations cannot claim the benefit of promotion under another rule and petitioner was estopped from raising such a claim. Therefore, on finding no merit in the petition the same was dismissed. [M.P. Singh Wasal v. Union of India, 2019 SCC OnLine P&H 71, decided on 29-01-2019]

Case BriefsHigh Courts

Punjab & Haryana HC: The Bench of Raj Mohan Singh, J. dismissed a revision petition on the ground of insufficient evidence but granted liberty to file a fresh revision petition with better particulars.

The present matter pertained to the validity of an agreement of sale executed by petitioner and one Sukhchain Singh, being contested before the lower court. The petitioner’s submission before lower court was that one Girdhari Lal had obtained her signatures on some blank papers and the said agreement of sale was the outcome of such fraud. She filed an application for leading examination of handwriting and fingerprint expert as additional evidence in order to prove the said forgery. However, the trial court dismissed the application on the premise that the petitioner had admitted her signature on the agreement. Comparison of the signature was not sought to be made with any other document. The handwriting and fingerprint expert cannot opine whether the signatures appended on blank papers were prior in point of time or subsequent thereof. Aggrieved by the said order, the instant revision petition was filed.

The Court observed that the petitioner could not furnish any explanation as to how Sukhchain Singh’s signatures came to be appended on an agreement to sell. The story advanced by her was in the context of her signing the blank papers and not by Sukhchain Singh in the presence of any witness. In view thereof, it was held that the impugned order did not suffer from any error of jurisdiction or perversity of any type.[Jaspal Kaur v. Girdhari Lal, 2019 SCC OnLine P&H 56, decided on 15-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This writ was filed before a Single Judge Bench of Sheel Nagu, J., in nature of mandamus. 

The grievance of petitioner was that their names were removed from the revenue record of certain agricultural lands which they claimed to be belonging to them by virtue of the operation of law. Petitioner contended that by virtue of The Kanoon Maal Gwalior, Samvat 1983, The United State of Gwalior, Indore & Malwa (Madhya Bharat) Revenue Administration & Ryotwari Land Revenue & Tenancy Act, Samvat 2007 and Madhya Bharat Zamindari Abolition Act, Samvat, 2008, the land belonged to them and they were Bhumiswami of the same. 

High Court viewed that claims of the petitioner had already been raised before the competent court under MPLRC and the revenue Court of SDO which is seized of the matter. Thus, the Court was of the view that it should not exercise its extraordinary writ jurisdiction as the same was filed without any grounds. Therefore, this petition was dismissed. [Bachchu  Singh v. State of M.P.,2018 SCC OnLine MP 919, decided on 13-12-2018]