Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., directed the Delhi Govt. to work out the logistics of procuring the remaining quantity of oxygen which was claimed not to have been supplied out of the allocated 480 MT.

Additional Secretary, DPIIT, Ministry of Commerce and Industry, Sumita Dawra is the in-charge of allocation of medical oxygen to various States in the country in wake of ranging Pandemic.

She gave Bench the history of how industrial Oxygen got diverted from medical use since April, 2020. She also informed the Court about the decision taken on 20-04-2021to increase in allocation for use of medical Oxygen in the NCT of Delhi from 378 MT to 480 MT.

Senior Advocate for GNCTD, Mr Rahul Mehra stated that the NCT of Delhi received somewhere between 200-250 MT of Oxygen today, adding to this he submitted that there were obstructions in the receipt of said Oxygen and the same was delayed for that reason.

Mr Tushar Mehta, Solicitor General requested that the matter be adjourned and at the same time he assured the Court that Centre shall facilitate the supply of 480 MT of Medical Oxygen to Delhi and further assured that Central Government shall also ensure unobstructed and safe passage of the Medical Oxygen tankers to Delhi of the allocated Oxygen.

Bench taking the above statement of Mr Tushar Mehta on record hoped that emergent needs of various hospitals in Delhi including those run by petitioner would be met and no casualties are suffered on account of the discontinuing supply of Oxygen to seriously ill COVID patients, and other serious patients who require Oxygen for support till the matter is take up again.

Hence, Court directed GNCTD to immediately work out the logistics of procuring the remaining quantity which was claimed not to have been supplied out of the allocated 480 MT and the suppliers are directed to comply with allocation order issued by Centre and make supplies on an emergent basis.

During this late-night hearing of the Court, it was informed to the Bench that Oxygen supplies were received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.

Matter to be listed today. [Balaji Medical Research Centre v. Union of India, WP(C)(temp) 5500 of 2021, decided on 21-04-2021]


Advocates before the Court:

For the Petitioner: Mr Sandeep Sethi Sr, Adv, Mr Mahesh Agarwal, Adv, Mr Rishi Agrawala, Adv, Mr Karan Luthra, Adv, Mr Ankit Banati, Advs

For the Respondents: Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora, CGSC, Mr Anil Soni, CGSC

Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, GNCTD

Mr Rajiv Nayar, Sr. Advocate with Mr Ajay Bhargav, Mr Aseem Chaturvedi, Mr Saurab Seth Advocates with Mr Siddharth Jain, Whole Time Director for M/s. INOX

Case BriefsCOVID 19High Courts

9-key points from the observations by Delhi High Court decision on essential drugs, dearth of oxygen and vaccine:

  • Centre to review the allocation of oxygen on a dynamic basis.
  • Hospital that are running out of their supplies of oxygen, Centre to make the availability.
  • Notice of contempt to M/s INOX for non-compliance with this Court’s Order.
  • Medical Machines/Equipment’s, medicines, etc. that are imported should be handled and cleared at top priority.
  • Centre and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
  • Central Government & its agencies to issue necessary directions to all the licensee and Government should undertake to check on a regular basis to unearth all such cases of hoarding which are leading to scarcity of drugs for needy patients | Strict Penal Action.
  • Centre to review the distribution of Remedesivir Drug daily.
  • Manufacturers to be encouraged so as to ramp up their production on a war footing of all essential medications for COVID treatment.
  • Criminal Waste: If even a single dose of vaccine is wasted, it would amount to criminal waste. | Government to devise ways for registering volunteers below the age of 45 and above the age of 18 to take residual doses of vaccine.

[Rakesh Malhotra v. GNCTD, WP (C) No. 3031 of 2020, decided on 20-04-2021]


Delhi HC on status of availability of COVID Beds, supply of ventilators, need of medical oxygen and essential medications || “Wastage of a single dose of vaccine is a criminal waste”

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., while addressing the concerns arising out the COVID-19 pandemic, expressed that:

The lives of the people take priority over everything else.

Rahul Mehra, Senior Counsel, Central Government in its affidavit stated that though all efforts were made to file the affidavit on behalf of GNCTD, the same could not be completed and filed.

Bench perused the affidavit filed on behalf of the Central Government by Mr Rajender Kumar, Under Secretary, Ministry of Health and Family Welfare.

What all the affidavit has dealt with?

  • Availability of COVID Beds as made available by the Central Government in the NCT of Delhi.
  • Discloses that 500 ICU Bedded DRDO COVID Care Hospital be established in Delhi Cantt.
  • 250 ICU Beds have been operationalized by DRDO and another 250 beds shall be operationalized by 22-04-2021.
  • To provide 25 medical officers and 75 paramedics to this COVID Care Centre from Central Armed Paramilitary Forces.

VENTILATORS

Further, Centre has also called upon the States and UTs to provide their requirements for ventilators in the States, so as to consider the supply of ventilators as per the availability at the earliest. Adding to this, it was stated that as per the demand of the GNCTD, 763 ventilators have been supplied by the Government of India. In addition to that, Safdarjung Hospital has been provided with 105 ventilators, Ram Manohar Lohia Hospital with 5 ventilators, LHMC with 5 ventilators, Ayush Hospital with 2 ventilators, ESIC Hospital with 10 ventilators and the DRDO facility has been provided with 500 ventilators.

BEDS FOR COVID PATIENTS 

In Central Government-run hospitals, the availability of beds for COVID Patients is up to 1432 beds. Other hospitals and facilities – other than those detailed in the affidavit, 2105 beds have been made available by the Central Government in the NCT of Delhi and with the addition of these beds, the current COVID beds allocated stand at about 4091 bed.

It has been stated that the complete breakup of the above-stated COVID beds should be indicated along with the details of ICU/ Non-ICU beds, and beds with/without oxygen, and with/without ventilator in the affidavit to be filed by the Centre on 22-04-2021.

Rahul Mehra, Senior Counsel, Central Government submitted that the number of COVID Positive Patients at present in comparison to last year are four times, therefore Central Government should allocate more beds in its hospitals and facilities for COVID patients.

Roli Khare, Director, Ministry of Health and Family Welfare stated that the Central Government has been endeavouring to make more beds available. Presently it has been stated that the Central Government hospitals are occupied by non-COVID patients in need of critical care.

Central Government should urgently look to allocate more beds among their hospitals for COVID patients.

 Bench directed the Central Government to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances and report in this regard on 22-04-2021.

Availability of Medical Oxygen in the NCT of Delhi

Bench stated that the situation is alarming as the availability of Oxygen has dropped dramatically in the Hospitals.

Dr Nipun Vinayak, Joint Secretary, Ministry of Health and Family Welfare explained that the Department for Promotion of Industries and Internal (DPIIT) has been looking into the aspect of diversion of Oxygen from industrial use for medical use in view of the urgent need for oxygen.

He added that apart from industries, all others have been directed not to use the Oxygen so that the same could be made available for the medical use in the country.

Mr Mehra further submitted that there is grave dearth of medical oxygen in Delhi’s Hospitals and requirement according to him is 700 MT of medical oxygen per day. Adding to this, he stated that there is non-compliance of the order passed this Court whereby, M/s INOX was required to honor its contract with the GNCTD and Delhi Hospital to supply oxygen to Delhi.

Bench – Analysis & Decision

Bench called upon the Central Government to issue appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries.

Looking at the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions — Central Government is directed to review the allocation of oxygen on a dynamic basis.

Oxygen supply in some major hospitals has been informed to last only for 4-8 hours and since the need for oxygen is now, there should be no delay causing the loss of precious lives.

Central Government to make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.

Notice of Contempt to be issued to M/s INOX for non-compliance of Court’s order and the Managing Director/Owner of M/s INOX to personally remain present.

Court is informed that the equipment for setting up RT-PCR test labs are imported, and medical equipment/ machines for which import orders have been placed, are being dealt with routinely at Customs Ports, hence it is essential that all such medical machines/ equipment’s, medicines, etc. which are imported should be handled and cleared at top priority by the Customs.

ICMR to give top priority for such clearances so that the RT – PCR Labs could be set up or expanded without any delay.

Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.

Adding more to the above directions, Bench directed the Central Government and its agencies to issue necessary directions to all the licensee and the Government should undertake to check on a regular basis to unearth all such cases of hoarding which is leading to scarcity of drugs in the market for the needy patients. Strict penal action should be taken against those indulging in such practices.

 Review the distribution of Remedesivir — Essential to maximise the efficient use of the said Drug

Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug.

Centre should immediately reach out to the manufacturers/patent holders/licensees so as to forthwith ramp up the production capacities of all the medications essential for COVID treatment.

Manufacturers should be encouraged to ramp up their production on a war footing. Voluntary licenses to other entities should also be granted.

 As per reports, 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States due to the restriction of age or category of people who are entitled to take the vaccine.

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste.

Bench has been informed that each vial has 10 doses and once it is opened, it has to b either fully consumed or the remainder goes waste.

To the above, Court concluded this decision stating that:

It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say, 05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted.

 Matter to be listed on 22-04-2021. [Rakesh Malhotra v. GNCTD, WP (C) No. 3031 of 2020, decided on 20-04-2021]


Advocates before the Court:

For the Petitioner: In Person

For the Respondents: Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, and Mr Chaitanya Gosain and, Advocate for GNCTD.

Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC and Mr Shriram Tiwary, Advocate for R-3

Case BriefsCOVID 19High Courts

Delhi High Court: Full Bench of Vipin Sanghi, Rekha Palli and Talwant Singh, JJ., took suo motu cognizance of the extraordinary circumstances i.e. the alarming resurgence of COVID-19 pandemic under Article 226 and 227 of the Constitution of India.

Bench ordered that all matters pending before the Court and Subordinate Courts, wherein interim orders issued were subsisting as on 19-04-2021 and expired or will expire thereafter, shall stand automatically extended till 16-07-2021 or until further order, except where any orders to the contrary have been passed by the Supreme Court of India in any particular matter, during the intervening period.

In case any party faces any hardship due to the above-stated order of this Court, they would be at liberty to seek appropriate relief.

High Court directed that the Order be uploaded on the website of this Court and conveyed to all the Standing Counsel, UOI, GNCTD, DDA, Civic Authorities, Delhi High Court Bar Association and all other Bar Associations of Delhi as well as to all District Courts subordinate to this Court.

Matter to be listed on 16-07-2021.[Court on its own motion v. State (GNCTD), WP (C) No. 4921 of 2021, decided on 20-04-2021]


Advocates before the Court:

For the Respondent: Mr Santosh Kumar Tripathi, ASC, GNCTD with Mr Aditya P. Khanna, Advocate.

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., while addressing the present petition expressed that:

COVID-19 pandemic is presently raging with much greater intensity than prevalent at the time when this petition was initiated in the year 2020.

It has been noted that the number of COVID-19 positive patients, as reported on a daily basis has exceeded 25,000 in the NCT of Delhi.

Court observed that the test positivity rates (TPR) are rising continually, with around 1/3rd of all districts in the country having a positivity rate of more than 10%. The TPR was more than 13% as on 15.04.2021. According to medical estimates, around 15 to 20% of these patients could require hospital admissions, with a quarter of them requiring specialized ICU care.

Above position translates to a requirement of roughly 50,000 beds daily in the country, which has already pushed the limited health care system beyond its limits.

It is evident that the health care infrastructure is on the verge of an imminent and complete collapse.

It was stated that GNCTD is being unreasonable and unmindful of the limitations of men, infrastructure and equipment available to deal with the massive surge in COVID-19 positive cases.

Bench observed that because of the large numbers of samples, labs that have been entrusted with the job of collecting and analyzing samples of COVID-19 through RT PCR Tests are already hard pressed. Court stated that it does not serve the interest of any such lab to delay the reports deliberately or negligently.

Hence, Court added that it hopes and expects:

  • all the labs to continue to work efficiently and diligently in order to prepare and provide the reports of the tests conducted by them at the earliest humanly possible.
  • None of the accredited labs would refuse to take samples on account of the rush, if they are otherwise in a position to collect the samples.

Another issue before the Court was with respect to the shortage of supply of medical oxygen which is a critical requirement for treatment of serious patients of COVID-19. Mr Mehra pointed that the Central Government had already issued orders that, except to meet the needs of a few industries, the supply of oxygen manufactured in the country should be provided for medical use in the country.

He further added that:

“…shortage of oxygen may result in steep rise in loss of lives.” 

Bench stated that let Central Government look into the above matter on an urgent basis.

It was submitted that M/s INOX, which has existing contracts with hospitals in Delhi, is diverting the oxygen produced by it to other states.

To the above issue, High Court directed INOX to honour its contracts with the GNCTD and hospitals in Delhi and restore the supply of 140 MT of oxygen immediately – which shall, in turn, be distributed to the needy hospitals of Delhi.

Central Government should examine the availability of oxygen in different states in the country in the context of the spread of the pandemic so that oxygen could be made available to the areas where it is most required, looking at the surge in covid cases.

 High Court directed Centre and GNCTD to file affidavits disclosing – in respect of hospitals manages by them, hospital-wise, the number of COVID beds reserved, further how many ICU Beds with or without ventilator and with or without oxygen supply.

Affidavits should also state as to how many COVID beds have been allocated by the Central Government to GNCTD in ICU/non-ICU and with/ without ventilators, and with, or without, oxygen.

Another aspect which the Court highlighted was the plight of daily wagers and migrant labour force as was seen in the year 2020 on imposition of lockdown. It has been noted that a lot of them have started going back to their origin states with the surge in COVID cases in the GNCTD.

“…daily wagers – who are hand to mouth, and earn their bread everyday to feed themselves and their families, are once again faced with the grim reality of facing shortage of even basic necessities such as food, clothing and medication, due to the curfew imposed till 26th April, 2021.”

Bench remarked that:

GNCTD failed to utilize thousands of crores of rupees they are sitting on, which is available with the Board constituted under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and which has been collected as Building cess for construction workers. The registration of lakhs of building workers – which had lapsed on account of non-renewal, were not provided any ex gratia payment.

GNCTD to ensure that the above stated Board shall utilize the monies lying with it, inter alia, to provide food, medicines and other necessities to the needy construction workers at their respective work sites.

Provision of Food

Lastly, the Court held that for the purpose of providing food, the GNCTD should utilise the contractors engaged for providing mid-day meals to school children in Government and MCD Schools, since the schools are not operational currently, and that facility could still be utilized for the aforesaid purpose. The Chief Secretary, Delhi shall ensure the implementation of this direction without any delay.

Matter shall be taken up today post-lunch session. [Rakesh Malhotra v. GNCTD, WP(C) No. 3031 of 2020, decided on 19-04-2021]


Advocates before the Court:

For the Respondents:

Mr Satyakam, ASC, for the GNCTD/ respondent Nos. 1 & 2.

Mr Rahul Mehra, Standing Counsel (Crl.) for GNCTD.

Ms Monica Arora, Adv. for Mr Chetan Sharma, ASG

COVID 19Hot Off The PressNews

Due to the alarming upsurge in the Covid-19 cases in the NCT of Delhi, all Benches of Delhi High Court shall, with effect from 19-04-2021, take up extremely urgent matters filed in the year 2021 only.

It has been further ordered that the other pending routine/non-urgent matters and the matters filed/listed before this Court between 22-3-2020 and 31-12-2020 shall not be taken up by this Court and such matters shall be adjourned “en bloc” as per the dates already notified. In case of any extreme urgency, the request in the pending matters may be made on the already notified designated link.

Link for the NOTIFICATION


In view of the alarming rise in the Covid-19 cases in the National Capital Territory of Delhi, all the Courts of Registrar and Joint Registrar (Judicial) shall take up only urgent cases through videoconferencing mode and all other matters be adjourned en bloc and information in this regard be uploaded on the website of this Court.

Link to the NOTIFICATION


All the Judicial Officers of the District Courts in Delhi shall take up only urgent cases of their respective Courts, through videoconferencing mode. It is further ordered that all other matters listed before Delhi District Courts be adjourned en bloc by respective courts and information in this regard be uploaded on the website(s) of Delhi District Courts.

Link to the NOTIFICATION



Delhi High Court

[Notifications dt. 19-04-2021]

COVID 19Hot Off The PressNews

In view of the alarming rise in the COVID-19 cases in the NCT of Delhi, the High Court of Delhi shall with effect from 09-04-2021 take up matters as per the existing arrangement with regard to the listing of cases, through virtual mode only, till 23-04-2021.

All Courts of Joint Registrar (Judicial) shall also with effect from 09-04-2021 hold Courts through virtual mode only till 23-04-2021.

No adverse orders shall be passed by the courts of Joint Registrar (Judicial) in case of non-appearance of parties and/or their counsel and the matters which are fixed for recording of evidence before the said courts, shall be adjourned.

Link to the NOTICE.


Delhi High Court 

[Notice dt. 08-04-2021]

Op EdsOP. ED.

I. Introduction

The imposition of retrospective taxation by the Government of India in 2012[1] triggered at least three major Bilateral Investment Treaty (BIT) arbitration proceedings – Vodafone International Holdings BV v. The Republic of India[2] (Vodafone); Cairn Energy Plc and Cairn UK Holdings Ltd v. The Republic of India[3] (Cairn) and Vedanta Resources Plc v. The Republic of India[4] (Vedanta). Two of these proceedings, Vodafone[5] and Cairn[6] have concluded, with the Permanent Court of Arbitration, ruling in favour of the investor companies stating that the Indian Government’s retrospective tax demand was in breach of the guarantee of fair and equitable treatment under the BITs. The award in Vodafone[7] has been challenged by India at the Singapore High Court[8] and that in Cairn[9] is also set to be challenged, if latest reports are to be believed to be true.[10]

Prior to the communiqué from the Government, Cairn Energy wrote to the Indian Government seeking enforcement of the award, stating that since India is a signatory to the New York Convention, the award can be enforced in other countries as well. The letter warned that the company shall endeavour to get Indian assets situated abroad attached in the event of non-enforcement,[11] a practice being heavily resorted to these days for recovery.[12] Most recently, the company has moved courts in the United States, United Kingdom, the Netherlands, Canada, UAE, Singapore, Japan and Cayman Islands seeking enforcement of the award.[13]

Even as India has decided to challenge the award in Cairn[14], Cairn Energy’s letter and subsequent legal action provoke some obvious, yet very compelling inquiries – is attachment of Indian assets in foreign countries the only way to enforce the arbitral award passed by the Arbitral Tribunal? What, if any, is the usual legal recourse that would be available with Cairn Energy to enforce the arbitral award in India? It is in the backdrop of these imperative inquiries that this present study attempts to analyse how and if BIT arbitral awards are enforceable in India. It also studies whether the current position vis-à-vis enforcement is also the correct position, and what other alternatives exist.

II. Enforcing investment arbitral awards in India: A Herculean task

In India, the enforcement of arbitral awards determined by international commercial arbitration proceedings is fairly simple although, elaborate. Governed by the Arbitration and Conciliation Act, 1996[15] (the Act of 1996), the jurisprudence surrounding enforcement of international commercial arbitration awards has greatly evolved and is well developed. Per contra, enforcement of arbitral awards passed in BIT arbitrations is neither simple, nor is the jurisprudence around it properly formulated.

India is not a signatory nation to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965[16] (the ICSID Convention). As a result, inter alia, there is no obligation upon India to enforce BIT awards under ICSID. Not just this, India has also opted for reservation provided in Article I(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the New York Convention) by virtue of which, only such New York Convention awards will be enforceable in India that arise out of differences that are considered “commercial” under the Indian law.[17] The biggest impediment to enforcement of BIT arbitral awards, however, is posed by the conflicting decisions passed by the High Courts at Calcutta and Delhi,[18] on the applicability of the Act of 1996, thereto. While the former Court held the Act of 1996 to be applicable, the latter held to the contrary. Such inconsistency in judicial positions resulted in grave uncertainty on the enforceability of BIT arbitral awards in India, which necessarily warrants assessment.

a)  India is not a party to the ICSID Convention

Crucially, the ICSID Convention grants finality to the award passed under the Convention and prohibits any appeal before national courts.[19] It also provides that the enforcing States must treat arbitral awards passed thereunder as decisions passed by national courts and ensure enforcement of pecuniary obligations imposed by the award.[20] Since India is not a signatory to the Convention these obligations do not concern, let alone bind India.

The ICSID Additional Facility Rules (the Additional Facility Rules), however, are relevant to the present discussion. The ICSID Additional Facility Rules were created on 27-9-1978 to offer arbitration, conciliation and fact-finding services in situations wherein, inter alia, one of the parties to the BIT is not a signatory to the ICSID Convention or is a national of a contracting State.[21] Several BITs signed by India provide for arbitration under these Rules. Notably, the primary subject that these Rules deal with is the administration of arbitration proceedings, and very little is offered in terms of enforcement of BIT arbitral awards, making it susceptible to the whims of the enforcing State.

In order to address the likely consequences of the aforesaid regime, the Additional Facility Rules provide that arbitrations thereunder shall be conducted only in New York Convention States.[22] It can be inferred that such a provision was inserted to guarantee enforcement of awards as per the New York Convention. While this provision might mitigate an impediment to enforcement in several States that are parties to the New York Convention, the same may not be true for India, since India has availed the reservation provided for under Article I(3) of the New York Convention.

b) Effect of reservation under Article I(3) of the New York Convention

As per Article I(3), inter alia, any State signing, ratifying or acceding to the New York Convention may restrict its applicability to awards passed in disputes arising out of only such relationships that are considered to be “commercial” under the domestic law of the enforcing State. India has availed the reservation provided for under Article I(3) of the New York Convention.[23] Accordingly, even if the inference that an award passed under Additional Facility Rules must be enforced in accordance with the New York Convention is relied upon, enforcement cannot be guaranteed unless arbitral awards passed under a BIT can be said to have arisen out of differences that are considered as “commercial” under the Indian law.

At this point, accordingly, it is befitting to explore the contours of the term “commercial” under the Indian law.

III. Whether a BIT award can be said to arise out of a “commercial relationship” or not? An analysis

In order to ascertain the above, the authors rely upon UNCITRAL Model Law on International Commercial Arbitration, 1985[24] (the UNCITRAL Model Law), the Model Text for the Indian BIT (the Model BIT) and judgments of the Supreme Court of India.

a) “Commercial” under the UNCITRAL Model Law

The second footnote to Article I of the UNCITRAL Model Law provides that the term “commercial” must be given a wide interpretation in order to ensure that all matters of a commercial nature are covered in its ambit, whether contractual or otherwise. It further lays down a non-exhaustive list of transactions that fall under the meaning of the term “commercial”. It is imperative to note that the subjects enlisted in the footnote include “investment” as well.[25]

The Act of 1996 is based upon the UNCITRAL Model Law, as stated in the Preamble to the Act[26]. The Supreme Court of India has also held on several occasions that the Act of 1996 must be interpreted in accordance with the UNCITRAL Model Law.[27] Pursuant to the Supreme Court decisions and the statutory recognition of the UNCITRAL Model Law as the source of the Act of 1996, the term “commercial” must be interpreted as inclusive of “investment”.

b) “Commercial” under Model BIT issued by the Department of Economic Affairs (DEA), Ministry of Finance, Government of India

Before studying the relevant provision of the Model BIT, it is essential to understand what BITs are and the purpose they serve. BITs are instruments signed by two countries that establish the terms and conditions pursuant to which nationals and companies from the countries invest in one another, such investments are popularly known as Foreign Direct Investments (FDIs). FDIs are intended to spur growth and development in the states involved. BITs lay down the rights and obligations of the parties and thereby guarantee smooth flow of such investments. At the same time, they also guarantee the rights of and offer protection to the investing nationals and companies. In essence, therefore, BITs balance the interests of the host States with those of the investors.

Given that the ultimate goal served by a BIT is using trade and commerce to advance economic growth in countries and ensuring unhindered returns to the investors, it is argued that investments under BITs are inherently arising out of commercial relationships. The view was also echoed in a speech delivered by the Chief Justice of Singapore on International Arbitration, Mr Sundaresh Menon who said,

“Investment treaties were designed to encourage foreign direct investment by providing an additional safeguard of a foreign investor’s commercial interests and protecting this from being adversely affected by Government action in the host State.”[28]

(emphasis supplied)

Legally speaking, however, the Government of India had no clear policy as to whether “investments” under BITs were to be deemed as “commercial transactions” under the Indian Law or not until 2016. It was only when the DEA, while issuing Model BIT in 2016 put the conundrum to rest once and for all. Article 27.5 was introduced in the Model BIT, which provides[29],

27.5. Finality and enforcement of awards.—A claim that is submitted to arbitration under this article shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention.                                                                                                                              (emphasis supplied)

Article 27.5 left no room for doubt as to the interpretation of the term “commercial” vis-à-vis enforcement of BIT arbitral awards. As per the article, claims submitted to arbitration under the Model BIT would be treated as commercial “for the purposes of Article I of the New York Convention”. This implies that awards (including awards passed in arbitrations under the Additional Facility Rules) that must be enforced as per the New York Convention are to be treated as arising out of commercial relationship under the Indian law.

As a note of caution, it is found germane to state that the Model BIT must be employed to ascertain the contours of the term “commercial” not merely for the purposes of BITs entered into after 2016, but also to those entered into before 2016. In our view, any interpretation to the contrary would be erroneous and legally untenable, as the nature and purpose of BITs as well the general understanding of the term “commercial” have remained the same over the years, notwithstanding the deeming clause.

c) “Commercial” as per the decisions of the Supreme Court

As mentioned hereinabove, Indian courts have always argued in favour of attributing a “wide import” to the term “commercial” under the Act of 1996[30]. It has also been held in a gamut of decisions that the Act of 1996 must be interpreted as per the UNCITRAL Model Law[31].

Yet another of the Supreme Court’s observations in R.M. Investments and Trading Co. (P) Ltd. v. Boeing Co. (R.M. Investments) merit attention at this point. In the said decision, while examining the ambit of the term “commercial” in relation to the Act of 1996, the Supreme Court held that:

  1. The expression “commercial” should, therefore, be construed broadly having regard to the manifold activities which are integral part of international trade today.[32]

In arriving at the aforesaid conclusion, the Court relied upon its decisions in Renusagar Power Co. Ltd. v. General Electric Co.[33] (Renusagar) and Koch Navigation Inc. v. Hindustan Petroleum Corpn. Ltd.[34] (Koch Navigation). In Koch Navigation, the Court held:

  1. Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration and any expression or phrase occurring therein should receive, consistent with its literal and grammatical sense, a liberal construction.

The abovementioned judgments of the Supreme Court of India make it clear that all such activities that are intended to facilitate international trade and promotion thereof fall within the ambit of the term “commercial” within the meaning of the Act of 1996. It is further clarified that the term must be given a vast, liberal interpretation so as to include the many activities that make part of international trade today. The purpose of any BIT, as elucidated above, is indeed the promotion of international trade and development in the countries that are parties thereto. BITs are entered into so that investments can be made internationally by natural or juridical persons from one country into another, and as such, investment made pursuant to a BIT is squarely covered within the ambit of a commercial relationship and any disputes or differences arising therefrom are liable to be considered as arising out of a “commercial relationship”.

IV. Conflicting decisions of two Indian High Courts on the applicability of the Act of 1996 to investment arbitral awards

Notwithstanding the UNCITRAL Model Law, Article 27.5 of the Model BIT and the decisions of the Supreme Court in R.M. Investments[35], Renusagar[36] and Koch Navigation[37], two decisions of the Delhi High Court, Union of India v. Khaitan Holdings (Mauritius) Ltd.[38] and Union of India v. Vodafone Group Plc[39] have held that arbitral awards under a BIT fall outside the ambit of differences whch are considered as commercial under the Indian law, consequently holding the Act of 1996 as inapplicable to enforcement of BIT arbitral awards. The decisions are also contrary to the 2014 Calcutta High Court judgment in Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armatures SAS[40], wherein the Court assumed that the Act of 1996 is applicable to BIT arbitral awards and proceeded with such assumption.

Following is a discussion on these judgments.

a) Board of Trustees of the Port of Kolkata Louis Dreyfus Armatures[41] (Louis Dreyfus)

In Louis Dreyfus, a request for an anti-arbitration injunction was made by Kolkata Port Trust under Section 45 of the Act of 1996[42]. The Court allowed the said application. However, it is to be noted that Section 45 deals with the power of a judicial authority to refer parties to arbitration in matters of international commercial arbitration. The Court assumed that the section, as also the Act of 1996 would apply to BIT arbitral awards as they would to awards passed in commercial arbitrations.

b) Union of India v. Vodafone Group Plc[43] (Vodafone suit)

In this case, even as arbitration was pending before the Permanent Court of Arbitration under the India-Netherlands BIT between India and Vodafone, its parent company Vodafone Plc initiated arbitration under the India-UK BIT. Consequently, India filed a civil suit before the Delhi High Court inter alia seeking a stay on arbitration under the India-UK BIT, arguing that the proceedings amounted to an abuse of due process, and were null and void. The Court, by way of an order dated 22-8-2017 granted a temporary injunction in favour of India on the basis of preliminary findings.

The final judgment and order in the Vodafone suit was passed on 7-5-2018. In essence, the Court held that it was not devoid of jurisdiction in matters concerning investment treaty arbitrations under compelling circumstances wherein no alternative efficacious remedy was available. It further held that an arbitration agreement between an investor and a State did not by itself constitute a treaty, but only a contract upon which the Court had the power to adjudicate. In so doing, however, the Court also acknowledged the role of international law and held that interests of investors are better served if the arbitration agreement is governed thereunder, as opposed to State law. The Court vacated the interim injunction it had granted on 22-8-2017 and permitted arbitration under the India-UK BIT.

Peculiar and worrying questions of law flow from the Court’s collective adjudication of the issues related to the jurisdiction of domestic courts in dealing with BIT arbitrations, and the applicability of private international law or other domestic law to BIT arbitrations and suits related thereto. The Court rejected Vodafone’s contention that national courts did not possess the requisite jurisdiction or should refrain from exercising its jurisdiction with respect to Bilateral Investment Protection Agreements (BIPA) on the premise that if the contention were true, such courts would also be powerless in enforcing BIT awards. In a nutshell, then, the Court upheld its jurisdiction to interfere with BIT arbitrations.

However, in a few paragraphs thereafter, the Court also went on to hold that albeit BITs give rise to arbitration agreements between investors and host States, they did not qualify as domestic or international commercial arbitration, thereby declaring that the Act of 1996 is not applicable to BIT arbitrations. It held that BIT arbitration disputes are fundamentally different from commercial disputes as the cause of action (whether contractual or not) is grounded on State guarantees and assurances and so, are not commercial in nature.

In addition to the above, the very premise of rejecting the applicability of the Act of 1996 to BIT arbitral awards, that such awards are not a result of a commercial relationship between the investor and the host State, does not seem to be founded on a sound legal basis. It is noteworthy that none of the parties to the suit addressed any arguments with respect to the proposition that BIT arbitrations are not commercial arbitrations. The New York Convention and India’s reservation thereto make it abundantly clear that an award which arises out of a commercial relationship is liable to be enforced under the said Convention read with Section 45 of the Act of 1996[44]. What is commercial is to be determined in accordance with the domestic law of India.

The High Court, without taking into consideration the existing precedent which defines “commercial” has arrived at the erroneous conclusion that BIT awards are fundamentally different from commercial disputes. Furthermore, even apart from the precedent, the High Court could have considered the definition of the term “commercial” under the UNCITRAL Model Law[45] as the guiding principle to determine whether BIT awards fall within the definition of the term “commercial” or not. The Court also erred in not appreciating the fact that the recent series of BITs concluded by India, under Article 27.5 provide that “a claim that is submitted to arbitration under this Article shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the New York Convention”. Therefore, the Delhi High Court has grossly erred in arriving at the conclusion that BIT awards and their enforcement would not be covered under the Act of 1996.

c) Union of India v. Khaitan Holdings[46] (Khaitan Holdings)

In Khaitan Holdings, the Delhi High Court refused to grant an anti-arbitration injunction in favour of the Union of India, reiterating its position in Vodafone suit[47] that intervention of courts in arbitrations under BITs was warranted only in compelling and rare circumstances. Whereas the non-interventionist approach of the court is welcomed, the Court also held that BITs make for a separate “species” of arbitration which is not covered under the ambit of the Act of 1996. This decision in Khaitan Holdings[48], like in Vodafone suit[49], sets a problematic precedent. The ouster of BIT arbitration from the umbrella of the Act of 1996 leaves it with virtually no regime to enforce awards passed thereunder.

V. Conclusion

It is conclusively established from the discussion above that the two decisions of the Delhi High Court in Khaitan Holdings[50] and Vodafone suit[51] have rendered the enforcement of BIT arbitral awards in India virtually impossible, especially if the awards are adverse to India. A Pandora’s box is opened by the said decisions, passed without considering the judgments of the  Supreme Court in R.M. Investments[52], Renusagar[53] and Koch Navigation[54], a bare reading whereof would make it clear that investments under a BIT and disputes arising therefrom fall within the contours of the term “commercial relationship” under the Act of 1996.

Furthermore, in both the decisions[55], the High Court has also failed to consider the Model BIT prepared by India, Article 27.5 of which makes it abundantly clear that claims arising out of the BIT shall be considered as arising out of a commercial relationship. The term “commercial” as understood under the UNCITRAL Model Law has not been given any weightage either. Devoid of these considerations, the decisions are founded on a purely academic difference identified by the High Court between commercial and BIT arbitrations, ignorant of the practical and statutorily-identified likeness between the two.

In any case, the option to close the Pandora’s box continues to rest with the Delhi High Court itself, considering that the decision in Khaitan Holdings[56] is an interim one. In arriving at any final conclusion pursuant to the enforcement of BIT arbitral awards, the Court must take into account established precedent, the Model BIT as well as the UNCITRAL Model Law, thereby setting the position straight. Such course correction is the dire need of the hour in light of the increasing number of BIT arbitrations, since there is no set regime for enforcement of such awards until then. Notably, a BIT award cannot be treated as a “decree” under the Code of Civil Procedure too, since awards are neither “decree” nor “judgment”.

Immediate course correction is also important, for in the absence thereof, there will only be two possible alternatives that investor companies such as Cairn could exercise – one, to either file a new suit where the arbitral award would have mere evidentiary value, rendering the entire purpose of speedy resolution of investment treaty disputes defeated; and two, the seizure of Indian assets abroad. Not just this, absence of a robust regime for enforcement of an arbitral award militates against India’s efforts of becoming the global hub for international arbitration. Other than anything, it is only wise to remember that India continues to be one of the most attractive destinations for FDI. With an increase in FDI, which is governed by BITs, a surge in the number of disputes has also been recorded. As a developing economy, India must not want to push the investors away by setting an image of not honouring decisions passed by arbitral tribunals, nor should the Delhi High Court.


* Managing Partner, Miglani Varma and Co. –Advocates, Solicitors and Consultants, New Delhi, India.

**Managing Partner, Miglani Varma and Co. –Advocates, Solicitors and Consultants, New Delhi, India.

*** Legal Trainee, Miglani Varma and Co. –Advocates, Solicitors and Consultants, New Delhi, India.

[1] Finance Act, 2012.

[2] PCA Case No. 2016-35.

[3] PCA Case No. 2016-07.

[4] PCA Case No. 2016-05.

[5]  Supra Note 2

[6] Supra Note 3.

[7] Supra  Note 2.

[8]Dilasha Seth, India Challenges Vodafone Arbitration Award, Plans the Same in Cairn Case (Business Standard, 25-12-2020) <https://www.business-standard.com/article/companies/india-challenges-vodafone-arbitration-award-plans-the-same-in-cairn-case-120122401064_1.html> (accessed 13-2-2021).

         [9] Supra Note 3.

[10]Aanchal Magazine and Sandeep Singh, Govt. to Contest Cairn Award, Suits in International Courts, (The Indian Express, 20-2-2021) <https://indianexpress.com/article/business/govt-to-contest-cairn-award-suits-in-international-courts-7196419/> (accessed 26-2-2021).

[11]Cairn threatens to seize Indian assets overseas to collect $1.4 bn award (The Hindu, 26-1-2021) https://www.thehindu.com/business/cairn-energy-threatens-to-enforce-arbitration-award-against-indian-assets-overseas/article33665842.ece> (accessed 13-2-2021).

[12]US firm ConocoPhillips recouped multi-billion dollar of compensation awarded in arbitration from Venezuela; Malaysian Government impounded plane owned by Pakistan State carrier, Pakistan International Airlines. For discussion, see India May Offer Cairn Oilfield against $1.4 Billion Arbitration Award (Business Standard, 31-1-2021) <https://www.businesstoday.in/current/economy-politics/india-may-offer-cairn-oilfield-against-14-billion-arbitration-award/story/429690.html> (accessed 13-2-2021).

[13] Cairn Energy Arbitration: India Should Honour its Word and Pay $1.4 Billion, says Company (The Hindu BusinessLine, 7-3-2021) <https://www.thehindubusinessline.com/companies/cairn-energy-arbitration-india-should-honour-its-word-and-pay-14-billion-says-company/article34010972.ece> (accessed 9-3-2021).

        [14] Supra Note 3.

        [15] http://www.scconline.com/DocumentLink/QWdt5a4f.

[16] For the full list of parties to the ICSID Convention, see List of Contracting States and Other Signatories of the Convention at https://icsid.worldbank.org/sites/default/files/ICSID-3.pdf (as of 9-6-2020, accessed 13-2-2021).

[17]India recorded its reservation under Art. I(3) of the New York Convention in the following words: “In accordance with Art. I of the Convention, the Government of India declare that they will apply the Convention to the recognition and enforcement of awards made only in the territory of a State, party to this Convention. They further declare that they will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the law of India.” For the list of all Contracting States to the New York Convention, and countries that have availed reservation therein, see https://www.newyorkconvention.org/countries .

[18]Infra, Part IV: Conflicting decisions of two Indian High Courts on the applicability of the Act of 1996 to investment arbitral awards.

[19]Convention on the Settlement of Investment Disputes between States and Nationals of Other States – International Centre for Settlement of Investment Disputes, Washington 1965, Article 53.

[20] ICSID Convention, Article  54.

[21] Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes (Additional Facility Rules), Article 2.

[22] Additional Facility Rules, Article 19.

[23] Supra Note 11.

[24] UNCITRAL Model Law on International Commercial Arbitration, 1985.

[25] The footnote provides, “The term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.”

[26] Preamble to the 1996 Act.

[27]R.M. Investment and Trading Co. (P) Ltd. v. Boeing Co., (1994) 4 SCC 541,  Sundaram Finance Ltd. v. NPEC India Ltd. (1999) 2 SCC 479

[28] “The Coming of New age for Asia (and Elsewhere)” delivered at ICCA Congress, 2012; cited by Mr. Sumeet Kachwaha in his submissions as the Amicus Curiae in Union of India v. Vodafone Group Plc, 2018 SCC OnLine Del 8842.

[29] Department of Economic Affairs, Model Text for the Indian Bilateral Investment Treaty, Article 27.5; for full text of the Model BIT, see <https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf>.

[30] Supra, Note 19.

[31] Ibid.

[32] (1994) 4 SCC 541, 547

[33] (1984) 4 SCC 679 

[34] (1989) 4 SCC 259, 262

[35] (1994) 4 SCC 541 

[36]  (1984) 4 SCC 679 

[37] (1989) 4 SCC 259

[38] 2019 SCC OnLine Del 6755

[39] 2018 SCC OnLine Del 8842 

[40] 2014 SCC OnLine Cal 17695 

[41]  Ibid.

[42] Section 45 of the Act of 1996.

[43] Supra Note 39.

[44]Section 45 of the 1996 Act.

[45] Supra Note 18.

[46] Supra Note 38.

[47]  Supra Note 39.

[48] Supra Note 38.

[49] Supra Note 39.

[50] Supra Note 38.

[51] Supra Note 39.

[52] Supra Note 35.

[53] Supra Note 33.

[54] Supra Note 34.

[55] Khaitan Holdings, supra Note 38 and Vodafone suit, supra Note 39.

[56] Supra Note 38.

Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., reiterated the position of law laid down in the decision of Vandana Tyagi v. GNCTD, [WP (C) 1103 of 2019, decided on 07-01-2020.

Petitioner sought direction upon the respondent/State Bank of India [Bank] to release an amount of Rs 30,000 per month to him from the bank account of his incapacitated nephew, Mr Ajit Kumar Singh [AKS].

Petitioner submitted that AKS had been bedridden and incapacitated as he was suffering from acute ischemic strokes since 2018 and his health worsened in November 2020. It was also stated that an amount of ₹30,000 per month would be required so as to meet AKS’s daily and medical expenditure, including doctor’s fees, medicines, food, therapist, nurse etc.

Petitioner being the paternal uncle of AKS stated that he had been taking care of his nephew and had been acting as his guardian, in addition to maintaining his own family, but was not in a position to financially sustain his nephew indefinitely, and meet his medical expenditure as well.

Bank denied the request for withdrawal of the said amount from the bank account of AKS on the ground that there was no policy that allowed such withdrawals, even by family members in cases of medical emergencies.

Instant petition was filed in view of the above circumstances.

Mr Ramesh Singh, Standing Counsel for GNCTD drew the Court’s attention to Clause 5.7 of the Master Circular on Maintenance of Deposit Accounts – UCB dated 01-07-2009 [Master Circular] issued by RBI which was in respect to  “Operation of Bank Accounts by Old/Sick/Incapacitated Customers”

On examination by the medical board it was found that AKS was virtually in a comatose state and would not be able to indicate the person who would be entitled to operate his bank account in terms of Clause 5.7.3 of the Master Circular.

In view of the above stated circumstances and facts, reliance was placed on the decision of Delhi High Court in Vandana Tyagi v. GNCTD, [WP (C) 1103 of 2019, decided on 07-01-2020] which laid down guidelines that may be used to deal with situation such as the present one where a person is unable to discharge his/her functions with respect to his/her assets.

On 04-03-2021, this Court prima facie had opined that the aforesaid decision was applicable to the present matter.

In view of the facts and circumstances of the present case, Bench held that the guidelines issued in Delhi High Court’s decision of Vandana Tyagi v. GNCTD, [WP (C) 1103 of 2019, decided on 07-01-2020] will be applicable to the present case.

Bench was satisfied with the report from the Medical Board that AKS was in a comatose state and incapable of operating his bank account himself or giving necessary directions for this purpose. Tehsildar’s report corroborated the information placed on record.

AKS and his wife had discord in their marital relations and the same was a subject matter of legal proceedings wherein they mutually agreed to divorce upon certain terms and conditions. His adult son stated vide an affidavit that he had no objection to the petitioner being appointed as legal guardian of AKS.

In Court’s opinion, neither AKS’s spouse nor his children were in a position to take care of him and also they had no objection to petitioner taking on the role of guardian to AKS.

High Court held that petitioner shall be appointed at the guardian of AKS for the purpose of withdrawal of a fixed monthly amount from the savings account of AKS, subject to safeguards contained in the guidelines incorporated in Vandana Tyagi case.

Court directed that the petitioner may be permitted to withdraw Rs 20,000 per month from AKS’s account.

  • Bank will file the statement of accounts of the aforesaid account before the Registrar General of this Court every three months to monitor the aforesaid aspect.
  • Petitioner will also file a statement of accounts before the Registrar General every three months stating the items of expenditure with regard to the aforesaid amount of ₹20,000
  • In the event, the petitioner misuses his power or misappropriates, siphons or misutilizes the assets of AKS or fails to utilize the assets in AKS’s best interests, the Court would have the power to remove him as the guardian and appoint another person in his place.
  • Petitioner shall intimate his appointment to the Director, Department of Social Welfare, GNCTD
  • A representative of the Department of Social Welfare, GNCTD, shall visit the residence of the petitioner at least once every quarter, and make a report regarding the condition of AKS, which will be placed before the Director, Department of Social Welfare, GNCTD
  • In case any other relative or a next friend of AKS finds that the petitioner is not acting in the best interests of AKS, such person will also have the locus to approach the Court for issuance of appropriate directions and/or for removal of the petitioner as the guardian.
  • In case, the petitioner wishes to move AKS to another state or even to another country for the purposes of securing better medical treatment for him, he would approach the Court for necessary permission before undertaking such an exercise.

In view of the above terms, petition was disposed of.[Bhim Singh v. AGM State Bank of India, 2021 SCC OnLine Del 1552, decided on 08-04-2021]


Advocates before the Court:

For the Petitioner: Dhruv Dwivedi, Advocate

For the Respondents: Rajiv Kapur and Akshit Kapur, Advocates for R-1 and R-2.

Ramesh Singh, Senior Advocate, Amicus Curiae with Tara Narula, Advocate

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., reiterated that there is no provision in the Criminal Procedure Code to amend a criminal complaint, but amendment can be allowed if the amendment is sought before taking of cognizance.

Petitioner (Aroon Purie, Editor-in-Chief, India Today) filed an application for amendment challenging the order dated 26-02-2020 whereby the trial court directed to issue notice against the petitioner for offences under Sections 500/501/502 read with Section 120-B IPC.

Factual matrix

India Today Magazine in its edition dated 30-04-2007 had published a news item under the title “Mission Misconduct”. The said item asserted allegations, against the complainant, of soliciting sexual favour leading to a probe that revealed financial irregularities and fudging of bills. It was also reported that consequently, the official (complainant) is back in India is facing disciplinary action.

Petitioner’s arguments

(a)       As per Section 7 of the Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner is editor-in-chief and not an editor.

(b)       The news item merely reported the facts and hence it cannot be said to be defamatory. Facts were accurate and reflected the public record and hence no defamation case could be made out.

(c)        Violation of Section 196(2) CrPC: It was argued that it prohibited any Court from taking cognizance of an offence of conspiracy, other than criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or above. Such cognizance can be taken only in a case where the State Government or the District Magistrate has consented in writing and since there is no consent of the State Government or by the District Magistrate, the cognizance in the present case is barred under Section 196(2) CrPC.

(d) Challanege was also based on the grounds of violation of Section 197 CrPC. It was contended that necessary sanction for prosecution was not obtained.

(e) Lastly, it was asserted that the instant petition under Section 482 CrPC was maintainable despite availability of the remedy under Section 397 CrPC.

Complainant’s story

As per the complainant, information about allegation of “sexual harassment at work place” was conveyed to him only in the form of a show cause notice. On the basis of his reply, the Ministry of External Affairs conveyed to the complainant that they would not pursue the matter further at that stage. Thus, without any basis, India Today went ahead with the publication of an unsubstantiated and unverified defamatory story and splashed it all over the world through the medium of the internet.

Act of Defamation was done on 30-04-2007 on which date there were no charges of any financial irregularities or of fudging of bills, etc, against the complainant. Such charges were created and disciplinary action initiated and pursued by the Department under the shadow of a democles sword in the form of the publication of the defamatory news story which ignited the flame and the resultant fire engulfed the whole unblemished service career, jeopardized his chances of promotion and, above all, assassinated his precious reputation.

As per the complainant, the so-called complaint dated 10.07.2005 (2006) never existed and was subsequently planted. Further, it was alleged that on the date of publication of story in India Today dated 30-04-2007, no show cause notice much less the memorandum of charges were issued to him.

Whatever information with regard to any allegations was available to the accused/officers of the MEA, who were privy to such classified/confidential information; they rather provided such classified information to India Today in an unauthorized manner and in violation of the GOI Conduct Rules applicable to them, which specifically prohibits sharing any information about service matters of its officer with the media. Thus the assertion the news story on 30-04-2007 was only reporting of a fact which was in public record, was completely misleading.

Analysis, Law and Decision

(a) The High Court was of the opinion that the argument that as per Section 7 of the Press and Registration of Books Act, 1867, normally an editor can only be prosecuted cannot be adhered to. It was reiterated that it is matter of evidence in each case and if the complaint is allowed to proceed only against the editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 and in case such editor succeeds in proving that he was not the editor having control over the selection of alleged libelous matter published in the newspaper, the complainant would be left without any remedy left to redress the arguments against the real culprits.

(b) On the second issue, the Court said that the assertions that the news item merely reported facts which were accurate and reflected public records and cannot be held to be defamatory, cannot be accepted. Rather such assertion and who was responsible for its publication and has it came to the fore of editors require critical examination and hence evidence of these issues is required.

The ingredients of Section 499 IPC clearly point out towards the imputation published in any form which also include newspaper. In case the petitioner seeks the protection of an exception under Section 499, that stage is yet to come, meaning thereby the submissions made by the petitioners are not applicable at this stage.

It was noted that as per record available before the Court, the story by the petitioner against the complainant, was allegedly published much prior to the issue of show cause notice. Subsequent to this, the complainant was exonerated from all the allegations vide an order dated 04-04-2008, but as per the complainant, with the publication of the article in question, the complainant was allegedly defamed in the eyes of his wife, his family, his friends and colleagues and society, in India and all over the world. Till date the defamatory article allegedly haunts him and that is the reason the complainant has been vigorously pursuing litigation.

(c) Further, the Court doubted whether Section 196(2) CrPC will be applicable in the present case. Anyhow, in this case, the Magistrate after due process of law and after applying her mind to the facts and circumstances of the complaint, has taken cognizance and thus has consented in writing to the initiation of the proceedings against the petitioner vide a summoning order dated 20.04.2013, hence this objection was not relevant at this stage.

(d) With respect to the objection qua violation of Section 197 CrPC, the High Court expressed that in the present matter, petitioner was neither a judge nor a public servant, therefore no sanction was required to initiate criminal action by the Magistrate against the petitioner.

Relying on the Supreme Court decision in State v. Battenapatla Venata Ratnam, (2015) 13 SCC 87, the Court opined that as the allegations against the government official are of leaking of the confidential information of complainant to block his career, and allegedly for their own pleasure, hence, prima facie, at this stage, per allegations, sanction was not required.

(e) On the question of maintainability of the instant petition, the Court was of the view that allegations and counter allegations in the present matter raised disputed questions of facts and cannot be dwelled into by the High Court under Section 482 CrPC.

All the defenses raised in the instant petition, can very well be taken up by the petitioner during the course of trial, said the High Court.

Whether amendment can be allowed at the instant stage

In the present case, the trial court had already taken cognizance of the complaint and proceeded with the trial. As per the High Court, the amendment which was now sought is illegal and against the provisions of law.

In the present matter, the amendment were sought when the Magistrate had already taken cognizance of the complaint and had proceeded with trial. The High Court relied on the Supreme Court decision in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, wherein it was held that, there is no provision in CrPC to amend criminal complaint, but amendment can be allowed if the amendment is sought before taking cognizance.

Therefore, the present petition was dismissed as no ground to interfere under Section 482 CrPC was found. [Aroon Purie v. State, Crl. MC No. 3492 of 2013, decided on 07-04-2021]


Advocates before the Court:

[CRL.M.C. 3492/2013 CRL.M.As. 12820/2013 & 18912/2014]

For the Petitioner: Mr. Siddharth Luthra, Senior Advocate with Mr.Hrishikesh Baruah, Mr. Pranav Jain.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.SS.Ahluwalia, Advocate for R2/ Amicus Curie.

[CRL.M.C. 4636/2013, CRL.M.A.Nos.16659/2013, 17386/2020]

For the Petitioner: Mr. Ajay Digpaul, CGSC with Mr. Kamal R.Digpaul, Advocate

For the Respondents: Mr. S.S. Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate.

[CRL.M.C. 1762/2014, CRL.M.A.Nos.5882/2014, 17297/2020, 17299/2020]

For the Petitioner: Mr. Hrishikesh Baruah, Mr. Ajay P.Tushir, Mr. Shailendra Singh, Mr. Pranav Jain, Mr. Shahrukh, Advocates.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.S.S.Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate for Mr. O.P.Bhola

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., while addressing a matrimonial matter, highlighted the scope of the Protection of Women from Domestic Violence Act,

PWDV Act provides for a complete mechanism for enforcement of the rights claimed under Section 12 of PWDV Act and merely because the rights as provided under Sections 18 to 22 of PWDV Act can be claimed in other legal proceedings also does not imply ouster of jurisdiction of the Magistrate to try the matter once divorce proceedings have been filed.

Due to the petitioner and respondent’s marriage running into rough weather, respondent had to leave the matrimonial home. After which the respondent filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act (PWDV Act) against the petitioner and his parents.

In 2014, petitioner filed a divorce petition against the respondent.

By the present petition, petitioner sought transfer of complaint filed by the respondent under Section 12 of the PWDV Act and the execution petitions filed to the Principal Judge, Family Courts, South-East District, Saket Courts.

Analysis, Law and Decision

Present petition hinges on the interpretation of Section 26 of the PWDV Act.

In P. Rajendran v. Sasikala, Criminal Original Petition No. 29522 of 2013, decided on 14-09-2017, Madras High Court followed the decision on Capt. C.V.S Ravi v.  Ratna Sailaja, Crl. O.P. No.17122 of 2008, reiterated that merely because Family Court can grant reliefs under Sections 18 to 22 of the PWDV Act, it does not lead to the conclusion that an application filed by an aggrieved person under Section1 2 of the PWDV Act was required to be transferred to the Family Court.

Bench noted that Section 26 of the PWDV Act reveals that it permits availing of the reliefs provided under Sections 18, 19, 20, 21 and 22 of the PWDV Act in any other legal proceedings before a civil or criminal court and in case such a relief is granted than information to this extent was required to be given to Magistrate dealing with the application under the PWDV Act.

Section 26 of PWDV Act does not contemplate ouster of jurisdiction of the Magistrate even in a case some relief as contemplated under Sections 18 to 22 of the PWDV Act is granted by the civil or criminal court in some other legal proceedings.

High Court expressed that:

“…even if a proceeding is pending before the Family Court, the same will not warrant the application under Section 12 of PWDV Act to be transferred to the Family Court.”

 Court found that the petitioner had been delaying the proceedings in the application under Section 12 of the PWDV Act and was not complying with the Magistrate’s order, while avoiding making payment of maintenance to the respondent.

Hence, it was directed to conclude proceedings under Section 12 of PWDV Act as expeditiously as possible.

No reason was found to transfer the proceedings before the Metropolitan Magistrate to Family Court, therefore, petition was dismissed. [Sandeep Aggarwal v. Viniti Aggarwal, 2021 SCC OnLine Del 1524, decided on 07-04-2021]


Advocates before the Court:

For the Petitioner: Aditya Goel, Advocate

For the Respondent: Lalit Gupta, Sidharth Arora, Advocates with the respondent in person.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., partly allowed a revision petition filed by the husband and reduced the amount of interim maintenance granted to the respondent-wife and son from Rs 12,500 per month to Rs 4,500 per month. While so deciding, the Court held that:

It is trite law that it is for the wife to establish that the petitioner [husband] was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company.

The husband filed the instant petition against the order of the Family Court, Saket, whereby he was directed to pay the maintenance at Rs 12,500 per month to the applicant wife and their son (Rs 7,500 for the wife and Rs 5,000 for the son).

Backdrop

The petitioner and respondent 1 got married in 2012. A son was born to them. However, disputes arose, and the husband filed a petition for restitution of conjugal rights against the wife under Section 9 of the Hindu Marriage Act, 1955. On the other hand, the wife filed an application under Section 125 CrPC for grant of maintenance. An application for interim maintenance was also pressed. The wife alleged that the husband was earning Rs 35,000 per month. This included salary of Rs 20,000 drawn by working in a shop and another Rs 15,000 earned from his father’s business. An amount of Rs 18,000 (Rs 10,000 for the wife and Rs 8,000 for the son) was claimed as maintenance.

The husband disputed his income as alleged by the wife. The Family Court, however, estimated the husband’s income at Rs 30,000 per month and fixed the maintenance at Rs 12,500 per month.

On the husband’s inability to pay the amount as awarded by the Family Court, he was taken into judicial custody.

Contentions

The petitioner contended that the judgment of the Family Court was based on conjectures and surmises. He filed an affidavit and stated that his father was running a business of Sesame Oil, but it was closed after the father’s death. The petitioner husband also filed an affidavit of the Manager of the shop where the petitioner was working. The Manager deposed that the petitioner was drawing a salary of Rs 9,000 per month.

On the other hand, the respondent-wife contended that the husband was concealing his actual income.

Law, Analysis and Decision

Perusing the record, the High Court was of the opinion that the entire judgment of the Family Court was based on guesswork. There was no material, whatsoever, for the Family Court to conclude that the husband was earning Rs 30,000 per month. No reason was forthcoming as to why the appointment letter given by the employer of the husband was disbelieved/discarded by the Family Court.

It was held that it is trite law that it is for the wife to establish that the petitioner was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company. The Court was of the view that:

“In the absence of any material on record, the judgment of the Family Court fixing the salary of the petitioner at Rs 30,000 per month and awarding Rs 12,500 for the wife and children cannot be sustained.”

Further, the High Court found that it cannot ignore the fact that the husband was in jail because of his inability to pay maintenance to his wife:

Had the petitioner been capable of paying the maintenance, the petitioner would have made the payment rather than going to jail.

In view of the above and in view of the absence of any material to the contrary and the only material being the affidavit filed by the husband that he is earning Rs 9,000 per month, the High Court reduced the amount of maintenance as granted by the Family Court and directed the husband to pay a sum of Rs 4,500 as interim maintenance to the wife and their son from the date of filing of the petition, i.e. 1-3-2016. He was further directed to clear the arrears of maintenance within two months.

It was made clear that all the observations made in the instant order are only restricted for the purpose of calculating the interim maintenance; and the amount of maintenance to be paid under Section 125 CrPC would be arrived at by the Family Court after taking into account the entire evidence adduced by the parties before it. [Amit Kumar Sindhi v. Monika, 2021 SCC OnLine Del 1324, decided on. 23-3-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that:

The senior citizen can approach the Deputy Commissioner/DM for eviction from any property over which he/she enjoys rights and such order will be appealable to the Divisional Commissioner.

Petitioner who is the wife of respondent 4 and daughter-in-law of respondent 3 filed the present petition against the order of the District Magistrate.

Petitioner was evicted from the suit in the said order and said order was passed by the District Magistrate while exercising powers under Rule 22(3)(1) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

Petitioner’s counsel submitted that the writ petition was ought to be entertained as an appeal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which can only be filed by a senior citizen.

Further, it was added that there appears to be some confusion as to which orders are appealable, to which forum and by whom. It is necessary to set out the provisions which are applicable separately qua maintenance and eviction proceedings.

Maintenance Proceedings 

The maintenance proceedings for the welfare of parents and senior citizens are concerned under Section 2(j), the said Act provides that the ‘Tribunal’ would be the forum for exercising the first jurisdiction.

‘Tribunal’ is defined under Section 2(j) as the ‘Maintenance Tribunal’ constituted under Section 7.

 Hence, the Maintenance Tribunal under Section 7 of the Act would be the ADM or the SDM of the concerned sub-division.

Further, it was added that, filing of appeals qua maintenance-related matters are governed by Section 15 of the Act.

Bench while referring to the decisions of Naveen Kumar v. GNCTD, WP (C) No. 1337 of 2020, decided on 05-02-2020; Amit Kumar v. Kiran Sharma, WP (C) No. 106 of 2021, decided on 06-01-2021 and Shumir Oliver v. GNCTD, WP (C) No. 2857 of 2021, decided on 03-03-2021, held that any ‘affected person’ can prefer the appeal and not just a senior citizen or parent.

Procedure in respect to maintenance would be to first approach the concerned ADM/SDM concerned and thereafter, the Appellate Tribunal which is presided over by the Deputy Commissioner of the District concerned.

With respect to eviction proceedings, the same are governed by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016.

Hence as per The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, a senior citizen can approach the Deputy Commissioner seeking eviction of the son, daughter or any other legal heir from his ‘self-acquired property’ on account of his non-maintenance and ill-treatment.

With regard to eviction, the first forum would be the Deputy Commissioner/District Magistrate, therefore, a challenge to the order of Deputy Commissioner would lie before the Divisional Commissioner.

Act and the various Rules and Notifications thereto are not readily available to litigants, as also lawyers, in the form of a separate publication. This may be one of the causes for confusion in filing multiple writ petitions directly against the first order of the tribunal or, in the case of eviction, from the order of the Deputy Commissioner/DM.

High Court also added to its observations that, the appellate forum and the limitation period is not within the knowledge of litigants and sometimes even lawyers, it is directed that the following two sentences be added at the end of every order passed by the initial forum i.e. the Tribunal under Section 7 of the Act or, in eviction cases, the Deputy Commissioner under Rule 23(3) of the Rules. 

For maintenance cases:

“The present order would be appealable, under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the Appellate Tribunal, presided over by the Deputy Commissioner of the concerned District. The period of limitation for filing of appeal is 60 days.”

For eviction cases:

“The present order would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016 before the Divisional Commissioner, Delhi. The period of limitation for filing of appeal is 60 days.”

While parting with the present decision, High Court held that the present order be communicated to all the Maintenance Tribunals and Appellate Tribunals, as also the concerned Presiding Officers who are exercising powers under the Rules.

“…order be also sent to the worthy Registrar General for placing a copy at the filing counter so that whenever writ petitions are filed against original orders, the Registry can also inform lawyers of the availability of the alternate remedy, in case they wish to avail of the same.”

 Impugned Order be appealable to the Divisional Commissioner under Rule 22(3)(4).

The petition was accordingly permitted to be withdrawn with liberty to the petitioner to approach the Divisional Commissioner.[Rakhi Sharma v. State,  2021 SCC OnLine Del 1327, decided on 05-03-2021]

Case BriefsHigh Courts

Delhi High Court: In the notable ruling of Amazon v. Future Retail, J.R. Midha, J. of Delhi High Court considered three crucial questions:

♦ What is the legal status of an Emergency Arbitrator?

♦ Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act?

♦ Whether the interim order of Emergency Arbitrator is Nullity?

Amazon.com invested Rs 1431 Crore in Future Coupons Private Limited (FCPL) based on certain special, material protective/negative rights available to FCPL in Future Retail Limited (FRL), namely, that the Retail Assets of FRL would not be alienated without the prior written consent of Amazon.com (Petitioner), and never to a Restricted Person. Further, an agreement was attained wherein it was stated FRL would be the sole vehicle for the conduct of FCPL and FRL’s conduct of business, resulting in benefit of the entire investment to FRL.

Within months of investment it was noted that the Biyanis which controls FRL breached the agreements by violating the contractual obligations, approved transaction relating to the transfer of its retail assets to Mukesh Dhirubhai Ambani Group (MDA) which is a Restricted Person as per Shareholders’ Agreement between petitioner and respondents (FCPL-SHA) [Disputed Transaction].

Timeline of Events:

05-10-2020
  • Arbitration Proceedings initiated.
  • Application filed to seek an ‘Emergency Interim Relief to restrain respondents from pursuing Disputed Transaction.
06-10-2020
  • Respondent 2 raised an objection with respect to Emergency Arbitrator’s jurisdiction.
09-10-2020
  • Petitioner requested for status quo to be maintained, however, respondents declined to give any assurance during the pendency of proceedings before the Emergency Arbitrator.
13-10-2020

Emergency Arbitrator called upon both the parties to submit their response pertaining to the following 4 Supreme Court Judgments:

Respondents raised objection to Emergency Arbitrator’s Jurisdiction.

16-10-2020 Arbitrator heard all the parties.
25-10-2020

Emergency Arbitrator passed an interim order and held that:

“the Emergency Arbitrator is an Arbitral Tribunal for all intents and purposes. The Emergency Arbitrator further noted that the Emergency Arbitrators are recognized under the Indian Arbitration framework.

Arbitrator observed that the petitioner made out a strong prima facie case that respondents were in breach of the contractual obligations. Further, the arbitrator added that the petitioner would suffer irreparable injury if the interim injunction was not granted.

Conclusion of Emergency Arbitrator

Petitioner has a strong prima facie case on the merits of the dispute, the petitioner’s rights under the FCPL-SHA, the SSA, and the FRL-SHA (insofar as it has been incorporated into the FCPL SHA) have been apparently compromised by the Respondents and the Respondents have given no good legal reasons for effecting the sale of FRL’s Retail Assets to the Restricted Person behind the petitioner’s back.

Point-Wise Analysis of the crucial questions raised in the present matter:

Legal Status

 Status of an Emergency Arbitrator is solely based on the party autonomy and the powers of such an arbitrator are similar to Arbitral Tribunal to decide an interim measure. Though Arbitral Tribunal is empowered to reconsider, modify, terminate or annul the order/award of the Emergency Arbitrator.

Emergency Arbitration is a very effective and expeditious mechanism to deal with the Emergency Interim Relief Application and has added a new dimension to the protection of the rights of the parties.

With this mechanism, a litigant gets justice within 15 days, though if the order of Emergency Arbitrator is not enforced, it would make the entire mechanism redundant.

In the present matter, by agreeing to incorporate the Rules of SIAC into the arbitration agreement, parties agreed to the provisions relating to Emergency Arbitration.

Current legal framework is sufficient to recognize the Emergency Arbitration and no amendment in this regard was required.

Section 2(1)(d) defines “arbitral tribunal” to mean a sole arbitrator or a panel of arbitrators, it is wide enough to include Emergency Arbitrator.

Under Section 17(1) of the Arbitration and Conciliation Act, the Arbitral Tribunal has the same powers to make interim order, as the Court has, and Section 17(2) makes such interim order enforceable in the same manner as if it was an order of the Court. The Interim Order is appealable under Section 37 of the Arbitration and Conciliation Act.

Whether Doctrine of Group of Companies applies only to proceedings under Section 8 of the Arbitration and Conciliation Act? 

Law relating to the Group of Companies doctrine is well settled by the Supreme Court in Chloro Controls India Private Limited v. Sever N Trent Water Purification Inc., (2013) 1 SCC 641, Cheran Properties Limited v. Kasturi and Sons Limited, (2018) 16 SCC 413 and MTNL v. Canara Bank, (2020) 12 SCC 767.

Group of Companies doctrine binds the non-signatory entity where the multiple agreements reflect a clear intention of the parties to bind both the signatory and non-signatory entities within the same Group.

 Supreme Court has laid down various tests for invoking the said doctrine.

Following are the Tests:

  • direct relationship to the party signatory to the arbitration agreement,
  • direct commonality of the subject-matter and
  • the agreement between the parties being a composite transaction.
  • The transaction should be of a composite nature where performance of the mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute.
  • Besides all this, the Court has to examine whether a composite reference of such parties would serve the ends of justice.

Bench also observed that the said doctrine has been very succinctly explained in the 4th Edition of Malhotra’s Commentary on the Law of Arbitration by Justice Indu Malhotra.

Here’s a Summary for a quick glance at the principles laid down by the Supreme Court on Group of Companies doctrine:

  • As the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a Group of Companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non-signatory entities within the same group.
  • The Group of Companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non-signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements, an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory.
  • Doctrine can be invoked to bind a non-signatory entity where a Group of Companies exist and the parties have engaged in conduct, such as negotiation or performance of the relevant contract or made statements indicating the intention assessed objectively and in good faith, that the non-signatory be bound and benefited by the relevant contracts.
  • Doctrine will bind a non-signatory entity where an arbitration agreement is entered into by a company, being one within a group of companies, if the circumstances demonstrate that the mutual intention of all the parties was to bind the signatories and non-signatory affiliates.
  • A non-signatory party can be subjected to arbitration where there was a clear intention of the parties to bind both, the signatory as well as the non-signatory parties who are part of Group of Companies. In other words, ―the intention of the parties‖ is a very significant feature that must be established before the scope of arbitration can be said to include the signatory as well as the non-signatory parties.
  • Direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject-matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of the mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute. Besides all this, the Court has to examine whether a composite reference of such parties would serve the ends of justice.
  • Where the agreements are consequential and in the nature of a follow-up to the principal or mother agreement, the latter containing the arbitration agreement and such agreements being so intrinsically intermingled or interdependent that it is their composite performance which shall discharge the parties of their respective mutual obligations and performances, this would be a sufficient indicator of intent of the parties to refer signatory as well as non-signatory parties to arbitration. The principle of ‚composite performance would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand and the explicit intention of the parties and the attendant circumstances on the other.
  • While ascertaining the intention of the parties, attempt should be made to give meaning and effect to the incorporation clause and not to invalidate or frustrate it by giving it a literal, pedantic and technical reading.
  • Tests laid down are:

◊ The conduct of the parties reflect a clear intention of the parties to bind both the signatory as well as the non-signatory parties.

◊ The non-signatory company is a necessary party with reference to the common intention of the parties.

◊ The non-signatory entity of the group has been engaged in the negotiation or performance of the contract.

◊ The non-signatory entity of the group has made statements indicating its intention to be bound by the contract.

◊ A direct relationship between the signatory to the arbitration agreement and the non-signatory entity of the group; direct commonality of the subject-matter and composite nature of transaction between the parties.

◊ The performance of the agreement may not be feasible without the aid, execution and performance of the supplementary or ancillary agreement for achieving the common object.

◊ There is a tight group structure with strong organizational and financial links so as to constitute a single economic unit or a single economic reality.

◊ The funds of one company are used to financially support or restructure other members of the group.

◊ The composite reference of disputes of fresh parties would serve the ends of justice.

Bench in view of the above, decided that the Group of Companies Doctrine is applicable to the present case and respondent 2 is a proper party to the proceedings – Why? Lets’ read the reasons:

  • Signatory and non-signatory company (FRL) belong to the same Biyanis
  • Parties Conduct reflected clear intention to bind the signatory as well as non-signatory company (FRL) of Biyanis
  • Common negotiating and legal team represented the signatory and non-signatory company (FRL).
  • Statutory disclosure made by the non-signatory company to the public.
  • Direct relationship of the non-signatory company to the signatory company of the Group, direct commonality of the subject matter and composite nature of transactions.
  • Funds of Signatory Company used to financially support the non-signatory company of the Group.
  • Agreements are so intrinsically intermingled that their composite performance only shall discharge the parties of their respective mutual obligations.
  • Common intention of all the parties, to arbitrate.
  • Supreme Court’s observation in the decision of Cheran Properties Limited v. Kasturi and Sons Limited, (2018) 16 SCC 413 would squarely apply to the present matter.

Whether the Interim Order is Nullity?

In Court’s opinion, respondent plea of Nullity is to mislead this Court.

Bench agreed with the Emergency Arbitrator that the protective rights do not amount to control of the petitioner over FRL and do not violate the law.

In the present matter, since the respondents were continuing to violate the agreement even after the Emergency Arbitrator’s decision, the petitioner approached this Court for enforcement of the interim order of the Emergency Arbitrator.

Respondents did not dispute the breach of the agreements either before the Emergency Arbitrator or before this Court.

High Court noted that the whole thrust of the respondents before this Court is that the petitioner is a trillion-dollar company and Rs 1430 crore invested by them in the present case is peanuts for them and they should forget about this money as it is worth zero today.

Bench also quoted the senior counsel for respondent 2 for the above-said observation:

“…What happens to his 1430 crores………that is worth zero today. FRL is zero. FCPL coupon business is gone. For this American behemoth, 1400 crore would be rounded off………..”

Before parting with this decision, High Court stated that Emergency Arbitrator, V.K. Rajah SC is a well-known jurist.

Conclusion

All the objections raised by the respondents were rejected with a cost of Rs 20,00,000 to be deposited by the respondents with the Prime Minister Relief Fund for being used for providing COVID vaccination to the Below Poverty Line (BPL) category – senior citizens of Delhi.

Since the respondents deliberately and willfully violated the interim order, hence they are liable for the consequences enumerated in Order XXXIX Rule 2A of the Code of Civil Procedure.[Amazon.Com NV Investment Holdings LLC v. Future Coupons (P) Ltd., 2021 SCC OnLine Del 1279, decided on 18-03-2021]

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing an issue with respect to culpable homicide expressed that:

“…crucial to determine whether the accused had intention or knowledge that the injuries inflicted on the victim would cause the death and as a result thereof the accused could be guilty of committing culpable homicide not amounting to murder.”

The instant revision petition was filed under Section 397/401 of Criminal Procedure Code directed against the order passed by the Additional Session Judge, framing charges against the petitioner for offences under Section 308, 385 and 34 of the Penal Code, 1860.

A piece of information was received that a man had been stabbed in front of Okhla Sabzi Mandi.

Further, it was added that the petitioners came to the complainant, Anwar/petitioner 4 was armed with a Danda Imran/petitioner 3 and Sharukh/petitioner 2 were armed with iron rods and Salman was armed with a knife. They demanded money from the complainant.

Further, it was stated that all four petitioners started hitting the complainant, later petitioners’ brother, Nazim rescued him.

The accused left after threatening the complainant of dire consequences.

From the investigation, sufficient evidence for filing charge-sheet against the petitioners under Sections 308, 384 and 24 of Penal Code 1860 was found.

Additional Sessions Judge found that prima facie a case under Section 308 IPC was made out against the accused. The said order has been challenged in the present revision petition.

What is Section 308 of Penal Code, 1860?

Attempt to commit culpable homicide:

 Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

In the decision of Rajiv Sharma v. State, 2015 SCC OnLine Del 12138, it was held that:

“4. To proceed under Section 308 IPC, it is not essential that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that, if one by that act caused death, he would be guilty of culpable homicide not amounting to murder…”

Case of Scuffle

 It was noted in the view of facts and circumstances of the present case that it was a simple case of scuffle/quarrel between the parties where injuries were inflicted voluntarily and the High Court opined that the assailants could be proceeded for causing hurt under Section 323/324 IPC.

Complainant has submitted that the petitioner used to demand money for conducting business from that place and four of them attacked the victim.

Culpable Homicide

To secure conviction under Section 308 IPC the prosecution must prove that the accused had requisite intention or knowledge to cause culpable homicide.

With regard to determining the intention of whether the accused had intention or knowledge that injuries inflicted by him on the victim would cause death can be determined only at the stage of trial and not at the time of discharge.

Elaborating on the aspect of discharge in a case under Section 308 IPC, Bench referred to the decision of Supreme Court in Sunil Kumar v. N.C.T. of Delhi, (1998) 8 SCC 557.

High Court stated that APP, Meenakshi Chauhan was right in her submissions that the injury alone sustained by the accused at the time of framing charge cannot be the only criterion to discharge a person from an offence under Section 308 IPC. The attempt of that nature may or may not actually result in injury.

What is relevant for framing charges under Section 308 IPC is that an act done by the accused with intention or knowledge that under such circumstance’s death could have been caused or not.

Fact that the injury suffered by the victim is simple might not be a very relevant circumstance at this juncture in view of the circumstances of the Supreme Court decision cited above.

Hence, High Court upheld the decision of the Additional Sessions Judge. [Salman v. State, Crl.,  2021 SCC OnLine Del 1247, decided on 12-03-2021]


Advocates before the Court:

For the Petitioners: Ajayinder Sangwan, Advocate

For the Respondents: Meenakshi Chauhan, APP for the State

Sumer Kumar Sethi, Advocate for respondent 2

Case BriefsHigh Courts

Delhi High Court: Rajiv Sahai EndLaw, J., while addressing a very significant issue revolving around ‘Will’ expressed that:

Litigation in a Court cannot be permitted to be played like a game of one-upmanship or by springing surprises or of ambush.

 Adding to the observations, Court in light of ‘unsoundness of mind’ expressed that:

 “…to prove unsoundness of mind, one would be required to prove consistent conduct to prove unsoundness of mind, even if medical records of unsoundness of mind are not available.”

Vide an order 25-11-2019, issues were framed in the Test. Cas.11/2018, wherein the second issue was :

“Whether the deceased Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10,11&12)”

Further, the Senior Counsel’s contention that the onus for the said issue should be on the petitioner, was rejected with the reason that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right of rebuttal; else, the presumption is, of soundness of mind of a living person.

Relation No. 10 filed the instant application pleading the following:

(a) he had preferred a SLP(C) No. 5603-04/2020 challenging the order dated 25-11-2019, to the extent placing the onus of issue no.(ii) on him and which SLP was disposed of with liberty to him to make a formal application and request this Court to reformulate the issue no.(ii);

(b) this application is being filed in pursuance thereto;

(c) the onus to, in the first instance show that the testatrix was of a sound disposing mind i.e. had the testamentary capacity to execute the Will, is on the propounder of the document claimed to be the Will;

(d) only if the propounder of the document, claimed to be the Will, establishes the testamentary capacity of the testator/testatrix, does the document stand proved as the Will;

(e) the petitioner also in the issues proposed by him had placed onus of the said issue on himself; and,

(f) one who asserts has to prove and the other cannot be called upon to prove the negative.

Analysis, Law and Decision 

Section 59 of the Indian Succession Act, 1925 provides that every person of sound mind not being a minor may dispose of his property by Will.

 Explanation 1 thereto provides that a married woman may dispose by Will any property which she could alienate by her own act during her life.

Explanation 2 thereto provides that persons who are deaf or dumb or blind are not thereby incapacitated from making a Will if they are able to know what they do by it.

Explanation 3 thereto provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind.

Explanation 4 thereto provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

 Section 12 of the Contract Act defines the ‘Soundness of mind’ with respect to the purpose of contracting and the said provision would have application in the matter of soundness of mind requisite for making of a ‘Will’ as well.

Bench stated that the above two provisions have a common thread.

Further, the Court added that when a document propounded as Will is contested, what would be required to be proved is only that what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved.

Bench elaborated in light of the Evidence Act that:

The common course of natural events and human conduct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 of the Evidence Act would be of soundness rather than unsoundness of mind.

In the present case, applicant/relation 10 is the son of the daughter of the deceased and with regard to his contention with regard to the denial of the soundness of mind of the deceased seems contradictory. Bench noted that, if the deceased was throughout her lifetime appending signatures and not putting her thumb impression as pleaded by Relation No. 10, the presumption is of her being of sound mind.

Another significant point noted was that the question of her being under influence of the petitioner would arise only if the deceased was in a position to be influenced i.e. of sound mind; if she was of unsound mind, the question of her being influenced would not arise.

Bench referred to its decision in Budh Singh v. Raghubir Singh, 2015 SCC OnLine Del 14528, wherein it was held that:

though the onus to prove the ‘Will’ may be on the propounder thereof but a challenger to the Will is required to, in the pleadings specifically plead the grounds on which a challenge is sought to be made to the Will so as to let the propounder of the Will know the grounds on which the Will is contested and that a challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved.

With regard to the present matter, Court stated that Relation No. 10 cannot be permitted to taking advantage of having the onus of the issue as to the soundness of mind placed on the petitioner, steal a walkover by ultimately arguing that the petitioner has failed to prove soundness of mind.

The question of onus of proof as to facts in issue depends upon the facts, pleadings and documents in each case.

Before parting with the present order, Bench added a caveat: The Order/Judgment of a Court exercising testamentary jurisdiction, as this Court is exercising in the subject case, is a Judgment/Order in rem, which establishes a document propounded as a Will as the Will from the death of the testator and renders valid all intermediate acts of the executor as such.

A Testamentary Court is a Court of Conscience.

 Since the said judgment/order binds not only the parties to the proceeding but also others, the Court, in exercise of such jurisdiction, requires proof in accordance with the law of the document propounded as a Will, even if not opposed by the near relatives of the deceased.

However, when the near relatives have contested the document propounded as a Will and which contest is not a sham or make-belief, the Court can mould the trial by placing the onus appropriately in terms of the pleadings and the documents in a case.

Further, the High Court added that it is not the case of the applicant/Relation No.10 Arun Sood that he was not in a position to know about the soundness of mind of the testatrix or was far removed from the testatrix; on such pleading, it can perhaps be said that the petitioner should discharge the onus.

Bench also referred to the decision of Supreme Court in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600.

Hence, in light of the above discussion, High Court held that in the absence of a suggestion that the testator was feeble-minded or so completely deprived of his power of independent thought and judgment, the presumption was drawn and the Will held to be genuine.

In Prem Singh v. Birbal, (2006) 5 SCC 353 presumption that a registered document is validly executed was drawn and it was held that the onus to prove would be on the person who rebuts the presumption.

In view of the above discussion, High Court found no ground for review of the order dated 25-11-2019 and hence dismissed the application. [Ashok Baury v. State, Test. Cas. 11 of 2018, decided on 15-01-2021]


Advocate who appeared before this Court:

For the Petitioner: Mr Prosenjeet Banerjee and Ms Shreya Singhal, Advs.

For the Respondent: Mr Atul Gupta and Mr Jayant Mehta, Advs.

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., while addressing the matter in respect to the invocation of an arbitration clause expressed that:

“…the legislative policy is to encourage arbitration, thus, any interpretation that would nullify an arbitration clause must be avoided.”

What led to the filing of the present petition?

Petitioner (TKE) is a company that has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996, inter alia, praying for an arbitral tribunal to be constituted for the purpose of adjudicating the disputes that arose between the parties in relation to the Contract Agreement.

RITES Ltd. had issued a Notice Inviting Tender for “Development of Integrated Check Post at Dawki (Meghalaya) along Indo-Bangladesh Border” for which TKE was awarded the contract.

Further, TKE submitted that the execution of the work was hampered by RITES due to which TKE suffered losses to the extent of ₹2,37,23,39,473. The work was stopped by the Border Guards of Bangladesh as it objected to any activity within 40 metres of the International Border. Along with the Border Guards, even the forest department objected to setting up campsites.

RITES issued a notice calling upon TKE to expedite the work failing which it would terminate the agreement and in response to that TKE stated the reasons for delay.

Later, RITES terminated the agreement and the same was challenged by TKE before the Meghalaya High Court, which was dismissed and on being aggrieved with the same, TKE filed a Special Leave Petition. Supreme Court had observed that: 

“it would be appropriate for the petitioner to avail of the alternative remedy by filing arbitration petition or civil suit, as it may be advised”.

TKE requested the Engineer-In-Charge (EIC) to review the decision of terminating the Agreement and permit it to finish the work or in the alternative, compensate TKE for the damages incurred by it. The EIC rejected the said application, after which TKE invoked the arbitration clause in the agreement.

Analysis, Law and Decision

Bench stated that TKE’s contention that it did not invoke the arbitration clause was unmerited since the notice dated 06-03-2020 clearly indicated that the same was a “Notice of Intention to commence Arbitration under Clause 25(1) of the General Conditions of Contract”.

TKE sent another notice seeking to correct an error that had crept in the said notice inasmuch as, TKE had wrongly calculated the total amount of its claims as ₹237,23,39,473.14/- instead of ₹57,11,47,927.91.

RITES did not respond to TKE’s notice, hence TKE cannot be faulted for preferring the present application under Section 11 of the A&C Act.

Whether the parties can be referred to arbitration in view of TKE’s stand that the Appointing Authority, cannot appoint an arbitrator? 

Controversy in the instant matter revolves around the appointment of the arbitrator under Clause 25 of the GCC, which provides that the matters would be referred to a Sole Arbitrator appointed by the Appointing Authority. And, the same would be from a list of three serving officers of RITES of appropriate status, as may be provided by the Appointing Authority and as selected by TKE.

As per Section 12(5) of the A&C Act, the above-said is no longer permissible.

A serving employee of RITES would be disqualified as RITES is an interested party in the disputes that have arisen and thus, its employee cannot be appointed as an arbitrator. 

Whether the disability of the appointing authority to appoint an arbitrator would frustrate the arbitration agreement? 

After the amendment of A&C Act, 2015 certain persons were declared ineligible to act as arbitrators as per the 7th Schedule of the A&C Act. Although parties can waive the said objection after disputes arise.

Bench stated that it is not impossible for such persons to act as arbitrators. They can do so if objections to their independence and impartiality are waived in writing, in terms of the proviso to Section 12(5) of the A&C Act.

In view of the Supreme Court decisions of TRF Ltd. v. Energo Engineering Projects Ltd.: (2017) 8 SCC 377 and Perkins Eastman Architects DPC  v. HSCC (India) Ltd.  2019 SCC OnLine SC 1517, the appointing authority i.e. the Executive Director of RITES cannot appoint an arbitrator, without the written consent of TKE after disputes arise. However, this would not mean that the arbitration clause stands nullified.

Section 12(1) of the A&C Act was substituted and Section 12(5) of the A&C Act was introduced.

In Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd.: (2017) 4 SCC 665, the Supreme Court had noted the recommendations made by the Law Commission of India in its 246th Report and had explained the legislative intent of introducing the statutory amendments in Section 12 of the A&C Act. The said decision encapsulates the Court’s view regarding the importance of independence and impartiality of the arbitrators.

In TRF Ltd. v. Energo Engineering Projects Ltd.: (2017) 8 SCC 377 Supreme Court had decided that a person who is ineligible by the operation of law to act as an arbitrator would also be ineligible to nominate another person to act as an arbitrator. The said decision was founded on the express language and legislative intent of Section 12(5) of the A&C Act.

In Perkins Eastman Architects DPC v. HSCC (India) Ltd. 2019 SCC OnLine SC 1517 Supreme Court interpreted the provisions of Section 12(5) of the A&C Act, in an expansive manner and held that even in cases where the power to appoint an arbitrator was vested with the person who was otherwise ineligible to be appointed as an arbitrator, it would be impermissible for him to exercise the same in view of the ineligibility referred to in TRF Ltd. Thus, a person who is ineligible to act as an arbitrator, would also not be eligible to appoint anyone else as an arbitrator.

Now, proceeding further in light of the above discussion, Bench while considering that RITES had agreed that the subject disputed are required to be referred to arbitration, could not be heard to contend that the said arbitration would either be conducted in a manner which may compromise the fundamental requirement of an independent and an impartial process or not at all.

Hence, in the instant matter, by virtue of Section 12(5) of the A&C Act, though appointing authority is ineligible to act as an arbitrator but this would not mean that the entire arbitration agreement would be frustrated.

In North Eastern Railway v. Tripple Engineering Works: (2014) 9 SCC 288, the Supreme Court observed that the principle that the court must appoint an arbitrator as per the contract between the parties had seen a significant erosion.

Power of the Court to appoint Arbitrator

Supreme Court in Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd.: (2009) 8 SCC 520 was also referred wherein the decision was rendered in an appeal against an order passed by the Chief Justice of the Uttaranchal High Court in an application filed under Section 11(6) of the A&C Act appointing a former Judge of that Court as the Sole Arbitrator to adjudicate the disputes between the parties.

In the above-mentioned decision, Supreme Court held that a Court could appoint an independent arbitrator in cases where it found that the arbitrator named in the agreement or to be appointed as per the procedure as agreed under the agreement, would not be impartial or independent.

The above principle of the Supreme Court would hold good in the present context as well.

As held in Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd.: (2009) 8 SCC 520 even in cases where the arbitration agreement provides for a procedure for appointment of an arbitrator, a court could appoint an independent arbitrator if there were reasonable grounds to doubt the independence and impartiality of the named arbitrator to be appointed in accordance with the procedure as stipulated under the arbitration agreement.

Hence no dispute was found as to the existence of the arbitration agreement. As TKE had invoked the arbitration clause but the parties were unable to concur on the appointment of an arbitrator, High Court proposed that Justice (Retd.) Pradeep Nandrajog, former Chief Justice of the High Courts of Rajasthan and Maharashtra be appointed as a Sole Arbitrator.

Matter to be listed on 19-03-2021.[T.K. Engineering Consortium (P) Ltd. v. Director (Projects) RITES Ltd., 2021 SCC OnLine Del 1188, decided on 08-03-2021]


Advocates who appeared in this case:

For the Petitioner:

: Mr Rituraj Biswas, Ms Sujaya

: Bardhan, Mr Rituraj Choudhary and: Mr Mayan Prasad, Advocates.

: Mr G. S. Chaturvedi and

For the Respondents:

: Mr Shrinkar Chaturvedi, Advocates: for RITES Ltd.

: Mr Ripu Daman Bhardwaj, CGSC

: for R-3

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., while taking suo motu cognizance of a matter, issued directions for airlines with the direction of immediate compliance, expressed that:

Each of us, as members of a conscious and conscientious citizenry, is required to be sensitive and sensitized in equal measure, and to strain every sinew to keep the pandemic at bay. If the citizenry becomes complacent, no Government, howsoever activated and alive to the situation, can help.

The present order was passed in light of an alarming situation witnessed by the Court during the Air India flight from Kolkata to New Delhi on 05-03-2021.

“…though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly.”

Bench further stated that it was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly. Cabin Crew’s response to the said situation was that they had directed all the passengers to wear masks, but were helpless in case they did not comply.

Further, elaborating more on the issue, Court expressed that:

Passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from COVID, the effect on other passengers could be cataclysmic. It is a matter of common knowledge that being within arm’s length distance of a COVID carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus.

While attempting to take out the protocols and guidelines of the DGCA to be followed by the passengers taking domestic travel, unfortunately, the website did not contain the same and the guidelines that could be traced were 21-05-2020.

Bench added that it does not intend to criticise the efforts made by the governmental authorities, including DGCA, in trying to deal with the pandemic.

Sensitization of the citizenry has, however, to precede, not succeed, galvanization of the governmental machinery.

With the present order, Court sought to achieve the objective by lending some teeth to the instructions already in place, in the larger public interest.

Following guidelines were issued for immediate compliance by all airlines as well as by the DGCA:

(i) The DGCA is directed to reflect, forthwith, on its website, prominently, the instructions containing the guidelines and protocols to be followed by passengers and in-flight crew in domestic flights. This shall be reflected on the main website of the DGCA, without requiring the person accessing the site to navigate through various links to reach the instructions. The DGCA will ensure that prominence, to the instructions, or to the web link through which they can, by a single click, be accessed, is accorded, by displaying them in a distinct and different font, blinking or otherwise, or by any other suitable means.

(ii) All airlines are directed to ensure that, along with the boarding pass, written instructions regarding the protocol to be followed by passengers in flight, including the measures that could be taken against them on failure to follow the protocols, are provided to the passengers. The passengers should also be duly sensitised regarding their responsibilities, to abide by said protocol, both before as well as after boarding the flight. The in-flight announcements which, presently, merely require the passengers to wear masks at all times, should be modified to include a cautionary word regarding the penal action that could be taken against them in the event of default.

(iii) In-flight crew shall carry out periodical checks of the aircraft, in order to ensure that all passengers are complying with the protocol to be followed by them in flight, especially regarding wearing of masks. It is made clear that masks should be worn as directed by governmental instructions, covering the nose and mouth, and not worn merely covering the mouth or below the chin.

(iv) In the event of any passenger being unwilling to follow this protocol prior to the flight taking off, the passenger should be offloaded without delay. If a passenger, despite being reminded more than once in flight, refuses to follow this protocol, action should be taken against the passenger in accordance with the guidelines issued by the DGCA or Ministry of Health and Family Welfare, including placing the passenger on a “no-fly” regimen, either permanently or for a stipulated, sufficiently long, period.

(v) It shall be the responsibility of the in-flight crew to ensure strict compliance, by the passengers, with the aforesaid protocol. In order to ensure compliance, the DGCA may consider sending random observers on flights, without prior information, who would check to ensure that the COVID protocols are followed in flight.

(vi) Strict enforcement of all penal provisions, which could visit delinquent passengers who refuse to abide by the COVID protocols to be maintained in flight, should be ensured. There should be no relaxation whatsoever in that regard.

(vii) It is noticed that the guidelines of the DGCA do permit relaxation from the requirement of wearing masks in exceptional cases. Such relaxation, if necessary, should be allowed only in cases which are truly exceptional, such as for medical reasons, after a conscious assessment and evaluation of (a) the necessity of the passenger to fly and (b) the justifiability of the passenger’s refusal to wear the mask, weighed against the risk to public interest involved if the passenger is allowed to travel without a mask. In deserving cases – which should be the exception, not the rule – the airline should take steps to isolate the passenger so that he is kept at a safe distance from other passengers in the flight.

Lastly, Bench directed the authorities concerned to accord adequate publicity to the guidelines, for the purpose of compliance.

DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs should ensure that, in the case of airlines that repeatedly fail to ensure compliance with the said guidelines, penal action to be initiated, in accordance with the law.

Court directs for the present order to be displayed on the official website of DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs.

Periodical review of the situation should be undertaken, to ensure that no laxity creeps into the system.

[Court on its own motion v. DGCA,  2021 SCC OnLine Del 1216, decided on 08-03-2021]


Advocates before the court:

For the respondents: Ms Bani Dikshit, Adv. for Air India along with Dr AB Subbaiah, GM in-flight services & Ms Meenakshi Kashyap, GM-Industrial Relations

Ms Anjana Gosain & Mr Kirtiman Singh, Advs. for DGCA & Ministry of Civil Aviation

Hot Off The PressNews

Delhi High Court issues guidelines/directions to be followed upon resumption of Physical Court from 15-03-2021.

Following guidelines/directions need to be followed with effect from 15-03-2021:­

(a) All the gates including the entry and exit gates of underground car parking shall be opened and operated as it was being done pre-pandemic period;

(b) Declaration form as required till now from the Lawyers and Litigants dispensed with;

(c) Facilitation Counter/Pass Counter will function as it was pre-pandemic period;

(d) Entry of Litigants will be regulated, as it was pre-pandemic period; and

(e) All the visitors including Lawyers shall maintain social distancing as per norms/protocol issued by the Government of India/GNCTD and/or this Court.


Delhi High Court

[Public Notice dt. 02-03-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., directed that the National Consumer Disputes Redressal Commission to pronounce judgment in a case pending for 15 years, within two weeks of the date it is listed.

In the present matter, petitioners concern was the non-pronouncement of orders/judgment by the National Consumer Dispute Redressal Commission (NCDRC).

Petitioner had filed a complaint before the NCDRC alleging negligence by the doctors and hospital – Kanpur Medical Centre Private Ltd., due to which severe burns were caused to her as a newly born infant. Complaint was filed before the NCDRC I April, 2006 and the said complaint has been pending for more than 15 years.

Petitioners Counsel, Raghavendra M. Bajaj, submitted that repeated enquiries were made with NCDRC, but to no avail. Further, an application was moved by the petitioner by seeking re-hearing and pronouncement of judgment, despite which, matter was not listed before any Bench.

Adding to the above, Counsel submitted that he has received intimation that the application is now listed on 23-02-2021.

Supreme Court in the decisions of Anil Rai v. State of Bihar, (2001) 7 SCC 318 and Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893 emphasised the importance of timely pronouncement of judgments and orders once submissions are heard.

Recently, in Supreme Court decision of JVNL v. CCM HIM JV [Civil Appeal No. 494 of 2021, decided on 12-02-2021] has reiterated its pronouncement in Anil Rai v. State of Bihar, (2001) 7 SCC 318 while clarifying that the same would not apply to High Courts.

Bench stated that the above pronouncements would apply to Subordinate Courts and tribunals equally.

 The Supreme Court decision in Sudipta Chakrobarty v. Ranaghat S.D. Hospital, 2021 SCC OnLine SC 107, dealt with cases where the NCDRC pronounced operative portions of orders with reasons to follow.

The entire purpose of the Consumer Protection Act, 1986, is supposed to provide speedy justice to complainants, which stands completely defeated in a case of the present nature where the matter has taken more than 15 years to be adjudicated and the same has not reached a conclusion yet.

Following directions have been issued to NCDRC:

  1. Whenever judgments are reserved, they ought to be pronounced in accordance with the timelines prescribed in Anil Rai v. State of Bihar, (2001) 7 SCC 318
  2. If orders are not pronounced within six months of being reserved and an application is filed by either party, the same ought to be listed before the President, NCDRC by the Registry of the NCDRC within two days, without fail. The NCDRC may issue a practice direction to this effect so that the same is complied with by the Staff of the Registry;

Hence, Court directed NCDRC to pronounce the judgment within two weeks of the date it has been listed. [Sandhya Srivastava v. Dr Neelam Mishra, 2021 SCC OnLine Del 892, decided on 18-02-2021]


Advocates who appeared for the matter:

For the Petitioner: Raghavendra M. Bajaj, Garima Bajaj, Agnish Aditya & Nikhil Bamal, Advocates

For the Respondents: Ajay Saroya, Advocate for R-3.