Case BriefsHigh Courts

Delhi High Court:  While dismissing the challenge to Rakesh Asthana’s appointment as Commissioner of Delhi Police, Division Bench of D.N. Patel, CJ and Jyoti Singh, J., expressed that,

It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.

In the present matter, petitioner was aggrieved by the impugned order whereby Inter-Cadre deputation was granted to respondent 2 – Rakesh Asthana from Gujarat Cadre to AGMUT Cadre as also an extension of his service, initially for a period of one year beyond the date of his superannuation or until further orders, whichever is earlier and his appointment as Commissioner of Police, Delhi.

Challenge to the Order with regard to approval being granted by Appointments Committee of Cabinet for Inter-Cadre Deputation of Respondent 2 as well as the extension of his service beyond the age of superannuation was also laid.

Factual Background

Respondent 2 an IPS Officer of Gujarat Cadre with an experience of approximately 37 years was appointed as Commissioner of Police, Delhi.

The petition was filed on the following grounds:

i) Violation of Guidelines issued by the Supreme Court in Prakash Singh’s Case (I) and (II)

ii) Violation of mandate of provisions of FR-56(d).

iii) Central Government has no power under Rule 3 of Rules, 1960 to relax Rule 16(1) of Rules, 1958.

iv) Violation of provisions of DoPT O.M. dated 08.11.2004, pertaining to Inter-Cadre deputation of officers belonging to the All-India Services.

Analysis, Law and Decision

High Court while reading the directions issued by the Supreme Court in Prakash Singh’s Case (I) and (II) made it clear that the directions given by the Supreme Court and the principles culled out therein were in effect applicable for appointment to the post of ‘DGP of a State’ to be selected by State Government, from amongst the three senior most officers of the Department.

The said Judgment has no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre.

Further, the Court stated that the Supreme Court’s decision in Prakash Singh’s Case (I) indicates that direction 2 under the heading “Selection and Minimum Tenure of DGP” are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police, Delhi.

Court agreed with respondent 1 that State Cadres have to be treated differently from the AGMUT Cadre due to the unavailability of sufficient number of officers in the pool in respect of various segments of AGMUT Cadre.

From the perspective of service jurisprudence and good administration, it is no doubt a healthy practice to ensure that senior officers are not superseded on account of mere technicalities.

Bench expressed that Delhi, being the Capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate.

Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders. Thus, it is imperative that “free movement of joints” is given to the Central Government for appointment of Commissioner of Police, Delhi, keeping in mind the complexities obtaining in the Capital.

Respondent 2’s appointment as Commissioner of Police, Delhi was made by following the statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993.

Settled Law

Where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of s Statute or Executive Instructions.

Therefore, applying the principle of contemporanea expositio, if a procedure has been followed by the Central Government since 2006, with the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage.

In view of the above stated, Court sees no reason to direct respondent 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre.

Various Supreme Court decisions have explained the principle of contemporanea exposition.

As per the decision of Supreme Court in Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, matters pertaining to Public Order, Police and Land lie outside the ambit of the legislative powers of the Assembly and hence are outside the Executive functions of the GNCTD.

In the present matter, a statutory provision being Section 6 of the Delhi Police Act, 1978 empowers the Lieutenant Governor to make a proposal for appointment of Commissioner of Police, Delhi and thus no illegality was found in the appointment.

Violation of Provisions of the DoPT O.M. dated 8-11-2004 regarding the Inter-Cadre Deputation of Respondent 2

Contention was that respondent 2 was not eligible for Inter-Cadre deputation as he had reached the Super Time Scale in 2002 and Inter-Cadre deputation was permissible only before reaching the Super Time Scale in the Home Cadre. 

Court expressed those provisions of Clause (a) of O.M. dated 28-6-2018 grant power of relaxation of any of the provisions of the Guidelines stipulated in O.M. dated 8-11-2004.

Further, Court added that there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of Clause (b) of the DoPT O.M. dated 28-6-2018 and Clause 2(i) of DoPT O.M. dated 8-11-2004.

The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action.

Counsels for Petitioner/Intervener could not make out a case calling for interference in the decision of the Government or even remotely demonstrated that there was any blot in the service career of respondent 2 making him unsuitable for the post in question.

Office Memorandums are Guidelines, to effectively regulate the services of the employees and bring uniformity therein. In changing conditions or peculiar circumstances, Government may require to deviate from a certain condition and it is for this reason that provisions for relaxation of the Guidelines are incorporated in the Rules and Executive Instructions.

 Respondent 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958

 As per Rule 3 of Rules, 1960, Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case.

Hence, in Court’s opinion Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rules 16(1) of Rules, 1958 to give extension of service to respondent 2.

Bench remarked that,

 “It is not open for this Court, sitting in a judicial review, to substitute its own decision and wisdom for that of the Central Government as it is really the domain and prerogative of the Government to take a decision for grant of relaxation or otherwise, on the basis of its subjective satisfaction premised on objective considerations.”

 While FR 56(d) deals with the extension of service of a Government Servant, in general, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the All India Services.

Therefore, in the present matter, respondent 2 is an IPS officer and Member of the All India Services, the service conditions are more aptly governed by Rules, 1958 and the provisions of Rule 3 of Rules, 1960 would apply for relaxation of the provisions of Rule 16(1) of Rules, 1958. Hence, it would be irrelevant to deal with the issue of alleged violation of FR-56(d) once the Central Government has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960.

Concluding the matter, High Court added a note of caution to the petitioner while noting that Solicitor General and Prashant Bhushan had strenuously argued that the pleadings in the present petition are a “cut, copy, paste” of the petition filed by the Intervener before the Supreme Court and that such a practice must be discouraged and strictures be passed against the Petitioner, Court observed that such a practice is certainly unhealthy and deserves to be deprecated and the petitioner shall be well advised to refrain from indulging in such exercise, in future.

In view of the above petition was dismissed. [Sadre Alam v. Union of India, WP (C) 8654 of 2021, decided on 12-10-2021]


Advocates before the Court:

For Petitioner:

B.S. Bagga, Advocate

For Respondents:

Mr. Tushar Mehta, Solicitor General of India with Chetan Sharma, Additional Solicitor General, Mr. Amit Mahajan, Central Government Standing Counsel, Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Akshay Gadeock and Mr. Sahaj Garg, Advocates for Respondent No.1.

Mr. Mukul Rohatgi, Senior Advocate, Mr. Maninder Singh, Senior Advocate with Ms. Diksha Rai, Ms. Devanshi Singh, Mr. Ankit Agarwal, Mr. Prabhas Bajaj and Ms. Palak Mahajan, Advocates for Respondent No.2.

Mr. Prashant Bhushan, Ms. Neha Rathi and Mr. Jatin Bhardwaj, Advocates for Intervener.

Case BriefsHigh Courts

Delhi High Court: Expressing that husband must also carry the financial burden of making certain that his children are capable of attaining a position in a society wherein they can sufficiently maintain themselves, Subramonium Prasad, J., stated that,

In households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children. 

“…if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.”

Instant application under Section 482 Criminal Procedure Code had been filed seeking the review of this Court’s order, wherein this Court had granted a sum of Rs 15,000 as interim maintenance to the revisionist/Petitioner 1 till Petitioner 2 completes his graduation or starts earning, whichever is earlier.

Analysis, Law and Decision

High Court expressed that the embargo contained in Section 362 CrPC, which prohibits the Court from altering or reviewing its judgment or final order disposing of the case was inapplicable to the maintenance order passed under Section 125 CrPC.

In the Supreme Court decision of Sanjeev Kapoor v. Chandana Kapoor, (2020) 13 SCC 172, the Supreme Court had observed that the legislature was aware that there were situations where altering or reviewing of criminal court judgment were contemplates in the Code itself or any other law for the time being in force.

Noting that Section 125 CrPC was social justice legislation, the Supreme Court held that a closer look at Section 125 CrPC itself indicated that the Court after passing judgment or final order in the proceedings under Section 125 CrPC did not become functus officio, and that the Section itself contains express provisions wherein an Order passed under Section 125 CrPC could be cancelled or altered, and that this was noticeable from Sections 125(1), 125(5) and 127 CrPC. Therefore, the legislative scheme as delineated by Sections 125 and 127 CrPC clearly enumerates circumstances and incidents provided in the Code where the Court passing a judgement or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, relaxed in proceedings under Section 125 CrPC.

Bench stated that Supreme Court has consistently upheld that the conceptualization of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman’s sustenance, along with that of the children, if any.

The dominant purpose of Section 125 of the Code was discussed in the Supreme Court decision of Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

High Court added to its analysis, that it is true that in the majority of households, women are unable to work due to sociocultural as well as structural impediments, and, thus, cannot financially support themselves. However, in households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children.

Father has an equal duty to provide for his children and there cannot be a situation wherein it is only the mother who has to bear the burden of expenses for raising and educating the children.

 Court cannot shut its eyes to the reality that simply attaining majority does not translate into the understanding that the major son is earning sufficiently.

To elaborate more, High Court added that,

At the age of 18, it can be safely assumed that the son is either graduating from 12th standard or is in his first year of college. More often than not, it does not place him in a position wherein he can earn to sustain or maintain himself. It further places the entire burden on the mother to bear the expenses of educating the children without any contribution from the father, and this Court cannot countenance such a situation.

It was also noted that the Supreme Court and High Courts in a slew of judgments upheld the maintenance allowance granted to a son post attaining majority on the ground that the father has a duty to finance basic education of the child and that the child cannot be deprived of his right to be educated due to his parents getting divorced.

Present Matter

In the present matter, the challenge to the maintenance granted for the education of the major son has been mounted by the respondent on the ground that it is contrary to the relevant statutory provision i.e. Section 125, and that it diametrically opposes the interpretation of Section 125 as has been laid down in Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

High Court noted that statutes or provisions, which are particularly for the furtherance of social welfare, must be construed liberally.

In Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589, the Supreme Court had observed that the best textual interpretation of legislation or a statutory provision would be one that would match the contextual. Therefore, in this context, social welfare legislation cannot and should not be interpreted in a narrow manner because doing so will defeat the purpose for the enactment of such legislation and will become counterproductive.

Context of Section 125 CrPC is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce.

“Mother cannot be burdened with the entire expenditure on the education of her son just because he has completed 18 years of age, and the father cannot be absolved of all responsibilities to meet the education expenses of his son because the son may have attained the age of majority, but may not be financially independent and could be incapable of sustaining himself.”

 In view of the above, the application was dismissed. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 4641, decided on 5-10-2021]


Advocates before the Court:

 For Petitioner: Praveen Suri and Komal Chhibber, Advocates

For Respondent: Digvijay Ray and Aman Yadav, Advocates

Case BriefsHigh Courts

Delhi High Court: On finding no ground for interference in the arbitral award, Anup Jairam Bhambhani, J., upheld the decision of Single Judge Bench.

Instant appeal was filed under Section 13 of the Commercial Courts Act 2015 read with Section 10 of the Delhi High Court Act 1966 and Section 37 of the Arbitration and Conciliation Act 1996 impugning the decision of Single Judge of this Court. In the said decision arbitral award made by the sole arbitrator was upheld.

Background

Railways had filed a petition under Section 32 of the Arbitration and Conciliation Act challenging the arbitral award in which Railways was directed to refund to Annavaram the sum of Rs 1,22,38,125 which had been deducted/withheld by the Railways as ‘liquidated damages’ imposed upon Annavaram for alleged breach of the terms and conditions of a tender, pursuant to which a Letter of Acceptance was issued by the Railways to Annavaram for supply of 10000 Pre-Stressed Concrete Sleepers.

Non-Performance & Non-Compliance

The reason for the dispute was the non-performance and non-compliance with the terms of Letter of Acceptance. As Annavaram did not supply even a single sleeper within the stipulated time, nor did they obtain any extension of time for making such supply.

In view of the above background, penalty was imposed and then the contract was terminated.

Mr R.K. Sanghi, Senior counsel appearing for Annavaram contended that by inserting clause 1.2, a new condition came into effect whereby the parties agreed that the quantity of sleepers ordered under the original tender stood “… reduced to the number of sleepers manufactured till the date of issue of LoA for the new contract …”; and it was contended, that as a result there was no obligation on Annavaram to supply 10000 sleepers by 14-07-2009.

Consequently, it was argued that, the Railways were not justified in imposing any liquidated damages upon Annavaram.

Analysis, Law and Decision

Firstly, the High Court stated that there is limited scope and ambit of a challenge under Sections 34 and 37 of the A&C Act, which are pithily set out inter alia in the Supreme Court decision of PSA SICAL Terminals (P) Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC OnLine SC 508, in which the Supreme Court reiterated its view on MMTC Limited v. Vendanta Limited, (2019) 4 SCC 163 wherein it was observed that:

“As far as Section 34 is concerned, the position is well-settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii) …”

“It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts.”

“…the court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the court under Section 34 has not exceeded the scope of the provision.”

Therefore, Bench held that so long as the view taken by an arbitrator, is a possible view based on facts, it is irrelevant whether this Court would or would not have taken the same view on the merits of the matter, hence arbitral award was required to be upheld.

Hence, impugned judgment was upheld.

Conclusion

Annavaram entitled to receive from the Railways the amount directed to be refunded in the arbitral award along with simple interest at 6% per annum till the date of payment as per the impugned judgment. [Union of India v. Annavaram Concrete Pvt. Ltd., 2021 SCC OnLine Del 4211, decided on 31-8-2021]


Advocates before the Court:

Ms Geetanjali Mohan, Advocate.

Mr R.K. Sanghi, Senior Advocate with Mr Satjendar Kumar, Advocate and Mr Ishan Sanghi, Advocate.


Additional Reading:

“There is a disturbing tendency of courts setting aside arbitral awards …”: SC upholds arbitration award of Rs 2728 crore plus interest in favour of Delhi Airport Metro Express (P) Ltd.

Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards

Arbitrator cannot rewrite contract for parties; Arbitral award based on no evidence or in ignorance of vital evidence comes in realm of patent illegality: SC   

Can Courts modify Arbitral Awards under S. 34 of Arbitration Act or is power limited? SC decides

Del HC | Ambiguity in contractually stipulated obligations favours whom? Court discusses while refusing interference in arbitral award

Del HC adverts to scope of judicial review of an arbitral award; Wades through bunch of pleas including violation of Part 1, CPC and insurance against breakage during transit, etc.

 

Case BriefsHigh Courts

Delhi High Court: While addressing a request for registration of marriage without requiring the physical presence of the couple, Rekha Palli, J., expressed that,

“In a little over half a decade, since the Registration Order was notified, the universe has undergone a sea change but the Registering Authority, while exercising its power and jurisdiction under the Registration Order is refusing to recognize the reality that with the technology as is available today, web portals and Video Conferencing have become almost the norm.”

An Indian Couple residing in the United States of America sought a direction to the concerned Sub-Divisional Magistrate, New Delhi to register their marriage in accordance with the provisions of the Delhi (Compulsory Registration of Marriage) Order, 2014 without insisting on their physical appearance before him.

Bench stated that the aforesaid Registration Order of 2014 was promulgated post the directions issued by the Supreme Court in Seema v. Ashwani Kumar, (2006) 2 SCC 578. Pursuant to the said Order, the registration of marriages solemnized in Delhi was made compulsory under the Registration Order.

Petitioner submitted that due to being relocated to Singapore prior to 2014 they could not apply for registration of their marriage when the order came into effect.

Now the couple has relocated to USA and have applied for Green Card in the USA, for the grant of the same they require a marriage registration certificate.

Due to the changed circumstances with the COVID-19 pandemic resulting in restrictions on travel, petitioners tried to make an online application in early June 2021but were unable to do so, as they do not possess an Aadhaar Card or a Voter ID Card, which are mandatory to apply through the portal.

When the petitioners tried to submit their application through the counsel, the same was not accepted stating that their physical presence was required.

In view of the above background, the present petition was filed.

Analysis, Law and Decision

High Court stated that whether personal appearance for purposes of marriage would include appearance through Video Conferencing has already been considered and answered in the affirmative, as rightly urged by the Senior Counsel of the petitioner not only but this Court but by a number of other High Courts as well.

In Charanjit Kaur Nagi v. Govt. of NCT of Delhi, 2007 SCC OnLine Del 1393 when the use of Video Conferencing was still at a very nascent stage, this Court had permitted registration of marriage without insistence on the physical appearance of one of the parties to the marriage, while permitting appearance through video conferencing.

In another decision, Upasana Bali v. State of Jharkhand, 2012 SCC OnLine Jhar 1505, Jharkhand High Court while allowing the petition of a similarly placed couple, who were residing in the UK, directed the Registering Authority under the Jharkhand Hindu Marriage Rules to accept their application for registration of marriage through their Power of Attorney holder, and to permit them to personally appear before the authority through Video Conferencing.

Kerala High Court in Pradeep Kodiveedu Cletus v. Local Registrar of Marriages, 2017 SCC OnLine Ker 23204, observed that the provision for registration of marriage could certainly be interpreted as enabling the Local Registrar to obtain personal appearance through Video Conferencing as well.

Supreme Court’s decision in State of Maharashtra v. Praful B. Desai (Dr), (2003) 4 SCC 601, expounded the importance of Video Conferencing.

Therefore, in view of the above-stated precedents, High Court expressed that,

“…in times such as these, when technology has proven to be in the bridge that ensured uninterrupted communication, widespread dissemination of information in public interest and the smooth functioning of the society, the Court cannot allow a rigid interpretation of the statute to prevent citizens from exercising their rights.”

 Further, the Court referred to the Supreme Court decision in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 in which the Court emphasized the need to adapt technological advancements while dispensing justice.

Physical Presence: Necessary or Not?

High Court keeping in view the fact that the issuance of the registration order is to promote the registration of marriages, Clause 4 must be interpreted in such a manner that encourages parties to easily get their marriages registered.

The insistence of physical appearance even when their personal appearance can be easily secured through video conferencing, will definitely make it more cumbersome for parties to come forward for registration of marriages. This will negate the very purpose of enactment of the Registration Order and cannot be permitted.

 Hence, Clause 4 of the Registration Order has to be read to include presence secured through Video Conferencing.

In view of the above discussion, petition was allowed resulting in parties seeking marriage registration being entitled to submit a physical copy of their application through their attorney and also enter a personal appearance as and when required, through Video Conferencing.

Directions

a) The petitioners are permitted to submit their application for registration of marriage, through their counsel/Power of Attorney Holder in physical form before the SDM Kishan Ganj, Delhi, alongwith copies of all supporting documents duly notarized, either by the notary public in US, where they are presently residing, or by the notary public in Delhi.

b)The respondent will allow the “personal appearance” of the Petitioners for the purpose of Clause 4 (d) and (e) & Form A of The Delhi (Compulsory Registration of Marriage), 2014 through Video Conferencing.

c) The two witnesses, as required under the Registration Order will appear physically before the Registering Authority alongwith their original ID proofs, on the date as notified by the authority.

d) The respondent will, thereafter, expeditiously register the petitioners’ marriage, and issue the Marriage Registration Certificate within a period of two weeks’ from the date of receipt of the application made by the petitioners.

[Reena Chadha v. Govt. of NCT of Delhi, 2021 SCC OnLine Del 4336, decided on 9-9-2021]


Advocates before the Court:

Ms. Vibha Datta Makhija, Sr. Adv. with Mr. Praveen Gaur, Adv.

Ms. Shobhana Takiar, ASC, GNCTD.

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Petitioner submitted that he was enrolled as an Advocate with the Bar Council of Delhi and also cleared the exam for Advocates on Record and was duly enrolled on October 15, 1998.

In 2015 he was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (RCT). Then in 2016, he was transferred to the Secunderabad Bench of the RCT where he worked till January 19th. Thereafter, he was transferred to Gauhati Bench of the RCT where he worked till, he completed 5 five years’ tenure on April 21, 2020.

He stated that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulated qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be a Judge of a High Court.

According to the petitioner, in view of the above-said provision, he was selected for the post of Judicial Member RCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India, the qualifications needed for appointment to the post of a Judge of a High Court, was that one must have at least 10 years of practice as an Advocate.

Primary Claim:

Claim was with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Judicial Member of the RCT, for pension.

Question of Consideration:

Whether the petitioner is entitled to the counting of 10 years of practice at the Bar, along with the qualifying period put in by him as Judicial Member in RCT?

Analysis, Law and Decision

High Court stated that the Supreme Court’s decision in Government of NCT of Delhi v. All India Young Lawyers Association, (2009) 14 SCC 49, was concerning the Officers of the DHJS, who were appointed to the service, being Advocates practicing at the Bar. Supreme Court while reducing the period from 15 years to 10 years did not interfere, with respect to the grant of benefit of counting of the period of practice put in by an Advocate.

Bench stated that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which was not the case here, since the appointment of the petitioner was only for a period of 5 years and upon completion of 5 years, he demitted the office.

Therefore, his plea that he was qualified to be a High Court Judge, was appointed as Judicial Member and as such 10 years of practice at the Bar needed to be counted for the pension was unmerited, for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989.

Sr. Panel Counsel, Jagjit Singh during his submission had drawn the attention of the Court towards the Supreme Court decision in Madras Bar Assn. v. Union of India, WP (C) No. 804 of 2020, 27-11-2020 wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on 12-02-2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to 12-02-2020 shall be governed by the parent Statutes and Rules as per which, they were appointed.

Therefore, since the petitioner was appointed prior to 12-2-2020, terms and conditions of appointment of the petitioner as Judicial Member RCT shall necessarily be governed under the Rules of 1989.

In view of the above petitioner was not entitled to any relief. [Ajit Kumar Pande v. Union of India, 2021 SCC OnLine Del 4590, decided on 4-10-2021]


Advocates before the Court:

For the Petitioner: In-person

For the Respondent: Jagjit Singh, Sr. Panel Counsel with Mr Preet Singh, Mr Vipin Chaudhary & Ms Rashmi Malhotra, Advs.

Case BriefsHigh Courts

Delhi High Court: While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Convict preferred the present appeal against the decision of lower court arising out of an FIR registered under Sections 302, 304B, 498A, 34, 174A of Penal Code, 1860 against the four accused, namely Rohtash, Santosh, Sumit and Jitender.

Appellant Sumit – accused 3 was found guilty of commission of offence of murder under Section 302 IPC. Other accused persons were acquitted of the offence for which they were charged.

Factual Background

Deceased and her sister were married to both sons of the accused Rohtash and few days after the marriage, father-in-law, mother-in-law, brother-in- law and the husband of the deceased started abusing and beating both the sisters and even damaged the articles given in the marriage. Later both the sisters were beaten and removed from the matrimonial house and the child aged 15-16 days was also snatched from the deceased. Though the child was given back to the mother after police intervention.

After a few days, the accused and other relatives settled the matter and took the sisters to the matrimonial home, where they were both beaten again. After a few days, while the accused Sumit was quarrelling with and beating the deceased, he poured kerosene on her, and she was set on fire. Later the neighbours doused the fire and took her to the hospital.

To the Executive Magistrate, deceased in her statement alleged that she was tortured for the demand of car and two fridges by all the accused persons and her husband had set her ablaze in the presence of other accused persons.

In view of the above-stated background,

Charges were framed against the accused persons, but they all pleaded ‘not guilty’.

Eye Witness (PW-3) sister of the deceased deposed about the incident and about the physical and mental torture to which the deceased was subjected by the accused persons.

Detailed Analysis

High Court stated that the trial court had acquitted the accused including the appellant in relation to the offence under Section 398A and 304B of the Penal Code, 1860.

In Court’s opinion, the testimony of the deceased’s sister was corroborated by the Dying Declaration of the deceased.

Supreme Court in the decision of Khushal Rao v. State of Bombay, AIR 1958 SC 22, held that the dying declaration of a person by itself, may be sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Bench found that the dying declaration of the deceased was very clear in the present matter.

What did she state?

She stated that yesterday i.e. 14.09.2012, in the night at about 10/10:30 P.M., her husband Sumit @ Vicky, her father in law – Rohtash, her mother in law – Santosh and brother in law – Jitender @ Tinku were all at home and her husband Sumit caught held of her hand and took her to the terrace and her husband poured kerosene oil on her and lit the matchstick in the presence of the other persons/ accused and put her on fire. Her elder sister was also on the terrace at that time, and she was shouting “bachao bachao”. However, nobody came to help her and they all went down. That is when her elder brother in law – Pradeep came to the terrace and with his help and the help of the neighbours, her brother in law Pradeep took her to the hospital. She stated that the accused used to demand dowry and harassed her for the same. They had demanded a car and two fridges in dowry and after her marriage she was being harassed for dowry. She stated that her husband – Sumit, mother in law – Santosh, father in law – Rohtash, and brother in law – Jitender @ Tinku were responsible for her condition.

Deceased’s statement on the aspect of the manner and cause of her death inspired the confidence of its voluntariness, truthfulness and correctness, and was also sufficiently corroborated by testimony of PW-3 and other evidence brought on record.

Conclusion

Hence, Trial Court’s decision was upheld as the finding of the appellant’s guilt in the commission of the offence under Section 300 IPC and was correctly convicted under Section 302 IPC.

Appeal was dismissed in view of the above decision. [Sumit v. State, 2021 SCC OnLine Del 4551, decided on 30-9-2021]


Advocates before the Court:

For the Appellant: Siddharth Yadav, Advocate

For the Respondent: APP for the State

Case BriefsHigh Courts

Delhi High Court: While observing that the role of ICADR Rules shall come into play with regard to the procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, Suresh Kumar Kait, J., reiterated the observation of BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, wherein it was stated that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration.

Background

Petitioner claimed to be one of the most reputed construction company specialized in construction of bridges and other projects across the country.

Respondent – Construction and Design Services, was a 100% undertaking of Government of Uttar Pradesh, which claimed to be providing construction and design Services.

Respondent had invited proposals for Qualification cum Request for Proposal to undertake design, engineering, procurement and construction of a dedicated corridor for old and differently-abled persons during Kumbh and Magh Mela at Sangam, Allahabad, Uttar Pradesh.

In the bidding process, the petitioner was stated to be the successful bidder with lowest bid. Therefore, respondent had issued a Letter of Award in favour of the petitioner and a formal contract was executed between the parties.

Petitioner had immediately taken steps like mobilization of resources, the appointment of various third-party Consultants.

However, respondent utterly failed in fulfilling its part of obligations, as in terms of Clause- 4.1.3 of the said Contract, the “Right of Way” in respect to the said works was to be provided by the respondent to the petitioner within 15 days of the date of the agreement, but even after expiry of the entire period of 30 months, respondent did not do so

Respondent did not even compensate the petitioner for the cost incurred by it towards fulfilling its part of obligations. Further, due to non-performance of obligations, the petitioner claimed to have incurred huge loss of productivity, turnover, overhead costs, contractor’s profits and earning capacity besides cost of construction under the Contract in question.

Vide a letter, the respondent intimated that the project as well as the contract ought to be terminated.

Further, petitioner raised an invoice towards “Termination of Payment”, which shall constitute full and final payment and respondent shall make the payment within 30 days and shall discharge the bank guarantees.

Adding to the above, petitioner also demanded extension of bank guarantees for a further period in an attempt to disown the termination notice which was already acknowledged by the petitioner.

Though the respondent communicated to the petitioner that the decision of termination of Contract was taken by Prayagraj Mela Board and till the time the said decision is under consideration and finalized by the Government of Uttar Pradesh, the Contract in question is “valid” and subsists and there is no liability towards “Termination Payment” except for refund of performance security in case the project is withdrawn by the State of Uttar Pradesh.

When efforts to amicably resolve the dispute failed, petitioner invoked the arbitration, to which the respondent communicated the petitioner that once the Contract itself has been revoked without commencement of work and bank guarantees have been returned, no dispute between the parties survives and so, the invocation of arbitration clause 26.03 was untenable.

Analysis, Law and Decision

High Court on considering the above, stated that the disputes between the parties have to be referred to an Arbitrator.

As per Clause 26.3.1, upon invocation of arbitration by either party, the proceedings shall be conducted in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New delhi and the venue of such Arbitration shall be Lucknow.

Question for Consideration:

Whether the seat of arbitration shall be New Delhi in the light that the arbitration has to be conducted in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi

OR

Lucknow, in the light of agreement that the venue of such arbitration shall be Lucknow?

Primary Argument:

Counsel for both sides laid emphasis upon the distinction between the “venue” and “seat” of arbitration and several decisions in this regard were cited before this Court. According to learned counsel for the petitioner, “venue” of arbitration does not include the “seat” of the arbitration and since the arbitration has to be conducted in terms of Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi, therefore, seat of the Arbitrator has to be New Delhi. On the contrary, learned counsel for respondent strenuously argued that in terms of clause 26.3.1, the venue of arbitration has to be Lucknow only.

In the Supreme Court decision of Bharat Aluminum Company Ltd. v. Kaiser Aluminum Technical Services Inc, (2012) 9 SCC 552, recognized that “Seat” and “Venue” are different and observed that the “Seat” of arbitration is the center of gravity of the arbitration and the “Venue” is the geographical location where such arbitration meetings are conducted. The Court held that under sub- Section (2), (2) and (3) of Section 20 of the Arbitration and Conciliation Act, 1996, “Place of Arbitration” is used interchangeably.

In Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678, the Supreme Court had dealt with the issue whether the seat of arbitration suggests the jurisdiction and held that once a seat is determined, the courts at seat shall have the exclusive jurisdiction for the purpose of regulating arbitral proceedings. However, in the said case, the parties had not only agreed to the seat of arbitration but also had an exclusive jurisdiction clause, which ousted other jurisdictions.

Further, in Mankastu Impex (P) Ltd. v. Airvisual Ltd., (2020) 5 SCC 399,  while dealing with the issue of whether the seat of arbitration shall be New Delhi or Hongkong, observed that mere expression of place of arbitration will not entail that the parties intended it to be the seat. The intention of the parties to the seat has to be determined from other clauses of the Agreement and the conduct of the parties.

In the decision of BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234, it was held that the Court observed that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration. Court reiterated that once the parties designate the seat of arbitration, only the courts governing the seat have exclusive jurisdiction to govern such arbitration proceeding and jurisdiction of all other courts stand ousted.

Hence in view of the Supreme Court decision in BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234 the observation of the Court that “choice of venue is also a choice of the seat of arbitration”, High Court in the present matter found that in Clause-26.3.1 of Article-26 of the Agreement, the parties had agreed that the venue of arbitration shall be “Lucknow‟ and therefore, the courts at Lucknow shall have the exclusive jurisdiction to entertain the disputes arising out of Agreement in question.

Bench opined that the role of ICADR Rules shall come into play with regard to procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, which was in the present matter “Lucknow”.

Therefore, it was held that Court had no jurisdiction to entertain the present petition seeing appointment of an arbitrator and hence was dismissed, with liberty to the petitioner to approach the Court at Lucknow.[S.P. Singla Constructions (P) Ltd. v. Construction and Design Services, Uttar Pradesh Jal Nigam; 2021 SCC OnLine Del 4454, decided on 23-09-2021]


Advocates before the Court:

For the Petitioner: Anirudh Wadhwa, Advocate

For the Respondent: Rishabh Kapoor, Naman Tandon, Mayank Punia, Advocates

Case BriefsHigh Courts

Delhi High Court: Emphasizing on the gravity of seriousness of Section 307 Penal Code, 1860, Subramonium Prasad, J., observed that,

“…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Present matter was in the Court for quashing an FIR registered for offences under Section 307/34 of Penal Code, 1860.

Factual Matrix

It was stated that victim was assaulted by some unknown persons and the nature of injuries was opined to be serious, for further treatment he was shifted to RML Hospital.

Since the victim was unfit for treatment, his father gave a statement wherein he stated that Hannan and petitioner were quarrelling with his son. They both were holding the victim and then stabbed him. After stabbing, they escaped from the spot.

On father’s statement, the FIR was registered for offences under Sections 307/34 IPC.

Hannan was declared as a Proclaimed Offender.

Further, the charge sheet was filed and enough material against the accused was there to proceed against him under the above-stated Sections.

Later the parties entered into a compromise and as per the compromise deed accused was to pay a sum of Rs 3,00,000 as compensation/medical charges. Accused had paid Rs 1,00,000 at the time of settlement and remaining amount would be paid at the time of quashing the FIR.

Crux

Quashing of criminal proceedings for offences under Section 307 IPC on the ground that parties had entered into a settlement.

It was noted that Supreme Court had a conflict of opinion with regard to whether an offence under Section 307 IPC could be quashed by the High Court while exercising power under Section 482 CrPC.

In the decision of State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149, it was held that an offence under Section 307 IPC is a serious offence and ordinarily should not be quashed by the High Court while exercising its powers under Section 482 CrPC on the ground that the parties have settled their disputes.

Further, Supreme Court in the decision of Narinder Singh v. State of Punjab, (2014) 6 SCC 466 had quashed the proceedings under Section 307 IPC after noting the judgment in State of Rajasthan v. Shambhu Kewat, (2104) 4 SCC 149.

In view of the conflict of opinion in the above two decisions, matter was referred to a larger bench of Supreme Court in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, wherein it was observed that,

“…It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove”

 (emphasis supplied)

In the above decision, Court also stated that the powers conferred on the High Court under Section 482 CrPC can be exercised keeping in mind the injuries sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used etc.

High Court stated that in view of the above decision of the Supreme Court, it can be seen that the fight involved in the present matter was not an ordinary fight between the neighbors, infact petitioners should be thankful that they are not facing trial in a case of murder because in ordinary circumstances the injuries inflicted by the petitioners were sufficient to cause death.

Victim was stabbed with a dangerous weapon i.e. a knife and the injuries caused were of such nature that they would have caused death in ordinary circumstances.

Hence, Court declined to quash the FIR solely on the ground that the parties entered into a compromise. [Mukhtiyaar Ali v. State (NCT of Delhi), 2021 SCC OnLine Del 4428 , decided on 20-09-2021]


Advocates before the Court

For the Petitioners: Rishipal Singh, Advocate with petitioners in person

For the respondents: Meenakshi Chauhan, APP for the State with ASI Naresh, PS Jaffrabad Complainants in person

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., emphasized the law on territorial jurisdiction while addressing the present matter.

Present petition was filed impugning the order of Additional District Judge.

Petitioner was the defendant before the Trial Court. Respondent had filed a suit against the petitioner/defendant for the recovery of a sum of Rs 28, 43, 209.68/.

The claim of the respondent was that it was a well-known manufacturer providing a portfolio of solutions for packaged power, diversified generation, electrical control and safety and energy optimization.

Petitioner/defendant was the regional stockists and distributors, who were appointed to procure/buy goods being traded by the respondent/plaintiff and supply them to wholesalers and retailers of the respondent/plaintiff in the market, who, in turn, would sell the same to the consumers.

Further the respondent/plaintiff claimed that a running current account was maintained with the petitioner/defendant against which a statement of account/ledger was regularly maintained by it in the normal course of business.

A sum of Rs 28,43, 209.68 was due and payable by the petitioner/defendant. Hence the present suit was filed.

Petitioner/Defendant’s counsel, Deepika Mishra submitted that Trial Court had fallen into error in determining its jurisdiction as it relied on English case law that the ‘debtor must seek the creditor’, whereas it was bound to follow Section 20 of the Civil Procedure Code, 1908.

Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

The registered office of the petitioner/defendant was in West Bengal.

Petitioner/Defendant’s counsel submitted that the invoice itself recorded a Kolkata address. The warehouse was also stated to be located in West Bengal and therefore, the goods were neither dispatched from Delhi nor the invoices were raised at Delhi. counsel for the respondent/plaintiff pointed to the “subject to jurisdiction of court of Delhi only” clause in the invoices. There does not appear to have been any demurrer by the petitioner/defendant against this clause.

Hence, in light of Section 20 of CPC, the Court found some strength in the contention of respondent/plaintiff that on the basis of the ‘place of work’ of the petitioner/defendant, as well as the part cause of action of supply of goods, both reflected jurisdiction of the West Bengal courts.

However, the respondent/plaintiff has also claimed that payments were to be received in Delhi and therefore, part cause of action has arisen in Delhi and as such, the clause in the invoices referred to hereinabove did not confer jurisdiction at a place which had no jurisdiction.

In Court’s opinion, the suit could be filed at Delhi and Trial Court had not committed any error in answering the preliminary issue.

Bench stated that, when the part cause of action had arisen on account of the payments made by the petitioner/defendant directly into the bank account of respondent/plaintiff, even if these were not on regular basis, and there is nothing to show that the place of payment had been fixed, even without following the principle that the ‘debtor must seek out the creditor’, it was clear that the Delhi Courts have jurisdiction to try the suit and the invoice does not vest jurisdiction in a court which had no jurisdiction at all.

In view of the foregoing discussion, the High Court found no merit in the petition. [Auto Movers v. Luminous Power Technologies (P) Ltd.,  2021 SCC OnLine Del 4387, 16-09-2021]


Advocates before the Court:

For the petitioner: Deepika Mishra, Advocate

For the respondent: Pallav Saxena, Deepak Chawla, Aruj Dhingra and Neeraj Malik, Advocates

Case BriefsHigh Courts

Delhi High Court: Emphasising the reliability on the child victim’s testimony, Manoj Kumar Ohri, J., dismissed the appeal filed and the conviction and sentence awarded under Section 10 of POCSO At was maintained.

The present appeal was filed under Section 374(2) CrPC.

Subject matter of the appeal was that the appellant was convicted for the offences punishable under Section 354 Penal Code, 1860 and Section 10 of the POCSO Act.

Brief Facts

Appellant pulled the child victim and started kissing her and removing her underwear upon which she started shouting. Child victim’s younger brother saw her and, in the meantime, the mother of the child victim also arrived. She apprehended the appellant, and the police was called.

High Court concurred with the Trial Court’s finding that the child victim on the date of the incident was about 8 years old and thus a ‘child’ within the meaning of Section 2(d) of the POCSO Act.

Analysis and Law

What did the child victim state?

Child victim during her examination stated that the alleged incident occurred at about 9-9.30 a.m. She had gone to buy some vegetables. When she reached her house back, the appellant who was standing at the ground floor pulled her in a corner and started kissing her. He also started to remove her underwear. In the meanwhile, her younger brother came at the spot. She screamed, on which her mother also reached the ground floor. Her mother apprehended the appellant and her father informed the police. During the course of examination, the child victim correctly identified the appellant as the accused.

Bench noted that it is well settled that the testimony of a victim of sexual assault can be relied upon by the Courts.

Equally, the law on the testimony of the child victim is well encapsulated.

In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, Supreme Court held that the conviction of an accused on the sole evidence of a child witness is permissible, if the witness is found competent and the testimony trustworthy.

In the present matter, Bench stated that it is worthwhile to note that at the time of her in-Court examination, the child victim was of tender age, i.e. about 10 years, yet she not only narrated the incident in terms of her previous statement, but also identified the appellant as the person who had committed the offence.

Further, appellant did not deny his presence at the spot on the day of the incident. In fact, he was caught at the spot. Even in his statement recorded under Section 313 CrPC, it was stated by the appellant that he only asked for the child victim’s mobile phone and on that premise, he was falsely implicated.

High Court appreciating the testimony of the child victim was of the opinion that the same was consistent, truthful and reliable. Being a competent witness, her testimony was admissible in evidence against the appellant.

Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

 It was noted that the appellant failed to dislodge the statutory presumption as stated above.

Therefore, the appeal was dismissed, and the conviction and sentence awarded to the appellant was maintained. [Mohan Kumar v. State (NCT of Delhi), 2021 SCC OnLine Del 4380, decided on 15-09-2021]

Case BriefsHigh Courts

Delhi High Court: In a matter wherein, a Judicial Assistant sought voluntary retirement, V. Kameswar Rao, J., observed that in view of the Central Civil Services (Pension) Rules, 1972:

Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Petitioner had joined the post of Lower Division Clerk at District and Sessions Judge and was subsequently promoted to the post of Reader/Judicial Assistant.

Further, in the year 2018, he was diagnosed with Lumbar Spondylosis, a type of lower back pain caused by excessive degeneration of lower spine. In view of the said condition, petitioner sought transfer since his medical condition would not allow him to continue with the long hours of travel from his residence at Rohini to the Dwarka Courts.

Between July 2019 and March 2020, the petitioner was forced to take several leaves on account of his medical condition and his inability to travel.

Petitioner’s counsel, Sambit Nanda submitted that due to the respondent’s refusal to allow the petitioner’s request to transfer him back to Rohini Courts due to his medical condition, petitioner was constrained to send a notice under Rule 48-A of the Central Civil Services (Pension) Rules, 1972 requesting him to allow to take voluntary retirement from service.

Petitioner had completed 20 years of continuous service as required under Rules 48-A.

Since the respondent did not refuse permission for voluntary retirement within 3 months of the Notice, petitioner’s retirement became effective on the date of expiry of the notice and upon receiving no-intimation regarding his pending dues, the petitioner sent another letter to respondent requesting to release all pensionary dues and retirement benefits.

It was stated that despite no responding to any of the petitioner’s requests, and notwithstanding the fact that he had retired, respondent sent a notice to the petitioner seeking an explanation as to why he had been absent from office and further directed the petitioner to join his duty immediately.

Issue of consideration

Whether respondent is justified in rejecting the request of the petitioner under Rule 48-A of the Pension Rules, seeking retirement?

Firstly, the Court reproduced the contents of impugned communication by which the petitioner’s request was rejected for voluntary retirement, wherein it was stated that he had completed only 19 years 11 months and 4 days of qualifying service and not 20 years as is required under the rule.

As per Rule 48-A of Pension Rules:

“48-A. Retirement on completion of 20 years’ qualifying service

(1) At any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.”

The said rule makes it clear that a Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Rule 3(q) of the Pension rules states that: “service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under the rules.” 

Respondent had submitted that petitioner was on extraordinary leave without pay, which was excluded to determine the qualifying service.

It was noted that the petitioner was issued a show-cause notice for his absence, to which his wife sent a reply stating that he was suffering from back pain and partial paralysis. But the Court notes that petition had in his subsequent letter referred to backpain/spinal pain as his medical condition, because of which he was seeking voluntary retirement.

Surely, a backpain cannot be a justification to remain on continuous leave without intimation/leave application.

High Court noted that on the date of notice seeking voluntary retirement, the net qualifying service was 19 years 8 months and 10 days. The date on which the notice was received by respondent. The date on which the notice was received by the respondent, was 19 years 8 months and 16 days and on the date of completion of three months’ notice period it was 19 years 11 months and 15 days.

Bench observed that the provision of Pension Rules is very clear that only after a government servant has completed 20 years of qualifying service, he by giving notice of not less than 3 months retire from service. The Rule presupposes the Government servant having the qualifying service before giving a notice.

Rule 48-A of the Pension Rules has to be read in conjunction with Rule 49(3) of the Pension Rules.

Purport of Rule 49(3) is, for calculating the length of qualifying service, that is fraction of a year equal to three months and above shall be treated as completed as one-half year and reckoned as qualifying service, as has been interpreted in Govt. Of Delhi v. North Delhi Power Ltd., LPA 677 of 2011. 

Rule contemplates rounding up of a fraction to the next nearest half, that is if the period is beyond six months, a Government servant must necessarily have three months service beyond six months to be treated as complete one half-year, which in this case the petitioner did not have.

In view of the above discussion, petition was dismissed. [Gaurav Bhutani v. Principal District and Sessions Judge Headquarters, 2021 SCC OnLine Del 4307, decided on 8-09-2021]


Advocates before the Court:

For the Petitioner: Sambit Nanda, Advocate

For the Respondent: Avnish Ahlawat, SC (DSJ) with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

Case BriefsHigh Courts

Delhi High Court: While addressing a petition seeking direction for issuance of a joining letter for joining the pre-commission training at Officers Training Academy, Chennai, the Division Bench of Manmohan and Navin Chawla, JJ., made a very significant observation that:

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

Petitioner was short-listed and called to appear before the Service Selection Board for an interview.  The merit list was published by the respondents on 10-11-2020 wherein the petitioner was placed at Serial Number 9 in the order of merit.

Eleven candidates, including the petitioner, who were successful at the SSB interview, were subjected to a medical examination wherein two candidates, placed at Serial Numbers 3 and 7 in the merit list, were found medically unfit.

Top six candidates on the merit list were required to undergo pre-commission training at OTA with effect from 10-01-2021.

Later, the petitioner learnt that candidate placed at the 6th position voluntarily withdrew himself from the OTA and was accordingly allowed to leave the Academy.

Hence, the petitioner claimed that on withdrawal of the said candidate, the petitioner should have been issued a joining letter, though he was not issued the same and hence preferred the present petition.

Analysis, Law and Decision

With respect to the vacancy arising due to resignation of the person concerned, the instruction in regard to following the procedure for processing of resignations stated that, where the resignation is accepted and approved by the Commandant, intimation thereof has to be sent to the Recruiting Directorate Army HQ to ensure that a replacement is sent to the Academy within the stipulated joining period and the vacancy created due to the resignation is not wasted.

Bench opined that,

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

As far as the late induction period is concerned, the same is provided in the instructions dated 26-07-2000. It states that in the OTA, late induction can be approved only for a period of three weeks. In the present matter the time for issuing a joining letter was not available.

 It is settled law that successful candidates, even if there is vacancy, do not acquire any indefensible right to be appointed; their only right is to be considered for appointment, though at the same time the appointment cannot be denied arbitrarily and whimsically (Refer: State of Haryana v Subhash Chander Marwaha, (1974) 3 SCC 220).

Lastly, the High Court held that the plea of the petitioner that he be allowed to join the training to the next course could not be accepted as the respondents explained that there was no procedure of carrying forward of a vacancy to the next course.

In view of the above, present petition was dismissed.[Sanskar Sharma v. Union of India,  2021 SCC OnLine Del 4277, decided on 3-09-2021]


Advocates before the Court:

For the Petitioner: Indra Sen Singh, Kritika Chhatwal, Advs.

For the Respondents: Rashmi Bansal, SCGC

Rajat Bhatia,

Manpreet Kaur Bhasin, Advs

Case BriefsHigh Courts

Delhi High Court: Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

Respondents counsel in the present application vehemently relied upon various orders passed by this Court to hold that once possession was regained by the respondent/landlord the revision petition was rendered infructuous.

Counsel for the Petitioner/Tenant did not deny that in the Execution Proceedings the respondent/landlord had received physical possession of the property. He denied that the instant petition was infructuous.

Referring to the decisions of this Court, Court stated that “it is manifest that present petition is infructuous”

 Background

In the interest of justice, High Court considered the impugned order on merits. Further, dealing with the submissions of the petitioner whereby it had been strongly urged that the impugned order passed by the ARC was liable to be set aside by this court and possession restored.

Present petition was filed under Section 25-B of the Delhi Rent Control Act, 1958 seeking to impugn the eviction order pertaining to the property.

Respondent/Landlord had filed a petition for eviction under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958 on ground of bona fide requirements.

Counsel for the petitioner reiterated that the five shops have been mentioned in the application for leave to defend which are available to the respondent/landlord. He has also further stated that he has denied the need for additional accommodation in his application for leave to defend. Hence, it is pleaded that this denial itself would be a ground for grant of leave to defend as it raises a triable issue.

Analysis, Law and Decision

Looking at the aspect with regard to the scope of present petition, Bench referred to the Supreme Court decision in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta, (1999) 6 SCC 222.

Bench tested the order of the ARC to see whether it is according to law, and whether the conclusions are not wholly unreasonable.

Court noted that the essential ingredients which a landlord is required to show for the purpose of getting an eviction order for bona fide needs are:

  • the petitioner is the owner/landlady of the suit premises
  • the suit premises are required bona fide by the landlord for himself/herself and any of his/her family members dependent upon him/her.
  • the landlord/landlady or such other family members have no other reasonable suitable accommodation.

High Court opined that there was no dispute regarding the relationship of tenant and landlord between the parties.

Petitioner pleaded that there were 5 other properties available to the respondent/landlord which were sufficient for their alleged business. To this, the respondent submitted that the accommodation available with them fell short of carrying out their business of sweets and properties mentioned by petitioner were already being used.

Bench also referred to the Supreme Court decision in G.C. Kapoor v. Nan Kumar Bhasin, (2002) 1 SCC 610,

“9. It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde [1999] 2 SCR 912, this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for ‘presuming that his need is not bonafide’. It was also held that while deciding this question. Court would look into the broad aspects and if the Courts feels any doubt about bonafide requirement, it is for the landlord to clear such doubt.”

In the Supreme Court decision of Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. Bona fide personal need was a question of fact and should not be normally interfered with.

Further, impugned order rightly held that other than making bald averments without filing any documents, the petitioner/tenant has failed to plead any fact which would throw doubt on the bona fide requirement of the respondents/landlord.

Therefore, Court held that the respondents/landlord’s requirement was a bonafide requirement and is an honest one and not tainted with any oblique motive and is not a mere wish or desire.

Hence, petitioner failed to make out any triable issue and the petition was dismissed. [Bhawani Shankar v. Nand Lal, 2021 SCC OnLine Del 4284, decided on 7-09-2021]


Advocates before the Court:

For the petitioner: J.C. Mahindroo, Megha Verma Mahindroo, Shubham Agarwal and Cherry Singh, Advs.

For the Respondents: Jai Sahai Endlaw, Ajay Kumar Gupta, Subhoday Banerjee and Surbhi Gupta, Advocates

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while reiterating that there is no absolute bar on legal practitioners representing Management before Labour Courts, observed that:

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

Instant petition challenged the order by which Counsel for the Petitioner-Management was not permitted to represent his client before the Industrial Tribunal.

Counsel for Petitioner-Management submitted that the impugned order was completely contrary to the prevailing law on the issue inasmuch as Advocates are permitted to represent the management, so long as there was no objection by the workman or the litigation expenses were paid.

Further, the Counsel submitted that the authorized representative of the Management was appearing at the time when pleadings were being exchanged and other procedural formalities were being completed. However, when the matter reached the stage of trial, the Management thought it fit to engage the services of an Advocate for tendering evidence and conducting cross-examination. Accordingly, Counsel Sabharwal had been engaged in the matter.

Adding to the above, Counsel submitted that it is the usual practice before Labour Courts that Advocates appear and represent the management as well as the workmen.

In the present case, Rajesh Khanna was an authorized representative for the Workmen and one such representative of the trade union, regularly appearing for workmen before the Labour Courts. He submits that the Management would be enormously prejudiced if the Workmen are permitted to be represented by an expert and the Management is not allowed to engage an Advocate.

Analysis, Law and Decision

Question for consideration is in respect of the representation of Advocates before the Labour Courts.

As per Section 36(4) of the Industrial Disputes Act, 1947, both parties i.e., the workmen and the management, are permitted to be represented by a legal practitioner with the consent of the other party and with the leave of the Court

From the judgement in Paradip Port Trust, Paradip v. Workmen, (1977) 2 SCC 339, it is clear that there is no absolute bar and if consent is given by the workmen, a lawyer can appear before the Labour Court.

Whether there was consent – implied or expressed, and whether leave ought to be granted by the Adjudicator concerned.

In the recent decision of the Supreme Court in Thyssen Krupp Industries India Private Limited v. Suresh Maruti Chougule [Civil Appeal No. 6586/2019], the clear conclusion would be that a legal practitioner can represent the management before the Labour Court, if the litigation expenses for the workman to engage the advocate are paid by the management.

“…as the matter reaches trial, it would be inapt to say that the management or the workmen would not be entitled to engage Advocates or legal practitioners to represent them, in accordance with law. If the Management wishes to be represented by a legal practitioner, the Court can consider the question of whether the workman has given consent or not, whether impliedly or otherwise. “

Court directed that the parties shall appear before the Labour Court on 20-09-2021.[A&B Fashions (P) Ltd. v. Ramesh Kumar, WP (C) 8929 of 2021, decided on 24-08-2021]


Advocates before the Court:

For the Petitioner: Vinay Sabharwal, Advocate

Mr Raj Birbal, Ms Raavi Birbal and Mr Gunjan Singh, Advocates assisting the Court

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., expressed that,

The Banks seek collaterals and security to prevent losses to themselves. It is, but reasonable, to expect the Banks such as the respondent, to also respect the right of the borrowers to maximize their profits from the sale of collaterals/securities by the banks.

In the instant matter, the petitioner had secured a loan of Rs 20 lakhs from the respondent against the mortgage of a plot. Since the petitioner defaulted in the repayment of the loan, a suit was filed by the respondent along with the sale of the mortgaged property in case of non-payment.

Petitioner claims that the interest upon the decretal amount was simple and subject to RBI Guidelines. In 1994, the petitioner went into liquidation and defaulted in making payments. This resulted in a final decree being passed on 20-08-1996 directing the sale of the mortgaged property.

Petitioners grievance was two fold: One was that the respondent had wrongly calculated the interest liability of the petitioner by taking a compound rate and thus exceeding 18% which was the upper limit fixed by the RBI.

Secondly, despite the respondent’s valuer fixing the valuation of the property at more than Rs 24 crores, when the property was to be put for auction, it reduced the reserve price to Rs 16,00,00,000/- from Rs 18,13,00,000/- and thereafter, during Covid-19 pandemic times when real estate prices were depressed, chose to seek court directions to reduce the price further to Rs 13,75,00,000/-.

Analysis, Law and Decision

With respect to the grievance of the petitioner that the value of the property had been arbitrarily depressed causing immense loss to the petitioner, Bench stated that

Though it cannot be overlooked that the petitioner is singularly responsible for the amount repayable to the respondent increasing exponentially over decades, by not adhering to its undertakings for making payments on time, even when the respondent has been open to some accommodation, the petitioner cannot be so penalized that it should be made to suffer grave prejudice on account of any arbitrary action taken by the respondent.

Court added that, while it does make business sense for the respondent to minimize its losses, the said objective cannot authorize the respondent or any other similarly placed institutional decree holders, to force penury on its erstwhile customer.

On query by this Court, the respondent’s counsel submitted that by 30-09-2020, the loan which was originally for a sum of Rs 20 lakhs, taken on 4-11-1987, had become Rs 15,12,36,049.45 and further submitted that Rs 13,75,00,000/- which was the consideration for the mortgaged property would still leave a balance of about Rs 2 crores as due and payable on the loan, which the respondent would be recovering from the petitioner against other assets.

In view of the above background, the question for consideration was: Whether borrowers would have no protection against arbitrary disposal of the properties mortgaged to banks and financial institutions at low prices?

Bench emphasised that, while the attempt of the banks and financial institutions such as the respondent to minimize their losses makes good business sense, there cannot be a free run for them at the cost of the borrowers who have mortgaged to them or furnished valuable property as security to assure repayment, which are worth multiple times the value of the loan.

Non-Payment of loans 

Court expressed that non-payment of loan cannot be countenanced but where the Banks seek to sell the immovable properties that are provided as security including through mortgage, it is incumbent on them to be earnest in their efforts so that the valuable security is not disposed of to the prejudice of the borrower.

It was noted that the value of the property in the year 2018 as assessed by the respondent’s valuer far exceeded the outstanding amount.

Adding to the analysis, Court pointed that though when the respondent had come into the possession of the mortgaged property on 13-04-2018, and as on 18-05-2018, the property was worth more than Rs 24 crores, while it remained in the hands of the respondent, the value of the same property had plummeted by about half. It may be that in the Covid-19 pandemic period, the Real Estate sector has seen some diminished activities, but it cannot be overlooked, that it was in the year 2019 itself, that the respondent had sought to revise downwards the value of the mortgaged property from Rs 24,16,78,125/-, to Rs 18,13,00,000/- to Rs 16 crores and thereafter to Rs 13,75,00,000/-.

In the present case, the prime commercial property originally worth more than Rs 24 crores has been purportedly sold for almost half the price with no one responsible. This kind of situation has to be avoided for which the Executing Court will have to maintain a vigilant eye on the auction proceedings.

Lastly, the High Court opted the option of directing the Executing Court to record a satisfaction of the Preliminary Decree dated 21-02-1992 and the Final Decree dated 20-08-1996 while issuing the Sale Certificate to the auction purchaser recording that no further dues against this loan remain outstanding and payable by the petitioner to the respondent.

Therefore, the parties have been directed to appear before the Executing Court on 6-09-2021. [Pushpa Builder Ltd. v. Vaish Cooperative Adarsh Bank Ltd.,  2021 SCC OnLine Del 4256, decided on 2-09-2021]


Advocates before the Court:

For the Petitioner: Anant Aggarwal, Advocate

For the Respondent: Surender Chauhan, Advocate with Sunil Jain, DGM and Sunil Dogra, Manager (Legal)

Case BriefsHigh Courts

Delhi High Court: Jayant Nath, J., did a comprehensive analysis of the matter involving trademark infringement.

Legacy of Rajdhani

Plaintiff had originally conceived and adopted the trademark/label ‘Rajdhani’ for several products. Plaintiff company was formed in 1983 and carried forward the said business under the trademark/label’ Rajdhani’.

Trademarks/Labels are owned by the plaintiff company and ‘Rajdhani Flour Mills Limited’ as a sister concern of the plaintiff company vide an agreement.

Further, it was stated that the plaintiff and Rajdhani Flour Mills have co-existing rights in the trademark/labels in question.

It is stated that the plaintiff came into existence in 1983. Therefore, there is no question of the plaintiff using the composite trade mark ‘Rajdhani’ since 1966 as claimed.

Even if for some reason it was assumed that the plaintiff had been using the trademark since inception, the defendants have been continuously using the trademark ‘Rajdhani’ and its variants since 1965.

Analysis, Law and Decision

Whether plaintiff has any rights to the trade mark RAJDHANI keeping into account the alleged memorandum of family settlement?

It was claimed that the origin of the trade mark in question RAJDHANI was in 1966, present director of the plaintiff conceived and adopted the trade mark/label.

Prima facie, Court opined that the plea of defendants that pursuant to the family settlement, no rights flow to the plaintiff was without merits.

Adding to the above, Bench stated that the said settlement conferred rights on the trade mark RADHANI in favour of the plaintiff/ director of the plaintiff. The mark has also been registered in the name of the plaintiff. Admittedly, no steps have been taken by the plaintiff for registration of the assignment of the trade mark in favour of the plaintiff. However, it was not urged before the court that it was mandatory to register the assignment in favour of the plaintiff under the Trade Marks Act.

Merely because the defendant’s trademark is not registered would not entitle the plaintiff to any interim injunction. Supreme Court’s decision in Neon Laboratories Ltd v. Medical Technologies Ltd., (2016) 2 SCC 672 was relied upon.

From the above decision of the Supreme Court, what follows is that the ‘first in the market’ test has always enjoyed pre-eminence.

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

Prima facie the reliance of the defendant on documents to show the date of user of the trademark was misplaced.

In the light of the documents on record, it is difficult to, at this stage, prima facie without leading further evidence to accept the plea of the defendant that it has been using the trademark ‘Rajdhani’ since 1965 as alleged.

Prima Facie the defendant had failed to show prior user of the trademark in question.

With regard to alleged delay in approaching the Court, Bench held that delay per se may not always be sufficient to disentitle the plaintiff to grant of an interim order.

Adding to the above, Court stated that prima facie in view of the registered Memorandum of Family Settlement dated 31-03-2009 filed by the plaintiff, the plaintiff traces its user of the trademark since 1966. The plaintiff had also placed on record invoices starting from the year 2006 pertaining to the said products with the trademark in question.

Hence, High Court held that prima facie, the plaintiff was the first in the market with the trademark ‘Rajdhani’ and was the registered owner of the said trademark.

The defendant was using the trademark ‘Rajdhani’ for allied and cognate goods which was identical as that of the trademark of the plaintiff and prima facie infringing the rights of the plaintiff.

Therefore, an interim injunction was passed in favour of the plaintiff against the defendants restraining defendants its directors, proprietors, etc. from using in any manner the trademark ‘Rajdhani’ or any other trademark which is deceptively similar to the trademark of the plaintiff.

In view of the above application was disposed of. [Victoria Foods (P) Ltd. v. Rajdhani Masala Co., 2021 SCC OnLine Del 4224, decided on 1-09-2021]


Advocates before the Court:

For the Plaintiff: Dayan Krishnan, Sr. Adv. with Rohit Gandhi, Manish Singhal, Adish Srivastava and Sukrit Seth, Advs.

For the Defendants: Kapil Sibal & Chander Lall, Sr. Advs. with Ankur Singhal, Mr.Sajad Sultan and Nancy Roy, Advs.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

In the instant petition, the petitioner sought bail under Sections 304B, 498A, 34 Penal Code, 1860 and 4 of the Dowry Prohibition Act.

Petitioner’s counsel contended that in the FIR and even in the statements recorded under Sections 161 CrPC and 164, of the father of the deceased, who was the complainant and maker of the FIR, allegations if any have been levelled against the mother and sister of the petitioner and not against the petitioner.

Both the mother and sister were granted anticipatory bail.

Further, merely because just before the death, the petitioner and the deceased spoke on the mobile phone, it cannot be said to raise a suspicion that the petitioner instigated the deceased to commit suicide.

There was no material to show that soon before the death of the deceased, the petitioner subjected the deceased to cruelty for the demand of dowry.

APP for the State submitted that, the conduct of the petitioner by making a phone call to the deceased soon before she committed suicide itself shows the conflict going on between the petitioner and the deceased which instigated the deceased to commit suicide.

On perusal of the Complainant’s allegations even in the statement under Section 161 CrPC which was recorded after 17 days of the death of the deceased noted the demand of dowry at the time of marriage, however thereafter the principal allegations were that in-laws retained jewellry and articles given in shagun and did not return the same, that brother-in law of the deceased used to ask the deceased to vacate the house and the mother-in law used to ask for the rent from the deceased.

Prosecution claimed that the last call from the petitioner to the deceased instigated her to commit suicide, for which there was no evidence. It could be to persuade not to take any extreme step, because immediately thereafter the petitioner made a call to the complainant informing him that she has locked from inside.

In respect of the allegation that the petitioner and his family members used to harass her for dowry due to which, she was compelled to commit suicide, no specific allegation has been stated as to what was the demand of dowry after marriage except what was demanded at the time of marriage.

In view of the evidence collected against the petitioner, Court granted bail to the petitioner.

Hence, the petition was disposed of. [Amit Sharma v. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 4120, decided on 24-8-2021]


Advocates before the Court:

For the petitioner: Pradeep Teotia, Advocate

For the Respondent: Tarang Srivastava, APP for the State.

Ravi Shankar Kumar, Advocate for the complainant.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Navin Chawla, JJ. while addressing a matter expressed that no judicial finding is there to state that a Bank Guarantee cannot be encashed during its validity.

Instant appeals were filed challenging the Trial Court’s decision wherein the Trial Court had passed an ex parte ad interim status quo order as regards the encashment of respondents 2 Bank Guarantee for Rs 16, 20,000 in an application filed by respondent 1 under Section 9 of the Arbitration and Conciliation Act, 1996.

Appellant’s counsel submitted that the Bank Guarantee was invoked as respondent 1 had not extended the said Bank Guarantee up to 31-03-2022.

Though, respondents counsel stated that the Bank Guarantee in question had been extended till 31-3-2022.

Analysis, Law and Decision

High Court was inclined to dispose of not only the appeal but also the Section 9 petition filed by respondent 1. However, Mr Jain, counsel for respondent 1, stated that he would like to press for an injunction order before the trial court restraining the appellant from encashing the Bank Guarantee in question during its validity period.

Prima facie, Court opined that Bank Guarantees are not furnished for being photo framed and kept in a drawing-room.

Bench also opined that:

There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

High Court expressed that Court cannot injunct encashment of a bank guarantee during its validity if cause of action arises in future.

Supreme Court, in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd., (1988) 1 SCC 174 held that bank guarantee must be honoured free from interference by Courts, otherwise, trust in commerce internal and international would be irreparably damaged.

Recently, in Andhra Pradesh Pollution Control Board v. CCL Products (India) Ltd., 2019 SCC OnLine SC 985, the Supreme Court has held as under:

“23. The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.”

While permitting respondent 1 and giving an opportunity, to file whatever documents he wished to rely upon, the matter was listed for 13-09-2021. [SPML Infra Ltd. v. Hitachi (P) Ltd., 2021 SCC OnLine Del 4194, decided on 27-08-2021]


Advocates before the Court:

For the appellant: Sayan Ray & Parag Chaturvedi, Advocates

For the Respondents: Prasouk Jain with Rabiya Thakur, Advocates.

Ateev Mathur, Advocate for Respondent 2 ( SCB)

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Navin Chawla, JJ. directed that proceedings against Subway Systems (India) Private Ltd. be dropped in a case against its franchisee Dough Makers (India) Private Limited.

Instant appeal was filed challenging the final order passed by the National Anti-profiteering Authority where it had been held that M/s Dough Makers India (P). Ltd. had profiteered to the extent of Rs 78,41,754/-

Petitioner also sought direction to NAPA to drop the proceedings against the petitioner as a respondent in the case of DGAP v. Dough Makers (P) Ltd., [Case No. 1 of 2021]

Analysis, Law and Decision

 Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

Infringement of some legal rights or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. [Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671]

Further, the Court stated that in the present matter, petitioner had not been held guilty of the violation of the Central Goods and Services Tax Act, 2017 and NAPA had no objection if the petitioner was deleted from the array of parties, this Court opined that the petitioner had no locus standi to maintain the present petition.

Hence, the notice referred by the petitioner’s counsel is deemed to have been withdrawn.

 Present writ petition along with pending applications were disposed of by dropping the proceedings against the Petitioner as a Respondent in the case of DGAP v. Dough Makers India (P) Ltd., Case No. 1 of 2021. [Subway Systems India (P) Ltd. v. Union of India, 2021 SCC OnLine Del 4094, decided on 16-08-2021]


Advocates before the Court:

For the Petitioner: Abhishek A. Rastogi with Pratyushprava Saha, Advocates.

For the Respondents: Zoheb Hossain with Tulika Gupta and Vivek Gurnani, Advocates for Respondents-NAA and DGAP