Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while quoting that ‘Promises are meant to be broken’ stated that the law has evolved the doctrines of legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

Promise by Chief Minister of Delhi

Petitioners filed the instant petition seeking enforcement of CM of Delhi’s promise.

Petitioners sought the recovery/payment/refund of the monthly rental amount, as per the promise made by the CM.

What was the promise?

CM, Delhi in a press conference on 29-3-2020, amidst the pandemic requested all the landlords to postpone the demand/collection of rent from those tenants who were poor and poverty-stricken.

CM, in the press conference, had made a clear promise that if any tenant is unable to pay the rent due to poverty, the Government would pay his/her rent on their behalf.

“…a solemn assurance was given that the Government would take care of the tenants.”

Analysis, Law and Decision

Bench on perusal of various decisions of the Courts laid down the salient principles of the doctrines of promissory estoppel and legitimate expectation:

Principles from decisions in India:

In India, the two doctrines of promissory estoppel and legitimate expectation have been moulded and expanded further, in order to suit the economic and social conditions prevalent in India. Some of the principles that emerge are:

i)  If a representation is made by the Government, the question is whether it should be allowed to go back on it and whether such an act of resiling from the said assurance would constitute legal fraud.

ii)  It is necessary to promote honesty and good faith in governance. Therefore, if a promise has been made, the Government has a duty to fulfil the same.

iii)  Executive necessity does not constitute an adequate reason to not give effect to a representation.

iv)  If the promise made is clear and unequivocal then the Court can enforce it.

v)  If the promise is acted upon by the promisee, the need to enforce the said promise becomes stronger. There need not be any detriment caused. Mere action on the promise is sufficient for cause of action to arise.

vi)  Under the traditional law of contracts, unless and until, the terms are agreed upon, there would be no contract. However, the doctrine of promissory estoppel is an exception, i.e., no contract is required to enforce a promise made by the Government, if the Government made the same consciously, with an intention for it to be acted upon by the citizen.

vii)  It is important to bridge the gap between law and morality and these two doctrines of promissory estoppel and legitimate expectation are judicial contributions in the said direction.

viii)  Relief based on legitimate expectation or promissory estoppel can be refused only if it is unequitable to hold the Government to its promise.

ix)  If public interest would be prejudiced by enforcing the said promise, only then, relief may be refused. The only exception is overriding public interest or when enforcement is unfair or contrary to public interest. However, the Government would have to disclose the facts that would exempt it from enforcing the said promise and a mere claim in respect of the same would not be sufficient to establish overriding public interest.

x)  A mere ipse dixit would not work, and the Government cannot presume a self-exemption. Only a Court can grant exemption from liability for not adhering to the assurance, provided the Government shows proper justification.

xi)  High ranking officials who may have made representations or given assurances or promises, can, due to the position they hold, bind the Government to their statements.

xii)  It is presumed that once a representation is made by a high- ranking official, the same is within the scope of its authority.

xiii)  If the representation or promise made or is prohibited by law then it cannot be enforced.

xiv)  The relief that may be given by the Court, in the case of an unconscionable departure from a promise is flexible, so as to remedy the injustice caused.

xv)  The mere non-issuance of a notification would not stand in the way of granting relief, if the facts justify the same, as the same would only be a ministerial act.

xvi)  Both these doctrines have to be expansively interpreted, as a recognition of the doctrine of fairness and non-arbitrariness.

xvii)  The legitimate expectation of a citizen ought to be considered and given due weight in decision making. It is a relevant factor for consideration in the decision-making process.

xviii)  Failure to adhere to a promise without adequate justification violates the trust between the Government and the citizen.

xix)  The broad exceptions to not grant relief on the basis of these principles would be – mistake, or if the same is unfair and contrary to public interest.

xx)  The doctrine of legitimate expectation is broader in its scope than the doctrine of promissory estoppel, and it may be based on past practice of the authorities. It need not involve a specific statement and is meant to ensure non-arbitrariness in State action.

xxi)  The doctrine of legitimate expectation and its enforcement is an integral part of non-arbitrariness and non-abuse of power as enshrined in Article 14 of the Constitution.

Now, moving on to analysing the facts, Bench noted that the address by the CM in the press conference has three dimensions:

  • The first dimension is an appeal to the landlords.
  • Second is a promise to landlords that it would pay on behalf of the tenants, if they are unable to due to lack of means and poverty, and
  • thirdly, it has a warning to landlords to not coerce the tenants.

Whether the said statements given by the CM were enforceable by applying either the doctrine of legitimate expectation or promissory estoppel?

Further, Bench stated that the promise made by the CM was under the premise that COVID-19 may be over within two-three months, as the words used were  आश्वासन (assurance or promise) and भुगतान (reimbursement) for the landlords, on behalf of the tenants.

High Court expressed that the principles governing the doctrines of legitimate expectation and promissory estoppel primarily recognize the role of the State of the Governmental authorities vis-à-vis the public.

Adding to the above, High Court stated that the said doctrines are a reflection of the legal recognition being accorded to the trust that citizens repose on promises/assurances/representations which are made by Constitutional functionaries and governmental authorities, especially in times of distress.

The raison d’être for granting recognition to such assurances/promises/representations, is that such functionaries and authorities, who are either elected to public positions or who hold positions of power, are answerable to the people, especially once they undertake or agree to do or not to do a particular thing.

Legal Enforceability

Bench expressed that the question as to whether a promise/assurance/representation results in a legally enforceable right and if so, what would be the relief that a Court can grant, depends upon the factual circumstances of each case and the context in which the said promises/assurance or representations have been made by the Governmental authorities.

Judicial Enforceability

The assurance given or the promise made in the present case was obviously with a view to stop or curb the migration of people from Delhi to the extent possible.

The actual effect of the promise or the assurance was beyond the scope of the present writ petition, inasmuch as there was no clarity as to whether the assurance resulted in tenants staying back.

However, this Court cannot be dismissive of the fact that the Petitioners, who are before the Court, claim to have acted on the promise or the assurance made by the CM. It would not be unreasonable to presume that some tenants and landlords may have altered their positions based upon the assurance given by the CM.

The salient facts and features of the present case were:

(1) Exceptional circumstances of the COVID-19 pandemic.

(2) Extreme distress being faced by migrant labourers and blue-collar workers and employees.

(3) A clear promise/assurance made by the CM.

(4) No positive policy to implement the said promise/assurance given by the GNCTD.

(5) No contrary policy implemented by the government, placed before the Court.

(6) No decision taken to not implement the said promise/assurance that was given by the CM.

(7) The exception of public interest having not been invoked for the non-implementation of the promise/assurance.

What should be the conduct of the Government, in the context when a senior functionary like the CM gives a promise/assurance to the public, which is categorical, unequivocal and unambiguous?

Court opined that such inaction would not be permissible when clearly the making of the promise/assurance by the CM was not in doubt, and was in fact admitted by the GNCTD.

Doctrines of Promissory Estoppel and Legitimate Expectation

The said doctrines are based on the axiom that the people trust the government.

In a democratic setup, persons who hold an elected office, and especially heads of government, heads of State and those holding responsible positions are expected to make responsible assurances/promises to their citizens, especially in times of crisis and distress. On behalf of the citizens, there would obviously be a reasonable expectation, that an assurance or a promise made by a senior Constitutional functionary, not less than the CM himself, would be give effect to.

If the GNCTD had actually come out with a policy either deciding to not implement the said promise or assurance on grounds which are legally sustainable, obviously the Courts cannot interfere. However, even applying the basic Wednesbury principles, the decision making, after the promise was made, ought not to be an arbitrary one.

 Bench held that in the backdrop of the commitment made, it is not the positive decision making which is arbitrary, but the lack of decision making or indecision, which this Court holds to be contrary to law.

Once the CM had made a solemn assurance, there was a duty cast on the GNCTD to take a stand as to whether to enforce the said promise or not, and if so on what grounds or on the basis of what reasons.

In the context of upholding Fundamental Rights, the principles of legitimate expectation have to be accorded a higher pedestal and the burden on the authority concerned not to honour the same, is even higher.

Conclusion

A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the Government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer.

The expectation of the citizens could be that the Government would implement the promise, however, when this Court is examining this promise and the expectation that comes with it, the question is whether there is any reason as to why the Government did not even take a decision in this regard.

To that extent, insofar as the indecision is concerned, the GNCTD needed to answer the question, which it has failed to answer. 

Elaborating more, Court stated that the said promise was to act as a balm on the wounds of landlords and tenants, who were severely affected as a class of citizens in Delhi. However, the lack of any decision to implement, or a conscious reasoned decision not to implement, has resulted in non decisionem factionem in respect of the legitimate expectation of its citizens. The statements made by persons in power are trusted by the public who repose faith and believe in the same.

Thus, “puffing” which may be permissible in commercial advertising, ought not to be recognisable and permissible in governance.

Whether the statement made by the CM can be completely ignored and can be held to be not binding on the GNCTD?

In Court’s view, the promise/assurance/representation given by the CM clearly amounts to an enforceable promise, the implementation of which ought to be considered by the Government. Good governance requires that promises made to citizens, by those who govern, are not broken, without valid and justifiable reasons.

Lastly, the Court concluded by laying down the following directions:

  1. The GNCTD would, having regard to the statement made by the CM on 29th March, 2020, to landlords and tenants, take a decision as to the implementation of the same within a period of 6 weeks;
  2. The said decision would be taken, bearing in mind the larger interest of the persons to whom the benefits were intended to be extended in the said statement, as also any overriding public interest concerns.
  3. Upon the said decision being taken, the GNCTD would frame a clear policy in this regard.
  4. Upon the said decision being taken, if a Scheme or Policy is announced, the Petitioners’ case be considered under the said Scheme/Policy as per the procedure prescribed therein, if any.

Petition was disposed of in the above terms. [Najma v. GNCTD, WP (C) 8956 of 2020, decided on 22-07-2021]


Advocates before the Court:

For the Petitioner: Gaurav Jain, Advocate

For the Respondent: Rahul Mehra, Sr. Advocate with Mr. Gautam Narayan, ASC, GNCTD and Mr. Adithya Nair, Advocate.

COVID 19Hot Off The PressNews

Delhi High Court

Vide the Public Notice dated 22-07-2021, Full Court observed that physical hearings in the Delhi High Court may be resumed in a restricted manner w.e.f 16-8-2021 on an experimental basis, subject to further orders based on evaluation of the situation of the pandemic in the NCT of Delhi.

Read the detailed Notice here: PUBLIC NOTICE


Delhi High Court

[Public Notice dt. 22-7-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., held that the pawnor, merely by his act of delivering his own goods to a creditor in consideration of a credit facility granted to the debtor/borrower, by legal fiction becomes liable for the entire debt, would be detrimental to trade and commerce, with borrowings becoming difficult to obtain owing to persons not agreeing to make a pledge of their goods for credit to another, for the fear of becoming liable for more than the value of goods.

Legal Question for Consideration

Whether by virtue of Section 176 of the Indian Contract Act, 1872, the pawnor, even if different from borrower or the principal debtor, becomes liable for payment of the entire debt, even if has not furnished any guarantee for repayment of the entire debt i.e. over and above the value of the pawned goods?

Facts pertinent to the matter

Respondent 1 had filed the original application before the Debt Recovery Tribunal, Delhi under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 along with pendente lite and future interest, jointly and severally from respondent 2 and petitioner.

Aggrieved from the order of DRAT, of dismissal of his appeal, the petitioner filed the instant petition.

Analysis, Law, Decision

It was noted that the counsel for respondent 1 Bank had fairly admitted that there was no document whereunder the petitioner had undertaken liability as a borrower, in his personal capacity or as a guarantor for repayment of the dues of respondent 2 Company to the respondent 1 Bank.

Bench on an interpretation of Clause 2.1 of the Share Pledge Agreement was unable to agree with the contention of respondent 1 Bank that the petitioner became liable for the entire debt.

Further, it was stated that,

In the Share Pledge Agreement,

  • while the respondent 1 Bank is described as the Bank, the respondent 2 Company is described as the Borrower and the petitioner is described as the Pledgor; the same is indicative of the role of the petitioner in the agreement being confined to that of a pledgor/pawnor, as distinct from a borrower; had the intent been, of the petitioner along with the respondent 2 Company borrowing the monies and being liable for repayment thereof, the petitioner, besides as a pledgor, would also have been described as a borrower;
  • Clause 2.1 merely notes the agreement to be for the benefit of the respondent 1 Bank; merely by stating so, the petitioner did not and could not in law have become liable for more than that for which he expressly became liable under the Share Pledge Agreement; the pledge made by the petitioner under the agreement was also for the benefit of the respondent 1 Bank and thus merely from the statement that the agreement was for the benefit of the respondent 1 Bank, it does not follow that the benefit to the respondent 1 Bank flowing from the petitioner was more than that undertaken by the petitioner or provided in the agreement;
  • the petitioner pledged his shares as security for due discharge and repayment of Obligations under the Finance Documents; it is not the case that under the Finance Documents the petitioner is personally liable; and,
  • the parties expressly agreed that in the event of any default by the borrower, the respondent 1 Bank would be entitled to transfer or register in its name the pledged shares and to receive all amounts payable with respect thereto and to sell the same; there is no clause, that on any default or breach by the respondent 2 Company as borrower, the petitioner would become personally liable for the borrowings of respondent 2 Company.

Supreme Court, in State of Maharashtra v. M.N. Kaul, AIR 1967 SC 1634, while answering the question of whether the guarantee subject matter thereof was enforceable, held, “That depends upon the terms under which the guarantor bound himself. Under the law he cannot be made liable for more than he has undertaken”

In Central Bank of India v. Virudhunagar Steel Rolling Mills Ltd., (2015) 16 SCC 207, held that,

“…had the intent been to make the directors personally liable for the outstanding liabilities of the company also, it could have been so provided in the letter of guarantee and the directors were thus not personally liable for the dues of prior to the date they signed the letter of guarantee. It was further held that since the deed of guarantee was drafted by the bank, in case of doubt, had to be read against the bank.”

In the instant matter, High Court dismissed the contention of the respondent 1 Bank that the petitioner admitted his liability before the Recovery Officer.

Court stated that banks are also known to, besides the borrower, make others also on whose surety/guarantee the said credit facilities are extended to the borrower, sign a plethora of documents, again in their standard form. From the conduct of the respondent 1 Bank not making the petitioner sign any such documents, the only inference is that the petitioner was not intended to be liable for dues of respondent 2 Company save to the extent of the value of the shares pledged by the respondent 2 Company.

Moving, further, with the analysis, Bench elaborated that Section 172 provides bailment of goods as security for payment of a debt is called a “pledge” and the bailor is called the “pawnor” and the bailee, the “pawnee”.

In Court’s opinion, none of the provisions preceding or following Section 176 provide for the pawnor, by virtue of the pledge, even if not otherwise liable for the payment of debt, by a legal fiction becoming so liable for payment for debt, even beyond the value of the pawned goods.

“…we hesitate to, merely on the basis of Section 176 hold that a pawnee can recover from the pawnor anything beyond the value of the goods which the pawnor has pledged, unless the pawnor has separately from the pledge also made himself liable for the debt.”

Therefore, Bench decided that under Section 176 of the Contract Act, the pawnor, if not otherwise liable for the debt as a borrower or as a guarantor or otherwise, does not merely from the act of making a pledge, become liable to the creditor/pawnee, for anything more than the value of the goods pledged.

Hence, DRAT erred in holding the petitioner as a pawnor become liable for the entire debt for which pledge was made even without being a borrower and even in the absence of having promised so.

In view of the above discussion, a petition was disposed of. [Ajoy Khanderia v. Barclays Bank, 2021 SCC OnLine Del 3740, decided on 20-07-2021]


Advocates before the Court:

For the Petitioner:

Mr Rajeeve Mehra, Sr. Adv. with Mr Kanishk Ahuja and Ms Neha Bhatia, Advs

For the Respondent:

Mr R.P. Aggarwal and Ms Manisha Agrawal, Advs.


Additional Read:

Section 176 – Pawnee’s right where pawnor makes default. – If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale.

If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor.”

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decides a matter revolving around the Will of a deceased person.

Factual Background

Instant suit was filed by two brothers’ owners of the suit property. The brothers mentioned were brothers of Late Shanti Swaroop Gupta.

Defendants submitted that the deceased left a Will in the name of his son-in-law who also passed away. In the said Will, properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of defendants 1 to 3. The said defendants claimed ownership in the suit property to defendant 4 and conveyed it to defendant 5 and have further conveyed to the third parties.

Plaintiffs in the matter were 4 brothers of Late Shanti Swarup Gupta and claimed rights in the suit property by virtue of being Class-II legal heirs.

A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta which was granted in his favour.

Present suit aimed to seek a declaration of the impugned registered Will is null and void, void-ab-initio and illegal, the decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

Analysis, Law and Decision

Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court. 

Court noted that the plaintiffs claimed that Anand Prakash Verma, son-in-law of Late Shanti Swarup Gupta, obtained the probate of the Will by playing fraud by not disclosing about other legal heirs of the deceased and hence the Will be declared null and void ab initio and illegal and of no effect.

Further, the plaintiffs applied for revocation of the probate granted and thus the relief as sought in prayer (a) of the present suit is not maintainable before this Court but before the probate Court under Section 263 of the Indian Successions Act.

In Court’s opinion, no ground was found to grant an interim injunction.

Hence, present suit was not maintainable. [Niranjan Swarup Gupta v. Bimla Devi, 2021 SCC OnLine Del 3690, decided on 14-07-2021]


Advocates before the Court:

For the Plaintiffs:

Mr. Piyush Singhal, Advocate for the plaintiffs with Mr. Ankur Gupta, A.R. of the plaintiffs in person.

For the Defendants:

Mr. Chandan Rai Chawla, Advocate for D1 to D3.

Mr. Kaadambari, Advocate with Ms. Priyanka, Advocate for D4 Mr. Samrat Nigam, Advocate with Mr. Sudarshan Ranjan, Mr. H. Bajaj, Advocates for D5 and D6.


Additional Reading:

Probate

1. Official proof of a will. [Whart.]. 2. Means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the testator, [Section 2(f), Succession Act, 1925 (India)].

[Source: SCC Online Webedition]

Case BriefsCOVID 19District Court

District Court: The Court of Devanshu Sajlan, MM, NI Act-05/(West)/Delhi, allowed a mutual application moved on behalf of the parties for the recording of evidence through video conferencing.

Noting the fact that the matter is a ‘5-year-old’ matter, both the counsels mutually submitted that they wish to proceed with the matter and conduct evidence through VC.

Trial Court stated that both the parties were mutually willing in recording the evidence through VC, hence mutual oral application moved on behalf of the parties was allowed and the matter was directed to be listed for the recording of evidence through VC in terms of the following directions:

(i) An audio-visual recording of the examination of the complainant shall be preserved. An encrypted master copy with hash value shall be retained as a part of the record.

(ii) The evidence shall be transcribed through the mode of ‘screen sharing option’ on Cisco Webex, so that both the parties and their counsels can follow/ read the transcription in real time.

(iii) Upon the conclusion of the transcription of the cross-examination of the complainant, the complainant shall be provided with a soft copy of the transcript (bearing the digital signature of the undersigned court) through the official email- id of the court, and the complainant shall be required to affix his signature on the transcript after taking a print-out of the same.

(iv) After affixing his signature on the printed copy of the transcript, the complainant shall be required to send a scanned copy of the same on the official email-id of the court. The signed transcript will form part of the record of the judicial proceedings.

(v) Due to the present situation of COVID-19 pandemic, both parties are in agreement that it is not advisable to depute a ‘coordinator’ at the place from where the complainant shall appear for the recording of his evidence.

(vi) However, in order to prevent unnecessary tutoring or prompting, learned counsel for the complainant has submitted that he shall ensure that the complainant appears for the recording of his evidence through VC from his home; and not from the office premises/ chamber of the learned counsel for the complainant.

(vii) The complainant shall not use mobile phone/ any communication device while his evidence is being recorded.

(viii) Further, the complainant shall ensure that he has a proper internet connection so that there are no disruptions while recording his evidence.

(ix) While all endeavours shall be made to record evidence through VC, the court is cognizant of the fact that internet connectivity issues can be taken as an excuse for not answering questions put by the learned counsel to the witness and to indulge in witness prompting. Accordingly, in a scenario where the VC is disrupted during the recording of evidence, recording of evidence through VC may be discontinued and the matter would be adjourned if it appears that the witness/ complainant is deliberately disconnecting his internet connection.

[Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-06-2021]


Read the Summary of Videoconferencing Rules notified on 1-06-2020 by the Delhi High Court

The Rules are divided into 5 Chapters with 2 Schedules.

First Chapter contains the definitions.

In Chapter 2, the General Principles have been laid down which are under the following heads mainly:

  • General Principles Governing Video Conferencing
  • Facilities recommended for Video Conferencing
  • Preparatory Arrangements

Chapter 3, consists of the Procedure for Video Conferencing, which is laid down under the following heads:

  • Application for Appearance, Evidence and Submission by Video Conferencing
  • Service of Summons
  • Examinations of Persons
  • Exhibiting or Showing Documents to witness or accused at a remote point.
  • Ensuring Seamless Video Conferencing
  • Judicial remand, the framing of charge, the examination of accused and Proceedings under Section 164 CrPC

Chapter 4 is all about the General Procedure for conducting Video Conferencing. Following heads cover the said procedure:

  • Costs of Video Conferencing
  • Conduct of Proceedings
  • Access to legal Aid Clinics/Camps/Lok Adalat’s/Jail Adalat’s
  • Allowing persons who are not parties to the case to view the proceedings

Chapter 5 is the Miscellaneous Chapter with the following heads:

  • Reference to Words and Expressions
  • Power to Relax
  • Residual Provisions

Schedule I has pointers regarding the attire of the Advocates, Police Officials, Presiding Judge, Judicial Officers and Court Staff; Protocol, Remote point, etc.

Schedule II is with respect to the “Request Form for Video Conferencing”.

Read the detailed Rules here: NotificationFile_ULDC4UVQWZ9

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., granted interim injunction in favour of Tata Sons (P) Ltd. in a case where the defendant has got a domain name registered which is identical to the website of their e-commerce arm.

Plaintiffs’ Counsel, Pravin Anand submitted that plaintiff 1, holding company of the TATA Group of Companies was the owner and registered proprietor of the trademark TATA as well as the device mark TATA. Plaintiff 2 was a part of the TATA Group and engaged in the business of e-commerce, dealing in various products through its e-commerce platform www.tatacliq.com.

It was submitted that the above domain name was registered by plaintiff 2 and defendant 1 was the owner of the domain name: www.tatacliqsmart.com which is identical with the plaintiff’s website.

Adding to the above submissions, it was stated that the defendant had added the word ‘smart’ in the domain name which was not permitted. Defendant was selling the products of plaintiff 1 company on its website, which amounted to infringement of the plaintiffs registered trademark and copyrights.

Another contention was that defendant 1 through its website www.tatacliqsmart.com was selling various TATA products at throw away prices and there was a likelihood that by using the word TATA the defendant would be selling the products which were not actual products of TATA but fake products.

Bench tried opening the website www.tatacliqsmart.com and found that the website could not be opened, however, the screenshots produced by the plaintiffs show that the website was being used for online sale of several products including products of plaintiff 1. Hence it was apparent that defendant 1 had shut down the website only because the present suit was filed.

Court opined that the plaintiffs made a case of grant of interim injunction.

Matter to be listed before the Roster Bench on 19-07-2021. [TATA Sons (P) Ltd. v. Electro International, CS (Comm) 293 of 2021, decide on 28-06-2021]


Advocates before the Court:

For the Plaintiffs: Mr. Pravin Anand, Mr. Achuthan Sreekumar and Mr. Rohil Bansal, Advocates

For the Defendants: Mr. Mrinal Ojha and Mr. Debarshi Dutta, Advocates for Defendants Nos.2 and 3.


About Justice Subramonium Prasad:

Justice Subramonium Prasad graduated in B.Com. (Hons.) from Delhi University. He acquired his LLB degree from Campus Law Centre, Delhi University in the year 1990. Justice Prasad cleared the Advocate-On–Record exam in 1996 and started his independent practice. He became the Standing Counsel for the State of Tamil Nadu in the Supreme Court of India in 2003, a post he held till 2006. He was also the standing counsel for the custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, dealing with cases pertaining to the 1992 stock exchange scam. In October 2012, Justice Prasad was appointed as the Additional Advocate General for the State of Tamil Nadu in the Supreme Court of India. Justice Prasad was designated as a Senior Advocate by the Supreme Court of India in April 2015.

Over his career spanning 28 years, Justice Prasad has worked on several high profile matters, and has been involved in several reported judgements of the Supreme Court on various subjects like Constitutional Law, Tax, Corporate and Commercial Law, Criminal Law, Election Law, Service Law and Inter-State River Water Disputes.

Justice Prasad was appointed as an Additional Judge of the Madras High Court on 4.06.2018. He was transferred to Delhi High Court as an Additional Judge on 13.03.2020 and confirmed as a Permanent Judge of the Madras High Court on 17.03.2020.


Source: Delhi High Court Website

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., refused to interfere in the interim arbitral award whereby the sole arbitrator had allowed certain claims of the respondent in arbitration proceedings against the appellant-IRCTC.

IRCTC sought the setting aside of the interim arbitral award, whereby Sole Arbitrator had allowed certain claims of the Respondent in arbitration proceedings.

Summary of Facts

Respondent, a private railway catering service provider empanelled with IRCTC and entitled to be considered for allotment of temporary licenses on category ‘A’ trains. on 07th September, 2016, IRCTC published a limited tender inviting bids from empanelled parties for providing on-board catering services in respect of Train No. 12951- 52/12953-54 (Rajdhani/August Kranti Express) for six months.

On being the highest bidder, respondent was awarded a temporary license.

What was the dispute?

Welcome drink served to the passengers was provided by IRCTC. Later, IRCTC decided that:

  • service provider to provide welcome drink to passengers at no extra-charge receivable by it, and if unwilling to do so, it could opt to exit the temporary license;
  • where service provider was providing meals to passengers on account of short supply by IRCTC, it would be reimbursed production charges @ Rs. 84/- (inclusive of taxes) per passenger for lunch/dinner for 2nd and 3rd A.C. passengers.
  • where additional meals were being served due to late running of train for more than 2 hours, service provider would be reimbursed @ Rs. 26.40 + service tax, per passenger.

For the above-stated policy decision, DC raised the following concerns:

  • DC reasoned that welcome drink was not included in the tender document;
  • expressed reservation with regard to reimbursement of charges on account of late running of trains for more than 2 hours.
  • emphasised that having made a substantial investment in setting up a base kitchen and infrastructure, it was unwilling to exit from the contract.

Later, on 13-2-2017, respondent intimated that it would provide the welcome drink in case the same would not be provided by IRCTC, but it would be charging for services as well as production charges for the same. In the event of train being late, charge of Rs 30 would be applied along with service tax for additional meal.

From 5-03-2017, the above-said service commenced. Further, in the month of April, IRCTC sought an unconditional acceptance of the policy decision from respondent and unless unconditional acceptance would be tendered, it would be presumed that respondent are not interested in extension of the license.

Further, it was added that, for a certain period when respondent did not provide the welcome drink and IRCTC had to provide the same, the charges in that respect would be adjusted against the bills raised by respondent.

Respondent raised an issue with regard to the above-stated, asserting that it was not liable for the charges. It further raised the issue of non-payment of service tax on service charge for food and drink for the period from 19th December 2016 to 04th March 2017, as well as other charges allegedly payable to it.

Respondent unconditionally accepted the policy decision and a 6-month extension of license was granted.

Respondent invoked arbitration with regard to deductions made on account of welcome drink as well as other issues. Hence, a petition was filed under Section 11 of the Arbitration and Conciliation Act.

What all were the claims?

  • Claim towards non-payment for a welcome drink: DC contended that the welcome drink did not form part of the tender document. It should not be liable to serve the same or reimburse the expenses incurred by IRCTC for serving the same from 19th December, 2016 to 04th March, 2017.
  • Reimbursement of GST on production charges/supply of meals with effect from 1st July 2017.
  • Claim towards wastage of food due to cancellation/non-turning- up of passengers.

Two claims of respondent were allowed: (i) payment with respect to welcome drink; and (ii) reimbursement of GST on production charges.

IRCTC filed an objection against the impugned award before District Judge at Patiala House Court Complex, Delhi, however, the claim calculated by IRCTC exceeded its pecuniary jurisdiction as per the provision of Section 12(2) of the Commercial Courts Acts, 2015.

Analysis, Law and Decision

Whether welcome drink formed a part of initial period of contract?

As per the tender document which refers to CC No. 32 of 14 states the Clause 2.1 requires the service provider to deliver free of cost catering to passengers.

Arbitrator meticulously examined the tender conditions, circulars issued by Railway Board, IRCTC’s policy, contractual provisions and testimonies of the witnesses and went on to answer the question in negative.

CC No. 32 of 14 dated 6-08-2014 laid down rates of composite contract for the service provider and noting the admitted position that catering services under the tender were invited through the mode of partial unbundling of services, the learned Arbitrator noted that respondent was required to provide quotations for the sector-wise services mentioned in Annexures, which had no direct or specific reference to the condition of providing a welcome drink. In the said circumstances, it was concluded that the bid was not invited for the service of provision of welcome drink, and thus no charge was quoted towards the same.

Arbitrator gave a finding that there was no contractual stipulation in the tender document that specifically put the obligation on respondent to provide welcome drink and the said finding was held to be sound, credible and comprehensive by the High Court.

 Binding Effect of Respondent’s ‘unconditional acceptance’

the policy decision dated 07-02-2017 became a part of the contract between the parties has rightly been disallowed by the learned Arbitrator, by holding the same to be a fresh policy decision brought in by IRCTC post entering into the licensing agreement with DC. IRCTC could not give any justification for bearing the burden for the initial period between 19-12-2016 to 4-03-2017, despite it’s alleged understanding to the contrary. Its continued supply of welcome drink without expressly affirming that the contractual obligation for the job lay on DC, reaffirms the uncertainty of contractual obligations.

On the basis of the conduct and the testimony of witnesses, the Arbitrator rightly held that the actions of IRCTC exhibit ambiguity about DC’s contractually stipulated obligations, which were then redressed by way of the ex post facto policy decision.

GST

The GST laws has replaced the erstwhile indirect taxation regime.

Respondent had explained that since the trains were moving through several states and each state had a different rate of tax under State VAT laws, it was not feasible to account for the same, therefore production charges were paid inclusive of taxes.

Besides, no Input Tax Credit was available to IRCTC for VAT.

However, the position underwent a change with the introduction of GST laws.

GST is available as Input Tax Credit for paying the outgoing tax liability. With restructuring of indirect tax system, railways introduced CC No. 44/17 which specifically provides for GST on catering services in the subject trains. The bifurcation of production charges was done under the afore-noted circular and it was advised that GST is to be reimbursed to the service provider on submission of proof of deposit.

the said circular specifies the revised catering apportionment charges for the trains in question where catering charges are built-in to the ticket fare. The table thereunder shows ‘catering charges disbursed to the service provider’ both with and without 18% GST in separate columns.

 Hence, IRCTC’s contention that claim of service tax on production charges was identical and since the same had been given up, the claim of GST would not survive.

Further, it was added that,

Applicability of service tax on production charges is a different plea intertwined with determination of factual position of whether there is an incidence of service in the activity of production or if the nature of service could be held as a composite supply.

GST is clearly attracted on supply of food. 

The claim of service tax over and above the amounts agreed to, was premised on a different footing and cannot be read at par with the claim of GST.

Arbitrator has given a finding that GST has been deposited by DC and proof thereof had been furnished to IRCTC. Court found no fault in interpretation of terms of contract.

Hence no ground for interference was made out. [Indian Railway Catering & Tourism Corporation Ltd. v. Deepak & Co., 2021 SCC OnLine Del 3609, decided on 5-07-2021]


Advocates before the Court:

For the Petitioner: Mr Nikhil Majithia and Mr Piyush Gautam, Advocates

For the Respondent: Mr Naresh Thanai and Ms Khushboo Singh, Advocates


About Justice Sanjeev Narula

Born on 24th August, 1970. Studied at St. Mary’s Presentation Convent School, Jammu. Graduated in B.Sc.(Computer Science) from Kirorimal College, University of Delhi. He acquired Degree in Law in 1994 from Law Faculty, University of Jammu and got enrolled with Bar Council of Delhi in 1995.

Practiced primarily before the Delhi High Court and also before the Supreme Court of India, District Courts of Delhi and various judicial forums in Delhi. Advised and represented clients in litigation relating to Civil, Commercial, Corporate, Criminal, Customs, Indirect taxes, Service, Banking & Finance, Land &Property, Arbitration, Indirect Taxes, GST, Intellectual Property, Constitutional, Cyber, E-Commerce, Consumer and Family Laws.

He was appointed as Central Government Standing Counsel; Senior Standing Counsel (Customs and Indirect Taxes) and Standing Counsel for Central Information Commission (CIC) for the Delhi High Court, positions he retained until he was appointed as a Judge.

Appointed as Permanent Judge of Delhi High Court on 22nd October 2018.


Source: Delhi High Court Website

Case BriefsHigh Courts

Delhi High Court: The Division Bench of C. Hari Shankar and Subramonium Prasad, JJ., while addressing the matter expressed that:

Within the confines of the law, compassion must inhere in the approach of every court which practices equity.

Petitioner who had joined BSF in 1997 was detected with HIV+ in 2007.

Petitioner’s submission was that he was placed in the Low Medical Category due to which he was not given any promotion and at present, he was posted at the Headquarters, New Delhi since 2017.

Voluntary Retirement due to Transfer Order

He was aggrieved with the order of transfer at Cachar, Assam located on the Indo-Bangladesh Border as travelling to the said destination and discharging duties would be severely deleterious to his health and could also imperil his life, hence he applied for voluntary retirement.

“…rules applicable to the BSF permit BSF personnel to apply for voluntary retirement on 90 days’ notice.”

Petitioner had sought the retirement with effect from 30-09-2021 and also addressed a separate representation on 16th June seeking suspension of the transfer order.

Petition states that till date no decision on has been made on either of the above stated. Instead on 22-06-2021, a movement order was issued, relieving the petitioner of his duties at Delhi and directing him to report at Cachar, Assam on or before 5-07-2021.

In view of the above facts, the petitioner moved this Court.

Analysis, Law and Decision

High Court had queried as to whether the place to which the petitioner was being transferred, conformed to criteria A and B governing the places to which P-3 category personnel would be posted i.e. at which humidity level is less than 75 % round the year and which has access to specialist services nearby.

To the above-stated queries, the only submission of Mr Tiwari was that there happens to be a government hospital within 10 kms of the place to which the petitioner was posted. As to whether the said government hospital has the ART facilities to treat HIV+ patients, Mr Tiwari had no instructions, except to state that it’s a medical college.

Later, however, Mr Tiwari, respondent’s counsel did submit that the Government hospital had the facility to treat the HIV+ Patients, though he was still unaware of whether the required Mega Highly Active Retroviral Therapy facilities are available there.

Court was hoping that a compassionate approach would be adopted by the respondent, nevertheless, the respondents chose to contest the petition.

Bench stated that the MHA guidelines dated 28-09-2017 clearly require that P-3 category BSF personnel be posted at a place that has a humidity level of less than 75 % round the year and has access to specialist services nearby. To merely state that there is a medical college that has ART facility (which, too, is merely a telephonic instruction received during the course of hearing) at a distance of 10 km, in a place such as Assam, can hardly reflect compliance with the mandate of the guidelines.

Justice, it is well settled, has to be tempered with mercy and compassion. Justice to which mercy is alien is no justice at all.

In view of the facts and circumstances, Bench remarked that the petitioner did not insist upon staying in Delhi and very fairly, at the cost of his career agreed to voluntarily retire, hence the insistence of respondent on joining the duty at Cachar, in petitioner’s medical condition cannot be appreciated.

Therefore, petitioner was entitled to a stay of operation of the impugned order transferring him to Cachar as well as the movement order relieving him till the next date of hearing.

High Court noted that the writ petition was not accompanied with an application for stay and the power of the Court to pass appropriate orders, to aid the final order which can be passed by it, stood settled by Supreme Court as far back as in I.T.O. v. Mohd Kunhi, AIR 1969 SC 430.

Matter to be re-notified on 6-09-2021. [Kavendra Singh Siddhu v. Union of India, 2021 SCC OnLine Del 3602, decided on 2-07-2021]


Advocates before the Court:

For the Petitioner: Mr Aditya Hooda, Advocate

For the Respondents: Mr Jivesh Kumar Tiwari, Senior Panel Counsel with Mr Shoumendu Mukherji, GP for Union of India.


About the Bench:

Justice C. Harishankar

He was born in New Delhi on 4th May 1968, Justice C. Hari Shankar completed his schooling from St. Columba’s School and, thereafter, acquired B. Sc. (Hons) in Chemistry from Kirori Mal College and LL.B. from the Campus Law Centre, Delhi University in 1993. He has appeared, as arguing/senior counsel, before several judicial fora, including, but not limited to, the Supreme Court of India, High Courts of Delhi, Calcutta, Gujarat, Bombay, Allahabad, Punjab & Haryana, Madhya Pradesh, Rajasthan, Uttaranchal, Andhra Pradesh, Madras and Himachal Pradesh, the Central Administrative Tribunal, the Customs, Excise and Service Tax Appellate Tribunal, the Appellate Tribunal for Foreign Exchange, the Company Law Board, the AAIFR, the NCDRC, and the National Green Tribunal. His core areas of specialization were indirect taxes, along with allied subjects such as foreign exchange and COFEPOSA, and service law. He was on the Panel of Special Counsel representing the Central Government in the Supreme Court of India, and was also empaneled Counsel for the Directorate General of Anti-Dumping. He was regularly appearing on behalf of the Central Council for Research in Unani Medicine before the CAT and before this Court. On 20th August 2014, he was designated Senior Advocate by the Delhi High Court.

Justice Hari Shankar was appointed permanent Judge of this Court on 15th May 2017.


Justice Subramonium Prasad

Justice Subramonium Prasad graduated in B.Com. (Hons.) from Delhi University. He acquired his LLB degree from Campus Law Centre, Delhi University in the year 1990. Justice Prasad cleared the Advocate-On–Record exam in 1996 and started his independent practice. He became the Standing Counsel for the State of Tamil Nadu in the Supreme Court of India in 2003, a post he held till 2006. He was also the standing counsel for the custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, dealing with cases pertaining to the 1992 stock exchange scam. In October 2012, Justice Prasad was appointed as the Additional Advocate General for the State of Tamil Nadu in the Supreme Court of India. Justice Prasad was designated as a Senior Advocate by the Supreme Court of India in April 2015.

Over his career spanning 28 years, Justice Prasad has worked on several high profile matters, and has been involved in several reported judgements of the Supreme Court on various subjects like Constitutional Law, Tax, Corporate and Commercial Law, Criminal Law, Election Law, Service Law and Inter State River Water Disputes.

Justice Prasad was appointed as an Additional Judge of the Madras High Court on 4.06.2018. He was transferred to Delhi High Court as an Additional Judge on 13.03.2020 and confirmed as a Permanent Judge of the Madras High Court on 17.03.2020.

[Source of information: Delhi High Court website]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., in a very significant ruling issued guidelines with regard to the feeding of stray dogs and directions for their welfare.

In the present matter, plaintiff approached the Court to restrain defendant 1 from feeding the stray dogs near the entrance/exit of the suit property.

The above dispute was amicably settled between the parties.

Pragyan Sharma, Amicus Curiae, Manisha T. Karia, Counsel for Animal Welfare Board of India, Nandita Rao, Additional Standing Counsel for GNCTD and Counsels for both the parties urged before this Court to lay down the guidelines with respect to feeding of stray dogs.

Guidelines with respect to feeding of stray dogs

  • Animals have a right under law to be treated with compassion, respect and dignity. Animals are sentient creatures with an intrinsic value. Therefore, protection of such beings is the moral responsibility of each and every citizen including the governmental and non-governmental organisations.
  • Animals may be mute but we as a society have to speak on their behalf. No pain or agony should be caused to the animals. Cruelty to animals causes psychological pain to them. Animals breathe like us and have emotions. The animals require food, water, shelter, normal behaviour, medical care, self-determination.
  • Community dogs (stray/street dogs) have the right to food and citizens have the right to feed community dogs but in exercising this right, care and caution should be taken to ensure that it does not impinge upon the rights of others or cause any harm, hinderance, harassment and nuisance to other individuals or members of the society.
  • Feeding of the community dogs have to be done at areas designated by the AWBI in consultation with Resident Welfare Associations or Municipal Corporation. It is the duty of the AWBI and the RWAs to ensure and keep in mind the fact that community dogs live in „packs‘ and care should be taken by the AWBI and RWAs to see that each „pack‟ ideally has different designated areas for feeding even if that means designating multiple areas in a locality.
  • All Law enforcement authorities shall ensure that no harassment or hindrance is caused to the person feeding street dog at the designated feeding spot and to properly implement the AWBI Revised Guidelines on Pet dogs and street dogs dated 26th February, 2015.
  • It shall be the duty and obligation of every Resident Welfare Associations or Municipal Corporation (in case RWA is not available) to ensure that every community dog in every area has access to food and water in the absence of caregivers or community dog feeders in the said area.
  • Street dogs have to be fed and tended to at places within their territory which are not frequented, or less frequented, and sparingly used by the general public and residents.
  • Any person having compassion for stray dogs can feed the dogs at their private entrance/porch/driveway of their house or any other place not shared with other residents.
  • No person can restrict the other from feeding of dogs, until and unless it is causing harm or harassment to that other person.
  • Residents and the members of the RWA as well as the dog feeders have to act in harmony with each other and not in a manner which shall lead to unpleasant circumstances in the colony.
  • AWBI shall ensure that every Resident Welfare Association or Municipal Corporation (in case RWA is not available), shall have an Animal Welfare Committee, which shall be responsible for ensuring compliance of the provisions of the PCA Act and ensure harmony and ease of communication between caregivers, feeders or animal lovers and other residents.
  • Municipal Corporations at the request of the RWA and/or local authority or persons volunteering to take such responsibility shall be responsible for having the stray dogs registered/vaccinated/sterilised.
  • Vaccinated and sterilized dogs cannot be removed by the Municipality.
  • It shall be the duty of the SHO concerned to ensure peace and harmony is maintained amongst the residents of the area.
  • If any of the street/community dogs is injured or unwell, it shall be the duty of the RWA to secure treatment for such dog by the vets made available by the Municipal Corporation and / or privately from the funds of the RWA.
  • Street dogs perform the role of community scavengers and also control rodent population in the area thus preventing spread of diseases like Leptospirosis.
  • Street dogs provide companionship to those residents who feed them an act as their stress relievers
  • It is the responsibility of the community residents to get their dogs vaccinated against rabies every year to prevent the spread of rabies.
  • Every RWA should form Guard and Dog partnerships and in consultation with the Delhi Police Dog Squad, the dogs can be trained to make them effective as guard dogs and yet friendly to those who live in the colony.
  • The importance of street dogs‟ in our community is of great significance. Being territorial animals, they live in certain areas and play the role of guards by protecting the community from the entry of outsiders or unknown people. If these are removed from a certain area, the new stray dogs will take their place
  • If any of the street/community dog is injured or unwell, it shall be the duty of the RWA to secure treatment for such dog by the vets made available by the Municipal Corporation and/or privately from the funds of the RWA.
  • In order to check the overpopulation of street dogs in the community, it is also the responsibility of community to get their street dog population sterilized through an NGO engaged in Dog sterilization programme.

Succinct Conclusion

Duty and Responsibility 

  • RWA or Municipal Corporation and all Government authorities including enforcement authorities to provide all assistance and ensure that no hindrance is caused to the caregivers or feeders of community dogs. Jurisdictional SHO to ensure that peace and harmony is maintained amongst the residents, care-givers and community dog feeders and there is no harassment to any care-giver or community dog feeder from feeding community dogs in the manner specified.
  • RWA to ensure that every community dog in every area has access to food and water in the absence of caregivers or community dog feeders.
  • AWBI shall ensure that every RWA or Municipal Corporation, shall have an Animal Welfare Committee, which shall be responsible for ensuring compliance of the provisions of the PCA Act and ensure harmony and ease of communication between caregivers, feeders or animal lovers and other residents.
  • In case, any resident(s) or the RWA has any grievance with regard to any act of caregivers and feeders, in relation to feeding of community dogs, the said resident(s), shall, at the first instance seek redressal of their grievance through a process of dialogue and discussion through the Animal Welfare Committee failing which the said issue may be brought to the notice of the AWBI through the RWA.
  • Government of India (Ministry of Personal, Public Grievances and Pensions, Department of Personal and Training) by Office Memorandum dated 26th May, 2006 had notified that the Government servant who indulges in act of cruelty to animals will be making himself liable for action under Prevention of Cruelty to Animals Act. Besides, punishment under the Act, he would also make himself liable for action under CCS(Conduct) Rules for conduct unbecoming of a Government servant. The said Office Memorandum also added that while residents and Associations are free to address institutional agencies for redressal of their grievances, no resident/association will interfere with the freedom of other residents in tending animals etc.
  • Despite the clear position of law prohibiting cruelty to the animal including stray dogs, there is increasing tendency of the citizens to defy the same. Many times, the Government employees take up a position in complete violation of well settled law which has been dealt with in the Office Memorandum dated 26th May, 2006. Such act of defiance be noted down in the ACR file of Government employee. If any such complaint is received by AWBI, the same be sent to the concerned office for being placed in the ACR file of the Government employee for necessary action as per CCS Rules.
  • Need to spread awareness that even animals have a right to live with respect and dignity.
  • It would be appropriate to constitute a Committee to implement these Guidelines. Committee shall comprise of the following:

(i)  The Director, Animal Husbandry Department or his nominee.

(ii)  One Senior Officer to be nominated by all the Municipal Corporations.

(iii)  One Senior Officer to be nominated by Delhi Cantonment Board.

(iv)  One Senior Officer to be nominated by Animal Welfare Board of India.

(v)  Ms. Nandita Rao, Additional Standing Counsel, Govt. of NCT of Delhi as Convenor.

(vi)  Ms. Manisha T. Karia, Advocate for Animal Welfare Board of India.

(vii)  Mr. Pragyan Sharma, Advocate

The committee shall hold its first meeting within 4 weeks.

High Court directed that the above decision be sent to Delhi Judicial Academy to sensitize the judges about the directions laid down by this Court.[Dr Maya D. Chablani v. Radha Mittal, 2021 SCC OnLine Del 3599, decided on 24-06-2021]


Advocates before the Court:

For the Plaintiff: Abhishek Gusain and Sam C. Mathew, Advocates

For the Defendants: D.K. Pandey and Deepak Kumar, Advocates for defendants 1 and 3

Pragyan Sharma, Advocate as Amicus Curiae

Nandita Rao, ASC for GNCTD

Manisha T. Karia, Sukhda Kalra, Adarsh Kumar and Nidhi Nagpal, Advocates for Animal Welfare Board of India

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., addressed a matter with regard to offences under Section 138 of Negotiable Instruments Act, 1881.

Instant revision petition was filed against the decision passed by the Additional Sessions Judge dismissing the appeal filed by the petitioner and affirming the Judgment of Metropolitan Magistrate convicting petitioner for offences under Section 138 of Negotiable instruments Act.

Respondent 2 instituted a complaint against the petitioner for an offence punishable under Section 138 NI Act.

Petitioner submitted that he was to procure material for assembling the computers for supply to the complainant and the cheque was given as a security for the loan which was to be arranged by the complainant from other parties.

Analysis, Law and Decision

Bench noted that the acknowledged receipt stated that the petitioner had taken a loan of Rs 15,00,000 and in lieu of the loan he issued a cheque. The said receipt was signed by the petitioner.

Court for the above-stated decided that the fact that there was no witnesses and the fact that it does not state as to from whom the loan was being taken doesn’t persuade the Court to disbelieve the document.

The said cheque was returned with endorsement “Insufficient Funds”.

Receipt along with cheque made out a case under Section 138 NI Act. Presumption under Section 139 of the N.I. Act, therefore, arises in favour of the holder of the cheque i.e. the complainant and unless the contrary is proved, that the complainant has received the cheque for discharge, in whole or in part, of any debt or other liability.

Bench stated that the petitioner couldn’t rebut the presumption under Section 139 NI Act. He didn’t deny his signatures on the cheque and did not deny the fact that the receipt was given by him which acknowledged a sum of Rs 15,00,000 taken as a loan.

Further, it was also added that the mere ipse dixit of the petitioner and the statement in defence under Section 313 CrPC without any material does not rebut the presumption cast on the petitioner under Section 139 of the N.I. Act.

The fact that the loan was given in violation of Section 269 SS of IT Act does not mean that the Court cannot look into the documents at all.

Offence Section 269 SS IT Act at best makes an offence under Section 271 D of the IT Act but it does not mean that the loan of Rs.15,00,000/- has not been given by the complainant to the petitioner herein. 

High Court agreed with the Courts below that the initial burden cast against the petitioner had not been discharged.

In view of the above revision, the petition was dismissed. [Barun Kumar v. State of NCT of Delhi, 2021 SCC OnLine Del 3498, decided 25-06-2021]


Advocates before the Court:

For the Petitioner: Mr. Dheeraj Malhotra and Mr.Gaurav Gupta, Advocates

For the Respondents: Mr Hirein Sharma, APP for the State Mr. Shakeel Sarwar Wani and Mr. Himanshu Garg for respondents No.2 to 4

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refused to interfere with the award passed by the Arbitrator and dismissed a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996.

Instant petition was filed under Section 34 of the Arbitration and Conciliation Act.

Chronology of Events

Present petition was filed before the District Court and vide Order dated 3-01-2017 the Additional District Judge directed the parties to appear before the District and Sessions Judge.

Petitioner sought adjournment before the District and Sessions Judge on the ground that a Transfer Petition was pending adjudication before this Court. The Transfer Petition was disposed of as infructuous vide order December 5, 2017.

District Judge noted the respondent’s counsel that the petitioner has not conducted the matter with due diligence and good faith and noted that the question of due diligence not being within the jurisdiction of the said Court placed this matter before the Registrar General of this Court.

Factual Matrix

Petitioner and respondent entered into a non-exclusive Distributorship Agreement. Subsequently, parties entered into annual agreements for the years 2007, 2008 and 2009, and in terms of the said agreement, petitioner placed purchase orders on the respondent for the supply of goods, which in turn were sold by petitioner to its customers.

What led to the invocation of arbitration and adjudication of disputes?

Respondent stated that it had supplied goods to the petitioner against various purchase orders and raised invoices accordingly and further claimed that the petitioner had failed and neglected to make payments against invoices for sums aggregating Rs 54, 14, 934, which became due and payable.

Petitioner in view of the above, issued 9 cheques, however, the said cheques were dishonoured on presentation.

Cheques for security?

According to the petitioner the said cheques were issued at the instance of the respondent only as a security for any payment that may become due. In addition to the claim for unpaid invoices, the respondent also raised claims for non-supply of ‘C’ Forms and the consequent liability of sales tax before the Arbitrator.

Petitioner submitted that parties were having good business relations for the last 14-15 years, however, the petitioner started receiving complaints from its buyers regarding breakage of soft ferrite components. Even though the respondent assured to replace the broken goods with new ones, it failed to do so.

Petitioner’s stance on cheques being dishonoured

It was stated that the cheques were provided on the request of the General Manager (Marketing) of the respondent on June 26, 2009, for depicting the same in the books of Accounts for quarterly ending for security purposes as to cover the exposure limit as per Distributorship Agreement and on the assurance that they shall not be presented without consent of the petitioner. The cheques were not returned even after repeated requests of the petitioner, thereby forcing the petitioner to write a letter to its Bank, not to honor the said cheques.

Arbitrator concluded that a sum of ₹54,14,934/- was recoverable by the respondent/claimant from the petitioner against its outstanding dues.

The arbitrator held that a net amount of ₹36,92,423/- was recoverable by the respondent/claimant from the petitioner plus a sum of Rs.1,85,000/- towards the arbitration fee and actual expenses) along with interest @ 12.25% p.a. on Rs 1, 85, 000/-.

Analysis, Law and Decision

Firstly, the Court dealt with the contentions of petitioner’s Advocate Rohit Goel, that the award passed by the Arbitrator was liable to be set aside as it was in violation of Chapter XI of the CPC; it doesn’t bear signatures on each and every page and the award was typed in 3 different fonts on 3 different types of sheets.

Bench for the above submission stated that the reference made to Chapter XI was an error. Reference was intended to Part I of the CPC wherein Section 33 refers to a Judgment and a Decree. With regard to the award being typed in different fonts, the same shall not make the award invalid and the same was not supported by any rule/law.

Competency of Authorised representative of respondent – Laxmi Dutt Sharma (L.D. Sharma) sign, verify and file the claim petition in absence of any resolution was concerned, Bench referred to the reasons given by Arbitrator to determine the competency of the representative.

Petitioner’s counsel did not make any submission to contradict the arbitrator’s conclusion for the above-stated.

Arbitrator rightly relied upon the decision of Supreme Court in United Bank of India v. Naresh Kumar, (1996) 6 SCC 660, wherein it was held that on a reading of Order VI Rule 14 together with Order XXIX Rule 1 CPC, it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order XXIX by virtue of the office which he holds, can sign and verify the pleadings on behalf of the corporation. Additionally, de hors Order XXIX Rule 1 of CPC, a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf, which would be regarded as compliance with the provisions of Order VI Rule 14 CPC.

Supreme Court also held that there is a presumption of valid institution of a Suit once the same is prosecuted for a number of years.

Bench also found the Supreme Court’s decision laid above to be satisfying in the present case as the litigation between the parties had commenced in the year 2010 and already 6 years had already elapsed on the date of award.

High Court reiterated that Arbitrator was justified in his conclusion on the competency of L.D. Sharma to file the claim petition on behalf of the respondent company.

Absence of a complete, authenticated and duly stamped statement of account

Petitioner’s counsel as per the above-stated reason submitted that the arbitrator could not have granted the amount.

Bench stated that respondent had submitted that soft ferrite were supplied for which the amount was not paid by the petitioner. When the petitioner was informed that no supply would be made in the future if previous dues were not cleared, petitioner issued 9 cheques towards discharge of their part liability and the said cheques were dishonoured and returned.

Further, the Court noted that witness did not deny the purchase orders; invoices and cargo receipts. Arbitrator was right in relying upon Ex. R-66, which was a communication of the respondent as per which an amount of Rs 54,14,934 was payable and after adjustment of TOD, commission, the amount payable by the petitioner was Rs 40,95,221.

Arbitrator was justified in holding that the said amount was recoverable towards outstanding dues and after adjustment of certain amounts in favour of the petitioner, granted a sum of Rs.36,92,423/- to the respondent herein.

Whether respondent was justified in terminating the Distributorship Agreement?

Clause 8.1of the Distributorship Agreement also reads as under:

The Company reserves the right to terminate the agreement at any time at its discretion without assigning any reason therefor.”

Respondent had a justifiable reason for the respondent to terminate the Agreement in as such as that no payment of invoices worth Rs 54,14,934 was forthcoming from petitioner.

Petitioner, in an email, had itself expressed that it was not possible to continue to associate itself with the respondent.

Hence there was justification for the termination of the Distributorship Agreement by the respondent.

Further, L.D.  Sharma, CW-1 had stated during his cross-examination that the goods found defective were replaced, the defect in quality was of component T-10 due to reasons of saturation and variation in AL. Petitioner had suffered no loss.

Nothing on record was brought to show that the petitioner had to pay the amount claimed as damages to its customers.

High Court found Advocate Bharat Chugh’s reliance on Associate Builders  v. Delhi Development Authority, (2015) 3 SCC 49  justified.

Bench also stated that Supreme Court followed the test of judicial review as laid down in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, in a plethora of judgments and the recent one being Anglo American Metallurgical Coal Pty. Ltd v. MMTC Ltd.,  (2021) 3 SCC 308.

In view of the above discussion, the petition was dismissed.[Pragya Electronics (P) Ltd. v. Cosmo Ferrites Ltd., 2021 SCC OnLine Del 3428, decided on 23-06-2021]


Advocates before the Court:

For the petitioner: Mr. Rohit Goel Advocate

For the Respondents: Mr. Bharat Chugh & Mr. Sujoy Sur, Advocates

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while allowing in part the revision petition filed challenging the Family Court’s maintenance order made a very crucial observation, that father’s obligation to maintain a child cannot come to an end once the child turns 18 years of age. Read more to know why.

Instant petition was directed against the Family Court’s Order declining maintenance to the petitioner 1/wife and granting maintenance only to petitioner 2 and 3.

Since the interim maintenance order was an interlocutory order, the respondent’s counsel submitted that the present application was barred under Section 397(2) CrPC.

Further, the counsel for the petitioners contended that after holding that each of the children is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent.

Analysis, Law and Decision

High Court stated that since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and fact which are to be proved by the parties.

Further, Bench elaborated with regard to other contention of children being entitled to 25% of salary earned by respondent, that, petitioner 1/wife who was earning and was equally responsible for the child can take care of the balance as respondent was married again and had a child from the second marriage.

Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage.

Petitioner 1/Wife was working as an Upper Division Clerk in Delhi Municipal Corporation earning Rs 60,000 per month and the two children were living with the mother and after the age of majority, entire expenditure of petitioner 2 was being borne by petitioner 1 as petitioner 2 turned major and was still studying but was not earning anything.

Therefore, the family court failed to appreciate that since the respondent was making no contribution towards the maintenance of petitioner 2, the salary earned by petitioner 1 was not sufficient to maintain herself.

Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner 2 is not yet over and the petitioner 2 cannot sustain himself.

Bench held that it cannot be said that the obligation of the father would come to an end as the son reached 18 years of age and the entire burden of his education and other expenses would fall only on the mother.

Adding to the above analysis, it was stated that It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.

Hence, Court granted a sum of Rs 15,000 per month as interim maintenance to petitioner 1 from the date of petitioner 2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier.

In view of the above, the revision petition was allowed in part and disposed of. [Urvashi Aggarwal v. Inderpaul Aggarwal, 2021 SCC OnLine Del 3242, decided on 14-06-2021]


Advocates before the Court:

For the Petitioners: Mr Praveen Suri and Ms. Komal Chibber, Advocates

For the Respondent: Mr Digvijay Rai and Mr. Aman Yadav, Advocates

Alternate Dispute ResolutionCase BriefsHigh Courts

Delhi High Court: J.R. Midha, J., in view of serious doubts on the independence of sole arbitrator as named in the arbitration agreement, appointed another independent arbitrator.

Petitioner sought appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act.

Parties had agreed for reference of disputes to the sole arbitrator, Sachin Dev Sharma, Chartered Accountant as per the arbitration agreement between them.

Petitioners Counsel submitted that the sole arbitrator was not competent to act as an arbitrator in terms of Section 12(5) read with 7th Schedule of the Arbitration and Conciliation Act as the named arbitrator was a consultant/advisor to the respondent and a director and shareholder in PEB Steel Lloyd (India) Ltd.

This Court vide an Order in March had directed the arbitrator to file an affidavit with respect to his relationship between the parties in terms of the Seventh Schedule under Section 12(5) of the Arbitration and Conciliation Act, wherein he admitted that he was an independent director in PEB Steel Lloyd (India) Ltd. in which respondent 1 was also a director.

Further, respondent 1 submitted that the petitioner had agreed to the named arbitrator cannot wriggle out of the arbitration agreement.

High Court in view of the above submissions, held that it had serious doubt to the independence of named arbitrator and hence in the interest of justice it would be appropriate to appoint an independent arbitrator to adjudicate disputes between the parties.

Saurabh Kirpal, Senior Advocate was appointed as the sole arbitrator and was directed to ensure compliance with Section 12 of the Arbitration and Conciliation Act before commencing the arbitration. [Monica Khanna v. Mohit Khanna, 2021 SCC OnLine Del 3421, decided on 18-06-2021]


Advocates before the Court:

For the Petitioners: Abhay Mahajan, Advocate

For the Respondents: Amit Mishra, Advocate

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

Appellant’s who were arrested for participating in protests against the Citizenship Amendment Act, 2019 and in custody since 29-05-2020, preferred the appeal under Section 21(4) of National Investigation Agency Act, 2008 impugning order of Special Court rejecting her bail application registered under provisions of Penal Code following to the addition of provisions of Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Why was Devangana Kalita & Natasha Narwal in custody? | State against Devangana Kalita & Natasha Narwal. Why?

Larger Conspiracy

State essentially alleged that the appellant’s as a part of women’s rights group called Pinjra Tod and other activistic groups participated in a ‘larger conspiracy’ to commit certain offences which led to violence and rioting in the North-East Delhi between 22-02-2020 and 26-02-2020.

Findings and Analysis

  • Purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the Court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet.
  • In Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39/2021, Court analysed the provisions engrafting ‘terrorist act’ and ‘conspiracy’ or ‘act preparatory’ to the commission of a terrorist act.
  • The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences.
  • Right to Protest: Contours of legitimate protest have been explained in the Supreme Court decision of Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324. In the said decision it was expressed that: “legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated.”
  • In the charge-sheet, Court did not find any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA or an act of ‘raising funds’ to commit a terrorist act under Section 17 or an act of ‘conspiracy’ or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.
  • Bail Principles: The said principles were in detail discussed in the decision of Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39 of 2021, a brief reiteration of the same was done in the present matter.

Devangana Kalita | Conclusion

  1. Right to Protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of UAPA, unless ingredients of offences under Sections 15,17 and 18 of the UAPA are discernible from factual allegations.
  2. Shorn off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA.
  3. It appeared that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity. If such blurring gains traction, democracy would be in peril.

Appellant in view of the above discussion was granted regular bail subject to conditions.[Devangana Kalita v. State, 2021 SCC OnLine Del 3255, decided on 15-06-2021]

Natasha Narwal | Conclusion

  1. No specific, particularised or definite act was attributed to the appellant, apart from the fact that she engaged herself in organising anti-CAA and anti-NRC protests when riots and violence broke out in certain parts of North-East Delhi.
  2. State cannot thwart grant bail merely by confusing issues.
  3. Opinion: Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, at worst were evidence that the appellant participated in organising protests, but no conclusion of a specific or particularised allegation that appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.

The Appellant was granted regular bail subject to conditions.

[Natasha Narwal v. State (NCT of Delhi), 2021 SCC OnLine Del 3254, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Adit S. Pujari, Ms. Tusharika Mattoo & Mr. Kunal Negi, Advocates.

For the Respondent: Mr. Amit Mahajan, Mr. Amit Prasad and Mr. Rajat Nair, SPPs for the State along with Mr. Dhruv Pande & Mr. Shantanu Sharma, Advocates.


Also Read:

Del HC | Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted bail to Asif Iqbal, who was booked under provisions of the UAPA Act for his role in the Delhi Riots during the anti-CAA protest last year.

Asif Iqbal | Mastermind behind Delhi Riots?

Asif Iqbal Tanha, a 25-year old student filed the instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail as he was in judicial custody since 19-05-2020 under provisions of Penal Code, 1860, Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Appellant was alleged to be one of the main conspirators as well as instigators behind the riots that occurred in North-East Delhi and played an active role in the conspiracy.

Section 15 of Unlawful Activities (Prevention) Act, 1967

The said section defines ‘terrorist act’ and Section 18 provides for ‘punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act’, the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.

Right to Protest | Part of Fundamental Rights under Constitution of India

48. …Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right.”

“…Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views.”

“31. The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India.”

  • Ramlila Maidan Incident, In re [(2012) 5 SCC 1], the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights

Bench noted that in the present matter, there was nothing to show that Government prohibited the protest.

‘Terrorist Act’ under Section 15 UAPA

The said phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omission that fall squarely within the definition of conventional offences.

Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

State’s attempt to show accusation against appellant prima facie true: Fail. How?

  • No allegation leading to appellant being the leader of all the co-conspirators.
  • Appellant was stated to be a member of SIO and JCC, both are not banned organisation or terrorist organisations listed in First Schedule of UAPA.
  • The anti-CAA protest did not extend to the whole of NCT of Delhi, therefore it would be a stretch to say that the protest affected the community at large for it to qualify as an act of terror.
  • No arms, ammunition and other articles used as weapons were recovered from or at the instance of the appellant.
  • Foundations of nation stand on surer footing that to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.
  • State’s submission based upon inferences drawn by the prosecuting agency and not upon factual allegations.
  • Protest in which the appellant participated was neither banned nor outlawed and the same was monitored by law enforcement agencies.

High Court found absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under Section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.

Bench opined that no offence under Sections 15, 17 or 18 UAPA was made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under Section 43D(5) UAPA do not apply.

With regard to outlining the consideration for bail, Court referred to the following significant decisions of the Supreme Court in:

Therefore, applying the well-worn principles of bail, Court held that it is not prima facie convinced of the veracity of the allegations so made and hence granted regular bail subject to conditions.[Asif Iqbal Tanha v. State (NCT of Delhi), 2021 SCC OnLine Del 3253, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Siddharth Aggarwal, Advocate with Ms. Sowjhanya Shankaran, Mr. Siddharth Satija, Mr. Abhinav Sekhri & Ms. Nitika Khaitan, Advocates

For the Respondent: Mr. Aman Lekhi, ASG alongwith Mr. Amit Mahajan, Mr. Rajat Nair and Mr. Amit Prasad, SPPs with Mr. Ujjwal Sinha, Mr. Aniket Seth, Mr. Ritwiz Rishabh, Ms. Riya Krishnamurthy and Mr. Dhruv Pande, Advocates.

Sh. P. S. Kushwaha, DCP with Sh. Alok Kumar, Addl. DCP, Special Cell, Insp. Lokesh Kumar Sharma and Insp. Anil Kumar.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., dismisses the suit filed regarding the rollout of 5G technology on observing that the suit was filed with the motive of gaining publicity and also the Court reasoned out various defects in the plaint.

I.A. No. 6905/2021 under Section 149 of CPC

Plaintiffs submitted that if the justice dispensation system requires 15-20 years for settlement of a suit, Court has lost the moral as well as legal right to require the Court fees to be paid upfront at the beginning of the suit.

Plaintiffs sought time to pay the Court fees under Section 149 read with Section 148 CPC because of COVID-19 constraints.

Court while allowing the above application and granting deferment for whatever period of time this Court deemed it fit that the quantum of Court fees as yet to be decided by this Court, thereby allowing fair opportunity to plaintiffs.

Findings

Plaintiffs valued the suit for purpose of jurisdiction at Rs 2 crore.

Law is well-settled that the valuation of the suit for the purpose of jurisdiction and Court fees has to be same.  

Section 149 of Code of Civil Procedure empowers this Court to extend the time to pay the deficient Court-fees. However, the challenge sought by the plaintiffs into the validity of the Court fees Act is not permissible under Section 149 CPC. Therefore, no case for determination of the Court fees was made out.

Bench held that the application was misconceived, frivolous and unsustainable. The law with respect to valuation and computation of Court-fees is well settled. However, the plaintiffs have taken a stand not to pay the Court-fees in utter disregard of well-settled law.

I.A. No. 6909/2021 under Section 80(2) of CPC

Plaintiffs sought dispensation from issuing notice to the State entities under Section 80(1) of CPC on the ground that same was an empty formality.

Plaintiff submitted that since the 5G roll out has not actually happened, though – equally damaging – trials involving the human population have started (which is not the same as doing trials on pigs and/ or rats, and/or in an empty Thar Desert, or on the employees of the private defendants) – so that not even one single human life is lost by these trials, the plaintiffs are agreeable if this Court, while waiving the requirement of Section 80(1) of the CPC, grants a fair opportunity to the State Defendants to show cause as to why no interim relief be granted.

Findings

It was stated that serving notice under Section 80(1) CPC to the Government is mandatory before institution of the suit against the Government.

In the Supreme Court decision of State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu, AIR 1965 SC 11, wherein it was observed that the object of the notice under Section 80(1) CPC is to give an opportunity to the Government to reconsider the matter and to make amends and settle the claim out of Court. The Supreme Court further observed that failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit

In the State of A.P. v. Pioneer Builders, A.P., (2006) 12 SCC 119, the Supreme Court held that service of notice under Section 80 is a condition precedent for the institution of a suit against the Government. The Supreme Court further observed that the object of Section 80 is the advancement of justice for securing public good by avoidance of unnecessary litigation.

Another, Supreme Court decision in State of Kerala v. Sudhir Kumar Sharma, (2013) 10 SCC 178, the Supreme Court observed that a suit filed without compliance of Section 80(1) of the Code of Civil Procedure cannot be regularized by simply filing an application under Section 80(2) of the Code of Civil Procedure

In view of the above discussion, it was held that notice under Section 80(1) is an empty formality that is contrary to the well-settled law and hence rejected.

I.A. No. 7001/2021 under Section 91(1)(b) of CPC

Plaintiff sought leave to institute the suit stating that the matter concerned public health and EMF radiation caused by cellular telecommunication technology must have caused harm to many members of general public.

I.A. No. 7002/2021 under Order VIII Rule 1 of CPC

Further, the plaintiff sought leave to sue on the ground that colossal harm is eminent to general public by the rollout of 5G Technology and the suit involved issues regarding the public health of the present as well as future generations.

Findings

Court found the plaintiff’s suit defective and not maintainable for the following reasons:

  • Order VI Rule 2(1) of the Code of Civil Procedure: Plaintiffs did not comply the said provision by not filing the statement in concise form and also by incorporating the evidence in the plaint.
  • Plaintiffs did not comply with Order VI Rule 9 of the Code of Civil Procedure and reproduced the documents in the plaint which was not supposed to be done.
  • Plaint stuffed with unnecessary scandalous frivolous and vexatious averments that are liable to be struck down under Order VI Rule 16 of the Code of Civil Procedure.
  • No compliance of Order I Rule 3 of CPC in joining 33 defendants in the suit.
  • Plaint not verified under Order VI Rule 5 of the CPC.
  • Plaintiffs have no personal knowledge of the averments made in the plaint and the suit is solely based upon information and legal advice.
  • Plaintiffs never approached the defendants claiming any right, hence maintainability of declaratory reliefs was doubtful.
  • The twin requirements of Section 39 of Specific Relief Act are the existence of an obligation of the defendant towards the plaintiff and the breach thereof by the defendant. Both these requirements are not fulfilled.
  • Suit has not been valued properly for the purpose of Court fees.
  • No mandatory notice given under Section 80(1) of CPC.

Bench also remarked that the observation of Justice Rajiv Sahai Endlaw in one of the cases that: This is a classic textbook case of, how not to draft a plaint, which should be taught in law colleges and to young lawyers so that such bloopers in drafting of pleadings, damaging to one’s own client, are avoided.’ is fully applicable in the present matter

Conclusion

High Court concluded stating that the plaintiffs abused and misused the process of law which resulted in a waste of judicial time. Hence, Rs 20 lakhs as costs were imposed on the plaintiffs.

Plaintiffs filed the suit only to gain publicity which was evident from the fact that plaintiff 1 circulated the video conferencing link of the Court on her social media accounts which resulted in disruption of Court proceedings.

“Court proceedings were disrupted thrice by the unknown miscreants who continued the disruptions despite repeated warnings.”

Court issued notice to such miscreants and listed matter for reporting compliance on 05-07-2021.[Juhi Chawla v. Science and Engineering Research Board,  2021 SCC OnLine Del 3030, decided on 04-06-2021]


Advocates before the Court:

For the plaintiffs:

Deepak Khosla, Advocate along with Juhi Chawla Mehta, plaintiff 1 and Veeresh Malik, plaintiff 2.

For the Defendants:

Tushar Mehta, SGI with Amit Mahajan CGSC, Kanu Aggarwal and Dhruv Pande, Advocates for D-2/DoT/UOI

Anurag Ahluwalia, CGSC with Abhigayn Siddhant and Nitnem Singh Ghuman, Advocates for D-7/Indian Council of Medical Research

Arjun Mitra, Advocate for D-23/Indraprastha Institute of Information Technology Delhi

Kapil Sibal, Senior Advocate with Manjul Bajpai and Shashwat Bajpai, Advocates for D-25, D-26, D-27 and D-29/Cellular Operators Association of India.

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., decides a matter covering various aspects of the arbitration agreement.

Instant petition under Section 11 of the Arbitration and Conciliation Act sought appointment of a Sole Arbitrator.

Respondent was called upon to file a reply to the petition vide Order 08-02-2021, but no reply was filed.

Factual Matrix

Parties entered into a Memorandum of understanding on 1-01-2020 with the objective of promoting their respective business interests and profitability.

In the MoU it was provided that both the parties agree that they shall not attempt to solicit, contact or attempt to contact employees of each other for the purpose of offering employment.

Disputes arose as MSD breached its obligations under Clause 2.4 as explained above. MSD also indulged in various criminal activities which violate the terms of MoU, such as tampering with the servers of IMZ, forcibly gaining access to the computer database and electronic records of IMZ, sending emails to clients of IMZ and further making a false allegation against the directors and employees of IMZ.

On being aggrieved with the above, IMZ invoked the arbitration. Since MSD did not respond to the notice of Delhi International Arbitration Centre, IMZ approached this Court by way of the present petition.

Analysis

High Court while analyzing the matter stated that in exercising jurisdiction under Section 11, Court needs to only examine if there is an existence of the arbitration agreement and whether there is the existence of arbitral disputes.

Supreme Court in the decision of Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1, observed that “the rule for the Court is ‘when in doubt, do refer”.

Therefore, it was noted that only in cases when ex-facie, the document appeared to be fabricated, that the Court would make a judicial enquiry. Mere allegation of fraud is not enough.

Bench stated that the purported veracity of the document in the present case, though disputed by MSD, was not sufficient to hold that the document is fraudulent, or that the Court should not proceed to appoint an Arbitrator.

Non-Compliance of Pre-Arbitration Procedure 

Arbitration clause stipulated that the parties shall attempt to resolve the disputes mutually through negotiations, falling which the same shall be referred to and decided by a sole arbitrator.

Bench found it to be surprising and irreconcilable that, on hand, MSD initiated criminal proceedings by filing an FIR against IMZ and on the other hand, it looked forward to mutually resolve the disputes through negotiation.

Moreover, in Court’s opinion, having regard to the ongoing litigation between directors of the parties before the NCLT, criminal proceedings, and conduct of the parties, relegating them to mutual negotiation to resolve the disputes would be an empty formality

 In such a situation which arose in the present matter, insistence on negotiation as a pre-condition to arbitration should not get in the way of the dispute resolution process agreed upon between the parties.

Non-payment of stamp duty on a commercial contract would invalidate the arbitration agreement?

High Court stated that the issue of stamping also stands covered by N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2021 SCC OnLine SC 13, wherein the Supreme Court in clear and unequivocal terms overruled the decisions in SMS Tea Estates (P) Ltd. v. Chandmari Tea Company (P) Ltd.,(2011) 14 SCC 66, and Garware Wall Ropes Ltd. v. Coastal Marine Constructions and Engg. Ltd., (2019) 9 SCC 209, however, the same was affirmed in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.

Thus, Court opined that the plea of agreement being unstamped wouldn’t prevent the Court in appointing an arbitrator while exercising jurisdiction under Section 11 of the Act.

IMZ established that the contingencies provided under Section 11(6) of the Act were satisfactorily made out. Hence the present petition was allowed.

Shashank Garg, Advocate was appointed as the Sole Arbitrator to adjudicate the disputes that arose between the parties under the MoU.

Appeal was allowed in view of the above terms. [IMZ Corporate (P) Ltd. v. MSD Telematics (P) Ltd., 2021 SCC OnLine Del 3016, decided on 4-06-2021]


Advocates before the Court:

For Petitioner: Mr Nikhil Malhotra, Advocate

Mr Devadatt Kamat, Senior Advocate with Mr Sumeet Lall,

Mr Sidhant Kapoor and Mr. Javedur Rehman, Advocates.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., while addressing a revision petition in regard to maintenance of wife, held that

Magazine covers are not sufficient evidence to demonstrate that the respondent /wife can sustain herself.

Instant revision petition is against the Family Court’s decision directing the husband to pay maintenance at the rate of Rs 17,000 per month to the wife.

The daughter of husband and wife in the present matter passed away in the year 2010 and at present, they have two major adult sons who are well settled.

Parties have been living separately since the year 2012. Wife filed the petition under Section 125 CrPC for grant of maintenance stating that she was treated with cruelty and was thrown out of the house in the year 2012 and she was unable to sustain herself, hence required maintenance from the husband.

It was stated that the husband was earning an income of Rs 50,000 from the post of Head Constable and also had some agricultural land from which he was earning an income.

Wife claimed Rs 25,000 per month as maintenance.

Husband submitted that the wife was a working lady earning handsomely. Adding to this he stated that she participates in Jagrans and does TV Serials and was in a position to take care of herself. Both the parties filed their respective affidavits of income.

Counsel for the petitioner submitted that as per the Statement filed by the wife under Section 165 of the Evidence Act, she herself stated that she was doing modelling and it was for her to establish that income earned by her was so less that she couldn’t maintain herself.

Petitioners counsel also presented certain magazine covers and newspaper articles to establish that the respondent was employed and capable of maintaining herself.

Bench stated that law laid down by Supreme Court decision in Rajnesh v. Neha, (2021) 2 SCC 324, indicates that proceedings under Section 125 CrPC have been enacted to remedy/reduce the financial suffering of a lady, who was forced to leave her matrimonial house, so that some arrangements could be made to enable her to sustain herself.

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes. 

Court noted that in the present matter, petitioner relied only on the statement given by the respondent/wife under Section 165 Indian Evidence Act. In the said statement she clearly mentioned her employment adding that her income was very low on which her sustenance was difficult.

In view of the above position, the onus to show how much the respondent/wife was earning shifts on the petitioner to show that it was enough for her sustenance. But petitioner failed to bring any evidence.

Court reiterated the Supreme Court’s position that newspaper clippings, etc. are not evidence.

 It was noted that the petitioner was working as an ASI and both the children were well settled, and he was not under any obligation to maintain his children but the wife.

On asking about divorce, it was stated that the petitioner’s children did not want him to take divorce from his wife, hence it becomes the moral and legal obligation of the husband to maintain his wife.

Bench while dismissing the revision petition held that no material was placed on record to show that respondent/wife was able to sustain herself. [Jaiveer Singh v. Sunita Chaudhary, 2021 SCC OnLine Del 1488, decided on 05-04-2021]


Advocates before the Court:

For the Petitioner: Neerad Pandey, Advocate

For the Respondent: D.K. Sharma, Advocate

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., addressed a matter regarding passing off and granted interim relief.

Plaint alleged that defendant 1 was passing off its products as those of the plaintiffs by using the label which was confusingly and deceptively similar to that of the plaintiffs.

The product sold and manufactured by the plaintiff is “KESRI MARHAM” and the plaintiff claimed to have adopted the same in 1998.

Plaint asserted that the label of the plaintiffs reflected a unique trade dress with individual components being placed at specific locations.

Defendant is engaged in manufacturing and marketing of ayurvedic product including pain relief balms, dant manjan, creams etc. The said balm was sold under the name “Paharhi Garhwali Balm”.

Identical 

Prima facie on a bare glance of the labels of the defendant and plaintiffs, it was indicated that there had been a conscious effort to copy the plaintiff’s labels, to the extent that the colours used by the defendant, placing of various features on the label and the photographs representing the ailments which the balm was expected to alleviate are also identically placed.

Therefore, in view of the above discussion and finding, prima facie it appeared that defendant was passing off its products as those of the plaintiffs.

High Court opined that plaintiffs made out a good prima facie case for grant of ex-parte ad interim relief.

Bench also added that in case the relief was not granted and the market was permitted to be flooded with defendant’s product, prejudice to the plaintiffs would be irreparable.

Plaintiffs are directed to comply with the provision of Order XXXIX Rule 3 CPC within the time stipulated in that regard. [B C Hasaram and Sons Ayurvedic Pharmacy v. Pahari Garhwali Ayurvedic Pharmacy, 2021 SCC OnLine Del 3057, decided on 17-05-2021]


Advocates before the Court:

For the Plaintiffs: Ms. Tusha Malhotra & Ms. Yamini Jaiswal, Advs