National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

   

National Consumer Disputes Redressal Commission (NCDRC): While deciding the instant revision petition under Section 21(b) of Consumer Protection Act, 1986, the Bench of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee, J., (Member) observed that points of law regarding “limitation” and “consumer” have to be applied on the facts of the case, and the facts can only be determined by leading evidence before the forum of first instance (in rare cases by filing additional evidence before the forum of appellate jurisdiction) and should not be raised in revision just for the sake of prolonging the lis.

Facts and Legal Trajectory of the Case: The complainant (respondent in the instant petition) insured his truck with the insurance company for an assured sum of Rs 9,60,000 for the period from 04-10-2006 to 03-10-2007. During the subsistence of the policy, the truck met with an accident on 19-10-2006. The complainant claimed loss of Rs 6,25,020. The surveyor appointed by the insurance company assessed the loss at Rs 2,30,000 which was intimated to the complainant via a letter dated 28-04-2010. The letter stated that the insurance company will settle the claim at Rs 1,04,316 and sent therewith pre-receipted vouchers for discharge in full. Aggrieved with the quantum of the settlement, the complainant filed a complaint before the District Commission on 08-06-2010.

Upon perusal, the District Commission assessed the loss at Rs. 5,27,770 and ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000. The insurance company appealed to the State Commission which made its own independent appraisal of the case and assessed the loss at Rs. 4,50,000. It ordered the insurance company to pay the said sum to the complainant along with compensation of Rs. 20,000/- as ordered by the District Commission within two months of receipt of its Order, failing which it would carry interest at the rate of 15% per annum till payment.

Aggrieved with the decision, the insurance company then approached the NCDRC.

Contentions: Counsels for the insurance company argued that the surveyor's report should not have been overruled by the State Commission. They also contended that the case was barred by limitation since the accident occurred on 19-10-2006 and the complaint was filed on 08-06-2010 which was beyond the two-year period stipulated under the Consumer Protection Act, 1986.

The counsel further contended that the vehicle was purchased under a hire-purchase agreement which shows that the same was being used for commercial activities and therefore the complainant was not a ‘consumer' under Section 2(1)(d) of the 1986 Act.

Per contra, the counsels for the complainant argued that the question of limitation was not raised by the insurance company either at the forum of original jurisdiction (District Commission) or at the forum of appellate jurisdiction (State Commission).

Observations: Perusing the trajectory of the dispute, the Bench made the following observations-

  • The District Commission had cogent reasons to overrule the surveyor's report. The Bench noted that the District Commission made its appraisal after examining the entire evidence which also included the vouchers relating to the repairs undertaken on the accident-hit vehicle. The State Commission then took due note of the surveyor's report as well as of the District Commission's appraisal and after considering the entire evidence made its own assessments.

  • The Bench pointed out that the counsels of the insurance company could not explain the reasons that when the surveyor had assessed the loss at Rs. 2,30,000 what caused the insurance company to settle the claim at only Rs. 1,04,316. The counsels also could not explain the reasons that when the accident occurred in 2006, what caused the inordinate delay of sending intimation of settlement in 2010 i.e., after over 3.5 years; and whether the delay was on the part of the insurance company or on the part of the complainant or both.

  • Vis-a-vis the contention regarding limitation, the Bench upon examining the material placed before itself, observed that the insurance company intimated the settlement of claim via letter dated 28-04-2010. The complainant filed his complaint on 08.06.2010 which was well within the limitation period of two years provided under Section 24-A (1) of Consumer Protection Act, 1986. “The argument of the counsel that the limitation should be counted from the date of the accident is patently irrational, there is a distinct distinction between the date on which the accident occurred and the date on which the cause of action arose”.

  • Regarding the contention that the complainant is not a consumer as per the concerned provisions of the 1986 Act, the Bench pointed out that Section 2(1)(d) precludes a person who hires or avails of any service for any “commercial purpose” but the explanation thereto makes it clear that “commercial purpose” does not include services availed exclusively for the purposes of earning livelihood by means of self-employment. The Bench also noted that this objection was neither raised before the District Commission nor in appeal before the State Commission. “In other words, it is patently clear that the opportunity to rebut the same was not duly provided to the complainant before the District Commission or even before the State Commission”.

  • It was further observed that in matters where it is necessarily to be seen whether the activity undertaken was for commercial purpose or whether it was exclusively for the purpose of earning a livelihood through self-employment; much depends upon the facts. Thus, adequate opportunity to both sides must be made available so that they may furnish out the relevant facts and evidence.In such cases if the plea is not raised at the appropriate stage when it ought to have been raised and where the opportunity to furnish an adequate rebuttal in that regard could have been availed by the other side, it becomes highly doubtful whether such a plea seeking ouster of the jurisdiction may be raised at a belated stage”.

Conclusion and Decision: With the afore-stated observations, the Bench concluded that there was no misappropriation of evidence on the part of the State Commission requiring a de novo re-appreciation in revision. Given the facts of the instant case, the award appears to be just and equitable. There is no jurisdictional error or legal principle ignored or erroneously ruled or miscarriage of justice in the impugned Order of the State Commission.

The Commission also termed the instant revision petition to be frivolous one, filed simply to prolong the case.

The Commission also directed that the amount (if any) deposited by the insurance company with the District Commission, along with interest (if any) accrued, shall be released by the District Commission to the complainant by way of ‘payee's account only' demand draft as per the procedure. The balance awarded amount shall be made good by the insurance company, failing which the District Commission shall undertake execution, for ‘enforcement' and for ‘penalty' as per the law.

[National Insurance Co. Ltd. v. Prabodh Kumar Swain, REVISION PETITION NO. 1782 OF 2013, decided on 14-07-2022]


Advocates who appeared in this case :

S. K. Ray, Advocate with Nikita Chaturvedi, Advocates, for the Petitioner;

Subesh Kumar Sahu, proxy counsel for Sanjib Kumar Mohanty, Advocates, for the Respondent;

None, for the Respondent No.2.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Ananda Kumar Mukherjee, J. took cognizance of a petition which was preferred by the petitioner -wife praying for transfer of Matrimonial Suit pending before the Additional District Judge, Fast Track Court, Coochbehar to any other Court of Additional District Judge at Siliguri, allowing the transfer.

Petitioner’s marriage with the respondent was solemnized on 11-03-2020 and they stayed together as husband and wife in the house of the respondent at Coochbehar for 15 days. The respondent filed the Matrimonial suit under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against the petitioner praying for a decree of divorce as a counter blast of the F.I.R. lodged by her. The petitioner contended that she is residing with her mother at Siliguri and has no earning of her own. On the contrary, the husband is employed. She further contended that the relationship between the wife and her husband is strained, and she feels insecure to travel to Coochbehar Court for the purpose of taking part in the proceedings.

Counsel for the respondent submitted that he is a contractual worker, having work for 26 days with a marginal monthly income and is also suffering from Cardiac ailments which requires immediate surgery. He further argued that the petitioner had voluntarily left the matrimonial home within 15 days of the marriage and the present suit for divorce has been filed on the ground of cruelty. Regarding transfer of the case, it was contended that there is conveyance facility to conveniently travel to Coochbehar and the petitioner has no cogent ground for preferring this revisional application and the same is liable to be dismissed.

The Court heard the parties and agreed that travelling at odd hours of the day is a physical hardship for the petitioner and by filing a suit for divorce directly without any attempt to restore the marital relationship, the petitioner-wife cannot be put to such inconvenience. The Court drew its support from the judgment relied on by the counsel of the petitioner in Madhu Saxena v. Pankaj Saxena, (2005) 13 SCC 158 where the principle of “showing leniency towards the wife” was followed.

The Court allowed the petition and opined that it would be appropriate to transfer the Matrimonial Suit from the Court of Additional District Judge, F.T.C., Coochbehar to the Court of District Judge, Darjeeling.

[Sandipa Gupta v. Suraj Gupta, 2022 SCC OnLine Cal 2027, decided on 14-07-2022]


Advocates who appeared in this case :

Mr Sanjay Mazoomdar, Ms Sukanya Adhikary, Advocates, for the Petitioner;

Mr Subhasish Mishra, Mr Swarup Das, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Op EdsOP. ED.

   

Introduction: What are anti-suit injunctions

An anti-suit injunction is an injunction ordering a party either not to commence or not to take any further steps in proceedings in another jurisdiction. When a court restrains a party to a suit or proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction.1

Anti-suit injunctions are often the result of disputes regarding the proper jurisdiction i.e. court of a country to decide the dispute. They have become increasingly common, largely due to the application of foreign law to contracts, arbitration clauses and their resulting disputes. In fact, the law of anti-suit injunction has developed to such an extent that it gave birth to the concept of anti-anti-suit injunctions, also known as anti-enforcement injunctions.

What have foreign courts held on anti-suit injunctions

United Kingdom

The first requirement for the granting of an anti-suit injunction is that the English court has jurisdiction over the respondent: relief will not be granted against a respondent upon whom valid service cannot be affected.2

The House of Lords in Carron Iron Co. Proprietors v. Maclaren3 issued anti-suit injunctions on the principle of “equity and good conscience”. The courts in UK later held in favour of anti-suit injunctions “to avoid injustice”4. The test later adopted was whether the foreign proceedings are “oppressive or vexatious”.5

These tests were laid down in cases where there was multiplicity of proceedings that were deemed to be vexatious. However, in cases where the anti-suit injunction was sought because another forum was argued as more favourable, the House of Lords abolished these tests.6 This was because of the moral connotations of the word “vexatious” and the defendant's difficulty to prove any malicious intent of the plaintiff.

In Société Nationale Industrielle Aerospatiale v. Lee KuiJak,7 the Privy Council laid down the principles to be applied by a court in deciding whether to restrain foreign proceeding. It held that the plaintiff will only be restrained from pursuing the foreign proceedings if it would be vexatious or oppressive for him to do so.

The next test was to check if the anti-suit injunction was necessary to meet the “ends of justice”. English courts were inclined to grant anti-suit injunctions if they thought that it would meet the “ends of justice”8.

In Spiliada Maritime Corpn. v. Cansulex Ltd.,9 the House of Lords laid down that the fundamental principle in these cases is that the court would choose that forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice. Such a forum would be one with which the action had the most real and substantial connection in terms of:

  1. convenience or expense;

  2. availability of witnesses;

  3. the law governing the relevant transaction; and

  4. the places where the parties resided or carried on business.

In Airbus Industries,10 the House of Lords identified two underlying aspects to grant an anti-suit injunction. The first is the requirement to meet the ends of justice and the second is respect for other court's jurisdiction i.e. the principle of comity in international law.

Hereafter, the English courts also highlighted the situations in which they would not be inclined to grant anti-suit injunctions. In Donohue v. Armco Inc.,11 the Court held that it might decline to grant an injunction where: (1) the interests of non-signatories were involved; or (2) there were claims in the dispute that were not contained in the exclusive jurisdiction clause. The rationale for that was to prevent the risk of parallel proceedings and inconsistent decisions.

In one of the most recent cases on anti-suit injunctions, the England and Wales High Court in IPCom GmbH & Co. KG v. Lenovo Technology (United Kingdom) Ltd.12 applied the test of “oppressive and vexatious” suit and observed that “the less that an anti-anti-suit injunction granted in England would interfere with the foreign proceedings to which it was directed, the more likely it was that the court would exercise its discretion to grant such an injunction”.

Therefore, as a general rule, the English courts will not grant an anti-suit injunction if, by doing so, it will unjustly deprive the plaintiff of advantages in the foreign forums.13

Australia

The main modern authority for anti-suit injunctions in Australia is CSR Ltd. v. Cigna Insurance Australia Ltd.14 and National Mutual Holdings Pty. Ltd. v. Sentry Corpn.15 The Australian court used the test “to meet the ends of justice” in the sense that “only if there is nothing which can be gained by them over and above what may be gained in local proceedings”.

The Australian courts have adhered to a liberal attitude to granting the anti-suit injunction consistently shown in the English authorities. In CSR Ltd.,16 the court in its survey of the principles governing the grant of anti-suit injunctions cited The Angelic Grace17 as an authority where proceedings in a foreign jurisdiction are restrained by reason of agreement to submit to arbitration in the forum.

Additionally, the Australian courts18 have applied the doctrine of forum non conveniens, which requires a court of the forum to decline to exercise its jurisdiction where the forum is a clearly an inappropriate forum for an action.19

Canada

The Supreme Court of Canada adopted the “the ends of justice” test. It held that the court must enquire how best the interests of justice will be served and whether the anti-suit injunction is necessary in the interests of justice. It also discussed the “oppressive and vexatious” test to hold that where a jurisdiction agreement exists it is not necessary to show that foreign proceedings are vexatious, oppressive or that the local court is a natural forum for the claim and there is no obligation upon the claimant to seek relief from a foreign court first.20

In a novel decision, British Columbia's Court of Appeal in Li v. Rao,21 upheld an anti-suit injunction preventing a party from taking further steps in a pending arbitration administered beyond the court's jurisdiction.

The Court identified the general principles applicable to anti-suit injunctions and referred to Workers’ Compensation Board v. Amchem Products Inc.22 It underlined the two-stage test for issuing an anti-suit injunction i.e. to apply the principles of comity and analyse the contractual terms existing between the parties.23

Prior to this case, no Canadian court had ever considered whether to grant an anti-suit injunction to enforce a forum selection agreement. They only granted anti-suit injunctions on the “interests of justice” test developed in Amchem.24 Thus, the court went on to apply the English Law on anti-suit injunctions and upheld the injunction “on a contractual basis”25 i.e. based on the contractual terms existing between the parties.26

What have Indian courts held on anti-suit injunctions

The first decision on anti-suit injunctions can be traced back to Oil and Natural Gas Commission v. Western Co. of North America.27 This is an important decision as it identifies situations in which allowing the proceedings in the foreign court to continue would be “oppressive”. The Supreme Court held that it would grant anti-suit injunctions in cases where:

  1. it was necessary or expedient to do so; or

  2. when the ends of justice so required;

  3. the High Court had undoubted jurisdiction to grant such an injunction; and

  4. it would be unfair to refuse the restraint order because the action in the foreign court would be oppressive.

The next judgment of the Supreme Court on this point is in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries28. In this case, the Court laid down the choice of law rule to determine which court had jurisdiction:

  1. The jurisdiction clause may provide for submission to the courts of a particular country or to a court identified by a formula.

  2. It is a question of interpretation, governed by the proper law of the contract, whether a jurisdiction clause is exclusive or non-exclusive, or whether the claim which is the subject-matter of the action falls within its terms.

  3. If there is no express choice of the proper law of the contract, the law of the country of the chosen court will usually, but not invariably, be the proper law.

The landmark judgment on anti-suit injunctions is that of Modi Entertainment Network v. WSG Cricket Pte. Ltd.29 For the first time, the Supreme Court discussed and outlined the principles for granting an anti-suit injunction.

It held that a court in India has the power to issue anti-suit injunction to a party over whom it has personal jurisdiction because Indian courts are courts of equity which exercise jurisdiction in personam. However, due to the principle of comity, this power will be exercised sparingly because such an anti-suit injunction in effect causes interference in the exercise of jurisdiction by another court.

The Court in Modi Entertainment Network v. WSG Cricket Pte. Ltd.30 laid down the following principles to be applied by courts to decide whether to grant an anti-suit injunction:

  1. In exercising discretion to grant an anti-suit injunction, the court must be satisfied that:

    (a) the defendant has consented to the jurisdiction of the court;

    (b) if the injunction is declined, the ends of justice will be defeated, and injustice will be perpetuated; and

    (c) the principle of comity i.e. respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained must be borne in mind.

  2. The court will decide the appropriate forum (forum conveniens) based on the convenience of the parties and may grant anti-suit injunction against proceedings which are oppressive or vexatious or in a forum non conveniens.

  3. Where jurisdiction of a court is invoked on the basis of the jurisdiction clause in a contract, clauses regarding exclusive or non-exclusive jurisdiction of the court are not conclusive but are relevant factors. The court has to decide the appropriate forum based on a true interpretation of the contract and on the facts and circumstances.

  4. A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where the parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of its choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like.

  5. Where the parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum.

  6. A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non conveniens.

  7. The burden to prove that the forum of choice is a forum non conveniens or that the proceedings are “oppressive or vexatious” is on the party contending it.

Another landmark judgment of the Supreme Court, affirming Modi Entertainment Network v. WSG Cricket Pte. Ltd.31 is that of Dinesh Singh Thakur v. Sonal Thakur.32 The Supreme Court held that an anti-suit injunction can be granted if the continuation of the proceedings will result in grave injustice to either of the parties or defeat the ends of justice or perpetuate injustice.

Through these two cases, the position in Indian law is now established. The principles laid down in Modi Entertainment Network v. WSG Cricket Pte. Ltd.33 are now established law. In the latest slew of judgments on anti-suit injunctions, the Delhi High Court34 has explained the different types of injunctions in disputes regarding the appropriate forum:

  1. Anti-suit injunctions: In which the court injuncts the party from proceeding with the main suit, pending before the foreign court.

  2. Anti-anti-suit injunctions: Where the court injuncts the party from proceeding with the anti-suit injunction application filed before the foreign court to injunct the “local” proceedings.

  3. Anti-enforcement injunctions: Where the court injuncts one of the parties before it from enforcing, against the other, a decree or order passed by a foreign court. They would also fall in two categories. The first, where the order, the enforcement of which is sought to be injuncted, is an order in the main suit/complaint/other proceeding in the foreign court. The second, where injunction is sought of an anti-suit injunction order passed by the foreign court.35

Another Delhi High Court judgment36 has laid down the circumstances in which an Indian citizen can shield himself against the effect of proceedings pending before a foreign court:

  1. Under Section 1337 CPC, through anti-enforcement proceedings; and

  2. Though anti-suit injunctions.

The Court summarised the Indian law on the point, as evolved by primarily the Supreme Court. In India, the grant of such anti-suit injunctions is restricted to cases where the foreign proceedings are “oppressive or vexatious”, keeping in mind the overarching need to ensure the “interests of justice”. It held that the judgments of the Supreme Court, which pronounced the position of anti-suit injunctions, are Oil and Natural Gas Commission v. Western Co. of North America38, Modi Entertainment Network v. WSG Cricket Pte. Ltd.39 and Dinesh Singh Thakur v. Sonal Thakur.40

Subsequent Bombay41 and Gujarat High Court42 judgments went on to follow the position laid down in Modi Entertainment Network v. WSG Cricket Pte. Ltd.43 and Dinesh Singh Thakur v. Sonal Thakur44 and restated the principles as follows:

(a)The principles governing the grant of injunction, are also applicable to the grant of anti-suit injunction.

(b) The grant of injunction is essentially guided by equity.

(c) The power to grant anti-suit injunction is required to be exercised sparingly “because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court”. This aspect is underscored where the order would restrain the parties from instituting or continuing a case in a foreign court.

(d) The anti-suit injunction cannot be granted, where any of the inhibiting factors, enumerated in Section 41 of the Specific Relief Act, 1963, applies.

(e) The injuncted defendant must be amenable to the jurisdiction of the Indian court granting anti-suit injunction.

(f) Declining of an anti-suit injunction would result in defeating the ends of justice and would perpetuate injustice.

(g) While granting anti-suit injunctions, the principle of comity of courts is required to be borne in mind45.

The response to anti-suit injunctions: Anti-anti-suit injunctions

The authority of the Indian courts to grant anti-anti-suit injunctions was first examined and upheld by the Calcutta High Court in Devi Resources Ltd. v. Ambo Exports Ltd.46 The Court recognised its competence under the general principle of equitable jurisdiction and held that the authority to grant an injunction “also encompasses the authority to grant an anti-suit or anti-arbitration injunction or even an anti-anti-suit injunction”. However, it limited this authority by stating that it “is issued only in the most extreme of cases where the refusal of the injunction may result in palpable and gross injustice in the meanest sense”.47

The first Indian case in which an anti-anti-suit injunction was passed was in Interdigital Technology Corpn. v. Xiaomi Corpn.48 The Delhi High Court applied the troika test of prima facie case, balance of convenience and irreparable loss to find that enforcement of the anti-suit injunction would render Interdigital remediless against patent infringement. In a first of its kind, the Indian court allowed the anti-anti-suit injunction i.e. anti-enforcement application.49

Therefore, the door is now open for the disputing parties to apply for anti-anti-suit injunctions provided that they are able to meet the admittedly high threshold of injustice, irreparable loss, oppression, or vexation.


† 4th year BBA LLB (Hons.) Student, Symbiosis Law School, Pune. The author can be reached at alps7016@gmail.com.

1. Modi Entertainment Network v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341.

2. Airbus Industrie GIE v. Patel, (1999) 1 AC 119 : (1998) 2 WLR 686 : (1998) 2 All ER 257.

3. (1855) 5 HLC 416.

4. Castanho v. Brown and Root (UK) Ltd., 1981 AC 557.

5. Société Nationale Industrielle Aerospatiale v. Lee Kui Jak, 1987 AC 871 : (1987) 3 WLR 59 : (1987) 3 All ER 510.

6. Rockware Glass Ltd. v. Macshannon, (1978) AC 795 : (1978) 2 WLR 362 : (1978) 1 All ER 625.

7. 1987 AC 871 : (1987) 3 WLR 59 : (1987) 3 All ER 510.

8. Airbus Industrie GIE v. Patel, (1999) 1 AC 119 : (1998) 2 WLR 686 : (1998) 2 All ER 257; Workers’ Compensation Board v. Amchem Products Inc., 1993 SCC OnLine Can SC 37 : (1993) 1 SCR 897.

9. 1987 AC 460 : (1986) 3 WLR 972.

10. Airbus Industries GIE v. Patel, (1999) 1 AC 119 : (1998) 2 WLR 686 : (1998) 2 All ER 257; Geoffrey Fisher (2010) “Anti-suit Injunctions to Restrain Foreign Proceedings in Breach of an Arbitration Agreement,” Bond Law Review: Vol. 22: Issue 1, Article 1, <http://epublications.bond.edu.au/blr/vol22/iss1/1>.

11. (2002)1 All ER 749 (HL), referred to in Modi Entertainment Network v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341.

12. 2019 EWHC 3030; Interdigital Technology Corpn. v. Xiaomi Corpn., 2021 SCC OnLine Del 2424.

13. Charles Dougherty and Alistair Mackenzie, “A Practical Guide from the Commercial Dispute Resolution Group”, 2 Temple Gardens, (2016), <2016.06.15-A_Practical_Guide_to_Anti-Suit_Injunctions_-_Summer_2016.pdf (2tg.co.uk)>.

14. (1997) 189 CLR 345.

15. (1989) 87 ALR 539; Horlicks Ltd. v. Heinz India (P) Ltd., 2009 SCC OnLine Del 3342.

16. (1997) 189 CLR 345.

17. Aggeliki Charis Compania Maritima SA v. Pagnan SpA (The Angelic Grace), (1995) 1 Lloyd's Rep 87.

18. Voth v. Manildra Flour Mills Pty. Ltd., (1990) 171 CLR 538.

19. Michael Douglas, “Anti-Suit Injunctions in Australia”, (2017) 41(1) Melbourne University Law Review (Advance), <https://ssrn.com/abstract=3019622>.

20. Modi Entertainment Network v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341.

21. Peipei Li v. Luhua Rao, 2019 BCCA 264, appealed from an order of the Supreme Court of British Columbia dated 12-1-2018 in Li v. Rao, 2018 BCSC 47.

22. 1993 SCC OnLine Can SC 37.

23. Michael Douglas, “Anti-Suit Injunctions in Australia”, (2017) 41(1) Melbourne University Law Review (Advance), <https://ssrn.com/abstract=3019622>.

24. Workers’ Compensation Board v. Amchem Products Inc., 1993 SCC OnLine Can SC 37.

25. Daniel Urbas, “B.C. — Anti-Suit Injunction Based on Contract Enjoins Party from Pursuing Arbitration Administered Outside Canada”, #235, Urbas Arbitral, <https://urbas.ca/?p=1381>.

26. Geoffrey Fisher, “Anti-Suit Injunctions to Restrain Foreign Proceedings in Breach of an Arbitration Agreement”, Bond Law Review, 22(1), Art. 1, (2010),

<https://www.austlii.edu.au/au/journals/BondLawRw/2010/1.pdf>.

27. (1987) 1 SCC 496.

28. (1990) 3 SCC 481.

29. (2003) 4 SCC 341.

30. (2003) 4 SCC 341.

31. (2003) 4 SCC 341.

32. (2018) 17 SCC 12.

33. (2003) 4 SCC 341.

34. Interdigital Technology Corpn. v. Xiaomi Corpn., 2021 SCC OnLine Del 2424.

35. Vijay Pal Dalmia, “Anti-Suit Injunctions—When and How Granted in India”, Mondaq, (4-7-2018),

<https://www.mondaq.com/india/contracts-and-commercial-law/715482/anti-suit-injunctions-when-and-how-granted-in-india>.

36. Raaj Unocal Lubricants Ltd. v. Apple Energy (P) Ltd., 2021 SCC OnLine Del 2395.

37. Civil Procedure Code, 1908, S. 13.

38. (1987) 1 SCC 496.

39. (2003) 4 SCC 341.

40. (2018) 17 SCC 12.

41. Milind Ashok Kalamkar v. Sheetal Milind Kalamkar, 2021 SCC OnLine Bom 2370.

42. Mashreq Bank PSC v. Indian Overseas Bank, 2021 SCC OnLine Guj 2678.

43. (2003) 4 SCC 341.

44. (2018) 17 SCC 12.

45. Vasanth Rajasekaran and Nayantara Narayan, “Enforcement of Anti-Suit Injunction: Indian Court Lays Down the Parameters for Grant of Anti-enforcement Injunction Against an Order by a Foreign Court”, Mondaq, (27-5-2021), <https://www.mondaq.com/india/patent/1073034/enforcement-of-anti-suit-injunction-indian-court-lays-down-the-parameters-for-grant-of-anti-enforcement-injunction-against-an-order-by-a-foreign-court>.

46. 2019 SCC OnLine Cal 7774.

47. 2019 SCC OnLine Cal 7774; Dishti Titus, “Outstretching Across Borders: Anti-Suit Injunctions in India”, ALG India Law Offices LLP, (28-7-2020), <https://www.algindia.com/outstretching-across-borders-anti-suit-injunctions-in-india/>.

48. 2021 SCC OnLine Del 2424.

49. Candice Lin, “Indian High Court rules in country's first anti-anti-suit-injunction”, Asia Law, (10-5-2021), <https://www.asialaw.com/NewsAndAnalysis/indian-high-court-rules-in-countrys-first-anti-anti-suit-injunction/Index/907>; Tulip De and Priya Adlakha, “The Law of Anti-suit Injunctions in India”, Litigation Committee Newsletter Article, International Bar Association, April 2020,

<https://www.ibanet.org/article/40B35B14-9403-412F-9A6C-6E03080BF696>.

Legislation UpdatesRules & Regulations

The Central Board of Direct Taxes notifies Income-tax (Twenty Second Amendment) Rules, 2022 to amend the Income-tax Rules, 1962. The amendment introduces a provision dealing with Application u/s 158AB to defer filing of appeal before Tribunal or jurisdictional High Court.

Key points:

  • Rule 16 which specifies “Declaration under Section 158A” has been renumbered to Rule 15A.
  • New Rule 16 which specifies “Application under section 158AB to defer filing of appeal before the Appellate Tribunal or the jurisdictional High Court” has been inserted:

“The application referred to in sub-section (2) of section 158AB, required to be made before the Appellate Tribunal or the jurisdictional High Court, as the case may be, shall be made in Form No. 8A by the Assessing Officer”

  • In Appendix II a new Form 8A has been inserted.
Case BriefsSupreme Court

Supreme Court: In a case where the single bench of JK Maheshwari, J was posed with the question as to whether the plea of territorial jurisdiction or the lack thereof can be entertained by the Supreme Court in its jurisdiction under Section 25 of CPC, it was observed that there is limited scope vested in this Court while exercising its jurisdiction under Section 25 of CPC and the same cannot be extended to determine the question of territorial jurisdiction of  the proceedings before it as the plea of jurisdiction or the lack of it can be prompted before the Court in which the proceedings are pending.

The Court came to the conclusion that the issue was no longer res integra, as the Supreme Court, in Naivedya Associates v. Kirti Nutrients Limited (Transfer Petition (C) 953/2021), had held that the point is required to be urged before the Court in which the suit is pending.

[Neilan International Co. Ltd v. Powerica Limited, 2022 SCC OnLine SC 795, decided on 06.07.2022]

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr. Kaushal Jayendra Thaker and Gautam Chowdhary, JJ. dismissed a petition which was filed praying for quashment of the impugned FIR under Sections 420, 406, 120-B Penal Code, 1860.

First informant aged about 28 years, does business and petitioner 1 and 2 are also into business. The first informant moved to the Magisterial Court, who after verifying the facts, issued direction to the police officer to investigate and took cognizable case as the informant had to get machines on concessional rates by the petitioner 1. The bank transaction of Rs.2,03,280/- from the bank of the informant was made to the petitioner. Despite the money being given by way of bank account, no machine was supplied to the informant. Thereafter, Kamlesh Singh to whom the money was also sent, issued a cheque after deducting commission. The amounts could not be realized and therefore, the informant again requested both the accused along with his brother but they locked the premises and were not available. FIR was registered but no action was taken and therefore, the informant moved the Court which has directed investigation as it is prima facie found that cognizable offence has been committed by the accused.

Counsel for the petitioners submitted that the alleged incident occurred on 25-08-2020 but the FIR was lodged on 25-02-2022 without any proper explanation. It was further submitted that Sections 4 and 5 of the Criminal Procedure Code, 1973 would be applicable as according to the petitioner’s counsel, the offence alleged to be committed under the Negotiable Instruments Act, 1881.

The Court observed that these facts go to show that it is not a matter which falls under the Negotiable Instrument Act as sought to be canvassed by counsel for the petitioners. The provisions of Section 4 of Cr.P.C. read with Section 5 relate to procedure where commission of offence under the Special Act. In the present case, the informant has invoked the criminal jurisdiction and not the jurisdiction under Section 138 of the Negotiable Instrument Act and therefore, Section 5 cannot be made applicable.

The Court relied on Noorulla Khan v. Karnataka State Pollution Control Board, 2021 SCC OnLine SC 601, where it was held by the Supreme Court that Section 5 of Cr.P.C. applies to the proceedings under the Special Act. The Act specifies certain procedural justice and protection. Proceedings under the Indian Penal Code would be governed by the Criminal Procedure Code only and therefore, the provisions of Section 5 of Cr.P.C. and 468 Cr.P.C. read with contours for invoking Article 226 of the Constitution will not permit us to interfere in the investigation as prima facie, facts go to show that the ingredients of Section 406, 420 and 120-B IPC are made out against the accused. The actus reus is also prima facie proved to dupe the informant.

The Court opined that FIR cannot be said to be belated as Sections 420, 406, 120B Penal Code, 1860 permits lodgment of the FIR within a period as prescribed by Section 468 Cr.P.C. The petition was dismissed holding that the registered case cannot be said to be such which is beyond the period of limitation and that there is a abuse of process of law.

[Mohar Pal v. State of U.P., 2022 SCC OnLine All 427, decided on 21-06-2022]


Advocates who appeared in this case :

Harikesh, Advocate, Counsel for the Petitioner;

G.A., Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and V. Ramasubramanian*, JJ has lucidly explained the law on the jurisdiction in case of disputes relating to execution and registration of deeds and documents under the Registration Act, 1908.

Three steps for Registration of a document

  • Execution of the document, by the executant signing or affixing his left hand thumb impression: This step may be challenged in a suit for declaration that the registered document is null and void, either on the ground that the executant did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executant or on the ground that the signature of the executant was obtained by fraud, coercion etc.
  • Presenting the document for registration and admitting to the Registering Authority the execution of such document: This may also be challenged on the very same grounds as in the First step.
  • Registration of the document: This step is procedural in nature where the Registering Authority is the lead actor.

Jurisdiction of Civil Court versus Writ Court

The objections to the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document.

“A challenge to the very execution of a document, is a challenge to its very DNA and any defect or illegality on the execution, is congenital in nature. Therefore, such a challenge, by its very nature, has to be made only before the civil court and certainly not before the writ court.”

If a civil court finds that the sale by a power agent was unauthorised, then the question whether the Registering Officer performed his duties properly or not, would lose its significance. An attack on the authority of the executant of a document, is not to be mixed with the attack on the authority of the Registering Officer to register the document. The distinction between the execution of a document and the registration of the document is to be borne in mind while dealing with these questions.

To put it more clearly, if a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted.

This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law. When a High Court, in exercise of its jurisdiction under Article 226 finds that there was utter failure on the part of the Registering Authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void.

“A declaration that a document is null and void, is exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the Registering Authority performed his statutory duties in the manner prescribed by law.

Examining whether the Registering Authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in cases where the violations of procedure on the part of the Registering Authority are not gross or the violations do not shock the conscience of the Court.

“Lack of jurisdiction is completely different from a refusal to exercise jurisdiction.”

[Asset Reconstruction Company (India) Limited v. SP Velayutham, 2022 SCC OnLine SC 544, decided on 04.05.2022]


*Judgment by: Justice V. Ramasubramanian

Counsels

For appellant: Senior Advocates Guru Krishna Kumar and Nakul Devan,

For respondents: Senior Advocates Shyam Divan, Atul Nanda Mukul Rohatgi

CBIC
Legislation UpdatesRules & Regulations

On 24th June, 2022, Central Board of Indirect Taxes and Customs (CBIC) notified Customs Brokers Licensing (Amendment) Regulations, 2022. The amendment revises the provisions of Customs Brokers Licensing Regulations, 2018, being effective from its publication.  

Key Points: 

  • Any agent or broker who intends to make any business transactions on behalf of his exporter/importer under Customs Station has to be an authorised licenced broker. 
  • Earlier, in order to conduct such transactions he has to associate himself with any of the Custom Brokers’ Association at the Customs’ Station. Even as a mandate the membership with any such Custom Brokers’ Association did not exceed more than one. 
  • With the amendment of Regulation 20, broker has to become member of Custom Brokers’ Association at every jurisdiction he operates. 
  • Likely, the broker may operate at more than one Customs’ Station therefore, has to be a member with every station recognised by the Principal Commissioner of Customs or Commissioner of Customs. In that given situation, the membership at one jurisdiction shouldn’t again exceed by one. 
  • The brokers are obliged to comply with the norms given for licensing, however with addition of new Regulation 21, liberty of an extended time period is provide wherein he fails to comply with the same. 

 


*Shubhi Srivastava, Editorial Assistant has reported this brief.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: The Division Bench of P. Naveen Rao and Sambasivarao Naidu, JJ. allowed the appeal and set aside the impugned order holding a dispute arising out of an agreement concerning immovable property which is exclusively used in trade or commerce and whose ‘specified value’ is more than one crore is a commercial dispute and must be tried in a commercial court only.

The first respondent (R1) and the Appellant entered into Lease agreement with respect to property called as “Durgam Cheruvu Eco Tourism Deck and Party Area” for a period of ten years. However, the differences arose regarding taking over possession of the subject property and payment of lease amount. The Department for Youth Advancement and Culture, on request, granted R1, waiver of rent for a certain period, and R1 further claimed additional waiver from appellant vide representation, which was rejected, and strained relationships further, resulting in both taking recourse to arbitration for settling disputes vide Clause 10 Lease Agreement. An application under Section 9 Arbitration and Conciliation Act, 1996 was filed before ACJ City Civil Court seeking interim protection. The city civil court granted interim injunction in favour of R1 subject to deposit of monthly payments. Assailing this order, a present appeal was filed.

The appellant contended that since the transaction is commercial in nature and monetary value of the disputed property is above One crore , the ordinary Civil Court has no jurisdiction and the individual has to seek remedy under provisions of Commercial Courts Act, 2015.

The respondent submitted that only disputes which are of commercial nature must be resolved by the Commercial Court. In the present case, it was a lease agreement and not all contracts are commercial in nature. Besides, no commercial activity had commenced on the property due to which the dispute is not a commercial dispute and hence not maintainable before the Civil Court.

The Court observed that on a cumulative reading of Sections 2(1)(c)(vii), 10 and 12 Commercial Courts Act, 2015, it is apparent that if a dispute arising out of an agreement concerning immovable property which is exclusively used in trade or commerce and whose ‘specified value’ is more than one crore, then, it is a ‘commercial dispute’ and only the commercial Court has jurisdiction to deal with application filed under Section 9 of the Arbitration and Conciliation Act, 1996.

The Court further noted that from the clauses of the lease agreement, it is evident that the appellant earlier granted lease of the schedule property to another lessee for the very same purpose and said lessee built certain, tents, structures, fixtures, and micro-brewery. Disputes arose between earlier lessee and appellant and litigation is pending in the Courts. The terms of the lease agreement clearly indicate that the suit schedule land was already used for commercial purposes by an earlier lessee. Therefore, Section 2(1)(c)(vii) Commercial Courts Act, 2015, is attracted and dispute inter se between the appellant and the respondents is a commercial dispute.

The Court thus held “It is not in dispute that arrears of rent were more than two crores. Therefore, the ‘specified value’ of the subject dispute is more than one crore and in view of specific provision in Section 10 read with Section 12 of the Commercial Courts Act, 2015, application under Section 9 of the Act, 1996 must be filed in a designated Commercial Court only and Civil Court has no jurisdiction to deal with such applications”

[Telangana State Tourism Development Corp Ltd. v. A.A. Avocations Pvt. Ltd, 2022 SCC OnLine TS 1266, decided on 09-06-2022]


Advocates who appeared in this case :

M. Surender Rao and Zeeshan Adnan Mahmood, Advocates, for the Appellant;

P. Mohith Reddy, Advocate, for the Respondent;


*Arunima Bose, Editorial Assistant has reported this brief

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi : Vinod Kumar Gautam, Additional District Judge, while addressing the matter regarding the question of territorial jurisdiction, has held that the territorial jurisdiction in a matter is determined based on the contract entered between the parties.

In the case at hand where the plaintiff had sought decree of mandatory injunction directing the defendant to restore the service of the plaintiff as Deputy General Manager along with back salary and perquisites, the contract was entered between the parties with regard to the Court in Calcutta having jurisdiction to try the subject matter in dispute.

As per the Appointment letter dated 02-07-2018, the service/employment of the plaintiff was subject to terms and conditions laid down in the aforesaid Appointment letter and the clause 13 of the said Appointment letter categorically vests the jurisdiction in Calcutta Courts to deals with the disputes relating to the employment of the plaintiff.

Although, the plaintiff has argued that the mentioned suit was not barred by territorial jurisdiction as in the clause 13 of the Appointment letter dated 02-07-2018 the words ‘Calcutta High Court’ was not prefixed by the words ‘alone’ “only” or “exclusive”. However, the Defendant, relied upon the Supreme Court ruling in Swastik Gases (P) Ltd. v. Indian Oil Corporation Ltd.,(2013) 9 SCC 32 wherein it was held that even if the words “only” or “exclusively” were not mentioned before the name of the place where jurisdiction lies, it would not make any material difference and only the court in which place where the parties have agreed to subjected to shall have the jurisdiction to deal with the matter.

In the view of the aforesaid discussions , the court allowed the application under Order 7 Rule 10 and 10A read with Section 151 CPC and held that it had no territorial jurisdiction to try the concerned suit and that the suit needed to be tried by the Courts in Calcutta as per the Appointment letter dated 02.07.2018.

[Ram Singh Bajwa Vs M/s Nicco Engineering Services Ltd, 2022 SCC onLine Dis Crt (Del) 25 order dated on 07-06-2022]


Counsels

For Plaintiff: Advocate Ashish Goswami

For Defendants: Advocate Swarnendu Chatterjee and Indra Lal

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

Instant petition was for issuance of a writ of certiorari to set aside the impugned order passed by respondent 1 whereby application filed by respondent 2 under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 was allowed and petitioner was directed to vacate the property of respondent 2 within 30 days of the order passed.

Decision

Respondent 2 on her own volition stated her age to be less than 58 years as on the date of instituting proceedings before the Maintenance Tribunal.

High Court held that, Tribunal could not have invoked the jurisdiction of the Maintenance Tribunal under the Act, as respondent 2 was less than 58 years not a senior citizen on the relevant date.

Further, the impugned order dated 1-6-2021 passed by respondent 1 was quashed for lack of jurisdiction, hence writ petition was allowed. [Rani v. Additional District Magistrate, 2022 SCC OnLine P&H 1089, decided on 16-5-2022]


Advocates before the Court:

Mr Manav Bajaj, Advocate, For the petitioner

Mr Pankaj Middha, Additional Advocate General, Haryana.

Mr Sahil Goel, Advocate, For respondent 2.

Case BriefsHigh Courts

Bombay High Court: A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

Factual Background


 In the present matter, the respondent provided financial assistance to the applicant of an amount of Rs 4,50,00,000 for which a loan agreement was entered between the applicant and the respondent, referred to as Agreement 1.

Due to a change in the business scenario, another Agreement was executed referred to as Agreement 2, under which the date of repayment of the borrowing was extended.

There were defaults on the part of the applicant in the payment of the loan instalments.

Applicant’s case was that in the discharge of its liability towards the respondent under the above-stated agreements, the applicant issued a cheque to the respondent, of an amount of Rs 31,08,33,457 being the repayment of the respondent’s dues, which was in accordance with the terms and conditions of the loan agreement.

Respondent had approached the NCLT by initiating proceedings against the applicant under Section 7 of the Insolvency and Bankruptcy Code, 2016.

Though, so far, no order had been passed by the NCLT admitting the petition as per the provisions of Section 7(5) of the IBC.

Analysis and Decision


High Court observed that there was no dispute in regard to the arbitration agreements between the parties and there was a dispute in regard to the invocation of the arbitration agreement.

Thus, the primary considerations for this Court to exercise jurisdiction under Section 11(6) were certainly present.

The Bench stated that, even if an application under Section 8 of the ACA is filed, the adjudicating authority has a duty to advert to the contentions put forth under an application filed under Section 7 of the IBC by examining the material placed before it by the financial creditor and record a satisfaction as to whether there is default or not.

“…if the irresistible conclusion of the adjudicating authority (NCLT) is that there is default and the debt is payable, the bogey of arbitration to delay the process would not arise despite the position that the agreement between the parties contains an arbitration clause.”

The Bench observed that,

“…mere filing of the proceedings under Section 7 of the IBC cannot be treated as an embargo on the Court exercising jurisdiction under Section 11 of the ACA, for the reason that only after an order under sub-section (5) of Section 7 of the IBC is passed by the NCLT, the Section 7 proceedings would gain a character of the proceedings in rem, which would trigger the embargo precluding the Court to exercise jurisdiction under the ACA, and more particularly in view of the provisions of Section 238 of IBC which would override all other laws.”

Hence, as noted in the present case, the Corporate Insolvency Resolution Process initiated by the respondent is yet to reach a stage of the NCLT passing an order admitting the said proceedings, the Court would not be precluded from exercising its jurisdiction under Section 11 of the ACA, when admittedly, there was an arbitration agreement between the parties and invocation of the arbitration agreement had been made, which was met with a refusal on the part of the respondent to appoint an arbitral tribunal.

While concluding the matter, Bench held that, the Court would be required to allow the present application by appointing an arbitral tribunal for adjudication of the disputes and differences which arose between the parties under the agreements in question.

Though the Court added that a formal order appointing an arbitral tribunal was not required to be made as after the judgment was reserved, the parties just two days back, settled the disputes stating that arbitration was not warranted. [Jasani Realty (P) Ltd. v. Vijay Corpn., 2022 SCC OnLine Bom 879, decided on 25-4-2022]


Advocates before the Court:

Dr. Birendra Saraf, Senior Advocate a/w. Anshul Anjarlekar i/b. Raval- Shah & Co., Advocate for the Applicant.

Mr.Yusuf Iqbal Yusuf i/b. Y. and A Legal, Advocate for the Respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Neeraj Kumar Gupta (Information Commissioner), decides whether Commission can provide a ruling regarding the merits of a case or redressal of grievance.

Appellant had filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, Life Insurance Corporation of India seeking the following information:

  1. Why my S.R. No. is getting changed? Who is responsible for this change and thereby loss incurred.
  2. Does my other benefits affect due to change of S.R. Number?
  3. My loan was on floating interesting why it is changed to fixed @9.75% without any information. Is there any circular?
  4. My E.M.I’s are always deducted from my salary and sent by my branch. Why there is a gap? Please inform the gap month.
  5. Since the E.M.I’s for the month April 2012, May 2012, June 2012, July 2012 and Aug 2012 are received by HFL Jalandhar. Why the susbsidy is not released.
  6. Our cadre loan is Rs 2075000 but still there is ex cadre loan of Rs 3583 O/S in my case.

The CPIO denied the information as sought by the appellant under Section 2(f) of the RTI Act, 2005. Being dissatisfied with the same, the appellant had filed the first appeal and requested that the information should be provided to him, and FAO upheld the CPIOs response and disposed of the appeal. Further second appeal before the Commission was filed to direct the respondent to provide complete and correct information.

Decision

The Commission observed that the queries of the appellant were more in the nature of seeking explanation/opinion/advice from the CPIO and he had expected that the CPIO should first analyse the documents and then provide information to the appellant.

CPIO is not supposed to create information; or to interpret information; or or to furnish clarification to the appellant under the ambit of the RTI Act. As per Section 2(f) of the RTI Act, the reasons/opinions/advices can only be provided to the applicants if it is available on record of the public authority. The CPIO cannot create information in the manner as sought by the appellant. The CPIO is only a communicator of information based on the records held in the office and hence, he cannot expected to do research work to deduce anything from the material therein and then supply it to him. 

With regard to the grievance raised by the appellant regarding the reason for a change in S.R. number, Coram observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/right to information and not to venture into the merits of a case or redressal of grievance.

Concluding the matter, the Commission held that the respondent had furnished point-wise reply/information to the appellant on his RTI application and further forwarded his grievance to the department concerned. Therefore, no intervention was required. [Deepak Kumar Joshi v. CPIO, LIC; CIC/LICOI/A/2020/118695; decided on 1-4-2022]

Karnataka High Court
Case BriefsHigh Courts

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

Karnataka High Court: Krishna S. Dixit J dismissed the petition being devoid of merits. 

The facts of the case are such that the petitioner, a Returned Candidate of Karle Grama Panchayat whose election having been set at naught, the first respondent was declared as having been duly elected in her stead by the Election Tribunal, knocked the doors of Writ Court for assailing the order dated 10-11-2021.

The Court relied on judgment Jyoti Basu v Debi Ghoshal , (1982) 1 SCC 691and observed that the case does not involve infraction of any of the Fundamental Rights. It relates to only statutory rights namely, right to continue in office till the expiry of elected tenure. Matters relating to election are it to the grass root electoral bodies such as Grama Panchayats or to the Parliament do fall within the realm of law of elections, as legislated.

The Court remarked the jugular vein of the election petition was the validity of four ballot papers namely, which were excluded from the Court in favour of the first respondent – Election Petitioner on the ground that they belonged to a different constituency.

The election tribunal observed “The materials on record clearly indicates that the 4 votes rejected as not genuine appears to be not proper for the reason that the said Ballot papers have been handed over by the officials themselves to the voters. The intention of the voter in making the mark on the symbol under which petitioner contested the election go to show that the said vote was casted in favour of the petitioner. Further, the Ballot papers which were admittedly handed over by the respondent No.3 to the voters have been treated as not genuine, which cannot be accepted because admittedly the same are issued by respondent No.3. 

On election symbols, the Court observed that the election symbols of the candidates or their political parties through which they are put in the fray assume a lot of significance. These symbols are normatively by the jurisdictional authorities constituted under law. The election symbols play a vital role inasmuch as, ordinarily, the electors identify their candidates on the basis of symbols with which they contest in the elections, and vote. It is more so in the case of election to ‘grass-root’ level local bodies like the one in this case.

The Court observed that in the present case, though the ballot papers belonged to other constituency, there is irrefutable evidence on record that they were utilized for the election in this constituency; they had the same electoral symbol; they were taken & used for the constituency in question after scrutiny by the jurisdictional authorities; the voters acted upon the same accordingly.

The Court thus held, “the Election Tribunal rightly faltered their exclusion from counting and thereby, reckoned them to the account of Respondent–Election Petitioner, who eventually has been declared as duly elected, after invalidating the election of Returned Candidate.”[Prabhamani v. Hemalatha, 2022 SCC OnLine Kar 628, decided on 01-04-2022]


Appearance:

For petitioner: Mr. Sathish SP

For respondent: Mr. Basavaraju HT and Prathima Honnapura


 Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

A petition was filed against an order of the Family Court by which the petitioner-applicant sought interim custody for his children, which came to be rejected by the Court’s Order.

Analysis, Law and Decision

High Court referred to the Supreme Court decision in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein the Court considered in detail the scope of interference by this Court to hold and observed that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principles.

The Bench expressed that, the exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals/Courts within the bounds of their authority, to ensure that law is followed by tribunals/Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

“Jurisdiction has to be very sparingly exercised.”

A petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise.

In the present matter, the petitioner had alleged that the respondent had extramarital affair with two persons.

Petitioner had also produced an FIR copy filed by the brother of the respondent against Shrirang Dharmendra, with whom the respondent indulged in an extra-marital affair. Family Judge opined that there is nothing on record to show as to how it was unsafe for his children and as to how the life of his children is at stake with the respondent.

Further, so far as the allegations qua the character of the respondent is concerned, the Family Judge opined that same could not be believed only on the basis of the FIR, photographs and/or the chatting details.

The Family Judge had further observed that since the beginning, the children were residing with the respondent only, however, only on bare averments qua character of the respondent, sans any corroborative evidence, it was not proper to hand over the custody of the children to the petitioner.

High Court opined that the Family Judge had committed no error and did not require interference at the hands of this Court. [Shehjada Hanifbhai Patel v. Bilkis, R/Special Civil Application No. 20048 of 2021, decided on 24-3-2022]


Advocates before the Court:

MR MTM HAKIM with MR VA MANSURI(2880) for the Petitioner(s) No. 1

NOTICE SERVED BY DS for the Respondent(s) No. 1

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

The instant petition was filed seeking issuance of an appropriate Writ, to set aside the action of removal of videos of petitioner on his YouTube channel and subsequent termination of his YouTube channel by respondent No.2 and further direct respondent no.2 to restore the YouTube channel of petitioner which was maintained on YouTube portal with the name and style of “Gurudev Siyag Sidh Yoga Free” and allow him to operate the aid channel.

Counsel for petitioner Mr. Ashish Davessar submitted that his YouTube account has been terminated by the respondent 2 without issuing any show cause notice or affording any opportunity of hearing, thus, the writ petition deserves to be allowed.

The Court observed a perusal of the prayer clause reveals that entire relief has been claimed against the respondent 2, a limited liability company. Although, it has been submitted that it is amenable to the writ jurisdiction on account of the State having its deep and pervasive control over its affairs and also for the reason that it discharges the functions of public importance which are closely related to the Government functions; but, the writ petition is bereft of any such averment.

The court further observed that there is not a whisper of averment in the entire writ petition as to the true nature of functions being discharged by the respondent 2 or the same being of public importance. In absence of any factual foundation to substantiate the submission that the respondent No.1 has deep and pervasive control over the affairs of the respondent No.2 or it discharges the public functions which are akin to the Government functions, this Court is not persuaded to accept the submission made by learned counsel for the petitioner.

The Court held, “Therefore, the writ petition is dismissed being not maintainable against a private entity.”[Dharmendar Kumar Sharma v. Union of India, 2022 SCC OnLine Raj 531, decided on 07-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Amit Bansal, J., expressed that an LLP or any other business entity can carry out business in different parts of the country, but that would not mean that a suit with regard to disputes between the partners, could be filed in any place where the business of the firm/LLP is carried out.

A petition was filed under Article 227 of the Constitution of India which impugned the order passed by the District Judge whereby the application was filed on behalf of the petitioners/defendants under Order VII Rule 10 and 11(d) of the Code of Civil Procedure, 1908 had been dismissed.

The plaint from which instant petition arose was filed by the respondent/plaintiff, being one of the partners of the petitioner 3/defendant 3 which was a Limited Liability Partnership (LLP) and against the respondents 1 and 2/defendants 1 and 2 who were the remaining partners of the said LLP.

Petitioners/Defendants counsel submitted that the registered office of the LLP was in Hyderabad, hence the Courts in Delhi did not have any jurisdiction.

Respondent/Plaintiff submitted that the business of the LLP was duly being carried out in Delhi through the respondent/plaintiff and therefore, the cause of action would arise in Delhi. Hence, the Courts in Delhi would be competent to try and entertain the present suit.

Grievance in the Matter

Respondent/plaintiff was aggrieved that he had been denied access to the business accounts of the respondent 3/defendant 3.

Analysis and Discussion

In the plaint it was nowhere submitted that the business accounts, in respect of which access has been sought were kept in Delhi, in fact, the plaint is conspicuously silent on the aspect of the cause of action for filing of the suit.

The entire basis of the respondent/plaintiff for filing the suit in Delhi was on account of the fact that the LLP carried out business in Delhi and that the products of the LLP were regularly sold in Delhi by means of online sales as well as through physical stores such as Nature’s Soul, which is in Delhi.

High Court opined that the fact that business of the LLP was being carried out in Delhi would not vest the Courts of Delhi with jurisdiction to try and entertain the present suit.

Additionally, the Bench stated that Section 13 of the LLP Act provides that every LLP shall have a registered office, where all communications and notices may be addressed and shall be received. In terms of Section 34(1) of the LLP Act, the books of account in respect of an LLP shall be maintained at the registered office.

Further, in view of the facts and circumstances of the case, Court decided that the jurisdiction to entertain the present suit shall vest with the Courts in Hyderabad.

Since there was no principal or subordinate office of the LLP in Delhi and neither the books of accounts were kept in Delhi, therefore, there was no cause of action in respect of the present suit which was arising within the territorial limits of the Courts in Delhi.

Parties by agreement cannot give jurisdiction to a Court which otherwise does not have such jurisdiction. 

Maintainability in Civil Court

Bench elaborated that, merely because the definition of the “body corporate” under Section 2(1)(d) of the LLP Act includes an LLP, it is not automatically implied that the NCLT would be the competent forum for deciding all disputes inter se the partners of an LLP. Unlike Section 430 of the Companies Act, 2013, there is no bar on the jurisdiction of the Civil Courts under the provisions of the LLP Act. Therefore, in terms of Section 9 of the CPC, the suit shall be maintainable in a Civil Court.

Decision

Courts in Delhi lack the territorial jurisdiction to try and entertain the present suit.

In view of the above discussion, the present suit stood allowed. [Aanchal Mittal v. Ankur Shukla, 2022 SCC OnLine Del 633, decided on 25-2-2022]


Advocates before the Court:

For the Petitioners: K.C. Mittal with Yugansh Mittal and Sanjay Kumar, Advocates

For the Respondent: Vishal Singh, Advocates

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., while expressing the scope of power under Article 227 of the Constitution of India dismissed the present petition.

A petition was filed under Article 227 of the Constitution of India by the petitioners/defendants against the order of the Commercial Court.

Petitioners/Defendants Counsel submitted that the impugned order was liable to be set aside as it contained directions to “law and land” and in contravention of the decision of this Court in Black Diamon Track Parts Private Limited v. Black Diamond Motors Private Limited, FAO (COMM) 41/2021. In this first appeal, Court had set aside the interim injunction which had been granted ex-parte to the respondent/plaintiff. Therefore, there was no right left in the respondent/plaintiff which required protection.

Counsel in addition to the above submission stated that the impugned order was misplaced and against the orders of this Court in the First Appeal. Further, it submitted that under Section 136 of the Code of Civil Procedure, 1908, the Court could not have appointed a Court Commissioner beyond its jurisdictional limits. Section 34 of the Trade Marks Act, 1999 saved the vested rights of the petitioners/defendants as it was the predecessor-in-interest of the parties who had the Trademark ‘BLACK DIAMOND’ registered in their names. The family members being engaged in a dispute, the petitioners/defendants could not be prevented from using the trademark.

It was also submitted that the Court could not have further directed the petitioners/defendants to deposit the sale proceeds in the Court or furnish a bank guarantee, as such orders were beyond the jurisdiction vested in a Court.

Analysis, Law and Decision

High Court noted that the power under Article 227 of the Constitution of India being one of judicial superintendence cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust in the impugned order shocking the court’s conscience or the conclusions were so perverse that it becomes absolutely necessary in the interest of justice for the court to interfere.

The Court remarked that, “a mere wrong decision without anything more is not enough to attract this jurisdiction.”

This Court added, to say that the impugned order was in violation of the view taken by the Division Bench would be incorrect, The mutual rights were yet to be determined in the suit and the pending the suit, the interests of both sides were kept in mind and in the impugned order when the petitioners/defendants sought the release of the goods, while allowing that plea of petitioners/defendants, the Court chose to also take care of the interests of the respondent/plaintiffs. Hence no error could be ascribed to the view taken.

With regard to the application of Section 34 of the Trademarks Act, it had no bearing on the present matter, as the application disposed of by the Commercial Court was for the release of goods, on an application moved by the petitioners and it was not a determination of mutual rights in respect of the registered trademark ‘BLACK DIAMOND’.

Bench found no error in the impugned order merely on account of the observation that the rights of the respondent/plaintiff would be adequately protected, if certain directions were to be issued.

Lastly, the Court concluded stating that in umpteen number of cases, the Courts have balanced interests by issuing similar orders or even requiring the furnishing of security before release of money to one who claimed to be entitled to it, in pending disposal of the suit or appeal.

High found no merit in the present petition. [Black Diamond Trackparts (P) Ltd. v. Black Diamon Motors (P) Ltd., 2022 SCC OnLine Del 545, decided on 22-2-2022]


Advocates before the Court:

For the Petitioners: Praveen Chaturvedi, Advocate

For the Respondent: Malvika Trivedi, Sr. Advocate with Nipun Katyal, Advocate.

Case BriefsSupreme Court

Supreme Court: While addressing the issue related to jurisdiction of Court under Section 11(6) of the A&C Act, the 3-judge Bench comprising of N.V. Ramana*, CJ., Surya Kant and Hima Kohli, JJ., reiterated that Courts could adjudicate to ‘cut the deadwood’, i.e. not a debatable issue.

Since the respondent had challenged the validity of Arbitration contract for it being unstamped which was already pending before a larger Bench in a different case, the Bench opined,

“…until the larger Bench decides on the interplay between Sections 11(6) and 16– the Courts should ensure that arbitrations are carried on, unless the issue before the Court patently indicates existence of deadwood.”

Factual Matrix

The dispute in the instant case was in nature of international commercial arbitration between the petitioner companies, Intercontinental Hotels Group (India) Pvt. Ltd. and Intercontinental Hotels Group (Asia Pacific) Pvt Ltd, subsidiaries of a British multinational hotel. The respondent-Waterline Hotels Pvt. Ltd., an Indian company engaged in hospitality sector entered into a Hotel Management Agreement (HMA) with the petitioners for renovating the existing infrastructure in accordance with the brand standards established by the IHG group.

The petitioners further alleged that the respondent failed to pay the requisite fee which it was contractually bound to under the HMA and as of 12-10-2018, the respondent owed the petitioners a sum amounting to USD 6,18,719, excluding interest for the late payment as provided under Clause 21.3 of the HMA.

It was when the respondent unilaterally terminated the HMA without any legal basis by handing over the management of the hotel to Miraya, that the petitioners invoked Section 9 of the Arbitration Act seeking interim relief before the High Court of Karnataka. Consequently, the High Court directed the respondent not to evict the petitioners from the premises without due process of law until further orders. Subsequently, alleging that the respondent had not been sincere in complying with the order and had taken steps to frustrate the aforesaid interim order, the petitioners invoked Arbitration under clause 18.2 of HMA.

Interestingly, the respondent stated that the notice of arbitration was defective and was not curable since the purported HMA, which contains the arbitration agreement, was an unstamped document. The reliance was placed by the respondent on Garware Wall Ropes Ltd. v Coastal Marine Constructions and Engineering Ltd., (2019) 9 SCC 209 to contend that an agreement which is not duly stamped cannot be relied on or acted upon unless the unstamped document is impounded, and the applicable stamp duty and penalty is assessed and paid.

Affect of Non-payment of Stamp Duty on Validity of Arbitration Agreement

The Bench noted that in N.N. Global Mercantile Private Limited v. Indo Unique Flame Ltd., (2021) 4 SCC 379, the Supreme Court had doubted the proposition as held in Garware Wall Ropes’s case, and was of the opinion that the utility of the doctrine of separability overrides the concern under the respective Stamp Acts and that any concerns of non-stamping or under stamping would not affect the validity of the arbitration agreement. Therefore, the Bench had referred the issue for authoritative settlement by a Constitution Bench.

In Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1, the Supreme Court had clearly expounded that Courts had very limited jurisdiction under Section 11(6) of the Act. The only narrow exception carved out was that Courts could adjudicate to ‘cut the deadwood’. Ultimately the Court held that the watch word for the Courts is ‘when in doubt, do refer’.

Hence, the Bench opined that until the larger Bench decides on the interplay between Sections 11(6) and 16 the Court should ensure that arbitrations are carried on, unless the issue before the Court patently indicates existence of deadwood. The Bench remarked,

“Although we agree that there is a need to constitute a larger Bench to settle the jurisprudence, we are also cognizant of time sensitivity when dealing with arbitration issues. All these matters are still at a pre-appointment stage, and we cannot leave them hanging until the larger Bench settles the issue.

Whether the HMA was properly stamped?

Noticeably, the petitioners had themselves attempted to self adjudicate the required stamp duty and had paid a stamp duty of Rs 2,200/, describing the HMA as a “bond”. On 10-06-2020, the petitioners further purchased 11 estamps for Rs. 200/each, describing the HMA as an ‘agreement’ under article 5(j). Therefore, it falls upon the Court, under the stamp act to review the nature of the agreement in order to ascertain the stamp duty payable.

Further, in order to ascertain whether adequate stamp duty had been paid in terms of the Karnataka Stamp Act, the Court would have to examine the nature of the substantive agreement, the nature of the arbitration agreement, and whether a separate stamp fee would be payable for the arbitration agreement at all. Since it was undisputed that stamp duty had been paid, the Bench opined that whether it be insufficient or appropriate was a question that maybe answered at a later stage as this court cannot review or go into that aspect under Section 11(6). The Bench added,

“If it was a question of complete non stamping, then this court, might have had an occasion to examine the concern raised in N. N. Global (supra), however, this case, is not one such scenario.”

Insufficient Stamping; whether a deadwood and clearly indicative of an unworkable arbitration agreement?

After perusal of Clause 22.1 of the HMA, the Bench noted that the respondent was under an obligation to ensure that the agreement would be legally valid in India. Therefore, the Bench opined that if such an obligation was undertaken by the respondent, the extent to which the petitioners could rely on the respondent’s warranty was clearly a debatable issue.

Further, it was also a matter of adjudication whether the respondent could have raised the issue of validity of the arbitration agreement/substantive contract in view of the warranty. Hence, observing that the aforesaid issues were not deadwood, the Bench opined that the issues whether the respondent was estopped from raising the contention of unenforceability of the HMA or the issue whether the HMA was insufficiently or incorrectly stamped, could be finally decided at a later stage.

Verdict

In the backdrop of above, the Bench held that if was apposite to refer the matter to arbitration, in terms of Clause 18.2 of the arbitration agreement. Accordingly, Justice A.V. Chandrashekara, a former Judge of the High Court of Karnataka was appointed as a sole arbitrator to adjudicate the issues. The parties were directed to take steps to convey the order to the SIAC to proceed in terms of the SIAC rules.

[Intercontinental Hotels Group (India) Pvt. Ltd. v. Waterline Hotels Pvt. Ltd., 2022 SCC OnLine SC 83, decided on 25-01-2022]


*Judgment by: Chief Justice N.V. Ramana


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

The case of the petitioner is that he is a Customs House Agent and the co-petitioners were importers engaged in the import of Glass Chatons at Customs ports at Jaipur. One investigation was conducted by Additional Director, DRI (Zonal) Unit Ahmedabad, in connected matter by DRI, Jaipur who after the investigation demanded custom duty under Section 28 of the Act of 1962 and proposed confiscation of the seized goods and imposition of penalty under Section 124, 112, 114A of the Act, 1962. The show cause notice was issued as back as dated 06.08.2014 and in connected matter in 2019. By way of present petitions, the show cause notice (SCN) issued by officers of Directorate of Revenue Intelligence (DRI) under Sections 28 and 124 of the Customs Act, 1962 (in short, ‘Act’ of 1962), are challenged.

Counsel for petitioner submitted that the DRI Officers are not proper officers and show cause notice issued by them are ab initio void, illegal and lacks jurisdiction.

Counsel for respondents submitted that a number of writ petitions were filed before various High Courts for quashing of show cause notices issued by DRI Officers in which directions have been given to first approach Adjudicating Authority to decide the issue of jurisdiction.

The Court in the judgment titled M/s Canon India Private Ltd. v. Commissioner of Customs, AIR 2021 SC 1699 observed

  1. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.”

The court thus observed that On perusal of judgment referred above and relying on provisions of Section 2(34) which defines “proper officer”, Section 6 which defines “functions and powers of custom officer” and Section 28 which refers to “procedure of demand and recovery by the proper officer” having jurisdiction to issue show cause notice and to carry out adjudication, we hold that the entire proceedings initiated by officers of DRI in as much as by issuance of show cause notice under Section 28/124 of the Customs Act lacks jurisdiction and are without any authority of law because the present show cause notice is not issued by custom officer but by DRI officer who has not been assigned specific function/power under Section 6 to issue show cause notice U/S 28 of the Act of 1962. DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”. The Act, the notification relied upon do not define and bring the DRI officers within four corners of “proper officers” having functions and powers to act under Section 28 of the Act of 1962.

The Court held “The proceedings issued by show cause notice and subsequent demands confirmed by OIO are set aside, as prayed in the writ petitions.”

[Fairdeal Shipping Agency Pvt Ltd v. Joint Commissioner of Customs (Preventive), Jaipur; 2022 SCC OnLine Raj 411; decided on 09-02-2022]


Appearances:

For Petitioner(s): Mr. Arun Goyal

For Respondent(s): Mr. Kinshuk Jain


Arunima Bose, Editorial Assistant has reported this brief.