Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of Vasantha Kodagoda and Arjuna Obeyesekere, JJ., dismissed an appeal filed against the Judgment of the Commissioner-General of Inland Revenue.

The petitioner had stated that he was a building contractor and his business was registered with the Department of Inland Revenue (the Revenue) for the payment of Value Added Tax (VAT). He had admitted that he had delayed the filing of the VAT returns due to which the Revenue had disallowed the claims he had made for VAT refunds. The Revenue had served the Petitioner a Certificate of Tax in default in a sum of Rs 11,137,283. Further, the petitioner had appealed and the penalty on the sum had been waived and the sum in default had been reduced to Rs 6,405,616. The revenue had filed a case against the petitioner in the district court to recover the specified sum. The petitioner stated that he had faced many difficulties while carrying out several projects in 2009 in the district of Mannar and that he was discriminated by public servants on the basis of his ethnicity due to which payments due to the Petitioner for work had been delayed disrupting the smooth functioning of his business which is why the petitioner had made an application to the revenue. The Court after going through the application observed that even though the petitioner had explained the difficulties faced but was unable to produce any document in support of his facts and it was concluded that an exemption cannot be granted to him aggrieved by which the petitioner had appealed to the Commissioner-General of Inland Revenue but his appeals had been rejected, thus the instant application, as well as a Writ of Mandamus compelling the Revenue to grant an exemption, was filed. 

The Court while dismissing the appeal explained that there was considerable delay in invoking the jurisdiction of this Court as the application was filed almost six years after the appeal was rejected, it observed that the Petitioner had not offered any explanation for the delay and further the petitioner was not alleging that the decision of the Commissioner-General of Inland Revenue was illegal, thus the application deserves to be dismissed. [Hitibandara Attapattu Mudiyanselage Ananda Parakrama Kumara Aigama v. Nadun Guruge, CA (Writ) Application No: 108 of 2019, decided on 02-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., addressed an application that sought to quash criminal proceedings under Sections 420, 468, 471 of Penal Code, 1860 and Section 66(D) of Information Technology Act pending in Judicial Magistrate Court.

In the present matter, a complaint was lodged against the applicant that he committed forgery for purpose of cheating by using as genuine the forged and fraudulent document with the intention to cause damage to the Trust and hacked the information stored in the computer.

A charge-sheet was submitted by against the applicant in respect of selfsame offences. Further, Magistrate took cognizance and summoned the applicant to face the trial in respect to the mentioned offences.

Siddhartha Singh, applicant for the counsel submitted that the applicant was an old trustee and was appointed as the President of Kailashanand Mission Trust. He submitted that proceedings against the applicant are nothing but the outcome of the revengeful activity of the complainant and his associates. Complainant concealed the fact of the applicant being the President of the Trust and went on to lodging an FIR against him in the name of him being an “Unknown Hacker”.

According to the applicant’s counsel, the entire proceedings are nothing but an abuse of process of law and Court.

Senior Advocate, Rakesh Thapliyal on behalf of the complainant due to nefarious activities of the applicant, Swami Kailashanand was annoyed with him and by way of a resolution of trust, he cancelled all rights of the applicant and even removed him from the post of Manager of Trust.

He further submitted that various complaints were filed against the applicant for forging Trust’s letter pad, seals and receipt book and resolutions.

Applicant’s Counsel while relying on the Supreme Court case in, International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348, argued that in order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation was made, but it is further necessary to prove that the representation was false to the knowledge of accused and was made in order to deceive complainant.

According to the ruling in Supreme Court case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in which certain principles in respect of exercise of jurisdiction under Section 482 CrPC are laid down, one of the principles which hold significance in the present matter is following:

“…Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not.”

Thus, in the present matter, High Court stated that in view of the above, a bare perusal of FIR as well as the charge sheet, it is apparent that foundation of criminal offence is laid against the applicant. Jurisdiction under Section 482 CrPC should not be exercised to stifle or scuttle the legitimate prosecution. Court stated that in the present case, this is not the stage to quash the charge sheet.

Hence, Since, prima facie case is made out against the applicant, the Magistrate has rightly taken cognizance and summoned the applicant to face the trial in respect of the offences complained of against him. [Vijay Kumar Gupta v. State of Uttarakhand, Criminal Misc. Application No. (C-482) No. 1087 of 2016, decided on 18-12-2019]

Case BriefsForeign Courts

United Kingdom Supreme Court: A Full Bench of Lord Carnwath, Lady Black, Lord Briggs, Lady Arden and Lord Kitchin, JJ. dismissed the instant appeal on the ground that the license conferred a possessory right and there is no basis on which Court should interfere with the Judgment of lower court of appeal.  

The appellant was the owner of the Manchester Ship Canal and adjacent riparian land. Vauxhall Motors Ltd, the respondent, bought the land adjacent to the riparian land to construct a vehicle manufacturing plant. The respondent needed to discharge surface water and treated industrial effluent from the planned manufacturing complex into the canal, and acquired a small part of the riparian land for the same from the appellant, leaving a small strip of land between the canal and the factory site across which the respondent acquired the right to discharge the surface water and industrial waste by the means of a license. The license was terminated when Vauxhall failed to pay its annual rent. Vauxhall then claimed equitable relief from forfeiture which was granted by the lower court. 

Katherine Holland on behalf of the appellant argued that only a tenant and not licensee may ask for relief against forfeiture as a lease confers proprietary interests in the land while a license does not. She also submitted that possessory rights define the boundary of equitable relief from the forfeiture of rights in relation to chattels and the same can’t be applied to rights over a land. 

William Norris on behalf of the respondent argued that a better boundary than one which merely accommodated possessory rights would be one which extended the equitable jurisdiction in relation to all forms of rights to use property, provided only that the right of termination is intended to secure the payment of money for the performance of other obligation.  

The Court rejected the claim that possessory rights in relation to chattels and other personality equates to something more akin to ownership, and therefore a proprietary interest in relation to land. It was held that the lower court was right to conclude that the rights granted by the license fell within that possessory class to which the jurisdiction to grant relief extends.[Manchester Ship Canal Ltd. v. Vauxhall Motors Ltd., [2019] 3 WLR 852, decided on 23-10-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. dismissed a writ petition by the petitioner challenging the show cause notice issued against him whereby the dealership of his fair price shop was threatened to be cancelled. 

The counsel appearing for the petitioner is K. Nath and learned Additional GA appearing for the State-respondent is D. Sharma.

Petitioner was appointed as a dealer of a fair price shop in 1968. A show-cause notice was issued upon him in 2018 stating that he had violated the guidelines provided under Tripura Foodgrains Dealers Licensing Order, 1964 for his personal gain. The petitioner replied to the show cause stating that he was aged 86 years and suffering from Parkinson’s disease due to which he could not move independently. As a result, he had to appoint one person or employee for the smooth functioning of the fair price shop licensed to him. Thus, he urged that the person in whose favour he had executed a power of attorney (one Ratan) for running the dealership of shop, not be treated as a proxy dealer. 

The Court noted that it was evident from the Power of Attorney that the petitioner had bestowed the responsibilities and the liabilities upon Ratan and that he has no involvement with the running of the shop. Thus, it was true that the petitioner has not been running the business for which the dealership was provided to him. Further, it was also admitted by the petitioner that he has nominated a person (apart from his family members) to run his fair price shop. 

The Court also took note of a memorandum dated 18-03-2011 issued by the Director, Food, Civil Supplies & Consumer Affairs, Government of Tripura wherein it was clearly mentioned that “no F.P. Shop shall be allowed to run by any person other than the original licensee (i.e. in favour of whom the license has been issued by the Licensing Authority) for an unlimited or unreasonable period”. 

In view of the above, it was held that the petitioner was running his business of contradictory to the directives of the government, and the court had no jurisdiction to invade or replace the decision of the government. Thus, due to lack of merit, the petition was dismissed.[Sachindra Chandra Das v. State of Tripura, 2019 SCC OnLine Tri 500, decided on 20-11-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed a criminal appeal filed against the order of the Metropolitan Magistrate whereby he had acquitted the accused-respondent for the absence of the complainant-appellant and his advocate at the stage when the case was placed for evidence.

It may be noted that the matter was listed before the trial court on 31 occasions, out of which, the complainant (appellant herein) was absent 11 times. On the 31st occasion as well, when the matter was placed for evidence, the complainant and his advocate were absent. Consequently, the trial Magistrate passed the impugned order mentioned above. In the instant appeal, it was submitted by the complainant that it was due to inadvertence of his counsel, who misheard the next date of hearing, that the complainant was not able to present himself before the trial court on the day the impugned order was passed.

On facts, the High Court found that the pleas made by the appellant were unsubstantiated and no relief could be given to him.

Explaining the mandate of Section 256 CrPC, the Court observed:

“Section 256 mandates that if the complainant does not remain present on the appointed day after the summons has been issued on the complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. If the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons.”

Reiterating that speedy trial is a fundamental right of the accused, the Court noted that the Magistrate cannot allow a case to remain pending for an indefinite period.

The Court observed that “the Magistrate in terms of sub-section (1) of Section 256 exercises wide jurisdiction”. In the present case, it was noted, the Magistrate had acquitted the accused as provided under Section 256 because he did not find any reason to adjourn the hearing of the case to some other day. As noted above, out of the 31 dates, on 11 dates the complainant was absent but still the Magistrate did not dismiss the complaint on those dates.

In such a situation, the High Court was of the opinion that there was no illegality in the impugned order so as to require any interference. The appeal was, therefore, dismissed. [Champalal Kapoorchand Jain v. Navyug Cloth Stores, 2019 SCC OnLine Bom 4805, decided on 26-11-2019]

Cyril Amarchand MangaldasExperts Corner


Section 9-A was inserted in the Code of Civil Procedure, 1908 (“the Code”) as an amendment specific to the State of Maharashtra by the Code of Civil Procedure (Maharashtra Amendment) Act, 1970 and by way of abundant caution, was reintroduced in the Code vide the Code of Civil Procedure (Maharashtra Amendment) Act, 1977. The insertion of Section 9?A in the Code was guided by peculiar circumstances, i.e. at such time, the practice was followed to initiate declaratory suits without giving valid notice to the government under Section 80 of the Code. The plaintiff would undertake to issue such notice and would pray for ad interim injunction. After the expiry of the period for issuance of such notice, the plaintiff would withdraw the suit and file a fresh one praying for and successfully obtaining fresh ad interim reliefs from the Court. This vicious cycle was sought to be avoided by the introduction of Section 9-A in the Code in 1970.

Thereafter, in 2018, the Code of Civil Procedure (Maharashtra Amendment) Act was notified. The Statement of Objects and Reasons of this amendment inter alia, noted that Section 9-A was leading to judicial bottlenecks in the form of the application for interim relief being pending and as a consequence, the interim relief was being continued as final relief in most cases. Further, the orders passed under Section 9-A was amenable to their own challenge, leading to a multiplicity of proceedings without any consideration of the matter on merits.

Section 9-A was accordingly deleted by the above amendment. However, by a second amendment in 2018, it was provided that the proceedings pending under Section 9-A on the date of the introduction of the amendment and any preliminary issue framed under Section 9-A would be decided at the time of final determination of the other issues framed under Order XIV of the Code, and that any ad-interim relief granted under Section 9-A may be confirmed, vacated or modified at the stage of final hearing of the interim application.

The Judgment in Nusli Neville Wadia v. Ivory Properties

In Nusli Neville Wadia v. Ivory Properties[1] (“Nusli Wadia case”), the correctness of Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives[2] (“Foreshore”) was considered to determine the scope of the term “jurisdiction of the court” in Section 9-A of the Code.

In Foreshore (supra), it had been held that the term ‘jurisdiction’ in Section 9A was wide enough to include the issue of limitation and that the term could not be read in a restricted sense to include only territorial, pecuniary or subject matter jurisdiction. In order to determine whether the position taken in Foreshore (supra) was correct in law, the Supreme Court discussed a plethora of judgments passed by the Supreme Court itself as well as various High Courts to determine whether jurisdiction was an issue of law and fact, whether limitation could be included within the ambit of jurisdiction, and the scope of Section 9-A vis-à-vis Order XIV, Rule 2 of the Code.

Whether Jurisdiction includes limitation in its ambit

Foreshore (supra) held that although the plea of limitation was a mixed question of law and fact, Section 9-A was a self-contained scheme with a non-obstante clause that mandates the court to follow the provision. Further, it held that the question of limitation was synonymous with jurisdiction, and if the same was raised, it had to be tried as a preliminary issue by the Court.

In the Nusli Wadia case (supra), during the course of arguments before the Supreme Court, Mr Fali S. Nariman contended that no issue which was a mixed question of fact and law could be tried as a preliminary issue under the Code and that the plea of limitation is always a mixed question of fact and law, and therefore cannot be decided without reference to the starting point of the limitation period which will be purely factual.

Eventually, in the Nusli Wadia case (supra), it was held that the “jurisdiction to entertain” in Section 9-A could not be understood within the wide ambit that was held in Foreshore (supra) and had to be interpreted in the narrow sense. The case drew the distinction between jurisdiction and limitation by holding that in the event that the Court does not have the jurisdiction to entertain the suit, it means that the Court does not have the power to entertain the suit. When a suit is barred by limitation, it means that it is not possible for the Court to grant the relief as prayed for. While the difference between the two is subtle, the Nusli Wadia case (supra) has clarified that the scope of Section 9-A is limited to the maintainability and the competence of the Court to receive the suit for adjudication.

Jurisdiction under Section 9-A v. Order XIV, Rule 2

Order XIV, Rule 2, which was amended in 1977, mandates that the Court has to pronounce judgment on all issues, and sub-rule (2) states that the Court may try the issue of jurisdiction of the Court or a bar to the suit created by an law before the settlement of other issues, only if the preliminary issues are based on law.

While the Supreme Court, in the Nusli Wadia case (supra), held that Section 9-A was not repugnant to Order XIV, Rule 2, it also clarified that the scope of Section 9-A was limited as compared to the same of Order XIV, Rule 2. Pertinently, it held that the jurisdiction to entertain can be contemplated under Section 9-A only if it is a pure question of law, and not a question of law and fact. It also emphasized that no evidence can be recorded to decide the preliminary issue of jurisdiction under Section 9-A of the Code as the Code does not contemplate two full-fledged trials being held to decide preliminary issues as well as the other issues.

By holding the above, the Supreme Court has effectively reconciled Section 9-A of the Code with Order XIV, Rule 2. Consequently, while jurisdiction may be tried as a preliminary issue, for all the remaining cases under Section 9-A, the Court will also have to adhere to the principles of Order XIV, Rule 2. In other words, only issues of law can be treated as preliminary issues.

Jurisdiction under the Arbitration and Conciliation Act, 1996

While the Nusli Wadia case (supra) did not specifically deal with the scope of jurisdiction in arbitration proceedings, the judgment in Indian Farmers Fertilizer Cooperative Limited v. Bhadra Products[3] (“Indian Farmer’s case”) has been referred to in the judgment. The Indian Farmers case was referred to in order to understand the meaning of jurisdiction in different legislation and the interpretation of the same in case law.

In the Indian Farmers case (supra), it was observed that limitation did not fall under the ambit of jurisdiction under Section 16 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) and accordingly held that when a jurisdictional challenge is upheld, it is an appealable order under Section 37 of the Arbitration Act. While the Indian Farmers case sought to clarify the scope of jurisdiction in arbitration proceedings, since the Nusli Wadia case (supra) has not opined on it, it is probable that the judgment in the Nusli Wadia case (supra) will have an effect on the interpretation of the term in the future.


With the repeal of Section 9-A applicable to the State of Maharashtra, there has been certain ambiguity regarding the treatment of the cases in which issues were formed under Section 9-A before the repeal. However, the judgment in the Nusli Wadia case (supra) has clarified not only the interpretation of the term “jurisdiction” in Section 9-A but also the context in which it has to be read. While the term “jurisdiction” has been mentioned in the Code in several places, as the title of this article suggests, each occurrence of the term is a different colour, a different meaning.

Since Section 9-A refers to the “jurisdiction of the court to entertain such a suit”, it is clear that the Court should have the inherent jurisdiction to receive the suit in order to consider the merits of the same. The Court has indicated that “jurisdiction” under Section 9-A will be limited to territorial, pecuniary and subject-matter jurisdiction, and can be treated as a preliminary issue only when it may be resolved solely based on law and admitted facts. The judgment in the Nusli Wadia case (supra) may have helped to clarify the position of law in the cases that are still under the old regime of Section 9-A, however, challenges to the 2018 Amendment, especially the sunset clause, continue to be heard in the High Court of Bombay and have been referred to a larger bench.

 † Ankoosh Mehta (Partner), Dhvani Shah (Senior Associate) and Sanika Gokhale (Associate), Cyril Amarchand Mangaldas.

[1]  (2015) 6 SCC 412.

[2]  (2015) 6 SCC 412.

[3]  (2018) 2 SCC 534.

Legislation UpdatesNotifications

S.O.3955(E).— In exercise of the powers conferred by sub-sections (1) and (2) of Section 396 of the Companies Act, 2013 (18 of 2013), the Registrar of Companies Jammu shall have jurisdiction in respect of Union territory of Jammu and Kashmir and Union territory of Ladakh, for the purpose of registration of companies and discharging the functions under the aforesaid Act.

2. This notification shall come into force with effect from 31-10-2019.

Ministry of Corporate Affairs

[Notification dt. 30-10-2019]

Case BriefsHigh Courts

Bombay High Court: S.S. Shinde, J. dismissed a petition while reiterating the decisions of the Supreme Court in the case, Nikita v. Yadwinder Singh, Criminal Appeal No. 1096 of 2019, wherein it was held that,

“At the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging the commission of offences under Section 498-A of Indian Penal Code.”

In the present case, the petitioner and respondent married each other and Respondent 2 thereafter migrated to North Carolina, USA with the petitioner. On shifting to Carolina, in a matter of few years, Respondent 2 gave birth to a child with whom she left petitioner’s home and went to her brother’s place in Columbus. Petitioner after meeting Respondent 2 in Columbus filed a divorce and custody petition in the Supreme Court of California.

Further, it has been stated that, while the Supreme Court attempted to serve summons to Respondent 2, she deliberately evaded the service and shifted to Meerut in India. In the year 2015, Petitioner gave divorce to the Respondent 2 after which, Respondent 2 field permanent custody petition in Family Court, Bandra.

In 2016, Respondent 2 filed a Domestic Violence Case under Section 12 of Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate Court, Mulund, that passed the maintenance order and in the year 2017, Sessions Court dismissed the Criminal Appeal filed by the petitioner.

Submissions of the parties

Counsels for the Petitioner, Prashant Pandey, Vijayalaxmi Shetty, Darshit Jain, Irfan Unwala and M.A. Khan, submitted that there was more than two years delay in filing the complaint by Respondent 2 before the Magistrate’s Court. When there was a delay, on the said ground alone, the Magistrate ought to have dismissed the complaint. Further, it was submitted that Magistrate has no jurisdiction to entertain the complaint since the alleged domestic violence is not committed in India.

Counsel appearing on behalf of the Respondent 2, Shaheen, submitted that Respondent 2 is residing at Mumbai with her brother, and therefore, she has instituted proceedings before Magistrate’s Court at Mumbai.

Petitioner was constantly threatening Respondent 2 and when Respondent 2 asked the petitioner about the renewal of visa, the petitioner flatly refused for such renewal. Petitioner relied on the Supreme Court case of Nikita v. Yadwinder Singh, Criminal Appeal No. 1096 of 2019 in respect to the jurisdiction of complaint received in regard to the commission of offences under Section 498A of Penal Code, 1860.

What the High Court held?

The bench in light of the Supreme Court decision stated above and along with the observations of the Courts below held that, there is no substance in the contention of counsel for the petitioner that, Magistrate’s Court at Mumbai has no jurisdiction to entertain the complaint.

In respect to the question of limitation for filing proceedings under Section 12, the Court relied on Supreme Court decision in Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, wherein it was held that,

“…regard being had to concept of “continuing offence” and demands made by the wife, application made by appellant wife under Section 12 of the 2005 Act after about 2 years of judicial separation, not barred by limitation.”

Another point that the Court noted in respect to the alleged harassment was that the Courts below made prima facie observations about the same. Since the order passed by Magistrate directed the petitioner to pay interim maintenance is an interim order and the proceedings for the same are still pending, the Court stated that it would not be appropriate to give elaborate reasons about the allegations on harassment and domestic violence.

Thus, the Court in view of the above rejected the writ petition. [Mohammad Zuber Farooqi v. State of Maharashtra, 2019 SCC OnLine Bom 2295, decided on 25-09-2019]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J. dismissed a writ petition filed by a serving officer of the Indian Army seeking to quash an FIR registered against him in Imphal, Manipur.

At the relevant time, the petitioner was posted at Dimapur, Nagaland, and was the Commanding Officer of 50 Coy ASC (Supply). It was alleged that during his tenure, he accepted illegal gratification from a local contractor engaged in supplying edible oil and pulses to 50 Coy ASC (Supply). An FIR was registered against him by the CBI Anti-Corruption Branch at Imphal.

Ripu Daman Bhardwaj, Special Public Prosecutor appearing for the Central Bureau of Investigation, at the outset, raised objections regarding the jurisdiction of the Delhi High Court to entertain the instant petition. Per contra, Lovkesh Sawhney, Durgesh Kumar Pandey and Deepak Kumar, Advocates, representing the petitioner, contended that the petition was maintainable.

The Court was of the view that the principal question for consideration was whether the Court should exercise its jurisdiction in the facts of the case. It was noted: “Undeniably, a substantial part of the offence alleged against the petitioner was committed outside the jurisdiction of this Court. As noticed above, the petitioner was posted in Dimapur and the allegation is regarding his conduct of receiving illegal gratification while serving as the commanding officer of 50 Coy ASC (Supply). Whilst it may be correct that the funds are stated to have been received by the petitioner; the allegation is that the same was done at the instance of the petitioner, who was, at the material time, posted in Dimapur.”

In such view of the matter, the High Court was of the view that it would not be apposite for the Court to entertain the instant petition. It was also observed: “Insofar as the principle of forum conveniens is concerned, the said principle has to be applied keeping in view the place where the substantial cause has arisen and where the substantial evidence for adjudicating the cause is available.”

Resultantly, it was held that trial in the instant matter was required to be conducted within the jurisdiction of another High Court. The petition was therefore dismissed.[Amit Sharma v. CBI, 2019 SCC OnLine Del 10129, decided on 13-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. allowed a petition filed by two nurses for quashing of an order whereby they were held liable for the death of a child due to their negligence. 

Petitioners herein were the two nurses of a hospital who had approached the Court challenging the order of Karnataka Medical Council (KMC) which had held both of them responsible for negligent death of a child. The complaint of negligence was filed by respondent whose child had died in the hospital. KMC passed an order holding that the complainant had failed to prove negligence on the part of doctors, but it held the petitioner-nurses liable for negligence and directed the Medical Superintendent to take action against them.

Counsel for the petitioner, N. Ravindranath Kamath contended that nurses are not medical practitioners as per the provisions of the Karnataka Medical Registration Act, 1961. Whereas counsel for the respondent, R. Nagendra Malik contended that only because of the negligence on the part of the petitioners, the complainant lost her child.   

The Court held that a comprehensive reading of Sections 2, 13 and 15 of the Karnataka Medical Registration Act, lead to the conclusion that nurses could not be categorized as medical practitioners practicing medicine. Thus, KMC had no jurisdiction to take action against the petitioner. 

In view of the above, holding the impugned order to be in excess of KMC’s jurisdiction, it was quashed. [Medical Superintendent, Kasturba Hospital v. Fathima Bi, Writ Petition No. 35640 of 2012 decided on 18-06-2019] 

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Kumar, J., modified the order passed by the tribunal to the extent that relief granted by the Tribunal is unauthorized and out of jurisdiction as Tribunal went beyond the terms of reference to pass the Award.

The present writ petition had been filed against the Award dated 18-11-2013 passed in Reference No. 13 of 1991 by the Central Government Industrial Tribunal No. 2, Dhanbad whereby reference was in favour of the workmen. The factual matrix of the present case is that all three concerned workmen were an employee of the company. They were charged for misappropriation and after conducting a departmental enquiry, they were dismissed from service. Against the said order of dismissal, an Industrial Dispute was raised, referred to as Ref. No. 13/91. Since the management failed to justify the dismissal of the workmen, the Tribunal passed an order of reinstatement in favour of the employees, Suresh Ram and Sarda Shovel. As Sukhdeo Bhuian had died during the pendency of the reference case, he had been substituted by his son namely Santosh Kumar. The issue herein is with respect to the appointment of the dependant of the deceased employee.

The Court stated that “It is trite that Tribunal gets jurisdiction to pass the Award in terms of reference. Tribunal cannot go beyond the terms of reference to pass an Award.” Further, the Court observed that reference is only with regard to justification with the order of dismissal of three workmen and issue of appointment was not the subject matter of the reference. Hence, in the absence of such reference, relief granted by the concerned Tribunal is wholly unauthorized and beyond the jurisdiction. Hence, the Court modified the award to the extent that the appointment to the dependent of the deceased employee is quashed.[Employers In re, Management of Sendra Bansjora Colliery v. Workmen, WP (L) No. 4632 of 2014, decided on 22-07-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. allowed a petition to direct the CBI to take charge of the present case.

The petitioner filed a Habeas Corpus Petition seeking appropriate direction to respondents to produce her son, who went missing in the custody of respondents. Petitioner also prayed for referring the investigation into the matter by the constitution of a Special Investigation Team (SIT) or in the alternative to refer the matter to the Central Bureau of Investigation (CBI).

The petitioner’s son, Shakeel Ahmed, went missing on his way to Zairat at Kaliar Sharief in Roorkie, Uttrakhand under the custody of the respondents. The matter was investigated initially by the appropriate Police Station, as an FIR under Section 364 RPC was filed. The investigating officer recorded the statement of witnesses under Section 161 of CrPC and called the accused persons to the Police Station and interrogated them. However, no fruitful result was obtained pursuant to which, the investigating officer closed the case. The matter was again reopened by the Zonal Police Head Quarter and a Special Investigation Team (SIT) was formed by the Senior Superintendent of Police. However, the SIT also failed to arrive at any conclusion and was clueless about the disappearance of the son of the petitioner.

The respondents contended that the matter if referred to Crime Branch, should also involve the territorial jurisdiction between the two States i.e. the State of Jammu and Kashmir and the State of Uttrakhand.

The High Court allowed the appeal and was of the view that since the investigation would involve the areas beyond the territorial jurisdiction of the State of J&K where the Crime Branch cannot have any jurisdiction, it would be appropriate to refer the matter for investigation to the CBI under Section 364 of RPC. The Court also held that “it cannot be a silent spectator to the disappearance of the son of the petitioner who needs to be recovered and the matter investigated at the earliest.”[Sabza Begum v. State of J&K, 2019 SCC OnLine J&K 666, decided on 08-07-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. disposed of the writ petition saying that the petitioner should approach the appropriate forum, in accordance with law as the respondents have complied with the condition to provide the reason for denying pension to the petitioner.

In this case, the petitioner was ordered to represent the dues payable to him and the respondent University was required to consider and pay the admissible dues of the petitioner within three months, failing which the dues were to carry simple interest at the rate of 10% per annum.

It was the duty of the respondents to give a reasoned order with regard to the admitted dues and details with regard to payment made, including a calculation chart. The learned counsel for the petitioner raised two grievances on account of earned leave and arrears of pension from February, 2003 to 31-12-2005. With regard to earned leave, he specifically mentioned that amount for 217 days was due whereas the University has sanctioned only 134 days, with the absence of a calculation chart to show the reasons for such a restriction.

The respondents filed a show-cause notice against the petitioner which said that the prayer for payment of arrears of pension from February, 2003 to December, 2005 had been rejected on the ground that the petitioner had opted for a different option which did not provide for the pension.

The Court held that their jurisdiction was to see whether the order of the writ Court has been complied with by the respondents. As there was no specific direction on merit with regard to payment of a pension or the number of days of earned leave, the respondents cannot be said to be in contempt if they have either denied or paid the earned leave for a lesser period. The Court advised the petitioner, to assail the same in accordance with law before the appropriate forum and ordered the respondents to provide a detailed calculation chart.

In view of the above-noted facts, the instant petition was disposed of accordingly.[Savitri Choudhary v. State of Bihar, 2019 SCC OnLine Pat 1236, decided on 29-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. entertained a writ petition where the petitioner, a workman was aggrieved by the order of the Deputy Labor Commissioner as his application under Section 14-A of U.P. Industrial Dispute Act, 1947 was rejected for punishing the respondent.

The petitioner contended that he was a workman in a private company since 2003. He was working as a Technician in the Noida factory but was subsequently transferred to Ranchi. Thereafter he contended that a settlement was reached between the Union and the Management wherein one of the stipulated conditions was that “the place of transfer of transferred employees would be changed as per the convenience of the employees concerned”. After the settlement, the said petitioner was transferred to Dehradun but due to his alleged involvement in the trade union activities, he was again transferred to Gauhati, thus, the petitioner alleged that such transfer was in clear violation to the settlement already made. Further, he made a request before the Labour Commissioner to cancel his transfer on the ground that such was violative to the settlement. It was submitted by counsel for the petitioner Singdha Tiwari that under Section 14-A of U.P. Industrial Dispute Act, 1947 i.e., Penalty for breach of a term of the award, there had been a breach of settlement committed by the respondent and he was liable for punishment.

The said application under Section 14-A was rejected by the Commissioner on the ground that what the petitioner was actually relying upon was the settlement which was executed between the Management and Union at Noida and therefore only the Labour Commissioner, Noida had jurisdiction to entertain this application.

The Court observed that Section 14-A of the Act, 1947 which the petitioner had invoked for redressal of his grievance had a long and chequered history. Initially, there was no such provision under the Act, 1947 or even in the Industrial Disputes Act, 1947. In the Act, 1947, Section 14-A was inserted by U.P. Act No. 34 of 1978. It made a breach of a binding settlement (or award) by any person a punishable offence. This provision was inserted as a deterrent to such employers who were earlier able to evade the implementation of an award or settlement. The Court noticed and stated that the provision gave more teeth to the Industrial Disputes Act. However, it was held that since Section 14-A of the Act, 1947 was related to an “offence”, the application would not lie either before the Labor Commissioner, of any place but it was only cognizable by the Magistrate, 1st Class, as such was the stipulation of the law.

The Court cited the relevant provisions which were Sections 15 and 16 of the said Act, and where it was mentioned ‘Offence to be deemed cognizable’ and ‘Cognizance of offence’, the Court further stated that the bare reading of the provisions showed that Magistrate was the only competent authority to adjudicate the matter. It was stated that the first authority which must take cognizance of the mater was the concerned District Magistrate or the public servant by the previous sanction of the DM. Hence, the Court found that the matter was decided by the Labor Commissioner on the point of jurisdiction, without properly adjudicating the real issue. It was held that though the provisions of CrPC were not strictly applicable but Sections 178 and 179 were to be applied and cognizance would have been taken up by the Magistrate rather than Commissioner. The Court allowed the writ petition only on the ground that Deputy Labor Commissioner was wrong in dismissing the application of the petitioner on ground of jurisdiction, before adjudicating with the matter, the Deputy Labor Commissioner must have proceeded in accordance with the law and after appreciating the facts of the case.[Rajesh Kashyap v. Rakesh Pandey, 2019 SCC OnLine Utt 630, decided on 04-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT), Mumbai: Coram of Justice Tarun Agarwala (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi (Judicial Member) directed SEBI to look into violation of market norms by Cairn India with respect to withholding of dividends along with interest payable to Cairn UK Holdings, the Appellant.

The Appellant created a foreign subsidiary in India called Cairn India which became a subsidiary of Vedanta in 2010-11. The Appellant filed a complaint stating that Cairn India did not pay the due dividends amounting to Rs 340.64 crores and hence brought an action before SEBI to direct them to pay the due dividends along with an interest of 18 percent per annum. In this action, they alleged that Cairn India was in violation of Sections 24 and 127 of the Companies Act, 2013. They also contended that SEBI had jurisdiction over the matter because the company was also in violation of the Regulation 4(2)(c) of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements).

SEBI disposed of the complaint and refused to take any action as it said that the unpaid dividend of over Rs 660.63 crores had already been handed over to the income tax authorities by the company and it could therefore not interfere. The Tribunal was of the view that if a company has violated the provisions of the Companies Act in not releasing the dividend when there was no embargo upon it, it is SEBI’s duty to inquire into the alleged violation and if it exists to take action against the said company under Section 124 of the Companies Act. This aspect has not been considered by SEBI. The Tribunal justified SEBI’s decision that since an amount has been transferred to the income tax authorities pursuant to some orders issued by them, the question of paying the dividend by the appellant along with interest does not arise. Therefore, it is open to the appellant to pursue remedies for the return of the dividend amount from the income tax authorities.

The Tribunal, in this case, allowed the appeal in part saying that while SEBI was correct in not interfering with the income tax authorities, it had to give an opportunity of hearing to the appellants.[Cairn UK Holdings Ltd. v. Securities and Exchange Board of India, 2019 SCC OnLine SAT 72, decided on 19-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J. entertained a writ petition which was initially filed in the Allahabad High Court in 1994.

Factual matrix of the case was that the petitioner was appointed as a Panchayat Mantri and thereafter the Panchayat Mantries were declared to be public servants. Petitioner sought leave for 15 days during his course of employment. Respondent demanded a health certificate by the petitioner, however, he failed. The services of the petitioner were terminated on various grounds; he questioned his termination on the principle of natural justice.

State Public Services Tribunal on the sole ground that the impugned order of termination dated had been passed with retrospective effect and the State Public Services Tribunal quashed the said order of termination and held that the order of termination cannot be passed with retrospective effect.

While the Tribunal held that the petitioner had been absent from duty throughout, and had filed the Claim Petition after a period of more than 12 years, the State Public Services Tribunal observed that, since the order of termination was void, the law of limitation had no application on void orders; but no order related to the payment of salary for intervening period was passed as the petitioner was at fault.

The Court in the instant writ held that while it was debatable whether the Tribunal was entitled to grant the relief sought for in the Claim Petition, despite the employee had invoked its jurisdiction 12 years’ after the order of termination was passed. The Court felt that it was inappropriate to examine that aspect since the Government had filed a Writ Petition before the Allahabad High Court questioning the very same order passed by the Tribunal, albeit to the extent the order of termination was quashed and the petitioner was reinstated into service. Hence the examination in the Writ Petition was limited to the action of the Tribunal in denying the petitioner salary for the period between the dates of his termination till the date on which the petitioner was required to join duty.

The writ was filed challenging the order passed by the State Public Services Tribunal, Lucknow where it quashed the termination order of the petitioner and had held it illegal and void. It further directed respondents to reinstate the petitioner and pay him salary and dues. The Tribunal, however, observed that no orders were passed for payment of salary to the petitioner, for the intervening period, on account of his continued absence from duty.

The Court held that, “unlike an appellate authority which can reappreciate the evidence on record, the High Court, in the exercise of its certiorari jurisdiction, would not substitute its views for that of the Tribunal, nor would it reappreciate the evidence on record to arrive at a conclusion different from that of the Tribunal whose order is impugned before it.”

The Court found no error in the order of the Tribunal as to pass certiorari, hence saw no reason to interfere with the order of the Tribunal in denying the salary from the date of the termination till reinstatement. The Court observed that “Having approached the State Public Services Tribunal after a period of 12 years, the petitioner cannot be heard to contend that he should also be paid his salary for the intervening period from the year 1980 to 1992 when he approached the Tribunal, even though it was he who had slept over his rights for around 12 years.”[Naresh Kumar Jain v. State Public Services Tribunal, 2019 SCC OnLine Utt 613, decided on 16-07-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumar Phukan, J. allowed a criminal petition filed against the order of the trial court whereby the petitioner-husband was directed to hand over the custody of the minor daughter to the respondent-wife.

The parties were married to each other and a daughter was born to them — presently around 3 years old. After the birth of the daughter, the respondent developed physical ailments for which she had to undergo treatment at various places. It was an admitted fact that presently the parties were residing separately and the respondent was staying at her paternal home. The daughter resided with the father. In January 2019, the respondent was admitted to a hospital and requested the petitioner to bring the daughter to see her. The petitioner did accordingly. However, on the very next day, the respondent went to the petitioner’s house to bring back the daughter with her. She also filed a petition under Section 97 (search for persons wrongfully confined) CrPC, stating that under Section 6 of the Hindu Minority Act, she was the natural guardian of the child and therefore she should be given her custody. The trial court ordered that the custody of the daughter be handed over to the respondent. The said order was affirmed by the Sessions Judge in revision. Aggrieved thus, the petitioner filed the present petition.

A.M. Bora, Advocate made submissions on behalf of the petitioner. While the respondent was represented by Dr B.U. Ahmed, Advocate.

In hIgh Court’s opinion, for invoking the special provision of Section 97, it was to be seen whether the child had been wrongfully confined by the petitioner. In addition to the above facts, it was noted that the child was wrongfully left by the respondent in the custody of the petitioner because of her ill health since 2017. In such circumstances, it could in no way be stated as confinement. It was observed: “… strangely, the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 CrPC. The provision of custody of the child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the Code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating the proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.”

In such view of the matter, it was held that the impugned orders were passed without jurisdiction and were therefore quashed.[Sanjeev Kumar Singh v. O. Mema Devi, 2019 SCC OnLine Gau 2874, decided on 16-07-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J. dismissed an admiralty suit filed by the plaintiff insofar as he claimed wages under the provision of Section 129 of the Merchant Shipping Act, 1958.

The plaintiff was a seafarer and worked as Chief Engineer on board two shipping vessels — namely, Malaviya Thirty-Three and Bharati-S — both owned by GOI Offshore Ltd., which was under liquidation. According to him, wages which were due to him from working on both the vessels were not paid to him. He claimed the same under the present suit along with interest. The plaintiff further claimed wages under Section 129 of the Merchant Shipping Act.

Vikrant Shetty, counsel for the plaintiff, contended that Section 129 provides for time of payment of wages, and if the payment is not made within such time, the plaintiff is entitled for further payment of wages for the delayed period. Per contra, counsel for the defendant, S. Priya along with Aparna Sinha, did not dispute the plaintiff’s claim for the payment of wages payable for his employment on the two vessels. She, however, disputed the claim raised under Section 129.

The question before the Court was whether the plaintiff was entitled to approach the Court to claim the amount under Section 129 of the Merchant Shipping Act?

After discussing the provisions of Section 129 (time of payment of wages) and Section 132 (decision of questions by shipping masters), the High Court observed: “any claim for wages under Section 129 can be made only to the shipping master and if the shipping master passes an order within the limit of his jurisdiction, that could be enforced by a Judicial Magistrate of the first class or a Metropolitan Magistrate as provided in Section 132(3) as an order for payment of wages made by such Magistrate.”

It was noted that there are no averments in the plaint whatsoever as to how the plaintiff claims he is entitled to the amounts as claimed under Section 129 of the MS Act. Finally, it was held that since the jurisdiction is not with the High Court but only with the shipping master under Section 129, the Court could not determine the claim under Section 129. Therefore, the claim to such extent was rejected.[Jagdish Singh Bhaduria v. Bharati-S, 2019 SCC OnLine Bom 1179, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Coram of Justice A.I.S Cheema (Judicial Member) and Justice Balvinder Singh (Technical Member) set aside the judgment passed by National Company Law Tribunal, Hyderabad Bench (NCLT) and directed the cancellation of entry of the name of appellant in the register of member of respondent 2 showing equity shares purported to have been credited on the basis of conversion of Compulsory Convertible Debentures (CCDs) standing in the name of appellant.

In the present case, appellant company had filed a Company Petition claiming rectification in the register of member of respondent-company, seeking cancellation of entry of the name of petitioner in the Register of Members of respondent-company showing 906599 equity shares purported to have been credited on the basis of conversion of 906599 CCDs standing in the name of the petitioner. The aforementioned Company Petition under Section 59 of the Companies Act, 2013 was then dismissed by NCLT, Hyderabad claiming that the issues raised were complex and could not be dealt with by NCLT. NCLT ruled that in Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd., (1998) 7 SCC 105 it was held that in case of a serious dispute as to title, the matter could be relegated to a civil suit. Aggrieved by the said order, the instant appeal was filed.

Learned counsel for appellant Arun Kathpalia, argued that after passing of Companies Act, 2013 the aforementioned case did not hold good in the light of the bar on civil courts. He submitted that in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC OnLine SC 223 the Supreme Court had held that after Companies Act, it is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the NCLT under Section 59 of the said Act”.

Further, Section 430 of the Companies Act, states that “Civil court will not have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.”

On the basis of above arguments and in view of the law laid down in NEPC Micon case, it was held that NCLT had jurisdiction to deal with all the cases which dealt with questions regarding rectification and all questions incidental and peripheral to rectification, for the purpose of deciding the legality of the rectification. It was opined that in the present matter, there were really no complex questions involved and even if it were then the same had to be decided by the NCLT and in appeal, this Tribunal was bound to consider whether or not entry made in the Register of Members could be upheld

Hence, the impugned judgment was set aside and cancellation of entry of the name of the appellant in the register of members of respondent 2 showing equity shares purported to have been credited on the basis of conversion of CCDs standing in the name of the appellant was directed.[MAIF Investment India PTE Ltd. v. Ind-Barath Power Infra Ltd., 2019 SCC OnLine NCLAT 203, decided on 28-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]