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

National Consumer Disputes Redressal Commission: While deliberating upon the instant revision petition claiming medical negligence on part of the doctors who had left a sponge in the complainant’s abdomen after performing a LSCS surgery; the coram of Justice R.K. Agarwal (President) and S.M. Kantikar (Member), relying on the cases of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 and Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care thus constitutes medical negligence. Therefore, without any hesitation, the Commission held the opposite parties liable for medical negligence. The Commission also directed the opposite parties to pay Rs. 5 lakhs to the complainant within 6 weeks from the receipt of the copy of this order.

Facts and Legal Trajectory of the Case: Dr. A.K. Jain and Dr. Usha Jain (opposite party 1 and 2) performed a Caesarian delivery (LSCS) of Sweta Khandelwal (complainant) at Rishabh Medical Centre, Delhi. was later discharged on 18-09-2012, even though her condition was not good. She approached the doctor again, but she was sent back stating that everything was fine. Her stitches were removed, but she was still not feeling well. She visited the doctor again, who told her that it was a problem of indigestion. On 23-09-2012, she developed unbearable abdominal pain and her abdomen was swollen like a balloon. On the next date, she was admitted to St. Stephen Hospital at Delhi and was operated. During the operation, the doctors found an infected sponge and 1.5 liters of pus in the pouch of Douglas (POD). She was discharged on 11-10-2012.

Being aggrieved by the alleged carelessness of the Opposite Party, the Complainant filed a Complaint before the District Forum, East Delhi. The District Forum, upon hearing the parties, partly allowed the complaint and awarded a compensation of Rs. 10 lakhs against the opposite parties. Later the opposite parties filed the First Appeal before the State Consumer Disputes Resolution Commission, Delhi; who allowed the Appeal and dismissed the Complaint. Being aggrieved with the decision of the State Commission, the Complainant filed the instant petition.

Contentions: The complainant submitted that this was a case of gross negligence on the part of the opposite party, as it was them who left the sponge inside her abdomen during the LSCS operation.

The complainant also presented the observations made by the Delhi Medical Council who duly noted that- “The sponge recovered at St. Stephens Hospital, was left negligently in the abdomen of the patient during LSCS procedure performed at Rishabh Medical Centre and Dr. Usha Jain made an error in judgement by not investigating diligently the cause of the post-operative abdominal pain reported by the patient and by simply attributing the same to gas”.

Per contra, the opposite parties contended that the complainant concealed the previous LSCS done five years back and it was a possibility that the sponge remained there since then. The opposite parties also submitted the Final Order given by the Disciplinary Committee of the Delhi Medical Council, where they held that – “It cannot be conclusively proved that any professional misconduct of gross nature should be attributed to the doctors of Rishabh Medical Centre and a benefit of doubt may be granted to the doctors with an advice to further improve the surgical protocols at the place of their practice”.

Analysis and Observations: Perusing the rival contentions and facts of the dispute, the Commission considered the relevant surgical textbooks in order to get some clarity into the procedures involved in a LSCS operation.

  • Drawing the inference that in cases of Gossypiboma prevention is always better than cure, the Commission noted that WHO surgical safety checklist should be strictly followed in such cases. In case of discrepancies, appropriate action should be taken immediately to decrease morbidity of the patient. In case, patient presents with post-operative complications like fever with abdominal pain or discharge from wound, a high index of suspicion for retained sponge should be considered.

  • While deliberating upon the argument presented by the opposite party about the possibility of the gauze being left by a previous LSCS operation, the Commission expressed its surprise that an experienced Gynaecologist like the opposite party, while examining the patient, failed to see the operative scar of a previous LSCS operation on the complainant’s body.

  • The Commission also examined the Medical Record of St. Stephen’s Hospital where it was noted that the sufferings of the complainant were due to the pelvic abscess because of a retained sponge after LSCS.

Decision: With afore-stated analysis, the Commission concluded that the principles and constituents of medical negligence are now well established via Jacob Mathew and Achutrao Haribhau Khodwa cases. Therefore, based on the facts and reports, the Commission held that the opposite parties have been negligent. “We agree that the mistakes can and do happen, at the same time, an operation is a stressful experience, enduring pain and discomfort afterwards can worsen this emotional distress, not only for a patient but also for her husband and loved ones”.

The Commission also rejected the Final Order of the Disciplinary Committee of the Delhi Medical Council and modified the compensation granted by the District Foram.

With the afore-mentioned decision, the Commission partly allowed the instant revision petition filed under Section 21(b) of the Consumer Protection Act, 1986.

[Sweta Khandelwal v. A.K. Jain, 2022 SCC OnLine NCDRC 70, decided on 03-06-2022]


Advocates who appeared in this case

Anish Verma, Advocate for Petitioner

Pankaj Singhal, Advocate with Dr A.K. Jain – in person for Respondents


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising Uday Umesh Lalit, S. Ravindra Bhat*, Pamidighantam Sri Narasimha, JJ., reversed NCDRC’s findings where it had relied on third-party DGFT Guidelines to interpret the date of ‘despatch/shipment’ in the Single Buyer Exposure Policy of the respondent, and thereby deny the appellant’s claim.

The respondent had treated the date on which loading commenced as the date of despatch/shipment’ to reject the appellant’s insurance claim. Deciding the case in favour of the appellant, the Court held,

“The term ‘despatch’ contained in the policy implied ‘completion’ of handing over of possession of the goods to the first carrier (the ship), and not the date on which the loading ‘commenced’ such an interpretation would give rise to an absurdity.”

Factual Matrix

The appellant was an exporter of fish meat and fish oil, who had obtained an insurance cover of ₹ 2.45 crores for foreign buyers’ failure to pay for goods exported from Export Credit Guarantee Corporation Ltd. (ECGC), a government company (under the control of the Ministry of Commerce and Industry, Union Government). ECGC provides a range of credit risk insurance cover to exporters.

The vessel (Tiger Mango Voyage 62) set sail on 15-12-2012. The Bill of Lading was prepared on 19-12-2012, with a line specifying the date of ‘onboard’ (i.e., date on which vessel commenced loading the goods in question on board) as 13-12-2012. The vessel delivered the goods on 22-01-2013, however, the overseas buyer defaulted on payment which gave rise to the appellant’s claim lodged with ECGC on 14-02-2013.

ECGC rejected the appellant’s claim stating that since the date of ‘despatch/shipment’ was not clearly defined in the policy, reliance was to be placed on the definition contained in the Directorate General of Foreign Trade (DGFT) Guidelines. As per which, for containerized cargo, the date of ‘despatch/shipment’ was to be interpreted as the date of ‘Onboard Bill of Lading’, which was 13-12-2012, i.e., a day prior to the effective date of the Policy, i.e., 14-12-2012. Therefore, ECGC reasoned that the appellant was not entitled to the claim amount.

The appellant, feeling aggrieved, complained of deficiency of service, and approached the NCDRC for compensation. By the impugned order, NCDRC upheld the rationale of the ECGC and rejected the appellant’s claim.

Analysis and Conclusions

Common Business Sense

Rejecting the interpretation of the terms ‘despatch/shipment’ as construed by ECGC, the Court opined that in event of confusion the disputed terms need to be interpreted in a common business sense. The Court stated,

“The date of loading goods onto the vessel, which commenced one day prior to the effective date of the policy, is not as significant as the date on which the foreign buyer failed to pay for the goods exported, which was well within the coverage period of the Policy.”

Reliance was placed by the Court on Peacock Plywood (P) Ltd. v. Oriental Insurance Co. Ltd., (2006) 12 SCC 673, to hold that while interpreting insurance contracts, the risks sought to be covered must also be kept in mind. Further, the Court opined that the date of loading the goods onto the vessel was immaterial to the purpose for which the policy was taken by the appellant. The Court noted,

“A plain reading of the policy in question demonstrates that it was taken to protect against failure of the foreign buyer in paying the Indian exporter for goods exported. It was not a policy taken to cover in-transit insurance, and the cause of action triggering the claim arose much later, i.e., on 14.02.2013, well within the coverage of the policy.”

Interpretation of Despatch/Shipment

The Court opined that on harmoniously construing the documents of the policy, it is, in fact, the date on the Bill of Lading, and not the Mate’s Receipt/date of shipment which ought to be considered as the date of ‘despatch/shipment’, for the Bill of Lading is the legal document conferring title and possession of the goods to the carrier. Therefore, the Court held that reliance on the DGFT Guidelines to disallow the claim of the appellant was not good in law.

Further, the Court observed that even if the third-party DGFT Guidelines were to be applied, it would not favour the ECGC, as a plain reading of provision 9.12 of the guidelines shows that the date on the Bill of Lading has to be considered as the date of despatch/shipment.

Conclusion

In the backdrop of above, the impugned order of the NCDRC was set aside; the appellant’s complaint was consequently allowed. ECGC was directed to pay the claim amount of Rs. 1,96,38,400/- crores to the appellant, with interest at the rate of 9% p.a.

[Haris Marine Products v. Export Credit Guarantee Corpn. Ltd., 2022 SCC OnLine SC 509, decided on 25-04-2022]


*Judgment by: Justice S. Ravindra Bhat


Appearance by:

For the Appellant: Ms Anjana Prakash, Senior Advocate

For the ECGC: Mr Rajnish Kumar Jha, Advocate


Kamini Sharma, Editorial Assistant has put this report together


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Case BriefsTribunals/Commissions/Regulatory Bodies

National Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), on finding that a child was found to be HIV positive after 5 years of his operation for correction of diaphragmatic hernia, held that compensation, in this case, cannot be measured in monetary terms.

Background


The appellants challenged against the impugned order passed by the State Consumer Disputes Redressal Commission whereby the appellants 2 and 3 were directed to pay a sum of Rs 10 lakh holding liable for medical negligence.

Facts of the Case


The complainant, Master Akash after the birth at the age of 3 days was operated on for the correction of diaphragmatic hernia and the same was performed by OP 3 at Kalawati Saran Children Hospital (OP 2). During the operation, the baby was given a blood transfusion twice and the blood was brought from the Blood Bank at Sucheta Kriplani Hospital (OP 4).

In the year 2003, Master Akash developed a disease of eye and after consultation, X-rays chest, blood test were conducted, but it was alleged that the treating Doctor never advised HIV testing because of fear being exposed. Again in 2005, the child suffered diffuse pain in the abdomen and was consulted in OPD and on the insistence of the well-wishers, the parents of Master Akash got HIV Testing Done.

In 2006, it was reported that the child was HIV Positive – AIDS and he was admitted for further treatment to Safdarjung Hospital. Later, he remained under observation at AIIMS and Safdarjung Hospital.

Further, it was alleged that the entire episode was a sheer deficiency and medical negligence on the part of the OPs.

On being aggrieved, the complainant filed a complaint before the State Commission seeking compensation of Rs 22 lakhs and 18% interest. The State Commission partly allowed the complaint and directed the OPs 2 and 3 to pay Rs 10 lakhs as compensation.

Further, on being aggrieved with the above, the present appeal was filed by the OPs.

Analysis, Law and Decision


The Commission observed that,

“Contaminated blood is a potential source of transmission of HIV.”

In view of the above, the possibility of contracting HIV from blood or other blood-contaminated appliances cannot be excluded in the case of Master Akash.

Coram noted that, the Opposite Parties failed to produce the blood bank register and the test reports to prove that the blood units were HIV negative. It is pertinent to note the B+ blood was issued twice.

Further, it was evident that the child Akash was detected HIV positive in the year 2006 i.e. after 5 years of blood transfusion and during the said period he frequently suffered recurrent respiratory tract infections and took treatment from various hospitals.

Coram stated that, there was a possibility of HIV infection due to other sources cannot be ruled out. Hence, it is difficult to conclusively attribute the negligence of the OPs who transfused blood to Master Akash.

“…the child contracted HIV and throughout his life he has to live with HIV and he subsequently likely to develop complications of AIDS.”

Therefore, considering the facts and the nature of disease, in the ends of justice, Commission affirmed the compensation awarded by the State Commission.

Coram added that, the allegation of the Complainant’s son of having contracted HIV from the transfusion of contaminated blood at KSCH, which was supplied by RSSB blood bank. As per Schedule F (K) to the Drugs and Cosmetic Rules, it is made to try to perform tests on blood for transmissible diseases like HIV, Hepatitis B and C, Malarial Parasites, VDRL and syphilis. Complete donor screening with a detailed questionnaire was very important.

“If the blood donors are in window period, HIV test may be negative.”

The next pivotal question is whether or not the treating doctor had taken a valid or real Consent from the Complainant before the blood transfusion.

The OPs did not place any cogent evidence in regard to the above, hence it amounts to a deficiency in service of the treating doctors.

Moving further, the Commission found that it has been 2 decades, therefore at this stage discussion on “ifs” and “buts” is certainly injustice to the HIV victim and against the object of the benevolent Consumer Protection Act.

Coram noting the fact that the complainant had claimed compensation of Rs 22 lakhs with interest @18% per annum expressed that, to award just and fair compensation, several points are to be considered like the actual expenses for the medical treatment, travel and emotional sufferings of the parents.

Adding to the above, the Commission stated that the life expectancy of Master Akash cannot be ignored and the same would depend on strict regular ART and a healthy diet.

“At present, the child is around 24 years of age. Certainly, he has already undergone untold sufferings and in future, he will still continue to suffer HIV related stigma and discrimination. The compensation cannot be measured in monetary terms.”

Hence, in Commission’s opinion, on priority, the child should be provided adequate health facilities and benefits through different welfare schemes of the Government for HIV Positive people.

In view of the above discussion, the appellant was directed to pay Rs 10 lakhs to the complainant. [Government of India v. Master Akash, FA No. 764 of 2012, decided on 25-5-2022]


Advocates before the Commission:

For the Appellants: Mr Sanjib Kumar Mohanty, Advocate

For the Respondents: Mr Deepak Dewan, Advocate and Mr Virender Kumar, AR

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

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a medical negligence case, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, observed that, Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face.”

An appeal was filed against the State Commission’s order wherein it had granted Rs 20 lakhs without interest which was much less than reasonable and just compensation.

The three grounds for the present appeal were:

(A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.

(B) The interest to be awarded on the amount of compensation either from the date of surgery (06.02.2006) or from filing of the complaint before the State Commission, New Delhi (2007)

(C) To Hold the doctor guilty and impose fine/penalty upon him.

Analysis, Law and Decision


In Commission’s opinion, the impugned order in both the appeals was unsustainable and in the present case, the final arguments were heard by two members –Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid a fresh hearing in the case, the Judicial Member thought it was advisable to pronounce the final order himself.

In the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly. This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience. 

Coram set aside the order challenged as the same was illegal.

After the remand, the matter was heard, and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants.

Commission, noted that,

further note that, the DMC has made strong observations on the patient management in G.M. Modi Hospital as it was in very lackadaisical manner. The hospital had inadequate manpower, lack of coordination, no proper record keeping of in-ward and outward (dispatch) of specimen of histo-path. The operative findings and the follow-up advice were not recorded properly. Thus, the hospital ignored all treatment protocols and the surgeon blandly violated the standard norms. Though, in this case the operated specimen was handed over to the patient’s relative for HPE examination but Dr. Panigrahi did not bother to see/know about the report. However, the patient relatives denied about receipt of any specimen. As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE. It is unfortunate that subsequently the patient developed metastasis in liver and other parts of body and she lost the chance of early cancer therapy. In our considered view it was ‘negligence per se’ of the hospital and the treating surgeon Dr.Panigrahi. The DMC further observed that only CBD exploration was done to claim money from CGHS though admittedly laparoscopic small bowel resection was not done but it was mentioned in discharge summery. The DMC removed the name of Dr. A.K. Panigrahi for 12 weeks from the State Medical register.

Coram expressed that, in negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages.

Compensation in Medical Negligence Cases

It was noted by the Commission that, in the present case, the Surgeon failed in his duty of care, and it was not a reasonable standard of practice, thus he was negligent.

The State Commission ignored the medical negligence of the Surgeon; and for the qualitative change awarded Rs 20 lakh as compensation.

Hence, in Commission’s opinion, the medical negligence was attributed to the doctor and hospital, and the Complainant deserved the compensation. Therefore, the compensation was modified, that Rs 20 lakhs have to be paid just and fair, and therefore the view taken by the State Commission for the need of qualitative change in the functioning of the hospital was endorsed and the hospital shall pay Rs 5 lakhs more to the Complainant.

Since it has been 1 ½ decade since the incident occurred, the complainant deserves an interest on the total quantum of the award.

Conclusion

The impugned Order was modified to the extent that the treating Surgeon was liable for medical negligence; as well, the hospital was vicariously liable. The hospital needed qualitative change and systemic improvement also. Therefore, on the basis of the foregoing discussion, OP 1 and 2 shall pay total compensation of Rs 25 lakhs with interest of 6% pa and cost of litigation shall remain at Rs 1 lakh only. [Vishnu Priya Giri v. G.M. Modi Hospital Research Centre for Medical Sciences, 2022 SCC OnLine NCDRC 58, decided on 13-5-2022]


Advocates before the Commission:

For the Appellant: Mr Jalaj Agarwal, Advocate Mr Alok Chaudhary, Advocate with Appellant in person

For the Respondent: Mr Sanjeev Kumar Dubey, Sr. Advocate with Mr Rajmangal Kumar, Advocate for R-1

Ms Mary Mitzy, Advocate for R-2

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

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath, Presiding Member, held that the complainant was not investing money in the share market exclusively for earning his livelihood, hence the same was he did not fall under the definition of Consumer.

Instant revision was filed by the petitioner under Section 21(b) of the Consumer Protection Act, 1986 against the order passed by the State Consumer Disputes Redressal Commission.

The revision petition was filed with a delay of 116 days.

Factual Background

The complainant/petitioner had purchased 2000 equity shares of Aravinda Remedies and 200 equity shares of Reliance Power Ltd. by making payments of Rs 13,700 and Rs 49,400 respectively. The OP delivered 1000 shares of Aravinda remedies instead 2000 shares amounting to Rs 6,850 leaving a refundable amount of Rs 6,850.

Further, OP delivered 200 shares of Reliance amounting to Rs 47,400 leaving a refundable amount of Rs 1,960. When the complainant enquired about his Demat Account, he came to know that 200 shares of Reliance Power Ltd. were transferred to the account of Ureka Stock and Share Broking Services without intimation to the complainant.

The OP also did not make a payment of Rs 27,480 being the differential price of the share which were credited to the Demat account of the complainant.

Aggrieved by the non-refunding of the aforesaid amount by the OP, the complainant filed the consumer complaint.

Complaint was partly allowed before the District Forum and on being aggrieved with the same, the complainant approached the State Commission, wherein the matter was remanded to District Forum and the forum dismissed the complaint as barred by limitation.

Further, the State Commission also dismissed the appeal since the transactions involved were commercial in nature.

Analysis, Law and Decision

Maintainability

State Commission had dismissed the complaint with the observation that the complainant was not a “consumer” as he was dealing in the share market.

As per Section 2(1)(d) of the Consumer Protection Act, 1986, a consumer is a person who buys goods or hires or avails services for consideration. The said section, however, carves out an exception by providing that the person who purchases goods or hires/avails services for the commercial purposes shall not be included in the definition of consumer.

Though Explanation to Section 2(1)(d) provides that if such services are availed exclusively for earning livelihood, he will be considered as a “Consumer”.

State Commission relied on the Judgment of this Commission in Steel City Securities Ltd. v. G.P. Ramesh, Revision Petition No. 3060 of 2011 and dismissed the complaint with the observation that the transaction was commercial in nature and the complainant was not a “consumer”.

Supreme Court’s decision in Morgan Stanley Mutual Funds v. Kartick Das, (1994) 4 SCC 224 was also cited, and the law laid down by the Supreme Court still holds good.

“33. Certainly, clauses (iii) and (iv) of Section 2(1)(c) of the Act do not arise in this case. Therefore, what requires to be examined is, whether any unfair trade practice has been adopted. The expression ‘unfair trade practice’ as per rules shall have the same meaning as defined under Section 36-A of Monopolies and Restrictive Trade Practices Act, 1969. That again cannot apply because the company is not trading in shares. The share means a share in the capital. The object of issuing the same is for building up capital. To raise capital, means making arrangements for carrying on the trade. It is not a practice relating to the carrying of any trade. Creation of share capital without allotment of shares does not bring shares into existence. Therefore, our answer is that a prospective investor like the respondent or the association is not a consumer under the Act. Q. 2: Whether the appellant company trades in shares?”

Hence, the complainant was not a consumer and the state commission had passed a well-reasoned order. [Baidyanath Mondal v. Kanahaya Lal Rathi, 2022 SCC OnLine NCDRC 62, decided on 29-4-2022]


Advocates before the Commission:

For the Petitioner: Mr Sahej Uban, Advocate with Petitioner in Person

For the Respondent: Mr Kanhaiya Lal Rathi (Respondent No.3 in person and

AR for Respondents Nos. 1 & 2)

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

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) expressed that, customer avails of Locker hiring facility is so that they may rest assured that their assets are being properly taken care of, but in the present matter, OP Bank failed to take care of the assets.

Instant appeals were filed against the order passed by the State Consumer Disputes Redressal Commission, Jharkhand whereby the complaints filed were partly allowed and the State Bank of India was directed to pay a lump sum compensation of Rs 30,00,000.

In the present matter, the complainants had Saving Bank Account and several High Value Fixed Deposit Accounts for nearly last four decades with the State Bank of India (OP Bank). They were also allotted Safe Deposit Locker by the OP Bank.

During the intervening night, a theft took place in the OP Bank as a result of which various items including jewellery and postal deposit instruments which were kept in the Safe Deposit Locker by the complainants were taken away by the miscreants/thieves.

The OP Bank did not intimate about the above-stated and on reaching the bank they got to know that their Safe Deposit Locker had been broken open and burgled. Further, the complainants met the Officer of the OP Bank, who confirmed the incident and asked them to furnish a list of their valuables.

Complainants alleged deficiency in service on the part of the OP Bank, the complainants filed a consumer complaint before the State Commission seeking compensation.

On being aggrieved with the impugned order passed by the State Commission, while the OP-Bank had filed appeals for setting aside the order by the State Commission, complainants preferred the cross-appeals for enhancement of the compensation awarded by the State Commission.

Analysis and Decision


Commission expressed that the purpose for which the customer avails Locker hiring facility is so that they may rest assured that their assets are being property taken care of, but in the present matter, OP Bank failed to take care of the assets/valuable articles of the Complainants which were lying in the Lockers provided by the OP Bank.

Further, the Coram added that although the stolen goods were seized by the Police and the complainants could identify only small quantity of their jewellery because most of the jewellery was in distorted shape due to rough handling by the burglars and a substantial quantity of jewellery was melted and transformed into gold biscuits, yet the OP Bank cannot be absolved from the deficiency in service on their part.

Therefore, no interference with the well-reasoned order was required. [SBI v. Gopal Prasad Mahanty, 2022 SCC OnLine NCDRC 48, decided on 7-4-2022]


Advocates before the Commission:

For the State Bank of India: Mr. Jitendra Kumar, Advocate

For the Complainants: Mr. Gopal Prasad Mahanty, in-person

Mr. Shashi Bhushan Kr., in person

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

National Consumer Disputes Redressal Commission (NCDRC): The Coram of R.K. Agarwal (President) and Dr S.M. Kantikar (Member) addressed a matter wherein a father had to face embarrassment and mental agony due to the sudden cancellation of rooms booked for his daughter’s marriage which resulted in claiming of compensation.

As per the facts of the case, the marriage of Complainant 1’s daughter was fixed and about 6 months in advance 25 rooms were booked for stay in ‘The Fern-An Ecotel Hotel’ – OP. After a span of 4 ½ months of booking, the hotel sent an email to the complainant about cancelling the said booking on the ground of the non-availability of rooms because of maintenance work.

Further, it was alleged that the reason for maintenance by the OP was completely false and malafide, though the hotel booking was open on the website during the said period.

Aggrieved by the deficiency in service, the conduct and negligent act of the OP, the consumer complaint was filed before the State Commission for Rs 23,45,500 for damages and mental agony.

Analysis, Law and Decision


Coram noted that there was no existence of any agreement between the parties and the appellant cancelled the booking and offered to refund the booking amount, but the complainants did not prefer to collect the amount but filed the Consumer complaint before the State Commission with the highly inflated claim.

For the above, Commission stated that bare quotation is not a confirmation of booking and there should be an agreement between the parties.

“The memories of marriage ceremonies are lifetime events in the life of bride and bridegroom and their family members to make their moments memorable. In our country, certainly, it is not an easy task for the parents to arrange their daughter’s marriage in a five-star hotel in place like Jaipur or any big cities. All of sudden cancellation of booking about 3 months prior to the date of marriage on account of maintenance is not acceptable reason.”

Elaborating further, Commission added that, in most of the star hotels, the maintenance schedule /calendar is fixed well in advance. As in the instant case, the Opposite Party was under the knowledge that the maintenance work would be completed up to 31.3.2012. Therefore, at the first instance only, the Opposite party would have rejected the booking.

In Coram’s opinion, the hotel management was at serious fault, which was well aware of their schedule of maintenance and the room reservations well in advance and the unilateral cancellation of rooms certainly caused huge loss and mental agony to the complainant and his family.

Hence, the act of the OP amounted to a deficiency of service which needed just and reasonable compensation to the complainants.

First appeal was allowed in view of the above discussion and OP was directed to pay Rs 2,53,950 to the complainants along with interest @9% per annum from the date of cancellation of the booking. [Fern-An-Ecotel Hotel v. Navratan Nahata, FA No. 750 of 2013, decided on 21-1-2022]


Advocates before the Commission:

For the Appellant : Mr. Sanjiv Arora, Advocate Mr. Shubham Arora, Advocate

For the Respondent : Mr. Ashok Mehta, Senior Advocate

Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

18 Reports to Read


Competition Commission of India (CCI)


Star India providing bouquet of channels at lesser prices resulting significant loss in consumer base of Asianet Digital Network: Star India abusing dominance of its position? 

The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) noted allegations against Star India for providing a bouquet of channels at lesser prices resulting in denying of market access and also amounting to unfair pricing.

Read full report here…

7 entities indulged in anti-competitive agreement for supply of signages for branches/offices/ATMs of SBI: E-mails exchanged between parties formed basis for manipulation of bidding process

Noting that in respect of cases concerning cartels that are hidden or secret, there is little or no documentary evidence and may be quite fragmentary, Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members)  imposed penalties on 7 entities and signages for bid-rigging activities and cartelization with respect to the supply of signage for branches, offices and ATMs of State Bank of India.

Read full report here…

Forcing buyers to purchase insurance policies?  Even if dealers offer to sell insurance policies to customers, customers may yet have option to buy such policies from alternative channels

The Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) addressed a matter wherein it was alleged that certain Car Companies were abusing their dominant position and denying the cashless claim to consumers if the insurance policy had not been obtained through them, their dealers or their insurance broking companies.

Read full report here…


Customs, Excise and Service Tax Appellate Tribunal (CESTAT)


Amount deposited during the investigation, ipso facto, becomes pre-deposit when the assessee carries the dispute before the Appellate Forum

Anil Choudhary (Judicial Member) dismissed applications filed by the Revenue pertaining to rectification of mistakes.

Read full report here…


Income Tax Appellate Tribunal (ITAT)


Notice issued against a dead person is null and void and all consequent proceedings/orders being equally tainted are liable to be set aside

The Coram of Amit Shukla (Judicial Member) and Pradip Kumar Kedia (Accountant Member) allowed an appeal against a revisional order passed under Section 263 of the Income Tax Act, 1961.

Read full report here…

Does Income Tax Act prohibit HRA Exemption On Rent Paid To Wife?

An appeal was filed by the assessee against the order of CIT(A)-21, New Delhi dated 21-01-2019 before the bench comprising of Sh. A. D. Jain (Vice-President) and Dr. B. R. R. Kumar (Accountant Member).

Read full report here…


National Consumer Disputes Redressal Commission (NCDRC)


When a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty

The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) expressed that, when a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty.

Read full report here…

Will Tax deducted at source be attracted on compensation awarded under Consumer Protection Act “in the form of simple interest”?

The Coram of Dinesh Singh (Presiding Member) and Justice Karuna Nand Bajpayee (Member) expressed that in the ‘service’ of ‘housing construction’, if, in a particular case, “compensation” is computed “by way of interest” on the deposited amount it shall not be differently treated than the other cases in which the term “interest” may not at all be used in computing the compensation.

Read full report here…

If a person conceals facts about pre-existing fatal disease at the time of taking insurance, would it be a breach of insurance contract?

The Coram of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee (Member) upheld the decision of the District Commission with respect to concealment of pre-existing fatal diseases at the time of taking insurance.

Read full report here…

Consensus between dentists and patients essential to standardize treatment plans and methods: No X-ray conducted prior to performing root canal treatment: Read how NCDRC found dentist negligent

Expressing that, the consensus between the dentists and patients is essential to standardize treatment plans and methods, Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a case of dental negligence and remarked that,

“The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.”

Read full report here…


National Company Law Tribunal (NCLT)


Whether Shareholders have the right to remove Directors of a company? NCLT explains in light of Companies Act, 2013

Expressing that the management of business affairs in a company is not a sole duty of a Director, the results of a company’s performance is a team of work of Board of Directors, the Coram of Ashok Kumar Borah, Judicial Member and Shyam Babu Gautam, Technical Member, held that, Companies Act gives shareholders the right to remove the Directors of the company.

Read full report here…

National Company Law Tribunal orders insolvency proceedings against Supertech: Indebted and defaulted repayment of loan

The Coram of P.N. Prasad, Judicial Member and Rahul Bhatnagar, Technical Member, declared insolvency proceedings against the builder Supertech Limited.

Read full report here…

Logix Insolvent? NCLT initiates insolvency proceedings against Logix City Developers

The Coram of Bachu Venkat Balaram Das (Judicial Member) and Narender Kumar Bhola (Technical Member) initiates insolvency proceedings against Logix City Developers due to default in payment.

Read full report here…


National Company Law Appellate Tribunal (NCLAT)


Reduction of Capital’ is a ‘Domestic Affair’ of a particular company in which, ordinary, a Tribunal will not interfere because of the reason that it is a ‘majority decision’ which prevails

“A ‘special resolution’ is required to determine those matters for which the Act requires a ‘special resolution’ and except these matters in all other situations an ‘Ordinary Resolution’ is to be passed.”

Read full report here…


National Green Tribunal (NGT)


Unregulated tourism activities resulting in damage to environment in eco-sensitive Himalayan States of India: NGT takes suo motu cognizance

The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice Sudhir Agarwal (Judicial Member), Prof. A. Senthil Vel (Expert Member) and Dr Vijay Kulkarni (Expert Member) took suo moto cognizance based on media report highlighting the damage to the environment in eco-sensitive Himalayan States of India due to unregulated tourism.

Read full report here…


Securities Exchange Board of India (SEBI)


Can SEBI proceed against a Chartered Accountant for lack of due diligence? SAT analyses

The Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) while addressing a matter whether a Chartered Accountant could be held guilty by SEBI for lack of due diligence, held that,

Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.


Uttar Pradesh Real Estate Appellate Tribunal


Developer issued two allotment letters, increasing cost of a unit in second by correcting taxes, lease rent and advance maintenance charges: Read whether UPRERA finds it to be illegal

The Division Bench of Justice Dr D.K. Arora (Chairman) and Rajiv Misra (Administrative Member) set aside the decision of the Regulatory Authority and held that the developer did not conceal the details of the project including the status of the same.

Read full report here…


West Bengal Taxation Tribunal


Can States levy ‘Entry Tax’?

The Coram of Justice Malay Marut Banerjee (Chairman) and Suranjan Kundu (Judicial Member) and Chanchalmal Bachhawat (Technical Member), expressed that, Article 304(a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation.

Read full report here…

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

National Consumer Disputes Redressal Commission (NCDRC): Expressing that, the consensus between the dentists and patients is essential to standardize treatment plans and methods, Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a case of dental negligence and remarked that,

“The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.”

Not everyone can be born with a perfectly aligned smile. If you just changed your smile and nothing else, you would find a dramatic transformation in your personality, grace, confidence, appearance and social presence. When one or more teeth overlap, it can impact the smile and self-esteem.

Background


Revision petition was filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order passed by the Andhra Pradesh Consumer Disputes Redressal Commission, Hyderabad.

What was the core issue?


There was an allegation of dental negligence, wherein the dentists at the OP Hospital unnecessarily performed the Root Canal Treatment (RCT) of 4 teeth and provided metal ceramic crowns causing disfigurement of the face of the complainant.

Present revision was filed by the OP, since the State Commission had directed the OP Hospital to pay Rs 5 lakhs with interest at the rate of 9% p.a. as compensation and Rs 10,000 towards the cost of litigation.

Analysis and Decision


Coram found that the OP was liable for deficiency in services and unfair practices on three counts:

Firstly, there was no grip/retention capacity of crowns in upper teeth, therefore more chances of felling of the crowns during talking, brushing etc. which is certainly an embarrassment.

Secondly, it was unfair on the part of the Opposite Party that the crowns are not metal free ceramic as promised and billed by the Opposite Party but they are metal ceramic

Thirdly, the Complainant was not informed about the implications of RCT as to the teeth would be made non-vital.

The consensus between dentists and patients is essential to standardize treatment plans and methods. In dental treatment, patients often ask orthodontists if they will look more beautiful and have doubts about the ultimate aesthetic effects. Also there is need to calibrate the perception between dentists and patients about the classification of aesthetics into unpleasant, acceptable, and pleasant; otherwise there may be some conflicting views on expectations and treatment. The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.

In view of the above discussion, OP was held liable for medical negligence and deficiency in services since complainant suffered facial disfigurement after dental treatment. [Sravani Dental Hospital v. Anitha Tangellamudi, Revision Petition No. 2736 of 2012, decided on 8-3-2022]

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

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dinesh Singh (Presiding Member) and Karuna Nand Bajpayee (Member) upheld the decision of the District Commission with respect to concealment of pre-existing fatal diseases at the time of taking insurance.

A revision petition was filed challenging the State Commission’s Order.

The dispute was with respect to the repudiation of the claim on the death of the insured. The parties in the present matter are the insurance company i.e., the petitioner and nominee/widow of the deceased insured was the respondent.

Repudiation of the claim was on the ground of concealment of pre-existing fatal diseases at the time of taking the insurance.

Crux

Whether or not the insured knew that he was suffering from fatal diseases, and he deliberately suppressed his medical condition when he took the policy.

The President of District Commission held that the insured had knowledge of his medical condition when he took the policy and he deliberately suppressed material facts when he took the policy. The other two members held that the insured came to know of his fatal diseases only subsequent to the taking of the policy, when the relevant tests and investigations were conducted in the hospital where he was admitted for treatment just before he died. Accordingly, the majority view was that the complaint deserved to be allowed.

State Commission observed that the onus of proving the fact that the insured had prior knowledge that he was suffering from fatal diseases and as such he deliberately suppressed these material facts at the time of filling up the proposal form was on the insurance co.

Further, it was noted that, there was no evidence on record to show that the insured had knowledge that he was suffering from fatal diseases prior to taking the policy and there was inadequate evidence to support that he had deliberately suppressed his medical condition.

Decision of NCDRC

Coram held that the State Commission’s decision was well appraised reasoned order, and no perversity was found for interference.

The Commission agreed with the counsel for the insurance company that suppression of material facts about pre-existing disease/medical condition would undoubtedly be a breach of the insurance contract, which was of utmost good faith.

In the present matter, the onus of establishing the fact that there was a deliberate suppression of material facts was on the insurance company which onus it failed to discharge by adducing the adequate evidence to substantiate such contention.

In view of the above discussion, the petition was dismissed.

Therefore, the award by the District Commission was upheld by the State Commission and has been confirmed. [LIC of India v. Mamta Sipani, 2022 SCC OnLine NCDRC 41, decided on 2-3-2022]


Advocates before the Commission:

For the Petitioner: Mr. Jai Vardhan, Advocate for Ms. Harvinder Kaur, Advocate

For the Respondent: Mr. Yashvir Singh Kadiyan, Advocate

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

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dinesh Singh (Presiding Member) and Justice Karuna Nand Bajpayee (Member) expressed that in the ‘service’ of ‘housing construction’, if, in a particular case, “compensation” is computed “by way of interest” on the deposited amount it shall not be differently treated than the other cases in which the term “interest” may not at all be used in computing the compensation.

Background

This Commission had by an earlier order directed that OP shall refund the entire principal amount of Rs 2,74,79, 831,48 to the complainant alongwith compensation in form of simple interest at the rate of 11% and OP shall also pay a sum of Rs 25,000 as the cost of litigation.

Both sides admitted that the entire amount paid by the decree holder to the judgment debtors has been refunded along with the cost of litigation.

Issue for Consideration

Whether or not compensation which was computed by way of interest on the deposited amount, attracts TDS?

Analysis, Law and Decision

Coram stated that the only issue was in respect of deduction of tax at source on the “compensation” awarded, which in the present case was computed “in the form of simple interest” on the deposited amount.

Certainly, tax is not deducted at source if the compensation is awarded in the form of a lumpsum amount, or when the formula or yardstick, if and as any adopted for the purposes of computation, does not involve or refer to the term “interest”. It will therefore be erroneous to deduct tax at source just because in a particular case the formula or yardstick adopted for computation alludes to the term “interest”.

Commission clarified that it is neither adding to nor subtracting from the Income Tax Act. If a person is responsible to pay income tax on any revenue or capital receipt under the aid Act, he will be so liable.

Adding to the above, Coram stated that compensation awarded under the Consumer Protection Act is for the loss or injury suffered and is universally applicable to both goods and services inclusive of the service relating to housing construction.

The context and meaning of the term “interest” if used in the mode of calculation or a formula or yardstick adopted for computing compensation under section 2(1)(d) of the Consumer Protection Act is identifiably different from the context and meaning as used in Section 194A of the Income Tax Act.

Hence, there was no justification for deducting tax at source in the instant case.

Concluding the matter, the Commission observed that the tax deducted at source on compensation appeared to be a mistake with no malafide and even though the tax ought not to have been deducted it is also seen that the same has not been retained by the judgment debtors and deposited in the account of the decree-holder in the Income Tax Department.

In view of the above discussion, the matter was closed. [Rita Bakshi v. M3M India Ltd., 2022 SCC OnLine NCDRC 40, decided on 2-3-2022]


Advocates before the Commission:

For the Appellant: Mr. Deepak Narayana, Advocate

For the Respondent: Mr. A. K. Takkar, Advocate with Ms. Syashee Pesswani, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business’ disputes cannot be construed as consumer disputes. The entire Act revolves around “business-to-consumer” disputes and not for “business-to-business” disputes.

Analysis

Section 2(1)(d) of the said Act is in two parts.

  1. Section 2(1)(d)(i) of the said Act deals with buying of goods.
  2. Section 2(1)(d)(ii) of the said Act is with respect to hiring of services.

By the 1993 Amendment Act, wherever the word “hires” was used, the same was substituted by the words “hires or avails of”.  By the said 1993 Amendment Act, insofar as Section 2(1)(d)(i) is concerned, an Explanation was provided to the effect that ‘commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Hence, though the original Act of 1986 excluded a person from the ambit of definition of the term ‘consumer’ whenever such purchases were made for commercial purpose; by the Explanation, which is an exception to an exception, even if a person made purchases for ‘commercial purpose’, he was included in the definition of the term ‘consumer’, if such a person bought and used such goods exclusively for earning his livelihood by means of self-employment.

By the 2002 Amendment Act, the legislature has done two things.

  1. It has kept the commercial transactions, insofar as the services are concerned, beyond the ambit of the term ‘consumer’ and brought it in parity with Section 2(1)(d)(i), wherein a person, who bought such goods for resale or for any commercial purpose, was already out of the ambit of the term ‘consumer’.
  2. The legislature did was that even if a person availed of the commercial services, if the services availed by him were exclusively for the purposes of earning his livelihood by means of self-employment, he would still be a ‘consumer’ for the purposes of the said Act.

Thus, a person who availed of services for commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment was kept out of the term ‘commercial purpose’ and brought into the ambit of ‘consumer’, by bringing him on par with similarly circumstanced person, who bought and used goods exclusively for the purposes of earning his livelihood by means of self-employment.

“If a person buys goods for commercial purpose or avails services for commercial purpose, though ordinarily, he would have been out of the ambit of the term ‘consumer’, by virtue of Explanation, which is now common to both Sections 2(1)(d)(i) and 2(1)(d)(ii), he would still come within the ambit of the term ‘consumer’, if purchase of such goods or availing of such services was exclusively for the   purposes of earning his livelihood by means of self-employment.”

The upshot of the above-mentioned discussion led to the conclusion that when a person avails a service for a commercial purpose, to come within the meaning of ‘consumer’ as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment. There cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record.

Ruling

The Court was deciding the case where NCDRC has come to a finding that the appellant had opened an account with the respondent-Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits.

The Court affirmed the said ruling and observed that the relations between the appellant and the respondent is purely “business to business” relationship. As such, transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”.

[Shrikant G. Mantri v. Punjab National Bank, 2022 SCC OnLine SC 218, decided on 22.02.2022]


*Judgment by: Justice BR Gavai


Counsels

For appellant: Senior Advocate Shyam Divan

For respondent: Senior Advocate Dushyant Dave

Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Appellate Tribunal for Electricity (APTEL)


State commission disallows benefit of increase in the tariff based on the change in law provision; Tribunal directs reconsideration

A Coram of R.K. Gauba (Officiating Chairperson) and Sandesh Kumar Sharma (Technical Member) decided on an appeal which was filed by Solar Power Project Developer (“SPD”) assailing order passed by respondent Bihar Electricity Regulatory Commission (“the State Commission”) disallowing the benefit of increase in the tariff based on the change in law provision with respect to increased Operation and Maintenance (O&M) costs of its 10MW solar power generating system.

Read full report, here…


 Customs, Excise and Service Tax Appellate Tribunal (CESTAT)


Whether Membership Subscription Charges, which is an essential service for business promotion, will be eligible for CENVAT Credit? CESTAT explains

While taking into consideration various of kinds of charges and whether they would qualify to be eligible for CENVAT Credit, P. Dinesha (Judicial Member) held that Membership Subscription charges are essential for business promotion and hence eligible for refund claim.

Read full report, here…

Unless 7.5% of the penalty is deposited when the penalty is in dispute, the appeal cannot be entertained by the Tribunal

The Coram of Sulekha Beevi, C.S. (Judicial Member) and P. Anjani Kumar (Technical Member) decided on an appeal which was filed in the matter of non-compliance with the pre-deposit.

Read full report, here…

Whether the services provided by CRS companies to the appellant can be subjected to levy of service tax under the OIDAR services? CESTAT addresses

The Coram of Dilip Gupta (President) and P.V. Subba Rao (Technical Member) took up an appeal which was filed by Air India to assail that part of the order by which the demand of service tax of Rs. 37,58,23,581/- has been confirmed against the total amount of service tax that was proposed in the show cause notice. It was for the reason that there was no liability pay service tax prior to 18-04-2006. The Commissioner had also ordered for recovery of interest under section 75 of the Finance Act, 1994 and penalty under Sections 76, 77 and 78 of the Finance Act.

Read full report, here…


National Consumer Disputes Redressal Commission (NCDRC)


 Can flat owners be prevented from use of certain open spaces and facilities by builders? NCDRC answers

While noting whether the flat owners can be prevented from the use of certain common spaces, the Coram of Justice R.K. Agarwal (President) held that under the provisions of the Maharashtra Apartment Ownership Act 1970 and even Maharashtra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society had to be formed by the builder and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner is entitled to an undivided interest in the common areas and the facilities.

Read full report, here…

Can doctors alleged of medical negligence be exempted from legal proceedings as they are busy and conscious about their duties towards patients? NCDRC answers in a transfer application

The Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar (Member) while allowing an application for transfer expressed that,

“…it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.”

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Patient developed serious complications after being operated which were promptly treated by doctors, yet she died. Would this amount to ‘medical negligence’? NCDRC analyses

The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) analyses a matter wherein a patient developed serious issues after being operated, which led to her death, hence the doctors/hospital were alleged for medical negligence.

Read full report, here…

Homebuyer invests his hard-earned money to get legal possession of flat, yet gets subjected to a 6-year delay: Read how NCDRC provided relief to consumer

While addressing a case wherein there was a delay of 6 years in handing over the possession to the buyer, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, held that in view of catena of Supreme Court decisions on the said issue, the buyer was entitled to get legal possession along with compensation.

Read full report, here…

Builder took money from homebuyer for formation of Co-operative Housing Society, but never formed so: Read why the homebuyer approached Commission

The Coram of R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a matter wherein the builder took money from the purchaser for the formation of a co-operative housing society but failed to do so and when asked for the refund, he did not return the money as well.

Read full report, here…


National Company Law Tribunal (NCLT)


Operational Creditor is under obligation to recover money from its client and not agent: NCLT decides while dismissing a petition filed under S. 9 IBC

The Coram of H.V. Subba Rao (Judicial Member) and Chandra Bhan Singh (Technical Member) dismissed a petition filed under Section 9 of the IBC while noting that no operational debt existed under Section 5(8) and expressed that,

Operational Creditor being the Principal was always under obligation to recover the money from the client and not from his agent unless the agent failed to perform his duties.

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In case of an application being filed under S.7 of IBC, will insufficiency of stamp duty be looked into? NCLT decides

The Coram of H.V. Subba Rao, Judicial Member addressed the relevancy of insufficiency of stamp duty under Section 7 proceedings of Insolvency and Bankruptcy Code, 2016

“…a Section 7 application under the IBC can be filed in a simple form prescribed in the Code even without any pleadings.”

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Mumbai International Airport Limited temporarily restrained from removing Jet Airways assets from its premises including MIAL’s hangar: Airline’s representatives, workmen, etc. allowed access for maintenance of assets

The Coram of Kapal Kumar Vohra, Technical Member and Justice P.N. Deshmukh, Judicial Member, while addressing a matter wherein Jet Airways requested Mumbai Airport not remove its assets from its premises, expressed that,

“…it is to be noted that one of the principal objectives of the Code is to provide for revival of the CD and every attempt ought to be made to revive the CD and Liquidation being the last resort.”

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National Company Law Appellate Tribunal (NCLAT)


 If a case was filed under IBC, can penalty be imposed under Companies Act? NCLAT addresses

The Coram of Justice Ashok Bhushan (Chairperson) and Dr Alok Srivastava (Technical Member) held that if the Intervention Application was filed under the IBC, then, any penalty to be imposed should have been under the provisions of IBC and not the Companies Act.

Read full report, here…

If granting exclusion of time would help Corporate Debtor from liquidation, should NCLAT allow such exclusion? Here’s what NCLAT says 

The Coram of Justice M. Venugopal (Judicial Member) and Dr Ashok Kumar Mishra (Technical Member) held that if granting exclusion of time helps the Corporate Debtor to revive, the basic objective of Insolvency and Bankruptcy Code will eb achieved.

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Can application filed under S. 95(1) read with S. 60(1) IBC be rejected on ground that no Corporate Insolvency Resolution Process was pending against Corporate Debtor? NCLAT addresses

If CIRP or Liquidation Proceeding of a Corporate Debtor is pending before an NCLT, application relating to Insolvency Process of Corporate or Personal Guarantor should be filed before same NCLT.

Read full report, here…

EPC Construction Resolution: NCLAT allows distribution of Rs 223 crores from available cash balance among creditors and lenders

The Bench of Justice Ashok Bhushan (Chairperson) and Dr. Alok Srivastava (Technical Member) allowed the distribution of INR 223 crore from the cash balance available with EPC Construction among its creditors and lenders.

Read full report, here…


Securities Exchange Board of India (SEBI)


 Zee Insider Trading Case | In absence of direct evidence, matters of insider trading are to be tested on what grounds? SEBI lifts restrictions on 10 entities

The Coram of Santosh Kumar Mohanty (Whole Time Member) lifted restrictions imposed on 10 Entities who were alleged in insider trading, though the Tribunal added that the said relaxation was being granted subject to the outcome of appeal proceedings filed by SEBI against SAT Order before Supreme Court.

Read full report, here…

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

National Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) expressed that, when a Statute provides for a particular period of limitation, it has to be scrupulously applied, as an unlimited limitation leads to a sense of uncertainty.

Instant revision petition had been filed by the complainant under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the order passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata.

State commission had rejected the application seeking condonation of delay of 120 days in filing the Revision Petition and consequently summarily dismissed the Revision Petition.

Issue

Whether the State Commission was justified in declining to condone the delay of 120 days in filing the Revision Petition before it or not?

Analysis and Decision

Commission expressed that it is trite law that the expression ‘sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour.

In the present matter, petitioner failed to make out any cause, much less a ‘sufficient cause’ for condonation of delay of 120 days in filing the Revision Petition before the State Commission and the State Commission for the reasons recorded in the Impugned Order was justified in declining to condone the delay.

Hence, the present revision petition was dismissed.[Pallab Mohan Chakraborti v. Debayan Ganguly, Revision Petition No. 2447 of 2018, decided on 22-2-2022]


Advocates before the Commission:

Petitioner in Person

For the respondent: Ms. Pooja Shukla, Advocate

Mr. Surojit Gangopadhyay, Advocate Ms. Chitralekha Das, Advocate

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

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): The Coram of R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a matter wherein the builder took money from the purchaser for the formation of a co-operative housing society but failed to do so and when asked for the refund, he did not return the money as well.

An agreement was entered between the complainant and the OP to construct Bungalow and as per that, the complainant had paid Rs 10,00,000 as consideration. The said agreement was not notarized, after handing over the possession and Occupancy Certificate, OP had to form a Co-operative Society, for which an amount was collected from the complainant, which was Rs 75,000, but OP failed to do so and also did not enroll the complainant as a member or executed independent Deed of Sale.

Later it came to the complainant’s knowledge that the OP had executed a few individual sale deeds in respect of some purchasers but not for the complainant. The complainant got drafted a sale deed, but the OP demanded a further amount even after agreeing initially that he would execute the same.

The complainant even obtained a NOC under FEMA. Yet the sale deed was not executed by the builder.

Hence, on being aggrieved with the above circumstances, the party reached the consumer forum for a refund of Rs 10,00,000 along with interest @18% p.a.; compensation of Rs 5,00,000 and Rs 50,580 towards travel expenses due to postponement of Air Ticket to USA.

Analysis, Law and Decision

Coram noted that the appellant builder executed individual Sale Deeds in respect of some purchasers.

Commission found that the Complainant had agreed to join Co-operative Housing Society, but the appellant did not form any and also did not refund the money paid by the complainant as ‘advance towards the maintenance and formation of the Co-operative Housing Society”.

Based on the above discussion, the OP was liable for deficiency in service. [Dilip Sagun Naik v. Dr Maliyil Cheriyan Mathai, 2022 SCC OnLine NCDRC 30, decided on 17-2-2022]


Advocates before the Commission:

For the Appellant: Mr. Dileep Poolakkot, Advocate

For the Respondent: Mr. S.N. Joshi, Advocate

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

National Consumer Disputes Redressal Commission (NCDRC): While noting whether the flat owners can be prevented from the use of certain common spaces, the Coram of Justice R.K. Agarwal (President) held that under the provisions of the Maharashtra Apartment Ownership Act 1970 and even Maharashtra Ownership Flats (Regulation of the promotion of construction, sale management and transfer) Act, 1963, a Society had to be formed by the builder and the entire building premises including the open space in question was to be transferred to the Society or a legal body for its maintenance and further, as per Section 6 of the MAOA 1970, each flat owner is entitled to an undivided interest in the common areas and the facilities.

Complainants challenged the order of the Maharashtra State Consumer Disputes Redressal Commission under Section 21(b) of the Consumer Protection Act, 1986.

What was the dispute?

Dispute between the parties was with respect to the use of substantial open space surrounding the building.

The complainants were being prevented from using and enjoying the open space as respondent 1 had covered the said space by erecting an iron grill.

Factual Matrix

Respondent 4 Society had allotted Plot No. 29 in question to respondent 1 on lease. In terms of the resolution passed by the Society allowing its member to construct the multi-storied building on the allotted plot, respondent 1 entered into a Development Agreement with respondent 2 who further transferred his rights of development in favour of respondent 2 Partnership Firm in which respondent 3 was a Partner.

Further, on completion of the building, the completion certificate was obtained. As per the Development Agreement, the flat nos. 1 and 2 at the Ground Floor of the building in question were retained by respondent 1 and flat no’s 3,4, 5 and 6 situated at 1st and 2nd floors were purchased by the complainants executing necessary registered agreements.

Respondent 1 submitted that in the Development Agreement executed with Late Vinayak Shridhar Deshpande, the right of the open space surrounding the Building was not given to him. As per the sale agreement, only staircase and top terrace were to be declared as common space

Analysis, Law and Decision

Coram opined that there was merit in the conclusion arrived at by the District Forum that the rights of the parties with regard to the use of open space surrounding the building in question, were governed by the various provisions of the Maharashtra Ownership Act, 1970 and the respondents were under an obligation to form a Society/legal body to take care of the entire Building Premises.

The above was the reason that during the pendency of the Complaint, respondent 1 executed a Deed of Declaration on 10-01-2005 to bring the property in question under the provisions of the MAOA 1970. Though the said deed of the declaration was not submitted as required under the provisions of the Maharashtra Apartments Ownership Act, 1970.

Whether the open space constitutes as part of the common area and facilities?  

As per Section 3(f) of the MAOA, 1970, the open space in question was a part and parcel of the Common Areas and the Flat Owners were within their right to use the same.

Section 2 (e) of the Maharashtra Housing (Regulation and Development) Act, 2012 specifically include any open space around the building in the definition of “Common Areas and Amenities and Facilities”

Further, Coram stated that the Apartment Owner has the right to use the common area and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other apartment owners.

“The Common Area and Facilities remain undivided and no Apartment Owner or any other person shall bring any action for partition or division of any part thereof.”

While citing the decision of Supreme Court in Nahalchand Laloochand (P) Ltd. v. Panchali Cooperative Building Society Ltd., (2010) 9 SCC 536, it was noted that the Builder/Promoter has no right to sell any area of Building except the unsold flats.

Therefore, the District Forum’s decision was restored, and the State Commission’s decision was set aside. [Parvin G. Joshi v. Sarojini Gangadhar, 2022 SCC OnLine NCDRC 34, decided on 22-2-2022]


Advocates before the Commission:

For the Petitioner: Mr. Ankur Gupta, Advocate

For the Respondents: Mr. Rohan S. Darandale, Advocate

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

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a case wherein there was a delay of 6 years in handing over the possession to the buyer, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, held that in view of catena of Supreme Court decisions on the said issue, the buyer was entitled to get legal possession along with compensation.

An appeal was filed under Section 51(1) of the Consumer Protection Act, 2019 against the decision of the State Consumer Disputes Redressal Commission Uttar Pradesh, whereby the complaint filed by the appellant/complainant was partly allowed.

Respondent/OP was engaged in developing a township and a flat was allotted to Anish Singhal who paid a sum of Rs 1,50,000 to the respondent/OP as a booking amount.

Further, the appellant/complainant returned the deposited amount to the original allottee Anish Singhal and paid a sum of Rs 2,50,000 to the respondent/OP, hence the respondent/OP transferred the flat in the name of appellant/complainant as per previous terms and conditions.

For a total price of Rs 18,21,763, the flat buyer agreement was signed and executed by all the parties. As per the agreement/contract, possession of the flat was to be given within a period of 18 months.

Appellant/Complainant had paid more than 50% of the total consideration as per the construction linked payment plan to the respondent/OP, but even after 6 years the said flat was not handed over.

On being aggrieved with the acts of respondent/OP, the appellant/complainant filed a complaint before the District Forum which was dismissed due to lack of pecuniary jurisdiction.

Analysis, Law and Decision

Commission expressed that appellant/complainant cannot wait for an indefinite time as he had invested heavily his hard-earned money with the intention to get legal possession of the flat.

Further, it was added that since the said agreement was a valid legal document, possession should have been given in 18 months i.e. by May, 2013 or by November, 2013 if the grace period of 6 months was added.

Coram found that there was a delay of about 6 years by the respondent/OP in obtaining the Occupancy Certificate and offer of possession. The reason for the delay was also unexplained.

Therefore, the appellant/complainant was entitled to get legal possession of his flat with reasonable compensation for the delay. [Ved Prakash Aggarwal v. Logix City Developers (P) Ltd., 2022 SCC OnLine NCDRC 35, decided on 22-2-2022]


Advocates before the Commission:

For the Appellant: In Person

For the Respondent: Binoy Kumar, Member

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

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar (Member) while allowing an application for transfer expressed that,

“…it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.”

Instant petition was a transfer application to transfer the complaint from the State Commission, Chhattisgarh to the State Commission, Odisha.

Analysis and Decision

The OPs were running a Medical Centre for more than 2 decades. They have digitalization and communication facilities like WIFI/internet which may be used for e-filing/virtual proceedings.

Coram expressed that, it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty-bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.

The Statement of Objects and Reasons of the Act 1986 speaks of “speedy and simple redressal to consumer disputes”. This is the case of alleged medical negligence which needs a holistic approach after giving fair opportunities to the parties on both sides, instead of taking a technical approach, Commission added.

Hence, in view of the above discussion, as per the provisions contained under Section 62 of the Consumer Protection Act, 2019 the transfer application was allowed.

The Commission directed the parties to appear before the State Commission, Odisha on 7-3-2022.[Manasi Mishra v. Aayush Hospital & Maternity Home, 2022 SCC OnLine NCDRC 22, decided on 9-2-2022]


Advocates before the Commission:

For the applicant: Suyash Pande, Advocate

For the non-applicants 1 to 4: Rohini Kumar, Advocate

Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Appellate Tribunal for Electricity (APTEL)


State commission disallows benefit of increase in the tariff based on the change in law provision; Tribunal directs reconsideration

A Coram of R.K. Gauba (Officiating Chairperson) and Sandesh Kumar Sharma (Technical Member) decided on an appeal which was filed by Solar Power Project Developer (“SPD”) assailing order passed by respondent Bihar Electricity Regulatory Commission (“the State Commission”) disallowing the benefit of increase in the tariff based on the change in law provision with respect to increased Operation and Maintenance (O&M) costs of its 10MW solar power generating system.

Read full report here…


Armed Forces Tribunal (AFT)


AFT grants war injury pension to soldier who sustained injuries resulting in disability during Operation Hifazat

The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

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Arbitral Tribunal, New Delhi


Arbitral Tribunal finds SJDA at fault; directs to refund bid amount of Rs 84.24 crores to the claimant in New Township Project

“No permission for conversion of land was obtained and, therefore, even if all other conditions were fulfilled, the Claimant-Developer could not have commenced construction activities on the agricultural lands without obtaining conversion of land use.”

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 Competition Commission of India (CCI)


Apple charging a commission of up to 30% on all payments made through its in-app purchase system, is a violation of its dominant position? CCI orders investigation 

“Some consumers may have preference for closed ecosystem like Apple and others may have a preference for open ecosystems like that of Google.” 

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Why did CCI suspend the Amazon-Future deal? Detailed analysis of CCI order imposing Rs 202 crores penalty on Amazon

“Amazon had misled the Commission to believe, through false statements and material omissions, that the Combination and its purpose were the interest of Amazon in the business of FCPL.”

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Is Google abusing dominant position in news aggregation? CCI gives prima facie findings; discusses Snippets, Mirror Image Websites, Paywall Options, etc.

“Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.”

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 Customs Excise & Service Tax Appellate Tribunal (CESTAT)


“Obiter dictum” not legally binding as precedent; jurisdictional commissioner cautioned for filing frivolous applications

Suvendu Kumar Pati (Judicial Member) dismissed an appeal which was filed in response to the order passed by this Tribunal for rectification of mistake on the ground that the order to the extent of availment of service of outdoor catering was not proper.

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Jurisdiction for claim of refund filed/initiated to be dealt under the provision Central Excise law and not by the provision of CGST law

Ashok Jindal (Judicial Member) dismissed the application filed by the Revenue (CCE & ST, Panchkula) for ratification of mistake in a final order by the Tribunal which was noticed by the Applicant. The Tribunal dealt with two issues (a) whether to ratify previous order & (b) to deal with the jurisdiction

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Is there any provision under Cenvat Credit Rules, 2004 or Finance Act, 1994 for reversal of CENVAT credit for services provided for which no consideration is received by an assessee? CESTAT analyses

“CENVAT Credit Rules or Finance Act there was no provision for reversal of CENVAT credit for the services provided for which no consideration for service provided was received by an assessee.”

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District Consumer Disputes Redressal Commission, Kolkata


Consumer cannot be forced to pay “service charge” in a restaurant: Consumer Forum finds conduct of restaurant contrary to principles of Consumer Protection Act

“The OPs must have been aware of the guidelines of Fair Trade Practice related to changing of service charge from the consumers by hotels/restaurant issued by Department of Consumer Affairs, Government of India, inter alia, stipulating that service charge on hotel and restaurant bill is “totally voluntarily” and not mandatory.”

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Income Tax Appellate Tribunal (ITAT)


If lessee is not actual owner of property, can actual rental expenses be claimed on return of income? ITAT decides

“The assessee-company has merely taken the assets on lease from the owner, and it is accordingly eligible to claim actual rental expenses in the return of income.”

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Can merely disowning bank accounts exempt assessee from paying tax? Read why ITAT approved addition of Rs 12.81 Crores under S.68 of Income Tax Act

“Merely disowning the bank accounts by the assessee does not lead to the conclusion that the accounts are not maintained by him when there is a direct evidence contrary to the contention of the assessee.”

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 National Consumer Disputes Redressal Commission (NCDRC)


Homebuyers cannot be expected to wait indefinitely for taking possession: NCDRC allows consumer complaint against Builder, directs refund, imposes costs

Commission dealt with a complaint filed under Section 21 read with Section 2(c) of the Consumer Protection Act, 1986 by the complainant in respect of a plot allotted to him promoted by the OP, claiming deficiency of service due to delay in handing over possession of the plot allotted and claiming refund of amount deposited with compensation.

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Insurer refuses to issue insurance policy as Risk Confirmation letter obtained on concealment of material fact by Insurance Broker: Policy will be vitiated? NCDRC answers

“Section 19 of Contract Act, 1872, provides that when the consent of an agreement is caused by coercion, fraud, or misrepresentation, the agreement is voidable at the option of the party whose consent is so caused.”

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Plastic pieces found in slices of bread, but compensation denied to consumer. Read why NCDRC set aside State Commission’s order of compensation

Ram Surat Maurya (Presiding Member) addressed a matter wherein Britannia was alleged to have pieces of plastic in its bread, but the complainant failed to prove that the bread was manufactured by the said company.

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Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence: Read detailed report on NCDRC’s decision

“The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.”

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National Company Law Appellate Tribunal (NCLAT) 


Is it proper for NCLT to record finding regarding default when RP is yet to consider it and submit report? NCLAT discusses Ss. 95, 97, 99 IBC

“…there cannot be any dispute with the statutory scheme as contained in Section 97 that when application is filed by the Resolution Professional under Section 95, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that disciplinary proceedings pending against the Resolution Professional or not and the Board was required within seven days to communicate in writing either confirming the appointment of the Resolution Professional or rejecting the appointment of the Resolution Professional and nominating another Resolution Professional.” 

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Aggrieved with the categorisation as ‘unsecured creditor’, Tribunal secures ‘secured creditor’, having relinquished the security interest

The Coram of Ashok Bhushan J, (Chairperson), and Dr Alok Srivastava (Technical Member) while accepting the appeal and rejecting the claim of the respondent, the Tribunal was of the opinion that the Adjudicating Authority committed an error in rejecting the claim of the appellant to be ‘secured creditor’.

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Is approval with 90% vote of CoC required before allowing withdrawal of CIRP application even where CoC was not yet constituted? NCLAT clarifies law on S. 12-A IBC 

“…when the application is filed prior to the constitution of Committee of Creditors, the requirement of ninety percent vote of Committee of Creditors is not applicable and the Adjudicating Authority has to consider the Application without requiring approval by ninety percent vote of the Committee of Creditors.”

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Dominant position and Predatory Pricing or Win-Win for riders and drivers? NCLAT upholds CCI’s decision

“We do not think that Ola could operate independently of other competitors in the relevant market, and hence it did not enjoy a dominant position in the market.”

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Once Adjudicating Authority approves Resolution Plan, does it still remains a confidential document? Read what NCLAT says

“The category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents.”

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 National Green Tribunal (NGT)


Rampant noise pollution, incessant use of horns; a Deplorable state of affairs! NGT finds Rajasthan in contempt of Supreme Court’s order 

While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

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Securities Exchange Board of India (SEBI)


Twitter, Telegram and the tattered chances-Illicit act of swindlers recommending stock tips on social media; Tribunal acts immediately

“The tips circulated through the Channel create an inducing impact which are then followed by the subscribers and ironically, such stock tips may also prove to be true, if large number of recipients of such tips believe it and collectively act on it. Slowly and gradually, after seeing the price of the said thinly traded scrip actually rising, more and more subscribers start believing in the tips and start acting on it, which further strengthens the belief of such tips being genuine, as large number of individuals end up acting on such tips and by their collective buying actions, convert the deceitful, specious and baseless tips to realty”

Read full report here…

‘Billionaire’ dream turns into dread-Unauthorsied investment advisory amounted to fraud & misrepresentation

S.K. Mohanty, Whole Time Member while affirming an ex-parte interim order of SEBI, was of the view that the activities of the Noticees, Billionaire Solutions Pvt. Ltd. (Sole proprietor Akash Jaiswal) was covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations, 2003. And therefore was held liable for the violation of provisions of Section 12A (a), (b), (c) of the SEBI Act, 1992, Regulations 3 (b), (c) & (d), 4(1), 4(2)(k) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (PFUTP Regulations, 2003).

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