Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): P. Venkata Subba Rao (Technical Member) allowed an appeal which was filed against the judgment of Commissioner (Appeals).

The appellant imported Benzothiazole through Visakhapatnam Port declaring an assessable value of US$ 3.5 per Kg being the transaction value. The Assistant Commissioner enhanced it to 4.3523 per Kg. The appellant paid the enhanced duty under protest and appealed to Commissioner (Appeals) who set aside the enhancement. Thereafter the appellant had filed an application for refund of the excess duty paid by them. The Assistant Commissioner rejected the refund claim and on appeal, the rejection of refund was upheld by Commissioner (Appeals).

The Assistant Commissioner had sanctioned the refund but had not paid interest. On appeal Commissioner (Appeals), by the impugned order, held that the liability to pay interest arises only if the refund was not made within three months from the date of receipt of the Tribunal’s Order. Since the refund had been paid within three months from the date of receipt of the Tribunal’s order no interest was payable.

The counsel for the appellant, M. Rajendran submitted that it was a well-settled principle of law that interest had to be paid if the refund was not sanctioned within three months from the date of refund application.

The Tribunal explained that Section 27A of the Customs Act, 1962 provided for the payment on interest on delayed refunds. The Tribunal further stated that if there was any delay in sanctioning the amount of refund if any available to the appellant as per the Tribunal’s Order he can make a claim of the same from the Department. The respondent had sanctioned the refund of Duty and Interest vide impugned order which was well within the time period of three months from the date of order of Appellate Tribunal. Hence the interest on delayed refund under the provisions of Section 27A of Customs Act, 1962 does not arise in the present case. The Tribunal allowed the appeal finding that the appellant was entitled to interest on the delayed refunds from three months from the date of receipt of refund application till the date of which the refund has actually been paid and orders the Department to pay the interest.[Andhra Organics Ltd. v. Commr. Of Central Tax, Customs Appeal No. 30188 of 2019, decided on 10-11-2020]


Suchita Shukla, Editorial Assistant has up this story together

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J. dismissed the petition on grounds of non-maintainability.

The facts of the case are such that the petitioner took a loan to the tune of Rs 4, 25,000 from the respondent bank namely Allahabad Bank. Due to default in payment of money, a notice was issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 [“SARFAESI Act”] to pay the outstanding amount of Rs 7, 89, 420 within 60 days from the date of the notice, failing which, the respondent-Bank will exercise the power conferred under Section 13(4) of the SARFAESI Act. There has been another notice dated 28-11-2019 issued for possession of her property by the Respondent Bank and cautioned the public in general to not deal with the property under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (“Rules, 2002”) by the respondent 2. Aggrieved by the same, instant petition in the nature of certiorari has been filed to quash both the notices.

Counsel for the petitioner Rajiv Nandan Prasad submitted that the petitioner is a disabled lady and also the owner of the property in question in one of the impugned notice, she took a loan and has already paid Rs 8, 00,000 inclusive of the interest but later a huge amount was spent on her treatment at Vellore and as such, she was not able to pay EMI of the said home loan due to which her loan account became irregular and was subsequently declared as N.P.A.

Counsel for the respondent P.A.S. Pati raised an objection on grounds of maintainability as an alternative remedy under Section 17 of the SARFAESI Act is available.

 ISSUE 1: Availability of Alternative Remedy

  The Court relied on the judgment titled United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 which held:

“The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.”

 The Court also relied on the judgment titled Standard Chartered Bank v. Noble Kumar, (2013) 9 SCC 620 which held:

“The “appeal” under Section 17 is available to the borrower against any measure taken under Section 13(4).”

“We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available.”

 ISSUE 2: Invoking Writ Jurisdiction in Matters relating to Realization of Loans

The Court relied on the judgment titled Authorized Officer, State Bank of Travancore v. Mathew K.C. (2018) 3 SCC 85 which held :

“Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.”

Taking into account the provisions of the SARFAESI Act and judicial pronouncements, the Court held the petition to be non-maintainable directing liberty to the petitioner to take recourse before the appropriate forum.

In view of the above, petition stands dismissed. [Uma Pandey v. Allahabad Bank, 2020 SCC OnLine Jhar 819, decided on 18-06-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Priyantha Jayawardena, PC, Murdu N.B. Fernando, PC, and S. Thurairaja, PC, JJ., allowed an application for special leave to appeal filed aggrieved by the order of the High Court.

The applicant-respondent-petitioner (workman) was employed as the Farm Manager of the respondent-appellant-respondent Company (employer). He had filed an application in the Labour Tribunal claiming compensation for the alleged unlawful termination of services and gratuity from the employer. The employer had stated that the termination was due to ‘frustration’ of the contract of employment as the farm in which the employer worked was closed down as it was not feasible to continue with its operations. After inquiry the Labour Tribunal had ordered compensation to the workman for the wrongful termination of employment. Being aggrieved, the employer had appealed the High Court where the appeal was allowed and order of the Labour Tribunal was set aside. Thus, the current appeal was filed by the workman. The Counsel for the employer, Viran Corea with Sarita de Fonseka had raised a Preliminary Objection stating that the workman had not complied with Rule 2 read with Rule 6 of the Supreme Court Rules of 1990 and moved for a dismissal of the application in limine. They further contended that workman had filed, by way of motion several documents without assigning any reason for the delay and/or inability to have tendered the said documents along with the petition. Per Contra, the counsel for the workman, Ms. Kaushali Rubasinghe with Mr. Kushani Harischandra, submitted that in terms of Rule 2 read with Rule 6 of the Supreme Court Rules, documents have to be annexed where the application contains allegations of fact which cannot be verified by reference to the judgment or Order in respect of which special leave to appeal is sought. It was submitted that no prejudice had been caused to the rights of the employer or the administration of justice due to the non-availability of those documents. Further, they contended that the application was taken up for support for the first time; no objection was raised on the maintainability of the application. However, the objection regarding non-compliance was raised only when the matter was taken up for support for the second time.

The Court while explaining Rule 2 read with Rule 6 specified that documents that are required to be annexed to an application for special leave to appeal, if allegations of facts referred to in such an application cannot be verified by reference to the judgment in respect of which special leave to appeal is sought. The Court further held that there was no provision requiring the filing of objections in an appeal. Hence, the statement of objections and the verifying affidavit filed by the workman before the High Court are not necessary to consider the instant application thus; said documents are not material documents to consider granting of special leave to appeal in the instant application. Preliminary Objection raised by the employer was overruled imposing costs.[Hiranya Surantha Wijesinghe v. Tenderlea Farms (P) Ltd., 2020 SCC OnLine SL SC 7, decided on 17-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: M.G. Uma, J., setting aside the conviction order by the fast track Court, allows compromise between the parties.

The appellant-accused in the present case has been tried and convicted by the fast track Court against the offences punishable under Sections 324, 325, 504, 506 and 307 of Penal code, 1860

Counsel for the complainant submitted that the dispute between the complainant and the accused has been compromised and hence the charges may be compounded and the appellant-accused be acquitted accordingly. Additional Advocate General opposed the application stating that the offences under Sections 324 and 307 IPC are not compoundable. Supreme Court decision in, Yogendra Yadav v. State of Jharkhand, (2014) 9 SCC 653 and Gian Singh v. State of Punjab, (2012) 10 SCC 303 was relied on by the counsel for the appellant, wherein it was held, “High Courts can quash criminal proceedings under section 482 even though the offence alleged is non-compoundable if parties have amicably settled their dispute and victim has no objection. Further, this would depend on the fact of each case. Offences which involve moral turpitude, grave offences like rape, murder cannot be effaced by quashing proceedings because they have harmful effect on society and are not restricted to two individuals or groups.”

Further, the earlier order of the present Court was referred, where the decision in S.S. Joshi v. State of Haryana, 2003 Crl. L.J. 2028 was obeyed, allowing a compromise petition by setting aside the judgment of conviction by the trial court.

The Court while setting aside the conviction of the accused allowed the compounding of offences and ordered the deposition of fine as ordered by the trial court.[Yesaiah v. State of Karnataka, Criminal Appeal No. 2603/2012, decided on 3-09-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of H.C. Mishra and Rajesh Kumar JJ., rejected the prayer and dismissed the appeal being devoid of merit.

The facts of the case are such that marriage of the appellant and his wife was solemnized in the year 2007 as per Hindu rites and rituals in the presence of all family friends and relatives and two children are born out of the wedlock. The appellant alleged that wife has been living separately and on numerous incidents caused mental agony to the appellant. He has further alleged in the appeal that the acts of the wife amount to cruelty and desertion of the wife. A suit was filed by the husband for divorce under Section 13 of the Hindu Marriage Act, 1955 on grounds of cruelty, desertion and mental incapacity of the respondent-wife. The Trial Court decided the matter in favour of the wife and aggrieved by the same, the instant appeal was filed challenging the same order.

The appellant represented himself in person and submitted that the wife behaved psychic and rudely and treated him and his parents with utmost cruelty. He cited various incidents to support his argument along with two witnesses, one himself and his mother, namely, Kaushalya Devi but did not produce any documentary evidence.

Counsel Sujeet Neepulam representing the respondent-wife denied allegations of cruelty, desertion and mental illness and submitted further that her actions of leaving home and staying with parents are not willful as the appellant and his family were demanding dowry, refusing which she was ousted from the marital home and brought back and ousted again on many occasions. Four witnesses, namely, Ashok Saw, Naresh Saw, Praveen Kumar and herself were examined to support her argument alongwith documentary evidence i.e. a mutual divorce application dated 13-07-2009 sent by the husband to wife after signing, a letter dated 30-07-2010 to her father giving threat, copy of an FIR instituted by the respondent-wife under Section 498 A of Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961  compromise copy after the appellant was arrested subsequent to the filing of FIR and other pertinent documents to support her plea. It was further submitted that the respondent is still willing to lead a respectable conjugal life with her husband, but the husband is not willing to keep her.

The Court observed that appellant was unable to present any substantial evidence except oral evidence of his and his mother whereas the respondent-wife presented various documentary proofs which demolish the case of cruelty from her side instead makes it clear by looking at the mutual divorce application and a written letter of threat to her father or the fact that she compromised to secure bail for the petitioner is enough to indicate the willingness of the respondent-wife to resume the respectable conjugal life with the appellant.

The court relied on judgments titled Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 and Kaslefsky v. Kaslefsky [1951] P. 38 and held that any husband desirous to get rid of his wife may get desired result by driving out his wife from matrimonial home by force or creating a situation and thereafter taking plea of desertion for more than two years. The law is clear that if one of the parties to the matrimonial home, voluntary and without any plausible explanation has left the matrimonial home giving no option to the other party, then it amounts to desertion. Desertion is a willful and voluntary act by the party to leave something without any rational reason. In the present case, the husband is at fault and this is the reason for separate living of both the parties. Hence, the argument that living separately itself is sufficient in the eyes of law for granting the divorce is not acceptable.

In view of the above, decree for divorce rejected and appeal dismissed.[Sanjay Kumar v. Suman Kumari, 2020 SCC OnLine Jhar 773, decided on 08-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Kumari Prabha Sharma, JJ., dismissed the allegations of dowry demand, cruelty against the father-in-law and husband of the deceased in view of the prosecution theory regarding homicidal death being nothing short of sheer exaggeration.

An appeal was preferred by the accused-appellants under Section 374(2) CrPC against the decision of Additional Sessions Judge (Women Atrocities Cases), Bikaner.

Deceased was married to appellant 1 for 10 years. On one fateful day she was found dead in the kitchen with burn injuries, whereupon her brother, PW.1 lodged.

Humiliated and Harassed

Allegations were placed that the deceased was harassed from the date of her marriage till death on account of dowry demand.

Both the father-in-law and husband of the deceased under the influence of liquor used to maltreat her owing to the demand for money.

The unjust demands of the above-stated persons used to be somehow met but the greed would never end.

PW1 also stated that when he saw his sister dead, both the husband and deceased’s father-in-law kept uttering the words that they had killed the woman and he could do whatever he liked. 

In view of the above, offences under Section 302, 498A and 34 of Penal Code, 1860 were filed.

Later, both the husband and father-in-law were arrested.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter stated that, if at all there was a semblance of truth in the allegation that the maltreatment of the deceased was continuing for almost 10 years, then her maternal relatives were expected to raise this issue by filing a complaint either to the police and if not, then at least intervention of the community elders would definitely have been sought.

Adding to the above, maternal neer reprimanded the cruel behaviour of the accused.

Hence, the allegations levelled by the prosecution witnesses that the accused were indulged in meting out continuous maltreatment to the deceased on account of demand of dowry is nothing short of sheer exaggeration and needs to be discarded.

Further, it was duly established that the father-in-law of the deceased had invested significant amounts from the sale proceeds of his agricultural land in the names of his granddaughters before the incident, which makes it clear that the allegation of humiliation and harassment is unsubstantiated.

On perusal of the medical report of the deceased, Court noted that the injuries were on the front, but the prosecution theory states that the deceased was set ablaze, if the said theory was true then the kerosene would have dribbled on the front as well as back, hence the defence theory of deceased falling down on the burning place in probablised.

In view of the above-stated background, the reverse burden of proof under Section 106 of the Evidence Act would also not come to the aid of the otherwise fragile and fragmented prosecution case.

Therefore, the accused-appellants were acquitted of all the charges.[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing the maintainability and legality of a petition filed under Section 482 of Criminal Procedure Code, 1973 held that, legislature in its wisdom has provided for Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against all “orders” and has not made any exception to orders relating to custody.

Petition was filed seeking setting aside of the Order passed in complaint under the Protection of Women from Domestic Violence Act, 2005 by the Metropolitan Magistrate.

Due to a rift in the relationship of the husband and wife, respondent took away the three children to live with him under a separate roof.

Protection Order & Custody Orders

By way of the present petition, petitioner sought reliefs such as Protection Order under Section 18 of the Protection of Women from Domestic Violence Act, 2005.

Wife sought a restraining order against the respondent from dispossessing the wife from the shared household and monetary reliefs such as medical expenses and rentals including household expenses.

In line of reliefs, Custody Order with respect to the three children were also sought under Section 21 of the Act. Application for various interim reliefs was also sought under Section 23 of the Act.

Unhindered Access to Mother

Court noted that for the sake of emotional quotient and robust psychological health, the mother should be provided unhindered access, if not physically then through video conferencing and the same was granted on 24th April, 2020.

Magistrates’ Decision

Custody of children was directed to be continued with the father as an interim measure visitation rights were granted the wife.

Petition not maintainable

Respondent’s counsel, Bobby Anand submitted that petitioner has a remedy of an appeal under Section 29 of the Act, hence the present petition is not maintainable under Section 482 CrPC.

Advocate Malvika Rajkotia, for the wife submitted that, a mother is best suited to look after the needs of growing daughters, particularly, the sensitivities of their emotional needs and biological requirements.

She also submits that youngest daughter is under 5 years of age and it is a mandate under Section 6 of the Hindu Minority and Guardianship Act, 1956 that the child should be in care and custody of the mother.

Present Petition is maintainable in this Court as mere availability of alternate remedy cannot be a ground to disentitle the relief under Section 482 CrPC.

Analysis and Decision

Maintainability

Supreme Court has time and again spelt out clear restraints on the use of extraordinary powers and observed that the High courts should not go beyond those wholesome inhibitions unless the extraordinary circumstances cry for immediate and timely judicial mandate.

In the present matter, Court is not persuaded in to entertain the petition in its extraordinary power under Section 482 CrPC given the fact that there is a clear remedy of Appeal under Section 29 of the Act available.

Hence, facts and circumstances in the present matter do not call for any urgent intervention to permit the petitioner in bypassing the remedy available in the form of Statutory Appeal.

in view of the above, petition was dismissed.[Srisha Dinav Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764, decided on 20-07-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing a matter with regard to “custody order” as being the primary relief, held that,

Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.

Petitioner sought directions with regard to setting aside the Order passed by Metropolitan Magistrate under the Protection of Women from Domestic Violence Act, 2005.

Due to a rift in petitioner and respondent’s relationship it resulted into respondent taking away their 3 daughters under a separate roof.

Reliefs that petitioner was seeking for in the initial complaint under the said Act was “Protection Order” under Section 18 of the Act, “Custody Orders” under Section 21 of the Act. Along with the said complaint, an application under Section 23 for various other reliefs was also filed by the petitioner.

Metropolitan Magistrate had directed that the custody of the children would continue to remain with the father/respondent and as an interim measure visitation rights were granted to the petitioner.

Decision

Relying on several decisions of the High Court and Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 it was found that,

“…Supreme Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate.”

“Mentor of law is justice and a potent drug should be judicially administered.”

High Court held that it is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 CrPC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.

Argument — Matter related to custody of minor girls, remedy of appeal is not efficacious

Court put forth the reasons for not accepting the said argument and stated that,

  • Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.
  • It is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts.

In view of the above reasons, petition was dismissed. [Sirisha Dinavahi Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764 , decided on 20-07-2020]

Case BriefsForeign Courts

Supreme Court of New Zealand:  The Full Bench comprising of Winkelmann CJ, William Young, Glazebrook, O’Regan and Ellen France JJ., unanimously rejected an appeal from a coal company seeking to carry out coal-mining activities in a reserve established for water conservation purposes.

Appellant had obtained a mining permit under the Crowns Minerals Act, 1991 (CMA), but to access the site and carry out mining activities, it had to reach an access arrangement with Buller District Council, which owned and administered the reserve. Rangitira had approached the High Court seeking declarations which the Council would have to take into account while considering the access arrangement and obtained an order in its favour. But the respondent’s appeal succeeded at the Court of Appeals, and that decision had been challenged in the present case.

The appellant claims that the Crown Minerals Act would assume primacy over the Reserves Act, 1977, which would not have allowed for the access arrangement sought by it, since the mine’s impact would not be compatible with the purpose of the reserve i.e., water conservation. It claimed that the CMA is a “one-stop shop” regulating access for mining, which prevails over acts of general legislation such as the Reserves Act.

Section 60 (2) of the CMA states, “In considering whether to agree to an access arrangement, an owner or occupier of land (other than Crown land) may have regard to such matters as he or she considers relevant.”

Rejecting the appellant’s main claim, the Court decided that nothing in the CMA could limit the Council’s obligations under the Reserves Act. The Council enjoys a wide freedom and has the sole decision as the owner to decide whether to enter into an access arrangement or not (as per Section 60 (2) of the CMA), since the access is sought over land in a reserve. It differentiated the CMA from earlier legislations which it had replaced upon its enactment  on this very ground, holding that mining permits and licenses under the CMA do not include the right to access the land and the power and permissions to do so but only the right to extract coal. 

Furthermore, a miner under the CMA, after securing mining rights, would require an access arrangement from the owner and occupier of the land and a resource consent from the relevant authority. “There is no ability for the Crown or a statutory office holder to mandate mining for coal or other minerals in such a reserve,” unlike the earlier Acts, where only a single public official’s decision could allow the holder of a mining license to legally extract coal from a mine within a reserve. It upheld the Court of Appeals’ decision and ordered the appellant to pay the respondent $25,000 along with usual disbursements. [Rangitira Developments Limited v. Royal Forest and Bird Protection Society of New Zealand Incorporated, [2020] NZSC 66, decided on 15-07-2020]

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 Briefs

Appellate Tribunal (FEMA): Justice G.C. Mishra (Acting Chairman) allowed the application for the condonation of delay in respect to the substitution of the legal representatives (LRs) of the managing director of the deceased Ramesh Babu Muppalaneni of the company Sanjay Agro Traders (P) Ltd.

 In the instant case, the deceased having died on 26-10-2017, the appellant failed to file an application for the substitution of his legal heirs. Rather the application for its condonation of delay was filed on 27-05-2019, which prayed to condone a delay of 296 days only though there was a delay of 370 days.

The counsels for the appellant, S.K. Vasudeva Rao and Rabin Majumder pleaded that the delay in filing the application for the substitution of the LRs was not intentional but it happened due to the communication gap between the deceased’s family and the counsel about the death of the deceased which reached the counsel much later on 05-09-2018 as the family was much disturbed from their irreparable loss. Moreover, on 06-09-2018 itself, the Tribunal allowed the appellant to file an appropriate application in that regard when he submitted for it.

The counsel on behalf of the respondent, Aagam Kaur, however, contended that even though the family was in grief, the advocate could have moved an application for bringing the legal heirs on record. Also, there seemed no reasonable cause as to how he was prevented from moving a timely application. The Counsel also placed reliance on the judgment of the case N. Balakrishnan v. M. Krishnanmurthy, (1998) 7 SCC 123 wherein it was clearly held that the law of limitation fixes a lifespan for such legal remedy for the redressal of the legal injury so suffered. 

In view of the above case, the Tribunal allowed the application of condonation of delay in filing the applications for substitution of legal heirs subject to payment of Rs 25000 in each appeal to be paid within six weeks from the date of the order. 

Observing “sufficient cause” under Section 5 of the Limitation Act, 1963 the Court noted the concept of reasonableness as brought out by the case Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649.[S. Ramesh v. Special Director Directorate of Enforcement, Hyderabad, MP-FE-476/HYD/2019(COD) IN FPA-FE-300/HYD/2009, decided on 24-12-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed to set aside the judgment of the High Court.

The prosecutrix had testified that, the incidents had taken place about two years prior to testifying when she was in Grade 8 and the appellant had abused her for 5-6 times. The prosecutrix had narrated these incidents to her mother who took her to the police station and as per the prosecution evidence, the incident had taken place three months prior to making the police complaint. The JMO had testified that no injuries were found but the possibility of sexual abuse cannot be excluded as per the short history was given by the prosecutrix. The appellant had denied committing the offence and contended that he was being falsely implicated by his wife as he had caught her with her paramour. He further submitted that his wife lodged a complaint at the police station asking for the custody of the children and he had denied the same after which the wife had challenged him that she would send him to the prison and would take the custody of the children.

The counsel for the appellant AAL K. Kugaraja contended that the prosecution had failed to establish the date of offence to which the counsel for the respondent Sudarshana De Silva, submitted that the prosecutrix had clearly stated that the incident took place in the latter part of 2007. The accused-appellant had been indicted under three charges for committing Grave sexual abuse on his daughter, an offence punishable under Section 365B (2) (b) of the Penal Code, 1860 as amended. The Trial Court had convicted the accused-appellant and had sentenced him to 18 years of rigorous imprisonment along with fines aggrieved by which this appeal was filed.

The Court while dismissing the appeal explained that the Judgment of the High Court was well reasoned as when the victim is a small child and is abused by someone who is associated to him/her on a daily basis its nearly impossible to specify the exact same date of offence and also the evidence of the prosecution was corroborated by other witnesses as well and the High Court was satisfied with the trustworthiness of the evidence so there was no reason to disturb the findings of the trial court.[Kurundukara Hakuruge Ariyadasa v. Attorney General, C.A. Case No: HCC-0384 of 2017, decided on 05-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity (APTEL): A Coram of Justice Manjula Chellur (Chairperson) and S.D. Dubey, (Technical Member) allowed an appeal filed against an impugned order passed by the Central Electricity Regulatory Commission.

The counsel for the appellant Anand K. Ganesan, Swapna Seshadri,  Ashwin Ramanathan and Utkarsh Singh had submitted that in 2011 the transmission system in issue was not required for the Applicant/Appellant in view of the Appellant being unable to obtain the Consent for Establishment (CFE) from the Pollution Control Board. This non-issuance of the CFE was beyond the control of the Applicant/Appellant and therefore a force majeure under the Bulk Power Transmission Agreement was entered into between the parties and further a petition had been filed before the Central Commission seeking directions on the declaration of force majeure and also return on the bank guarantee retained by Powergrid. The Central commission had disposed of the petition holding that the Applicant/Appellant had acted bona fide aggrieved by which the Applicant/Appellant had preferred an appeal which was pending before this tribunal and they further submitted that the delay was not deliberate but on bona fide reasons. 

The Tribunal while allowing the appeal condoned the delay of 148 days and found that the reasoning assigned in the application explaining the delay in filing the Appeal was satisfactory. [PEL Power Ltd. v. CERC, 2019 SCC OnLine APTEL 115, decided on 19-12-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., dismissed an application which was filed by the petitioners challenging an order dated 10-05-2016 given by the H.P. Administrative Tribunal, Shimla (Tribunal) whereby the T.A. was allowed and the termination against the respondent was quashed and set aside.

The respondent had been working as daily waged Chowkidar with the petitioners- Corporation and was posted at Sehral Depot of Forest Working Unit Kunihar under Forest Working Division, where theft of 229 of resin filled tins took place on the intervening night of 17th and 18th February, 1997 after which an enquiry was initiated against the respondent. The petitioners-Corporation had issued a show-cause notice to the respondent alleging that he had been willfully absent from duty on the intervening night of 17th and 18th February, 1997 following which the services of the respondent were dispensed. Being aggrieved by the order of termination the respondent had approached the Tribunal who had decided in favor of the respondent and thus the instant writ petition was filed by the petitioner.

The Court while dismissing the petition held that a person, who was working as a daily wager or on contract basis and if his services have been discontinued or terminated on the basis of any allegation of misconduct etc., the provisions of the Central Civil Services (Conduct) Rules, 1964 are not applicable to his case, however, even then the principles of natural justice are required to be followed and if an order was passed against a person without affording him an opportunity of hearing, it is in violation of natural justice. In addition, the petition needs to be dismissed on the ground of delay and laches because the writ was filed after three years of the order. [H.P. State Forest Development Corporation Ltd. v. Ishwar Dutt, 2019 SCC OnLine HP 2199, decided on 18-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Coram of Justice Tarun Agarwala, (Presiding Officer), Justice M. T. Joshi (Judicial Member), and Dr C. K. G. Nair (Member) partly allowed an appeal filed by the appellant against an order of the Disciplinary Action Committee (DAC) of the National Stock Exchange of India Limited (NSE) whereby they rejected an application to review their earlier order dated 02-08-2018.

Through the impugned order, the appellant was fined with a monetary penalty of Rs 15 lakhs and with a suspension of trading membership of the appellant from all segments of NSE for 5 days. The NSE had conducted an inspection for the period from 1-01-2017 to 7-09-2017. They imposed a consolidated monetary penalty of Rs 50,000 for the minor violations and issued a show-cause notice asking as to why the penalty should not be imposed on them for the alleged violations. The stated violations were:-

  • Unexplained use of funds raised by pledging client securities with NBFCs and Banks to the tune of Rs 19.23 crores belonging to 515 clients.
  • Acceptance of deposits by offering fixed returns from more than 200 entities to the tune of Rs 21.56 crores and not reflecting such receipts of funds in the financial ledgers/ trial balance of the appellant.
  • Discrepancy in computation of net worth and misrepresentation of data submitted to the Exchange.

Because of the aforesaid violations, it was held that the appellant has failed to abide by the Code of Conduct for trading member prescribed under Regulation 4.5.1 and 4.5.2 of CM and F&O Segments relating to adherence to SEBI Code of Conduct and general principles of professionalism, adherence to trading principles, honesty and fairness.

Prakash Shah, Counsel for the appellant submitted that securities belonging to some clients were pledged with NBFCs, etc. because of margin shortfall from those clients. Appellant had enough liquid funds available with it to meet the full obligations. Allegation relating to accepting deposits from clients promising assured returns, too was not correct because it was short term unsecured loans taken from external sources to promote appellant’s proprietary arbitrage and ALGO trading business. Regarding the third allegation, it was submitted that a revised net worth certificate was produced which the DAC had noted in the impugned order and therefore no action should be taken. 

The counsel for the respondent, Nimay Dave, on the other hand, stated that the allegations against the appellant were serious as was clearly shown that funds to the tune of ` 19.23 crores were raised in excess of respective client’s obligation by pledging the securities belonging to those clients. More than 350 out of 515 clients did not have any obligation/ debit balance but still, their securities were pledged by the appellant. 

The Tribunal held that the magnitude of money involved was large in terms of acceptance of deposits to the tune of Rs 21.56 crores and non-settlement of funds belonging to 601 clients etc. However, since the appellant had complied with some of the directions issued by the DAC, the penalty imposed on the appellant was disproportionate with the facts and circumstances. However, the violations were not light enough to let off the appellants free as contended by them. They upheld the monetary penalty of Rs 15 lakh imposed on the appellant and modified the direction relating to suspension of the appellant from all segments of the exchange NSE for 5 days to that of a direction not to enroll or register any fresh clients for a period of one month. [KSBL Securities Ltd. v. National Stock Exchange of (India) Ltd., 2019 SCC OnLine SAT 242, decided on 26-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A full bench of Priyantha Jayawardena, PC, Murdu N.B. Fernando, PC, and S. Thurairaja, PC, JJ., dismissed an appeal filed against an order of the High Court of Colombo, through his Power of Attorney holder, Wanigasuriyaarachige Don Sharan Mary Dolita to the Supreme Court.

The Accused-Appellant was employed as a General Cashier (Chief Cashier) at the Hilton Hotel, Colombo. Passengers who were departing through the Bandaranaike International Airport were supposed to pay an Embarkation Tax. The Hilton hotel pre-purchased the Embarkation Tax Tickets and provided them to their customers. The routine accounts verification found that, the cashier had not accounted for the said money of Rs 600,000 and when they investigated, it was found that the cashier had not reimbursed Rs 600,000   which was used to purchase the Embarkation Tax Tickets. The Hotel held an independent enquiry and found the Accused-Appellant guilty. The matter was referred to the Colombo Fraud Investigations Bureau; a case was filed against the Accused-Appellant, at the Colombo-Fort Magistrate’s Court on two counts under Section 391 of the Penal Code and two alternate counts under Section 386 of the Penal Code. The magistrate found him guilty on the first and third counts and sentenced him to one year imprisonment, aggrieved by which the Accused-Appellant had filed an appeal in the High Court and the High Court had affirmed the order of the Magistrate. Dissatisfied by which the instant appeal was made and the Supreme Court had asked to frame the grounds of appeal.

The Court while dismissing the appeal explained that the misappropriation of the Accused-Appellant has been proved beyond reasonable doubt and they do not find any in consideration of the grounds of appeal, hence there are no merits in the grounds of appeal. [Warnakulasuriya Michael Angelo Fernando v. Officer-in-Charge, SC Appeal 85 of 2014, decided on 13-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: L.T.B. Dehideniya, J., S. Thurairaja, PC, J. and E.A.G.R. Amarasekara, J., allowed an appeal concerning an order against the Provincial High Court of Balapitiya.

The Accused – Appellant was charged before the Magistrate Court on two counts punishable under Section 400 and 386 of the Penal Code respectively for committing the offences of cheating and misappropriation of the sum of Rs 80,000. The Magistrate found the Accused-Appellant guilty on first and second counts and imposed Rs 5000 fine in-default 2 months Rigorous Imprisonment and 2 years Rigorous Imprisonment for the first count and 2 years rigorous imprisonment for the second count. The High Court Judges hearing the arguments found that, the Accused-Appellant not guilty on the 2nd count and acquitted him. Being dissatisfied with the order of the High Court Judge the Accused- Appellant preferred this appeal to the Supreme Court.

The Court while allowing the appeal explained that it was mandatory for the Judge to analyse the entire evidence before the Court and to find whether the ingredients are proved beyond a reasonable doubt. But, in this case, neither the Magistrate nor the High Court Judge had followed the basic evaluation of facts and standard of proof. It is also noted that both the Magistrate and High Court Judge had not properly analyzed the dock statement, thus there was no case proved against the accused-appellant beyond reasonable doubt hence finding the sentence bad in law. [Meegastennage Prince Gunawardena v. Attorney General of the Democratic Socialist Republic of Sri Lanka, SC Appeal No. 42 of 2014, decided on 07-11-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Deepak Gupta and Surya Kant, JJ has held that a State Legislature cannot enact a law providing an appeal directly to the Supreme Court of India excluding the supervisory jurisdiction of the High Court.

The Court was hearing the issue relating to the enactment of the Chhattisgarh Rent Control Act, 2011 by the State of Chhattisgarh. Section 13 of the said Act provides that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal nand in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court. When an appeal filed under Section 13(2) of the Act, came up for admission before the Supreme Court, it issued notice to the State of Chhattisgarh and the Attorney General for India regarding the legislative competence of making such provision.

Holding that the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have, the Court said,

“The powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there.”

Noticing that the men who drafted the Act did not even consider the hierarchy of Courts, the Court said,

“As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.”

The Court, hence, held that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature and is accordingly struck down.

[HS Yadav v. Shakuntala Devi Parakh, 2019 SCC OnLine SC 1341, decided on 15.10.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): Justice Tarun Agarwala (Presiding Officer) and Dr C.K.G. Nair (Member) dismissed an appeal by the appellant as it was devoid of any merit

The appellant, a private company, was a minority shareholder in New Delhi Television Ltd. (NDTV). With regard to non-disclosure of a tax demand under Clause 36 of the Equity Listing Agreement prescribed by the Stock Exchange (Listing Agreement) by the Company, the appellant made a complaint to the stock exchange as well as to SEBI based on which adjudication proceedings were initiated by the Adjudicating Officer under Sections 23-A and 23-E of the SEBI Act, 1992 read with 23-I of the Securities Contracts (Regulation) Act, 1956 (SCRA). The Adjudicating Officer imposed a penalty of Rs 2 crores on NDTV. The appellant filed an appeal against the order contending that the penalty should have been imposed on the Key Managerial Personnel of the Company who took a conscious decision of not disclosing the event under Clause 36 of the Listing Agreement, and not the whole company. The Tribunal directed the appellant to make a fresh representation to SEBI.

Based on this, a representation was filed which was rejected by the Whole Time Member (WTM), as they found that out of the nine violations only two violations formed the cause of grievance which was mentioned in the appeal filed before the Tribunal. The remaining seven violations alleged were beyond the scope of the directions of the Tribunal. On the two violations which were part of the appeal, the WTM held that the complaint of the appellant was considered and appropriate orders of the penalty were passed against the Company.

The Tribunal was of the opinion that the contentions by the appellants were misconceived. They held there were parallel proceedings for the same offence culminating into an order passed by the Adjudicating Officer under Section 15-A(b) of the SEBI Act as well as under Sections 23-A(a) and 23-E of the SCRA. Thus, their grievance was set at rest. Another contention of the appellant that the remaining seven alleged violations should also be considered as they were part of the appeal that was filed before the Tribunal was also misconceived.

The earlier order of the Tribunal clearly rejected the contention of the appellant for making the representation on issues other than the issue mentioned. The Tribunal rejected the modification application holding that permitting the appellant to make a representation on issues which are not the subject matter of appeal would amount to enlarging the scope of the representation beyond the grievances set out in the memo of appeal. Also, the additional affidavit on which reliance was placed was filed much after the disposal of the appellant’s appeal. Any additional affidavit filed after the disposal of the appeal cannot form part of the memo of appeal.[Quantum Securities (P) Ltd. v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 142, decided on 07-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. dismissed the instant writ petition where the petitioner sought mandamus to command respondent not to demolish the construction of his residential house.

The disputed facts were that the constructed house of the petitioner was part of Gaon Sabha earlier. Subsequently, the land came under jurisdiction of Nagar Panchayat, and thereafter the petitioner received a notice under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, to which he replied and ultimately the Prescribed Authority found the petitioner to be in unauthorized occupation and passed an order for his eviction. The order was challenged by the petitioner in an appeal before the District Judge, Haridwar.

Therefore the appeal of the petitioner was allowed by District Judge merely on technical grounds such as that the notice which was given to the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants), 1972 did not elaborate or disclose the land. The trial court also gave finding in favor of the petitioner that the Additional Sub Divisional Magistrate who had passed the eviction order was not the Prescribed Authority and all the proceedings were beyond his jurisdiction.

The Court observed that the order passed earlier was not on the merits of the case hence the rights were not determined. Hence the petitioner was eventually asked to vacate the land which was disputed, aggrieved by which he filed the writ.

Tapan Singh, counsel for the petitioner submitted that there was already a judicial determination in the favour of the petitioner, as to his rights on the land and the fresh notices for eviction and demolition were alleged to be illegal. They basically relied upon the judgment passed by the District Judge.

The Court in such circumstances observed that, in the earlier case, the appeal of the petitioner was allowed on a technicality, such as the validity of the notice and the jurisdiction of the authority. There was no determination on the merit of the case. Hence the new proceedings were therefore not barred. But further, it stated that relief sought by the petitioner was out of the purview of the Court by the way of writ and thus the petitioner was directed to apply to a competent Civil Court.[Mansab Ali v. Nagar Panchayat Landhaura, 2019 SCC OnLine Utt 588, decided on 05-07-2019]