High Court Round UpLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section on the SCC Online Blog for the month of August 2021. In case, you missed out on catching up with some interesting cases, then, you have clicked on the right post to be read.

Go ahead and check out the August updates of 2021!


Allahabad High Court


Murder

  • Brutal and Heinous Double Murder Case of Wife & Daughter || Criminal Conspiracy, generally hatched in secrecy [All HC’s critical ruling]

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

 Read more here: https://bit.ly/3mNE5hB

 Negotiable Instruments Act

  •  For offence of dishonour of cheques, what needs to be given priority – Compensatory aspect or Punitive aspect?

 Merely because the litigation has reached a revisional stage or that even beyond that stage, the nature and character of the offence would not change automatically and it would be wrong to hold that a revisional stage, the nature of offence punishable under Section 138 NI Act should be treated as if the same is falling under table-II of Section 320 IPC.

 Read more here: https://bit.ly/3t9hihu

 Writ of Habeas Corpus

  •  “Writ of habeas corpus is a festinum remedium”; All HC rejected issuance of writ at the behest of a husband to regain his wife as no prima facie case of unlawful detention is made out

 “…the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.”

Read more here: https://bit.ly/3BtEBoY

Paedophilia

  • “Little girls are worshipped in our country, but cases of pedophilia are increasing”: HC says it’s time to strictly stop this kind of crime

The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime.

Read more here: https://bit.ly/3Dythd5

Bail Application

  • Minor girl raped and entire family was asked to convert their religion; Bail rejected

 “…considering the seriousness of the matter and minor daughter was raped and entire family was asked to convert their religion…”

Read more here: https://bit.ly/3gQ2IX5


 Bombay High Court


Opportunity of Hearing

  • Denial of urgent hearing by DRT: Court says opportunity of hearing is integral part of constitutional philosophy well embedded in Arts. 14 and 21

“…opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.”

 Read more here: https://bit.ly/38pBOk7

 Right to Education Act

  • Can minority educational institution refuse admission to autistic child contravening statutory direction given before grant of minority status? Court answers

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

 Read more here: https://bit.ly/2V2jT01

Principle of Double Jeopardy

  • Do principles laid under S. 300 CrPC and principle of double jeopardy under Art. 20(2) of Constitution differ? Explained

 Bombay High Court while setting aside an impugned order explained the slight difference between principles laid down under Section 300 of the Criminal Procedure Code, 1973 from the principle of double jeopardy under Article 20 (2) of the Constitution of India.

 Read more here: https://bit.ly/3mJGzxv

 Registration Act

  •  Does a Registering Officer has right to decide whether person presenting document for registration has marketable title or not? Court answers

 It is well settled that when a property is sold by public auction, in pursuance of an order of the Court and the sale is confirmed by the Court in favour of the purchaser, the said becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute.

Read more here: https://bit.ly/3sZ1yxs

Domestic Violence Act

  • Concept of ‘continuing offences’ & limitation under Domestic Violence Act: Explained

“…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

 Read more here: https://bit.ly/3gQ7eF1

Income Tax Act

  • When is the intimation for setting off of refunds against tax remaining payable under S. 245, Income Tax Act, be given? Bom HC answers

“…intimation is to be given prior to the officer sets off the amount payable against the amount to be refunded. It can be neither simultaneous nor subsequent.”

 Read more here: https://bit.ly/2WD0N16

Fair Reporting

  • What is legitimate scope of a court reporter? When does a court reporter crosses line? Bom HC lays down

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Read more here: https://bit.ly/3mM8yMS

 POCSO Act

  •  If a minor is made to succumb to penetrative sexual assault by various customers and is induced into prostitution, will person responsible for the same be punishable under POCSO Act? HC explains

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day.

Read more here: https://bit.ly/3sY9S0o

Outraging Modesty of Woman

  • Bom HC on ‘Outraging Modesty of Woman’ | Would throwing love chit on person of a married woman amount to outraging her modesty? Read on

 The modesty of a woman is her most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

Read more here: https://bit.ly/3t1krj7

Dishonour of Cheque

  • Can mere dishonour of cheque amount to abetment of suicide? Bom HC decides

 Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

 Read more here: https://bit.ly/3mThWP7

Domestic Violence Act

  • Husband marrying second time after grant of divorce. Is it ‘domestic violence’ within DV Act? Decrypted

 Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

 Read more here: https://bit.ly/3yw4MJU

Parents and Senior Citizens Act

  • Under the Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

 The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

Read more here: https://bit.ly/3kGqBkV

Principle of Equal Pay for Equal Work

  •  Principle of “Equal Pay for Equal Work” does not operate in vacuum, it is not a fundamental right but a Constitutional goal depending on several factors

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

 Read more here: https://bit.ly/2WG50B2

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

  •  ‘People would be starved of liberty of thought if…’: Know why Bom HC partly stayed IT Rules, 2021

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.

 Read more here: https://bit.ly/3gNwN9V

Contempt Case

  •  ‘Judiciary’s dignity cannot be tarnished by irresponsible content’: Bom HC closes contempt case against person uploading contumacious content against Goa District Judiciary on YouTube & WhatsApp

 “Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

 Read more here: https://bit.ly/3kHnJEE

Defamation

  •  Gangubai Kathiawadi | Can an adoptive son file for defamation of deceased mother? Bom HC decodes

 “The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

 Read more here: https://bit.ly/3BuKmTk

 Divorce

  •  No decision on divorce petition, yet wife creates matrimonial profile expressing will for second marriage. Can this be a ground for divorce?

“…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Read more here: https://bit.ly/2YhZ6qF


Calcutta High Court


 Bengal Post Poll Violence

  • CBI probe ordered in the investigation after NHRC report; Court also constitutes SIT of all IPS officers to install faith of the people in rule of law

 During the discussion of the matter the Court clarified major issues in the arguments the first being the, “duration of the post poll violence”, “election commission’s duty on law and order” and the “bias” of the three-member committee as pointed out by the counsel for the respondents.

Read more here: https://bit.ly/3mNBSTj

Trademark Infringement

  • Cal HC restrains use of registered mark prominently used in infringer’s otherwise different packaging

 In the instant application for infringement and passing off of the petitioners’ registered trademark “GANESH”, it was directed against the respondents who were carrying on a partnership firm in the name of “GANESH DEPARTMENT STORES”.

Read more here: https://bit.ly/3jxLv6y


Chhattisgarh High Court


Human Rights Commission

  •  Can Human Rights Commission pass an order directing payment of compensation? HC answers in light of instant facts

The petitioner in the instant petition challenges the legality and validity of the order dated 26.10.2009 passed by respondent 3 who have directed the petitioner to make a payment of Rs. 10,000/on account of professional negligence alleged to be committed by him.

Read more here: https://bit.ly/38rINsX

Unnatural Sex

  • “Sexual intercourse by husband would not constitute an offence of rape even if it was by force or against her wish”; Can a wife initiate proceedings against her husband for unnatural sex under S. 377 IPC?

 “…charge framed under Section 377 of the IPC cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the IPC where dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the sex organ of the victim and consequently deriving sexual pleasure, such act would constitute as carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the IPC.”

Read more here: https://bit.ly/3yxKaRp

 Property

  • Can writ court decide whether Nazul property (lease hold lands) be dedicated for waqf? HC observes

 “…the writ Courts ordinarily do not decide abstract principles of law. If a proper lis is brought before the Court between the contesting parties on the given set of facts, the competent jurisdictional Court will decide the legal position.”

Read more here: https://bit.ly/2V0ymte


Delhi High Court


 Negotiable Instruments Act

  •  Does a decree automatically follows when a Metropolitan Magistrate take cognizance of an offence under S. 138 NI Act? Read on

 Read more here: https://bit.ly/3gQqoe5

 Income tax Act

  • Issuance of prior show cause notice and draft assessment order under S. 144B (7) of Income Tax Act: Is it a mandatory condition before issuing final assessment order? HC answers

 High Court opined that Section 144B (7) of the Income Tax Act, 1961 mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.

 Read more here: https://bit.ly/38trTu2

Trade Marks Act

  •  Whether S. 124 of Trade Marks Act provide for stay of action against passing off? Read on

 There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar, being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively it’s own.

 Read more here: https://bit.ly/3DxqMru

  •  Determination of territorial jurisdiction of Court in matters relating to trademark infringement: HC discusses

 Considering the nature of business, the prior relationship of the parties, and the business format of establishing franchisees, it cannot be assumed that the Plaintiffs’ allegations are mis-founded or could be construed as false, in absence of any documentary proof.

 Read more here: https://bit.ly/3BrQ74f

  •  Del HC grants interim injunction in favour of DPS Society against Infringement of trademark and crest logo by Delhi Public International School

 “Besides, considering that parties are in the field of education, deliberate adoption by the Defendants of impugned trade marks and logo that are deceptively similar and/or identical to the Plaintiff’s registered trade marks/names and logos can cause confusion in the minds of the parents, prospective students and staff desirous of securing admission or availing services, seeing the advertisements, promotional material, admission forms, boards/ hoardings, etc.”

 Read more here: https://bit.ly/3gOhAFy

Anti-Profiteering Case

  •  Proceedings against Subway Systems (India) dropped in anti-profiteering case against franchisee

 Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

 Read more here: https://bit.ly/3t3KR3V

 Employer’s Negligence

  •  Due to employer’s negligence, an employee suffered 100% disability | Read how Del HC emphasises on principle of res ipsa loquitur and strict liability to pronounce decision

 Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

 Read more here: https://bit.ly/38qs5ds

Bail

  •  Bail granted to a young mother accused in murder of her tutor with whom she had illicit relationship

 Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.

Read more here: https://bit.ly/3yy8CCm

  •  Wife commits suicide after speaking to husband on mobile phone, husband suspicioned to have instigated wife| Read whether Del HC grants bail to husband

 Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

 Read more here: https://bit.ly/3ysAXtz

 Arbitration

  •  Can a party unilaterally appoint an Arbitrator of their choice? Read on

 Suresh Kumar Kait, J., reiterated that no party could be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of the dispute between the parties.

 Read more here: https://bit.ly/2V31OyN

  • Whether once a bench of SC has doubted correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow earlier decision – Is it debatable?

The question of whether, once a bench of the Supreme Court has doubted the correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow the earlier decision, appears to be debatable.

 Read more here: https://bit.ly/3zBGpfk

 Domestic Violence Act

  • Provisions of DV Act cannot be used as a ploy by son, to either claim a right in his father’s property or continue to retain possession of father’s property, on strength of his wife’s right of residence: Del HC

 “…all cases of family disputes cannot be characterised as cases under the DV Act.”

 Read more here: https://bit.ly/3kFg9u5

 Abetment of Suicide

  •  Issuing a legal notice and filing a complaint case against someone, would that amount to abetment of suicide? Del HC deciphers

 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.

 Read more here: https://bit.ly/2Yi46vr

Bank Guarantee

  • Bank Guarantee: Can these be encashed during their validity period? Read Del HC’s opinion on furnishing of bank guarantees

 There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

 Read more here: https://bit.ly/3zwV9Ms


Gauhati High Court


 

Rape

  •  Both victim and accused are State’s future assets”; HC grants bail to IIT student accused of raping his junior

 “Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

 Read more here: https://bit.ly/3kArsnk

Violence against Doctors

  •  Mere installation of CCTV cameras in hospitals is not enough; HC directs to connect Hospital cameras to the nearest Police Station

 The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

Read more here: https://bit.ly/3ywQWXJ

COVID Vaccine

  •  Opportunity to be heard to be given to the Air Force officer who refused to take the Covid vaccine; Court directs IAF to reconsider the case afresh

 Read more here: https://bit.ly/3kG29jN

 Property

  •  Appellate court’s reasoning of non-examination of scribe of Will wrong; Court allows appeal calling it serious error of law

 A.P. Thaker, J., allowed a petition which was filed aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court in the connection for the partition alleging that the properties were of the joint family properties and possession of 1/2 share in the suit property.

Read more here: https://bit.ly/3t3NzX9

 Detention

  •  State Authorities cannot be permitted to resort to stringent provisions like detention under PASA; Court allows petition

 When the State on the whole and the economy, in particular, is trying to regain the momentum post COVID, such hanging sword situation can not be permitted to continue.

Read more here: https://bit.ly/3h7PSUv

  • Distinction between ‘the law and order’ and ‘the public order’ needs to be kept in mind; Court decides in matter of detention under Gujarat Land Grabbing (Prohibition) Act, 2020

 If any citizen faces action from the State and if he resorts to the legal remedy available to him, and if the citizen is protected, any attempt to obstruct it, may be viewed very seriously and even the option of initiating proceedings under the Contempt of Court Act, can also be explored. However, the matter here had not reached that far.

Read more here: https://bit.ly/3zzYES6


Himachal Pradesh High Court


 

Bail

  •  “Bail petition silent about criminal history”; Bail denied due to lack of justification to overcome the rigors of S. 37 of the NDPS Act

 Anoop Chitkara, J., dismissed the petition and rejected bail to the accused as he was unable to justify and overcome the rigors under Section 37 NDPS Act.

Read more here: https://bit.ly/2WFBzzi

Sexual Offence

  •  Victim of sexual offence cannot have any locus standi to approach Court for quashing FIR registered for the sexual assault alleged

 Read more here: https://bit.ly/3zEyhuA


Jammu and Kashmir and Ladakh High Court


First Information Report

  •  Can FIR containing allegations which set police in motion, be quashed at threshold stage? HC answers

 “It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences; High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.”

 Read more here: https://bit.ly/3tgmXCx

 Triple Talaq

  •  Can Shayara Bano’s judgment be invoked retrospectively to declare triple talaq pronounced before Shayara Bano’s case null and void? HC answers

 Sanjeev Kumar, J., held that the judgment of Shayara Bano v. Union of India,(2017) 9 SCC 1has retrospective application and can be invoked to declare triple talaq pronounced before Shayara Bano’s judgment null and void.

 Read more here: https://bit.ly/3yB079z


Karnataka High Court


Animal Cruelty

  •  Kar HC takes up suo motu cognizance over incident of Monkey Deaths; Art. 21 protects ‘animal life’ which is necessary for human life

 The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

Read more here: https://bit.ly/2WE0mUb

 Amazon – Flipkart

  •  Kar HC dismisses prayer that sought to restrain CCI from investigating into deep discounting practices and biased treatment of select sellers

 Read more here: https://bit.ly/2WE0umD

 Judicial Order

  •  Can Court through a judicial order confer on the ‘Administrator’ a power to renew Fixed Deposits of investors? What other powers can be conferred? HC elaborates

 “There is no one who can effectively deal with the investors. Therefore, the question is whether a retired Senior Bank Official can be appointed as an Administrator who will ensure that the day-to-day activities of the Credit Co-operative will continue.”

 Read more here: https://bit.ly/2WFcMei

 Supplementary Charge Sheet

  •  “Supplementary charge sheet is only an additional material collected against the accused persons”; S. 167(2) CrPC not applicable on supplementary charge sheets filed

 Section 167(2) of Cr.P.C., is applicable only when charge sheet is not laid down and it starts operative when accused is arrested during the course of investigation, but if charge sheet is filed against particular accused and supplementary charge sheet is submitted against other accused or for additional evidence, the provisions of Section 167(2) of Cr.P.C., cannot be applicable.

 Read more here: https://bit.ly/3yyXo0f


Kerala High Court


Arbitration

  •  Syllogistic scope of Ss. 11(5) and 11(6) of the Arbitration Act, 1996; HC unclouds the line

 Devan Ramachandran, J., held that parties to arbitration cannot nominate the arbitrator even if the Arbitration Agreement provides so.

Read more here: https://bit.ly/3zuGVeS 

Marital Rape

  • Is marital rape a form of cruelty? Can it be a ground for divorce? HC examines

Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Read more here: https://bit.ly/3jxrH39

Rape

  •  Penetration between thighs of the victim held together; will it fall within the ambit of Rape? HC answers

 “We cannot assume that, she would be able to narrate the specific details of repeated acts merely from her imagination. Moreover, the language and expressions used by her for describing the sexual acts and the sexual organs clearly convey her unfamiliarity with the sexual acts…We cannot expect that an ordinary school going girl from a village area would have such capacity to imagine stories of that nature for falsely implicating the appellant.”

 Read more here: https://bit.ly/3DDchlQ

Sentence

  •  Ker HC temporarily suspends sentence of imprisonment to allow the applicant to perform religious rites and rituals of his deceased mother

 The Division Bench comprising of K. Vinod Chandran and Ziyad Rahman A.A., JJ., temporarily suspended the sentence of the applicant to allow him to perform religious rites and rituals of his deceased mother.

Read more here: https://bit.ly/3gL18px

 Maternity Leave

  •  Such orders undermine confidence and morale of women; HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave

 “Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

 Read more here: https://bit.ly/2Ya0j2Z

 CGST

  •  CGST registration; HC dismisses petition challenging cancellation registration on observing undue delay and carelessness on part of petitioner

 “The petitioner was sleeping over its right after cancellation of its registration. There is undue delay even in filing an application for revocation of registration so also even in approaching this Court.”

 Read more here: https://bit.ly/3mP2pj7

Birth/Death Certificate

  •  Mandatory discloser of Father’s name in Birth/Death Certificate is violative of Fundamental Right; HC directs State to provide separate forms for Single Mothers

 “Requiring the petitioner to leave the column regarding the details of father as blank for the issuance of a certificate of birth or certificate of death necessarily affects the right of dignity of the mother as well as the child.”

Mandatory Requirement for Disclosing Father’s name in Birth/Death Certificate

 Read more here: https://bit.ly/2WCSr9t

 Socially and Educationally Backward Classes

  •  State government has no power to specify any class of persons as socially and educationally backward; HC stays order specifying Nadars (Christian) as socially and educationally backward

 B. Suresh Kumar, J., held that the State Government has no power to specify any class of persons as socially and educationally backward for the purposes of the Constitution since only the President is entitled to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Read more here: https://bit.ly/3gQsHOa


 Madras High Court


Right to be Forgotten

  •  Right to be Forgotten | Madras HC decides whether redacting names of acquitted persons from court record is possible

 The peculiarity of seeking redaction of the name of accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone.

Read more here: https://bit.ly/3mMJPrW

Reservation

  •  Whether 10 % reservation of Economically Weaker Section can be provided in All India Quota medical seats without SC’s approval? Detailed Record

If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.

 Read more here: https://bit.ly/3DyYAEK

 Astrology v. Science

  •  Can Courts direct citizens to stop believing in astrology? Read Madras HC’s opinion

“…there are some matters in which exact answers may not be available as the only known intelligent life form in the universe endeavours to grapple with the unknown.”

 Read more here: https://bit.ly/38rIVsj

 Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021

  •  Judiciary, Legislature and Morality-A jamboree for the online gaming adherents | Holds the statute invalid in ‘every pore’ that ‘cries out’ to be so

” There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report”.

 Read more here: https://bit.ly/38sZrZd

 Case Flow Management

  •  Dictum in Salem Advocate Bar Assn. continues to guide courts all over the country; Court finds no reason to formulate new rules to regulate case flow management in the State

 The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J., took up a petition which involved issuance of a Writ of Mandamus directing the respondent Madras High Court to take appropriate steps for framing Rules for Case flow management system and for monitoring of all cases by Courts in Tamil Nadu in true spirit and letter incorporating all directions of Supreme Court at the earliest.

Read more here: https://bit.ly/38uIFco


Madhya Pradesh High Court


Bail

  •  In India, a girl would not indulge in carnal activities with boys just for enjoyment, unless the same is backed by some future promise; Court denies bail in allegation of rape

 “…a boy who is entering into a physical relationship with a lass must realize that his actions have consequences and should be ready to face the same as it is the girl who is always at the receiving end because it is she who runs the risk of being pregnant and also her ignominy in the society, if her relationship is disclosed. You just cannot plead consent on the part of the prosecutrix and laugh all the way to your home.”

 Read more here: https://bit.ly/3BtNcIf

  •  Possession of cough syrup or medicine containing Codeine Phosphate without valid documents falls under S. 37 of the NDPS Act; Court rejects bail application

 “…if anyone was found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.”

 Read more here: https://bit.ly/3mR0afo

 Prevention of Corruption Act

  •  When can the issue relating to absence of sanction or the order of sanction being a nullity, be raised? Court discusses

 The Division Bench of Prakash Shrivastava and Arun Kumar Sharma, JJ., dismissed a petition in which the issue was deciding whether the order granting sanction can be challenged at the particular stage or the objection in this regard was required to be raised by the petitioner during the trial and the issue was to be decided by the trial Court on the basis of the evidence.

 Read more here: https://bit.ly/38wI0a6

 Transgender Cards

  •  M.P. State Legal Service Authority to provide assistance to transgenders in getting their Identity Cards/Transgender Cards; State directed to ensure other benefits

 The Division Bench of Mohammad Rafiq, CJ and Vijay Kumar Shukla, J., decided in the matter of a petition which was filed n in the form of Public Interest Litigation by a Transgender, who is Social Worker and Paralegal Volunteer at Indore, for the welfare of the people of Transgender Community.

 Read more here: https://bit.ly/3DA64XT

 Admit Card

  •  Entry time of admit card of utmost importance; Court dismisses petition praying reconduction of  IPMAT

 The Division Bench of Sujoy Paul and Anil Verma, JJ., dismissed a petition which was filed by 12th grade students and aspirants of taking admission in Integrated Programme for Management (IPMAT) praying to reconduct the examination for students who could not reach the centre due to heavy rains and further restraining respondents to declare the results.

 Read more here: https://bit.ly/38wvCHo

Right to Cross-Examine

  •  Right to cross-examine a witness cannot be curtailed, Court holds trial court should be patient and tolerant in their approach towards the Trial Court lawyers

It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.

 Read more here: https://bit.ly/2WI47Ir


Manipur High Court


  • Comply with WHO guidelines, ensure water supply in the containment zones; Court issues directions

 The Division Bench of KH. Nobin Singh and A. Bimol Singh, JJ., issued certain directions in response to a Public Interest Litigation which was filed by a resident of Chalou Maning Leikai, contending that after the said village having been declared as a Containment Zone, no water is available for the reason that the Water Tankers are reluctant to come to the area for supply of water.

Read more here: https://bit.ly/3jwaNBT


Meghalaya High Court


 

COVID-19

  •  Primary reasons for vaccine hesitancy in the State not being addressed by the Police; Court directs to identify and book persons for spreading false rumours about vaccines

 Read more here: https://bit.ly/3Bu0J2x


Orissa High Court


Bail

  •  “Suicidal ideation and behaviors in human beings are complex and multifaceted”; What is the scope of bail in cases involving S. 306 IPC? HC examines

 “There is no answer as to why suicides occur because it is impossible to ever fully comprehend or analyze what goes on inside a person’s mind. Suicidal ideation and behaviors in human beings are complex and multifaceted.”

 Read more here: https://bit.ly/38vMH4c

 Illegal Prawn Enclosures

  •  Ori HC took stock of issue of illegal prawn enclosures (‘gheries’) around Indian wetland of international importance, the eco-sensitive Chilika Lake; Laid directions

 “…each of the demolition actions must be videographed to show that not only have they been effectively demolished but all the equipments used have actually been seized and taken away far from the site and detained in the custody of the authority concerned.”

Read more here: https://bit.ly/3ywIckj


Patna High Court


  • 5-Judge Bench of Patna HC directs to demolish entire building of newly erected Waqf Bhawan constructed in close proximity of Centenary Building of the HC; Justice Ahsanuddin Amanullah dissents

“The structure has been constructed in utter and brazen violation of provisions of law across statutes, starting from Section 32 of the Central Act, through the various provisions of the Municipal Act, and finally Bye-law 21, as discussed above, and must be held to be illegal and non-est from the word go.”

Read more here: https://bit.ly/3h9gKn5


Punjab and Haryana High Court


 Property

  •  Apparent case of greediness; HC imposes Rs 1 lakh cost on the son for attempting to oust his old-aged mother and usurp her property

 Calling it unfortunate, Arvind Singh Sangwan, J., dismissed the petition filed by a man who was trying to oust his mother from her property to usurp the same. Additionally, the Bench imposed a cost of 1 lakh Rupees on the petitioner which was directed to be paid to the respondent mother.

Read more here: https://bit.ly/3BuqiRb 

Promotion

  •  Can an employee who has foregone his promotion claim seniority over his juniors promoted earlier than him? HC answers

 Harsimran Singh Sethi, J., held that length of service in the cadre in which the seniority is being prepared is the only relevant factor to be taken into consideration while fixing the seniority.

Read more here: https://bit.ly/3jttGpb

Vacancy

  • Age relaxation cannot be claimed on the basis of CM’ tweet; HC rejects petition seeking relaxation in maximum age for Police Sub Inspectors

 “There is no legal right with the petitioners to claim that all the vacancies should have been advertised prior to 2021 or even to allege that the inaction of the Department in this regard could be termed as violation of any right.”

 Read more here: https://bit.ly/3t1x1z7

 Live-in Relationship

  •  “Unholy Alliance”; HC denies protection to married woman who was residing in live-in with another man

Calling it “unholy alliance”, Sant Parkash, J., denied protection to a married woman who was residing in live-in with another man.

Read more here: https://bit.ly/2V1VyY4

 Divorce by Mutual Consent

  • Amandeep Singh’s case has not been appreciated in its real sense by the Family Court; HC allows waiving off mandatory 6 months period for divorce

 Observing that the couple had settled the matter and were mature to the extent that first petitioner was 34 years old and petitioner 2 was 35 years of age and had been blessed with 3 children; moreover, it was not disputed that the husband was also staying abroad for the last more than two years and they had even settled regarding the children; the Bench opined that in such circumstances, further waiting period would only prolong the proceedings and it was a fit case to exercise the jurisdiction of the Court in waiving off the mandatory period of six months.

Read more here: https://bit.ly/3BvdQR7

 Anticipatory Bail

  •  Evidences point towards complicity of the accused; HC rejects plea for anticipatory bail

 “A free and fair investigation is the backbone of every criminal trial. The criminal trial is a discovery in pursuit of the truth. Without a thorough free and fair investigation, the trial becomes a futile exercise.”

 Read more here: https://bit.ly/2WD0Qtx


Rajasthan High Court


Live-in Relationship

  •  “Live-in relationship cannot be at the cost of social fabric of this country”; Police protection rejected to a live-in couple

 Satish Kumar Sharma J. dismissed the petition and rejected police protection to a couple.

Read more here: https://bit.ly/3DBdASj

 Transfer Petition

  •  Judgments cited by the applicant cannot be made basis as a precedent to infer that the balance of convenience always lies in favour of the wife; Transfer petition allowed

 “In the present case, the place of litigation should not be made an issue by the non-applicant because the applicant-wife is a lady and having no source of income for maintaining herself and her daughter.”

Read more here: https://bit.ly/3mKOUB4

 Investment by State

  •  “The investment made by State for construction of Dams is made redundant if natural flow of water is impeded in any manner”; directs State to take necessary steps

A Division Bench of Indrajit Mahanty, CJ and Vinit Kumar Mathur, J., direct State to inform them regarding steps taken for restoring the land which has been dug-up during the course of operation of the mines.

Read more here: https://bit.ly/2WzfORj

 Missing Person

  •  Addressed plight of kith and kin of missing person; Instructions/guidelines to be adopted by the police officials in the State of Rajasthan laid down

 A Division Bench of Sandeep Mehta and Manoj Kumar, JJ., disposed of the petition, observing that the missing person Shri Prem Ratan expired, as a result of being hit by a locomotive on the railway tracks near Sadulpur/Rajgarh.

Read more here: https://bit.ly/3t56P6D

Study Leave

  •  Study leave can be granted if the course of study is in the interest of the working of government or to service which govt. servant belongs; Court allows petition

 Ashok Kumar Gaur, J., allowed a writ petition which was filed seeking a direction to grant them study leave to undergo their Post-Graduate Medical Course on the seats allotted to them in NEET PG Counselling, 2020.

 Read more here: https://bit.ly/3gPfPrD

 Ex-Gratia Amount

  •  In circumstances of death while on duty, can ex-gratia be allotted as per both unamended and amended rules? Court answers

 “…police personnel who dies while on duty or dies due to act of violence by terrorists or dacoits or criminals or anti-social elements or dies in bomb blasts in public places or in course of conformation with the mob or crowd during agitation, riot or disturbance or due to the circumstances then the benefit of ex gratia would be released.”

 Read more here: https://bit.ly/3kKMDD4


Sikkim High Court


Code of Civil Procedure

  •  Application allowed under Or. VI R. 17 CPC, 1908, seeking amendment to the plaint erroneous; Court explains

 Jitendra Kumar Maheshwari, CJ., allowed a petition which was filed aggrieved by the order allowing the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment to the plaint.

Read more here: https://bit.ly/2YgUXmH 

National Food Security Act, 2013

  • Court directs State to examine grievances; ensuring proper implementation of NFSA, 2013

 The Division Bench of Jitendra Kumar Maheshwari and Bhaskar Raj Pradhan, JJ., heard a petition which was filed seeking the implementation of the National Food Security Act, 2013 (‘Act of 2013’) read with Sikkim Foods Security Rules, 2014 (‘Rules of 2014’) for an order directing the State respondents to ensure proper quantity and items of food be provided to the beneficiaries falling under the general and special categories and also falling under the categories mentioned in section 6 of the Amendment Rules, 2017; to duly conduct social audit in order to monitor and evaluate the planning and implementation of the Amendment Rules, 2017 and to constitute an independent committee to investigate, report and find out solution for effective implementation of the Act of 2013.

Read more here: https://bit.ly/38v5TPm

 Sole Testimony

  •  Sole testimony of a deaf and dumb woman, unable to answer questions not reliable enough to convict rape accused; Court dismisses petition

 “…the prosecutrix was a deaf and dumb woman, aged about 50 years, and she had stated about commission of rape with her by the accused.”

 Read more here: https://bit.ly/3BsJYF0


Telangana High Court


Live-in Partner | Bail

  •  Mother allows her live-in partner to sexually assault minor daughter continuously: Bail application rejected

 Sri Devi, J., rejected a bail application on noting the fact that a minor girl was continuously sexually assaulted by her mother’s live-in partner resulting in her getting pregnant.

 Read more here: https://bit.ly/3BxwWG7


Tripura High Court


 

Post-retiral benefits

  •  Court rejects post-retiral benefits of pension and gratuity on false claim of being a reserved category candidate; however, salary already paid not a subject of recovery

 Akil Kureshi, CJ., dismissed a writ petition which was filed aggrieved about non-payment of gratuity and pension after retirement

 Read more here: https://bit.ly/2V7NC7Q

Disciplinary Authority

  • Mere honesty and admission of charge are not the grounds for tampering with the order passed by disciplinary authority; Court dismisses appeal

 “…conduct of the petitioner cannot be seen as a momentary loss of discretion on account of some unacceptable but otherwise explainable reason. The petitioner has tried to put it as a one of lapse on his part as something which is conventional though no longer legal.”

Read more here: https://bit.ly/2YgfnfF


Uttaranchal High Court


Right to Promotion

  •  Right to promotion is not a vested right, however, right to be considered for promotion is a FR; Court issues directions to the State

 The Division Bench of Manoj Kumar Tiwari and Alok Kumar Verma, JJ., heard and disposed of a petition which was filed seeking a direction to the State Government to hold promotion exercise for filling the post of Chief Engineer.

 Read more here: https://bit.ly/3mPGd8p

Appointments & TransfersNews

Appointment of Acting Chief Justice


President appoints Justice Mamidanna Satya Ratna Sri Ramachandra Rao, senior-most Judge of Telangana High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Kumari Justice Hima Kohli relinquishes the charge as Chief Justice of the Telangana High Court consequent upon her appointment as Judge of the Supreme Court of India.


Ministry of Law and Justice

[Notification dt. 27-8-2021]

Appointments & TransfersNews

Appointment of Acting Chief Justice


President appoints Justice Meenakshi Madan Rai, senior-most Judge of Sikkim High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Justice Jitendra Kumar Maheshwari relinquishes the charge as Chief Justice of the Sikkim High Court consequent upon his appointment as Judge of the Supreme Court of India.


Ministry of Law and Justice

[Notification dt. 27-08-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal, NCLT Mumbai: Coram of Suchitra Kanuparthi, Judicial Member and Chandra Bhan Singh, Technical Member, observed that,

“…a Judicial authority ought not to pass Orders which would lead to further multiplicity of proceedings.”

The instant application was filed by the Operational Creditor who had earlier initiated the corporate insolvency resolution process against the Corporate Debtor−Rolta India Ltd. The applicant−Operation Creditor now sought withdrawal of his company petition admitted under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The applicant worked as an employee of the Corporate Debtor from March 2013 to June 2019, when he was relieved from services without settlement of arrears of salary and other dues. Consequently, he filed a petition under Section 9 which was admitted by the National Company Law Tribunal, Mumbai (“NCLT”), in May 2021 and an Insolvency Resolution Professional was appointed for the Corporate Debtor.

Thereafter, further negotiations took place between the parties and they reached a settlement agreement. Consequently, the application requested the Insolvency Resolution Professional to file an application under Section 12-A (Withdrawal of application admitted under Section 7, 9 or 10). As the Insolvency Resolution Professional did not file the application immediately, the applicant preferred the Section 12-A application before the NCLT.

The withdrawal application was vehemently opposed by the Financial Creditors (a consortium of several Public Sector Banks) and some of the other ex-employees. Notably, over 75 other petitions under Sections 7 and 9 of  IBC were pending against the Corporate Debtor.

Analysis, Law and Decision

Instant application had been filed under Section 12-A of the IBC read with Rule 11 of the NCLT Rules, 2016 by an employee of the Corporate Debtor company in the capacity of Operational Creditor seeking withdrawal of the company petition in terms of Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Applicant mentioned that he had approached the Insolvency Resolution Professional for filing the Application in Form FA under Regulation 30-A(1)(a) to seek withdrawal of the admitted company petition. However, he stated that the Insolvency Resolution Professional did not cooperate and, therefore, the applicant was compelled to file the present application on their own motion under Rule 11 of the NCLT Rules seeking withdrawal of the admitted company petition.

The Insolvency Resolution Professional mentioned that she had received claims/intimation of claims of about Rs 5523.81 crores from financial creditors, operational creditors and workmen employees of Rolta India Limited.

Further, the Bench noted that even under Workmen and Employees’ claim there were 567 employees whose claims had been collated by the Insolvency Resolution Professional. However, the settlement entered into by the Corporate Debtor was only with 32 employees. It was also noted that even the settlement which was proposed by the promoter on behalf of the Corporate Debtor company kept aside majority of the workmen employees’ claim which had been brought out by the Insolvency Resolution Professional. Moreover, the proposed settlement with the employees under the Joint Settlement Agreement will be done only after they withdraw the petition. The Bench observed:

“…Corporate Debtor is willing to pay the major part of the dues to the employees only subsequent to withdrawal of petition through the settlement jointly and/or severally with the employees. The Bench feels that this provides an escape route to both the promoter as well as to the Corporate Debtor Company to conveniently wriggle out of the partial mini settlement at any point of time.”

Major Issue 

The Tribunal noted the major issue:

Whether it would be proper for the Bench to allow withdrawal of corporate insolvency resolution process (“CIRP”) under Section 12-A or to exercise, its discretion to reject the present application under Section 12-A?

The Bench was fully aware that after passing the “Admission Order” dated 13-05-2021 and after the commencement of CIRP, the proceeding are in rem and therefore, any decision regarding the continuation or otherwise of CIRP has to be decided in the interest of all stakeholders and not just a handful of employees. It was reiterated:

“…under Section 53 of IBC the debts of the workmen rank equally with the financial debt owed to the secure/ unsecured creditors.”

In view of the above, it was stated that it cannot be ignored that Tribunal has to take into account the interest of all stakeholders. Before taking the discussion further, the Bench relied upon some of the prominent judgments in respect of the scope and ambit of Section 12-A of IBC. Supreme Court in the decision of Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17, clearly directed that interest of all stakeholders have to be considered while accepting or disallowing an application for withdrawal.

Supreme Court recently in the matter of Indus Biotech (P) Ltd. v. Kotak India Venture (Offshore) Fund, 2021 SCC OnLine SC 268 has clearly observed that when a petition under Section 7 of IBC is admitted/triggered it becomes a proceeding in rem and even the creditor who has triggered the process would also lose control of the proceedings as corporate insolvency resolution process is required to be considered through the mechanism provided under IBC.

Further, the Tribunal noted that in the present matter, there were several Financial Creditors and total financial claim collated by the Insolvency Resolution Professional in the matter of Rolta India Ltd. was upward of Rs 5000 crore. Thus, this itself would be an enough ground to disallow the present application for withdrawal under Section 12-A. The Tribunal said:

“…even in the event of the original creditor [and] the Corporate Debtor settling their disputes prior to the constitution of the CoC, the Tribunal has sufficient jurisdiction to reject an application under Section 12-A of the IBC if the facts and circumstances of the case warrants such rejection.”

Tribunal in view of the above, expressed that, even if withdrawal was permitted, it is a fact that all the dues of all the employees of the Corporate Debtor company were not being settled. About more than 100 employees had lodged their claims against the Corporate Debtor. However, only some employees’ claims were being settled by the ex-management/promoter of the company. Therefore, the purported settlement lacked bona fide.

Moreover, the interest of the employees would be taken care of during the CIRP of the Corporate Debtor and they being operational creditors will be entitled to their rights as provided for under the IBC. Concluding, the Bench said that it had no doubt in its mind that considering that CIRP proceedings are in rem, the substantial claims of Financial Creditors cannot be disregarded or ignored in view of the purported settlement of certain employees of the Corporate Debtor.

In view of the above, the Bench dismissed the application filed under Section 12-A of the IBC and the CIRP against the Corporate Debtor company would continue. [Dinesh Gupta v. Rolta India Ltd., MA No. 1196 of 2021, decided on 6-08-2021]


Advocates before the Tribunal:

For the Promoter: Mr. Prateek Seksaria, Advocate.

For the IRP: Ms. Ranjana Roy Gawai, Mr. Pervinder, Mr. Vineet Kumar, Advocates a/w Ms. Vandana Garg, IRP.

For the Financial Creditor: Mr. Rohit Gupta, Mr. Nausher Kohli, Advocates.

For the Operational Creditor: Mr. Nausher Kohli and Mr. Rohit Gupta, Advocates

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., while setting aside an impugned order explained the slight difference between principles laid down under Section 300 of the Criminal Procedure Code, 1973 from the principle of double jeopardy under Article 20 (2) of the Constitution of India.

Petitioner invoked the principles of nemo debet bis vexari (no man shall be put twice in peril for the same offence) and autrefois acquit (the person has been acquitted on a same charge on which he is being prosecuted), embodied in Section 300 of the Criminal Procedure Code, 1973, in order to demonstrate that the Court of Chief Judicial Magistrate in the present case erred in passing the impugned order.

It was stated that a complaint was submitted before the police by the Food Safety Officer alleging that banned substances i.e. Gutkha and other such material was found stored in Om Shanti Pan Center at Malkapur, run by the petitioner.

Petitioner was acquitted for offences under Sections 188 and 272 of the Penal Code, 1860 and Section 59 of the Food Safety and Standards Act, 2006.

Court of Chief Judicial Magistrate found that even though there was an order of acquittal in favour of the petitioner for offence under Section 59 of the FSS Act, since the acquittal order was passed by a Court, which was not competent to try offence under the FSS Act, the order of acquittal could be of no avail. It was held that since the order of acquittal was passed by the Court, which could not be said to be a Court of competent jurisdiction, Section 300 of the CrPC could not be invoked.

Challenging the above decision of the Court, present petition was filed.

Analysis, Law and Decision

High Court expressed that Section 300 of the CrPC embodies the following two principles:

  • nemo debet bis vexari (no man shall be put twice in peril for the same offence) and
  • autrefois acquit (the person has been acquitted on a same charge on which he is being prosecuted).

Bench stated that the above two principles are slightly different from the principle of double jeopardy embodied in Article 20(2) of the Constitution of India.

Court found the finding of Chief Judicial Magistrate to be in the teeth of the law laid down by the Supreme Court in the case of State of Maharashtra v. Sayyed Hassan Subhan, (2019) 18 SCC 145, wherein it had been categorically held that the Food Safety Officer can also lodge complaints about offences punishable under the IPC, in addition to offences under FSS Act.

After referring to the said provision, the Supreme Court held that the Food Safety Officer could certainly initiate prosecution under the provisions of the IPC as well as the FSS Act, so long as the ingredients of the offences stood satisfied.

“…provisions of the FSS Act make it clear that there is no bar for prosecution under the IPC, merely because the provisions in the FSS Act prescribe penalty.”

In view of the above, it was held that the Court of the Chief Judicial Magistrate in the impugned order committed an error in proceeding on the basis that when FIR was registered against the petitioner for offences under the IPC and FSS Act, the Court of Judicial Magistrate First Class could not have conducted the trial against the petitioner, insofar as the offence under the FSS Act was concerned.

The subsequent complaint lodged by the Food Safety Officer dated 20-01-2015, also specifically pertains to the same alleged incident dated 27-01-2014, in respect of which the petitioner already faced trial for alleged offences under the IPC and the very same provision i.e. Section 59 of the FSS Act and stood acquitted by the judgment and order dated 24-08-2015. Thus, the subsequent complaint lodged by the Food Safety Officer dated 20-01-2015, pertaining to the very same incident and for the very same alleged offence under Section 59 of the FSS Act.

Court found that the principles embodied under Section 300 CrPC clearly apply to the facts of the present matter.

Further, applying the said principle, High Court held that it becomes evident that if the impugned order was upheld and the petitioner was made to face the criminal proceedings subsequently initiated by the Food Safety Officer, it would amount to putting him twice in peril for the same offence, which cannot be permitted and hence the impugned order was set aside.

In view of the above, petition was allowed.[Sachin v. State of Maharashtra, 2021 SCC OnLine Bom 1576, decided on 4-08-2021]


Advocates before the Court:

Mr Akshay Naik, Advocate for the petitioner.

Mr Sagar Ashirgade, APP for respondents.

Case BriefsSupreme Court

Supreme Court: A Division Bench of Indira Banerjee and V. Ramasubramanian, JJ. held that there is no bar in law to amendment of pleadings in an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 or to filing of additional documents apart from those initially filed, at any time until a final order either admitting or dismissing the application has been passed.

The Court also held that an application under Section 7 for imitation of corporate insolvency resolution process against a corporate debtor is not be barred by limitation if there is an acknowledgement of the debt by the corporate debtor before expiry of the limitation period. Such acknowledgment can be by way of statement of accounts, balance sheets, financial statements and offer of one time settlement.

Moreover, a final judgment and/or decree of any court or tribunal or any arbitral award for payment of money, if not satisfied, would fall within the ambit of a financial debt, enabling the creditor to initiate proceedings under Section 7.

Factual Matrix and Timeline

In 2011, Dena Bank sanctioned a term loan of to the Corporate Debtor, which was to be repaid in 24 quarterly installments. The Corporate Debtor defaulted in repayment and their account was declared Non Performing Asset (“NPA”) in December 2013. In 2014, the Bank sent a letter to the Corporate Debtor to repay the outstanding dues. However, no payment was made.

In 2015, the Bank initiated proceedings before the Debts Recovery Tribunal (“DRT”) for recovery of outstanding dues from the Corporate Debtor. By a letter dated 5 January 2015, the Corporate Debtor requested the Bank to restructure the loan. Again, on 3 March 2017, while proceedings were pending before DRT, the Corporate Debtor gave an offer for one time settlement of the term loan account, which  was rejected by the Bank. On 27 March 2017, DRT passed an order against the Corporate Debtor for recovery of outstanding dues to the Bank. In May 2017, DRT issued a Recovery Certificate in favour of the Bank. Thereafter in June 2017, the Corporate Debtor once again gave the Bank a proposal for one time settlement to mutually settle the loan amount.

In October 2018, the Bank sought initiation of corporate insolvency resolution process against the Corporate Debtor. It filed a petition under Section 7 of the Insolvency and Bankruptcy Code (“IBC”) before the National Company Law Tribunal, Bengaluru. Thereafter, twice in 2019, the Bank filed applications for permission to place additional documents on record. Both these applications were allowed by NCLT. In March 2019, NCLT passed an order to admit the Section 7 petition filed by the Bank.

Appeal

The Corporate Debtor challenged the order of NCLT in an appeal under Section 61 IBC before the National Company Law Appellate Tribunal. The NCLAT allowed the appeal reversed the order of NCLT. Aggrieved, the Bank approached the Supreme Court.

Issues

Three questions arose for consideration of the Court:

(i) Whether a petition under Section 7 IBC would be barred by limitation, on the sole ground that it had been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, even though the Corporate Debtor might subsequently have acknowledged its liability to the appellant Bank, within a period of three years prior to the date of filing of the Section 7 petition, by making a proposal for a one time settlement, or by acknowledging the debt in its statutory balance sheets and books of accounts.

(ii) Whether a final judgment and decree of DRT in favour of financial creditor, or the issuance of a Certificate of Recovery in favour of financial creditor, would give rise to a fresh cause of action to financial creditor to initiate proceedings under Section 7 IBC within three years from the date of the final judgment and decree, and/or within three years from the date of issuance of the Certificate of Recovery.

(iii) Whether there is any bar in law to the amendment of pleadings, in a petition under Section 7 IBC, or to the filing of additional documents, apart from those filed initially, along with the Section 7 petition in Form-1 given in the Annexure to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (“2016 Adjudicating Authority Rules”).

Analysis and Observations

Interpretation of the Code

Discussing the object of IBC, the Court observed that it is imperative that provisions of IBC and Rules and Regulations framed thereunder be construed liberally, in a purposive manner to further the objects of enactment of the statute, and not be given a narrow, pedantic interpretation which defeats its purposes.

Permissibility of amending Section 7 petition for filing additional documents

On a careful reading of IBC provisions and in particular the provisions of Section 7(2) to (5) read with the 2016 Adjudicating Authority Rules, the Court reached a conclusion that there is no bar to the filing of documents at any time until a final order either admitting or dismissing the application has been passed.

The Court noted that under Section 7(2) IBC, a financial creditor is required to apply for initiation of corporate insolvency resolution process against a corporate debtor in the prescribed Form-1 under the 2016 Adjudicating Authority Rules. Since a financial creditor is required to apply under Section 7 IBC in statutory Form-1, the financial creditor can only fill in particulars as specified in the various columns of the Form. There is no scope for elaborate pleadings. The Court observed:

An application to the Adjudicating Authority (NCLT) under Section 7 of the IBC in the prescribed form, cannot therefore, be compared with the plaint in a suit. Such application cannot be judged by the same standards, as a plaint in a suit, or any other pleadings in a Court of law.

The Court summed up the discussion on this point by mentioning that there is no bar in law to amendment of pleadings in an application under Section 7 IBC, or to filing of additional documents, apart from those initially filed along with application under Section 7 in Form-1. It was observed:

In the absence of any express provision which either prohibits or sets a time limit for filing of additional documents, it cannot be said that NCLT committed any illegality or error in permitting the Bank to file additional documents.

However, the Court added that depending on the facts and circumstances of the case, when there is inordinate delay, the adjudicating authority might, at its discretion, decline the request of an applicant to file additional pleadings and/or documents, and proceed to pass a final order.

Lastly, it was clarified that Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries (P) Ltd., (2020) 15 SCC 1 is not an authority for the proposition that there can be no amendment of pleadings at the fag end of NCLT proceedings. Moreover, in the instant case, the amendments were not made at the fag end of the proceedings but within 2/3 months of their initiation, before admission of the petition under Section 7 IBC.

Limitation and effect of acknowledgment of debt

Under the scheme of IBC, the insolvency resolution process begins when a default takes place, in the sense that a debt becomes due and is not paid. Before considering the main point, the Court noted that there can be no dispute with the proposition that in terms of Article 137 of Limitation Act, 1963, the period of limitation for making an application under Section 7 IBC is three years from the date of accrual of the right to sue, that is, the date of default.

However, as per Section 18 of Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing a fresh period of limitation from the date on which the acknowledgement is signed. The acknowledgement must be made before the relevant period of limitation has expired. Relying on Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd., 2021 SCC Online SC 244 and Laxmi Pat Surana v. Union Bank of India, 2021 SCC Online SC 267, the Court reiterated that there is no reason to exclude the effect of Section 18 of the Limitation Act to proceedings initiated under IBC.

Relying further on Asset Reconstruction Co. (India) Ltd. v. Bishal Jaiswal, 2021 SCC Online SC 321, the Court noted that:

It is well settled that entries in books of accounts and/or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act.

In view of such law, the Court concluded that NCLAT’s finding that there was nothing on record to suggest that the Corporate Debtor acknowledged the debt within three years and agreed to pay debt, was not sustainable in law in view of the statement of accounts/balance sheets/financial statements for the years 2016-2017 and 2017-2018 and the offer of one time settlement including in particular the offer of one time settlement made on 3 March 2017.

In the instant case, Rs 1.11 crore had been paid towards outstanding interest on 28 March 2014 and the offer of one time settlement was within three years thereafter. In any case, NCLAT overlooked the fact that a Certificate of Recovery was issued by DRT in favour of the Bank on 25 May 2017. The Corporate Debtor did not pay dues in terms of the Certificate of Recovery. The Court held:

The Certificate of Recovery in itself gives a fresh cause of action to the Appellant Bank to institute a petition under Section 7 of IBC. The petition under Section 7 IBC was well within three years from 28th March 2014.

The Court relied on Jignesh Shah v. Union of India, (2019) 10 SCC 750 for concluding that a final judgment and/or decree of any court or tribunal or any arbitral award for payment of money, if not satisfied, would fall within the ambit of a financial debt, enabling the creditor to initiate proceedings under Section 7 IBC.

Before concluding, the Court considered that when the petition under Section 7 IBC was filed, the date of default was mentioned as 30 September 2013 and the date of declaration of term loan account of the Corporate Debtor as NPA was stated as 31 December 2013. However, according to the Court, it was not correct to say that there was no averment in the petition of any acknowledgment of debt. Such averments were duly incorporated by way of amendment, and NCLT rightly looked into the amended pleadings to admit the petition of Bank. The Court reiterated:

Even assuming that documents were brought on record at a later stage … the Adjudicating Authority was not precluded from considering the same. The documents were brought on record before any final decision was taken in the petition under Section 7 of IBC.

Decision

For the reasons discussed above, the Supreme Court held that the Section 7 IBC petition filed by Dena Bank was admissible. The impugned judgment of NCLAT was unsustainable which was set aside. [Dena Bank v. C. Shivakumar Reddy, 2021 SCC OnLine SC 543, decided on 4-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of July, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.


Appellate Tribunal for Electricity

 

Solar Project

Whether there was bona fide delay in commissioning the solar power project?

“…allowed an appeal which was filed against the Order of Karnataka Electricity Regulatory Commission (Commission) whereby, the Commission has held that the Applicant/Appellant was not entitled to extension of time for commissioning of solar power project in terms of the Power Purchase Agreement and Supplementary power Purchase Agreement.”

Read more: https://bit.ly/3jbKtvP


Armed Forces Tribunal

War Injury Pension

Tribunal grants war injury pension to WW-2 soldier who suffered splinter wound injury in Italy

“…war injury pension to World War-2 veteran who suffered splinter wound injury in his right leg”

Read more: https://bit.ly/37cxXXi


Customs Excise & Service Tax Appellate Tribunal

Input Services

Whether distribution of credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants? Tribunal answers

“…issue involved was that the appeals was whether Parle Biscuits was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including Krishna Foods, under Rule 7(d) of the CENVAT Rules.”

Read more: https://bit.ly/2V5CYhG

Convenience Fee

“Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains

“Issue involved was related to to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.” 

Read more: https://bit.ly/3rKRvvg

Principles of Natural Justice

Revenue has miserably failed to discharge its onus; Tribunal finds impugned order opposed to principles of natural justice

https://bit.ly/37a5uB8

CENVAT Credit

Admissibility of the Cenvat Credit in respect of outward GTA; Tribunal allows appeal

https://bit.ly/3xcJKzf


Central Information Commission

Right to Information Act

Can S. 8(1)(d), RTI Act be invoked to deny copy of thesis in view of commercial viability and to protect interests of scholar and his guide?

“…thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.”

Read more: https://bit.ly/3fbpI23


Delhi State Consumer Disputes Redressal Commission

 

Deficiency of Service

Will Camera Manufacturer — Nikon be liable for deficiency of service caused to a consumer who lost all his photographs due to memory card getting corrupted?

“…Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.”

Read more: https://bit.ly/3fbqg87

Builder-Buyer Dispute

Builder handing over possession of plot with incomplete development beyond agreed time. Is buyer entitled to refund of deposit with interest? Commission decides

“Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.”

Read more: https://bit.ly/2WJUV6d


National Consumer Disputes Redressal Commission

Medical Negligence

  • Can Wheelchair injuries be covered under the ambit of medical negligence?

“Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.”

Read more: https://bit.ly/3fimrOy

  • In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent?

“…The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”

Read more: https://bit.ly/3idk4hG


National Company Law Appellate Tribunal

 

Insolvency Proceedings

An Arroyo for OYO | While allowing it to work independently, closed insolvency proceedings; Disallowed external parties to impinge

“We are of the considered view that before Constitution of Committee of Creditors (CoC) mere filing of a ‘Claim’ does not constitute a default per se. It is only on the basis of the ‘Claims’ that the CoC is constituted. In a catena of Judgments, the Supreme Court has reiterated that the prime objective of the Court is not recovery, but revival”.

Read more: https://bit.ly/3rO12BU


National Company Law Tribunal

Personal Guarantor

Personal Guarantor not liable to be prosecuted under S. 95 IBC where corporate debtor concerned is not under corporate insolvency resolution process

https://bit.ly/2Vmxnn0


National Green Tribunal

No Odour control system required to prevent odour from Sewage Treatment Plant. Why? NGT imposes costs on Delhi Jal Board: Why DJB is shirking its responsibility?

Mere spraying of chemical solution and other superficial steps is not effective in installing an effective odour control unit.”

Read more: https://bit.ly/3rMxOTD


National Human Rights Commission

Fr. Stan Swamy | Medical Treatment

  • Ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights: NHRC

https://bit.ly/3yk7ov5

Manual Scavenging

  • Manual scavenging and hazardous cleaning still remain a stinking truth of our nation: NHRC

https://bit.ly/3yi3seb

Post-Poll Violence in West Bengal

  • NHRC refutes allegations in a section of media regarding leakage of report relating to post poll violence in West Bengal

https://bit.ly/3BZMT9h


Securities Exchange Board of India

Fraudulent Scheme

 Manipulation in prices, fraudulent scheme results in debarment-Global Infratech, Directors and 12 other entities ousted from the market

https://www.scconline.com/blog/post/2021/07/23/manipulation-in-prices/

Insider Trading

Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries

https://bit.ly/2V0zFZq


 Securities Appellate Tribunal

 

Collective Investment Scheme

Unregistered Collective Investment Scheme violative of S. 12(1)(b) of SEBI Act and Regulations, order to pay 10% p.a. interest on refundable amount not vitiated

https://bit.ly/3j728EJ


Tribunals/Regulatory Bodies/Commissions Monthly Roundup | June 2021

High Court Round UpLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section on the SCC Online Blog for the month of July 2021. In case, you missed out on catching up with some interesting cases, then, you have clicked on the right post to be read.

Go ahead and check out the July updates of 2021!


Allahabad High Court

Virtual Hearings

Advocate addressing Court while riding a scooter: Allahabad HC declines to hear the matter.

https://bit.ly/3zVkkIo

Section 138 NI Act

All HC reiterates scope of inherent powers to quash a S. 138 NI Act complaint. Imposes exemplary costs for filing petition as an after thought

https://bit.ly/3j4mApT

Gangs | Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986

All HC | What are the conditions to constitute a “Gang”? Are the two parts of definition mutually exclusive? Read HC’s opinion

https://bit.ly/3j3YMT6

Murder

Man murdered wife and 4 minor daughters and burned them. Will this case fall under rarest of rare category? Allahabad HC decides

https://bit.ly/3j5Qr18

Defamation

All HC | Onus of proving ingredients under the First Exception, S. 499 IPC is on the accused; Defence being a question of fact cannot be claimed at the stage of issuance of summons

https://bit.ly/2Vo62B2


Andhra Pradesh High Court

Section 498-A of Penal Code, 1860

AP HC | Is girlfriend or concubine a “relative” of husband, liable to be prosecuted for cruelty under S. 498-A IPC? Court decides

https://www.scconline.com/blog/post/2021/07/20/cruelty-5/


Bombay High Court

Adoption

Whether adoption can be restricted only to children in conflict with law, or in need of care and protection, or who are orphaned, abandoned or surrendered under provisions of JJ Act and Adoption Regulations? Elaborate report

https://bit.ly/2UZjg7z

Right to Property

Right to Property under Art. 300 A – A Human and Constitutional Right? Court decides in a dispute of construction of National Highway [Land Owners v. State]

https://bit.ly/3fbXN1J

Cooling Period under Hindu marriage Act

Is the 6 months period stipulated under S. 13-B(2) of Hindu Marriage Act mandatory or relaxation in exceptional situations is permitted? Read on

https://bit.ly/3j7rUsv

Bribe | Prevention of Corruption Act

Mere recovery of tainted money without sufficient evidence to prove payment of bribe or to show voluntary receipt of money. Can accused be convicted under Prevention of Corruption Act? Read on

https://bit.ly/3zUZ857

Homebuyers & Builders

Builders taking flat purchasers for a ride, taking money but not delivering flats: Court asks builders to prove they are paupers, show standard of living bears out the same

https://bit.ly/2UZeuH9

Cheating

For the offence of cheating under Penal Code, 1860, is intention of cheating important from inception? Read on

https://bit.ly/2WtHZ3Z

Departmental Enquiry

Departmental enquiry and criminal proceedings can go on simultaneously: Court refuses to quash departmental enquiry

https://bit.ly/3zST8K7


Calcutta High Court

Senior Citizens’

Children living in parents’ house are at best licensees: Cal HC says senior citizens’ exclusive residentiary rights to be viewed from prism of Art. 21

https://bit.ly/3yfEbkN

Bengal Post Poll Violence

NHRC submits final report; Arguments to begin from 22-07-2021

https://bit.ly/3BYOgVM

There is more to conceal than to reveal, NHRC flooded with complaints when State claimed otherwise; Court issues directions

https://bit.ly/2VmMjkY


Chhattisgarh High Court

Bail

Right of default bail under S. 167(2) CrPC cannot be defeated by subsequent filing of charge-sheet on same day

https://bit.ly/2TIL67a

Undertrial Prisoners

Undertrial prisoners facing trial under PCA/PMLA, cases investigated by CBI/ED/NIA/ SFIO etc. are not entitled to be released

https://bit.ly/3fdzNva

Hindu Succession Act

When can a property be said to be “possessed” by a Hindu female as provided in S. 14(1) of  Hindu Succession Act? Court answers

https://bit.ly/3ld3j8b


Delhi High Court

Trademark Disputes

Are trademark disputes arbitrable? Court interprets S. 8 of Arbitration Act; differentiates between rights emanating from Trademark Act and Trademark Agreement

https://bit.ly/3xjWiVr

Justice

Justice to which mercy is alien is no justice at all: HIV + BSF Personnel granted relief on his transfer order || HC deals with a notable situation

https://bit.ly/378EFO3

Stray Dogs

Stray Dogs have right to food and citizens have right to feed | Indispensable 22 Guidelines on Feeding of Stray Dogs [Momentous Ruling]

https://bit.ly/3lhcynY

Domain Infringement

Domain Name infringement | Case of identical registered domain names: Delhi HC grants interim injunction in favour of Tatas

https://bit.ly/2Vbv3PX

Arbitral Award

Ambiguity in contractually stipulated obligations favours whom? Court discusses while refusing interference in arbitral award

https://bit.ly/3C37Zn2

Chief Minister’s Advocates Welfare Scheme

CM Advocates Welfare Scheme: Only for the Advocates enrolled with Voter ID of Delhi? HC enumerates significance of Place of Practice v. Place of Residence

https://bit.ly/2VqKEew

Whether a Chief Minister’s promise to its citizens is enforceable? Succinct report in light of Delhi CM’s ‘Promise’ | Highlight on Doctrines of Promissory Estoppel & Legitimate Expectations

https://bit.ly/3zZq83z

Grant of Probate

Under S. 263 of Succession Act, can a person approach High Court for grant of probate or letter of administration or revocation or annulment? HC addresses the issue

https://bit.ly/3id22w0

Contract Act

Can ‘Pawnor’ under Ss. 172/176 of Contract Act be made liable for repayment of entire debt, in absence of any guarantee being furnished? Succinct Report

https://bit.ly/3rJZJnm

Does Exception 3 to S. 28 of Contract Act deal with claim period within which beneficiary is entitled to lodge claim? Court discusses

https://bit.ly/3j7wbMz

Bail

Does a provision after being declared unconstitutional, gets repealed or wiped out from statute book? HC answers

https://bit.ly/3fipZQC

Hindu Marriage Act

Can members of Scheduled Tribes following Hindu customs claim to be kept out of purview of HMA? HC answers; highlights need for Uniform Civil Code

https://bit.ly/3lgKb9C

AYUSH teachers

De-certification of AYUSH teachers; HC sets aside CCIM’s order de-certifying “Teacher Code” of practitioners for working outside their State of registration

https://bit.ly/3yikEQK


Gauhati High Court

COVID-19 Vaccination

Priority vaccination for persons with disabilities; HC issues directives to Arunachal Pradesh Government

https://bit.ly/3xg7ouX

In case they get infected, they will become spreaders; HC directs Nagaland to ramp up vaccination for health workers, Shopkeepers and vegetable vendors

https://bit.ly/3xpWGSJ

“Not based on intelligible differentia”; HC stays Arunachal Pradesh’s order discriminating between vaccinated and non-vaccinated persons

https://bit.ly/3BX7g6Z

Sedition

Is using of National Flag as a table cloth Sedition? HC grants bail to the woman accused of willfully dishonouring the National Flag

https://bit.ly/3iexTN5

Custody of Teenage Rape Victim

Not in interest of the child; HC stays Sessions Court’s order granting custody of teenage rape victim to relatives of accused

https://bit.ly/3BZE7rH

Essential Services

“Reopen Anganwadi centers”; HC directs Nagaland government to ensure availability of essential services to the lactating mothers and children

https://bit.ly/3ymnJQ8


Gujarat High Court

Bail

Bail granted to doctor alleged to be shielding main accused in suicide case by issuing death certificate without post mortem

https://bit.ly/3idLSCE

Last Rites as per Religious Practice

Even FR’s are subject to public order, morality and health; Court dismisses petition, Parsees denied permission to perform last rites as per religious practice

https://bit.ly/2WErrXg

Transfer of Winding-up proceedings

Court directs transfer of winding-up proceedings to NCLT; scattering litigation to various forums leads to multiplicity, abuse of process of law

https://bit.ly/3ygxm2F


Himachal Pradesh High Court

Bail

Petitioner who is a pimp cannot claim bail on ground of parity citing judgments where bail was granted subject to its peculiar facts

https://bit.ly/3rJZTLn


Jharkhand High Court

Rath Yatra

Permission for Rath Yatra Puja in the month of July in Jharkhand sought; Directed to take its own decision in view of SC ruling

https://bit.ly/3leYuLG

Section 497 of Penal Code, 1860

Is the law laid down by the Supreme Court applicable prospectively? Will adultery committed prior to Joseph Shine decision attract conviction when the offence has been declared unconstitutional pre-conviction?

https://bit.ly/3fhGtZn

Economically Weaker Section

10 % EWS reservation; Can it be invoked retrospectively? HC clarifies

https://bit.ly/3fh3Thp

Dead Body Management

Family members permitted to perform religious rituals and last rites according to Covid-19 Guidelines on Dead Body Management but cannot dispose the dead body by themselves

https://bit.ly/3zR15Q7


Jammu and Kashmir High Court

Indecent Assault and Attempt to Rape

Is taking off trousers of victim as well as taking off one’s own trousers an attempt to rape? HC clarifies distinction between indecent assault and attempt to rape

https://bit.ly/378zZYb


Karnataka High Court

Domestic Violence Act

Persons only in ‘domestic relationship’ as per S. 2 of Domestic Violence Act, 2005 can be made as respondent under S. 12 of DV Act

https://bit.ly/3j4eVrz

Preventive Detention

Non-consideration of representation at the earliest opportunity could lead to release of detenu; Guidelines/Directions issued

https://bit.ly/3yfmzFV

Compassionate Appointment

“What sauce is good for the goose is good for the gander”; State under mandatory obligation for immediate consideration of compassionate appointment applications

https://bit.ly/3rIkuQe

Sexual Harassment

A Mangalore University professor being accused of sexual harassment by a student; Court observes “He that takes the procedural sword shall perish with that sword”

https://bit.ly/2Vg43yx


Kerala High Court

Cruelty

Does false accusation of unchastity amount to cruelty? Can it be the ground for divorce? HC answers

https://bit.ly/3ymqwsA

Lakshadweep Administration’s Notice

Demolition of Traditional Coastal Communities’ dwellings; HC stays impugned notice of Lakshadweep Administration

https://bit.ly/3lfeNrP

Internships for Law Students

Relax 20 weeks internship requirement for final year Law students; HC directs Government Law College of Ernakulam

https://bit.ly/3ieqpcL

Animal Welfare

In re: Bruno; HC steps forward as the flag bearer of Animal rights. Directions issued to State to adopt proactive approach towards animal welfare

https://bit.ly/3ltPeUj

In Re: Bruno; HC condemns instructions to keep pets in chains and kennels. Directs State to ensure mandatory registration/licence for pet adoption

https://bit.ly/3C42EfA

Bail

Harassment, abuse and torture of wife within seven months of marriage; HC denies anticipatory bail to doctor

https://bit.ly/3zVvr44

Section 427 of Criminal Procedure Code, 1973

60-year-old convict released after serving 15 years in prison; HC exercises special power under S. 427 CrPC noticing more than 18 years imprisonment would have to be served if sentence don’t run concurrently

https://bit.ly/3C1cChp

Destruction of Crops

Declare wild boars as vermin; HC allows farmers to hunt wild boars to prevent destruction of agricultural lands

https://bit.ly/3fg13sZ

Termination of Pregnancy

On what grounds can pregnancy of a mentally unsound woman be terminated? Is consent of women indispensable? HC answers

https://bit.ly/37bFJ3K

Minority Status of Muslims and Christians

Re-consideration of Minority status of Muslims and Christians; HC rejects plea stating a few people being rich does not determine advancement of whole community

https://bit.ly/3fb6b1J


Madras High Court

 Section 138 of Negotiable Instruments Act

Cheque returned with endorsement “drawers signature differs”. If complainant fails to prove accused was not stranger, can he still be prosecuted under S. 138 NI Act? Court answers

https://bit.ly/3zVwjWo

COVID-19

A person can be a silent carrier of COVID-19 on not taking vaccine: Can Right to Refuse Vaccine in such circumstances be exercised? Read HC’s opinion

https://bit.ly/3C0WJaT

Online Games

Ban Online Games or not? Read HC’s opinion on not entering into such matters. Is it a policy matter? [Detailed Report]

https://bit.ly/2TIQQ0I

Plea of Public Interest

Is writ petition maintainable against Asset Reconstruction Co. which is assigned debts by nationalised banks? Is there element of public duty and obligation to follow RBI Circulars? HC decides

https://bit.ly/3rLjieZ

General Admission of Facts

When can decree on admission be passed? Madras HC explains how general admission of facts v. admission of claim, makes difference

https://bit.ly/3lgS5ji

LGBTQIA+

Police protection for a member of LGBTQIA+ Community on having apprehensions of honour killing on receiving threats from family

https://bit.ly/3xeJFLE

Right to Forfeit

Does a forfeiture clause imply that the entire deposit amount can be forfeited? Madras HC elaborates

https://bit.ly/3lgqFtO

Sexual Assault

Schools to keep a complaint box to make victims complain about sexual assault freely

https://bit.ly/3ff3c8t

Defamation

Will procedure laid down under S. 199(2) CrPC for defamation apply on a defamatory statement made in personal nature? HC explains

https://bit.ly/3ygAZpj


Manipur High Court

COVID-19

State cannot seek to impose conditions upon citizens so as to compel them to get vaccinated; Courts holds restraining the non-vaccinated people illegal

https://bit.ly/2ValBMT


Meghalaya High Court

Cutting/Felling of Trees

Cutting of trees/ considerable heritage for expansion of road project; Court constitutes High Powered Committee

https://bit.ly/37qayBT


Madhya Pradesh High Court

Rape

Rape accused of live-in partner granted anticipatory bail; Court directs “shall not move in the vicinity of prosecutrix”

https://bit.ly/2TNp2Ze

Strike by Nurses

Court declares strike by  nurses in State as illegal; demand for not taking any disciplinary action for the period of absence considered

https://bit.ly/3rLk6Ax

NEET-PG 2020

Disproportionate distribution of increased PG Medical seats in Clinical and Non-Clinical subjects; Court examines

https://bit.ly/3lhnceq


Orissa High Court

Bail

Bail granted to a man who portrayed former CJI as Naxalite and Christian Terrorist as he refused permission for Rath Yatra last year

https://bit.ly/3j4dERq

COVID-19

Ori HC issues notice to State to file an affidavit regarding a delay in sample collection due to suspension of public transport and inadequacy in other services

https://bit.ly/3ljFtaW

Justice A.B.S. Naidu, former District Judge appointed as Inquiry Officer regarding Covid-19 Mismanagement at VIMSAR

https://bit.ly/3C10ehx

Leprosy Patients

PIL filed for effective treatment and eradication of leprosy from the State; SC directions reiterated and new directions laid for State

https://bit.ly/3BYNbx6

Overcrowding of Jails

Orissa HC looks into the issue of overcrowding of jails; asks IG Prison for report; Reprimanded ad hoc measures and rather asked for a long term plan

https://bit.ly/2TQk4ek


Patna High Court

Attempt to Murder

11 acquitted on the very same evidence which lead to conviction of prime accused; HC reverses Sessions Court order in an attempt to murder case

https://bit.ly/3lfjF05


Punjab and Haryana High Court

Sodomy

“Nightmarish and traumatic”; HC denies bail in a case of sodomy committed to an 8-year-old child

https://bit.ly/3j5JoW3

Elderly Parents

Maintaining elderly parents is not only a value based principle but a bounden duty under Maintenance and Welfare of Parents Act

https://bit.ly/3C3j4Va

Liquor Scam

Spurious liquor Scam; HC denies bail to the person behind Hooch tragedy which lead to number of persons dying or losing their eye-sight due to consuming illicit poisonous liquor

https://bit.ly/3ymtFso

Farmer’s Protest

Person terminated from service due to alleged participation in farmer’s protest in New Delhi; HC directs State to maintain status quo

https://bit.ly/3zSVLvx

CBI Proceeding

Panchkula Plot Allotment case; HC stays CBI proceeding against former CM of Haryana-Bhupinder Singh Hooda

https://bit.ly/3yirxBA


Rajasthan High Court

Policy Decision

Declaration of journalist as front line health workers a ‘policy decision’; Court dismisses appeal

https://bit.ly/37diWnS

COVID-19 Vaccine

Court dismisses PIL seeking ascertainment regarding vaccine being covered by any patent or issuance of compulsory license under S. 92 Patents Act

https://bit.ly/3zPll4o

Article 21 of the Constitution of India

Society cannot determine how individuals live their lives; Police protection granted to a ‘major’ couple residing together

https://bit.ly/3idRYTy

Right of Hearing

Is Juvenile Justice Act totally foreign to the concept of “right of hearing” given to the complainant/CICL in bail applications? Court examines

https://bit.ly/3zUzspo

Compassionate Appointment

Denial of compassionate appointment on fathering third child? Court analyzes Rules of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant

https://bit.ly/3lgo1nG

Parole

Prominent sign board to be installed at the entries of all Central Jails in the State displaying in Hindi Rule 10 of the Rajasthan Prisoners Release on Parole Rules, 2021

https://bit.ly/3lfOB0j

Other

Whether third child born on account of failure of ligation operation a reason to deny grant ACP by a blanket order? Court answers

https://bit.ly/3lgv1Ba


Sikkim High Court

Lok Adalat

Can Award of the Lok Adalat be assailed by way of a petition under Arts. 226 and/or 227 of Constitution? Court answers

https://bit.ly/37qcM4d

Sexual Harassment of Women at Workplace 

Open for Executive Authority to decide the scope of the term ‘workplace’

https://bit.ly/3j97waw

Extraction of Groundwater

Permissions being granted of extraction of the groundwater even during pendency of PIL; Court lambasts authorities

https://bit.ly/3if57Mg

Shelter Homes

Take stock of situation in shelter homes, observation homes etc; Court directs State to get them insulated

https://bit.ly/2WvRjV2


Tripura High Court

Abetment to Suicide

SIT probe ordered in Abetment of suicide circumstances; Court takes suo motu cognizance

https://bit.ly/3zM4lw6


Uttaranchal High Court

COVID-19

Great influx of tourists, social distancing not being maintained, SOP not complied with; Court directs State to review decision of relaxing lockdown, control the inflow of tourists

https://bit.ly/3lgytf6

Char Dham Yatra banned until decision by Supreme Court; Court checks and double checks arrangements by the State amidst approaching third wave

https://bit.ly/3rK9pyc

Civil and Fundamental Rights

Civil and Fundamental Rights of petitioner not affected hence no locus standi; Court dismisses petition

https://bit.ly/2WwtDjk

Dishonour of Cheque

Is it mandatory to arraign firm as accused to make partner liable for dishonor of cheque under Ss. 138/141 of NI Act? HC explains

https://bit.ly/2VndKeq

Deprivation of Salary

Deprivation of salary violative of Arts. 21, 23 and 300-A of the Constitution; Court directs Transport Corporation to disburse salaries

https://bit.ly/3rRvBGH

Custodial Death

Fair investigation and fair trial are necessary ingredients of right to life; Court orders transfer in the case of custodial death to CBI

https://bit.ly/3yjZpyi

Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 20 ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Supreme Court

Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC

In a major ruling this week, a 3-Judge Bench of the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B, is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies, for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories. Justice R.F. Nariman and Justice B.R. Gavai formed the majority. Whereas Justice K.M. Joseph penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

https://www.scconline.com/blog/post/2021/07/21/constitution-97th-amendment-act-2011/

Can Courts modify Arbitral Awards under S. 34 of Arbitration Act or is power limited? SC decides

Whether the power of a Court under Section 34 of the Arbitration and Conciliation Act, 1996 to ‘set aside’ an award of an arbitrator would include the power to modify such an award? Answering this interesting and important question in the negative, the Supreme Court said that:

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha.”

While laying down this law, the Supreme Court reversed a Madras High Court judgment which had ruled that at least insofar as arbitral awards made under the National Highways Act, 1956 are concerned, Section 34 of the Arbitration Act must be so read as to permit modification of an arbitral award made under the National Highways Act so as to enhance compensation awarded by an Arbitrator.

https://www.scconline.com/blog/post/2021/07/22/arbitral-award-3/

Supreme Court closes suo motu case as U.P. Government expresses decision to postpone Kanwar Yatra to next year

In another case, while closing the suo motu case regarding “Kanwar Yatra during pandemic”; the Division Bench comprising of Justice R.F. Nariman and Justice B.R. Gavai directed the authorities to be cautious towards public health and safety. The Bench stated,

“We may only remind the authorities at all levels to have regard to Article 144 of the Constitution, and ensure that untoward incidents which directly affect the lives of the public will be looked upon sternly and prompt action taken immediately.” 

https://www.scconline.com/blog/post/2021/07/19/kanwar-yatra-2/

Will a subsequent purchaser stepping into shoes of original allottee in housing project have same rights as that of original allottee? SC explains

Giving a major relief to homebuyers, the Supreme Court held that rights of a subsequent purchaser are the same as that of an original allottee in a housing project. The Court said that in the event the subsequent purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded.

https://www.scconline.com/blog/post/2021/07/23/will-a-subsequent-purchaser-who-steps-into-the-shoes-of-an-original-allottee-have-the-same-rights-as-that-of-the-original-allottee-sc-explains/


High Court

Delhi High Court

Whether a Chief Minister’s promise to its citizens is enforceable?

Whether a promise made by a Chief Minister to its citizens is enforceable?

Well, the Delhi High Court says yes it is! Justice Prathiba M. Singh pronounced a one of its kind ruling. The Court said that the Law has evolved the doctrines of  legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

The High Court expressed that,

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

In the backdrop of this decision, was a press conference held by the Chief Minister of Delhi during the ongoing Covid pandemic where he gave a solemn assurance that the Government would take care of the tenants who are unable to pay the rent due to poverty.

https://www.scconline.com/blog/post/2021/07/23/promise-by-chief-minister-in-press-conference-enforceable/


Andhra Pradesh High Court

AP HC | Is girlfriend or concubine a “relative” of husband, liable to be prosecuted for cruelty under S. 498-A IPC? Court decides

 Can a Girlfriend or concubine of husband be prosecuted for cruelty under the Penal Code, 1860?

Andhra Pradesh High Court held that a Girlfriend or concubine, being not connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC.

https://www.scconline.com/blog/post/2021/07/20/cruelty-5/


Allahabad High Court

Man murdered wife and 4 minor daughters and burned them. Will this case fall under rarest of rare category? Allahabad HC decides

 The Allahabad High Court dealt with a case of an accused who committed murder in most brutal and barbaric manner of his wife and four minor daughter to pave way to marry another lady. Not only this, but he also chopped off various parts of their bodies and inflicted severe incised wounds. In such above background of the case, the High Court upheld the trial court’s decision of awarding death penalty to the accused. Court expressed that

The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

https://www.scconline.com/blog/post/2021/07/19/rarest-of-rare-category/


Punjab and Haryana High Court

Maintaining elderly parents is not only a value based principle but a bounden duty under Maintenance and Welfare of Parents Act 

Recently, the Punjab and Haryana High Court addressed plight of a 72-year-old widowed mother who had been ousted from her house by her son and was given beatings. The Court observed that,

“It is often seen that after receiving property from their parents, children abandon them. In such situation, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is an enabling lifeline for such old, aged parents and senior citizens who are not looked after by their children and become neglected lots.”

Further, the Court held that the children are expected to look after their elderly parents properly which is not only a value based principle but a bounden duty as enshrined within the mandate of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

https://www.scconline.com/blog/post/2021/07/18/ph-hc-maintaining-elderly-parents-is-not-only-a-value-based-principle-but-a-bounden-duty-under-maintenance-and-welfare-of-parents-act/

“Nightmarish and traumatic”; HC denies bail in a case of sodomy committed to an 8-year-old child

 In a case with very disturbing accusations, the Punjab & Haryana High Court rejected the bail application of the applicant accused of committing an act of sodomy to an 8 year old child. The Bench stated that,

“Accused has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

It was alleged that accused had attempted to commit unnatural sex with a child of young age of 8 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.

https://www.scconline.com/blog/post/2021/07/21/sodomy/


Kerala High Court

Kerala High Court

Harassment, abuse and torture of wife within seven months of marriage; HC denies anticipatory bail to doctor

Expressing concern over violence against married women, the Kerala High Court rejected the bail application of a doctor and his family accused of dowry demand and cruelty against his wife within seven months of marriage. Calling ‘matrimonial homes the most dangerous place to live’ due to harassment, abuse and torture, the Bench remarked that the number of cases of attack towards married women in our country is alarming, though stringent laws are there and the same has to be stopped forever. The Court observed that:

“Harassment, abuse and torture both mental and physical towards married ladies are increasing day by day in our country to pressurize them to bring more wealth to the family of the bridegroom to improve their financial situation. Though so many cases are being registered against husbands and in laws there is no change in the attitude of the society towards married women and family members.”

https://www.scconline.com/blog/post/2021/07/21/anticipatory-bail-6/


 Gauhati High Court

“Not based on intelligible differentia”; HC stays Arunachal Pradesh Govt.’s order discriminating between vaccinated and non-vaccinated persons

 The Gauhati High Court stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Additionally, the Court stated that,

“if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.”

 https://www.scconline.com/blog/post/2021/07/22/covid-19-vaccination-4/


District Court

“Utterly shocked”; “No one allowed to ignite religious riots, blow hatred towards particular group or community”: Court rejects bail plea of accused booked over hate speech

Expressing shock over an incident of hate speech in a public gathering, the Court of Judicial Magistrate, Patuadi, Gurugram dismissed bail plea of Rambhagat Gopal who had allegedly delivered hate speech instigating abduction and killing of girls of a particular community. The Court observed that,

“If right of freedom of speech is allowed to be used to spread hatred amongst the people based on religion, caste, etc. then the very basic nature of the constitution and Indian Society will be shattered and the country will lose its true spirit and soul.”

Further, the Court stated that,

“Conscience of the Court is utterly shocked while seeing the actual incidents which took place at that time, in video recording. It seems that now a normal parent would tell stories to their children that there used to be a time when talks of hatred or the religious intolerance in our society used to be seen as a sign of diminishing social values.”

https://www.scconline.com/blog/post/2021/07/19/hate-speech/


International Court

European Court of Justice

Prohibiting Islamic headscarf and other religious signs at workplace isn’t discriminatory

In a significant ruling, the European Court of Justice held that prohibiting Islamic headscarf and any visible sign of political, ideological or religious beliefs does not constitute discrimination on the grounds of religion.

https://www.scconline.com/blog/post/2021/07/20/religious-neutrality-policy/

 


 Legislation updates 

Issuance and listing of securities by Start-ups, SMEs and SPAC notified via International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 

The International Financial Services Centres Authority has notified the International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 to ensure that capital markets in IFSCs support the financing of innovative business models and also, for the Issuance and listing of securities by Start-ups, Small Medium Enterprises and Special Purpose Acquisition Company.  

https://www.scconline.com/blog/post/2021/07/23/issuance-and-listing-of-securities-by-start-ups-smes-and-spac-notified-via-international-financial-services-centres-authority-issuance-and-listing-of-securities-regulations-2021/  

 

Rates of Dearness Allowance to Central Government employees revised 

The Ministry of Finance has issued a memorandum on the revision of Dearness Allowance to the Central Government employees. The dearness allowance has been enhanced from 17% to straight 28% of the basic pay for the employees with effect from July 01, 2021. 

https://www.scconline.com/blog/post/2021/07/23/rates-of-dearness-allowance-to-central-government-employees-revised/  

 

IBBI issues circular for filing of Form CIRP 8 under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 

 IBBI has released Form CIRP 8 which as per Regulation 40B of CIRP Regulation, every resolution professional is required to file intimating details of his opinion and determination under regulation 35A, by 140th day of the insolvency  commencement date. The Form CIRP 8 is required to be filed for all corporate insolvency resolution processes ongoing or commencing on or after 14th July 2021. 

For the Format of FORM CIRP 8, read our story on SCC Online Blog 

https://www.scconline.com/blog/post/2021/07/22/ibbi-issues-circular-for-filing-of-form-cirp-8-under-the-ibbi-insolvency-resolution-process-for-corporate-persons-regulations-2016/  

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” 

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” after extensive consultations with Depositories, Clearing Corporations and Stock Exchanges to provide a mechanism of block in the demat account of clients undertaking sale transactions. 

https://www.scconline.com/blog/post/2021/07/19/sebi-issues-circular-on-block-mechanism-in-demat-account-of-clients-undertaking-sale-transactions/  

Case BriefsSupreme Court

Supreme Court: In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed.

The Court said that the purpose of the postscript was only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down.

The Court expressed that COVID times have been difficult. The judiciary and the bar are no exception. It was noted that this was a contributing factor in there being a period of four months between reserving the judgment and pronouncing the order in the Ajit Mohan case. But this was not the only reason. The “saga of hearing” lasted 26 hours ─ which the Court said is “a lot of judicial time”. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose.

Concern of the Court was if this is how the proceedings will go on in the future, “it will be very difficult to deal with the post-COVID period, which is likely to see a surge in the number of cases pending adjudication”. The Court then discussed “the way forward”.

Clarity in Thought Process

The Court said it believes that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides “and then strictly adhered to”.

Restriction on Time Period for Oral Submissions

The Court said that much as the legal fraternity would not want, restriction of the time period for oral submissions is an aspect that must be brought into force.

Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time.

Looking into this aspect, the Court then referred to a few international best practices including Article 6 of the European Convention on Human Rights ─ which while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. This is intrinsically linked to administering justice without delays.

The Court said that delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process.

Clear and Short Judgments

The Court was conscious of the “equal responsibility of this side of the bench”. “It is the need of the hour to write clear and short judgments which the litigant can understand”, the Court said. It was advised that:

The Wren & Martin principles of precis writing must be adopted.”  

But then, the Court was perplexed, as to how this is to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed.

Use of Judicial Precedents

The Court noted that it is weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court which saw short and crisp judgments, but then the volume of precedents the Court faces today was not present then. In today’s technological age, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the Court in a nice spiral binding. On every aspect, there may be multiple judgments.

The Court was of the opinion that if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition ─ and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle.

The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But the judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries.

Case Management

The Court recorded that case management has been discussed for long, but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases, but then this is all the more reason for better management.

Referring to the US Supreme Court,  it was noted that there the norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon.

The Court did not doubt that lawyers think on their feet but then, the Court said:

[G]iven the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments.

As of 1-5-2021, the Supreme Court of India had 67,898 pending matters. The Court expressed that the time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system.

Interim Proceedings

While concluding, the Court noted that another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at an interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. It was noted by the Court that this is the reason it is said that:

[W]e have become courts of interim proceedings where final proceedings conclude after ages ─ only for another round to start in civil proceedings of execution.

The Court ended by stating that by this post script it intended to start a discussion among the legal fraternity on the issues touched upon. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


Case BriefsDistrict Court

Abhinav Pandey, MM, Tis Hazari Court directs Delhi Police to lodge FIR and investigate allegations of fraud in crypto transactions.

Complainant sought directions to the police for registration of FIR and commencement of investigation, into the offences alleged by the complainant to have been committed by the accused.

It was submitted by the complainant that he deals in the sale and purchase of bitcoins, and while doing that he always takes proof of identity before entering into any trade transactions and that he also pays taxes on the gains that he makes in such trade.

Further, it was added that the accused had purchase bitcoins on several occasions, and he used to transfer funds to the bank account of the complainant, in return for which, complainant used to transfer bitcoin to the accused’s virtual wallet on the online transaction portal “Binance”.

Complainant submitted that his bank accounts were frozen on the ground of his transaction in bitcoins to be marked as illegal transactions.

On confronting accused on the legality of the money paid by the accused against bitcoins, the accused admitted that the payments were a ‘scam’ and further he refused to return the bitcoins transferred by the complainant.

Complainant states that he was cheated by the accused and Court intervention was sought in view of the same.

Analysis, Law and Decision

Bench on perusal of the facts and submissions of the matter opined that its jurisdiction was made out in view of the provisions of Section 179, 180 and 182 of CrPC, and due to the absence of any material filed by the police to suggest to the contrary.

CRUX

Whether the complainant himself was carrying out a lawful activity, and whether he himself has come to this Court with clean hands?

Bench noted that RBI in its’ circular dated 6-04-2018 had cautioned the users, holders and traders of virtual currencies while directing the banks and financial institutions regulated by it, not to deal in virtual currencies and not to provide services eg. maintaining accounts, registering, trading, settling, clearing, giving loans and accepting VCs as collaterals, opening accounts of exchanges dealing with them etc., for facilitating any person or entity in dealing with virtual currencies.

Though, the above-stated circular was set aside by the Supreme court in its decision of Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274.

But another fact observed by the Court was that the above decision of the Supreme Court did not adjudicate upon the legality of the virtual currency and there was no specific legislation too, as on date, specifically dealing with the legality and regulation of cryptocurrency.

Further, the Bench remarked that the cryptocurrency transaction will comply with the general law in force including PMLA, IPC, FERA, NDPS Act, Tax laws, and with the RBI regulations regarding KYC (know your customer), CFT (Combating of funding of terrorism) and AML (Anti-money laundering requirements).

KYC is the responsibility of the intermediary and cannot be left to the individuals be it institutional transfer or person to person trade, with the intermediary shying away from the responsibility to ensure legitimacy of the source of money and establishment of real identity of the parties.

BINANCE

Responsibility of ‘BINANCE’ is to ensure adequate safeguards against activities such as ‘mixing’ and other random cryptocurrency exchanges, which change the identity of bitcoins being held by a virtual wallet, making tracing of any illegal proceeds and any bitcoins, purchased through it, extremely difficult.

Legal and Regulatory Escape: Is there an existence?

Proceeding to make some more significant observations, Court stated that the opportunistic activities, aimed at exploiting the lack of legal regulation, with utter disregard to the identity of parties, sources and destination of funds, and illegal purposes e.g. terrorism, narcotics, illegal arms, cross-border illegal transactions for which it may be used, still do not enjoy any route for legal and regulatory escape.

Therefore, the aforementioned aspects have to be investigated in detail, and any negligence or complicity of the online VC transaction portal “BINANCE” in perpetration of hiding the proceeds of crime, and in the funding of any illegal activities through cryptocurrency has to be inquired into.

Culpability of accused

Prima facie the screenshots of the conversation with the accused imply the knowledge of the accused regarding the source of money.

Bench noted that the accused was already an accused in two other cybercrime FIRs, hence,

it is quite possible that apart from being involved in the aforesaid cyber offences, the accused may have hid the factum of illegality of money from the complainant, thereby inducing him to deliver bitcoins in exchange of money, while being aware of the fact that it may, sooner or later come under the radar of the banking system, and so it is better to get rid of the same, purchase bitcoins and multiply/ mix transactions to hide its source, and to encash it from ‘safe haven’ countries, where there is absence or lack of regulations.

 As per the Court, there was a possibility that the complainant was unaware of the designs of the accused and fell into his trap.

But complainant’s possibility of giving his consent in the entire gamut of activities could not be ruled out since he did not reveal the complete facts to the Court as he went on accepting the amount from different accounts which may not have been a mere lack of caution or due diligence.

In one of the WhatsApp conversations annexed alongwith the complainant, the accused is seen advising the complainant to clear his bank accounts immediately on receipt of any consideration against sale of bitcoins, and the complainant fails to be alarmed, thanks the accused for such advice, and admits that he immediately converts any such consideration back to cryptocurrency.

 Yet, the complainant on being fully aware of the legal consequences has approached the Court.

While concluding the matter, Bench held that cognizable offence under Sections 403, 411 and 420 of Penal Code, 1860 were prima facie committed and the real culprits need to be identified.

Bench made another crucial observation that the possibility of the complainant, accused and the online intermediary, being hand in glove cannot be denied too, whereby the accused may have been involved in hacking/cyber-crimes against unsuspecting persons, and transferring the same immediately to the complainant against bitcoins, thus creating a chain of transactions difficult to follow up till the amount is invested in any illegal activity, or is withdrawn in a ‘safe haven’ jurisdiction. The exchange intermediary may either be involved, or may just be keeping its eyes shut to all such activities carried out through it.

Lastly, the Court stated that it is possible that any of the said persons/intermediaries may come out to be innocent or just negligent, hence there is a need for police investigation to be extremely technical.

Registration of FIR does not mean that the accused is to be automatically arrested, and the concerned provisions of CrPC shall apply.

Status of investigation to be informed on 6-08-2021. [Hitesh Bhatia v. Kumar Vivekanand, Case No. 3207 of 2020, decided on 1-07-2021]


Counsel for the Complainant: Mr. Bharat Chugh and Advocate Sai Krishna.

Legal RoundUpSupreme Court Roundups

“… an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.”
Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415


UNMISSABLE STORIES


No conviction under Section 364A IPC if kidnapper treats victim in “a good manner”

Supreme Court has laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC i.e. kidnapping for ransom.

Read more…

Can’t let improper imports affect Indian farmers and national economy. “Prohibited goods” liable to absolute confiscation

“When personal business interests of importers clash with public interest, the former has to, obviously, give way to the latter.”

Read more…

Tamil Nadu Land Acquisition Laws; Explains legislative competence to pass a retrospective validating Act

“A legislature is deemed to be the main protagonist of the public interest at large. For, the legislature is the bulwark of a democratic polity.”

Read more…

No case of sedition made out against journalist Vinod Dua

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries …”

Read more…

Right to control one’s identity a fundamental right; CBSE must permit change of name for just cause

CBSE cannot put fetters on its duties so as to cause grave prejudice to the students with legitimate causes for changing their certificates.

Read more…


COVID-19 STORIES


COVID-19| NDMA to come up with uniform guidelines for ex gratia assistance on account of lives lost due to Covid-19 within 6 weeks

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further.

“… these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner.”

Read directions …

Migrant Labourers| ‘One Nation One Ration Card’ Scheme to be a reality in all States by July 31st!

“When the migrant labourers form more than 1/4th population of the country, all Governments/authorities have to take special care regarding welfare of these migrant workers/labourers.”

Read directions …

Children orphaned by COVID-19| No illegal adoption; no discontinuance of education: Here’s the list of Supreme Court directions

The information provided by the State Governments/Union Territories on the ‘Bal Swaraj’ Portal upto 05.06.2021 shows that there are 30,071 children who have become orphans or have lost one parent or abandoned.

Read more…

CoWIN| Vaccination policy exclusively relying on a digital portal? Chances of universal immunization look grim

“It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.”

Read more…

COVID-19 Vaccination Policy| Supreme Court seeks clarifications from Centre on these five issues

“In grappling with the second wave of the pandemic, this Court does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons.”

Read more…

Supreme Court stays Delhi HC’s order holding IGST on personal oxygen concentrators unconstitutional

Delhi High Court had called oxygen shortage a ‘George Floyd moment for the citizens’ and had held the imposition of IGST on oxygen concentrators imported by individuals, unconstitutional.

Read more…

COVID-19 Second Wave | Financial relief a policy matter; Similar order already passed: SC refuse to entertain plea seeking loan moratorium extension

“Be that as it may, the financial relief and other measures are in the domain of the Government and essentially related to policy matter.”

Read more…

STUDENTS AND EXAMINATIONS AMIDST COVID-19 PANDEMIC

In a relief to State Board Class XII students, Supreme Court asks Boards to formulate Schemes within 10 days

“… we are not endorsing the correctness and validity of the proposed Schemes, to be so formulated by the concerned Boards. That will be considered on its own merits, if and when occasion arises.”

Read more…

Class XII students’ evaluation scheme by CBSE and ICSE approved by Supreme Court with two additions

The scheme must incorporate two aspects:

(i) providing for Dispute Resolution mechanism, in case the students apply for correction of the final result declared by the concerned Boards.

Read more …

Cancellation of Class XII Board exams; CBSE, ICSE Assessment Schemes: Fair, reasonable and in larger public interest

“The fact that other Boards or institutions have been able to conduct examination does not necessarily mean that the Boards before us are bound by that dispensation. The Boards are autonomous Boards and are entitled to evolve their schemes independently.”

Read more…

AIIMS INI-CET exam to be postponed by at least a month

“… the fixing of the INI CET on 16.06.2021 is arbitrary and discriminatory… ”

Read more…


MORE STORIES


Interim protection from arrest in a sexual offence case? Record some reasons at least!

“… the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction.”

Read more…

Italian marines allegedly kill two Indian fisherman in 2012! Here’s why Supreme Court has closed all proceedings against them

In 2012, two fishermen were killed while fishing off the coast of Kerala after allegedly two Italian Military Naval officials fired at them from a passing ship.

Read more…

The 14 directions by Supreme Court to ensure timely execution of decrees

As on 31.12.2018, there were 11,80,275 execution petitions pending in the subordinate courts.

Read directions …

Punjab gangster Jai Pal Singh Bhullar gets killed in alleged police encounter in Kolkata; SC directs P&H HC to re-consider plea for second post-mortem

The petitioner, father of late gangster Jai Pal Singh Bhullar, alleged that his son had been killed in a police encounter and there were serious issues of human rights violation. The petitioner contended that his son had been mercilessly tortured to death under the guise of a fake encounter and the body was handed over by the West Bengal authorities in the sealed box.

Read more…

Motor accidents claims| A one-stop online platform for Insurers, Police and Tribunals across the country soon to be a reality? Read Supreme Court directions

The bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has issued directions with respect to motor vehicle accident claims and has said that the said “directions will apply across the country so that a uniform practice is followed.”

Read more…


EXPLAINERS


Can compassionate appointment be given years after the death of the employee? What happens in case of employee’s civil death?

When can proviso (6) to Section 92 of Evidence Act, 1872 be invoked?

Scope of Section 80-IA(5) of the Income Tax Act, 1961 with respect to determination of quantum of deduction under Section 80-IA(1)

Cruelty and Dowry Death: Can conviction under Section 304-B IPC sustain without any charges under Section 498A IPC?


IN OTHER NEWS


CJI NV Ramana releases Justice Raveendran’s Book on Anomalies in Law

Alternate Dispute ResolutionCase BriefsHigh Courts

Delhi High Court: Jayant Nath, J., observed that the assignment of the trademark is by a contract and not by a statutory act. It does not involve any exercise of sovereign functions of the State.

Defendant filed an application under Section 8 of the Arbitration and Conciliation Act, 1996.

Master Long Term Supply Agreement 

Plaintiff submitted that the parties had entered into Master Long Term Supply Agreement by which the defendant on an exclusive basis had supplied to the plaintiff exclusive brands of the defendant “Golden’s Gold Flake, Golden Classic, Taj Chhap, Panama and Chancellor”.

The above-stated brands were being sold, supplied and distributed exclusively in the domestic and international market.

Trademark Agreement and Amendment Agreement

Later, plaintiff entered into a trademark agreement and amendment agreement and was granted exclusive non-assignable, non-transferable license to manufacture the defendant’s product to be manufactured exclusively at the plaintiff’s factory at Noida and were to be marketed and distributed.

Plaintiff submitted that despite huge capital and operational expenditure made by the plaintiff to increase the availability of defendant’s product, the defendant arbitrarily cancelled the trademark license agreement.

A termination notice by the defendant was issued. Since the commercial production had not started the agreement was terminated with immediate effect.

By another termination notice, the defendant company stated that timely payment was not made in terms of the agreement and hence plaintiff was to have no right to manufacture and sell the exclusive brands of the defendant in the market from that point onwards.

In view of the above-stated circumstances, the present suit was filed.

It was prayed that the disputes between the plaintiff and the defendant raised be referred to a sole Arbitrator.

Analysis, Law and Decision

Bench firstly noted the legal position by referring to Section 8 of Arbitration and Conciliation Act, further Supreme Court’s decision in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1, was referred.

As per the above decision, actions in rem including grant and issue of patents and registration of trademarks are exclusive matters falling within the sovereign and government functions and have erga omnes effect. Such grants confer monopolistic rights, and they are non-arbitrable.

Further, reference to the decision of the co-ordinate Bench of this Court was made in Hero Electric Vehicles (P) Ltd. v. Lectro E-Mobility (P) Ltd., 2021 SCC OnLine Del 1058 as it applies on all fours to the facts of the present matter.

Court held that the dispute did not pertain to infringement of a trademark on the ground that the defendants are using a deceptively similar trademark. The ground was that the right to use the trademark was conferred by a particular agreement on a particular group of the family. Even if the plaintiff in that case were to rely on any provisions of the Trademark Act the essential infraction as allegedly committed by the defendant was not the provisions of the Trademark Act but the provisions of the agreements in question. The dispute which emanates out of the agreement between the parties was held to be arbitrable. The court also clarified that the controversy in the said case did not relate to grant or registration of trademarks. The said trademarks stood granted and registered. It was also held that assignment of a trademark is by a contract and is not a statutory fiat. It does not involve any exercise of sovereign functions.

Primarily the crux of the issue was that the dispute was relating to interpretation of the terms of the Trademark Agreement and amendment agreement executed between parties and whether the termination of the said agreements by the defendant and cancellation of the assignment of the trademark in favour of the plaintiffs was legal and valid.

“right that is asserted by the plaintiff is not a right that emanates from the Trademark Act but a right that emanates from the Trademark Agreement and the amendment agreement.”

In the present matter, Bench held that it cannot be said that the disputes are not arbitrable.

In view of the above discussion, the application was allowed. [Golden Tobie (P) Ltd. v. Golden Tobacco Ltd., 2021 SCC OnLine Del 3029, decided on 4-06-2021]


Advocates before the Court:

For the plaintiff: Mr. Kailash Vasdev, Sr. Adv. with Ms. Priyadarshi Manish and Ms. Anjali J. Manish, Advs.

For the Defendant: Mr. Sumeet Verma, Mr. Vijay Kumar Wadhwa and Mr. Maninder Pratap Singh, Advocates.

Case BriefsHigh Courts

Madras High Court: P. Velmurugan, J., addressed a matter revolving around the offence under Section 138 of the Negotiable Instruments Act.

A complaint was filed for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881. Judicial Magistrate found the respondent guilty of offence under Section 138 NI Act.

The appellate Judge while allowing the respondent’s appeal set aside the conviction and acquitted the respondent for the offence punishable under Section 138 NI Act, for which he was prosecuted before the trial court.

Appellant’s case was that the respondent had borrowed a sum of Rs 90,000 from the appellant and in order to discharge the debt issued a cheque which returned when presented to the bank with endorsement “drawers signatures differs”.

Analysis, Law and Decision

Bench noted that on statutory notice sent by appellant, respondent responded stating that he had denied the execution of the cheque.

Another significant fact was that the appellant did not prove that there was a transaction between the appellant and the respondent.

High Court remarked that,

When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt.

 Hence, in the present matter, complainant could not establish the execution of the cheque and borrowal of money by the respondent.

Therefore, in Court’s opinion the appellate Court’s decision had no perversity and Bench found no compelled circumstances or reason to interfere with the Judgment of acquittal.

In view of the above-stated facts and circumstances, criminal appeal was dismissed. [S. Ashok Kumar v. S. Boopal,  2021 SCC OnLine Mad 2325, decided on 22-04-2021]


Advocates before the Court:

For Appellant : Mr. M. Marudhachalam

For Respondent: Mr. L.Mouli

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., refused to quash a subsequent complaint filed by the wife against her husband (and others), where a prior complaint alleging offence under Section 498-A Penal Code, 1860 was already pending.

Instant criminal petition was filed under Section 482 of the Criminal Procedure Code.

Petitioners were accused of offences under Sections 498-A, 494 and 506 of Penal Code, 1860 and Section 3 and 4 of the Dowry Prohibition Act.

Respondent 2 had registered a crime against petitioner 1/husband of respondent 2 for the offence under Section 498-A IPC.

Allegations against the petitioners were that during the subsistence of the marriage with petitioner 1 and respondent 2, petitioner 1 married petitioner 6 with the help of petitioner 2 to 5 and therefore, they committed the offence punishable under Section 494 IPC.

Petitioner submitted that during the pendency of the first complaint, registration of the second complaint with regard to the very same allegations between the very same parties is not maintainable. He has also placed reliance on the principle laid down by the Supreme Court in Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 12

Analysis, Law and Decision

Bench noted that in the first complaint, the allegation of respondent 2 was with regard to the harassment by petitioner 1 demanding additional dowry.

Whereas in the second complaint, allegation against the petitioners was that during the subsistence of marriage, petitioner 1 married petitioner 6 and petitioners 2 to 5 assisted them in getting the said marriage. Hence, they committed “bigamy” punishable under Section 494 IPC.

Considering the fact that there are matrimonial disputes pending between petitioner 1 and respondent 2, and also considering the punishment prescribed for the offences alleged against the petitioners, the criminal petition was disposed of directing the Investigating Officer to follow the procedure contemplated under Section 41-A CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[B. Vikram Singh v. State of Telangana, Criminal Petition No. 4130 of 2021, decided on 3-06-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) addressed the allegations against the National Stock Exchange for alleged contravention of provisions of the Competition Act.

Present matter was filed against National Stock Exchange of India Limited for alleged contravention of Section 4, particularly Sections 4(2)(b)(ii) and 4(2)(c) of the Competition Act.

What were the allegations against NSE?

  • Indulged in practices of granting preferential market access to select brokers
  • Creating artificial information asymmetry
  • Market Manipulation in relation to co-location facilities
  • Uniform fee charged from all members towards co-location services, but allegedly uniform benefits have not been accorded to all trading members who had paid for the service.

Analysis, Law and Decision

While analysing the matter, Coram noted that the co-location facility was in vogue since 2009. Further, it was added that the choice of technology, which had been alleged to have created distortions, ceased to exist as far back as in 2016 and there seems to be confidence instilled in the system, with 188 members of the exchange availing the facility and the sectoral regulator specifying guidelines for adherence by the exchange for provision of such facility. As submitted by the Informant, even the charges payable for availing such facility have been considerably reduced.

Commission observed that

Mere pendency of matters in alternate forums does not axiomatically place any embargo on the Commission to halt its mandate in discharging its statutory obligations, in the face of any alleged anti-competitive conduct which is brought or comes to its notice.

Co-location facility creates a divide between two classes of trading members

NSE stated that the said facility was made available on a first come first serve basis and essentially there is no pick and choose. Further, it added that it is not the only exchange in India providing co-location facility, even other exchange like BSE is providing the same.

Coram stated that in the present case,  the consumers are the trading members who were looking for the co-locational facility for algorithmic trading.

Abuse of dominant position by NSE in provision of co-location facility?

Commission noted the submission of NSE that at the time of introducing co-location services, SEBI had not prescribed any specific technology to be used and that it had a choice between two technologies:

  • TCP/IP technology, and
  • MTBT

NSE, after studying practices of some leading international stock exchanges providing co-location services, came to a decision to have TCP technology as it provided market safety, reliability, integrity and accessibility.

Commission agreeing with the above submission that if there had been a bonafide choice of a particular technology, coupled with the fact that the sector regulator did not observe any instance of fraudulent conduct in violation of SEBI (PFUTP) Regulations, 2003 in the provision of the co-location facility which had been the mainstay of the allegations against NSE, then it ought not to be found in contravention of Section 4 of the Act.

Should the co-location facility be stalled as it is in itself anti-competitive?

A robust exchange acts as a backbone of the financial system and the provision of co-location facility by exchanges help increase volumes of trades manifold and provides liquidity to investors. This augurs well for the market, the companies and the economy.

Commission stated that to stop the co-location facility will be retrograde. Further noting that the Sectoral Regulator, SEBI did not stop the co-location facility in any manner since its introduction and had recognised the said service.

Hence, in view of the Commission, no prima facie case exists. [Manoj K Sheth v. National Stock Exchange, Case No. 35 of 2019, decided on 28-06-2021]


Advocates before the Commission:

For the Informant: Mr. Nithyaesh Natraj, Advocate Mr. Animesh Kumar, Advocate Mr. Anirudh, Advocate

For OP: Mr. Neeraj Kishan Kaul, Sr. Advocate, Mr. Somasekhar Sundaresan, Advocate, Mr. Naval Chopra, Advocate
Mr. Aman Singh Sethi, Advocate, Ms. Manika Brar, Advocate and Mr. M. Vasudev Rao, General Counsel 


Additional Information:

What are co-location facilities?

Co-location is the practice of renting space for servers and other computing hardware at a third-party provider’s data centre facility. Co-location helps in the faster movement of data. In the context of co-location services, NSE had on 31.08.2009, announced the launch of co-location services along with the guidelines/ procedure to be followed by members interested in availing co-location facility. Members availing co-location facility are allowed to take one or more leased lines to the co-location facility from different telecom service providers for the purpose of setting up or modifying parameters, trading related activities and hardware, software, network-related access, software download/upload and monitoring and data downloads.

High Court Round UpLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section on the SCC Online Blog for the month of June 2021. In case, you missed out on catching up with some interesting cases, then, you have clicked on the right post to be read.

Go ahead and check out the June updates of 2021!


Allahabad High Court

Section 138 NI Act

  • All HC | Can complaint under S. 138 NI Act be quashed for failure to disclose date of service of notice? Court says it is a matter of evidence

https://wp.me/pcenps-12WK

  • All HC | Can factum of disputed service of notice in S. 138 NI Act case be adjudicated under S. 482 CrPC? HC elaborates

https://wp.me/pcenps-136I

Live-in Relationship

All HC | ‘We are not against live-in relationship’; HC grants protection to couple of marriageable age

https://wp.me/pcenps-132G

Dowry Death

304-B IPC and S. 113-B of Evidence Act are decisive provisions to ascertain unnatural death as dowry death: Allahabad HC explains

https://wp.me/pcenps-12YE


Bombay High Court

COVID-19

  • Bom HC | CSR, Mucormycosis and Deficit Drug Supply; HC reminds Center, “the situation is war like”

https://wp.me/pcenps-12SZ

  • [PM Cares Ventilators] Bom HC | “Will not permit experimentation of faulty ventilators”; HC warns Union Government

https://wp.me/pcenps-12PQ

  • Bom HC | No prohibition by Center on door-to-door vaccination; HC gives Maharashtra one week time to sanction door to door vaccination

https://wp.me/pcenps-12ZT

Property Suit

Bom HC | In a property suit in which decree has been passed, can a third party’s intervention application claiming his right to recovery be maintainable? Read on

https://wp.me/pcenps-130f

Commercial Bid

Bom HC | Can possible case of cartelization be determined only after opening of commercial bid? HC answers

https://wp.me/pcenps-12Uo

Matrimonial Dispute 

Bom HC | Whether HC should quash an FIR arising out of matrimonial dispute on ground of same being settled amicably? Gian Singh v. State of Punjab referred

https://wp.me/pcenps-12WP

Bail

Read why Bombay HC granted anticipatory bail to ‘Constable’ accused of rape and other offences | Succinct Report

https://wp.me/pcenps-12Ys

Amendment of Pleadings

Bom HC | In case of an application for amendment of pleadings, what would be the principal condition that Courts need to consider? Read on

https://wp.me/pcenps-12P9


Calcutta High Court

Dowry

Cal HC | Is mere demand of money, property, etc. sufficient to penalise for demanding dowry? Court answers; says gifts exchanged out of love are not dowry

https://wp.me/pcenps-137C

COVID-19

[Mismanagement and Wastage of Medicines in Government Hospitals] Cal HC | Taxpayers money cannot be wasted; Court directs State to produce records of medicines, maintain system through IT

https://wp.me/pcenps-1365

Bengal Post Poll Violence

Cal HC | State from very beginning had been denying everything, the way State was proceeding in matter, did not inspire confidence; NHRC constitutes committee to examine complaints

https://wp.me/pcenps-134u

Interim Bail 

Cal HC | Interim bail to TMC leaders followed by arguments on maintainability and constitution of larger Bench

https://wp.me/pcenps-12OO


Chhattisgarh High Court

COVID-19

Chh HC | Mathematical precision cannot be adhered to the percentage of jab to be provided to different categories in terms of State’s policy dated 9th May, 2021

https://wp.me/pcenps-12Z3

Termination of Pregnancy

Chh HC | Pregnancy which is caused by rape would presume to cause grave injury to mental health of the pregnant woman; Right to make reproductive choices is a dimension of ‘personal liberty’

https://wp.me/pcenps-1393

Right to Speedy Trial

Can writ under Art. 226 Constitution of India be filed for grant of compensation under public law for infringement of fundamental right? Chh HC answers

https://wp.me/pcenps-136a


Delhi High Court

Trademark Infringement

  • Del HC | Usage of domain names identical/deceptively similar to ‘BAJAJ FINANCE’ or ‘BAJAJ FINSERV’ would amount to infringement

https://wp.me/pcenps-12Nz

  • Del HC | “Singh + Singh” prima facie deceptively similar to “Singh & Singh”: HC grants interim relief to law firm in trademark infringement case

https://wp.me/pcenps-12SQ

Passing Off

Del HC | Interim relief against passing off. Is identical placement of colours and other features in label of product being passed off enough? HC decides

https://wp.me/pcenps-12NG

Maintenance

  • Del HC | Can magazine covers be sufficient evidence to explain that wife who is a model can sustain herself? HC addresses while deciding a Maintenance matter

https://wp.me/pcenps-12NX

  • Del HC | Whether woman is party to adultery/bigamy so as to refuse relief under DV Act is a matter of trial: HC refuses to quash lower court orders

https://wp.me/scenps-adultery

  • Delhi HC decides that Father’s obligation to maintain a child cannot end once he/she turns 18 years of age. Read why

https://wp.me/pcenps-134d

Arbitration

  • Del HC | Does non-payment of stamp duty on a commercial contract invalidates arbitration agreement? Explained

https://wp.me/pcenps-12R8

  • Del HC | Can sole arbitrator’s appointment be disputed if he was consultant/advisor to one of the parties to dispute? Court examines

https://wp.me/pcenps-133T

  • Del HC adverts to scope of judicial review of an arbitral award; Wades through bunch of pleas including violation of Part 1, CPC and insurance against breakage during transit, etc.

https://wp.me/pcenps-138F

5G Technology

Colossal Harm by rolling out of 5G Technology: Delhi HC dismisses suit for defective plaint, filed for gaining publicity; Imposes costs of Rs 20 lakhs

https://wp.me/pcenps-12RC

Delhi Riots

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

https://wp.me/pcenps-132M

  • Devangana & Natasha v. State | Pivotal Findings in State against Devangana Kalita & Natasha Narwal [Succinct Report]

https://wp.me/pcenps-132J

Infringement

Del HC | Telegram to take down infringing contents to cinematograph film ‘MAADATHY’ on receiving a request from Plaintiff

https://wp.me/scenps-maadathy

Section 139 NI Act

Del HC | Can mere ipse dixit and statement in defence under S. 313 CrPC rebut presumption cast under S. 139 NI Act? Read on

https://wp.me/pcenps-138W


Gauhati High Court

COVID-19

  • Gau HC | Violence against Doctors; HC directs State to take immediate actions if any medical practitioner is manhandled or abused

https://wp.me/pcenps-130k

  • Gau HC | Verify availability of separate rooms before directing home Isolation; HC directs State

https://wp.me/pcenps-12OY

  • Gau HC | Court directs ration be provided to struggling sex workers and their families who have been identified; further asks AIDS societies to identify the rest and give relief

https://wp.me/pcenps-12N7


Himachal Pradesh High Court

HP HC | Can an application for addition/ alteration of charges be made by State at the stage when the matter is fixed for arguments? Court explains

https://wp.me/pcenps-133p

COVID-19

Decentralized opening of Primary Health Care centers into ICU hospitals with beds & oxygen facilities is of paramount importance; Himachal Pradesh HC directs State to take steps

https://wp.me/pcenps-12Pl


Jammu and Kashmir High Court

COVID-19

J&K HC | Kins of persons dying of Covid-19 can view face and perform last rites of deceased; HC declines to handover dead bodies to the family

https://wp.me/pcenps-12Xn

Bail Application

J&K HC | “Heinous offence against serving Law Officer”; HC rejects bail application of convicts who killed Dy. AG, Ajit Singh Dogra

https://wp.me/pcenps-12Sj


Jharkhand High Court

Judicial Review

Jha HC | Jharkhand Public Service Commission is a constitutional body, but its actions and decisions are not immune from judicial review

https://wp.me/pcenps-12UL

Family Pension

Jhar HC | Is the second wife of an ex-employee entitled to family pension? Court answers in light of instant facts

https://wp.me/pcenps-12Z8

Warrant of Arrest

Jhar HC | Parameters of warrant of arrest and S. 82 CrPC have not been complied as time and place has not been indicated

https://wp.me/pcenps-1368

Parity in Pay

Jhar HC | Employees of Telco Recreation Club cannot claim parity in pay with employees of Telco Ltd.; HC quashes Labour Court’s order

https://wp.me/scenps-employer

Writ Petition

Jhar HC | Practice of filing a writ petition Art. 226 of the Constitution of India because a person has a grievance that his FIR has not been registered by the police must be discouraged

https://wp.me/scenps-fir

Sexual Assault

Jhar HC | “Is the police taking side by not bringing victim in witness box?” HC comes down heavily on authorities for discrepancies in sexual assault case, warns authorities of contempt proceeding

https://wp.me/pcenps-1398


Karnataka High Court

COVID-19

  • Kar HC | 1/3rd of beneficiaries who have completed six weeks will get second dose of COVAXIN and remaining two-third will not get it

https://wp.me/scenps-covaxin

  • Kar HC | Treatment of Mucormycosis including administration of Amphotericin injection is free of cost and the entire cost will be borne by the State Government in public hospitals

https://wp.me/pcenps-139x

NLSIU | Institutions of Eminence status

Kar HC | NLSIU is free to make an application seeking declaration as ‘Institutions of Eminence Deemed to be Universities’ under UGC in terms of UGC Regulations, 2017

https://wp.me/pcenps-12Pi

Common Charge-Sheet

Kar HC | IO filed common charge-sheet for various crimes registered in different Police Stations; Amalgamation of final reports in respect of different FIRs held to be impermissible

https://wp.me/pcenps-12XZ

Medical Treatment

Kar HC | Persons with disabilities are entitled to priority in medical treatment in light of S. 25 of Rights of Persons with Disabilities Act, 2016

https://wp.me/pcenps-12TH

Right to Marry a Minor

Kar HC | Merely because second marriage is permissible in Mohammedan law it does not mean that right to marry a minor girl accrues; Bail denied inspite victim gave ‘no objection’

https://wp.me/pcenps-1341

Default Bail

Kar HC | ‘Default bail’ granted under S. 167 (2) CrPC in case of non-compliance of notice under S. 43-D of UAPA

https://wp.me/pcenps-132E

All India AYUSH – Post Graduate Entrance Test

Kar HC | Students admitted to the academic year 2017-18 permitted to continue and complete their respective Post Graduate courses in Ayurveda

https://wp.me/pcenps-138r


Kerala High Court

COVID-19

  • Ker HC | Read why HC granted pre-arrest bail to the police officer accused of manhandling a doctor

https://wp.me/pcenps-1390

  • Ker HC | Homeopathy doctors can prescribe adjuvant medicine for Covid-19; HC upholds right to practice of Homeopathic practitioners

https://wp.me/pcenps-12Uy

GST

Ker HC | GST on petrol and diesel; HC seeks Centre’s take on inclusion of petrol and diesel under the GST regime

https://wp.me/pcenps-138t

Mid-Day Meal

Ker HC | Dairy farm shutdown and exclusion of chicken/meat from Mid-day Meal; HC stays two controversial orders of Lakshadweep Administration

https://wp.me/pcenps-136A

Lakshadweep Regulations

  • Ker HC | Draft stipulations are premature, cannot be assailed through PIL

https://wp.me/pcenps-132C

  • Ker HC | Government should be eager to consider public suggestion; HC grants liberty to raise objections/suggestions even after expiry of outer time limit

https://wp.me/pcenps-12Rs

  • Ker HC | “Protestors shall not be deprived of access to justice”; HC directs release of detained Lakshadweep protestors

https://wp.me/pcenps-12P4

Plea of Guilt

Ker HC | A monosyllabic “yes” does not amount to plea of guilty; HC issues detailed guidelines to be followed before convicting on plea of guilt

https://wp.me/pcenps-131W

Triple Murder

Ker HC | Nature of offence ought to have cautioned the Investigating Officer to subject her to psychiatric evaluation; HC extends benefit of doubt to woman accused of triple murder

https://wp.me/pcenps-12ZV

Corruption

Ker HC | Complaint cannot be entertained in corruption cases where the FIR based on the same facts has already been quashed on merit

https://wp.me/pcenps-12Z6

Campaigns and Protests

Ker HC | Footpaths are not for campaigns and protests; HC asks State to explain steps taken to avoid encroachment of pedestrians’ right to footpath

https://wp.me/pcenps-12Xp

Cruelty

Ker HC | Malevolent intention is not essential to cruelty; HC grants divorce on the ground of cruelty for making false allegation of impotency

https://wp.me/pcenps-12Sl

Scholarship

Ker HC | Can State sub-classify minority communities for extending scholarship benefits? HC holds scheme of granting 80% minority scholarship to Muslims cannot legally sustain

https://wp.me/pcenps-12N9

OBC-NCL Certificate

Rejection of candidature for belated submission of OBC-NCL certificate illegal; Kerala HC directs to reconsider candidature of woman who failed to submit certificate on time due to pregnancy

https://wp.me/pcenps-12TF


Madras High Court

Dissolution of Marriage

Madras HC | 12 long years of proceedings, but no appearance of wife. Assault on husband’s vital body part, not denied. Can her appeal against dissolution of marriage be still accepted? Read on

https://wp.me/pcenps-12Om

Defamation

Toon Controversy | Cartoonist wanting to express anger, cannot be construed as defamation: Madras HC quashes criminal case against cartoonist, says cannot teach ethics to people

https://wp.me/pcenps-12T8

Domestic Violence Act

Proceedings under Domestic Violence Act, whether criminal or civil, will challenge to them be maintainable under Art. 227 of Constitution? Madras HC answers

https://wp.me/pcenps-12Y4

LGBTQIA+

Madras HC Judge “removes Lordship’s hat” for framing guidelines for proper recognition of LGBTQIA+ rights, acknowledges “gurus” for pulling him out of darkness of ignorance: Read detailed case report

https://wp.me/pcenps-12TA

Motor Accident Claim

Madras HC | In motor accident claims, can tribunal deduct certain percentage from compensation because rider had a learner’s license? Court answers

https://wp.me/pcenps-1325

Child Pornography 

Viewing ‘Child Pornography’ is an offence? Is there a distinction between a one-time consumer of ‘child pornography’ and someone who distributes and transmits it on a digital domain? Imperative Decision

https://wp.me/pcenps-131O

Advocates

  • Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

https://wp.me/pcenps-130U

  • Significance of ‘suo motu’ action under S. 35 of Advocates Act | Synoptic report of Madras HC decision on power and mechanism of Bar Council to take action against erring Advocates

https://wp.me/pcenps-133H

Contempt of Court 

Madras HC | Sons turning turtle after giving undertaking to vacate their father’s premises is Contempt of Court: Read synopsis of Court’s opinion

https://wp.me/pcenps-130Q


Madhya Pradesh High Court

Sensitivity of Judges

MP HC | Judge ought to have seen the sensitivity of the matter; Strict compliance of S. 309 of CrPC directed to Trial Courts

https://wp.me/pcenps-139e

Bail

MP HC | Bail denied to juvenile in Rape Case; Court questions lawmakers conscience, How many more Nirbhayas’ sacrifice would be required?

https://wp.me/pcenps-1396

Advocates

MP HC | Whether Advocates who appear on behalf of agencies like CBI, ED etc. before HC and lower Courts, appointed by process of consultation with HC, in terms of S. 24(1) and 24(4) of CrPC? Court seeks clarification from State

https://wp.me/pcenps-136o

Unlawful Detention

MP HC | Police comes up with the argument that the CCTV cameras are dysfunctional in order to cover up instances of unlawful detention; Court demands explanations

https://wp.me/pcenps-132k

Doctors

Striking doctors have completely forgotten the solemn oath taken by them; MP HC declares strike illegal

https://wp.me/pcenps-12SL


Meghalaya High Court

COVID-19 Vaccination

Megh HC | Whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood? Court answers

https://wp.me/pcenps-137x


Orissa High Court

Public Servant

Can writ under Art. 226 of Constitution be enforced if any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant? Orissa HC discusses

https://wp.me/pcenps-12Oz

Disputes Questions of Facts

Ori HC | Where disputed questions of facts are involved, a petition under Art. 226 of Constitution is not a proper remedy; Leading of evidence and examination and cross-examination of witnesses required

https://wp.me/pcenps-12Ou

Affidavit

Ori HC | Is the common practice of advocate’s clerk swearing an affidavit permissible in law? Is there an exception, if yes, upto what extent?

https://wp.me/pcenps-1347

Anticipatory Bail

Ori HC | Anticipatory bail rejected due to petitioner being a journalist/influential person having political connections; Offence being economic offence, custodial interrogation demanded

https://wp.me/pcenps-133n

Rule of Attribution

Do “rule of attribution” which is relevant to the functioning of a limited company be applied in the case of organizational structure like Railways? Orissa HC answers

https://wp.me/pcenps-12Yc

Rights of a Lessee

Ori HC | Rights of a lessee in a Khasmahal land are similar to those of owner of a private land; Interest in such land is both hereditary and transferable

https://wp.me/pcenps-12TP

Promotion 

Ori HC | An officer who substantially holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion; Only eligible for a ‘charge allowance’

https://wp.me/pcenps-12SV

Decongest Prisons

Decongest prisons, upgrade other State buildings to meet prison requirements; Orissa HC asks for a detailed plan from State

https://wp.me/pcenps-12Pu


Patna High Court

Sensitization of Judicial Officers

Pat HC | Sensitize judicial officers towards Child rights; HC urges Chief Justice

https://wp.me/pcenps-12Z1

Appointment of Doctors

Pat HC | “Health Department is severely deficient in terms of manpower”; HC directs State to be flexible regarding maximum age limit of 37 years in appointing doctors

https://wp.me/pcenps-1349

COVID-19

Pat HC | We are not just fighting a pandemic; we are fighting an infodemic; HC slams Bihar government over reluctance to put credible stats of Covid deaths in public domain

https://wp.me/pcenps-1337


Punjab and Haryana High Court

Live-in Relationship

P&H HC | Inaction to legitimately end matrimonial alliance from wife before entering into live-in-relationship is incongruous

https://wp.me/pcenps-1344

Police Encounter

P&H HC | Dead body kept at home for 9 days due to rejection by family to cremate; HC directs second post-mortem in gangster Jai Pal Bhullar’s alleged police encounter after SC’s intervention

https://wp.me/pcenps-1366

Legal Guardian

P&H HC | Husband is legal guardian of his minor Hindu wife; HC quashes kidnapping case against husband

https://wp.me/pcenps-12TK

Custody

P&H HC | Extra-marital affair cannot lead to conclusion that woman would not be a good mother; HC grants custody of 4-year-old to the mother

https://wp.me/pcenps-12PO

Divorce

P&H HC | 6 months wait is uncalled for; HC waives 6 months’ requirement, grants divorce to couple entrapped in an irretrievably broken marriage

https://wp.me/pcenps-12T1

COVID-19

  • P&H HC | “Extreme technicality highly deplorable”; HC holds denial of permission to import ventilators is against interest of the patients

https://wp.me/pcenps-12Oe

  • P&H HC | Set Uniform rates for RAT and RT-PCR tests in Punjab, Haryana and Chandigarh; HC directs States

https://wp.me/pcenps-12Nd


Sikkim High Court

Judicial Services

Sikk HC | ‘Honourable acquittal’, ‘acquittal giving benefit of doubt’ raises and rests presumption-Difference demerits a candidate of merit |  No room for error in judicial services

https://wp.me/pcenps-132q


Telangana High Court

Section 498-A IPC

Tel HC | Can cousin of a husband who was accused of offence under S. 498-A IPC be also roped in on grounds of instigating and supporting husband? Read on

https://wp.me/pcenps-12WS


Tripura High Court

COVID-19

Tri HC | Disproportionate distribution of vaccines in age group where there is a severe shortage, needs to be addressed by the State

https://wp.me/pcenps-12SX


Uttaranchal High Court

COVID-19

Utt HC | Covid 19 infection, vaccination and precautions in the prisons; Court issues directions, forms committee

https://wp.me/pcenps-132h

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Prithviraj K. Chauhan, JJ., held that wife wishing to stay abroad with the child to maintain her status would not amount to cruelty and desertion

In the instant matter, appellant and respondent after having spent 8 years in courtship got married.

The couple is overseas citizens of Canada and Indian Citizens by birth, however, they acquired Canadian citizenship and thus had dual citizenship.

The circumstances changed for the couple when appellant started experiencing medical problems namely constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. To add to it, there was recession in 2010 that hit Canada due to which the appellant lost his job resulting into a financial burden upon the respondent.

In view of the above circumstances, the couple decided to permanently return to India.

Respondent visited Kutch without intimating the appellant about her whereabouts over there. After her return from Kutch, when the appellant asked the respondent to resume cohabitation, she refused. Infact, the respondent insisted on a separate accommodation.

It was submitted that the respondent was interested in returning back to Canada.

Respondent visited the appellant’s house along with her father, brother and massi and demanded her passport along with documents and jewelry. When the appellant asked the respondent the reason for such conduct, he was threatened that they would call the police and, therefore, the appellant had returned her passport, documents etc.

Further, respondent was adamant to settle in Canada for a better future, however, appellant expressed his unwillingness to shift to Canada owing to his health issues and other related reasons.

Appellant in order to show his bona fides as well as his love and affection towards the respondent had paid her CAN $ 25,000 plus Rs 1,25,000 in Indian currency to facilitate her departure to Canada. The respondent left for Canada with their son.

Respondent did not return nor made any attempt to contact the appellant and in June 2011, respondent’s massi called the appellant and demanded money on behalf of the respondent.

Later, respondent demanded money from the joint savings by accusing the appellant that he had cheated and abused her financially.

Despite all the efforts, there was no amicable settlement of their dispute and hence appellant was constrained to issue a legal notice calling upon the respondent to come and co-habit with him.

On realising that there would be no hope of any restitution, appellant sought a decree of dissolution of marriage on the ground of willful desertion by the respondent.

Family Court dismissed the petition, inter alia, observing that no case had been made out of the alleged cruelty to the appellant by the respondent-wife; rather they had happily cohabited till the child was born.

Analysis, Law and Decision

Whether appellant was subjected to cruelty by the respondent-wife to such an extent as to entitle him to a decree of divorce in view of the admitted fact that the couple had themselves decided to shift to Canada after their marriage for better prospects and admittedly acquired overseas citizenship of Canada with their free consent and will?

 It is pertinent to note that the respondent had been working as a Regulatory Affairs Associate at Teva Canada Limited which appears to be a pharmaceutical company.

Cruelty and Desertion?

Bench stated that in view of the above-stated status of the respondent, it would not be justified, in any way, expecting her to return to India when she was already well settled over there.

Wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said unjustified.

Hence, the respondent’s act could not be said to be cruelty meted out to the appellant by the deserting spouse.

Husband’s allegations: FALSE OR NOT?

Husband did not examine any witnesses to corroborate his claims that the wife’s family had threatened him to return her passport, documents and jewellery or that they demanded any money. No medical records were placed to prove that the appellant couldn’t join the respondent for health reasons.

Appellant’s evidence was quite vague, insufficient and lacking in material particulars.

Court noted that what is surprising is that had it been the intention of the respondent to sever the marital tie, she would not have allowed the appellant to meet their child, Mukund. This aspect is important as per the Bench wherein it was indicated that neither the respondent treated the appellant with cruelty nor did she desire to desert him.

Is there hope to reunite the couple?

Bench reiterated that the matrimonial tie had not reached the stage of such deterioration that was beyond repairs, especially when Mukund was still a child who could be a bond between the couple to reunite them once again.

High Court referred to the Supreme Court decision in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 wherein features/instances of human behaviour relevant in dealing the case of mental cruelty were discussed.

In view of the above decision, Bench stated that it would be difficult to construe that the marriage of the parties had deteriorated to such an extent that it would be impossible to unite the couple.

Supreme Court’s decision in  Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, was relied upon wherein the essential requisites of desertion were set out.

No case of desertion was made out in the present matter and taking into consideration of facts, circumstances and evidence on record, Bench opined that no case was made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. [Prakashchandra Joshi v. Kuntal Prakashchandra Joshi, 2021 SCC OnLine Bom 958, decided on 24-06-2021]


Advocates before the Court:

Mr. Vikas Singh i/b Ravi Dwivedi, for Appellant.

None for Respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Coram of C. Viswanath (Presiding Member) and Justice Ram Surat Ram Maurya (Member) decided an issue with regard to handing over of possession of flat and cancellation of sale agreement in a builder — buyer dispute.

Arun Kedia (HUF), Arun Kedia and Sabita Kedia (Husband and Wife), members of HUF filed the present complaint.

What led to the filing of the complaint?

OP 1 made advertisements from time to time, inviting applications from prospective buyers for the purchase of the flats.

In 2013, complainants approached the OP and booked a residential flat for purchase and deposited booking charges, in the office of the OP. In June, 2013, a registered sale agreement was executed between the parties. By that time the complainant had deposited an amount of Rs 73,51,426 in the office of the OP. The balance amount was to be paid in instalments.

Complainants paid the amount of instalments as mentioned in the agreement as and when it was demanded by the OP. According to the complainants, thereafter they neither received any demand letter nor possession of the allotted flat was handed to them till March, 2016. They received a demand letter but as in this letter no date of delivery of possession was mentioned as such, they did not deposit the amount demanded in it, rather wrote letters requesting to handover possession over the flat allotted to them.

It was also stated that the complainants were not allowed to go to the site and verify the progress in construction. OP assured the complainants that they would be given possession within a short time.

When the registered notice was served to the OP, they unilaterally cancelled the agreement, mentioning therein that in spite of the demand letter, they had not deposited the instalment as fixed in the agreement.

Complainants requested and sent registered notices to OP to cancel the agreement and hand over the possession, but since the notices were not complied with, the present complaint was filed.

Analysis, Law and Decision

Whether the complainants were defaulter in payment of instalments as fixed in the agreement in spite of the notice given by the OP, they failed to pay it within 7 days and hence the OP exercised its power under the agreement and revoked the agreement?

OR

OP had failed to complete the construction till March 2016 and in order to cover its default, the agreement was cancelled in a high-handed manner, to harass the complainants and divert their mind from asking possession?

Bench noted that the agreement fixed reciprocal liabilities upon both parties.

Further, it was added that if the opposite party has not abided by the terms of the agreement and committed a serious breach then it cannot blame the complainants that they have not deposited the instalments well within time or within seven days issue of the letter of demand.

Commission held that there was nothing on record to prove that the demand letters were actually issued to the complainants. Therefore, the allegation that the complainants committed default in payment on instalment for which the agreement was cancelled was not proved.

Adding to the above reasoning, Clause-14 of the agreement requires service of 30 days prior notice in writing of its intension to terminate the agreement. No such notice was issued by the opposite party to the complainants. Cancellation of agreement, of which the intimation was given through letter, was illegal. 

Coram held that there was nothing on record to show that till March, 2016, the construction was completed and a completion certificate was obtained from the competent authority.

According to Section 8 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, if the builder is not able to hand over the possession over the building/flat within the time specified in the agreement then the builder is liable to pay interest to the purchaser of the flat for the period for which the possession has not been handed over.

Due to latches on the party of the OP, the complainants suffered a loss. The agreement for sale had been cancelled illegally and malafide, in a high handed manner and the complainants were forced into litigation.

Commission directed the OP to handover the possession to the Complainants after taking balance sale consideration within 2 months and execute the final deed of transfer. OP shall also pay simple interest @6% p.a.to the complainants on the amount deposited by them from the due date of possession to the offer of possession after obtaining the Occupancy Certificate.  [Arun Kedia (HUF) v. Runwal Homes (P) Ltd., 2021 SCC OnLine NCDRC 189, decided on 24-06-2021]


Advocates before the Commission:

For the Complainant: Mr. R.M. Kedia, Advocate

Ms. Sabita Kedia, Complainant in person

For the Opp. Party: Ms. Anita Marathe, Advocate

Appointments & TransfersNews

Appointment of Acting Chief Justice of Himachal Pradesh High Court

President appoints Shri Justice Ravi Vijaykumar Malimath, senior-most Judge of Himachal Pradesh High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 1st July, 2021 consequent upon the retirement of Shri Justice Lingappa Narayana Swamy, Chief Justice, Himachal Pradesh High Court. A notification in this regard has been issued by the Department of Justice, Ministry of Law & Justice today.

Shri Justice Ravi Vijaykumar Malimath, B.Com., LL.B., was enrolled as an Advocate on 28th January, 1987. He practised for 20 years before the High Court of Karnataka, High Court of Madras and the Supreme Court of India in Civil, Criminal, Constitutional, Labour, Company, Serv.ice cases etc. He specializes in Constitutional Law. He worked in Bangalore University, Bangalore and Kuvempu University, Shimoga. He was appointed as an Additional Judge of the Karnataka High Court on February 18, 2008 and Permanent Judge on February 17, 2010. He was transferred to Himachal Pradesh High Court on 07.01.2019.


Ministry of Law and Justice