Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Present petition was filed under Article 227 of the Constitution for directing against an order passed by which Senior Civil Judge, rejected the application of the petitioner-defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908.

Plaintiffs filed the suit before the trial court and claimed to be the owners in possession of undivided shares. As against the petitioner, the plaintiffs’ principal claim was for a declaration against a sale deed executed by one M/s G.S. Kashyap and Sons (HUF) in favour of the petitioner 1 and as also an injunction against the petitioners from creating third-party interests in the said land.

Further, the plaintiffs also made three applications for an injunction under Order XXXIX Rules 1 and 2 of the CPC.

On 12-12-2018, petitioners filed a written statement and made an application under Order VII Rule 11 of the CPC and by that application petitioners contended that the plaintiffs had filed no title documents in support of their claim of ownership and had only filed revenue records which were insufficient to establish title.

Trial Court rejected the petitioner’s application under Order VII Rule 11 of the CPC.

Analysis, Law and Decision

High Court found no jurisdictional infirmity in the impugned order, so as to invite the supervisory jurisdiction of this Court under Article 227 of the Constitution.

Well Settled Law

For the purposes of rejection of the plaint under Order VII Rule 11 of the CPC, the Court is duty-bound to consider the contents of the plaint, and not to examine the sufficiency of the evidence or the defence put forth by the defendant.

The above position has been made clear by several Supreme Court decisions, including Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, Popat and Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510 and Urvashiben v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372.

The Bench expressed that,

Trial Court has cogently analysed the grounds taken by the petitioners and come to a conclusion that they do not fall within the scope of Order VII Rule 11 of the CPC. I do not find any jurisdictional defect or perversity in the said order so as to attract the supervisory jurisdiction of this Court under Article 227 of the Constitution. 

Lastly, the High Court declined to entertain the present petition under Article 227 of the Constitution of India. [Capital Land Builders (P) Ltd v. Shiv Kumar Jindad, CM(M) 69 of 2022, decide don 19-1-2022]


Advocates before the Court:

For the petitioners: Gyaneshwar Narayan, Advocate

For the respondents: None

Case BriefsHigh Courts

Calcutta High Court: 80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

In the present case, a widow lady aged about 80 years challenged the order of Single Judge, whereby WP No. 3672(W) of 2019 was dismissed.

Further, the record reflected that the petition was filed by the appellant seeking the issuance of a direction to respondent 2 to provide financial assistance to the appellant for survival and medical treatment.

Reason for filing of the above petition

The Husband of the appellant had died long back, and her son was working as a primary school teacher but unfortunately, he also died. The daughter-in-law of the appellant had applied for compassionate appointment in the school and had also filed an affidavit stating that she will bear the responsibility of all the maintenance with the treatment of the appellant in future and forever.

Though the respondent 9 did not do as stated by her in an affidavit.

As no decision on the representation of the appellant was taken, the appellant approaches the Writ Court by filing the petition but the learned Single Judge by the order under challenge had dismissed the petition taking the view that the appellant’s son aged about 37 years is in a position to look after her.

Appellant’s counsel submitted that the only surviving son of the appellant was unemployed and was not in a position to look after the appellant.

High Court stated that once respondent 9 had obtained the compassionate appointment by giving the undertaking to maintain and extend medical assistance to the appellant, then she was bound by that.

Therefore, in view of the above present appeal was disposed of and the appellant was granted liberty to file an appropriate detailed representation before respondent 6 who will duly consider her grievance of the appellant and pass an appropriate order after giving an opportunity to the appellant and respondent 9. [Durgabala Mdandal v. State of W.B., FMA 334 of 2020, decided on 20-1-2022]


Advocates before the Court:

For the appellant:

Mr Rabindra Nath Mahata

Mr T.M. Saha

Ms Aninda Bhattacharya

For respondent 6:

Mr Ranjan Saha

For respondent 6:

Mr Sudip Sarkar

Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge –05 while addressing case wherein the maintenance sought by wife, held that,

“It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.”

Factual Background

The Complaint under Section 12 of the Domestic Violence Act was filed by the respondent stating that she was the legally wedded wife of the appellant and was not working. Respondent was a divorcee and her second marriage got solemnized with the appellant. As per the respondent/wife due to physical, verbal, emotional, economic and domestic violence committed by the appellant and his mother, she had been living separately from him since November 2017.

Respondent/wife is stated to be living in rented accommodation and sustaining herself with great hardship as she was having no source of income.

Hence the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed.

Trial Court assessed the monthly income of the appellant as Rs 1 lakh per month and awarded monthly interim maintenance o Rs 30,000 including rent for alternate accommodation in favour of the complainant.

Appellant/husband was aggrieved with the impugned order and assailed the same.

Analysis, Law and Decision

Firstly, the Court observed that while fixing an interim maintenance court has to take a prima facie view of the matter and need not critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required.

Adding to the above, Court stated that an aggrieved person cannot be rendered to lead a life of a destitute till completion of the trial.

Further, Court cited the decision of the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, wherein the test for computing maintenance was laid down.

Plea of the husband that the complainant was a well-qualified woman and was capable of earning and rather she was earning by running a high-end fashion clothing company in the name and style of ‘Allure’ in partnership with her mother as well as from her consultation job.

Court reiterated the settled law that simply because the wife was earning, her claim for maintenance cannot be rejected. Point to be considered is whether the amount the wife is earning sufficient to meet her creature comforts; to keep her body soul together; to keep the wolf from the door; and to keep the pot boiling.  

Supreme Court’s decision in Rajnesh v. Neha,(2021) 2 SCC 324 was also considered in the present matter.

Therefore, the plea of the appellant/husband that respondent/wife was earning was without any merit.

With regard to the territorial jurisdiction of the trial court, the present appeal is barred by limitation.

Further, since the domestic violence report is already on record, the same as an important bearing as far as the question of territorial jurisdiction of the trial court and summoning of appellant/husband was concerned.

Bench opined that the plea of appellant/husband that trial court had no territorial jurisdiction to entertain the complaint filed by respondent/wife was without merit and the same stood rejected.

Husband before the trial court claimed to be a Businessman but having NIL monthly income and sustaining himself on charity and borrowing from relatives and friends. Further, he claimed that his monthly expenditure was Rs 27,360 ad had no resources and was surviving on loans and charity.

Bench on perusal of record noted that the appellant was a qualified person having qualification of MBA as well as having directorship of various companies and even if the income of the appellant was assumed to be NIL on the date of filing of his income affidavit before the trial court, but his earning capacity could not be lost sight of.

Further, it was found that the appellant/husband had concealed certain entries from his bank statement, and he had no explanation for the same.

In Court’s opinion, appellant opted not to file the bank statement for the period 2018 and thereby leaving no doubt that he was not coming up and with full truth with respect to his economic capacity.

Court also took judicial notice of the fact that appellant/husband’s company was one of the manufacturers of the brand ‘Too Yum’ and the brand ambassador of the said brand was ‘Virat Kohli’, hence it looked highly improbable that a company which is running into great losses was in a position to afford a celebrity of such stature for the advertisement of its product.

Hence,

“…appellant/husband is a man of means having vast business and appears to be impersonating himself as a ‘pauper’ so as to defeat the legitimate claim of the respondent/wife for the maintenance.”

Concluding the matter, Court held that the trial court’s assessment of the maintenance was fully justifiable and could not be faulted with. [Rebala Sudhir Reddy v. State, Criminal Appeal No. 151 of 2020, decided on 3-1-2022]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., considered the issue of whether the insurance company would be liable to pay amount in a case of a stolen vehicle and unauthorizedly driven?

Appellant impugned award dated 27-11-2021 to the limited extent that it grants recovery rights against the driver of the vehicle.

Counsel for the appellant submitted that since the vehicle was stolen, and driver was a professional thief there was no liability on the insurance company to pay the amount.

Question for Consideration

Whether the insurance company is absolved of the liability to pay the amount in a case where the vehicle is stolen and unauthorizedly being driven by somebody else?

Analysis, Law and Decision

It was noted that Supreme Court in United India Insurance Company v. Lehru, (2003) 3 SCC 338, held that in order to avoid the liability, the insurer must establish that there was a willful breach on the part of the insured.

Further, in the present case, the insurance company could not show any breach on the part of the insured to avoid to liability.

“…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”

Tribunal found that the vehicle was stolen and there was willful breach of the terms and conditions of the insurance policy by the insured.

Therefore, no infirmity in the impugned award whereby tribunal had directed the insurance company to make the payment of the compensation and thereafter recover the same from the driver who had stolen the vehicle.

In view of the above appeal was dismissed. [United India Insurance Co. Ltd. v. Anita Devi, 2022 SCC OnLine Del 139, decided on 17-1-2022]


Advocates before the Court:

For the petitioner: Sankar N. Sinha, Advocate

For the respondent: Somnath Parashar, Advocate for R-1 to 4

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

“Object of bail is to secure the presence of the accused at the time of trial, object is this, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses.”

Petitioner sought regular bail in an FIR registered under Sections 406, 420, 409, 120B of the Penal Code, 1860.

Factual Matrix

An ex-servicemen filed a complaint stating, ‘Hello Taxi’ and its Directors/Officials and other unknown persons had committed cheating and fraud.  The complainant had received a message and an email from the said company stating that if he invested his money, they would give him a 200% return within 1 year. The Directors called the complainant and invited him to a place where they explained to him about the Company and their plans to expand on the lines of Uber/Ola.

After much insistence, the complainant invested Rs 9,00,000. Further, even the complainant’s friends invested rs 15 to 20 lakhs. It is stated that on the 10th of every month, installment would be sent to the account of the investors, however, he did not receive any instalments and on calling the company a clip was shown to the complainant that the Company’s accounts had been frozen.

Stating that the Complainant and many others had been defrauded of their money, the complaint was filed on the basis of which the FIR was registered.

Analysis, Law and Decision

High Court on perusal of the charge sheet noted that both the petitioners were involved in the multi-person scam involving more than Rs 200 Crores from the inception of the same and that both were instrumental in misleading the public into investing in the scheme with no intention of returning the money.

It was also noted that more 900 complaints have been made till date pertaining to the scam and the investigation revealed that the petitioner played an integral role, right from inducing the public to siphoning off of the cheated money.

It was added that the gravity of the offences was such that if the petitioners were subsequently convicted, they would be liable to be sentenced to undergo imprisonment for life.

Gravity of the Offence: Can it be the sole ground?

The Bench stated that gravity of the offence cannot be the sole ground to deny bail to the petitioners. Supreme Court’s decision in Sanjay Chandra v. CBI, (2012) 1 SCC 40, was referred.

Therefore, the magnitude of the offence cannot be the only criterion for denial of bail.

Object of Bail

Bench opined that if there is no apprehension of interference in the administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty.

Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused.

High Court noted that the petitioners were in custody for over a year now and observed that,

“Charge sheet as well as supplementary chargesheet have been filed, and all the evidence available is documentary in nature and in custody of the investigation agency. Whether or not the cheated money was entrusted to the petitioners is a matter of trial and cannot be taken into consideration at this juncture.”

Therefore, Court concluded that continued custody of the petitioner was no longer required and enlarged them on bail.

Conditions laid down for bail

  • Each petitioner shall furnish a personal bond in the sum of Rs 1,50,000 with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the trial court
  • Petitioners are directed to reside at their respective address till further orders.
  • Every Monday, Wednesday and Friday the petitioners are directed to report the Police Stations concerned
  • Petitioners should provide their mobile numbers to the investigating officer and keep the same operational at all times.
  • Petitioners shall not tamper with evidence or try to influence the witness
  • In case it is established that the petitioners have tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioners shall stood cancelled.

In view of the above bail applications were disposed of.[Surender Singh Bhati v. State, 2022 SCC OnLine Del 134, decided on 17-1-2022]


Advocates before the Court:

For the Petitioner: Pradeep Singh Rana, Ankit Rana, Abhishek Rana, Nitish Pande, Advocates

For the Respondent: Amit Chadha, APP for the State with SI Shiv Dev, P S EOW

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,

This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.

Unfortunate Tale

The plight of a benighted widowed mother, a senior citizen, to gain a roof over her head in a tenement owned by her and the hard struggle faced by her from one of her sons.

Background

By the present petition, an order passed by the Parents and Senior Citizens Subsistence Tribunal was challenged by the petitioner, who was the son of respondent 2 (mother).

The mother had approached the tribunal as she was dis-housed from her only abode being a small tenement.

Factual Trajectory

The original tenement was possessed by the petitioner’s father and respondent 2’s husband. The building in which such tenement existed was taken up for redevelopment and on completion of the same, petitioner’s father would have become entitled to the house. However, he expired, and the petitioner’s mother’s name permitted for allotment of the redeveloped tenement.

At an old age, the said tenement was the only roof over the mother’s head.

It was noted that the petitioner on the exclusion of other siblings started asserting a right of residence on the tenement belonging to the mother and in such pursuit, he along with his family members foisted himself on the mother.

Petitioner by taking advantage of her old age mother, her lack of education entered into a rent agreement with her. As per the said agreement, he agreed to pay the mother a monthly rent of Rs 5,000, which he never paid.

The glaring fact was that for the petitioner rent agreement was only a piece of paper and was never to be acted upon, either by making payment of rent as agreed or vacating the tenement. He also conveniently chooses to forget that he had recognized the mother to be the absolute owner of the tenement.

What did the mother complain of?

The mother approached several authorities stating that the petitioner did not make payment of the rent which was also a source of her livelihood and had been ousted from her residence as also she was not paid by her son.

Tribunal had directed the petitioner to vacate the premises by following directions issued under Sections 4(2) and 4(3) read with 23 of the Senior Citizens Act.

Analysis and Discussion

Rent agreement with mother

High Court noted that the petitioner did not spare any effort to retain the possession of the tenement and for that matter, he also tried to enter into such rental agreement, with the mother, however, in doing so he completely overlooked that such a rent agreement was a temporary relief to him, inasmuch as, in the rent agreement in the recital clause, he accepted the mother to be the exclusive owner of the tenement oblivious of the consequence of such recital. The petitioner cannot set up a defence which is contrary to such document, to which he is himself a party.

In Court’s opinion, the tribunal had rightly recognized the applicability of Sections 4,5 read with 23 of the Act.

There was nothing on record to show that the petitioner had any independent right in respect of the tenement in question. Even in the rent agreement stated above, the petitioner categorically admitted that the mother was the owner of the said tenement.

“…quite astonishing that the petitioner invented such a novel method namely to enter into a rent agreement with the mother and only to be breached, as it is seen that only when the mother made a police complaint, the petitioner paid the amounts to the mother.”

The High Court along with a catena of decisions also referred to the decision of Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246, wherein the Court observed that,

“31. In my view, Section 4 cannot be read in isolation but has to be read with Section 23 and also Sections 2(b), 2(d) and 2(f) of the said Act. The respondent no.1 mother cannot be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life. In my view, if the respondent no.1 mother who is 73 years old and is a senior citizen, in this situation, is asked to file a civil suit for recovery of possession of the property from her son and his other family members who are not maintaining her but are creating nuisance and causing physical hurt to her, the whole purpose and objects of the said Act would be frustrated.”

The Bench found that the rent agreement was with the mother was only an attempt and a struggle on the mother’s part to receive the benefits from the tenement, so as to avail such small money from the petitioner for her survival. Though petitioner defaulted in making such payment.

Concluding the matter, Court held that son had no legal right in the tenement so as to sustain a claim that he can dis-house the mother and exclusively enjoy the tenement.

As the mother has substantially suffered for a long period, it is imminently in the interest of justice that the petitioner expeditiously vacates the premises.

Therefore, the petition was wholly misconceived and was accordingly dismissed. [Suryakant Kisan Pawar v. Kusum Kisan Pawar, WP No. 2141 of 2019, decided on 18-1-2022]


Advocates before the Court:

Mr. Akshay Petkar with Mr. Aniket Mali, for Petitioner.

Mr. Himanshu Takke, AGP for Respondent No.1.

Mr. P. R. Yadav with Mr. Saumitra Salunke for Respondent No.2.


Also Read:

Senior Citizen soon to enter her 90’s desired to end her life: Son and Grandson mentally left no stone unturned to make life of ‘grandmother’ a living hell | Bom HC emphasizes on family and societal values being perished

“Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Under 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

Bom HC | “If children cannot take care of their parents and allow them to live in peace, they atleast ought not to make their life a living hell”; Court sternly warns daughter to not harass mother physically & mentally

Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal (ITAT), New Delhi: Stating that, “Urgent needs invite urgent action”, Amit Shukla, Judicial Member and Dr B.R.R. Kumar, Accountant Member while addressing a very significant matter wherein assessee did not disclose the two bank accounts operated by him to the Income Tax Department, expressed that,

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

Purpose of approaching ITAT

Investigation Division of the Income Tax Department found that two bank accounts maintained by the assessee have not been disclosed to the Income Tax Department. Based on the said information, the Assessing Officer initiated the reopening proceedings under Section 148 of the Income Tax Act, 1961 and issued notice.

Owing to credits in the bank account, the addition of Rs 12.81 Crores was made by the Assessing Officer under Section 68 of the Act.

Since the CIT(A) confirmed the order of the Assessing Authorities, the present appeal was filed before the ITAT.

Facts of the Case

The assessee had opened, operated and owned two bank accounts in which Rs 12.81 crores were duly deposited. The assessee before the revenue authorities on various occasions denied the knowledge of having any such account. During the statement recorded on 29.12.2015, the assessee said that he was in no way associated with Alfa India and he was hearing the name for the first time during the assessment proceedings.

Analysis and Discussion

Tribunal noted the stark facts recorded by the Assessing Officer and found no theories, surmises or suspicion, in fact, the information gathered was entirely of factual content.

The credits in the bank were not disputable nor the bank account of the assessee.

Assessing Officer’s reasoning: Mechanical?

In the opinion of the Bench, the Assessing Officer had credible information in his possession and the reasons were duly recorded after application of mind.  It was also an indisputable fact that the assessee had denied owing any such bank account during the statement recorded by the department.

Assessing Officer’s reason clearly mentioned that the AO had applied his mind verified the Income Tax Return of the assessee, gone through the bank statement wherein the credits were appearing.

While the citizen and public are disgruntled regarding the apathy, red tapism and delays in various bureaucratic and judicial procedures, the prompt action taken by the revenue authorities in this case cannot be looked with contempt, rather it is highly appreciable.

Keeping the file for longer time, mulling over issue cannot be considered as a sign of application of mind and taking prompt decision must not be taken as non-application of mind nor mechanical action by the authorities.

 In the instant case, on going through the entire records, we find that there were no theoretical postulates involved in the information or the reasoning recorded by the revenue authorities.

Tribunal relied on the decision of the Delhi High Court in Experion Developer (P) Ltd. v. Assistant Commr. Of Income Tax, wherein it was held that where necessary sanction to issue notice u/s 148 was obtained from Pr. Commissioner as per provision of section 151, Pr. Commissioner was not required to provide elaborate reasoning to arrive at a finding of approval when he was satisfied with reasons recorded by Assessing Officer.

Calling the present case to be a classic case of prompt action on the part of the revenue taking into consideration received, Tribunal denied accepting the arguments that the satisfaction was borrowed, the approval was mechanical, and the promptness of the revenue authorities was misplaced

Tribunal upheld the action of revenue authorities on the issue of impugned under Section 148 of the Income Tax Act as the information received was not wrong nor the reasons to be believed were faltered.

Nothing done behind the back of assessee

The assessee had been given ample opportunities on various occasions as to why the case was reopened and as to what amounts the revenue was proposing to bring to tax.

Conclusion

The assessee had failed every time and feigned ignorance about the account which was opened with his full knowledge and conscience.

Since the assessee failed to prove the source of the sum of money found in his bank account, they have been rightly taxed by the revenue under Section 68 of the Income Tax Act.

Onus of providing the source of a sum of money found to have been received by an assessee is on him.

Where any sum is found credited in the books of the assessee for any previous year, it may be charged to Income Tax as the income of the assessee for that previous year if the explanation offered by assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. [Vasantibai N. Shah v. CIT (Bom.) 213 ITR 805, Sreelekha Banerjee v.  CIT (SC) 49 ITR 112]

Therefore, keeping in view the entire facts and circumstances of the case, Tribunal held that:

  • Action of the revenue authorities on the issue of notice under Section 148, approval under Section 151 was in accordance with the law.
  • Addition under Section 68 was rightly made, as the assessee failed to offer any explanation with regard to nature and source of credit in his bank account and the primary burden cast upon the assessee for proving the credits has not been discharged either before AO or CIT(A) or before us.

Therefore, the action under Sections 147, 148 as well as the addition made under Section 68 was affirmed and the appeal of the assessee was dismissed. [Arun Duggal v. SCIT, ITA No. 3075/Del/2018: Asstt. Year: 2009-10, decided on 4-1-2022]


Assessee by : Sh. Kapil Goel, Adv.

Revenue by : Ms. Paramita M. Biswas, CIT DR

Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal, Bangalore Benches (ITAT): The Bench of Chandra Poojari, AM and George George K, JM while partly allowing an appeal held that the lessee not being the exclusive owner of a property is eligible to claim actual rental expenses in the return of income.

Factual Matrix

The assessee in the present matter was stated to be registered as a 100% Export Oriented Unit and also registered under the Software Technology Park of India (STPI).

After the scrutiny and assessment under Section 143(3) read with Section 92CA of the Income Tax Act, the total income was determined at Rs 35,44,70,726. One of the additions made by the A.O. was Rs 79,27,497 on account of foreign exchange loss.

The A.O. held that the restatement of Export Earners Foreign Currency (EEFC) account is in the nature of capital item and hence cannot be allowed. He further held that the amount of Rs.79,27,497 is a notional loss.

On being aggrieved with the above, the assessee filed an appeal before the first appellate authority, which confirmed the additions made by the A.O. and held that the loss on account of fluctuation in foreign exchange can be adjusted at the time of making payment but not on notional basis.

Aggrieved with the order of CIT(A), the assessee approached this tribunal.

Analysis, Discussion and Decision

Tribunal expressed that, as per the mercantile system of accounting followed by the assessee, the foreign exchange loss arising on account of restatement of EEFC account cannot by any stretch of imagination be termed as notional or contingent in nature.

It was noted that the EEFC account was maintained by the assessee to facilitate regular business operation and not for acquiring any asset.

Noting that, the transaction in EEFC account undertaken during the year were trading nature in order to facilitate the regular business operation of the assessee-company, Tribunal held that the AO erred in making an addition of Rs 79,27,497 to the income returned and the CIT(A) was not justified in sustaining the same.

In view of the above reasoning, the addition by A.O. was deleted.

Ground 2

Background

The assessee had paid a sum of Rs 2,36,70,370 to First Lease Company India Limited towards equipment leasing. Out of Rs 2,36,70,317, the principal repayment of Rs 1,77,95,992, the interest and VAT aggregated to Rs 58,74,325. The assessee had claimed Rs 2,36,70,317 as a deduction. The A.O. in the impugned order held that the sum of Rs 1,77,95,992 (i.e. Rs 2,36,70,317 – Rs 58,74,325), which was paid towards principal as an expenditure of capital in nature and accordingly added back to the returned income.

The above was preferred for an appeal before CIT(A), and it was directed to the A.O. to verify whether there was a violation of TDS provisions under Section 194-I of the I.T. Act and to make necessary disallowance under Section 40(a)(ia) of the I.T. Act. Further, the CIT(A) directed the A.O. to verify whether the assessee had claimed depreciation on the leased asset and if so, add back the same to the total income.

Aggrieved with the above, the present appeal was filed.

It was noted that as per clause 4 of the agreement between the assessee and the First Leasing (lessor) the asset shall remain the exclusive property of the lessor at all times and the lessee during the lease time cannot capitalize the assets in its books of account since the ownership of the asset was with the lessor.

As per clause 19 of the said agreement, the assessee company (lessee) shall surrender the leased assets to First Leasing in good condition and working order on the expiration of the agreement.

It was clear that the actual owner of the leased asset was the lessor and was entitled to claim depreciation.

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

Tribunal upheld the direction of CIT(A) on verifying whether there was TDS made by the assessee while making payment for lease rentals and adding back the depreciation claim.

In view of the above discussion, the appeal was partly allowed. [ThoughWorks Technologies (India)(P) Ltd. v. Deputy Commr. Of Income Tax, ITA No. 580/Bang/2019:Asst. Year 2012-13, decided on 4-1-2022]

Case BriefsHigh Courts

Madras High Court: Noting a matter involving State Revenues, S.M. Subramaniam, J., expressed that,

“…writ petitions involving large scale revenue, more specifically, Income Tax, Customs, Excise, Mines and Minerals etc., interim orders are in force for several years and the Nation’s properties are being looted or misused or taken undue advantage of.

Such a situation is absolutely unconstitutional and further anything under the earth belongs to the Government and it is the Nation’s property, which belongs to ‘We the People of India’. Thus, no one can be allowed to extract without adhering to the Act, Rules and Regulations and any violations are to be treated seriously and all these persons must be liable for all consequences.”

Why did the present matter reach this Court?

The petition was filed to seek direction to the first and third respondents to grant necessary transport permits in favour of the petitioner for mining and transporting mined minerals in terms of the mining lease granted vide Government Orders in respect of lands situated at Therani Village to its factory at Dalmiapuram, Trichy District in respect of petitioner’s mining lease areas.

Analysis and Discussion

High Court stated that while considering writ petitions relating to mining Operations, this Court would be able to trace out the number of instances where excess mining operations were carried on without adhering to the Rules and Regulations and in some cases by virtue of interim orders granted by this Court and by keeping the petitions long years, undue advantages were taken by the Mining Operators.

The Bench stated that all the above-stated are to be seriously taken note of by the State also, as it involves the State Revenue which is of paramount importance.

Expressing that when large scale State Revenues are involved, more specifically in mining operations, wherever the petitions are entertained, Bench stated that State must ensure that counter-affidavits and vacate stay petitions are filed immediately and the matter is taken up for hearing expeditiously as possible for early disposal as Nation’s interest and Public Revenue is the consideration to be shown by all concerned, including the High Court.

Court further, stated that Registrar General of High Court of Madras shall take note of the allegations that the petitions as the present one are not listed on account of bundles misplaced or on various other reasons, including corrupt activities.

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

The Bench directed the Registrar General of the Madras High Court to issue appropriate instructions to the Registry to collect all those writ petitions, where large scale State and Central Revenues are involved and list those matters, without causing any undue delay by obtaining necessary orders from the Chief Justice, if necessary by constituting Special Benches for speedy disposal of those cases.

In view of the above discussion, the petition was disposed of. [Dalmia Refractories Ltd. v. State of Tamil Nadu, WP No. 36418 of 16, decided on 11-1-2022]


Advocates before the Court:

For Petitioner: Mr Rahul Balaji

For Respondents-1 and 3: Mr R. Shanmugasundaram, Advocate General Assisted by Mr K.M.D. Muhilan, Government Advocate.

For Respondent-2: Mr B. Rabu Manohar, Senior Central Government Standing Counsel.

Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Application under Section 482 CrPC was filed with a request that the matter may be referred to the Mediation and Conciliation Centre of the Court in relation to FIR under Sections 323, 354, 498A, 504 of Penal Code, 1860 and Section 3/4 of Dowry Prohibition Act, 1961 and also quashed the entire proceeding in relation to the said FIR.

In the present case, the investigation was started and mediation was also initiated before the court below, but applicant No.1 was not satisfied with the mediation proceeding initiated before the court below, hence, the present application was filed and with the consent of counsel for the applicant as well as counsel for the opposite party 4, the matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020.

The matter was successfully concluded, and a settlement agreement was executed between the parties and OP 4 joined her matrimonial home on 7-3-2021 and started enjoying her life with her husband and children.

In the case of Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73  the provision of anticipatory bail, under Section 438 Cr.P.C. was not existing, therefore, there was a dilemma to get the remedy of pre-arrest during the investigation, then it was clarified by this Court that High Court has no inherent powers, under Section 482 Cr.P.C. to interfere with the arrest of accused persons during the course of investigation, but it was clarified that High Court can always issue a writ of mandamus, under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest and FIR can be quashed, under Section 482 Cr.P.C., which is covered under the principle laid down by Hon’ble Supreme Court in the Case of Bhajan Lal and the present case law laid down the by the Supreme Court in the cases as discussed.

Analysis and Decision

High Court stated that, as in the decision of Ram Lal Yadav v. State of U.P.,1989 SCC OnLine All 73, this Court held that Investigating Officer cannot be restrained from arresting the accused of a cognizable offence. Supreme Court in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426] and  Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73 already held that FIR and its consequential proceedings can be quashed under Section 482 CrPC.

Therefore, in the present matter, Bench opined that impugned FIR and its consequential proceedings are liable to be quashed in terms of the settlement agreement of parties before the Mediation and Conciliation Centre of this Court.

Hence, in view of the above discussion, the present application was allowed and FIR was quashed. [Ishwar Singhal v. State of U.P., Case: U/S 482/378/407 No. 1979 of 2020, decided on 11-1-2022]


Advocates before the Court:

Counsel for Applicant:- Durgesh Kumar Singh
Counsel for Opposite Party:- G.A.,Vinod Kumar

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Present appeal had been preferred by the claimants-appellants against the decision of Presiding Officer, Motor Accident Claims Tribunal, Kanpur whereby the Tribunal awarded a sum of Rs 1,80, 000 as compensation to the claimants with interest at the rate of 7.5% per annum.

The appeal was preferred for the purpose of enhancement of quantum.

By the present claimant’s appeal, appellant claimed enhancement of award for the death of a child who was 7 years old at the time of his death.

Appellant’s counsel submitted that the deceased was a brilliant student and he had very bright future, but the said aspect was not considered by the Tribunal. Further, it was added that the notional income of the deceased was taken Rs 15,000 per annum by the Tribunal and held that the contribution of the deceased towards his family was only assumed as 1/2 of his income and in this way the Tribunal has awarded only 1/2 of his income as compensation, which was not just and proper.

Supreme Court decided the controversy and settled the law regarding the death of a child in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060, wherein it was stated that in spite of repeated directions, Scheduled-II of Motor Vehicles Act, 1988 was not yet amended. Therefore, fixing notional income of Rs 15,000 per annum for non-earning members is not just and reasonable.

Hence, the Supreme Court took the notional income of the deceased at Rs 25,000 per annum, hence Court is opined that notional income of the deceased must be assumed Rs 25,000 as he was a non-earning member.

Court further expressed that, when the notional income is multiplied with applicable multiplier ‘15’ as prescribed in Scheduled-II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000/- towards loss of dependency.

Therefore, appellants 1 and 2 were entitled to the following amounts towards compensation:

(i) Loss of Dependency: 25,000/- X 15 = Rs.3,75,000/-

(ii) Filial consortium: 40,000/- X 2 = Rs.80,000/-

(iii) Funeral expenses: Rs.15,000/-

(iv) Total compensation: Rs.4,70,000/-

The Bench also added that in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260, the appellants 1 and 2 shall be entitled to the rate of interest as 7.5% per annum from the date of filing the claim petition.

Lastly, the Court concluded stating that the appeal was partly allowed in view of the above discussion. [Roop Lal v. Suresh Kumar Yadav, First Appeal from Order No. 2124of 2021, decided on 4-1-2022]


Advocates before the Court:

Counsel for Appellant:- Mohd. Naushad Siddiqui

Counsel for Respondent:- Vipul Kumar, Shreesh Srivastava

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,

Faceless Assessment Scheme does not mean no personal hearing.

An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.

Instant petition challenged respondent 3’s action in passing the impugned final assessment order under Section 143(3) of the Income Tax Act, 1961 and the impugned notice under Section 156 of the Act for Assessment Year 2018-19.

High Court’s Reasoning

This is unable to comprehend as to how despite ‘nil’ or ‘null’ variation proposed in the show cause notice, the impugned final assessment order and notice makes a demand of Rs 1,69,77,44,240.

High Court expressed that this Court is unable to comprehend as to how despite ‘Nil’ or ‘Null’ variation proposed in the show cause notice, additions had been made to the assessed income in the draft assessment order and the final assessment order. It was noted that while the show cause notice assessed a total loss of Rs 1,76,94,91,428, the impugned final assessment order and notice made a demand of Rs 1,69,77,44,240 as if the petitioner made a super profit!

Further, as mandatorily required by Section 144B(1)(xvi) of the Income Tax Act, no show cause notice was served upon the petitioner.

Petitioner’s response was not considered, and the draft assessment order was issued and the reason for not considering the same response was a technical glitch in the online facility.

Faceless Assessment Scheme does not mean no personal hearing. Not understood as to how grant of personal hearing would either frustrate the concept or defeat the very purpose of Faceless Assessment Scheme.

Bench found that no opportunity of personal hearing was given to the petitioner even after a specific request was made.

High Court opined that a faceless assessment scheme does not mean no personal hearing.

Supreme Court’s decision in Piramal Enterprises Ltd. v. Additional/Joint/Deputy Asst. Commr. Of Income Tax, 2021 SCC OnLine Bom 1534 was referred to wherein Section 144B of the Income Tax Act was interpreted.

It is settled law that where exercise of a power results in civil consequences to citizens unless the statute specifically rules out the application of natural justice, the rules of natural justice would apply.

 High Court elaborated that where an action entails civil consequences, observance of natural justice would be warranted and unless the law specifically excludes the application of natural justice, it should be taken as implanted into the scheme.

The opportunity to provide a hearing before making any decision is considered to be a basic requirement in Court proceedings.

In the Supreme Court decision of C.B. Gautam v. Union of India, (1993) 1 SCC 78, Court invoked the same principle and held that even though it was not statutorily required, yet the authority was liable to give notice to the affected parties while purchasing their properties under Section 269-UD of the Act, namely, the compulsory purchase of the property. It was observed that though the time frame within which an order for compulsory purchase has to be made is fairly tight, yet urgency is not such that it would preclude a reasonable opportunity of being heard

Subsequently, in Sahara India (Firm) v. Commissioner of Income-tax, Central-I, [2008] 169 Taxman 328 (SC), the Supreme Court highlighted the necessity and importance of the opportunity of a pre-decisional hearing to an assesee and that too in the absence of any express provision. Infact, the requirement of following principles of natural justice was read into Section 142(2A) of the Income Tax Act following the earlier decisions of the Supreme Court in Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 and C.B. Gautam v. Union of India, (1993) 1 SCC 78.

Use of the expression “may” in Section 144B (7)(VIII) is not decisive where a discretion is conferred upon a quasi-judicial authority whose decision has civil consequences. The word “may” which denotes discretion should be construed to mean a command. Consequently, this Court is of the view that requirement of giving an assessee a reasonable opportunity of personal hearing is mandatory.

Stating that the non-obstante clause and the use of the expression ‘shall be made’ in Section 144B (1) creates a mandatory obligation upon the respondent/Revenue to follow the prescribed procedure, Court expressed that, the use of the expression “may” in Section 144B (7)(viii) is not decisive.

The word “may” is capable of meaning “must” or “shall” in the light of the context.

Court added that, a quasi-judicial body must normally grant a personal hearing as no assessee or litigant should get a feeling that he never got an opportunity or was deprived of an opportunity to clarify the doubts of the assessing officer/decision-maker.

The Bench suggested that, The identity of the assessing officer can be hidden/protected while granting personal hearing by either creating a blank screen or by decreasing the pixel/density/resolution.

Hence, the word “may” in Section 144B(viii) should be read as “must” or “shall” and the requirement of giving an assessee a reasonable opportunity of personal hearing is mandatory.

Conclusion

The impugned final assessment order and impugned notice issued by respondent 3 have been set aside and the matter remanded back to the Assessing Officer [Bharat Aluminium Company Ltd. v. Union of India, 2022 SCC OnLine Del 105, decided on 14-1-2022]


Advocates before the Court:

For the Petitioner: Mr Arvind Datar, Senior Advocate with Mr Gopal Mundhra, Advocate.

For the Respondents: Mr Gigi C. George, Advocate for UOI.

Mr Sanjay Kumar, Advocate for Revenue.

Case BriefsForeign Courts

United States Patent and Trademark Office: Cataldo, Adlin and Lebow, Administrative Trademark Judges, decided whether SPOTIFY is entitled against dilution by blurring under 15 U.S.C Section 1125(c).

Applicant U.S Software Inc. sought registration of POTIFY, in standard character and stylized with a design for:

downloadable software for use in searching, creating and making compilations, rankings, ratings, reviews, referrals and recommendations relating to medical marijuana dispensaries and doctor’s offices and displaying and sharing a user’s location and finding, locating, and interacting with other users and place, in International Class 9.

Further, the applicant also sought the registration of the standard character version of the mark for:

clothing, namely, shirts, tops, t-shirts, hoodies, headwear, shorts, in International Class 25;

providing consumer information in the field of medical marijuana dispensary inventories and locations; providing links to web sites of others featuring consumer information on medical marijuana inventories and locations; providing a web site featuring the ratings, reviews and recommendations on products and services for commercial purposes posted by users; providing consumer information regarding medical marijuana dispensaries, inventories and locations, in International Class 35; and 

computer services, namely, creating an on-line community for registered users to participate in discussions, get feedback from their peers, form virtual communities, and engage in social networking in the field of medical marijuana; providing a web site featuring temporary use of non-downloadable software for providing medical and healthcare services, scheduling of medical and healthcare services, in International Class 42.

Opposer Spotify AB alleged prior common law rights in and registration of SPOTIFY, in standard characters.

Further, the opposer alleged that the use of the applicant’s marks would be likely to cause confusion with and dilute the opposer’s mark under Sections 2(d) and 43(c) of the Trademark Act, 15 U.S.C § 1052(d) and 1125(c).

Analysis and Discussion

There is no dispute that Opposer’s SPOTIFY mark is distinctive, both inherently, and by acquisition as a result of widespread use and consumer recognition. Conceptually, it is a coined, fanciful term. It is registered on Principal Register without a claim of acquired distinctiveness and is therefore presumed distinctive.

As for whether the mark is sufficiently “famous” to be entitled to protection against dilution, Trademark Office must determine whether it “is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.”

Advertising and Publicity


Opposer “promotes its products and services under the SPOTIFY mark to a wide variety of consumers, including across age groups and across all geographic regions in the U.S.

 It advertises in well known national publications and has exclusive podcast partnership deals with famous celebrities.

Less conventionally, Opposer has engaged consumers’ imaginations with marketing efforts such as the “President of Playlists” job posting after President Obama expressed a desire to work for Opposer (itself a form of free advertising and publicity). This marketing effort was so successful and engaging that it became “the number one trending moment on Twitter”. Id. at 11 (Sauvaget Dec. ¶ 34). The attention this episode received on Twitter strongly suggests that many Americans who listen to music in analog format or not at all were exposed to the SPOTIFY mark.

Sales of Goods and Services offered under the SPOTIFY mark


It was noted that in 2015, before the applicants’ first use of its POTIFY mark, opposer had more monthly SPOTIFY users than most U.S. States had residents.

Evidence was significant, persuasive and corroborative of the advertising and publicity evidence. Not only have many Americans been exposed to the SPOTIFY mark, but a large percentage of Americans are users of or subscribers to opposer’s SPOTIFY goods and services.

 Actual recognition of the mark


Significantly, it was recorded that SPOTIFY had more web “hits” than a number of other trademarks, including ROLEX, MCDONALD’s, AMERICAN EXPRESS, CHANEL and BARBIE.

Opposer’s “President of Playlists” marketing effort was so widely recognized that it was “the number one trending moment on Twitter and claimed the number one spot of Reddit.”

Hence, SPOTIFY is among the most widely recognized brands in the United States.

SPOTIFY is registered on the principal register


Adding to the above, it was stated that the SPOTIFY mark has been registered on the principal register in its broadest (standard character) form for almost 13 years.

SPOTIFY is famous


SPOTIFY is exceedingly famous and entitled to protection against dilution under 15 U.S.C. § 1125(c).

What does Dilution by blurring means?


Dilution by blurring is “an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.”

It “occurs when a substantial percentage of consumers, on seeing the junior party’s mark on its goods, are immediately reminded of the famous mark and associate the junior party’s mark with the owner of the famous mark, even if they do not believe that the goods emanate from the famous marks’ owner.” N.Y. Yankees P’ship, 114 USPQ2d at 1509.

To consider whether the applicant’s use of its mark will likely cause dilution by blurring, this office considered:

  • Degree of similarity between applicant’s mark and opposer’s famous mark
  • Degree of inherent or acquired distinctiveness of Opposer’s mark
  • Extent to which opposer is engaging in the substantially exclusive use of its mark
  • Degree of recognition of opposer’s mark
  • Whether the applicant intended to create an association with opposer’s SPOTIFY mark
  • Any actual association between applicant’s mark and opposer’s mark

In the present case, the marks were strikingly similar and in fact, they share the letters P-O-T-I-F-Y with that being the entirety of the applicant’s standard character mark and the literal element of its other mark.

Even if the office presumes that Opposer’s mark will be perceived as a reference to the word “spot”, and that applicants will be perceived as a reference to the word “pot”, because the marks are so similar in appearance and sound, the marks will engender similar commercial impressions.

Findings

  • It was found that the marks were highly similar in their entireties, and that applicant’s mark will “trigger consumers to conjure up” opposer’s famous mark, and this weighs in favour of finding dilution by blurring.
  • Opposer’s mark is highly distinctive
  • Opposer’s use of SPOTIFY is substantially exclusive
  • SPOTIFY mark is widely recognised in the United States
  • Applicant apparently intended to create an association with Opposer’s SPOTIFY mark

Since the marks are so similar in how they look and sound and in their structure, cadence and essential nature, the applicant’s mark will cause consumers to “conjure up” the opposer’s famous mark and associate the two.

although we need only find likely dilution, we find it inevitable that POTIFY will diminish [SPOTIFY’s] distinctiveness

Decision

Registration of applicant’s mark in both ‘717 and ‘185 Application was refused in view of the above. [Spotify AB v. U.S. Software Inc., Opposition Nos. 91243297 and 91248487, mailed on 10-1-2022]

Case BriefsHigh Courts

Punjab and Haryana High Court: Amol Rattan Singh, J., held that police stations including the interrogation room should be covered by CCTV surveillance.

Petitioner sought a direction to respondents 1 to 3 stating that whenever he be taken for interrogation, videography be done of his leaving the jail premises till his reaching the police station concerned and during interrogation, a videography be also done.

Further, it was prayed that during the interrogation his medical examination be also conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination.

Adding to the above, the petitioner also prayed that when he is to be taken outside the jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter.

Lastly, it was prayed that respondents 1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1984.

On 3-12-2021, this Court had directed the DGPs of Punjab and Haryana to file affidavits in response to observations made in that order, in reply to which the affidavits were filed.

Analysis and Discussion

With the directions issued by the Supreme Court in Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184 also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance.

In view of the above, Court stated that in view of the above any interrogation room would also be covered by such directions.

DGP, Haryana and DGP, Punjab have been directed to file affidavits as to whether the directions laid down in the Supreme Court decision have been complied with or not.

The non-compliance of the directions issued by the Supreme Court in Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184, would amount to Contempt of Court and this Court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court.

High Court directed that in the case of every person who is in police custody or is being taken into police custody, all provisions of the CrPC, including Sections 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the CrPC, as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.”

Therefore, violation of the procedure laid down above especially leading to violation of human rights even in the case of worst criminal, cannot be ignored by any Court.

Lastly, the Court noted that it would be an excuse for India to take a plea that many other countries are far more advanced than India and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here.

Bench highlighted that,

 We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.

High Court adjourned the matter to 9-2-2022. [Kaushal v. State of Haryana, CRM-M-43672 of 2021, decided on 7-1-2022]


Advocates before the Court:

Bipan Ghai, Sr. Advocate, with

Paras Talwar, Advocate, for the petitioner. Rajeev Anand, APP, for respondent 3.

Manreet Singh Nagra, AAG, Punjab.

Neeraj Poswal, AAG, Haryana.

Case BriefsHigh Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

 Some of the interesting legal stories from Week 2 of January 2022


Competition Commission of India (CCI)

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

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

Read full report, here:https://bit.ly/33BQTQy


Delhi High Court

2. ‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters

Kanya Daan is a solemn and pious obligation of a Hindu Father, from which he cannot renege.

An unmarried daughter, even if employed and earning, cannot be assumed to have sufficient resources to meet her matrimonial expenses. 

Read full report, here: https://bit.ly/3KbeNTL

3. Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding

Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.

Read full report, here: https://bit.ly/33DKtQN


Securities Exchange Board of India (SEBI)

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

“…The alleged scheme of enticing and inducing others to deal in certain securities thereby creating adverse and artificial impact on the price and volume of those scrips, has been ingenuously crafted and implemented in a manner that it was an impossible task for the common investors to identify any dubious hidden intent behind such messages and tips that were being circulated amongst them through the Telegram Channel”.

Read full report, here: https://bit.ly/34T02VD


Kerala High Court

5. Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers

“There is no substantive law mandating a father of a child born out of an inter–religion marriage to maintain it. The Special Marriage Act, 1984 is silent on this.”

Read full report, here: https://bit.ly/3Fthmgj


 Dwarka Court, New Delhi

6. Dishonour of Cheque occurring when parties entered in an illegal and void agreement: Can Court still take cognizance in S. 138 NI Act complaint? Dwarka Court decides

Court on noting the fact that the sole purpose of the agreement was to obtain a tender in favour of the complainant, not on the basis of its intrinsic merit, but on the basis of “good links” of the accused with the NTPC higher authorities. Such agreements are expressly rendered void and of no legal consequence by virtue of Section 23 of the Indian Contract Act.

Read full report, here: https://bit.ly/3tuDmoI


Proceedings underway:

  • Marital Rape proceedings in Delhi High Court.
Case BriefsDistrict Court

Saket District Court, Delhi: Sonam Singh, MM (NI Act) acquitted the accused who was charged with an offence under Section 138 of the Negotiable Instruments Act, on finding that he raised sufficient doubt about the existence of a legally sustainable liability.

Factual Background

Complainant was the daughter-in-law of the accused. She alleged that in August 2020, the accused who was her father-in-law promised to pay her maintenance of Rs 45,000 every month for his grandson.

Further, she alleged that in lieu of the promised amount he handed over a cheque. On not receiving the amount in her bank account, she enquired with the bank and got to know that initially the cheque was cleared but due to the accused being hand-in-glove with certain officials from the said bank, the amount of Rs 45,000 which was credited in her account was subsequently debited from her account.

Complainant alleged that since she suspected that the accused had cheated her, she requested the bank to disclose the status of her cheque and after much inconvenience, the bank told her that due to the difference between words and figures written on the cheque, it was wrongly cleared by them initially.

Adding to the above allegations, she also stated that the amount was debited from her account as the accused had conspired with the bank official and alleged that she was appalled when she got to know that the cheque was dishonored on the ground of “CHEQUE IRREGULARLY DRAWN/AMOUNT IN WORDS AND FIGURES DIFFERS” and further on contacting the accused, he refused to pay the amount of cheque in question.

It was also alleged by her that she got to know from the Bank that the accused had personally asked the bank to stop the payment of the cheque in question and he had deliberately written the wrong amount in words on the cheque.

Since the accused did not pay the complainant within 15 days of service of legal notice, the present complaint was filed seeking prosecution of the accused of the offence punishable under Section 138 NI Act.

Analysis, Law and Decision

After referring to the provisions of Negotiable Instruments Act, Bench referred to the Supreme Court decision in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745, wherein the Court discussed the conditions of Section 138 NI Act which are to be fulfilled for a cause of action to arise in favour of the complainant.

Court expressed that,

The object underlying Section 138 of the NI Act is to promote faith in the efficacy of the banking system and give credibility to negotiable instruments, in business transactions. The intention is to punish those unscrupulous persons, who issued cheques for discharging their liabilities, without really intending to honour the promise.

Issues in the present matter:

  • Service of legal demand notice
  • Cheque being valid and return memo being fabricated
  • Whether the cheque in question can be said to have been issued in discharge of a legally enforceable debt or liability or not

Service of legal demand notice

Court stated that considering the presumption of due service, the accused was under an obligation to lead evidence to prove that the notice was not served on him. However, he has failed to bring any evidence to rebut the presumption of due service of legal demand notice.

Mere denial of not receiving the legal demand notice would not amount to proving his defence.

 Validity of Cheque and genuineness of the return memo

It was proved that the cheque was dishonoured on the instructions of the accused who gave instructions to the bank to reverse the entry, admitted by him in his statement under Section 313 CrPC.

The Court witness brought a letter issued by the bank that erroneously the cheque number mentioned in the return memo dated 11.09.2020 was 682148 instead of 682146. He further explained in his cross-examination conducted by the counsel for the complainant that the typographical mistake of the cheque number in the return memo is a “clerical mistake and should not have occurred.”

 Accused did not bring any evidence to show that there was any conspiracy between the complainant and the bank to issue a fabricated return memo. The Bench stated that it was relevant to note that the accused had admitted having signed the cheque on a bank account maintained in his name and filled all the particulars of the cheque except the name of the complainant.

Question of Liability

It is well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 NI Act and another under Section 118(a) of the NI Act, which is a presumption of the cheque having been issued in discharge of legal liability and drawn for good consideration, arises.

Bench observed that it is explicit that on proof of foundational facts, the Court will presume that cheque was made or drawn for consideration and that it was executed for discharge of debt or liability, once the execution of negotiable instrument is either proved or admitted and the burden of proof lies upon the accused to rebut the said presumption.

This is an example of the rule of ‘reverse onus’ in action, where it is an obligation on the accused to lead what can be called ‘negative evidence’. The accused is not to prove a fact affirmatively, but to lead evidence to demonstrate the non-existence of debt or liability. Since, this rule is against the general principle of the criminal law of ‘presumption of innocence in favour of the accused’ and considering that such negative evidence, by character is difficult to lead, the threshold for the accused to rebut the presumption is on the scale of the preponderance of probabilities.

Court opined that, in the present matter, the accused succeeded in rebutting the presumption of legal liability, by exposing the inherent improbability of the case of the complainant.

Bench stated that, the improbability of the complainant’s story was further manifest from the fact that she had not filed any case for maintenance and only a case under DV Act had been filed. She failed to bring on record any document or court order to show that the accused promised her the maintenance of Rs 45,000 for his grandson.

Further, the accused, in his defence had argued that the cheque was not handed over to the complainant. In his statement under Section 313 CrPC, he stated that only when he received a message from his bank that an amount of Rs 45,000 was debited from his account, then he contacted his bank and told the bank he had not issued any such cheque. Any reasonable man would do as what accused did and direct his bank to stop the payment or reverse the entry.

The reason for not filing a police complaint with respect to misuse of the cheque by the accused was not filed as the complainant was his daughter-in-law and in Court’s opinion the said explanation was believable as the same could have caused him social embarrassment.

Conclusion

Accused raised sufficient doubt about the existence of a legally sustainable liability, which the complainant failed to prove after the onus shifted on her and therefore the end result was that the accused was acquitted of offence under Section 138 NI Act.

In view of the above complaint was dismissed. [Shakun Singh v. Chandeshwar Singh, CC No. 397 of 2020, decided on 24-12-2021]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sabina and Satyen Vaidya JJ. dismissed the petition on grounds of non-interference.

 The facts of the case are such that the father of the petitioner was working as a T-Mate with the respondent department and had died while in service, on 03-03-2007. Petitioner by approaching the respondents had sought appointment on compassionate basis. However, the case of the petitioner has been wrongly rejected on the ground that since the mother of the petitioner was already serving in Himachal Pradesh Public Works Department; therefore, he was not entitled for appointment on compassionate basis.

Counsel for the respondents submitted that as per Clause-5 (c) of the Policy dated 18-1-1990; case of the petitioner has been rightly rejected as the mother of the petitioner was already in a Government job.

The Court relied on judgment State of Himachal Pradesh v. Shashi Kumar, (2019) 3 SCC 653 wherein it was observed that

“… Compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment.

“..it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.”

Clause 5 (c) of the said policy reads as under:-

“In all cases where one or more members of the family are already in Govt. Service or in employment of Autonomous Bodies/Boards/Corporation etc., of the State/Central Govt. employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased Govt. Servant represents or claims that her employed sons/ daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the opinion of the department of Personnel and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers.”

 Thus, the Court observed that the petitioner was not entitled for appointment on compassionate basis in view of Clause-5(c) of the relevant policy as his mother was already in a government job. The Court further observed that the respondents have rightly rejected the case of the petitioner for his appointment on compassionate basis.

The Court held “no ground for interference, while exercising extraordinary writ jurisdiction under Article 226 of the Constitution of India, is made out.”

[Moti Ram v. Himachal Pradesh Electricity Board, Civil Writ Petition (Original Application) No.2619, decided on 03-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Naveen K Bharadwaj

For respondent: Mr. Anil Kumar God

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Exchange Board of India (SEBI): SK Mohanty, Whole Time Member, while acting immediately on the matter, was of the opinion that the Noticees were liable to be held jointly and severally responsible for active collusion, for the unlawful gain through illicit means. And further directed to disgorge the amount so gained, while restricting them from the securities market for an appropriate period.

In the instant matter it was alleged and was further established through investigation that the Noticees were the administrators of a telegram channel where they potrayed themselves to be experienced analysts and researchers, further inducing and manipulating investors. The features of the telegram of sending bulk messages were successfully misused for ‘illicit activities like manipulating the stock prices by repeatedly sending unfounded stock recommendations’. The same was advertised through facebook (Meta) and WhatsApp, resulting in members in thousand digits.

The description on the Telegram Channel was:

“We are team of 4 Research Analysts with combined experience of 40 years. All calls are for study purpose only. Taking any trade consultant your financial advisor. We are in the process of getting SEBI Research Analyst Registration.”

The Tribunal was very blatant in its approach towards the Noticees, when it said,

“The tips circulated through the Channel create an inducing impact which are then followed by the subscribers and ironically, such stock tips may also prove to be true, if large number of recipients of such tips believe it and collectively act on it. Slowly and gradually, after seeing the price of the said thinly traded scrip actually rising, more and more subscribers start believing in the tips and start acting on it, which further strengthens the belief of such tips being genuine, as large number of individuals end up acting on such tips and by their collective buying actions, convert the deceitful, specious and baseless tips to realty”… “Such collective belief by the large base of subscribers of the channel in the stock recommendations given by the Noticees would lead to a bull run in the said scrips and propel the scrip price/volume upwards, ultimately giving a golden opportunity to the Noticees to make unlawful profits by selling their shares in the same scrip”.

The Tribunal even cited the relevant observations by the Supreme Court in N. Narayanan v. SEBI, (2013) 12 SCC 152 and Kishore Ajmera v SEBI, (2016) 6 SCC 368 on the pertinent matter.

The concerns of the Tribunal came out in such words:

“…Such dubious acts of the Noticees are quite alarming hence, it becomes imperative to act immediately and restrain them from perpetuating such fraudulent activities in the securities market through any other scheme and in any other manner thereby further threatening the integrity of the securities market.”

“…Nevertheless, SEBI being entrusted with the mandate of protecting the interest of the investors cannot be a mute spectator irrespective of the technology used by the delinquents and such delinquents need to be kept out of the walls of the securities market”.

“…b) The alleged scheme of enticing and inducing others to deal in certain securities thereby creating adverse and artificial impact on the price and volume of those scrips, has been ingenuously crafted and implemented in a manner that it was an impossible task for the common investors to identify any dubious hidden intent behind such messages and tips that were being circulated amongst them through the Telegram Channel”.

Resultantly, the Tribunal restricted all the Noticees from the securities market, impounded banks accounts of the Noticees jointly and severally and directed to open an escrow amount to deposit the amount.[Stock Recommendations using Social Media Channel (Telegram), re, WTM/SKM/54/201-22, decided on 12-1-2022]


Agatha Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Applicant was accused of the offences punishable under Sections 498-A, 323, 504, 506 of the Penal Code, 1860.

The above-stated crime came to be registered on the basis of the complaint lodged by respondent 2.

It was alleged in the complaint that after co-accused (husband of respondent 2) returned from Ireland and respondent 2 while checking his bag, found one packet on which present applicant’s name alleged to have been written along with her address. Thereafter, respondent 2 questioned about the same to her husband – co-accused, though he gave her some evasive answers. Thereafter again, the co-accused went to Ireland and returned to India in September 2016, however respondent 2 noted the substantial change in his behaviour.

Further, it was alleged that for no reason, the applicant Deepika made a phone call to her and abused her. The co-accused on being questioned explained to respondent 2 that he had given the status of wife to the applicant. By saying so he extended the beatings to respondent 2.

Analysis and Decision

On perusal of the charge sheet, it appeared that the applicant was not the relative of the co-accused, hence ingredients of Section 498-A IPC will not be attracted against the present applicant.

In the decision of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, in para 105 of the judgment, the Supreme Court, by referring the various cases on this point has formulated the categories of cases by way of illustration, wherein such powers under Section 482 of the Cr.P.C. could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

High Court stated that the allegations made and if accepted in their entirety, do not prima facie constitute any offence or make out a case against the applicant. Regarding the charge under Section 498-A IPC, in the case of U. Suvetha v. State, (2009) 6 SCC 757, Supreme Court observed that by no stretch of imagination, a girlfriend or even a concubine in an etymological sense would be a ‘relative’.

Further, no allegations were mentioned in the FIR with regard to Section 323, 504 and 506 of the IPC. There was a mere reference in the FIR that on one occasion, the applicant abused respondent 2/informant by making a phone call. However, there were no further details as to whether those abuses ultimately attracting the provisions of Section 504 of the Penal Code. Similarly, there were absolutely no allegations to attract the penal provisions of Section 506 of the Penal Code.

With regard to charge under Section 323 IPC, respondent 2 had made certain allegations. It was alleged that the applicant had been to her matrimonial home, joined the other co-accused persons and extended the beatings for the reason that she was not bringing the amount from her parents.

The Bench stated that, so far as allegations of demand and ill-treatment being extended to respondent 2 on account of non-fulfilment of demand is concerned, the allegations are made exclusively against the other co-accused persons. It is thus clear that these allegations have been made with mala fide and ulterior motives for wreaking vengeance against the present applicant.

Respondent 2 had a grudge against the applicant, hence the allegations were made with malafides and for wreaking vengeance against her.

Therefore, FIR and the criminal proceedings were quashed. [Deepika Hanmant Zanjurne v. State of Maharashtra, 2021 SCC OnLine Bom 6852, decided on 27-9-2021]


Advocates before the Court:

Mr Ashutosh S. Kulkarni, Advocate for applicant

Mr R.D. Sanap, A.P.P. for respondent no.1/State

Mr A.D. Aghav, Advocate for respondent no.2

Legal RoundUpWeekly Rewind


Top Story


PM Modi Security Lapse: SC asks P&H HC to ‘secure and preserve’ all records relating to PM’s Punjab tour   
After a massive security breach that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has directed the Registrar General, Punjab and Haryana High Court to secure and preserve the records relating to Prime Minister’s scheduled tour of Punjab on 05th January 2022.  

Due to bad weather the Prime Minister’s convoy took off by road for a two-hour journey instead of flying to the rally site at Ferozepur Punjab by helicopter. Around 10 km short of the rally venue, the convoy was stranded on a flyover because of protesting farmers. The Convoy turned back after waiting for around 20 minutes. All the further programmes were cancelled. 

The Supreme Court is now due to take up the matter of January 10, 2022. 

https://www.scconline.com/blog/post/2022/01/08/pm-modi-security-lapse-sc-asks-ph-hc-to-secure-and-preserve-all-records-relating-to-pms-punjab-tour/  


Supreme Court Updates


Justice R. Subhash Reddy retires  

On January 4, 2022, Justice R. Subhash Reddy bid adieu to the Supreme Court after serving as a Supreme Court judge for a little over 3 years. Born in an agricultural family, Justice Reddy began his career as an Advocate in the year 1980. His stint as an advocate stretched over a staggering period of 22 years. He also served as a judge at the Andhra Pradesh High Court and the Chief Justice of the Gujarat High Court, before his elevation to the Supreme Court.  

Read all about him and his notable judgments on the SCC Online Blog.  

https://www.scconline.com/blog/post/2022/01/04/bidding-adieu-to-justice-ramayyagari-subhash-reddy/  

NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota 

Considering the urgent need to commence the process of Counselling so that the admission process is not dislocated, the Supreme Court has directed that counselling on the basis of NEET-UG and PG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All-India Quota seats. 

The order came after the notice issued by the Directorate General of Health Services in the Union Ministry of Health and Family Welfare on 29 July 2021 was challenged by the doctors who appeared in the NEET- PG 2021 examination. 

The notice implements a 27 per cent reservation for Other Backward Classes1 (non-creamy layer) and a 10 per cent reservation for the Economically Weaker Section, while filling up 15 per cent undergraduate and 50 per cent post-graduate All India Quota seats in pursuance of the National Eligibility cum Entrance Test.  

https://www.scconline.com/blog/post/2022/01/07/neet-2021-22-supreme-court-allows-counselling-with-27-quota-for-obcs-and-10-quota-for-ews-in-all-india-quota/  

Award cannot be remitted to the arbitrator in absence of findings on the contentious issues 

Explaining the provision of remission under Section 34 (4) of the Arbitration and Conciliation Act, 1996, the Supreme Court has held that under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award. 

The Court explained that if there are no findings on the contentious issues in the award or if any findings are recorded ignoring the material evidence on record, the same are acceptable grounds for setting aside the award itself. Under guise of either additional reasons or filling up the gaps in the reasoning, the power conferred on the Court cannot be relegated to the Arbitrator. In absence of any finding on contentious issue, no amount of reasons can cure the defect in the award. 

https://www.scconline.com/blog/post/2022/01/07/explained-can-an-award-be-remitted-to-the-arbitrator-in-absence-of-findings-on-the-contentious-issues/  


High Court Updates


Madras High Court 

Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? 

Expressing that right to life and personal liberty enshrined in Article 21 of the Constitution of India includes the right to relax, Madras High Court, held that the said right can be exercised in a variety of forms. 

Bench observed that, 

Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy. 

Further, the Court noted that, the installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person’s bodily autonomy. These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter.

https://bit.ly/3qot2Nk

Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? 

In another significant decision, Madras High Court decided whether consumption of liquor in an Association, Club or in similar places is permitted or not 

High Court observed that Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws. 

https://bit.ly/32XE96T 

Chhattisgarh High Court 

 Wife who refuses to join company of husband on ground of ‘auspicious time’ would lead to desertion? 

Chhattisgarh HC granted divorce to husband and wife, on noting that despite efforts taken by the husband to restore the matrimonial home, wife did not cooperate and under the guise of auspicious time to return, she continued at her maternal home leading to desertion by wife. 

 https://bit.ly/3G3ZERK 

Delhi High Court 

“Overseas wife”, husband visited wife for few days only on yearly visits from Canada: Whether moribund marriage or not?  

Delhi High Court while deciding the matter expressed that “…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.” 

Court held that there was neither a matrimonial home, nor the possibility of ever having one and the damage to the marriage was evident. Hence while dissolving marriage, Bench added that  

The parties were at an age, where they may start a new life, if given a chance. However, keeping them tied to a legal bond would only mean snatching away from them the chance to ever lead a fulfilling life.

https://bit.ly/3f37L5j 

Bombay High Court 

Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? 

Bombay High Court held that Workmen’s Compensation Act, 1923 does not prohibits payment of compensation to a minor.

There is no age limit for a person to be employed as an employee under the Workmen’s Compensation Act, thereforethe Insurance Company cannot be absolved of its liability to pay compensation to the claimants, the dependents of the deceased. 

https://bit.ly/3zzS7rk 


European Court of Justice 


ECJ holds Bulgaria obligated to recognize same sex couple as parents of a child even when its national law does not recognize the concept of marriage between homosexuals 

Moving to international courts, ECJ directed Bulgaria to recognize same sex couple as parents of a child irrespective of the fact that Bulgaria does not recognizes the concept of marriage between homosexuals. The Bench held that, 

“It would be contrary to the fundamental rights which are guaranteed to the child under Articles 7 and 24 of the Charter for the Child to be deprived of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States on the ground that her parents are of the same sex.” 

https://bit.ly/3G7fHOG 


Legislation Updates


Securities Contracts (Regulation) (Procedure for Holding Inquiry and Imposing Penalties) Rules, 2021 

The Ministry of Finance has notified the Securities Contracts (Regulation) (Procedure for Holding Inquiry and Imposing Penalties) Rules, 2021 vide notification dated December 31, 2021, amending the Securities Contracts (Regulation) (Procedure for Holding Inquiry and Imposing Penalties) Rules, 2005. 

The purpose of the amendment was to include ‘electronic instant messaging service’ to the modes of service of notice/order. It provides that the notice sent should be digitally signed by competent authority and in case of bouncing of the electronic mail, it wouldn’t be considered valid service of notice. 

https://www.scconline.com/blog/post/2022/01/04/securities-contracts-regulation-procedure-for-holding-inquiry-and-imposing-penalties-rules-2021-to-include-instant-messaging-for-service-of-notice-order/  

Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 

On December 30, 2021, the Central Government notified Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 in order to revise the pecuniary jurisdiction of District Commission, the State Commission and the National Commission. 

Read more details on SCC Online Blog 

https://www.scconline.com/blog/post/2022/01/03/pecuniary-jurisdiction-of-district-state-and-national-commissions-revised-vide-consumer-protection-jurisdiction-of-the-district-commission-the-state-commission-and-the-national-commission-rules-2/  

Election Laws (Amendment) Act, 2021 

On December 29, 2021, the Election Laws (Amendment) Act, 2021 received the assent of the President to amend the Representation of the People Act, 1950 and the Representation of the People Act, 1951. The Amendment introduces a provision to link electoral rolls with Aadhaar. 

https://www.scconline.com/blog/post/2021/12/31/provision-to-link-electoral-rolls-with-aadhaar-introduced-vide-election-laws-amendment-act-2021/