Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member)reiterated that the presence of an arbitration clause in the agreement does not bar the jurisdiction of consumer fora.

Grievance of the Buyer

Complainants alleged that the Project in which they had booked their flat has not been completed till date even after about 8 years from the date of the booking. OP developer indulged in unfair trade practices by utilizing the money collected from the complainants, for its personal gains on benefits and further diverted the funds collected from the complainants to its other projects.

Complainants noting that the project has not even reached the 50% completion stage, clearly showed that the OP had no intention of developing/completing the project.

It was also alleged that even after 8 years, the construction of the project is not even close to completion, there are no laying of roads, utility supplies, access/service roads, facilities, clubs, no sign of rail over bridge etc. It was further alleged that the unexpected, unreasonable and inordinate delay in developing and constructing the project, and facilities and also the delay in handing over possession of the flat, clearly amounts to deficiency in services.

Builder’s Contention

OP contended that the present Complaint is not maintainable in light of Clause 33 of the Agreement executed between the Parties, according to which, all or any disputes arising out of or touching upon or in relation to the terms of the Agreement including its interpretation and validity and the respective rights and obligations of the parties have to be settled amicably by mutual discussion failing which the disputes have to be settled through arbitration. The Opposite Party has further submitted that Complainant 1 has no privity of contract with the Opposite Party and no relief can be granted to the said Buyer’s Association.

Analysis, Law and Decision

Coram while analysing the matter and noting the contention with respect to the arbitration clause relied on the Supreme Court decision of Emaar MGF Land Ltd. v. Aftab Singh – I, (2015) CPJ 5 (SC), in which it was laid down that an Arbitration clause on the agreement does not bar the jurisdiction of the Consumer Fora to entertain the complaint.

Hence, the objection raised by the Counsel for the OP that the clause of the Arbitration bars this commission from entertaining the complaint was unsustainable.

Counsel’s contention for the Developer that the Complainants are not ‘Consumers’ and that the subject Flats were booked for investment purpose was completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja v. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainants were dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the OP Developer, which in the instant case the Opposite Party Developer had failed to discharge.

Further, as per Clause 4.5 of the Agreement of the Flat Buyer Agreement, in case of failure to deliver possession, the OP developer was liable to refund the amounts paid by the allottees with simple interest 10% pa for the period such amounts were laying with the Developer/SPV and to pay not other compensation whatsoever, whereas, in terms of Clause 1.19 in case of late payment, the Complainant/Buyer is liable to pay interest @18% p.a.

The above-stated terms depicted that they were wholly one-sided and unfair, therefore the complainant cannot be made bound to the terms of the agreement.

Elaborating further, Commission stated that it was not in dispute that the Complainants were allotted the Flats in the year 2009 and till date the construction of the flat has not been completed.

Coram opined that buyer cannot be made to wait indefinitely for the delivery of possession and the act of OP with regard to relying on Farmers’ agitation while retaining the amounts deposited by the complainants was not only an act of deficiency of service but also amounted to Unfair Trade Practice.


Complainants are entitled to refund of the principal amount with reasonable interest of @9% p.a. from the date of the respective date of deposit till the date of actual refund. [Ansal API Megapolis Buyer’s Assn. v. Ansal Hi-Tech Townships Ltd., Consumer Case No. 1467 of 2015, decided on 8-11-2021]

Advocates before the Commission:

For the Complainants: Mr Saurabh Jain, Advocate

For the Opposite Party: Mr Rakesh Kumar, Advocate Mr Rupesh Kumar Sinha, Advocate

Appointments & TransfersNews

Appointment of Judges | Orissa High Court

Following 3 Judges appointed to Orissa High Court:

  • Mrugankar Sekhar Sahoo
  • Radha Krishna Pattanaik
  • Sashikanta Mishra

Ministry of Law and Justice

[notification dt. 13-10-2021]

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Petitioner submitted that he was enrolled as an Advocate with the Bar Council of Delhi and also cleared the exam for Advocates on Record and was duly enrolled on October 15, 1998.

In 2015 he was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (RCT). Then in 2016, he was transferred to the Secunderabad Bench of the RCT where he worked till January 19th. Thereafter, he was transferred to Gauhati Bench of the RCT where he worked till, he completed 5 five years’ tenure on April 21, 2020.

He stated that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulated qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be a Judge of a High Court.

According to the petitioner, in view of the above-said provision, he was selected for the post of Judicial Member RCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India, the qualifications needed for appointment to the post of a Judge of a High Court, was that one must have at least 10 years of practice as an Advocate.

Primary Claim:

Claim was with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Judicial Member of the RCT, for pension.

Question of Consideration:

Whether the petitioner is entitled to the counting of 10 years of practice at the Bar, along with the qualifying period put in by him as Judicial Member in RCT?

Analysis, Law and Decision

High Court stated that the Supreme Court’s decision in Government of NCT of Delhi v. All India Young Lawyers Association, (2009) 14 SCC 49, was concerning the Officers of the DHJS, who were appointed to the service, being Advocates practicing at the Bar. Supreme Court while reducing the period from 15 years to 10 years did not interfere, with respect to the grant of benefit of counting of the period of practice put in by an Advocate.

Bench stated that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which was not the case here, since the appointment of the petitioner was only for a period of 5 years and upon completion of 5 years, he demitted the office.

Therefore, his plea that he was qualified to be a High Court Judge, was appointed as Judicial Member and as such 10 years of practice at the Bar needed to be counted for the pension was unmerited, for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989.

Sr. Panel Counsel, Jagjit Singh during his submission had drawn the attention of the Court towards the Supreme Court decision in Madras Bar Assn. v. Union of India, WP (C) No. 804 of 2020, 27-11-2020 wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on 12-02-2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to 12-02-2020 shall be governed by the parent Statutes and Rules as per which, they were appointed.

Therefore, since the petitioner was appointed prior to 12-2-2020, terms and conditions of appointment of the petitioner as Judicial Member RCT shall necessarily be governed under the Rules of 1989.

In view of the above petitioner was not entitled to any relief. [Ajit Kumar Pande v. Union of India, 2021 SCC OnLine Del 4590, decided on 4-10-2021]

Advocates before the Court:

For the Petitioner: In-person

For the Respondent: Jagjit Singh, Sr. Panel Counsel with Mr Preet Singh, Mr Vipin Chaudhary & Ms Rashmi Malhotra, Advs.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal (NCLT): Coram of Judicial Member Ashok Kumar Borah and Technical Member Shyam Babu Gautam has admitted a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 by Bank of India (Financial Creditor) seeking to initiate Corporate Insolvency Resolution Process against VVVF (India) Limited (Corporate Debtor).

Factual Background

Applicant had sanctioned/revised/reviewed/continued various fund based and non-fund based working capital facilities to VVF (India) Limited for a sum of 283.65 Crore (Loan Amount).

In the petition, it was mentioned that the amount in default along with interest was INR 293, 42, 50, 526.79 (Financial Debt), which was due and payable by the Corporate Debtor in favour of the applicant.

Due to various defaults by Corporate Debtor, its account was classified as a Non-Performing Asset by the applicant.

As per the RBI guidelines, if a company failed to repay the loan liability sanctioned to the borrower under the corrective action plan, then the asset classification of the borrower will be considered from the cut-off date considered for the implementation of the corrective action plan (CAP).

In this account, under CAP, long term working capital loan was sanctioned in 2016 and due to payment default the Statutory Central Auditors of the Applicant classified the Corporate Debtor as an NPA from the implementation date of the CAP.

Further, corporate debtor issued a revival letter addressed to the applicant, confirming and admitting the existence of the various facilities and security documents availed by and executed by the Corporate Debtor and its Promoters.

Even the liability to the Financial Creditor was expressly admitted.

Financial Creditor and the Corporate Debtor had executed 14 agreements/contracts reflecting all amendments and waivers, which were forming part of the Financial Creditor’s pleadings.

Since the financial debt amount remained unpaid, the applicant filed the present petition.

Analysis, Law and Decision

The Tribunal opined that the petition was maintainable by law and the defenses raised by the Corporate Debtor were nothing but an attempt to delay the commencement of the Corporate Insolvency Resolution Process of the Corporate Debtor.

Bench while analyzing the facts of the case, referred to the Supreme Court decision in Swiss Ribbons (P) Ltd. v. Union of India, WP (C) 99 of 2018, wherein the Constitutional validity of IBC was upheld, the position was very clear that unlike Section 9, there was no scope of raising a ‘dispute’ as far as Section 7 petition was concerned. As soon as a ‘debt’ and ‘default’ is proved, the adjudicating authority is bound to admit the petition.

Contention with respect to not attaching the documents as raised by the Corporate Debtor was dealt by the Supreme Court in Dena Bank (now Bank of Baroda) v. C. Shivakumar Reddy, Civil Appeal No. 1650 of 2020, where the same issue was raised and covered.

In Tribunal’s opinion, no dispute with respect to Corporate Debtor owing money to the Financial Creditor existed.

Further, the Coram added that, the Financial Creditor’s application was complete in all respects as required by law. It clearly showed that the Corporate Debtor was in default of a debt due and payable and the default was in excess of the minimum amount stipulated under Section 4(1) of IBC.

Hence, debt and default stood established.

Therefore, Tribunal ordered as follows:

(a)        Petition filed by the Bank of India, Financial Creditor, under Section 7 of the IBC read with Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against VVF (India) Limited the Corporate Debtor, is admitted.

(b)       There shall be a moratorium under Section 14 of the IBC, in regard to the following:

(i)  The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;

(ii)  Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;

(iii)  Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002;

(iv)  The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor.

(c) Notwithstanding the above, during the period of moratorium:

(i)  The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period;

(ii)  That the provisions of sub-section(1) of section 14 of the IBC  shall not apply to such transactions as may be notified by the Centre in consultation with any sectoral regulator;

(d) Moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under Section 31 (1) of the IBC or passes an order for liquidation of Corporate Debtor under Section 33 of the IBC, as the case may be.

(e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

(f) Mr Avil Menezes appointed as Interim Resolution Professional of the Corporate Debtor to carry out the functions as per the IBC.

(g) During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow.

(h) Financial Creditor shall deposit a sum of Rs 2,00,000 with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC).

[Bank of India v. VVVF (India) Ltd., CP (IB) 331/MB/C-II/2020, decided on 23-9-2021]


For the Financial Creditor: Nausher Kohli, Nirav Shah and Viraj Gami i/b DSK Legal

For the Corporate Debtor: Mustsafa Doctor, Counsel i/b M/S Dhruve Liladhar & Co.

Case BriefsHigh Courts

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

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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

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

Advocates before the Court:

Mr Akshay Naik, Advocate for the petitioner.

Mr Sagar Ashirgade, APP for respondents.

Case BriefsSupreme Court

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

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

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

Factual Matrix and Timeline

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

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

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


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


Three questions arose for consideration of the Court:

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

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

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

Analysis and Observations

Interpretation of the Code

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

Permissibility of amending Section 7 petition for filing additional documents

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

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

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

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

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

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

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

Limitation and effect of acknowledgment of debt

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

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

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

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

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

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

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

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

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

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


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

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 21 ft. Nilufer Bhateja, Associate Editor is out now. The written episode along with the video episode can be watched and read below.

 Supreme Court  

Elected legislators cannot claim privilege or immunity to stand above sanctions of criminal law: SC rules out withdrawal of criminal case against MLAs in 2015 Kerala Assembly ruckus – Division Bench of Supreme Court upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section 321 CrPC for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an unfortunate incident that occurred in the Kerala Legislative Assembly in March 2015. Earlier, the Kerala High Court too had affirmed the order of the Chief Judicial Magistrate. All attempts of the accused MLAs seeking to claim immunity under Article 194 of the Constitution of India were rejected by the Supreme Court while observing: “Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.” 

Real test is to check whether the act was directly concerned with official duty: SC quashes criminal proceedings against clerk accused of conspiring with superiors, for want of S. 197 CrPC sanction – Upholding the Rajasthan High Court’s order whereby it had directed that criminal proceedings against the accused−Lower Division Clerk be quashed, for want of requisite sanction under Section 197 CrPC, the Supreme Court held that in cases where a question of requirement of sanction under Section 197 arises, the real test is to check whether the act committed by the public servant was directly concerned with the official duty. 

Letter of Intent merely indicates party’s intention to enter into contract; no binding relationship at this stage emerges: SC explains in terms of liability of successful bidder – Supreme Court reiterated that a Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. Court was deciding whether, in the facts of the case, the respondent−successful bidder who was awarded a tender by the appellant−South Eastern Coalfields Ltd., was liable for the execution of work by another contractor at the risk and cost of the successful bidder. 

AGR Dues | SC rejects Telecom Service Providers’ application for rectification of errors in calculation of AGR dues as misconceived – Supreme Court dismissed a batch of miscellaneous applications filed by Telecom Service Providers (“TSPs”) for allowing rectification of clerical/arithmetical errors in computation of Adjusted Gross Revenue dues. Court was of the view that though the instant applications appeared to be innocuous at first blush, the end result of the relief sought by the applicants in the guise of correction or rectification of the defects or arithmetical errors in calculation of AGR dues, would be recalculation which would amount to alteration in AGR dues. 



Whether Philadelphia’s refusal to contract with a Catholic agency for providing foster care services unless they agree to certify same-sex couples as foster parents violates the First Amendment? While looking into the question that whether the city of Philadelphia violated the First Amendment by discontinuing to refer deprived children to the Catholic Social Services on account of its refusal to certify same-sex cou­ples to be foster parents due to its religious beliefs about marriage; the Court held that, the refusal of Philadelphia to contract with CSS for the provision of foster care services unless they agree to certify same-sex couples as foster parents, violates the Free Exercise Clause of the First Amendment. 


High Court Updates 


Kerala High Court 

On what grounds can pregnancy of a mentally unsound woman be terminated? Is consent of women indispensable? HC answers – Kerala High Court invoked the doctrine of parens patriae while permitting the termination of eight weeks pregnancy of a medically unsound rape victim. In this case, the hapless rape victim was found wandering and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim. 


Delhi High Court

De-certification of AYUSH teachers; HC sets aside CCIM’s order de-certifying “Teacher Code” of practitioners for working outside their State of registration –Delhi High Court in a very interesting matter has set aside the order of the Central Council of Indian Medicine, whereby, number of doctors teaching at various Ayurvedic colleges were handed de-certification for working outside their State of registration. As per the orders of CCIM Teacher Codes of more than hundred teachers were withdrawn and they were debarred from undertaking teaching activities in the Ayurveda Colleges (BAMS).  Court held that orders were vitiated for non-compliance of the principles of natural justice as they were not preceded by a properly worded show-cause notice; not reflected the individual justifications, replies, documents and evidences adduced by the concerned teacher demonstrating his status as a regular full-time faculty and not a ‘Paper Teacher’. 

Karnataka High Court 

 “There can be illegitimate parents, but no illegitimate children.” HC analyses whether a ‘son’ born out of void marriage be considered for compassionate appointment – In a matter with regard to compassionate appointment, Karnataka High Court made a very significant observation that,  children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Supreme Court in Union of India v.  V.R Tripathi. 


Punjab and Haryana High Court 

“Right to Privacy cannot be raised to create a bubble to scuttle investigation”; HC holds direction to give voice samples is not contrary to Art. 20 (3)- Punjab and Haryana High Court while answering the question as to whether compelling an accused to give voice samples would amount to self-incrimination and hence, is violative of Article 20(3) observed that, “The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables.  High Court held that the directions to take voice sample does not infringe Article 20 (3) of the Constitution of India. 


Calcutta High Court 

Children living in parents’ house are at best licensees: Cal HC says senior citizens’ exclusive residentiary rights to be viewed from prism of Art. 21. In a very significant decision, Calcutta High Court expressed that children and their spouses living in the senior citizen’s house are at best “licensees”. and the said license comes to an end once the senior citizens are not comfortable with their children and their families. 


Kerala High Court 

Declare wild boars as vermin; HC allows farmers to hunt wild boars to prevent destruction of agricultural lands – In a petition wherein the agriculturists voiced their grievance with regard to the destruction of the crops in their agricultural lands on account of large scale intrusion of wild boars from the forest, the Kerala High Court directed the Chief Wildlife Warden to permit the farmers to hunt wild boars to prevent destruction of crops


SEBI | Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries – SEBI imposed a monetary penalty of Rs 3 lakhs on Viaan Industries and its promoters under the provision of Section 15A(b) of the SEBI Act, for violating Regulations 7(2), 7 SEBI 7(2) (a) and 7 (2) (b) of the Prohibition of Insider Trading Regulations, 2015. 

In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent? In a very interesting case pertaining to medical negligence, NCDRC remarked that, At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. he medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Further, the Commission observed that, the duty of treating doctor is to decide the method of treatment depending upon the condition of the patients and the circumstances of each case, thus it cannot be construed as medical negligence 

 Legislation Updates 

Rules for E-furnishing of Forms, Returns etc. introduced vide Income Tax (21st Amendment) Rules, 2021 –The Central Board of Direct Taxes has notified Income Tax (21st Amendment) Rules, 2021 on July 29, 2021 and Rules for E-furnishing of Forms, Returns etc. Have been introduced.  Read more details on SCC Online Blog  

Government announces 27% reservation for OBCs, 10% for EWS in All India Quota for UG, PG medical, dental courses – On July 29, 2021, the Government has announced 27% reservation for the OBCs (Other Backward Classes) and 10% quota for the Economically Weaker Sections (EWS) in the All India Quota (AIQ) scheme for undergraduate (UG) and postgraduate (PG) medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from 2021-22 onwards. 

 IFSCA invites public comments on proposed IFSCA (Capital Market Intermediaries) Regulations, 2021 – On July 28, 2021, IFSCA has sought public comments on the proposed International Financial Services Centres Authority (Capital Market Intermediaries) Regulations, 2021. The objective of the Regulations is to enact a comprehensive regulatory framework for the intermediaries in the capital markets operating in IFSC focusing on ease of doing business and consistent with the fundamental principles laid down by IOSCO.  

 Cabinet approves amendments to Limited Liability Partnership Act, 2008 and Deposit Insurance & Credit Guarantee Corporation Act-On July 28, 2021, the Union Cabinet has approved the amendments to Limited Liability Partnership Act, 2008 vide Limited Liability Partnership Amendment Bill, 2021 in order to accelerate the ease of doing business for companies and amendments to Deposit Insurance & Credit Guarantee Corporation Act vide Deposit Insurance & Credit Guarantee Corporation Act, Bill 2021 in order to provide account holders access to up to Rs 5 lakh funds within 90 days of a bank coming under moratorium. 

Kerala | “No-dowry declaration” to be signed and submitted by all male government employees within one month of marriage vide circular issued by Kerala Government The Kerala government has issued a circular directing all male government employees to furnish a declaration to their heads of departments within one month of their marriage that they have not taken any dowry vide circular dated July 16, 2021, issued by the Women and Child Development Department. The “no dowry declaration” has to be signed by the employee’s wife, father and father-in-law. The decision comes after Kerala has faced various horrendous dowry related incidents in the past few weeks.  


Appointments & TransfersNews

Appointment of Judges

President of India appoints the following as Judges of Madhya Pradesh High Court:

  1. Shri Anil Verma
  2. Shri Arun Kumar Sharma
  3. Shri Satyendra Kumar Singh
  4. Smt. Sunita Yadav
  5. Shri Deepak Kumar Agarwal, and
  6. Shri Rajendra Kumar (Verma).

Anil Verma, B.Sc, LLB., joined Judicial Service as Civil Judge Class- Il on 26.08.1987. He worked as Special Judge, Sagar, Secretary, Law & Legislative Department, Govt. of MP, Bhopal, Principal Judge Family Court, Sagar, District & Session Judge, Sagar, District Judge (Vigilance) Indore, and presently he is working as Principal Registrar, High Court of MP Bench at Indore since 04.06.2018.

Shri Arun Kumar Sharma, B.Sc., LLB, joined Judicial Service on 27.08.1987. He worked as Additional District & Sessions Judge, Tikamgarh, Indore, Principal Judge Family Court, Chhatarpur, District & Sessions Judge, Tikamgarh. At present he is working as a District & Sessions Judge, Chhatarpur since 28.03.2019.

Shri Satyendra Kumar Singh, B.Sc, LLB, joined Judicial Service on 03.11.1987. He worked as OSD/Additional Registrar//Registrar(Vigilance) in High Court of M.P., Jabalpur, Special Judge SC/ST Act and 1 st A.J. to I st A.D.J. Ujjain, District & Sessions Judge, Alirajpur, Ujjain and Principal Registrar (Vigilance) HC of MP, Jabalpur. At present he is working as a Principal Secretary, Govt. of MP, Law & Legislative Affairs Department, Bhopal since 14.05.2018.

Smt. Sunita Yadav, B.Sc., LLB, joined Judicial Service on 07.09.1987. She worked as First Addl. Distt. Judge Morena, Executive Director (Law), Delhi Electricity Regulatory Commission, New Delhi (on deputation), Special Judge SC/ST Act and Additional District Judge, Gwalior, District and Sessions Judge, Ashok Nagar. At present she is working as a District & Sessions Judge, Datia since 03.07.2017.

Shri Deepak Kumar Agarwal, B.Sc., LLB, joined Judicial Service on 01.09.1987. He worked as Addl. Distt. & Session Judge, Indore, Special Judge Atrocities, Bhind District & Sessions Judge, Balaghat. At present he is working as a District & Sessions Judge, Gwalior since 01.12.2018.

Shri Rajendra Kumar (Verma), B.A, LLB, joined Judicial Service on 28.09.1987. He worked as President District Consumer Disputes Redressal Forum, Khandwa, Secretary Law & Legislative, Govt. of MP, Bhopal, Additional District & Sessions Judge, Dewas, District & Sessions Judge, Ailrajpur, Rajgarh Principal Judge, Family Court, Bhopal, At present he is working as District & Sessions Judge, Bhopal since 01.12.2018.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., addressed a matter in regard to child pornography.

An instant petition for anticipatory bail was filed.

Prosecutions’ Case

Petitioner browsed, downloaded and transmitted child pornographic material by using Airtel sim through his e-mail and Facebook Account.

Child Pornography an offence or not?

It is stated that viewing pornography privately will not constitute an offence. As of date, no provision exists that prohibits such private acts and there are even some that elevate it as falling within one’s right to free expression and privacy.

Section 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography.

 Whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished.

Therefore, even viewing child pornography constitutes an offence.

How the offending activity that took place in a private place came to light?

As per a news report quoting a police officer warning citizens that they must understand that activities on cyber space are always monitored.

It was stated that there is an international NGO called NCMEC (National Center for Missing & Exploited Children) and it maintains a Cyber Tipline. There is a Memorandum of Understanding between the National Crime Records Bureau (NCRB), India and NCMEC, USA and that provides access to the material available with NCMEC. One such Tipline report sent to the respondent police implicated the petitioner.

Further, it was noted that the said occurrence took place almost one year back and appeared to be a one-off act. Hence petitioner was directed to hand over his phone and sim card and other involved devices to the respondent.

Court expressed that custodial interrogation was not warranted.

Expressing that Child Pornography is a serious issue warranting a firm approach, Bench added that it would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in the digital domain.

It is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option.

 Though Central and State Governments are mandated to spread awareness under Section 43 of the POCSO Act about the provisions of the State, yet alone the same may not be sufficient since the “Big Brother” watching us may not deter those who are determined to indulge in such acts.

Adding to the above, it was stated that moral education is the only way out.

It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.

 [P.G. Sam Infant Jones v. State, 2021 SCC OnLine Mad 2241, decided on 11-06-2021]

Advocates before the Court:

For Petitioner: Mr. Venkateshwaran. R.

For Respondent: Mr. T. Senthilkumar, Government Advocate (Crl.Side)

Case BriefsForeign Courts

Ireland, Supreme Court: Full bench of Clarke C.J. and  O’Donnell, Mac Menamin, Charleton and O’Malley, JJ., made a very significant observation that as per VAT act, 1972 wherein ‘bread’ has been defined very specifically and a pertinent clause contained in the said provision is that the amount of sugar in bread shall not exceed 2% of the weight of flour included in the dough, whereas the bread supplied by Subway in its heated sandwiches had a sugar content of 10% of the weight of the flour included in the dough.”, hence the same could not be categorized as bread.

Instant appeal arose from a claim submitted to the Revenue Commissioners (respondent) by Bookfinders Ltd. (appellant) which is a franchisee of the fast-food chain, Subway.

Appellant sought refund of VAT payments as the same should have been subjected to 0% VAT.

Under Section 11(1)(a) of the Value Added Tax Act 1972, exceptions were provided for certain goods and services to be charged at 13.5% and 0%. Further, appellant alleged that much of its turnover falls under para (xii) of the Second Schedule and thus should be charged at 0%.

Para. (xii) of the Second Schedule reads as follows: –

 “food and drink of a kind used for human consumption, other than the supply thereof specified in paragraph (iv) of the Sixth Schedule, excluding –

 (a) beverages chargeable with any duty of excise specifically charged on spirits, beer, wine, cider, perry or Irish wine, and preparations thereof,

(b) other beverages, including water and syrups, concentrates, essences, powders, crystals or other products for the preparation of beverages, but not including

(I) tea and preparations thereof;

(II) cocoa, coffee and chicory and other roasted coffee substitutes, and preparations and extracts thereof,

 (III) milk and preparations and extracts thereof, or

 (IV) preparations and extracts of meat, yeast, or egg; […]

 (d) (I) chocolates, sweets and similar confectionary (including glacé or crystallised fruits), biscuits, crackers and wafers of all kinds, and all other confectionary and bakery products whether cooked or uncooked, excluding bread,

(II) in this subparagraph ‘bread’ means food for human consumption manufactured by baking dough composed exclusively of a mixture of cereal flour and any one or more of the ingredients mentioned in the following  subclauses in quantities not exceeding the limitation, if any, specified for each ingredient-

(1) yeast or other leavening or aerating agent, salt, malt extract, milk, water, gluten,

(2) fat, sugar and bread improver, subject to the limitation that the weight of any ingredient specified in this subclause shall not exceed 2 per cent of the weight of flour included in the dough,

(3) dried fruit, subject to the limitation that the weight thereof shall not exceed 10 per cent of the weight of the flour included in the dough, other than food packaged for sale as a unit (not being a unit designated as containing only food specifically for babies) containing two or more slices, segments, sections or other similar pieces, having a crust over substantially the whole of their outside surfaces, being a crust formed in the course of baking, frying or toasting…’

Para. (iv) of the Sixth Schedule then reads as follows:-

“the supply of food and drink (other than bread as defined in subparagraph (d), of paragraph (xii) of the Second Schedule) (other than beverages specified in subparagraph (a) or (b) of paragraph (xii) of the Second Schedule) which is, or includes, food and drink which-

(a)  has been heated, enabling it to be consumed at a temperature above the ambient air temperature, or

(b)  has been retained heated after cooking, enabling it to be consumed at a temperature above the ambient air temperature, or

(c)  is supplied, while still warm after cooking, enabling it to be consumed at a temperature above the ambient air temperature, and is above the ambient air temperature”.

Summary of Issues

  • Whether the tea and coffee supplied by Bookfinders fall within para (xii) of the Second Schedule?
  • Whether “Food and Drink” must be read conjunctively?
  • Whether the appellant’s bread can be said not to be included in para (xii) of the Second Schedule ( and thus in the 0% rate)?
  • Whether the principle of fiscal neutrality is breached or indeed even engaged in the present matter?

Present matter is not a case of contest between a simple requirement of clarity on one hand and a broad purposive approach on the other.


Bookfinders argued that para. (xii) of the Second Schedule contains the only express reference to tea and coffee which they describe as “the tea and coffee saver”.

Objective of the Second Schedule was to provide that certain staples were to be included at the 0% rate. The object of the Sixth Schedule — to apply a reduced rate in certain cases, most obviously, in this context, the supply of hot food and beverages.

From a class of goods included in the broad category of food and drink of a kind used for human consumption, certain and specified items are then subtracted which fall to be rated at the general VAT rate, unless either specifically exempted, or included, in the Schedule containing items to be rated at the intermediate rate.

Adding to the above, it was explained that the Sixth Schedule is in general terms in that it captures the supply of food and drink (other than bread and beverages as defined) which have been heated, retained heated, or supplied when warm.

Bench stated that the Second Schedule included leaf tea and ground coffee etc. sold in packet form. There was nothing unnatural about the division of two schedules. It was entirely understandable that the legislature would wish to zero-rate teas and coffees when sold in a retail setting, but apply the intermediate level in the context of, for example, takeaway foods.

The provision of para. (iv) of the Sixth Schedule is directed to all food and drink with the exception of those items specified. The statutory phrase does not merely refer to food and drink which has been heated, but rather to such food and drink which is heated to enable it to be consumed at temperatures above ambient temperature.

The effect of the Second Schedule is to provide that a wide range of food and drink, broadly speaking staples, will be subject to the 0% rate. The effect of the exclusion of the large number of products identified in the Second Schedule from the category of food and drink covered by the Second Schedule is that they would remain taxable at the standard rate.

Food and Drink – To be read Conjunctively?

Bookfinders argued that the phrase “food and drink” in para. (iv) of the Sixth Schedule should be given a conjunctive rather than disjunctive meaning, so that it would only capture a supply of food and drink when supplied together, and not food or drink if supplied separately.

Bench did not agree with Bookfinder’s interpretation of the phrase.

Adding to the above it was stated that it would be difficult to conceive of any plausible reason why the supply of food with drink should attract the intermediate rate of VAT, and the supply of the same food or the same drink (without the other product) by the same establishment to the same person, would not.

It is apparent from other provisions of the Act to which reference is made and where the phrase is found that no added conjunctive significance is to be attributed to the word “and” in the phrase “food and drink”.

Hence, “food and drink” is used in the Act as a generic term to cover the supply of any individual item or items that can come within that broad category.

Bread and Sandwiches

Bookfinders argued that the hot-filled sandwiches supplied by them do not fall within the provisions of the fourth schedule.

Two aspects:

  • The bread in such sandwiches is “bread” as defined in para. (xii)(d) of the Second Schedule, and which is therefore expressly excluded from the provisions of para. (iv) of the Sixth Schedule by text inserted in 2005:- “the supply of food and drink other than bread as defined in sub paragraph (d) of paragraph (xii) of the Second Schedule …”
  • Hot sandwiches, such as a meatball sandwich supplied by Subway, constitute the supply of “food and drink [in this instance bread, if Bookfinders’ argument is accepted] which… includes food and drink which… has been heated enabling it to be consumed at a temperature above the ambient air temperature”. The “food” of the meatball being, it is said, included in the “food” of the bread.

Court expressed that the Second Schedule contained a complicated definition of an everyday product and it was stated that the intent of the Act in doing so was to seek distinguish between bread as a staple food, which should be 0% rated, and other baked goods are from dough, which are, or approach, confectionary or fancy baked goods.

Hence, para. (xii)(d) excludes from the class of food and drink entitled to the 0% rate “… all other confectionery and bakery products whether cooked or uncooked”, but from that exclusion in turn, “bread” is excluded, thus leaving bread within the class of food covered by the Second Schedule and entitle to the 0% rate.

“Bread is defined as follows in para (xii)(d)(II):

 It means food for human consumption manufactured by baking dough composed exclusively a mixture of cereal flour and any one or more of the ingredients mentioned in the following subclauses in quantities not exceeding the, limitation if any, specified for each ingredient –

  1. yeast or other leavening or aerating agent, salt, malt extract, milk, water, gluten,
  2. fat, sugar and bread improver, subject to the limitation that the weight of any ingredients specified in the sub clause shall not exceed 2 per cent of the weight of flour included in the dough,
  3. dried fruit, subject to the limitation that the weight thereof shall not exceed 10 per cent of the weight of flour included in the dough,
  4. other than food packaged for sale as a unit (not being a unit designated as containing only food specifically for babies) containing two or more slices, segments, sections or other similar pieces, having a crust over substantially the whole of their outside surfaces, being a crust formed in the course of baking, frying or toasting.”

Bookfinders argued that, when read closely, the definition only excludes a baked product which exceeds the limitation contained in the Act for each of the ingredients specified and which are used in the baking of the particular bread, and which are identified in para (xii).

Court’s function is to understand the provisions enacted by the legislature and give effect to them consistent with the principles of statutory interpretation and, in this case, the principle against doubtful penalisation.

Bench elaborated that when the entire provision is read together, it is, clear that if one ingredient exceeds the limitation, the resulting product falls outside the definition of “bread” for the purposes of the Act.

Supply by Bookfinders of a hot meatball sandwich (to take one example) should not be understood as coming within the “supply of food and drink … which includes food and drink which has been heated enabling it to be consumed” because the phrase “food and drink” is expressed to exclude “bread as defined in subparagraph (d) of paragraph (xii) of the Second Schedule”. The exclusion extends to bread (as so defined ) “which…includes food…which has been heated” et cetera.

Fiscal Neutrality

Bookfinders argues that the exclusion of their “bread” component from the category of “bread” as defined in the Second Schedule breaches the said principle.

In the present matter, the situation is complex since the product or item which was chargeable to VAT was not the bread component, but rather the heated sandwich in its entirety.

Hence, in Court’s opinion, the principle of fiscal neutrality was not engaged.

In view of the above discussion, appeal was dismissed. [Bookfinders Ltd. v. Revenue Commissioners, S:AP:IE:2019:000131, decided on 29-09-2020]

Appointments & TransfersNews

Appointment of Chief Justice of Allahabad High Court

President appoints Shri Sanjay Yadav, Judge of the Allahabad High Court, to be the Chief Justice of the Allahabad High Court with effect from the date he assumes charge of his office.


Shri Justice Sanjay Yadav, M.A., LL.B, was enrolled as an Advocate on 25-08-1986. He practiced at Jabalpur for 20 years in Civil, Constitutional, Labour and Service matters and has specialized in Labour and Service matters. He worked as Government Advocate from March 1999 to October 2005. He was Deputy Advocate General with effect from October 2005. He was appointed as an Additional Judge of the Madhya Pradesh High Court on March 2, 2007, and as a Permanent Judge on January 15, 2010. Later, he was transferred to Allahabad High Court. He was appointed as Acting Chief Justice of Allahabad High Court w.e.f. 14-4-2021.

Ministry of Law and Justice

[Notification dt. 10-06-2021]

High Court Round UpLegal RoundUp

Here’s a short recap of what we covered under the High Court’s section in the month of May 2021.

Allahabad High Court


All HC | Bail under Gangs Act. Whether satisfaction under S. 19(4)(b) is mandatory? Court answers


All HC | District Magistrate, Ghaziabad to file a personal affidavit in alleged black marketing and illegal sale of sale oxygen to Delhi & Haryana from Ghaziabad

Court observes state’s health system is “Ram Bharose”, gives suggestions to improve vaccination rate and health infrastructure

All HC| “Right to life of an accused person can not be put to peril”; Apprehension of being infected with COVID-19 after coming into contact with authorities a valid ground for anticipatory bail

All HC| Court directs creation of Pandemic Public Grievance Committee and takes stock of Covid 19 situation in UP

Agreement of Marriage

All HC | If a minor girl enters into an “agreement of marriage”, what would be the legality of such agreement? Option to ratify or rescind would be available? HC throws light in view of Ss. 11 and 23 of Contract Act

Andhra Pradesh High Court


AP HC | Right to contest election is fundamental, subject to qualifications: No relief to petitioners attaining min. age after elections notified

Bombay High Court


Bom HC | “Modern ventilators, Doctors are not properly trained to operate”; HC raps centre for blame game on PM Cares Ventilators

Bom HC | 75% ventilators supplied through PM Cares Fund found dysfunctional; HC seeks response from Center

Bom HC | “Take immediate actions against e-commerce websites for supplying non-essential items”, HC directs Maharashtra government

Bom HC | Corporate Social Responsibility, Mucormycosis and shortage of drugs, HC urges Central Drug Controller to increase production capacity and reduce prices of drugs

Bom HC | “Are you prepared to introduce door to door vaccination for senior citizens?” HC sanctions door to door vaccination after noticing center’s disinclination to formulate a universal scheme

[Remdesivir shortage] Bom HC | “How such drug in such short supply, is available to Politicians and Actors for distribution to public at large?”HC pulls up state over inadequate crisis management

Bom HC | Do not insist on production of Aadhar Cards by correctional home inmates for Vaccination, HC directs State

Bom HC | “Article 21 casts corresponding duty on State to ensure no life is extinguished due to unavailability of oxygen”; HC tells State

Bom HC | Allow entry in Goa for medical emergency even without Covid negative certificate; HC modifies its earlier order. Deprecates DMs for amending Court orders on their own

Bom HC | Biovet Pvt. Ltd. allowed to use idle vaccine manufacturing unit for Covaxin production; directs Maharashtra to cooperate

Bom HC | “Not a case of sealing the borders”; HC tells State to ensure person entering in Goa carry a Covid-19 “negative” certificate

Hate Speech

Bom HC | “Extreme or harsh opinion is not a hate speech”; HC quashes FIR against Sunaina Holey terming it “hypersensitive and over cautious”

Search Warrant

Bom HC | What is proper procedure for executing a search warrant in a jurisdiction outside of issuing court? HC decides whether Ss. 101 and 105 CrPC are directory or mandatory

Calcutta High Court

Narada Scam

[Narada Scam Case] Cal HC| Court gives split verdict in relation to interim bail application; TMC leaders put under house arrest

Post-Poll Violence

Cal HC| Bengal Post Poll violence victims at liberty to file complaint at NHRC, WBHRC, NCW etc; Court directs the complaints be forwarded to DGP

Cal HC| Life and liberty of the people in the State of West Bengal is at stake; Court constitutes 5 Judge Bench

CM Mamta Banerjee’s Dharna at CBI office

Cal HC| CM Mamta Banerjee’s Dharna at CBI office: Public trust and confidence in the judicial system is more important; Mob cannot have an upper hand. TMC leaders’ bail stayed

Chhattisgarh High Court


Chh HC │ Redistribution of unused Antyodaya or other category vaccines at the end of the day: HC agrees to hear the matter. Read the current Vaccine Allocation plan

Chh HC │ Fixing a priority with reference to the ‘financial status’ is absolutely illegal; Violates “Right to Life”; State is directed to fix a reasonable ratio of allotment of vaccines

Judicial Separation

Chh HC | Judicial separation in place of divorce not to be granted mechanically in applications for divorce by mutual consent; Serious dispute not pre-requisite for seeking mutual consent

Delhi High Court

Arms Act

Del HC | If a firearm is recovered from possession of a person at the airport which he/she is unaware of can the person be punishable under S. 25 of Arms Act? HC answers


Del HC | Can International Arbitration Award be assailed on ground of patent illegality? Is it permissible for arbitrator to award compound interest? HC answers


Del HC | Government should consider waiver of complete Customs and other duties on the import of Amphotericin B; Imports to be done through a bond until the decision

Del HC | Seizure by police of oxygen concentrators and covid related equipment’s sold at high profit margins. Is it illegal? HC answers

Del HC | Movement of Advocates allowed during curfew on production of valid Bar ID Card; No officer of any authority shall humiliate Advocates on production of valid ID Card

Del HC | “I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

Del HC | Breath Analyser Tests prejudicial to the interests of Air Traffic Controllers and Commercial Pilots during COVID 19; Court asks DGCA to issue comprehensive guidelines

Del HC | Threefold increase in cases in JNU campus in 3 weeks! What steps have you taken? Court asks JNU Registrar to file status report

Del HC | Union of India, Delhi Government asked to take immediate steps to ensure allocation of Tocilizumab 400 MG to States/UTs×5

Del HC | With about 150 out 200 beds being vacant, Delhi Govt asked to consider converting IHBAS into COVID facility

Del HC | ‘Release imperative in this hour of grief and personal loss’; Natasha Narwal gets bail for 3 weeks after father dies of COVID-19

Del HC | Exempt the employees dealing with medical and health insurance services from curfew restrictions; HC tells government of NCTD

Del HC | Severe shortage of Tocilizumab injections; 500 vials would not be sufficient for large number of critical COVID-19 patients in Delhi

Del HC | “Consider exempting Oxygen Concentrators from IGST”, HC tells Finance Ministry

Delhi HC comes down heavily on Central government; Warns Center of contempt proceedings if it fails to supply allocated medical Oxygen on urgent basis

Contempt Notice

Delhi HC issues Contempt notice to Center for non-supply of oxygen to NCT of Delhi

Foreign Contribution (Regulation) Act

Del HC | Are exemptions and relaxations under different Statutes a matter of right? Is it Government’s prerogative to exempt with or without stringent conditions under Foreign Contribution (Regulation) Act? Read on

Sexual Assault

Del HC | In a case of sexual assault, can Court act upon the testimony of a child victim? Can accused be convicted based upon the same? Read on

Migrant Workers

Del HC | Migrant Workers’ right to livelihood and free Medical aid; High Court directs Delhi government to form a structured Scheme for Unorganized workers within 2 weeks

Judicial System

Del HC | Any judicial system which does not provide finality to disputes, can never earn the trust, confidence and goodwill of the society: HC highlights ‘Consent Decree’ and ‘Lawful Compromise’

Right to be Forgotten

Del HC | Can a Court Order be removed from Online Platforms? HC to examine Right to Privacy and Right to Information of the Public and Maintenance of Transparency

Shared Household

Del HC | ‘Permanency’ as an element of ‘Shared Household’ concept under Domestic Violence Act: Can old-aged parents-in-law be restrained from selling their house in light of shared household consequences? Read Court’s proposition

Gauhati High Court


Gau HC | “What kind of test is being done for determination of COVID-19 infection?”; HC directs Assam government to set up Mobile Medical Units in Tea Gardens

Gau HC| People with insurance cover suffering from COVID denied treatment at private hospitals; Court to hear PIL

Gau HC | Court directs High Powered Committee to consider temporary release of female jail inmates with children


Gau HC | “Prima facie her personal views”; HC grants bail to the writer charged with sedition for her facebook post on maoist attack in Chhattisgarh

Gujarat High Court

Section 138 NI Act

Guj HC | Can offence under S. 138 NI Act compounded even after accused is convicted and sentenced to imprisonment? Read HC’s ruling

Himachal Pradesh High Court

Motor Vehicles Act

[MV Act] HP HC│ Once a document has been admitted in evidence; any objection regarding its admissibility or mode of proof later is irregular


HP HC │ A minor girl raped, male friend beaten up, act video graphed and made viral; Clearly points to the perverted mind of the accused; Bail rejected

HP HC│ “NO MEANS NO”; Neither the absence of resistance nor the unwilling submission implies consent in any language; Bail rejected


HP HC │ War against the COVID is not to be fought by the Government alone; Private hospitals should not shirk from their duties and responsibilities; Specific Directions laid

Jammu and Kashmir High Court


J&K HC| Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more

Section 138 of Negotiable Instruments Act

J&K HC | Is ‘mens rea’ an important component to be proved while addressing issues under S. 138 NI Act? Explained

Inter-Faith Couple

J&K HC | Hindu woman embraces Islam to marry a Muslim man; HC grants protection to the inter-faith couple


J&K HC | “Consider making additional budgetary allocation for financial assistance of lawyers’ family”; HC tells Center

Preventive Detention

J&K HC | “Non-application of mind by detaining authority is fatal” HC sets aside order of preventive detention for alleged involvement in militant activities


J&K HC | “Rs. 2000 maintenance is not ‘exorbitant or excessive’ in present era of inflation”; HC questions existence of Talaq given through registered post.

Jharkhand High Court


Jhar HC │ Mandatory E pass requirement does not suffer from infirmity; Decision taken to combat the situation of acute surge in COVID-19 infection by exercising the power conferred under Disaster Management Act

Jhar HC| “Oxygen cylinders are of prime importance in saving life”; HC issues directions for release of Oxygen cylinders lying in judicial custody


Jhar HC│ Jharkhand Govt. must ensure that EIA is undertaken and Environment Management Plan prepared; All construction activities without prior environmental clearance to be stopped

Karnataka High Court


Kar HC │ Labs to give COVID results within 24 hours; Directions issued regarding dignified burial/ cremation,Vaccine Scarcity and its Allocation and Food Security; KSLSA COVID Monitoring Committee Report submitted


Kar HC │ Can the statement recorded under Section 164 of CrPC be considered to be evidence under Section 35 of the POCSO Act? Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

Motor Vehicles Act

[MV Act] Kar HC │ Necessary permits for running the business of bike taxis as transport vehicles: Can’t decide on this an emerging concept before application of mind by State on all aspects


Kar HC│ One of the most profound tenets of Constitutionalism is presumption of Constitutionality assigned to each legislation enacted

Kerala High Court

Kerala Conservation of Paddy Land and Wetland Rules

Ker HC | “Area of the building is extraneous for grant permission for residential/commercial use”; HC holds Rule 12(9) of Conservation of Paddy Land and Wetland Rules ultra vires the Act

Swearing-in Ceremony | Elected Government

Ker HC| “Why spouses or relatives of each MLA are required to be present in the ceremony?”; HC allows physical Swearing-in ceremony of newly elected government with certain restriction

Registration of Marriage

Ker HC | Court allows Malayali couple stuck in Israel to register their marriage in Kerala via video conferencing


Ker HC | Release of controversial Malayalam film “Aquarium” stayed till further order apprehending it to be defamatory to Catholic Christians and nuns

Extra-Judicial Divorce

Ker HC | Muslim women’s right to Khula (extra-judicial divorce) revived; Patriarchal decision in K. C. Moyin overruled

Right to Practice

Ker HC | CAs Right to Practice: Can ICAI refuse to recognize retirement of CA from a firm? HC explains legal position

Madras High Court


Madras HC | Predatory activities of man resulting in nature losing her patience. Can hills and hillocks be given for exploitation even without any public interest? Succinct Report on Mining lease to carry Quarry Operations


Madras HC | “Not fair to expect judges to expend too much time, energy in proof-reading”: HC stresses counsels should reflect ‘distilled understanding’ while preparing drafts

Malicious Prosecution

Madras HC | Who is liable in suit for malicious prosecution; what is duty of civil court; where lies onus of proof? HC answers all,  says no ‘second agnipariksha’ for plaintiff

Domestic Violence Act

Madras HC | Can Criminal Proceedings instituted under DV Act be converted as Civil Proceedings, so as to transfer such proceedings before Civil Court or Family Court while exercising supervisory powers under Art. 227 of Constitution? Read on


Madras HC | Resistance in certain sections of society to accept COVID-19 vaccine: Centre & State to take appropriate measures to allay misgivings. HC highlights issues on Oxygen supply, Cyclone ‘Yaas’, Mucormycosis & more

Madras HC | While distributing COVID-19 relief packages, ruling political party symbol should not be displayed: No political flavour to be given

Madras HC | COVID-19 assistance of Rs. 4000 to transgenders without a ration card: Notice issued to State Govt

Madras HC | Why are you not reviving Govt. Vaccine Institutes and Oxygen Plants? Notice to Govt as India faces vaccine and oxygen shortage

Decree of Divorce

Madras HC | 25 long years of separation, but no decree of divorce granted – Why? Read whether HC dissolves the marriage or not

Religious Procession

Madras HC| People can be religious; Men may be communal; but roads and streets are secular; Religious procession cannot be prohibited in an area inhabited by a different religious group

Madhya Pradesh High Court


MP HC | Police cannot take inappropriate disciplinary action and subject citizens to torture for not following lockdown norms; Court directs action

MP HC | Global tender issued by the different State Governments have failed to yield in positive result, Centre should take responsibility; Court continues hearing petitions regarding Black Fungus, Remdesivir, Vaccination etc

MP HC | Seized Remdesivir injections to be distributed to general patients; HC asks State to report on unused ventilators and fixation of charges in private hospitals

MP HC | Will Madhya Pradesh invite global tender for COVID-19 vaccines? HC seeks response from Government

MP HC | Advocate, located anywhere in the State, may apply for passes for himself or his staff, for attending office during the ongoing lockdown

National Security Act

MP HC | In case of violation of Food Safety and Standard Act, 2006 (FSSA), the provisions of NSA could be invoked? Court answers


MP HC | District Judiciary is extremely tight-fisted when it comes to granting bail, leads to burden on the High Court; Directions on arrest and bail issued to Police; Judicial Magistrates

Orissa High Court


Ori HC │ Children in Conflict with Law: JJ Act distinguishes between children below and above 16 years of age with regard to enquiry but not for the purpose of bail

Ori HC │ Exercise of suo motu power by Orissa High Court for designation of “Senior Advocates” ultravires the guidelines laid down Indira Jaising case; Power to Add/Delete/Modify in Rules lies only with Supreme Court

Patna High Court

Contempt Proceeding

Pat HC | “It’s a very serious matter that three Bangladeshi girls are kept in Nari Niketan”; HC warns Home Ministry of contempt proceedings for being unresponsive to Court queries

Senari Massacre

Pat HC | After 22 years of barbarous Senari Massacre the Court hands clean chit to 13 accused; HC reverses Trial Court’s order of death sentence

False Affidavit

Pat HC | 789 died in Buxar in 10 days while government records showed only 6 deaths; HC warns State of taking actions for filing false affidavit


Pat HC | “Migrants are returning, people in the rural area may get infected.” HC directs State to ensure availability of medicines and infrastructures at the district level

Pat HC | “Failure to provide timely treatment is antithetical to Article 21”; HC to State. Panchayat officials warned that failure to report deaths within 24 hrs may cost their posts

Pat HC | “Most of the directions have remained on paper”; HC expresses disappointment over State inactions

Punjab and Haryana High Court

Inordinate Delay in Investigation

P&H HC | Why is there inordinate delay in investigation? HC slams State for pendency of cases against Ex MPs/MLAs including Ex CM Bhupinder Singh Hooda


P&H HC |“Grisly and frightful! One can only hope it is fictitious”; HC calls it insensitive and deplorable to constitute all men SIT to investigate Rape allegation

Live-in Relationships

P&H HC | After two orders calling Live-in-relationships unacceptable, HC holds live-in couples are entitled to equal protection of laws as any other citizen

P&H HC | “Entire social fabric would be disturbed”; HC yet again refuses to grant protection to a live-in couple

P&H HC | ‘Live-in-relationships morally and socially unacceptable’; HC refuses to pass protection order to a live-in couple


P&H HC | “Ask the corporate houses to participate in fighting the crisis”; HC asks States to invoke Corporate Social Responsibility

P&H HC | “Consider home delivery of Oxygen cylinders for patients who are on oxygen support at home”; HC suggests deploying municipal workers for home delivery of oxygen

Rajasthan High Court


Raj HC | “Over enthusiasm of attaining professional excellence should not stifle the speech of a student”; HC slams ICAI for withholding result of a student for criticizing the Institute


Raj HC | Court dismisses application of temporary suspension of sentence to Asharam; followers cause law and order situations


Raj HC │”Deal with the situation on war footing”; Directions issued to curb beds, oxygen, Remdesivir shortage in Rajasthan

Telangana High Court

Trademark Dispute

[Name-Logo Dispute] Telangana HC | ‘GSK’ being widely known mark: GSK Life Sciences (P) Ltd. ordered to suitably delete word ‘GSK’; No violation of S. 35, TM Act found


Telangana HC | If one of spouses in a marital relationship is found to be guilty of infidelity, would it amount to causing mental cruelty to the other spouse? HC highlights concept of mental cruelty & desertion

Tripura High Court


Tri HC | State must ensure that the health those in jails and orphanages is not jeopardized; Directions issued to devise plans

Tri HC | Court takes suo moto action, asks State to provide detailed data to tackle with second wave of COVID 19

Sexual Harassment at Workplace

Tri HC | Tribunal is the court of first instance; Not open for the litigant to approach the High Court as a court of first instance

Service Matter

Tri HC | Claim of regularization can be made only within the four corners of a scheme framed by the government

Uttaranchal High Court


Utt HC | Degree of M.A. in Public Administration equivalent to a degree of M.A. in Political Science as per UGC; UKPSC directed to consider candidature for appointment as Assistant Professor


Utt HC | Bail is the rule and committal to jail is an exception; Court grants bail to accused in Scholarship Scam

Audi Alteram Partem

Utt HC | Order passed without giving an opportunity to be heard gross violation of natural justice; Court quashes order passed by Registrar

Admission Criteria

Utt HC | Can admission be denied if the selection process does not specify cut off marks? Court answers in AIIMS, Rishikesh PG Diploma Course

Principle of Interpretation

Utt HC| Principle of interpretation states that each part of the statute, rules or regulations should be given meaning so as to make them workable; Court quashes advertisement for recruitment for post of Assistant Clerk.

Briefs Prepared by: Prachi Bharadwaj, Nilufer Bhateja, Devika Sharma, Suchita Shukla, Kamini Sharma and Arunima Bose.