OP. ED.SCC Journal Section Archives

Irrespective of what era we are living in, who the rulers are, what the mode of governance is, this is one topic which is never going to lose its sheen and relevance. Because, the story of “Rule of Law” is nothing but the story of civilisation of humans.

When talking about “Rule of Law”, it is necessary to first understand what the law is. Law, in its most general sense, is a tool of social control which is backed by the sovereign. However, is this definition complete in itself? I would think not. Such a definition of law makes it a double-edged sword. It can be used not only to render justice, it can also be used to justify oppression.

Renowned scholars have therefore argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity. An “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others.

What is clear is that both these thoughts highlight certain facets of what is meant by the term “law”. I think that any law backed by a sovereign, must be tempered by certain ideals or tenets of justice. Only a State that is governed by such law, can be said to have the “Rule of Law”.

The legal history of pre-Independence India gives us a clear picture of this. The British colonial power enacted various laws to further their economic and political interests, at the cost of the colonised. The British used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians. It was an enterprise famous for “Rule by Law”, rather than “Rule of Law” as it aimed at controlling the Indian subjects. Judicial remedies lost their significance, as they were administered keeping in view the best interests of the colonial power, rather than what was just or legal.

The historical trial of Raja Nand Kumar in 1775, a case famously recounted as the “Judicial Murder of Raja Nand Kumar” amply demonstrates this. Raja Nand Kumar had accused the then Governor General Warren Hastings of receiving bribe. Shortly after this incident, charges of forgery were preferred against Raja Nand Kumar. On 15-6-1775, Raja Nand Kumar was found guilty of the charges and was awarded the capital punishment by Chief Justice Impey, a close aide of Warren Hastings. The trial had many peculiarities: such as instead of being tried before the local court by local men he was tried by a British Judge and jury, who arguably did not have jurisdiction. Historians have later stated that Raja Nand Kumar paid the price for daring to accuse the Governor General Warren Hastings.

Around 150 years later, there was a growing consciousness about the values of liberty, equality, justice and fraternity. As part of persistent and organised campaign for the freedom, the Indian masses were increasingly made aware of how unjust and oppressive the discriminatory laws of the colonisers were. In 1922, during his famous trial, Mahatma Gandhi captured the imagination of the nation with the following words:

Little do they realise that the Government established by law in British India is carried on for this exploitation of the masses …. In ninety-nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India.

He thus concluded, “In my opinion, the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”

Our struggle for Independence thus marked our journey towards establishment of a State defined by the “Rule of Law”. The move from a colonial past to the present required a shift from the colonial idea of laws imposed by foreign rulers for their benefit, to laws given by our people to govern themselves, laws which are not merely commands but are also embodied by a sense of justice. There was a need to give guarantee for the laws to be framed with a human face for the benefit of the masses. A framework was needed to ensure this. The framework that which forms the binding link between law and justice in this country. That is what “We the people” gave to ourselves in the form of the Constitution.

When the framers set out to draft the Constitution, the existing social conditions played a crucial role. The newborn country was faced with enormous challenges such as illiteracy, poverty, immense religious, ethnic, linguistic and social diversity. The framers envisaged a document which not only took care of the prevailing conditions but would also continue and be relevant for all times to come. It is therefore, conceived as a living document whose contents evolve over the years, as the courts deal with new situations and question and interpret the Constitution in the light of the same.

The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the fundamental rights, the directive principles of State policy, the separation of powers, etc. By situating the concept of Rule of Law at the confluence of three important values — human dignity, democracy and justice, our Founding Fathers showed the path for the rest of the world too.

In its 1955 “Act of Athens”, the International Commission of Jurists explicitly stated the “State” has to be subject to the law. Subsequently in the year 1959, under the support of the same Commission, International Congress of Jurists — consisting of 185 Judges, practising lawyers and teachers of law from 53 countries — convened in New Delhi and issued the “Declaration of Delhi”, which is one of the seminal documents on rule of law. After reaffirming the “Act of Athens” and particularly the need for a completely independent judiciary, the International Congress of Jurists declared that the rule of law “is a dynamic concept which must be employed to safeguard and advance the civil and political rights of individual in a free society.”

Now, more than 70 years down the line, the entire world is facing an unprecedented crisis in the form of Covid-19. At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and, welfare of all of our people. I do not intend to provide an evaluation of the same. Both my office and my temperament prevent me from doing so. But I began to feel that this Pandemic might yet be a mere curtain raiser to much larger crises in the decades to come. Surely we must at least begin the process of analysing what we did right and where we went wrong.

Coming back to the topic, from within the perspective of legal positivism, many conceptions of Rule of Law have emerged. From Dicey to Lord Bingham, different formulations of principles informing the concept of rule of law have been made. It would be impossible to adequately address the rich tapestry woven by human intellect in this area in the course of a speech. However, I thought it would be relevant to emphasise four principles, given the current events across the globe.

The first principle is that “laws must be clear and accessible”. This is the fundamental point that when laws are expected to be obeyed, the people at least ought to know what the laws are. There cannot therefore be secretive laws, as laws are for the society. Another implication of this principle is that they should be worded in simple, unambiguous language. In furtherance of the above principle, in India we are constantly striving to make legislations and judgments accessible to general public by translating them into various Indian languages.

The second principle relates to the idea of “equality before the law”. Laws are to be applied on an equal basis in a non-arbitrary fashion. This is, of course, an important fundamental right promised under the Indian Constitution.

An important aspect of “equality before law” is having equal “access to justice”. I must emphasise that, in a democratic country like ours, access to justice forms the bedrock of the “Rule of Law”. However, this guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness. In India, the Legal Aid Authority is estimated to serve more than 70% of the population who are entitled for free legal aid, making the Indian Legal Aid system one of the largest in the world.

Another aspect I want to highlight over here, which might be a bit of a tangent but is certainly very important, is the issue of “gender equality”. Traditional roles are changing within the family, as is the structure of the family itself. Most nations have recognised equality and dignity of women, either constitutionally or statutorily.

The legal empowerment of women not only enables them to advocate for their rights and needs in society, but it also increases their visibility in the legal reform process and allows their participation in it.

Bias and prejudice necessarily lead to injustice, particularly when it relates to the minorities. Consequently, the application of the principles of Rule of Law in respect of vulnerable sections has to necessarily be more inclusive of their social conditions that hinder their progress.

This leads me to the third principle, which is that members of society have the “right to participate in the creation and refinement of laws” that regulate their behaviours. We live in a democracy. The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them. In India, it is done through elections, where the people get to exercise their universal adult franchise to elect the people who form part of Parliament which enacts laws. Incidentally, we, the Indian people gave ourselves the Universal Adult Franchise from day one of the coming into existence of our Republic, unlike some of the “advanced democracies”.

In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 per cent of number of general elections. In spite of large-scale inequalities, illiteracy, backwardness, poverty and the alleged ignorance, the people of Independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well. Now, it is the turn of those who are manning the key organs of the State to ponder if they are living up to the constitutional mandate.

It has always been well-recognised that the mere right to change the ruler, once every few years, by itself need not be a guarantee against tyranny. The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy. A public discourse, that is both reasoned and reasonable, is to be seen as an inherent aspect of human dignity and hence essential to a properly functioning democracy. As Professor Julius Stone observed in his book The Province of Law, elections, day-to-day political discourses, criticisms and voicing of protests is integral to the democratic process.

The idea of the judiciary, as a “guardian of the Constitution, brings me to the fourth and final principle — the presence of a “strong independent judiciary”.

The judiciary is the primary organ which is tasked with ensuring that the laws which are enacted are in line with the Constitution. This is one of the main functions of the judiciary, that of judicial review of laws. The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that Parliament cannot curtail the same.

But the importance of the judiciary should not blind us to the fact that the responsibility of safeguarding constitutionalism lies not just on the courts. All the three organs of the State i.e. the executive, legislature and the judiciary, are equal repositories of constitutional trust. The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory. At the same time, Judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what majority believes in. The new media tools that have enormous amplifying ability are incapable of distinguishing between right and wrong, good and bad and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is therefore extremely vital to function independently and withstand all external aids and pressures. While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions.

The above, however, should not be understood as meaning that Judges and the judiciary need to completely disassociate from what is going on. Judges cannot stay in “ivory towers” and decide questions which pertain to social issues.

The oath we took, to perform our duties “without fear or favour, affection or ill-will”, applies equally to governmental and non-governmental entities. The ultimate responsibility of a Judge is, after all, to uphold the Constitution and the laws. Reason, reasonableness and protection of human dignity are the values that will serve us well.

I would now like to speak on the role of lawyers in upholding the “Rule of Law”. It demands expertise, experience and commitment. Lawyers have an obligation to perform their duties with integrity and diligence, with full respect for the court, opposing counsel, clients, victims, witnesses and persons involved in the proceedings. We need social-virtue rather than economically self-interested behaviour.

Historically, lawyers have a rich tradition of social activism demonstrated by the number of lawyers who participated in the Indian freedom struggle. In part, this civic virtue stems from their having had a public-minded clientele. We need now to rebuild and recreate a tradition of civic professionalism. We need a professional ideology about social responsibility. Here, I would urge both young and senior counsel to extend a helping hand to those in need of justice. Extending ease of access to justice is no less a social justice. Let economy, gender, class or caste never be a hinderance in the path to secure justice.

Undoubtedly, reverence for the “Rule of Law” is our best hope for survival as a free society. In order to advance the “Rule of Law” we primarily need to create a society where “Rule of Law” is respected and cherished. Only when the citizens believe that they have fair and equal access to justice, can we have sustainable, just, inclusive and peaceful societies. Citizens can strengthen the “Rule of Law” by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed.

I am taking the liberty to quote in Telugu, Maha Kavi Gurajada Appa Rao, a great poet and reformist of 19th/20th century. He said, and I quote:“Desamamte Matti Kadoi, Desamamte Manushuloi”. Gurajada gave a universal definition to the concept of nation. He said “a nation is not merely a territory. A nation is essentially its people. Only when its people progress, the Nation progresses.”

You are the stewards of this nation and custodians of a very rich tradition. I hope that you contribute by way of giving back something to this society, to this great nation which has bestowed you with so many privileges. I must lastly state that the work of ensuring complete justice as aspired to, under the Constitution can never be said to be completed. The mandate of our Constitution is to work tirelessly to surpass our own expectations, to make India a country wherein rights are cherished, and which sets an example for other countries to follow. There is no better way to end this speech on “Rule of Law” than reciting a poem by Kaviguru Ravindranath Tagore,

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.


* The author would like to acknowledge, Ms Sanskruti Samal and Mr Sulakshan Sampath Vedartham for their research assistance.

The Hon’ble the Chief Justice of India. 17th P.D. Desai Memorial Lecture delivered on 30-6-2021.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

The petitioner had filed the writ petition for issuance of direction or order to not deprive and violate the fundamental right of the petitioner, to live with dignity and mental peace and not to disrupt the supply of basic needs and essential services and for uninterrupted ingress and egress to his residence in the society complex, and further maintain rule of law.

Factual Background

The petitioner was residing in the co-operative Group Housing Society having 120 members. The said members were allotted dwelling apartments and the Society was managed by respondent 2.

The claim of the petition was that he had an abode in the Society and was suffering from constant deprivation and gross infringement of his right to enjoy the property. Further, he had been deprived of basic services and a dedicated car parking inside the Society as part of the Group Housing Scheme under the DCS Act.

The petitioner approached the appropriate legal forum, and an award was passed directing respondent 2 to provide one dedicated earmarked car parking for each member of the Society and also to remove illegal occupants from the parking area under the stilt of the building.

Analysis and Decision

One of the grievances of the petitioner was that his demarcated car parking had been occupied by the unauthorized occupants and despite the Award, the earmarked car parking was not being restored to him. However, it was his own assertion that he had applied for execution of the Award in which necessary direction had been issued.

The Bench expressed that, this Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances of the petitioner.

Further, it was claimed by the petitioner that he was not getting free access to the lift and enjoyment of the common facilities and amenities.

High Court stated that, the allegations made were general, vague and lacked specific details.

Lastly, the Bench concluded that the grievances of the petitioner were general and essentially about the efficiency of services which had to be agitated by the petitioner within the mechanism as provided under the Delhi Cooperative Societies Act, 2003.

There was no merit in the present petition. [D S Kundu v. Registrar, Co-op Societies Delhi Old Court Building; 2022 SCC OnLine Del 1499; decided on 20-5-2022]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondents: Ms Sanjana Nangia Advocate for Mr Sameer Vashisht, Additional Standing Counsel for GNCTD.

Legal RoundUpWeekly Rewind


TOP STORY OF THE WEEK


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’ 

In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.  

The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits. 

Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. 

Read more… 


SUPREME COURT


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases 

In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases. 

In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.  

The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:  

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.” 

Read more… 


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees’ battle  

In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out. 

Finding the report of the previous committee faulty, the Supreme Court observed, 

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.” 

Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.  

Read more… 


High Courts


Madras High Court| Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals. 

Court observed that, 

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.” 

Read more… 


Bombay High Court| Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice. 

Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.” 

Read more… 


Bombay High Court| Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one. 

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order. 

Read more… 


Delhi High Court| Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin? 

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that, 

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.” 

With regard to contempt, the Court observed that, 

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.” 

Read more… 


Legislation Updates 


IFSCA issues framework for FinTech entity in IFSCs 

The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS. 

Read more… 


SEBI (Custodian) (Amendment) Regulations, 2022 

The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996. 

The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board. 

Read more…  


Income-tax (Ninth Amendment) Rules, 2022 

On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.  

Read more … 


 

 

High Court Round UpLegal RoundUp

110 Reports from 20 High Courts


Allahabad High Court


  • Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

Read full report here…

  • Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

Read full report here…

  • Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

Read full report here…

Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

Read full report here….


Andhra Pradesh High Court


  • Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

Read full report here…

  • Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence. 

Read full report here…

  • Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

Read full report here…


Bombay High Court


  • Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

Read full report here…

  • Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

Read full report here…

  • Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

Read full report here…

  • Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

Read full report here…

  • Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their sonRohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

Read full report here…

  • Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

Read full report here…

  • Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

Read full report here…

  • Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

Read full report here…

  • Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Read full report here…

  • Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Read full report here…

  • “No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

Read full report here…

  • Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

Read full report here…

  • Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

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  • Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

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  • Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

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  • Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

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  • Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

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  • Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justicethe Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

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  • Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

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  • Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

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  • Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

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  • Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

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  • Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court


  • Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

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  • Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

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  • Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

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  • Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

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  • Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

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  • Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

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  • GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against  the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court


  • Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

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  • Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

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  • Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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  • Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

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  • Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

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  • Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

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Delhi High Court


  • Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

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  • Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

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  • Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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  • Levy of Liquidated Damages

 If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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  • Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

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  • PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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  • Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

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  • Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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  • Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

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  • Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

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  • Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

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  • Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

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Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

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  • Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

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Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

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  • Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

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  • Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

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  • COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

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  • Physical relations on Promise to Marry

 Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

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  • Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

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  • Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

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  • LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrenderChandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

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  • Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

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  • Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

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Gujarat High Court


  • Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

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  • Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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  • Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

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Himachal Pradesh High Court


  • COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

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Jharkhand High Court


  • Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

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Jammu and Kashmir and Ladakh High Court


Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

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  • Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

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Kerala High Court


  • Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

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  • Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

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  • Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

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  • Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

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  • Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

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  • Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

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Karnataka High Court


Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

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  • Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

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  • Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

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  • A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

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  • Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

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Madras High Court


  • Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

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  • Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

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  • Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

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  • Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

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  • Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigantsS.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

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Madhya Pradesh High Court


  • Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

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  • Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

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  • Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

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  • Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

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  • Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

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  • Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court


  • Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

Read full report here…


Rajasthan High Court


  • Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

Read full report here…

  • Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

Read full report here…

  • Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

Read full report here…

  • Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

Read full report here…

  • Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

Read full report here…


Punjab and Haryana High Court


  • Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

 Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

Read full report here…

  • Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationshipthe Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

Read full report here…

  • Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

Read full report here…


Telangana High Court


  • Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

Read full report here…


Tripura High Court


  • POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Read full report here…

Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

Read full report here…


Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

Read full report here…

  • Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case BriefsHigh Courts

Delhi High Court: Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

The instant contempt petition had been filed for initiating contempt proceedings against respondent 1 for violating the undertaking given to the Court.

In a suit for possession, permanent injunction and for mesne profit/damages was filed against the respondent by Badri Prakash Soni, who was the father of the petitioner and respondent 1.

The parties who were related to each other entered into a compromise and under the said compromise, the respondents Munish Soni and Piyush Soni agreed to hand over the ground floor of the premises to the petitioner.

Apart from the above said, the defendants were made to pay a sum of Rs 1 Crore under the said compromise.

After a relinquishment deed was executed by Vikas Soni in favour of the petitioner, the petitioner got the premises in question converted into freehold by paying conversion charges to DDA and a conveyance deed was registered in favour of the petitioner by the DDA.

The present contempt petition was filed as the respondents did not vacate the premises.

Analysis, Law and Decision


Supreme Court has repeatedly held that all decrees and orders are executable under the CPC, including consent decrees and orders, but merely because an order or decree is executable, it would not take away the jurisdiction of the Court to deal with the matter under the Contempt of Courts Act, 1971.

In the instant matter, the respondents had given an undertaking that they would positively hand over the physical vacant possession of the ground floor of the property, but they did not do so.

High Court was concerned with upholding the majesty of the law and the undertaking given to this Court to vacate the ground floor of the premises.

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.”

In the Supreme Court’s decision of Vinay Chandra, In Re., (1995) 2 SCC 584, Court had delineated the purpose of the law of contempt in building confidence in the judicial process.

Elaborating further, the High Court added that the process of due course of administration of justice must remain unimpaired. Adding to this, the Bench stated that,

“…it is the duty of the Court to take a strict view when there is non-compliance of an Order of the Courts, and Courts should not hesitate in wielding the sword of contempt when grappling with a situation pertaining to wilful disobedience.”

Court did not appreciate the defences raised by the respondents to subvert the authority of the Courts.

Therefore, the respondents were guilty of the contempt of Court. [Navin Soni v. Munish Soni, 2022 SCC OnLine Del 1161, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner:

Mr. Vikas Arora, Ms. Radhika Arora, Mr. Mohit Dagar and Mr. Siddharth  Singh, Mr. Ayush Kumar, Advocates

For the Respondents:

Mr. Varinder Kumar Sharma, Mr. Akshay Soni, Advocates

Case BriefsHigh Courts

Delhi High Court: Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

A contempt petition had been filed for wilful disobedience of this Court’s Order.

Factual Matrix

Petitioner had inherited a property from her late sister. The brother-in-law i.e., R.N. Kapur of the petitioner resided on the ground floor of that property along with his wife who was also the petitioner’s sister. On her death, R.N. Kapur filed a suit claiming to be the owner of the ground floor of the property.

It was stated that the above-stated suit was settled before and in terms of the said settlement, a joint application under Order XXIII Rule 1/3 read with Section 151 CPC was filed before this Court and a decree was passed in presence of the plaintiff and defendants. After the death of R.N. Kapur, the petitioner with directions of this Court took possession of the property.

Further, it was found that respondents 1,2 and 3 had trespassed the property in question. Consequently, the petitioner filed a complaint before the local police and an FIR was registered under Sections 448/34 IPC.

Respondents were also made aware of the undertaking given by R.N. Kapur and despite being made aware of the same, they did not vacate the premises which resulted in the present filing of contempt petition.

The question that arose in the present matter was:

Whether respondents committed contempt of Court or not?

Section 2(b) of the Contempt of Courts Act, 1971 defines “civil contempt” as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a Court. 

High Court expressed that the law of contempt had been brought primarily to secure public respect and confidence in the judicial process and provide a sanction for any act or conduct which is likely to destroy or impair such respect and confidence.

In U.N. Bora v. Assam Roller Flour Mills Assn., (2022) 1 SCC 101, after analysing the various principles of law on the point rendered, the Supreme Court itself has laid down the parameters as to when action under the Contempt of Courts Act should be initiated.

As per the facts of the case, respondent 1 claimed ownership of the property through Will given by R.N. Kapur which was executed before the decree was passed on 14-3-2012 which was passed in pursuance of the Settlement Agreement which was based upon the undertaking that had been given by R.N. Kapur.

The Bench stated that the undertaking given by R.N. Kapoor before this Court will take precedence over the Will executed by him prior to giving the said undertaking.

The Court opined that the undertaking given to the Court has to be respected and cannot be permitted to be circumvented by saying that the respondents were not parties to the suit and have not given the undertaking.

Hence, the contention that the respondent cannot be held liable for the contempt of the Court as they were not parties to the Suit and had not given the undertaking to the Court cannot be accepted.

The Court observed that,

Disobedience of an order of the Court, if permitted, will result in striking at the root of the rule of law on which our system of governance is based.

Therefore, the power to punish for contempt is necessary for the maintenance of an effective legal system and the Contempt of Court Act, 1971 had been legislated to prevent interference in the course of administration of justice.

Stating the assuming that respondent 1 was initially not aware of the consent decree, the moment she was informed about the undertaking given by R.N. Kapur, through whom respondent 1 derived title, she ought to have respected the same and not breached it, hence the High Court held that obstinate and wilful act on the part of the respondent not to obey consent decree amounted to civil contempt.

High Court decided that the respondents were liable for punishment under Section 12 of the Contempt of Courts Act, 1971. [Indra Pasricha v. Deepika Chauhan, 2022 SCC OnLine Del 1090, decided on 19-4-2022]


Advocates before the Court:

For the Petitioner:

Mr Ashutosh Lohia, Mr Soumya Kumar, Advocates

For the Respondents:

Mr Ravi P Mehrotra, Senior Advocate with Mr Vibhu Tiwari, Advocate for R-1 & R-3

Mr Gautam Narayan, ASC for GNCTD with Mr Aditya Nair, Advocate for SHO, Hauz Khas

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the several questions on reporting by electronic media, expressed that:

“The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot, therefore, be overemphasized.”

Genesis of the Several Public Interest Litigations

In the instant matter, several PIL’s cropped from the unnatural death of the actor Sushant Singh Rajput on June 14, 2020.

Insensitive and Disparaging Comments by News Channels

On June 20, 2020, a complaint was lodged against one of the prominent news channels before the Secretary, Ministry of Information and Broadcasting seeking action for insensitive and disparaging comments against the Indian Army and the coverage of the death of the actor, stated to be in defiance with the Programme Code.

Further, it was said that no action against the media channel was taken in regard to the complaint made.

Media Trials

Since the time of death of the actor, several prominent media channels have been literally conducting ‘media trials’ and ‘parallel investigation’ by conducting and broadcasting debates, rendering opinions, exposing the material witnesses, examining and cross-examining the witnesses, chasing the officials of CBI who were investigating the case.

Petitioners added that the above-stated telecast and broadcast are available in the public domain.

Sensationalization and Scandalize the death of the Actor

It is said that the prominent news channels in their attempt to sensationalize the issues have gone as far as displaying the CDR records which is a vital piece of evidence, thereby resulting in the several threat calls and messages sent to the alleged accused.

The petitioners say that to scandalize and sensationalize the death of the actor, irresponsible reporting to implicate one of the prominent ministers of the State of Maharashtra and have been making derogatory, false and distasteful remarks against several ministers.

Further, it was also pointed that the news anchors and reporters were examining and cross-examining all the proposed witnesses exposing the probable evidence to the public which could be examined only by the investigating agency or by the competent courts during the course of the trial.

Press Council of India

PCI had also issued a statement wherein it was stated that the coverage of the alleged suicide of the actor by many media outlets was in contravention of the norms of journalistic conduct.

Undermining the concept of free and fair trial

Petitioners submitted that the freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point where, by outpouring reprobate information, begins to clog and cloud the pellucid comprehension of ‘facts/news’ in the people’s minds and impinges upon free and fair investigation.

Fundamental Question

Whether the media under the garb of reporting news, can serve their own opinions as facts/news?

Petitioner observed that media works to create or induce opinions by narrating and reporting opinionated and tailored facts as news, which is beyond the scope, power and privilege accorded to the proverbial fourth pillar and a blatant abuse and misuse thereof.

Petitioners assert that media is plagued with the affliction of disproportionate reporting, which may be seen from the undue coverage given to inconsequential and mindless matters, unrelated to the greater good of the people of the country, as opposed to issues of national and international importance which the people are grappling with such as the COVID 19 crisis, mass joblessness, economic downfall, starvation, medical and healthcare structural problems, farmers issues, domestic violence, etc.

Adding to the above, petitioners stated that it is not the media’s domain to prove someone guilty a definitely no question of calling out someone guilty or innocent until the investigation and trial is complete.

Petitioners referred to the Supreme Court decision in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the Supreme Court has commented on the danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom, and stated that people at the helm of affairs should ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.

Petitioners refer to the decision of the Supreme Court in R.K. Anand v. Delhi High Court, reported in (2009) 8 SCC 106, where the Supreme Court observed that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers of the court.

Observation

Contention that media houses have crossed the ‘Lakshman Rekha’

Bench opined that the petitions filed aimed at redressal of genuine public harm or public injury and involve substantial public interest.

Hence, the Court overruled the objections of the media houses to the maintainability of the writ petitions.

Important Legal Questions before the Court

  1. What does the expression “administration of justice in any other manner” in Section 2(c)(iii) of the Contempt of Courts Act, 1971 connote, and whether trial by media/pre-judgment while a police investigation is in progress could lead to interference with/obstruction to “administration of justice”, thereby constituting criminal contempt under the aforesaid section?
  2. Is it necessary to construe “judicial proceedings” in Section 3 of the Contempt of Courts Act, 1971 to have commenced with the registration of an FIR? Also, is it at all necessary to read Section 3 of the Contempt of Courts Act, 1971 in the manner the petitioner in PIL (St.) 2339 of 2020 urges us to read?
  3. Whether media trial in respect of matters pending investigation of a criminal complaint, fall within the restrictions as contained in the Programme Code as postulated under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder?
  4. Whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework?
  5. While emphasizing on the need to strike the right balance between freedom of speech and expression and fair investigation/right to fair trial, to what extent, if at all, should press/media reporting be regulated if the same interferes with or tends to interfere with, or obstructs or tends to obstruct, “administration of justice”?

Further, the Court also proposes to address the following incidental questions:

  1. Are the guidelines for reporting cases of deaths by suicide sufficient? If insufficient, should further guidelines be laid down for reporting cases of deaths by suicide?
  2. Has the media coverage complained of in these writ petitions interfered with/obstructed and/or tends to interfere with/obstruct “administration of justice”, and thus amounts to criminal contempt within the meaning of section 2(c)(iii) of the Contempt of Courts Act, 1971? and whether criticism of Mumbai Police by the electronic media is fair?
  3. Is the accusation that the Ministry of Information and Broadcasting, Government of India, being the Nodal Ministry, has abdicated its statutory functions [under the Cable Television Networks (Regulation) Act and the rules framed thereunder read with the Policy Guidelines of 2011 and the license executed with the broadcaster] of deciding complaints received in respect of offending programmes, by forwarding the same to private bodies like the News Broadcasting Authority (NBA) and the News Broadcasters Federation (NBF), justified?
  4. Should an order be made, on facts and in the circumstances, postponing reporting of events by the media in respect of investigation by the CBI into the FIR registered by it pursuant to the complaint of the actor’s father? Also, is it necessary for the Court to suggest measures for regulating media coverage of incidents such as the one under consideration to address the concerns expressed in these writ petitions?

Analysis

  • Investigative Journalism

The controversy in the instant matter raises questions of contemporary importance touching upon the right of the press/media to express views freely, the right of the deceased to be treated with respect and dignity after death, the need to ensure investigation of the crime to proceed on the right track without being unduly prejudiced by media reports based on “investigative journalism”, and the right of the accused to a free and fair trial as well as the right to not be prejudged by the media.

“Right guaranteed by Article 19(1)(a) of the Constitution is not merely a right of speech and expression but a right to freedom of speech and expression.”

 In Supreme Court’s decision of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 the need to protect the ‘Freedom of Press’ was highlighted, which is the heart of social and political intercourse.

Further, the Court referred to in LIC v. Manubhai D. Shah (Prof.), (1992) 3 SCC 637, wherein the flavour of the right to freedom of free speech and expression was brought out by the Supreme Court.

 “What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times?”

 To the above stated, Court answered in negative and expressed that “it is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

Rule of Law

There can be no two opinions that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice; and, as a Constitutional court, we have the power, nay the duty, to protect not only the Fundamental Rights of the citizens as well as the press/media in the judicious exercise of our jurisdiction under Article 226 of the Constitution but also to secure that the stream of administration of justice flows unsullied and unpolluted, uninfluenced by extraneous considerations.

 Supreme Court’s decision in Harijai Singh, In Re., (1996) 6 SCC 466 held that:

“10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists.”

PCI Guidelines

Electronic media should also be guided by the contents of the guidelines of the PCI on reporting of death cases by suicide for two reasons: first, the said guidelines have a statutory flavour and similar such binding guidelines on reporting cases of death by suicide are non-existent for the electronic media; and secondly, the absence of such guidelines could lead to the dignity of the dead being breached with impunity.

The death of the actor was followed by such crude, indecent and distasteful news reporting by a few of the TV channels that we do not consider it worthy of being referred to here and be a part of this judgment.

Court’s Ruling

“No report/discussion/debate/ interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”

High Court opined that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence.

Hence, Bench directed the press/ media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of nature, as indicated hereunder:

  1. In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
  2. That causes prejudice to an ongoing inquiry/investigation by:

(i)  Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii)  Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii)  Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv)  Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v)  Printing photographs of an accused and thereby facilitating his identification;

(vi)  Criticizing the investigative agency based on half-baked information without proper research;

(vii)  Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii)  Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix)  Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x)  Leaking sensitive and confidential information from materials collected by the investigating agency;

  1. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
  2. Indulging in character assassination of any individual and thereby mar his reputation.

Role of Media Houses

Bench advised media houses to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct the administration of justice and thereby attract contempt.

The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows the tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.

Investigative Agencies

Court also reminded the investigative agencies that they are entitled to maintain secrecy in the course of the investigation and are under no obligation to divulge materials thus collected.

Further, the Court added that:

If indeed there is leakage or disclosure of materials, which has the potential of stifling a proper investigation, it could pave the way for such information being laid before the competent court having powers to punish for cri6minal contempt under Section 2(c) of the CoC Act and in an appropriate case, for being dealt with in accordance with law.

Appointment of an Officer as a Link between the Investigator and Media Houses

Agreeing with Mr Datar’s suggestion Court observed that:

Mumbai Police, as well as the other investigating agencies, may consider the desirability of appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases or incidents that are likely to affect the public at large and to provide credible information to the extent such officer considers fit and proper to disclose and answer queries as received from the journalists/reporters but he must, at all times, take care to ensure that secret and confidential information/material collected during the investigation, the disclosure whereof could affect the administration of justice, is not divulged.

In case an officer as stated above would be appointed, he would be expected to bear in mind the Supreme Court’s decision in Rajendran Chingaraveluv. R.K. Mishra, (2010) 1 SCC 457.

“Every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.”

Therefore, in light of the above discussions, the Court disposed of the PIL’s filed.[Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56, decided on 18-01-2021]


Advocates for the Parties:

Mr. Devadatt Kamat, Senior Advocate a/w Mr. Rajesh Inamdar with Mr.Shashwat Anand, Mr. Pankaj Kandhari, Ms. Smita Pandey, Mr.Amit Pai, Mr. Vishal Jagwani, Kevin Gala, Siddharth Naik, Pinky Chainani, Mr. Ankur Azad, Mr. Sarveshwari Prasad, Mr. Rahat Bansal, Mr. Faiz Ahmad. i/b Mr. Pankaj Kandhari for Petitioners.

Mr. Anil Singh, Additional Solicitor General a/w Mr. Sandesh Patil, Mr.Aditya Thakkar, Mr.Amogh Singh, Ms. Apurva Gute, Mr. Chintan, Mr. Mayur Prashant Rane, Mr. Sumedh Sahakari, Mr. D. P. Singh, Ms.Reshma Ravapati, Mr. Saurabh Prabhulkar and Medvita Trivedi for respondent Nos.1, 4, 12 and 13.

Mr. Arvind Datar, Senior Advocate i/by Mr. Bharat Manghani for respondent 3 (NBA)

Mr. P. P. Kakade, Govt. Pleader with Mrs. R. A. Salunkhe, AGP for respondent 5 -State.

Mr. Rajeev Pandey with Mr. Madhur Rai i/by PRS Legal for respondent No.6(The India Today Group).

Mr. Kunal Tandon a/w Ms. Prachi Pandya i/by Corporate Attorneys for respondent No.7 (Times Now).

Ms. Malvika Trivdei a/w Mr. Saket Shukla, Mr. Vasanth Rajshekharan, Mr. Mrinal Ojha, Mr. Debashri Datta, Mr.Rajat Pradhan, Ms. Madhavi Joshi and Mr. Siddhant Kumar i/by Phoenix Legal for respondent 8 (Republic TV).

Mr. Angad Dugal, Mr. Govind Singh Grewal, Shiva Kumar, Tanya Vershney, Raj Surana a/w Rishi Murarka for respondent 9 (NDTV Ltd.).

None for respondent  10 (News 18).

Mr. Ankit Lohiya a/w Mr. Hetal Thakore, Mr. Kunal Parekh, Ms. Bhavika Tiwari i/by Dua Associates AOR Mumbai for respondent 11 (Zee News).

Ms. Hetal Jobhanputra for respondent No. 14 (ABP News).

Mr. Jayant Mehta a/w Mr. Alankar Kirpekar a/w Mr. Tejveer Bhatia, Mr. Rohan Swarop, Mr. Shekhar Bhagat i/by MAG Legal for respondent 15 (India TV).

Mr. Siddhesh Bhole, Mr. Rishabh Dhanuka i/by Alba Law Offices for respondent No. 16 (News Nation).

Mr. Siddharth Bhatnagar, Senior Advocate a/w Mr. Pralhad Paranjape for respondent No. 17 (NBF).

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT), New Delhi: The Bench of Justice Bansi Lal Bhat (Acting Chairperson) and Justice Venugopal M. (Judicial Member), Justice Anant Bijay Singh (Judicial Member), Kanthi Narahari (Technical Member) and Shreesha Merla (Technical member), while addressing the present matter observed that:

“…for purpose of computing the period of limitation under Section 7 of I&B Code, the date of default is NPA.”

Background

The three-member Bench of this Appellate Tribunal had opined that the decision rendered by the 5-member Bench of this Appellate Tribunal in V. Padmakumar v. Stressed Assets Stabilization Fund (SASF),2020 SCC OnLine NCLAT 417required reconsideration.

Issue formulated by the three-member Referral Bench, as noticed in the reference order was as follows:

“Hon’ble Supreme Court and various Hon’ble High Courts have consistently held that an entry made in the Company’s Balance Sheet amounts to an acknowledgement of debt under Section 18 of the Limitation Act, 1963, in view of the settled law, V. Padmakumar’s Case requires reconsideration.”

Facts and Contentions

Corporate Debtor had defaulted in repaying the dues availed as a loan from the Consortium Lenders leading to recalling of the loan facility by the Financial Creditor — State Bank of India and the Consortium Lenders issuing notices under Section 13(2) of the SARFAESI Act, 2002 demanding total amount of Rs 59,97,80,02,973. 
Corporate Debtor failed to discharge its liability.
When the Financial Creditor initiated CIRP under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor, Lenders had assigned the debt in favour of ‘Asset Reconstruction Company (India) Ltd. NCLT, Kolkata Bench on being satisfied that debt and default were established, admitted the application. Further on being aggrieved with the same, Ex-Director of Corporate Debtor filed an appeal against the admission order in light of Corporate Debtor’s account being declared as NPA in 2014 and application under Section 7 was filed in 2018 after a delay of around 5 years, hence the same was barred by limitation.
Financial Creditor contended that the right to sue for the first time accrued to it upon the classification of the accounts as NPA in 2013 but thereafter, Corporate Debtor had admitted time and again and unequivocally acknowledged its debt in the Balance Sheets for the years ending 31st March, 2015, 31st March, 2016 and 31st March, 2017.
Hence, the right to sue stood extended in terms of Section 18 of the Limitation Act, 1963.
Referral Bench had declined to accept the argument that Section 18 of the Limitation Act, 1963 is not applicable Insolvency Cases and proceeded to record the reasons for reconsideration of V. Padmakumar’s Judgment.

Analysis, Law and Decision

Bench noted that in ‘V. Padmakumar’s Case’, IDBI had advanced financial assistance of Rs 600 Lakhs by way of Term Loan Agreement dated 02-03-2000 to the Corporate Debtor and the loan was duly secured.
Further, the Corporate Debtor’s account was classified as NPA in 2002, later IDBI initiated recovery proceedings in 2007. Recovery Certification was issued in 2009 which was reflected in the Balance Sheet dated 31-03-2012.
Limitation Period
This Appellate Tribunal noted the decisions delivered by Supreme Court in Jignesh Shah v. Union of India(2019) 10 SCC 750, Gaurav Hargovindbhai Dave v. Asset Reconstructions Company (India) Ltd.  – (2019) 10 SCC 572, Vashdeo R. Bhojwani v. Abhyudaya Co-operative Bank Ltd.(2019) 9 SCC 158, and the decision of this Appellate Tribunal in V. Hotels Ltd. v. Asset Reconstruction Company (India) Ltd.– Company Appeal (AT) (Insolvency) No. 525 of 2019, decided on 11-12-2019, was of the view that for the purpose of computing the limitation period for application under Section 7 the date of default was NPA and hence a crucial date.
5-Member Bench further dealt with the acknowledgement of claim in audited Balance Sheet of Corporate Debtor to arrive at a finding as to whether such acknowledgement would fall within the ambit of Section 18 of Limitation Act, 1963.
Bench expressed that the Referral bench failed to take note of the fact that the 5-Member Bench Judgment rendered in ‘V. Padmakumar’s Case’ with a majority of 4:1 was delivered to remove uncertainty arising out of the conflicting verdicts of Benches of co-equal strength in ‘V. Hotel’s Case’ and ‘ Ugro Capital Ltd.’s Case’.

Once a Larger Bench of this Appellate Tribunal came to be constituted in the wake of two conflicting judgments rendered by Benches of co-equal strength on the issue, one of the two Benches having failed to notice the judgment of the Supreme Court on the subject, the issue raised by the Referral Bench can no more be said to be res integra, in so far as the jurisdiction exercised by this Appellate Tribunal under I&B Code is concerned.

Observations:

  • For purpose of computing, the period of limitation under Section 7, the date of default is NPA.
  • In Supreme Court’s decision of Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries Ltd., Civil Appeal No. 6347 of 2019, it was observed that Section 18 of the Limitation Act, 1963 would have no application to proceedings under the I&B Code. Therefore the issue raised as regards acknowledgement of liability by reflection in the Balance Sheet/Annual Return would be irrelevant.
  • The remedy available under the I&B Code is a remedy distinct from remedy available in civil jurisdiction/ recovery mechanism and since the I&B Code is not a complete Code, provisions of Limitation Act are attracted to proceedings under it before NCLT and NCLAT as far as applicable i.e. in regard to matters not specifically provided for in I&B Code.
  • The whole mechanism of triggering of Corporate Insolvency Resolution Process revolves around the concept of ‘debt’ and ‘default’.
  • There is no room for doubt that the date of default in regard to an application under Section 7 of I&B Code is the date of classification of the account of Corporate Debtor as NPA.
  • The date of default is extendable within the ambit of Section 18 of Limitation Act on the basis of an acknowledgement in writing made by the Corporate Debtor before the expiry of the limitation period.

Whether a reflection of debt in the Balance Sheet/ Annual Return of a Corporate Debtor would amount to acknowledgement under Section 18 of the Limitation Act?

“…the finding has been recorded by the five Member Bench in the context of a judgment or a decree passed for recovery of money by Civil Court/ Debt Recovery Tribunal which cannot shift forward the date of default for purposes of computing limitation for filing of an application under Section 7 of the I&B Code and the fact that filing of Balance Sheet/ Annual Report being mandatory under Section 92(4) of Companies Act, failing of which attracts penal action under Section 92(5) & (6).”

Tribunal also added to its observations that Referral Bench failed to draw a distinction between the ‘recovery proceedings’ and the ‘insolvency resolution process’.

I&B Code provides timelines for resolution of insolvency issues and proceedings thereunder cannot be equated with the ‘recovery proceedings’.

Hence, in view fo the above discussions, Bench opined that :

the order of reference which, in letter and spirit, is more akin to a judgment of an Appellate Court appreciating the findings and judgment in ‘V. Padmakumar’s Case’ is incompetent and deserves to be rejected.

Judicial Indiscipline

Tribunal went on to express that ‘Judicial indiscipline’ creates uncertainty and impairs public faith in the Rule of Law.

Crossing the red line by disregarding the binding precedent results in making the legal proposition uncertain. Such misadventure creates uncertainty as regards the settled position of law.

Cases referred by the Tribunal for the above-stated:

  • Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673: It was held that a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

A Bench of co-equal strength can only express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength.

  • Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908: It was held that the nature of infirmity or error would be one of the factors in making a reference. Whether patent aspects of question remained unnoticed or was the attention of Court not drawn to any relevant and material statutory provision or was any previous decision of the Supreme Court not noticed would be the relevant factors.
  • In Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC 1, it was held that the Court should not, except when it is demonstrated beyond all reasonable doubt that its previous ruling given after due deliberation and a full hearing was erroneous, revisit earlier decision so that the law remains certain.

In CCE v. Matador Foam, (2005) 2 SCC 59, the following was observed:

“….. These being judgments of coordinate benches were binding on the Tribunal. Judicial discipline required that the Tribunal follow those judgments. If the Tribunal felt that those judgments were not correct, it should have referred the case to a larger bench.”

Hence, in light of the above, Tribunal held that:

Following of the judicial precedent of a Bench of equal strength and of a Larger Bench as in the instant case, is a matter of judicial discipline.

While parting with the decision, Bench recorded that

It is not open to the Referral Bench to appreciate the judgment rendered by the earlier Bench as if sitting in appeal to hold that the view is erroneous. Escaping of attention of the earlier Bench as regards a binding judicial precedent or a patent error is of relevance but not an evaluation of earlier judgment as if sitting in appeal.

Referral Bench overlooked all legal considerations. Company Appeal (AT) (Insolvency) No. 385 of 2020 be listed for regular hearing on 11-01-2021.[Bishal Jaiswal v. Asset Reconstruction Company (India) Ltd., Reference made by Three Member Bench in Company Appeal (AT) (Insolvency) No. 385 of 2020, decided on 22-12-2020]

OP. ED.SCC Journal Section Archives

— Indian Supreme Court in the process of transition — Position till early 1970’s and after — Concepts used to avoid change stated — Activist judges — Contribution of Justice Bhagwati — Some highlights of transformation of Indian jurisprudence at the instance of Justice Bhagwati in the judicial process — PIL is a major strategy in the area of legal aid to the poor — Greatest Contribution of Chief Justice Bhagwati — Decisions on Legal Aid — Observations of Justice Bhagwati in Hussainara Khatoon (1980) and Suk Das (1986) — Major thrusts gave to PIL by Justice Bhagwati briefly examined — Observations in Judges transfer case (1981) quoted — Letter petitions in PIL — Contribution of Justice Bhagwati in PIL is certainly enormous — Judicial employment and Human Rights with social justice — Inter-relation of Parts III and IV of the Constitution of India — Case laws referred to and discussed in this regard — Facets of Art. 21 — Case laws cited — Revolutionary interpretation to Art. 21 by Justice Bhagwati — Judicial Reforms and People’s participation — Lok Adalats — Contribution of Justice Bhagwati — Concluding note — Bhagwati era will find a special place for its signal contribution to human rights development and judicial creativity in the cause of social justice

The Indian Supreme Court is in the process of transition. Till early 1970s the Court with few honourable exceptions, acted as an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovations in the use of judicial power to promote social change under the Republican Constitution. The natural inclination of lawyers and Judges was to look for precedents in the “Mother Country” and to interpret a revolutionary document like the Constitution of India in the light of a socio-economic philosophy alien to our freedom movement and the aspirations of a liberated people. Concepts such as “Rule of Law”, “Judicial Restraint”, “Separation of Powers”, “Supremacy of Fundamental Rights over Directive Principles”, “Independence of Judiciary”, “Contempt of Court” and “Certainty in Law” were used conveniently to avoid change wherever possible, delay it whenever inevitable and dilute it as far as practicable. The resultant legal culture was not very different from those of pre-Independence days.

Read more..


Note: This article was first published in Supreme Court Cases Journal  (1987) 1 SCC J-1. It has been reproduced with the kind permission of Eastern Book Company.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of Janak De Silva and N. Bandula Karunarathna, JJ., partly allowed an appeal which was sought In the matter of an application for orders in the nature of a writ of Certiorari and Mandamus under and in terms of the provisions of Article 140 of the Constitution.

The Petitioner was a company limited by guarantee and a non-profit organization with objectives of environmental justice and good governance in the interests of the general public. In the instant PIL, it sought to impugn several acts of the Respondents in the forest complex adjoining Wilpattu National Park.

The counsel for the petitioner, Mr Ravindranath Dabare with S. Ponnamperuma submitted that these areas had been declared as reserved forests in terms of section 3 of the Forest Conservation Ordinance as amended (Forest Conservation Ordinance) and that around 1500 families had been illegally settled in this area contrary to law. The counsel for the respondents, Mr Manohara Jayasinghe SSC in their statement of objections filed that the land forming the subject matter of this application was cleared and several houses and roads had been constructed in order to settle the internally displaced persons (IDP) who were ordered to leave the Northern Province in October 1990 by the Liberation Tigers of Tamil Eelam. The Respondents further stated that the Lessons Learnt and Reconciliation Commission (LLRC) had recommended in its Report that the Government take steps to resettle IDPs and that the Government should access all possible sources of assistance from institutions and individuals both national and international. The evidence before Court established that vast extent of reserved forest land had been cleared and used for the resettlement of IDPs in breach of the provisions of the Forest Conservation Ordinance. The respondents contended that the land forming the subject matter of this application has been used for re-settlement in terms of decisions made by the Presidential Task Force for Resettlement, Development and Security (Northern Province) (1R2) and the Committee appointed by the Task Force to make recommendations to resolve land-related issues in Muslim Villages Displaced in 1990 (1R2 and 1R3). However, there was no documentary evidence before the Court to substantiate this assertion. The Court concluded that the resettlement of the IDPs was made in violation of the provisions of the Forest Conservation Ordinance. The question was of the relief that Court would grant in this application.

The Court observed that relief sought in terms of the writ of certiorari could not be granted as necessary parties had not been made Respondents to this application. It is trite law that all those who would be affected by the outcome of the application for writ of certiorari should be made respondents. The relief sought in terms of a writ of mandamus also failed for the same reasons as the rule of necessary parties applied to this remedy as well. In this application the Court exercised the jurisdiction conferred upon it by Article 140 of the Constitution and the Supreme Court has held that this jurisdiction was not limited to the issuing of prerogative writs such as writs of certiorari, prohibition and mandamus etc, therefore the remaining relief for an order in the nature of mandamus ordering the 1st Respondent to take action against the illegal removal of forest cover, and illegal re-settlement done by the encroachers and re-instate the forest lands to the forest reserve and organize forest replanting programme under and in terms of the provisions of the Forest Ordinance No. 16 of 1907 as amended is one that this Court was permitted to issue.

The Court observed that the Petitioner in this case was not a party to that application. Hence the doctrines of res judicata or issue estoppel do not apply as in both instances it is necessary that the parties to the two cases and the cause of action (or issue estoppel as in this case) must be the same for the two doctrines to apply. The Court further observed that in any event, it was trite law that the rights of the parties must be decided as at the date of the institution of the proceedings or action [Ponnammah v. Arumugam, (8 N.L.R. 223), Sithy Makeena v. Kuraisha, (2006) 2 Sri. L.R. 341]. This application was filed and notice issued in 2015 whereas the fundamental rights application S.C.F.R. 130/2017 was filed in 2017. Hence the outcome of the fundamental rights application cannot be held against the Petitioner in this application.

The Court specifically mentioned the cases of the Supreme Court of India where it has recognized the power vested in the High Court in moulding remedies in the exercise of the writ jurisdiction vested in it by Article 226 of the Indian Constitution to do substantial justice between the parties [C.M. Singh v. H.P. Krishi Vishva Vidyalaya, (1999) 9 SCC 40] and, that an application should not be thrown out simply on the ground that the proper writ or direction has not been prayed for [Chiranjit Lal v. Union of India, AIR 1951 SC 41]. It is open to the Court to mould the relief and to grant the consequential or ancillary relief so as to restore the position to what it was before the impugned action was taken by the concerned authority [State of Gujarat v. Consumer Education and Research Centre, 1981 SCC OnLine Guj 66].

The Court interpreted the Polluter Pays Principle and while partly allowing the appeal held that there was a need to settle down all IDPs who were displaced due to the war in Sri Lanka as far as possible in the areas where they were residing. However, this was subject to other overriding concerns and above all the respect for the rule of law which is the foundation of our Constitution.[Centre for Environmental Justice (Guarantee) Ltd. v. Anura Satharasinghe, 2020 SCC OnLine SL CA 5, decided on 16-11-2020]


Suchita Shukla, Editorial Assistant has put this story together

Op EdsOP. ED.

The National Company Law Appellate Tribunal (“NCLAT”) on 12.03.2020, in Union of India v. Infrastructure Leasing & Financial Services Ltd. [1], (“ILFS”) jumped the wall from West Berlin to East Berlin, despite the law enunciated by the Supreme Court under Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta [2] (“Essar Steel”) and Swiss Ribbons Pvt.  Ltd.  v. Union of India[3] (“Swiss Ribbons”).

The judgment is not only shocking but also calls for profound reflexion on the various glaring issues including:

A. Judicial propriety,

B. constitutional morality,

C. rules of natural justice,

D. rules of law and the manner in which proceedings before the quasi-judicial forums are being conducted in India. 

The  NCLAT, in ILFS[3], held that the Tribunal/Appellate Tribunal has ample power to pass interim order in terms of Section 242(4) of the Companies Act, 2013 (“the CA 2013”). As a consequence of such interpretation, the interim order dated 15.10.2018 requires no modification/ recall as opined by several parties, on the following grounds:

  1. The Tribunal/Appellate Tribunal is required to follow the principles of natural justice alongwith other provisions of the CA 2013 or the Insolvency and Bankruptcy Code, 2016 (“IBC”) and any Rules made thereunder for regulating its own procedure. Since the amendment of Section 424 of the CA 2013 came into effect from 15-11-2016, the Tribunal/Appellate Tribunal is vested with the power to follow the procedure of IBC, in addition to the procedure laid down in the CA 2013 and the Rules framed thereunder. (para 50)
  2.  It cannot be said that the NCLTs while dealing with the winding up matter or a matter under Section 241 read with Section 242 of the CA 2013 particularly in a case under Section 241(2), which relates to public interest cannot follow the principle of IBC. (para 52)
  3. It is true that the power of moratorium under Section 14 of the IBC cannot be exercised under the CA 2013, but the same power can be exercised by the Tribunal under Section 242(4) of the CA 2013 by way of an interim order. Such power shall be exercised only if the Tribunal thinks fit for regulating the conduct of the Company’s affair upon such terms and conditions, which are just and equitable. (para 54)
  4. In India, there is no provision for ‘group insolvency’. Infrastructure Leasing & Financial Services Ltd. (IL&FS”) and its entities (“IL&FS Group Entity(ies)/ IL&FS Group”), being financial service providers, no application under Sections 7,  9 or 10 of IBC can be filed against them. Parties have to move before the Tribunal by filing a petition for winding-up. (para 56)

With regard to the procedure to be followed for resolution of debts, the Tribunal referred to the Resolution Framework dated 25-1-2019 and limited reference to the affidavit dated 7-2-2020 for ‘Public Interest Rationale for Fair and Equitable Distribution to Creditor’ and held that:

  1. It is not inclined to follow the procedure of IBC including Section 53, as this is a case where public interest is involved. (para 64)
  2. It cannot be said that ‘shareholders’ including Life Insurance Corporation, IL&FS Employees’ Welfare Trust, Housing Development Finance Corporation Ltd., Central Bank of India, State Bank of India, UTI-Unit Linked Insurance Plan, etc. should not be paid by following the procedure under Section 53 of IBC. (para 65)
  3. Following Section 53 would be against the public interest as the money invested by purchasing shares by Life Insurance Corporation of India, IL&FS Employees’ Welfare Trust, Central Bank of India, State Bank of India are public money, who are the shareholders and also to protect the interest of IL&FS group entities (who are also creditors). (para 65)
  4. There shall be pro rata distribution as suggested by Union of India for the purpose of completing resolution process. (para 66)
  5. Union of India, the Board of Directors of IL&FS and the ‘Committee of Creditors’ already constituted or which may be constituted were directed to conclude resolution of all the Entities preferably within 90 days.

The NCLAT has not only given contradictory findings, but also has contradicted the settled principles of law. This is apparent from the very fact that NCLAT, on 07-02-2020, directed the matters to be listed on 17-02-2020 for further arguments, however, on 15-02-2020, the matter was notified to have been deleted from the cause list of NCLAT for 17-02-2020. Thereafter, the matter was listed only on 12-03-2020. Upon being informed of the order (yet to be passed at that time), when the parties requested NCLAT to allow them to complete their submissions in all respects, the parties were told that the order is ready and shall be passed as it cannot wait for the parties to finish their submissions and in any way, they can approach the Supreme Court of India. 

The appeal was as a consequence of IL&FS Union of India (“UoI”) challenging the order passed by the  NCLT, Mumbai, whereby the  NCLT declined to pass an order akin to moratorium under Section 14 of IBC. The  NCLAT, while framing the issues on 15-10-2018, imposed a stay inter alia on the lenders to the IL&FS Group from taking any enforcement actions against any entity of the IL&FS Group ‘taking into consideration, the nature of the case; larger public interest; economy of the nation; and interest of the IL&FS entities’.

The first and foremost issue which needs to be pondered upon is whether NCLAT, despite holding that while considering the matter under Section 241 read with Section 242 of the CA 2013, the principles of IBC is to be followed, could have refused to follow the procedure of IBC on the ground that ‘public interest’ is involved? The answer to this issue lies into deeper questions as to –

-whether the provisions of the CA 2013 will override the provisions of IBC.

-whether the entire “corporate insolvency/insolvency resolution/restructure mechanism process” by whatever name be it called as such can be equated with “proceedings arising out or relating to prevention of oppression and mismanagement”;

-whether the mechanical time extension by NCLAT is justifiable in law;

-what does the phrase ‘public interest’ mean in relation to insolvency/restructure mechanism, etc.

Procedure envisaged under the IBC ought to be strictly followed to ensure effective resolution

Section 241 of the CA 2013 lists out the events when an application for relief in case of oppression and mismanagement can be made to the Tribunal. Further, Section 242 of the CA 2013 enlists the nature of relief which can be granted by the Tribunal. Provisions of clauses (a) to (l) to sub-section (2) of Section 242, being exhaustive in nature, specifically mentions the nature of relief which can be granted by the Tribunal and the only residuary provision is clause (m) to sub-section (2)of Section 242, which provides relief for ‘any other matter for which, in the opinion of the Tribunal, it is just and equitable that provision should be made’. The said provision of aforesaid clause (m) cannot be extended beyond its purport and object.

It is relevant to point out that the manner in which the resolution process has been undertaken falls foul of clause (f) to sub-section (2) to Section 242 of the CA 2013, which states that no agreement between the company and any person other than those mentioned in clause (e) i.e. creditors/debenture-holders in the instant case, shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned. Therefore, without obtaining due and appropriate consent of the creditors, the resolution process mechanism including the mechanism of distribution of amount cannot be forced upon creditors, which is apparently done in the instant case.

At the time of consideration of the Companies Bill leading to the enactment of the CA 2013, neither the Bankruptcy Law Reforms Committee Reports nor the Insolvency and Bankruptcy Bill were available before Parliament. The CA 2013 received the assent of the President on 29-8-2013 and the same was published in the Gazette of India. Whereas the Bankruptcy Law Reforms Committee Report was available only on 4-11-2015 and the Insolvency and Bankruptcy Bill, 2015 was introduced in the Lok Sabha on 21-12-2015). It is submitted that in interpreting an Act of Parliament, it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. Therefore, it was never the intention of Parliament to provide for or deal with the mechanism for resolution plan or plan which would have the effect of re-organisation and/or resolution of stressed entity such as IL&FS Group Entities.

IBC being a special law dealing with mechanism for resolution of the entities in a time-bound manner for maximisation of value of assets of such entity, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders, would have an overriding effect over any other provision of the general law such as Section 242 of the CA 2013. Assuming that the CA 2013 is to be treated as special, even in such a case, provisions of IBC shall have an overriding effect over the CA 2013. It is settled law that in case of an inconsistency arising between two special legislations, the special law enacted later in time would have an overriding effect on the previously enacted law[4]. This rule, read with the non obstante clause enshrined under Section 238 of IBC, makes it clear that IBC shall prevail over the provisions of the CA 2013. In this regard, reference is being made to Innoventive Industries Ltd v. ICICI Bank [5], and Jaipur Metals and Electricals Employees’ Organization v. Jaipur Metals and Electricals Ltd.[6]

At this stage, it is relevant to point out the rationale(s) for enacting the consolidated and complete code dealing with resolution of entities, as set out under the Bankruptcy Law Reforms Committee Report dated 4-11-2015 (“the BLRC Report of 2015”), as follows:

“In such an environment of legislative and judicial uncertainty, the outcomes on insolvency and bankruptcy are poor. World Bank (2014) reports that the average time to resolve insolvency is four years in India, compared to 0.8 years in Singapore and 1 year in London…If we are to bring financing patterns back on track with the global norm, we must create a legal framework to make debt contracts credible channels of financing.

…Yet these game changers and growth drivers are crippled by an environment that takes some of the longest times and highest costs by world 18 standards to resolve any problems that arise while repaying dues on debt. This problem leads to grave consequences: India has some of the lowest credit compared to the size of the economy. This is a troublesome state to be in, particularly for a young emerging economy with the entrepreneurial dynamism of India.

*                           *                                *

Speed is of essence for the working of the Bankruptcy Code, for two reasons. First, while the ‘calm period’ can help keep an organsation afloat, without the full clarity of ownership and control, significant decisions cannot be made. Without effective leadership, the firm will tend to atrophy and fail. The longer the delay, the more likely it is that liquidation will be the only answer. Second, the liquidation value tends to go down with time as many assets suffer from a high economic rate of depreciation. From the viewpoint of creditors, a good realisation can generally be obtained if the firm is sold as a going concern. Hence, when delays induce liquidation, there is value destruction. Further, even in liquidation, the realisation is lower when there are delays. Hence, delays cause value destruction. Thus, achieving a high recovery rate is primarily about identifying and combating the sources of delay. This same idea is found in FSLRC‘s (Financial Sector Legislative Reforms Commission) treatment of the failure of financial firms. The most important objective in designing a legal framework for dealing with firm failure is the need for speed.

  (emphasis supplied)

Relying upon Innoventive Industries Ltd. v. ICICI Bank[7] and ArcelorMittal India Pvt. Ltd.v. Satish Kumar Gupta[8], the Supreme Court, in Swiss Ribbons[9], explained the raison d’être for the IBC, which is set out as under: (SCC paras 27, 28)

“27. …the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern.

28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor’s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.”

    (emphasis supplied)

As observed by the Supreme Court in Swiss Ribbons (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from liquidation. Further, the corporate insolvency resolution process is to be completed in a time­bound manner. Therefore, the entire “corporate insolvency/insolvency resolution/restructure mechanism process” by whatever name be it called as such cannot be equated with “proceedings arising out or relating to prevention of oppression and mismanagement”. Considering that IBC was a subsequent Act to the CA, 2013, Section 238 of IBC shall be applicable and the provisions of the IBC shall have an over­riding effect over the CA 2013. Any other view would frustrate the object and purpose of IBC and the settled position of law. In this regard, reliance is placed upon Duncans Industries Ltd. v. A. J. Agrochem[10]. What is more surprising is that NCLAT despite having referred to aforesaid paragraphs of Swiss Ribbons (supra) failed to follow the same in its true spirit.

IBC inter alia provides for the time-limit for completion of corporate insolvency resolution process/resolution process. IBC originally provided that the entire process was to be completed within a period of 180 days from the date of admission of the application and could only be extended beyond 180 days for a further period of not exceeding 90 days if the committee of creditors so decides. Thereafter, through the Insolvency and Bankruptcy Code (Amendment) Act, 2019 (“the 2019 Amendment”), the timelines were changed and CIRP must be completed have now been extended to 330 days, which is 60 days more than the initial stipulated period of 180 days plus 90 days (which is equal to 270 days). But this 330-day period includes the time taken in legal proceedings in relation to such resolution process of the corporate debtor/stressed entity unlike the earlier position. The constitutional validity of the 2019 Amendment was examined by the  Supreme Court, in Essar Steel [11](supra) and it was inter alia held as under: (SCC Online paras 105 & 108)

105. Given the fact that timely resolution of stressed assets is a key factor in the successful working of the Code, the only real argument against the amendment is that the time taken in legal proceedings cannot ever be put against the parties before the NCLT and NCLAT based upon a Latin maxim which sub-serves the cause of justice, namely, actus curiae neminem gravabit.                           

* * *

108. …The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days…It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation.

      (emphasis supplied)

Approximately 481 days (i.e. 1 year, 3 months & 24 days) already stands expired from 15-10-2018 (NCLAT order granting moratorium) until 7-2-2020 (last date of hearing before NCLAT). Therefore, the extension of resolution time period, being the exceptional rule, couldn’t have been mechanically granted. Such mechanical extension of time, without satisfying the test laid in Essar Steel (supra), is in the teeth of the law pronounced by the Supreme Court.

Having regard to the raison d’être for IBC along with the aforesaid observations of the  Supreme Court, any deviations from the principles of IBC would be violative of Articles 14, 19 and 21 of the Constitution of India since this would have an effect of treating similarly placed stressed entities in different manners. IBC exhaustively lays out the process and mechanism, which is to be followed for an effectively and timely resolution process of the stressed entity. Once resolution process is being undertaken following the principles of IBC, it would result into a time bound maximisation of value of assets of such entity. Whereas, another stressed entity for which resolution process is being undertaken dehors the principles of IBC would not be able ensure a time bound maximization of value of assets of such entity. It is undisputed that unless the time bound maximization of value of assets of the stressed entity is achieved, it would not be

possible to keep the entity as a going concern. Therefore, it is not only incomprehensible but also beyond any imagination to even suggest that the resolution process of any entity may be carried out, at its own whims and fancies, without following the IBC and/or principles arising out of IBC, which has been enacted by Parliament, after considering the Bankruptcy Law Reforms Committee Reports, to clear off the environment of legislative and judicial uncertainty and to ensure that average time period for resolution process/insolvency would be much shorter than what existed under the pre-existing state of laws.    

Approbation and reprobation by IL&FS

Further, IL&FS cannot be allowed to approbate and reprobate at the same time. On one hand, it has taken a stand that under the Resolution Framework (which is prepared by IL&FS only and is nothing more than a self-serving document) the provisions of the IBC shall not apply, whereas on the other hand, in the same breath, it has relied upon the provisions of IBC and Regulations framed thereunder, wherever the same is convenient to it. In this regard, reference may be drawn (including but not limited to) to the following:

(a) Payment of financial bid amount to bind stakeholders This principle arises out of sub-section (1) to Section 31 of IBC (p. 10 of Further Affidavit dated 9-1-2020).

(b) Process for admission of claims IBC like process had been followed for inviting, verifying and admitting claims in respect of 70 entities that were identified for sale in Phase-I (p. 40 of Further Affidavit dated 9-1-2020).

(c) Voting percentage required for approval from CoC This principle arises out of sub-section (4) to Section 30 of IBC (p. 98 of Further Affidavit dated 9-1-2020).

(d) Protection to Successful Bidders The Resolution Framework seeks the permission of this Tribunal to grant suitable relief to the successful bidders as contemplated in Section 32-A. It is submitted that the said provision has been recently introduced by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019 dated 28-12-2019[12] (p.99 of Further Affidavit dated 9-1-2020).

Invitation for EOIs

Procedure for invitation of Expression of Interest (“EOIs”), as adopted under the Resolution Framework, is contrary to the provisions of the IBC and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (“the CIRP Regulations”) as the same warrants that Information Memorandum (“IM”) and EOIs are to be prepared and published only after due consideration of the same by the CoC. Following the receipt of EOIs from potential investors, a request for proposal (“RFP”) is issued to eligible applicants pursuant to which, binding financial bids are sought after the due diligence exercise, as envisaged under the Resolution Framework is finished, in the form and manner and within the timelines prescribed in the relevant RFP. Whereas in the instant case, CoC (whose composition is not as per law and will be dealt with in the following section) was constituted only after receipt of H1 bid.

In order to ensure transparency in the entire process, it is essential that the CoC be constituted prior to issuance of the EOIs to ensure that the details stated in the EOIs are complete and accurate since the creditors in respect of the sale company have better technical knowledge, know-how of the workings of the sale company and would ensure maximisation of value of assets of the sale company.

Moreover, vide order dated 6-1-2020, NCLAT was constrained to pass a direction in this regard to include details of decrees or awards which have attained finality in the EOIs for the knowledge of the resolution applicants. It goes without saying that IL&FS entities excluded/ignored certain crucial details, even during the pendency of the issue before NCLAT. Only uncertainties lies ahead of us while we move forward with the resolution. 

Constitution of CoC

NCLAT failed to appreciate that the Resolution Framework fails to adhere to Section 21 of the IBC as related party lenders, namely, IL&FS Group Entities have been included in the CoC. By virtue of such inclusion, those related parties have been provided the right of representation, participation and voting in the said CoC meetings. The primary rationale provided for inclusion of related parties in the CoC is to ensure that the rights of the lenders are also protected those who have provided financial debt to the relevant IL&FS Group Creditors of the sale company.

CoC comprises of all financial creditors and authorised representatives of certain categories of persons and classes of creditors under Section 21(6) and Section 21(6-A) and the related parties are excluded from CoC as per first proviso to sub-section (2) of  Section 21[13]. The rationale for only financial creditor handling the affairs of the corporate debtor and resolving them have been deliberated upon by the BLRC Report of 2015, which formed the basis for the enactment of the IBC. The legislative intent under Section  21(2) of IBC in denying rights of representation, participation and voting to related parties is to ensure that the resolution process is driven by only those creditors who are not related to the stressed entity/corporate debtor. Even though related parties may have claims and may even file application for initiation of corporate insolvency resolution process and during such resolution process, may also file their respective claim, such parties cannot drive the resolution process, as that would be rife with conflicts of interest. Such a wholesome intent cannot be rendered infructuous by supplying a narrow or technical interpretation as adopted by the New Board of IL&FS and which has been now blessed by NCLAT.

The Resolution Framework has sought to make the futile attempt to justify the inclusion of related parties by stating that the purported ‘Resolution Framework specifically contemplates that every financial creditor is entitled to be part of the relevant Creditor’s Committee to safeguard interest of creditors at various levels of  Respondent 1 Group’. It has not been able to show as to how the self-serving document/process which is created by IL&FS, passes the scrutiny of settled law. The Resolution Framework prepared by the IL&FS Group for the resolution of IL&FS Group, which is being forced down the throat of the financial creditors, falls foul of the legislative intent and principles of IBC and the regulations framed thereunder. The constitution of the CoC, therefore, as envisaged under the Resolution Framework and blessed by NCLAT is perverse, illegal and bad in law.

Furthermore, the justification given by IL&FS, as mentioned in the affidavits filed before NCLAT, for inclusion of related parties, falls foul of basic principles of law and also compromises the autonomy and wisdom of CoC. It is most unfortunate that IL&FS is acting as the ultimate authority/regulator over the entire process inasmuch as the financial creditors forming part of the CoC have been reduced to a mere rubber stamp.

Related party creditors cannot be treated as ‘similarly situated creditors’ in comparison with other external financial creditors inasmuch as IBC itself deprives such creditors of the rights ordinarily available to other financial creditors. The inclusion of related parties cannot be forced upon the external financial creditors especially when IL&FS, other than specifying its desire and unsubstantiated sweeping assumptions, has not been able to point out any provision of law which enables it to include related parties in the first place, much less a scenario where such related parties have been conferred with the right of representation, participation and/or voting in the meeting of creditors. It defeats the principle of natural justice and leaves a wide scope of misuse of the remaining assets of the distressed corporate entity.

The assumption on the part of the IL&FS that the ‘interest of the creditors at the holding companies cannot be protected if IL&FS Group companies are not members of the COC’ casts aspersions on the integrity of CoC, which are uncalled for.

Such inclusion of related parties not only amounts to causing an inquiry in the commercial wisdom but also tantamount to issuing direction in relation to the exercise of commercial wisdom of CoC. NCLAT has literally adopted ‘equality for all’ approach without appreciating the nature of rights of different classes of creditors and their relationship qua the debtor.

Furthermore, in the recently concluded sale of the 51% shareholding of IWEL to Orix Corporation in the 7 wind SPVs, the CoC comprised solely of related party entities. In this precarious situation as well, IBC provides for a remedy under Section 21(8) which very well could have been adopted. The aforesaid sale is the subject-matter of challenge before NCLAT in Company Appeal (AT) No. 256 of 2019.

The issue of unfollowed principles underlying IBC and objections to Resolution Framework were consistently raised by the creditors prior to granting in-principle acceptance to the bid and a request was made to keep the voting process in abeyance until the issues were/are resolved to the satisfaction of the external creditors. However, no such step was taken by IL&FS and creditors were asked to vote on the bid since its validity was to expire shortly. At this stage, it is relevant to point out that under the Resolution Framework, even if the bid is rejected by the creditors, the IL&FS Board can still approve the same and forward it to the NCLAT for final approval. Therefore, creditors were put under the threat of an invisible gun in granting approval to the bid, wherever the approval has been granted by the creditors.

Given the aforesaid, IL&FS’s stand casting bias upon the CoC by stating that without inclusion of related party, the interest of creditors at the holding companies cannot be protected, is entirely misconceived. I say this since there have been umpteen number of cases of resolution, albeit under the IBC, where the CoC which does not include related party creditors, nevertheless it has offered such creditors a fair bargain under a resolution plan.

NCLAT failed to consider that CoC is not consulted while preparing the EOIs, appointment of valuer(s), consideration of their reports, etc. Furthermore, the CoC also consists of related party entities, who have been unjustifiably conferred upon the right of representation, participation and voting in the CoC meetings. Therefore, appropriate directions should have been issued by NCLAT for constitution of the CoC in accordance with the IBC, by excluding the related parties.

Resolution framework reducing the CoC to rubber stamp

Amongst other things, the resolution framework which was prepared by IL&FS for the resolution of the IL&FS entities specifically mentioned that ‘Approval of CoC will not be required for distribution, which will be as per Revised Distribution Framework’. It is shocking that NCLAT has approved such framework. It would be apt to mention at this stage the order passed by NCLAT lacks clarity especially with regard to resolution. Though the order makes reference to Resolution dated 25-1-2019, it does not make reference to any other amended resolution framework which was filed by IL&FS/UoI, other than making a limited reference to ‘public interest rationale for fair and equitable distribution to creditor’. Therefore, there is no clarity as to which resolution framework was approved by the NCLAT and pertinent to mention that UoI/IL&FS never prayed for pro rata distribution of the amount. It had envisaged for distribution of amount to secured creditor up to liquidation value in terms of Section 53 of IBC. NCLAT has clearly held that principles of Section 53 shall not be applicable. The issue of pro rata distribution has been dealt with in the following section.

The Resolution Framework falls foul of the law laid down in Essar Steel[14] read with the scheme of IBC and Regulations framed thereunder. The Resolution Framework is clearly in teeth of the settled principles of law which require the CoC to consider, evaluate, deliberate and decide, exercising their commercial wisdom, any resolution plan in entirety.

In light of the recent judgment passed by the  Supreme Court in Essar Steel (supra), the principle/procedure for distribution of the sale proceeds by the CoC to the creditors of the relevant sale company shall be in accordance with the same. The Supreme Court has held that it is the commercial wisdom of the CoC, which operates to approve what is deemed by a majority of such creditors to be the best resolution plan[15].  There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in the CoC meetings through voting is a collective business decision[16].

The legislature, therefore, consciously, has not provided any ground to challenge the “commercial wisdom” of the individual financial creditors or their collective decision before the Adjudicating Authority and accordingly, it is made non-justiciable[17].

What is left to the majority decision of the CoC is the “feasibility and viability” of a resolution plan, which takes into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. It is the commercial wisdom of this majority of creditors which is to determine, through negotiation with the prospective resolution applicant, as to how and in what manner the corporate resolution process is to take place. Ultimate discretion of ‘what to pay and how much to pay each class or sub-class of creditors’ is with the CoC[18].

NCLT/NCLAT cannot interfere on merits with the commercial decision taken by the CoC, the limited judicial review available is to see that the CoC has taken into account the fact that[19]: (a) the corporate debtor needs to be maintained as a going concern during the resolution process; (b) it needs to maximise the value of its assets; and (c) the interests of all stakeholders including operational creditors has been taken care of[20].

If NCLT/NCLAT finds that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the CoC to re-submit such plan after satisfying the aforesaid parameters[21]. The reasons given by the CoC while approving a resolution plan may be looked at by NCLT/NCLAT only from this point of view, and once it is satisfied that the CoC has paid attention to these key features, it must then pass the resolution plan, other things being equal[22].

As stated earlier, in the present case, IL&FS has called upon the creditors to grant an in-principle approval on the bid, without even knowing, much less evaluating, the relevant particulars of the bid including the proposed manner of payout, the proposed distribution, the schedule of payment etc. CoC cannot be dictated by the IL&FS and be told that the distribution shall be as per the orders passed by the NCLAT, which as per settled law, has a limited jurisdiction in such matters. Such an action being preposterous and being in teeth of the law, is liable to be nipped in the bud itself and should not have been allowed by NCLAT.

Public Interest in insolvency process/restructuring process (by whatever name be it called)

The expressions ‘Public Interest’ cannot be extended beyond its purport and cannot be used to contradict the express provisions of special law i.e. IBC, enacted by Parliament. Public interest is an expression which is wide and amorphous and takes colour from the context in which it is used[23].

In Municipal Corporation of City of Ahmedabad v. Jan Mohd. Usmanbhai[24], the  Supreme Court held that the expression ‘in the interest of the general public’ is of wide import inter alia comprehending economic welfare of the community. In R. v. Bedfordshire[25], it was held that public interest is a matter in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.

The phrase ‘public interest’ in relation to resolution process commands protection of existing rights of stakeholders and by no stretch of imagination, the ‘public interest’ can be used to create a new right in favour of any of the stakeholders, which never existed in the law. Therefore, to say that for protection of rights of ‘shareholder’ and ‘related party creditors’, pro rata mechanism should be followed for distribution of the amount does not pass the muster of law. Provisions of the company law have treated shareholders differently from the creditors since its inception. Even the Companies Act also provides water fall mechanism and the shareholders and unsecured creditors (i.e. related party creditor in this case) are not treated at par with the other secured creditors. Therefore, at the time of purchasing the share and/or granting the unsecured loan, the respective parties were aware of their rights and such rights cannot be altered/modified under the pretext of ‘public interest’.

It is relevant to point out that the insolvency or resolution process of a stressed entity/ corporate debtor is not a private matter, but falls within the ambit of ‘public interest’[26].

The phrase ‘Public interest’ inter alia includes:

  1. protection of existing rights of stakeholders;
  2. debts would be taken and honored in accordance with the terms thereof[27];
  3. no action is undertaken which would affect the provision of credit in the economy[28]; and
  4. respect and follow the statutory framework for mechanism of distribution of the amount i.e. waterfall mechanism even if it provides for positive discrimination amongst the stakeholders.

Having left with no case law in India dealing with the issue, it would be appropriate to refer the judgments of Courts at Singapore, wherein it has been considered as to pari passu principle has any scope for operation in schemes of arrangement[29]. It has been held that adoption of pari passu principle would be tantamount to turning a blind eye to fundamental aspects of corporate rescue mechanisms outside liquidation in general and of a scheme of arrangement in particular (which in case of resolution process would be resolution framework/resolution plan)[30]. It was further held that a rescue mechanism may need, in order to be effective, to discriminate amongst creditors for example by repaying bigger creditors proportionately less than small creditors are repaid[31]. Dictating that the assets should be distributed in a pari passu manner would not only decrease the flexibility now available to planners of schemes but it may also put a dampener on what the scheme of arrangement could achieve and spell the death knell of the company prematurely[32]. The  Court further held that there are also instances where schemes of arrangement have nothing to do with insolvency at all. In relation thereto, it was held that extending the pari passu principle to such schemes of arrangement which do not lead to insolvency would be to go farther than is necessary[33].

In light of the aforesaid, whether the present IL&FS matter be termed as the one undergoing insolvency resolution process or mere resolution process, the application of pari passu principle falls foul of canons of law in Essar Steel (supra)[34], wherein it was inter alia held that equality principle cannot be stretched to treating unequals equally, as that will destroy the very objective of the IBC – to resolve stressed assets. Equitable treatment has to be accorded to each creditor depending upon the class to which it belongs. Swiss Ribbons[35] referred to the UNCITRAL Legislative Guide which makes it clear that equitable treatment is only for similarly situated creditors.[36]

No power of moratorium under Sections 241 and 242 of CA 2013 especially de hors the principles of IBC

Another aspect to be considered as regards the IL&FS Group Companies is that the premise of Union of India to approach the  NCLT and NCLAT was to seek an order akin to moratorium under the CA 2013, as IL&FS being a financial service provider was excluded from the application of the IBC. Therefore, IL&FS could not avail moratorium under Section 14 of IBC.

The Union of India passed the notification under Section 227 of the IBC, whereby the Financial Service Provider Rules were notified on 15-11-2019. Therefore, the NCLAT erroneously observed at para 56 that ‘IL&FS and its Entities, being financial service providers, no application under Sections 7, or 9 or 10 of the I&B Code can be filed against them’. It is relevant to note that several group companies of IL&FS are not financial service providers and can avail of provisions of IBC. Therefore, the fundamental premise of the Union of India that IL&FS cannot avail of the process under the IBC and therefore an order ought to be passed under the CA 2013, does not apply to several group companies (Ref: Para 20 of NCLT order dated 12-1-2018).

Separate legal personality of IL&FS group entities/companies cannot be obliterated in proceedings under Sections 241/242 of the Act. Sections 241 and 242 of the CA 2013 does not provide for initiation of proceedings against multiple companies and is strictly confined to a single company. The definition of the expression ‘matters’ appearing in Section 242, as set out in Appendix II of the CA 2013, further strengthens this position as the same is limited to matters as regards the company complained of. Though the  Tribunal has the power to regulate its own procedure under Section 424 of the CA 2013, the same is subject to other provisions of the CA 2013, IBC and the Rules/Regulations made thereunder. Therefore, Section 242 of the CA 2013 as well as Rule 11 of the NCLAT Rules, 2016 cannot be construed to unjustifiably enlarge and expand the powers of the NCLAT.

Conclusion

The resolution mechanism, as set out in the Resolution Framework is in blatant violation and non-compliance of several provisions of IBC as well as the CA 2013. By the Resolution Framework, IL&FS proceeded to constitute CoC for the IL&FS Group Entities concerned, in contravention of the IBC and further called upon the CoC to grant an in-principle approval on the bid, without even knowing, much less evaluating, the relevant particulars of the bid including the proposed manner of waterfall mechanism, the proposed distribution, the schedule of payment, etc.

The Resolution Framework, as framed by IL&FS and blessed by NCLAT, has chosen to adopt a procedure as per its whims and fancies without any backing whatsoever in law. It is surprising to note as to how NCLAT while ignoring the aforesaid has gone ahead and blessed the IL&FS’ action, in a hurried manner.

The order dated 15-10-2018 stands challenged before the Supreme Court in L&T Infrastructure Finance Company Ltd.v. Union of India[37], and the  Supreme Court was apprised of the order on jurisdiction was to be passed by NCLAT. The matter was, therefore, adjourned to be listed after the pronouncement of the order. Soon the  Supreme Court would consider the order in the pending matters as well as the fresh appeals which may be listed once the havoc of COVID-19 ends. It is now only with the  Supreme Court to examine the aforesaid issues which would result into setting aside of the order and further passing of stricture/directions, if necessary, to ensure that NCLAT does not jump the wall from West Berlin to East Berlin again.


*Anurag Tripathi, Alumni (2009-14) National Law University Odisha, now working as In-house Counsel at an Indian Conglomerate and may be reached at anuragnluo@gmail.com. The views expressed herein are personal and does not represent views of any organisation. 

[1] Union of India v. Infrastructure Leasing & Financial Services Ltd.., Company Appeal (AT) No. 346 of 2018 with IAs Nos. 3616, 3851, 3860, 3962, 4103, 4249 of 2019, 182 & 185 of 2020, order dated 12.03.2020.

[2] Essar Steel India Ltd. v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478.

[3] Swiss Ribbons  Pvt. Ltd.  v. Union of India, (2019) 4 SCC 17.

[4] Solidaire India Ltd. v. Fairgrowth Financial Services Ltd., (2001) 3 SCC 71.

[5] Innoventive Industries Ltd v. ICICI Bank, (2018) 1 SCC 407.

[6] Jaipur Metals and Electricals Employees’ Organization v. Jaipur Metals and Electricals Ltd., (2019) 4 SCC 227.

[7] Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407.

[8] ArcelorMittal India Pvt. Ltd.  v. Satish Kumar Gupta, (2019) 2 SCC 1.

[9] Swiss Ribbons  Pvt. Ltd.  v. Union of India, (2019) 4 SCC 17, paras 27, 28.

[10] Duncans Industries Ltd.  v. A. J. Agrochem, (2019) 9 SCC 725.

[11] Essar Steel India Ltd. v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478.

[12] The 2019 Ordinance now stands repealed by the Insolvency and Bankruptcy Code (Amendment) Act, 2020. Since the present order was passed on 12-3-2020 March 12, 2020 and the 2020 Amendment was enacted and notified on 13-3-2020 March 13, 2020, reference has been made to the 2019 Ordinance in the body and the 2020 Amendment is mentioned for sake of clarification.

[13] Chitra Sharma v. Union of India, (2018) 18 SCC 575 and Vijay Kumar Jain v. Standard Chartered Bank, 2019 SCC OnLine SC 103.

[14] Essar Steel India Ltd. v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478, paras 33, 41, 42 and 58.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Moon Technology Ltd. v. Union of India, CA No.4476 of 2019.

[24] Municipal Corpn. of City of Ahmedabad v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20.

[25] R. v. Bedfordshire, 24 LJ QB 84; Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.

[26] U.K., Cork Committee, Insolvency Law and Practice (Cmnd. No. 8558) by Kenneth Cork et al. (London: Her Majesty’s Stationary Office, 1982) (“Cork Report”); In re Pantmaenog Timber Co. Ltd., [2004] 1 A.C. 158 at para 52 (H.L.) and Liquidator of W&P Piling Pte Ltd v. Chew Yin What [2004] 3 SLR  (R) 164 at para 26 (H.C.).

[27] Ian F. Fletcher, “Juggling with Norms: the Conflict Between Collective and Individual Rights Under Insolvency Law” in Ross Cranston, ed., Making Commercial Law: Essays in Honour of Roy Goode (Oxford: Clarendon Press, 1997) at 393.

[28] Fiscal and Financial Policy Sub-Committee, Report of the Fiscal and Financial Policy Sub-Committee by Keith Tay et al. (Singapore: Singapore National Printers Ltd, 1986) at 63 and Cork Report, supra note 26.

[29] Hitachi Plant Engineering & Construction Co. Ltd v. Eltraco International Pte Ltd.,  [2003] 4 SLR (R) 384 (CA); [2003] SGCA 38.

[30] Id., para 79

[31] Id., para 81

[32] Id.

[33].Id., para 85 and followed by Re Wan Soon Construction Pte Ltd., [2005] 3 SLR(R) 375: [2005] SGHC 102.

[34] Steel India Ltd. v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478, paras 49, 51, 54,55, 56, 57, 58.

[35] Swiss Ribbons Pvt. Ltd. v. Union of India, (2019) 4 SCC 17, para 76.

[36] Steel India Ltd. v. Satish Kumar Gupta, 2019 SCC OnLine SC 1478.

[37] L&T Infrastructure Finance Company Ltd. v. Union of India, CAs Nos. 2397-98 of 2019; GHV (India) Pvt. Ltd. v. Union of India, CA (Diary) No. 6403 of 2019.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.

In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added. 

During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them. 

Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The instant writ petition entertained by Sujit Narayan Prasad, J. was filed under Article 226 of the Constitution of India for quashing the Memo issued by the respondent whereby the water reservoirs in the urban area has been directed to be handed over in favor of the municipality.

The petitioner had contended that certain water reservoirs had been settled in favor of the petitioner for the year 2016-17 and in terms of the contract the petitioner carried out the fishing work in the aforesaid tanks but all of a sudden the impugned decision was taken on by which the tank was transferred in favor of the municipality therefore, the ground was raised that when the terms and conditions of the contract was in subsistence during the course when the impugned order was passed, the same cannot be done in the course of subsistence period of the contract, hence the impugned order was not sustainable in the eyes of law.

Counsel for the State-respondent Gautam Kumar, submitted that the impugned decision was taken in terms of the Cabinet decision which was issued by the appropriate authorities and the said Cabinet decision was taken in pursuance to the provision of Section 126 of the Jharkhand Municipal Act, 2011 wherein the provision was made about vesting of property which includes public tanks/reservoirs also, therefore, if the Cabinet took a decision to follow the statue and in terms thereof any decision which was taken, the same cannot be interfered with.

The Court observed that the tanks in question were settled in favor of the petitioner in the year 2016-17 by the order in that regard by the competent authority but in course of subsistence period of the contract the impugned decision was taken to transfer the tanks in favor of the municipality by taking aid of the decision by the State of Jharkhand. It further found no dispute about the settled position of law that if any Act has been acted upon, it was to be followed in its strict sense and there cannot be any deviation otherwise it will be said that the rule of law was not prevailing. It held, “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect.” Hence, the petition was dismissed.[Somath Haldar v. State of Jharkhand, 2019 SCC OnLine Jhar 683, decided on 13-06-2019]

Case BriefsHigh Courts

Madras High Court: A Bench of S.M. Subramaniam, J. while addressing a writ petition stated that “If a deity in a temple commits an act of encroachment, that is also to be dealt with, in accordance with law and because it is a deity, the Rule of Law cannot be diluted.”

The present writ petition was filed in regard to the removal of the unauthorised construction in the name of Vinayagar Temple in Revenue Divisional Office, Coimbatore.

For the above-stated concern, the High Court was of the opinion that various temples on public roads, Government Poramboke areas, Water bodies and Water resources are being constructed by few land mafias and greedy men for personal gains and for unlawful enrichments. The reason behind the construction of these temples at such places is either to grab land or personal unlawful enrichment. It has also been stated by the Court that these temples are constructed without obtaining the required permissions from the authorities concerned.

“Even Deity as a legal person, cannot commit an act of encroachment.”

Therefore, taking into consideration the issues as stated above, the High Court stated that, Temples, Churches, Mosques or any other religious institutions, if constructed by encroaching public roads causing inconvenience to vehicular traffic or if any constructed in water resources and water bodies, depriving the citizen to get water resources, then all to be dealt in accordance with law as stated earlier.

Thus the bench concluded the order by stating the need to implead the “State” as the party for consideration of issues appropriately. Learned counsels were requested to file counter affidavit and statistics regarding the existence of all such Temples, Churches, and Mosques in an encroached public land, Poramboke lands, water bodies, and water resources. Further, the matter was posted for 21-01-2019. [K. Ramakrishnan v. District Collector, 2019 SCC OnLine Mad 36, Order dated 04-01-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. allowed a petition challenging the obstruction caused by Auto Rickshaw Union of Irrity area to the driver who was stopped from plying his vehicle despite possession of a valid permit.

Petitioner, owner of a contract carriage (auto rickshaw) obtained a contract carriage permit to ply the said vehicle in the place mentioned therein, subject to the condition that he shall not park it or pick up passengers in it from/within the city. However, he was forcefully obstructed from parking the vehicle at Iritty by the Irrity Auto Rickshaw Union stating that the same could be done only by members of their Union. Petitioner’s representations to the police yielded no results which prompted him to file the instant petition contending that the actions of Irrity Auto Rickshaw Union were contrary to the provisions of law and his vested rights.

The Court held that in so far as the petitioner was plying the vehicle strictly in terms of contract carriage permit obtained by him, there could not be any forceful obstruction from any corner. The petition was disposed of opining that in case of any such obstruction, the same be brought to the notice of Sub Inspector of Police who was directed to intervene then and there and take appropriate remedial measures to abate the threat to the rule of law. [Sumesh M.G. v. District Collector, Collectorate, Kannur, 2018 SCC OnLine Ker 5795, decided on 20-12-2018]

Legislation UpdatesRules & Regulations

Under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 use of loudspeakers/public address system is restricted in the following manner:

A) They can only be used after obtaining permission from any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer, not below the rank of the Deputy Superintendent of Police, designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force.

B) The loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within, e.g. auditoria, conference rooms, community halls and banquet halls.

C) The State Government may, subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.

Further the Supreme Court of India has passed the following directions in Noise Pollution (V), In re, (2005) 5 SCC 733 at page 782:

1. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10.00 p.m. and 6 a.m.) except in public emergencies.

3. The peripheral noise level of privately-owned sound system shall not exceed by more than 5 dB(A) than the ambient air-quality standard specified for the area in which it is used, at the boundary of the private place.