Legal News & Views

In the matter of M/S MADRAS PETROCHEM LTD. & ANR.  Vs BIFR & ORS., by  a judgment dated 29 Jan 2016, the Hon'ble Supreme Court opined that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 1985 to the extent of inconsistency therewith. The judgment has given in the context of a rather convoluted matter wherein petitions and appeals have been filed before several High Courts, DRTs and DRAT, primarily due to the difference in the opinion of various courts of law on primacy of several important Acts having Non Obstante clauses. The Hon'ble court in a 32 page judgement, the court stated that the following two questions which arise on the facts of this case::- (1) Whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 19

In INDIAN MACHINERY COMPANY Vs M/S. ANSAL HOUSING & CONSTRUCTION LTD., the Hon'ble Supreme Court stated that only question that has arisen in this appeal is whether a second complaint to the District Forum under the Consumer Protection Act, 1986 is maintainable when the first complaint was dismissed for default or non- prosecution. The National Commission has taken the view in the impugned order that the second complaint would not be maintainable. The Hon'ble court decided that there is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appear

High Court of Chhattisgarh has held that the exclusion of widowed daughter-in-law in compassionate appointment policy is constitutionally impermissible and to that extent void. Justice Sanjay K. Agrawal made this observation in Duliya Bai Yadav vs. State of Chhattisgarh. The High Court, in a petition filed by a widowed daughter in law of a deceased employee challenging the order rejecting her application seeking compassionate appointment, said that implied exclusion of daughter-in-law from the fray of consideration by the State Government without considering the fact as to whether the daughter-in-law is dependent or not is constitutionally impermissible. Article referred: http://www.livelaw.in/exclusion-of-widowed-daughter-in-laws-in-compassionate-appointment-schemes-constitutionally-impermissible-chhattisgarh-hc/

Full Bench of Allahabad High Court in Yogesh Agarwal vs. Union of India has held that eviction order passed under Section 5A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is not appealable. Bench comprising of the Chief Justice Hon’ble Dr Dhananjaya Yeshwant Chandrachud, Justices Manoj Kumar Gupta and Yashwant Varma held that High Court in the exercise of its jurisdiction under Article 226 cannot create the remedy of an appeal. The power and jurisdiction to legislate for an appeal lies in the legislature. The Full bench was answering a reference to it by a Single Bench which doubted the correctness of judgment in Sanjay Agarwal vs. Union of India. Article referred: http://www.livelaw.in/eviction-order-passed-under-s-5a-of-public-premises-eviction-of-unauthorized-occupants-act-not-appealable-allahabad-hc-fb/

A recent verdict given by Justice Naveen Rao of the Hyderabad High Court states that daughters too are equally entitled to their deceased father’s terminal benefits. While dismissing a petition filed by one C Chandrasekhar, son of a deceased employee of Tirumala Tirupati Devasthanams (TTD), the judge ruled that an employer is not at fault if he decides to distribute the terminal benefits of a deceased employee in equal parts among the sons, daughters and other heirs of that employee. Chandrasekhar has however challenged the decision on the basis of argument that his father had nominated his mother; she should receive all the benefits and also that his sister is married and is not entitled. Article referred: http://sakshipost.com/index.php/news/state/71789-daughters-equally-eligible-to-fathers-terminal-benefits-high-court.html?psource=Feature

A suicide note alone is not proof enough to charge someone with abetting a suicide, the Bombay high court has said in a decision that is likely to spur a debate on the contentious issue. The HC ruled last week that one cannot be held guilty of abetment “merely because a relationship fails”. There must be evidence of the accused having “intentionally aided, or instigated” the victim to end his or her life. Article referred: http://www.hindustantimes.com/india/suicide-note-not-proof-enough-for-abetment-charge-rules-hc/story-ZSaEhaKVfSJuahkS1N4hlL.html

The Supreme Court disposed of a land dispute pending for more than forty years, and sympathised with the appellant landlord and stated in their judgment: “The facts unfold the plight of a poor landlord languishing in courts for over fourty years. The case gets sadder when we note that appellant had been successful both in the trial court and the first appellate court and the saddest part is that the high court in second appeal, went against him on a pure question of fact!” Article referred: http://www.legallyindia.com/bar-bench-litigation/sc-laments-plight-of-poor-landlord-as-overturns-40-year-old-perverse-rajasthan-hc-order

Cash and valuables recovered by police in the course of investigation need not be necessarily handed over to their owners pending trial since criminal courts only decide on granting interim custody to a person who lays a better claim of possession over the properties and it is up to civil courts to decide on lawful ownership after conclusion of criminal trial, the Madras High Court Bench here has said. Article referred: http://www.thehindu.com/news/cities/Madurai/interim-custody-of-seized-property-does-not-confer-ownership/article8074694.ece

Bombay High Court : Allowing an appeal preferred against the trial court verdict, A.R. Joshi, J., acquitted film star Salman Khan of all the criminal charges, and held that the prosecution failed to discharge its burden of proving the charges beyond reasonable doubt. The appellant was alleged to have run his car, under the influence of alcohol, over a group of persons sleeping on the footpath on 28th September, 2002. Earlier, the Trial Court had found him guilty of various offences under the Penal Code, 1860 including causing death by negligence against which the present appeal was preferred. Article referred: http://blog.scconline.com/post/2016/01/04/prosecution-must-discharge-its-burden-of-proving-the-case-beyond-reasonable-doubt/

Supreme Court : While upholding the order of the Bombay High Court, the division bench of Vikramajit Sen and S.K. Singh, JJ.,  held that in accordance with the Insurance Act, 1938, the policies issued by the appellant are both assignable and transferable.The bench also ruled that it is not appropriate to import the principles of public policy, which are always imprecise, difficult to define, into contractual matters. The Court, on perusing the contentions and concerned statutory provisions, dismissed the appeal and observed that the amended Section 38 of the Insurance Act is not declaratory and was not intended by the legislature to make it retrospective in nature. The Court referred to its judgment in Avinder Singh v. State of Punjab, (1979) 1 SCC 137 and Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 wherein it has been held that “Legislature cannot face itself by delegating its plenary powers unless the delegate functions strictly under its provi

On 18th January, the Hon'ble Supreme Court while hearing on M/s Ganapathy & Co vs. CIT said that  - it is well settled that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and reappraisal of the evidence on record. The legal position in this regard may be summed up by reiterating that it is the Tribunal which is the final fact finding authority and it is beyond the power of the High Court in the exercise of its reference jurisdiction to reconsider such findings on a reappraisal of the evidence and materials on record unless a specific question with regard to an issue of fact being opposed to the weight of the materials on record is raised in the reference before the High Court. Having reiterated the above position in law we do not see how the same can be said to have been transgressed

The Supreme Court has held that the sufficiency of injury to cause death must be proved to sustain a conviction under Section 302 of Indian Penal Code and that cannot be inferred from the fact that death has taken place. Three Judge Bench comprising of the Chief Justice, T.S. Thakur, Justices A.K. Sikri and R. Banumati, in Nankaunoo vs State of UP, modified conviction of an a person who was convicted for murder as that under Section 304 Part 1 IPC. In this case, the appellant was accused of killing the deceased using a country made pistol which was never recovered during investigation. Relying on the oral testimony and medical report, the Trial Court had convicted the accused. The High Court affirmed conviction. He approached Apex Court. Article referred: http://www.livelaw.in/sufficiency-of-injury-to-cause-death-must-be-proved-to-sustain-a-conviction-under-section-302-ipc-sc/

Patna High Court has held that Division Bench of a High Court cannot exercise its power of superintendence, under Article 227 of the Constitution of India, against an order made, in a suit, by a Single Bench of the High Court. Division Bench comprising of Acting Chief Justice I.A. Ansari and Justice Chakradhari Sharan Singh observed that single Judge or a single Bench of a High Court is not a court subordinate to the Division Bench of the High Court. Article referred: http://www.livelaw.in/division-bench-has-no-supervisory-jurisdiction-over-single-bench-of-high-court-patna-hc-db/

The Bombay High Court in Shakil Ahmad Jalaluddin Shaikh vs. Vahida Shakil Shaikh has held that, mere existence of a document like talaqnama, is not sufficient to render a valid Talaq. Justice M.S. Sonak held that, for a valid Talaq, it is not sufficient that the prescribed expressions are pronounced thrice but the stages it is preceded by, are required to be pleaded and proved before the Court, if disputed by wife. Article referred: http://www.livelaw.in/talaqnama-not-sufficient-proof-of-muslim-divorce-bombay-hc/

In a significant ruling, Supreme Court of India has held that the provisions of the SARFAESI Act cannot override the provisions of the Rent Control Act. Apex Court Bench comprising of Justices V. Gopala Gowda and Amitava Roy, in Vishal N. Kalsaria vs. Bank of India, said that non obstante clause as in section 35 of the SARFAESI Act cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act. Article referred: http://www.livelaw.in/sarfaesi-act-cannot-override-rent-control-laws-tenants-cannot-be-evicted-using-provisions-of-sarfaesi-act-supreme-court/

Bombay High Court has come down heavily on police officers for illegally detaining two doctors for more than two weeks in connection with a crime which was bailable. Division Bench comprising of Justices Ranjit More and Anuja Prabhudessai directed the Commissioner of Police to enquire into the matter of illegal detention and to take disciplinary action against the erring police officers. Costs of Rs. 50,000 was also directed to be paid to the doctors, which is to be borne by the errant police officers themselves. In this case, allegation against these doctors, who were brothers of the main accused, was that they cheated the complainant by giving false promise of marriage and thereby calling it off. The main accused was also charged with Section 376 IPC.  All of them were arrested on 7th June 2015 and despite directions of the High Court to consider their bail applications expeditiously, the Sessions Court failed to do so. They were finally released on 24th June 2015 following direction

Supreme Court: While deciding upon the issue that whether an accused can be convicted only on the basis of suspicion and circumstantial evidence without any direct proof given by the prosecution, the Division Bench of V. Gopala Gowda and Amitava Roy, JJ., held that it would be unjustified to convict an accused only on the basis of suspicion and circumstantial evidence until and unless that evidences are corroborative with direct proof given by the prosecution. The Court thereby set aside the decision of High Court of Patna and held that an accused cannot be convicted until and unless all charges against him are proved beyond any reasonable doubt by the prosecution. Article referred: http://blog.scconline.com/post/2016/01/01/conviction-only-on-the-basis-of-suspicion-and-circumstantial-evidences-is-unjustified/

Punjab and Haryana High Court: While considering the present issue that whether the petitioners should be granted protection of their life by the State, R.S. Malik, J., observed that Article 21 of the Constitution, that enshrines the most precious fundamental right to life and liberty, must be protected. However the Court also stated that individual freedom being subject to time tested and established social norms is also an important part of the constitutional philosophy. The petitioners therefore, were held to be entitled for the protection of their life and liberty by the State. In the present case came in the wake of the private respondent’s refusal to accept the marriage of the petitioners. The petitioners via their counsel R.K. Mattoo, contended before the Court that there is an apprehension for their life and liberty from the private respondents. Article referred: http://blog.scconline.com/post/2015/12/30/protection-of-right-to-life-and-liberty-by-the-state-and-balance-betwee

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court. In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant has aban

Bombay High Court has held Kishor Dattatraya Shinde vs. State of Maharashtra, held that mere harassment alone, would not amount to abetting a person to commit suicide. Division bench comprising of Justice Ranjit More and Justice V. L. Achliya, there has to be a direct or clear intention or means rea to commit the offence to attract the provisions of section 306 of the Indian Penal Code. The petitioner in this application was a senior official of the deceased. He was accused of the offence under Section 306 of the IPC. The allegations made in the FIR was that the senior officers of deceased were harassing him and he was not given leave and because of that he committed suicide. In the suicide note, deceased has stated that the petitioner and two others made him suffer hardships. Article referred: http://www.livelaw.in/mere-harassment-alone-would-not-amount-to-abetment-to-commit-suicide-bombay-hc/

High Court of Australia: In the instant case, the respondent sustained serious spinal injuries which rendered her paraplegic, when she was thrown from the back seat of a car being driven by the appellant who was drunk at the time of the accident. The issue for determination was whether the respondent was contributorily negligent  for choosing to travel in the car driven by the appellant when she ought to have known that he was intoxicated and, secondly, for failing to engage her seatbelt. The trial Judge rejected the contention of the respondent that the appellant’s erratic driving had prevented her from fastening her seatbelt and held that failure to wear a seatbelt constitutes contributory negligence under Section 49 of the Civil Liability Act 1936. The Judge further held that the exception in Section 47(2)(b) of the Act applies in the present case as the respondent could not reasonably be expected to have avoided the risk of riding with the appellant in the circumstances. Article

The Supreme Court has held that the mere fact of carrying more passengers than the permitted seating capacity in a goods vehicle by the insured person did not amount to a fundamental breach of the terms of the policy and the insurance company would still be liable to pay damages. In this case, Lakshmi Chand vs Reliance General Insurance, six passengers were travelling in a goods vehicle whereas only one along with the driver was allowed. It met with an accident caused by the rash driving of another vehicle. The owner of the first vehicle demanded money to repair the vehicle. The insurer denied it on the ground that the vehicle had violated the policy conditions. The Haryana and National Consumer Commissions accepted the view of the insurance company. Reversing their rulings, the Supreme Court stated that the burden to prove breach of condition was on the insurance company and in this case, it had not proved that the accident occurred due to overloading. Article referred:http://www.bu

The Hyderabad High Court has made it clear that in the matter of disciplinary proceedings a differential treatment cannot be meted out to an accused contract employee from regular employees of an organisation. “Even if the petitioner accused is treated as a purely temporary contract employee, she/he is entitled to protection under Article 311 (2) of the Constitution as in the case of permanent government servants if her/his services are sought to be terminated on the ground of misconduct.” Justice CV Nagarjuna Reddy made these observations on a writ petition filed by a woman questioning the proceedings of the AP Women’s Co-operative Finance Corporation terminating her services as district manager (temporary) under contract employment. Article referred: http://www.newindianexpress.com/cities/hyderabad/Disciplinary-Action-Cant-be-Different-in-Case-of-Contract-Employees-HC/2016/01/18/article3232258.ece

Justice Vaidhyanathan on pointing out that the Supreme Court had held in a plethora of decisions that a financier had a right to resume possession of the goods even if the hire purchase agreement did not contain a specific clause for resumption of possession, directed the police to quash the FIR filed against the bank. As per the case, T Karuppiah of Madurai had obtained a loan of Rs 9 lakh from the HDFC bank in Madurai to buy a car. But, since he had failed to repay the loan, the bank after issuing notice to him, took the car into its custody. Acting on a complaint from Karuppiah that the bank officials had robbed his car, the Kadupatti police booked the bank under section 379 IPC and also asked the bank to surrender the vehicle as it was required for investigation as well as production before the court. This prompted the bank to approach the court seeking to quash the FIR. Article referred: http://www.dtnext.in/News/City/2016/01/01203929/Banks-can-seize-vehicles-in-loan-cases-H

There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party, the Court said. The Supreme Court in Malati Sardar vs. National Insurance Company Limited has restated its earlier position in Mantoo Sarkar vs. Oriental Insurance Company Limited (2009) 2 SCC 244 regarding territorial jurisdiction of Motor Accident Claims Tribunal. Apex Court Bench of Justices Anil R. Dave and Adarsh Kumar Goel held that there is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. Context A young teacher from Hoogly died in an accident in 2008. The Tribunal in Kolkata, on his application awarded a compensation of Rs.16, 12,200/-. The appeal preferred by the Insurance Company preferred was allowed on the ground that the Tribunal has no jurisdiction since the dece

Bombay High Court has held that if a wife files false criminal case against the husband and his family members in which the husband and his family members ultimately gets acquitted, it amounts to cruelty. Justice R.D Dhanuka said that on this very ground, the Husband is entitled to seek divorce from the wife. Background In this case, the wife filed a complaint against Husband and his family under Section 498A of Indian Penal Code. The Husband filed petition for divorce. After conducting trial, the case lodged by the wife resulted in acquittal in 2007. Meanwhile Husband got his Divorce petition allowed in 2008. The state preferred appeal against the acquittal and the wife preferred appeal against grant of Divorce. The former was dismissed and the latter was allowed and Divorce decree was set aside by the appellate court. The acquittals were not further challenged. Husband preferred appeal against the setting aside of Divorce decree by the Lower appellate court. Article referred: http:

In United India Insurance Co. Ltd. VS M/s Orient Treasures Pvt. Ltd.,the respondent company while appealing against the claim allowed by the National Consumer Disputes Redressal Commission as being too low. The issue was that respondent company’s claim after being burgled was rejected by the insurance company as according to the insurer the burglary took place in the night when the jewellery was kept in window display neither of which was covered by the policy. Among the interesting aspect of this matter is that both the litigants referred to the same court decisions claiming that the said judgments support their cause. (This is a prefect example of the denseness of the legalese. It has been said that the language used in India is more archaic than that used in England). In any case the respondent company tried to invoke the “contra proferentem” rule claiming ambiguity in the language of the policy. The insurer said there is no ambiguity and that the respondent never raised this issu

Appeal was filed by the petitioner before the Hon'ble Supreme Court in the matter of M/s Sciemed Overseas Inc. Versus BOC India Limited & Ors. SLA (C) NO. 29125 OF 2008. The matter relates to a tender issued by Rajendra Institute of Medical Sciences, Ranchi to which Sciemed Overseas Inc. & BOC India responded. Subsequently BOC filed a representation to RIMS and then to the High Court complaining that Sciemed Overseas had not fulfilled the conditions of the technical bid. has been awarded the contract when they have not fulfilled the required terms. While the matter was pending before the Hon'ble court, the tender was awarded to Sciemed Overseas. Thereafter when BOC went before the High Court objecting to the award, the same was initially dismissed by the Hon'ble Court. BOC then appealed before the Hon'ble Supreme Court. While the appeal was pending the petitioner informed the court the among other things more than 85% of the work has been completed. Due to thi

In Pegasus Assets Reconstruction P. Ltd. ..Appellant vs M/s. Haryana Concast Limited & Anr. ...Respondents This matter raised a common issue of law: Whether a Company Court, directly or through an Official Liquidator, can wield any control in respect of sale of a secured asset by a secured creditor in exercise of powers available to such creditor under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity the SARFAESI Act), arises in all these matters which have been heard together and shall be governed by this common judgment. The rival contention and case laws were noted for framing the main question of law in the following words : - Whether the Company Court enjoys jurisdiction to issue supervisory direction to a securitization company/ secured creditor in connection with a company in liquidation or under winding up in the face of Section 13 of the SARFAESI Act or securitization company opting to stand outside

Central Bank Of India vs Virudhunagar Steel Rolling Mills ... on 29 December, 2015, Respondent No.1 which is the company which received various credit facilities from the Appellant Bank, of a total amount of [pic]12 lacs against security of moveable as well as raw materials. These facilities were subsequently secured in favour of the Appellant Bank by means of continuing guarantee by the Directors of the Respondent Company, who are Respondent Nos. 2 to 4 herein, in terms of Promissory Notes, Letters of Guarantee, Letters of Hypothecation and Letters of Continuity all dated 30.8.1974. On 30.6.1977 and again on 31.12.1977, by means of separate letters from the Respondent Company to the Appellant Bank, the entire balance due, stood confirmed. Eventually, the Appellant filed a suit on 2.5.1980 for recovery of [pic]3,94,805.42 with future interest at the rate of 14 per cent per annum. Trial Court and High Court decided that the liabilities prior to 30.8.1974 were not recoverable f