Legal News & Views

Interest paid for broken period should not be considered as part of the purchase price, but should be allowed as revenue expenditure in the year of purchase of securities. American Express vs. CIT 258 ITR 601 (Bom) affirmed, Vijaya Bank 187 ITR 541 (SC) distinguishe. Article referred: http://itatonline.org/archives/cit-vs-citibank-n-a-supreme-court-interest-paid-for-broken-period-should-not-be-considered-as-part-of-the-purchase-price-but-should-be-allowed-as-revenue-expenditure-in-the-year-of-purchase-of-securi/

While rendering relief to a woman who failed to procure back her gold ornaments from Muthoot Finance Pvt. Ltd., which were pledged while taking a loan, NCDRC directed the Finance Company to reimburse the woman with the current value of 52 grams gold pledged in 2003 with it.  While rendering relief to the complainant, Commission noted, “If the ornaments were sold, there has to be proof of sending notice to the complainant, as well as proof of the actual sale. Since no such record is available with the respondent, it must necessarily tell us, where the jewellery of the complainant is. That having not been done, the respondent must necessarily pay the current value of the gold ornaments which was stated to be Rs.1,14,400/- to the petitioner / complainant, after adjusting the principal amount lent to the complainant, along with the agreed interest.” Article referred: http://blog.scconline.com/post/2016/07/15/muthoot-finance-pvt-ltd-asked-to-reimburse-of-current-value-of-gol

This division bench of S. Manikumar and D. Krishnakumar, JJ held that there can be no order for condonation of delay beyond the extended period of limitation, stating that when the legislative intent is indicated by the provisions of special laws that exclude the provisions of the Limitation Act, then authorities under such statutes cannot exercise power to condone the delay. The Court dismissed the writ appeal filed by the Appellant under Section 85 of the Finance Act, 1994 against the refusal of condonation of a delay of 223 days in proceedings before the Commissioner of Service Tax (Appeals). Article referred: http://blog.scconline.com/post/2016/06/28/appellate-authorities-cannot-condone-delay-beyond-the-limits-specified-in-the-statute/

Upbraiding the Judicial Magistrate who had remanded the petitioner to judicial custody contrary to its orders, in spite of having been granted pre-arrest bail under Section 438 of the Criminal Procedure Code, the Bench of Sudheendra Kumar, J.  held that once a pre-arrest bail was granted, the same would be in force until either the court or a higher court cancelled the order, on the instance of the Public Prosecutor, on the discovery of new material or circumstances, or of abuse of the indulgence by the accused. Article referred: http://blog.scconline.com/post/2016/07/04/mistakes-by-judicial-officers-undermines-esteem-of-the-judiciary/

Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis. Article referred: http://blog.scconline.com/post/2016/07/16/an-advocate-cannot-appear-in-person-as-power-of-attorney-holder/

Reviving a bail order cancelled by the Principal Sessions Judge, Madurai, the bench of P. Devadass J. held that, in matters of cancellation of a bail order due to default in complying with the bail conditions, opportunity must be given to the accused persons to present their case. It was held that the cancellation of a bail order cannot be done mechanically as it involves withdrawal of the liberty that has already given to the accused; hence observance of principles of natural justice is a must. Article referred: http://blog.scconline.com/post/2016/07/19/cancellation-of-a-bail-order-by-a-judge-acting-like-an-inanimate-computer-without-adhering-to-the-principles-of-natural-justice-is-a-serious-issue/

he bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes. The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any pur

While interpreting the definition of ‘Husband’s relatives under Section 498A Penal Code, 1860, the Bench comprising of U. Durga Prasad Rao, J. held that the definition could not be stretched to include the wife of one’s elder brother. In the present petition, the Complainant and her husband went to live at the home of the Complainant’s eldest brother in London, who lived with his wife. It was alleged that the complainant’s husband and her sister-in-law entered into an illicit relationship, and that after the Complainant observed them in a compromising position, following which the sister-in-law started spreading rumours that husband of the Complainant did not like the Complainant and that she was unsuited to him. Article referred: http://blog.scconline.com/post/2016/07/05/wife-of-the-complainants-brother-not-a-relative-of-the-husband-under-s-498-a-ipc/

A two Judge Bench of the Supreme Court of India has cautioned the Trial Courts by saying that the virus of seeking adjournment has to be controlled. The Bench of Justices Dipak Misra and Rohinton F. Nariman re-iterated that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. “That apart, it has also been held that the Courts should constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated”, the Bench added Article referred: http://www.livelaw.in/virus-seeking-adjournment-controlled-sc/

The Supreme Court of India in COMMITTEE OF MANAGEMENT, LA MARTINIERE COLLEGE LUCKNOW, VS. VATSAL GUPTA AND ORS while maintaining strict interpretation of the law, has set aside an Allahabad High Court order wherein it had entertained a Writ petition against an unaided minority private Institution and had passed certain directions. Article referred: http://www.livelaw.in/writ-petition-not-maintainable-unaided-minority-institution-sc/

The Supreme Court in B.C. BIYANI PROJECTS PVT. LTD. VS. STATE OF MADHYA PRADESH AND OTHERS has held that order for blacklisting a company permanently is impermissible in law. A Bench comprising of Justices Madan B. Lokur and R.K. Agrawal was considering plea of a company which was blacklisted for the award of contracts by the state of Madhya Pradesh since it is stated that there was unreasonable delay in the completion of six contracts awarded to the appellant. The order of blacklisting was for an indefinite period. Article referred: http://www.livelaw.in/permanent-blacklisting-company-impermissible-law-sc/

A two Judge Bench of Supreme Court of India has held that Section 311-A of Code of Criminal Procedure which has been introduced by Act No.25 of 2005 with effect from 23.06.2006 with respect to the powers of the Magistrate to order the person to give specimen signatures or handwriting is prospective in nature. Article referred: http://www.livelaw.in/section-311a-crpc-empower-magistrate-order-give-specimen-signatures-not-retrospective-sc/

The Madras High Court bench has refused to interfere in a cheque bounce case, saying private complainants cannot prefer appeals against acquittal of the accused directly before it without approaching the sessions court concerned. Justice P Devadoss dismissed the appeal by one K Sudhakar against acquittal of the accused, by a judicial magistrate in Tiruchirapalli, saying the criminal appeal against the acquittal of the proprietor of a Chennai-based company was not maintainable. Article referred: http://legaltrigger.com/p/Madras-HC-dismisses-Appeal-in-Cheque-Bounce-case-#sthash.oAor5WcZ.dpuf

In a landmark order, the Bombay High Court has ruled a woman can invoke criminal provisions of the Domestic Violence Act against female relatives of her husband. Hearing a plea filed by Mumbai resident Sachin Patil and his family, challenging the case filed by his estranged wife, especially against his mother and sister, Justice Ravindra Ghuge said the special law to tackle domestic violence can't be restricted only to the husband's male relatives. Article referred: http://timesofindia.indiatimes.com/city/mumbai/Woman-can-invoke-Domestic-Violence-Act-against-husbands-mother-sister-HC/articleshow/53345463.cms

Delhi High Court has said that while courts have the power to issue injunction against arbitration proceedings, they should use it rarely. A bench of justices Badar Durrez Ahmed and Sanjeev Sachdeva said courts need to remind themselves that the trend was to minimise interference with arbitration which was the "forum of choice". Article referred:http://www.business-standard.com/article/pti-stories/courts-should-rarely-exercise-power-to-thwart-arbitration-hc-116072500296_1.html

Mere registration of criminal case cannot be a ground to revoke an arms license, the Bombay High Court has held while directing Pune Commissioner of Police to consider afresh an application of a Shiv Sena leader seeking renewal of his license. Article referred: http://economictimes.indiatimes.com/articleshow/53397464.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Magistrates cannot ask the police to investigate a private criminal defamation complaint as it is the complainant who needs to prove the case, the Supreme Court on Wednesday said while prima facie finding fault with a lower court order asking Maharashtra cops to probe the defamation case. Article referred: http://www.firstpost.com/india/police-cannot-investigate-private-criminal-defamation-complaint-against-rahul-gandhi-sc-2919054.html

The Supreme Court on Tuesday said some people appeared to have misunderstood its judgment upholding the criminal defamation provision in the IPC and thought that their right to free speech had been curtailed. During the hearing on Congress vice-president Rahul Gandhi's petition seeking quashing of a criminal defamation case against him, a bench headed by Justice Dipak Misra said, "Any criticism of someone does not make the speech a ground for launching criminal defamation proceedings under Sections 499 and 500 of Indian Penal Code." Article referred: http://timesofindia.indiatimes.com/india/Criminal-defamation-ruling-doesnt-curb-free-speech-SC/articleshow/53292598.cms

A Three Judges Bench of the Supreme Court Avtar Singh vs. Union of India, has summarized the principles to be followed by Employers while dealing with issues related to suppression of information or submitting false information in the verification form by employees/candidates as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case. Article referred: http://www.livelaw.in/suppression-information-employeecandidates-sc-issues-guidelines/

The Supreme Court in Sudhakaran vs. Corporation of Kochi has held that the requirement of consent of landlord is applicable only when a person intends to obtain a licence for the first time and not for Renewal or subsequent application for obtaining licence on expiry of the period of the existing licence, during the currency of the tenancy. Article referred: http://www.livelaw.in/tenants-application-renewal-conduct-business-cannot-rejected-want-consent-landlord-sc/

Application for Rejection of Plaint under Order VII Rule 11 of the Code of Civil Procedure can be filed at any stage and the Court has to dispose of the same before proceeding with the trial, the Apex Court has reiterated in R. K. ROJA VS. U. S. RAYUDU AND ANOTHER. Article referred: http://www.livelaw.in/application-rejection-plaint-can-filed-stage-shall-disposed-proceeding-trial-sc/

The Punjab and Haryana High Court in Mata Sundri Educational Welfare Society vs. Union of India has held that complete restriction cannot be imposed in respect of admission to academic courses on the basis of domicile of the State. Justice Rakesh Kumar Jain quashed a circular issued by Indian Nursing Council restricting admission to Auxiliary Nursing and Midwives (ANM) Course, only to the students domicile of the State of Punjab. The Circular was challenged by an Institute and a number of students contending that it is unconstitutional Article referred: http://www.livelaw.in/wholesale-restriction-on-admission-based-on-domicile-is-unconstitutional-punjab-haryana-hc/

In a significant ruling, the Madras High Court Bench here has held that fathers are liable to pay maintenance to children who had attained majority even if the latter were not suffering from any mental or physical abnormalities and yet do not have sufficient financial capacity to maintain themselves. Article referred: http://www.thehindu.com/news/cities/Madurai/major-children-entitled-to-maintenance-hc/article8841561.ece

The Supreme Court has held that a farmer, who is in possession of leased land even after expiry of the lease period, cannot be evicted if the owner either acknowledges the tenancy or is accepting the rent. Referring to a provision of the Transfer of Property Act, a three-judge bench headed by Justice Ranjan Gogoi set aside the judgement of the Punjab and Haryana High Court which had ordered the eviction of a farmer after expiry of the lease period of the land. Article referred: http://indianexpress.com/article/india/india-news-india/supreme-court-farmer-cant-be-evicted-from-leased-land-after-expiry-period/

The Supreme Court of India in U. SUBHADRAMMA VS. STATE OF A.P has observed that property of a person who was accused of an offence of misappropriation but who died during the pendency of the criminal trial cannot be attached in the hands of his legal representatives under the provisions of Criminal Law Amendment Ordinance, 1944. Article referred: http://www.livelaw.in/attachment-proceedings-against-an-accused-who-died-during-pendency-of-trial-impossible-sc/  

Suspecting the wife’s fidelity and questioning her for moving about with almost every other person, including her father, also amounts to domestic violence, entitling the victim woman subjected to such “emotional abuse” to seek refuge under the Protection of Women from Domestic Violence Act 2005, the Madras High Court Bench here has held. Article referred: http://www.thehindu.com/news/cities/Madurai/suspecting-wifes-fidelity-is-also-domestic-violence-hc/article8842262.ece

Setting aside the orders of National and State Consumer Disputes Redressal Commissions which had held that a complainant land owner who entered into an agreement with a builder for construction and sharing flats, is not a ‘consumer’ since there was an intention to sell them and let them on rent and earn profit, the Supreme Court (BUNGA DANIEL BABU VS. M/S SRI VASUDEVA CONSTRUCTIONS) held that such an approach is erroneous. Article referred: http://www.livelaw.in/sc-quashes-ncdrc-order-held-land-owner-entered-agreement-builder-construction-not-consumer/

Ex parte hearing, disposal, conviction or sentences are concepts unknown to criminal law and hence neither trial nor appeal against conviction or acquittal could be conducted in the absence of the counsel for the accused, the Madras High Court Bench here has said. Justice P. Devadass made the observation while reversing the dismissal of a criminal appeal by a Sessions Court in Tirunelveli on December 1, 2015. The appeal, preferred by a person convicted by a Judicial Magistrate in a cheque bounce case, had been dismissed for default. “As per Article 22(1) of the Constitution, a person accused of a crime is entitled to be defended by a lawyer of his choice. It is a fundamental right. It is a constitutional right. It is a basic human right. In the absence of counsel for the accused, conducting trial and punishing the accused is against law. It is not fair trial. Article referred: http://www.thehindu.com/news/cities/Madurai/ex-parte-hearing-disposal-unknown-to-criminal-l

Directing lower courts to avoid the practice of summoning accused or issuing non-bailable arrest warrants (NBWs) unnecessarily, the Madras High Court Bench here has said: “Courts are entitled to compel the appearance of the accused in criminal cases but such insistence should not be for the mere pleasure of the accused being seen in the dock.” Article referred:http://www.thehindu.com/news/cities/Madurai/avoid-unnecessary-summoning-of-accused-hc/article8813998.ece

The High court of Andhra Pradesh has observed that mere apprehension of litigants that they might not get justice from a particular judge, because the judge dismissed around 45 appeals within three days, is not a ground to transfer the case to another court. The Appellants before an Additional District Court had approached the High Court by preferring a Transfer petition stating that presiding Judge of the Court, wherein their appeal is pending, had dismissed 45 appeals in a span of three days without taking up final hearing in a proper manner and that therefore, there is a reasonable apprehension in their minds that they may not get justice from the judge. Article referred: http://www.livelaw.in/district-judge-dismissing-45-appeals-three-days-cannot-ground-transfer-appeal-another-court-ap-high-court/

Supreme Court of India Today has held that a Judge cannot assume the power on the basis of his individual perception or notion. The Division Bench of Justices Dipak Misra and Shiva Kirti Singh has further held that “It is well settled in law that a Judge is expected to act in consonance and accord with the legal principles. He cannot assume the power on the basis of his individual perception or notion. He may consider himself as a candle of hope but application of the said principle in all circumstances is not correct because it may have the effect potentiality to affect the society. While using the power he has to bear in mind that “discipline” and “restriction” are the two basic golden virtues within which a Judge functions. He may be one who would like to sing the song of liberty and glorify the same abandoning passivity, but his solemn pledge has to remain embedded to constitution and the laws. There can be deviation”. Article referred: http://www.livelaw.in/judge-cannot-assume-p

The Supreme Court of India in M/s Madura Coats Limited v M/s Modi Rubber Limited has ruled that provisions of Sick Industrial Companies (Special Provisions) Act, 1985 would prevail over the provisions of the companies act. The M/s. Madura Coats Limited was aggrieved by the impugned judgment and order dated 20/05/04 of the Division Bench of the High Court of Allahabad which allowed the Special Appeal of the M/s. Modi Rubber Ltd, staying the proceedings before the Company Court consequent upon a winding up order passed against the respondent .The stay was granted till a final decision was taken on the reference made by respondent to the Board for Industrial and Financial Reconstruction. Dismissing the appeal Justice Madan B Lokur held:”it is quite clear that different situations can arise in the process of winding up a company under the Companies Act but whatever be the situation, whenever a reference is made to the Board of Industrial and Financial Reconstruction under Sections 15 and 1

A two Judge Bench of the Supreme Court has held that the Supreme Court cannot appreciate the entire evidence de novo in a routine manner while hearing Criminal Appeals, and that too when the conviction is based on concurrent findings of two courts. The Two Judge Bench of Justices Abhay Manohar Sapre and Ashok Bhushan has further held that It is only when the Court comes to a conclusion that the impugned finding though concurrent in nature is wholly arbitrary, unreasonable or/and perverse to the extent that no judicial mind of average capacity can ever record such conclusion, the Court may in appropriate case undertake the exercise of appreciating the evidence to the extent necessary to find out the error. Article referredt: http://www.livelaw.in/court-cannot-appreciate-entire-evidence-de-novo-routine-manner-hearing-criminal-appeals-sc/

The Supreme Court in M/s Umesh Goel vs.Himachal Pradesh Cooperative Group Housing Society Ltd. has held that the expression “other proceedings” in Section 69(3) of the Partnership Act does not include Arbitration Proceedings and the ban imposed under the said Section to can have no application to Arbitral proceedings as well as the Arbitration Award.Division Bench of the Apex Court comprising of Justices Fakkir Mohamed Ibrahim Kalifulla and C. Nagappan, allowing the appeal against the High Court judgment, also held that Section 35 and 36 of the Arbitration and Conciliation Act,1996 is specifically restricted to treat the Award as a decree of a Court and does not equate Arbitration proceedings with court proceedings. Article referred: http://www.livelaw.in/arbitration-proceedings-not-barred-section-693-partnership-act-sc/

A Two Judge Bench of the Supreme Court Today has held that a writ of Mandamus can be issued to authorities to grant remission. The Bench of Justices Dipak Misra and Shiva Kirti Singh has dismissed a writ petition preferred under Article 32 of Constitution of India, by the petitioners, who have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in default of payment of fine, to suffer further rigorous imprisonment for six months, praying for issue of writ of mandamus to the authorities commanding them to grant remission to them as per the provisions contained in Chapter XIX of the New Punjab Jail Manual, 1996. Article referred: http://www.livelaw.in/court-cannot-direct-authorities-grant-remission-sentence-sc/

The Calcutta High Court has quashed Show-cause cum demand notice demanding Service Tax from former Indian Cricket Team captain, Saurav Ganguly. Justice Arijit Banerjee said that that mere failure to disclose a transaction or activity and pay tax thereon or a mere misstatement is not sufficient for invocation of the extended period of limitation, which has been done in this case. The Court also held that the remuneration received by the former Skipper for writing articles and anchoring TV shows would not attract service tax. Article referred: http://www.livelaw.in/calcutta-hc-quashes-service-tax-demand-notice-saurav-ganguly/

If there are more than one dying declarations in a case, the courts should satisfy themselves as to which one reflects the truth, the Supreme Court has said. "In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in their correct perspective and satisfy itself that which one of them reflects the true state of affairs," a bench of justices Abhay Manohar Sapre and Ashok Bhushan said while putting the curtains down in the 27-year-old case.  Article referred: http://www.business-standard.com/article/pti-stories/courts-should-see-which-dying-declaration-reflects-truth-sc-116063000999_1.html