Legal News & Views

In  Finolex Cables Limited Vs. Mahanagar Telephone Nigam Ltd., the two companies had entered into a contract and MTNL had invoked BG because of non-delivery. The question before the Delhi High Court was whether the invocation of the BG by MTNL in terms of Clause 7.4 of the PO was justified. The High Court opined - 41. MTNL has no explanation whatsoever for suddenly springing on FCL the unilateral invocation of the BG which it made FCL renew from time to time. There was no loss suffered by MTNL on account of the failure of FCL to supply the cables. Merely because Clause 7.4 of the PO entitles MTNL to seek LD up to a maximum of 10% cannot justify the amount it sought to recover, namely, the entire sum of Rs.36,75,300, which according to the learned Arbitrator was approximately 10% of the contract value. 42. The law in relation to LD has been explained by the Supreme Court in its decision in Kailash Nath Associates v. Delhi Development Authority (supra). In para 43 of the s...

In Chandi Prasad Vs. State, the Himachal Pradesh High Court while deciding on Adverse Possession said that - It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In...

In Louis Vuitton v. Gaurav Bhatia and Ors., suit was filed by Plaintiff seeking permanent injunction against Defendants, restraining them from infringing its trademark, copyright and also from passing off goods of Plaintiff as that of theirs and for rendition of accounts and damages. It is submitted that, act of Defendant offering counterfeit products of Plaintiff which are identical to product of Plaintiff amounts to infringement of its trademark. The Delhi High Court while restraining the defendants from using the trademark said that there is no doubt that, Plaintiff is entitled for damages because Defendants have infringed his trademark and copyright and has been selling counterfeit products of Plaintiff and has, therefore, caused losses not only in goodwill and reputation, but also financial. However, there is no evidence on record to ascertain actual damages suffered by Plaintiff. Courts are not supposed to do guess work and grant damages for losses suffered by Plaintiff. Da...

The Supreme Court in Mrs. Hema Khattar & ANR. Vs. Shiv Khera has held that when an agreement is terminated by one party alleging breach committed by the other, the arbitration clause still survives and continues to be operative. This is particularly so when the contract is revoked by mutual consent and the arbitration clause is framed in general terms. The Supreme Court referred to earlier decisions in Sundaram Finance Limited and Another vs. T. Thankam (2015) 14 SCC 444, where this Court has held as under:- "8. Once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the agreement, approaches the civil court and the other party, in terms of Section 8 of the Arbitration Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed, in view of the peremptory language of Section 8 of the Ar...

In awarding tenders, the technical experience of a subsidiary company can be taken into account and the parent company cannot be ousted only because it has no experience on its own, the Supreme Court  said while upholding the award of a Metro rail project to a Chinese government company. In this judgment, Consortium of Titagarh Firema Adler SPA vs Nagpur Metro Rail Corporation, the contract for 69 passenger cars and training of personnel was awarded to the Chinese company, though its bid was only marginally lower than that of the consortium.  Therefore, it moved the Bombay High Court where the writ petition was dismissed. The Supreme Court held that there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its 100% wholly owned subsidiaries as one entity. Therefore, the scope of judicial review should be limited in adjudging the decision taken by R 1 in the best interest of the project, and thereby, the public. the conce...

In Prerna Dewan Vs. IREO Fiveriver, the Opposite Party has stated that possession of the plot, in question, could not be offered to the complainant, within the period stipulated in the Agreement for want of development work at the site, on account of the reasons beyond its control i.e. on account of force majeure circumstances like delay in sanction of layout plans by the Competent Authorities; delay in grant of NOC from the Irrigation Department; delay in clearance and delayed grant of licence for additional land measuring 10.594 acres plus 18.343 acres, by the Competent Authorities, as the area was situated in a squatted small pockets; delay in approvals for environment clearance by the Competent Authorities; and also stay on construction on the land, in question, granted by the Hon’ble Supreme Court of India. The State Consumer Dispute Resolution Commission rejected the above contention by stating It was the bounden duty of the opposite party, to get approved the final la...

The Karnataka High Court, in the case of M/s Uttam Industrial Engineering Ltd vs  M/s Shree Basaveshwar Sugars Ltd, has held that a winding-up petition has serious  ramifications on the financial standing of a company and cannot be used in cases  where there is a bona fide dispute regarding the amount owed by one party to the  other and in such cases the company court should relegate the matter either to the  civil court or arbitral tribunal. In this case, Uttam Industrial Ltd entered into a contract with Basaveshwar Sugars Ltd  to provide machinery and equipment for a sugar plant. Article referred:  http://www.livelaw.in/remedy-winding-petition-cant-relied-upon-bona-fide-payment-disputes-karnataka-hc/

In Majestic Properties Vs. Arun Dhandhania, the National Consumer Disputes Redressal Commission has held that It is the duty of the complainants to prove that the booking done by them was not for a commercial purpose and that, they fall within the definition of ‘Consumer’ under the Act. The facts involved in these cases show that the main person in the whole episode is Arun Dhandhania who booked one residential flat for himself, one for his son and three other flats in the names of various companies, which were operating through him only, as Director. Although booking in three cases has been made in the name of three different companies, it has not been made clear anywhere in the evidence produced by the complainants that the said property was required for residential purpose in any manner. During arguments, it was stated that the residential property was required for the purpose of housing various directors/employees from time to time. It has nowhere been stated, however, that t...

In H.P. State Cooperative Bank Ltd. Vs. State of H.P., the Himachal Pradesh High Court held that dues to the State shall have priority. Referring to various judgments, the court said - “126. While enacting the DRT Act and the Securitisation Act, Parliament was aware of the law laid down by this Court wherein priority of the State dues was recognised. If Parliament intended to create first charge in favour of banks, financial institutions or other secured creditors on the property of the borrower, then it would have incorporated a provision like Section 529-A of the Companies Act or Section 11(2) of the EPF Act and ensured that notwithstanding series of judicial pronouncements, dues of banks, financial institutions and other secured creditors should have priority over the State’s statutory first charge in the matter of recovery of the dues of sales tax, etc. However, the fact of the matter is that no such provision has been incorporated in either of these enactments despite conf...

The Delhi High Court, in the case of Poonam Jain vs Union of India & Ors, noted that a person being prosecuted against has a right to be provided with all the material relied upon by the prosecuting agency to prosecute her/ him. In the instant case, a search was conducted at the residences of the petitioners and their statements were recorded and several documents were seized. They were issued show cause notices under Section 276 C(1) and Section 277 of the Income Tax Act, Section 181 of the Indian Penal Code and Sections 50 and 51 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act. They sought to be provided with a copy of their statements and the documents seised. However, the same was denied to them.

The Supreme Court, in Anjan Kumar Sarma vs State of Assam, has reiterated that “last seen together” along with “absence of satisfactory explanation” cannot be made the sole basis of conviction, when the other circumstances could not be proved. The high court, in the instant case, had convicted the accused holding that the onus was on the accused to explain and exculpate themselves when the ‘last seen theory’ was established and in the absence of any satisfactory explanation, the presumption would suggest the guilt of the accused. The accused were charged with offences of murder and rape. The Trial Court had returned an order of acquittal which was later challenged before the High Court. Article referred: http://www.livelaw.in/last-seen-together-along-absence-satisfactory-explanation-insufficient-conviction-sc-read-judgment/

The fact that the witness may be related to the deceased by marriage, cannot be sufficient reason to classify him as a related and interested witness to reject his testimony, the Supreme Court has observed while dismissing the appeals in a murder case (Chandrasekar vs State). The wife of the deceased and her relatives were prime witnesses in this case and they had deposed seeing the murderous assault on the deceased by the accused. The trial court had convicted the accused and sentenced them to life imprisonment and the high court had upheld the verdict. Article referred: http://www.livelaw.in/relation-witnesses-deceased-marriage-not-enough-reject-testimony-sc-read-judgment/

In Kalyan Kumar Ganguly v. PIO, ESIC, Kolkata, the Central Information Commission said that PF account is not like any other individual private bank account where all his personal money also could be transacted, which could be his personal information. PF account does not contain any other money except accumulated amount of both contributions over a period of time. It is mandatory by law to contribute these two amounts to PF account. Hence, it is not private information. It is not personal because it has nothing to do with their private activity. It is relating to social security of workers at post-retirement period, which need to be secured for such longer periods. That is public interest. If it is kept secret, and an individual PF subscribed is cornered under fear or favour not to challenge fraud, employer can perpetuate the fraud. Hence, a third person or trade union leader or citizen can seek such information. Thus, argument of PIO that, worker can ask only about his information ab...

In Satnam Kaur v. Gurjeet Singh, the High Court of Punjab & Haryana said that Cardinal principle for exercise of power under Section 24 of CPC is that, ends of justice demand transfer of suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider plea of transfer, Courts have to take into consideration economic soundness of either of parties, social strata of spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereto and circumstances of either of parties in eking out their livelihood and under whose protective umbrella, they are seeking their sustenance to life. Generally, it is wife's convenience which must be looked at by Courts, while deciding a transfer application. Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh's case observed that, although discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicab...

The High Court of Tripura in Kalpana Majumder and Ors. v. Sankar Debnath and Ors. said that In Rampati Chakma v. Sunil Kumar Ram and others and in Mahila Dhanwanti and others v. Kulwan and others, it was held therein F.I.R. is a public document, but it is rule of law that, it is not a substantive piece of evidence. It can be used only for purposes of corroboration or contradiction of the maker only. Evidence recorded in criminal Court and findings arrived at thereon should not be used in claim cases. Such evidence, for purposes of claim cases is inadmissible. In R.P. Gautam v. R.N.M. Singh and another, Madhya Pradesh High Court lucidly summed up proposition of law that, it is settled proposition of law that every civil case is decided on its own facts and evidence without influencing the papers and decision of the criminal case. In such premises registration of offence and police investigation is not a condition precedent for awarding the claim. Besides this due to one reason or anot...

In Quippo Oil and Gas Infrastructure Ltd. v. Oil and Natural Gas Corporation Limited and Ors., the Delhi High Court said that in Ram Parvesh Singh & Ors v. State of Bihar and Ors. it was held that, legitimate expectation is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. Term 'established practice' refers to a regular, consistent predictable and certain conduct, process or activity of decision-making authority. Expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. Public interest or change in policy may be sufficient to negate concept of legitimate expectation. Thus, if ONGC had decided that, a subsidiary company applying for tender should have a positive networth, i...

In Boney Kapoor and Ors. v. State of U.P. and Ors., the High Court of Allahabad has held that Complainant was not examined on oath as required under Section 200 of Cr. PC Settled legal position is that, affidavit could only be considered as piece of evidence when statute permit so. Nothing is mentioned in Sections 200 and 202 of Cr. PC to consider evidence filed in form of affidavit. If ratio laid down in case laws relied upon by applicants and language of Sections 200 and 202 Cr. PC are taken into consideration, it is aptly clear that, it is mandatory for complainant to examine himself on oath under Section 200 of Cr. PC. Thus, it can safely be held in this matter that, Magistrate while considering affidavit filed in support of complaint has committed gross illegality which resulted in miscarriage of justice.

In Levingston v. Levingston (Australia), Robert Ian Edwin Partridge died on 6 October 2008. By his will made on 29 December 1995, he appointed Appellant, Mrs. Lola Levingston, as his executrix and left his estate to his only son, Mr. Rhys Partridge, second Respondent. Late Mr. Partridge and Mrs. Levingston lived together as husband and wife for 12 years prior to his death. Mrs. Levingston appeals against dismissal of her action in which she claimed that, late Mr. Partridge agreed to leave her his entire estate or, alternatively, his personal estate. Appellant’s primary claim was in contract and based on a letter dated 13 April 2005 that, she and Ian signed and sent to their solicitor. Mrs. Levingston claimed that, letter constituted an agreement in writing between Ian and Mrs. Levingston, terms of which were that Ian would be entitled to live in a property owned by Mrs. Levingston for rest of his life, and her will would so provide, and Ian would leave his personal estate to Mrs. Levin...

The STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA,MUMBAI in Bank Of Baroda vs Mr. Jayprakash R. Kushwaha & Ors, has held that failure to inform an applicant about rejection of his loan application constitutes deficiency of service on the part of the Bank. The Bench comprising Justice A.P. Bhangale (President) and Mr. D.R. Shirasao (Judicial Member) thereby confirmed the order of the Thane District Forum, awarding Rs. 1 lakh as compensation and Rs. 10,000 as costs for deficiency in service. Article referred: http://www.livelaw.in/bank-directed-to-pay-1l-compensation-for-failure-to-inform-loan-applicant-of-rejection/

The Madhya Pradesh High Court, in the case of Smt. Archana Pandey vs The State Of Madhya Pradesh, held that maternity leave should be granted to contractual employees, at par with regular employees. In the present case, the state was denying maternity leave relying on the Contract of Appointment which stated that maternity leave can be granted to contractual workers only upon the completion on one year of service.

In STATE OF U.P vs  SUNIL, settling a doubt which has troubled crime investigators for long, the Supreme Court has ruled that asking an accused to give finger or foot prints for investigation purposes did not violate his fundamental right to protect himself from becoming a witness against himself. The question before a bench of Justices Pinaki Chandra Ghose and Rohinton Fali Nariman was "whether compelling an accused to provide his fingerprints or footprints etc would come within the purview of Article 20(3) of the Constitution of India, that is compelling an accused of an offence to be a 'witness' against himself"?

The High Court of Bombay in Remio A. Rodrigues v. Goa Glass Fibre Ltd. has held that application for recall is required to be allowed in peculiar facts and circumstances of present case. Division Bench of Madhya Pradesh High Court in case of Karam Chand Thapar and Brothers (Pvt.) Ltd., has held that, Sub-section (3) of Section 11 of said Act confers upon Tribunal same powers as are vested in a Civil Court under Civil Procedure Code in matter of enforcing the attendance of a person and examining him on oath. This power includes power to recall a witness. Blanket proposition in impugned order that, mistake of an Advocate can never be a ground for recall of witness, cannot be accepted. Presiding Officer of Industrial Tribunal is right that, power of recall must be sparingly exercised and that too for a good reason. In case of Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank and others, power of recall of a witness was exercised, where there was an oversight of Advocate of ...

In Cheema Spintex Ltd. V. Commissioner of Customs (ICD) TKD, New Delhi, Customs, Excise and Service Tax Appellate Tribunal held that delay caused in an act required to be done by Government authority cannot be adopted as ground for penalizing innocent Appellant. In instant case, Appellant was a 100% EOU engaged in manufacture and export of cotton yarn. Appellant sought permission to opt out of EOU scheme. Development Commissioner gave approval to exit from EOU scheme on payment of duty on capital goods under prevalent EPCG scheme. Said directions of Development Commissioner were complied with by Appellant including calculation of duty liability. Duty so calculated was finally paid by Appellant. Appellant applied for 'No Dues Certificate' which was given by Deputy Commissioner, on 3rd December, 2007. After 'No Dues Certificate', final de-bonding order was issued by Development Commissioner. Thereafter, Appellant had effected 70 exports under 70 free shipping bills. As ...

In Baliraj Singh v. State of Madhya Pradesh, the Supreme Court held that settled proposition in criminal jurisprudence that ordinarily, value of medical evidence is only corroborative. It proves that, injuries could have been caused in manner alleged and nothing more. The use which defence can make of medical evidence is to prove that, injuries could not possibly have been caused in manner alleged and thereby discredit eyewitnesses. In this case, nature of injury, contradiction about time of arrival of witnesses, contradictions between ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of eye witness casts a serious doubt on prosecution's case. Supreme Court set aside conviction against Appellant as recorded by trial court and upheld by High Court and Appellant is acquitted of charges.

The Nagpur bench of the Bombay High Court in Dipak Tundalwar vs The Akola Janta Commercial Coop. Bank Limited & Ors has held that an appellate court cannot dismiss an appeal exercising its jurisdiction under Section 386, unless the matter has been decided on merits. Justice SB Shukre allowed a writ petition challenging a sessions court order dated June 28, 2016, wherein an appeal was dismissed on default for failure to deposit paper book charges. At the very outset, the court laid out the settled law in terms of the position of a criminal not being the same as in the case of a civil appeal governed by the Civil Procedure Code. It was held by the Supreme Court in Kishan Singh vs State of Uttar Pradesh that the “criminal procedure requires in express terms, the matter to be considered on merit and therefore, a criminal cannot be non-suited for non-prosecution”. Article referred: http://www.livelaw.in/appellate-court-cant-dismiss-appeal-s-386-without-considering-merits-bombay-...

If clause for damages present, Party entitled to reasonable compensation whether or not actual loss occurred In Mahanagar Telephone Nigam Limited v. Haryana Telecom Limited, Mahanagar Telephone Nigam Limited ('MTNL') has filed present petition under Section 34 of Arbitration & Conciliation Act, 1996 challenging an Award dated 12th March, 2003 passed by Arbitral Tribunal ('AT') in disputes between MTNL and Respondent, Haryana Telecom Limited ('HTL'). AT held that, since MTNL failed to prove actual loss or damage on account of delayed delivery of goods and since, mere delay in supplies was unlikely to cause damages, question of even fixing a reasonable compensation under Section 74 of Indian Contract Act, 1872 ('ICA') did not arise. Consequently, MTNL was asked to refund HTL sum of Rs. 1,03,20,763 together with interest @ 12% from the date of Award till the date of payment. The Delhi High Court held that in present case, it is not possible for Cour...

In Vedanta Limited V.  Emirates Trading Agency LLC, the Supreme Court held that Section 7 of Indian Contract Act, 1872 provides that, in order to convert a proposal into a contract, acceptance must be absolute and unqualified. Existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under Section 73 of Act arising out of a breach of contract. If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence. In U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., Apex Court observed that, material alterations in contract make a world of difference to draw an inference of concluded contract. Fulcrum of entire controversy is draft agreement dated 26th October, 2007 marked Exhibit 8-A, for supply of phosphoric acid by Appellant to Respondent. Proposal of Respondent, led to a counter proposal by Appellant. There was no acceptance of proposal by Appellant giving rise to a concluded contract. Qu...

In State Of Maharastra vs Ramesh More & Ors, the Bombay High Court has dismissed an appeal filed by the State of Maharashtra against a trial court order acquitting the accused in an abetment of suicide case. Justice PN Deshmukh upheld the order by the Additional Sessions Judge of the trial court in a judgement dated May 11, 2017. Article referred: http://www.livelaw.in/necessary-prove-suicide-committed-result-cruelty-498a-order-invoke-abetment-suicide-bombay-hc-read-judgment/

When the seriousness of the offence is such, the mere fact that he was in jail for however long time should not be the concern of the Courts, the Supreme Court in The State Of Bihar vs Amit Kumar @ Bacha Rai has said, while holding that bail cannot be granted on the sole ground that accused was in custody for a long time. A bench comprising Justice NV Ramana and Justice Prafulla C Pant set aside a Patna High Court order, which had granted bail to Bihar toppers’ scam accused Amit Kumar @ Bacha Rai. In a brief order, the high court, while granting bail, relied on the fact that the accused has already been in custody for a long time. Article referred: http://www.livelaw.in/bihar-toppers-scam-accuseds-custody-duration-not-courts-concern-serious-offences-sc-read-judgment/

In Halliburton Offshore Services INC Vs. Principal Officer of Mercantile Marine Department, the Supreme Court has held that :- For grant of PCOR to a ship becoming Indian ship abroad, all the requisite conditions for obtaining final registration must be satisfied viz.: (i) satisfaction of ownership of ship in terms of Section 21 of the M.S. Act; (ii) the ship must be fully built and sea-going so that it can reach the Indian port for obtaining certificate of final registry and (iii) satisfaction of other requirements contained in Sections 23 to 32 of the M.S. Act. As per sub-section (2) of Section 40 of the M.S. Act, the Provisional certificate of registry will cease to have effect after six months of the date of issuance or until the arrival of the ship at a port where there is a registrar whichever first happens. The Provisional certificate of registry cannot be renewed nor its validity can be extended beyond six months.

In Gurnam Singh (D) Thr. Lrs. Vs. Gurbachan Kaur(D), Supreme Court of India held that on the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is “dismissed as abated”.

The Supreme Court, in State of Madhya Pradesh vs Kallo Bai, has clarified that confiscatory proceedings are independent of the main criminal proceedings, and it is meant to provide a deterrent mechanism and to stop further misuse of the vehicle. A bench comprising Justice NV Ramana and Justice Prafulla C Pant was considering an appeal by the state against the high court order which had upheld a session’s court order directing the vehicle to be released on the ground that unless the guilt of the accused is proved, the authority had no right to confiscate the vehicle and forest produce. The authorsed officer-cum-sub divisional officer had held that the vehicle operator and his companion had deliberately transported teak wood without the requisite permit or any valid document and that the owner was aware of the said illegal transport. The bench, referring to various other decisions and also on provisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969, observed that ...

In Rajasthan Wakf Board Vs. Devki Nandan Pathak, the Supreme Court held that Once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act.

Observing that penal provisions in the Competition Act is only to ‘teach a lesson’ and not to ‘finish off’ industries, the Supreme Court, in Excel Crop Care Limited vs CCI, has held that penalty imposed under Section 27 of the Competition Act for anti-trust violations should be based on the relevant turnover. A bench comprising of Justice AK Sikri and Justice NV Ramana was considering an appeal against the Competition Appellate Tribunal order which had found three Aluminium Phosphide Tablet manufacturers guilty of rigging tenders issued by Food Corporation of India (FCI) and imposed a penalty to Rs 318 crore. The court dismissed the appeals, upholding the penalty imposed.

In Principal CIT v. M.B. Finmart Pvt Ltd, the division bench of the Delhi High Court has held that the income from trading in shares/mutual funds must be treated as ‘Capital Gain’ if the Revenue has been treating the same as investment in the past years. Before the High Court, the department challenged the order of the first appellate authority and the Appellate Tribunal contending that trading in shares/mutual funds should be treated as capital gains. Article referred: http://www.taxscan.in/trading-sharesmutual-funds-not-business-revenue-treating-investment-past-years-delhi-hc/7528/

The Patna High Court, in the case of Dr. Syed Mohhammad Azfar vs The State Of Bihar & Anr, shed light on the wide-ranging powers of the High Court under Section 482 of the Criminal Procedure Code and noted that even those complaints of which the Magistrate has taken cognizance of, but are of a private and vexatious nature, can be quashed by the High Court. In this case, an appeal had been filed for the quashing of order of cognizance by the Magistrate and issuance of process under a Complaint Case alleging offences under Sections 323 and 342 of the IPC. It was contended that the complaint was filed on malicious and vexatious grounds. Justice Nilu Agarwal, after examining the material placed on record and balancing rival contentions, held that even though an offence is disclosed in the complaint, the same is held to be a vexatious petition filed to harass and humiliate the accused.

In Gyaan Vikas Foundation v. CIT (Exemptions), the division bench of the ITAT, Kolkata held that registration under section 12A of the Income Tax Act cannot be denied to a Trust merely on ground it collects fee from the students. Assessee-Trust conducted vocational training in garment making and designing. The CIT refused to grant registration under section 12A to the assessee by finding that they had received fees from the students undergoing course in garment making and designing. Article referred: http://www.taxscan.in/registration-us-12a-cannot-denied-trust-merely-ground-collection-fee-itat-kolkata-read-order/7555/

The Karnataka High Court, in the case of M/S Alliance University vs Sri Sudhir, has noted that a counterclaim can only be filed against the plaintiff and a presenter of the suit cannot be treated as the plaintiff. In the present case, the issue was regarding the chancellorship of Alliance University. The Alliance University Act provided for appointment of the Chancellor ‘for life’. Article referred: http://www.livelaw.in/counterclaim-can-filed-plaintiff-karnataka-hc-read-judgment/

Holding that an arbitral tribunal does not have the power to lift the corporate veil, the Delhi High Court, in Sudhir Gopi vs IGNOU, has also observed that mere failure of a corporate entity to meet its contractual obligations is no ground for piercing the  corporate veil. In the instant case, a sum of $664,070, along with pre award and future interest at the rate of 12% per annum, was awarded by the arbitral tribunal in favour of IGNOU against Sudhir Gopi and UEIT jointly and severally. Article referred: http://www.livelaw.in/arbitrator-no-power-lift-corporate-veil-says-delhi-hc-read-judgment/

The Kerala High Court, in the case of Lakshmi vs State of Kerala and Ors, has held that mere pendency of litigation does not ispo facto affect the person’s right to alienate the property. The court relied on Section 52 of the Transfer of Property Act to hold that a sale which takes place in the face of a pending litigation would at its best amount to a lis pendens sale. Article referred: http://www.livelaw.in/right-alienate-property-unaffected-pending-litigation-kerala-hc-read-judgment/

The Supreme Court, in State vs KS Palanichamy, has upheld the state government’s power to issue ad interim order under Section 3 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, attaching the immovable properties belonging to a financial establishment which defaults in returning deposits after maturity or fails to pay interest on deposit or fails to provide any service for which the deposit has been made, basing on the complaint of investors. Article referred: http://www.livelaw.in/sc-upholds-states-power-attach-properties-defaulting-financial-establishments/

The Supreme Court, in Venu vs Ponnusamy Reddiar, has held that there is no limitation period for the execution of preliminary decree for partition. In 1989, an application for execution of the decree was filed after 30 years of the preliminary decree for partition, which was passed in 1959. It prayed for the appointment of a court commissioner so as to carry out the preliminary decree. The  high court had rejected the contention that since the application had been filed for the appointment of court commissioner, it ought to governed by provisions of Article 137 of the Limitation Act 1963. A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that a preliminary decree for partition crystallises the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partit...

The Supreme Court, in Palam Gas Service vs Commissioner of Income Tax, has held that though the word used in Section 40(a) (ia) of the Income Tax Act, is ‘payable’, it would also cover the situations where the amount is already paid, but no advance tax was deducted thereupon. A bench comprising Justice AK Sikri and Justice Ashok Bhushan extensively quoted the judgments of high courts of Punjab & Haryana, Madras and Calcutta in this regard and affirmed the same. The court also overruled the Allahabad High Court judgment, which had held that Section 40(a) (ia) would apply only when the amount is ‘payable’. Section 40 of the Act enumerates certain situations wherein expenditure incurred by the assessee, in the course of his business, will not be allowed to be deducted in computing the income chargeable under the head ‘Profits and Gains from Business or Profession’. Article referred: http://www.livelaw.in/word-payable-section-40a-ia-income-tax-act-also-covers-amount-actually-pa...

Disposing of a two decade old defamation suit, the High Court of Delhi in Tosiba Appliances Co. Pvt. Ltd. vs Kabushiki Kaisha Toshiba & Others opined that public apology is a more fitting relief than monetary damages in defamation cases. “..I may also record that in my opinion, the harm done by defamation being to the reputation of a person, a direction to issue a public apology or a direction to correctthe errors, if any, particularly in defamation arising out of libel by media appears to be a more appropriate relief than a relief of monetary damages. Compensation in monetary damages can never set the record straight or restore the damaged reputation caused by a libelous news report. The person aggrieved by a libelous news report having a large circulation can never exactly know who all have had access thereto and cannot possibly go to each and every one of those persons with the judgment of award of compensation to him,” Justice Rajiv Sahai Endlaw observed. “Reputation of an...

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak. A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits. Article referred: http://www.livelaw.in/wakf-tribunal-can-decide-whether-property-wakf-not-sc/

The SUPREME COURT in Chilamkurti Bala Subrahmanyam VS Samanthapudi Vijaya Lakshmi & Anr, while referring to the judgment in Saheb Khan vs. Mohd. Yousufuddin & Ors., held that it is not the material irregularity that alone is sufficient for setting aside of the sale. The applicant has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the applicant in conducting the sale. It is only then the sale so conducted could be set aside under Order 21 Rule 90(2) of the Code.

In Vasanta Sampat Dupare Vs. State of Maharashtra, Supreme Court of India stated that the principle of proportion between the crime and the punishment is the principle of “just deserts” that serves as the foundation of every criminal sentence that is justifiable. In other words, the “doctrine of proportionality” has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death.

In the above issue was once again discussed and the decision of the Hon'ble Supreme Court in Chunchun Jha vs. Ebadat Ali and Another, AIR 1954 SC 345 was upheld. In Chunchun Jha’s case (supra), this Court examined this very question as to what constitutes “a mortgage by conditional sale or a sale out and out with a condition of repurchase“. 23) The learned Judge, Vivian Bose J., in his distinctive style of writing speaking for the Bench posed the question as under: “This is a plaintiff’s appeal in a suit for redemption of what the plaintiff calls a mortgage dated 15-4-1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court.” 24) His Lordship then examined the question in the context of several leading English authorities on the subject and Section 58(c) of the T.P. Act and laid down the following test for deciding the...

In Sagayam @ Devasagayam vs State rep. by The Inspector of Police, Chennai, in a significant judgment on bail jurisprudence, the Madras High Court has recently held that demanding production of property documents or RC book or any other document to show proof of property, either movable or immovable, with respect to the bail bond or surety bond amount, is against Article 21 of Constitution of India. Justice P Devadass also held that the person, who is offering surety, must have acceptable residential proof. Article referred:http://www.livelaw.in/even-beggar-can-stand-surety-acceptable-residential-proof-madras-hc-read-judgment/

In Nirmal Bang Securities Private Limited Vs. State of Maharashtra, the Bombay High Court while dealing with various issues including cheating and fraud stated that a litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same. 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applicati...

In Ashokbhai Kanubhai Ravani Vs. State, Gujarat High Court has held that to bring home a charge under Section 272, IPC the prosecution is to prove: (a) that the accused adulterated a food or drink; (b) that such adulteration rendered the food or drink noxious; (c) that during the adulteration the accused intended to sell the said article of food or drink or knew that it was likely to be sold as pure food or drink.

In Reliance General Insurance Co. Ltd. Vs. Jivabhai Maldebhai Godhaniya, the NCDRC held that considering the distinct requirements laid down in The Motor Vehicles Act, 1988 and The Central Motor Vehicles Rules, 1989 about the grant of licence for commercial vehicles, it is clear that the holder of the LMV licence had no authority to drive the commercial vehicle without proper endorsement from the concerned transport authority. The detailed analysis of the legal provisions, made in para 10 above about the basic requirements for the grant of licence for transport/non-transport vehicles, make it clear that for enabling a person to drive a commercial vehicle, the licencing authority has to ensure that he fulfils the requisite conditions of age, educational qualifications, medical certificate etc. Unless a person satisfies the licencing authority on that score and obtains proper authorisation for driving a commercial vehicle, he cannot be stated to be in possession of a valid and effect...

The Delhi High Court through Justice Vipin Sanghi, in the case of Naveen Jindal vs M/S Zee Media Corporation and Anr, noted that under Order 11 Rule 14 of the CPC, the Court has the power to direct production of documents relevant to the issue in question and necessary for the fair disposal of the case and which are in the possession of the person against whom the discovery has been sought. The Court further noted that though the onus of proving defamation is on the person alleging the same, no evidence needs to be led towards the facts and issues which aren’t disputed by the parties. In this case, Naveen Jindal sought permanent, prohibitory and mandatory injunction and damages against Zee Media Corp. for having aired and published some mala fide and defamatory news articles against him. The High Court had granted an interim injunction prohibiting the airing and publishing of the said content. Article referred: http://www.livelaw.in/court-empowered-direct-production-documents-relev...

In an important verdict, the Supreme Court, in Godrej & Boyce Manufacturing Company Limited vs Dy Commissioner of Income-Tax, has held that Section 14A of the Income Tax Act would apply to dividend income on which tax is payable under Section 115-O of the Act. This would mean that expenditure incurred to earn dividend income on shares is not deductible, as Section 14A of Income Tax Act is held to be applicable. Section 14A deals with expenditure incurred in relation to income not includible in total income and Section 115-O is about tax on distributed profits of domestic companies. The issue involved in the appeal was ‘whether the phrase “income which does not form part of total income under this Act” appearing in Section 14A includes within its scope dividend income on shares in respect of which tax is payable under Section 115-O of the Act and income on units of mutual funds on which tax is payable under Section 115-R”. The bench comprising Justice Ranjan Gogoi and Justic...

The Supreme Court, in Pawan Kumar Gupta vs BR Gupta, has held that condonation of delay in payment of rents can take place only when defaulting tenant so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. In the instant case, in 2005, an order was passed by the rent controller directing the tenant to pay or deposit the rent with effect from 1.10.2004, and continue to pay the same at the aforesaid rate month by month. The tenant did not comply with the order. Observing that the tenant failed to provide any explanation regarding delay in depositing of rent month by month in terms of the order, the rent controller held that he was not entitled to the benefit under Section 14(2) of the Act and an eviction order was passed. The high court upheld this order refusing to condone the delay in payment of rents. Article referred:http://www.livelaw.in/no-condonation-delay-payment-rent-wilful-defaulters-sc-read-judgment/

The Bombay High Court in Saquib Abdul Hamid Nachan vs  The Superintendent, Central Jail has dismissed a writ petition filed by Mulund blast convict Saquib Nachan. A bench of Justice Ranjit More and Justice Anuja Prabhudessai was hearing Nachan’s petition wherein he sought the period of detention undergone by him in the MCOC case to be set off against the sentence of imprisonment in POTA case. In the case of Atul Manubhai Parekh vs Central Bureau of Investigation, the apex court had held that under Section 428 of CrPC, the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by accused during investigation or trial of such case. The court then referred to the case of Sanjay Shriram Gondchar vs State of Maharashtra, wherein another division bench of the high court held that petitioner is not entitled to get period of undertrial imprisonment suffered in one case for set off against the sentence to...

The Supreme Court, in Samir Vidyasagar Bhardwaj vs Nandita Samir Bhardwaj, has upheld an interim order by a family court in Maharashtra, which directed a husband to remove himself from his own home and not to visit there until the divorce petition under challenge is finally decided. The apex court, on an appeal by the husband, observed that Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the court may direct the husband to remove himself from the shared household. Article referred: http://www.livelaw.in/sc-upholds-family-court-order-asking-husband-vacate-home-pendency-divorce-case/

The NCDRC heard MOULIVAKKAM TRUST HEIGHTS FLATS AFFECTED BUYERS ASSOCIATION vs M/s PRIME SRISTI HOUSING PVT. LTD. & 29 ORS along with cases filed by a host of other litigants and held that only registered residents' welfare associations (RWAs), consumer organisations, cooperative societies or association of flat or plot buyers can file complaints against builders in the commission. Clearing the ambigbuity regarding the term ‘voluntary consumer association’ in Section-12 of the Consumer Protection Act, presiding member Justice VK Jain in his order on Friday said, "Recognised consumer association means any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force." The commission has also made it clear that a Trust cannot file a case for one or more consumers or on behalf of a group. It said the sole or one of the main objectives of the body should be to pursue, propagate, advance, safeguard or...