Legal News & Views

If a provision bars a court from “hearing and deciding” a suit on some contingency, does that mean the suit itself is not maintainable? This was an interesting question before the Supreme Court in Public Trust Shri Geeta Satsang Bhawan vs Nand Lal. Section 29 of the Rajasthan Public Trust Act reads: “No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any Court.” In the instant case, the trial court had heard and decided the suit by unregistered trust, while high court, allowing the appeal, dismissed the suit in limine, terming it ‘not maintainable’ in view of Section 29 of the Act. An apex court bench comprising Justice RK Agrawal and Justice AM Sapre observed that the bar applies for “hearing and deciding” a suit, and not in filing the suit and it could be filed by the unregistered trust but it will neither be heard nor decided by the court unless and until the Trust...

Just seven months after the operationalization of the Insolvency and Bankruptcy Code (IBC), it has been tested by the apex court. The Supreme Court on Monday ruled that a settlement can be considered and a case can be withdrawn after insolvency proceedings have started against a company. It was hearing a case concerning corporate debtor Lokhandwala Kataria Construction Pvt. Ltd on an application filed by financial creditor Nisus Finance and Investment Manager LLP. The Mumbai bench of the National Company Law Tribunal (NCLT) on 15 June initiated a corporate insolvency resolution process against the debtor. Later, the company and the creditor approached the National Company Law Appellate Tribunal (NCLAT) saying that the two had settled the dispute and that some of the dues had already been paid. NCLAT said on 13 July that under the IBC 2016, a case can be withdrawn before the admission of an insolvency case, and not after that. The parties then filed a plea with the Supreme C...

In Satwant Singh vs Malkeet Singh, the Hon'ble Supreme Court took the view that while accepting the apology of a cop who was punished for contempt by the Punjab and Haryana High Court for arresting a man on anticipatory bail, the Supreme Court observed that the court is bound to explain as to why the apology tendered by contemnor should not be accepted. A bench comprising Justice Kurian Joseph and Justice R Banumathi, setting aside the high court order, remarked: “Apology is one of the defences in the case of a civil contempt and the Court is bound to explain as to why the apology should not be accepted.” Article referred: http://www.livelaw.in/court-bound-explain-apology-tendered-contemnors-cant-accepted-sc-read-judgment/

The Supreme Court, in Parminder Singh vs Gurpreet Singh, has observed that if there are concurrent findings of fact by the trial court, first and second appellate courts, such findings are binding on the Supreme Court. The trial court, while allowing a suit for specific performance, had granted specific performance of the agreement to the plaintiff in exercise of its discretionary powers. The first and second appellate court had upheld the trial court order. The said concurrent findings were assailed before the apex court.... Article referred: http://www.livelaw.in/concurrent-findings-fact-trial-court-appellate-courts-binding-supreme-court-sc-read-judgment/

In Hameed Kunju VS Nazim, the Hon'ble Supreme Court has said that eviction matters should be given priority by courts at all stages of litigation, especially in cases where the landlord has sought eviction for his bonafide needs, the Supreme Court has said. The apex court observed that the object of the rent law was to ensure speedy disposal of eviction cases between the landlord and the tenant and expressed hope that due attention would be paid by all courts in deciding such matters.

In Mumbai Port Trust Vs M/s. Shri Lakshmi Steels, the Hon'ble Supreme Court held that the Board of Trustees of the Ports, which are creations of a statute, are entitled to charge demurrage and other charges from the importer even in respect of those periods during which the importer was unable to clear goods from the premises of the Board, for no fault or negligence on the part of the importer. The Boards were entitled to charge demurrage from the importer even when the importer was unable the clear the goods because of the detention thereof by the Customs authorities, which detention may later on have been found to be unjustified.

In K.S. Rajesh Vs. K.M. Basheer, the Kerela High Court held that under NI Act, when cheque is returned by the bank with the endorsement “No account, account closed”, offence is attracted where the bank account is closed prior to the drawal of the cheque. The Hon'ble court further held that the Apex Court in Laxmi Dyechem v. State of Gujarat and others reported in (2012) 13 SCC 375 has held that even when a cheque is returned for any other reasons such as “account closed, payment stopped, refer to drawer, signature does not match”, etc., in each case Sec.138 of the Negotiable Instruments Act will be attracted and that insufficiency of funds as envisaged in Sec.138 of the NI Act is a genus and dishonour for reason of “accounts closed”, “payment stopped”, “referred to drawer,” etc are only species of that genus, etc. Therefore it appears that the judgment dated 5/7/2016 of a learned Single Judge of this Court in Muralidharan V. v. V.A. Kumaran and Another (2016 (3) KHC 845) has been...

In Roshan Narayanan C.S. Vs. Authorized Officer, the single bench of  Kerala High Court has squared the pitch in what has always been a contentious issue by declaring that the reference to a “measure” in Section 13 (4), in its application to clause (a) thereof, must be taken as including a reference to any step in the effectuation of that measure, commencing with the issuance of any notice under Rule 8 (2), and including the stages of approaching the Magistrate, obtaining an order from him, issuance of a notice by the Advocate Commissioner, and culminating with the taking of actual physical possession of the secured asset. Each of the above steps, in the measure adopted, would give rise to a cause of action to approach the DRT through an application under Section 17 of the SARFAESI Act. In the judgement, the Hon'ble judge also called the SARFAESI act as harsh and expressed dissatisfaction with the judgement of the Supreme Court in Standard Chartered Bank v. V. Noble Kum...

In BHAIRON SAHAI Vs BISHAMBER DAYAL, the Hon'ble Supreme Court has held that parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of sub-letting or assignment.

In Yogita Dasgupta Vs. Kaustav Dasgupta, the matter before the Delhi High Court was that Husband purchased the suit property in the name of the appellant wife “out of love and affection.  Marriage was dissolved by mutual consent. Husband filed suit claiming to be real and true owner of the suit property. Suit for declaration and permanent injunction in respect of flat. So the question before the court was  whether the husband proved that he was owner of the property. Held: suit property was purchased with the husband’s money, in the wife’s name – husband secured a Bank loan for the purchase of the property – husband continues to be liable for the loan and is making repayment towards installments – wife left the property in 2010 and never returned – two children live with the husband, in the suit property – wife stated that she was repaying the loan, she was unable to prove that allegation – husband, in the cross examination stated that since stamp duty payable...

In Woodlands Estate Apartment Owners Association Vs. E.S. Sabukuttan, the Hon'ble Kerala High Court has held that a building in a property can be sold independently even without the transfer of the land, or the land itself can be sold independently without the building. Such transfer cannot be said to be void.

In SOUTHERN POWER DISTRIBUTION COMPANY OF TELENGANA LTD. Vs GOPAL AGARWAL, the Hon'ble Supreme Court held that the auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. The request of the auction purchaser for a fresh connection could not have been rejected. The tender/sale notice mentioned that the property was being auctioned on “as is where is” basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner. In view of the above, the Appeal is dismissed.

In INTERNATIONAL UNION OF FOOD AGR. Vs UNION OF INDIA, The Supreme Court bench of justices S.A.Bobde and L.Nageswara Rao, on July 21, while hearing a contempt petition, directed the Centre to proceed against the erring tea companies, by calling upon the statutory authorities to issue notices to them, for recovery and payment of wages to the workmen, who lost their livelihood, due to closure of tea estates in Assam, West Bengal, Kerala and Tamil Nadu. Article referred: http://www.livelaw.in/sc-directs-centre-proceed-tea-companies-recovery-of-wages-to-workmen-read-order/

In an important judgment in the realm of Motor Vehicle Laws, the Supreme Court, in Mukund Dewangan vs. Oriental Insurance Company Limited, has held that there is no requirement to obtain separate endorsement to drive transport vehicle, and if a  driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. Article referred: http://www.livelaw.in/driver-holding-lmv-licence-can-drive-transport-vehicle-class-without-endorsement-sc-read-judgment/

In STATE OF KERALA vs K.K. MATHAI, the Kerala High Court explained the Law Of Case. A civil contractor had two arbitral awards passed in his favour against the Government. The Civil Appeals filed by the Government against the awards were dismissed. In further appeals filed by the Government before the High Court, the appeals were allowed in part, with modification of award. Against the modification made by the High Court, the Contractor moved the Supreme Court. The Supreme Court, set aside the impugned judgments of the High Court holding that they were on wrongful premises. Further, the appellant contractor was granted “liberty to the appellant to file Review Petitions” before the High Court. Accordingly, the Contractor filed review petitions before the High Court. Another Division Bench which considered the review petitions formed the opinion that review was unnecessary, and posted the appeals for fresh hearing. Two questions emerge from the above fact situation- When th...

In M/s. Naviplast Traders Private Limited vs M/s. R. G. Shaw & Sons Private Ltd, The Kolkata Bench of the National Company Law Tribunal recently ruled that disclosure of the fact of initiation of proceedings under Section 138 of the Negotiable Instruments Act in not necessary while filing an Application for Insolvency under the Insolvency and Bankruptcy Code, 2016. Article referred: http://www.livelaw.in/proceedings-section-138-ni-act-nothing-insolvency-application-code-nclt/

While hearing the appeal in Rajesh Sharma & ors vs Vs State of U.P. & Anr., the Hon'ble Supreme Court issued  the following guidelines to prevent misuse of Section 498A of the IPC Act:- i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority. (b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. (c) The Committee members will not be called as witnesses. (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction w...

In Mohinder Kumar Vs Surinder Kumar Sood, Justice Tarlok Singh Chauhan of the Himachal Pradesh High Court, while disposing of a second appeal, made a pertinent observation with regard to the avoidable delay occurring in the matter of disposing civil cases. He observed that a person who approaches the court must be able to enjoy the fruits of a decree and he cannot be made to suffer indefinitely even after a contest of a claim in a court of law. The judge, while dismissing the appeal imposing exemplary cost on the appellant, also said it is the duty of the court to put a ceiling on unnecessary delay in the matter of enjoying the fruits by a decree holder. He remarked: “It is often said that a litigation in this country, particularly on the Civil side commences only after obtaining a decree while executing.” Article referred: http://www.livelaw.in/duty-court-ensure-decree-holder-doesnt-suffer-indefinitely-himachal-pradesh-hc-read-judgment/

In Nikhil Mehta and Sons  vs AMR Infrastructure Ltd., the National Company Law Appellate Tribunal took a in depth look at the meaning of the term 'Financial Creditor' under the Insolvency and Bankruptcy Code, 2016. In this matter the appellants had entered into various agreements with the respondents regarding some properties. The one of the unit was purchased by the Appellant(s) under the 'Committed Return Plan' as per which if the Appellant(s) were to pay a substantial portion of the total sale consideration upfront at the time of Execution of the MOU, and the Respondent undertook to pay a particular amount to the buyer/purchaser (The appellant(s) in this case) each month, as Committed Returns /Assured Returns from the date of execution of the MOU till the time the actual physical possession of the unit is handed over to the buyer/ purchaser. In the said projects the appellants also had an option to choose the construction/ time linked payment plan as per which they...

In TRF Ltd. Vs Energo Engineering Projects Ltd., the Supreme Court held that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. “Once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth,” said Justice Dipak Misra, who authored the judgment for the bench which held that, once the identity of the managing director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. The issue, the apex court was addressing was whether, if the managing director is disqualified to act as an arbitrator, is he deprived of his right to nominate an arbitrator who has no relationship with the respondent. Article referred: http://www.livelaw.in/ineligible-arbitrator-cant-nominate-another-arbitrator-sc-read-judgment/

IN New India Assurance Company Ltd. Vs. Pravin Krushna Tatkari, National Consumer Disputes Redressal Commission held that Insurance Company cannot repudiate claim in toto in case of loss of vehicle due to theft. Challenge in present Revision Petition under Section 21(b) of Consumer Protection Act, 1986 is to order passed by Maharashtra State Consumer Disputes Redressal Commission (State Commission). By impugned order, State Commission has allowed Appeal, directing Insurance Company to pay to Complainant’s claim amount of 10,75,250/-, with interest @ 9% p.a. from date of filing of Consumer Complaint. Insurance Company has also been directed to pay a compensation of 50,000/- and cost of 20,000/- to Complainant. Brief point that falls for consideration is whether Insurance Company was justified in repudiating claim by invoking Clause 5 of terms and conditions on ground that, Complainant had not taken due care and caution while parking vehicle and invited theft. It is not in dispute th...

A division bench of the Delhi High Court in GECAS Services India Pvt. Ltd v. ITO & Ors, held that prior intimation need not be given to the Assssee by the Income Tax department before attaching the amount held in Bank Account when assesse has not responded to the demand notice sent under section 156 of the Income Tax Act. Assessee, a wholly-owned subsidiary of the GE Group, is engaged in the business of providing marketing support, liaising and administrative services in connection with leasing of aircrafts in India to its parent company. The department completed assessment against the assesse under section 143(3) of the Act against which an appeal is pending before the first appellate authority. Article referred:http://www.taxscan.in/dept-need-not-intimate-assessee-attaching-amount-held-bank-account-delhi-hc/9404/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Taxscan+%28Top+Stories+%E2%80%93+Taxscan+%7C+Simplifying+Tax+Laws%29

In CIT v. M/s. Orchid Industries Pvt. Ltd, a division bench of the Bombay High Court held that share transactions cannot be treated as bogus under section 68 of the Income Tax Act when Assessee produced all the relevant documentary evidence to prove the genuineness of the transaction in order to discharge its onus. Justices S.V Gangapurwala and A M Badar, while dismissing the departmental, said that in such a case, the AO cannot invoke section 68 merely for the reason that the shareholders never responded to the intimations sent by him and never appeared before him. Article referred: http://www.taxscan.in/share-transaction-cannot-treated-bogus-assessee-produced-relevant-documents-parties-not-traceable-bombay-hc/9274/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Taxscan+%28Top+Stories+%E2%80%93+Taxscan+%7C+Simplifying+Tax+Laws%29

A division bench of the Delhi High Court in Jay Metal Industries Pvt. Ltd v. CIT held that the income received by the assesse from letting of the building along with the furniture and machineries constitute “composite rent” which is taxable under the head “income from other sources” not under “income from house property” for the purpose of Income Tax Act.  Appellant-assessee, in the instant case, let out their building along with all its furniture and machineries. AO held that the same is taxable under the head “income from other sources” against the claim of the Assessee that it is taxable as “income from house property.” On appeal, the first appellate authority allowed the claim of the assesse. However, the ITAT reversed the order by stating that the rental income should be treated as ‘income from other sources’  Article referred: http://www.taxscan.in/income-letting-building-along-furniture-delhi-hc/9459/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%...

The division bench of the Bombay High Court in Commissioner of Income Tax-3, Civil Lines, Nagpur vs. M/s.Apeak Infotech Nagpur has held that receipt from share premium on issue of share by the Assessee-Companies cannot be taxed as profit and gains of business under Section 28(iv) of the Income Tax Act since the same amount to capital receipt. The decision was in the light of decisions in Vodafone India Services Pvt. Ltd. vs. Addl. CIT and the apex Court ruling in M/s G.S. Homes & Hotels P.Ltd. In the instant case, Assessees, during the assessment year 2012-13 had increased its Share Capital by issuing its shares at a premium. While completing assessment, AO observed that Assessee did not have any significant business at the time of issue of share capital to warrant receipt of share premium and added the share premium received to its income as profits and gains of business under Section 28(iv) of the Income Tax Act. Article referred: http://www.taxscan.in/share-premium-capital-r...

The Supreme Court, in Alka Chandewar vs Shamshul Ishrar Khan, has held that an arbitral tribunal is empowered to make representation to the court for contempt if the orders, including the interim orders passed by the arbitrator, by the parties before it. Article referred: http://www.livelaw.in/arbitral-tribunal-can-make-representation-hc-contempt-parties-violate-orders-sc-read-judgment/

In GMG Engineers & Contractor Pvt. Ltd v. State of Rajasthan & ors, the Rajsthan High Court held that the sale made under the provisions of the Securitisation and Reconstruction of Financial Assets and  Enforcement of Security Interest Act, 2002 is cannot be deemed as valid when State sales tax Department has First Charge on the Property. Dismissing the petition, Justice M.N Bhandari said that “The State dues may be without a provision of first charge and in that situation, the secured creditors would have priority over the State dues and, accordingly, amended provision is to be given interpretation. It cannot, however, nullify a provision for first charge on the property. The first charge on the property creates right even as per the Act of 1882. It has  already been observed that if intention of the Central Government was to nullify first charge, the language of amended provision would have been in the manner indicated by the Apex Court in the case of Central Bank...

In AIR INDIA LTD. WELAFRE SECTION, HUMAN RESOURCE DEVELOPMENT DEPARTMENT Vs SUBHASH KASHINATH, the NCDRC held that law of limitation does not permit any extra time for government functionaries that must complete the administrative procedure of seeking approvals for legal matters within the limitation period, while taking a strict view of the delay of over 233 days caused by Air India in filing appeal against ex parte interlocutory orders of the State Commission, where also it had failed to make an appearance, despite being duly served. Article referred: http://www.livelaw.in/law-of-limitation-gives-no-extra-time-govt-bodies-ncdrc/

In ITO v. Raj Kaiwar, a division bench of the ITAT Chennai held that mere license to enter into the property for preparing plan & to carry on necessary formalities for construction cannot be treated as transfer of Possession for the purpose of determining capital gain under the provisions of the Income Tax Act.  In the year 2010, assessee entered into a joint development agreement as per which, he handed over the possession of the property to the developer. As per this agreement, the assessee is entitled for 70% of the constructed area and remaining 30% will go to the share of the developer. If the assessee gets anything more than 70%, the assessee shall pay for the excess constructed area at the rate of `9500/- per sq.ft. The project was not completed within three years due to delay in getting approval from the coastal zone regulation authority, who granted the same to the developer only in 2012.  Assessee earned Rs. `8,46,12,019/- towards capital gain and claimed exe...

In Aftab Singh v Emaar MGF Land Limited & Anr, the Full Bench was constituted pursuant to a referral by the Single Bench on 31 August 2016. In its decision of 13 July 2017, the NCDRC has once again reiterated that since the Consumer Courts are special courts constituted to serve a social purpose, the Amended Act does not apply to them. It held that an arbitration clause in a builder-buyer agreement cannot circumscribe the jurisdiction of the consumer forum irrespective of the amendments made to Section 8 of The Arbitration and Conciliation. (Amendment) Act, 2015.

In NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS versus UNION OF INDIA & ORS, the Delhi High Court has held that a document received as a WhatsApp forward does not even qualify as a document in terms of the Evidence Act, 1872, if neither the original nor the copy of the original has been produced. Article referred: http://www.livelaw.in/whatsapp-forward-without-original-cant-treated-document-evidence-act-delhi-hc/

In Punjab State Civil Supplies Corporation Ltd. & Anr. vs M/s Atwal Rice & General Mills Rep. by its Partners,  The Supreme Court bench of Justices Abhay Manohar Sapre and R.Banumathi, on July 11, in an arbitration case, indicted both the executing Court and the Punjab and Haryana High Court, for “total non-application of mind” and set aside their orders. In the instant case, the agreement between the appellant and the respondent, entered into in 1996, was the subject of arbitration, following the dispute between them. In terms of the agreement, the appellant was to give their paddy to the respondents, who were to process the paddy in their rice mill and the rice, produced after processing paddy, were to be delivered to the Food Corporation of India (FCI) for and on behalf of the appellant by the respondents. The dispute arose because the respondents failed to process and deliver the full quantity of rice in terms of agreement to the FCI much less within the time frame...

In New India Assurance Co Ltd. vs Dharmishta Jitendra Mehtalia, while hearing an insurance company’s first appeal against an order of Motor Accident Claims Tribunal (MACT), the Bombay High Court has held that in case the deceased was self-employed, appropriate method for calculating loss of dependency would be by taking his median income. Justice GS Patel was hearing the appeal filed by New India Assurance against an order by the MACT awarding Rs. 26 lakhs as compensation to the family members of deceased Jitendra Mehtalia. Article referred: http://www.livelaw.in/deceased-motor-accident-self-employed-best-method-assessing-loss-dependency-taking-median-income-bombay-hc-read-jt/

The Supreme Court, in Lahu Shrirang Gatkal vs. State of Maharashtra, has held that a blanket order of detention, without specifying the period of detention, is illegal and unsustainable. Article referred: http://www.livelaw.in/detention-order-without-specifying-period-detention-illegal-sc-read-order/

In Dr. Dipankar Chakraborty Vs. Allahabad Bank & Ors., the Calcutta High Court on Friday ruled that any remedy under Securitization and  Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) would be subject to the provisions of Limitation Act, 1963. Article referred: http://www.livelaw.in/remedy-sarfaesi-act-subject-provision-limitation-act-calcutta-hc-read-judgment/

In  M/s Schweitzer Systemtek India Private Limited, the National Company Law Tribunal recently held that the personal properties of the  Promoters given as security to the Banks can be proceeded against, in spite of  initiation of insolvency proceedings against the Company. Judicial Member M.K. Shrawat ruled that personal properties of the Promoters would  not saved by the Moratorium prescribed by Section 14 of the Insolvency and  Bankruptcy Code, 2016. During the moratorium, all pending actions against the  Debtor are stayed, and no new actions can be initiated. Mr. Shrawat undertook an interpretation of Section 14 of the Code to rule, “On  careful reading I have noticed that the term “its” is significant… As, a result, “its”  denotes the property owned by the Corporate Debtor. The property not owned by  the Corporate Debtor do not fall within the ambits of the Moratorium.(sic)”  The Tribunal was hearing a Petition filed by M/s Sc...

In Dharmaraj v. State, the High Court of Madras held that Burden is on accused to prove facts which is within his knowledge. Appellant in present appeal is sole accused in Sessions Case, on file of Sessions Judge. He stood charged for an offence under Section 302 of Indian Penal Code, 1860 (IPC). Trial Court, by judgement convicted Appellant/accused for offence under Section 302 of IPC, and sentenced him to undergo life imprisonment for each count and to pay a fine. Trial Court also directed sentences imposed on Appellant/accused to run consecutively. Challenging said conviction and sentence, Appellant/Accused is before this Court with present appeal. It is a case of triple murder. Deceased are closely related to Accused. So far as motive for murder is concerned, P.W.1 has stated that, accused wanted to marry Deceased-3, for which Deceased-1 and D-3 Chandra opposed and in order to take revenge, he took all deceased to house of D-3 and murdered them, brutally. It is crystal clear th...

In G. Basavaiah V. Samir Kumar Pattnaik, the High Court of Orissa held that When there has been devolution of interest during pendency of suit, suit may, by leave of Court, be continued by or against persons upon whom such interest has devolved. By present application, challenge is made to order passed by District Judge, whereby appellate Court rejected application of Petitioner under Order XXII Rule 10 of Code of Civil Procedure, 1908 (C.P.C.) to substitute him in place of deceased-Appellant. During pendency of suit, Petitioner had purchased suit land from Defendant-appellant by means of a registered sale deed dated 19th April, 2010 and mutated same in his name. After death of Defendant-appellant, he filed an application under Order XXII Rule of 10 CPC to allow him to substitute in place of deceased-Appellant and continue appeal. According to him, since legal representatives of deceased-Appellant have not taken steps for substitution, he is seriously affected. His interest has devol...

In Amit Mondal Vs. Pannalal Das and Ors., before the High Court of Calcutta, Present First Appeal is against judgment and decree passed by Civil Judge. By impugned judgment, Plaintiff's suit for specific performance of contract was decreed in part. Relief for specific performance of contract prayed for by Plaintiff, was refused by Trial Judge on ground that, registered agreement for sale which was sought to be enforced by Plaintiff by said suit was not signed by Plaintiff (purchaser). Trial Judge held that, such a unilateral agreement for sale is incapable of enforcement through a suit for specific performance of contract. There are various modes of creation of contract. A contract may be concluded orally, a contract may be concluded by exchange of letters, a contract may be concluded by signing a document by parties to contract and exchange thereof between them. Each of such contracts is enforceable by a suit for specific performance of contract provided it is legal and is not o...

In Manipal University and Ors. v. Union of India (UOI) and Ors., instant appeal before the Hon'ble Supreme Court arises from a Writ Petition filed by Manipal University (formerly known as Manipal Academy of Higher Education) and Ors., wherein High Court disposed of Writ Petition giving effect to directions of this Court in PA Inamdar v. State of Maharashtra, until suitable law or Regulation is made by University Grants Commission (UGC) or Central Government. Aggrieved, Manipal University has preferred present Appeal. Principal question that, arises for consideration is regarding correctness of directions issued by second Respondent to Appellant not to fill up 103 seats in category of NRI/foreign students during years 2005 to 2008. Appellant was granted status of a Deemed University in year 1993. There is also no controversy about directions issued by this Court regarding pegging of NRI quota in medical colleges at 15 per cent. Admittedly, Appellant has made admissions to NRI quot...

In Yanesh @ Yogesh Kumar Sahu vs State of Chattisgarh, while refusing to quash a case against a man accused of abetting suicide of his wife, the Chhattisgarh High Court has observed that if the accused had created circumstances that led to a situation which made a person feel totally frustrated and, thereafter, commit suicide; it may amount to abetment punishable under Section 306 of the Indian Penal Code. In the instant case, the wife of the accused had committed suicide and the accused was charged with the crime of abetting it. He had approached the high court seeking to quash the charge against him.

The Allahabad High Court, in the case of Abdul Azad vs State Of UP, has held that the testimony of a witness cannot be rejected merely because the witness happens to be a blood relative. In this case, Abdul Azad, the appellant, preferred an appeal against his conviction under Section 302 of IPC, Section 7 of Criminal Law Amendment Act and sections 25 and 27 of the IPC. An issue before the court in this case was whether or not the testimonies of his blood relatives can be used as valid testimonies.

It is early days of the Insolvency Code and already confusion is evident. In Kirusa Software Private Ltd. Vs Mobilox Innovations Private Ltd., the National Company Law Tribunal, the question before the Tribunal was what does "dispute" and "existence of dispute" means for the purpose of determination of a petition under section 9 of the 'I & B Code'? The question that has arisen before various NCLTs is whether a corporate debtor can raise all kinds of disputes in the notice of dispute or can the notice of dispute only refer to pendency of a suit or arbitration before receipt of the demand notice. In other words, is the application of an operational creditor liable to be rejected only if the notice of dispute refers to a pending suit or arbitration proceeding on the dispute before receipt of the demand notice? The Ld. Adjudicating Authority had rejected the application of the Operational Creditor under Section 5(ii)(d) of the Insolvency Code which di...

In Suresh Sakharam Kadam vs The Transport Manager, Thane Municipal Transport Undertaking, Dismissing an appeal against an order of the Motor Accident Claims Tribunal (MACT), the Bombay High Court has held that Section 163-A of the Motor Vehicles Act is applicable only id the injury or fatality is the result of the collision and a consequence of it. Justice GS Patel held that a collision after the occurrence of the injury, and independent of the injury, is not an accident “arising out of the use of” the offending vehicle at all, simply because the offending vehicle was not involved in the injury or fatality causing incident. Justice Patel was hearing the first appeal filed by one Suresh Kadam, his wife and daughter. Article referred: http://www.livelaw.in/compensation-mv-act-applicable-injury-fatality-due-collision-bombay-hc/

In Badiya Vs. State, Rajasthan High Court held that the plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit. A bare look...

In New India Assurance Co. Ltd. Vs. Seema Sudam Auti, Bombay High Court held that the court is duty bound to award “just compensation” irrespective of the fact whether any plea was raised in respect of the claimant or not. Article referred: http://lawkam.org/bombay/court-mact-new-india-assurance/14473/

In CHITHRA C.R., vs STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, the High Court of Kerala has held that the conditions of service of teachers in private un-aided schools can be enforced by exercising writ jurisdiction under Article 226 of the Constitution of India. The ruling came in a batch of writ petitions filed by teachers in private un-aided schools. Their grievances varied from non-payment of fair wages, illegal termination without notice, and arbitrary disciplinary proceedings. The petitioners contended that since private schools were discharging a public function they were amenable to writ jurisdiction. Opposing this, the school management argued that writ jurisdiction can be invoked qua public function alone, and not to seek relief on contract of service, which in essence was a pure civil right.

In Ess Ess Metals & Electricals Vs. CCE, Delhi-II, the Customs, Excise and Service Tax Appellate Tribunal held that demand cannot be sustained unless all relied documents have been furnished to Appellant to enable them to defend themselves Appellant is engaged in manufacture of brass, zinc, nickel, tin and lead alloys falling under Tariff Subheading 74.03 of 1st schedule to Central Excise Tariff Act, 1985. Dispute pertains to the period 1st April, 1987 to 31st March, 1990. Show cause notice was issued for demand of Central Excise Duty amounting to Rs. 49,83,736/- along with a proposal for imposition of penalties under various rules as well as a proposal for confiscation of land, building, plant and machinery used in manufacture of excisable goods. Appellant was not discharging Central excise duty payable on goods viz. alloys of various nonferrous metals, by taking the view that, these metals as well as metal alloys remained classified in same tariff heading up to 13.5.1988 and he...

In Soham Lal Manpuria and Ors. Vs. Kolkata Municipal Corporation and Ors., High Court of Calcutta held that no place other than municipal market shall be used as a market place unless such place has been licensed as a market by Municipal Commissioner Present writ petition is filed for a direction upon corporation authorities to take steps for demolition of illegal construction and stoppage of illegal running of private market on lands of Petitioner. Subject matter of dispute discernable from writ petition pertains to firstly inaction on part of Municipal Commissioner to decide representation filed by Petitioners, and secondly, whether market established by market committee and constructions made thereupon is strictly inconformity with provisions of Kolkata Municipal Corporation Act, 1980. Chapter XXIV of said Act contains exhaustive provisions relating to markets and slaughter houses. Said chapter imbibed within itself municipal markets and private markets. Section 428 of Act, clea...

In Radhawami Salt works v. ACIT, a division bench of the Gujarat High Court held that re-assessment under s. 147/148 of the Income Tax Act cannot be made when the original assessment order is challenged on appeal and is not yet disposed. Assessee took 350 acres of land on lease from the Government for the production of land. Coastal Gujarat Private Limited (CGPL) was interested in purchasing such land and therefore privately negotiated with the petitioner to give up its rights prematurely. Accordingly, assessee surrendered the lease to the Government. This land was thereafter sold by the Government to CGPL. CGPL had separately made payment of Rs.29.92 crores to the assessee in two installments. Assessee in its return, shown the amount as long term capital gain received in lieu of transfer of land. However, during the assessment proceedings, the assessee contended that such receipt was not in the nature of capital gain but was one time receipt which was not taxable. The Assessing Office...

In Roochees Time Pvt. Ltd. and Ors. Vs. C.C.E., Jaipur-I, the Customs, Excise and Service Tax Appellate Tribunal held that legal proceedings cannot be initiated without completing assessment proceedings In facts of present case, Appellant imported P-68 watch movement from Hong Kang and filed Bills of Entry. On basis of invoice issued by overseas supplier, Appellant had indicated per unit value of imported goods (US $ 0.08 i.e. Rs. 3.66) for purpose of assessment of duty liability. Customs Department prima-facie formed opinion that, goods were undervalued by Appellant, and accordingly, subject goods were detained under Section 110 of Customs Act, 1962. Goods were assessed provisionally. Subsequently, Department further enquired into matter through DRI and Consulate General of India at Hong Kong. On basis of report received from various agencies, show caasseuse proceedings were initiated against Appellants, seeking for enhancement of value, payment of differential Customs duty and for ...

In Ramson Graphics Vs. Commissioner of Customs (Seaport-Imports), Chennai, the Customs, Excise and Service Tax Appellate Tribunal, held that opinion of one expert cannot be rejected on basis of opinion of another expert unless there is sufficient independent reason for such rejection Appellant imported one set of used offset printing machine along with standard accessories from Benelux International Trading BVBA, Belgium and declared transaction value of GBP 7500 (CIF) (equivalent to Rs. 5,67,375) and filed necessary Bill of Entry. Along with Bill of Entry, importer enclosed an overseas Chartered Engineer certificate issued by Graphic Consult, Belgium. Docks Intelligence Unit, Custom House, Chennai took up consignment for investigation on receipt of intelligence regarding alleged under valuation. Suspecting value, goods were got examined by a local Chartered Engineer, who vide report assessed value of the goods at GBP 11,900.00 (CIF) (equivalent to Rs. 21,40,895/-). Goods were al...

The Supreme Court, in Allokam Peddabbayya vs Allahabad Bank, has held that if  the right to redeem stood extinguished by operation of law under proviso to Section  60 of the Transfer of Property Act, 1882, prior to the period of limitation, it cannot be  contended that the right could nonetheless be enforced any time before the expiry of  limitation of 30 years. In the instant case, a suit for redemption of mortgage was decreed in favour of  mortgagors. The high court upheld the appellate court reversal of the findings of trial court, holding that consequent to the auction sale and issuance of sale certificate  along with possession delivered, the original mortgagors were no more the owners of  the property and there stood no debt to be redeemed on the date of filing of the suit.  The bench comprising Justice Ranjan Gogoi and Justice Navin Sinha observed that  the right to enforce a claim for equity of redemption is a statutory right...