Legal News & Views

In Tarabai Dagdu Nitanware v. Narayan Keru Nitanware, the petitioners contended that the suit property was received by the deceased from her parents and that the husband’s children were not her children as they were born to the respondent’s second wife. Therefore, there was no cause of action to the suit for declaration, partition and injunction filed by the respondent (as original plaintiff) since neither the respondent husband nor his children had any shares to the said properties. The trial court partially allowed the application by rejecting the claims of the children and accepting the husband’s claim. Relying on Section 15 of the Hindu Succession Act which states that in cases where a female dies intestate then the property she had inherited from her father or mother does not devolve upon the husband or his issues but upon the heirs of the deceased’s father, the High Court held that the trial court should have rejected the plaint in respect of the husband and not just his...

In Maladri Reddy v. State of Karnataka, the petitioner was an accused in criminal case registered under Sections 324, 504 and 506 of IPC along with Section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act. Petitioner submitted that the FIR in the case was not regard to the offence under SC/ST Act but only to those under IPC. He submitted that it was only after a gap of few days that the Police in collusion with the complainant created another complaint in respect of the very same crime wherein the allegations regarding the offence under SC/ST Act were made. The petitioner prayed that he may be allowed an anticipatory bail by imposing reasonable conditions. The Karnataka High Court perused the evidence on record and found that two complaints were field by the complainant in the case. Both related to the same incident. In the first complaint, no allegations against the petitioner regarding the offence under SC/ST Act were made. It was only in the second complaint which was f...

The Supreme Court has clarified in M/s. Universal Cylinders Limited vs The Commercial Taxes Officer, that a sales tax assessee is entitled to get the refund of excess tax paid on provisional sale price if the price gets reduced subsequently on price variation. The judgment authored by Justice Deepak Gupta, on sharing bench with Justice Madan.B Lokur, was delivered in an appeal from the Rajasthan High Court. The appellant was a manufacturer and supplier of LPG Cylinders to Government-owned companies like IOCL, BPCL etc. The prices for LPG cylinders are fixed by the Ministry of Petroleum and Natural Gas as per its pricing policy. The prices are fixed for a period at a later point of time. Pending the finalization of prices for the period 2000-01, the appellant supplied cylinders to IOCL at a provisional rate of Rs.682/- per cylinder. Sales tax on this price was collected by the appellant and remitted to the Department. Later, the Ministry finalized the price for the period as Rs.6...

In M/S UNITED INDIA INSURANCE COMPANY LIMITED vs JAI PARKASH TAYAL, the question before the Delhi High Court was whether persons having genetic disorders can be discriminated against in the context of health insurance. The Court has categorically held that the right to avail health insurance is an integral part of the right to Healthcare and the Right to Health, as recognised in Art. 21 of the Constitution. It also held that the exclusionary clause of `genetic disorders’, in the insurance policy, is too broad, ambiguous and discriminatory – hence violative of Art. 14 of the Constitution of India The Court observed that the exclusion of genetic disorders in all forms from health insurance would be contrary to public policy. Several of the prevalent medical conditions which affect a large mass of population, including cardiac conditions, high blood pressure, diabetes in all forms, could be classified as genetic disorders. The entire purpose of taking medical insurance would be d...

In Omprakash Phatandas Panjwani vs. ACIT, 12000 equity shares bought by the assessee @Rs.9.95 per share were transferred to Dmat account on 13.8.2007 and then these were sold on 17.8.2007 and the price per equity share on the date of sale was around Rs.63.  The AO suspected the impugned purchase because the payment was made after nine months even when there was no regular transaction between the assessee and broker and also there was extra ordinary increase in the prices of the equity shares. Accordingly, he made an addition in respect of the same by treating the same as unexplained income.  On first appeal, the CIT(A) upheld the order. In order to confirm the genuine of the transaction assessee has submitted relevant documents before the Tribunal.  The bench found that the only reason that the payment of purchase has been made after a lapse of nine months cannot render the purchase as non-genuine unless and otherwise any material is brought on record which ...

COMMISSIONER OF INCOME vs DR. VANDANA GUPTA, The assessee, in the instant case, is a Medical Practitioner. She surrendered 2,00,00,000/- during search proceedings and filed a revised return declaring that amount as additional income.  After the completion of proceedings, the Assessing Officer imposed a penalty on the assessee stating that she had furnished inaccurate particulars of income. Before the appellate authorities, the assessee submitted that she neither concealed particulars of income or furnished inaccurate particulars and that all material disclosures were made during the assessment proceedings.  The ITAT concluded the matter in favor of the assessee by holding that since the assessee disclosed the income in the revised return which was in consonance with the voluntary statement made by her, the exercise of discretion in assuming jurisdiction and imposing the penalty was unwarranted.  A division bench of the Delhi High Court held that in the presen...

In S. B. INTERNATIONAL vs DIRECTORATE OF REVENUE INTELLIGENCE, the assessee is a sole proprietorship concern. During the relevant period, a search was conducted by the Directorate of Revenue Intelligence (DRI) under the Customs Act in the warehouse of the Assessee regarding the illegal import of tyres. The Assessee was also called upon to produce the bank statements of the concern. After analyzing the documents, the DRI concluded that the said statement was recorded under duress and coercion. Accordingly, the DRI passed an order to freeze the bank account of the concern. After considering the rival submissions of both the parties the Delhi aHigh court on appeal observed that “Freezing a bank account is not the same as seizing an asset; it interdicts operation of a bank account and it deprives the account holder of banking facilities. Indisputably, there is no sanction in the Customs Act for such action”. Article referred: http://www.taxscan.in/no-provision-customs-act-freezing-b...

In Knight Raj Properties P Ltd vs. ITO, the Mumbai ITAT held that that assessee’s receipts such as compensation received from let out of terrace antenna and hall booking should be taxable under the head business Income.  The assessee, in the instant case, engaged in the business of letting premises in which filed its e-return processed under section 143(1) of the Income Tax Act. However, during the proceedings, AO noted that assessee received rental income and the same has been credited in Profit and loss account and also assessee has claimed expenditure of Rs.18,57,572/- against the same. The AO rejected the contention of AO to treat the same as income from house property and to allow standard deduction of 30%.  The Assessing Officer did not accept the contention of the assessee and taxed the income received from terrace antenna and hall booking under the head “Income from Other Sources”. Aggrieved by the same assessee approached CIT (A) therein first appellate autho...

The Jaipur bench of the Income Tax Appellate Tribunal, in Ramswaroop Saudagar vs ITO  held that the sale of agricultural land after developing the same into different plots is subject to tax as ‘Business Income’ under the provisions of the Income Tax Act, 1962.  The assessee, in the instant case, had developed 23 plots in his agricultural land and sold the same to different people. In the returns, the assessee disclosed the said income as Capital Gains. However, the Assessing Officer, while completing assessment proceedings, invoked section 50C of the Income Tax Act by adopting DLT rate.  On appeal, the first appellate authority found that the income received by Assessee is chargeable to tax under the head ‘Profit and Gains from Business and Profession’ since the nature of the activity is ‘adventure in the nature of trade’.  On the second appeal, upholding the order of the CIT(A), the Tribunal noted that the nature of land had gone irreversible chan...

In Indiabulls Housing Finance Ltd. vs M/S Deccan Chronicle Holdings Ltd on 23 February, 2018, the appeal was against the judgment of the Andhra High Court which had ruled in favour of the respondents who had raised the following issues :- (a) loan agreements contained arbitration clauses which were invoked by the appellant with the filing of cases under Section 9 of the Arbitration and Conciliation Act, 1996. In view thereof, initiation of any other proceedings under the SARFAESI Act are impermissible in law; and (b) the loan was initially given by IBFSL. IBFSL was not a banking company or financial institution within the meaning of Section 2(d) and (m) of the SARFAESI Act and, therefore, it had no jurisdiction to take any steps by invoking the provisions of this Act. However, IBFSL got merged with the appellant company. No doubt, the appellant is a financial institution under the SARFAESI Act. However, since IBFSL had no right to initiate any action under the said Act, as a su...

The Kolkata bench of the Income Tax Appellate Tribunal, in EPCOS India Pvt. Ltd v. ITO recently ruled that assessee not required to deduct Tax at source (TDS) at the time of giving cash discounts to its customers for purchasing goods in bulk. Assessee-Company engaged in the business of manufacturing and sale of soft ferrite components, DC and AC capacitors, metalized films etc. Assessee has claimed expenses under the head “trade discount and cash discount”, which was later disallowed by the Assessing Officer by observing that the discount offered to the customers was subject to various terms and conditions therefore it partake the character of commission and therefore, is liable to deduct tax at source under section 194H of the Act. Article referred : http://www.taxscan.in/tds-u-s-194h-not-applicable-cash-discounts-given-customers-purchasing-goods-bulk-itat/18139/

In M/S. ELITE ENGINEERING AND CONSTRUCTION (HYD.) PRIVATE LIMITED vs  M/S. TECHTRANS CONSTRUCTION INDIA PRIVATE LIMITED before the Supreme Court,  some disputes arose between the appellant and the respondent in connection with the execution of the said work and the appellant vide its letter dated March 25, 2013 raised certain claims against the respondent. The appellant also filed Original Petition under the Arbitration Act on the file of Principal Judge, Karur. This petition was contested by the respondent who in its reply denied all the allegations raised by the appellant and also submitted that since there was no arbitration agreement between the parties, the petition under Section 9 of the Act was not maintainable. While this was pending, the appellant moved application under Section 11(3) and (5) of the Act for appointment of an arbitrator in the High Court of Judicature at Madras on January 28, 2014. Notice in this petition was issued by the High Court. In the meantime,...

ITO v. Shri Mukund T Parmar, while considering the details of period of holding share and drawn a conclusion that the Assessee dealt in the share of Core Projects Ltd. from which the income from short-term capital gains and long-term capital gains had arisen and the magnitude of dealings in the shares revealed that Assessee engaged in such business with complete knowledge and timing of the market. Hence, the AO treated the Assessee as a Trader, not as the investor and assessed income of Rs. 7,02,69,2369/- which was brought to tax as income under the head Income from business and profession.  The assessee carried the matter in appeal before the learned CIT(A)who allowed the appeal of the assessee and observed regarding the part of the shares have been held as the investment and there appears to be no reason to treat the same as business income.  The Appellate authority held that merely making the profit on the sale of shares cannot be held in the nature of trade since ...

The Supreme Court, in Dinesh Kumar Kalidas Patel v State of Gujarat, has held that a person cannot be convicted for causing disappearance of evidence merely because he failed to inform the police about the crime. The trial court had convicted a person for offences under Sections 498A and 201 of the Indian Penal Code, 1860. The high court acquitted him of the offence under Section 498A of the IPC but conviction under Section 201 of the IPC was maintained. The bench of Justice Kurian Joseph and Justice Amitava Roy observed that the high court had maintained the conviction under Section 201 of the IPC, only on the ground that the accused did not give intimation to the police of the unnatural death and that no post- mortem was conducted. “We are afraid, the High Court is not justified in maintaining the conviction under Section 201 only on the ground that no communication was given to the police and that the post-mortem had not been performed,” the bench observed. Article referred...

In Sudhir Naik HUF and others vs. Income Tax Officer, the Hyderabad ITAT held that all apartments received under a development agreement would become one house for the purpose of granting exemption under section 54F of the Income Tax Act even though the same are independent units.  In the instant case, one Mr. Ramachandra Naik expired on 09-07-1994. He has four members in his family and the same group entered into an agreement with M/s. Siri Sampada Constructions & other and has given 8,365 Sq. Yds., of land for development.  The developer constructed 30 flats in block-A which is fully owned by land owners and 100 flats in block-B, out of which the owners got twenty-one flats towards their share from this they sold twenty-four flats before March, 2003. Article referred: http://www.taxscan.in/all-apartments-received-under-development-agreement-would-become-one-house-for-the-purpose-of-s-54-exemption-itat/17894/?utm_source=feedburner&utm_medium=email&utm_c...

In the case of Jitender Singh Marvaha vs. D.DI.T, the Kolkata bench of the Income Tax Appellate Tribunal (ITAT) has held that the number of sale proceeds of the property seized by Income Tax Department cannot be constructed as the amount invested as per section 54EC bond of the Income Tax Act 1961.  The assessee, in the present case, is an individual and a citizen of United Kingdom. During the financial year, the assessee sold his ancestral land and received consideration. He declared his total income as Rs.500 only. Thereafter, a search was conducted and seized cash of Rs. 51.50 lakhs roughly and 20,000 Pounds Sterling from the assessee. The said cash amount found in the search & seizure operation was relating to sale proceeds of the ancestral land. Article referred: http://www.taxscan.in/sale-consideration-property-seized-department-cant-treated-amount-invested-per-s-54ec-bond-itat/18053/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Taxscan+%28To...

In Asha Dei Vs. Naran Sethi and Ors., the High Court of Orissa while addressing the issue of adverse possession once again reiterated the principals laid down for the same holding that :- Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others, the apex Court observed that, "in the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, 'without force, without secre...

In Guramardeep Singh and Ors. Vs. Ved Vyas and Ors., High Court of Punjab and Haryana, Revision petitions are filed against impugned orders by which ad interim injunction was granted in favour of Plaintiff-Respondent No. 1. Plaintiff-Respondent No. 1 filed a suit for permanent injunction against the present Petitioner-Defendant No. 1-Punjab Wakf Board ('Board') as well as, Respondent-Defendant Nos. 2 and 3 for permanent injunction for restraining them from dispossessing or interfering in his possession over the property consisted of two shops-cum-store and saw mill, illegally and forcibly in any manner.  If the lease agreement is executed and the Board feels that, the Plaintiff-Respondent No. 1 has rendered himself liable for ejectment, it is required to approach the civil Courts for this purpose. Mere alleged breach of lease deed, ipso facto would not mean that tenancy stands terminated, merely by serving a notice and possession revert back to the Board.  The Wa...

In Sube Singh and Anr.Vs Shyam Singh (Dead) and Ors., the in a motor accident, Ajit Singh, who was at the relevant time 23 years of age died. His parents, who were in the age group of 40 to 45 years, filed a petition claiming compensation. The Motor Accident Claims Tribunal held that the established income of the deceased was around Rs.4,200/­ per month and after deduction of 50% as the deceased was unmarried, calculated the same as Rs.2,100/­ per month. Thereafter, it applied multiplier 15, taking the age of the “parents of the deceased” into consideration. This was challenged by the appellants by way of an appeal before the High Court of Punjab and Haryana at Chandigarh, being FAO No.330 of 2012 (O&M) which was partly allowed in relation to other heads of compensation. As regards multiplier applied for determination of loss of future income, the High Court held that multiplier 14 will be applicable. For that, the High Court relied on the decision of this Court of (Two Judge Benc...

NJ Constrution Vs. Ayursundra Health Care Pvt. Ltd. and Ors. - (High Court of Delhi) The Respondent No. 1 floated a notice inviting tender for the civil and electrical work of Super Specialty Hospital, wherein several bids were invited. The hospital was to be constructed at Guwahati. The Petitioner also participated and was awarded the said work order at the mutually agreed amount. The LOI was issued by Respondent No. 1 for the said work.  An Article of Agreement was entered into containing the special conditions of the Contract, Specifications and Schedules of quantities with the rates entered therein forming part of the agreement/LOI. It is alleged by the Petitioner that Respondent did not pay the complete advance mobilization money despite request even after five months from the date of the execution of the agreement. The Petitioner kept on doing the work and sending the bills. There was some dispute qua payments. Receiving no response, the Petitioner sent a legal notic...

Petitioner who is not a party to agreement containing an arbitration clause cannot be party to arbitration proceedings between the parties to arbitration agreement The grievance projected by the Petitioner in Trust House Constructions Vs. State of J&K and Ors. - the High Court of Jammu and Kashmir is that, while the arbitration proceedings between Respondent Nos. 2 and 4 were going on before the Arbitral Tribunal, the Petitioner who was vitally interested in the aforesaid proceedings having executed the balance work on behalf of Respondent No. 4, moved an application before the Arbitral Tribunal seeking its impleadment, but its application was turned down by the Arbitral Tribunal vide order dated 24.10.2009, impugned in this petition. The Petitioner assails the order impugned primarily on the ground that, the Petitioner has a vital interest in the arbitration proceedings pending before the Arbitral Tribunal and its presence in the arbitration proceedings would facilitate effec...

The Supreme Court, in Auto Cars v Trimurti Cargo Movers Pvt Ltd & Ors, has held that service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as “summons duly served” on the defendants within the meaning of Order IX Rule 13 of the Code. The bench observed that the summons issued as paper publication by the high court which required the defendants to appear before the Registrar of the court ‘within 15 days from the service of publication of this summons’ on them, cannot be held as duly served. Article referred: http://www.livelaw.in/service-summons-without-mentioning-therein-specific-day-date-year-time-cant-held-summons-duly-served-sc-read-judgment/

In SUNDARAM FINANCE LIMITED vs ABDUL SAMAD & ANR., the issue was divergence of legal opinion of different High Courts on the question as to whether an award under the Arbitration Act, 1996 is required to be first filed in the court having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightway filed and executed in the Court where the assets are located is required to be settled in the present appeal. Putting at rest a difference of legal opinion between several High Courts throughout the country, the Supreme Court ruled that an arbitral award can straightaway be filed and executed in the Court where the assets are located, without first obtaining a transfer of decree from the Court which would have jurisdiction over the arbitral proceedings. Article referred: http://www.livelaw.in/arbitral-award-can-straightaway-executed-court-assets-located-without-obtaining-transfer-decree-sc-...

In M/s ONGC Mangalore Petrochemicals Ltd. Vs M/s ANS Constructions Ltd. & Anr., setting aside an arbitration reference order issued by the High Court, the Supreme Court held that the party should not have been permitted to raise arbitration dispute after accepting full and final payment of the contractual amount. The Court observed that mere allegation that no-claim certificate has been obtained under financial duress and coercion, without there being anything more to suggest the same, does not lead to an arbitrable dispute. Article referred: http://www.livelaw.in/mere-allegation-no-claim-certificate-obtained-financial-duress-coercion-doesnt-lead-arbitrable-dispute-sc-read-judgment/

In Haji Hanif Hakam Vs. Debt Recovery Appellate Tribunal at Kolkata & Ors., the plaintiff being assignee of the residue of the unexpired period of the leasehold interest in the suit property submitted that Joint Receivers were appointed by the Hon’ble High Court for taking actual physical possession of the suit property and the suit premise is, therefore, custodia legis. The third respondent is aware of such possession by the Joint Receivers yet without obtaining the leave of the Court appointing the Joint Receivers, had filed a proceeding RDDB Act. Subsequently the suit property was put up for sale and sold by the Recovery Officer and therefore the sale is illegal, null and void. The third respondent submitted that the Joint Receivers are not in actual physical possession of the immovable property. Although, the initial order was for actual physical possession, the same was later modified to mean that the Receivers will take constructive possession. Therefore, it can...

In Kalawati (D) Thr.Lrs. vs Rakesh Kumar . on 16 February, 2018, the Supreme Court was concerned with the issue whether the plaintiff (Rakesh Kumar) was at all times ready and willing to perform his part of the agreement. The Supreme Court while referring to His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar said that this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. In I.S. Sikandar (Dead) by Lrs. v. K. Subramani &Ors.2 this Court noted that the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract.

In UCO Bank & Ors. vs Rajendra Shankar Shukla, the Supreme Court, ruled that an employee is entitled to subsistence allowance pending inquiry against him, opining that denial of financial resources would amount to depriving him of an opportunity to defend himself. The Court was hearing an Appeal filed by UCO Bank, which had initiated disciplinary proceedings against its employee, Mr Rajendra Shankar Shukla for dishonor of cheque. The bank had alleged that Mr Shukla had “failed to discharge his duties with utmost integrity and honesty”. Article referred: http://www.livelaw.in/employee-entitled-subsistence-allowance-pending-inquiry-sc-read-judgment/

The full bench of Allahabad High Court, in M/s N.C.M.L. Industries Ltd. through Director and another Vs. Debts Recovery Tribunal, Lucknow and others, has held that taking “symbolic possession” or issuance of possession notice, meeting with any resistance, cannot be treated as “measure”/s taken under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, and, therefore, the borrower at that stage cannot file an application under Section 17(1) before DRT. The original writ petition was filed challenging the order of DRAT, wherein it had allowed bank’s appeal and held that Application under Section 17 of the Act is not maintainable as only “symbolic possession” was taken by the Bank. DRT order restraining the bank from taking physical possession of the secured assets during the pendency of the securitisation application was set aside by DRAT. Article referred: http://www.livelaw.in/no-application-can-filed-taking-s...

In STATE BANK OF TRAVANCORE vs MATHEW K.C., the Supreme Court has been critical of the an interim passed in a writ petition under Article 226 of the Constitution, staying further proceedings at the stage of Section 13(4) of the  SARFAESI Act and the appeal against the same dismissed by the Division Bench observing that counter affidavit having been filed, it would be open for the Appellant Bank to seek clarification/modification/variation of the interim order. The story behind this is all too familiar. The Respondent borrowed money and when he was unable to repay, the lending bank took recourse to SARFAESI to take possession of the secured asset when the Respondent decided to approach the High Court. While rejecting the orders of the High Court and the Divisional Bench, the Supreme Court held :- 1) The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases fall...

The Supreme Court   in DANAMMA @ SUMAN SURPUR & ANR. vs AMAR & ORS.  has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property. The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition. The partition suit was filed by the grandson of the deceased propositus of a joint family in 2002. The Trial Court held that daughters were not entitled to share in property, as they were born before 1956, the year of enactment of Hindu Succession Act. The Trail Court also denied them the benefit of 2005 amendment, which conferred equal coparcenary status to daughters as sons. The High Court upheld the decree of the Trial Court. Article referred: http://www.livelaw.in/daughters-equal-rights-ancestral-property-even-born-enactment-hindu-succession-act-holds-supreme-court-read-judgment/

In MW High Tech Projects India Pvt. Ltd. v. M/s. Grauer & Weil (India) Ltd., decided on 06.12.2017, Division Bench of Andhra High Court., observed that it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party. Thus no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Article referred: http://blog.scconline.com/post/2018/02/01/no-pecuniary-liability-arises-cases-breach-contract-courts-determine-exists-entitlement-damages/

The Bombay High Court in Mrs. Laxmi Mukul Gupta @ Lipi vs The State of Maharashtra, quashed and set aside an order passed by a metropolitan magistrate wherein an intervention application filed by accused was allowed and held that unless process is issued, a person against whom an FIR is sought to be registered cannot intervene through such application under Section 156(3) of the CrPC. The application under Section 156(3) was filed by one Laxmi Mukul Gupta, who sought an FIR to be registered against the respondents for offences punishable under sections 420, 354(b), 355, 382, 387, 467, 468, 450, 452, 506(II), 120 (b) r/w S.34 of the IPC. The respondents filed an application on May 26, 2017, claiming that averments made in the 156(3) application are false and frivolous. The High Court referring to Anju Choudhari Vs. State of Uttar Pradesh held that the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the First...

The Supreme Court, in Latesh @ Dadu Baburao Karlekar v The State of Maharashtra, has reiterated that merely because the names of the accused are not stated and their names are not specified in the FIR, that may not be a ground to doubt the contents of the FIR and the case of the prosecution cannot be thrown out on this count. In this case, the bench of Justice NV Ramana and Justice Amitava Roy was dealing with one of the contention on the part of defence relying on the non-mentioning of names of the accused in FIR. The case relates to a murder incident that happened in the year 2006 and the high court had upheld the conviction of five accused in the case. Article referred: http://www.livelaw.in/non-mentioning-accuseds-name-fir-not-ground-doubt-contents-sc-read-judgment/

In Smt. Payel Sarkar Vs. Sri Bilash Mohan Baidya and others., a point was sought to be urged before the Calcutta High Court that mere existence of alternative remedy cannot deter the High Court to exercise power of superintendence enshrined under Article 227 of the Constitution of India. The Court held that while there is no quarrel to such proposition of law, it is equally true that such rule is not rigid. It is a rule of discretion than of compulsion. If the point agitated in instant revisional application can be conveniently urged before the National Commission, this Court, therefore, feels that it is not a fit case where the court should exercise discretion in entertaining the revisional application.

In a significant judgment the Supreme Court overturned a decision of the Securities Appellate Tribunal and held that there would violation of the Prohibition of Fraudulent and Unfair Trade Practices Regulations when trades on the Stock Market are fraudulent even when the trades do not have any impact on the market. In SECURITIES AND EXCHANGE BOARD OF INDIA vs RAKHI TRADING PRIVATE LTD., SEBI had accused three traders and brokers of sham transactions of buying and selling securities in the derivatives segment at a price which did not reflect the value of the underlying in synchronized and reverse transactions. A manipulative/deceptive devise was used for synchronization of trades and the trades were fraudulent/fictitious in nature. On their appeal to SAT, it held that the synchronization and reversal of trades effected by the parties with a significant price difference, some in a few seconds and majority, in any case, on the same day had no impact on the market and it has not a...

Emphasising on the necessity of ‘introspection’, while denying bail to an accused, the Supreme Court in Dataram Singh Vs State of Uttar Pradesh & Anr., has granted bail to an accused observing that if the investigating officer does not find it necessary to arrest an accused during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. A humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody, the bench observed. The court also said that following factors need to be kept in mind while deciding bail applications: Whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should ...

In M/s Maya Appliances (P) Ltd now known as Preethi Kitchen Appliances Pvt. Ltd. vs Addl. Commissioner of Commercial Taxes & Ors, the appellant, a manufacturer of mixies, grinders etc, used to follow the practise of offering performance-based quarterly discounts to its distributors. The discounts were calculated on the basis of performance of dealers in the previous quarter. Based on performance, discounts were applied retrospectively to the sale prices of previous quarters. The Revenue rejected the claim of the appellant for deduction of discount amount from the taxable turnover. The stand of the Revenue was that that the quarterly discount given by the appellant was in respect of the performance of the previous quarter and not in respect of the sales offered under the same invoices. The Supreme Court referring to Southern Motors v. State of Karnataka (2017) held that the liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissi...

The Supreme Court, in Naveen Kumar v Vijay Kumar, has held that the expression ‘owner’ for the purpose of Motor Vehicles Act is the person in whose name the motor vehicle stands registered. The bench headed by the Chief Justice of India Dipak Misra observed that the registered owner, who has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, would not stand absolved of liability. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority, the bench observed. Article referred: http://www.livelaw.in/motor-accident-claim-transfer-vehicle-not-registered-authority-original-owner-liable-read-judgment/

In SHITAL KRUSHNA DHAKE vs KRUSHNA DAGDU DHAKE, the applicant had complained that the trial court insists upon production of a certified copy of the high court’s orders even if printout of order uploaded on the official website are produced and cited. This is because trial courts are not inclined to believe that such an order is a reliable document. The High Court opined that this apprehension is misplaced since the printout of the orders of this Court from the official website has sanctity and the trial Courts are expected to consider the said orders, if they are cited after taking a print out from the official website. Once the order is uploaded on the official website, it is a reliable document to be considered by the Court before whom it is cited. Article referred: http://www.livelaw.in/orders-hcs-official-website-sanctity-bombay-hc-tells-trial-courts-insisting-certified-copy-orders-read-order/

The Supreme Court has held in KANDLA EXPORT CORPORATION vs M/S. OCI CORPORATION  that appeal provided under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act 2015 cannot be invoked to challenge order allowing execution of foreign award. The division bench comprising Justice R.F Nariman and Justice Navin Sinha held that appeals in respect of arbitration proceedings are exclusively governed by the Arbitration & Conciliation Act 1996, and if no appeal is provided under the Arbitration Act then appeal provision under the Commercial Courts Act cannot be availed in respect of arbitration proceedings merely on the ground that the order was passed by Commercial Division of the High Court. Article referred: http://www.livelaw.in/appeal-execution-foreign-arbitration-award-not-maintainable-commercial-courts-act-holds-sc-read-judgment/

In Yansh Bahadur Sabhajeet Yadav  in the matter between Dudhnath Kallu Yadav vs. Ramashankar Ramadhar Yadav and ors., during the pendency of the suit, one of the defendants (No.14), who was said to be one of the coparceners having right to the ancestral property, died and a third-party applicant, named Yansh Bahadur Sabhajit Yadav who claimed to be the stepson of defendant no.14 took out the present application. It was argued on behalf of the applicant that he deserves to be impleaded as a party in the matter just like the other heirs. The applicant also sought separate share and possession of the 1/9th share that the original defendant (no.14) had in these properties and also a stay on redevelopment of three buildings which are a part of the suit property. The applicant, who appeared in person, relied on the definition of ‘child’ under clause 15B of Section 2 of the Income Tax Act, 1961, which includes ‘stepchild’ as well as adopted child. He also submitted that since the...

In Akshay Jhunjhunwala & Anr. Vs.Union of India through the Ministry of Corporate Affairs & Ors., the petitioner stated before the Calcutta High Court that according to him The Bankruptcy Code of 2016 makes a distinction between a financial creditor and an operational creditor in respect of a corporate debtor which does not have a rational and intelligible basis. The differentiation between the two categories of creditors being unintelligible and irrational, the provisions of Sections 7, 8 and 9 of the Code of 2016 should be struck down. The Court stated that a company has various stakeholders. Creditors of a company are one of the stakeholders. Prior to the concepts of financial and operational creditors being introduced through the Code of 2016, a creditor of a company was classified broadly under three categories, namely, secured creditor, unsecured creditor and statutory creditor. The Code of 2016 segregates creditors of a company into two broad categories of ...