Legal News & Views

In MR. DEEPAK KHOSLA vs UNION OF INDIA, the Delhi High Court held that once an application is being filed under Section 8, the Court would first have to form a view as to whether the disputes which are pending between the parties are within the preview of the Arbitration Act and the matters which are subject matter of proceedings where the application under Section 8 is filed are covered by the arbitration agreement. The judicial authority has to hence first come to a conclusion that the requirements of Section 8 have been fulfilled before referring the parties to arbitration. Till pendency of the application under section 8 of the Arbitration Act for supplemental and incidental proceedings including passing of interlocutory orders, there is no jurisdictional bar to pass orders and directions. There is nothing to show that miscellaneous and incidental proceedings cannot go on before the court. Even a reading of section 5 and section 8 of the Arbitration Act does not show that on a mer...

In M/S. HARYANA SURAJ MALTING LTD. vs PHOOL CHAND, the question placed before a three Judge bench of the Supreme Court was whether the Industrial Tribunal/Labour Court becomes functus officio after 30 days of the pronouncement/publication of the award and loses all powers to recall an ex parte award on an application made by the aggrieved party after 30 days from the date of pronouncement/publication of the award is the question that once again arises for consideration in these cases. “. The Supreme Court relying upon Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others and several other judgments held that there is no finality attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders. Merely because an award has become enforceable, does not necessarily mean that...

In R.N. Kapur v. CPIO, Sarva Haryana Gramin Bank, the appellant requested for the following details under the RTI Act: i. Whether enquiry has been initiated on the said complaint, ii. Copy of order appointing an enquiry officer, iii. Details of the report submitted by the enquiry officer. The CPIO contended that the statements by the customers and villagers consisted of personal information relating to a third party and had hence been accordingly denied under S. 8(1)(j) of the RTI Act. On appeal, the Commission relied on the Supreme Court’s judgment in Girish Ramchandra Deshpande v. CIC,  where the Court held that details recording proceedings of disciplinary enquiries were personal information and outside the ambit of the RTI Act.

In CS Grewal v. M/s Taneja Developers and Infrastructure Ltd., the appellant had applied to the respondent for allotment of a plot of land and had made an advance payment for the same. He communicated to the respondent a change in his address via to letters but no reply was received. He then sent an email which was acknowledged and a proof of the change was demanded. The appellant replied stating that he had provided the proof in the previous letters but there was again no reply from the respondent. The petitioner approached the district consumer forum which directed the respondent to allot said land to the appellant but the respondent challenged the district forum’s pecuniary jurisdiction in the state commission which set aside the order. The said complaint was ordered to be dismissed by the State Commission on the ground that the appellant/complainant C.S. Grewal did not fall under the definition of 'consumer' u/s 2(1)(d) of the Act and hence, the consumer complaint was...

In Velamur Varadan Anand vs Union Bank of India, the NCLAT heard an appeal against the order passed by the National Company Law Tribunal, Mumbai Bench (“NCLT”) regarding time period allotted for completing Corporate Insolvency Resolution Process (“CIRP”) under the Insolvency and Bankruptcy Code, 2016 and certain observations made by the NCLT against the Resolution Professional (“RP”). With regard to the expire of the time limit for the CIRP proceedings, the NCLAT referred to a recent decision of its own in Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd., where the NCLAT held that it is always open to the Adjudicating Authority/Appellate Tribunal to ‘exclude certain period’ for the purpose of counting the total period of 270 days if the facts and circumstances justify exclusion. Among the examples cited by the Ld. Tribunal for exclusion in the said judgment was the period between the date of order of admission/moratorium is passed and the actual date on which the ‘Resol...

In National Insurance Co. Ltd. vs Jitendra Kumar Jain, the Chattishgarh High Court the claimant’s motorcycle was dashed vehemently by the jeep of the respondents which was being driven in a rash and negligent manner. The claimant claimed compensation under Section 166 of the Motor Vehicles Act 1988 subsequent to which the Claims Tribunal fastened liability upon the petitioner Insurance Co. Being aggrieved, the Insurance Company filed the instant petition. The High Court noted that the main contention raised by the Insurance Company was that at the concerned time, the premium was not paid to the Company and the Development Officer who collected the premium amount was not authorized for the same. However, such contention was rejected by the Court. It was held that on a bare perusal of the record, it was evident that at the relevant time, the premium had already been collected by the petitioner by issuing a ‘Deposit Challan’ in its printed form. Therefore the Insurance Compa...

In Devarshi Kirana Store v. Authorised Officer, argument of the petitioner was that earlier, the concerned Bank initiated proceedings against the petitioner under Section 13 of the SARFAESI Act, 2002. The petitioner invoked the jurisdiction of Debts Recovery Tribunal under Section 17 of the Act. However, such notice was withdrawn. Therefore, the petitioner contended that the Bank was estopped to issue fresh notice to the petitioner. The Madhya Pradesh High Court did not find any merit in the contention of the petitioner and held that the withdrawal of notice under Section 13(4) did not discharge the petitioner’s debt. The Bank was a secured creditor and a mortgagee and therefore, by withdrawal of earlier notice, the debt did not stand discharged. The Bank continued to be a creditor and petitioner a debtor. Thus, the possession notice could have been issued under the provisions of the Act. Further, the petitioner had an alternate efficacious remedy under Section 17 before the DRT....

In CIT v. Shyam Steel Industries Ltd., a Division Bench of Calcutta High Court held that the subsidy allowed by the State Government on account of power consumption to new or expanding industrial units was a capital receipt. The subsidy as referred to above was granted to business units and the question was whether such subsidy is to be regarded as capital receipt or revenue receipt. The instant appeal was filed at the instance of Income Tax Department. There was a difference of opinion between judicial member and accountant member of the Appellate Authority. In order to decide the question, the High Court referred to a few Supreme Court decisions and held that the purpose of grant of subsidy would be the overwhelming consideration in ascertaining whether the subsidy is to be treated as capital receipt or revenue receipt. A wider interpretation was given to the purpose test and it was held that since the subsidy was provided in lieu of certain other subsidies on account of...

In Vishnuprasad v. Vishnupriya, the Single Judge Bench comprising of M.V. Muralidaran J., held that “If the husband is healthy, able bodied and in a position to support himself, he is under the obligation to support his wife under Section 125 CrPC, for wife’s right to receive maintenance under the Section, unless disqualified, is an absolute right.” The petition for divorce was first filed by the husband/petitioner subsequently followed by a petition by the wife seeking restitution of conjugal rights and while these petitions were still pending, the wife of the petitioner filed another petition seeking interim maintenance for which the petitioner was asked to pay Rs. 16,000/- per month to the respondent/wife. Article referred: http://blog.scconline.com/post/2018/05/24/wife-has-an-absolute-right-to-maintenance-under-section-125-crpc-unless-disqualified/

In RAJAT GUPTA vs RUPALI GUPTA, the Delhi High Court asserted that Courts cannot compel a party to give their consent for divorce by mutual consent despite them having entered into a settlement agreement under Section 13B of the Hindu Marriage Act. Article referred: http://www.livelaw.in/despite-settlement-agreement-courts-cannot-compel-party-to-consent-to-mutual-divorce-delhi-hc-read-judgment/

In Renu Jangu Vs. State Of Rajasthan, the petitioners by way of this writ petition claimed subsidy as declared by the State Government vide their circular dated 03.07.2012 through Agricultural department under a scheme to the farmers who have established food processing units on their own agricultural lands. The Doctrine of Promissory Estoppel is enshrined in Section 115 of the Indian Evidence Act which states - When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at th...

In Sri Srikrishna Kanta Singh Vs. Sri Parameswar Achutanan Nair, the Calcutta High Court has held that proceedings before the Motor Accident Cases Tribunal are inquisitorial in nature. The court said that strict rules of adversarial action, with which the Learned Members of such a Tribunal are very familiar, due to the qualifications prescribed in Section 165(3) of the Act of 1988, would not apply to such a Tribunal and it has been empowered to act inquisitorially unless expressly forbidden. Once it is accepted that the scheme of the statute and the rules, for the purposes of determining compensation, fixation of liability, and determining who is to pay what to whom, envisages an inquisitorial procedure, the requirements of adversarial proceedings take a back-seat, in the interests of the quest for truth. Article referred: http://www.livelaw.in/proceedings-before-motor-accident-cases-tribunal-are-inquisitorial-in-nature-calcutta-hc-read-judgment/

In Ushaben Jayantilal Sodhan Vs. Income Tax Officer, the Gujarat High Court held that the benefit under Section 54F of the Income Tax Act, 1961 could not be availed by an assessee, if construction work precedes the transfer of immovable property.  The assessee on her land constructed 8 flats, out of which 4 were retained for her use and the other 4 were sold.  The assessee considered the proportionate land apportioned to the 04 flat purchasers as the sale of land belonging to her and disclosed long-term capital gain of Rs.58.87 Lacs in the process. The Assessing Officer (A.O.), during the scrutiny assessment of the Return filed by the assessee, raised an objection to the assessee’s claim of deduction from the capital gains received by her on the ground that no construction was carried out after 23.10.2008, which is the date on which the Building Use Permission was granted. Article referred: http://www.taxscan.in/construction-work-transfer-immovable-property-gujarat-hc/2...

In Sheila Sebastian Vs. R. Jawaharaj,  the Supreme Court, observing that making of a false document is different than causing it to be made, has held that a charge of forgery cannot be imposed on a person who is not the maker of the same. It is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery, the bench said. The complainant, in this case, had alleged that accused no. 1, with the aid of an imposter who by impersonating as Mrs. Doris Victor, created a power of attorney document in his name as if he was her agent. Though the trial court and first appellate court convicted the accused, the high court acquitted them holding that to get attracted the offence of forgery, “making of a false document” is essential. Assailing this high court judgment before the apex court, it was contended that anyone who makes a false document is guilty of forgery and in this case the acc...

The Supreme Court,  in Union of India vs. Rina Devi), observed that death or injury in the course of boarding or de-boarding a train will be an ‘untoward incident’ entitling a victim to the compensation and the same cannot be denied on the plea of contributory negligence of the victim. The court was considering an appeal filed by Union of India against the award of compensation of Rs.4 lakhs under Section 124A of the Railways Act, 1989, to a widow of a man who fell down from the train due to rush of passengers and died on the spot. According to the High Court, as per Section 124A, no compensation is payable if a passenger dies or suffers injury due self-inflicted injury among others. The concept of ‘self-inflicted injury’ would require an intention to inflict such injury and not mere negligence of any particular degree, the bench held. A bench of Justice AK Goel and Justice RF Nariman resolved the conflicting views in the matter of quantum of compensation, def...

The Supreme Court in MANOJ SURESH JADHAV vs THE STATE OF MAHARASHTRA has held that that it is not permissible to simply re-arrest the accused, by adding another offence, ignoring the bail order in force at that time. Earlier, FIR was registered against the accused of the offences punishable under Sections 509 r/w 34 of the Indian Penal Code and under Sections 12 and 17 of the Prevention of Children from Sexual Offences Act. The Sessions Court, observing that bail in the bailable offence is right of the accused, granted bail to the accused. Later, the police added Section 376 IPC and re-arrested the accused. The Bombay High Court, as the accused approached it challenging re-arrest, observed: “Having regard to the fact that offence under Section 376 of the IPC has been added for which the maximum punishment is ten years. In our view, the re-arrest of the Petitioners cannot be taken exception to.” The Supreme Court bench, setting aside the high court order, observed: “It ...

In Liberty Garden Co-op. Housing Soc. Ltd. vs K.T.Group, the Bombay High Court recently rapped police officials for terming as civil disputes allegations of cheating against developers and thereby, turning away complainants. Justice S.J. Kathawalla observed, “I have in the past repeatedly recorded in my orders that the complaints filed by the members of the public alleging that they have been cheated by the developer cannot be termed as disputes of a civil nature, yet the police officials in- charge of the police stations are not ready to assist the common man when they seek police assistance and instead show them the door by terming their complaints as being civil disputes.” The Judge further lamented the conduct of officials once the misconception is pointed out to them, noting, “Despite the above observations in my orders, I find that there is no improvement in the approach/conduct of the Senior Police Officers. When the concerned officer/s are directed to remain presen...

The Supreme Court, in Bhaskarrao vs. State of Maharashtra, while acquitting 14 persons accused in a murder case, observed that influence of bias in the testimonies of witnesses having a strong interest in the result of a case, should never be overlooked. The Bench of Justice NV Ramana and Justice S Abdul Nazeer made this observation while allowing appeal by 14 persons convicted by the high court that had reversed the trial court order acquitting them. The accused in this case had already undergone about three years of imprisonment before they were enlarged on bail.

A Supreme Court Bench of Justice AK Goel and RF Nariman in ASIAN RESURFACING OF ROAD AGENCY P. LTD. vs CENTRAL BUREAU OF INVESTIGATION has directed that if the trial court record is summoned by a higher Courts, the trial courts may send photocopy/scanned copy of the record and retain the original so that the proceedings are not held up. The Bench also held that wherever the original record has been summoned by an appellate/revisional court, photocopy/scanned copy of the same may be kept for its reference and original returned to the trial courts forthwith.

In B.C. SINGH vs J.M. UTARID, the issue before the Supreme Court was whether a foreign national can inherit property in India. BC Singh and his wife SL Singh were Christians. After his wife expired, BC Singh (Plaintiff) filed a suit against one JM Utarid (defendant) for possession of the property and for damages on the ground that they were the licensees in respect of the suit property and that their license had been terminated. The suit got dismissed and later the high court upheld the dismissal. Before the apex court assailing the high court order, plaintiff contended that he was the sole owner of the property. It was also contended that the first defendant was a distant kindred as compared to Ida Utarid, real sister of Dr SL Singh, and though Ida Utarid was a foreign national, there was no bar for her to succeed to her share in the property of her deceased sister Dr SL Singh. The counsel appearing for the defendant contended that Ida Utarid is not entitled to succeed to...

In The Commissioner vs Mahindra and Mahindra Ltd., the Respondent had entered into a contract with an American Company for equipment and for this the Seller had extended loan. Subsequently, the Seller was taken over by another company which waived the loan. The bone of contention was that according to the Income Tax Officer (ITO) concluded that with the waiver of the loan amount, the credit represented income and not a liability which was disputed by the Respondent. The Supreme Court decided the issue is to be decided under Section 28(iv) & 41(1) of the Income Tax Act. For Section 28(iv) to be attracted, the benefit should come in form other than cash whereas in this case the Respondent has received money in form of waiver of loan. For Section 41(1) to be attracted, there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any prev...

In AMEET LALCHAND SHAH vs RISHABH ENTERPRISES, the Supreme Court while deciding the appeal moved by Ameet Lalchand Shah and Rishab Enterprises revolving around commissioning of a photovoltaic solar plant in Uttar Pradesh held that only in cases where serious questions of fraud are involved, can the arbitration be refused, the Supreme Court on Thursday held while observing that where several parties are involved in a single commercial project executed through several agreements/contracts, all parties can be covered by the arbitration clause in the main agreement even as the other subsequent contracts do not have arbitration clause. Observing that “It is the duty of the Court to impart the commercial understanding with a “sense of business efficacy”, a bench of Justice Ranjan Gogoi and Justice R Banumathi held that where there is a principal agreement towards a single commercial project executed through several contracts between different parties, the other contracts are an integral...

In Rajeev Hitendra Pathak & Ors vs Achyut Kashinath Karekar,  the main question which arises for consideration before The Supreme Court was whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders? Before the Supreme Court two judgments were placed which held opposite view. While in the case of Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust (1999), the Court held that the State Commission did not have the power to review or recall its ex parte order, in New India Assurance Co. Ltd. v. R. Srinivasan (2000), this Court took the contrary view and held that the State Commission could review or recall its ex parte order. The court held that - "In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is unt...

The Bombay High Court in A.R. Satish vs State Of Maharastra has held that the act of recovering dues does not constitute an act of abetment. Justice PD Naik set aside an order of Sessions Court, Raigad, rejecting the application for discharge filed by the accused and allowed an application for discharge filed by accused AR Satish, a bank employee in a case registered under Section 306 read with Section 511 of  the Indian Penal Code. The court said- “First of all, the material on record taken as it is, does not in any manner fulfill the requirement of abetment to the victim to commit the alleged act. Accused was acting at the instance of the bank for recovery of the dues of the bank. Admittedly, the victim had utilized the credit card of the Citi Bank. The bank was, thus, trying to recover an amount of Rs.1,30,000/-. Demanding the money from the complainant and assuming that he was threatened of dire consequences is in no manner can constitute an act of abetment. The Sess...

The Supreme Court in Sucha Singh Sodhi v Baldev Raj Walia, has held that a plaintiff could not claim the relief of specific performance of agreement along with the relief of a permanent injunction in a suit. In this case, first suit seeking an injunction against the defendant was withdrawn with leave of the court. Later, when a suit for specific performance was filed, the defendant objected to it, invoking Order 2 Rule 2, which states that the relief of specific performance ought to have claimed along with the relief of injunction in the earlier suit, which was withdrawn. The Trial Court and the High Court found favour with the defendant on this contention. On appeal filed by the plaintiff, a bench of Justice RK Agrawal and Justice AM Sapre, found that such a relief of specific performance could not have claimed along with the suit for injunction, for the following reasons: * The cause of action to claim a relief of permanent injunction and the cause of action to claim a r...

Reiterating that an order of detention cannot be quashed merely on the basis that no period of detention was provided in the order, the Supreme Court set aside a Madras High Court order that had followed an earlier two-judge bench decision of the apex court which stands overruled by another three-judge bench. The Madras High Court, relying on apex court decision in Commissioner of Police and another v. Gurbux Anandram Bhiryani, and another judgment of the high court had quashed an order of detention since it admittedly does not contain the period of detention.