Legal News & Views

In CIVIL APPEAL NO. 1638 OF 2019, M/S SCG CONTRACTS INDIA PVT. LTD. vs K.S. CHAMANKAR INFRASTRUCTURE PVT. LTD. & ORS., a Special Leave Petitions was filed before the Supreme Court against Delhi High Court orders allowing a written statement filed by the defendants even though 120 days had elapsed from the date of service of summons of this Suit. The Supreme Court has observed that proviso added to the Code of Civil Procedure by Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, is mandatory and no written statement can be taken on record in commercial suits, if it is not filed within 120 days from the date of service of summons of the Suit.

In Bharat Heavy Electricals Ltd. vs. Mahendra Prasad Jakhmola ,  the Supreme Court was considering correctness of a labour court decision, which had, based only on a concession made before it by the advocate of the appellant on a mixed question of fact and law at the stage of arguments. The bench referring to 2002 judgment in Swami Krishnanand Govindananad v. Managing Director, Oswal Hosiery, observed that even a concession on facts disputed by a respondent in its written statement cannot bind the respondent. The court further referred to C.M. Arumugam v. S. Rajgopal, which had observed thus: "That question is a mixed question of law and fact and we do not think that a concession made by the first respondent on such a question at the stage of argument before the High Court, can preclude him from reagitating it in the appeal before this Court, when it formed the subject-matter of an issue before the High Court and full and complete evidence in regard to such issue was led by ...

In M/s Annapurna Infrastructure Pvt. Ltd. & Anr. v. M/s. SORIL Infra Resources Ltd., Disputes arose between Annapurna Infrastructure Pvt. Ltd. (Annapurna) and SORIL Infra Resources Ltd. (SORIL) relating to non-payment of rent by SORIL (the lessee) to Annapurna and others (the lessors).  Arbitration clause in the lease deed between the parties was invoked and an arbitral award was passed in favour of Annapurna and others. The arbitral award was challenged by SORIL in an application under Section 34 of the A&C Act, which was dismissed by the Hon’ble High Court of Delhi. Soon thereafter, the award holders, which included Annapurna, issued Demand Notices on SORIL under Section 8 (1) of IBC as operational creditors of SORIL, demanding the amounts stated in the arbitral award.  A reply was issued by SORIL under Section 8 (2) of IBC, stating that there is an “existence of dispute” between the parties, principally on the ground that an appeal under Section 37 of the A...

In CIVIL APPEAL NO.2024 of 2019, VINOD JAIN vs SANTOKBA DURLABHJI MEMORIAL HOSPITAL & ANR., before the Supreme Court in appeal the complaint, had alleged that the following acts and omissions on part of the hospital constituted medical negligence: (a) inappropriate and ineffective medication; (b) failure to restart the cannula for IV medication; (c) premature discharge of the deceased despite her condition warranting treatment in the ICU; (d) oral administration of Polypod antibiotic, despite her critical condition, which actually required intravenous administration of the medicine. Though the state commission allowed his complaint and ordered a compensation of Rs.15 lakh, the national commission had set it aside. The Apex Court bench, while considering his appeal, discussed the legal principles which would apply in cases of medical negligence (Bolam Test, Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Jacob Mathew v. State of Punjab). The Supr...

In RATHEESH M.N vs THE DEBT RECOVERY TRIBUNAL, the High Court of Kerala has set aside an auction sale held for recovery of arrears due to a bank on the ground that it was done beyond the period of three years from the end of financial year in which recovery certificate was issued by the Debts Recovery Tribunal(DRT) on the basis of Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act,1993 (RDDBFI) read with Rule 68B of Second Schedule of the Income Tax Act,1961. The Court noted that as per Section 29 of the RDDBFI Act, provisions of second and third schedule of the Income Tax Act should apply to procedure for recovery of debts as far as possible. Sale of immovable property in respect of income tax arrears is carried out as per Rule 68B of Second Schedule of Income Tax Act, as per which sale has to be carried out within 3 years from the end of financial year in which the order giving rise to dues under the Income Tax Act has become final or conclusive. In ...

In Mahendran vs. State of Tamil Nadu, the Supreme Court again dealt with the contention put  forth on behalf of the accused-appellant that, if the testimony of the witness is found to be unreliable in respect of part of the statement, then the other part of the statement cannot be made basis to convict the accused. The court relying on a 2002 judgment in Gangadhar Behera vs. State of Orissa said that the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded. Article referred:https://www.livelaw.in/know-the-law/falsus-in-uno-falsus-in-omnibus-not-applicable-in-india-143083

In CIVIL APPEAL NO.1052 OF 2019,  SHIVNARAYAN vs MANIKLAL, the Supreme Court issued several clarifications with regard to ambit and scope of Section 17 of C.P.C. :- (i) The word ‘property’ occurring in Section 17 although has been used in ‘singular’ but by virtue of Section 13 of the General Clauses Act it may also be read as ‘plural’, i.e., ”properties”. (ii) The expression any portion of the property can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts. (iii) A suit in respect to immovable property or  properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated. (iv) A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court w...

In CIVIL APPEAL NO. 1509 OF 2019, BALKRISHNA DATTATRAYA GALANDE vs BALKRISHNA RAMBHAROSE GUPTA, the trial court had dismissed the suit filed by a tenant seeking permanent injunction against the landlord, on the ground that the tenant-plaintiff did not produce any relevant documents showing that he has been carrying on the business from the suit premises. The first appellate court reversed these findings and the High court affirmed the same. The Apex court bench, on the appeal filed by the defendants, agreed with trial court view that plaintiff has failed to prove that he was in actual possession of the property on the date of the suit. The court said that, under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit. The court further said that having not paid rent for more than...

In O.M.P. (COMM) 31/2017 & I.A. 13479/2018, M/S CINEVISTAAS LTD. vs M/S PRASAR BHARTI, the Delhi High Court has held that claims which are raised at the time of invoking arbitration but are not part of Statement of Claim, are not time-barred by limitation. The Petitioner had undertaken production of a game show titled ‘Knock Out’. After negotiations, the Respondent approved telecast of 52 episodes of the programme and the final telecast date was decided as January 28, 2001. Subsequently, television promos were aired and advertisements were also published. However, on December 27, 2000, the Respondent informed the Petitioner that the show would not be aired. The Petitioner then sought appointment of an independent Arbitrator by filing a Section 11 petition to resolve the dispute and in May, 2004, an Arbitrator was appointed. While the arbitral proceedings were pending, the Petitioner realised that there were substantial errors in the quantification and details of two cl...

In CRIMINAL APPEAL NOS.230-231 OF 2019 before the Supreme Court, Bir Singh vs Mukesh Kumar, a friendly loan was given to the respondent-accused by the appellant-complainant who is also an income-tax practitioner and the respondent-accused is his client. When the cheque issued by respondent-accused for repayment of the loan was returned by the bank due to insufficiency of funds for the second time even after assurances received from the respondent-accused, the appellant-complainant filed the criminal complaint. The Trial court convicted the respondent-accused and the Appellant Court upheld the trial court order. The respondent-accused filed a Criminal Revision Petition before the High Court which reversed the concurrent factual findings of the Trial Court and the Appellate court and acquitted the respondent of the charge under Section 138 of the Negotiable Instruments Act, observing, inter alia, that there was fiduciary relationship between the appellant-complainant,...

In the matter of SREI Infrastructure Finance Limited vs Sterling SEZ and Infrastructure Limited, M.A 1280/2018 in C.P. 405/ 2018, before the NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH, the Tribunal admitted a Section 7 petition against the Corporate Debtor on 16.07.2018 and appointed the Applicant herein as the Interim Resolution Professional who was subsequently confirmed as Resolution Professional. The office of the Enforcement Directorate provisionally attached the assets belonging to the Corporate Debtor vide order/notice dated 29.05.2018 and corrigendum dated 14.06.2018 as part of certain proceedings initiated by the office of the Enforcement Directorate against the Corporate Debtor. On 05.09.2018, the Applicant intimated the Directorate of Enforcement about the initiation of CIRP and imposition of moratorium as mentioned in this Tribunal’s order. The Applicant also requested the Directorate of Enforcement to withdraw the attachment, if any, on the properties and assets ...

In CIVIL APPEAL NO. 92 OF 2019 before the Supreme Court, PUNJAB WAKF BOARD vs SHAM SINGH HARIKE, the original suit was filed by Punjab Wakf Board in civil court seeking injunction restraining the defendants. The defendants filed written statement challenging the maintainability of the suit and denying the title of the plaintiff. After the suit was transferred to the Wakf Tribunal, the defendants filed an application before the Tribunal for rejection of the plaint on the ground that the Tribunal had no jurisdiction to entertain the suit and the Civil Court alone had jurisdiction to entertain the suit. This application was dismissed by the Tribunal. The High Court, allowed the revision petition against this order, and held that since the 'tenant' was a non-muslim, the Wakf Tribunal had no jurisdiction in the matter and it was only the Civil Court which had the jurisdiction. Allowing the appeal, the Supreme Court observed that the view of the High Court that right, title and ...

In CIVIL APPEAL NO(S). 1539 OF 2019   before the Supreme Court , JAIPRAKASH ASSOCIATES LTD. vs TEHRI HYDRO DEVELOPMENT CORPORATION INDIA LTD., the appellant, a contractor, went for arbitration as per agreement against the Defendant and despite the express prohibition on interest to be paid to the contractor on the money due to him, the majority of the arbitration tribunal awarded interest, relying on SC judgment in Board of Trustees for the Port of Calcutta v. Engineers-De-SpaceAge, which had held that arbitrator's power to award interest as per general principles of law was not stifled by terms of agreement. The Delhi High Court set aside the award to the extent it awarded interest. This led the contractor approaching the SC. The Supreme Court agreeing with the HC held that the 1996 Arbitration Act had altered the position contained in the 1940 Act.Under the new Act, an arbitrator could not award pendente lite interest when there was an express bar against award of such an i...

In CIVIL APPEAL NO.10673 OF 2018, K. Sashidhar vs. Indian Overseas Bank, appeal was filed before the Supreme Court against the decision of the NCLAT affirming the order of the NCLT wherein the Ld. NCLT had rejected the resolution plan approved by the COC. The ground for rejection was that the requirement of approval of resolution plan by vote of not less than 75% (as it was before the amendment of 2018) of voting share of financial creditors is mandatory and the said minimum number was not met in this case. The appeal was filed on the ground that while the act mandated a minimum of 75% of the voting share, the same has been reduced to 66% by the amendment of 2018 during the pendency of the appeal and further, the percentage of votes for approval (55.73%) of the resolution proposal and the voting share rejecting the proposal was only 15.15%. Taking these votes only, the proportionate percentage of the voting share for approval will obviously be more than 75% (i.e. approxim...