Legal News & Views

In KO Anto vs. State of Kerala, the Kerala High Court considered a petition filed under Article 227 of the Constitution of India challenging Ernakulam ACJM's order under Section 14 of SARFAESI Act and appointment of an Advocate Commissioner to take delivery of the secured assets. The High Court observed that there is a division bench judgment Muhammed Ashraf and Another v. Union of India and Others, 2008 (3) KHC 935, which has held that the powers of the Chief Judicial Magistrates in non metropolitan areas and the Chief Metropolitan Magistrate in metropolitan area are one and the same. Further, it was noted that in Shiyas v. Union of India [2019 (1) KLT 967] and Pouly @ Thressia and Another v. Union of India and Others [2019 (1) KHC 75], the High Court has repelled a similar challenge passed against order passed by ACJM. The court further observed that orders passed by ACJM do not suffer from any perversity or jurisdictional error warranting interference in exercise of it...

In C.M.A(MD).No.798 of 2009, G.Suresh vs Chellapandi & Dharmaraj Augustin,  it was contended before the MADURAI BENCH OF MADRAS HIGH COURT, that the driver of the vehicle was acquitted in the criminal case, and it clearly proved that he was not responsible for the accident and vehicle had not involved in the accident. Rejecting the appeal and referring to judgment of the Division Bench of the Madras High Court in C.M.A.No.1369 of 2017 (TNSTC Vs. P.Shanthi and others), the court observed that Mere acquittal in a criminal case does not lead to an automatic inference that there was no negligence on the part of driver of the bus. The standard of proof required is entirely different from the Criminal Court. In Motor Accident Claims Cases, preponderance of probability is the test to arrive at the conclusion regarding negligence. Further referring to judgments of the Karnataka High Court in Vinobabai and others versus K.S.R.T.C. and another, Oriental Insurance Co. ...

IN THE OF KARNATAKA HIGH COURT, Criminal Petition Nos. 5404 of 2017, 4509, 4510, 4511/2018 and 8672/2017, Decided On: 06.06.2019, Kiran Vittal Poojary vs Prismatic Engineering Private Limited, in the course of transaction, towards part payment of the dues, an invoice was issued along with a cheque dated 24.05.2016 for an amount of Rs. 1,97,174/- to the respondent company. The cheque was dishonored with the endorsement that 'the payment was stopped by the Drawer'. The respondent thereupon sent a legal notice dated 28.06.2016 and thereafter the complaint was filed. The Magistrate by an order dated 18.11.2016, has taken cognizance of the offence and directed issuance of summons to the petitioner who was a nominee director of the offending company. In the aforesaid factual background, the petitioner has approached the High Court. The petitioner submitted that he is a employee of SIDBI Venture Capital Limited, which appointed the petitioner as a nominee Director of the Avni Ene...

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH), Writ Petition No. 4571/2016, Ramchandra vs Kiran, original dispute relating to an immovable property was referred to an arbitrator and the Arbitrator included various properties in which the parties had interest and passed his award on 02.12.2009. On the plaintiff trying to execute the award, the respondent raised objection that the award needs to be registered as the subject matter of the award related to immovable properties worth more than Rs. 100/-. This application was opposed by the petitioner and by the impugned order dated 27.10.2015, the learned Judge of the Executing Court dismissed the execution proceedings on the ground that the award was not registered. On appeal, the High Court decided that as per the provisions of Section 17(1)(b) of the said Act, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100/- is comp...

In CENTRAL EXCISE APPEAL No. 46 OF 2019, M/s. Dilip Chhabria Design Pvt. Ltd. vs. The Commissioner of Central Excise Pune­-I, the appellant is engaged in providing taxable services such as Interior Decorator Services, Design Services, servicing of Motor Vehicle and Management Consultancy Services. It was found that the appellant had not  paid service tax from December 2011 onwards. Thus, the Show Cause Notice dated 25th February 2014 was issued demanding service tax along with interest and also imposing penalty. In its reply to the above notice, the appellant pointed out that they are not contesting the demand of service tax which has now been paid. However, non­payment of service tax was only because of its financial difficulty. It was further pointed out that in fact  there was no suppression as in its ST­3 Returns, they had always declared the quantum of the service tax payable, but not paid. However, the submissions did not find favour with thecCommissioner of Servic...

In Crl.MC.No. 2255 of 2013, DAMODARA PANICKER vs SUMANGALADEVI, the question before the Kerala High Court was, can immovable property be the subject matter of commission of an offence of criminal breach of trust which is defined under Section 405 of the IPC? The Court observed that one of the offences alleged against the petitioners is criminal breach of trust which is defined under Section 405 I.P.C. The punishment for that offence is provided under Section 406 I.P.C. In the present case, immovable property is the subject matter of the aforesaid offence alleged. The question arises whether immovable property can be the subject matter of an offence of criminal breach of trust which is defined under Section 405 I.P.C. and Section 405 I.P.C speaks of entrustment of property or dominion over property. The operation of this provision is not restricted to 'movable property'. If the legislature had intended to restrict the operation of Section 405 I.P.C to movable pro...

In WRIT PETITION NO. 2820 OF 2019, Mrs. Padmini Nandakumar Nair vs the Honourable High Court, Bombay, the Division benchcrefused relief to a retired judicial officer in the rank of District Judge who filed a petition challenging the continuation of disciplinary proceedings against her, post- acceptance of her request for voluntary retirement. The Bombay High Court held that retirement of an employee does not completely preclude the appointing authority from initiating action for dealing with the misconduct of the employee during currency of the service. The legal position as regards the institution / continuation of disciplinary proceedings after the retirement of an employee, seems to have been crystallised to the effect that the employer can institute/continue the disciplinary proceedings against an employee who has retired, provided the rules which govern the services of the employee permit such a course of action. Article referred: https://www.livelaw.in/news-updates/r...

In CIVIL APPEAL NO.3359 OF 2019, Oriental Insurance Company Limited vs Mahendra Construction, the claim filed by the insured against the damage of the insured machine was repudiated by the insurer on the ground that the details of claims lodged during the preceding three years were required to be disclosed but were not furnished by the insured. The SCDRC accepted the contention of the insured based on the fact that previous insurance policy of the insured was attached with the current application which satisfies the need of having informed the insurer of previous policies and claims. In appeal, the NCDRC held that since the previous insurance policy was annexed to the proposal, the appellant could have known of the claims lodged with the previous insurer on making an enquiry. Alternatively, it was held that if there was a non- disclosure of information under paragraph 25(g), the appellant could have returned the proposal. The NCDRC held that the insurer could have discovered...

In MACA.No. 2017 of 2013, SMT.PRASANNA.B vs KABEER.P.K. & ICICI LOMBARD MOTOR INSURANCE CO. LTD., the claimant sustained injuries in a motor accident took place on 12.08.2008. The insurer of the vehicle contested the claim petition contending that they are not liable to indemnify the owner, as the cover note issued by them for the vehicle on 16.05.2008 was cancelled on 23.05.2008, when the cheque issued by the owner towards the premium of the policy was dishonoured. The Tribunal accepted the case of the insurer and exonerated them from the liability holding that the vehicle was not covered by a policy at the time of accident. It is the said decision of the Tribunal that is under challenge in this appeal preferred before the Kerala High Court by the claimant. First rejecting the objection to maintainability of the appeal, the High Court observed that Sub section (1) of Section 173 of the Motor Vehicle Act contains the expression the expression 'any person agg...

In SA 596 of 2008, Dinabandhu Mondal vs Laxmi Rani Mondal, the authenticity of a deed of gift was questioned before the Calcutta High Court on the ground that it was registered after the death of the donor. The Calcutta High Court observed that in an old ruling of the court in Bhabotosh vs. Soleiman reported in 33 Cal 584, a man executed a deed of gift in favour of his wife and died, and the deed was subsequently registered at the instance of the widow-donee. Validity of the deed of gift was challenged on the ground that it was registered subsequent to the death of the donor, which was rejected by the High Court. Based on the said earlier judgment, the court held that a deed of gift cannot be said to be invalid only because it was registered after the death of donor.

In Crl. M. C. No. 3799, 3801, 3804, 3827, 3832, 3843, 3844, 3847, 3852 of 2018, in the appeal before the Kerala High Court, the petitioners, who were the trustees of a trust along with the trust, were arraigned as the accused persons in a complaint filed by a person before the Magistrate Court for offence under Section 138 of the NI Act. The petitioners approached the High Court seeking to quash the complaint filed against them. The primary question before the High Court was whether a trust and its trustees fall within the definition of 'company' under the explanation to section 141. As per the definition of 'company' under explanation to section 141, "company" means any body corporate and includes a firm or other association of individuals. Therefore, in order to answer whether section 141 can be invoked in case of a trust and its trustees, it became necessary for the Court to find out whether a trust means a 'body corporate', 'a firm...

In CIVIL APPEAL NO.9166 OF 2013, MARWARI BALIKA VIDYALAYA vs ASHA SRIVASTAVA , the main question for consideration in the appeal before the Supreme Court was the maintainability of writ petition as against private school receiving grant in aid to the extent of dearness allowance. The appeal has been filed against the judgment and order dated 30.1.2009 passed by the Division Bench of the High Court of Calcutta whereby the appeal filed by respondent No.1 was allowed directing his reinstatement along with back wages. She was dismissed on grounds of 'indiscipline' after she had filed a writ petition in High Court seeking expeditious action on the approval of her appointment. The prime contention raised by the school was that powers under Article 226 of the Constitution of India could not have been invoked against a private entity. While dismissing the appeal, the bench referred to the SC decision in Raj Kumar vs Director of Education and in Ramesh Ahluwalia vs State of...

In CIVIL APPEAL NOS. 1799-1800 OF 2019, BHARAT HEAVY ELECTRICALS LTD. vs MAHENDRA PRASAD JAKHMOLA, the Supreme Court was dealing with an appeal filed by Bharat Heavy Electronics Ltd, which contended that the workers were not its direct employees but were contract labourers, and hence were not "employees" within the meaning of the UP Industrial Disputes Act. To decide the appeal, the bench referred to the test laid down by SC in General Manager, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lala and Another (2011) 1 SCC 635, which is as follows : Two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are: (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. The expression "control and supervision" in the context of contract labour was explained by this C...

In the High court of Delhi, W.P.(C) 6237/2019, DELHI OPHTHALMOLOGICAL SOCIETY vs UNION OF INDIA, application was filed by the association of ophthalmologists in Delhi High court who alleged General Insurance Public Sector Association (GIPSA) of acting like a CARTEL and failing to observe transparency in the empanelment process. Till now the GIPSA, group of public sector insurance companies formed in 2011 was only honouring cashless claims with empanelled hospitals. By the original interim order,  Putting an end to a system where the companies and TPAs insisted that a hospital had to be registered with them, the court in its interim order ruled that insurance companies will give empanelment to all healthcare providers duly registered with respective state authorities for cashless facility. the order, an interim ruling, was passed on May 31. Though the said order was limited to patients seeking eye treatment, the court found fault with the very basis of GIPSA’s gu...