Legal News & Views

In R/SPECIAL CIVIL APPLICATION NO. 8096 of 2019, CHOKSHI TEXLEN PVT. LTD vs STATE OF GUJARAT, the petitioner had purchased a property by way of a registered sale deed and also obtained a title clearance certificate, which revealed that there was no encumbrance on the subject property. Thereafter, the petitioners came to know that by an order dated 9.9.2011, the respondent authorities had created a charge and attached the subject property for alleged dues of the erstwhile owner of the property. Prior to the purchase of the property by the petitioners, no charge had been registered by the respondents in respect of the subject property and, the attachment came to be made subsequent to the purchase of the subject property. The petitioner argued before the Court that since the property had already been purchased by the petitioners, no charge could be entered on the property for alleged dues of the erstwhile owners. The petitioner further pointed that the dues of the erstwhile owner...

In P. Gopalkrishnan v. State of Kerala, CRIMINAL APPEAL NO.1794 OF 2019, the question before the Supreme Court was whether the contents of a memory card/pen­drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (for short, ‘the 1872 Act’) and Section 29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)? The Supreme Court observed that indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. Referring to decision of the King’s Bench of United Kingdom in The King v. Daye and Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another, It can be safely deduced from the aforementione...

In MAC.APP. 26/2019, DINCY DEVASSY vs UNITED INDIA INSURANCE CO., a disproportionately lower compensation was paid by the insurer to the widow on death of her husband on the ground that the lady had remarried.  The Delhi High Court rejected the ground for reduced compensation observing that re-marriage of a widow has nothing to do with her right to and claim for compensation, for the loss which accrued to her on account of unnatural demise of her husband. The calculation of loss of dependency was on the basis of her dependency on her deceased husband; her loss is equal to the loss of dependency suffered by her parents-in-law. Her decision to re-marry was entirely her personal choice, over which nobody can have any say. Her right to claim compensation crystallized upon her husband‟s life being tragically snatched away in the motor accident. Therefore, simply because she has now re-married, her claim does not abate or lessen. Who can judge whether the second marriage was not a c...

In CIVIL APPEAL NO. 2059 OF 2015, Saurashtra Chemicals Ltd. (Presently known as Saurashtra Chemicals Division of Nirma Ltd.) vs National Insurance Co. Ltd, the appellant purchased a standard fire and special perils policy from the respondent National Insurance Company Ltd. thereby insuring the risk of loss/damage to the stock of coal and lignite stored in its factory compound. An additional premium of Rs. 59,200/- was paid by the appellant company so as to cover the risk of loss of the aforesaid stock on account of spontaneous combustion. The appellant was declared a Sick Unit and was accordingly registered under SICA. The factory remained closed from 17.02.2006 to 09.08.2006 and was re-opened on 10.08.2006. After re-opening it was noticed between the period from 11.8.2006 to 20.8.2006 that some amount of stock of coal and lignite has been diminished/destroyed on account of spontaneous combustion, causing loss and damage. Intimation in this regard was sent to the respondent-insurer on...

In Sheela Vs. National Insurance Co. Ltd., First Appeal Nos. 1523 of 2008, 648 of 2009, a vehicle carrying several passengers met with an accident and the injured/claimants filed claim petition for compensation under Section 166 of the Motor Vehicles Act, 1988 claiming compensation towards various heads while the appellant - owner and respondent No. 1 - Insurance Company resisted the claim on the ground that there was no reason for the claimants to sit unauthorisedly in the private car and therefore, owner and Insurance Company are not liable. The Insurance Company has also taken the defence of fundamental breach of policy by the owner inasmuch as the offending vehicle which was for private use of the owner, was used for the purposes of 'Hire or Reward'. The Tribunal partly allowed the claim petitions, thereby fixing the liability on the owner and absolving the Insurance Company on the ground that owner has committed fundamental breach of terms and conditions of the policy...

In CIVIL APPEAL NO.  9407   OF  2019, SRI PRABODH CH. DAS vs MAHAMAYA DAS, the  question that came up for consideration before the Supreme Court was whether the High Court was justified in dismissing the second appeal on merits in the absence of the learned counsel for the appellants. In this matter, the second appeal was filed against the judgment of the First Appellate Court. The Supreme Court observed that it is evident from the materials on record that the appeal was listed for hearing several times.  When the matter was taken up for hearing   on   21.01.2015,   learned   counsel   for   the appellants/defendants was not present to argue the matter and no request   was   made   on   his   behalf.   Therefore,   the   High   Court proceeded to decide the appeal on merits itself...

In Central Bank Of India vs State Of Kerala & Ors on 27 February, 2009, the issue before the Supreme Court was Whether Section 38C of the Bombay Sales Tax Act, 1959 [for short "the Bombay Act"] and Section 26B of the Kerala General Sales Tax Act, 1963 [for short "the Kerala Act"] and similar provision contained in other State legislations by which first charge has been created on the property of the dealer or such other person, who is liable to pay sales tax etc., are inconsistent with the provisions contained in the DRT for recovery of `debt' and the the Securitisation Act for enforcement of `security interest' and whether by virtue of non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act, two Central legislations will have primacy over State legislations are the questions which arise for determination in these appeals. Through a detailed judgment, the Supreme Court held that the non obstante claus...

In Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka and Ors., Civil Appeal No. 9170 of 2019, the two questions before the Supreme Court was :- 1) Whether the High Court ought to interfere, Under Article 226/227 of the Constitution, with an Order passed by the National Company Law Tribunal in a proceeding under the Insolvency and Bankruptcy Code, 2016, ignoring the availability of a statutory remedy of appeal to the National Company Law Appellate Tribunal and if so, under what circumstances; and 2) Whether questions of fraud can be inquired into by the NCLT/NCLAT in the proceedings initiated under the Insolvency and Bankruptcy Code, 2016, arise for our consideration in these appeals. The background facts leading to the filing of the above appeals, in brief, are as follows: i) M/s. Udhyaman Investments Pvt. Ltd. claiming to be a Financial Creditor applied under Section 7 of the IBC, 2016 against M/s. Tiffins Barytes Asbestos & Paints Ltd., the Corpo...

In Anand Rao Korada Vs. Varsha Fabrics (P) Ltd. and Ors., Civil Appeal Nos. 8800-8801 of 2019, Civil Appeals have been filed by the Appellant-Resolution Professional appointed by the National Company Law Tribunal for the Corporate Debtor-M/s. Hirakud Industrial Works Ltd., to challenge the interim Orders dated 14.08.2019 and 05.09.2019 passed by the Odisha High Court in W.P. (Civil) No. 7939/2011. The background of this mater is that, M/s. Varsha Fabrics Pvt. Ltd. (Respondent No. 1), India Finance Ltd. (Respondent No. 2), Mudrika Commercial Pvt. Ltd. (Respondent No. 3), Hirakud Industrial Works Ltd. (Respondent No. 4), and Industrial Development Corporation of Orissa Ltd. (Respondent No. 5) entered into a Share Purchase Agreement ("SPA") dated 10.07.2006. Respondent No. 4 shut down its factory on 08.05.2007. Respondent No. 13-the Hirakud Workers' Union filed W.P. (Civil) No. 12479/2009 before the Odisha High Court praying inter alia for cancellation of the SP...

In Taj Mahal Hotel v. United India Insurance Company Ltd. & Ors., Civil Appeal No. 8611 of 2019, Respondent No. 2 herein (Complainant No. 2) visited the Appellant-hotel in his Maruti Zen car. While the car was insured with Respondent No. 1 herein (Complainant No. 1), the Appellant-hotel had taken a non-industrial risk insurance/liability policy from Respondent No. 3. Upon reaching the hotel, Respondent No. 2 handed over his car and its keys to the hotel valet for parking, and then went inside the hotel.  When Respondent No. 2 came out of the hotel at about 1 a.m., he was informed that, his vehicle had been driven away by another person. A complaint was lodged with the police, but the car remained untraced. Respondent No. 1 (car insurer) settled the insurance claim raised by Respondent No. 2 (car owner) in respect of the stolen car for Rs. 2,80,000. Thereafter, Respondent No. 2 executed a Power of Attorney (‘POA’) and a letter of subrogation in favour of Responden...

In Skylark Hi-Tech Solution Pvt. Ltd. Vs. The Commissioner, Service Tax Commissionerate, the PRINCIPAL BENCH, NEW DELHI, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, Service Tax ROM Application No. 50064 of 2019 in ST Appeal No. 54060 of 2014, has held final order which, in fact, has been quoted in the impugned application is itself sufficient to reflect that all the contentions as were raised by the appellant have duly been dealt with in the said final order. As far as the arbitrary/vagueness of a show-cause notice is concerned, the same is held to be correct in principle. The decision cannot be re-opened under the guise of rectification of mistake.  Referring to the decision of M/s. SRF Ltd. Vs. Commissioner of Central Excise, Chennai, 2019 (4) TMI 750 Tribunal Delhi which clarifies that a decision on debatable point of law or fact cannot be corrected by way of rectification. Otherwise also the impugned final order has remanded the matter to the adjudicating authority...

In Central Board Of Trustees EPFO Through APFC Delhi (South) v. Kendriya Bhanda, the writ petition was filed before the Delhi High Court by the Central Board of Trustees EPFO assailing the order passed by the Employees’ Provident Fund Appellate Tribunal. Under the impugned order, the Tribunal while admitting the Respondent’s appeal against the assessment order passed by the Petitioner under Section 7(A) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (‘the EPF Act’), has granted complete waiver from pre-deposit to the respondent.  The Petitioner, alleging that, the Respondent had defaulted in paying the requisite provident fund dues, had initiated an inquiry under Section 7 (A) of the EPF Act. After granting due opportunity of hearing to the Respondent, the Petitioner passed an assessment order holding the Respondent liable to pay a sum of Rs.6,31,707 on the ground that, the Respondent was the principal employer and, therefore, liable to remit the d...

In B N Singh v. M/s Hindustan Antibiotics Limited, before the Delhi High Court, the grievance of the Appellant, is that under Section 17B of Industrial Disputes Act, 1947, he was entitled to payment of the last drawn wages from the date of institution of the writ proceedings by the Respondent in present Court to assail the industrial award in his favour, and merely because the affidavit in support of the application in terms of Section 17B was filed on 26th February, 2019, the date from which he was entitled to receive the last drawn wages was not postponed to the said date. He submits that, the learned Single Judge has wrongly read and interpreted the decision of the Supreme Court in Uttaranchal Forest Development Corporation v. K.B. Singh.  The High Court observed that a reading of Section 17B of Act shows that, when an award made by the Labour Court, Tribunal or National Tribunal directs reinstatement of any workman, and such an award is assailed before the High Court,...

In MS. G. KAPOOR vs M/S REACON ENGINEERS PVT. LTD., before the Delhi High Court in  ARB.P. 131/2019, the petitioner and the respondent entered into an agreement for carrying out internal electrical works for renovation and expansion of ESIC Hospital, Okhla Project. The main contract was between ESIC and TCIL. A further sub-contract was between the respondent and TCIL. Due to payment dispute, the petitioner applied for appointment of arbitrator arguing that  clause 2 of the LOI based on which the respondent had awarded contract to the petitioner clearly states that the scope of work, commercial and technical terms and conditions including payment terms of contract between the petitioner and the respondent is on back-to-back basis with the main contract between the ESIC and TCIL and as such all the terms and conditions will apply to the agreement between the petitioner and the respondent including the arbitration clause. The  respondent argued that any incorporati...

In Saregama India Limited Vs. Home Movie Makers Private Limited, Company Appeal (AT) (Insolvency) No. 359 of 2019, the Appellant had filed application before the Adjudicating Authority under Section 7 of IB Code, 2016  against the Corporate Debtor – M/s Home Movie Makers Private Limited  for initiation of Corporate Insolvency Resolution Process. The Adjudicating Authority, after hearing the parties, dismissed the Application holding that the claim made by the Appellant (Financial Creditor) is not a ‘financial debt’ against which the appeal was filed before the NCLAT. The Appellant in support of their grounds argued that the transaction between the parties clearly establishes it is a financial debt. Per contra, the Respondent (Corporate Debtor) denied the stand of the Appellant and states that it is not a financial debt in terms of Section 5(8) of the IBC and there was no Time Value of Money as consideration therefore the application of the Appellant was rig...

In Vijuna V.K. Vs. Mithun K. and Ors., appeal was filed before the Kerala High Court against the order of the trial court sentencing the accused to simple imprisonment of 3 months and a fine of Rs. 3.50 Lakhs. The complaint contended that he had provided a loan of Rs. 4.5 lakhs to the husband of the accused of which he returned only Rs. 1 Lakh. The accused undertook the liability of her husband for the balance amount of Rs. 3,50,000/- and issued a cheque  for that amount to the complainant in discharge of the liability. An agreement had also been executed in relation to the transaction. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The plea of the accused is that she had not issued cheque to the complainant but the complainant had misused the cheque which he had got from her husband. On appeal, the Kerala High Court decided that it is true that the accused had i...