Legal News & Views

In Adjudicating Officer Vs Bhavesh Pabari, the Supreme Court with reference to a matter with the SEBI, has explained the  a continuing offence and a repeat offence. The continuing offence is a one which is of a continuous nature as distinguished from one which is committed once and for all. The term “continuing offence” was explained and elucidated by giving several illustrations in State of Bihar vs. Deokaran Nenshi & Ors.. In case of continuing offence, the liability continues until the rule or its requirement is obeyed or complied with. On every occasion when disobedience or non­compliance occurs and reoccurs, there is an offence committed. Continuing offence constitutes a fresh offence every time or occasion it occurs. In Union of India & Anr. Vs. Tarsem Singh, continuing offence or default in service law was explained as a single wrongful act which causes a continuing injury. A recurring or successive wrong, on the other hand, are those which occur periodically wi...

In Vijay Pal Garg & Ors. Vs Pooja Bahry, appeal was filed before the NCLAT ordering that the affairs of the Corporate Debtor ought to be investigated. Accordingly, the Central Government is directed to order an investigation into the affairs of the Corporate Debtor under Section 210 (2) of the Companies Act, 2013. The Appellants submitted that the Adjudicating Authority had incorrectly invoked Section 210(2) of the Companies Act, 2013 while exercising jurisdiction under the provisions of ‘I&B’ Code. The Appellants contends that for the purpose of exercise of jurisdiction as per Section 210(2) of the Companies Act, 2013, the meaning of term ‘Court’ or the ‘Tribunal’ has to be considered in terms of the definition specified under the Companies Act, 2013 and that as per Section 5(1) of ‘I&B’ Code the Adjudicating Authority as defined thereof clearly does not fall within the purview of the term ‘Court’ as defined in Section 2(29) of the Companies Act, 2013 and therefore can...

  In  STATE BANK OF INDIA vs  Anil Dhirajlal Ambani,  Applications are filed before the NCLT by the Financial Creditor against a Personal Guarantor of the Corporate Debtors seeking urgent hearing and necessary orders under section 97(3) of the Insolvency and Bankruptcy Code, 2016. The issue under consideration is whether the liability of a guarantor of a debt of a corporate debtor stands reduced/extinguished upon an Insolvency Resolution Plan in respect of the corporate debtor, being approved under the Insolvency and Bankruptcy Code, 2016? NCLT stated that, basing on the law decided the Hon‟ble High Court answered the question in the negative. It held that a discharge which the principal debtor may secure by operation of law in bankruptcy or in liquidation proceedings does not absolve the surety of his liability. The Hon‟ble Court have also held that the fact that the Company i.e. principal debtor has gone into liquidation would not have any effect on the liability o...

In Volkswagen Finance Private Ltd. Vs Shree Balaji Printopack Pvt. Ltd. (NCLAT Delhi), appeal was filed against the  dismissal of application by the Adjudicating Authority seeking a direction to set aside the Order of the Liquidator rejecting the ‘Claim’ of the Appellant. The facts in brief are that the Company (under Liquidation) namely Shree Balaji Printopack Pvt. Ltd. executed a Loan and Hypothecation Agreement on 25.11.2013, for an amount of Rs. 36,00,000/- payable in 84 monthly instalments of Rs. 61,964/- each from 15.12.2013 to 15.11.2020, for the purchase of an AUDI Q3 TDI 2.0 vehicle. It was stated by the Appellant that they have security of the vehicle in terms of Sections 52 and 53 of the Insolvency and Bankruptcy Code, 2016. It was averred that a demand of Rs. 21,83,819.18/- was made which was not paid and hence there was a ‘default’ and the amount became ‘due and payable’. The Learned Adjudicating Authority had appointed a Liquidator vide Order dated 03.04.201...

In C. BRIGHT vs THE DISTRICT COLLECTOR, appeal was filed against order passed by the Division Bench of the Kerala High Court whereby it was held that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 20021 mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision. The Appellant had argued that the proviso under Section 14 mandating the District Magistrate to record reasons, if the order is not passed within 30 days, in order to avail an extended period of a total 60 days, shows that the provision is mandatory. If the District Magistrate is not able to take decision within 60 days, the secured creditor has to find its remedy else- where and not in terms of Section 14 of the Act. It is contended that the proviso mandates the District Magistrate to pass an order within 30 days as the word “shal...

In PAPPU DEO YADAV vs NARESH KUMAR, appeal was filed before the Supreme Court against the compensation awarded by the Motor Accident Claims Tribunal (MACT) and the High Court. Among other issues, the MACT as well as High Court had assessed physical disability to be 45%, while the High Court did away with the addition of 50% towards future prospects. The Supreme Court observed that the principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disabili...

In Ravi Dixit vs State of U.P., appeal was filed before the Allahabad High Court against the summon issued by the magistrate against complaint under Section 138 of the Negotiable Instruments Act. The appellant challenged the summon on basis of having replied to the notice sent by the complainant and the fact that the complainant did not wait for the mandatory period of 15 days from the date of said reply before filling complaint under Section 138. The High Court observed that the appellant had clearly said in the reply that he would not be paying the money claimed by the complainant. So the question was whether once the intention of the party is clear that he does not wish to make payment, should the complainant wait for 15 days. The High Court dismissing the appeal with cost held that the provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act...

In IREL (INDIA) LIMITED vs. P. N. RAGHAVA PANICKER, an appeal was filed before the Kerala High Court against the order of the Controlling Authority and the Appellate Authority under the Payment of Gratuity Act, 1972, ordering payment of gratuity to the 1st Respondent even for the period he had been a trainee in the Appellant company. The Respondent had claimed gratuity for the 2 year period during which the Appellant Company had employed him as a trainee before converting him to a permanent employee while the Company objected that a trainee is not entitled to gratuity under the Gratuity Act. Section 2(e) of the Gratuity Act excludes an Apprentice from the definition of an Employee.  The Controlling Authority had held that the trainee comes under the scope of any person and therefore is an employee. The Authority had not produced any document to prove that the initial appointment of the applicant (1st respondent herein) was as apprentice under the Apprentices Act, 1961 and ther...

In M/S. IMPERIA STRUCTURES LTD. vs ANILPATNI, one of the objections raised by the Appellant/Promoter was that the project being registered and approved under RERA Act, any complaint regarding the same has to be filed under the said act and the Consumer Forum should not have any jurisdiction on this issue. The Supreme Court however observed that it has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora. In terms of Section 18 of the RERA Act, if a promot...

In VAMAN NAGESH UPASKAR vs INDIA INFOLINE LTD., complaint was originally filed by the Applicants before the District Forum alleging trading in shares without consent by the Respondent 3 following which was allowed by the forum. On appeal filed by the Respondent 1, the State Commission  allowed the appeal and dismissed the complaint solely on the ground that the complainants were not consumers within the meaning of the Consumer Protection Act. Respondent No. 3 was an employee of Respondent No. 1. The NCDRC on appeal being filed before it, referred to the three-Members Bench of this Commission recently in CC No. 349 of 2017 - Springdale Core Consultants Pvt. Ltd. Vs. Pioneer Urban Land and Infrastructure Ltd. where on the question of  whether a transaction is for a commercial purpose while referring to decisions such as Laxmi Engineering Works Vs. P.S. G. Industrial Institute, II (1995) CPJ I (SC), Cheema Engineering Services V. Rajan Singh VI (1998) SLT 20, Kalpavruksha Ch...