This is a compilation of Case Analysis of important judgments for January 2023.
- ADMINISTRATIVE LAW CASES
1. Madras High Court expounds: Furnishing an Enquiry Report and Show-cause Notice before an order is mandatory
The Madras High Court allowed a Writ Petition filed against the orders of the Tahsildar of Devakottai Taluk since before the passing of the orders, the enquiry report was not furnished to the petitioner, no show-cause notice was issued and no opportunity was given to the petitioner before passing the impugned orders. Denial of such opportunity was held as violative of principles of natural justice.
2. Delhi High Court Enunciates: No mechanical manner of upgradation solely based on the completion of several years of service can be allowed in Central Health Services
The Division Bench of the Delhi High Court in the case of Dr. Shilpi Agarwal & Anr. vs UOI & Ors. consisting of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad held that there can never be a mechanical manner of upgradation, dehors the Recruitment Rules and other relevant provisions governing promotions in service, solely based on completion of several years of service for the officers in Central Health Services.
3. Supreme Court Expounds: Deviating from a method of inviting tenders from entities can only be done in exceptional circumstances
The Division Bench of Justice Dr. Dhananjaya Y Chandrachud and Justice Hima Kohli in the case of M/S Indian Medicines Pharmaceuticals Corporation Ltd Vs Kerala Ayurvedic Co-Operative Society Ltd. & Ors held that inviting tenders from the entities is the most transparent and non-arbitrary method of allocation that can be undertaken.
However, the Appellant may deviate from this rule and procure medicines by nomination only if exceptional circumstances exist.
The division Bench of Justice Dr. Dhananjaya Y Chandrachud and Justice Pamidighantam Sri Narasimha of the Apex Court in the case of Deepak Ananda Patil Vs The State of Maharashtra & Ors held that an adjudicatory body cannot base its decision on any material unless the person against whom it is sought to be utilized has been apprised of it and allowed to respond to it.
The division Bench of Justice M.R. Shah and Justice C.T. Ravikumar of the Apex court in the case of The Union of India & Ors Vs Rajib Khan & Ors held that different educational qualifications and experience for appointments can justify having various pay scales and compensation structures and is not violative of Articles 14 and 16 of the Constitution of India.
The Single Bench of the Delhi High Court in the case of Jagjit Pal Singh Virk vs Union of India & Anr. consisting of Justice Prathiba M. Singh held that Annual Confidential Reports (“ACRs”) of the persons in the Armed Forces are confidential in nature and the same cannot be disclosed even after retirement. However, grading given by IO, RO, and SRO can be only communicated after 3 years from the date of retirement.
- ARBITRATION LAW CASES
Concerning the contention that the Appellant waived the right to object due to his conduct, the Delhi High Court opined that even if the Appellant participated in the proceedings without raising any objections, it cannot be said that he had waived his right under Section 12(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”).
Moreover, it was expounded that the award passed by an ineligible Arbitrator is not binding on the parties as ineligibility goes to the root of the jurisdiction and such an award cannot be said to be binding.
It was propounded that a waiver can only happen by way of an express written agreement and the same cannot be inferred by the conduct of the parties. Therefore, the fact that a party participated in the proceedings cannot be interpreted as a waiver of the right to object to the ineligibility of the Arbitrator.
The Single Bench of the Delhi High Court in the case of M/s Diamond Entertainment Technologies Private Limited & Ors. vs Religare, Finvest Limited Through its Authorized Officer consisting of Justice Neena Bansal Krishna reiterated that the review of Order under Section 11 of the Arbitration & Conciliation Act, 1996 does not lie with the High Court.
The Bombay High Court allowed an application filed under Section 11 of the Arbitration and Conciliation Act, 1996, seeking the appointment of the Sole Arbitrator for resolving the disputes that arose between the parties out of the contract of the Media Agency.
The Court observed that the main claim of the applicant is not hopelessly time-barred and hence it would be appropriate to appoint an arbitrator.
The Single Bench of the Delhi High Court in the case of Kleenoil Filtration India Pvt Ltd vs Udit Khatri & Ors. consisting of Justice C. Hari Shankar held that the Court could proceed to decree the suit without calling for an affidavit in evidence only where the issue in the plaint and the facts set out therein do not disclose any such fact as would require to be proved by the Plaintiff on affidavit.
The Court rejected the argument of the respondent that the amendment is permissible on account of lack of due diligence, as the application in the instant case was after the framing of issues, but before the affidavit in lieu of evidence was filed. This is because the relief claimed is already inbuilt into prayer clause (1) of the original plaint.
The Bombay High Court, allowing the petition, quashed and set aside the impugned order dated 7.9.2020 in so far as it rejected the application under Order 1 Rule 10 of CPC. Hence, the Court allowed the addition of parties to the suit.
The Punjab and Haryana High Court observed that an amendment in the written statement to the counterclaim for adding the factum of a sale deed that was already on the record would not cause any prejudice to the opposite party.
The Punjab and Haryana High Court, while dismissing a petition filed against the order of the trial court, allowed an application for an amendment in the plaint and the decree, passed in a suit for declaration in the year 1991.
The Punjab and Haryana High Court opined that a mere nomenclature of the application was not determinative of its maintainability, as it was the substance and not the form of the application, which was material for adjudication and an application under Order 7 Rule 11 of the CPC could not be allowed on the ground that the petition was filed under the Act of 1949, but the Act of 1995 came in operation.
It was further observed by the court that if the petition was filed under the Act of 1949, then the petitioner could be permitted to amend the same.
The Punjab and Haryana High Court, while dismissing a revision petition filed against an order for an appointment of a Local Commissioner [under Order XXVI Rule 9 of the Code of Civil Procedure, 1908], observed that no revision was maintainable against an order dismissing an application for an appointment of a Local Commissioner as the order refusing to appoint a Local Commissioner did not decide any issue nor did it adjudicate any rights of the parties for the purpose of the suit.
7. Kerala High Court Expounds: Court Fees cannot be refunded in cases when a suit is decided on merits
The Kerala High Court observed a significant difference between Order 7 Rule 11(c) and Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”).
The former is for situations before the parties go for trial and where the requisite stamp paper is not supplied within the prescribed time and therefore, the plaint is rejected while the latter is when it seems from the plaint that the suit is barred by any law.
If the suit is not barred, the Court would move to the next stage of framing issues and adjudicating upon them.
In the present case, the Court framed issues and proceeded with the trial. It was after the completion of the trial, that the suit was held to be barred by law. The Petitioner then filed an application for the return of the plaint and refund of the court fee. The Bench opined that the court fee cannot be refunded once the suit is decided on the merits as the Petitioner consciously and willingly paid the remaining court fee and participated in the trial.
- CONSTITUTIONAL LAW CASES
While allowing a Habeas Corpus petition for a detention order, the Madras High Court observed that a mere endorsement without substantive material to support it cannot be considered in accordance with the procedure established by law and thus cannot sustain in the eye of the law. Thus, non-furnishing of details given to the relatives of the detenu would amount to a deprivation of the right to life and personal liberty of the detenu to make an effective representation.
The Single Bench of the Delhi High Court in the case of Neeraj Bhatt vs The State (Govt. of NCT) of Delhi consisting of Justice Swarana Kanta Sharma held that the right of a citizen to effectively pursue his legal remedy in the last court of justice by filing Special Leave Petition (hereinafter referred to as “SLP”) through a counsel of his own choice is valuable. This cannot be withheld merely based on his past conduct or on the ground that free legal aid is available and that SLP can be filed from the jail itself.
The Supreme Court while adjudicating on a case under Section 4A (5) of the U.P. Trade Tax Act (hereinafter referred to as “Act”), opined that while interpreting any exemption notification or provision, literal interpretation has to be done and a person claiming such an exemption must comply with all the conditions.
Further, the Apex Court propounded that the Appellant’s goods cannot be said to be different from the earlier ones. It was observed that due to advancement in technology if the earlier machinery is replaced with new for improvement in quality and quantity, at most it is the case of expansion and/or modernization. It cannot be said to be diversification. If the ultimate use of the products is the same, then the product manufactured cannot be said to be different from the earlier product, and therefore, exemption from payment of trade tax cannot be claimed.
The Single Judge Bench of the Orissa High Court, comprising Justice Arindam Sinha in the case of Gourahari Lenka v. State of Odisha and others has expounded that a writ petition can be maintainable to enforce orders made in a previous writ petition.
The Division Bench of the Delhi High Court in the case of M/S Gka Impex Pvt Ltd vs Reserve Bank of India & Ors. consisting of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad reiterated that the remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. Further, it was opined that writ courts, in the exercise of their writ jurisdiction, do not substitute their conclusions for the ones arrived at by the expert bodies, unless the decision is perverse.
The Bombay High Court allowed an application seeking quashing of the order passed by the Metropolitan Magistrate whereby the applicant’s request for renewal of passport was rejected.
The High Court observed that the mere pendency of a criminal case against a person is not a ground to deny the right of the person to apply for renewal of passport.
- CRIMINAL LAW CASES
1. Supreme Court opines: Summons should not be issued when the allegations in the complaint are absurd or improbable
The Division Judge bench of Justice Sanjiv Khanna and Justice J.K. Maheshwari of the Apex Court in the case of Deepak Gaba and Others Vs State of Uttar Pradesh and Others held that when the allegations in the complaint are so absurd or inherently improbable, based on which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued.
The Division Bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta of the Calcutta High Court in the case of Anubrata Mondal @ Kesto Vs The Central Bureau of Investigation held that the paramount influence of the Petitioner as a political heavyweight and materials collected showing misuse of such power to influence witnesses and derail the investigation places him in a unique position in comparison to others who are on bail. Enlargement of the Petitioner on bail would have an ominous impact not only on the witnesses but on the smooth administration of criminal justice in the case.
3. Supreme Court opines: While considering actual imprisonment, the period of parole should be excluded
The Hon’ble Top Court observed that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get parole several times as there are no restrictions and it can be granted several times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment.
It was noted that the purpose of considering actual imprisonment, the period of parole is to be excluded.
The Division Bench of Justice M.R. Shah and Justice Krishna Murari of the Apex court in the case of B. Venkateswaran & Ors Vs P. Bakthavatchalam quashed criminal proceedings for the offence under Sections 3(1)(v) and (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as a civil dispute was converted into criminal dispute.
The Division Bench of Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia of the Apex Court in the case of Prem Singh Vs State of NCT of Delhi held that the burden of proving the existence of circumstances to bring the case within the purview of Section 84 Indian Penal Code, 1860 (hereinafter referred to as “IPC”) lies on the Accused in terms of Section 105 of the Evidence Act, 1872.
The Bombay High Court dismissed the appeal seeking compensation as the deceased was not found to be a bona fide passenger as per defined under section 2(29) of the Railways Act, 1989 (“the Act”). The Court also held that the indication of alcoholic breath in the MLC report and not in the Post-mortem report is sufficient to fall under exception (d) in the proviso to section 124A of the Act if a sufficient time gap exists.
7. Calcutta High Court Expounds: Suspicion, howsoever high, cannot take place of proof of guilt
The Division Bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta of the Calcutta High Court in the case of Jiten Barman Vs The State of West Bengal held that suspicion, howsoever high, cannot take the place of proof of guilt.
8. Supreme Court Enunciates: Prosecution cannot be said to be bogus after filing Charge Sheet
The Division Bench of Justice M.R. Shah and Justice C.T. Ravikumar of the Apex court in the case of X Vs the state of Uttar Pradesh & Ors held that merely because the wife was suffering from the disease AIDS and/or divorce petition was pending, it cannot be said that the allegations of demand of dowry were highly/inherently improbable.
The division Bench of Justice M.R. Shah and Justice S. Ravindra Bhat of the Apex court in the case of The State of Rajasthan Vs Komal Lodha held that Judicial discipline requires that once the conviction was confirmed by this Court that too after hearing the accused, the High Court should not have thereafter made any comment on the merits of the case.
The Hon’ble Supreme Court in a recent case criticized the practice of imposing harsh conditions in the bail order because of which the Accused ended up staying in jail. The Bench of Justice Krishna Murari and Justice V. Ramasubramanian opined that such a situation where the Accused cannot fulfil the excessive requirements imposed on him under the garb of bail conditions and remains in custody for perpetuity is not a symptom of injustice, it is injustice.
11. Supreme Court Expounds: No absolute bar on cancelling default bail after filing of Chargesheet
The division Bench of Justice M.R. Shah and Justice C.T. Ravikumar of the Apex court in the case of The State Through Central Bureau of Investigation Vs T. Gangi Reddy @ Yerra Gangi Reddy held that on the filing of the chargesheet on conclusion of the investigation if a strong case is made out and on merits, it is found that the Accused has committed a non-bailable offence/crime, on the special reasons/grounds and considering Section 437(5) and Section 439(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr. P.C”) over and above other grounds on which the bail to a person who is released on bail can be cancelled on merits.
12. Supreme Court expounds: Conviction cannot be done solely based on the last-seen theory
The division Bench of Justice S. Ravindra Bhat and Justice P. S. Narasimha of the Apex court in the case of Jabir & Ors Vs The State of Uttarakhand held that conviction cannot be done solely based on the last seen theory. It was further observed that a basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond a reasonable doubt, as well the as the links between all circumstances. Such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the Accused and no one else.
The Himachal Pradesh High Court has allowed a pre-arrest bail of an accused in a misappropriation of funds after noting that the bank transactions could be easily ascertained through documentary evidence. The Bench noted that there was no sufficient reason to grant custodial interrogation of the Petitioner.
It was remarked that the allegation that Petitioner was not revealing the names of those to whom money has been disbursed may not be that relevant for proving the allegations against the Petitioner.
It was opined that an investigation in a criminal case cannot be used as a recovery proceeding. Further, it was held that the tool of custodial interrogation cannot be used to extract a confession.
The division Bench of Justice Dinesh Maheshwari and Justice Hrishikesh Roy of the Apex Court in the case of Bimla Tiwari Vs State of Bihar & Ors held that the process of criminal law cannot be utilized for arm-twisting and money recovery, particularly while opposing the prayer for bail.
It was also noted that the concession of pre-arrest bail or regular bail could be declined even if the Accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment. It was opined that recovery of money is essentially within the realm of civil proceedings.
The division Bench of Justice M.R. Shah and Justice C.T. Ravikumar of the Apex court in the case of Saurav Das Vs Union of India & Ors held that copies of the chargesheet and the relevant documents along with the charge sheet do not fall within the ambit of Section 4(1)(b) of the Right to Information Act, 2005 (hereinafter referred to as the “RTI Act”).
It was also held that if the chargesheet and relevant documents produced along with the charge sheet are put on the public domain or the websites of the State Governments it would be contrary to the Scheme of the Criminal Procedure Code and it may also violate the rights of the Accused, victim or the Investigating Agency.
The Bench expounded that the chargesheet/documents along with the chargesheet cannot be said to be public documents under Section 74 of the Evidence Act, 1872.
- IBC CASES
The main issue to be ascertained in the present case was when the Appellant couldn’t deposit the said amount because of the restrictions under IBC, can the Appellant be punished for no fault of the Appellant?
It was observed that as per the settled position of law, no party shall be left remediless and whatever grievance the parties had raised before the court of law the same has to be examined on its own merits.
It was noted that the Appellant cannot be punished for not doing something impossible for him to do. There was a legal impediment in the way of the Appellant to make any payment during the moratorium. Even if the Appellant wanted to deposit the settlement amount within the stipulated period, he could not do so given the bar under the IBC as, during the moratorium, no payment could have been made. Therefore, the Appellant cannot be rendered remediless and should not be made to suffer due to a legal impediment which was the reason for it and/or not doing the act within the prescribed time.
The NCLAT, Principal Bench, New Delhi observed that there is no inconsistency between Section 11B of the Central Excise Act, 1944, and Section 33 of the Insolvency and Bankruptcy Code, 2016 ( hereinafter referred to as “IBC”).
Section 11B enables the Corporate Debtor to make an application for a refund of duty. The purpose of the Moratorium which comes into play after the liquidation order is to protect the Debtor from legal proceedings. In the present case, no such legal proceeding has been initiated against the Debtor. It was noted by the Appellate Tribunal that the present case concerns a refund based on whether an application is required to be made or not.
It was opined by the Appellate Tribunal that Section 11B of the Central Excise Act, 1944 does not provide for an automatic refund. Concerning one refund for which the Application was not filed by the Liquidator, the Bench expounded that for such a refund if there was no claim, the Central Excise Department was not obliged to refund the said amount.
The Allahabad High Court opined that the approval of the resolution plan does not ipso facto absolve the guarantor of his liability. Hence, in the present case, the approval of the resolution plan would not be a ground to discharge the directors from their liability. It was held that the liabilities of the directors who may be guarantors cannot be extinguished merely on the ground that the resolution plan under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) has been accepted.
The NCLAT, Principal Bench, New Delhi opined that the jurisdiction of the Tribunal to condone the delay beyond 15 days cannot be clothed by the reason that the Appellant was unaware of the order which was to be challenged by him. It was opined that Section 17(1)(C) of the Limitation Act,1963 does not come into the picture when the limitation of an appeal is concerned. The section is only relevant for suits and applications.
It was held that Section 61 of the Insolvency and Bankruptcy Code,2016 (hereinafter referred to as “IBC”) prescribes only 30 days to file an appeal. The said period can be extended only for 15 more days. Therefore, a delay of 244 days could not be condoned in the present case.
5. NCLAT, New Delhi Enunciates: Operational Creditors are only entitled to a minimum liquidation value
The NCLAT, Principal Bench, New Delhi observed that the claim of the Appellant was admitted by the Respondent, however, no money was allocated because the liquidation value was NIL.
Further, even the Government (Operational Creditors) were not allocated any amount as their liquidation value also was NIL. It was expounded that the Operational Creditors are only entitled to a minimum of the liquidation value and therefore, there was no breach of the Insolvency and Bankruptcy Code, 2016.
6. NCLAT, Chennai enunciates: Limitation Act stands overruled by IBC
The NCLAT, Chennai Bench opined that the procedural provision in the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) such as time limits need to be applied in true letter and spirit because speed is the essence of IBC. The Tribunal expounded that Section 238 of the IBC overrides the Limitation Act and therefore, Section 12 of the Limitation Act cannot be made applicable when the delay is beyond a period of 45 days.
The NCLAT, New Delhi bench expounded that Bank Guarantees are outside the scope of the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) and Section 3 (31) specifically excludes Performance Bank Guarantees.
It was further opined that after an amendment to Section 14(3)(b) of the IBC, an irrevocable and unconditional Bank Guarantee can be invoked during the Section 14 moratorium.
The NCLT, Indore Bench expounded that a conditional plan without the consent of all the secured financial creditors is in contravention of the IBC.
It was opined that the Committee of Creditors (“CoC”) can only take decisions concerning the insolvency of the Corporate Debtor. Under the pretext of commercial wisdom, the right of a secured financial creditor to proceed against the personal guarantor of the Corporate Debtor cannot be extinguished.
It was enunciated that the CoC by majority votes cannot enforce its decision for extinguishment of the right of the dissenting creditor to proceed against the personal guarantor.
The NCLAT, New Delhi expounded that in absence of any proof and just by relying on letters demanding repayment of loans sent by financial creditors to the Corporate Debtor, the NCLT should not have accepted the Section 7 application of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”). It was also enunciated that once the beginning of CIRP is found to be based on fraud, other issues about the constitution of CoC and decisions, etc. become irrelevant as once the foundation of CIRP crumbles, all the later process would fall as it wouldn’t have any base to stand on. Concerning the allegation of related parties, the Tribunal propounded that the four companies are ‘related parties’ of the Corporate Debtor and therefore, there was a clear contravention of the first proviso of Section 5(24) of the IBC. The CoC became illegal and all the decisions taken thereof too became illegal when the related parties became members of the CoC.
The NCLAT, New Delhi bench observed that a notification by MCA has been issued vide which Financial Service Providers have been brought under the IBC. However, the notification puts a threshold which is an asset size of Rs. 500 crores or more.
It was opined that the current law on this matter is that a financial service provider having assets worth Rs. 500 crores or more can only proceed for insolvency and liquidations. It was enunciated that the Tribunal would have jurisdiction that is exercised on the date when an application can be filed against the financial service provider for insolvency. Moreover, an application under Section 95 can only be filed against the personal guarantor only when on the same date insolvency can be commenced against the financial service provider.
Merely for argument’s sake, the Appellate Authority analyzed the issue where the asset size of the financial service provider as on the date of filing of the application was more than Rs. 500 crores, but reduced during the pendency of the application, then it that case whether NCLT would lose its jurisdiction.
In this regard, the Bench opined that in the case of statutory precondition for the exercise of jurisdiction, the pre-condition must be fulfilled before the jurisdiction is exercised by the tribunal. The Bench observed that if the contention of the Respondent is accepted that if asset size is reducing during the pendency, the Tribunal loses jurisdiction then the same would be contrary to the objective of IBC which is speedy.
The Delhi High Court opined that the corporate insolvency resolution process (hereinafter referred to as “CIRP”) and avoidance applications are different proceedings and hence, adjudication of avoidance application is independent of the resolution of the corporate debtor and can survive CIRP. Further, avoidance applications cannot be rendered infructuous where the resolution plan is silent on the treatment of such applications. Money borrowed from creditors is public money and hence, the same cannot be appropriated by way of private transactions/arrangements.
Therefore, the RP will not be functus officio when it comes to avoidance applications. After avoidance of transactions the money cannot go to the kitty of the resolution applicant and the benefit must be given to the creditors.
- Intellectual Property Law (IPR):
1. Delhi High Court propounds: Advertisement industry thrives on creativity and freedom of expression and would loathe a Government-dictated regulation
The Single Bench of the Delhi High Court in the case of Dabur India Limited vs The Advertising Standards Council of India consisting of Justice Manoj Kumar Ohri reiterated that there is no doubt that creative freedom with an element of hyperbole is permitted. However, there is a very thick line that divides harmless hyperbole and misleading claims made in advertisements, especially, when the products relate to human consumption and claims are made about the superlative qualities of the products on human health. It was further opined that the advertisement industry thrives on creativity and freedom of expression and would loathe a Government-dictated regulation.
The Bombay High Court allowed the petition seeking quashing of the order passed by the Registrar of Trade Marks by which it had dismissed the application of the petitioner for granting of the trademark.
The Single Bench of the Delhi High Court in the case of Anubhav Jain vs Satish Kumar Jain & Anr. consisting of Justice C. Hari Shankar held that the right conferred on the Defendant in an infringement suit, to move the Court for rectification of the register of marks is a right independent of other rights available under the Act for the same purpose. It has, therefore, to be treated as available in addition to the right available and conferred by Section 57 of the Trademarks Act, 1999 (hereinafter referred to as “the Act”). It could not be read as the only right available, in abrogation of Section 57 of the Act.
The Division Bench of the Delhi High Court in the case of Corza International & Ors. vs Future Bath Products Pvt Ltd & Anr. consisting of Justices Manmohan and Saurabh Banerjee reiterated that the registered proprietor of a trademark can sue another registered proprietor of a trademark alleging deceptive similarity and the Courts are competent to grant an ad-interim injunction. It was further opined that the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its discretion except where the discretion.
The Bombay High Court opined that complying with a direction to ensure that users are prevented from registering names that infringe trademark rights only requires an alternative algorithm subject to technical, financial, and resourcing issues. Therefore, Defendants (GoDaddy) were directed to ensure compliance with such a direction and inform Plaintiff (Swiggy) whenever a domain name with the mark “Swiggy” is granted.
6. Calcutta High Court propounds: Invention has to be seen as a whole and not in isolated elements
The Calcutta High Court opined that merely because the individual parts of the claim are known or obvious when considered separately is not a ground to categorize the inventions as obvious. Instead of considering it partially, the whole invention has to be seen. The High Court expounded that the conclusion that any invention is obvious must be reached with care, caution, and precision.
- FAMILY LAW CASES
1. Rajasthan High Court Enunciates: Divorce Decree cannot be made redundant by the filing of an appeal
The Rajasthan High Court observed that the rules of appointment do not provide any quota for a divorcee. As per the terms and conditions, if a person is divorced, just a certificate of divorce has to be produced.
The Respondent in the present case had produced her divorce decree at the time of joining, which was under appeal.
The Bench opined that the effect of the divorce decree is not negated by the mere filing of an appeal. Therefore, the appointment of the Respondent was not illegal.
The Kerala High Court observed that while interpreting a provision, legislative intent and the impact of the provisions of laws are the decisive factors. Analyzing Section 128 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the High Court noted that the word “shall” has been purposely avoided so that Family Courts could have the jurisdiction to pass an enforcement order. Harmoniously interpreting the section would show that the orders under Sections 125 and 127 of Cr. P.C. can be enforced in any Court irrespective of the fact that the Respondent resides outside the jurisdiction of the Court.
The Bombay High Court dismissed the plea of the Petitioner to disallow the maintenance ordered to him on the ground that he is not the child's biological father. The Court held that no direction for a DNA test can be ordered in the absence of any separate application for the same. Also, no adverse inference can be made out against the wife by her mere refusal to go for a DNA test during a cross-examination.
The Bombay High Court quashes the FIR against the Applicant and observes that the First Information Report in question is a classic example wherein the husband's family members have been implicated in proceedings under Section 498A of the Indian Penal Code as an instrument to settle a personal score with the husband.
This Court further noted that once these FIRs get registered, it is not possible to restore bruised reputation or loss of character even by Judicial means.
5. Calcutta High Court Expounds: Infertility not a cogent ground for Divorce
The Calcutta High Court has enunciated that infertility is not a ground for divorce. Abandoning one’s wife in such a situation where the wife is undergoing severe mental and physical trauma amounts to cruelty.
The Single Bench of the Delhi High Court in the case of Arushi Mehra & Anr. vs Govt. of NCT of Delhi & Anr. consisting of Justice Prathiba M. Singh, while directing the Delhi Government to amend the Guidelines for Issuance of Marriage Registration Certificate elucidating the eligibility criteria of marriages under the Special Marriage Act, 1953 issued by the Revenue Department, held that the requirement of at least one party being a citizen of India is not required under the Special Marriage Act.
The Single Judge Bench of the Patna High Court, comprising Justice Sunil Dutta Mishra in the case of Kalyan Sah v. Mosmat Rashmi Priya has observed that father-in-law shall be under no obligation to maintain his daughter-in-law except in cases where there is some ancestral property in his possession from which the daughter-in-law has not obtained any share.
The Nagpur Bench of Bombay High Court dismissed the application filed for quashing of FIR registered against the distant relatives under Section 498A of IPC and held that distant relatives cannot be excluded from the definition of ‘relative’.
This Court reiterated that the test to determine whether a person falls under the definition of relative depends upon the nature of the status of persons, which would be of persons who are related by blood, marriage, or adoption.
- PROPERTY CASES
1. Madras High Court Opines: Correctness of Revenue Records during UDR proceedings determines Property Ownership instead of Sale Deal
The Madras High Court observed that the restoration of ‘patta’ in the name of the Petitioner will not in any way affect the rights of the fourth Respondent in approaching the competent Civil Court to establish his title and possession over the survey numbers in dispute. Further, the ownership is determined by the correctness of revenue records and not the sale deal.
The Single Bench of the Delhi High Court in the case of M/S Mahajan Industries Pvt. Ltd. vs Gaon Sabha Chattarpur consisting of Justice Mini Pushkarna reiterated that once land in question has already been urbanised, then proceedings u/s 81 of the Delhi Land Reforms Act, 1954 would not be maintainable. It also held that once notification of the government and its authorities as well as the Master Plan itself declared the user of the land as residential, then the owner of the land in question cannot be forced to use the land for agricultural purposes.
3. Supreme Court rules that encroachers cannot be allowed to take benefit of Section 24(2)
The division Bench of Justice M.R. Shah and Justice S. Ravindra Bhatt of the Apex Court in the case of The State of Haryana & Ors Vs Sushila & Ors held that once the possession was taken over by the acquiring body and was handed over to the beneficiary, any possession by the Respondents thereafter can be said to be encroachment and the encroachers cannot be permitted to take the benefit of the provisions of Section 24(2) of the Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (hereinafter referred to as the “Act”).
The Punjab and Haryana High Court observed that even a co-sharer could not be injuncted from selling his share of the property even though the property was sold by the way of a specific khasra number and the same would be tantamount to an alienation only of a share by the co-sharer.
The Punjab and Haryana High Court observed that a person seeking to establish his adverse possession must show that his possession was adequate in continuity, in publicity, and to an extent to show that their possession was adverse to the true owner.
6. Supreme Court Propounds: Temporary Acquisition for 20-25 years infringes Right to Property
The Supreme Court opined that if a temporary acquisition is allowed for a long time, then the same would lose its relevance. The temporary acquisition cannot be permitted to continue for 20-25 years. The act of continuing temporary acquisition for so many years would be violative of Article 300A of the Constitution of India. Hence, in the present case, the Respondent was directed to complete the process of permanent acquisition by April 2023.
- SARFAESI CASES
1. Supreme Court enunciates: SARFAESI overrides MSMED Act when it comes to recovery concerning secured assets
The Top Court observed that Sections 15 to 23 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “MSMED Act”) only provide for a special procedure for adjudication of the dispute and that there is no specific express provision for ‘priority’ of payments. Whereas Section 26E of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFESI”) provides priority to secured creditors, subject to the provisions of the Insolvency and Bankruptcy Code, 2016. The said provision is a later enactment that the MSMED Act and has a non-obstante clause. Even as per the contentions of the Respondent, the later enactment overrides the previous one, and therefore the Bench opined that Section 26E of SARFAESI would prevail over the recovery mechanism of the MSMED Act.
Moreover, the Apex Court noted that the MSMED Act does not talk about priority unlike SARFAESI, and therefore as such, there is no repugnancy between the two enactments as far as the matter of ‘priority’ is concerned.
Noting the object of SARFAESI which is to provide special provisions for the financial assets and security interest, the Top Court expounded that if MSMED Act is given precedence over SARFAESI then the object of SARFAESI would be frustrated.
It was hence, propounded that as far as the issue of recoveries concerning the secured assets is concerned, the provisions of SARFAESI would prevail over the MSMED Act.
The Kerala High Court expounded that the State has the first charge over the property and that charge runs irrespective of the sale of the property by the financial institution. It was held that the financial institutions do have the right to sell the property as per the law and adjust the amounts due in priority to other debts, but the statutory charge as per the State laws will continue to run.
It was further opined that even if the property is sold by the Banks and payments are adjusted as per the priority, the charge would run with the property until the encumbrances to the first charge are cleared.
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