LatestLaws.com's Monthly Digest (August 2024)
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- ADMINISTRATIVE LAW CASES
The single judge bench of the Jharkhand High Court held that though the promotion is not a right of an employee, but the right of consideration is accrued when junior to the employee concerned has been considered for promotion.
The single judge bench of the Andhra Pradesh High Court held that mere proof of accident is not sufficient and the management must prove the rash and negligent act and also failure by the workman in taking preventive measures and precautionary measures in anticipation of the accident.
The single-judge bench of the Andhra Pradesh High Court held that on completion of a satisfactory period of probation, the confirmation would date back to the initial date of appointment.
- CIVIL LAW CASES
The Patna High Court, while allowing a petition filed under Article 227 of the Constitution of India for setting aside the order dated 15.10.2022 passed by learned Additional District Judge-whereby and whereunder the learned Appellate Court rejected the amendment petition filed by the petitioner, held that in a disputed question of fact like a wrong boundary and its correction, the court could not order for appointment of a Survey Knowing Pleader Commissioner as Commissioner could not be appointed to collect evidence on behalf of the parties.
The single judge bench of the Andhra Pradesh High Court held that when two or more proceedings are pending in different Courts between the same parties which raise common questions of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions, due to that by invoking powers vested under Section 24 of CPC.
- CONSTITUTIONAL LAW CASES
The division judge bench of the Jharkhand High Court held that in case of money claim, the petition under Article 226 of the Constitution of India is not to be entertained. However, the law is well settled that if the amount is admitted then direction can be passed by the Writ Court for making payment of admitted amount.
- CRIMINAL LAW CASES
The Hon’ble Delhi High Court expounded that for the purpose of registration of FIR and criminal case under Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”) , the registration of FIR meeting the requirement of Section 2(1) (d), (e) and (f) of MCOCA coupled with the fact that the concerned Court has taken cognizance, is to be satisfied.
It was ruled that what is important is whether the commission of an offence by the accused would constitute ‘continuing unlawful activity’ as a member of an organised crime syndicate and so long as the said requirement is not met, the conviction under Section 3 of MCOCA may not be upheld.
Recently, the Delhi High Court has expounded that "petitioner / accused cannot be precluded from leading evidence in defence with respect to messages exchanged between him and prosecutrix, which the accused considers would substantiate his defence and prove his innocence. Merely because the phone of the accused was not seized during an investigation or was not handed over by the petitioner to the IO."
The Delhi HC Bench, comprising of Justice Anoop Kumar Mendiratta, was hearing a Criminal Revision Petition filed under Section 397 of the Code of Criminal Procedure, 1973, challenging an order passed by the learned Additional Sessions Judge (ASJ).
The division judge bench of the Jharkhand High Court held that unlawful demand of dowry soon before death is sine-qua-non for the offence under Section 304 B IPC. The court in the absence of proof of dowry demand granted benefit of doubt to the accused person convicted for the offense under Section 304B of the Indian Penal Code.
Supreme Court in Hussainbhai Asgarali Lokhandwala v. State of Gujarat affirmed the alteration of conviction from Section 304 Part I to Section 304 Part II, IPC, observing that the entire incident occurred in the heat of the moment and that neither party could control their anger.
Apex Court further added weight to the above decision reasoning that the incident was not premeditated and that it took place inside the residence of Accused No. 1 due to a sudden quarrel and emotional upheaval between the parties.
In its recent decision, James Kunjwal v. State of Uttarakhand, the three-judge bench of the Supreme Court of India held that initiating criminal proceedings for perjury requires substantial evidence of deliberate falsehood on a matter of substance and malafide intent.
Regarding the dispute in question, the Apex Court found that the appellant's denials in his affidavit did not meet the required threshold, thereby justifying the quashing of the perjury complaint.
Recently, the Supreme Court dealt with a writ petition which required consideration as to whether the personal bonds and sureties already executed by the petitioner in connection to one FIR shall hold good for eleven other bail orders passed in his favour from courts of different states.
- INSOLVENCY AND BANKRUPTY CODE, 2016
The Hon’ble Supreme Court expounded that a holding company is not the owner of the assets of its subsidiary. Therefore, the assets of the subsidiaries cannot be included in the resolution plan of the holding company. Further, it was held that the financial creditor can always file separate applications under Section 7 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) against the corporate debtor and the corporate guarantor. The applications can be filed simultaneously as well.
The NCLAT, Principal Bench New Delhi opined that when the Resolution Professional make the payments with the approval of the Committee of Creditors, then no personal liability can be fastened on the Resolution Professional
The Hon’ble High Court of Delhi expounded that Section 11A(2) of the IBC says that precedence is to be given to an application if the application under Section 54C already pending and application under Section 7, 9 or 10 is filed or if the application under Section 7, 9 or 10 is pending and the application under Section 54C is filed within 14 days of the filing of the said application then the precedence has to be given to the said application but Section 11A(3) cast an exception as it provides that where an application under Section 54C is filed after fourteen days of the filing of the application under Section 7, 9 or 10 then it has not to be given precedence rather the precedence has to be given to the application filed under Section 7, 9 or 10 of the IBC.
It was held that if the application under Section 7, 9 or 10 is already filed and then the Act of 2021 came into being then the applicant filing the application under Section 54C cannot take the help of this Section.
The NCLAT, Principal Bench New Delhi held that the protective umbrella over the assets of the Corporate Debtor is not to be misused or abused in a manner so as to become a tool for deriving undue advantage at the cost of insolvency resolution which objective unequivocally resonates in the preambular aspirations of the IBC.
The NCLAT, Principal Bench New Delhi observed that Section 11A(2) of the IBC says that precedence is to be given to an application if the application under Section 54C already pending and application under Section 7, 9 or 10 is filed or if the application under Section 7, 9 or 10 is pending and the application under Section 54C is filed within 14 days of the filing of the said application then the precedence has to be given to the said application but Section 11A(3) cast an exception as it provides that where an application under Section 54C is filed after fourteen days of the filing of the application under Section 7, 9 or 10 then it has not to be given precedence rather the precedence has to be given to the application filed under Section 7, 9 or 10 of the IBC.
It was held that if the application under Section 7, 9 or 10 is already filed and then the Act of 2021 came into being then the applicant filing the application under Section 54C cannot take the help of this Section.
The NCLAT, Principal Bench New Delhi expounded that Section 14(1)(d) of the IBC prohibits recovery of any property by an owner or lessor, where such property is occupied and in possession of the Corporate Debtor.
In terms of facts of present case, it was held that the present case is not a recovery of the Facility by owner or lessor, who is Respondent No.2 herein. Further, the Facility is neither in occupation, nor in possession of the Corporate Debtor, since the Corporate Debtor has been appointed as operating and maintenance contractor. The Facility, which was constructed by Respondent No.2, the subsidiary of the Corporate Debtor and has been hypothecated and charged with the lender, i.e. Respondent No.1, it continues to be in possession and occupation of Respondent No.2, the subsidiary of the Corporate Debtor.
The NCLAT, Principal Bench, New Delhi expounded that ‘Oppression' may take different forms and need not necessarily be for obtaining pecuniary benefit. It may be due to a desire to obtain power and control, or be merely vindictive. In this background, the decision of the Tribunal cannot be faulted with.
Having said that, it was also held that act of “oppression and mismanagement” should be pre-judicial to a member of the company and not against the director of the board. Technically and legally speaking the appointment and removal of directors cannot be treated as act of “oppression and mismanagement”.
The NCLAT, Principal Bench, New Delhi in appeal wherein Appellant furnished only one reason that there was delay in filing the claim as they were not aware of the liquidation order; held that NCLT did not commit any error in rejecting the application as the claim was filed after more than three and a half years.
The NCLAT, Principal Bench, New Delhi opined that Section 32-A of the Insolvency and Bankruptcy Code, 2016 (IBC) has been engrafted in the legislation, which is a legislative scheme and if legislature thought that immunity be granted to the Corporate Debtor or its property, it hardly furnishes a ground for this Court to interfere. Further, that the extinguishment of the criminal liability of the Corporate Debtor is apparently important to the new management to make a clean break with the past and start on a clean slate.
The NCLAT, Principal Bench, New Delhi ruled that IBC proceedings are proceedings, which insist on timeline for completion of the proceedings. Timeline is an important and cardinal principle in IBC process. When an Application under Section 9 proceeded for more than a year, without there being any valid reason, the Appellant, cannot claim as a matter of right that it ought to have been permitted to file a fresh petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC).
- INTELLECTUAL PROPERTY ACT CASES
The High Court of Calcutta, while disposing of an appeal filed under Section 117A of The Patents Act, 1970 against the order passed by the Deputy Controller of Patent and Designs wherein the post-grant opposition filed by the appellant for revocation of a patent was refused, held that if the Patent Office’s orders lack proper reasoning, it may be difficult for the applicant to identify the grounds for appeal. This makes the decision arbitrary, suggesting a subjective determination without any objective criteria.
- NEGOTIABLE INSTRUMENTS ACT
The Himachal Pradesh High Court was dealing with a Criminal Revision Petition challenging a Session Judge’s decision affirming the conviction order passed by a Magistrate, whereby the petitioner-accused was found guilty under Section 138 of the Negotiable Instruments Act. The accused had been sentenced to undergo six months of simple imprisonment and pay compensation of ₹3,30,000.
The Hon’ble Delhi High Court expounded that Section 141 Negotiable Instruments Act, 1881 (‘NI Act’) has no applicability to a proprietary concern and relates to offences by company, firm or association of individuals.
Further, it was held that since a ‘proprietary concern’ is not a separate entity from the ‘proprietor’, it may not be necessary to array ‘proprietary concern’ separately in the facts and circumstances of the case, since the liability incurred by the petitioner is in the personal capacity.
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