LatestLaws.com's Monthly Digest (July 2023)
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- ADMINISTRATIVE LAW
- Bombay High Court: Appointment and Continuity of Service as Assistant Teacher Cannot be Cancelled by Management or Education Department
In a significant ruling, the Bombay High Court has allowed a petition challenging the Education Officer's refusal to approve the continuity of service of an Assistant Teacher. The Division Bench, comprising Justice G.S. Patel and Justice Neela Gokhale, held that the Education Officer had misinterpreted the Government Resolution and could not retract their earlier approval.
The High Court of Delhi recently, found that the principles of natural justice require that a person against whom an action is taken or whose rights are affected should be given a reasonable opportunity to defend themselves. It emphasized the importance of a valid, specific, and unambiguous show-cause notice, particularly in cases of blacklisting, due to the severe consequences and stigmatization that come with it.
The Bombay High Court highlighted the importance of the right to pension for government servants and emphasized that it should not be denied on technical grounds. High Court made this observation while directing a college in Pune to overlook a gap in an employee's service to ensure that he would be entitled to retirement benefits.
The Tripura High Court upheld the punishment imposed by the Tripura Khadi and Village Industries Board for the commission of misconduct on the part of the petitioner and held that the court can only interfere with the findings of the disciplinary committee in case of any procedural infirmity leading to violation of Natural Justice.
- ARBITRATION LAW
The Delhi High Court presided over by Justice Sachin Datta, clarified the scope of Section 29A of the Arbitration and Conciliation Act. The court emphasized that Section 29A solely focuses on determining whether the arbitrator has acted expeditiously and does not entertain matters regarding the conduct of arbitration proceedings or arbitral fees.
Justice Datta further highlighted that the respondent's contentions concerning the conduct of arbitration proceedings, apart from the issue of expeditious disposal, should be raised before the arbitrator or in an application under Section 34 of the Act when challenging the award passed by the arbitrator.
The Delhi High Court ruled that even if the Tribunal misinterpreted the Stamp Act, 1899 the Court wouldn’t have the jurisdiction to interfere under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”) .
Bench opined that even though document not properly stamped shouldn’t have been admitted into evidence, however, once admitted, the same cannot be relied upon to contest the validity of the arbitral award.
The Delhi High Court expounded that the Court cannot re-appreciate the evidence and re-adjudicate the disputes. The award can only be set aside if it is in conflict with the public police of India or vitiated by patent illegality.
The High Court ruled that the Tribunal had committed an error by not addressing the real dispute which was whether NHAI was in material default of the Concession Agreement or not. Therefore, it was held that the award is in fact vitiated by patent illegality and hence, must be set aside.
The Delhi High Court expounded that in case where appointment has to be from a panel, it is essential that the panel is broad-based and as per the principles laid down in Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation Ltd. 2017 4 SCC 665 (“Voestalpine”).
Another prerequisite is that the right of one party to provide a panel of persons is counter balanced from the right of the other party to choose from such panel.
It was further clarified that in a situation where the party has the right to choose an arbitrator from a panel and remaining arbitrators are to be appointed by the other party, the same does not fall under the ambit of counter-balancing.
In the present case, the Respondent had the right to appoint 2/3 of the arbitrators, hence, the same was found to be impermissible in law.
The Delhi High Court recently clarified the scope and applicability of Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act), which empowers the court to extend the time for concluding arbitral proceedings. In a significant judgment delivered by Justice Sachin Datta, the court emphasized that the primary concern under Section 29A is to determine whether the arbitrator has conducted the proceedings with expedition. Any issues related to the conduct of arbitration or the fees charged by the arbitral tribunal are not within the purview of this provision.
The Calcutta High Court disposed of a writ petition seeking the appointment of arbitral tribunals under sections 14 and 15 of The Arbitration and Conciliation Act, 1996. The Court observed that once the Court intervenes in the matter of appointment and the arbitration is set in motion, the parties must revert to the Court in all subsequent interruptions in that process.
Recently, the Delhi High Court addressed the issue of the admissibility of an agreement with an arbitration clause that lacked proper sealing. The court clarified that once the arbitrator has accepted the agreement and based an award on it, the award cannot be set aside solely on the grounds of insufficient or improper sealing. The court cited the Supreme Court's decision in M/s NN Global Mercantile Pvt. Ltd. v. M/s Indo Unique Flame Ltd. & Ors., affirming the principle.
- CIVIL LAW
The Orissa High Court dismissed a writ petition seeking repatriation of the amount along with compensation which was issued as a garnishee order to his banker under Section 45 G of the Employees’ State Insurance Act, 1948 and observed that Section 45 G(iv) obviated the necessity of the bank from obtaining instructions to encash prematurely the fixed deposits, for payment in compliance of the garnishee order.
The Tripura High Court allowed the petition seeking time for filing of written statements and held that the period prescribed under Order 8 Rule 1 and the proviso thereto read with Order 8 Rule 10 is not mandatory but discretionary and the rule in question being one of procedure was made to advance justice and not defeat it and the case had not progressed to a stage where the plaintiff would be put to irrevocable position if the defendants were allowed the opportunity to file the written statement.
The Calcutta High Court allowed a Revision Application contesting the order passed by the learned Civil Judge (Junior Division) vide which it allowed the application filed by the defendant for the amendment of the plaint. The Court observed that Proviso appended to Order VI, Rule 17 of the Code puts an embargo on the exercise of the Court’s jurisdiction unless the case of “due diligence” is raised and established.
The Calcutta High Court allowed a revision application filed challenging an order passed by the learned Civil Judge (Senior Division) vide which an application for amendment of the written statement filed by the added defendant no.4 was rejected by the Learned Judge. The Court observed that all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side.
A single bench comprising Justice Sunil Dutta Mishra of the Patna High Court in the case of Saroj Kumar Singh Vs Most. Malti Kuer held that an unregistered agreement to sale is not admissible in the evidence.
- CONSTITUTIONAL LAW
The Division Bench of the Delhi High Court in the case of Mamta Rani vs Government of NCT of Delhi & Anr. consisting of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad held that traffic control is the sole domain of the Traffic Police. Courts do not run the country and it is up to the administration to take decisions for smooth functioning of the Government.
The Jharkhand High Court directed the state government to pay a compensation of Rs 5 lakh to the widow of the deceased, who died in police custody and observed that compensation is mandatory in cases of custodial death and award of compensation is a remedy available under public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply.
The Jharkhand High Court dismissed the petition seeking appointments for unfulfilled posts and held that even a candidate who secured a spot in the merit list cannot claim to have a right in law to seek an appointment unless it is shown to the Court that the decision of the employer not to make an appointment is arbitrary and without any justifiable reason
The Punjab and Haryana High Court granted bail to the PA of former minister Bharat Bhushan Ashu Kumar, accused in the Food Grain Scam and observed that the possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.
The Orissa High Court quashed criminal proceedings against the petitioner in respect to Section 376(2)(n) and observed that jurisdiction under Section 482 CrPC is not fettered with any restriction and the power may be invoked to meet extraordinary situations and considering that parties in the present case had already married each other, continuing the proceedings will cause hardship immense inconvenience to the parties.
The Single Bench of the Delhi High Court in the case of Antosh vs State consisting of Justice Swarana Kanta Sharma held that holding the fundamental right of the accused to effective legal assistance cannot be read as ineffective hearing or lack of opportunities to the State.
The Supreme Court has delivered a judgment in an appeal case, modifying the conviction of a bus conductor and sentencing him to six months of imprisonment under Section 338 of the Indian Penal Code (IPC).
The two-judge bench consisting of Justice Abhay S. Oka and Justice Rajesh Bindal held that the offence of attempt to commit culpable homicide not amounting to murder, under Section 308 IPC, was not made out due to the absence of intention and knowledge as stipulated by Section 299 IPC.
The Jharkhand High Court quashed proceedings against Additional Collector in connection with denying access to the respondent under the RTI Act and held that the petitioners were protected under Section 197 CrPC as they were discharging their official duty and the order passed by Section 156(3) CrPC suggests that there was non-application of judicial mind.
- IBC
The Calcutta High Court allowed a writ petition filed against the communication made by the bank to the Immigration Authorities, dated August 6, 2021, and the Look Out Circular (LOC) issued in terms thereof in respect of the petitioner. The Court observed that only in exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, and anti-national elements, etc., in the larger national interest.
The NCLAT, New Delhi Bench opined that after a charge was created in favour of the Bank, it was mandatory for the Corporate Debtor to get the consent of the Bank to execute the lease rent agreement.
It was expounded that the suspended board of directors do not have locus standi to file an appeal against the plan’s approval by the committee of creditors.
Regarding the change of business plan due to the resolution plan, it was ruled that the same is permitted under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”). Further, in the present case, the Corporate Debtor was not doing business for many years
The NCLAT, New Delhi expounded that the trigger for Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) is the occurrence of default by the Corporate Debtor. The Bench expounded that it is a basic requirement of the Section that there must be a financial debt owed by the Corporate Debtor to the financial creditor.
- NCLT, Mumbai Bench expounds: Homebuyers can only vote on resolution plan as a class
The NCLT, Mumbai Bench propounded that homebuyers can vote in favour or against the plan only as a class. Therefore, there is no locus standi for some of the home buyers who are otherwise in the minority also to oppose the plan as dissatisfied home buyers.
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- IPR
In a recent ruling, the Delhi High Court clarified the scope of protection provided by the Designs Act. The court emphasized that the Act safeguards ideas that are intended to be applied to physical articles, rather than abstract ideas. It further highlighted that ideas that lack temporal manifestation through an industrial process are not eligible for protection under the Designs Act.
The court drew attention to Section 2(d) of the Act, which requires every "design" to be applied to an article. This provision reinforces the requirement that a design should have a tangible application to a physical object.
Delhi High Court has issued an interim order restraining Wipro Enterprises from manufacturing, selling, or advertising their female intimate wash or any other product under the mark 'EVECARE.' The decision came after Himalaya Wellness Company filed a suit alleging trademark infringement [Himalaya Wellness Company & Ors v Wipro Enterprises Private Limited].
The Delhi High Court has delivered a significant ruling, stating that the Patents Act takes precedence over the Competition Act regarding the exercise of rights by a patent holder. The court's decision came in response to an inquiry conducted by the Competition Commission of India (CCI) against Telefonaktiebolaget LM Ericsson and Monsanto Co. The CCI had alleged that the companies engaged in anti-competitive practices and failed to license their patents reasonably in the fields of telecommunications and agriculture, respectively.
A division bench of the Delhi High Court emphasized that the Patents Act, being a special statute, holds authority over the Competition Act in matters concerning patentees' rights. It ruled that the CCI does not have jurisdiction to inquire into actions by an enterprise that are a result of exercising their rights as a patent holder.
- Delhi High Court Rules TCS International's Software Development Services Not Comparable in ITES Case
The Delhi High Court has ruled that TCS International's Software Development Services cannot be considered comparable in the case because the assessee is engaged in the business of Indian Information Technology-enabled services (ITES) or business process outsourcing (BPO). The court, presided by Justice Rajiv Shakdher and Justice Tara Vitasta Ganju, observed that TCS International primarily provides software development services, which include maintenance and updates of software as per user requirements.
- MATRIMONIAL CASES
- Delhi High Court affirms autonomous status of women, rejecting notion of treating them as adjuncts to their husbands in property cases
The Delhi High Court has recently allowed a woman's plea, affirming her as the sole and absolute owner of a property. Justice Anup Jairam Bhambhani, presiding over a single-judge bench, granted the application moved by the wife under Order VII Rule 11 of the Code of Civil Procedure.
The application sought the rejection of a plaint seeking a decree of permanent injunction to prevent the defendants, including her husband, from creating any third-party rights in a property located in Rajouri Garden, Delhi.
The Bombay High Court has raised concerns about the criminalization of consensual sexual relationships involving minors and called for a shift in approach towards adolescents' sexuality. While acquitting a 25-year-old in a case of consensual sexual relationship with a 17-year-old, the court noted that such cases overburden the judicial system and often result in acquittals. The court emphasized the need to strike a balance between protecting children against sexual abuse and respecting their autonomy.
The Madras High Court recently observed that when a wife initiates litigation only to protect her property rights and her children's custody, the same can never be considered to be a ground for mental cruelty to the husband.
The Karnataka High Court dismissed a writ petition, filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 16/12/2019 passed by the family court and a writ of mandamus or modify the order impugned herein or give directions to modify the order dated 16/12/2019. The Court observed that the objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse.
The Supreme Court has issued a significant ruling stating that a High Court does not have the authority to quash an order passed by a Magistrate under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). The judgment came in response to a challenge against a Madras High Court decision that had quashed an order under Section 14 of the SARFAESI Act using its powers under Section 482 of the Criminal Procedure Code (CrPC).
- TAX RELATED CASES
CESTAT set aside the charges of clandestine removal on the appellant and observed that the same was not sustainable merely based on differences in figures of audit reports and ER-1 return without establishing the parameters of clandestine removal.
The Jharkhand High quashed the criminal proceedings against the petitioner, accused of evading taxes during the 2014 General Elections and observed that once the assessment proceeding has attained its finality with the finding that there was no evasion of tax then continuation of a criminal proceeding under Sections 276 C, 277 and 278E of the IT Act shall be without any foundation.
In a recent ruling, the Supreme Court clarified that the Revenue department cannot recover the refunded cess amount solely because the judgment under which the refund was issued has been overruled. The bench of Justices B.V. Nagarathna and Prashant Kumar Mishra examined Order XLVII Rule 1 and emphasized that once there is a subsequent judgment overruling an earlier judgment on a point of law, the earlier judgment cannot be reopened or reviewed based on the subsequent judgment.
In a recent ruling, the Bombay High Court bench, comprising Justice K.R. Shriram and Justice Firdosh Phiroze Poonawalla, held that it is the Income-tax Officer's responsibility to conduct the required inquiries and draw appropriate conclusions regarding whether the amounts invested in purchasing drafts should be considered as part of the assesses total income for the relevant year. The court further emphasized that the alleged failure to disclose fully and truly all material facts did not result in the income chargeable to tax escaping assessment. The court deemed it a case of oversight on the part of the officer and ruled that the officer cannot utilize Section 147 (a) to rectify the error stemming from their oversight.
In a recent ruling, the Bombay High Court has determined that the State GST (SGST) Department lacks jurisdiction to retain the amount of tax on export transactions. The court directed the state government to transfer the tax amount to the Central Government, following the relevant laws and regulations.
The Jharkhand High Court set aside the order issuing the warrant of arrest against the accused and observed that the processes had been issued post-cognizance and once the summons had been issued, the court can issue a warrant only after receipt of the service report.
The Division Bench of Bombay High Court, comprising Justice K.R. Shriram and Justice Firdosh P. Pooniwalla, recently emphasized the importance of accurately determining the disputed tax. The court noted that the total assessed tax for the relevant year must be calculated, and from that amount, the taxes already paid by the assessee should be deducted. The disputed tax, as per Section 88(f), refers to the total tax determined and payable that remains unpaid on the date of declaration.
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