LatestLaws.com's Monthly Digest (November 2023)
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A. ADMINISTRATIVE LAW
A division bench of the Delhi High Court, comprising Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, has ruled in favour of the respondent teachers from Rao Manohar Singh Memorial Sr. Secondary School. The Court upheld the order of a single bench and directed the reinstatement of the teachers in their respective positions.
The Supreme Court affirmed the ruling of the Delhi High Court, which held that Assistant and Personal Assistants of the Ordnance Factory Board (OFB) Headquarters are entitled to the same pay scale as their counterparts in the Central Secretariat Service (CSS) and equivalent posts in the Armed Force Headquarters Civil Service (AFHCS) Cadre, New Delhi, and other similar cadres.
The Delhi High Court has issued a directive to the Delhi Government, instructing the formation of a High Powered Committee to oversee the implementation of recommendations from the 6th and 7th Central Pay Commission (CPC) pertaining to salary payments and arrears for the staff of private unaided schools and recognized private unaided minority schools in the national capital. Justice Chandra Dhari Singh emphasized that the Committee should be established at both Central and Zonal levels.
The High Court of Jharkhand dismissed a petition seeking the benefit of sports quota for the post of Civil Judge and held that the essential qualifications for appointment to a post are for the employer to decide and the employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work.
The Karnataka High Court allowed an appeal filed u/s 4 of the Karnataka High Court Act, praying to allow the instant writ appeal and thereby set aside the impugned order dated 14/03/2023 passed by the Learned Single Judge. The Court observed that when the recruiting entity is an instrumentality of the State under Article 12, the persons in the fray have a fundamental right to have their candidature considered vide Article 16 of the Constitution.
The Allahabad High Court delved into the classification of a medical representative as a "workman" under the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the 1947 Act’) and ascertained that "after coming into force of Sales Promotion Employees (conditions of service) Act, 1976 (hereinafter referred to as ‘the 1976 Act’) the medical representatives would be deemed to be workmen as per the provisions of Industrial Disputes act." The Court, in affirming the judgment of the Labour Court, Lucknow, conclusively determined that the allegations leading to the dismissal of a medical representative were unsubstantiated.
B. ARBITRATION CASES
The Delhi High Court in a bench, presided over by Justice Sachin Datta, underlined that the essence of Section 29A of the Arbitration and Conciliation Act (A&C Act) is not to constrain the parties or the court from extending the period when it is justified, merely because the petition under Section 29A(4) of the A&C Act was filed a few days after the expiry of the deadline prescribed under Section 29A(1) or Section 29A(3) of the A&C Act.
2. Delhi High Court opines: Unilateral appointment of an arbitrator renders the award null
In a recent judgment, Delhi High Cour reiterated that a party involved in a dispute cannot unilaterally appoint an arbitrator. The Division Bench, comprising Justices Sanjeev Sachdeva and Manoj Jain, emphasized that an award resulting from such a unilateral appointment would be considered a nullity.
A Division Bench of the Delhi High Court recently allowed the restoration of an arbitral award, asserting that the Single Judge, acting under Section 34 of the Arbitration and Conciliation Act (A&C Act), exceeded the permissible scope by reinterpreting the contractual terms between the parties and substituting the findings of the arbitrator, despite the arbitrator's conclusions being plausible and well-reasoned.
The Calcutta High Court allowed an application for extension of mandate of an arbitrator after calling the respondent a “slumbering litigant who also made calculated moves to frustrate the arbitration.” The Court highlighted that “Section 29A underlines the distinction between an indifferent litigant who allows the mandate to terminate and a vigilant litigant who makes its best effort to meet the timelines but is caught in the games played by the opponent.”
The High Court of Jharkhand dismissed a petition of the petitioner, appointed as an arbitrator seeking payment of fees after his fees were not charged as per the fourth schedule and held that fees and expenses of the arbitral proceeding are to be fixed keeping into account the principles contained in Fourth Schedule under section 11(4) of the Arbitration and Conciliation Act, 1996 and thus it was not open to the arbitrator to enhance and fix his arbitral fees in excess of what is provided under the fourth schedule.
The Delhi High Court declined to grant an unconditional stay on an arbitral award in a matter where Italian Thai Development sought an unconditional stay under Section 36(3) of the Arbitration and Conciliation Act (hereinafter referred to as ‘the Arbitration Act’). The Court held that an unconditional stay on an award under Section 36(3) of the Arbitration Act cannot be granted unless a prima facie case is established, indicating that the award's creation is tainted by fraud.
The Delhi High Court dismissed a petition to quash a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act') stating that the pendency of the arbitration proceedings does not affect the proceedings under Section 138 of the NI Act.
The Delhi High Court dismissed a petition filed by the decree holder where they sought to execute the outstanding parts of an award which were not covered in the first execution petition. The Court held that “in execution proceedings, the court cannot go behind the award and enable decree holder to fill in the gaps by producing evidence to quantify costs.”
C. CIVIL CASES
Recently, the Supreme Court bench comprising the Chief Justice of India DY Chandrachud, Justices JB Pardiwala, and Manoj Misra understood the importance of interpreting commercial contracts following the original intent of the parties involved. Furthermore, it has expressed the view that a departure from the straightforward terms of the contract is justified only when it enhances business efficacy.
The Supreme Court has held that immovable property rights cannot be transferred on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The case revolved around a dispute over possession and mesne profits, with the appellant asserting ownership based on an oral gift (Hiba) from his brother.
The Jharkhand High Court has taken a stance that the inherent power of the High Court under Article 226 of the Constitution of India and under Section 482 of Cr.P.C can be exercised in a case where abuse of process of law is made out and where it appears to the Court that the offence in question, although covered under the SC/ST Act, is primarily civil or private where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings.
The division judge bench of the Patna High Court held that the mere breach of contract cannot give rise to criminal prosecution for cheating unless the fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.
D. CONSTITUTIONAL LAW
The Delhi High Court granted a 96-year-old freedom fighter's plea for the grant of the 'Swatantrata Sainik Samman Pension' and ordered the respondents to provide his pending pension which had been pending since 1980.
2. Delhi High Court clarifies the discretionary nature of penalties under Section 20 of the RTI Act
The Delhi High Court while considering two Writ Petitions regarding the interpretation of Section 20 of the Right to Information Act, 2005 (“hereinafter referred to as the RTI Act”) held that Section 20 of the RTI Act allowed for discretion in determining the penalty amount, considering the specific facts and reasons for the delay in providing information.
The Bombay High Court dismissed a writ petition upholding the election of the respondent as Sarpanch as it found insufficient evidence to support the petitioner's claim that the result of the election was materially affected by the defect in the Electronic Voting Machine. The petitioner in this case had filed a writ petition seeking to set aside the election of the respondent as Sarpanch and requested an inquiry into the discrepancy in the number of votes polled and counted.
The High Court of Kerala bench comprising the Hon’ble N. Nagaresh stated that in a dispute related to the election of the Managing Committee of any Society when in question under the Co-operative Society Act, the Petitioner should not seek remedy under extraordinary jurisdiction of Section 226 of the Indian Constitution.
In a recent judgment, the Delhi High Court asserted the limitations of a writ court in resolving intricate boundary disputes requiring in-depth examinations of documents, surveys, maps, and a ground study of areas. The division bench, comprising Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, emphasized that such complex tasks are best suited for the expertise and jurisdiction of statutory authorities established under relevant land statutes enacted by the State legislature.
The Supreme Court reviewed a petition filed for the amendment of the Gender Sensitization and Sexual Harassment Regulations of 2013 to extend protection to LGBTQIA+ individuals facing sexual harassment at the workplace.
In a recent development, a Division Bench of the Delhi High Court, comprising Chief Justice Satish Chandra Sharma and Justice Tushar Rao Gedela, dismissed an appeal filed against the Central Board of Secondary Education. The court, in its decision dated November 1, 2023, highlighted the principle of forum conveniens and emphasized that the appellant's grievance was not directly attributable to the Respondent, despite its headquarters being in Delhi.
The Delhi High Court, in response to a petition filed on its own motion, has issued a series of detailed guidelines for the functioning of the Child Safety Monitoring Committee (CSMC). The Committee, established pursuant to a Court order dated September 27, 2023, was tasked with overseeing the implementation of safety standards in schools in the National Capital Territory of Delhi (GNCTD).
The Delhi High Court opined that the Authority has to satisfy itself there is nexus/casual connection of disablement/death with Government service on the basis of medical and other documents produced by the employee.
In the present case, it was noted that the Petitioner suffered injury during employment, however, merely because of this, it cannot be said that the injury is attributable or stands aggravated by the service conditions. The emphasis was laid on cogent evidence being produced in this regard.
The Bench ruled that the burden had to be discharged by establishing that the onset of disease bore a causal connection with the injury due to bull hit in 1984 and further the service conditions aggravated the same.
E. CRIMINAL CASES
The Supreme Court in its recent judgment altered the conviction of an appellant from Section 302 of the Indian Penal Code (IPC) to Section 304, which also resulted in a reduced sentence. The decision was based on the Court's observation that the "prosecution has failed to prove beyond reasonable doubt that the unlawful assembly had an intention to cause the death of the deceased."
The Supreme Court, in its recent judgment, dealt with the question of evidentiary proof to be presented in a case of sexual harassment at the workplace by a government official. The Supreme Court stated that in cases where a defence of false implication for ulterior motives is raised, the courts are obligated to conduct a thorough examination of any evidence to determine the credibility of the allegations, ensuring that genuine claims are distinguished from baseless ones.
The Supreme Court has held that a delay in producing a certificate under Section 65-B of The Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’) in a criminal trial was not a valid reason to deny its admission as evidence. The Court emphasized that fair trial means upholding the truth and that permitting the prosecution to produce the certificate at a later stage would not cause irreversible prejudice to the case of the accused.
In a recent judgment, Justice Amit Bansal of the Delhi High Court upheld the summoning orders passed in a complaint case under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The court emphasized that at the stage of issuing summons, the Metropolitan Magistrate (MM) need not delve into the evidence but should focus on whether the basic ingredients of the offence have been prima facie made out by the complainant and supported by pre-summoning evidence.
In a recent development in the Delhi High Court, Justice Saurabh Banerjee granted anticipatory bail to a government school teacher facing charges under Sections 328, 376, and 506 of the Indian Penal Code (hereinafter referred to as “IPC”) emphasized that an accused, once granted bail, is expected not only to join the investigation but also to actively participate in it.
The Supreme Court of India upheld the conviction and life sentence of appellants involved in a deadly conspiracy related to liquor poisoning. The Court, in its judgment, relied on the landmark case of State through Superintendent of Police v. Nalini establishing the essential elements required to prove a case of criminal conspiracy. The Court reiterated the principle that all conspirators are liable for offences committed individually, emphasizing the joint responsibility even if some haven't actively participated in the commission of those offences.
A division bench of the Patna High Court held that a statement under Section 164 of the Cr.P.C. can be used for corroboration or contradiction, but cannot be a sole basis for conviction. An appeal was filed against the judgment of conviction under Section 376(2)(f), 377 of the Indian Penal Code (IPC) and Section 4 of the POCSO Act.
The Patna High Court held that as per Section 34(2) of the POCSO Act, the age of the victim must be determined by the trial court. The victim had stated that she had studied up to 7th standard but no effort was made by the learned trial court to ascertain the age of the victim on the basis of educational certificates as required under Section 94 of the Juvenile Justice Act.
The High Court of Jharkhand while allowing an application under Section 205 CrPC held that the purpose of exemption under Section 205 Cr. P.C is that the order of the learned Magistrate should be such that which does not make any unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant and in the present case, the petitioners are responsible persons who are ready to give undertaking that the trial will not hamper in their absence.
10. Supreme Court rules that recovery Of A Weapon From An Open Place Accessible To All Not Reliable
The Hon’ble Supreme Court ruled that dying declaration must be free from tutoring, prompting, or not be a product of imagination.
Then in relation to the testimony of an eye witness, it was observed that for credibility, such testimony should be of sterling quality.
Therefore, the Bench held that the dying declaration could not be relied upon as there were mysteries around it, further no eye witness was successful in attributing role to the Accused.
The High Court of Jharkhand granted bail to a juvenile accused under the POCSO Act and held that the petitioner came within the definition of ‘child’ and ‘child in conflict with law’ and thus the bail application in the present case would be governed by Section 12 of the JJ Act and further the allegations made in the FIR have not to be corroborated by medical evidence and there is nothing is on record to show that the release of the petitioner on bail would expose him to physical, psychological or moral danger or defeat the ends of justice.
F. FAMILY LAW CASES
The Supreme Court in a recent judgment while presiding over an appeal of Madhya Pradesh High Court judgment noted that there was a pervasive disregard for the guidelines outlined in the 2021 judgment of Rajnesh v. Neha and issued a direction for a copy of the judgment containing guidelines for expeditious disposal of cases involving grant of maintenance, to be re-circulated to judicial officers in all High Courts across the country.
The Orissa High Court, in the adjudication of an appeal filed by the appellant, partly allowed it by acquitting the appellant under Section 304-B of the Indian Penal Code (IPC). The Court's decision was based on insufficiency of evidence establishing a link between cruelty and demand for dowry.
In a recent ruling, the Delhi High Court highlighted the need for careful examination of wills in cases where cuttings and overwriting are present, stating that suspicion regarding the authenticity of a will arises only when substantial changes are introduced through such alterations.
The Supreme Court in a recent ruling highlighted the crucial importance of adhering strictly to Section 69 of the Indian Evidence Act (hereinafter referred to as ‘the Act’) when proving the authenticity of a will in cases where attesting witnesses cannot be found. The Apex Court noted that wills can't be proved as per Section 69 of the Act by a random witness saying he saw attesting witness signing it.
The Delhi High Court highlighted the gender-neutral nature of maintenance provisions under the Hindu Marriage Act (HMA). The division bench comprising Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta delivered the verdict in response to an appeal challenging a family court order
The Hon’ble Patna High Court opined that once it has been claimed that the marriage was not done as per free will and subsequently a case was also registered, the onus to prove that the marriage was valid shifts.
It was further opined that if ‘saptapadi’ has not been completed, the marriage would not be considered to be complete and binding. It is only when rites and ceremonies including Saptapadi are performed that the marriage becomes complete and binding.
The High Court of Punjab and Haryana dismissed a petition filed by a couple in a live-in relationship seeking police protection and held that the petitioner was staying with another woman without obtaining a divorce from his wife which may constitute an offence punishable under Sections 494/495 of the IPC, as such a relationship does not fall within the phrase of ‘live-in relationship’ or ‘relationship’ in the nature of marriage.
G. INSOLVENCY AND BANKRUPTCY CODE, 2016
The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi held that when a matter is reserved for orders, there is no scope for entertaining application from parties to re-hear the matter. The Tribunal stated that "it is a well settled proposition of law that the two stages of reserving of judgment and pronouncement of judgment are in a continuum with no hiatus or gap as such in the two stages."
2. NCLAT, New Delhi rules that Successful Auction Purchaser can pursue avoidance application
The NCLAT, New Delhi Bench opined that Resolution Applicant can pursue the avoidance application. It was unequivocally held that the Successful Resolution Applicant can be allowed to prosecute the avoidance application, the same analogy shall be applicable with regard to prosecution by the Successful Auction Purchaser in liquidation estate when the asset of the corporate debtor has been sold as a going concern and acquisition plan submitted by Successful Auction Purchaser has been approved by the Tribunal.
The NCLAT, New Delhi Bench opined that Section 42 of the Companies Act, 2013 is enabling provision which empowers the company to make a private placement of securities. Under Section 42(3), Companies making private placement shall issue private placement offer and application in such form and manner as may be prescribed to identified persons.
In the present case, there was no evidence to prove that the amount was in pursuance of the offer of private placement. However, it was observed that any e- mail that amount shall be adjusted subsequently can in no manner effect the debt so long as it remains due. It does not mean that the debt was paid and liquidated.
The NCLAT, New Delhi Bench opined that reason that Corporate Debtor or its Bankers were unable to obtain permission for remittance of amount overseas, could not be made a reason to hold that no default is committed.
In the present case, Corporate Debtor has time and again acknowledged the debt.
It was noted that the the default has been committed by the Corporate Debtor, which was an admitted fact and repeated acknowledgment by the Corporate Debtor and promises to make the payments were in vain.
The NCLT, Mumbai Bench opined that if an individual claim of each of the Operational Creditor, the amount of debt is less than rupees one lakh (as the threshold limit was at that time), it can be rejected being not maintainable.
The NCLAT, New Delhi Bench opined that a related cannot be allowed to participate in CoC’s voting share.
In the present case, it was noted that the resolution plan was approved by homebuyer as a class. Appellant therefore becomes a minority of that class and hence, could not be allowed to challenge the Resolution Plan which has received approval of class of homebuyers on the basis of majority of votes of homebuyers.
The Bench further ruled that commercial wisdom of the Committee of Creditors, which has approved the Resolution Plan under which different treatment has been given to ‘Affected Homebuyers’ and ‘Unaffected Homebuyers’, cannot be faulted.
H. INTELLECTUAL PROPERTY RIGHTS
In a recent judgment, the Delhi High Court clarified that its Intellectual Property Rights Division Rules, 2022, do not prohibit the filing of additional documents after the respondent submits a reply or counter-statement to a rectification petition. The ruling came in response to applications filed by Respondent 1, E! Entertainment Television, LLC, seeking to introduce a YouTube video clip as evidence in support of its trading style dating back to the early 1990s.
2. Delhi High Court restrains a Kerala-based furniture store from using the “IKEA” mark
Recently, the Delhi High Court presided over by Hon’ble Mrs. Justice Prathiba M Singh, issued a significant injunction against Kerala-based furniture store "IKEA Luxury Furniture" in response to a trademark infringement suit filed by multinational furniture giant Inter IKEA Systems BV.
The Delhi High Court, in an effort to curb the dissemination of pirated content on the internet, has locked and suspended sixty-one ‘rogue websites’ which were unlawfully disseminating and communicating a large quantum of copyrighted content of the Universal Studios, Warner Bros., Columbia Pictures, Netflix, Paramount Pictures, and Disney.
The Delhi High Court weighed in on the issue of transparency in trademark procedures, emphasizing the necessity for accessibility to brief orders. The Court, led by Justice Prathiba M Singh, heard the case of Laxmi Kohlu Ghar, a petitioner seeking directions from the Trade Mark Registry regarding the prosecution of trademark applications and compliance with court-issued directives. The Court noted that a concise order, required when directing the advertisement before accepting a mark, should be accessible on the online portal of the Trade Marks Registry for litigants to refer to.
I. NEGOTIABLE INSTRUMENTS ACT
1. Bombay High Court rejects ‘ink-age test’ in cheque dishonour case due to lack of scientific method
The Bombay High Court set aside a decision by the Sessions Court that allowed an ink-age test in a cheque dishonour case. Justice Anil L. Pansare of the Nagpur bench, while hearing a writ petition challenging the sessions court order, emphasized that there is no scientific method available to accurately determine the age of ink in a document.
The Karnataka High Court allowed an appeal filed u/s 378(1) and (3) of Cr. P.C., praying to set aside the judgment and order dated 03-02-2017 passed on the file of the Additional City Civil and Sessions Judge and thereby confirming the judgment dated 16-09-2016 passed by Additional Chief Metropolitan Magistrate. The Court observed that there must be some cogent evidence that is required to be produced either oral or documentary. In the absence of cogent evidence, it cannot be construed that the presumption has been rebutted.
J. TAX RELATED CASES
The Bombay High Court ruled against the reopening of a tax assessment related to the sale of a plot of a real estate company stating that the reopening was impermissible as it amounted to a 'change of opinion,' which is not allowed under the law.
In the recent judgment, the Delhi High Court held that the Assessing Officer (AO) lacked concrete evidence on record to substantiate the formation of a belief that income, otherwise subject to taxation, had evaded assessment. Justices Rajiv Shakdher and Girish Kathpalia presiding over the bench observed a lack of diligence on the part of the AO when initiating reassessment proceedings against the petitioner or assessee.
In a recent decision, the Delhi High Court, comprising Justice Rajiv Shakdher and Justice Girish Kathpalia held that the cash seized during a search action under Section 132 of the Income Tax Act, 1961 (hereinafter referred to as ‘the ITA’), should be treated as advance tax and not as self-assessment tax, as determined by the revenue authorities.
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