LatestLaws.com's Monthly Digest (September 2023)
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A. ADMINISTRATIVE LAW
The Jharkhand High Court dismissed a petition seeking appointment under the Scheme of Rehabilitation and held that public employment is not a largesse and Articles 14 and 16 of the constitution have to be strictly followed in filling up posts under Government and public employment cannot be distributed on the mere wish of any person without there being any backing of the law and no appointment can be granted to any person or victim of a crime in the absence of any law.
The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, seeking certain reliefs. The Court observed that once the Labour Court holds the domestic enquiry as fair and proper and further the finding of the enquiry officer holding the workman guilty of misconduct, the Labour Court ought to have confirmed the order of punishment instead of assigning other reasons.
The High Court of Jharkhand quashed proceedings against the petitioner filed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and stated that the special law of SC/ST Act has been enacted to protect the interest of the marginalized section of the Society and it is not intended to be used as an instrument of persecution to settle scores and the present case was that of malicious prosecution and would lead to an abuse of process of court if permitted to continue.
The Delhi High Court opined that in case the disciplinary authority agrees with the report of the Enquiry Officer, it is not supposed to cut and paste the reasonings. It is sufficient if the Disciplinary Authority states that it is in agreement with the finding of the Enquiry Officer.
The Punjab and Haryana High Court directed the respondents to sympathetically reconsider the case of a BSF constable who was struck off from service for not being able to complete basic training because he was declared 'unfit' and held that a person, after joining service may become incompetent while on duty on account of reasons beyond his control and in such circumstances, it cannot be concluded that a person who has fulfilled all the required parameters at the time of recruitment should be weeded out.
The High Court of Jharkhand quashed proceedings against the petitioner under Sections 353, 504, 506 and 34 of the I.P.C and section 3(x) of the SC/ST Act and held that the expression “place within public view” should not be confused with the expression “public place” and a place can be a private place but yet within the public view.
The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, seeking certain reliefs. The Court observed that if a person is gainfully employed, the question of reinstatement does not arise.
B. ARBITRATION CASES
The Calcutta High Court dismissed an application for termination of the Arbitrator’s mandate under Section 14 of the Arbitration Act, 1996. The Court observed that the petitioner’s written acceptance of the Arbitrator with full knowledge of the Arbitrator’s previous association with the respondent satisfies the threshold test of the proviso to Section 12(5) of the Act.
In an application filed under section 34 of the Arbitration and Conciliation Act, 1996 the court noted that section 14 of the Limitation Act would be applicable when the proceedings instituted in the wrong forum were within the period of limitation, and the mandatory conditions of bonafide mistake and due diligence were fulfilled.
The Calcutta High Court allowed an application filed under S. 11 of the Arbitration and Conciliation Act, and appointed an arbitrator, rejecting the respondent’s claim that the arbitration agreement no longer exists because the earlier contract is novated/substituted by the petitioner the petitioner by a second contract with a third party/Ramesh Agarwal.
The Calcutta High Court dismissed an application filed under section 9 of The Arbitration and Conciliation Act, 1996 for an injunction restraining respondent no. 1 Bharat Heavy Electricals Limited (BHEL), from invoking and encashing the performance bank guarantee issued by respondent no. 2 Punjab and Sind Bank and the modified performance bank guarantee of 7th April 2021 and 8th March 2022 respectively. The Court, while interpreting an arbitration clause where the Work Order specifies that the seat of arbitration shall be Kolkata but clarifies in brackets that the seat will be the place from where the contract is issued, said that the intention of the parties has to be given due weightage.
The Allahabad High Court in a landmark judgment held that The Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘The Act’) does not prohibit Courts from applying the doctrine of severability to an arbitral award when assessing objections under Section 34 of The Act.
This case centres on the arbitration of disputes stemming from the HSCL-NOIDA contract. The Commercial Court's decision to set aside the Arbitral Award prompted an appeal, filed under relevant sections of the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts Act, 2015, and The Act.
In a recent judgment, the Delhi High Court upheld an arbitral award in the case of National Highways Authority of India (NHAI) vs. D S Toll Roads Pvt. Ltd. It reiterated the principle that arbitration awards are generally final, and courts should not interfere with them unless there are compelling reasons to do so.
C. CIVIL LAW CASES
The single judge bench of Justice Sunil Dutt Mishra of the Patna High Court in the case of Shri Giridhar Gopal vs. Smt. Ramavati Devi held that the Court can add anyone as a plaintiff or defendant if it finds that he is a necessary party or proper party for adjudicating upon the issue involved in the suit. Merely because the plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded.
The Karnataka High Court allowed a writ petition filed under Article 227 of the Constitution of India, praying to quash the impugned order dated 06.11.2021 in respect of the application passed by the trial court and to allow the impleading application. The Court observed that the petitioners are also claiming certain rights over the immovable properties which are subject matter of the present suit and for complete adjudication of the suit, petitioners herein are necessary parties in the present suit.
The High Court of Jharkhand quashed criminal proceedings against the petitioner in a case registered under Sections 406, 420, 379 and 120B of the IPC and held that the opposite party was unnecessarily dragging the matter and if any case is made out against the petitioners i.e. civil in nature and mere breach of contract and in every case, criminality cannot be fastened upon the accused persons.
The High Court of Jharkhand directed the Registrar of Firms to register the firm of the petitioner after it was rejected due to its suffix and held that there was no reference that Company or Co. suffix cannot be used in a firm name under section 58 of the Partnership Act and what can be used is Ltd., or Pvt. Ltd. which specifically pertains to the name of a Company, but no such caveat is with respect to a firm name.
The Karnataka High Court disposed of a writ petition filed under Article 227 of the Constitution of India, praying to call for records in the case on the file of Senior Civil Judge and JMFC and peruse the same and set aside/quash the order dated 21.11.2019 passed on the application in the case on the file of Senior Civil Judge and JMFC. The Court observed that no ground is made out to interfere with the order passed by the trial Judge rejecting the amendment application filed by the petitioner decree holder.
The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 18.06.2020 passed on the application filed by the plaintiff under Order XI Rule 16 r/w section 151 of the code of civil procedure made on the file of the Additional City Civil and Sessions Judge and dismiss the said application. The Court observed that the defendants/petitioners herein said that they had lost their original GPA and have also produced acknowledgement for having filed a police complaint in that regard.
D. CONSTITUTIONAL LAW
The Bombay High Court has expounded that the scope of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities Act), 1989 cannot be restricted to a person belonging to a Scheduled Caste or Scheduled Tribe to the State or Union Territory in which he is declared as Scheduled Caste or Scheduled Tribe only, but he is also entitled to the protection under the Act, in any other part of the country, where the offence is committed, though he is not recognized as Scheduled Caste or Scheduled Tribe in that part.
2. Patna High Court Opines: Adjudication is made by Judgment and not by Decree
The single judge bench of Justice Sunil Dutta Mishra of the Patna High Court in the case of Ram Kripal Singh Vs Ram Sharan Prasad Singh held that in case of discrepancy between the judgment and the decree, the executing Court cannot go behind the decree, and the party aggrieved must seek amendment of the decree.
In a groundbreaking decision, the Supreme Court of India reiterated that when a law is declared unconstitutional on the grounds of infringing fundamental rights guaranteed under Part III of the Constitution, it is rendered void ab initio, with no legal standing from the date of its enactment. This crucial ruling was delivered by a constitution bench composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari.
The Calcutta High Court allowed an application for review of a judgment delivered by the Court on 26.6.2023 which was passed in an application for appointment of an arbitrator under section 11 of the Arbitration and Conciliation Act, 1996. The Court observed that the High Court, in the exercise of its plenary powers, cannot be fettered by the limitations of the 1996 Act in respect of review or be hemmed in by the strictures of Order XLVII Rule 1 of the Code of Civil Procedure at the stage of allowing the application to enter through the gates.
The High Court of Jammu & Kashmir allowed a petition of a detained individual challenging the detention order and ruled that the non-supply of relevant material had prevented the detained person from making an effective and purposeful representation, which constitutes a violation of his constitutional right as Article 22(5) provides him the right to be communicated about the grounds of detention.
A division bench comprising Justice Partha Sarthy and K. Vinod Chandran of the Patna High Court in the case of M/s Magadh Sugar and Cenergy Ltd vs. the Union of India held that the retrospective operation is only for one financial year and the beneficial, welfare legislation cannot be termed to be unduly oppressive or confiscatory. Thus, the provisions of the Payment of Bonus Amending Act, 2015 cannot be said to be either unreasonable or such that it creates an unforeseeable financial burden for the past period.
E. CRIMINAL LAW CASES
The division judge bench of Justice Sudhir Singh and Justice Chandra Prakash Singh of the Patna High Court in the case of Girja Chaudhary vs. The state of Bihar held that failure on the part of the accused in not giving any response or explanation in regard to Section 106 of the Indian Evidence Act becomes an additional link in the chain of events.
The High Court of Jharkhand quashed proceedings against a medical practitioner accused under Section 304A and held that preliminary enquiry with regard to said negligence is a must in a case of medical negligence and a private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence and vicarious liability cannot be fastened upon the petitioner as in the solemn affirmation and the complaint petition, there is no direct allegation against the petitioner.
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3. 'Intention' and 'Knowledge' significant in deciding Murder Case: SC converts conviction to Culpable Homicide in Love Affair-Related Case
In a recent judgment, the Supreme Court altered the conviction of an ex-lover charged for Murder to that of Culpable Homicide relying on the significance of 'Intention' and 'Knowledge' in determining the nature of the offence.
The Division Bench of Justice S. Ravindra Bhatt and Justice Arvinda Kumar allowed the appeal filed against impugned judgment of Madras High Court and the conviction of the appellant under 302 was altered/converted to one under Section 304 part II of the Indian Penal Code.
The Jammu and Kashmir High Court has ruled that sending a complaint to the Police via WhatsApp amounts to substantial compliance with Section 154 (1) and 154 (3) Cr.PC and thereby sufficient for initiation of an FIR.
A single-judge bench of Justice Javed Iqbal Wani in this view dismissed a petition filed under under Section 482 Cr.PC seeking quashing of complaint filed by the respondent which was sent to the Police in WhatsApp messages.
The High Court of Punjab and Haryana at Chandigarh has held that statutory bail once granted cannot be cancelled just because the FSL Report has been filed with the chargesheet subsequently.
A single-judge bench of Justice Deepak Gupta provided clarity on the circumstances under which default bail can be cancelled and ensured that the administration of justice is not frustrated while safeguarding an accused person's rights under Section 167(2) CrPC.
The Single Judge Bench of Justice Anil Kumar Sinha of the Patna High Court held that any order passed under Section 408 of the Code of Criminal Procedure, 1973 is not appealable.
The division judge bench of Justice Sudhir Singh and Justice Chandra Prakash Singh of the Patna High Court observed that the examination of the accused under section 313 of Cr.P.C. should not be held in a perfunctory manner.
HC Bench also observed that mere non-examination of the Investigating Officer would not entail any benefit to the accused unless it is shown that such non-examination has caused prejudice to the case of the accused.
F. FAMILY LAW CASES
The single judge bench of Justice Sunil Dutta Mishra of the Patna High Court in the case of Rohitash Kumar vs. the state of Bihar held that to establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.
In an important ruling, the Madras High Court has addressed a crucial question regarding property settlements made by parents in favor of their children and has stated the parents can take back the property if their children fail to care for them as promised.
The single-judge bench of Justice S M Subramaniam in this view dismissed the writ petition filed by a son who was contesting the validity of the Settlement Deed being executed based on the love and affection of parents.
"Parents can unilaterally cancel the settlement deed if there is just a mention that it is being given to them out of love and affection," the court said.
The High Court of Jharkhand upheld the conviction of the accused under Section 498A of the IPC after he refused to get her treated after she was diagnosed with cancer and held that the non-providing of proper medical aid to one’s wife to enforce the demand of dowry will come within the definition of cruelty as enunciated under Section 498A of the IPC.
The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, praying to call for the records of application dated 29.08.2023 from the R3 to quash the impugned endorsement dated 01.09.2023. The Court observed that there is no particular requirement for a woman after marriage to use the name of her husband, she is always entitled to use her maiden name, showing the name of her father.
The Punjab and Haryana High Court imposed a fine of Rs 2500 on petitioners, married individuals in a live-in relationship with each other and held that married individuals cannot enter live-in relationships with others during the subsistence of their marriage and the present petition was an abuse of process of law to cover up the illicit relationship of the petitioners on being caught and there was no threat perception as such.
G. IBC CASES
The NCLAT, New Delhi Bench that the avoidance application has to be decided by the NCLT, which shall not affect the proceedings of the CIRP. Further, the PUFE Applications are different proceedings. It was ruled that the NCLT is well within the jurisdiction to consider both the Resolution Plan Approval Application as well as PUFE Application, but it erred in observing that the consideration of Plan Approval Application has to be deferred and can be taken only after PUFE Applications are decided.
The Hon’ble Supreme Court noted that the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) is a time-bound procedure. It was observed that the Appellant had a delay of 287 days. It should have been on the Appellant to find out whether the Corporate Debtor was undergoing CIRP.
It was opined that Section 15 of the IBC and Regulation 6 of the IBBI Regulations mandate a public announcement of the CIRP through newspapers. This would constitute deemed knowledge on the Appellant. In any case, their plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party.
3. NCLAT, New Delhi expounds: Not necessary to share all information with the shareholders
The NCLAT, New Delhi Bench opined that the scheme of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”). does not indicate that all information collected by the Resolution Professional has to be shared with Shareholders who asks for the information.
Further, In the present case, the NCLT on an application under Section 60(5) has issued direction to the Resolution Professional to file the documents in a sealed cover without e-filing. Under the NCLT Rules, 2016, the Adjudicating Authority under Rule 43 is empowered to call for any information or evidence.
The NCLAT, Chennai Bench opined that Performance of Bank Guarantee, is excluded from the definition Section of 3 (31) of the IBC. Therefore, it was ruled that the Performance Bank Guarantee does not fall under Moratorium, in terms of Section 14 of the IBC.
It was expounded that the Bank Guarantee is neither an Asset nor a Liability of a Company and hence, the invocation of the Bank guarantees by the Respondent No.1 were held to be valid as the same were pursuant to the Transmission Agreement.
The NCLAT, New Delhi Bench opined that the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC) bars initiation of CIRP proceedings when the Corporate Debtor commits any default during the Section 10A period. However, if the default is committed prior to the Section 10A period and continues in the Section 10A period, this statutory provision does not put any bar on the initiation of CIRP proceedings.
It was opined that it was never the intention to cover any default occurring before the period of Section 10A and continuing thereafter.
6. NCLAT, New Delhi Bench expounds: TDS deduction does not extend limitation period
The NCLAT, New Delhi Bench opined that the TDS deduction cannot give any extension to the limitation period.
It was further ruled that even if no defence of limitation was raised, the application barred due to time has to be rejected.
H. IPR CASES
The Delhi High Court has rejected the Trademark Infringement Suit filed by Ivy League School, Princeton University, against a group of Indian educational institutions using 'Princeton' in their names.
The single-judge bench of Justice C Hari Shankar has dismissed the petition filed against Hyderabad-based Vagdevi Educational Society observing that references made in India do not indicate to the US-based institution.
“Reference to Indian students studying at Princeton, howsoever large the number, cannot amount to the plaintiff providing services, in India, under the PRINCETON mark. Opening of centres in the plaintiff institution in the US, dealing with Indian subjects, Indian studies, or Indian cultural activities, too, does not reflect use, by the plaintiff, of the PRINCETON mark in India prior to 1991,” the order stated.
The Delhi High Court granted a restraining order against the unauthorized use of Actor Anil Kapoor’s personality rights. The actor had filed a suit to protect his own name, image, likeness, persona, voice, and several other aspects of his personality from misuse on the internet.
In a recent judgment, the Delhi High Court has brought a long-standing trademark dispute between Theos and Theobroma bakeries to a close. The court issued a decree with certain clarifications, allowing for the peaceful coexistence of the two bakery entities.
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