This is a compilation of Case Analysis of important judgments for January 2023.
- -ADMINISTRATIVE LAW
-The Jammu & Kashmir and Ladakh High Court while upholding the constitutionality of the order passed by the Government of J&K vide which Rehbar-E-Taleem (“ReT”) Scheme was formally closed, expounded that an executive order unlike legislative enactment can neither be retrospective nor can it interfere with the vested or accrued rights of the persons affected. The present order issued by the Government does not affect any such rights and hence, cannot be said to be illegal. It was held that executive actions cannot be made applicable with retrospective effect, in the absence of any legislative mandate. Such powers only rest with the Legislature.
The Division Bench of Justice Subrata Talukdar and Justice Supratim Bhattacharya of the Calcutta High Court in the case of Julficar Sardar Vs The State of West Bengal & Ors held that a volunteer of a disciplined force is required to have a clean antecedent as regards to his character.
It was noted that Section 302 of the Indian Penal Code of 1860 is a serious offence and the criminal proceedings were pending before the Court, the Petitioner could not be allowed to rejoin the service.
A single-judge bench of the Madras High Court comprising Justice G. R. Swaminathan noted that the petitioner's sister has a 60% disability, and the materials in the file showed that she has a benchmark disability.
As the concept of severe disability had been dropped in the 2016 Act, that is, a disability that was more than 80% of their normal capacity, a case was being made to appoint her brother as the legal guardian.
The Division Bench of Hon’ble Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj of the Calcutta High Court in the case of Damodar Valley Corporation & Ors Vs BLA Projects Private Limited & Anr held that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. It was opined that the Courts should not interfere in contracts that deal with technical issues. Further, if there is total arbitrariness or mala fide intention while issuing/granting tender, then instead of interfering in the grant of the tender, the Courts should direct the parties to seek damages rather than injuncting the execution of the contract.
A single judge bench of the Madras High Court comprising Justice N. Anand Venkatesh was adjudicating a Writ praying for a Writ of Certiorari to call for the record the Directorate of Public Health and Preventive Medicine pertaining to the Order directing the Post-Graduate Doctors to report to duty stations allotted to them.
The Bombay High Court dismissed the petition and upheld the impugned order in which it was stated that the Respondent had not committed any error in declining the appointment to the Petitioner as a Safai Kamgar on his father's retirement. A division bench of this Court comprising Hon’ble Justice Ravindra V. Ghuge and Sanjay A. Deshmukh held that appointment on superannuation grounds cannot be extended to a person who already has a private job and well-settled life.
The Division Bench of Justice Abhay S. Oka and Justice Vikram Nath of the Apex Court in the case of Chaus Taushif Alimiya Etc Vs Memon Mahmmad Umar Anwarbhai & Ors held that the award of compensation for pain and suffering cannot be based on any mathematical formula, but has to be commensurate to the nature of suffering and pain, its extent, length, and duration.
The Bombay High Court dismissed a writ petition challenging the order dated 30.04.2021 passed by respondent No.2 and praying to direct respondent No.2 to grant approval to the petitioner for the post of Headmaster of Dr. Zakir Hussain High School.
The Court observed that the management cannot be permitted to allow such an employee to return as and when he desires, on the pleading that it is a minority institution.
The Bombay High Court allowed the present petition and set aside the order of the withdrawal of permission-based upon the report of the Inspectors appointed by the Central Government.
A division bench of this Court comprising Hon’ble Justice Sunil B. Shukre and Mrs. Vrushali V. Joshi held that under Sections 19 and 20 of the Indian Medicine Central Council Act, 1970 (“the Act of 1970”), it is only the Central Council and not the Central Government which shall appoint the Medical Inspectors to inspect any Medical College, Hospital or other Institution.
SC expounds: DGP is the best judge to ascertain induction of candidates into the Police force
The Supreme Court enunciated that the Director General is the highest functionary in the police hierarchy, hence, the best judge to ascertain the suitability of the Petitioner for induction into the police force was the Director General himself. The Court declined to interfere with the order passed by the Director General of Police regarding the cancellation of the appointment of Petitioner as a constable in the police force.
- -ARBITRATION CASES:
The Calcutta High Court opined that Section 12(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”) is a relationship-conflict provision. Since every conflict can be circumvented by the parties, no appointment can be treated as void ab initio or incapable of being cured by an express written agreement. The High Court expounded that the provisions of the A&C Act including Section 12(5) read with proviso are not fact-neutral. Section 12(5) is not context-indifferent where a party continuously accepts the appointment of an arbitrator and then by filing one simple application for termination of the mandate, the arbitration is wiped out.
The Bench enunciated that on the filing of application of Section 12(5), all unilateral appointments of arbitrators cannot be automatically nullified. There is a difference between an arbitrator who is hit by one or all conflicted relationships in the 7th schedule and an arbitrator who is rendered ineligible simply because of the unilateral appointment.
The Court further propounded that unilateral appointment must mean that unilateral appointment made by a person who is disqualified to act as an arbitrator under the 7th schedule and not every unilateral appointment made by one of the parties to the arbitrator.
A division bench of the Madras High Court comprising Honourable Justice T. Raja (Acting Chief Justice) and Honourable Justice D. Bharatha Chakravarty noted that while an arbitral tribunal, which is made up of subject-matter experts, is free to use its own knowledge and understanding to reach a conclusion, it should always give the parties involved the opportunity to present their case.
This was done in order to provide relief to the Chennai Metro Rail Limited (CMRL).
The Bombay High Court dismissed the IA seeking termination of the Arbitrator's mandate on the ground that he represented the counsel of the other party in different matters. A single judge bench of this Court comprising Hon’ble Justice Bharati Dangre held that there is no clash of interest of the Arbitrator because, as a counsel, he had represented the Advocate representing the opposite party.
The Delhi High Court while deciding on an application filed for the appointment of a sole Arbitrator opined that the claims by the Petitioner were not ex-facie time-barred. Further, it was enunciated that the issue of limitation is a mixed question of fact and law that has to be adjudicated upon by the Arbitral Tribunal itself.
- -CIVIL CASES:
The Bombay High Court allowed a writ petition filed against the judgment and order dated 18.06.2008 passed by the City Civil Court, Mumbai, whereby it had refused to condone the delay of 31 months and 16 days in filing the Written Statement.
A single judge bench of this Court comprising Hon’ble Justice Rajesh S Patil held that the Petitioner should not be deprived of an opportunity to contest the claim on merits.
A single-judge bench of the Madras High Court comprising Justice B. Pugalendhi rejected a civil revision petition on the basis that the court did not have appropriate jurisdiction to entertain the suit as Section 9 of the CPC would not come into play in view of an effective remedy provided under the special legislation/rules, which were the Works of Licensees Rules, 2006 in the present case.
The Bombay High Court dismissed a writ petition filed against the judgment and order dated 11.08.2021 passed by the City Civil Court, Mumbai, rejecting Petitioners/Plaintiffs’ application for summary judgment. The Court observed that the defence of the defendant, inter alia, on the point of limitation is substantial.
The single-judge bench of Justice Ravi Krishan Kapur of the Calcutta High Court in the case of Hindustan Unilever Limited Vs Emami Limited held that Order XXIX Rule 2 of the Code of Civil Procedure, 1908 (CPC) does not limit the service of the summons to the registered office of the company alone. It was also opined that the Court does not have the authority to extend the stipulated 120-day deadline for submitting a written statement. For commercial disputes to be settled in a timely way, the legislative objective must be preserved and followed. The system must foster a culture of adhering to deadlines that are set forth.
A division bench of the Madras High Court comprising of Shri Brian D’ Silva & Shri Sarabvir Singh Oberoi expounded that as the appellants had also requested an interim relief, therefore, their lawsuit did not violate Section 12A of the Act. Further, it was stated that one cannot be declared ineligible for relief for failing to comply with this requirement under Section 12A of the Commercial Courts Act.
The Bombay High Court allowed the application filed under Section 9 read with Order VII Rule 11 of the Civil Procedure Code, for rejection of the Plaint. A single-judge bench of this Court comprising Hon’ble Justice Smt. M.S. Jawalkar held that Section 145 of the Electricity Act (“the act”) clearly bars the jurisdiction of the Civil Court from granting any injunction in respect of an action to be taken by the Authority under the said Act.
The Supreme Court opined that Section 25 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) does not impose a complete bar to denude a common High Court like Gauhati High Court to entertain applications under Section 24 for interstate transfers.
It was clarified that the High Court cannot transfer the suit to such a civil court which is subordinate to a different High Court. In that case, the power vests only with the Supreme Court. This is because the High Court to whom an application is made does not enjoy the power of superintendence under Article 227 over the Civil Court to which transfer has to be made.
It was held that for section 24(1)(a), the power for interstate transfer vests with the High Court only if the Civil Court is subordinate to it under Article 227 read with Article 235 and under Section 3 of the CPC. It was expounded that such power is supreme and vests with the High Court without being subject to the power of the Supreme Court under Section 25. The only caveat is that this power cannot be exercised if the transfer is to be made to a civil court of such a State where the High Court does not have jurisdiction or judicial superintendence. Simply put, Section 25 bars interstate transfer by the High Court only when the States have their own High Court, the bar does not operate when the States have a common High Court.
- -CONSTITUTIONAL LAW CASES-
The Bombay High Court disposed of the PIL without issuing any direction to the state government for considering the persons like the Petitioner under Gopinath Mundhe Insurance Scheme. A division bench of this Court comprising Hon’ble Justice Sunil B. Shukre and M.W. Chandwani held that the State Government, under its wisdom, has considered farmers to form a different class than the other citizens, which is not discriminatory and violative of Articles 14 and 21 of the Constitution of India.
The Bombay High Court allowed a petition praying that the reward which is given to the Informers is unjustifiably withheld. The Court observed that the approach should not be such that it discourages the Informers from coming forward.
The Bombay High dismissed the writ petition seeking dismissal of the notification dated 07-11-2017, which carved out Joshi Vasti from village Limpangaon and created a separate revenue village and Gram Panchayat. A division bench of this Court comprising Hon’ble Justice Mangesh S. Patil and S.G. Chapalgaonkar held that the Appellate Court cannot sit in the appeal and appreciate the minor procedural lapses caused during the process undertaken by competent authority towards creating a separate revenue village. This Court is concerned with only the substantive compliance of the provisions keeping in mind the object sought to be achieved which duly held in the present case.
The Single Bench of Justice MD. Nizamuddin of the Calcutta High Court in the case of M/S Harsh Polyfabric Pvt Ltd Vs Union of India & Ors opined that the task of classifying a product to determine under which classification list of the Customs Tariff Act such product falls should not be left to the Writ Jurisdiction under Article 226 of the Indian Constitution, as it requires expertise in the relevant scientific and technical field to conduct the necessary scientific and technical analysis.
The division bench of Justice V. Ramasubramanian and Justice Pankaj Mithal of the apex court in the case of Pancham Lal Pandey Vs Neeraj Kumar Mishra & Ors held that the provision of review is not to scrutinize the correctness of the decision rendered but rather to correct the error, if any, which is visible on the face of the order/record without going into as to whether there is a possibility of another opinion different from the one expressed.
The Single Bench of the Delhi High Court in the case of Ved Yadav vs State of NCT of Delhi consisting of Justice Swarana Kanta Sharma held that no citizen should be rendered remediless in case of commission of an offence or infringement of a fundamental right or availing compensation for injuries even as a prisoner.
Madras High Court Expounds: Police cannot be accused of Human Rights violation at the drop of a hat
A division bench of the Madras High Court comprising of Ms. Justice V.M. Velumani and Mrs. Justice R. Hemalatha opined that not every casual enquiry by the police can be held as a ‘human rights violation’.
The public needs to be sensitized otherwise this would act as a demoralizing factor for the police force at large. By drawing a line between human rights violations and regular police enquiry, the judges quashed the order of the Human Rights Commission, Chennai.
A single-judge bench of the Madras High Court comprising Mr. Justice G.K. Ilanthiraiyan was approached with a civil revision petition under Article 227 of the Indian Constitution against an ex-parte judgment and decree passed by the trial court against the petitioner.
The court reiterated that the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself.
The Bombay High Court dismissed the PIL filed for seeking that the conduct of Respondent No. 1 & 2 has disqualified them from holding any constitutional posts of Vice President and Minister of the Union Cabinet respectively. A division bench of this Court comprising Hon’ble Acting Chief Justice S.V. Gangapurwala and Justice Sandeep V. Marne enunciated that the constitutional authorities could not be removed by exercising the jurisdiction of the Court under Article 226. Further, the bench remarked that the credibility of SC is sky-high which can’t be eroded or impinged by the statements of individuals.
- -CRIMINAL CASES-
The Kerala High Court propounded that every death cannot be a case of medical negligence. There has to be evidence to prove that death was caused due to medical negligence. There should be a direct or proximate connection between the negligent act and death.
Moreover, it was held that mere deviation from the normal professional practice does not tantamount to negligence. For medical negligence, the Prosecution must prove culpable and gross negligence beyond a reasonable doubt. It must be shown that the medical practitioner failed to do something or did something that no ordinary skilled medical professional would have failed to do or done. A medical practitioner cannot be held guilty merely because he chose an alternative treatment that failed, provided the treatment was accepted by medical science.
The Bombay High Court set aside the order passed by the Deputy Commissioner of Police, where the Petitioner was ordered to be externed from the Amravati City as well as the Amravati District for two years. A single judge bench of this Court comprising Hon’ble Justice G.A. Sanap held that Respondent no.1 had relied on the statements of the confidential witnesses without personally verifying them, which raised a serious dent to the subjective satisfaction recorded in the impugned order.
The Bombay High Court allowed an appeal challenging the Judgment and conviction dated 16.04.2019 passed by the learned Children's Court for the State of Goa at Panaji.
The Appellant was found guilty for the offence punishable under Section 324 of IPC and for the offence punishable under Section 2(m)(i) punishable under Section 8(2) of the Goa Children's Act, 2003.
The Bombay High Court allowed the present application and set aside the impugned order, which discarded the plea of alibi for taking into consideration at a later stage of a trial.
A single judge bench of this Court comprising Hon’ble Justice S.G. Mehare held that it is legally incorrect to discard the plea of alibi supported by the genuine electronic evidence collected by a neutral investigating officer soon after registering a crime.
Calcutta High Court rules: Forcibly Removing Minor’s pants amounts to an attempt to commit rape
The Single Bench of Justice Ananya Bandyopadhyay of the Calcutta High Court in the case of Rabi Saha @ Sarkar Vs State of West Bengal expounded that asking the victim to remove her pant and in defiance of the Appellant himself removing justifiably signifies an attempt to commit the offence of rape.
The Single Bench of Justice Hiranmay Bhattacharyya of the Calcutta High Court in the case of Shipra Dey Vs The State of West Bengal & Ors held that by not serving notice while calling the deceased to the Police Station and not recording the decision to conduct an enquiry, the Police Authorities have breached the Code of Criminal Procedure, 1973 provisions and the Court's order in the Lalita Kumari v. Government of Uttar Pradesh and Ors.
It was opined that the second FIR may be filed if the incident is distinct, the offences are comparable or dissimilar, or even if the later crime is so serious that it is outside the purview and parameters of the first FIR.
In the present case, it was noted that the offences alleged in both complaints were different. Therefore, the Police did not perform their duty by denying the registration of FIR.
A division bench of the Chhattisgarh High Court comprising of Honourable Shri Sanjay K. Agarwal and Honourable Shri Radhakishan Agrawal observed that Article 20(3) of the Indian Constitution works as a protection towards the accused against compulsory testimonial, meaning that Section 91 of the CrPC does not apply.
A division bench of the Chhattisgarh High Court comprising of Justice Sanjay K. Agrawal and Justice Rakesh Mohan Pandey recently noted that a person must make a separate and independent application under Section 154 (3) Cr. P.C. before the Superintendent of Police if they are aggrieved with SHO’s failure to record an FIR.
A single judge bench of the Madras High Court comprising Justice G. Ilangovan, in a criminal revision petition, quashed the order passed u/s 122(1)(b) because the procedural requirements for the same were not met and Enquiry was found to be a necessary procedural requirement.
The court reiterated the 10-pointer guidelines which must be followed for the same.
The Bombay High Court allowed a writ petition filed against an order dated 08.06.2022, passed by the Respondent No. 2– Commissioner of Police, Amravati, ordering the detention of the Detenu-Umesh, and the order dated 21.07.2022, confirming the Detenu’s order of detention. The Court observed that the subjective satisfaction arrived at by the Authority is unsustainable.
Justice R.N. Manjula of the Madras High Court while quashing an FIR for not following the mandatory procedure and prescribed time period noted that the purpose of prescribing time limits is to ensure that there is no contamination in the chemical products and the analysis of time limits are not followed the test results become unreliable.
A single-judge bench of the Madhya Pradesh High Court comprising of Justice Dinesh Kumar Paliwal held that the summons is to be issued at the first instance, and if the accused still deliberately avoids the summons, then the court may issue a bailable warrant.
However, if after that as well the accused intentionally avoid the process, then a non-bailable warrant can be issued.
SC opines: Non-examination of 164 statements cannot have any bearing on material evidence
The Division Bench of Justice B.R. Gavai and Justice Vikram Nath of the Apex Court in the case of Ajai Alias Ajju Etc. Etc. Vs The State of Uttar Pradesh held that it is not the quantity of the witnesses but the quality of witnesses that matters. Additionally, the non-examination of the statement according to Section 164 Cr.P.C. does not influence the findings and judgments made by the Courts. It was up to the Investigating Officer to record the statement in accordance with Section 164 Cr.P.C. If he did not deem it necessary in his wisdom, it cannot possibly have any impact on witness testimony or the other relevant evidence presented at trial.
The division bench of Justice Ajay Rastogi and Justice Bela M. Trivedi of the apex court in the case of Ram Gopal S/O Mansharam Vs State of Madhya Pradesh held that if the case is based on circumstantial evidence, then furnishing or non-furnishing of the explanation by the Accused would be a very crucial fact, especially when the theory of “last seen together” as propounded by the prosecution was proved against him.
SC rules: Extra-Judicial confession requires corroboration with strong evidence
The Division Bench of Justice B.R. Gavai and Justice Vikram Nath of the Apex Court in the case of Indrajit Das Vs The State of Tripura expounded that the extra-judicial confession is weak evidence, especially when it is recorded at the trial stage. Strong evidence must corroborate it.
It was further opined that the circumstances should have a clear tendency to point inherently toward the Accused's guilt; they should add up to form a chain of events that is so convincing that it is impossible to avoid the conclusion that the Accused committed the crime within the realm of reasonable doubt; they should also be unexplainable under any other hypothesis than the Accused's guilt and inconsistent with his innocence.
- -FAMILY LAW CASES:
The Bombay High Court upheld the order passed by an Additional Sessions Judge who granted maintenance to the wife under the Protection of Women from Domestic Violence Act, 2005 ( "D.V. Act"). A single judge bench of this Court comprising Hon’ble Justice S.G. Mehare held that the wife is entitled to claim the maintenance under the DV act even after accepting lumpsum alimony through the customary divorce.
The Kerala High Court opined that in Section 6 of the Dowry Prohibition Act of 1961, it has been elucidated that the person receiving the dowry shall hold it in trust for the benefit of the woman, and therefore, a woman has the right to file a suit to recover the amount and gold from the person taking dowry.
Further, it was expounded that keeping ornaments in a locker in the name of the wife does not amount to entrustment. It was held that if the entrustment of gold ornaments is not proved, the wife cannot claim a return of such ornaments.
The Single Bench of Justice Shampa Dutt (Paul) of the Calcutta High Court in the case of Shilpi Lenka Vs Susanta Kumar Lenka & Anr held that when a wife blocks a substantial source of income of the husband and then claims an enhancement of maintenance, it amounts to an abuse of the process of law and also against the interest of Justice. It was opined that in addition to the guidelines in the case of Rajnesh v. Neha, another factor to be considered while deciding the quantum of maintenance is whether the Petitioner was driven out from her matrimonial house or deserted her husband without any just reason.
The Division Bench of Justice B.R. Gavai and Justice Vikram Nath of the Apex Court in the case of P. Sivakumar & Ors Vs State REP. By the deputy superintendent of Police Etc. held that if the marriage between the parties is found to be null and void, then as such the conviction under Section 498-A IPC would not be sustainable.
Bombay High Court Expounds: Middle-man cannot be held liable for mistreatment of Bride by Groom
The Bombay High Court allowed a writ petition seeking quashing of the FIR for the alleged offences punishable under Sections 376, 377, 498A, 354, 506(2), 420, 406, r/w 34 of the Indian Penal Code.
A division bench of this Court comprising Hon’ble Justice Revati Mohite Dere and Hon’ble Justice Prithviraj K. Chavan held that the allegations against the applicant, in no manner, make out a case of cheating.
The Bombay High Court dismissed the IA with the liberty to make a representation to the Competent Authority under the Act, 2015 for the declaration of the girl as an abandoned child.
A division bench of this Court comprising Hon’ble Justice S.V. Gangapurwala and R.N. Laddha held that if the biological mother of the children is alive, they cannot be termed as ‘orphaned’ defined under Section 2(42) of the Juvenile Justice (Care and Protection of Children) Act, 2015 ( “the Act, 2015”).
The Bombay High Court dismissed an application filed against an order passed by the Family Court, Bhandara on an application filed by the wife and the children under Section 125 of the Criminal Procedure Code.
The court observed that merely saying that the husband was and is always ready and willing to cohabit is not sufficient ground to absolve him of the liability to pay maintenance.
Allahabad High Court Expounds: Divorced Muslim Woman is entitled to maintenance until she remarries
The Allahabad High Court allowed a revision petition against the judgment and order dated 20.09.2021, passed by the learned Principal Judge, Family Court, under Section 125 Cr.P.C., whereby the case of revisionist under Section 125 Cr.P.C. was dismissed. The court observed that a divorced Muslim woman is entitled to claim maintenance under Section 125 CrPC even for the period after iddat and for her whole life unless she is disqualified for the reasons such as marriage with someone else.
- -INSOLVENCY AND BANKRUPTCY CODE-
The NCLAT, New Delhi opined that the financial debt cannot be wiped out merely because consent terms were arrived at and were breached by the Corporate Debtor. Moreover, the nature and character of the financial debt cannot be changed on account of the breach of consent terms.
It was also expounded by the Bench that consent terms gave the right to revive the petitioner. Merely because a fresh application under Section 7 of the Insolvency and Bankruptcy Code, 2016 has been filed instead of reviving the old application, the application cannot be rejected.
NCLAT, New Delhi enunciates: Cause of default irrelevant for the purpose of Section 7 Application
The NCLAT, New Delhi expounded that once the debt becomes due and Corporate Debtor does not pay it, that’s a warning signal for the Corporate Debtor. Further, when there is sufficient evidence to prove that the debt was not repaid and a default has been committed by the Corporate Debtor, the NCLT is not required to go into the cause of the default for the purpose of an application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the “IBC”).
Moreover, the suit preferred by the Corporate Debtor in the High Court cannot be a ground to not consider the Section 7 application as the suit filed is a separate issue, which has to be adjudicated upon by the High Court. The decision of the Court can at best determine the default for the purpose of the suit and the same cannot be reasoned for not entertaining the Section 7 application.
NCLAT, New Delhi enunciates: Secured creditor can only claim the amount as claimed in Form D
The NCLAT, New Delhi opined that Form D unequivocally stipulates that the claim includes interest “as at the liquidation commencement date”. The liquidation commencement date is when the NCLT passes the order for liquidation. Therefore, it was ruled by the Bench that an additional amount cannot be claimed when Form D fixes the claim on a particular date.
It was further expounded that no claimant can be allowed to increase his claim as the same contravenes the scheme of the liquidation process.
The NCLAT, New Delhi opined that the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) separately recognizes the assets of the Corporate Debtor and the assets of the subsidiary of the Corporate Debtor. Section 18(1) Explanation unequivocally provides that assets of the Corporate Debtor cannot include assets of the subsidiary company. It was expounded that assets of the subsidiary company cannot be dealt with in the CIRP of a holding company as both companies have separate legal statuses.
It was also propounded that the assets of the landholding companies (subsidiaries of the Corporate Debtor) cannot be treated as assets of the Corporate Debtor. Lastly, it was ruled that the resolution plan cannot deal with lease land and have a provision for the transfer of leasehold right without prior permission of the lessor.
The NCLAT, New Delhi expounded that if the plan is not as per the parameters set out in Section 30(2)(e) of the Insolvency and Bankruptcy Code of India, 2016 (hereinafter referred to as “IBC”) then the plan can be sent back to Committee of Creditors (CoC) for review.
In the present case, it was observed that the Resolution Applicant himself consented for the matter to be sent back to CoC and therefore, now the stand cannot be changed. The reconsideration was only sought for the clause dealing with the release of the personal guarantee of the Promoters. It was ruled that it was not a case where the withdrawal of the plan was sought. Therefore, the plan could have been sent back to CoC for review.
The Gujarat High Court opined that the Securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARAFESI Act”) is meant for the enforcement of security interests created in favour of the secured creditors. Any other section or rule cannot defeat Section 26 of the SARFAESI Act.
In the present case, Bank became a secured creditor and has a valid first charge over the mortgaged property. Therefore, it would have priority under Section 26E of the SARFAESI Act to recover the dues.
It was propounded that the dues of the bank/financial institution must be paid first before prioritizing the dues payable to the State/Central Government.
The NCLAT, New Delhi expounded that when the principal amount had already been paid by the Appellant and the issue was only regarding the recovery of interest, a Section 9 Application under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) could not have been maintainable as the Code envisages ‘resolution of debt’ and not ‘recovery.
NCLAT, New Delhi expounds: Timelines in Regulation 35A are only directory
The NCLAT, New Delhi ruled that the timeline in Regulations 35A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (hereinafter referred to as “2016 Regulations”) was not mandatory and that the requirement to approach NCLT on or before the 135th day of the insolvency commencement day (“ICD”) is the only directory in nature. Further, the fact that there was a delay in the determination of opinion cannot by itself be a ground for the non-maintainability of the petition.
In the present case, there was a gap of nearly 8 months.
Further, the formation of opinion has to be completed on or before the 75th day of the ICD, and the determination of the opinion on or before the 115th day of the ICD. In the present case, these timelines were not adhered to by the Resolution Professional (“RP”).
It was noted that the RP was not provided with any documents from the suspended management. Moreover, the work in preparing the report was hindered due to the Covid-19 pandemic. Hence, it was held that the delay in submitting applications under Sections 43 and 66 was with sufficient cause and not due to laxity or leniency.
Further, the purpose of Section 43 was enunciated which is to determine and nullify the preferential transactions undertaken by the parties at the relevant time to withdraw money from a distressed corporate debtor when it is on the verge of the commencement of the corporate insolvency resolution process (“CIRP”).
Income Tax Appellate Tribunal, Delhi rules: IBC overrides every act including Income Tax Act
The Income Tax Appellate Tribunal, Delhi Bench opined that the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) overrides every other Act including the Income Tax Act, 1961 (hereinafter referred to as the “Act”).
It was observed that a financial creditor filed an application under Section 7 of the IBC against the Assessee Company and such an application has been allowed by the NCLT. Further, a moratorium has been imposed. Hence, it was held that no proceedings could be initiated against the Corporate Debtor (Assessee Company).
The Gujarat High Court propounded that if the Authorities were allowed to pass orders of attachment for those properties which are acquired by bidders in a liquidation process, then the same would be contrary to the interest of value maximization of the Corporate Debtor’s assets as it significantly reduces the chances of finding a Resolution Applicant or a bidder in liquidation.
The Bench noted that it is only that property that is obtained directly or indirectly as a result of criminal activity can be classified as proceeds of crime. In the present case, there was no explanation regarding the properties that were sold to the Petitioners being proceeds of crimes especially since these assets were neither overseas nor belonged to the group companies.
It was further enunciated that the “reason to believe” cannot arise from mere suspicion or doubt or rumour or gossip. There must be some tangible and cogent material to suggest the same. Hence, the properties were directed to be released from the attachment.
- -IPR CASES:
The Division Bench of Delhi High Court opined that the mark of the Appellant i.e., “Schezwan Chutney” has acquired secondary significance, considering the advertisement and sales figure. Hence, the order of the Learned Single Judge refusing to grant an interim injunction to restrain the Respondent-Defendant from using the mark “Schezwan Chutney” was stayed.
The Single Bench of Justice Ravi Krishan Kapur of the Calcutta High Court in the case of Groz Beckert KG Vs Union of India & Ors held that it is not sufficient to conclude that a claimed invention is obvious merely because individual parts of the claim taken separately are known or might be found to be obvious. It was expounded that the invention has to be considered as a whole for ascertaining the inventive step. The whole picture has to be considered instead of a partial one.
The Single Bench of the Delhi High Court in the case of Winzo Games Private Limited vs Google LLC & Ors. consisting of Justice Amit Bansal held that Google Chrome browser and several other browsers displaying warnings when viewers/potential users download third-party APK files/applications from their websites is the industry practice and does not amount to infringement.
Picture Source :
