Month: March 2023

-Report by Harshit Yadav

In this case, four individuals were accused of various offences related to a fraudulent loan obtained by a company called M/s NaftoGaz India Pvt. Ltd. from a consortium of banks led by the State Bank of India. The accused individuals had applied for anticipatory bail, which was rejected by the High Court of Judicature at Allahabad. The Supreme Court heard the appeals challenging the rejection of anticipatory bail and made its decision based on various factors. The main point being made by the Hon’ble supreme court is that there were certain factors that favoured the grant of anticipatory bail to the accused individuals, despite the serious nature of the allegations against them.

FACTS:

The case involves an FIR registered by Corporation Bank alleging offences under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The accused, namely Shri Mahdoom Bava, Shri Deepak Gupta, Shri Akash Gupta, and Shri Yatish Sharma have filed appeals challenging the orders of the High Court of Judicature at Allahabad rejecting their applications for anticipatory bail. The accusations involve the alleged creation of a fraudulent account by M/s NaftoGaz India Pvt. Ltd., which secured certain credit facilities from a consortium of banks led by the State Bank of India. The prosecution alleges that the Company connived and conspired with advocates and valuers hired by the consortium of banks, and therefore the promoters/directors of the Company, the guarantors as well as those involved in the sanction of the loan were guilty of the offences complained. The Supreme Court granted anticipatory bail to the accused based on three factors: (i) CBI did not require the custodial interrogation of the accused during the period of investigation from 29.06.2019 (date of filing of FIR) till 31.12.2021 (date of filing of the final report), (ii) CBI only required the presence of the accused before the Trial Court to face trial, and (iii) all transactions out of which the complaint had arisen, seem to have taken place during the period 2009-2010 to 2012-13.

ISSUES RAISED:

1. Whether the accused persons are entitled to anticipatory bail in the light of serious allegations levelled against them in the FIR filed by the Corporation Bank, under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. Whether the custodial interrogation of the appellants is required, given that the CBI did not require their custodial interrogation during the investigation period, and whether the custody of the appellants is necessary at this stage.
3. Whether the presence of the accused is required before the trial court for trial or not, and whether opposing the anticipatory bail request at this stage is justified in light of the CBI’s stand that only the presence of the accused before the Trial Court is required.
4. Whether the transactions in question took place during the period 2009-2010 to 2012-2013, and whether the accused should be granted anticipatory bail in the absence of any evidence of their involvement in the alleged fraud.

CONTENTIONS:

The appellants, in this case, have challenged the order of the High Court of Judicature at Allahabad, which rejected their application for anticipatory bail. The appellants have argued that they are entitled to anticipatory bail despite the serious allegations levelled against them in the FIR filed by the Corporation Bank. They have contended that the CBI did not require their custodial interrogation during the investigation period, and therefore, their custody is not necessary at this stage. The appellants have also argued that the CBI only required their presence before the trial court for trial, and opposing their anticipatory bail request at this stage is not justified.

On the other hand, the respondents have opposed the appellants’ request for anticipatory bail, arguing that the allegations against them are serious in nature, and their custodial interrogation is necessary to unearth the truth. The respondents have argued that the appellants cannot be granted anticipatory bail merely because the CBI did not require their custody during the investigation period. They have also contended that the presence of the accused before the trial court is not enough, and their custody is necessary to ensure that they do not tamper with the evidence or influence witnesses.

JUDGEMENT:

In this case, several accused individuals have appealed against the rejection of their applications for anticipatory bail by the High Court of Judicature at Allahabad. The First Information Report in the case was registered on 29.06.2019 at the instance of the Corporation Bank, for alleged offences under various sections of the Indian Penal Code and the Prevention of Corruption Act, 1988. The allegations involved a company securing credit facilities from a consortium of banks and committing fraud, with the accused including the company’s promoters/directors, guarantors, and those involved in sanctioning the loan. The CBI completed its investigation and filed a final report on 31.12.2021, with the Special Court issuing a summons for the appearance of the accused on 07.03.2022. The appellants sought anticipatory bail, which was rejected by the Special Court and confirmed by the High Court. However, the Supreme Court found that the CBI did not require the custodial interrogation of the appellants during the investigation period and that the CBI only wanted the presence of the accused before the Trial Court to face trial, which may not be proper grounds to oppose anticipatory bail at this stage. Therefore, the Supreme Court granted anticipatory bail to the appellants.

READ FULL JUDGEMENT: https://bit.ly/3yX4kad

-Report by Sejal Jethva

In this case, the custody of two children—who should live with their mother or father—is being settled between SALIM YOUSUF JAMADAR VS RESHMA SALIM JAMADAR

FACTS:

On May 19, 2010, the appellant and respondent were married in Pune in line with the customs and principles of Mohammedanism. The respondent-wife gave birth to a girl called Akira on May 16, 2014, and a son named Arsalan on September 21, 2011, both outside of marriage. Arsalan is currently about 11 years old, while Akira is about 8 years old. The respondent and her children were then violently forced out of her marital home on August 28, 2019, due to a marital quarrel. It is claimed that the children were kidnapped from the respondent’s wife’s custody at her parent’s house in Aloor by the appellant’s relatives under the guise of feeding them chocolates.

On October 11, 2021, the respondent-wife filed a case in the Omerga Court of Judicial Magistrate (First Class) under the provisions of the Protection of Women from Domestic Violence Act. The court only granted the respondent-wife visitation rights, allowing her to see her children once a month in Pune at the office of the protection officer, without interfering with the minor children’s custody arrangements with their father. The respondent-wife does not contest the court’s decision to deny custody and solely grant visitation rights in the aforementioned judgment. The wife ultimately filed a procedure under Section 8 of the Guardians and Wards Act in the trial Court over the custody of minor children as a result of the marital strife between the parties.

APPELLANT’S CONTENTION:

The attorney for the applicant has submitted a written statement outlining the events leading up to the Respondent’s (wife) filing of this application under Section 8 of the Guardians and Guardians Act. He also brought up the issue of jurisdiction, claiming that an educated trial judge had incorrectly ruled that the children had a habitual abode in Alloa based solely on inference. Welfare and child protection Concerning the query, he said that the Scientific Court had neglected to consider a few clauses in Articles 17 and 25 of the Guardians and Guardians Act.

RESPONDENT’S CONTENTION:

The respondent-wife vehemently disagreed with the arguments put out by the knowledgeable Attorney representing the appellant’s spouse. He defended the contested order and argued that the learned trial court correctly dismissed the husband’s complaint about jurisdiction. He emphasised that although the children were enrolled in an English-medium school in Aloor, the appellant-husband requested that they attend an Urdu-medium school instead, which is unquestionably dangerous for the development of young children.

He did reasonably acknowledge, however, that up until this point, the respondent-wife had not requested maintenance from her husband. He contends that the respondent, who does not leave the house for employment, is better able to provide for the children’s needs because the appellant is unable to do so because of his continued absence from the home for work. He called for the appeal to be dismissed as a result.

JUDGEMENT:

1. Upon reading the contested decision, it is clear that this aspect of the highest consideration was not discussed in detail by the competent court, given the applicant’s capacity. It can be seen that the entire judgment discusses the jurisdictional aspect and the Labor Court only made a puzzling statement on this aspect of the child’s well-being in the last paragraph. , does not argue whether it is fit to act in the best interest of children by providing them with a good future education and the facilities they need. Under guardianship laws, custody of minors remains with the mother until the age of five. However, in this case, both minor children are over 5 years of her age. Their son Arsalan is 11 years old and their daughter Akira is 8 years old. Therefore, with their best interests in mind, they must be provided with a good education, safety, and other conveniences. On the other hand, the applicant’s husband discovered that he was not at home due to his work and his wife. Therefore, she is promoted to a higher level, giving her time to grow and care for her children. However, feeding a minor child is not only about giving the child time to grow, but other aspects such as financial support, a good atmosphere, and safety are also important. 

2. As a result, the appeal is upheld, and the contested order from the learned District Judge-1, Omerga, District Osmanabad in Civil Miscellaneous Application No. 45/2020 is revoked and reversed. There is no expense order.

READ FULL JUDGEMENT: https://bit.ly/42ye1cA

Ak & Partners, New Delhi are now accepting applications for internships for the month of April 2023.

About the Organization

AK & Partners is a collaboration of new generation advocates who believe that transaction advisory and dispute resolution go beyond applying laws of a jurisdiction to factual situations. The firm believes that business in present times deserve techno-commercial, legal advisory aligning with international best practices. Legal advice should not only be legally correct but commercially and financially feasible with focus on risk management.

Mode of Internship

Please note that we are providing an in-office internship. Selected candidates would be required to join and attend our office in New Delhi from Monday to Friday 10 AM to 8 PM and on Saturdays 10 AM-6 PM.

Internship Duration

Minimum 30 days

Eligibility

Third year and onwards

No. of slots available

Two (2)

Application Procedure

Interested candidates are requested to send their updated CVs with one writing sample to recruitment@akandpartners.in and mention ‘Application for Internship- April 2023’ in the subject line.

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About the Organization

Khaitan Legal Associates is a full service independent Indian law firm with offices in Mumbai, a presence in New Delhi and correspondent offices across various cities in India. Khaitan Legal Associates also has a unique advantage of having a fully staffed office in London in order to service the varied requirements of their clients’ across the globe. Equipped with international vision, reach, scope and capability, Khaitan Legal Associates is committed to the highest principles of integrity, legal expertise, excellence, client care and focus. We pride ourselves in providing solution driven legal services to our clients by addressing their varied Indian law requirements.

Practice Area

General Corporate/Transactions 

Location

Mumbai 

Position

Associate

No. of positions

2

PQE

2 – 4 years

Application Procedure

Only interested candidates meeting the PQE range mentioned may send their CV’s to hr@khaitanlegal.com.

Note: While applying, do not forget to mention in the subject line: Application for General Corporate/Transactions, PQE 2-4yrs

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About the Organization

They are a young and dynamic law firm with remarkable progress owing to our unparalleled client service and sound legal advice. Professionalism, effectiveness and quick turnaround are core to their work ethic and the legal advice rendered by the team is consistently high quality and commercially relevant. It is for this reason that they have managed significant growth in multiple practice areas and jurisdictions.

Practice Area

Corporate team

PQE

1 to 3 years

Application Procedure

Reach out at hr@dvassociates.co.in

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About the Organization

A full-service law firm with offices in Mumbai, New Delhi, Bengaluru, Pune and Hyderabad. DSK Legal was established in April 2001 with the intent of delivering quality legal services at international standards across service lines relevant to the business. The founder partners have immense experience and are well-reputed in the areas of corporate and commercial work, dispute resolution, real estate and indirect tax. Starting with 7 lawyers in 2001, we have rapidly grown with lawyers from diverse backgrounds, with multiple skill sets, and offices in Mumbai, New Delhi, Bengaluru, Pune and Hyderabad.

Practice Area

Banking & Finance

PQE

4 to 8 years

Joining

Immediate

Location

Mumbai and New Delhi

Application Procedure

Interested candidates may send their CV’s to HR at hr@dsklegal.com

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Mode of Internship

Offline – Delhi

No. of Positions Available

Two (2)

Internship Duration

April to May 2023

Eligibility

4th or 5th year Law Students

Location

West Delhi – Kirti Nagar

Roles and Responsibilities

During the internship tenure, one may be required to visit courts, take up research, assist in court file inspection and allied work.

Area of practice

Commercial & Civil Litigation;

Stipend

Yes

Application Procedure

You may reach out at chambersofpriyankasethia@gmail.com

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Area of Practice

Litigation and Dispute Resolution Team

Required Experience

Freshers and those with experience are welcome to apply

Preference

Candidates familiar with Kannada (writing, reading, and communication)

Application Procedure

To those law graduates/lawyers looking for an opportunity to work as a litigation/arbitration lawyer, please send your CV to hr@kamathandkamath.com along with your statement of purpose. Please mention the subject line “Application for Recruitment – Litigation and Dispute Resolution Team (2023)”.

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-Report by Harshit Yadav

The present case involves a revision petition filed by tenants who are challenging an eviction order passed by the Senior Civil Judge-cum-Rent Controller in Delhi. The landlord had filed an eviction petition on the grounds of the bona fide requirement of the tenanted premises, which is a shop measuring 83.4 sq. ft. The landlord, who owns the subject property, which consists of ground-floor shops, had been running his business in one of the shops, which was not sufficient for his business requirements. The tenants, in their application seeking leave to defend, had failed to raise any triable issues, and the court had dismissed their application and passed the eviction order in favor of the landlord. The tenants have challenged the order on the grounds that the landlord has sufficient alternate suitable accommodation for carrying on his business from other shops in the same property and has no bona fide requirement of the tenanted premises.

FACTS:

A revision petition was filed by tenants against an eviction order passed by the Senior Civil Judge-cum-Rent Controller in Delhi. The tenants were occupying shop no. 3 on the ground floor of a property owned by the landlord. The landlord had filed an eviction petition on the grounds of the bona fide requirement of the tenanted premises for expanding his business of sale of utensils. The tenants had challenged the eviction order by stating that the landlord had sufficient alternative accommodation for his business, but the Trial Court had dismissed their application seeking leave to defend. The present revision petition has been filed against the said order. The document contains the submissions of the parties, relevant facts, and the findings of the Court.

ISSUES RAISED:

Whether the Petitioners’ leave to defend failed to raise any triable issues and the contents of the said application failed to rebut the presumption of bona fide requirement of the Respondent?

Whether the Respondent has no bona fide requirement of the tenanted premises as he has sufficient pension income post-retirement and has possession of shop nos. 1, 2 and 4 in the subject property?

Whether the plea of the Respondent that he intends to carry on business from the tenanted premises is a triable issue, which the Trial Court ought to have appreciated and thus granted the leave to defend?

Whether shop nos. 1 and 2, being used by the sons of the Respondent for carrying out their separate and independent businesses, are not available to the Respondent to carry on his own business and thus, the tenanted premises are required by the Respondent for properly keeping his stock so as to display the same and invite customers, as the space available in the existing shop no. 4 is grossly insufficient?

CONTENTIONS:

The Petitioners’ counsel contended that the Respondent has no bona fide requirement of the tenanted premises as he has sufficient pension income post-retirement, and he has possession of shop nos. 1, 2, and 4 in the subject property. Therefore, the Respondent has alternate suitable accommodation for carrying on his business. However, the Respondent’s counsel submitted that shop nos. 1 and 2 are being used by his sons for carrying out their independent businesses, and shop no. 4, which the Respondent uses for his business, is very small in size. He stated that the Respondent needs the tenanted premises to display his stock properly and invite customers.

The Court considered the submissions of both parties and perused the record. It held that the Respondent has a bona fide requirement of the tenanted premises for expanding his business, as shop no. 4, where he currently operates his business, is not sufficient for him. The Court also noted that the Respondent’s sons are using shops nos. 1 and 2 for their independent businesses, and shop no. 4 is too small for the Respondent’s business. Therefore, the Court dismissed the Petitioners’ revision petition and upheld the eviction order passed by the Trial Court in favour of the Respondent.

JUDGEMENT:

In this case, the tenants have filed a revision petition challenging the eviction order passed by the Senior Civil Judge-cum-Rent Controller in RC ARC No. 5589/16, whereby the Petitioners’ application seeking leave to defend was dismissed, and the impugned eviction order was passed in favor of the landlord with respect to shop no.3.

The Respondent, the landlord, filed an eviction petition for the recovery of the tenanted premises, which abuts his shop no.4, as it was not sufficient for carrying on his business. The Trial Court found that the Petitioners’ leave to defend failed to raise any triable issues and the contents of the said application failed to rebut the presumption of bona fide requirement of the Respondent.

The learned counsel for the Petitioners argued that the Respondent has no bona fide requirement of the tenanted premises, as he has sufficient pension income post-retirement and has alternate suitable accommodation for carrying on his business. On the other hand, the learned counsel for the Respondent argued that shop nos. 1 and 2 are being used by the sons of the Respondent for their independent businesses, and shop no.4, which admeasures 8.5 sq. ft, is being used by the Respondent for running his independent sale of utensils etc.

After considering the submissions of the parties and perusing the record, this Court finds that the Respondent has a bona fide requirement of the tenanted premises. Admittedly, shop nos. 1 and 2 are being used by the sons of the Respondent for their independent businesses, and shop no.4, which admeasures 8.5 sq. ft, is being used by the Respondent for running his independent sale of utensils etc.

The Respondent has stated that the tenanted premises are required for properly keeping his stock so as to display the same and invite customers, as the space available in the existing shop no. 4 is grossly insufficient. This Court finds that the Respondent has a genuine need for the tenanted premises, and the Petitioners have failed to raise any triable issues in this regard.

Therefore, this Court upholds the impugned eviction order passed by the Trial Court and dismisses the present revision petition filed by the Petitioners. The Respondent is entitled to possession of the tenanted premises. The Petitioners are directed to hand over vacant possession of the tenanted premises to the Respondent within a period of four weeks from the date of this judgment.

READ FULL JUDGEMENT: https://bit.ly/3JVacal

-Report by Harsh Singh Rajput

In the case of GPSK CAPITAL PRIVATE LIMITED (FORMERLY KNOWN AS MANTRI FINANCE LIMITED) vs THE SECURITIES AND EXCHANGE BOARD OF INDIA, the said company appealed to get an exemption from the registration fees because of Shrikant Mantri, from who they have acquired the membership card of CSE(Calcutta Stock Exchange) and that appeal, got rejected by The Securities and Exchange Board of India.

FACTS:

On 30th Nov 1992, Shrikant Mantri became a member of CSE(Calcutta Stock Exchange) and got registered as a stockbroker with it. And later in 1997, he decided to transfer his membership card CSE to Mantri Finance Ltd. (hereinafter being referred to as ‘company’). This company was a member of NSE. And on the 17th of October, 1995 it also obtained the membership of NSE as a stock broker. After the membership card is given to the company. It got itself registered as a stockbroker on 1st April 1998.

Now, the company raised the issue that Shrikant Mantra had already paid the fees for registration. So, it should be exempted from the payment of registration fees for the period for which Shrikant Mantra had already paid. It further stated that the company is also entitled to compensation as all the conditions prescribed under para 4 of Schedule 3rd to the Regulation were also fulfilled.

But the board rejected this appeal of the company by order dated 7th May 2007. The board justify this action by saying that Shrikant in his three years of the period of membership acted only as a director of the company and as he was not the permanent director, therefore the company will not be entitled to such exemption as the condition under para 4 of schedule 3rd were also not followed properly.

Then the company filed an appeal against the order of the Board dated 07 May 2007 and highlighted the two issues.

Those two issues were read as:

(i) Whether the stock broker requires multiple registrations to operate on more than one stock exchange(s) or a single registration will suffice for all the stock exchanges.

(ii)Whether the appellant-Company is entitled to fee continuity benefits provided under para 4 of Schedule III.

For issue no 1., The learned tribunal held that single registration will be sufficient, even after having multiple memberships by the stockbroker. So, with ordering the board, the learned tribunal said to the board to calculate the registration fee payable again based on registration w.e.f 17th Oct 1995.

For issue no 2., the learned tribunal held that the appellant will not be exempted from the payment fee for which Shrikant Mantri had already paid, as the company fails to satisfy the conditions of clause (4) of Schedule 3rd to the registration.

And both sides were aggrieved by this decision by the tribunal, they preferred the appeal being Civil Appeal No(s). 2402 and CIVIL APPEAL NO(S). 5636 against the impugned judgment by tribunal dated 09th Aug 2007.

APPELLANT’S CONTENTION:

The learned counsel on behalf of the company submitted that Shrikant Mantra applies for conversion of his membership to a corporate identity and membership of the old entity under para 4 of schedule 3rd.

The learned counsel also stated that the board made an apparent error even after all the conditions are being fulfilled as indicated in para 4.

He also added that the interpretation of para 4 should also be done with the intention with which it was added. And stated that para 4 also mandates that from the converted corporate entity, no fresh fee will be collected.

RESPONDENT’S CONTENTION:

Learned counsel on behalf of the respondent submitted that if an individual or partnership is being converted to a corporate entity then, a director( not being a temporary director ) and the corporate entity are entitled to claim exemption from paying the registration fees.

And in this case, he also added that Shrikant Mantra transferred his membership card CSE to the company and did not convert himself into a corporate identity.

They also supported the board’s decision not to give the appellant exemption.

JUDGEMENT:

The honourable Supreme Court after taking into consideration para 4 of schedule 3rd of the regulation, 1992, and both sides’ facts stated that Shrikant Mantra is not the whole time director, transferred his membership. And also there is nothing that shows the designation of Shrikant Mantra as a full-time director rather he’s been designated as ‘Director’.

And the appellant company failed to satisfy the condition that prevailed in para 4 of schedule 3rd of the regulation.

So, the honourable court dismissed the appeal of the appellant and held that the company will not be exempted from the registration fees.

READ FULL JUDGEMENT: https://bit.ly/3nanwP9