Tag: Delhihighcourt

-Report by Khushi Neb

The Delhi High Court in a recent judgment in Morgan Securities And Credits Pvt. Ltd. vs Videocon Industries Ltd held that The arbitrator must exercise the discretionary power to grant post-award interest reasonably and in good faith, taking into account all relevant circumstances.

FACTS

A contract between the appellant and the respondent was signed on January 27, 2003, and it allowed the respondent to use the appellant’s bill-discounting services. In accordance with the contract, the appellant paid out Rs. 5,00,32,656. The fees were still owed. On 10 January 2006, the appellant served a notice on the respondent requesting payment of the principal sum of Rs. 5,00,32,656 as of the default date of 17 April 2003, as well as past-due interest. The appellant sent out a notification on January 31, 2006, invoking the arbitration provision of the contract because the respondent had not made the required payment. The sole arbitrator rendered an arbitral award in favor of the appellant on 1 March 2013 stating interest at the rate of (i) 21% per annum has been granted from the date of default to the date of the demand notice; (ii) 36% per annum with monthly rests from the date of the demand notice to the date of award (“pre-award interest”); and (iii) 18% per annum on the principal amount of Rs. 5,00,32,656 from the date of award to the date of payment (“post-award interest”). The appellant challenged the said award in Delhi High court where the petition was dismissed holding that the Arbitrator had in his discretion restricted the post-award interest to the principal amount and that the court would not interfere with the exercise of discretion. Following this, the appellant filed an appeal in the Supreme Court.

APPELLANT’S CONTENTION

Quoting the Hyder Consulting case if pre-award interest is awarded on the principal sum, the aggregate of the principal and the pre-award interest is the ‘sum’ on which post-award interest must be granted and once pre-award interest is granted on the principal sum under Section 31(7)(a) of the Act, the interest award loses its character as interest and takes the color of the awarded ‘sum’ for post-award interest under Section 31(7)(b) of the Act. Also, since the arbitral award is silent on post-award interest on the component of interest, the appellant is entitled to the statutory rate of interest on the aggregate of the principal and pre-award interest under Section 31(7)(b) of the Act.

Quoting the SL Arora case the discretion of the arbitral tribunal under Section 31(7)(b) of the Act was only with respect to the rate of the post-award interest and here the arbitrator has awarded post-award interest only on the principal sum solely in view of the judgment in SL Arora. The arbitrator only has the discretion to determine the rate post-award interest. The Arbitrator does not have the discretion to determine the ‘sum’ on which the post-award interest is to be granted; and The contention that Section 31(7)(b) of the Act would be inapplicable in cases where the arbitrator has awarded post-award interest by exercising discretion is not borne out of the decisions in SL Arora or Hyder Consulting (supra).

RESPONDENT’S CONTENTION

Section 31(7)(b) is qualified by the phrase “unless the award otherwise directs and would only be applicable where an arbitral award is silent on the component of post-award interest. Under Section 31(7)(b) of the Act, the arbitrator has the discretion to (a) grant post-award interest; (b) determine the quantum over which the post-award interest should be granted; and (c) determine the rate at which the interest should be calculated; and In Hyder Consulting, a three-Judge Bench of this Court overruled SL Arora to the extent that the latter decision held that the arbitral tribunal does not have the power to award interest over interest. However, in Hyder Consulting, it was not held that it is mandatory that the post-award interest ought to only be granted on the aggregate of the principal and the pre-award interest.

COURT’S DECISION

Keeping in view Justice Bobde’s opinion in the Hyder Consulting case, held that the arbitrator may grant post-award interest on the aggregate of the principal and the pre-award interest.

“According to Section 31(7)(b), if the arbitrator does not grant post-award interest, the award holder is entitled to post-award interest at eighteen percent. Section 31(7)(b) does not fetter or restrict the discretion that the arbitrator holds in granting post-award interest. The arbitrator must exercise the discretionary power to grant post-award interest reasonably and in good faith, taking into account all relevant circumstances. In view of, the above discussion, the arbitrator has the discretion to award post-award interest on a part of the ‘sum’; the ‘sum’ as interpreted in Hyder Consulting. Thus, the award of the arbitrator granting post-award interest on the principal amount does not suffer from an error apparent. Hence, the appeal is dismissed.”

-Report by Anirudh Victor

FACTS

The current writ appeal has been documented testing the request passed under Section 148A(d) of the Income Tax Act, 1961 [‘the Act’] and the notification given under Section 148 of the Act both dated 30th July 2022 for the evaluation Year 2015-16.
Learned counsel for the candidate expresses that the condemned request passed under Section 148A(d) and the reproved notice given under Section 148 of the Act are without ward, as the pay claimed to have gotten away from the appraisal is Rs.34,44,855, which is not exactly the jurisdictional necessity of Rs.50 Lakhs.

This Court takes legal notification of the way that on account of another assessee in W.P.(C) No.12532/2022 who had also bought the stock of M/s. Solis Marketing Ltd., the income office has affirmed that the assessee in that had procured long haul capital addition which was very nearly multiple times the speculation inside a limited capacity to focus time. For this situation, too, a scrutiny of the applicant’s answer dated 29th May 2022 confirmations that the shares bought at face worth of Rs.1 were sold at approx. Rs.50 per share acquiring the candidate the LTCG which was guaranteed as absolved pay. The Assessing Officer in the reproved request has additionally held that ‘the assessee is one of the recipients of producing counterfeit LTCG and STCG through M/s Solis Marketing Ltd. in an arranged way and has steered her unaccounted pay. Subsequently, the all-out thought of Rs.50,10,500 has gotten away from evaluation. In the reprimanded request, it has been more than once, truth be told accentuated by the Assessing Officer that the whole thought ofRs.50,10,500 got by the applicant is pay that has gotten away appraisal.

Petition’s Contention

He expresses that the Respondent has passed the denounced request without taking into account the definite entries of the Petitioner, wherein the Petitioner had presented that the Petitioner had proactively paid charge on the Short Term Capital increase (‘STCG’) of Rs. 995/ – and that the Petitioner had just guaranteed Long haul Capital Gain (‘LTCG’) of Rs.33,74,855 / – under Section 10(38) of the Act.

Learned counsel for the solicitor expresses that the finding of the Surveying Officer in the upbraided request dated 30th July 2022 passed under Section 148A(d) of the Act that pays Rs.50,10,500/ – has gotten away appraisal is inaccurate. He expresses that Section 148A (d) of the Act just discusses escapement of Income based on material accessible on record and not on the material to be accessible in the future. He calls attention to that the material accessible recommended that pay of Rs.34, 44,855/ has gotten away appraisal. On the side of his accommodation, he depends upon the judgment of the Rajasthan High Court in Abdul Majeed vs. Annual Tax Officer.

Court’s Decision

Thus, neither the bifurcation between the STCG and LTCG nor the estimation of pay outfitted by the solicitor can be acknowledged at this stage in writ procedures. The judgment of the Rajasthan High Court in Abdul Majeed (supra) has no application to current realities of the current case as in the said case ‘just money store of Rs.9,39,000/ – chargeable to burden had gotten away from evaluation, without much else. This Court finds that in the reprimanded request passed under Section 148A (d) it is expressed that the candidate had sold penny stock for example M/s Solis Promoting Ltd. for a thought of Rs.50,10,500. In like manner, this Court is of the view that the reviled request calls for no impedance at this stage. Be that as it may, the applicant is given the freedom to W.P. (C) No.12626/2022 to raise all disputes and entries before the Assessing Officer. With the previously mentioned freedom, the current writ request alongside forthcoming applications stands discarded.

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Interested candidates can mail their CVs, aadhaar card and one photo to uniyalassociateslawfirm@gmail.com, sanjeevuniyal@yahoo.com, dhawaluniyal99@gmail.com

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-Report by Zainab Khan

The Delhi high court held in the case of Anil Bali Vs Union of India and others, that the courts can’t interfere in writ petitions filed u/a -226 of the Indian constitution if the petition is premature.

FACTS

When Petitioner was posted as senior commandant officer of CISF at Kochi Port Trust, a complaint of CISF constable using fake caste certificate in his recruitment was lodged. The petitioner was appointed by the respondent to probe into the matter. The petitioner taking reference from the case of Kumari Madhuri Patil Vs Addl. Commissioner (1994) 6 SCC 241, asked the district collector to inquire about the genuineness of the caste certificate. Meanwhile, the constable remained absent from his duty for that period and also refused to appear before a competent authority. Hence, he was punished with compulsory retirement and a 10% cut in a monthly pension because of overstay leave (OSL). On 13th December 2019, the respondent issued a charge sheet against the petitioner for not giving a proper explanation about the constable’s fake caste certificate. The petitioner filed a writ petition under Article 226 of the constitution for quashing the memorandum of charge.

PETITIONER’S CONTENTION

The Learned counsel for Petitioner argued that since the Petitioner was a senior officer he was bound to follow the rule laid in the Kumari Madhuri Patil case. He further argued that the respondent has taken action without examining the reply of Petitioner on 1st November 2017 in which he mentioned rule 9 of Andhra Pradesh schedule caste, certificate
rules 1997 and more acts. The counsel further contended that the respondent’s act was in contravention with rules laid down in Government of A.P & ors Vs A Venkata Raidu (2007) 1 SCC 338 and Kumari Madhuri Patil case. The counsel seeks a writ of certiorari to quash proceedings taken against the Petitioner.

RESPONDENT’S CONTENTION

The learned counsel for the respondent argued that the petitioner has not performed his duty in a bonafide manner and the charge sheet was filed against him u/rule -14 of CCS(CGA) rules,1965 because he has not taken necessary
action against the constable who used a fake caste certificate. He further argued that the petitioner had never mentioned Kumari Madhuri Patel’s case in his reply. The counsel pleaded that the court should not interfere, as
the writ petition is premature as the petitioner has not participated in any prior proceedings of the charge sheet. The counsel relied upon the judgments of Union of India & anr Vs Kunishetty Satyanarayana (2006) 12 SCC 28 and Shashi Bhushan Prasad Vs Inspector General, CISF & ors (2019) 7 SCC 797, where it was ruled that courts should not interfere in the disciplinary proceeding under its limited scope of Article-226 &227 of Indian constitution.

JUDGEMENT

The court examined that petitioner has directly filed the writ petition before HC without going with departmental proceedings and didn’t use the various grievances system available to him. The court ruled that petition being of such premature nature is not maintainable against the mere issuance of the charge sheet. The court relied upon the judgment of Kunishetty Satyanarayan, where it was held that a writ petition should not be entertained against a mere show-cause notice or charge sheet because at that stage the petition may be held to be premature. The writ petition was dismissed because of its premature nature.

It was observed

“The petitioner cannot be permitted to put the cart before the horse. The present petition is based on preponderance of probability as the same is arising out of a charge-sheet issued by the respondents which has not commenced and is yet to see light of the day. Having said so, it is a matter of fact that today there is no adverse order under challenge before us. The present petition is thus pre-mature.”

The court held there is no scope for their interference in the writ petition under Article 226. The writ petition was dismissed.

-Report by Anjana C

It has been held by the Hon’ble Supreme Court of India in the case of Union of India & Anr. v. Subhash Chander Sehgal & Ors. that If there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. 

Facts

Unsatisfied with the decision of the Delhi High Court, the petitioner has appealed. The possession of the land was taken by the authority in 1987and was utilized as a park by the East Delhi Municipal Corporation. However, the High Court of Delhi held that the acquisition proceedings with respect to subject land had lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013.

The decision in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 was cited and the following was said that has been applied to this case: 

• According to Section 24(1)(a), there is no lapse in proceedings if there is an award on the date of commencement of the 2013 Act. 
• If the award has been made within 5 years (excluding the period of an interim order of the Court), the proceedings will be according to the 2013 Act under Section 24(1)(b) under the 1894 Act, regarding it as not repealed. 
• If the possession of land has been taken over and compensation has not been paid, there is no lapse. 
• If compensation is not paid and possession has not been taken, there is no lapse. 
• If the compensation has not been deposited in court, all beneficiaries to the landholding will be entitled, as on the date of notification, to compensation under Section 4 of the 2013 Act.  
• Non-deposit does not result in a lapse of land acquisition proceedings. 
• If compensation has been tendered under Section 31(1) of the 1894 Act, he cannot state that the acquisition has lapsed under Section 24(2) as a result of non-payment or non-deposit of compensation in Court. 
• The obligation to pay is complete when the amount due is tendered in accordance with Section 31(1). 
• Landowners refusing to accept compensation/ who seek reference for a higher compensation are not in the position to claim lapse under Section 24(2) under the 2013 Act.
• The method of acquiring land under the 1894 Act under Section 24(2) is by making an inquest report/ memorandum. 
• Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act. It does not reopen cases/ proceedings nor allow landowners to question the legality of the mode of possession.

Judgment

It was observed that if there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. There will be no question of payment of compensation to the petitioners. It was said that the writ petitioners were entitled to compensation according to the Land Acquisition Act, 1894. All of the above taken into consideration, the Court declared the High Court’s order to be quashed and set aside. The writ petition filed before the High Court was dismissed. The present appeal was allowed, and no order was given regarding costs incurred by the parties.

-Report by Sanju Agarwal

The Delhi High Court has stated in the case of GHULAM SARWAR vs SMT. NILOFAR KHAN & ORS. that the High Court should respect the exercise of discretionary powers by the District judiciary and not act in a manner that conveys an impression that the court is playing the role of a headmaster.

The parties to the suit occupy different areas of the same property. The respondents (originally the plaintiff) had complained that the petitioner had installed a locked iron on the terrace of the fourth floor which restrained the access of the respondents. A decree of mandatory and permanent injunction had been sought in the suit by the respondents restraining the petitioner from interfering with the right of access to the terrace of the respondents. It was also accompanied by an application under Order 39, rules 1 and 2 of the CPC, seeking an ad interim injunction that would restrain the petitioners from fixing iron grills on the passage to the rooftop. The learned SCJ upheld the respondents’ rights to access the terrace only for common amenities such as installing an antenna, water connection, etc., between 9 am to 5 pm. The respondents had to ask for the keys an hour in advance.

An appeal was preferred before the learned ADJ wherein it was held that since the parties were locked in litigation, providing limited access after recognizing the respondents’ rights was unreasonable. The learned ADJ modified the decision of the SCJ and directed the petitioners to give a set of keys to the locked terrace gate to the respondents to give them independent access at all times during the pendency of the suit.

The petitioner aggrieved by the above decisions had filed the petitioner under Article 227 of the Constitution. The Court held that this was not a case that invoked the jurisdiction of the court under Article 227 of the Indian Constitution. It was stated that it was a discretionary order and free from any perversity, therefore immune from any challenge under Article 227. Such a challenge to order can only be justified when the exercise of such discretionary power is perverse in nature.

It was also observed:

“I am constrained to observe that, if the High Court were to start interfering with such orders under Article 227 of the Constitution of India, it is bound to shake the confidence of the district judiciary and seriously impede the dispassionate exercise, by them, of the discretion that the law vests in them. In my considered opinion, it is only as a matter of chance hierarchal circumstance that this Court is “above” the district judiciary. Else, the district judiciary, and the learned Courts of which it is comprised, exercise jurisdiction which, subjectively, is co-equal to the jurisdiction exercised by this Court.”

The court held that the order passed is well reasoned, however, the access has been granted to the respondents for a limited purpose and availing of the facility shall not be abused.

About Divyank Tyagi

Divyank Tyagi is a Practising Advocate at the Hon’ble Supreme Court of India, High Court of Delhi and various district courts in Delhi. An Ambitious, Passionate, Enthusiastic and confident individual, brought up in a multi-ethnic and multicultural environment who had attained legal education from leading institutions with an LL.M degree from National Law School.

Having studied in a dynamic environment and having exposure to working under Legal Stalwarts, he is well versed in legal structures with excellent networking skills and lucrative networks in all fields of law. Due to law-related work experience, and opportunities gained over the years, he has been able to assimilate key skills in the past years. He has managed to define his strengths, growing a strong interest in the legal and financial sectors. Despite his great mindset for business matters, he never forgets to add some creativity and individualism to everything he does.

About the Internship

•  Eligibility: 4th & 5th Year Students of 5-year course / 3rd Year Students of the 3-year course.

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1. Good communication skills in English
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How to Apply?

Interested candidates can share their updated CVs to divyanktyagi03@gmail.com.

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A petition was filed for quashing an FIR, which was registered at the Jaitpur, Delhi police station. The FIR was registered under sections 323(punishment for voluntarily causing hurt), 341(Punishment for wrongful restraint), 506 (Punishment for criminal intimidation), 509 (Word, gesture or act intended to insult the modesty of a woman), 354 (Assault or criminal force to woman with intent to outrage her modesty), 34 (Acts done by several persons in furtherance of common intention) of the IPC.

The children of the complainant and the petitioners had a fight and later the parents got involved which led to a heated argument. The nature of injuries has been reported to be “simple” by the MLC. The parties have now arrived at a settlement with their own consent and therefore they had filed the petition to quash the FIR.

The High Court allowed the quashing of the FIR on the condition that all the parties involved have to work with the Delhi Jal Board team and clean the Yamuna river. A certificate will be issued after 45 days which has to be submitted within one week of receipt. They have to report within ten days from the issuance of the order. It was observed:

“FIR…… and proceedings pursuant thereto, if any, are hereby quashed subject to the petitioners and respondents working with Delhi Jal Board Team under the supervision of Member,………. All the petitioners and respondents will report and do the work assigned for cleaning river Yamuna for a period of 45 days. At the end of satisfactory service, the petitioners and respondents will be given a certificate by Delhi Jal Board for Yamuna Cleaning and this certificate by each of the petitioners and respondents must be placed on record within one week of their receipt. It is expected that the petitioners and respondents will help in cleaning Yamuna river with all their sincere efforts and energies.”

It is indeed a unique punishment that will be beneficial for the environment. The case has been listed for compliance on 16th August 2022.

CASE: Mamta Devi and Ors. vs. The State of NCT OF Delhi and Ors.

http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=166343&yr=2022