Tag: #recentjudgement

-Report by Utkarsh Kamal

In this case, according to the Supreme Court, the State Government cannot argue that Rules of Business were not followed throughout its decision-making process when the Cabinet establishes a committee and the latter’s acts are approved by the Minister and the rest of the Council. The Rajasthan Industrial Development and Investment Corporation Ltd. v. M/s Arfat Petrochemicals Pvt. Ltd. & Ors. case was decided by a bench consisting of Justice Surya Kant and Justice Vikram Nath, and they upheld the subcommittee’s decisions by ruling that the rules of business were followed because the subcommittee was only carrying out its duties on behalf of the entire Council of Ministers.

FACTS:

To J.K. Synthetics Ltd. (“JKSL”) in the Large-Scale Industrial Area of Kota (“LIA, Kota”), the State of Rajasthan granted a leasehold allocation of land (“Land”). The allocation was decided in accordance with the Rajasthan Land Revenue Act of 1956 and the State Government’s industrial policy. The Rajasthan State Industrial and Mineral Development Corporation Ltd. (“RSIMDC”) were established to carry out development projects throughout the State while the lease was still in effect. Following its division into two parts, Rajasthan State Industrial Development and Investment Corporation Ltd. (“RIICO”) took over as the immediate successor to RSIMDC. The RIICO Disposal of Land Rules, 1979 (“1979 Rules”) were established to manage RIICO’s operations with regard to areas under its ownership. In 1998, JKSL was deemed to be a sick firm, and on the directives of the Appellate Authority for Industrial and Financial Reconstruction (“AAIFR”), M/s. Arfat Petrochemicals Pvt. Ltd. (“Respondent No.1”) took over JKSL’s operations. A change was made to the lease of land originally granted to JKSL in favour of Respondent No. 1. After a while, Respondent No. 1 was unable to resuscitate JKSL’s industrial divisions. Respondent No. 1 then presented a plan to RIICO for changing the leased land’s use from industrial to commercial and for subdividing the land. In 2018, RIICO authorized the subdivision and conversion of land; nevertheless, the Model Code of Conduct went into effect the very following day in anticipation of the forthcoming Rajasthan State Assembly Elections. Following the 2018 elections in Rajasthan, which resulted in a new administration, the conversion of leased land came under examination. On January 1, 2019, the newly elected Council of Ministers established a Cabinet Committee to examine actions performed by the former ruling administration during the six-month period prior to the elections. The approvals granted to Respondent No. 1 were revoked by order of the State Government to RIICO. Which were newly won the state assembly election so respondent no.1 file the case in the High Court under article 226 of the constitution. The Cabinet Committee’s decision and RIICO’s actions to revoke the allocation to Respondent No. 1 were both overturned by the High Court. Following that, RIICO and the State Government chose to appeal to the Supreme Court.

LAW RELATED TO THE CASE:

Article 138. Enlargement of the jurisdiction of the Supreme Court

(1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer

(2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court

Article 226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

LEGAL ISSUE

1) Whether the action taken by the Riico without the cabinet interference is valid or not

2) Whether the Riico has the power to allot the land to the petitioner or not 

RESPONDENT’S CONTENTION:

The first Respondent contested the appeal on the grounds that the government judgment is illegal if it does not follow the Rules of Business established under Article 166(3) of the Indian Constitution. The Industries Department is responsible for handling RIICO-related issues, and the Minister for Industries would serve as the nodal authority for making final decisions in this regard. The decision to revoke the lease and subdivide the land is invalid because the Minister for Industries was not involved in the Cabinet Committee or when the final decision was made. Riico is not allowed to allot the land to anyone, so the land allotted to the petitioner is invalid 

APPELLANT’S CONTENTION:

The lease deed was renewed by the District Collector and not by the RIICO since the State Government, which is a party to the petitioner’s proceedings, was involved. According to the notification dated 18.09.1979, the State Government transferred the industrial areas developed and maintained by the Department of Industries to RIICO. As a result, the largest industrial area in Kota, where the subject land is located, was also transferred to RIICO by the State Government via a notification dated 28.09.1979. Therefore, as it is also authorized for the lands that have already been allocated, the RIICO is qualified to provide permissions or approvals under Rule 12 of the Rules of 1959. In order to build affordable housing under the CMJAY program, the petitioner company requested permission from the District Collector. Under this particular program, the District Collector had the right to provide permission regardless of whether the land was owned by the State Government or the RIICO. The fact that the District Collector personally sought the RIICO’s advice in this matter is clear evidence that the RIICO controlled the aforementioned land.

JUDGMENT:

One cannot claim that the State Government violated the Rules of Business when the Cabinet Sub-Committee is only acting on behalf of the entire Council of Ministers. The Bench noted that the Committees had been established by the Council of Ministers to investigate various anomalies. The investigation of the actions taken by RIICO and its alleged abuse of inexistent powers in favour of Respondent No. 1 was also given to a specific committee. It was stated that governance needed to be done in a practical and effective way. The Rules of Business also advocates for collective governance by the Council of Ministers in terms of recommendations made to the Governor. As a result, the Bench determined that the Council had a collective say in the decision to form subcommittees to review decisions made by the previous administration, including those involving activities by RIICO. The Bench determined that the subcommittee was acting on behalf of the full Council of Ministers when it advised Respondent No. 1 to revoke the licenses and approvals. As a result, the Rajasthan Rules of Business were not broken. The decision of the High Court has been overturned

READ FULL JUDGMENT: https://bit.ly/3V4ags8

-Report by Mehul Jain

It was held by the Delhi High Court in the case of Alliance of Digital India Foundation Vs Competition Commission of India & Ors that on April 24, It is made clear that the observations made herein are only to the extent of deciding the present law before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding. It is the conclusion of the Delhi High Court.

FACTS

The judgment is made by the learned Single Judge bench “Hon’ble Mr JusticeTushar Rao Gedela” On 24 April 2023. 

The petitioner has filed the instant writ petition that the following facts shorn of all unnecessary details and germane and relevant to decide the dispute are as under: -1. On 20.02.2020, an anonymous informant filed an information before the Competition Commission of India (hereinafter referred to as “CCI”) under Section 19 of the Competition Act, 2002 (hereinafter referred to as “Act”) against Respondent No. 2 – 5 (collectively referred to as ‘Google’) (First Information). The CCI registered the First Information as Case No. 07 of 2020. 2. Thereafter, on 09.11.2020, the CCI issued a prima facie order under Section 26(1) of the Act in Case No. 7 of 2020 directing the Office of the Director General (DG) to investigate Google. 3. Subsequently, on 29.06.2021, a second informant (Match Group Inc.) (Respondent No. 6 herein) filed information before the CCI against Google under Section 19 of the Act (Second Information). The Commission registered the Second Information as Case No. 14 of 2021. The same was followed by an application for interim relief filed by Alliance of Digital India Foundation (Petitioner) against Google on 06.10.2021 (First IRA) in Case No. 07 of 2020 and Case No. 14 of 2021, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33 of the Act. 4. That thereafter, on 18.10.2021, Petitioner filed a piece of information against Google under Section 19 of the Act (Third Information). The CCI registered the Third Information as Case No. 35 of 2021, which was finally clubbed by Case Nos. 07 of 2020, 14 of 2021 vide its Order dated 02.11.2021. 5. Consequently, from 16.03.2022 till 01.09.2022, the proceedings of these cases moved in full swing by the filing of an investigation report by the DG, which was subsequently followed by its response filed by Google, and the detailed hearings conducted thereafter by the CCI. All such proceedings reached their conclusion by CCI and the matters were reserved for orders. 6. After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on 01.09.2022. 7. The CCI passed the final order in Case No. 07 of 2020, 14 of 2021 and 35 of 2021, which was challenged by Respondent Nos. 2 to 5 by filing a statutory appeal before the National Company Law Appellate Tribunal (NCLAT). 8. Therein, Google, on 25.01.2023, submitted its Compliance Report on its supposed implementation of the eight remedial directions given by the CCI. 9. To the said Compliance Report filed by Google, Petitioner filed three applications, one after the other, under Section 42 of the Act, before the CCI, mainly for causing an inquiry into the compliance report filed by Google along with certain other prayers. That all such applications filed before CCI on 31.01.2023, 06.03.2023, and 28.03.2023 under Section 42 of the Act are still impending adjudication to date.

APPELLANT‘S CONTENTION

At the outset, Mr Roy, learned counsel for the petitioner submits that the interpretation of Section 15 of the Act, insofar as the CCI is concerned, is no more res integra since this Court in Cadd Systems and Services Private Limited vs. Competition Commission of India reported in AIR 2019 Del 194, categorically has, after examining the decision in Mahindra and Mahindra Ltd. vs. Competition Commission of India reported in 2019 SCC OnLine Del 8032 is also the judgment rendered by the Hon’ble Supreme Court in B.K. Srinivasan and Others vs. the State of Karnataka and Others reported in (1987) 1 SCC 658and State of Gujarat vs. Utility Users Welfare Association reported in (2018) 6 SCC 21, concluded, after examining the provisions of Section 15 of the Act, that the said provisions amply make it clear that no act or proceedings of CCI would be invalid because of any vacancy or defect in its Constitution. Learned counsel submits that as a result of the aforesaid observation, the Coordinate Bench of this Court in Cadd Systems (supra) concluded that notwithstanding that a judicial member is required to be appointed at CCI, the order passed by CCI cannot be called into question. Learned counsel relies upon Paras 26,38,39 of the judgment of learned Single Judge in Mylan Laboratories (supra) and fairly submits that the judgment in Mylan Laboratories (supra) was rendered in respect of Intellectual Properties Appellate Board Particularly Section 84(2) of the Trade Marks Act, 1999, regarding the constitution of its bench. Learned counsel has also placed on record a compilation of judgments which have also been considered.

RESPONDENT’S CONTENTION

Learned senior counsel submits that the petitioner is aware that on merits, so far as the charges are concerned, the CCI had given a finding in favour of respondent nos. 2 and 3 and the same was never challenged by the petitioner by filing a statutory appeal thereagainst. He submits that having not challenged the said finding, now to challenge the same by way of the present writ petition or even the application under Section 42 of the Act would amount to the re-agitation of an issue which has been decided by the CCI. On that basis, the learned senior counsel submits that the observations and findings reached by the CCI are final and binding upon the petitioner. Thus, neither the application under Section 42 of the Act nor the present petition is maintainable either on facts or on the law. 

Mr Sandeep Sethi learned senior counsel appears on behalf of respondents nos. 4 and 5 and vehemently opposes the submissions made by the petitioner. According to Mr Sethi, learned senior counsel, Section 8 of the Act decides the composition of the Commission. Referring to sub-Section 1 of Section 8 of the Act, Mr Sethi submits that by the usage of the word “shall”, the legislative intent is to ensure that the Commission would necessarily consist of a Chairperson and not less than two and not more than six other members makes it clear that the minimum quorum for the composition of a competent commission would be minimum of three Members, including the Chairperson.

Learned senior counsel also submits that having said that, the respondents have challenged the directions contained in the Final Order dated 25.10.2022 before the NCLAT. On an overall conspectus, Mr Sethi submits that the present petition is devoid of any merit, is an abuse of the process of law and ought to be dismissed in limine with exemplary cost.

JUDGEMENT

This Court has heard the submissions made on behalf of the respective parties and considered the ratio laid down in various judgments passed by the Hon’ble Supreme Court as well as the judgments delivered by the Division Bench of this Court as well as other High Courts.

Moreover, according to Mr N. Venkataraman, learned ASG, the CCI is constituted following the provisions of the Competition Act, 2002 and is very much functional and also simultaneously carrying out adjudicatory functions. Because of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same following law on or before 26.04.2023. Accordingly, the petition stands disposed of in the above terms. It is made clear that the observations made herein are only to the extent of deciding the present is before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding.

READ FULL JUDGEMENT: https://bit.ly/44dYM9V

-Report by Sejal Jethva

RITU TOMAR VS. STATE OF U.P. AND OTHERS, in this case, the petition filed under Section 482 of the Code of Criminal Procedure (for short “the Cr.P.C.”) for the quashing of the FIR for the offence punishable under Sections 147, 148, 149, 452, 324, 307, 342 and 506 of the Indian Penal Code (for short “the IPC”).

FACTS

According to the prevailing tradition and practice, the marriage of the appellant’s sister, Ms. Rekha, the fourth respondent in this case, and the third respondent came to be solemnized on May 15, 2011, leading to its consummation and the birth of a baby girl who has since been given the name Tejal.

APPELLANT’S CONTENTION

According to the said Ms. Rekha, who claimed she had been expelled from the marital home, she filed a petition under Section 125 of the Criminal Procedure Code, which was registered as V. No. 230 of 2014 and is currently pending on the file of the Principal Family Judge. As a result, an order was made on July 22, 2017, requiring the third respondent to pay a sum of Rs. 5,000 per month. Additionally, on March 15, 2017, she filed a police report (FIR) with the Harsh Vihar Police Station in North East Delhi for Crime No. 73 of 2017 against the third respondent and others for offences punishable by Sections 498A, 406/34 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The jurisdictional police claimed to have started the inquiry based on the aforementioned FIR that was filed.

RESPONDENT’S CONTENTION

When the aforementioned factual situation occurred, the third respondent filed an Application No. 41 of 2018 under Section 156(3) of the Criminal Procedure Code, alleging that the appellant and Respondent Nos. 4 to 7 had forcibly entered his home and attacked the complainant and his father with a knife on the applicant’s head with the intent to kill them when they refused to heed their demands to leave the village after selling the land and home. On the basis of the aforementioned complaint, which was brought before the Chief Judicial Magistrate-I, Gautam Budh Nagar, a report from the second respondent was requested; as a result, a report was submitted on March 11, 2018, opining that the accused parties, including the appellant, never visited the complainant’s home and that the incident in question had not occurred. However, the Learned Magistrate ordered the filing of a police report on May 3, 2018, and as a result, the second respondent filed a police report in Case Crime No. 55 of 2018 against the appellant and others for the violations listed above. As a result, a plea to nullify the aforementioned FIR was filed; however, when it was denied, the current appeal was submitted.

JUDGMENT

1. We have read the documents and listened to knowledgeable solicitors representing the parties. After giving the claim made by the appellant before the High Court careful consideration and repetition before this Court, we have concluded that the third respondent, who is the appellant’s sister’s husband and who had filed an application under Section 156(3) before the Additional Chief Judicial Magistrate-Ist, Gautam Budh Nagar in application No.41 of 2018, has unquestionably passed away while the current proceedings were pending. His name was consequently removed by order dated January 20, 2020. Regarding responses 1 and 2, none have surfaced.

2. Despite the aforementioned facts and the fact that a dispute between two families had already led to the wife filing two cases, which led to the registration of an FIR against the complainant (the third respondent here) and his family members, as well as the fact that none of the villagers, including the complainant’s neighbours, had supported or testified about the occurrence of any incident on January 26, 2018, as claimed by the complainant.

3. Therefore, insofar as the appellant is concerned, we quash the proceedings filed by the second respondent as Crime No.97 of 2018 under Sections 147, 148, 149, 452, 324, 307, 342, and 506 of the IPC. Therefore, the appeal is granted. 

READ FULL JUDGEMENT: https://bit.ly/3mWmir2

-Report by Arunima Jain

The Mumbai High Court on Friday upheld that any individual representing an agricultureconstituency whilst running for candidature must understand the meaning of being a memberof the committee. If the person’s primary source of income is not from agricultural processes,or if the person holds a trader’s/ commission agent’s or broker’s license, or even if the personhas a future interest in obtaining such a licence, then the person would automatically bedenied the right to partake in the elections for the same. A representative of a “firm” who votes in the APMC election does not have a stake in the “firm’s” operations because he is that “firm’s” representative.

FACTS

For the matter at hand, the facts pertain to the election for the Agriculture Produce MarketCommittee. In the constituency of agricultural credit societies and multipurpose cooperativesocieties in the APMC, Parola, the petitioner submitted his candidature in the OBC categoryand in the Open category. In the present case, the petitioner is a member of Parola Taluka

Cooperative Fruit Society. This society is registered to vote in the merchant’s constituencyand has a trader’s licence. The problem that arose was that according to Rule 10(2)(ii) of theMaharashtra Agricultural Produce Market Committee (Election to Committee) Rules, 2017,an individual associated with a trading licence is ineligible to run for office in an agriculturalseat. In furtherance of the same, several objections and appeals were raised which disqualified the petitioner from participating in the elections. The petitioner has accordinglyfiled a writ petition to clarify the matter once and for all.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the petitioner is notdisqualified under Rule 10(2)(ii) of the Election Rules 2017 since he serves as a ParolaTaluka Cooperative Fruit Sale Society representative and does not have an individual license.According to the learned counsel, the petitioner cannot be declared ineligible under Rule10(2)(ii) of the Election Rules 2017 since they represent a society with a trader’s license.

JUDGEMENT

Upon giving due regard to the facts and the law in the above-mentioned case, it is contended by the Bombay High Court that it is patently illegal to have passed the orders as have beenpassed by the preceding authorities. The Hon’ble Court held that the petitioner was not disqualified from running for the elections, and thereby, the election authority has beeninstructed to include the name of the petitioner in the final list of nominated candidates. Moreover, as the inclusion of the petitioner’s name in the list of nominated candidates would not affect the election process at this stage, there was no harm in the same. the writ petition was therefore allowed.

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

-Report by Nehha Mishra

In the case of DILIP KUMAR VS UNION OF INDIA, the court said that the “petitioner may be unfit to perform the duty for the post he was appointed but certainly, punishment of “removal from service” inflicted upon him is too harsh.”

FACTS

The petitioner joined the Indo-Tibetan Police Force (ITBP) in 1993 as a Sub-Inspector and was later elevated to Subedar Major and Assistant Commandant (Group A)/General Diary Duty in 2008.

According to the Shape system of annual medical examination, the petitioner claims to be in Shape -1 absolute medical fitness through 2014. He was sent to Cuttack, Orissa for 28 days under Shape-2 after the petitioner’s wife made a complaint saying that he was an alcoholic.The petitioner was then transported to Base Hospital Tigadi in New Delhi, where, by the opinion, he was determined to be in Shape-1 medically fit. But once more, in their opinion from June 25, 2013, the respondents put the petitioner in Shape 3 for a period of six months.

Petitioner preferred representations in opposition to the opinion from June 25, 2013, but those were not responded to. Six months passed, and the petitioner had been deemed fit for Shape-1. The petitioner claims to have been in an accident and off work for 256 days, which the respondents approved of before allowing him to resume his job. Although the petitioner had not disclosed his medical condition, the 256 days were treated as unpaid leave for not doing any duties.

Petitioner was Shape 1 on January 4, 2014, but changed to Shape 2 again on August 6, 2015, and again on July 20, 2016. On April 11, 2017, it was suggested that he be placed under Shape-5 and removed from service. At another facility, the petitioner underwent a self-examination and was given the all-clear. 

The petitioner claims that despite repeated requests, he was not granted leaves. On 03.07.2017, just as he was about to leave for his hometown, he was informed that his Invalidation Medical Board (IMB) was scheduled in the 9th battalion and instructed to report there. When the petitioner arrived there, he was informed that there was no order for the formation of the IMB; as a result, he returned and reported to his 10th battalion. 

After that, the petitioner was under the doctor’s care, when he was deemed fit, but in the medical report, he was once more placed in the Shape-5 category. On the petitioner’s request, he was sent for a second test, during which time he was determined to be qualified to carry out his duties. But by instructions provided by the MHA, the defendants held the petitioner under observation in Shape-5 and forwarded him to IMB. The Medical Board recommended that the petitioner be terminated from ITBP services.

PETITIONER’S CONTENTION

When removing the petitioner from his position, the respondents, according to the petitioner’s knowledgeable attorney, failed to consider the provisions of Rule 23 of the ITBP Rules, 1994, which state that the officer or board issuing such an order must believe the incumbent is physically unfit, even though it is clear from Dr. Bhatnagar’s report that the petitioner was healthy on the day of his examination.

The seasoned attorney further argued that the MHA guidelines, do not state that anyone who is in Shape-5 must be terminated from employment. The Board considered the period from 2013 to 2016, which includes the 122 days that he was absent from work due to an accident rather than ADS. Since 2013, no complaint has been filed against the petitioner. The relevant fact is that neither of the doctors mentioned above determined that the petitioner had ADS and that he was therefore fit to carry out his obligations. It was argued that the respondent’sactions were malicious, and as a result, they should be disregarded.

RESPONDENT’S CONTENTION

The petitioner was discovered to be intoxicated and was sent for a medical examination, first to Composite Hospital, CRPF, Bhubaneshwar where he was kept in a Low Medical Category; next, he was referred to a Referral Hospital, ITBP for the opinion of a psychiatrist who opined it a case of “Mental and behavioral disorder due to use of alcohol, Harmful use,” according to the learned counsel appearing on behalf of respondents.

Further claimed that the petitioner was assessed by a psychiatrist before being submitted to the IMB. The psychiatrist concluded that the petitioner had been given more than three years to improve and stop drinking, but he had failed and was held under Shape 5. He was then taken before the IMB, which, after considering the specialists’ opinion, advised that the petitioner board out on 06.12.2017.

JUDGEMENT

According to MHA guidelines dated 31.07.2007, para.235(f)(vi), the Controlling Authority is required to watch for any signs of relapse, but in the present case, we do not find any mention of a relapse of ADS in the petitioner. Instead, various reports from different doctors and psychiatrists at various points noted that the petitioner was in a normal, stable state of health.

The court ordered the respondents to have the petitioner examined to determine whether or not he is currently experiencing ADS. As a result, a Medical Board was established, and the petitioner had a physical examination at the Base Hospital in Delhi Cantt by Dr. Virendra Vikram Singh.

According to Dr. Virendra Vikram Singh, a prolonged full remission of the petitioner cannot be predicted with absolute confidence in light of the petitioner’s elevated AST/LFT and sickness, which has the potential for lapse and return. It is widely accepted that it is unfair to intervene in situations involving the Medical Board’s opinion while seated in an appellate or writ jurisdiction, particularly if the opinion is provided by subject-matter experts.

The petitioner may not be qualified to carry out the duties of the position to which he was assigned, but this Court believes that the punishment of “removal from service” meted out to him is excessive. This Court determines that if the petitioner received a lighter sentence, the interests of justice would be served.

As a result, the challenged orders from the respondents, dated 13.04.2021 and 05.05.2020, are hereby reversed. The petitioner will be regarded as having “compulsorily retired from service” and will be eligible for pensionary and other benefits as of the date he was let go from his position. The respondents have four weeks to issue the required orders and provide the necessary benefits.

The present petition is disposed of as a result of the instructions.

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

-Report by Sejal Jethva

ZAFAR BADYARI VS. SANDEEP SINGH, in this matter, the appellant/defendant seeks to challenge the decision made by the learned, Tis Hazari Courts, Delhi, according to Order 43 Rule 1 read with Section 104 CPC.

FACTS

The respondent/plaintiff had brought the underlying lawsuit, CS No.461/2021, following Order 37 CPC, to collect possession, licence fees, and damages of Rs.13,30,000. It was said in the lawsuit that the suit property, a shop on the ground level (apart from the mezzanine floor), had been licenced to the appellant for 11 months at a rate of Rs. 1,33,000 per month, minus additional costs. The dishonoured checks that the appellant had given to the respondent to cover the arrears were the basis for the lawsuit. The contested order states that on September 17, 2021, the appellant received summonses in the suit and was deemed to have been served. Due to the appellant’s refusal to present and/or submit a leave to defend under Rules 3 and 5 of Order 37 CPC, respectively, the trial court issued the ex-parte decree by using Rule 6 of Order 37. A finding of respondent serving of process had been made by the Trial Court.

APPELLANT’S CONTENTION

Rather than using Order 37 Rule 4 as provided for in the CPC, an application was submitted for the setting aside of the ex-parte decree under Order 9 Rule 13 of the CPC. The impugned order makes it clear that the trial court did not suffer any harm as a result of this misunderstanding and treated the case exactly as if it had been submitted in accordance with Order 37 Rule 4 and made identical decisions as such. The appellant did not establish “exceptional circumstances,” as the trial court noted in the impugned ruling, and this suggests that the trial court decided the application in accordance with Rule 4 of Order 37 and not Order 9 and Rule 13.

The appellant attempted to make arguments regarding the case’s merits, but given that the maintainability of the case has been questioned, this Court will first address the maintainability problem because the merits of the case are not currently a factor that should be taken into account. The learned counsel for the appellant was unable to cite any CPC provisions under which the appeal would fall, but he argued that because the two provisions, which essentially deal with the court’s ability to overturn an ex-parte decree, are similar, the appeal may be deemed to be maintainable against the Order 37 Rule 4 order because it is maintainable against an Order 9 Rule 13 order.

RESPONDENT’S CONTENTION

The respondent’s knowledgeable attorney, Mr. Aaditya Vijay Kumar, raised a preliminary challenge to the appeal’s maintainability. He claimed that because the contested ruling was issued in accordance with Order 37 Rule 4 CPC, it is not subject to appeal under Order 43 Rule 1 CPC.

JUDGMENT

1. In order to speed up the resolution of commercial lawsuits, Order 37 CPC relates to the summary trial method. After being served, a defendant is obligated under sub-rule 2 to appear in court; otherwise, the averments in the plaint are deemed conceded, and the plaintiff is entitled to a decree. Within ten days of receiving the summons, the defendant must appear in court and submit a memo of appearance. The plaintiff must serve the defendant with a summons for judgment upon the defendant’s attendance, and the defendant must submit an application for leave to defend the action within ten days of receiving the summons. The Court then decides whether to grant unconditional leave to defend, conditional leave to defend with the conditions it may deem appropriate, or dismiss the leave to defend and pronounce the lawsuit. 

2. A challenge to the order issued in accordance with CPC Order 37 Rule 4 is not admissible under Order 43 Rule 1. As a result, the appeal is denied and the respondent’s initial objection is upheld. The appellant is free to look for a legal remedy if one is available. It is made clear that this Court has not addressed the arguments made by either party about the case’s merits.

READ FULL JUDGEMENT: https://bit.ly/41IBTsZ

-Report by Nehha Mishra

In the case of DELMA LUBNA COELHO VS EDMOND CLINT FERNANDES, the petitioner filed the petition seeking the transfer of the pending case before the family judge at Mangaluru, Karnataka to the family court at Bandra, Mumbai, Maharashtra.

FACTS

The couple met on Facebook in December 2019 and married on December 5, 2020, according to Christian rites and customs at Our Lady of Miracles Church in Mangaluru. Following the marriage, the petitioner lived with the respondent in her matrimonial house in Mangaluru, where she was abused, insulted, and humiliated by the respondent and his family members.

She was accused of everything, and foul language was used against her. Under the guise of providing her with a 10-­15­day break, the respondent booked a one-way ticket for the petitioner and despatched her to Mumbai on January 15, 2021.

After COVID­19 Pandemic limitations were lifted on July 5, 2021, the petitioner returned to Mangaluru. The defendant and his family members, however, refused her admission into her matrimonial house. She was completely distraught. She went to the Pandeshwar Police Station in Mangaluru and filed a complaint. 

The Superintendent of Police intervened and summoned the respondent to the Police Station. The respondent replied that he has already served a divorce notice and that his divorce petition is being prepared.  Despite the petitioner’s repeated appeals, the respondent did not change his behaviour. On 06.08.2021, she responded to the legal notice, claiming that she is ready and eager to come to her matrimonial home and want to live a happily married life. On October 10, 2021, she received a summons from the Court, along with a copy of the divorce petition filed in the Mangaluru Family Court. 

PETITIONER’S CONTENTION

The petitioner’s learned counsel stated that she lives in Mumbai with her elderly parents. No one at her home can accompany her from Mumbai to Mangaluru to defend the petition, which is over 1,000 km away. She doesn’t even know the Kannada language.  The respondent, on the other hand, will experience no difficulties if the petition is relocated to Mumbai (Maharashtra).

The petitioner claims that if given the chance, she would try to rework the marriage. The petitioner was obliged to obtain a job with a bank because the respondent failed to financially support her. If she routinely travels to Mangaluru to attend the proceedings, she risks losing her job as a newbie. She will be unable to bear the additional expenditure.

The petitioner has filed a petition for restitution of marital rights in response to the respondent’s Divorce Petition. 

RESPONDENT’S CONTENTION

On the other hand, experienced counsel for the respondent contended that, even though the parties met on social media, one year before their marriage, she had visited Mangaluru after the COVID19 Pandemic/restrictions were removed and they met often.  

She was well aware of the respondent’s familial background as well as the condition of his family. The petitioner’s behaviour was not the same after the marriage as it was before the marriage.

The petitioner, a permanent resident of Canada, was accustomed to such a way of life. The marriage was just intended to ruin the respondent’s life, even though she first claimed to love Indian culture and traditions. Though it is claimed that the respondent forced the petitioner to leave the matrimonial home, the petitioner chose to leave on her own.   She applied for a job with ICICI Bank immediately after arriving in Mumbai and resigned from the organizationon February 19, 2021, where she was working with the respondent.

The marriage was irretrievably broken since the parties could not reconcile despite several mediations. Without the parties’ consent, this Court may issue divorce under Article 142 of the Indian Constitution.

JUDGEMENT

In marriage disputes, several Transfer Petitions are filed, typically by wives requesting transfer of the matrimonial procedures launched by the husband. Normally, the court accepts the prayer given while being lenient towards ladies.

Given the status of the parties and the fact that it is a petition filed by the wife seeking transfer of the husband’s case from Mangaluru, Karnataka to Mumbai, Maharashtra, we believe no case is made out for transfer of the petition from Mangaluru, Karnataka to Mumbai, Maharashtra.  The wife is a Canadian permanent resident. She must travel abroad frequently.

She can travel to Mangaluru to attend the case hearing and can also request an exemption from the appearance when necessary. Despite this, we do not believe that there is a basis for ordering the respondent to reimburse the petitioner’s travel expenses to Mangaluru based on the financial circumstances of the parties as they currently stand. However, if she wishes to seek compensation for expenses, she may do so by applying with the appropriate court, which will be considered on its own merits. 

We do not believe this is a suitable case for exercising power under Article 142 of the Indian Constitution, despite the parties’ good faith. The judgments relied on by the respondent’s learned counsel are distinguishable, as in those cases, there was adequate evidence on file, and the cause on which the marriage was dissolved in the exercise of power under Article 142 of the Indian Constitution was an irretrievable breakdown of marriage, which is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955.

We do not believe the current petition has substance for the reasons stated above.  As a result, the same is dismissed.

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-Report by Srishti

Delhi High Court in the case of LOUIS VUITTON MALLETIER Vs SANTOSH & ORS. on April 18 passed an ex parte decision imposing a permanent injunction to restrain the defendant from using the plaintiff’s trademark for manufacturing and selling goods and granted other temporary reliefs.

FACTS:

The plaintiff company Louis Vuitton Malletier was set up in France and is a Frenchluxury fashion and leather goods company owning the brand named Louis Vuitton. In 2003, it established its first store in India and currently, there are three stores of the plaintiff in India. It uses its trademark ‘LV’ from the initials of the name of its owner Louis Vuitton. The plaintiff has been using its canvas designs since 1986 popularly known as ‘ Toile monogram’. The plaintiff has also registered its trademarks, ‘the LV’, ‘the Toile monogram pattern’, ‘the Damier pattern’, and ‘theLV flower pattern’. Their ‘LV’ trademark has also been included in the list of ‘well-known trademarks’ by the Indian Trademark Office.

Through the periodical market surveys in 2018, theplaintiff came to know about the selling and manufacturing of goods under histrademark by the defendant. Therefore the plaintiff appointed an investigator toascertain the activities of the defendant and the same was confirmed by theinvestigator. Accordingly, the suit was filed in the court for granting a permanentinjunction to restrain the defendant.

While keeping in view the irreversible damages that canbe caused to the plaintiff, the court on 23^rd February 2018 granted an interiminjunction against the defendant until the delivery of the final order. Hence, thedefendant was temporarily restrained from using the registered trademarks of the plaintiff. Also, three local commissions were set up to seize the manufactured products by the defendant under the trademarks of the plaintiff.

PLAINTIFF’S CONTENTIONS:

1) The assertions made by the plaintiff had not been rebutted and therefore, it was established that the defendant was aware of his illegal acts.

2) He had proved his goodwill and his reputation in respect of the trademarksby registration of the same.

3) He also succeeded in establishing statutory and common law rights as he was using his ‘LV’ trademark for a long time.

Since the defendant was not appearing in the court despite summons, theplaintiff pleaded for a permanent injunction.

DEFENDANT’S CONTENTIONS:

The defendant did not appear in court despite the service of a summons andalso, no written statements were filed by him.

JUDGEMENT:

The court while referring to Hindustan Lever Ltd. Vs . Satish Kumar held ‘since, the defendant has maintained silence, therefore, the guilt of the defendantspeaks for itself’. Hence, it is evident that he’s aware of his illegal acts and has failed to contend the case on merits. Therefore, to avoid further irrevocable damages and to avoid deterioration of the plaintiff’s reputation, the court granted a permanent injunction against the defendant.

The defendants were ordered to provide compensation ofRs.5,00,000. to the plaintiff. As per the volume of seizure products, they were further liable to provide compensation of Rs.1,50,000 and the defendants engaged in manufacturing such products were made liable to compensateRs.3,50,000 in favour of the plaintiff. In total, Rs.9,59,413 was granted to the plaintiff which included fees of local commissions, court fees, and legal fees.

READ FULL JUDGEMENT: https://bit.ly/3mK9GTF

-Report by Kanishka

The recent judgment of ISOLATORS AND ISOLATORS THROUGH ITS PROPRIETOR MRS. SANDHYA MISHRA V/S MADHYA PRADESH MADHYA KSHETRA VIDYUT VITRAN CO. LTD. & ANR. is concerned with the debarring of the contractor in course of tender.

FACTS:

The appellant, a sole proprietorship company, has been in the transformer manufacturing and maintenance industry for the past 30 years. Its facility is located at Govind Pura, Bhopal. The appellant’s only clients are distribution businesses (Discoms). Two renders were issued by the respondent Madhya Pradesh Madhya Kshetra Vidyut Vitran Company Limited. No response on rescheduling the delivery and due to extraordinary storm accompanied by heavy rains caused the roof of their plant to collapse. Half of the project is ready to be delivered and the same was asked to defer by the respondent. Chief General Manager has cancelled all the purchase orders and debarred the company for 3 years and also imposed a fine of 27,98,960. The aggrieved party approached the high court Also high court didn’t even consider the other part(penalty) of the review petition. Nevertheless, the High Court issued an order that was identical to the chief general manager’s order.

APPELLANT’S CONTENTIONS:

The learned counsel for the appellant contended that there has been a violation of natural justice and there was no reason specified by the respondent for debarring the appellant. TS-494, the appellant had supplied 300 out of 586 transformers and as regards TS-532, the appellant had supplied all 63 KVA transformers. It was unlawful to terminate the order for the delivery of the remaining transformers after a significant quantity of transformers had been provided against purchase. The respondent intentionally had not considered the heavy rains resulting in damage to the plant and loss of raw material.

RESPONDENT’S CONTENTIONS:

It was contended by the learned counsel for the respondent that the appellant has not performed on the terms and conditions of the contract and debarring was done after the hearing opportunity given to the appellant. The order has been given in the exercise of the relevant clauses of the purchase order. The termination order had never been challenged by the appellant and the same has attained finality. The learned counsel, imposition of penalty has been consequential to the aforesaid order the same had been as per the terms and conditions of the rate/contract/purchase order.

JUDGEMENT:

The court has quashed and set aside in debarment of the appellant and imposition of penalty, no recovery shall be made from the appellant thereunder and if any amount has been recovered, the same shall be refunded to the appellant within a month from today or else, it shall carry simple interest at the rate of 9% per annum from the date of recovery and until the date of repayment.

The further court explained that:-

1) Imposing of penalty 

A) the appellant was only made aware of the potential debarment in the show-cause notice, and nothing concerning the proposed imposition of penalty was included in the notice.

B) Without explaining why the maximum penalty was sought to be applied, the relevant body has gone ahead and levied the maximum fine of 10% of the deficit supply. The appellant’s list of pertinent considerations could not have been completely disregarded. The respondents have not provided a particular amount of loss in order to support the imposition of the maximum penalty.

Therefore, the lack of particular show-cause notice, the application of a penalty against the appellant cannot be allowed and it is to be set aside.

2) Debarring the appellant for 3 years 

The respondent themselves postponed taking the balance of delivering further there has been no instructions, or communication provided by the respondent to resume the supply. The debarment judgment had been made against the appellant without taking into account the evident factual situation, in which the appellant could not have been solely blamed or held responsible.

Court has also referred to a case Gorkha Security Services v. State (NCT of Delhi) where it was ruled that a prior show-cause notice granting a reasonable opportunity to be heard is a crucial component of all administrative decision-making, especially when those decisions involve blacklisting and carry serious repercussions for the entity being blacklisted. In these situations, providing a legitimate show-cause notice is essential, and failing to do so would render any order of blacklisting based on said order null and void.

Therefore, debarring the appellant for 3 years is also set aside.❖ Both of the orders could only be disapproved because the High Court failed to approach the situation correctly, whether in deciding the writ case or the review petition.

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

-Report by Arunima Jain

The Delhi High Court on Thursday while referring to Section 73 of the Finance Act, 1994, upheld that the question of whether the notice or demand for recovery was given within a reasonable length of time considering the case’s facts and circumstances should be considered by the pertinent official. Moreover, it is established law that jurisdiction must be exercised within a reasonable amount of time even if a time limit is not specified. If there exist nojustified reasons to condone the delay cause, then the relevant case becomes unreasonable in the court of law. Through the case of Sanghvi Reconditioners Pt. Ltd. v. Union of India through the Secretary, Department of Revenue & Ors^., the court further iterated the fact that the definition of ‘reasonable time’ is sufficiently open-ended to take account of the particular facts and circumstances of each case.

FACTS

In the matter at hand, the petitioner is a partnership firm registered under the IndianPartnership Act, 1932. The petitioner company was a contractual worker which was tasked with building residential flats by the Housing Board, Haryana (HBH) during July 2005 which had been completed thereafter. The Anti-Evasion branch of the Respondent organisation proceeded investigation as to why the petitioner company hadn’t paid taxes amounting toapproximately

2.15 crores in addition to not having registered with the Service Tax Department.Accordingly show cause notices and letters were issued to the petitioner from the respondent. After initial proceedings, the petitioner did not receive further communication from the respondent, and considered the case to be closed. But the respondent further asked the petitioner to submitshow cause as to the inability to pay taxes. The show cause notices and letters are being challenged in the present court by the petitioner on the grounds of exceeding the limitationperiod and the nature of the contracts between the petitioner company and its clients beingstatutory bodies in nature.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the contractsprovided by the Housing Board of Haryana were composite in nature and were solely ‘workcontracts. Moreover, since the construction of the residential flats was made in the interest ofpublic good, alongside HBH, the petitioner company was merely aiding in a statutory activityand was hence not liable for service tax. In addition, the petitioner also claimed that theperiod of limitation under Section 73 of the Finance Act, the present case had exceeded its capacity.

 Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that therespondent no.1 had immediately placed the matter at hand in the ‘Call Book’ with theapproval of the commissioner, as had been prescribed by the norms of the CBEC Circulars.Additionally, the respondent also claims that the petitioner was not eligible to attain 67%value of the benefits from the taxable service since the supplies for these services were received by the Petitioner at zero cost from the HBH.

JUDGEMENT

Upon giving due regards to the facts and law in the above-mentioned case, the Hon’ble HighCourt finds it challenging to accept that the impugned show cause notice could not have been decided upon because the Supreme Court was still debating the controversy it involved as regards to the matter of M/s Sobha Developers Ltd. when it came to the concept of ‘CallBooks.’ Even if the concept of such books was assumed to be true, it was still quintessentialfor the respondents to have maintained communication with the petitioner company which itwas unable to do. Moreover, there is no excuse for delaying the decision on the notice formore than fifteen years after the show cause notice and letters were issued. The respondents were directed to restrain from taking any actions regarding the same and the petition was allowed, disposing of all other pending applications.

READ FULL JUDGEMENT: https://bit.ly/43EQvvj