Tag: supremecourt

ABOUT THE FIRM

Legato Legal is a full-service law firm set up in New Delhi, India with the sole intention of making the availability of legal services more efficient, cost-effective, and time-bound. Legato Legal is built around a focused approach to meeting all clients’ requirements in legal and corporate domains under one umbrella. They combine their legal expertise in different industry sectors with the commercial understanding of their client’s businesses and their international reach helps their clients achieve their business goals.

INTERNSHIP DETAILS

Legato Legal is looking for interns in the month of November for Tis Hazari Court Chamber.

APPLICATION PROCESS

Interested candidates can send their applications to legatolegaloffices@gmail.com

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Internship Description

Malegaonkar and Associates are inviting 5 law students for a physical internship for the month of November – April (2022-2023) at their head office in Pune are available.

APPLICATION PROCESS

Interested candidates can send their applications along with a cover letter to teammalegaonkar@gmail.com

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-Report by Sanstuti Mishra

It has been observed by the Supreme Court in the case of MUNIKRISHNA @ KRISHNA ETC. vs. STATE BY ULSOOR PS that the videography containing confession made before the police is inadmissible as evidence

FACTS

The appellants challenged the judgment and order dated 31st August 2010 passed by the High Court of Karnataka in a Criminal Appeal which continued the order of conviction and sentence passed by the Trial Court against the appellants which convicted the appellants under Section 302 read with Section 34 IPC, which sentenced them to life imprisonment. The Appellants were arrested by the Police Inspector and Investigation Officer in a case of dacoity and murder which was registered at Police Station, Vijayanagar under Sections 354/397, IPC. A voluntary statement was then given by Accused No. 2 and lastly, all five accused confessed that they had committed the murder of S. Ramakrishna by cutting his neck with some strident weapon on the night of 11th October 2000. This happened at their residence and they fled after stealing around Rs.3000/-. They also volunteered to show the place where they had committed the crime on that night along with how they murdered the old aged person and then decamped with the cash and jewellery. A videography statement of the accused was recorded. The accused were convicted by the Trial Court under Section 302 read with Section 34 IPC. The conviction was upheld by the High Court.

COURT’S DECISION

The court observed that this was a case of circumstantial evidence and it had to be proved beyond a reasonable doubt. The entire case of the prosecution was based on the accused’s confession/voluntary testimony to police, the recovery of the murder weapon allegedly seized and the stolen goods from a jewellery store. The Trial Court and the Appellate Court have committed a grave error while relying on the voluntary statements of the accused and their videography statements. Under Article 20(3)7 of the Constitution of India, an accused cannot be compelled to be a witness against himself. Further, a confessional statement given by an accused before a Police officer is inadmissible as evidence.

It was observed

“both the High Court as well as the Sessions Court have ignored the well-established principles of criminal jurisprudences and have relied upon facts and evidences which are clearly inadmissible in a court of law. The crime indeed was ghastly, to say the least. Yet, linking the crime to the present appellants is an exercise which was to be undertaken in the court of law under established principles of law. This has not been done.”

The orders of conviction were thus set aside.

-Report by Nandini Gupta

The Supreme Court has held it in the case of HDFC Bank Ltd. & ors. vs. Union of India that a balance has to be struck between the right to privacy and the right to information.

FACTS

The banks have stated that the Reserve Bank of India has given instructions to the Banks to disclose confidential data under the Right to Information. However, the banks cannot ask for such data according to section 8 Reserve Bank of India Act and the Banking Regulation Act, of 1949. This influences the right to privacy of such Banks and their purchasers. The Reserve Bank of India had given such bearings considering the decision of the High Court in the case of Reserve Bank India v. Jayantilal N. Mistry and Girish Mittal versus Parvati v. Sundaram and another. The application has been filed to dismiss these writ petitions.

PETITIONER’S CONTENTIONS

The applicant, Girish Mittal had looked for excusal of the writ petitions while battling that the current writ petitions, in actuality, are testing the last judgment and Request passed by the Court on account of Reserve Bank of India v. Jayantilal N. Mistry and consequently were not viable and is responsible to be excused.

Advocate Prashant Bhushan, showing up for the benefit of the applicant­-Girish Mittal depended on the judgment of a Nine-Judge Seat of the High Court on account of Naresh Shridhar Mirajkar and others versus Territory of Maharashtra and Anr. on the side of his recommendation that a legal choice can’t be rectified by the Court in the exercise of its purview under Article 32 of the Constitution of India.

RESPONDENT’S CONTENTIONS

Senior Supporters Rakesh Dwivedi, Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, and K.V. Viswanathan and Supporter Divyanshu Sahay, showing up for the writ solicitors Banks presented that the right to protection has been supposed to be as understood essential right by a Five­-Judge Constitution Seat of the Court on account of High Court Promoters on­Record Affiliation and another versus Association of India.

It was additionally presented that Section 45NB of the Reserve Bank of India Act accentuates on the classification of specific data with respect to non-banking organizations. It was expressed that sub­section (4) of Section 45NB of the Reserve Bank of India Act, which is a non­obstante condition, gives that, despite anything contained in any regulation for the time being in force, no court or council or other authority will constrain the Bank to deliver or to give examination of any assertion or other material got by the Bank under any arrangements of this Section.

COURT’S DECISION

The Supreme Court observed

“This Court has seen that however Judges of the greatest court put forth a valiant effort, yet circumstances might emerge, in the most extraordinary of the uncommon cases, which would require reexamination of a last judgment to fix unnatural birth cycle of equity grumbled of. It has been held that in such a case it wouldn’t just be legitimate yet additionally compulsory both lawfully and ethically to correct the mistake. This Court additionally held that to forestall maltreatment of its cycle and to fix a ridiculous unsuccessful labor of equity, the Court might reevaluate its decisions in exercise of its intrinsic power.”

The Court additionally noticed that in the current case, as a matter of fact, the writ solicitors Banks were not parties in that frame of mind of Jayantilal N. Mistry (supra). The Court saw that however the Different Applications documented by HDFC Bank and others for review of the judgment and request on account of Jayantilal N. Mistry (supra) were dismissed by the Court, the Court didn’t dispossess the right of the applicants’ Banks to seek after different cures accessible to them in regulation.

“Without offering any last viewpoint, by all appearances, we track down that the judgment of this Court on account of
Jayantilal N. Mistry (supra) didn’t think about the part of adjusting the right to data and the right to protection.”, the Court held.

The Court additionally saw that the main cure accessible to the candidates is to approach the Court via writ request under Article 32 of the Constitution of India for assurance of the principal privileges of their clients, who are residents of India. In this manner, the Court dismissed the fundamental complaints.

JOB DESCRIPTION

The Chambers of Abhikalp Pratab Singh is looking for:

• No. of Position(s): Two associates (2+ PQE of Supreme Court work)
• Location: C-69, 2nd Floor, Nizamuddin East, Delhi. (Please note that the vacancies are specifically for Supreme Court work.)

APPLICATION PROCESS

Interested candidates can send their applications before 30.09.2022 to APSCHAMBERS@GMAIL.COM

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-Report by Vedanti Wanjari

It has been held by the Supreme Court in the case of The Commissioner, Trade Tax, Uttar Pradesh Vs. M/s. Radico Khetan Ltd. that the power of Section 34 can be exercised only in a case where the transfer of immovable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be to defraud any such tax and other dues.

FACTS

M/s. Shaw Scott Distillery (P) Ltd., Rampur, the original assessee, owed trade tax in the amounts of Rs. 11,28,877 and Rs. 53,89,035 for the years 1980-1981, and 1981-1982 respectively. The recovery process had started and a certificate of recovery was issued. The equipment, tools, and products that belonged to the original assessee were purchased by the respondent for an amount of Rs. 12,12,000/-. The assessing officer (AO) discovered that the original assessee had transferred the aforementioned property during the pendency of ongoing assessment proceedings inorder to deceive the Revenue Department. As a result, the recovery certificate was issued in accordance with Section 34 of the U.P. Trade Tax Act in the name of the original assessee and endorsed by the assessment officer concluding the transfer to be void and to be recovered from the purchaser. This endorsement was challenged by the respondents which was initially dismissed but on a second appeal, it was held by the trade tax tribunal that the recovery certificate and the endorsement were bad in law. The appellants filed a revision application before the High Court which was dismissed. Feeling unsatisfied by the decisions of the High Court of Judicature in Allahabad in the area of trade, the appeal had been filed.

COURT’S DECISION

On April 15, 1990, the recovery certificate was issued against the initial assessee. Consequently, when the assessee transferred its immovable property, there was no proceedings under the Act for value/consideration. To the detriment of recurrence, it is remarked that given the case’s particular events and circumstances as previously described, Section 34 of the Act shall not be applicable in any way. It was observed

“Section 34 of the Act shall be applicable only in a case where there is a transfer of immovable property belonging to the original assesee, during the pendency of any proceedings under the Act with the intention of defrauding any such tax or other dues. As per proviso to Section 34, nothing in Section 34 shall impair the rights of a transferee in good faith and for consideration. Thus, the power of Section 34 can be exercised only in a case where the transfer of immoveable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be with the intention to defraud any such tax and other dues.”

It was further held that given the circumstances, the High Court did not err in dismissing the revision applications and upholding the Trade Tax Tribunal’s rulings that had set aside the endorsement of the recovery certificate that had been granted in favour of the original assessee against the purchaser.  In light of the aforementioned and the reasons already indicated, both appeals are rejected and should be dismissed as a result.

-Report by Aditya Jain

In the case of LIFE INSURANCE CORPORATION vs SANJEEV BUILDERS PRIVATE LIMITED & ANR., The lawsuit was initiated for the specific performance of the contract dated June 8, 1979. Alternatively, the plaintiffs also sought damages. Plaintiffs forwarded Panel Summons No. 854 of 2017 to increase the number of damages for the reason outlined in the affidavit filed in support of said Panel Summons. The single judge of the High Court allowed the above summons of the panel by order dated 11th September 2018, leaving open the question of limitation and at the same time allowing the defendant and the petitioner to submit additional written statements. The complainant chose to appeal against the resolution, which was terminated by the contested resolution on 13 December 2018. Aggrieved and dissatisfied with the impugned order passed by the High Court, the appellant approached this Court with the present appeal.

APPELLANT’s CONTENTION

Counsel submitted that the High Court did not consider that the amendment was affected by the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908. He would submit that the amendment could even be said to be affected by the principle of constructive res judicata. Learned counsel pointed out that at the time the suit was instituted, damages amounting to Rs. 1,01,00,000/- were prayed for as an alternative. Through the amendment, the damages
now prayed for are Rs. 4,00,01,00,000/-. In the aforesaid circumstances, the learned counsel appearing for the petitioner (original defendant) prayed that his appeal being meritorious, the same may be allowed.

RESPONDENTS CONTENTION

Counsel contended that the provisions of Order II Rule 2 CPC cannot apply to the application for amendment of the plaint. The question on appeal was whether an assignee could be sued as a plaintiff in an action after the lapse of 27 years from the commencement of the action. Learned counsel appearing for the plaintiff pleads that the appeal lacks merit, and it may be dismissed with costs.

JUDGEMENT

Conclusions may be summed up as:

• Order II Rule 2 CPC functions as a block against a succeeding suit if the necessary conditions for the application are fulfilled and the field of amendment of pleadings is far outside its purview. Plea of the amendment is barred under Order II Rule 2 CPC, consequently misconceived and henceforth negatived.
• All amendments are permitted that are essential for defining the real question in disagreement on condition that it does not cause injustice to the other side. It was observed as:

“(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC”

• When the amendment would allow the court to deliberate the dispute and support in rendering a more suitable verdict, the prayer for amendment should be permitted.
• Where the amendment simply sought after to introduce an extra or new approach without presenting a cause of action which is time-barred, then the amendment is to be permitted even after the expiration of the limitation.
• The amendment might be allowed where it is proposed to correct the absence of substantial details in the plaint.
• Delay in an application for amendment is alone not a ground to cancel the prayer.
• Where the amendment varies the cause of action or nature of suit, in an attempt to set a completely new case, far-off to the case in the plaint, then the amendment must be forbidden.
• Where, nevertheless, the amendment sought after is with respect to relief in the plaint, and established on facts that are pleaded in the plaint, the amendment stands to be allowed.
• When the amendment is required before the beginning of the trial, the court must be liberal in its style.
  In the complete view of the matter, the court was convinced that the impugned order by the High Court is correct. The appeal was dismissed.

-Report by Vedanti Wanjari

It was held by the Supreme Court of India in the case of MAHADEO & ORS V. SMT. SOVAN DEVI & ORS. that the writ petition submitted by the writ petitioner is wholly misconceived and malicious. It is completely unjustified for the High Court to have handled the case under the pretext of helping a disabled ex-serviceman.

FACTS

The judgment made by the learned Single Judge on November 13, 2018, was confirmed in a judgment by the High Court of Judicature for Rajasthan on April 19, 2021, which was challenged in an appeal filed before the Supreme Court. In 1965, during the Indo-Pak war, Shri Bheru Lal was a Sepoy in the Indian Army who was injured and amputated his right foot. Thereafter, he was invalidated from service.

The Rajasthan Special Assistance to Disabled Ex-Servicemen and Dependants of Deceased Defence Personnel Act has been established by the State. According to Rule 2(a) of the aforementioned Rules, Shri Bheru qualified as a serviceman with a disability. Rule 6 considered allocating up to 25 Bighas of irrigated land or 50 a large amount of unirrigated land. The idea behind Rule 3 was that these Rules would only apply to government lands in the Bhakra and Chambal Rajasthan Canal Project Colonies, or, if not yet reserved, designated by official notice in the newspaper for distribution to veterans with disabilities.

Additionally, Rule 7 considered the terms and restrictions on allocation. Sub Rule 4 was inserted on 16th February 1967 in Rule 7 wherein it was stated that the allotment will be ruled void and the land will become the property of the state if the allottee does not take possession of the land within six months of the date of allotment. Afterwards, it will be available for re-allocation to anyone else based on these Rules.

Shri Bheru Lal apparently requested a land allocation for disabled military members. The District Collector received a letter from the Soldier Welfare Section of the State’s Revenue Department, On Wednesday, March 19, 1997, word spread that it had been agreed to assign 25 Bighas to Rohikhera Village. There is no letter of land allocation provided to the writ petitioner’s husband or the writ petitioner on file. This letter was internal communication between the departments and not a message for the injured soldier.

Bheru Lal died on July 17, 1998. Sovan Devi,  his wife, succeeded in his inheritance. She appears to be employed by Director General, NCC, at their main office. On January 12, 2010, the writ petitioner presented a representation while at work in the DGNCC headquarters stating that neither she nor her husband had been given control of the land. The High Court passed various orders to ensure possession of the land given to her. The learned Single Judge found
that the alternative land offered to the writ petitioner is located in a very remote/far-off area and is not 6 cultivable and therefore, a direction was issued to give possession of the land originally allotted to the writ petitioner.

APPELLANT’S CONTENTION

On September 27, 2021, the appellants brought a civil lawsuit before the Court of Senior Civil Judge, Vallabhanagar, and this is when they learned for the first time about the order issued by the High Court. The writ petitioner was granted land by the High Court, and the appellants sought this Court to contest the High Court’s decision, which went out of its way to order the seizure of land. A letter of allocation was not provided in favor of the petitioner. Inter-departmental communications are firmly established as being essential to the process of deliberation for wise decision-making that cannot be trusted on which to base any claim of entitlement.

COURT’S DECISION

The court observed that the regulations mention that the allocation will expire if possession is not taken within six months. Further, the interdepartmental process is not to be regarded as a letter of allotment. The hon’ble court relied on a lot of cases and it was observed:

“The question, therefore, is whether he did in fact makesuch an order. Merely writing something on the file doesnot amount to an order. Before something amounts to anorder of the State Government two things are necessary.The order has to be expressed in the name of theGovernor as required by clause (1) of Article 166 andthen it has to be communicated. As already indicated, noformal order modifying the decision of the RevenueSecretary was ever made. Until such an order is drawnup the State Government cannot, in our opinion, beregarded as bound by what was stated in the file………...The manner in whichthe matter has been dealt with by the High Court under the guise ofhelp to disabled ex-serviceman is wholly unwarranted”

Even if it is considered to be a letter of allotment, the writ petitioner cannot ask for possession based on such communication after more than 30 years. The writ petition seems to be misconceived and mischievous. Hence the appeal was allowed and the order of the high court was set aside.

-Report by Lynda Mayengbam

The Securities and Exchange Board of India v. Rajkumar Nagpal is an appeal filed in response to the single judge’s ruling on October 28, 2021, which stated that the case concerned a Debenture Trust Agreement between the parties as
issuers and trustees of Debenture Trustees, respectively. The 17 debenture holders had filed a lawsuit to defend their rights and the amount due to them. The case was filed before the Bombay High Court on July 1, 2021.

FACTS

Reliance Commercial Finance Limited as ‘Issuer’ and Vistra ITCL as ‘Debenture Trustee’ executed a Debenture Trust Deed on 3rd May 2017. In response to the first default committed by RCFL, Vistra wrote to SEBI to inform them of the
actions it had taken in its status as Debenture Trustee and to request guidance about the ICA and its implementing mechanisms.

In a circular titled “Standardization of procedure to be followed by Debenture Trustee(s) in case of “Default” by Issuers of Listed Debt Securities,” SEBI published information on October 13, 2020. (“SEBI Circular”). The Plaintiffs, who are 17 Debenture Holders, filed a lawsuit in Bombay High Court on July 1, 2021, seeking an order to restrain RCFL, BoB, and RBI from executing the RBI Circular.

The court ruled that the SEBI circular did not govern the debenture trust deeds and that it could not be allowed to apply retrospectively. The SEBI circular will not precede any of the debenture trust deeds’ specific provisions. Therefore, SEBI challenged the order passed by the Single Judge’s order of the Bombay High Court and submitted an appeal.

RESPONDENT’S ARGUMENTS

The respondents contended that SEBI is not a party to the lawsuit, hence SEBI cannot be deemed an aggrieved party. Any order approving a merger scheme under Section 391 of the 2013 Companies Act is not subjected to appeal by SEBI. The SEBI Circular does not apply to this case because it does not include a scenario in which the holders of the debentures would reach a compromise, settlement, or agreement with the debenture issuer. Given that the SEBI circular has a retrospective application, SEBI’s appeal cannot be upheld. As in Principles of Statutory Interpretation by Justice G.P. Singh, it stated that

‘ The rule against retrospective construction does not apply to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing.

APPELLANT’S ARGUMENTS

The Appellant contended that following Section 13 of the Commercial Courts Act of 2015, this appeal has been submitted as according to Section 13 (1A), “Any person aggrieved” by a decision or order of the Commercial, the
Commercial Appellate Division may hear the appeal. Due to specific remarks made by the Ld. Single Judge in the impugned orders to the effect that the ruling will not set a precedent against SEBI, SEBI’s statutory right to initiate an appeal cannot be revoked. The SEBI Circular makes no mention of its application to defaults that occurred before October 13, 2020. Lawfully, any legislation—delegated or otherwise—is regarded as prospective unless it has been
explicitly or obliquely given retrospective effect. If a debt cannot be settled through the compromise or settlement method, SEBI contends that debenture holders are entitled to receive the whole amount that is owed (principal and
interest). The argument, however, is that the solution reached in accordance with the Division Bench’s directive will also bind all the other debenture holders, who weren’t involved in the initial lawsuit brought before the High Court.

COURT’S DECISION

It was held by the hon’ble court that

i. There is no bar to the civil court’s jurisdiction
ii. The SEBI Circular is applicable if debenture holders wish to implement a Resolution Plan to which the lenders are a party
iii. Dissenting ISIN level debenture holders are bound by the ICA /Resolution Plan
iv. The SEBI Circular has retroactive application

For dissenting debenture holders in the present case the court observed:

“The dissenting debenture holders would have been bound by the Resolution Plan if it had been approved in accordance with the Insolvency and Bankruptcy Code, 2016 or under an ICA as acceded to under the SEBI Circular. We accordingly deem it appropriate that dissenting debenture holders should be provided an option to accept the terms of the Resolution Plan. Alternatively, the dissenting debenture holders have a right to stand outside the proposed Resolution Plan framed under the lender‘s ICA and pursue other legal means to recover their entitled dues.”

The appeal was allowed in part, subject to the directions issued in the judgment under Article 142 of the Constitution.

-Report by Anjana C

The Hon’ble Supreme Court of India has held in the case of Parvez Parwaz & Anr. v. State of Uttar Pradesh & Ors. that Issue of Sanctions to be considered in an appropriate case.

FACTS

This is a special leave petition against the High Court of Allahabad’s judgment dated 22.02.2018 filed by the unsuccessful petitioners, henceforth referred to as the appellant. The first appellant, in this case, was alleged to have made hate speech leading to the “2007 Gorakhpur Riots” and other offenses leading the same to be registered against Sh. Yogi Adityanath, a then Member of Parliament, and others. The investigation was conducted by the CID (Criminal Investigation Department) of the UP Police. Grievances against this investigation, the appellant filed a petition under Article 226 of the Indian Constitution. In the writ petition, a prayer was made for the following reliefs:

a. A writ of mandamus directing the respondents to investigate fairly and impartially by an independent investigating agency. 
b. To include all appropriate sections of IPC and Prevention of Damages to Public Property Act, 1984, along with the Religious Institution (Prevention of Misuse) Act, 1988. It also asked for the investigation of an issue of conspiracy. 
c. To take disciplinary actions against officers who failed to act following the law and did not take any action to initiate criminal liability against the culprits. 
d. To command the respondents to provide the appellants with sufficient security. 

The Division Bench framed three significant issues that needed to be addressed: 
a. Whether to facilitate a fair and impartial investigation, the High Court is vested with the power to transfer the investigation to another body.
b. Whether when the High Court fails to conduct a fair and impartial investigation, the High Court is required to transfer the investigation to an independent authority. 
c. Whether the State has the power to pass an order under Section 196 of Cr.P.C. on someone in a criminal case who gets elected as a Chief Minister in the meantime and it the Executive Head of the State as per Article 163 of the Indian Constitution. 

After assessing both sides of the argument, the Court dismissed the petition because there was no procedural error in the manner of the conduction of the investigation that was noted or any other illegality requiring interference by the Court about its extraordinary power under Article 226 of the Indian Constitution. Following this dismissal, the present appeal was filed. The counsel for the appellants stated that he would only want to readdress the issue of denial of sanction for the prosecution of the accused under Section 196 of the Code of Criminal Procedure.

Appellant’s Contentions: 

In a situation such as this, where the accused is of high status, the Governor has the power to consider the question of grant of sanction, which in this case, the High Court has failed to consider appropriately.

Respondent’s Contention: 

The Counsel states that nothing survives in this matter except academic exercise due to a closed report filed by the appointed investigating agency. The Counsel, addressing the issue of sanctions, states that the first CD containing the
recording was broken, the second was tampered with, and the third simply had a voice sample. These have all been thoroughly examined before the dismissal of the issuance of sanctions.

Judgment: 

The Court observed that the issue of the third CD regarding the tampering and editing of evidence and declared to be undisputed. An affidavit filed on behalf of the second respondent also stated that the investigation was closed. It has been noted that the Counsel for the appellants has filed a protest petition that is pending in the Trial Court. The Court found it unnecessary to engage with the contentions put forth by both parties. However, it was said that the legal questions about the issue of sanctions must be left open and considered in a more appropriate case. For the above reasons, this appeal and any other pending applications stand disposed of.