• “Supreme Court upholds the applicability of maintenance provisions of the Domestic Violence Act towards Live-In Relationships”

    The 3 Judge Bench of CJI Ranjan Gogoi, Justice U.U. Lalit and Justice KM Joseph observed the applicability of a live in partner seeking maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005. The reference was made by a two judge bench of Justice TS Thakur and Justice Kurian Joseph in Lalita Toppo vs. State of Jharkhand to a larger bench to seek clarity on the following questions:
    • Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125?
    • Whether strict proof of marriage is essential for a claim of maintenance under Section 125 CrPC having regard to the provisions of the Domestic Violence Act, 2005?
    • Whether a marriage performed according to the customary rites and ceremonies without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 CrPC?
      The Bench was of the view that the aforementioned questions as made in the reference did not need to be answered as questions sought in the referral order were on the basis of the judgments of the Apex Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and another and Savitaben Somabhai Bhatiya vs. State of Gujarat and others, which were rendered prior to the coming into force of the DVC Act, 2005. However, while disposing off the appeal, the Bench has stated that the appellant has the option of seeking a remedy under the provisions of the DV Act as the provisions of Section 3(a) of the DV Act are applicable in the sense that the economic abuse constitutes domestic violence as stated in Explanation I (iv) as follows: “(iv) “economic abuse”includes-
    • deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
    • disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
    • prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.”
      Image Link: https://bit.ly/2DeTIbW Order Link: Lalit Toppo Versus State of Jharkhand and Others (Courtesy- LiveLaw)  
  • Photocopy of CBSE answer sheets can be obtained under Right to Information Act at Rs. 2 per page: Supreme Court

    While disposing off the Contempt petition [Kumar Sanu & Anr. v. Central Board for Secondary Education]  filed against the Central Board for Secondary Education, Hon’ble Supreme Court took note of its earlier judgment in the matter of Central Board for Secondary Education & Anr.  v. Aditya Bandhopadhyay & Ors. and the counter affidavit filed by CBSE stating that it would provide photocopies of the answer sheets at Rs. 2 per page as contemplated under Right to Information Act, 2005. In the matter of CBSE & Anr. v. Aditya Bandhopadhyay & Ors.  Hon’ble Supreme Court held that answer sheet would fall under the ambit of the definition ‘information’ under section 2(f) of the Right to Information Act, 2005, therefore the fees payable for obtaining answer sheet is determined by the Right to Information (Regulation of Fee and Costs) Rules, 2005. Accordingly, under rule 4 the applicant would have to pay Rs. 2 per page of information sought along with Rs. 10 application fees. In the present contempt petition filed, a counter affidavit was filed by CBSE wherein they stated that they are following the judgment given by Hon’ble Supreme Court i.e. they are only charging Rs. 2 per page for providing photocopy of the answer sheets, but when the students requests for re-evaluation/verification of marks it requires a engagement of lot of manpower and resources in order to complete the process within the stipulated time considering that the admission to higher education depends upon the final marks obtained by the students and the humungous amount of answer sheets collected throughout the country as well as the schools affiliated by CBSE situated in foreign land. The bench comprising of Hon’ble Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K. M. Joseph disposed off the contempt petition filed by WHIP (Whistle for Public Interest) by accepting the counter affidavit filed by CBSE, thus making it yet again clear that photocopy of CBSE answer sheets can be obtained at Rs. 2 per page. Source of image: https://bit.ly/2P1YQ9x
  • Bar Council’s Identification Cards are valid Identification document for train journey with Indian Railways

    Implementing the judgment delivered by Hon’ble Justice Devan Ramachandran in the writ petition T.S. Shyam Prasanth v. The Secretary, Railways & ors. filed before Hon’ble Kerala High Court, The Ministry of Railways issued a Circular dated 8th October 2018 [Commercial circular No. 57 of 2018] to announce that identity card issued by respective Bar Councils issued to advocates will be a valid ID proof for travelling with Indian Railways. Hon’ble High Court of Kerala while disposing of the said Writ Petition held that “It becomes ineluctable that there cannot be any further cause or concern for the Indian Railways, in accepting the photo identity cards issued by the various Bar Councils. Since the respective Councils are obliged to verify and affirm the authenticity of a card issued by them, in case its genuineness is suspected for any reason by the competent Authorities of the Indian Railways. This is more so because they are statutory bodies, operating under the ambit of the Advocates Act, thus enjoining them to ensure the validity and rectitude of the cards and documents issued by them, is it is so required by any Authority, in terms of law.” While hearing this matter, the contention raised by the Indian Railways was that the Bar Councils were not government bodies, and further they are available at different levels in the country (district, state, national) and hence in the absence of any uniformity in the cars issued by such bodies, the same ought not to be considered as valid and acceptable. This was rejected by the bench on the ground that the notion of different level of Bar council in the country is incorrect as there is only one respective Bar Council in a particular state and one at the National Level, therefore there is no lack of uniformity. Considering this, the Indian Railways in its circular stated as follows- “2. In pursuance of a judgement passed by Hon’ble High Court of Kerala in WP(C) No. 35073 of 2014 the matter has been examined and it has been decided that photo identity Cards with serial number issued to Advocates by Bar Council of India may Also be accepted as proof of identity of passengers for undertaking journey by Train.” Source of image: https://bit.ly/2AwOSnI Circular: Commercial Circular No. 57 of 2018
  • “NCDRC upholds home buyer’s right to higher compensation against the token amount specified in the agreement for delayed possession”

    In an appeal filed by the developer against the order and judgment of the State Commission, Chandigarh, the National Consumer Disputes Redressal Commission has held that the builder/developer cannot take recourse to providing compensation as stipulated in the agreement i.e. Rs. 5 per sq. feet per month as compensation for delay in handing over the flat for an unreasonable and unjustified period of time and that the buyer is entitled to seeking compensation much higher for delayed possession or seek refund of the amount paid alternatively. In the case of Emaar MGF Land Ltd and Anr Versus Govind Paul, the appellant had sought the appeal challenging the amount of compensation granted to the Respondent along with refund of the principal amount paid as well as other miscellaneous amounts expended by the Respondent. The contention that the Respondent is entitled to receiving compensation for delayed possession as per the agreement was rejected as the token compensation was only for a short period of delay by the Appellant in handing over the premises and not for an ‘indefinite and unreasonable delay’. The Bench comprising of Presiding Member Dr Kantikar and Member Dinesh Singh disposed the appeal and further enhanced the compensation from Rs. 3 Lakhs to Rs. 5 Lakhs and litigation costs from Rs 25,000 to Rs. 50,000 and observed as follows: “29. In respect of the compensation to be awarded, it may first be seen that the compensation should neither be meagre, nor exorbitant, but equitable and just, commensurate with the loss and injury. In this case the delay in handing over possession was for a period of almost 20 months from the expiry of 36 months of the date of execution of the agreement before the consumer-complainant sought relief under the Act. The possession of the unit in question was not offered even in the subsequent period of litigation in the State Commission (upto 16-08-2016 ; about 03 more months) and also in the still subsequent period of litigation in the National Commission (upto 03-07-2018; yet about 23 more months). The consumer – complainant was in a continuous position of harassment, uncertainty and difficulty even after making payment of 39,88,056 / 42,18,200 = about 94.5% of the consideration amount way back in Aug, Oct.’11. Equitable and just compensation is necessary……”   Image Link: https://bit.ly/2Ouafib Judgment: Emaar MGF Land and Anr Versus Govind Paul
  • The term “association” includes consortium of companies one of which is a foreign company under section 2(1)(f)(iii) of The Arbitration and Conciliation Act, 1996: Supreme Court

    In the matter of M/s Larsen and Toubro Limited Scomi Engineering Bhd. v. Mumbai Metropolitan Region Development Authority hon’ble Supreme Court of India held that the term “association” used in section 2(1)(f)(iii) includes a consortium of companies one of which is a foreign company. The factual matrix which lead to this question for interpretation are as follows- A consortium made of M/s Larsen and Toubro, an Indian company, and Scomi Engineering Bhd., a company incorporated in Malaysia entered into a contract with Mumbai Metropolitan Region Development Authority for planning, designing, development, construction, manufacture, supply, testing and commissioning of a monorail system in two particular earmarked sections in Wadala, Mumbai inclusive of operation and maintenance for a period of three years. A dispute arose from said contract which contains a dispute resolution clause providing for arbitration. In pursuance of said clause a petition was filed before Hon’ble Supreme Court under section 11 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrator. While adjudicating the matter, a bench comprising of Hon’ble Justice R. F. Nariman and Justice Navin Sinha heard arguments from advocated representing both the parties respectively. In a nutshell it was argued that since the consortium has one company as foreign company therefore it will fall under the purview of section 2(1)(f)(iii) of the Arbitration and Conciliation Act, 1996 whereas the advocate for opponent asserted that this consortium per se will not fall under the ambit of section 2(1)(f)(iii), as in accordance with said section as well as the contract in question the Indian company is the lead company and that the Supervisory Board constituted under the Consortium Agreement makes it clear that that the lead partner has the determining voice in appointing the Chairman of the said Board and the fact that the Consortium office is located in Wadala, Mumbai would point to the fact that the central management and control of this Consortium is exercised in India, hence section 2(1)(f)(iii) is not attracted. The fact that whether this consortium will fall within ambit of the term “association” also came for consideration, for which Hon’ble Supreme Court took into consideration definition of ‘person’ under Income Tax Act, 1961 as well as the Law Commission Report No. 246 of August 2014 whereby amendments to Arbitration and Conciliation Act, 1996 were suggested. The court concluded that before the term “a company or” was deleted there were three sets of persons referred under section 2(1)(f)(iii) as separate and distinct persons, hence deletion of the term “a company or” will not affect the exiting persons included under the said section i.e. association and body of individuals. And further in pursuance of a judgment given by Hon’ble Mumbai High Court, in the present matter itself that the case can be made only as a consortium and not as separate entity. Depending upon all the abovementioned arguments raised Hon’ble Supreme Court firstly held that the term “association” under section 2(1)(f)(iii) will include consortium of companies with at least one company which is a foreign company; but dismissed the petition as there is no “international commercial arbitration” as defined in section 2(1)(f) of the Act. Source of image: https://bit.ly/2P3tDlB Judgment: Larsen and Toubro Limited Scomi Engineering Bhd. v. Mumbai Metropolitan Region Development Authority
  • “Order under Section 14(2) of the Arbitration and Conciliation Act can be challenged under Article 227 of the Constitution, iterates Allahabad High Court”

    The Arbitration and Conciliation Act, 1996 has clearly emphasised in its provisions of the extent of judicial intervention by giving utmost authority to the Arbitral Tribunal to decide on proceedings presided upon. The Act has laid down certain grounds under which judicial intervention is permissible. However, certain important questions of law were bought before the High Court in the matter of UP Rajkiya Nirman Nigam Ltd Versus M/S C&C Construction Ltd and Anr regarding the application of Section 115 of the Civil Procedure Code against the order passed by the Civil Court on an application under Section 14(2) of the Act. Hon’ble Justice Sunita Agarwal, who presided over the petition, was confronted with the following questions as to the interpretation of law: (1) Whether Section 5 contained in Part I of the 1996′ Act can be read to mean that by virtue of the said provision, the applicability of the C.P.C. is limited to the extent to which the 1996′ Act permits as it is a self-contained Code. In other words, whether Section 5 of the 1996′ Act contemplates express or implied exclusion of the provisions of the C.P.C. except to the extent that it has been made applicable specifically by the 1996′ Act. (2) Whether the provisions under Section 115 C.P.C. provide substantive right to a party to assail the order passed in a matter arising out of the proceedings before the civil court or it is only procedural in nature i.e. whether a revision under Section 115 C.P.C. can be said to be an alternative remedy available to such an applicant. (3) Whether the availability of the remedy of revision under Section 115 C.P.C. would bar, eclipse or circumscribe the remedy available under Article 227 of the Constitution of India or they are the alternative remedies available to the applicant by sheer change of nomenclature. (4) The last contentious question which has to be determined as to whether after two years, on the preliminary objection raised by the respondent, during the course of final arguments, the present petition under Article 227 of the Constitution is to be thrown on the ground of availability of remedy of revision under Section 115 C.P.C. The Counsel for the Respondent objected to the petition on the grounds that revision of the order is permissible under Section 115 of the Civil Procedure Code and therefore, the remedy under Article 227 is not maintainable. The Counsel for the Petitioner iterated that the legislation cannot limit the scope and applicability of Article 227 of the Constitution by giving reference to the order passed in Mahanagar Telephone Nigam Ltd. v. M/S. Applied Electronics Ltd. In its conclusion, Justice Agarwal rejected the objection of the Respondnet on the maintainability of the petition under Article 227 on the following observation: “Having noticed the scope of enquiry under Section 115 C.P.C. and Article 227 of the Constitution and the fact that the supervisory power in both jurisdictions to be exercised by the High Court are akin to each other and that the objection regarding the maintainability of this petition on the ground of alternative remedy of revision has been taken after two years of its institution, this Court is of the considered view that this petition under Article 227 of the Constitution cannot be thrown on the ground of entertainability i.e. only for the order impugned being revisable. The legal position that the power of superintendence under Article 227 is to be sparingly used in an appropriate case where the order of civil court is assailed, can not to be taken as a ground to throw this petition outrightly on the plea of maintainability, without entering into the merits of the matter.”   Image Link: https://bit.ly/2yhajHP Order: UP Rajkiya Nirman Nigam Ltd Versus Ms C&C Construction Ltd and Anr  
  • “The Plaintiff filing for specific performance has to prove his willingness towards performance of his part of the contract, iterates Supreme Court “

    A suit for Specific Performance of a Contract is filed to secure the execution of the terms and conditions of the contracts in favour of the Plaintiff filing such a suit along with any obligations that accrue from such execution being demanded. Although specific performance demands the performance of the defendant contracting party to perform its part of the contract for successful execution, the Supreme Court has iterated the importance of the Plaintiff’s role in the suit for Specific Performance. In the case of Vijay Kumar and Ors Versus Om Prakash, the Bench of Justice Indira Banerjee and Justice R Bhanumati restored the judgment of the trial court which held that the Plaintiff failed to prove his readiness and willingness to perform the contract.

    The facts of the case were that the respondent-plaintiff had entered into a contract with the appellants-defendant for purchase of a shop in the year 2008 and the sale deed was to be registered at the office of the Sub Registrar. However, the sale deed was not executed and the respondent-plaintiff filed a suit for specific performance of the sale deed. The Trial Court rejected it on the grounds that the respondent-plaintiff had failed to establish his readiness and willingness to perform the contract. After the First Appellate Court and the Punjab and Haryana High Court reversed the Trial Court judgment and restored the suit, the appellants-defendant appealed before the Apex Court which subsequently restored the order of the Trial Court.

    Regarding the stand taken by the respondent-plaintiff on its suit for specific performance, the Bench observed as follows:

    “ 7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondent- plaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs.22,00,000  (Rupees Twenty Two Lakhs). In his evidence, the respondent- plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs.22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.”

    Thus the Bench allowed the appeal and restored the judgment of the trial court in dismissing the suit filed by the respondent-plaintiff and ordered the appellants-defendant to refund the amount of Rs, 4,00,000/- paid as earnest money with interest.

     

    Image Link: https://bit.ly/2yyY5tL

    Judgment: Vijay Kumar and Ors Versus Om Prakash

     

  • Demand and acceptance of bribe is pre-requisite for proving charges under section 7 and section 13(2) of the Prevention of Corruption Act 1988- Supreme Court

    Hon’ble Supreme Court reiterates that in order to succeed to prove offence under section 7 and section 13(2) of the Prevention of Corruption Act 1988 (hereinafter referred to as the “Act”) it is necessary to prove demand as well as acceptance of bribe by the accused. In the matter of Dashrath Singh Chauhan v. Central Bureau of Investigation a bench comprising of Hon’ble Justice Indu Malhotra and Justice Abhay Manohar Sapre allowed the appeal preferred by the appellate by way of special leave and acquitted the appellate of charges framed against him under sections 7 and 13(2) read with section 13(1)(d) of the Act. The appellate stood accused for the said offence of taking bribe and criminal misconduct by the Trail Court and the same was approved by Hon’ble High Court of Delhi. To throw some light on the fact pattern of the case, the appellate along with another Mr. Rajinder Kumar were employee of Delhi Electric Supply Undertaking (DESU) and were accused of criminal conspiracy to accept a bribe of Rs. 4,000/- (Rupees Four Thousand Only) in order to install electric connection in the factory of the complainant Mr. Arun Kumar. Charges were framed against them under section 120-B of the Indian Penal Code, 1892 and Section 7, 13(2) r/w 13(1)(d) of the Act. The Trial court held that offence against section 120-B of the IPC is not proved beyond reasonable doubt by the prosecution hence both the accused were acquitted of the said offence and consequently Mr. Rajinder Kumar was acquitted of charges under the Act but the appellant was held guilty and was sentenced to rigorous imprisonment for 2 (two) years and to pay a fine of Rs. 40,000/- (Rupees Forty-Thousand Only) failing which the appellate will be obligated to undergo simple imprisonment for 6 (six) months. State did not prefer and appeal against the said acquittal of Mr. Rajinder Singh as well as acquittal of the appellate for criminal conspiracy. Aggrieved by the judgement the appellate appealed in the Hon’ble High Court of Delhi which upheld the order passed by the Trial Court. Hence further aggrieved the appellate preferred an appeal to the Apex Court. While hearing the arguments made by both the parties, the court took into consideration judgments like Bhagat Ram v. State of Rajasthan [(1972) 2 SCC 466] and M. K. Harshan v. State of Kerala [(1996) 11 SCC 720) and held that twin requirement for proving the said offences is ‘demand as well as acceptance of bribe’ which is absent in the present case against the appellant. Source of image: https://bit.ly/2yu60bL Judgment: Dashrath Singh Chauhan v. Central Bureau of Investigation
  • “Dismissal of Winding Up Petition at Admission Stage by Company Court not necessary if Petitioner is a secured creditor: Bombay High Court”

    In an appeal filed before it, the Bombay High Court has opined that a Company Court need not necessarily dismiss a Winding Up petition at the Admission Stage even if it has been filed by a Secured Creditor. The Appellant Company was challenging the admission of a Company Petition by the Company Judge wherein the Respondent had sought for winding up of the Appellant Company. In the matter of Stoneman Royale Limited Versus Asset reconstruction Company (India) Limited, the Appellant argued that as per the financial statements, it was evident that there were sufficient means to make the payment of a sum of Rs. 5.34 Crores to the Respondent as balance against a One Time Settlement of Rs. 25.25 Crores. The Appellant referred to the judgment of the Single Judge of the Calcutta High Court in Eastern Spinning Mills and Industries Limited ­ 2012 SCC OnLine Cal 11500 wherein ‘the Company Judge ought not to have admitted petition for winding up of a company where the company was in a position to secure the claim or the demand made by a petitioning creditor.’ Refuting the basis of arguments by the Appellant, the Respondent relied on the judgments of the Division Bench of the Bombay High Court in SICOM Ltd. Vs. Entertainment World Developers Pvt. Ltd. ­ [2016] 197 CompCas 195 (Bom) and Bharat Overseas Bank Ltd. Vs. Shree Arcee Steels P.Ltd.­ [1985] 58 Comp Cas 174 stating that the issue whether the security is really sufficient or not can only be gone into at the stage of final hearing of the petition for winding up and not at the stage of admission. After hearing the arguments placed before it, the Bench of Justice A.S Oka and Justice M.S Sonak preferred the reasoning in the judgment of Bharat Overseas Bank Ltd as against that in Eastern Spinning Mills and Industries Limited on the sole premise that the Court was only concerned ‘with the issue of admission of the petition seeking winding up of the appellant and not with the issue as to whether such a petition should be finally allowed and the appellant be ordered to be wind up.’ Upholding the reasoning given in Bharat Overseas Bank Ltd, the Court dismissed the appeal as there was no good ground for interference with the order of the Company Judge admitting the winding up petition of the Respondent.   Image Link: https://bit.ly/2QCzUC2 Judgment: Stonemann Royale Limited Versus ARCIL
  • Public Interest Litigation filed in Supreme Court alleging faulty hip implants into the bodies of 14,525 Indian Patients by Johnson & Johnson

    Medical negligence by Johnson & Johnson has been alleged by one Mr. Arun Kumar Goenka who has filed a Public Interest Litigation in the Hon’ble Supreme Court. A bench comprising of Hon’ble Chief Justice Ranjan Gogoi, Justice S. K. Kaul, Justice K. M. Joseph accepted the PIL Ashok Kumar Goneka v. Union of India & Ors. It has been alleged by the petitioner that the US-based pharma major Johnson & Johnson has fit faulty hip implants in 14,525 Indian patients. The complaints have been made against Johnson & Johnson, its Indian Subsidiary and DePuy Orthopaedics Inc. A reference in the petition was made to a committee set up by Government of India, headed by Dr. Arun Agarwal, Professor of ENT, Maulana Azad Medical College to investigate the distress caused to Indian patients due to implantation of faulty Hip Implant produced by the alleged companies. The petitioner also pointed out that DePuy Orthopaedics officially withdrew its hip implants as they were faulty in the year 2010. Whereas the said implants were sold in India between the year 2005 to 2006. Johnson & Johnson applied for import license in December 2006 which stood granted by Drug Controller of India in the same year. The petitioner brought to the fore that in the USA the company had to already pay $4.40 billion to the victims of such faulty implants whereas in India no such measures have been taken which has added to the plight of all those patients who are suffering till date. The petitioner’s mother died because of such faulty and defective implants. Taking cognizance of it, the bench ordered that a copy of the report prepared by Dr. Arun Agarwal shall be presented before the court and the next date in given after two months until which Central Government must prepare a response to the same. For this purpose, assistance of Additional Solicitor General has been asked for by the Hon’ble Court. Source of image: https://bit.ly/2E71plH Judgment: Arun Kumar Goenka v. Union of India & Ors.