L E G A L A D M I N I S T R A T O R March 2023 I. Civil Appeal No. 6774 of 2022; M/s. Emaar India Ltd. vs Tarun Aggarwal Projects LLP & anr 2022 SCC OnLine SC 1328; 2022 LiveLaw (SC) 823 Held: When a specific plea of non arbitrability was taken, the High Court was at least required to hold a primary inquiry/review and prima facie come to conclusion whether the dispute is arbitrable or not, before appointing the arbitrators. that the agreement does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. The impugned judgement appointing the arbitrators was set aside, and the matter remitted to the High Court to decide the application under Section 11 after holding a preliminary inquiry/ review on whether the dispute is arbitrable or not. Analysis of the Law: The SC relied upon Vidya Drolia vs Durga Trading Corporation 2021 SCC Online SC1018, wherein the SC had held that rarely as a demurrer, the Court may interfere at Section 8 or 11 stage when it is manifestly & ex facie certain that “the arbitration agreement is non -existent, invalid or the disputes are non-arbitrable”, though the nature and facet of non arbitrability would, to some extent, determine the level and nature of judicial scrutiny. Further, the restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably “non arbitrable and to cut off the deadwood.” The prima facie review at the reference stage is to Law of Arbitration cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. Link-https://www.livelaw.in/ pdf_upload/823-emaar-india-ltd -v-tarun-aggarwal-projects-llp30-sep-2022-437943.pdf When a specific plea was taken that the dispute falls within a particular Clause of the agreement and therefore, the dispute is not arbitrable, the High Court was at least required to hold a primary inquiry/review and prima facie come to conclusion on whether the dispute falls under the said Clause or not and whether the dispute is arbitrable or not, before appointing the arbitrators by solely observing
II. Vidya Drolia vs Durga Trading Corporation 2020 SCC Online SC 1018 Landmark Judgement The SC also laid down as to who decides on non-arbitrability: 1. The scope of judicial review under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 2. The Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The Court has been conferred a power of ‘second-look’ on aspects of non-arbitrability post the award. 3. Rarely, as a demurrer, the Court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is nonexistent, invalid or the disputes are demonstrably nonarbitrable and to cut off deadwood. However, it also widened the ambit of judicial discretion, by providing for an intense yet summary prima facie review upon the existence of “legitimate reasons” and “to prevent wastage of public and private resources” and thereby, preventing a reference to arbitration. The examination at Section 11 stage, therefore, would not be limited to merely examining whether there existed an arbitration agreement in writing. https://main.sci.gov.in/ supremecourt/2018/26779/26779_ 2018_32_1501_25180_Judgement_ 14-Dec-2020.pdf 1. Relates to actions in rem, and does not pertain to subordinate rights in personam that arise from rights in rem – (a judgement in rem settles the rights themselves and binds all parties claiming an interest in the dispute even though the judgement is pronounced in their absence. On the contrary, a judgement in personam, merely determines the rights of the litigants inter se). 2. Affects third party rights – Have erga omnes (“towards all”) effect, require centralised adjudication, and mutual adjudication would not be appropriate and enforceable 3. Relates to sovereign and public interest functions of the State – such functions being inalienable and non-delegable, the State alone has the exclusive right and duty to perform such functions, and mutual adjudication would not be enforceable. 4. Is expressly or by necessary implication non-arbitrable as per mandatory statute(s). Held: The SC propounded a fourfold test for determining when the subject matter of a dispute in an arbitration agreement is NOT arbitrable; i.e., when the cause of action / subject matter of the dispute: III. Shivshankara & Anr. versus H.P. Vedavyasa Char Civil Appeal No.10215 of 2011; 2023 Live Law (SC) 261 Held: (i) Mere request through application for amendment of the written statement, especially at the appellate stage, i.e., after the adverse decree and without a genuine, sustainable reason, cannot be allowed. (ii) Section 52 of the Transfer of Property Act, 1882, does not annul the conveyance or the transfer of rights in immovable property during the pendency of a suit, but renders it subservient to the rights of the parties to a litigation. Transfer of Property Act, 1882 1. The position is settled that in dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. However, the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage, where, what is called in question is the judgement and decree passed by the trial Court and, in other words, after the adverse decree and
without a genuine, sustainable reason. In short, the circumstances attending to the particular case are to be taken into account to consider whether such a prayer is allowable or not and no doubt, it is allowable only in rarest of rare circumstances. 2. Transfer of possession pendente lite will also be transfer of property within the meaning of Section 52 and, therefore, the import of Section 52 of the TP Act is that if there is any transfer of right in immovable property during the pendency of a suit such transfer will be non est in the eye of law if it will adversely affect the interest of the other party to the suit in the property concerned. The effect of Section 52 is that the right of the successful party in the litigation in regard to that property would not be affected by the alienation, but it does not mean that as against the transferor the transaction is invalid. In the decision in Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited, this Court held the provision of Section 52 of the Transfer of Property Act, 1882, did not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. There can be no doubt with respect to the position that the prohibition by application of the principles of the said doctrine would take its effect with the institution of the suit. Link:https://www.livelaw.in/ pdf_upload/261-shivashankara-v -hp-vedavyasa-char-29-mar2023-466500.pdf Cont d fro m… I II. Ci vil A ppe al No.10215 The object and purpose of the provisions of Domestic Violence Act 2005 is to provide more effective protection of the rights of Domestic Violence Act, 2005 IV. Vithal Manik Khatri v Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr: (Bombay HC) Writ Petition No. 4037 of 2021 the women who are victims of violence of any kind that occurs within the family. The word ―woman‖ in section 2(a) is no more limited to the binary of women and men and includes also the transgender person who has changed her sex in tune with her gender characteristics. Therefore, the Transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2 (a) of the Domestic Violence Act, 2005. The Court held that a person who has exercised his right to decide the self-identified gender of a woman is an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005. Facts: A Transgender converted her gender to female by performing surgery and within 20 days married a biological male. Due to differences between the parties, she filed Criminal Application under the provisions of the Domestic Violence Act, 2005, and an application seeking interim maintenance, which was granted by the Judicial Magistrate First Class, and affirmed by the learned Additional Sessions Judge, Baramati in appeal, and by the HC. Link: https://www.livelaw.in/ pdf_upload/transgender -dv-act466311.pdf Held: Transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2 (a) of the Domestic Violence Act, 2005.
V. Arup Bhuyan vs State of Assam & ors. (Supreme Court) Criminal Appeal No.889 of 2007 Held. Section 10(a)(i) of the UAPA, 1967 upheld as constitutionally valid; i.e., mere membership of a banned association is punishable. UAPA, 1967. Background: On 24 Mar 2023,the SC in this Reference, overruled its 2011 judgments in Arup Bhuyan vs State of Assam (2011) 3 SCC 377, Indra Das vs State of Assam and State of Kerala vs Raneef (2011) 1 SCC 784 which held that mere membership of a banned association will not incriminate a person under the Unlawful Activities (Prevention) Act 1967 or the Terrorism and Disruptive Activities (Prevention) Act, unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence. Analysis of the Law: Section 10(a) (i) of the UAPA, 1967 has been enacted in furtherance of the interests of sovereignty and integrity of the nation, which are grounds of reasonable restrictions under clause (4) of name and is not an essential part in the process of the determination of correctness of a caste/tribe in every case. VI. Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra and Ors. (Supreme Court) SLP (C) No. 24894 of 2009 Unlawful Activities (Prevention) Act, 1967 Article 19. The Bench observed that the right to free speech and freedom to form association under Art 19 are not absolute rights. The Court observed that the constitutional validity of the UAPA and TADA were upheld in earlier judgments, and the impugned 2011 judgements were passed in bail applications, where the constitutionality of Section 10(a) (i) of the UAPA, 1967 and Section 3 (5) of the TADA were not under challenge, as well as without giving any opportunity to the Union of India to place its view point before the Court. https://main.sci.gov.in/jonew/ judis/37441.pdf When an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section of the UAPA, 1967, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the Parameters for Issuance of Caste Certificates Held: Affinity test is not a litmus test to decide a caste Held: On Mar 2023, a SC Bench interpreted the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate
Act, 2000, and held the following: Affinity test cannot be conclusive either way, and is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste/tribe in every case. Only when the Scrutiny Committee after holding an enquiry is not satisfied with the material produced by the applicant, the case can be referred to the Vigilance Cell, recording brief reasons for non satisfaction with the material provided by the applicant. The occasion to conduct affinity test would arise only after the case is referred to the Vigilance Cell for making an enquiry. The scheme of the 2000 Act and both SC and ST Rules provide for the Scrutiny Committee holding an enquiry on the caste claim of the applicant, if necessary, after examining the applicant on oath, recording evidence of witnesses and calling for documents and records etc. The Scrutiny Committee is expected to record reasons for granting and rejecting the prayer for issue of caste validity certificates. Thus, the Scrutiny Committee has all the trappings of a quasi judicial authority. Background: In March, 2022, observing that two judgments rendered by the SC had set out different parameters for the verification of caste certificates, the SC referred the matter to a 3 judge Bench to decide the parameters available to the Scrutiny Committee for verification of caste certificate. Link-https://main.sci.gov.in/ supremecourt/2009/25379/25379_ 2009_17_1501_43088_Judgement _24-Mar-2023.pdf Service Law: Municipal Corporation VII. Maharashtra Rajya Padvidhar PrathamikShikshak Va Kendra Pramukh Sabha VS Pune Municipal Corporation and Ors. Civil Appeal No. 1765 of 2023; 2023 Live Law (SC) 229 their absorption into the PMC as a result of the statutory protection embodied under Clause (5) of Appendix (IV) read with Section 493 of the Maharashtra Municipal Corporation Act, 1949. Background: 38 villages which were part of the Pune ZP were merged into the Pune Municipal Corporation with effect from 01.11.1999 under Section 3(1) of MMC Act, 1949. Post the merger, primary teachers (the respondents) who were serving in those villages were given the option to have themselves transferred and absorbed into the services of PMC. The respondents opted to accede to the absorption and joined the PMC. There arose a dispute in respect to fixation of inter-se seniority between the teachers who were initially recruited in the ZP and were later on absorbed into the PMC, as opposed to the primary teachers who had been part of the services of the PMC from the very beginning. Analysis of the Law: The SC examined Clause (5) of Appendix (IV) read with Section 493 of the Maharashtra Municipal Corporation Act, 1949, and found that it expressly protects the service rendered by the teachers in the local authority before the appointed day and further provides that it shall be considered as service rendered in the Municipal Corporation itself. Based on this unambiguous provision, the only logical conclusion was that the service rendered by Respondents in the ZP has to be treated as service rendered in the PMC. Such service, therefore, has to be counted towards the Held: Service of employees in Zilla Parishad should be counted for seniority when the ZP has been absorbed by the Municipal Corporation under the MMC Act, 1949. The Court held that the service rendered by Respondents in the ZP was consistent and unbroken, and it remains in existence even after
VIII. State of Gujarat & ors. versus Jayantibhai Ishwarbhai Patel Civil Appeal Nos. 1753 - 1754/2023 (SLP (C) NOS. 34752-53 of 2016) Act referred: Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 determination of their seniority as well. Link:https://www.livelaw.in/ pdf_upload/229-maharashtrarajya-padvidhar-prathamikshikshak-v-pune-municipalcorporation-17-mar-2023- 466690.pdf Land Acquisition Held: For the deemed lapse under Section 24(2) of the Act, 2013, twin conditions of not taking the possession and not paying the compensation, both are required to be satisfied. Therefore, if one of the conditions is not satisfied, there shall not be any deemed lapse. not be open for the original land owner to pray for lapse of acquisition on the ground that the compensation has not been paid. There shall be deemed lapse of acquisition under Section 24(2) of the Act, 2013 only if there is a lapse on the part of the Acquiring Body / beneficiary in not taking the possession, and not paying the compensation to the land owner. The SC reiterated its earlier judgement in the case of Indore Development Authority Vs. Manoharlal and Ors. (2020) 8 SCC 129. Facts: The Respondent landowner resiled from the consent award (initially 90% of the compensation, and 10% amount to be paid thereafter) for the acquisition of his land, and in 1995 he wrote to the Assistant Commissioner, that the compensation may not be paid and the land in question be released from acquisition. On such application, the Assistant Commissioner passed an order recording that the order was passed for payment of the compensation, however, the land owner did not accept such compensation and that he had now applied for cancellation of acquisition itself as he is not prepared to sell the land. The land owner continued to be in possession and continued to cultivate the agricultural lands till 2009 when the Assistant Commissioner, cancelled the earlier order ibid and restored the order for 90% and 10% amount of compensation. The land owner challenged this in HC on the grounds that since neither the compensation had been paid nor the possession of the land in question was taken and that the land owner continued to be in possession of the land in question, the acquisition proceedings are deemed to have lapsed under Section 24(2) of the Act, 2013. Link:https://www.livelaw.in/ pdf_upload/247-state-of-gujarat -v-jayantibhai-ishwarbhai-patel -17-mar-2023-466015.pdf Once the land owner refuses to accept the amount of compensation offered by the Acquiring Body, thereafter it will
IX. Jayanna B @ Jayaram and State of Karnataka Criminal Petition no. 3987 of 2022; 2023 LiveLaw (Kar) 88 Held: A fair opportunity to the accused is to be given for crossexamination of the prosecution witness for the offences punishable under Sections 4 and 8 of the POCSO Act. set aside. Facts: There was a defect on the part of the counsel for the accused for not having crossexamined the prosecutrix/victim after her examination-in-chief. At that time, the counsel sought some adjournment which came to be refused and rejected by the trial Court, and the crossexamination of P.W.1 taken as ―nil‖. Thereafter, the application filed by the accused under Section 311 of Cr.P.C for recalling of PW-1/ victim was rejected by the trial court, and he then approached the HC under Sec 482 for setting aside this order. This Court in a catena of decisions held that fair trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India. Of course, the trial is to be concluded within one year under the POCSO Act, and as per Section 33 of the POCSO Act, the prosecutrix/victim and shall not be called frequently for cross examination by the Court. However, that does not mean there shall not be any opportunity given to the accused for the purpose of prosecution cross-examination of the prosecution witness. The delay should be curtailed but that does not mean the Court should allow cross-examination without giving a fair opportunity to the accused for the offences punishable under Sections 4 and 8 of the POCSO Act. The order of the trial Court rejecting the application for recalling P.W.1 was accordingly Protection of Children from Sexual Offences Act 2012 Major Highlights Of POCSO Act 2012 POCSO Act Full Form Protection Of Children from Sexual Offences Act Date November 14, 2012 What does the POCSO act stand for? An Act to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offenses and for matters connected therewith or incidental thereto. POCSO Act Age Limit The age of protection under this act is under 18 years. POCSO Act Punishment The minimum punishment under the act is 10 years which may extend to life imprisonment with fine.
X Vibhuti Shankar Pandey Vs. State of Madhya Pradesh & ors Civil Appeal no of 2023 (SLP (C) no 10519 of 2020) Held: For regularisation, a daily rated employee must have been initially appointed by a competent authority, and there must be a sanctioned post on which he must be working. to the regularisation of daily rated employees issued by a Constitutional Bench of the Hon‖ble Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors, (2006) 4 SCC 1 wherein it was laid down that (i) the initial appointment must be done by the competent authority, and (ii) there must be a sanctioned post on which the daily rated employee must be working. Link:2023 LiveLaw (SC) 91 Service Law - Regularisation - Two conditions for regularisation of daily wage employees - Firstly, initial of character and antecedents, medical fitness and final checking of documents. On verification, it was found that the petitioner had been involved in a criminal case and also had been acquitted. Thus, the respondent terminated the services and candidature of the petitioner. The Central Administrative Tribunal upheld the termination of the appellant and dismissed the application to reverse the termination order. Analysis of Law: The issue before the Court was whether suppression of material facts of an F.I.R. filed against the petitioner should result in termination from the Delhi Police Services. While setting aside the order of the Central Administrative Tribunal, the Court interpreted the Supreme Court judgements Avatar Singh Vs Union of India, (2016) 8 SCC 471 and Satish Chandra Yadav Vs Union of India, 2022 SCC OnLine SC 1300. It held that the petitioner was not facing any criminal case at the time of filling out the initial application form, in which he also stood acquitted and that the competent authority had failed to consider and give due weight to the trivial nature of the offence and was merely swept by the non -disclosure and concealment of this relevant fact. Facts: The case pertains to the regularisation of an employee who was working as a supervisor since 1980, on a daily rate basis, under a project of the State Water Resources Department of Madhya Pradesh. The appellant sought regularisation in the post of Supervisor/Timekeeper but did not meet the qualification criterion for the same. Subsequently, these qualifications were relaxed in the year 2010 by a Government Order, and thus, the appellant sought regularisation. His application was rejected on the ground that he was never appointed for any post by any competent authority as well as the fact that he was never appointed against any post. The same issue came before the Apex Court for consideration in this case. Analysis of Law: The Supreme Court rejected the claim, relying upon the guidelines pertaining Service Law XI. Mahendra Solanki Vs Commissioner of Police & anr W.P.(C) 2219/2023 Held: Inquiry as to the nature of involvement in the information suppressed is required to be fairly conducted, and the employee cannot automatically be held unsuitable for appointment merely on the ground of concealment. Facts: The petitioner was provisionally selected for the post of Constable (Executive) Male in Delhi in 2020. The selection was subject to satisfactory verification
XII. West Bengal Vs. Debabrata Tiwari & ors. Civil Appeal 8842-8855 OF 2022 Held: Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled. for approval of the appointment on compassionate grounds to the Director of Local Bodies who took no further action. Later upon the filing of a Writ Petition, the Director of Local Bodies passed an order stating that they had no authority to consider the appointments under compassionate grounds in Urban Local Bodies. Assailing the said order, a writ petition was filed before the High Court which was disposed off on the ground of the absence of a sanctioned scheme for compassionate appointment in the Municipality. The same was reversed by a Division Bench of the High Court, and challenged before the Hon‖ble Supreme Court. Analysis of Law: Citing a catena of judgments on compassionate appointments, which has its origin in Article 39 of the Directive Principles of State Policy, on 3 March, 2023 the Court summarised the well-settled principles as under – 1. That a provision for a compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. 2. Appointment on compassionate grounds is not a source of recruitment. 3. Compassionate appointment is not a vested right which can be exercised at any time in future. 4. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 5. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source. https://www.livelaw.in/ pdf_upload/2036620203150142530 judgement03-mar-2023- 462500.pdf 1. since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee. 2. Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Facts: In 2006, applications were made by the heirs of the deceased employees. The Municipality directed an enquiry to determine if the applicants were entitled to compassionate appointment and, in 2013, the Chairperson forwarded a memo XIII. Avtar Singh & Anr. v. State of Punjab (Supreme Court) Held: A Sub-Inspector of Police cannot take action under clause 7 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order of 1988, and such proceedings are totally unauthorized and had to be struck down. Facts: On perusal of a secret information of appellants indulging in selling gas cylinders in black, Sub-Inspector of Police along with other police officials apprehended the accused, who were later convicted for six months and fine under the said provisions. Analysis of the Law. As per clause 7, an officer or the Department of Food and Civil
Supplies of the Government, not below the rank of an Inspector authorised by such Government and notified by Central Government, amongst others is authorised to carry out such exercise/seizure. In this case the search was carried out by a sub inspector. The Court held that it is a settled law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. The Court relied upon Dharani Sugars and Chemicals Ltd. Vs. Union of India and Ors. (2019) 5 SCC 480.The SC set aside the High Court verdict and acquitted the accused who were convicted under Section 7 of Essential Commodities Act, 1955. LINK:https://main.sci.gov.in/ supremecourt/2010/23492/23492_ 2010_16_1502_42976_Judgement _23-Mar-2023.pdf XIV. Srei Multiple Asset Investment Trust Vision India Fund Vs. Deccan Chronicle Marketeers & Others Law of Insolvency Held: Once the Resolution Plan stands approved, no alterations/modifications are permissible. It is either to be approved or disapproved, but any modification after approval of the Resolution Plan by the CoC, based on its commercial wisdom, is not open for judicial review unless it is found to be not in conformity with the mandate of the IBC Code. name of the Corporate Debtor, an application was pending which sought a declaration by the Corporate Debtor that it is the owner of the trademarks (“Deccan Chronicle” and “Andhra Bhoomi”) and the said trademarks be treated as part of the assets of the Corporate Debtor. The N.C.L.T. decided on the said application after the approval of the Resolution Plan in favour of the Corporate Debtor. The same was set aside by the N.C.L.A.T. on the ground that it would amount to a modification of the approved Resolution Plan. The order of the NCLAT was challenged before the Hon‖ble Supreme Court in this case which upheld the order of the NCLAT. Link - https://indiankan oon.org/ doc/96042552/ Facts: The case was filed by the Corporate Debtor, whose resolution plan was approved by the Committee of Creditors (C.O.C.), which was subsequently approved by the NCLT. Although the resolution plan was approved by the NCLT, as regards the brand
XV. Abhishek Singh v. Huhtamaki PPL Ltd & Anr.(Supreme Court) Civil Appeal No. 2241 of 2023 (Arising out of SLP (Civil) No. 6452 0f 2021) Held: Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2018 is binding upon the National Company Law Tribunal. V. Union of India, (2019) 4 SCC 17, wherein it was held that NCLT may invoke its inherent powers under Rule 11 of NCLT Rules, 2016 to allow/disallow an application for withdrawal or settlement, when CoC has not been constituted. Facts: Manpasand Beverages Ltd. (“Corporate Debtor”) is engaged in the business of manufacturing and distribution of fruit beverages. Huhtamaki PPL Ltd. (“Operational Creditor”) used to supply packaging material to the Corporate Debtor. The Operational Creditor filed a petition under Section 9 of IBC, seeking initiation of CIRP against the Corporate Debtor, over a default of Rs.1,31,0 0,825/-. The NCLT admitted the petition and initiated CIRP against the Corporate Debtor. Two days after initiation of CIRP, when the Committee of Creditors (“CoC”) was not even constituted, the Parties entered into Settlement. As per Settlement terms, the Corporate Debtor was required to pay Rs. 95.72 Lakhs and the same was paid within 5 days. the Interim Resolution Professional (“IRP”) of the Corporate Debtor filed an application before NCLT under Regulation 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2018 (“CIRP Regulations”), seeking withdrawal of CIRP against the Corporate Debtor. The Suspended Director (“Appellant”) of the Corporate Debtor also filed an application under Section 12A of IBC for withdrawal of CIRP. The NCLT observed that during the pendency of the application as many as 35 creditors have filed their claims and withdrawal of proceedings would adversely affect their rights. In view of these developments, the Suspended Director of Corporate Debtor (“Appellant”) filed an appeal before the Supreme Court against the order dated 13.04.2021 of NCLT. LINK-https://www.livelaw.in/ pdf_upload/250-abhishek-singhv-huhtamaki-ppl-ltd-28-mar2023-466022.pdf Section 12A of the Insolvency and Bankruptcy Code, 2016 (“IBC”) does not debar entertaining applications for withdrawal of Corporate Insolvency Resolution (“CIRP”) even before the constitution of the Committee of Creditors (“CoC”). Further, Regulation 30A of CIRP Regulations furthers the cause of Section 12A of IBC and they both are not conflicting provisions. The Bench placed reliance on the judgment in Swiss Ribbons (P) Ltd. S A V E T H E D AT E First Ever LBSNAA Moot Court Competition for Officer Trainees of Phase-1 on 27th-28th April 2023
name in the same bank where the earlier account was held and directed the bank to credit two DDs into this second account. Alleging collusion and negligence on the part of the Bank, the MD sought directions against the bank to re-credit Rs 8 lakhs into his Current Account, from the Tamil Nadu State Consumer Disputes Redressal Commission (SCDRC). SCDRC allowed the complaint and the Appeal before NCDRC was dismissed, which was challenged. Analysis of the Law: The SC relied upon Ravneet Singh Bagga vs. KLM Royal Dutch Airlines and Another (2000) 1 SCC 66 in which it was held that the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. If it is found that the person or authority rendering service had taken all precautions and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. The deficiency in service has to be distinguished from the tortious acts of the respondent and the aggrieved person cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. The Court found that as emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors, if allegedly had committed fraud or cheating, the employees of the bank could not be held liable, if they had acted bona fide and followed the due procedure. LINK:https://www.livelaw.in/ pdf_upload/251-chairmanmanaging-director-city-unionbank-ltd-v-r-chandramohan-27- mar-2023-466023.pdf The proceedings before the commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the forum/commission under Consumer Protection Act, 1986. The “deficiency in service”, as well settled, has to be distinguished from criminal acts or tortious acts. There could not be any presumption regard to willful fault, imperfection, shortcoming or inadequacy in the quality, nature or manner of performance in service, as contemplated in Section 2 (1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it. Facts: Following a dispute between directors of a company, a director opened a second current account in the company‖s Consumer Protection Act, 1986 XVI. The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan (Supreme Court) Held: Consumer courts cannot decide complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating.
various High Courts and was upheld. This advisory was again challenged under Art 32 before the SC in a PIL, which was dismissed by the SC in its order dated 08.08.2022 with observations that the mere filing of declaration under the notification dated 11.06.2020 does not preclude the Competent Authority from taking steps under Chapter VB and it shall be open for the Competent Authority to prosecute the said declarants and also take consequential steps of seizure and confiscation of the inventory declared under the said Advisory. Later, Wild Life Act was amended in 2022 and exotic animals as listed in the appendices to CITES are brought within the purview of the said Act. The amending Act, introduces Chapter VB to enforce provisions of CITES and animals listed in the appendices to CITES were added Schedule IV to the Act which make the ownership of such exotic animals punishable. The Petitioner seeking clarification of the SC order dated 08.08.2022 contended that in view of the amending Act, not only the effect of the Advisory, but also the orders of four different High Courts as well as the SC order dated 08.08.2022 stood overruled. Analysis of the Court: The court referred to section 49M of Wild Life Act added by Wild Life (Protection) Amendment Act, 2022 and to Union of India and Anr. v M/s. Ganpati Dealcom Pvt. Ltd. Civil Appeal No. 5783 of 2022, and held that the Amendment Act cannot post-facto criminalise possession. It is well settled that retroactive criminal legislation is prohibited being violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution. LINK:https://www.livelaw.in/ pdf_upload/245-swetab-kumar-v -ministry-of-environment-forestand-climate-change-27-mar2023-465818.pdf The Hon‖ble Supreme Court held that Advisory was an Amnesty Scheme and declarants are immune from prosecution, the same would obviously mean that declarants are immune from prosecution or action under any future laws and amendments incorporated in the Wild Life (Protection) Act, 1972. Facts: Before the Wild Life (Protection) Amendment Act, 2022 was enforced, Ministry of Environment, Forests and Climate Change issued a Notification dated 11.06.2020 which was an Advisory dealing with import of exotic live species of animals and birds in India and declaration of stock. This was challenged before Environmental Laws XVII. Swetab v. Ministry of Environment, Forest & Climate Change and Ors. (Supreme Court) Writ Petition (Civil) No. 540 of 2022 Held: The Court clarified that individuals who have made a declaration of ownership of 'exotic live species' in accordance with the 2020 advisory issued by the Ministry of Environment, Forest and Climate Change are immune from prosecution under the Wild Life (Protection) Act of 1972 or action under any future laws or amendments.
3. Occupancy in the RH/HH; and 4. Number of persons who are “languishing” in mental health institutions. The dashboard contains specific details of the RH/HH, including contact details, number of male and female inmates and a map of the country with locations of these homes and facilities available. The SC noted that the Union Ministry of Health and Family Welfare specifically deals with mental health institutions as a part of its broader remit to cover the area of medical health. The SC directed that on the next date of listing, 21 April 23, the way forward may be presented by the Joint Secretaries in both the Ministries, and clarified that the present proceedings are not intended to be adversarial. 1. The total number of States/UTs having government run Rehabilitation Homes /Halfway Homes; 2. The intake capacities of these RH/HH (bifurcated between male and female inmates); Mental Health XVIII. Gaurav Kumar Bansal vs Dinesh Kumar and Ors Contempt Petition (Civil) No.1653/2018 in W.P.(C) SitRep by States and UTs on setting up of Rehabilitation homes(RH) and Halfway Homes (HH) for persons living with mental illness given to the SC. The SC observed the need for integrating the helpline teleMANAS and e-MANAS prepared by MoHFW with the dashboard “Manoashraya” prepared by MSJE, and directed the ASG Ms Madhavi Divan to take up the matter at the Secretarial level in both the Ministries. Held. The SC on 20 Mar 23 took on record and appreciated the presentation of the dashboard titled “Manoashraya” by Mr Rajesh Yadav, Joint Secretary in MSJE, which was prepared by the Department of Empowerment of Persons with Disabilities in the Ministry of Social Justice and Empowerment. The dashboard inter alia, contains details of:
Miscellaneous XIX Artificial Intelligence enters Litigation, World’s first 'ROBOT LAWYER' to advise Defendants in the U.S. Artificial Intelligence (AI) has been making waves in the legal industry lately, with the world‖s first robot lawyer now advising defendants in the United States. The world‖s first robot lawyer is a virtual assistant named ―DoNotPay‖, which was created by a British teenager, Joshua Browder, in 2015. It is an AI-powered chatbot that helps defendants contest parking tickets, flight cancellations, and other legal issues. It uses natural language processing (NLP) to communicate with users, providing personalised legal advice and assistance. It will instruct the defendants in two speeding ticket cases in Court. The AI, which runs on a smartphone, after listening to court proceedings, will give instructions to the defendants on how to respond through an earpiece. A 22 year old student in Britain has successfully appealed against a 60 Pound parking fine, issued by the York City Council, by using a letter written by an AI ChatBot. XX. Actus Curae Neminem Gravabit (Legal Maxim) The Latin maxim actus curiae neminem gravabit which means that “an act of the court shall prejudice no man” embodies the concept of restitution, and is statutorily recognized in Sec 144 Simply stated Sec 144 mandates that, There should be an erroneous decree/order passed by the court. The party to the record must have received the benefit of such order. The party applying for restitution must show that as a consequence of the erroneous decree or order, a party received the benefit. The erroneous decree or order must have been reversed in appeal/revision or other proceedings The Supreme Court in Kavita Trehan v. Balsara Hygiene Products Ltd held that Section 144 CPC “is only a part of the general law of restitution and not exhaustive. The jurisdiction to make restitution is inherent in every court.”
NATIONAL CENTRE FOR LAW AND ADMINISTRATION Lal Bahadur Shastri National Academy of Administration Mussoorie—248 179 (Uttarakhand) EPABX : +91-135-222-2000 | Website : https://www.lbsnaa.gov.in NCLA Activities 1. 3rd Annual Dr Justice Katikithala Ramaswamy Memorial Lecture was delivered on "Civil Servants and the Constitution of India" by Hon'ble Mr. Justice Sudhanshu Dhulia, Judge Supreme Court of India. Addressing the Faculty, Officer Trainees of IAS Professional Course Phase 1 and other dignitaries, Hon'ble Justice Dhulia advised the participants to uphold human dignity in all endeavours. 2. Law Quiz Competition as part of ‘Vidhaan Se Samvidhaan- Celebration of Rule of Law‖. The Inter-House Competition was on questions from Constitution, administrative law, films based on court-room scenarios, torts, contract Indian Penal Code and legal history. Officer Trainees of IAS Phase 1 Course participated. 1st prize winner Team comprised Dilip KK, Alfred OV & Akshay Pillai. 3. Arbitartion Workshop for Senior Civil Servants. The 1st ever Workshop on Arbitration for Senior Civil Servants, curated under the aegis of National Centre for Law & Administration, LBSNAA was inaugurated by Hon'ble Mr. Justice Ravindra S. Bhat, sitting Judge of Supreme Court. Addressing the participants of the workshop & officer trainees of IAS (2022 Batch) Phase 1 Course, the Hon'ble Judge said "I believe that India has all the resources necessary, intellectual brilliance, spirit of entrepreneurship and infrastructural competence to be a world class hub of Arbitration". During the Workshop intricacies of arbitration agreements, arbitrators & arbitral tribunals, procedure, scope for interim relief and the arbitration awards were discussed in depth. 4. Attachment with District Legal Service Authority. Under ‘Vidhaan Se SamvidhaanCelebrating Rule of Law’, program IAS Phase-1(2022 Batch) OTs were attached with District Legal Service Authority, Dehradun. OTs interacted with beneficiaries of legal aid camps & learned of organization of Lok Adalats, Legal literacy camps and methods to ensure justice and fundamental rights to every citizen.