Case BriefsHigh Courts

Kerala High Court: The Bench of P.V. Asha, J. dismissed a civil writ petition filed by an Assistant Professor holding that Court cannot interfere with the academic qualifications prescribed for an academic post.

The petitioner, an Assistant Professor working on contract basis in the faculty of Dairy Sciences and Technology of Kerala Veterinary and Animal Sciences University filed the instant petition challenging the First Statute relating to qualification for the post of Assistant Professors in the said University.

Petitioner’s contention was that the qualification prescribed for appointment as Assistant Professor in the concerned faculty was vague and made with malafide intention to give appointment to certain persons. Respondent submitted that the petitioner was challenging the statute only because she is an MBA holder with B.Sc in Computer Science and NET qualified without any basic qualification/ degree in Dairy Science and Technology.

The Court examined the provisions of Kerala Veterinary and Animal Sciences University Act, 2010 and opined that UGC Regulations as well as Clause 140 of the Kerala Veterinary and Animal Sciences University First Statutes provided that the qualification for appointment to the post of Assistant Professor should be good academic record with at least 55% marks at the Masters Degree level in a relevant subject from an Indian University or equivalent degree from an accredited foreign university with pass in NET. The discipline in question is Dairy Business Management. Admittedly, the petitioner had no qualification having any relevancy in dairy.

Relying on the judgment of Apex Court in Dr Basavaiah v. Dr H.L. Ramesh, (2010) 8 SCC 372 it was held that the qualifications as to academic requirement had been prescribed by the government with the help of experts in the field. Therefore, this Court was not supposed to interfere with such matters which had already been dealt with by competent persons having sufficient expertise in the field. [Rekha U. Menon v. Vice-Chancellor, Kerala Veterinary and Animal Sciences University, WP(C) No. 12622 of 2015, Order dated 19-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: This case was filed before a Bench of Rohit Arya, J., where petitioner who was a sarpanch was suspended.

Petitioner contended that he was suspended by the impugned order on the ground that a case had been registered for the commission of offence under Sections 7, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988. It is under Section 39(1)(a) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 that the competent authority had the power to suspend an office bearer of Panchayat if any charges are framed under any criminal proceedings under Chapters V-A, VI, IX. Thus, impugned order was without jurisdiction and illegal since no charges were framed against the petitioner.

High Court found substantial force in the submission made by the petitioner regarding the scope of Section 39 of the Act.  Thus, Court was of the view that impugned order was without authority and exceeded the powers under Section 39(1)(a) of the Act. Therefore, the impugned order was set aside. [Vinod v. Panchaya and Social Justice, WP No. 18696 of 2018, dated 14-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by the respondent.

It was directed by the respondent that preference should be given to the warehouses of MP Warehousing and Logistic Corporation if allotment of warehouses occurs and after exhausting the same, other warehouses of private parties may be used, which were taken on rent. Petitioner submitted that he had taken a loan from SBI for construction of a warehouse and since the order of preference to the warehouses of MPWLC only was passed, petitioner could suffer undue loss despite entering into an agreement with the Warehousing Corporation. Thus, impugned order was not justified.

High Court found the arbitration clause in the agreement between petitioner and respondents according to which the validity of impugned order is a dispute and petitioner should have gone for arbitration. Accordingly, since there was an alternate remedy available, the present petition was dismissed as the Court could not invoke its jurisdiction under Article 226 of the Constitution of India. [Gupta Warehouse v. State of MP, 2019 SCC OnLine MP 98, dated 03-01-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]

Case BriefsHigh Courts

Allahabad High Court: This petition was filed before a Single Judge Bench comprising of Pankaj Bhatia, J., against the order of suspension whereby the petitioner has been placed under suspension pending inquiry in terms of the powers conferred under Rule 4 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999.

Petitioner submitted that charge sheet had already been filed against the petitioner which is required to be replied. The reason why he failed to file reply was non-availability of required documents. It is to be noted that the inquiry against the alleged misconduct was pending. 

High Court observed that nothing was mentioned to show that suspension order was without jurisdiction or was mala-fide exercise of power. Hence, the Court found no reason to interfere with the order of suspension. However, the respondent was directed to provide the necessary documents to the petitioner which he requires to file a reply in the disciplinary enquiry. [Anil Kumar Srivastava v. State of U.P., 2018 SCC OnLine All 3213, order dated 21-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Devan Ramachandran, J. dismissed a civil writ petition calling into question the statutory competence of a Chief Judicial Magistrate (CJM) to act under the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.

Learned Senior Counsel on behalf of the petitioner, Mr. K.P. Dandapani, submitted that Section 14 of SARFAESI Act vests jurisdiction to assist the secured creditor in taking possession of a secured asset, only with a Metropolitan Magistrate or a District Magistrate, within whose jurisdiction any such secured asset is situated or found. Since Ernakulam district was not a metropolitan area under the provisions of the Code of Criminal Procedure, 1973, therefore, the CJM would not have jurisdiction to act under Section 14 of SARFAESI Act.

The Court noted that the present issue was pending consideration of Supreme Court in a case titled P.M. Kelukutty v. Young Mens Christian Association numbered as SLP No. 4665 of 2016. However, relying on the judgments of Division Bench of this Court in Muhammed Ashraf v. Union of India, 2008 SCC OnLine Ker 201 and Radhakrishnan V.N. v. State of Kerala, ILR 2008 (4) Ker 863 it was held that a Chief Judicial Magistrate is also authorized by law to act under the provisions of Section 14 of the SARFAESI Act.

In view of the above, the petition was dismissed and petitioners were granted liberty to approach the competent statutory forum for invoking alternative remedies as per law.[Pouly v. Union of India,2018 SCC OnLine Ker 5415, decided on 15-11-2018]

 

Case BriefsHigh Courts

Delhi High Court: While disposing of a petition, a Single Judge Bench comprising of Yogesh Khanna, J. set aside the directions given by a Civil Judge to the Commissioner of Police to organise training programmes for police officials.

The Civil Judge was dealing with a civil suit (property dispute) between two private parties. During the course of proceedings, the parties settled the dispute. The suit was disposed of and decree sheet was ordered to be prepared. Aggrieved thereby, the Commissioner of police preferred the present appeal.

A short question before the High Court was, “In a list between two private parties, can a trial court travel beyond the pleadings to pass such like directions since it is not exercising writ jurisdictions?”

The Court relied on its earlier decision in University of Delhi v. Neelam Gaur, 2002 SCC OnLine Del 500 and observed, “a Civil Court does not possess inherent power to give directions of general nature having far-reaching effect, whatever laudable object such directions may seek to achieve viz., giving training to its officers by the petitioner, such directions ought not to have been passed especially, when the lis before the court did not require passing such directions.” Resultantly, the Court set aside the order of the Civil Judge so far it related to the directions given to the petitioner herein. [Commissioner of Police v. Gayatri, 2018 SCC OnLine Del 13048, dated 18-12-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri, Ashok Bhushan and M.R. Shah, JJ. disposed of a matter concerning execution of conveyance deed and set aside the orders passed by Bombay High Court for want of jurisdiction.

The present proceeding arose out of a suit filed by original plaintiffs– purchasers of flats in the building developed by the defendant Trust. The plaintiffs filed a suit before the trial court for directing the Trust to perform its obligations including execution of conveyance deed of the plot where the subject building was developed. The trial court decreed the suit of plaintiffs. Aggrieved by the same, the Trust approached the High Court. Before the High Court, the plaintiffs filed Note for speaking to Minutes for clarification of certain details on record. The High Court dismissed the appeals and petitions filed by the Trust. However, it is pertinent to note that the impugned order was passed by the High Court below the Note. Aggrieved by orders of the High Court, the Trust preferred the present appeals. The Supreme Court quashed the impugned orders on certain grounds including, inter alia, for want of jurisdiction.

The Court was of the opinion that while passing the order below the Note, the High Court traveled beyond its jurisdiction in regard to the scope of deciding a Note for speaking to Minutes. It explained, “A Note for speaking to Minutes is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a Note for speaking to the Minutes cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A Note for speaking to the Minutes can never be considered to be an application of such a nature.” It was held that while passing the impugned order below the Note, the High Court virtually modified its original order passed in the first appeal. Such a course was not open to the High Court and therefore the order was liable to be set aside. For such and other reasons, the impugned orders of the High Court were set aside. [Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh v. Brijal Tibrewal,2018 SCC OnLine SC 2816, decided on 14-12-2018]

Case BriefsHigh Courts

Patna High Court: A Division bench comprising of Dr Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a civil writ petition quashed the order of Gram Kutchery holding the same to be outside the scope of its jurisdiction.

Facts of the case were that the respondent filed an application before the Gram Kutchery, Mahui alleging that the petitioner had encroached upon Ram Janki temple land without having any right over it. The Gram Kutchery passed an order directing petitioner to vacate the said land. The order was carried in appeal before the first appellate authority – Full members of Gram Kutchery –which rejected the petitioner’s appeal. Aggrieved thereby, the petitioner preferred the instant appeal.

Submission on behalf of the petitioner was that Gram Kutchery’s order had the effect of deciding right to possess the lands in question and such an adjudication touching upon the title of lands was beyond its competence. Whereas the respondent submitted that the petitioner had  wrongfully encroached upon the said land and therefore Gram Kutchery was well within its jurisdiction to pass the impugned order. 

The Court observed that the question as to whether the petitioner had any right to possess the subject land or whether his possession was illegal could only be decided by examining his right, title and interest vis-a-vis of the private respondent. Section 110 of the Panchayat Raj Act, 2006 did not contemplate such a jurisdiction on the Gram Kutchery. The power to remove encroachments did not vest in it. Even otherwise, scope of Section 110 of the Act did not include determination of complicated issues of law and title. 

In view of the above, the Court held that the Gram Kutchery’s exercise of jurisdiction under Section 110 of the Act was grossly illegal and without jurisdiction. The writ petition was allowed and impugned order was quashed.[Bhola Sah v. State of Bihar,2018 SCC OnLine Pat 2030, decided on 06-11-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Sanjay Kumar, J. set aside a trial court order abating a title suit ruling that declaration of voidability of a document is within the jurisdiction of a Civil Court.

Petitioner before this Court was the plaintiff in a title suit filed in trial court for cancellation of registered sale deed allegedly executed by her father in favour of the respondent-defendant. The petitioner’s submission before trial court was that the land in dispute is joint family property and that her aged had lost his consciousness for the last six months before his death. The respondent-defendant taking advantage of his mental condition executed the sale deed by committing fraud and forgery. The trial court, noting the submissions of the petitioner, abated the said suit in terms of Section 4(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Aggrieved thereby, the instant petition was filed for quashing the said order.

The High Court noted that the petitioner’s father neither received any consideration money nor executed any document nor affixed his thumb impression on the purported sale deed. The court relied on full bench decision in Ramkrit Singh v. State of Bihar, 1979 SCC OnLine Pat 30 and observed that if a document has to be set aside, civil suit would be maintainable; but a mere declaration of title or a mere declaration that the document is void can be done by the consideration authority. In the instant case, the purported sale deed was voidable and therefore it was within the jurisdiction of civil court to cancel or set aside the said document.

The Court noted that cancellation of purported sale deed was sought by petitioner on the grounds of fraud and forgery which could be determined only after recording evidence of the parties. As such, the impugned order was set aside and trial court was directed to proceed with the suit. [Gangotri Devi v. Bhukhan Singh,2018 SCC OnLine Pat 1984, decided on 02-11-2018]

 

Case BriefsHigh Courts

Karnataka High Court: A Division bench comprising of Dinesh Maheswari and S.G. Pandit, JJ. while hearing a civil writ petition declined to exercise its jurisdiction under public interest litigation since the petition involved the determination of questions of fact.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to call for records pertaining to the case on hand and seeking a direction against the respondent State to clear the road by removing encroachments made on public roads.

The court, on the day of preliminary hearing, stated that it was not persuaded to entertain the present petition as a public interest litigation (PIL) because though the petition alleged several encroachments on public pathway and roads but none of the alleged encroachers had been impleaded as a party to the said petition, not even in a representative capacity. Further, it was noted that the matter involved questions of fact which could not be determined in the PIL jurisdiction of the Court.

With the aforesaid observations and noting, the court dismissed the present petition with a liberty to the petitioner to take recourse to appropriate remedies in accordance with law. [Chaitanya Mandal v. State of Karnataka,2018 SCC OnLine Kar 1755, decided on 23-10-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Member Bench of Anup K Thakur, C. Viswanath, Members, dismissed a complaint at the stage of maintainability, which was filed for claiming deficiency of services on the part of the opposite party.

The complainant had booked a residential apartment in one of the projects of the opposite party and the complainant had paid almost the entire cost of the prospective flat in installments. The opposite party failed to construct the flat and hence the complainant alleged deficiency in services on the part of opposite party.

The main issue that arose before the Commission was whether the complaint was maintainable before the Commission.

The Commission observed that as per Section 21(a)(i) of the Consumer Protection Act, 1986, the Commission shall have jurisdiction to entertain consumer complaints wherein the sum of goods and services along with compensation claimed by the complainant exceeds Rs. 1,00,00,000/-. In the present case, the total cost of flat along-with interest claimed by the complainant was below the mark of Rs. 1,00,00,000/-. However, the complainant had claimed an amount of Rs. 45,00,000/- for mental agony, which was almost at par with the cost of the flat itself.

The Commission held that the amount of compensation claimed by the complainant for mental agony suffered is highly unreasonable and in the absence of the same, the cost of the flat along with the interest does not cross the mark of Rs. 1,00,00,000/- and hence this case does not come under the jurisdiction of the Commission. Resultantly the complaint filed by the complainant was dismissed. [Aanchal Garg v.  Amahagun India (P) Ltd., 2018 SCC OnLine NCDRC 379, order dated- 09-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of S.M. Kantikar and Dinesh Singh, Members, allowed an appeal filed against the order of Delhi State Consumer Disputes Redressal Commission whereby the appellant’s petition was dismissed at the stage of maintainability itself.

The appellant had filed a complaint against the respondents for medical negligence. One of the respondents had prescribed a medicine for appellant’s husband; however, the pharmacist (OP-2) gave the wrong medicine. The appellant’s husband died because of taking the wrong medicine.

The main issue that arose before the Commission was whether the present dispute amounts to a consumer dispute and hence whether it can be adjudicated upon under the provisions of Consumer Protection Act, 1986.

The Commission observed that the State Commission had cited the case of Bright Transport Co. Ltd. v. Sangli Sehkari Bank Ltd., II (2012) CPJ 151 (NC) wherein it was held that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by the consumer fora. However, in the instant case the appellant had neither alleged fraud nor did she allege forgery on the part of respondents.

The Commission held that it was a case of medical negligence and deficiency in services and it does not require recording of voluminous evidence and consideration, as may make the adjudication of this case unfeasible or prescribed in consumer fora. The allegations of medical negligence and deficiency of services is a complaint within the meaning of Section 2(1)(c) of the 1986 Act and would convert into a “consumer dispute” within the meaning of Section 2(1)(e) if the opposite parties dispute or deny the allegations contained in the complaint. [Vimla v. Ashwani Gupta, First Appeal No. 1062 of 2018, order dated 05-08-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge bench comprising of Rashid Ali Dar, J. while dealing with a civil revision petition filed against the order of trial court allowing withdrawal of suit, upheld the trial court order on the finding that there were sufficient grounds for granting leave for withdrawal.

Factual matrix of the case revolves around a property dispute wherein the respondent-plaintiff, due to wrong counseling of advocate, filed a suit for injunction in the trial court instead of a suit for partition, declaration, and possession. Since the suit would fail for this formal defect, the respondent filed an application for leave to withdraw the suit and the same was granted by the trial court. It is against this order that the instant revision petition was filed by the petitioner-defendant.

At the outset, the court observed that the jurisdiction sought to be invoked by the petitioner was barred in terms of proviso to Section 115 of CPC since the application moved for withdrawal of suit, if decided otherwise, would not have terminated the proceeding. Further, the court noted that the words ‘formal defect’ and ‘other sufficient grounds’ under Order XXIII Rule 3 of CPC had been liberally interpreted by many courts and the only restriction on the exercise of this power is, that a defect which affects the merits of the case and which may or may not be fatal to the case cannot be allowed to be removed.

The High Court observed that the petitioner-defendant could be reasonably compensated for the delay in having the proceedings concluded expeditiously or for the filing of the fresh suit after granting of leave. Moreover, the leave granted by the trial court did not put the petitioner-defendant in an irremediable situation which could not be compensated by costs.

On the aforesaid reasoning, the revision petition was dismissed for being without merit. However, the petitioners were granted liberty to move a formal motion before the trial court for granting of reasonable costs subject to which the fresh plaint of respondent – plaintiff may be taken on record. [Ghulam Nabi Bhat v Haneefa,2018 SCC OnLine J&K 665, decided on 18-09-2018]

Case BriefsHigh Courts

Kerala High Court: The question before a 2-Judge Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., was to determine the jurisdiction of Court, whether Court can entertain a matter related to guardianship of a minor or not where the expression “the place where the minor ordinarily resides” in Section 9(1) of the Guardians and Wards Act, 1890 was to be interpreted.

The facts leading to the instant petition are that the appellant (mother of minor) filed a petition in family court for the custody of her minor child. The respondent (father of the minor) contested the above petition by challenging the jurisdiction of Court on grounds that by virtue of Section 9(1) of the Act Court had no jurisdiction to try this matter as the correct jurisdiction would be where the minor ordinarily resides. Court thereby ordered appellant to file the petition before the court having jurisdiction. This order of the court is challenged before the High Court in the instant petition. The High Court referred case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 where Apex Court held that test to determine the jurisdiction of Court to entertain the application of guardianship of minor is the place of ordinary residence of a minor. Appellant pleaded that under Section 6 of Hindu Minority and Guardianship Act, 1956 custody of a minor who is below five years of age is with the mother and since minor was less than five years old appellant would be the natural guardian of the minor thus her residence would be the ordinary residence of minor. Court rejected this pleading and cleared that it is the ordinary residence of the minor which is going to decide the jurisdiction of the Court and not the residence of natural guardian.

Therefore, Court found no error in the finding of lower court that it had no jurisdiction to try this matter as minor was not ordinarily residing within its jurisdiction. [Divya J. Nair v. S.K. Sreekanth,2018 SCC OnLine Ker 3375, dated 12-09-2018]

Case BriefsForeign Courts

Constitutional Court of South Africa: A 10-Judge Bench comprising of CJ Mogoeng and Cachalia, Dlodlo, Goliath, Petse, AJ., Froneman, Jafta, Khampepe, Madlanga, and Theron, JJ., dealt with three appeals together having similar issues.

Facts of the case are that the appellants had been imposed with life sentences under the Criminal Law Amendment Act, 1997 (Minimum Sentences Act). The appellants pleaded that the sentence pronounced by High Court were unfair as it had no power to sentence appellant under the Minimum Sentences Act without making the accused aware of its potential application from the beginning of the Trial i.e. the relevant provision to be mentioned in the charge-sheet.

This Court’s jurisdiction was challenged in this appeal to which the Court viewed that letting know of the charge with details to answer it is a constitutional matter and thus this Court had the jurisdiction to deal with this appeal. Further issue before this Court was whether the state failed adequately to inform the appellants of the minimum sentencing regime at relevant times. Appellants contended that right to fair trial guaranteed under Section 35 (3) of the Constitution was infringed as they were not informed of the application of Minimum Sentences Act and relevant provision of the Act was not mentioned in the charge sheet. Court referred case of S v. Ndlovu, (2017) ZACC 19  and observed that by virtue of this precedent it cannot be said that if accused is not informed of applicability of the Act the trial would be rendered unfair though the same had come in practice, that relevant section of the Act ought to be mentioned in the chargesheet. In case applicable section of the Act is not mentioned then it should be derived from the facts of the case if such omission renders the proceedings unfair or not. Therefore, all the applications for leave to appeal were dismissed. [MT v. State, Case CCT 122 of 17, decided on 03-09-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of M.K. Hanjura, J., allowed an application filed against the order dismissing the petitioner’s petition under Section 561-A of the CrPC, 1989 [Jammu & Kashmir]. The petitioner sought quashing of the dismissal order primarily on the ground that it was passed behind his back.

The main issue, in this case, was whether a criminal Court can recall or review its decision after the date of its delivery.

The Court applied the ratio laid down by the Hon’ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, wherein the Supreme Court had held that there is no power of review with the criminal court once the judgment has been rendered. However, 4 exceptions to this general rule were also laid down by the Supreme Court: first, if the judgment is pronounced without jurisdiction; second, if it is in violation of the principles of natural justice; third, if it has been pronounced without giving an opportunity of being heard to the party affected by it; and fourth, where the order is obtained by abuse of the process of the Court. In all these cases the High Court under its inherent jurisdiction can recall its judgment.

The Court held that the petitioner’s case was covered under the above exceptions i.e. the order was passed behind his back and he was not afforded an opportunity of being heard. Hence the impugned order was quashed and recalled by the Court. [Jalal-ud-Din Sofi v. State of J&K,2018 SCC OnLine J&K 519, order dated 24-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Kalyan Rai Surana, J. dismissed a revision petition filed under Section 115 CPC read with Article 226 of the Constitution against the order of Civil Judge whereby he returned the plaint filed by the petitioner for filing the same before appropriate court in Delhi.

The petitioner had filed a money suit against the respondent before Civil Judge, Kamrup, Gauhati. The action arose out of a written agency agreement between the parties. It is pertinent to note that the same agreement contained a clause that made all the claims arising out of or in relation to the agreement to be subject to jurisdiction of the courts at Delhi. Accordingly, the Civil Judge returned the plaint directing the petitioner to file the same before courts at Delhi. Aggrieved by the same, the petitioner filed the instant revision.

The High Court perused the agreement. The question before the  Court was ‘whether courts at Gauhati had jurisdiction to adjudicate the claim or whether the clause conferring jurisdiction to Delhi courts would act as an ouster of jurisdiction?’. On appreciation of the facts, the Court noted that all the transactions between the parties occurred within the territorial jurisdiction of courts both in Delhi and Gauhati. It was also noted that the present transaction for which the action was brought (security deposit clause) was not independent of the agreement between the parties subjecting all disputes to jurisdiction of Delhi courts. Reliance was placed in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32 to hold that notwithstanding where the agency agreement was to be performed, the existence of the jurisdiction clause makes intention of the parties very clear that they desire the disputes relating to the agreement to be settled by the Delhi courts. Accordingly, it was held that courts at Delhi would have jurisdiction to settle disputes between the parties. The revision petition was, thus, dismissed. [Pankaj Baid v. Bawa Masala Co.,2018 SCC OnLine Gau 908, dated 17-08-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: In this case, two revision petitions were disposed of together by a Single Judge Bench comprising of Anil Kshetarpal, J., where issues were identical.

This revision petition was filed against an order where application for rejection of plaint was dismissed. The Plaintiffs were alleged with not signing the documents of guarantee. The plaintiff had approached the Civil Court in the matter related to SARFAESI Act, 2002 where according to Section 17 of the Act any person affected is entitled to file an application before the Debt Recovery Tribunal (DRT). In pursuance of Section 34 of the Act which bars Civil Court’s jurisdiction in matters covered under SARFAESI Act, defendant i.e. Nationalized Bank pleaded that Civil Court had no jurisdiction. Trial Court referred the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 where it was held that in cases of fraud, Civil Court does have jurisdiction.

This Court observed that the pleadings of the plaintiff suggests that the word fraud had been deliberately used so as to oust the jurisdiction of Debt Recovery Tribunal and in a decision of Madras High Court V.Thulasi v. Indian Overseas Bank, 2011 SCC OnLine Mad 670 it was held that where it is found that the word fraud has been deliberately used as a clever drafting in order to bring the suit before Civil Court such efforts will be repelled by the Court. High Court enabled the DRT by virtue of provisions of SARFAESI Act, 2002 to deal with the issue of whether the plaintiffs had stood guarantee to the loan received by the borrowers or not. Therefore, both the revision petitions were allowed and the matter will be taken up by the DRT. [State Bank of Patiala v. Satya Jyoti Rice Mills,2017 SCC OnLine P&H 4657, order dated 02-11-2017]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of S.C. Gupte, J., addressed a petition in which challenge was made to the order of University and College Tribunal, Mumbai whereby the respondents’ appeal against there termination of service was allowed.

The facts of the case were that, the petitioner being a trust used to run a physical education college, in which the respondents who had challenged the order of termination of services by the petitioners were the teachers. On enforcement of National Council for Teacher Education Act 1993 (NCTE), the Western Region Committee addressed a letter to the Registrar of University of Mumbai for recognition of institutions conducting physical education courses. The petitioner’s college was subjected to a show cause notice asking on why their college should be given recognition. Further, even after a reply being submitted on behalf of the petitioners they refused the status of being recognised.

Aggrieved by the same, the petitioners approached the appellate authority of the NCTE, Western Region for reconsideration. However, there was neither an order for stay on the refusal order of recognition nor were the petitioners permitted to start the college. Therefore, on recognising all the circumstances and non-recognition of the college due to which the college had to be shut down the termination orders were issued to the staff including Respondents.

The High Court on noting the facts and circumstances of the case, and in response to the Tribunal’s move of reinstating the terminated respondents, by relying on Section 92 of the Maharashtra Universities Act, held that the said section does not get attracted for seeking permission from the State Government as the subject of ‘recognition’ falls under the scope of Section 14 of the NCTE.  The court relied on State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 for the same. Hence, on the pertinent fact that no order of stay on the original order of refusal of recognition was issued, the college was not faulty in any manner and the order of Tribunal falling under serious error of jurisdiction was liable to be struck down. [President, Mulund Gymkhana v. Nagarkar Ajit Chandrakant,2018 SCC OnLine Bom 2122, Order dated 19-07-2018]