Case BriefsSupreme Court

Supreme Court: Reminding the Courts of the scope of their powers, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ has said:

“While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.”

Background of the case:

  • An Inspector of Police and Sub-­inspector of Police were prosecuted for commission of the offences punishable under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act.
  • On charge­sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. in the Court of Special Judge and Chief Judicial Magistrate.
  • The Chief Judicial Magistrate allowed the applications and discharged them from the case.
  • State approached the High Court and the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

When the matter reached Supreme Court, it had to decide whether the Courts below were   justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C. Stating that the Court the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court, the Court said:

“consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.”

The Court, hence, set aside the impugned order, dismissed the applications filed by the respondents under Section 227 of the Cr.P.C. and remanded the case to the Special Judge/CJM for its trial on merits in accordance with law.

[State v. J. Doraiswamy, 2019 SCC OnLine SC 338, decided on 07.03.2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Dinesh Mehta and Sangeet Lodha, JJ. dismissed the appeal filed against the order passed by the Single Judge of the Court whereby writ petition preferred by the writ-petitioner/appellant seeking a direction to respondents to rectify the inventory after an inordinate delay of 54 years was dismissed on the ground of delay and laches.

The appeal was barred by limitation for 11 days. The only reason assigned for condonation of delay in filing the appeal was that due to the ongoing vacation of ‘Navratri’, and non-availability of counsel in Jodhpur, appellant could not give instructions for filing of appeal.

The Court held that the reason assigned for not filing the appeal within limitation, could hardly be considered a sufficient cause and, therefore, the application under Section 5 of the Limitation Act seeking condonation of delay, should to be rejected. [Jagmal Singh v. State of Rajasthan, 2019 SCC OnLine Raj 164, Order dated 21-02-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Gita Mittal, CJ and Tashi Rabstan, J. allowed the application filed for seeking suspension of the sentence imposed upon the applicant on the ground that there was no chance of the appeal being heard in the near future.

The facts of the case are that the applicant was booked for the commission of offence under Sections 302/34 RPC and Sections 4/25 of Arms Act. The appellant was convicted for the same by the Trial Court. The order noted that the applicant/appellant had roots in society; his brother was serving in the Indian Army and that the family would facilitate the applicant/appellant in conforming to the societal norms if his sentence was suspended. However, taking into consideration the apprehensions expressed on behalf of the complainant the Court suspended the sentence of applicant/appellant for a period of five weeks to evaluate the conduct of the applicant/appellant while set at liberty. No complaint of any misbehavior was recorded after his release.

The Court while relying on the case of Akhtari Bi v. State of M.P., (2001) 4 SCC 355, upheld that if the appeal is pending for five years and there is no chance of an appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. [Naresh Kumar v. State, 2019 SCC OnLine J&K 80, Order dated 29-01-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J. allowed the application filed for challenging the order of the District Court whereunder the appellate court rejected the application of the petitioner-appellant under Order 41 Rule 27 CPC to admit five documents as additional evidence.

The facts of the case are that plaintiff-petitioner instituted a Civil Suit praying for damages. The suit was dismissed. The application under Order 41 Rule 27 CPC to admit five documents as additional evidence was filed during pendency of the appeal. The respondents-opposite parties objected to the same. The appellate court rejected the application. Mr. Prasanna Kumar Parhi, counsel for the petitioner submitted that the appellate court was not justified in rejecting the said application before hearing of the appeal.

The Court relying on the case of Sankar Pradhan v. Premananda Pradhan, 2015 (II) CLR 583 held that the legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.” The petition was thus allowed. [Gopal Krushna Panda v. Utkal Grameen Bank, 2019 SCC OnLine Ori 34, Order dated 28-01-2019]

Case BriefsForeign Courts

Sri Lanka Court of Appeal: This appeal was filed before a 2-Judge Bench comprising of A.H.M.D. Nawaz and E.A.G.R. Amarasekara, JJ.

Facts of the case were such that District Judge dismissed the plaintiff’s action on the premise that the plaintiff’s action was barred by the law of res judicata. Plaintiff had instituted this action seeking a declaration of title to the land and ejectment of defendant therefrom. Defendant contended that plaintiff had filed two actions on the same cause of action which were dismissed and thus the action before the district court was res judicata. It was submitted that the relationship between the plaintiff and defendant of licensor and licensee had already been terminated in the previous action and accordingly was decided against plaintiff against which he did not prefer an appeal thus, he could not file this action to terminate the relationship again.

Court of Appeal was of the view that one of the actions filed by plaintiff was wrongly decided but since there was no appeal filed against it, the purported cause of action in the present case becomes res judicata. The Court also noted that it cannot suo motu act in a revision to change the judgment wrongly decided since it dated back to 1997. Therefore, this appeal was dismissed. [Jalin Pedi Durayalage Manuel v. R.W. Pina, C.A. 425 of 2000 (F), decided on 14-12-2018]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay. 

The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground. 

The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order. 

The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing an original petition in a debt recovery matter ruled that where a Tribunal exercises its jurisdiction over more than one State, then the High Court in the State where the first court is located has supervisory jurisdiction over the said Tribunal.

In a recovery proceeding filed by the respondent bank, petitioner purchased a secured asset brought for sale by the bank. Defaulting borrowers filed an application before Debts Recovery Tribunal (DRT), Ernakulam which set aside the sale in favour of petitioner. Aggrieved thereby, bank filed an appeal before Debts Recovery Appellate Tribunal (DRAT), Chennai wherein the petitioner pleaded that he had parted with his money and purchased the property on bank officials’ assurance. But since the property was now entangled in legal proceedings, he did not wish to contest the proceedings and wanted his money back with interest and damages. In this backdrop, the present petition was filed seeking a direction to DRAT, Chennai for early disposal of the appeal.

The respondent bank raised an objection as to maintainability of the petition in view of territorial jurisdiction. Thus, the question for Court’s consideration was as to whether it could assume supervisory jurisdiction over DRAT, Chennai.

Relying on the dictum of Apex Court in Ambica Industries v. CCE, (2007) 6 SCC 769 it was held that when the High Court exercises its jurisdiction over a Tribunal extending its jurisdiction over more than one State, then the High Court in the State where the first court is located would be the proper forum. In the instant case, the primary forum was DRT, Ernakulam and as such the High Court could eminently exercise its supervisory jurisdiction over DRAT, Chennai.

The petition was allowed directing DRAT to dispose of the appeal within three months.[Thomas Chacko v. Bank of India,2018 SCC OnLine Ker 4915, decided on 01-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of V. Chitambaresh, Satish Ninan, JJ., dismissed an appeal filed against the order of the lower court, whereby the award of arbitrator passed in an arbitration between the parties was decreed by the lower court.

The main issue that arose before the Court was whether the lower court was justified in passing a decree in furtherance of the award passed by the arbitrator.

The Court observed that the arbitrator had held the appellants liable for the delay caused in the completion of work as given under the contract between the parties. No material was produced before the Court or the arbitrator to prove that the delay which was caused can be attributed to the respondent contractor. Although it was an accepted fact that the arbitrator was supposed to carry out works beyond the expiry of contract but that was supposed to be done only on revised rates. The arbitrator had passed the award only after a careful consideration of the facts and circumstances which clearly show that the delay in completion of work was solely attributable to the appellants. Further, the respondent had sought damages for idling of men and machinery, which were duly given to him under the award passed by the arbitrator.

The Court held that in a case where the appellant fails to establish any fault on the part of the respondent in completing the work under contract, within a stipulated period, then the appeal for setting aside the award cannot be held maintainable. Resultantly, the Court dismissed the appeal and affirmed the order of the lower court.[State of Kerala v. Indiramma Shanmughavilasom Veedu, 2018 SCC OnLine Ker 4636, order dated 02-11-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.M. Sapre and Indu Malhotra, JJ. allowed an appeal filed against the judgment of a Division Bench of the Rajasthan High Court whereby the appellant’s special appeal filed against the order of the Single Judge was dismissed.

The present matter arose in relation to land acquisition proceedings under the Land Acquisition Act, 1894. The appellant had challenged the notifications issued under Section 4 and thereafter on several grounds. The writ petition filed by the appellant was dismissed by the Single Judge of the High Court. Thereafter, the appellant preferred an intra-court appeal to the Division Bench. By the judgment impugned, the Division Bench dismissed the appeal and upheld the order passed by the Single Judge, which gave rise to filing of special leave to appeal in the Supreme Court.

Having heard the counsel for the parties and on perusal of the record, the Supreme Court was of the view that the judgment of the Division Bench could not be sustained. It was observed that the intra-court appeal involved factual and legal issues, which were decided by the Single Judge. Therefore, once they were carried in intra-court appeal by an aggrieved party and pressed in service while assailing the order of the single Judge, it was incumbent upon the Division Bench to deal with all the issues urged and record its findings one way or the other on every issue urged. In such circumstances, the Court found itself unable to concur with the manner in which the Division Bench disposed of the appeal. Hence, the appeal was allowed; the judgment impugned was set aside, and the matter was remanded back to the Division bench for fresh adjudication. [Raghubir Singh v. State of Rajasthan,2018 SCC OnLine SC 2203, decided on 26-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ. and V. Kameshwar Rao, J. dismissed an appeal against the order of a Single Judge whereby he closed appellant’s right to file list of witnesses as well as evidence by way of affidavit.

The appellant had filed a suit for specific performance of an Agreement to Sell entered into between the parties. The respondents filed a written statement thereto. The issues were framed. Thereafter, counsel for the respondents informed the appellant regarding the death of Defendant 1. An application under Order 22 Rule 4 CPC was filed by the appellant to implead legal heirs of Defendant 1. Subsequently, the said legal heirs were impleaded in place of Defendant 1. As a matter of fact, the Joint Registrar closed the right of the appellant to lead evidence. When the matter was listed before the Single Judge, he declined appellant’s prayer for extension of time to file list of witnesses as well as evidence by way of affidavit. Aggrieved thereby, instant appeal was filed.

The High Court considered the matter and found favour with the submission of the respondent who challenged the maintainability of the appeal inasmuch as the impugned order was not a judgment and therefore not appealable. The High Court held that the order under challenge did not amount to a judgment conferring a right to appeal under Section 10 of the Delhi High Court Act, 1966. Therefore, the order impugned was not an appealable order under Section 104 read with Order 43 Rule 1 CPC. Resultantly, the appeal was dismissed holding it to be not maintainable. [Kushal Infraproject Industries (India) Ltd. v. Umed Singh,2018 SCC OnLine Del 12009, decided on 22-10-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of Meenakshi Madan Rai, J.,decided an application for condonation of delay filed under Order 41 Rule 3A of Civil Procedure Code, wherein, while granting relief to the appellant (applicant herein), the Court held that no exemption for time lost due to carelessness of the council could be taken into account while calculating period limitation.

The application was filed for condoning the delay of 6 days in filing the appeal against the judgment of District Judge. The appeal was to be filed within a period of 90 days of the judgment as provided in Article 116(a) of Limitation Act 1963. However, there was a delay of 6 days in filing the appeal. The appellant submitted that the certified copy of the impugned judgment was misplaced by the counsel of the appellant. A photocopy of the same was submitted along with the appeal. On receiving an objection from the Registry, the counsel applied for another certified copy. The second copy was received after 34 days, which, according to the appellant, was the cause of the resultant delay.

The High Court considered the submissions and referred to Section 12 of Limitation Act, which provides for exemption of such time as was required for procuring a certified copy of the judgment to be appealed against while calculating the period of limitation. The Court, however, observed that such exemption was to be taken only for the time lost in acquiring the first copy. Further, the clarification that the first certified copy of the judgment was lost holds no water, as no provision has been made for computing limitation for the carelessness of the counsel. The Court was of the view that proper grounds were not shown for allowing condonation. Nonetheless, the Court held, the appellant ought not to suffer on account of what transpired in the chambers of his counsel. Thus, keeping in mind the paramount importance of handing out substantial justice, the Court exercised discretion in condoning the delay. The application was accordingly disposed of. [Nil Kumar Dahal v. Indira Dahal,2018 SCC OnLine Sikk 123, dated 26-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ., refused to condone a delay of 65 days in filing the appeal under Section 37 of Arbitration and Conciliation Act, 1996 which was consequently dismissed.

The appellant filed the said appeal against the order of the learned Single Judge who dismissed appellant’s objection to the award passed by the Arbitrator. However, there was a delay of 65 days in filing the appeal. The appellant sought condonation of such delay on the grounds that the appellant was a corporate body (a company) with a legal department and higher management. Every decision of filing an appeal is scrutinised by the higher management. It was stated that the appellant had preferred to take opinion from some counsels, and also made a self-analysis of the case. Thereafter, the facts were placed before the management who took the decision of filing the appeal. Thus, the appellant submitted, the delay was on account of bona fide reasons and not due to inaction or carelessness.

The High Court did not find favour with the submissions of the appellant. Referring to a few Supreme Court decisions, the High Court observed that while deciding an application under Section 5 of Limitation Act, the courts must adopt a liberal approach, provided there is no gross negligence, deliberate inaction or lack of bona fide imputable to the party seeking condonation of delay. Further, while considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. In the instant case, the appellant was a private limited company with a legal department. The application for condonation of delay was highly casual in nature, it lacked material particulars and did not disclose sufficient cause for the condoning the delay. A bald statement of taking opinion from some counsels could not be taken as a sufficient cause. Holding thus, the High Court denied to condone the delay and dismissed the appeal. [Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd.,  2018 SCC OnLine Del 9559, dated 03-05-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

The appellant, a secured creditor, invoked the jurisdiction of the District Magistrate under Section 14 of the SARFAESI Act. Against the order passed by the District Magistrate, the respondents preferred a challenge before the Debts Recovery Tribunal who declined to exercise jurisdiction, holding that an application under Section 17 of the Act is not maintainable before the Tribunal. Respondents filed an appeal before the learned Single Judge who by his impugned judgment, allowed the challenge and set aside the Order of the District Magistrate. Aggrieved by the Order of the Single Judge, the appellants were in appeal before the High Court.

The High Court, after considering the record, held that the learned Single Judge was not right in setting aside the Order of the DM. The Court, relying on its previous judgments, held that an appeal under Section 17 of the Act against an order passed by the DM, is maintainable before the Debts Recovery Tribunal. Thus, the Court set aside the orders of the learned Single Judge as well as the Debts Recovery Tribunal. The matter was accordingly sent back to the Tribunal for adjudication under Section 17 of the SARFAESI Act. [Authorized Officer v.  Prafulla Kumar Maheshwari; 2018 SCC OnLine MP 325; dated 01-05-2018]

Case BriefsHigh Courts

Calcutta High Court: Biswanath Somadder, J. speaking for the Court comprising of himself and Arindam Mukherjee, J. dismissed an appeal challenging the judgment of the learned Single Judge who had dismissed the writ petition filed before him by the appellant.

The appellant had filed a writ petition before the learned Single Judge, who dismissed the petition on grounds of suppression of facts on the part of the writ petitioner (appellant). Admittedly, the petitioner had earlier obtained an interim order for age relaxation in the selection process, based on same pleas. The learned Single Judge was pleased to note the fact that a candidate was entitled to age relaxation only once. And such opportunity had been already availed of by the petitioner in 2015. Aggrieved by the dismissal of his petition, the appellant approached the High Court.

The High Court perused the record and observed that the Single Judge rightly found the appellant guilty of suppression of facts as relevant facts were not pleaded by the appellant. The Court categorically observed, in an intra-court appeal, no interference is usually warranted unless the impugned judgment suffers from palpable infirmities or perversities. The Court held that on a plain reading of the judgment, no such perversity was deductible, rather it was rendered with cogent and justifiable reasons. In such circumstances, the appeal was dismissed. [Panchanan Bera v. State of W.B.,2018 SCC OnLine Cal 3468, dated 13-06-2018]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of Ramalingam Sudhakar, CJ, dismissed a contempt petition filed against the Sub-Deputy Collector, Sawombung (Imphal East).

The matter related to a property suit between the parties. The suit was decreed by the learned Civil Judge against the defendants (petitioners herein), against which they preferred an appeal before the learned District Judge. The appeal was admitted; however, no interim order was passed. The plaintiffs moved to Sub-Deputy Collector for mutation of revenue records based on the decree passed. Recording that there was no stay on the decree passed by the Civil Judge, the Sub-Deputy Collector allowed the amendment to revenue records. The defendants alleged that the Sub-Deputy Collector committed contempt in terms of Section 2(b) of Contempt of Court Act 1971.

The High Court perused the record and found no merit in the contentions put forth by the defendants. The Court categorically observed, “in absence of stay or injunction in the appeal, the party who succeeds in the litigation should be entitled to enjoy the fruits of the decree unless there is a restraint order by the appellate forum”. The Court found that there was no stay order against the decree passed by the Civil Judge. As such, the Sub-Deputy Collector did not disobey any order of the Court. In such circumstances, the Court held the contempt petition to be sans merit. The petition was accordingly dismissed. [Huidrom Ningolakpa Singh v. Lunguiba Thangal, 2018 SCC OnLine Mani 53, dated 02-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Ravi Malimath, J., decided a criminal appeal filed by the State under Section 378 of CrPC, wherein the order of acquittal of the accused passed by the trial court was upheld.

The accused was charged under Sections 324 and 504 read with Section 34 IPC. The prosecution led evidence to prove its case before the trial court but did not succeed and the accused was acquitted of the charges. Aggrieved by the said order of the trial court, the State preferred the instant appeal.

The High Court duly considered the submissions made by the Additional State Public Prosecutor who submitted that the prosecution proved its case beyond reasonable doubt; however, the Court was of the view that such submissions on behalf of the prosecution does not inspire confidence with the Court to take a view that there was any perversity in the order of acquittal passed by the learned trial court. The Court was of the view that the evidence was full of discrepancies, and the pleas of the complainant could not be accepted. Also, in an appeal against an acquittal, such order is not to be interfered with unless gross perversity in that order is shown. The Court did not find any reason to interfere with the impugned order and upheld the acquittal of the accused. Thus, the appeal filed by the State was rejected. [State v. Nasir alias Nasir Khan, Crl. Appeal No. 1263 of 2016, dated 19.2.2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Dispute Redressal Commission:  The Commission held that if a complaint is filed beyond a period of two years from when the cause of action has happened the same will not be entertained, unless there are sufficient reasons for condoning the delay in filing the appeal.

The Consumer Forum through a Division Bench, comprising of, B.C. Gupta, Presiding Member and S.M. Kantikar, Member dismissed an appeal filed by M/S. Kiran Gems Pvt. Ltd. The brief facts, being that the appellant company had purchased an insurance policy from the respondent, to cover all the damages that may arise in the normal course of business ,but upon the actual event of an abnormal activity, the Insurance Company did not entertain the full claim of the appellant and the same being under dispute between the two parties, in the present case. The appellant also contested that the Insurance company owed a total sum of Rs 35,15,014 to them, and further argued that the dismissal of their previous complaint regarding the same matter (Miscellaneous Application, MA/90/2011) is not valid.

The Commission held that the appeal was filed beyond the mentioned time period of 2 years and because of this delay the appellant cannot be heard. The Bench also referred to the judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, (2011) 14 SCC 578 in which the Hon’ble Apex Court held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

The Bench ordered the dismissal of the appeal because there was a delay of 2178 days in filing the complaint and no remarkable justification was given by the appellant while explaining this delay.  [M/s Kiran Gems Pvt. Ltd. v. Oriental Insurance Co. Ltd., Appeal Number 1718 of 2016, decided on 12-12-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: In the judgment delivered by S.J. Mukhopadhaya (Chairperson), AIS Cheema (Judicial Member) and Balvinder Singh (Technical Member) dismissing the appeal against the impugned order of the Competition Commission of India (CCI) dated 8-2-2017. Mr. Subodh Kumar Sharma, the appellant had filed a complaint against Gateway Terminals India Pvt Ltd (Respondent 2) and Gujarat Pipavav Port Ltd. (Respondent 3) for contravention of sub-section 3(4) and Section 4 of the Competition Act, 2002 and contending that the respondents having a major market share for providing container terminal services were deliberately diverting traffic of ships to Papavav ports for commercial advantages.

The Tribunal held the observations of CCI, that ‘the market share of the first respondent has been declining and such decline does not make it to be in a dominant position’, to be correct. There were thirty three other container freight station which were acting as a competitive constraint for the respondent The appellants however failed to prove that the respondent blocked the terminals at Jawahar Lal Nehru Ports forcing ships to dock at Papavav and the Tribunal further held that the mere reliance on paper book is not enough to invoke the Act for the same.

No substance was found by this Tribunal in the submissions of the appellant thus no interference in the impugned order was made. The appeal was dismissed with costs quantified at Rs 1 Lakh to be equally divided and paid by appellant to Respondents 2 and 3. [Subodh Kumar Sharma v. Competition Commission of India, Competition Appeal (AT) No. 04 of 2017, order dated 5-12-2017]

Case BriefsHigh Courts

Rajasthan High Court: A writ petition was filed to examine constitutional validity of Rule 63(4) of the Rajasthan Minor Mineral Concession Rules, 2017 (the Rules of 2017). The sub-rule aforesaid provides that an appeal shall be filed within three months of the date of communication of the order appealed against, provided that an appeal may be admitted after the said period if the appellate authority is satisfied that the appellant has sufficient cause for not filing the appeal within the said period but the appeal shall not be admitted after expiry of six months from the date of order appealed against.
The learned counsel for the petitioner argued that under the Mines and Minerals (Development and Regulation) Act, 1957 and its corresponding Rules, there is no restriction for not entertaining an appeal after expiry of the extended three months. He also contended that the proviso to sub-rule (4) of Rule 63 of the Rules of 2017 was discriminatory as well as arbitrary to the extent it restrained from admitting an appeal after expiry of six months from the date of the order appealed against.

The High Court finding the argument of the learned counsel devoid of any merit and thus dismissing the writ petition, laid down that

“It is well settled that validity of a subordinate legislation can be challenged only if that lacks legislative competence, violates fundamental rights or any of the provisions of the Constitution of India, inconsistent with the provisions of the parent statute i.e. the statute under which subordinate legislation is made, or exists the limits of the authority conferred upon it by the parent statute and if such law is manifestly arbitrary or unreasonable to conclude that the legislature never intended to extend authority to make such rules/regulations. Rule 63 of the Rules of 2017 provides a remedy of appeal to the aggrieved person and as per its proviso the appellate authority is empowered to condone the delay up to the extent of three months beyond the limitation prescribed. The check for filing appeals subsequent thereto, in our considered opinion, is not at all unjust or arbitrary or is in conflict with any of the eventualities in which validity of a subordinate legislation can be challenged.”

[Suraj Mal v. State of Rajathan,  2017 SCC OnLine Raj 2598, decided on 14.10.2017]