Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J. allowed the transfer application for the convenience of the wife in the divorce petition.

An application for the transfer of divorce petition was made by the applicant on the ground of financial constraint.

The brief facts of the case were that applicant Rajnish Kaur was the estranged wife of Sukhwinder Singh on account of matrimonial discord between the spouses. The spouses had a fight on the demand of the dowry raised by the respondent and his family and which the applicant could not get conceded from her parents. Thereby applicant with his minor son turned out of matrimonial home and shifted to his parent’s house. A divorce petition was filed against the respondent in Ludhiana despite the fact that such court does not have any jurisdiction. Also, it was difficult for the applicant to attend the dates of hearing due to financial constraint. Thus, the present application was filed.

The Court opined that the in matrimonial dispute between the spouse conveniences of wife should be looked. The reference was made to the case of Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (2017) 6 SCC 785 in which the Supreme Court allowed the application for transfer of divorce petition to a place where the wife was residing considering various factors including the distance between the places where divorcee petition had been instituted. Reference was also made to the case of Apurva v. Navtej Singh, 2016 SCC OnLine P&H 3138, in which it was held that Generally, it is the wife’s convenience, which must be looked at by the Courts while deciding the transfer application. The application was thus allowed and the petition was transferred to the court of competent jurisdiction for disposal in accordance with the law.[Rajnish Kaur v. Sukhwinder Singh, 2019 SCC OnLine P&H 1422, decided on 14-08-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of M. K. Hanjura, J. dismissed the applications filed for the transfer of the civil suits sub judice in the Court of the District Judge & Munsiff, Kathua, to any other Court of competent jurisdiction at Jammu or Samba, on the grounds that all the advocates had refused to take up the case.

The facts of the case are that the parties had been in litigation over a piece of land that formed the subject matter of the suits before the Courts for decades and have contested the litigation even up to the Supreme Court. The applicants were represented by Senior Advocates practicing in the District Courts at Kathua and in one of these two suits after they had the receipt of the notice, they approached some Senior Advocates at Kathua to represent them and all of them refused to do so on the ground that the respondents were practicing advocates at District Court Kathua. Thus they filed this application as there was no effective representation.

The Court stated that Section 24 of the CPC does definitely confer powers on the Court to transfer the suits and appeals or other proceedings at any stage, either on application or suo motu but this power vested under Section 24 CPC with the Courts is a discretionary one and cannot be put in a straight jacket formula and should be done with care, caution and circumspection. It is not on the mere asking of a party that a suit can be transferred from one Court to the other. Section 24 of the Code has certain guidelines laid down for the transfer of suits etc., they are the balance of convenience or inconvenience to any party or to witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence; issue raised by the parties; reasonable apprehension in the mind of litigants that they might not get justice in the Court in which suit is pending; important question of law involved or a considerable section of public interested in the litigation; demand of interest of justice etc. On the satisfaction of the principles/guidelines evolved in various judicial dictums, the Court has not only the power but also the duty to transfer the case. But this case did not fall in any of the above guidelines thus the application was dismissed. [Bishan Dass v. State of J&K, CTA No. 01/2015, Order dated 26-02-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) dismissed an appeal filed against the order of National Company Law Tribunal, Bengaluru dismissing appellant’s application under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The appellant had filed a petition under Section 433(e), 434(1) and 439 of Companies Act, 1956 before the Karnataka High Court. The petition was transferred pursuant to rule 5of the Companies (Transfer of Pending Proceedings) Rules, 2016 to NCLT. The petition was treated as an application under Section 9 of the I&B Code by the appellant. Demand Notice under Section 8(1) was issued. After hearing the parties, NCLT dismissed the application on the ground of pre-existing dispute. Aggrieved thereby, the present appeal was filed.

Raghavendra M. Bajaj, Advocate for the appellant submitted that the Corporate Debtor had agreed to pay dues by 5 different times. But the Corporate Debtor claimed the existence of ‘dispute’. It raised objections regarding non-completion of project within time and completion of the same in haste with defects.

The Appellate Tribunal noted that the objections were raised by the Corporate Debtor much prior to the filing of petition under Companies Act. It was held that such disputes cannot be decided by NCLT but only by a civil court of competent jurisdiction on basis evidence. Therefore, as there existed a dispute raised prior to filing of petition under Sections 433(e) and 434(1) of Companies Act, it was held that the application under Section 9 of I&B Code was not maintainable. [Yash Technologies (P) Ltd. v. Base Corpn. Ltd., 2019 SCC OnLine NCLAT 1, dated 03-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed a petition filed under Section 228 read with Section 276 of the Indian Succession Act, 1925 seeking grant of Letters of Administration in respect of a Will.

It was pleaded by the petitioner that the testator’s (who died in 2016) Will dated 20-11-1992 was proved and registered in the High Court of Justice, Family Division, Leeds District Probate Registry, United Kingdom. It was stated that the petitioner, along with the Solicitor, was appointed as the executor and trustee of the Will. Furthermore, due to death of the Solicitor, the petitioner was the sole executor and trustee of the Will. The Court directed the petitioner to file an affidavit to prove the certified copy of the Will; the petitioner complied.

The Court perused the law on the subject and found favour with petitioner’s submission that under Section 228, once the Will has been proved and registered in a Court of competent jurisdiction, the Letters of Administration can be granted. The Court held that the petitioner placed on record a properly authenticated copy of the subject Will which was allowed and the Letters of Administration was granted as prayed for.[Mark Douglas Holford v. State,2018 SCC OnLine Del 12297, decided on 01-10-2018]