Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. disposed of the writ petition on the grounds that questions of fact could not be the subject matter of a writ petition.

The petitioner filed the instant petition praying that the respondents be commanded to implement the recommendations of the Human Rights Commission. The petitioner claimed to be the widow of one Abdul Ahad Malik) who as argued by her, left his home towards Srinagar on 16-02-2003 and on the very next day, his dead body was received by his family members. It is stated that since the deceased was the only breadwinner of the family, the petitioner filed a complaint before the State Human Rights Commission, Srinagar on 11-05-2004, in terms of the J&K Human Rights Act, praying therein for compensation.

The State Human Rights Commission recommended the Government payment of ex-gratia relief of Rs 10 lacs in favour of the petitioner and benefit of employment in terms of SRO 43 to the elder son of the petitioner. Since the Government did not act upon the recommendations of the State Human Rights Commission, the petitioner filed the instant petition for the above-stated reliefs.

B. A. Misri, learned counsel for the petitioner, provided on record a letter issued by Senior Superintendent of Police, addressed to the Principal Secretary to Government, Home Department, J&K, Jammu, making reference to some report that the deceased Abdul Ahad Malik was killed by some un-known militant at Srinagar, with further clarification that no case/report has been registered in the concerned police station nor any Medico legal formalities conducted.  In his reply, the Deputy Commissioner stated that the petitioner had a natural death, and also has placed on record photocopy of certificate issued by Deputy Medical Superintendent, SMHS Hospital, Srinagar certifying that the deceased was admitted in the hospital on 16-02-2003 as a case of Cardio Vascular Arrest and expired on 16-02-2003. The Petitioner in response, to such a report placed on record a certificate issued by Resident Medical Office Records, Government SMHS Hospital which said that there was an un-known patient admitted in the hospital without giving any details regarding the address and parentage.

After perusing the pleadings the court held that it was not forthcoming that the deceased died in a militancy-related incident, therefore, disputed questions of fact were involved in the present case, which could not be determined by this Court and no relief could be passed on such disputed question of facts. The petitioner has to approach a civil Court for the establishment of her right before filing a writ petition. The recommendations of the Human Rights Commission were not binding on the State. The petitioner was free to approach the Civil Court for the establishment of her right with reference to the death of her husband as well as the implementation of the recommendations of the Human Rights Commission. [Nazira Begum v. State of J&K, 2019 SCC OnLine J&K 832, decided on 09-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court:  Arvind Singh Sangwan, J. allowed the application for the refund of the fees on the ground that the matter was resolved between the parties.

An appeal was filed by the appellant-plaintiff against the order passed by the Additional Civil Judge (Senior Division), Faridabad where the suit for specific performance filed by the appellant was dismissed.

Rakesh Kumar Sharma, counsel for the applicant/appellant submitted that the appellant does not wish to pursue the appeal which was filed for the specific performance as the dispute between the parties had been resolved amicably.The applicant/appellant further prayed for the refund of the court fee.  Reliance was placed upon the decision of Division Bench of the Karnataka High Court in the case of A. Sreeramaiah v. South Indian Bank Ltd., 2006 SCC Online Kar 563 in which it was held that the matter being resolved by the parties amicably, amongst themselves without the intervention of the court, the court fees should be refunded.

In the above-mentioned case, the court held that the object behind Section 89 of the Civil Procedure Code, 1908 is to encourage the parties to arrive at the settlement. It is not important that the parties are referred to the four methods but if parties themselves at the earliest stage before the court come to the settlement, it will be considered that the object of Section 89 is achieved. The court further held that “No party should be discriminated in the matter of refund of Court Fees mainly on the ground that they have settled the dispute at the earliest stage before the court without recourse to any of the methods mentioned under Section 89 of the Civil Procedure Code, 1908.” Thus, the court directed the refund of the court fees appended with the appeal to the appellant. [Suresh Kumar Gupta v. State of Punjab, 2019 SCC OnLine P&H 660, decided on 30-5-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of A.K. Rath, J. allowed the petition filed that challenged the order which allowed the appointment of an Amin Commissioner for local investigation under Order 26 Rule 9 CPC for the suit land.

The facts of the case were that the plaintiff-opposite party instituted the suit for declaration of right, title and interest, confirmation of possession and recovery of possession. Case of the plaintiff was that he was the owner of the suit land. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that the plaintiff had no title over the suit land and the defendants purchased the same by means of a registered sale deed. While matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC for the appointment of a commissioner for demarcation of the property. Defendants filed an objection to the same. The Trial Court appointed a commissioner for local investigation. Mr. P.K. Satapathy, the counsel for the petitioners submitted that there was no justifiable reason to appoint a survey knowing commissioner in the factual scenario. The dispute did not pertain to demarcation or identification of the land.

The Court held that since both parties were claiming title over the suit land, it was not per se a ground to appoint a commissioner. The plaintiff could adduce evidence to substantiate the case. The dispute did not pertain to the area or identification or measurement or location of the land. Thus the Court had traveled beyond its jurisdiction in appointing a commissioner. The impugned order was quashed and the petition was allowed. [Regional Coop. Marketing Society v. Amarnath Saraph, 2019 SCC OnLine Ori 172, Order dated 19-04-2019]

Hot Off The PressNews

Port of Spain, Trinidad: Judgment was delivered today by the Caribbean Court of Justice (CCJ) in the consolidated matters of Trinidad Cement Limited and Arawak Cement Limited vs. The State of Barbados, and Rock Hard Cement Ltd. v. State of Barbados and  Caribbean Community (CARICOM). The CCJ ruled that the regional tax payable on ‘other hydraulic cement’, imported by Rock Hard Cement from Portugal and Turkey, should be 5%. The case was in the CCJ’s Original Jurisdiction where the Court interprets the Revised Treaty of Chaguaramas.

In 2001, CARICOM’s Council for Trade and Economic Development (COTED) granted Barbados an exemption, in respect of the regional Common External Tariff (CET) of 0-5%, so that the State could apply taxes of 60% to categories of cement described as ‘other hydraulic cement’. The regional tariff is intended to offer goods produced and distributed in the region an advantage over imported ones. In 2015, Barbados decided to return to the CET and apply a 5% tax on the ‘other hydraulic cement’ imported by Rock Hard Cement Limited.

In its ruling, the Court decided that where COTED allowed a Member State to charge taxes higher than the regional tariff on the importation of good from outside the region, there was no need for the Member State to obtain approval from COTED to revert to the CET. However, in these circumstances, the Member State should give reasonable notice of its intention of returning to the regional tariff. The Court stated that this notice would ensure that regional businesses enjoy transparency, certainty, and predictability of tax structures. This was, according to the Court, “reflective of good administrative practices, preserved the sovereign autonomy of the Member State and ultimately enhanced the overall functioning of the CSME”.

The Court also found that the regional manufacturers of cement, who had brought the action against Barbados, had noticed for several years of the intention of Barbados to revert to the regional tariff and therefore could not succeed in their action.


Press Release dt. 17-04-2019

Caribbean Court of Justice

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Manoj K. Tiwari, J. disposed of a compounding application in favour of the parties as they had amicably settled the dispute by entering into a compromise.

In the pertinent case, an FIR was lodged by the respondents under Sections 420 and 468 IPC on 05-01-2019. Later a compounding application duly supported by affidavits was filed stating that they have buried their differences and settled the dispute amicably outside the Court by entering into a compromise, therefore, no useful purpose would be served if the same is continued. They further relied on Gian Singh v. State of Punjab, (2010) 15 SCC 118 which has considered the question with regard to the inherent power of the High Court under Section 482 CrPC in quashing the criminal proceedings. Moreover, it was contended that the offence involved in the case is of a personal nature and is not an offence against the society and is not heinous offence showing extreme depravity.

The Court opined that “the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice, which would tantamount to abuse of process of law.”And thereby, allowed the application. [Shiv Shankar v. State of Uttarakhand, 2019 SCC OnLine Utt 91, Order dated 15-02-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Manoj K. Tiwari, J. allowed a criminal miscellaneous application challenging the proceedings of the criminal case on the ground that the parties had settled the dispute between themselves.

The counsels for the parties submitted that parties had buried their differences and entered into a compromise and settled the dispute amicably outside the court, therefore, no useful purpose would have been served if the criminal case was to be continued.

The Court relied on Gian Singh v. State of Punjab, (2010) 15 SCC 118 which had considered the question with regard to the inherent power of the High Court under Section 482 CrPC in quashing the criminal proceedings against the offender, who had settled his dispute with the victim of the crime in a case, where crime is not compoundable under Section 320 CrPC. The Court held that in view of the settlement arrived at between the complainant and the applicants and the possibility of a conviction being remote and bleak, the FIR shall be quashed. [Abdul Rahman v. State of Uttarakhand, 2019 SCC OnLine Utt 87, Order dated 18-02-2019]

 

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Raja Vijayaraghavan V, J. invoked its extraordinary powers under Section 482 of the Code of Criminal Procedure, 1973 and quashed criminal proceedings pending against the petitioners in view of resolution of dispute between the warring parties.

The petitioners herein were accused of committing offences punishable under Section 420 of the Indian Penal Code, 1860. Since the disputes between parties to the case had been amicably resolved, the instant petition was filed praying for quashing of proceedings pending against petitioners. It was urged on behalf of the petitioners that the dispute was purely personal in nature and would not affect public peace or tranquility; and the respondents stated that they had no subsisting grievance.

The Court took note of Apex Court’s rulings in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Narinder Singh v. State of Punjab, (2014) 6 SCC 466 where it had been laid down that in appropriate cases, the High Court can take note of amicable resolution of disputes between the victim and wrongdoer to put an end to the criminal proceedings.

It was observed that the offence committed by petitioners was not grave or serious having ingredients of extreme mental depravity. It appeared that the offence would not have a serious impact on society. Persisting with the prosecution would be nothing but a waste of time as the prospects of conviction were bleak; while on the other hand quashing of proceedings on account of compromise would bring about peace and secure the ends of justice. In view thereof, the petition was allowed.[Narayanan Nair v. Station House Officer, 2018 SCC OnLine Ker 5067, Order dated 28-11-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. dismissed a petition finding no anomaly in the matter.

The petitioner was a transporter who participated in E-tender process which was invited by the respondent for supply of 100 trucks for transporting gas cylinders where he made a bid for 13 trucks out of which only two trucks were selected. Further, as the need for 100 trucks could not be completed the respondent called for the existing transporters for the supply of additional trucks. The petitioners challenged it for non-transparency and contended that e-tender should have been made open to all and it shall not be restricted to the existing transporters.

The respondents reasoned out their act by contending that firstly the petitioner being the existing transporter had no reason to challenge the order plus he has been ordered to supply additional trucks and secondly e-tendering being a time-consuming process with gas cylinders being the essential commodity transported hence leaving no reason to raise a dispute for the matter.

Accordingly, the petitioner being the non-aggrieved party the petition was dismissed. [Tanuja Parwati Transport & Forwarding Agency v. IOCL, 2018 SCC OnLine Utt 969, decided on 02-11-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. dismissed an appeal filed against the judgment of the Division Bench of the Madras High Court whereby it held it had no jurisdiction to adjudicate the dispute in question.

In short, the real essence of the dispute was that the plaintiffs, resident nationals of Dubai, had filed a derivative action on behalf of a company incorporated in Dubai. They held 34% shareholding in the said company, whereas the defendants held 66% of the shares. The defendants also held around 6.16% shares in Star Health and Allied Insurance Co. Ltd., a company incorporated in Chennai, India. According to the plaintiffs, these shares actually belonged to the company registered in Dubai mentioned above. Since Star Health was incorporated in Chennai, the plaintiffs instituted a suit in Madras High Court to protect an declare the beneficial interest of the Dubai company in the said 6.16% shares. A Single Judge of the High Court admitted the suit; however, on appeal by the defendants, the Division Bench held that it had no territorial jurisdiction to adjudicate in the matter. Aggrieved thus, the plaintiffs filed the instant appeal.

On perusal of the facts, the Supreme Court noted that the plaintiffs made certain averments to the said Dubai Company being the real owners of the shares held by the defendants in the Indian Company, which was denied by the defendants. In reality, it was a dispute between the plaintiffs and defendants, all of who were residents of Dubai. Even the company whose beneficial interest was claimed was incorporated in Dubai. The Court held inter alia, that merely because the dispute is about shares issued by an Indian Company would not lead to the conclusion that cause of action has arisen in India. As a consequence, the Madras High Court has no territorial jurisdiction to adjudicate the matter. Accordingly, the judgment impugned was upheld and the appeal was dismissed. [Ahmed Abdulla Ahmed Al Ghurair v. Star Health and Allied Insurance Company Ltd.,2018 SCC OnLine SC 2554, decided on 26-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of S.G. Pandit, J. while hearing a petition praying for appointment of Court Commissioner, held that a property dispute seeking injunctive relief does not require determination of age of the suit property.

Petitioner, who was plaintiff in a property dispute, filed an application in lower court under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 for appointment of Court Commissioner to ascertain age of the suit property. The trial court rejected this application and aggrieved thereby the instant writ petition was filed.

Petitioner contended the age of building to be over 25 years but the respondent submitted that it was constructed only 2 years before filing of the written statement. Submission on behalf of the petitioner was that appointment of Commissioner is, therefore, necessary to ascertain the age of building at suit schedule.

The Court held that the suit filed in lower court was for injunction and it was for the petitioner to establish his possession over the suit schedule property by producing cogent evidence before the court. It was not necessary to determine the age of building situated at the suit schedule as the same was of no consequence to the relief sought for by the petitioner in the pending suit.

Accordingly, the writ petition was dismissed.[B.M. Ramasubba Reddy v. B.R. Venkataravanappa, 2018 SCC OnLine Kar 2213, decided on 09-11-2018] 

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the actions of private respondents 6 to 13, whereby respondents were interfering with the property owned by the petitioner.

The main issue that arose before the Court was whether the writ petition filed by the petitioner was maintainable.

The Court observed that in the Supreme Court judgment of Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC 61, it was held that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution of India shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. In such a case, the court will issue appropriate direction to the authority concerned. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extra-ordinary and should not be exercised casually or lightly.

The Court held that in the instant matter, the dispute between the parties was a property dispute which could be well resolved by filing a suit before the appropriate court. Further, the parties involved in the matter were private parties and not statutory authorities. The Court refused to interfere in the matter and the writ petition was dismissed.[Kuldeep Singh v. State of J&K,2018 SCC OnLine J&K 806, order dated 03-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of Dinesh Maheshwari, J. while hearing a petition praying for the appointment of an arbitrator, ruled that if an agreement between parties provides for arbitration and a dispute arises therefrom then it must be settled through arbitration.

The petitioner company, involved in exporting of fruit products, approached the respondent to process mangoes for export purpose. On respondent’s assurance that it possessed the necessary machinery and expertise to process mangoes, an agreement was executed between the parties. However, respondent delayed in the process of unloading mangoes. Since the season was drawing to a close and there was a loss in business due to the delays caused by respondent, the petitioner gave it a concession for procuring mangoes on its own and a further concession for processing the rejections into mango pulp. But still the respondent did not take steps to procure mangoes and also failed to meet the quantity and quality of the finished product.

Despite these lapses, the respondent raised an invoice which the petitioner refused to clear. In turn, the petitioner sent it a legal notice demanding payment for loss caused due to respondent’s failure to meet its contractual obligations. Since respondent did not revert to the said notice, petitioner invoked arbitration clause of the agreement nominating an arbitrator and called upon respondent to do the same. Respondent’s failure to even nominate an arbitrator, constrained the petitioner to file the instant petition.

The limited aspect for the court’s consideration was whether there existed an arbitration agreement between the parties. On perusal of the agreement executed between parties, the court noted that clause 5 of the said agreement provided that in case of disputes between parties not being settled amicably, the same would be settled in arbitration.

It was held if a dispute between the parties cannot be resolved amicably and there is the failure to appoint an arbitrator, then in such a case, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide such dispute. Accordingly, the petition was disposed of by appointing a retired judge as an arbitrator.[Pellagic Food Ingredients (P) Ltd. v. Oceanic Edibles International Limited, Civil Miscellaneous Petition No. 300 of 2016, decided on 09-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Amit Rawal, J., allowed a revision petition which was filed against the order whereby an application submitted under Section 8 of the Arbitration and Conciliation Act, 1996 for resolution of dispute was dismissed by the Trial Court.

The facts of the case are such that a suit was filed by respondent seeking permanent injunction on the property in question. In the suit, respondent was aggrieved by the fact that petitioner had cancelled an agreement for sale of property in furtherance of which respondent had already made payments. Petitioner contested the suit by filing an application under Section 8 of the Act stating any dispute which arises between the parties are to be taken to arbitration. This application was dismissed by the trial court as they found no agreement entered into between the parties. Hence, the petitioner approached the High Court.

The High Court was of the view that a stand-alone agreement, an application submitted by the respondent that contained terms and condition would be considered to suggest that the parties were willing to resolve the dispute by way of arbitration. The Court observed that the suit was not maintainable as the matter was to be resolved by way of arbitration by virtue of Section 8 of the Act. Therefore, the impugned order whereby application filed under Section 8 was dismissed was set aside.[IREO Grace Realtech (P) Ltd. v. Neeru Babbar,2018 SCC OnLine P&H 1205, decided on 01-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: The NCLAT has held in an appeal against a common order passed by the NCLT’s Allahabad Bench that any dispute within a corporate debtor company (“debtor”) is not one defined in the Insolvency and Bankruptcy Code (the Code), which only takes into consideration disputes between the debtor and its operational creditors (“creditors”).

The appellant is the head of a company which is a corporate debtor, appealing against a common order passed by the NCLT for separate appeals filed by different operational creditors, who are owed a total sum of about 6 crore rupees by the debtor. In response to applications filed under Section 9 of the Code, the NCLT admitted one application, passed a moratorium order and appointed an Interim Resolution Professional. The other applications were disposed of.

The creditors-respondents have stated that the debtor-appellant placed orders for crude rice bran oil but refused to pay for the same even after demand notices were issued under Section 8(1) of the Code.

The debtor, however, claimed that though the debtor company did place purchase orders for the oil, the oil was actually delivered to one Dinesh Arora, the then MD of the debtor company. The invoices, however, were raised against the debtor though it was never actually supplied the ordered oil. Once this fraud was discovered, Mr Arora signed a MoU with the debtor undertaking personal liability to pay off all invoices raised against the fraudulent delivery. The debtor argued that there was consensus ad idem between the debtor, Mr Arora and the creditors on the MoU and this led to novation of the contract, making only Mr Arora, and not the debtor liable for the payment. He further contended that the creditors could not back out of this due to the application of Section 62 of the Contracts Act and must claim all payment from Mr Arora.

The counsel for the creditors argued that the creditors were never a party to the MoU and the same is a mere instrument of collusion between the debtor and Mr Arora to escape their liability. It was shown by the creditors that the debtor company in its balance sheets had accepted its credit liability towards the creditors, these ledgers having been duly signed by the debtor company’s director.

NCLAT was of the view that the ‘dispute’ was merely one of the officials of the debtor company and not between the debtor and the creditors. It stated that while a debt was an asset of the creditor, which he could assign to an assignee of his will, the liability to pay off a debt was not transferable and the burden of repayment being shifted from one official of the debtor company to another does not absolve the debtor company of its liability. Since the appellant had taken over the shares of the other stakeholder-Mr Arora, he would be responsible to pay off the entire debt. The MoU was an agreement between different stakeholders in the same company and so was the issue of who received the delivery of the oil, which was an internal matter of the debtor company and the creditors were entitled to payment for the same. Lastly, the NCLAT also found that the debtor company had shown purchases made from the creditors in its tax returns and had claimed input tax credit on the same. Hence the appeal was dismissed. [Mr Chetan Sharma v. Jai Lakshmi Solvents (P) Ltd.,  Company Appeals (AT) (Insolvency) Nos. 66-70 of 2017, decided on 10.05.2018]