Supreme Court issues notice to Centre seeking Constitutionality of Insolvency and Bankruptcy Code (Amendment) Act, 2020

The Supreme Court in the case titled Association of Karvy Investors v. Union of India has issued a notice to the central government on 16th June 2020 regarding the constitutionality of the provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020. A plea was filed seeking the constitutional validity of Sections 3 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act, 2020. The notice was issued to the central government by a three-judge bench comprising of Justice Rohinton Nariman, Justice Navin Sinha and Justice B R Gavai. The Court has also extended protection to all the pertinent petitions filed under Section 7 of the Insolvency and Bankruptcy Code (Amendment) Act, 2020 that does not meet the 10% requirement as directed by the amendment. 

The individual members of the petitioner institution, Association of Karvy Investors had filed the plea under Section 7 of the Insolvency and Bankruptcy Code Act before the different benches of the National Company Law Tribunal (NCLT) in India because of the non-payment of their dues by the private companies. The petition seeks to challenge the said Amendment Act by asserting that Section 3 "has imposed a strict and onerous condition on the right of an individual financial creditor in order to file the application for initiating corporate insolvency resolution process under Section 7 of the Insolvency and Bankruptcy Code". The applicable condition is that NCLT will allow an application under Section 7 only when 100 members of such class of individual investors or a group of them that represent 10% of the class who has jointly filed an application. The present plea was filed by Advocates Srijan Sinha, Aishwarya Sinha, and Himanshu Chaubey and they emphasized that section 3 of Insolvency and Bankruptcy Code (Amendment) Act, 2020 violates the right to equality and hence, shall be struck down. It emphasizes that the application under section 3 of the said amendment act has been considered as a retrospective and this leads to the prejudices amongst the members of the petitioner association. 

In the order passed by the bench, it has provided for the status quo that shall be maintained in the pending applications as the earlier provisions stand amended by the new IBC Ordinance. 

#saketagarwal #IBC #insolvency #NCLT

No action against firms for non-payment: Supreme Court

Supreme Court on Friday asked the government not to resort to any coercive action against private companies who have not paid their workers full wages during the lockdown in accordance with a government order in March.

The order came on petitions, including one filed by an association of companies from Punjab, challenging the validity of the MHA notification mandating payment of full wages to workers during the lockdown.

“How long can the government expect companies to pay?” a three-judge bench headed by Justices L Nageswara Rao asked Solicitor General Tushar Mehta who sought further time to respond to the petition. While hearing another petition filed by Ficus Pax Ltd, the apex court had last month given two weeks to the Centre to place on record its policy on the MHA notification directing payment of full salaries/wages to employees/workers during the lockdown.

Ludhiana Hand Tools Association has also challenged the validity of Section 10(2)(i) of the Disaster Management Act, 2005.

Terming the MHA order as arbitrary, it said the order violated the private firms’ right to carry on any occupation, trade or business guaranteed under Articles 19(1)(g) of the Constitution.

Business affected

The bench said there may be small industries, which are affected due to the lockdown as they can sustain for say 15 odd days but not more and if they cannot earn, how are they going to pay their workers

SC extends limitation for Arbitration Act, Negotiable Instruments Act cases

The Supreme Court on Wednesday extended the period of limitation for cheque bounce cases and arbitration proceedings amid the COVID-19 pandemic and lockdown.

A Bench led by Chief Justice S.A. Bobde issued notice to the government through the Attorney-General to find if there were other laws which require extension of limitation period.

On March 23, the court had used its extraordinary powers under Article 142 to lift the limitation period for all cases across tribunals and courts until further notice to obviate difficulties and ensure that lawyers/litigants do not have to come physically to file proceedings.

The “period of limitation” is the maximum time set by a statute beyond which the alleged violator faces legal action.

“In view of this court’s earlier order on March 23 and taking into consideration the effect of the COVID-19 and resultant difficulties being faced by the lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from March 15 , 2020 till further orders,” the Supreme Court order read.

In case the limitation has expired after March 15, then it would be extended for 15 days post the lifting of the lockdown.

COVID-19: New dress code for advocates at Supreme Court

Amid COVID-19 outbreak, the Supreme Court of India has directed advocates that they may wear "plain white shirt/salwar-kameez/saree, with a plain white neckband" during the hearings being done through Virtual Court System.

The circular issued on May 13 in the name of Secretary-General, Sanjeev S Kalgaonkar, read, "As a precautionary measure to contain the spread of COVID-19 infection under the prevailing conditions, the Competent Authority has been pleased to direct that the advocates may wear 'plain white-shirt/white-salwar-kameez/white saree, with a plain-white neckband' during the hearings before the Supreme Court of India through Virtual Court System."

It added that the system will stay in place till the "medical exigencies exist or until further orders."

The directions came into force with immediate effect, as per the circular.

Earlier yesterday, Chief Justice of India (CJI) Sharad Arvind Bobde said that doctors have advised not to wear gowns and coats, as it "makes it easier to catch virus" and spread the chances of COVID-19".

"We are advised by doctors not to wear gowns and coats (jackets), as it 'makes it easier to catch virus' and spread the chances of COVID-19. That's why we are today only in white shirt and band," the CJI said.

He said that he may also issue a dress code for other judges and lawyers who may appear through video conferencing in Supreme Court cases. On Wednesday, Judges at the top court were seen sitting wearing white shirts and band.

Generally, Supreme Court Judges have to wear gowns and coats (jackets) as well.

Delhi High Court judgments and orders on Criminal Law

In J v. State of NCT of Delhi [77], the Court proceeded to cancel the bail of an accused in proceedings under Section 376 read with Section 313 of the Indian Penal Code, 1860 (‘IPC’) inasmuch as it found that the accused had been putting up status messages on social media which were threatening in nature and directed at the victim with a view to intimidate her.

In State v. Sumit Phogat [78], the Court held that an allegation of having established physical relations on a false promise of marriage under Section 376 of the IPC could not be said to have been substantiated when it was evident from the material on record that the parties had developed a strong and intimate friendship which was the reason for establishment of a physical relationship, and when it was the complainant’s own case that the accused had in fact taken her to a temple to get married and that she had declined the said offer.

While rejecting an application for re-calling of witnesses several years after their original testimony and cross examination, the Court in Jitender Kumar v. State of NCT of Delhi [79], observed that witnesses who are recalled in such a manner cannot be expected to rely on their memory after several years and, therefore, summoning them at this stage would not be in the interest of a fair trial.

In Bablu v. State [80], the Court reiterated that in the absence of a matriculation or equivalent certificate, a birth certificate or a certificate of date of birth from the school first attended, the age of the accused is required to be determined on the basis of a medical opinion to be conducted on the orders of the Juvenile Justice Board (‘JJ Board’).

In Javed v. State [81], the Court overturned a conviction for commission of offences under Section 392 and 397 of the IPC inter-alia on the ground that in the admitted case of the prosecution, the police officials had reached the scene of the offence on foot from their original location and considering the said distance being approximately 3 Kms., it was not possible to believe the case of the prosecution that the officials concerned had reached the scene of offence within a very short span of time of 5-7 minutes.

While reiterating that the mandate of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) could not be said to be violated in a case where a person was not searched before a gazetted officer/magistrate inasmuch as he/she had declined such an offer despite being specifically apprised of the right to be so searched, the Court in Md. Sarvar v. State [82], held that offering the appellant a choice between searching the police party before being himself/herself being subjected to a search on the one hand, and being searched before a magistrate or a gazetted officer on the hand, would not tantamount to specifically intimating the accused of his/her legal right and would amount to a violation of the statutory mandate enshrined under Section 50 of the NDPS Act.

In Letminjoy Haokip v. State [83], the Court observed that the accused being a university student on the date of commission of offence, lack of previous criminal antecedents and the fact that he had surrendered voluntarily before the police on the day of the incident without attempting to escape from the law would be mitigating factors for reducing the sentence imposed. The Court further held that when it was an undisputed position that the family of the deceased victim had been compensated as per the customary practice of the community to which both the accused and the victim belonged, then, the fine imposed on the accused could also be justifiably waived.

In Manak Kala v. Union of India [84], the Court observed that in order to bring home the offence under Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973, it was mandatory to establish that the accused had received payments by order or on behalf of any person residing outside India and through any person without a corresponding inward remittance from any place outside India and that such a pre-requisite could not be established solely on the basis of a statement made by an employee of the accused and which statement had immediately thereafter been retracted. The Court further observed that the authority concerned had to specifically adjudicate and render a finding in such a situation as to whether the statement was voluntary in nature or not and in the absence of the same, no evidentiary value could be ascribed to the said statement.

In Chhedi Paswan v. State [85], the Court observed that a minor inconsistency as regards the manner of rescue of the child victim from the spot where the offence of rape was perpetrated upon her would be liable to be ignored considering her tender age of thirteen years, coupled with the fact that she had suffered immense trauma and was in a near unconscious condition when rescued.

In Guddo Devi @ Guddi v. Bhupender Kumar [86], the Court held that extending of a loan in cash in excess of Rs. 20,000/-, though might fall afoul of Section 269 SS of the Income Tax Act, 1961 and might attract the penalties under the said Act, but would not, however, render the debt unenforceable or preclude the lender from invoking Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’) to recover the same.

In State v. Sonal Sahani [87], the Court refused to condone an inordinate delay of over 300 days in a petition seeking leave to appeal against a judgment acquitting the accused of the offences under Section 376 and 406 of the IPC and Section 4 of the Dowry Prohibition Act, 1961 inasmuch as it found that the mere explanation premised on bureaucratic red tape and the permission for appeal purportedly having to be secured after passing through various channels could not be accepted.

In Suresh Chander v. State [88], the Court observed that a plea that the accused had lost control of the vehicle which resulted in an accident causing the death of a person because of some mechanical fault in the vehicle would be destructive of the plea by the accused that he was not involved in the accident in question. Further, the Court observed that the allegation as regards the existence of such a mechanical fault had to be specifically established by the accused who had taken such a plea.

In Gulfam @ Zahoor v. State [89], the Court observed that a paper-cutter would also be a deadly weapon within the meaning of Section 397 of the IPC inasmuch as it has a handle and a sharp blade similar to a knife and is capable of causing a fatal injury.

In Manoj v. State [90], the Court held that though an accused was guilty of committing rape within the meaning of Section 376 of the IPC inasmuch as he had sexual intercourse with the prosecutrix when she was below the age of eighteen at the material time, the same would not amount to establishment of the factum of forcible sexual intercourse, and this was a relevant factor to be kept in mind while determining the quantum of sentence.

In Logix Corporate Solutions Private Limited v. State of NCT of Delhi [91], the Court held that an order dismissing a complaint under Section 138 of the NI Act for default and non-appearance would have the effect of acquitting the accused and a petition under Section 378(4) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking leave to appeal against the said judgment would be maintainable.

In Manish Wesley v. State of NCT of Delhi [92], the Court held that in the absence of any specific averment in the charge-sheet as regards the involvement of a real-estate broker in the alleged cheating of the complainant/buyer by the accused/seller, no offence of conspiracy would be said to be even prima-facie made out against the broker inasmuch as he was merely a conduit for arranging an introduction between the buyer and the seller and was not required as a matter of trade-practice to have undertaken any due diligence unless specifically asked to.

In State v. Raju [93], the Court observed that inasmuch as the punishment for offences under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) was extremely severe and if the offence alleged is of such a nature that there is no possibility of any medical or forensic evidence being available to shed light on the controversy, then it was all the more important that the testimony of the child victim should not suffer from material discrepancies and contradictions.

In State v. Md. Chand @ Fukan [94], the Court observed that considering the vital reformatory basis underlying the grant of probation under Section 6 of the Probation of Offenders Act, 1958, (‘PO Act’) it could not be said that a conviction for offences under the POCSO Act would ipso-facto obliterate the right to seek probation.

In Allaudeen v. State [95], the Court held that in addition to the consistent testimony of a child victim, her demeanor in Court after seeing the accused, wherein the victim had started weeping as also trembling with fear, was also a pointer to the involvement of the accused in the offence under Section 6 of the POCSO and Section 506 of the IPC.

In Court on its Motion v. State [96], the Court issued a series of guidelines for recording the testimony of the victims and witnesses who are foreign nationals, in matters involving sexual assaults.

In Gurmeet Singh @ Lucky v. The State (NCT of Delhi) [97], the Court observed that even where the recovery of the article in question had been made from a public place, if it was established that the article was hidden from public view on account of having been concealed, as in the instant case under a tree, then the said recovery could not be discarded.

In Indrwati v. State [98], the Court while observing that an FIR doesn’t amount to an 'encyclopedia’ of all the facts of a case, further held that the mere omission in the FIR to state that the deceased was last seen with the accused would not ipso-facto result in the non-application of the last seen theory. The Court further observed that a minor discrepancy in the measurement of the weapon used in the commission of the crime and duly recovered thereafter would not tantamount to a major contradiction and the recovery could not be discarded on this ground.

In Kanwar Pal Sharma v. State [99], the Court reiterated that in the case of multiple dying declarations having been made by the victim, the Court was required to carefully scrutinize the same and when the name of the accused figured in one of the dying declarations, but was completely absent in the other, then the Court would be more circumspect.

In Mehulbhai Rasikbhai Bhimani v. Union of India [100], the Court held that a long delay between the alleged illegal activity and the passing of the consequential detaining order passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA Act’) would indicate complete absence of a proximate-link and the order would accordingly be liable for interference.

In Mohammad Najib Haidari v. Union of India [101], the Court held that upon the passing of a reasoned order by the Foreigners Regional Registration Officer imposing restrictions on the movement of the petitioner under the provisions of the Foreigners Act, 1946, a habeas-corpus petition would no longer be maintainable

In Mohd. Zakir v. State [102], the Court observed that inasmuch as the requirement of producing a certificate under Section 65-B of the Indian Evidence Act, 1872 (‘Evidence Act’) is a procedural requirement, its production can be waived or relaxed in appropriate circumstances when so required and justified in the interests of justice.

In Pradeep Kumar v. State [103], the Court held that the inability of the accused to explain the presence of his fingerprints at the scene of the crime in his testament under Section 313 of the Cr.P.C. would lead to an adverse inference.

In Tinku Singh v. State [104], the Court observed that the brutal act of beheading the body of the deceased would dispel the applicability of the fourth exception to the Section 300 of IPC inasmuch as one of the preconditions for invoking the same is that accused should not act in a cruel and unusual manner.

In State v. Akash [105], while upholding an order of acquittal in proceeding under Section 307 of the IPC, the Court observed that multiple contradictory opinions given by the medical officers in relation to the nature of the weapon of the offence and the origin of the injuries suffered by the victim would require that the benefit of doubt be given to the accused.

In State v. Sameer Ali [106], the Court held that in order to apply the presumption under Section 113B of the Evidence Act in dowry death cases it was required to be established that the cruelty complained of must have occurred soon before the time of death, and this would axiomatically imply that there should be no long gap or interval between the cruel act complained of and the death of the victim.

In State v. Sonu Singh [107], the Court upheld an order of acquittal in relation to an offence under Section 302 of IPC inasmuch as it observed that there were material discrepancies and contradictions in the testimony of various prosecution witnesses including on the aspect of the underlying motive of the accused for committing the crime in question

In Surender Shah v. State [108], the Court issued various directions to streamline the functioning of the police authorities and anti-human trafficking units in matters relating to missing children.

While reiterating that the Court was entitled to adjudicate the matter on the basis of the percentage of purity of the recovered contraband, the Court in Paramjeet Singh v. State [109], and in Raju Diwakar @ Pappu v. The State [110], held that if after applying the said percentage the quantity fell short of the commercial quantity of two hundred and fifty grams, then the embargo on granting bail under Section 37 of the NDPS Act would not be applicable.

In Chandan Sawhney v. State [111], the Court while adjudicating the issue as to whether the establishment of a physical relationship between the prosecutrix and the accused was a result of a false promise of marriage, held that it was necessary to keep in mind the age, educational qualifications and family and societal background of the prosecutrix and on a conspectus of the relevant facts held that an educated, socially-prominent and empowered individual could not be said to have been falsely induced by none other than her former husband of twenty years from whom she had gotten divorced in the past.

the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

Jyoti Sawhney v. State (Govt. of NCT of Delhi)

In Jyoti Sawhney v. State (Govt. of NCT of Delhi) [112], the Court observed that the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

In Union of India v. Vinay Sharma [113], the Court held that the words ‘appeal’ or ‘application’ referred to in Rule 834 of the Delhi Prison Rules, 2018 would only refer to a petition or similar proceeding pending before the Supreme Court and their meaning could not be extended to cover a mercy petition lodged before the President of India. The Court further held that when all the convicts had been dealt with together and the death penalty imposed upon them was confirmed by a common judgment of the Supreme Court, then the death warrants of the convicts were required to be executed simultaneously and not separately.

In Gaurav Mavi v. State [114], and Pulkit Rastogi v. State [115], the Court elaborated on the effect of the rationalization of the sentencing structure in the NDPS Act and the distinction drawn between the recovery of a ‘small quantity’ and a ‘commercial quantity’.

In Anup Joshi v. CBI [116], the Court rejected the contention that upon bail having been granted to the co-accused, the same result should flow in the case of the petitioner inasmuch as it noted that the role attributed to the petitioner was of a much more serious nature than the other co-accused.

In Laxmi Satyanarayana Dutt Tadikonda v. Union of India [117], the Court while directing the withdrawal of a lookout circular against an accused chartered accountant, noted that when there was no allegation of non-cooperation with the investigation, then, the issuance of a look-out notice was not justified particularly in light of its serious repercussions and the fact that it is usually issued only in relation to persons with terrorist links, belligerent foreigners and absconding persons.

In Gulam Reza v. ITPL Infrastructure Private Limited [118], the Court reiterated that inasmuch as in a proceeding under Section 138 of the NI Act, the defense of the accused is a matter which falls within the special knowledge of the accused, and, therefore, the primary onus and burden remain that of the accused.

In Rekha Chaturvedi v. State [119], the Court reiterated that even if all allegations made in a complaint disclose the commission of a cognizable offence, the magistrate concerned is not bound to direct investigation by the police under in exercise of power under Section 156(3) of the of the Cr.P.C. without application of mind, and in a given case a magistrate may well come to the conclusion that the complainant can prove the averments in the complaint without the assistance of the police and accordingly proceed under Section 200 of the Cr.P.C.

In Nitin Sharma v. State (Govt. of NCT of Delhi), [120] the Court observed that the mere fact that there was videographic evidence demonstrating the consumption of alcohol by the prosecutrix in the presence of the accused, and her exhibiting an otherwise cheerful disposition during the said period, would not in any manner indicate the absolute innocence of the accused so as to entitle him to bail when charged with the offence of rape.

In Faizan @ Salman v. State, [121] while upholding the conclusion of the JJ Board that the accused was a major, the Court further observed that in the absence of any lapse in the procedure adopted by the doctors appointed to determine the age of the accused, the Court could not enter into the merits of the determination which had been conducted by specialists in the field.

In Anita v. State [122], the Court reiterated that at the stage of framing of charge, the Court is only required to weigh the evidence for the limited purpose of ascertaining the existence of a prima-facie case and a detailed examination is not required to be undertaken as if a full-fledged trial was being conducted.

In Vaninath Uppalapati v. State [123], the Court reiterated that mere possession of a cartridge by itself would not constitute an offence in the absence of any intention to use the same. The Court further observed that there being no recovery of a corresponding weapon connecting the accused with the intention to use the cartridge would lead to the conclusion that no offence was made out under the relevant provisions of the Arms Act, 1878 (‘Arms Act’).

In Kapila Bhudhiraja v. Deepak Bhudhiraja [124], the Court permitted the transfer of a case under the Protection of Women from Domestic Violence Act, 2005, (‘PWDV Act’) from one district court to another inasmuch as it found merit in the contention of one of the parties that the advocates at the concerned original court had intimidated and threatened the concerned party, thereby, making it difficult to continue to attend proceedings in the future.

In Ganesh Pun v. Union of India [125], the Court observed that the mere grant of default bail on account of failure of the prosecution to file the charge-sheet within the requisite period in a connected case would not inure any right to the petitioner for grant of regular bail in the subject case.

In Priyanka Batra v. Sandeep Grover [126], the Court reiterated that the avoidance of conflicting decisions on issues which are in controversy in more than one case would be a germane factor for the transfer of a criminal case from one district court to another.

In Naveen Ramani v. State [127], the Court observed that the old age and related ailments are not a ground for transfer of a criminal case from one district court to another, and the appropriate remedy would be for the party concerned to approach the concerned court with an application for exemption.

In Gurbachan Singh v. The State (Govt. of NCT of Delhi) [128], the Court reiterated that if the essential elements of negligent and rash driving having resulted in a death were established, then even though there was no such intention to cause death, a conviction under Section 279 and 304-A of the IPC could be said to have been brought home.

In State v. Tejveer @ Guddu [129], the Court reiterated that in the absence of any doubt as to the authenticity and reliability of the school certificate of the accused, in terms of Section 94 of the Juvenile Justice Act, 2015 (‘JJ Act’), the JJ Board could not order a medical test to determine the age of the accused.

In Ashish Aggarwal v. Sushil Kumar [130], the Court reiterated that Section 145(2) of the NI Act obliges the Court in the usual course, upon an application being filed by the accused, to summon the person who has given evidence on affidavit in terms of Section 145(1) of the NI Act.

In Sukhdev Singh v. State [131], the Court reiterated that the power under Section 482 of the Cr.P.C. could not be exercised where the allegations are required to be duly proved before a court of law.

In Mauktika Energy Pvt. Ltd. v. Asia Pragati Capfin Private Limited [132], and in Sunita Verma v. Permanand Verma [133] the Court observed that inasmuch as a fair trial was fundamental to the criminal justice system, the right of the accused to adduce defense evidence is a valuable right which could not be brushed aside lightly.

In State (Govt. of NCT of Delhi) v. Raman Kumar [134], while upholding an order for discharge, the Court held that the mere fact that the accused was sitting on the passenger seat when the driver of the car/co-accused proceeded to run over the victim resulting in the death of the victim, he/she could not be imputed with common intention within the meaning of Section 299 of the IPC.

In Jitender Kumar v. State (Govt. of NCT of Delhi) [135], while ordering the release on probation of a convict convicted for the offences under Sections 428, 468, and 471 of the IPC, the Court elaborated upon the underlying reformative push which forms the basis of the PO Act and that if the release of the youthful accused would result in genuine reformation and reduction of the scope of turning into a hardened criminal, then the necessary discretion should be exercised in his/her favor.

In Shyam Bir v. State (NCT of Delhi) [136], the Court permitted the accused to be released for the short sentence of imprisonment already undergone for a conviction under Sections 279 and 338 of the IPC read with Sections 134 and 187 of the Motor Vehicles Act, 1988, (‘MVA’) in light of the fact that the accused had a young family to support and his conduct in jail was found to be satisfactory and that he had offered to pay additional compensation to the injured person.

In Sonu Sawarkar v. State [137], the Court held that when a video-clip of a forcible sexual act being committed upon the victim was recovered from the mobile phone of the co-accused who was demanding money from the victim on the basis of the same, and the said video-clip was identified by the victim as having been shot by the petitioner/main accused, then, even in the absence of any evidence that the video clip was transferred from the petitioner’s phone to that of the co-accused, the offence under Section 67-A of the Information Technology Act, 2000 (‘IT Act’) and Sections 384 and 34 of the IPC could be said to have been made out.

In State (GNCTD) v. Ombir [138], the Court noted that the inflicting of a superficial injury during a scuffle or quarrel would not be sufficient to attract Section 308 of the IPC in the absence of other relevant evidence in this regard.

In Inspector Ram Niwas v. Govt. of NCT of Delhi [139], the Court upheld an order directing a Station House Officer (‘SHO’) to deposit costs of Rs.10,000/- for cancellation of non-bailable warrants issued against him by the trial court inasmuch as it noted that the SHO concerned had consistently and flagrantly violated the orders of the court on various occasions.

In Sanjeev Kumar Chawla v. The State [140], the Court reiterated that in terms of Section 167(2) of the Cr.P.C., the accused can be detained in either police or judicial custody from time to time but the total period cannot exceed 15 days, even though the nature of custody may change from time to time.

In Manoj Tyagi @ Monu v. The State (Govt. of NCT of Delhi) [141], the Court held that inasmuch as the legislature had consciously provided for the commission of sexual assault, as defined in Section 7 of the POCSO Act, with a child below the age of twelve years as being an aggravated sexual assault, the sole submission that there was no penetration of any kind during the commission of the act would not detract from its seriousness.

In Pashupati Mukhiya v. State [142], the Court observed that different statements recorded at different points in time, maybe years apart, of a child victim who was subjected to sexual assault might naturally exhibit certain discrepancies, and any minor discrepancy as to the exact place where the assault occurred would not be sufficient to discredit her testimony.

In State of NCT of Delhi v. Parveen [143], while construing the scope of Section 31 of the NI Act dealing with enhanced punishment for a repeat offender, the Court observed that the same does not take away the discretion of the Court to award a sentence of imprisonment and the maximum term for the offence would not automatically be attracted. The Court further held that even as far as the amount of fine was concerned, though the statutory language employed therein would indicate that flexibility in this regard is limited, the discretion of the Court however, would not still be completely obliterated.

While returning a reference made to it under Section 395 of the Cr.P.C. as being premature and non-maintainable, the Court in Court on its Motion v. State [144], observed that a magistrate, at the stage of hearing arguments on charge, was not empowered to make a reference to the High Court by indulging in speculation as to the issues which could possibly arise for consideration, including conjecture as to the validity of any act or ordinance or regulation.

In State v. Jagat [145], the Court while upholding an order of acquittal under Section 377 of the IPC read with Section 6 of the POCSO Act, highlighted patent and serious contradictions within the testimony of the child victim, as also when considered in conjunction with the testimony of the father of the victim, coupled with complete lack of corroborative evidence and the established existence of financial disputes between the father of the victim and the accused.

In Amit Sherwat v. State [146], the Court reiterated the five basic principles which must be established in order to bring home a case based on circumstantial evidence viz.

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

In Tej Singh v State [147], the Court reiterated that in heinous crimes such as rapes, economic or social status cannot be a mitigating factor for reducing the sentence.

In Umesh v. State [148], the Court held that merely because the witness could be shown to be related to the deceased, the same would not ipso-facto result in his/her testimony being discarded. The Court further observed that a related person could not be said to be axiomatically interested, and in order to demonstrate such interest, it was further necessary toestablish that he/she would benefit from seeing the accused person being punished.

In State v. Sandeep [149], the Court observed that only when an accused refuses to participate in a Test Identification Parade without any justification can an adverse inference be sought to be drawn, and on the contrary if the accused is able to demonstrate a justifiable and cogent reason for not participating in the same, then there can be no such adverse inference.

https://www.barandbench.com/columns/the-delhi-high-court-in-review-february-2020-part-i

Important Judgments and orders on Constitution Law

In Praveen Kumar Chaudhary v. Election Commission of India [65], while upholding the constitutional validity of Section 62(5) of the Representation of Peoples Act, 1951 (‘RPI Act’) and validating the classification enshrined therein between persons who were incarcerated and those who were not, the Court reiterated that the right to vote was not a fundamental right but only a statutory right which was subject to the limitation imposed by the relevant statute.

While proceeding to set aside a circular which had sought to impose a penalty on a person gaining access to a national highway without permission of the concerned authority, the Court in Indraprastha Gas Limited v. Union of India [66], reiterated that the power to levy penalty must necessarily be sourced from the statute or from a valid subordinate legislation and could not be sought to be vested by a mere administrative circular or letter.

In Sameer Jain v. Union of India [67], the Court rejected a challenge to the alleged excess delegation of powers to the Advertising Standard Council of India (‘ASCI’) inasmuch as it found that the ASCI was merely a recommendatory body and its recommendations were subject to final decision by the Union of India.

In Association of the Health Care Providers (India) v. Union of India [68], the Court observed that Article 226 of the Constitution of India could not be invoked to seek redressal of allegedly onerous and financially unviable terms of a government scheme inasmuch as it was for the party concerned to take a commercial decision as to whether to continue to offer its services under the concerned scheme or not.

In Ms. Azra v. The State (G.N.C.T. of Delhi) [69], the Court while reiterating that there is no right to negative equality, further held that merely because some of the occupants of the building had been wrongly given electricity by the concerned authority would not entitle the petitioner to receive the same benefit from the concerned authority inasmuch as it would amount to the compounding of an illegal act.

In Obsurge Biotech Limited. v. Union of India [70], the Court while interpreting the relevant provisions of the Drugs Prices Control Order, 2013, observed that the non-schedule formulation of drugs would also be extended the benefit of rounding of the pricing to the next whole number which was expressly made available to schedule formulations inasmuch as the same would otherwise amount to clear discrimination.

In Fresenius Kabi Oncology Limited v. National Commission for Scheduled Castes [71], the Court reiterated that the National Commission for Schedule Castes would only have jurisdiction to entertain complaints where there was a specific allegation of the violation of the rights and safeguards available to a person belonging to the scheduled caste community, and any dispute falling outside of the aforesaid spectrum could not be entertained.

In Ashok Kumar Jain v. National Law University Delhi, [72] the Court reiterated that a writ of quo-warranto cannot be issued if it is conclusively established that the person whose appointment is challenged indeed possesses the necessary qualifications for the post in question.

Delhi High Court important judgments on Company Law and Insolvency Law

In Sanjeev Mahajan v. Aries Travels Private Limited [61], the Court held that non-compliance of Section 187C(4) of the Companies Act, 1956 (‘Companies Act’), which requires a company to inter-alia make a declaration and file a return with the Registrar of Companies (‘ROC’) qua transfer of a beneficial interest in share-holding would render the said transfer unenforceable in view of Section 187C(6), and in fact the prohibition contained under the Prohibition of Benami Property Transactions Act, 1988 (‘Benami Act’) would kick in. The Court further observed that even a person being a beneficial owner of shares in a company is not entitled to the possession of immovable properties of the said company on this ground alone, unless permitted by a resolution of the board of directors of the said company.

In Sunil Gandhi v. A. N. Buildwell Private Limited [62], the Court held that in a proposed scheme of compromise and arrangement under the provisions of the Companies Act, clauses which seek blanket waiver of criminal liabilities against the promoters of the company could not be approved. The Court, however, observed that once the scheme in question is implemented and the claims of the concerned creditors are accordingly addressed, then appropriate consequences would follow in the pending criminal proceedings.

In Narender Kumar Nehra v. Bhupinder Singh [63], the Court held that once the sale process of the property belonging to the company in liquidation had concluded with the deposit in the Court of the relevant sale consideration by the successful bidder, then, in the absence of any allegation of fraud or illegality in the sale process, the bidding process could not be re-opened at the instance of a party which was willing to offer a marginally higher price on a subsequent date inasmuch as this would adversely affect the finality attached to the bidding process undertaken by the Court. The Court, however, clarified that the position might be different in a case where a significantly higher amount is subsequently offered, and which by itself might be indicative of the unreasonableness of the initial price

Judgements and orders passed by Delhi High Court on Code of Civil Procedure

In Master Anant Narayan Rai v. Siddharth Rai [33], the Court observed that the general proposition that no suit can be thrown out for non-joinder of parties as enshrined in the proviso to Order I Rule 9 of the Code of Civil Procedure, 1908 (‘CPC’) would not apply when there is non-joinder of essential and necessary parties. The Court further observed that even though procedural defects and irregularities should normally not be permitted to defeat substantive rights, however in a case where a party had, despite objections from the other side, persisted in not curing the said defect, the harsh consequence of rejection of the suit must necessarily flow.

In Economics Transport Organisation Limited v. Mohan Investments & Properties Private Limited [34], the Court held that a suit seeking an injunction against a defendant from interfering with possession of the plaintiff cannot seek to interject the enforcement of an ejectment decree obtained by the defendant against the predecessor-in-interest of the plaintiff, and the correct remedy in this regard for the plaintiff would be to approach the executing court under Order XXI Rules 98 to 105 of the CPC.

In Natasha Kohli v. Mon Mohon Kohli [35], the Court reiterated that if with the passage of time, it is discovered that the original cause of action on the basis of which a litigation was initiated had ceased to exist, then the Court would not permit the said litigation to continue any further.

In Aruna Oswal v. Gen Y Commodities Private Limited [36], while reiterating the principle of “debtor must seek the creditor”, the Court held that in a suit for recovery of money based on an acknowledged liability, the court within whose jurisdiction the plaintiff is residing would have territorial jurisdiction.

In Kapil Tanwar v. Usha Dutt [37], the Court reiterated that when the purport of an averment in a written statement can be explained and if the said explanation falls short of an admission, then Order XII Rule 6 of the CPC would not come into operation and no judgment on admission could be passed.

In Mrs. Pravin Chatterjee v. Mr. Lakshman Das Bhatia [38], the Court observed that merely because a subsequent suit has been filed challenging a conveyance deed executed by the DDA in favour of the person claiming to be the owner, the said fact could not be taken as a defence in the suit which had been filed seeking possession of the premises on account of termination of lease at an earlier point in time.

In Archana Rawal v. Vijay Kataria [39], the Court while relying on Order XLI Rule 7 of the CPC, observed that a statutory appeal under the CPC could not be decided on merits in the absence of the appellant and it was only open to the concerned court to dismiss the appeal for non-prosecution.

In India Affordable Housing Solutions, (IAHS) v. Konark Infra Developers Private Limited [40], the Court held that once an order granting leave to defend subject to deposit of a certain amount had attained finality, and pursuant to the non-deposit, a final decree had followed against the defendant and challenge to which decree was also unsuccessful, then a review petition against the original order granting leave to defend would not be maintainable at that stage.

In Neha Dutta v. Capitol Art House Private Limited [41], the Court observed that a plaint cannot be rejected in exercise of jurisdiction under Order VII Rule 11 of the CPC on the solitary ground that the validity of the document upon which the suit was premised was also subject matter of certain other proceedings between the parties.

In Ajay Kumar v. Om Prakash [42], the Court held that when a suit filed by a party was seemingly hit by the principles of res-judicata and issue estoppel, then the necessary corollary would be that the accompanying application for interim relief under Order XXXIX Rule 1 & 2 would suffer rejection on account of lack of a prima-facie case.

In Delhi Development Authority v. Anup Kumar [43], the Court reiterated the different considerations which weighed with the Court while examining an application for condonation of delay in filing the written statement in a commercial suit as distinct from an ordinary suit, and further observed that in the case of the latter a more lenient approach could be adopted.

In North Delhi Municipal Corporation v. Dhingra Construction Company [44], the Court issued directions to the district courts to specifically indicate the timeline for filing a written statement while issuing the summons depending on whether the suit in question was a commercial suit or an ordinary suit, and in the case of the former to clearly indicate that the outer limit for filing of a written statement is 120 days.

In Navshakti Educational Society v. Laxman Public School [45], the Court observed that when the documents sought to be exhibited are a record of the judicial proceedings conducted before the High Court and there is no cavil as to the authenticity of the said record, then in the said situation even non-certified copies of the said documents could be permitted to be exhibited.

In Brij Prakash Gupta v. Ashwini Kumar [46], after a detailed examination of the legal position in relation to filing of an examination-in-chief by way of an affidavit and the contents of such an affidavit, the Court deprecated the practice of en-masse mechanical reproduction of the contents of the plaint in the affidavit in lieu of the examination-in-chief, and remarked that the affidavit should only contain facts which are to the personal knowledge of the party concerned. The Court further observed that while it is correct that the contents of the affidavit cannot travel beyond the pleadings, when any such objection is taken the same should be recorded and decided at the stage of final adjudication of the suit and, subject to the same, the cross-examination of the witness should proceed in the meantime. The Court held that deletion of portions from the affidavit of evidence should only be ordered at a preliminary stage when it was ex-facie evident that the relevant averments were totally irrelevant or beyond the pleadings.

In Embassy Restaurant v. Atma Ram Builders Private Limited [47], the Court observed that when there was a specific pleading in a suit that there was an oral agreement between the parties that the house tax would be a part of the rent, and after which inclusion the property would not be covered under the provisions of the Delhi Rent Control Act, 1958, then the said aspect would require a detailed trial and the suit could not be rejected upon an application being filed under Order VII Rule 11 of the CPC.

In Arun Kumar Jain v. Bhagwant Singh Pabla [48], the Court held that inasmuch as a mere finding by a Court during a certain stage of the proceeding cannot be challenged unless and until a consequential decree follows, and therefore the said finding which is incapable of being challenged or appealed against cannot operate as res-judicata. While reiterating that a decree under Order XII Rule 6 of the CPC could only be passed if there was a categorical or unconditional admission, the Court in Hunny Sharma v. Ved Prakash Sharma [49], cautioned against adopting a ‘shortcut’ procedure when faced with long pendency of suits inasmuch as the same would adversely affect the rights of the parties.

In a similar vein, in Vir Singh v. Chandra Lata [50], the Court reiterated that an admission within the meaning of Order 12 Rule 6 of the CPC must be unequivocal in nature and a vague or stray averment in a pleading would not be sufficient.

In Kishori Lal v. Akhtar Alam [51], the Court observed that an objector in an execution proceeding could not be permitted to take materially improved and additional averments at the appellate stage as compared to the objections raised before the executing court.

In Ashok Kumar Oberoi v. Raj Kumar Kapoor [52], the Court allowed an application under Order XII Rule 6 inasmuch as it found that there were clear admissions in the earlier proceedings between the same parties and that the averments in the instant suit were mechanically denied by the defendant without any real engagement.

In Rajeev Sethi v. Sidharth Gupta [53], the Court rejected an application for leave to defend in a summary suit under Order XXXVII of the CPC inasmuch as it found that there where various acknowledgements of the debt by the defendant including undertakings on stamp paper, a formal memorandum of undertaking, various cheques as also promissory notes. The Court refused to countenance the plea of the defendant that the aforesaid overwhelming number of acknowledgements were obtained under a misconception and by utilising undue influence.

In East India Auto Manufacturing Company Private Limited v. Ishwar Singh [54], the Court observed that an application for impleadment was required to be allowed when the party concerned did seem to have a connection with the transaction which was subject matter of the suit, and at that stage a detailed consideration of the evidence was not required to be undertaken.

In Charanjeet Singh v. Raj Kumar [55], the Court held that mere lack of clarity in the drafting of the prayer in a suit cannot disentitle the Plaintiff from the reliefs sought when the relevant narration in the plaint in this regard was otherwise quite clear.

In Sanjiv Tiwari v. Deepak Poptani [56], the Court held that a counter-claim could not be permitted to be filed after framing of issues in a suit and the same could be permitted only in exceptional cases wherein it could be demonstrated that the recording of evidence pursuant to framing of issues had not commenced.

In Kapil Kumar v. M/s M&A Designs [57], the Court observed that it was not permissible to direct the director of a company to file an affidavit of personal assets in the course of execution of a decree against the company, without first arriving at a finding as to whether there was sufficient ground for lifting the corporate veil.

In Kuldeep Gupta v. Mahendar Kumar [58], the Court observed that the lawyers abstaining from attending courts on whatsoever grounds cannot be permitted to have debilitating consequences for the litigants, and the courts hold a duty to safeguard the interests of the latter in the case of a strike called by lawyers.

In Kusum Lata Jain v. North Delhi Municipal Corporation [59], the Court held that serious allegations of forgery cannot be made in a reckless manner, and without any basis or foundation.

In Rev. Dinesh Das v. Baptist Church Trust Association [60], the Court held that inasmuch as an application seeking stay of a pending suit under Section 10 of the CPC goes to the very root of the matter, the Court is required to necessarily consider the said issue at the outset without proceeding further with the matter.

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