ORDERS AND JUDGMENTS

Duration June 23, 2019 to July 07, 2019

A right is not what someone gives you: it’s what no one can take from you.

RAMSEY CLARK U.S. ATTORNEY GENERAL

ALTERNATIVE DISPUTE RESOLUTION

  • Chandan Gupta v. Supertech Limited
    Builders can’t forfeit homebuyer money for seeking cancellation due to delay in project-6 May 2019 (NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION ORDER)
    The Apex consumer commission has held that a builder cannot forfeit any amount deposited by homebuyer in case he/she seeks cancellation of allotment of flat due to delay in project and directed Supertech to refund entire amount of over ₹ 1 crore to a buyer for delay of two year in delivering the house in NOIDA.
    The Order can be accessed at:
    http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F2590%2F2017&dtofhearing=2019-05-01
  • Vasavi Engineering College Parents Association v. State of Telangana and Others
    TAFRC, not court, decides engineering fee structure-1 July 2019 (SUPREME COURT JUDGEMENT)
    Deciding the fee structure at engineering colleges comes under the jurisdiction of the Telangana Admissions and Fee Regulatory Committee (TAFRC), the Supreme Court asserted, while setting aside an earlier order passed by the erstwhile Hyderabad High Court. The court, in the garb of judicial review, cannot usurp the jurisdiction of the decision maker and take the decision by itself. Neither can it act as an appellate authority of the TAFRC, the Supreme Court noted. The Supreme Court held that the high court exceeded its jurisdiction by interfering with the recommendation of the TAFRC.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/37068/37068_2018_11_1503_14660_Judgement_01-Jul-2019.pdf
  • ONGC Petro Additions Limited (OPaL) v. Tecnimont S.P.A and Another
    Sec.34 Arbitration Act - Order Rejecting Permission for Producing Additional Documents Is not an 'Interim Award'-1 July 2019 (DELHI HIGH COURT JUDGEMENT)
    In a significant judgment in arbitration law, the Delhi High Court has held that an order of the arbitral tribunal refusing permission to produce additional documents will not constitute an 'interim award'. Therefore, such an order cannot be challenged under Section 34 of the Arbitration and Conciliation Act, 1996.
  • Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited and Anr
    Supreme Court declines to apply ‘Group of Companies’ Doctrine to implied Foreign Company in Arbitration with its Indian Affiliate-1 July, 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court has refused to invoke the 'group of companies' doctrine to implead a foreign company in an application for appointment of arbitrator for a dispute arising out an agreement with its Indian affiliate. As per 'group of companies' doctrine, arbitration agreement entered into by a company, which is one among a of corporate entities, can, in certain circumstances, bind its non-signatory affiliates. This was expounded by the SC in the 2013 decision Chloro Controls India Private Limited Vs. Severn Trent Water Purification Inc. and Ors. Based on this doctrine, Reckitt Benckiser (India) Private Limited wanted to implead a Belgian associate company of Reynders Label Printing India Private Limited in an application filed under Section 11 of the Arbitration and Conciliation Act. The agreement was executed between Reckitt Benckiser (India) Pvt Ltd and Reynders Label Printing (India) Pvt Ltd, and the former sought appointment of arbitrator in relation to certain disputes arising out of the agreement. Stating that the agreement was binding on the Belgian company of Reynders group of companies and that international commercial arbitration was needed, Reckitt Benckiser filed application under Section 11 for appointment of arbitrator. According to the applicant, Belgian company was the holding company of Reynders India. The Court however turned down that plea for dragging the Belgian company to the proceedings on the finding that no clear intention to bind it was manifest from the correspondences between the parties. The applicant referred to certain emails with Frederik Reynders, who the applicant claimed to be the promoter of Reynders group, to contend that there was intention to bind the Belgian company by the agreement as it was actively involved in the negotiations. Reynders Belgium denied that it was the parent or holding company of Reynders India and stated that they were both part of Reynders Label Printing Group. This group is an internationally operating group of seven printing companies and each of these companies has its own separate legal entities and operates in different offices independently. It was stated further, these companies only share a common parent entity, namely, Reynesco NV which is also the holding company of both respondent companies. Reynders India however submitted that it was willing to accept the appointment of an arbitrator for settling the disputes by treating it as a domestic arbitration. Based on this, the Court appointed Mr. Justice Badar Durrez Ahmed (Former Chief Justice, Jammu & Kashmir High Court) as the sole arbitrator to conduct domestic commercial arbitration at New Delhi in relation to disputes between the parties.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2016/24972/24972_2016_9_1503_14652_Judgement_01-Jul-2019.pdf
  • K. Chopra v. Registrar General Delhi High Court
    Pleadings cannot be in Hindi; Delhi High Court upholds Rule mandating filing of pleadings in English-27 May 2019 (DELHI HIGH COURT ORDER)
    The Delhi High Court has upheld the validity of the Delhi High Court Rule which mandates filing of pleadings before it in the English language. The judgment was passed by a Division Bench in a petition seeking a declaration that the Delhi High Court Rules are ultra vires the Delhi Official Languages Act, 2003 to the extent that they allow only “English” as the language in which the pleadings can be filed in the High Court.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/JIS/judgement/02-07-2019/JIS27052019CW58992019.pdf
  • Madhav Prasad Aggarwal & Anr v. Axis Bank Ltd & Anr
    Order VII Rule 11(d) CPC: plaint can either be rejected as a whole or not at all-2 July 2019 (SUPREME COURT JUDGEMENT)
    Plaint can either be rejected as a whole or not at all, remarked the Supreme Court while reiterating that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/43149/43149_2018_9_1505_14652_Judgement_01-Jul-2019.pdf

CORPORATE

  • Commissioner of Customs, (Preventive) West Bengal v. Ram Swarup Industries Ltd & Ors
    National Company Law Appellate Tribunal (NCLAT) dismisses customs dept plea to auction goods of a firm under moratorium period-20 June 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has dismissed a Petition of customs authority seeking auction of confined goods of a company, which is under the corporate insolvency proceedings, saying the assets cannot be alienated during a moratorium period.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/9949287185d0b43b407217.pdf
  • Sudip Roy Choudhury v. JCIT (TDS)
    Delay in Filing of Tax Deducted at Source (TDS) due to sudden Resignation of Accountant is ‘Sufficient Cause’-12 June 2019 (ITAT ORDER)
    The Income Tax Appellate Tribunal (ITAT), Kolkata bench has held that the delay in filing of TDS return because of the sudden resignation of the assessees accountant would constitute ‘sufficient cause’ for such default.
    The Order can be accessed at:
    https://www.itat.gov.in/files/uploads/categoryImage/1560409488-ITA%20No.%201890-2018-Sudip%20Roy%20Chowdhury.pdf
  • Amira Pure Foods Private Limited v. Canara Bank and Ors
    Moratorium under IBC does not make DRAT powerless to recall appointment of Court Commissioner-20 May 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court has held that imposition of moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 does not take away the Debt Recovery Appellate Tribunal’s power to recall or modify its earlier order on appointment of Court Commissioners against a corporate debtor.
    The judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/REP/judgement/21-05-2019/REP20052019CW54672019.pdf
  • M/s Urmila Devi Charitable Trust v. Commissioner of Income Tax (Exemptions)
    Tax Exemptions can’t be denied to Trust Merely because One Donation in One Year is doubted-13 June 2019 (INCOME TAX APPELLATE TRIBUNAL ORDER)
     The Delhi bench of the Income Tax Appellate Tribunal has held that the income tax exemption cannot be denied to a Trust merely because one donation in one year is doubted. While concluding the assessment proceedings against the assessee, the CIT (Exemption) found that the assessee was not carrying out activities in accordance with the objects of the society and no genuine activities are being carried out by the society, is solely based upon the allegation that the assessee received the donation of ₹ 85 lakhs in lieu of cash. The Tribunal noted that there is no basis for the Department to hold that the assessee received the donation of ₹ 85 lakhs from HHBRF in lieu of cash.
    The order can be accessed at:
    https://www.itat.gov.in/files/uploads/categoryImage/1560412200-4136%20_Urmila%20Devi%20Charitable%20Trust_.pdf
  • Educomp Infrastructure & School Management Limited v. Mr Vinod Kumar Dandona & Ors
    Unrelated parties under no obligation to furnish information under Section 19 of Insolvency Code-14 June 2019 (NATIONAL COMPANY LAW TRIBUNAL ORDER)
    The National Company Law Tribunal, Chandigarh Bench has held that Section 19 of the Insolvency and Bankruptcy Code casts an obligation on the ex-personnel of the corporate debtor, its promoter or any other person associated with the ex-management including ex-directors to extend all assistance and cooperation to the Interim Resolution Professional to enable him to manage the affairs of the corporate debtor. It has, however, clarified that unrelated parties are under no obligation to furnish information under Section 19 of the Insolvency Code.
    The Order can be accessed at:
    https://nclt.gov.in/sites/default/files/Interim-order-pdf/CA%20335%20CP%20No.10%20Educomp%20Infrastructure%20order.pdf
  • Rotomac Global Private Limited v. Deputy Director Directorate of Enforcement
    ‘PMLA and IBC do not overlap’-2 July 2019 (NATIONAL COMPANY LAW APPELLATE TRIBUNAL JUDGEMENT)
    ‘The National Company Law Appellate Tribunal said Prevention of Money Laundering Act, 2002 gets invoked simultaneously with the Insolvency and Bankruptcy Code and that neither of the laws has an overriding effect over the other.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/12346211525d1b38981fb8b.pdf

COMPETITION

  • Karni Communication Private Ltd & Karni Telnet Private Ltd v. Haicheng Vivo Mobile (India) Private Ltd, Vivo Mobile India Private Ltd and Vivo Communication Technology Co Ltd
    Competition Commission of India (CCI) dismisses unfair business practices complaint against Vivo mobile distributor Haicheng-19 June 2019 (CCI ORDER)
    The Competition Commission of India (CCI) dismissed a complaint alleging unfair and discriminatory trade practices against Haicheng Vivo Mobile (India) Pvt Ltd with regard to a distributorship agreement. Haicheng is engaged in business of trading and distribution of 'Vivo' mobile handsets in India, as per the CCI order. The complaint was filed by New Delhi-based Karni Communication Pvt Ltd and Karni Telnet Pvt Ltd which were appointed as distributors for the region of South Delhi Part-I, II, III and IV for Vivo mobile handsets in 2017. The complainant alleged that pursuant to distributorship agreement, Haicheng placed restrictions on it for online sale and levied penalties on it in case sales were made via online marketplace. Besides, Haicheng imposed penalties on it for violation of Market Infiltration Policy whereby it is mandated that no sales will be made beyond the authorised distributor zone, the complainant alleged. By doing so, Haicheng contravened Section 3 of the Competition Act which pertains to anti-competitive agreement, the complainant alleged. However, CCI observed that restriction on online sales does not directly withhold the supply of Vivo products in the market, and consumers have the option to buy such products through online retail platforms as well, hence the agreement is not likely to cause an appreciable adverse effect on competition. In case of imposing MIP on the distributors, the "Commission observes that in the instant matter the MIP does not appear to have caused or is likely to cause AAEC in the market for sale and distribution of smartphone in India and consequently, no case is made out for contravention of Section 3(4)(c) of the Act," the fair-trade regulator said. Accordingly, "the Commission finds no competition concern in the entire matter", CCI said in an order dated June 19 and ordered the matter to be closed. Apart from Haicheng, Vivo Mobile India Pvt Ltd and Vivo Communication Technology Co Ltd were also made parties in the matter.
    The Order can be accessed at:
    https://www.cci.gov.in/sites/default/files/35-of-2018.pdf
  • Mr Nadie Jauhri v. Jalgaon District Medicine Dealers Association (JDMDA)
    Competition Commission of India (CCI) fines Jalgaon-based medicine dealers' body, 2 others for anti-competitive trade practices-20 June 2019 (CCI ORDER)
    The Competition Commission of India (CCI) has imposed a total fine of over ₹ 4 lakh on the Jalgaon District Medicine Dealers Association, its president and a former vice-president for indulging in anti-competitive trade practices. The ruling came on a complaint filed by Nadie Jauhri who alleged that the association was collecting product information service charges from the manufacturers of pharmaceutical products in violation of the provisions of the Competition Act. The complainant also furnished the financial records of the association from 2012 to 2015 with regard to levying of PIS charges from pharmaceutical firms. PIS pertains to a fee charged by chemists and druggists' associations for introducing a new product launched by the pharmaceutical companies in the bulletins or newsletters published by such associations and in return, the said associations are required to publish the information and circulate it among all the dealers. The commission said decisive factor of whether PIS charges are anti-competitive or do not depend upon whether such charges are being paid voluntarily or mandatorily by the pharmaceutical companies. In this case, CCI ruled that "the mandatory requirement of payment of PIS charges, as alleged by the Informant (Nadie) in the present case, stands established by the evidence on record, against the Jalgaon District Medicine Dealers Association," the CCI said in an order. Mandatory payment of PIS resulted in limiting and controlling the supply of drugs in the market and amounted to an anti-competitive practice, in violation of the Section 3 of Competition Act, the fair-trade regulator (i.e., CCI) said. Compulsory payment of PIS charges has been held to be anti-competitive by the Commission in its previous orders and despite such orders the association was found to have indulged in such practices, CCI said while imposing a fine on the entities
    The Order can be accessed at:
    https://www.cci.gov.in/sites/default/files/61-of-2015.pdf

INFORMATION TECHNOLOGY

  • Gopal Nagar Awasiya Welfare Association through Mr Vijay Khanna, Advocate v. North MCD through Ms Namrata Mukim, Advocate
    No scientific data to show mobile tower hazardous to health-21 June 2019 (DELHI HIGH COURT ORDER)
    The Delhi High Court (HC) has junked a plea against installation of mobile tower in a North Delhi locality, noting that there was no scientific data available to show that it is hazardous for the health. Justice Jayant Nath dismissed a plea filed by a housing welfare association after relying on a decision of a division bench of the High Court. The High Court noted in its order "there is no scientific data available to show that installation of mobile phone towers and the emission of the waves by the said towers is in any way harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect." It said that there was no merit in the Petition and it has not been able to produce any data whatsoever showing any such harmful effects on the health of human beings. The High Court was hearing a plea filed by Gopal Nagar Awasiya welfare Association against the installation of mobile tower in Gopal Nagar in north Delhi. The Petitioner contended that the tower is being constructed near a church and an MCD School where small children are studying. It also alleged that phone tower can cause a variety of potential problems, including headache, memory loss, cardiovascular stress, cancer etc.
    The Order can be accessed at:
    http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=150735&yr=2019
  • Advance Ruling Authority, Kerala of Goods and Services Tax Department for the matter of Colortone Process Pvt Ltd
    Printing of Images from Digital Media attracts 18% GST-12 April 2019 (AAR RULING)
    The Advance Ruling Authority, Kerala has held that the activity of printing of images from digital media would attract 18% Goods and Services Tax.
    The Ruling can be accessed at:
    https://keralataxes.gov.in/wp-content/uploads/2019/05/Colortone.pdf
  • Delhi High Court seeks RBI, ED stand on PIL claiming PayPal operating illegally-3 July 2019 (DELHI HIGH COURT ORDER)
    The Delhi High Court has issued a notice on a plea seeking to stop the allegedly illegal and unauthorized operations of PayPal Payments in India. A division bench of Chief Justice D.N. Patel and Justice C. Hari Shankar issued the notice to the Reserve Bank of India and PayPal. The plea was filed by one Abhijit Mishra through advocate Payal Bahl. Mishra, in his plea, said operations of PayPal as a payment system in India is against Section 4(1) of the Payment and Settlement System Act, 2007. “That the Paypal Payments Private Limited is operating as a Foreign Exchange dealer for their clients to receive and send money for Export and Import transactions in blatant violation and contravention of the Foreign Exchange Management Act (FEMA) section 10 and sub section 6…," the plea said. The plea sought direction to RBI to initiate action against Paypal for violation of the Payment and Settlement Systems Act, 2007, and to impose penalty under FEMA. It also urged a probe against PayPal by the Enforcement Directorate and transfer of their allegedly illegal profits to the Prime Minister's Relief Fund. The matter will be heard next on 18 September.

 

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