Orders and Judgments Duration July 23 to August 07, 2019

ORDERS_july23

Good laws, if they are not obeyed, do not constitute good government.

ARISTOTLE, 4 TH CENTURY B.C. GREEK PHILOSOPHER

ALTERNATIVE DISPUTE RESOLUTION

  • SITAC Pvt Ltd v. Banwari Lal Sons Pvt Ltd & Ors
    No specific performance of a Development Agreement when fundamental terms are not specified-2 July 2019 (DELHI HIGH COURT JUDGEMENTS)
    The Delhi High Court (HC) has held that specific performance of a Development Agreement cannot be granted when its fundamental terms are not specified and the parties are yet to agree on them.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/NAC/judgement/05-07-2019/NAC02072019S4862011.pdf
  •  Surinder Pal Soni v. Sohan Lal (D) Thru LR & Ors
    Specific performance decree not to be rescinded merely because plaintiff deposited balance sale consideration after appeal-23 July 2019 (SUPREME COURT JUDGEMENTS)
    The Supreme Court (SC) has found fault with the judgment of a Punjab and Haryana High Court which had held that a decree for specific performance to be inexecutable as the balance sale consideration was deposited by the plaintiff after the appeal, beyond the period fixed by the trial court.
    The Judgement can be accessed at:
    https://sci.gov.in/supremecourt/2018/33237/33237_2018_11_1501_15298_Judgement_23-Jul-2019.pdf
  • West Bengal Central School Service Commission & Ors v. Abdul Halim & Ors
    A writ court cannot sit in appeal over an administrative decision, reiterates SC-24 July 2019
    In a judgment delivered on Wednesday, the Supreme Court (SC) reiterated the principles to be followed by a High Court while exercising the power of judicial review under Article 226 of the Constitution of India.
    The bench reiterated the following principles of Judicial Review.
    • The High Court in exercise of jurisdiction under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision-making process to ascertain whether there was such infirmity in the decision-making process, which vitiates the decision and calls for intervention under Article 226 of the Constitution of India.
    • In any case, the High Court exercises its extraordinary jurisdiction under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ Petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the respondents of a legal duty.
    • The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a
    fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
    • In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC 137.
    The Judgement can be accessed at:
    https://sci.gov.in/supremecourt/2016/31152/31152_2016_11_1501_15299_Judgement_24-Jul-2019.pdf
  •  Prashanti Medical Services & Research Foundation v. Union of India & Ors
    Plea based on Equity/Hardship not Legally Sustainable in Tax Matters-25 July 2019 (SUPREME COURT JUDGEMENTS) The Supreme Court (SC) has observed that, in a taxing statute, a plea based on equity or/and hardship is not legally sustainable and the constitutional validity of taxing provisions cannot be struck down on such reasoning.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2017/40105/40105_2017_6_1501_15260_Judgement_25-Jul-2019.pdf
  •  Maharashtra Chess Association v. Union of India & Ors
    Mere existence of alternate forums is not a legal bar to exercise Writ Jurisdiction-29 July 2019
    In a major setback for the All India Chess Federation in its fight against the Maharashtra Chess Association, the Supreme Court (SC) on Monday set aside the Bombay High Court judgement, holding that a private contract between two parties cannot exclude the high court’s jurisdiction under the Constitution’s Article 226. As per the apex court's order, the Bombay High Court has the jurisdiction to hear the case between the Maharashtra Chess Association (MCA) and the All India Chess Federation (AICF), even though the two parties had earlier agreed by a written Agreement that suits against AICF shall be instituted only in courts of Chennai where it is headquartered. The MCA first approached the Bombay High Court where the AICF raised a preliminary objection that the court did not have jurisdiction to entertain the writ Petition on the ground that Clause 21 of the Constitution and Bye Laws conferred exclusive jurisdiction on courts at Chennai in disputes. The Bombay High Court agreed that Clause 21 ousted the jurisdiction of all other courts except the courts at Chennai.
    However, the Supreme Court said: "The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non convenience in an appropriate case. The High Court must look at the case of the appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction.” "We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously.” "The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance."
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/40297/40297_2018_10_1502_15424_Judgement_29-Jul-2019.pdf
  •  Zenith Drugs & Allied Agencies Pvt Ltd v. M/s Nicholas Piramal India Ltd
    Can Arbitration Clause be invoked in a dispute arising after parties’ compromise? SC Explains-30 July 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that when the parties to a contract containing Arbitration clause have settled their differences and compromised the matter, Arbitration clause in the prior Agreement cannot be invoked in the dispute subsequently arising between the parties after such compromise.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2007/30698/30698_2007_7_1501_15506_Judgement_30-Jul-2019.pdf

CORPORATE

  • Ahluwalia Contracts (India) Limited v. Raheja Developers Limited
    Sec 9 insolvency plea can't be rejected when disputed claim is not raised prior to demand notice-23 July 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has held that existence of a “disputed claim” cannot be a ground to reject an application under Section 9 of the Insolvency and Bankruptcy Code 2016 if the dispute was not raised prior to the issuance of demand notice under Section 8(1).
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/14711415765d3700fb8c914.pdf
  •  SSMP Industries Ltd v. Perkan Food Processors Pvt Ltd
    Will moratorium under section 14 Insolvency and Bankruptcy Code (IBC) always bar trial of counter-claim in suit by corporate Debtor? -18 July 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has held that moratorium under Section 14 of the Insolvency and Bankruptcy Code (IBC) will not bar trial of suit by the corporate debtor and a counter-claim in such suit if issues and facts in both are intertwined.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/PMS/judgement/26-07-2019/PMS18072019SC4702016.pdf
  •  Mr Nipun Singhvi v. CPIO, Insolvency and Bankruptcy Board of India
    Names of resolution professionals facing disciplinary proceedings can't be made public-1 August 2019 (IBBI APPELLATE AUTHORITY ORDER)
    The First Appellate Authority of the Insolvency and Bankruptcy Board of India (IBBI) has held against disclosure of names of insolvency professionals facing disciplinary proceedings saying the same would impede the investigation process due to unwarranted public attention and is likely to harm practice of most IPs who are established professionals like Chartered Accountants.
    The FAA also held that there are sufficient checks and balances in place to ensure that IPs facing disciplinary proceedings are not appointed as resolution professionals.
    The Order can be accessed at:
    https://ibbi.gov.in//webadmin/pdf/order/2019/Aug/Mr.%20Nipun%20Singhvi%20(1)_2019-08-02%2011:54:40.pdf

COMPETITION

  • Government wants competition commission to probe Big Four-23 July 2019 (CCI UPDATE)
    The Government reportedly wants the Competition Commission of India (CCI) to assess whether the so-called ‘Big Four’ auditing firms and their affiliates are hurting competition in any manner, a senior Government official told reporters. CCI needs to conduct a survey or an investigation to assess whether the Big Four that include PwC, EY, Deloitte and KPMG are abusing their dominant position in the audit market, said the official, who spoke about the matter on condition of anonymity.
    The full text of the article can be accessed at:
    https://www.financialexpress.com/industry/government-wants-cci-to-big-four/1653116/
  • RKG Hospitalities Pvt Ltd v. Oravel Stays Pvt Ltd
    Competition Commission dismisses abuse of dominance complaint against OYO-31 July 2019 (CCI ORDER)
    The Competition Commission has dismissed allegations of unfair business practices against Oravel Stays Pvt Ltd, which owns OYO Rooms, saying it cannot be ‘unambiguously’ concluded that the company is in a dominant position. For the case, Competition Commission of India considered the 'market for franchising services for budget hotels in India' as the relevant one.
    The Order can be accessed at:
    https://www.cci.gov.in/sites/default/files/03-of-2019.pdf
  • Indian National Shipowners’ Association (INSA) v. Oil and Natural Gas Corporation Limited (ONGC)
    Competition Commission of India (CCI) disposes of abuse of dominance charge against ONGC-2 August 2019 (CCI ORDER)
    The Competition Commission of India (CCI) has dismissed a complaint against Oil & Natural Gas Commission which alleged the state-owned oil explorer of abusing its dominant position in relation to certain contractual provisions while hiring of offshore support vessels.
    The order by CCI says that the clause which gives unilateral right of termination without assigning any reasons to ONGC, in itself is not found abusive, given the disproportionate risk that ONGC has to bear in case of such termination by the OSV. Further directing the case to be closed CCI, said, "Commission is of the considered view that in the present case the conduct of ONGC does not tantamount to an abuse of dominant position within the meaning of Section 4 of the Act".
    The Order can be accessed at:
    https://www.cci.gov.in/sites/default/files/01-of-2018.pdf

INFORMATION TECHNOLOGY

  • Tower Vision India Private Limited v. The Panchayath Development Officer & The State of Karnataka
    Panchayat has powers to decide on mobile towers: High Court-3 July 2019 (KARNATAKA HIGH COURT ORDER)
    The High Court (HC) has upheld the power of panchayats to decide on installation of mobile phone towers.
    The Order can be accessed at:
    http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/280067/1/WP55038-18-03-07-2019.pdf
  • Yash Raj Films Pvt Ltd v. Sri Sai Ganesh Prosductions & Ors
    Telugu remake of Band Baaja Baaraat Barred by High Court (HC) for Copyright Infringement-8 July 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has held that Yash Raj Films' 2010 movie Band Baaja Baaraat starring Ranveer Singh and Anushka Sharma was ‘blatantly copied’ by the makers of Telugu film Jabardasth and the copyright of the Bollywood flick was infringed. The court restrained the makers of the Telugu film from releasing the movie in any format, including DVDs, VCDs, Blu-ray discs and television.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/MMH/judgement/10-07-2019/MMH08072019SC13292016.pdf

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