Orders and Judgments Duration February 08 – 22, 2019

The purpose of law is to prevent the strong from always having their way.

OVID, 1ST-CENTURY ROMAN POET

ALTERNATIVE DISPUTE RESOLUTION

  • ER . K. Arumugam v. V. Balakrishnan & Ors
    Court has to confine itself to the four corners of 'disobeyed' order while exercising contempt jurisdiction-6 February 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has reiterated that, while exercising the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed.
    The Judgement can be accessed at:ReadMore
  • Jaiprakash Associates Ltd (Jal) through its Director v. Tehri Hydro Development Corporation India Ltd (THDC) through its Director
    Arbitral Tribunal cannot award interest if Agreement expressly bars its payment-7 January 2019 (SUPREME COURT JUDGEMENT)
    There was an agreement between the above two parties which provided for Arbitration in case of dispute between them. When differences arose, the matter was referred to Arbitration. The Arbitral tribunal while awarding claims also granted interest at the rate of 10 percent per annum from the date when the Arbitration was invoked. This was challenged in the High Court (HC). Both the single judge and the Division Bench of the High Court quashed the award of interest based on the clauses in the agreement which provided that no interest would be payable to the contractor on the money due to him. The High Court judgment was challenged in Supreme Court (SC). The Supreme Court noted the principles governing the field as settled by various case laws. It observed that in the instant case, right from the stage of arbitration proceedings till the High Court, the clauses in the agreement were interpreted to hold that they put a bar on the arbitral tribunal in awarding interest. The Court also noted that even the majority award of the arbitral tribunal recognised this. Notwithstanding the same, it awarded the interest by relying upon Board of Trustees for the Port of Calcutta case. The Court held that the legal position in this regard has undergone a paradigm shift and the same has been clarified in another subsequent judgment in Sayeed Ahmed and Company case which was correctly noted by the High Court. Supreme Court upheld the rationale given by the High Court holding that it is in tune with the legal position which stands crystallised by catena of judgments.
    The Judgement can be accessed at:ReadMore
  • Royale India Rail Tours Ltd v. Cox & Kings India Ltd & Anr
    Non-parties to an Arbitration Agreement cannot be made party to an Arbitration-30 January 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court(HC) held that a non-party to the Arbitration Agreement cannot be made party to an arbitration. While doing so, the Court distinguished the case from the two recent Supreme Court(SC) judgments of Ameet Lalchand Shah and Cheran Properties Ltd, regarding the inclusion of non-parties to arbitration.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/NAC/judgement/06-02-2019/NAC30012019ARBACOMM112018.pdf
  • Kamal Kumar v. Premlata Joshi & Ors
    Supreme Court explains five material questions to be answered in specific performance suit -7 January 2019 (SUPREME COURT JUDGEMENTS)
    While affirming concurrent judgments dismissing a suit for specific performance, the Supreme Court(SC) briefly explained the questions which are to be considered in such a suit.
    Reiterating that the grant of relief of specific performance is a discretionary and equitable relief, the Court listed out the requirements to be answered in a specific performance suit.
    "These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts", the bench added.
    The court added that issue of readiness and willingness is the most important issue for considering the grant of specific performance of the contract.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2008/10523/10523_2008_Judgement_07-Jan-2019.pdf
  • Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra & Ors
    Criminal complaints cannot be quashed merely because allegations appear to be of a civil nature-12 February 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. The Court said that, if the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted by invoking powers under Section 482 of the Code of Criminal Procedure.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2014/21931/21931_2014_Judgement_12-Feb-2019.pdf
  • MMTC Ltd v. Vedanta Ltd
    Independent assessment of merits of award cannot be made in an arbitration appeal-18 February 2019
    The Supreme Court (SC) has observed that, a court while considering an appeal under Section 34 of the Arbitration and Conciliation Act, cannot undertake an independent assessment of the merits of the award. The court must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2009/10208/10208_2009_Judgement_18-Feb-2019.pdf
  • LMJ International Ltd v. Sleepwell Industries Co. Ltd with Special Leave Petition (Civil) No. 5493 OF  2019, Sri Munisuvrata Agri International Ltd v. Sleepwell Industries Co. Ltd
    Maintainability of execution case to be considered along with issue of enforceability of foreign award-20 February 2019 (SUPREME COURT JUDGEMENTS)
    The Supreme Court (SC) has observed that piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof, is not envisaged under the scheme of Section 48 of the Arbitration and Conciliation Act, 1996.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2017/37487/37487_2017_Judgement_20-Feb-2019.pdf

CORPORATE

  • Cushman and Wakefield India Private Limited v. Union of India & Anr
    Delhi High Couirt (HC) upholds validity of rule 3(2) Of Companies (Registered Valuers & Valuation) Rules-31 January 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has upheld the validity of Rule 3(2) of the Companies (Registered Valuers and Valuation) Rules 2017. As per the Rule, no partnership entity or a company can be a registered valuer if it is a subsidiary, joint venture or associate or another company or body corporate. This restriction was challenged as arbitrary, unreasonable and violative of fundamental right to carry out business, trade or profession under Article 19(1)(g) of the Constitution of India by Cushman and Wakefield India Pvt Ltd.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/VKR/judgement/04-02-2019/VKR31012019CW98832018.pdf
  • Dr Vishnu Kumar Agarwal v. Piramal Enterprises Ltd
    Insolvency Bankruptcy Code (IBC): Creditor Can Proceed Against Guarantor Even Without Proceeding Against Borrower-8 January 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has held that financial creditor can proceed against corporate guarantor even before proceeding against corporate debtor.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/2233762365c34633dbd7b3.pdf
  • Shashi Prakash Khemka Through LRs and Another v. NEPC Micon (Now called NEPC India Ltd) and Others
    Civil court has no jurisdiction in matters in respect of which power has been conferred on NCLT-8 January 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) has observed that the jurisdiction of the civil court is completely barred in matters in respect of which power has been conferred on the National Company Law Tribunal (NCLT).
    The Orders can be accessed at:
    https://www.sci.gov.in/supremecourt/2007/6019/6019_2007_Order_08-Jan-2019.pdf
  • Mr Ashish Garodia v. Impact Event Management & Anr
    Insolvency proceedings can be closed based on settlement prior to CoC formation- 8 February 2019 (NCLAT ORDER)
    The National Company Law Appellate Tribunal (NCLAT) has asked the Kolkata Bench of National Company Law Tribunal (NCLT) to close an insolvency proceeding by accepting the settlement arrived at between the Corporate Debtor and the Operational Creditor before the Constitution of the Committee of Creditors. The Appellate Tribunal also found that there was a "pre-existing dispute" between the parties, and hence the application under Section 9 of the Insolvency and Bankruptcy Code was not admissible in the first place.
    The Order can be accessed at:
    https://nclat.nic.in/Useradmin/upload/2685136895c6106ce35ad5.pdf
  • Canara Bank v. IVRCL Limited
    Loan converted into equity can't be treated as debt- 1 February 2019 (NCLT ORDER)
    The National Company Law Tribunal (NCLT) has ruled that loans converted into equity prior to the start of bankruptcy and insolvency process for a company can't be considered as debt at the time of settling dues of financial creditors.
    The Order can be accessed at:
    https://nclt.gov.in/sites/default/files/Interim-order-pdf/Doc021064.pdf
  • Committee of Creditors of Xalta Food and Beverages Pvt. Ltd v. Ms Prerna Singh
    NCLAT specifies that landlord cannot negotiate the security amount nor can adjust the payment - 31 January 2019 (NCLAT ORDER)
    In the present case, the ‘Corporate Debtor’ was situated in a rented premise for which rent of every month was liable to be paid. Once the matter was moved before the ‘Committee of Creditors’ they disallowed the payment of rent. In this background, the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench directed the ‘Committee of Creditors’ to pay the rent w.e.f. 1st December, 2018 or make suitable arrangements in the alternative.
    It was submitted by the appellant (Committee of Creditors) that the outstanding dues were ₹ Two crores and the security lying with the landlord was of ₹ 3.4 Crores.
    It was observed by the NCLAT that such argument cannot be accepted in view of the order of the moratorium. The landlord cannot negotiate the security amount nor can adjust the payment. The NCLAT agreed with the findings of the Adjudicating Authority and directed the parties to pay rent w.e.f. 1st December, 2018 or make suitable arrangements in the alternative. The Appellate Authority specified that rent for each month should be paid by 15th of next month.
    The Order can be accessed at:
    https://nclat.nic.in/Useradmin/upload/16001140185c552132833f5.pdf

COMPETITION

  • Competition Commission probes accusations that Google abused Android: 12 February 2019 (CCI UPDATES)
    The Competition Commission of India (CCI) is reportedly looking into accusations that Alphabet Inc's unit Google abuses its popular Android mobile operating system to block its rivals. The European Commission found Google had abused its market dominance since 2011 with practices such as forcing manufacturers to pre-install Google Search and its Chrome browser, together with its Google Play app store on Android devices.
  • Restaurant owners send petitions to Competition Commission of India (CCI): 12 February 2019 (CCI UPDATES)
    In an online petition to the Competition Commission of India (CCI) and the Prime Minister’s Office, nearly 500 small to mid-sized restaurants alleged “misuse of dominant position by food delivery companies, including Swiggy, Zomato, UberEATS and Foodpanda.” The petition accused the foodtech companies of using deep discounting, in-house kitchens and internal sourcing to take away their business.
  • Competition Commission of India (CCI) clears Johnson Controls' power solutions biz acquisition by Brookfield, CDPQ-20 February 2019(CCI UPDATES)
    The Competition Commission of India (CCI) has approved the USD 13.2-billion deal to acquire global power solutions business of Johnson Controls International by Brookfield and CDPQ. The deal, which was finalised in November 2018, involves selling of automotive battery-making business of Johnson Controls to Brookfield, CDPQ Fund and CDP.

INFORMATION TECHNOLOGY

  • Peoples’ Union for Civil Liberties v. Union of India & Ors
    Continued use of Section 66A: SC directs copies of Shreya Singhal judgment to be made available to DGPs, District Courts-15 February 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) has directed the Central Government that copies of the judgment in Shreya Singhal v. Union of India [(2015) 5 SCC 1] striking down Section 66A (Punishment for sending offensive messages through communication service, etc.) of the Information Technology Act, 2000 (IT Act) be made available to the Chief Secretaries of all the State Governments and the Union Territories. The Chief Secretaries will, in turn, sensitise the police departments by sending copies of this judgment to the Director General of Police in each State.
    Further, a direction has also been given to all High Courts to make the judgment copy available to all District Courts in the country.  The Court was hearing a plea by NGO People’s Union for Civil Liberties highlighting continued use of the scrapped said Section 66A. PUCL had stated in its plea that despite the clear and unequivocal holding of the Supreme Court in Shreya Singhal, Section 66A of the IT Act continued to be applied in the legal system.
    The Order can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/44324/44324_2018_Order_15-Feb-2019.pdf
  • Subhendu Nath v. State of West Bengal
    Calcutta HC issues directives for equipping police to tackle cyber-crimes -18 February 2019 (CALCUTTA HIGH COURT ORDER)
    The Calcutta High Court has issued certain directives to ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.The bench was considering the bail application filed by a man who allegedly posted objectionable pictures of his wife on a social network platform and had widely circulated such materials. Earlier, the bench had sought explanation from the Superintendent of Police as to why offences under Sections 66E & 67A of the Information Technology Act were not added to the FIR and the investigation was conducted by an Assistant Sub-Inspector of Police in violation of the provisions of Section 78 of the Information Technology Act.
    The SP appeared before the Court on Monday and submitted that Inspector-in-charge of the concerned police station has been directed to rectify her mistake in omitting to add offences under the Information Technology Act to the FIR and entrust investigation to an officer not below the rank of Inspector. While granting bail to the accused, the bench noted that there is a crying need to train and familiarize members of the police force in the matter of collection, reception, storage, analysis and production of electronic evidence.
    The bench has posted the matter on 11th March for further consideration.
    The Order can be accessed at:ReadMore 
  • 'Facebook Post Not Seditious', CJM Imphal Refuses to Remand Manipur Student Leader to Police Custody-19 February 2019 (IMPHAL CJM ORDER)
    The Chief Judicial Magistrate, Imphal East has refused to remand Manipur student leader Veewon Thokchom to police custody in a case of sedition slapped against him over a Facebook post critical of Citizenship Amendment Bill. The CJM also allowed the bail application filed by Veewon. The Facebook post uploaded on February 13 which led to the case is as follows: "Indefinite curfew imposed in Manipur. Internet banned for five days. All cable networks asked not to cover any speech or footage of the protests. High possibility that CAB (Citizenship Amendment Bill, 2019) will be passed today at Rajya Sabha. Manipur once burned down the State Assembly in 2001. Self-determination the only way forward"
    The Manipur police registered FIR against him under Sections 153A and 124A IPC for this post, and picked him up from Delhi, where he is studying, on February 16. On his production before the CJM on February 19, the police sought for his custody till February 22.
    Rejecting this, the CJM Ningthoujam Lanleima observed: "In the present case, the contents of the Facebook post as mentioned above cannot be stated to bring into hatred or contempt, or excite or attempt to excite disaffection towards the Government established by law. At most, the accused mention the incident of burning of Assembly with approval, but I do not find any attempt or incitement to commit violence. After consideration of materials on record, I do not find the facebook post as mentioned above to be seditious".

 

Disclaimer (a) “This information has been gathered from various sources. Nothing herein is or may be construed as legal advice”.