“LAW MUST BE STABLE AND YET IT CANNOT STAND STILL”
Roscoe Pound, Dean Emeritus, Harvard Law School
ALTERNATIVE DISPUTE RESOLUTION
- Global Infonet Distribution Pvt Ltd v. Lenovo (India) Private Limited & Ors
Separate Arbitration Agreements can be referred to joint arbitration in case of composite
transaction-25 July 2019 (Delhi High Court Order)
The Delhi High Court has held that dispute arising out of separate agreements having distinct arbitration clauses can be referred to a joint arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 if the agreements form a composite transaction.
The Order can be accessed at:
http://lobis.nic.in/ddir/dhc/JAN/judgement/02-09-2019/JAN25072019SC6582017.pdf - Nevada Properties Private Limited v. State of Maharashtra And Another
Police can’t seize property during investigation-24 September 2019 (Supreme Court Judgement)
The Supreme Court has stated that a police officer is not empowered to seize immovable property under Section 102 of the Code of Criminal Procedure. Section 102 deals with the power of an investigating officer to seize any property suspected to be part of a crime. However, this bar on seizure of property would not prohibit a police officer from seizing documents/ papers of title relating to an immovable property, as it is distinct and different from seizure of immovable property. The court also drew a distinction between the action of seizure and attachment of property. “Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include the action of attachment and sealing. Seizure of immovable property in law requires dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it,” Justice Khanna wrote. The court was hearing a reference on the point of law which was raised in an appeal filed by Nevada Properties Limited against the State of Maharashtra.
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/pdf_upload-364852.pdf - Chandana Das (Malakar) v. The State of West Bengal & Ors.
Right of minority institutions not absolute, amenable to rules-25 September 2019 (Supreme Court Judgement)
The Supreme Court has ruled that “the right of minority institutions is not absolute, and is amenable to regulation”. “The protection granted to minority educational institutions to admit students of their choice is subject to reasonable restrictions”.
The Judgement can be accessed at:
https://mk0barandbenchgqge2s.kinstacdn.com/wp-content/uploads/2019/09/Chandana-DasMalakar-v-State-of-West-Bengal-SC-3-judge-bench-Judgment-Article-30.pdf - Hemkunwar Bai v. Sumersingh & Ors
Witnesses to Sale Deed/Will Need Not Necessarily Know Its Contents-25 September 2019 (Supreme Court Order)
The Supreme Court has observed that the witnesses to documents such as Sale Deeds and Wills need not necessarily know what is contained in them.
The Order can be accessed at:
https://sci.gov.in/supremecourt/2009/5742/5742_2009_13_102_17041_Order_25-Sep-2019.pdf
CORPORATE
- PMT Machines Ltd v. The Deputy Director Directorate of Enforcement, Delhi
Appellate authority upholds IBC over PMLA-16 September 2019 (Appellate Tribunal For PMLA Judgement)
In a ruling upholding the prevalence of the Insolvency and Bankruptcy Code over the Prevention of Money Laundering Act (PMLA), the appellate authority of the PMLA has released some properties, belonging to PMT Machines, a subsidiary of debt-laden Sterling Biotech, attached by the Enforcement Directorate. The Resolution Professional of PMT Machines had approached the appellate authority with a plea that the properties were incorrectly attached by the ED as they had been acquired before the “alleged commission of offences and charges were created prior to the date of alleged offences”. The appellate authority for PMLA, in its judgment, said since the properties attached by ED have no relation to the alleged crime committed by Nitin Sandesara, Chetan Sandesara, and Deepti Sandesara, the same must be released to the RP to ensure quick insolvency resolution for PMT Machines. Holding that the recovery proceeding initiated by banks is “valid and legal recovery” and that it could not “blocked for years without valid reasons”, a single-judge Bench of PMLA appellate authority, said that ED is not precluded to attach other private properties and all other assets of the alleged accused. The ruling, however, the appellate authority clarified, will “have no bearing in any proceedings initiated against the alleged accused including extradition proceedings pending or proposed to be initiated in any part of the world”. The attachment of the properties by ED, the RP had said in his plea, was delaying the Corporate Insolvency Resolution Process of PMT Machines. The company has been admitted for insolvency resolution by the Mumbai bench of the National Company Law Tribunal (NCLT) in 2018. Though the ED had in its submissions, before the PMLA appellate tribunal, said that the banks were victim of the alleged fraud perpetuated by the Sandesaras, and were entitled to recover the amount, they should approach the special court set up for the same.
The Judgement can be accessed at:
https://www.livelaw.in/pdf_upload/pdf_upload-364814.pdf - Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd & Anr
Section 7 Application under IBC governed by Article 137 of Limitation Act-18 September 2019 (Supreme Court Judgement)
Supreme Court has held that applications under Section 7 of Insolvency and Bankruptcy Code are governed by Article 137 of the Limitation Act for computation of limitation period.
The Judgement can be accessed at:
https://sci.gov.in/supremecourt/2019/17706/17706_2019_5_3_16855_Judgement_18-Sep-2019.pdf - Sagar Sharma & Anr. v. Phoenix ARC PVT. LTD. & Anr.
Date of moming into force of IBC wholly irrelevant to the triggering of any limitation for Applications- 30 September 2019 (Supreme Court Judgement)
The Supreme Court has observed that the date of coming into force of the Insolvency and Bankruptcy Code does not and cannot form a trigger point of limitation for applications filed under the Code. The bench reiterated that, since such “applications” are petitions which are filed under the Code, it is Article 137 of the Limitation Act which will apply to such applications.
The Judgement can be accessed at:
https://sci.gov.in/supremecourt/2019/35276/35276_2019_4_54_17169_Judgement_30-Sep-2019.pdf - R. G. Steels v. Berrys Auto Ancillaries (P) Ltd.
Sole Proprietary Concern not entitled to initiate IBC proceedings-23 September 2019 (NCLT Order)
The National Company Law Tribunal, New Delhi has held that a ‘Sole Proprietary Concern’ is not a person within the meaning of Section 3(23) of Insolvency and Bankruptcy Code, 2016. It was hence not entitled to initiate insolvency proceedings before the Adjudicating Authority under IBC, it held.
The Order can be accessed at:
https://nclt.gov.in/sites/default/files/Interim-orderpdf/Berrys%20auto%20ancilliaries%20.%20ltd..pdf
INFORMATION TECHNOLOGY
- Tower and Infrastructure Providers Association (TAIPA) v. Indore Smart City Development Limited and Ors.
Right of way for telecom projects a State subject: Madhya Pradesh HC dismisses challenge to Smart Poles project-4 September 2019 (Madhya Pradesh High Court Order)
In a judgment that is likely to have far reaching effects on the Centre–State relationship, particularly when it comes to the implementation of the smart city mission projects, the Madhya Pradesh High Court has approved a tender for the installation of smart poles across smart cities in the state. In doing so, it has paved the way for building a robust IT infrastructure in the smart cities of Madhya Pradesh. The Indore Smart City Development Company had floated a Notice Inviting Tender for installation of smart poles across six cities identified by the Ministry of Urban Development under its smart city mission. The smart pole is an integrated infrastructure providing facilities such surveillance cameras, environment sensors, WiFi spots, street lighting etc. Under the NIT, the concessioner is given an exclusive right of way for erecting this infrastructure, which will then be made available to other service providers at rates decided by a committee of experts. Reliance Jio and Bharti Infratel Ltd. had participated in the bid, and after a round of competitive bidding, Reliance Jio was declared the successful bidder. A Writ Petition came to be filed before the Indore Bench of Madhya Pradesh High Court, by the Tower & Infrastructure Providers Associate (TIAPA), an association of telecom infrastructure providers. The petitioner, essentially challenged two clauses in the NIT that purportedly conferred exclusivity to the concessioner in relation to the right of way for erecting the infrastructure. It may be noted Bharti Infratel Ltd.is a prominent member of this association, and had participated in the bidding process in the hope of securing the exclusive right of way. The petitioners are only license holders and have no absolute right to claim right of way for establishing telecom infrastructure, it was contended. The Court, under Article 226 cannot modify the terms of a contract, especially when the same is being performed. A Division Bench dismissed the petition, holding that: The grant of Right of Way for establishing and maintaining the underground and over ground telecom infrastructure pertains to land, which is a state subject under List II in the Seventh Schedule of the Constitution of India and therefore, vests with the state government; A bidder who has participated with open eyes after going through the terms and conditions of the NIT is estopped for challenging the terms and conditions of the NIT after he has been declared as unsuccessful in the open competition, especially in light of fact that he has suppressed the factum of his participation; Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether a choice or decision is made “lawfully” and not to check whether it is “sound”. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. While dismissing the petition, the Court has also imposed costs of 1 lakh on the petitioners for delaying a project of great public importance.
The Order can be accessed at:
https://mk0barandbenchgqge2s.kinstacdn.com/wp-content/uploads/2019/09/MP-HC-judgmentsmart-poles.pdf - Subodh Gupta v. Herdsceneand & Ors.
Facebook ordered to take down posts alleging sexual harassment by artist Subodh Gupta-18 September 2019 (Delhi High Court Order)
The Delhi High Court has ordered Facebook, the company that owns the social media platform Instagram, to reveal the identity of the administrator of an account which carried sexual harassment allegations against artist Subodh Gupta a year ago during the #MeToo movement. The court has also ordered Facebook and Google to take down web pages that show the content, which Gupta has alleged were defamatory in nature. On September 18, in an ex-parte injunction it was held that prima facie, the allegations made in the alleged defamatory contents “cannot be permitted to be made in public domain” and “published without being backed by legal recourse”. The judge said this after taking the view of Gupta’s lawyer on whether any legal action had been initiated against his client based on the allegations and whether the person who made the allegations had identified herself. The lawyer said no action has been taken. The Instagram account Scene and Herd was also restrained from posting any content against Gupta in the interim. The counsel appearing for Facebook assured the court that the alleged defamatory content would be taken down on Instagram and that the identity of the administrator of the account would be revealed in a sealed envelope, as ordered by the Delhi High Court.
The Order can be accessed at:
https://www.livelaw.in/pdf_upload/pdf_upload-365121.pdf - Amrish Agarwal v. Venus Home Appliances Pvt. Ltd.
Delhi HC passes directions on documents to be mandatorily filed with plaint in trademark infringement matters-27 August 2019 (Delhi High Court Order)
The Delhi High Court has passed a slew of directions pertaining to the documents that need to be mandatorily filed along with a plaint in trademark infringement matters. The order was passed by a Single Judge Bench in a plea challenging an order of the Trial Court which had taken on record the Legal Proceedings Certificate relating to the trademark ‘VENUS’ in a trademark infringement suit.
The Order can be accessed at:
http://lobis.nic.in/ddir/dhc/PMS/judgement/06-09-2019/PMS27082019CMM10592018.pdf
