Orders and Judgments Duration September 08-22, 2019

Laws made by common consent must not be trampled on by individuals.

GEORGE WASHINGTON. 1ST PRESIDENT OF THE UNITED STATES

ALTERNATIVE DISPUTE RESOLUTION

  • Mayandi v. Pandarachamy & Anr
    Order IX Rule 9 CPC-Decree against plaintiff by default bars Fresh Suit on same cause of action by Successor in Title-19 August 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) has observed that the decree against plaintiffs by default bars fresh suit on the same cause of action by their successor in title.
    The Order can be accessed at:
    https://sci.gov.in/supremecourt/2018/6365/6365_2018_4_53_16063_Order_19-Aug-2019.pdf
  • Surendra Prasad Mishra Smt v. Ramawati & Ors
    No scathing remarks against lower court judges: Supreme Court (SC) to High Court (HC) -16 August 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) has said that the High Court (HC) should not pass scathing remarks against the lower courts'' orders and over-step their boundaries, only because they do not agree with their point of view.
    The Order can be accessed at:ReadMore
  • Mohinder Jeet Singh v. BMW India Pvt Ltd & Ors
    Delhi High Court (HC) allows buyer of "defective" second-hand BMW car to proceed against BMW India for damages-2 September 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has allowed a buyer of a second-hand BMW 320D to proceed against BMW India and Deutsche Motoren Pvt Ltd in his case filed before the Additional District Judge after the car burnt down due to certain defects within three months of purchase.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/PRJ/judgement/03-09-2019/PRJ02092019CMM932018.pdf
  • Surinder Kaur (d) Thr Lr Jasinderjit Singh (d) thr Lrs v. Bahadur Singh (D) Thr Lrs
    Relief of Specific Performance can be refused for non-performance of an Essential Promise in Contract-11 September 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that a vendee who does not perform one of the essential promises in a contract is not entitled to the discretionary relief of specific performance of that very contract.
    The Judgement can be accessed at:ReadMore
  • Glencore International AG v. Dalmia Cement (Bharat) Limited
    Withholding tax on foreign Arbitral awards-31 July 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) judgment in Glencore International AG v. Dalmia Cement (Bharat) Limited reinforces the pro-enforcement stand adopted by the Indian Courts in recent times. The Court’s decision on tax implications, if any, on a foreign arbitral award would assist several foreign stakeholders seeking to enforce their foreign arbitral awards in India. The proceedings before the Delhi High Court emanated from an execution Petition filed by Glencore International AG (Glencore) seeking to enforce and execute of a London seated award of about USD 4.5 million. Dalmia Cement (Bharat) Limited (Dalmia) filed its objections under Section 48 of the Arbitration and Conciliation Act, 1996 (Act) on various grounds including enforcement of the award would be contrary to the public policy of India. By judgment dated 3 July 2017, the Delhi High Court dismissed Dalmia’s objections. Dalmia’s appeal to the Supreme Court was also dismissed. Therefore, the judgment dated 3 July 2017 attained finality and the award was deemed to be a decree of the Court. When the entire decretal amount was lying deposited in Court and the Court was proceeding in accordance with Section 49 of the Act, Dalmia averred that there will be an incidence of tax on the amounts under the foreign award and therefore, proposed to deduct withholding tax before remitting the amounts under the decree. In order to adjudicate this issue, the Court sought the assistance of the Income Tax Department. The Income Tax Department sought to artificially separate the decree into constituent parts and proposed deductions on account of withholding tax as high as 42%. After considering the parties submissions at length, the Court observed that once a claim merges into a decree of the Court it transcends into a judgment debt. Therefore, only those adjustments and deductions can be made which are permissible under the Code of Civil Procedure, 1908. A series of judgments cited by Glencore’s counsel encapsulate the theme that a decree should be executed according to its tenor unless modified by a statute such as the 1961 Act. Accordingly, the Delhi High Court directed release of the entire decretal amount along with accrued interest without deducting any sum towards withholding tax. The present judgment may very well pave the way for foreign stakeholders to experience intention of achieving ease of doing business in India envisaged by the upper echelons of the legislature.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/RAS/judgement/13-08-2019/RAS31072019EX752015.pdf
  • Ritu Saxena v. J S Grover & Anr
    Specific Performance: Self-Serving statements on income without any proof of financial resources won't suffice to prove Readiness & Willingness-17 September 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that self-serving statements on income without any proof of financial resources is not sufficient to prove that plaintiff in a suit for specific performance was ready and willing to perform her part of the contract.
    The Judgement can be accessed at:ReadMore
  • D A V College Trust and Management Society & Ors v. Director of Public Instructions & Ors
    Schools, Colleges funded by Government come Under Right to Information (RTI)-17 September 2019
    Schools, colleges and non-profits funded substantially by the Government comes will come under the Right to Information (RTI) Act, the Supreme Court (SC) said.
    The Judgement can be accessed at:ReadMore
  • Siddharth Infotech Pvt Ltd and Ors  v. Sri S R Dodawad
    Non-signatory to contract can invoke Arbitration clause-11 September 2019 (KARNATAKA HIGH COURT ORDER)
    The Karnataka High Court (HC) has reiterated the position that a third party can invoke the Arbitration clause in a contract against a signatory.
    The Order can be accessed at:ReadMore
  • Faheema Shirin R K v. State of Kerala
    Access to internet is fundamental right-19 September 2019 (KERALA HIGH COURT JUDGEMENT)
    The Kerala High Court (HC) has said that the right to access internet is part of the fundamental right to education as well as the right to privacy under the Article 21 of the Indian Constitution.
    The Judgement can be accessed at:
    https://mk0barandbenchgqge2s.kinstacdn.com/wp-content/uploads/2019/09/Internet-fundementalright-judgment.pdf

CORPORATE

  • Manjeet Kaur Sran v. Tricolite Electrical Industries Ltd
    Date of limitation starts from date of denial by debtor-2 September 2019 (NCLAT ORDERS)
    The National Company Law Appellate Tribunal (NCLAT) has held that a dispute raised with respect to the "quantum of the amount" in the absence of any suit or Arbitration or other evidence cannot be said to be a "pre-existing dispute" in terms of Section 9 of the Insolvency and Bankruptcy Code, 2016.
    The Order can be accessed at:
    https://nclat.nic.in/Useradmin/upload/2704559335d70aa0891377.pdf
  • Pravin Blaggan v. Goa Auto Accessories & Mr Suresh Saluja
    Can IRP dispossess a person from Corporate Debtor's property which is under litigation? -20 August 2019 (NCLT ORDER)
    In view of the divergent takes on a legal issue, the question of whether an interim resolution professional (IRP) can dispossess a person in possession of a property owned by the Corporate Debtor when the said property is a subject matter of litigation has been referred to the Principal Bench.
    The Order can be accessed at:ReadMore
  • Elektrans Shipping Pte Ltd v. Pierre D’silva & M/s Elektrans Shipping Private Limited through Manishkumar Patel Resolution Professional of Elektrans Shipping Pvt Ltd
    Can Insolvency and Bankruptcy Code (IBC) be invoked against a company whose name has been struck off from the Register of Companies? -6 September 2019 (NCLAT JUDGEMENT)
    The National Company Law Appellate Tribunal (NCLAT) has held that an application for initiation of corporate insolvency resolution process under Sections 7 and 9 of the Insolvency and Bankruptcy Code (IBC) will be maintainable against a Corporate Debtor even if its name has been struck off from the Register of Companies.
    The Judgement can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-364326.pdf
  • Hero Fincorp Ltd v. Rave Scans Pvt Ltd & Ors
    Dissenting financial creditor should not be discriminated-17 September 2019 (NCLAT JUDGEMENT)
    The NCLAT has said ‘secured financial creditors’ should not be discriminated on the ground of dissenting vote, and given separate treatment in the settlement of claims.
    The Judgement can be accessed at:
    https://nclat.nic.in/Useradmin/upload/9334613685d80b9be412fe.pdf

COMPETITION

  • Uber India Systems Pvt Ltd v. Competition Commission of India & Ors
    ‘Anti-competitive’ practices by Uber: Supreme Court (SC) orders investigation-3 September 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has ordered a probe into the alleged abuse of dominance and anti-competitive practices by taxi-hailing app operator Uber India Systems. It also requested the Director General of the Competition Commission of India (CCI) to complete the probe within six months.
    The Judgement can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-364190.pdf
  • Competition Commission of India v. M/s Grasim Industries Ltd
    Scope of Investigation by DG not limited to prima facie opinion expressed by Competition Commission of India (CCI) Under S. 26 of Competition Act-12 September 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) on Thursday held that the scope of the investigation conducted by the Director-General on directions received under Section 26 of the Competition Act, 2002, is not limited to the prima facie opinion expressed by the Competition Commission of India (CCI). "The investigation has to be a comprehensive one. The DG may not, in fact, be able to anticipate what information may emerge during such investigation. Merely because the information that emerges does not pertain to the specific subject matter which the DG has been asked to investigate, would not constrain the DG from examining such information as well if it points to violation of some other provisions of the Act. Indeed, the directions given by the CCI to the DG under Section 26 (1) of the Act are only to "trigger" investigation".
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/SMD/judgement/12-09-2019/SMD12092019LPA1372014.pdf

INFORMATION TECHNOLOGY

  • Facebook Inc Surinder Malik & Ors and Instagram LLC v. Surinder Malik & Ors
    Obligations of online intermediaries to act against content infringing Trademark, What Delhi High Court (HC) held-28 August 2019 (DELHI HIGH COURT ORDER)
    The Delhi High Court (HC) recently had occasion to reiterate the obligations cast on online intermediaries when it comes to acting against online content that infringes intellectual property rights. In this regard, the Court noted that while online intermediaries may not perform an active role in the posting of infringing content, they would still be liable to pull down such content as and when it is brought to their notice. The order reads, "Considering the provisions of the IT Act and Information Technology (Intermediaries Guidelines) Rules,
    2011, platforms such as Facebook and Instagram, which claim to be intermediaries not performing any active role in the posting of such information by third party alleged infringers, have a duty only to take down the posts which are brought to their notice by the Plaintiff in terms of Section 79(3), by following due diligence. The said Section and the Guidelines thereunder have been interpreted by the Supreme Court in Shreya Singhal v Union of India (2015) 5 SCC 1 to mean that any information received by the platforms would be by means of a Court order."
    The Order can be accessed at:
    http://lobis.nic.in/ddir/dhc/PMS/judgement/02-09-2019/PMS28082019CMM12632019.pdf
  • Hip Bar Pvt Ltd v. State of Karnataka through the Commissioner Excise Department
    Karnataka High Court (HC) refuses to allow online sale of liquor, says no provision in Act-13 September 2019 (KARNATAKA HIGH COURT ORDER)
    The Karnataka High Court (HC) has refused to allow online sale of liquor to consumers in the state.
    The Order can be accessed at:
    https://www.livelaw.in/pdf_upload/pdf_upload-364604.pdf

 

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