Orders and Judgments Duration March 23, 2019- April 07, 2019

It ain’t no sin if you crack a few laws now and then, just so long as you don’t break any.

MAE WEST AS PREACHES O’DAY, IN THE FILM EVERY DAY’S A HOLIDAY

ALTERNATIVE DISPUTE RESOLUTION

  • P Bandopadhya & Ors v. Union of India & Ors
    Principles of Res Judicata are applicable to writ Petitions -15 March 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has reiterated that the principle of Res Judicata is applicable to Writ Petitions as well. In P. Bandopadhya v. Union of India, a judgment of Bombay High Court was challenged before the SC. The present writ Petition was filed by former employees in the Overseas Communications Service, a Department of the Government of India. The High Court dismissed their plea holding that they were not eligible to avail pensionary benefits under the Government of India, since they had served for less than 10 years on the date of their absorption into VSNL. It also held that the matter was squarely covered by the earlier decision of a Division Bench of the High Court in S.V. Vasaikar v. Union of India. The bench agreed with the High Court view and observed that the decision in S.V. Vasaikar was not challenged before the Supreme Court, and had thus attained finality.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2016/10595/10595_2016_Judgement_15-Mar-2019.pdf
  • 52 Transfer of Property (TP) Act - Sale Agreement executed during pendency of suit hit by 'lis pendens'-1 March 2019 (KERALA HIGH COURT ORDER)
    Answering a reference, a Full Bench of the High Court (HC) of Kerala has held that an Agreement of Sale executed by a party to lis during the pendency of suit will be hit by the doctrine of lis pendes under Section 52 of the Transfer of Property Act. The reference arose when a division bench doubted the correctness of an earlier division bench decision in Wellingdon B and others v D Shyama Prasad and others 2014(3) KHC 560 which had held that such an agreement of sale will not be hit by Section 52, on the reasoning that Sale Agreement by itself did not create any right, title or interest in the property. The expression "otherwise dealt with" in the second limb of Section 52 will cover agreement of sale, held the three judges' bench.
    The Order can be accessed at:ReadMore
  • Ripudaman Singh v. Balkrishna
    Complaint under section 138 Negotiable Instruments Act maintainable against dishonour of cheques issued in pursuance of agreement for sale-13 March 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has observed that a complaint under Section 138 of the Negotiable Instruments Act is maintainable when there is dishonour of cheques issued under and in pursuance of the Agreement to sell.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2016/19813/19813_2016_Judgement_13-Mar-2019.pdf
  • Ramakrishna Mission & Anr v. Kago Kunya & Ors
    Statutory regulation on private bodies by itself does not make them subject to writ jurisdiction -28 March 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has made it clear that mere regulation by a statute on a private body cannot be conclusive of whether it discharges a public function, to hold it amenable to writ jurisdiction of a High court.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/35323/35323_2018_Judgement_28-Feb-2019.pdf
  • Pioneer Urban Land & Infrastructure Ltd v. Govindan Raghavan
    One sided Clauses in builder-buyer agreements is an unfair trade practice-2 April 2019 (SUPREME COURT JUDGEMENT)
    The Supreme Court (SC) has ruled that incorporation of one-sided clauses in an Agreement between builders and flat purchasers constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/46308/46308_2018_Judgement_02-Apr-2019.pdf

CORPORATE

  • Alchemist Asset Reconstruction Co Ltd v. Moser Baer India Limited
    Workmen's dues of pension, gratuity, provident fund (PF) not included in liquidation estate assets-19 March 2019 (NCLT ORDERS)
    The New Delhi bench of National Company Law Tribunal (NCLT) has ruled that dues of provident fund, pension and gratuity do not form part of liquidation estate of corporate debtor and cannot be included in the assets to be liquidated for settling claims of creditors as per Section 53 of the Insolvency and Bankruptcy Code. In the present case, an application was filed by workmen seeking release of their dues of PF, pension and gratuity from the "waterfall mechanism" - the scheme for distribution of proceeds from the liquidation of assets of the corporate debtor in the preferential order mentioned in Section 53 of the IBC.
    The Official Liquidator said that dues of PF, pension and gratuity will not come under the ambit of "workmen dues" under Section 53. As per Explanation II to Section 53, "workmen dues" have the same meaning as assigned in Section 326 of the Companies Act 2013, which does not mention dues of PF, pension and gratuity, said the Liquidator.The NCLT said that there was a "basic flaw" in the reasoning of the Official Liquidator.It said that under Section 36(4) (a) (III), the expression 'liquidation estate' has been defined and it is clarified that all sums due to any workman or employee from the provident fund, pension fund and gratuity fund, were not included in the expression "liquidation estate assets”.
    The Order can be accessed at:ReadMore
  • Pr Director General of Income Tax (Admn & TPS) v. M/s Synergies Dooray Automotive Ltd & Ors
    Statutory dues of companies are operational debt-20 March 2019 ((NCLAT JUDGEMENT))
    The National Company Law Tribunal (NCLT) has held that statutory liability, including income tax and value added tax dues, of debt-ridden companies are 'operational debt', which will now allow the concerned revenue departments to be treated as operational creditors under the Insolvency & Bankruptcy Code.
    The Judgement can be accessed at:
    https://ibbi.gov.in//webadmin/pdf/whatsnew/2019/Mar/synergies_2019-03-21%2020:40:55.pdf
  • Serious Fraud Investigation Office v. Rahul Modi and Another Etc
    Companies Act does not stipulate any period for completion of serious fraud investigation-27 March 2019 (SUPREME COURT JUDGEMENT)
    Holding that there is no stipulation of any fixed period for completion of a Serious Fraud investigation, the Supreme Court (SC) has observed that the stipulation in sub-section (3) of Section 212 of the Companies Act, 2013, in relation to the submission of the report, is not mandatory, but directory.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2019/231/231_2019_Judgement_27-Mar-2019.pdf
  • Supreme Court sets aside RBI's February 12 circular on bad loans, calls it 'unconstitutional'-2 April 2019 (SUPREME COURT JUDGEMENT)
    In what has come as a big relief to power, shipping, sugar and other companies, the Supreme Court has struck down a February 12, 2018 circular of the Reserve Bank of India on defaulting firms, declaring it unconstitutional and ultra vires. "We found RBI's February 12 circular to be ultra vires," the apex court ruled. The RBI circular mandated banks to take the defaulting companies to insolvency.
    The Judgement can be accessed at:
    https://www.sci.gov.in/supremecourt/2018/42591/42591_2018_Judgement_02-Apr-2019.pdf
  • The Deputy Director Directorate of Enforcement Delhi v. Axis Bank & Ors
    SARFAESI, RDBA, IBC do not prevail over PMLA, to be enforced in harmony-2 April 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has held that banking legislation and the Insolvency and Bankruptcy Code (IBC), 2016 do not prevail over the Prevention of Money Laundering Act, 2002 when it comes to attachment of properties obtained as “proceeds of crime”. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and the IBC should instead be enforced in harmony with the PMLA, the Court held.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/RKG/judgement/02-04-2019/RKG02042019CRLA1432018.pdf

COMPETITION

  • Ravi Pal v. All India Sugar Trade Association (AISTA)
    Competition Commission of India (CCI) rules in favour of All India Sugar Trade Association-22 March 2019 (CCI ORDER)
    In the present case, Mr. Ravi Pal alleged contravention of the provisions of Section 3(3) of the Act by All India Sugar Trade Association and its Chairman, Mr. Praful Jagjivandas Vithalani with other unknown persons. It was alleged that the Opposite Party is actively running various discussion forums and chat groups with leading sugar traders/millers/refiners and other unknown persons on a software application platform popularly known as WhatsApp, which is being used for circulating price sensitive information like sugar prices, and forthcoming policy changes by Government in relation to sugar industry, which, as per the Informant, would have direct impact on the domestic sugar market. It was also alleged that, in addition to holding a fiduciary capacity in OP-1, the Chairman of the Sugar Association is also running few trading firms in Mumbai, one of which is under the name and style “Jagjivan Keshavji & Co.”. It is submitted that the OPs entered into an arrangement, forming a cartel whereby they have indulged in bid rigging by way of pre-determining prices for bids through information exchange. It has also been alleged that most of the members of OP-1 are leading traders from Maharashtra and are acting in collusion by illegally exchanging information about lowest sugar prices amongst themselves. Through these acts, they allegedly indulged in bid rigging, primarily, to influence the bidding process in order to procure sugar at lower prices on a daily basis and eliminate free play of market forces in the sugar industry. The Informant appeared for a preliminary conference before the CCI and to support his argument, placed on record certain WhatsApp messages pertaining to the relevant period, allegedly for the state of Maharashtra. During the preliminary conference, the learned counsel of the Informant contended that the messages contained the sugar prices for variants of sugar, namely, S-30 and M-30 and other international future prices of sugar etc. The Informant also attempted to establish the link between sugar prices (of S-30/M-30) circulated to the WhatsApp group and the average ex-factory S-30 and M-30 net prices at Agricultural Produce Market Committee.
    However, when the Commission inquired from the counsel of the Informant about the basis for alleging the price sensitivity of data by the Informant, the same could not be addressed by the Informant. The Informant stated that the average prices at APMC were lower than the prices on WhatsApp messages and hence, the same could only be as a result of collusion. The Commission, however, did not find any merit in this argument, as the Informant himself has explained, in the information filed by him, the process followed in the daily tenders and has stated that the sugar prices circulated were on the basis of last successful bids. This means that such information was already available in public domain post the award of the tender by the sugar mills and the circulation of the same, per se, does not imply that it would become sensitive information. The Commission also noted that the members of the WhatsApp group also comprise of two sellers and came to the conclusion that sellers who have an interest in getting higher prices of sugar, would not be agreeable to sell the sugar at lower prices. It was also observed that sugar commodity is subject to the provisions under the Essential Commodities Act, 1955 and, thus, the final market price of sugar is dependent upon numerous factors. Therefore, the allegation of the Informant that the alleged practices affected the market price in the absence of any evidence is without merit and does not warrant any investigation. In view of the above, the Commission found no case of contravention of the provisions of Section 3(3) against the Sugar Association.
    The Order can be accessed at:
    https://www.cci.gov.in/sites/default/files/25-of-2018.pdf

INFORMATION TECHNOLOGY

  • S Vijayakumar v. Union of India representatives by its Secretary for Telecommunication, New Delhi
    High Court (HC) summons officials on plea to regulate Internet usage-25 March 2019 (MADRAS HIGH COURT ORDER)
    The Madurai Bench of the Madras High Court (HC) has summoned the Secretary, Department of Telecommunications, and the secretary, Internet Service Providers Association of India, for failing to respond to court’s notice on a plea to regulate Internet usage for children.
    The Order can be accessed at:
    http:// http://164.100.79.154/madurai-do/index.php/casestatus/viewpdf/wp(md)_233lakh_2018_xxx_0_0_25032019_107_135.pdf
  • Hindustan Unilever Limited v. Emami Limited
    All's fair in love and IP war: No disparagement by Emami's Fair and Handsome brand-27 March 2019 (DELHI HIGH COURT JUDGEMENT)
    The Delhi High Court (HC) has held that there is no generic disparagement by Emami’s fairness cream for men, ‘Fair and Handsome’ in its advertisement. The order was passed by a Single Judge Bench in an application by Hindustan Unilever Ltd. HUL had prayed that Emami be restrained from telecasting one of its commercials for the product ‘Fair and Handsome’, which allegedly disparaged the goodwill and reputation of HUL’s product, ‘Fair & Lovely’.
    The Judgement can be accessed at:
    http://lobis.nic.in/ddir/dhc/JAN/judgement/29-03-2019/JAN27032019SC11092018.pdf
  • Election Commission of India v. Central Information Commission & Anr
    Court stays order that holds Electronic Voting Machines as "Information" Under Right to Information Act-18 March 2019 (DELHI HIGH COURT ORDER)
    The Delhi High Court (HC) on Monday stayed an order of the Central Information Commission which held that Electronic Voting Machines fall within the definition of "information" under the RTI Act.
    The Order can be accessed at:
    http://delhihighcourt.nic.in/dhcqrydisp_O.asp?pn=60998&yr=2019
  • Supreme Court (SC) refuses to entertain plea challenging Aadhaar Ordinance-5 April 2019 (SUPREME COURT ORDER)
    The Supreme Court (SC) refused to entertain a plea challenging the recent Aadhaar Ordinance brought by the Centre and asked the Petitioners to approach the High Court first with its grievances.

 

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