Read Order:Krishan Lal And Others Vs. Ashok Jain
Tulip Kanth
Chandigarh, June 7, 2023: While reiterating that a landlord is the best judge of his requirement, the Punjab and Haryana High Court has dismissed a revision petition of the tenants after noting that the landlord had brought sufficient cogent and convincing evidence to prove that he had a bona fide need for the demised shop and his such need was not just a wish.
“ In the present case, the order passed by Rent Controller, Ambala dismissing the rent petition filed by the landlord was obviously wrong and illegal result of inability to understand the factual position properly and to apply law in an appropriate manner”, Justice H.S. Madaan held.
The facts of the case were such that the petitioner/landlord had brought a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against respondent-tenant-firm Krishan Lal and sons seeking ejectment of respondents from the demised Shop.
The petitioner claimed that he required the shop in question for his personal use and occupation. He required the shop in dispute for his son Ankit Jain and Ankit Jain's wife Neha Jain because Ankit Jain was dependent upon the petitioner.
Another ground taken by the petitioner seeking ejectment of respondents was that they had created nuisance in the locality and had also encroached some portion and some people quarreled with them. According to the petitioner, he had not vacated any shop after the year 1949 without any reasonable cause and that the respondents were in arrears of rent for the period from January, 2013 onwards, which the respondents had not paid/tendered in spite of repeated requests and demands. The Ambala Rent Controller had dismissed the petition.
The petitioner-landlord had approached the Appellate Authority i.e. District Judge, Ambala by way of filing an appeal, who had accepted the appeal. The respondents/tenants were given two months time from the date of judgment to hand over the vacant possession of the premises under their tenancy to the petitioner/landlord, failing which, the petitioner-landlord would be at liberty to approach the competent executing Court for ejectment of respondents/tenants. Therefore, the respondents/tenants approached the High Court by way of filing the revision petition.
The Bench opined that if son of the landlord wants to expand his business in the demised shop having direct access to the road, there is nothing wrong in his such plans. He cannot be advised to find some other place for expansion of his business and allow the revision petitioners to keep possession of the shop in dispute.
It was observed that since the shop where the son of the landlord is running his business adjoins the demised shop and son of the landlord wants to expand his business, the demised shop has been found to be suitable for that purpose and the revision petitioners - tenants are nobody to advise the landlord that his son should either shift to some other place for his business or get possession of some other shop nearby.
Considering the fact that the demised property was being mentioned as shop right from the very beginning, which had been rented out to the father of the revision petitioners several years back where he had been running Halwai business and after his death his sons the revision petitioners are engaged in that avocation, the Bench opined that there was nothing to show that those were constructed for residential purpose and were used as such at any point of time.
The Bench opined that the Rent Controller clearly fell in error in drawing the inference that the petitioner had failed to lead any cogent, clinching and reliable evidence to prove that he required the shop in dispute for his bona fide need, when the landlord had brought sufficient cogent and convincing evidence to prove that he had a bona fide need for the demised shop and his such need was not just a wish.
There was nothing to show that the petition had been filed by the petitioner/landlord with a mala fide intention to enhance the rent or some other extraneous consideration. “Even otherwise under Section 13(6) of Haryana Urban (Control of Rent and Eviction) Act, 1973, if the landlord rent out the shop to some other person after getting it vacated within a period of three years, then the tenant has got a right to approach the Rent Controller for restoration. Therefore, the Legislature has provided a proper safeguard against ejectments for extraneous reasons”, the Bench held.
Noting that the revisional jurisdiction of the Court is quite limited, the Bench dismissed the revision petition.
Read Order: Navaid Khan v Registrar of Trademarks Office
Simran Singh
New Delhi, June 7, 2023: The Delhi High Court has allowed the appeal under Section 91 of the Trade Marks Act, 1999 (TM Act) wherein the appellant challenged the refusal of the registration of the appellant’s device mark ‘CruzOil’ (subject mark) in class 04 contending that the subject mark, when considered as a whole, had no dictionary meaning nor was it used in common parlance.
The registration of the subject mark was rejected on the ground that the mark consisted exclusively of words that may serve in the trade to designate the intended purpose of the goods. The Bench however, was of the view that the mark having a combination of words and devices had to be considered as a whole for the purposes of grant of registration.
The subject mark was a device mark which consisted of various unique and arbitrary elements, such as a tagline ‘Lifeline for Engines’, yellow background with two purple rings, unique pattern of semi circles with images of 4 stars on alternative sides with a pattern of slanting parallel lines and held that Registrar erred in dissecting the subject mark into its individual parts while considering registration.
The appellant impugned the order dated 12-01-2023 passed by the Registrar of Trade Marks, refusing the registration of the subject mar in class 04 stating that “The mark applied for registration is objectionable under S 9(1)(b) of the Trade Marks Act 1999, as it consists of which may serve in trade to designate the kind, intended purpose of the goods or other characteristics of the goods. The applied mark is highly descriptive as it designate the kind and intended purpose of the goods applied for registration. It clearly indicates that the oil is used in Cruz or for Cruz. It is the name of the product. It is not coined nor invented. It cannot be monopolized.”
It was the case of the appellant that he had filed an application for registration of the subject mark in class 04 of which the examination report was issued by the Registrar of Trade Marks raising objection under Section 9(1)(b) of the Trade Marks Act, 1999 on the ground that the mark consisted exclusively of words that may serve in the trade to designate the intended purpose of the goods. However, the appellant replied to the objection stating that the subject mark, when considered as a whole, had no dictionary meaning nor was it used in common parlance. Pursuant to the representation filed by the appellant, a hearing was conducted subsequent to which the impugned order dated 12-01-2023 was passed refusing the application of the appellant.
The Bench noted that the appellant had applied for registration of a composite device mark, which contained the word ‘CruzOil’, along with other elements. However, the impugned order proceeds on the basis that the subject mark was a word mark, ‘CruzOil’ and therefore, treats it as such.
The Bench navigated through Section 9(1)(b) of the TM Act and the judgment of the co-ordinate Bench of this Court in Abu Dhabi Global Market v. The Registrar of Trademarks, Delhi who had interpreted Section 9(1)(b) of the TM Act in respect of composite marks. Thus, held that the Registrar erred in dissecting the subject mark into its individual parts while considering registration.
“It is relevant to note here that there were other composite marks containing the word ‘Cruz’ that have been registered under Class 04, details of which are given in paragraph 15 of the Memorandum of Appeal. It is also relevant to note that the appellant has given a disclaimer with regard to exclusive right to use the word ‘Oil’.”
In view thereof, the appeal was allowed and the impugned order was set aside. The Bench had further directed the Trade Marks Registry to proceed with the advertisement of the application as per the proviso to Section 20 of the TM Act.
Read Order: Union of India v Surender Kumar
Simran Singh
New Delhi, June 7, 2023: The Delhi High Court partly upheld the order passed by the Central Administrative Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order since the Department failed to examine relevant witnesses. It was held that it was a settled legal position that once the Court sets aside an order of punishment on the ground that the inquiry was not properly conducted, the Disciplinary Authority was to conduct the inquiry from the point it stood vitiated.
The Division Bench of Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta held that the failure of the department to examine the relevant witness from the Board in the disciplinary proceedings was crucial and consequently the Tribunal had rightly set aside the inquiry proceedings. It was further stated that the FIR in itself was not an evidence without actual proof of facts stated therein.
The Bench noted that the statement of the respondent recorded in defence had not been placed on record or even discussed in the Inquiry Report. Neither, had it been reflected in case the questions were put up to the respondent in respect of the evidence appearing against him during the course of inquiry as contemplated under Rule 14(18) of Central Civil Services (Classification, Control and Appeal), 1965 (CCS (CCA) Rules). The complete record of inquiry proceedings had not been placed on file.
“Rule 14(18) of CCS (CCA) Rules, 1965 has been formulated for enabling the delinquent official to rebut and explain the circumstances appearing against him in evidence. The Inquiry Officer, as such, is obligated to put the incriminating evidence to the respondent in order to give him a proper opportunity of explaining the circumstances appearing against him unless he is examined in defence.”
The Court had relied upon Ministry of Finance v. S.B. Ramesh, wherein the Supreme Court had held that Rule 14(18) of CCS (CCA) Rules, 1965 was mandatory. Thus the Court agreed with the finding of the Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order with liberty to proceed in the matter in accordance with law. However, was unable to agree with the directions of the Tribunal that the respondent be re-instated forthwith and be entitled for consequential benefits in accordance with the relevant rules.
It was the case of the petitioner that the respondent was appointed as a Caretaker in Safdarjung Hospital on 25-07-1986, as per Recruitment Rules on the basis of matriculation certificate i.e. Higher Secondary School Examination 1982 from the Board of Secondary Education, Madhya Pradesh, Bhopal and was promoted in the course of his service to the post of Chief Sanitary Superintendent on 01-01-2000. It was alleged that the respondent had failed in the Higher Secondary Examination and had got the Job in the Hospital by forging the results and marks in the Mark Sheet submitted with the department.
The departmental inquiry had been challenged by the respondent/delinquent official before the Tribunal primarily on the ground of violation of principles of natural justice, on account of failure to examine the relevant witnesses to prove the documents and follow the procedure as contemplated in Rule 14 of CCS (CCA) Rules.
The Bench referred to the case of Union of India v. P. Gunasekaran wherein the scope of the powers of judicial review in disciplinary proceedings were summarised stating that the High Court should not act as a second Court of First Appeal and should not venture into re-appreciating of evidence under the writ jurisdiction. However, in the case of Pravin Kumar v. Union of India it was observed that the judicial review was to ensure fairness in treatment and fairness of conclusion and ought to be used to correct manifest errors of law or procedure, which might result in significant injustice or incase of bias or gross unreasonableness of outcome. Thus, the court stated that the judicial review was a review of judicial making process and not merits of decision itself.
The Court upon pursuing the impugned order dated 12-01-2022 passed by the Tribunal revealed that the Inquiry Report dated 22-12-2017, penalty order dated 17-01-2018 passed by the Disciplinary Authority and order dated 24-10-2018 passed by the Appellate Authority had been set aside by the Tribunal upholding the contentions raised on behalf of the respondent that the inquiry has been conducted in violation of provisions of Rule 14 of CCS (CCA) Rules and orders were passed by the Disciplinary Authority as well as Appellate Authority in a mechanical manner, without recording any reasons and/or dealing with the grounds taken by the respondent.
The Bench noted that the disciplinary proceedings were initiated by the department only on receipt of complaint from the Central Vigilance Commission wherein the identity of the complainant was directed to be kept confidential in view of Public Interest Disclosure Resolution. In response to the complaint, respondent was requested to furnish the original certificate which he later on claimed to have submitted/deposited with the department. The aforesaid stand of respondent was disputed by the petitioners and it was claimed to be false as the dispatch/receipt number was stated to be discrepant to the practice followed at the relevant time. Left with no other option, the department had to forward the photocopy of Higher Secondary Certificate for verification by the Board of Secondary Education, Madhya Pradesh, Bhopal which bore certificate ‘SNo. 236825 Roll No. 1557766’ in the name of Surender Kumar S/o Shri Ishwar Singh.
In response to request for verification by the department, letters dated 18-12-2015 and 25-06-2016, were received from the Office of Board of Secondary Education, Madhya Pradesh, Bhopal, wherein it was stated that upon comparison, various discrepancies/variations had been observed in the certificate forwarded by the department and record of relevant Roll No. maintained by the Board and stated that the respondent had failed in the said examination having scored 256 marks.
The Court disagreed with the observations of the Tribunal that some of the questions put to the respondent on 06-10-2017, in any manner shifted the burden of proof to the respondent to prove his innocence. “In law, it is a common ground that if the Inquiry Officer conducts the inquiry proceedings as a Prosecutor and puts leading questions on prosecution witnesses exposing a prejudiced or biased mind or in any manner conducts the inquiry proceedings ignoring the principles of natural justice, the inquiry would be considered to be opposed to principles of natural justice. However, the Inquiring Authority is entitled to put questions to the witnesses for clarification if it becomes necessary, so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiry Officer questions the witnesses. The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, appears to have put questions to the respondent.”
The Bench stated that the Tribunal had upheld the contentions raised on behalf of the respondent finding deficiencies in the conduct of inquiry, in violation of provisions of Rule 14 of CCS (CCA) Rules on the ground that instead of examining the concerned Administrative Officer (AO) as a witness on behalf of the department, one Ram Niwas, AO had appeared as a witness without issuing of any formal order by the Disciplinary Authority. It was also held that the Inquiry Officer did not question the respondent on the circumstances appearing against him in the evidence for the purpose of enabling him to explain the circumstances appearing in the evidence. Further, the grounds taken by the respondent were neither considered by the Disciplinary Authority vide order dated 17-01-2018, nor by the Appellate Authority in the subsequent appeal preferred by the respondent.
“It needed to be kept in perspective that for purpose of proving the verification report qua the certificate in question, the Inquiry Officer was required to prove the same by examining the official from the Board or by examining the official from the department who may have obtained the verification report from the concerned Board. This could have ensured a fair and proper opportunity to the respondent for furnishing his defence/explanation, if any, qua the certificate in question. The substitute AO, who had not participated in obtaining the verification report, could not have proved the verification report received from the Board, on record.”
The Bench noted that in terms of Rule 14(18) of CCS (CCA) Rules, after the prosecution evidence was over, the charged officer was required to submit his statement of defence indicating his line of defence, if any. The evidence was to be led in the same manner giving an opportunity of cross- examination to the Presenting Officer. “Thereafter, the Inquiring Authority would have enquired the charged officer if he wished to appear as his own witness and in case the charged officer declined to do so, the Inquiring Authority was required to generally question him to explain any circumstances appearing against him.”
The Court opined that the order passed by the Tribunal directing the re-instatement of the respondent with back wages needed to be set aside. The case was further remitted back to the Disciplinary Authority to conduct the inquiry from the point it stood vitiated and to conclude the same within a period of six months from the date of passing of this order.
Read Order: Dr. V. Selvendran v. The Government of Tamil Nadu
Simran Singh
New Delhi, June 7, 2023: The Madras High Court stated that it would be appropriate for the petitioners to approach the Supreme Court to direct the respondent to allow them to continue in the post of Veterinary Assistant Surgeon with pay protection (regular time scale of pay) till the date of their retirement on attaining the age of superannuation, without retirement and terminal benefits. The High Court further opined that the present 20 writ petitioners, and any persons above the age of 45, ought to be considered for continuing in service until their retirement with only time scale of pay without any retirement and terminal benefits. Until the outcome of the results before the Supreme Court, the present petitioners may be allowed to continue in service, the Court held.
The Single-Judge Benchof Justice S. Srimath stated that “Losing a job, that too after serving for more than 10 years would be stressful in many ways and can impact several aspects of life. It not only leads to uncertainty, financial loss, job search stress but also impacts self-esteem negatively and in many cases trigger identity crisis. Such can be the impact that a person may feel uncomfortable mingling with other people, attending social events or even talking to their family members fearing judgment from them. Prolonged unemployment can even be more devastating as after remaining jobless for a considerable period of time, a person becomes hopeless, pessimistic and demotivated which over a period of time can affect their personality.”
In the matter at hand, the petitioners had acquired B.V.Sc., degree and registered their names in the Professional Executive Employment Exchange. During the year 2011, the Government appointed 843 Veterinary Assistant Surgeons through the same Employment Exchange in accordance with Rule 10 (a) (i) of the State Subordinate Service Rules. The petitioners were under the impression that they would be regularised upon clearing the Special Qualifying Examinations that would be conducted by Tamil Nadu Public Service Commission.
Unfortunately, a common notification was issued calling candidates from open market to participate in the competitive examination which was the subject matter of the present writ. The petitioners had preferred an interim application before the Supreme Court for suitable relief enabling regularisation of service after obtaining concurrence from the Tamil Nadu Public Service Commission. However, the Supreme Court declined to accept the said proposal of the petitioners and other 573 similarly placed persons.
It was case of the petitioners that they had demonstrated and established the eligibility and suitability for regular appointment by their actual and physical services put in for more than a decade. It was contended that they were at a more disadvantageous position, where they had to compete with youngsters, that too after the change in curriculum for more than two times and lack of time for theoretical preparation, in view of continuous services in the said post resulting in depriving them from a ‘Level Playing Field’.
It was further submitted that in view of the fact that the notification was issued beyond the time limit prescribed by the Supreme Court, there were other infirmities as well such as the sudden introduction of Tamil eligibility test etc., which would cause serious prejudice to the in-service candidates. The petitioners came up with a new proposal that they ought to have been permitted to continue in the said post till their retirement and be eligible only for time scale of pay without any terminal benefits and pensionary benefits.
The respondents represented by the Additional Advocate General submitted that the notification of the Government was to regularise the petitioners’ services. Hence, the claim of the petitioners was considered and the Government had filed a miscellaneous petition before the Supreme Court to regularise their services. However, the Supreme Court declined the proposal of the Government as well as declined the prayer of the writ petitioners and had taken into consideration the fact that since the petitioners were in service for more than 10 years the Government was directed to give weightage to the writ petitioners. Hence, a policy decision was executed as per the said direction to grant 50 marks to the in-service candidates and also granted age relaxations.
In response to the aforementioned, the petitioners submitted that even though 50 marks were granted to the inservice candidates, the syllabus had changed for two times. Therefore, the petitioners would not be in a position to compete with the youngsters. Moreover, there was a lack of time to prepare from the new syllabus due to their continuous service in the post and therefore not granted sufficient time to prepare for theory as well as practical and hence, there was difficulty in passing such examination.
The respondents relied upon the judgment rendered by the Supreme Court, wherein it was stated that
“…(ii) As far as 573 appointees under Rule 10A (many of whom are appellants before this Court) are concerned, we are of the view that they should not be permitted to be regularized in the manner proposed by the State. However, we grant the relief in the following manner:
- the appellant-State in Civil Appeal Nos. 4353-54/2016 will proceed to notify vacancies including the vacancies held by the appellants before us as also all the Rule 10A appointees.
- the appointees under Rule 10A will be granted the benefit of upper age relaxation so that they are entitled to apply and be considered with anybody else who is eligible to apply and applies.
- the appointees under Rule 10A including the appellants before us will be afforded weightage of marks towards weightage of experience in the selection process. The weightage will consist of marks at the rate of 5 marks for every year, which is subject to a maximum of 50 marks……”
The Court stated that when the Supreme Court had issued a direction after considering the plight of the 573 candidates, there was no question of modifying the said direction issued by the Supreme Court on this issue. “When the respondents have come out with a policy decision to grant 50 marks for the in-service candidates, now the petitioners would be in a better position compared to the youngsters from open market.” Therefore, the Court was of the considered opinion that the petitioners would compete in the examination since granting the weightage of 50 marks, if the in-service candidates were passed, would enable them continue in the service.
However the petitioners submitted that the Government may consider to retain the 20 writ petitioners alone, if they failed in the examination and that they may pay the salary alone (time scale of pay) who would give up the retirement and terminal benefits. "Since some of the petitioners were more than 50 years, at this age they cannot seek any public employment. They are having family to support, they have to support the elders, some of the writ petitioners’ children are studying. Moreover, if at this age they lose their job, it would have social stigma to the entire family…this concession would be beneficial to the Government also, since the Government would be benefited financially, since the said 20 writ petitioners are given up their terminal and retirement benefits.”
The Court stated that the said concession was attractive and any Court would grant such relief, provided if the litigation arose for the first time. Unfortunately, the earlier round of litigation went upto the Supreme Court and the petitioners had lost. However, the writ petitioners had an option to go before the Government who may consider to continue such candidates till their retirement. At this juncture the Additional Advocate General submitted that now the Government also was not in a position to consider the claim of the petitioners, since the Government’s proposal was also declined by the Supreme Court. Therefore, this Court was of the considered opinion that it would be appropriate to approach the Supreme Court for such direction.
Read Order: Avery Dennison (India) Pvt. Ltd v. DCIT, Circle 3 (2), New Delhi
Chahat Varma
New Delhi, June 7, 2023: The Delhi bench of the Income Tax Appellate Tribunal has ruled that where there is an agreement for services and certain services within that agreement are undisputedly rendered, the entire agreement should be considered as a whole and whether the services have actually resulted in a benefit to the assessee or not is immaterial.
Brief facts of the case were that Avery Dennison (P) Pvt. Ltd. (assessee), was a subsidiary of Avery Dennison Corporation, USA. The Transfer Pricing Officer (TPO), referring to the order passed by the DRP, applied the Comparable Uncontrolled Price (CUP) method to benchmark the international transactions related to intra-group services and thereby proposed an adjustment of Rs. 23,02,71,861/-. The assessee contended that the AO / DRP / TPO erred in making an adjustment to the appellant's international transaction of receipt of intragroup services with its Associated Enterprises (AEs) alleging that it did not satisfy the arm's length principle envisaged under the Act.
The bench of Shamim Yahya (Accountant) and Challa Nagendra Prasad (Judicial) noted that the assessee had furnished enormous evidences which pointed out that intra group services had in fact been received by the assessee. Moreover, the agreement was a composite one and authorities below had allowed part of the same and treated part of the same not allowable. The bench further noted that on similar facts, in assessee’s own case in ACIT, Circle-3(2), New Delhi v. Avery Dennison (I) P. Ltd [LQ/ITAT/2021/3382], the ITAT had deleted the adjustment for several years and the Revenue’s appeal against them had been dismissed by the Delhi High Court.
“Here also from the composite agreement, some have been accepted at arm’s length price and some have been treated as not acceptable at arm’s length price. Huge details of intra-group services have been furnished by the assessee. Respectfully following the precedent from the ITAT and Hon’ble High Court, we uphold the contention of the assessee and delete the TP adjustment,” observed the bench.
Chahat Varma
New Delhi, June 7, 2023: In a relief to National Building Construction Corporation Limited (NBCC) and M/s. Raitani Engineering Works Pvt. Ltd. (appellants), the Kolkata bench of the Customs, Excise and Service Tax Appellate Tribunal has set aside the demand for service tax under the category of ‘Commercial or Industrial Construction’ for the construction of various buildings and structures for meeting the social needs of the state of Manipur and for upliftment of needy people in the state. The Tribunal ruled that the construction falls under the category of 'works contract service' rather than 'commercial or industrial construction service'.
The facts of the case in brief were that M/s. Raitani Engineering Works Pvt. Ltd. was awarded a contract by NBCC on behalf of the Ministry of Urban Employment and Poverty Alleviation, for the construction of Jiribam Municipal Corporation building, Staff quarter building, Guest house building, overhead tank, etc. The funds for the project were released to NBCC by the government from the non-lapsable central pool of resources for the development of North-Eastern states. The Commissioner observed that the construction projects undertaken for the local government bodies were considered commercial activities. The Commissioner rejected the submissions put forth by the appellants that subject services, if at all taxable, would be liable to be taxed under the category of ‘works contract service’ which had not been proposed in the show cause notice.
The bench noted that the contract in question included the supply of goods, and therefore it could not be classified under the category of Commercial or Industrial Construction. The bench also observed that the Commissioner had considered the fact that the construction service included the supply of goods and had applied the benefits of abatement to exclude the value of goods in order to determine the assessable value for the service tax demand.
The bench also referred to the case of URC Construction (P) Ltd v. Commissioner of Central Excise, Salem [LQ/CESTAT/2016/91], wherein it has been held that when no proposal is made in the SCN to classify the service under the category of ‘works contract service’, the demand of service tax cannot be sustained for the period subsequent to 01.06.2007.
Read Order:C. Prakash Vs. M/s S. N. Media And Ors
Tulip Kanth
Chandigarh, June 7, 2023:While observing that the plaintiff failed to prove due execution of the assignment deeds by leading acceptable evidence, the Madras High Court has dismissed a suit seeking a declaration that the petitioner was the sole and absolute owner of all the intellectual property rights in respect of dubbed cinematograph film 'Chingari' and 'Shrikanta' in Tamil and Malayalam.
“Ofcourse, assignment deed concerning rights in a cinematograph film is not a document which requires compulsory attestation. Notwithstanding the same, when there is a cloud over the due execution of the document, attestors evidence assumes significance”, Justice S. Sounthar said.
The plaintiff had filed a suit seeking declaration that he is the sole and absolute owner of all the intellectual property rights in respect of dubbed cinematograph film 'Chingari' and 'Shrikanta'. He also sought for a direction to the defendants to remove the infringing content of the copyrights protected film in Tamil and Malayalam while also seeking damages of Rs 1,20,000 from the defendants.
According to the plaintiff, the second defendant is the producer of the Kannada cinematograph film 'Chingari' and he acquired dubbing rights in Tamil and Malayalam languages along with internet and non-theatrical rights of the said film and another film not connected with the suit 'Shishira' vide an Assignment Deed. The plaintiff also acquired dubbing rights in Tamil and Malayalam languages along with internet and non-theatrical rights of the Kannada film 'Shrikanta' vide an Assignment Deed.
The plaintiff claimed that the consideration of Rs 30,000 and Rs 25,000 had been paid to the defendants respectively through one Rajendra Kumar, who brokered the deal. According to the plaintiff, he paid Rs 55,000 vide NEFT transaction to said Rajendra Kumar and he inturn paid Rs.50,000 to the defendants after deducting Rs.5,000 which was payable to him by them.
The second defendant is the producer of the Kannada film 'Chingari' and 'Shishira'. The third defendant is the producer of the Kannada film 'Shrikanta'. Both of them issued receipts acknowledging receipt of consideration in respect of the above said Assignment Deeds from Rajendra Kumar. It was alleged by the plaintiff that later on, it came to his knowledge that the third defendant had assigned exclusive dubbing rights of the films 'Chingari' and 'Shrikanta' in other South Indian Languages in favour of the first defendant.
It was further averred that a legal notice was issued by the plaintiff to the defendants. The defendants had issued a reply stating that they had not received any consideration from the plaintiff in respect of the Assignment Deed in his favour and consequently, they assigned rights in respect of the above said films in favour of the first defendant. The plaintiff, claiming that consideration already paid to defendants through Rajendra Kumar, had come up with the suit before the High Court.
The Bench observed that assignment deed concerning rights in a cinematograph film is not a document which requires compulsory attestation. Notwithstanding the same, when there is a cloud over the due execution of the document, attestors evidence assumes significance. In the case on hand, the contesting first defendant pleaded collusion between the plaintiff and the defendants and in view of the stand taken by the first defendant, a cloud was created over due execution of assignment deed. Therefore, it was incumbent on the plaintiff to cure the cloud by proving due execution of the assignment deed.
It was opined that the witness column in the assignment deeds were blank and therefore, there was no attestor to examine. It was noticed that there was a material contradiction with regard to the presence of plaintiff at the time of execution of assignment deeds. The plaintiff sought declaration of its dubbing rights over the films in question under Assignment Deeds, however, he failed to produce the original assignment deeds but produced only the photocopies.
The witness column in the assignment deed was blank and in the clause relating to the payment of consideration, payment reference number and payee name were all left blank. The Court was unable to accept the contention of the learned counsel for the plaintiff that plaintiff proved due execution of the deeds. It was also observed that when the very execution of assignment deeds were not proved, the plaintiff couldn't take advantage of the precedent that mere non-payment of consideration would not vitiate the assignment because even a promise to pay consideration can be treated as a sufficient consideration.
The Bench came to the conclusion that the plaintiff failed to prove due execution of deeds by leading acceptable evidence. “The conduct of defendants 2 and 3 in their failure to appear before this Court and participate in the proceedings creates a suspicion that there is a collusion between the plaintiff and defendants 2 and 3”, the Bench said while dismissing the suit.
Read Order:Abid Ali Vs. State Of Haryana And Others
Tulip Kanth
Chandigarh, June 7, 2023:While observing that the petitioner, being a Muslim, is not entitled to get a Scheduled Caste Certificate, the Punjab and Haryana High Court has dismissed a petition seeking quashing of order vide which the petitioner, who was working as Assistant Professor under the Self Financing Scheme was removed from service of the University.
“...this Court is of the opinion that petitioner was not entitled to be issued an SC certificate, being a person belonged to Muslim Community”, Justice Jaishree Thakur asserted.
The facts of this case were such that in the year 2006, the petitioner namely Abid Ali started working as contractual Teaching Associate in the respondent -University. In the same year i.e. 2006, the University issued an advertisement for filling up 5 posts of Lecturers in the Department of Journalism & Mass Communication under SFS. Out of said 5 posts under SFS, one post was reserved for SC category and remaining four were unreserved.
The petitioner applied for appointment under both categories of posts i.e. budgeted and SFS.The petitioner was selected and appointed as Lecturer under both the schemes i.e. budgeted as well as SFS. In the appointment letter issued for budgeted post of Lecturer, the subject was mentioned as appointment to the post of Lecturer (SC) on temporary basis, whereas in the appointment letter issued under SFS, it was mentioned as appointment to the post of Lecturer (under SFS). The petitioner joined as Lecturer under SFS under Department of Journalism and Mass Communication.
Thereafter, a complaint was made against the petitioner alleging therein that the petitioner obtained a job while claiming himself to be an SC candidate, as belonged to Julaha community, whereas he couldn’t be selected under SC category, being a Muslim. The Deputy Commissioner, Karnal stated that there was no entry in the name of Abid Ali regarding issuance of SC Certificate and the Registrar Issued a memorandum of charges and it was proposed by the competent authority to take action against him as per Agreement. The petitioner submitted his reply stating that he had verified the caste certificate from the office of City Magistrate, Karnal and the caste certificate issued to the petitioner was issued vide Sr. No.2299 instead of 2348.
Thereafter, a decision was taken in the meeting of the Executive Council for removal of the petitioner from service, which shall not be disqualification for future employment. Aggrieved against this order whereby the petitioner had been removed from service, he approached the High Court.The issues before the Bench was whether the SC certificate was forged or obtained by misrepresentation and whether the petitioner had benefitted from the certificate and if he could be allowed to continue in service.
The Bench reaffirmed that a person to have the status of Scheduled Caste must profess Hinduism or any other religion as specified in para 3 of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as Presidential Order), as issued by the President in exercise of the power conferred upon him under Article 341 of the Constitution of India.
“In the absence of any material available before this Court that petitioner herein is professing Hinduism or any other religion as specified in para 3 of the Presidential Order, this Court is of the opinion that petitioner was not entitled to be issued an SC certificate, being a person belonged to Muslim Community”, the Bench held.
The Court further made it clear that the petitioner had a case if he could prove that he had obtained more marks than the last selected candidate of General Category and therefore, applying the principle of horizontal reservation, he was to be given appointment against the post of General Category to grant benefit of reservation to next Scheduled Caste candidate. The Bench rejected the argument saying that he was given appointment against 4th post of General category as according to the recommendation of the interview committee, the petitioner was recommended for appointment under SC category.
It was also noticed that the petitioner was appointed in the year 2007 and till today, he had rendered 16 years of service. “This Court is of the opinion that since the appointment of the petitioner based on the Scheduled Caste certificate to which he was not entitled to, is void ab initio, he cannot get the benefit of length of service for which he was not eligible at the first instance”, the Bench said.
The Court was of the view that even though the petitioner might not have misrepresented at the time of obtaining an SC certificate or obtained the same fraudulently, but since he claimed and was given benefit under the said certificate to which he was definitely not entitled to, he couldn’t be allowed to continue in service.
However, the Bench held that the salary and other emoluments paid to the petitioner shall not be recovered. The government accommodation, if retained by the petitioner has to be vacated by him within a period of two months, the Bench ordered while dismissing the petition.
Read Order: Metro Fashions v. Commissioner of Customs, Mumbai (Air Cargo Export)
Chahat Varma
New Delhi, June 7, 2023: The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal has ruled that merely by sending a copy of the Order-in-Original by speed post, the department cannot be said to have discharged their liability. The Tribunal emphasized that communication of the order means that it must be served on the assessee, as the wording used in Section 128 of the Customs Act is ‘date of communication of order’.
The issue involved herein was whether the Commissioner was justified in dismissing the appeal as time barred under Section 128 of the Customs Act.
According to the appellant although the date of the adjudicating order was 28.3.2018 but the same was not received by the appellant and the certified copy of the same was received by them on 13.9.2019, that too when they approached the authorities concerned and therefore the period of limitation had to be calculated from 13.9.2019 and not from 28.3.2018.
The Tribunal held that in the instant case the appellant received copy of the Order-in Original on 13.9.2019 and the appeal before the Commissioner (A) was filed on 24.10.2019 which was well within a period of three months from the date of receipt/communication of the Order-in-Original. Therefore, the Commissioner (Appeals) had erred in rejecting the appeal on the ground of time bar.
Read Order: In Re: EMS COCOS
Chahat Varma
New Delhi, June 7, 2023: The Tamil Nadu bench of the Authority for Advance Rulings has ruled that dried coconuts (shelled or peeled), supplied by M/s EMS COCOS (applicant) attracted GST rate of 5%.
The applicant, engaged in the activities of manufacturing and trading of Coconut, Copra and Coconut shells, had sought advance ruling on whether the dried coconuts (shelled or peeled) used for human consumption shall be classified under Chapter 8, HSN 0801, on which rate of tax was ‘nil’.
The short point that arose in the instant case was whether the goods in question viz., dried coconuts (copra in trade parlance) meant for human consumption merit classification in Chapter Heading 0801 thereby attracting ‘Nil’ rate or in Chapter Heading 1203 thereby attracting 5% GST (CGST 2.5%+ SGST 2.5%).
The Authority examined Circular 163/19/2021-GST dated 6th October 2021, which clarified that the whole unbroken kernel could only be extracted from the shell when it converts to copra. The Authority observed that the applicant processes the copra by cutting it in half, sun drying it, and manually segregating it based on its round shape and cleanliness. The round and clean copra was sent for human consumption, while the irregularly shaped and dusty copra was sent to oil milling units. The Circular clearly stated that copra was classified under Heading 1203, regardless of its use. Therefore, the Authority held that the goods in question, being copra, shall be classified under Heading 1203.
Read Order: M/s. United Spirits Limited v. State of U.P. And 3 Others
Chahat Varma
New Delhi, June 7, 2023: The High Court of Allahabad has granted relief to M/s. United Spirits Limited (petitioner) by ruling that no coercive action should be taken against them until the next scheduled date of listing. The court took into consideration the fact that the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007, no longer includes Indian made foreign liquor in its schedule of items.
In the matter at hand, the learned counsel for the petitioner had submitted that under the Entry Tax Act, 2000, in the Schedule, Indian made foreign liquor, was mentioned. However, the Act was reintroduced by the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007, where the schedule of items no longer included Indian made foreign liquor. Therefore, the petitioner asserted that the proceedings against them are without jurisdiction.
On perusal of records, the court opined that the counsel for the petitioner had substance and the matter required consideration.
Matter is now listed on 20th of July, 2023.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Exploring The Right To Be Forgotten & Its Relevance In India’s Digital Landscape
By Shivender Kumar Sharma
By Shivender Kumar Sharma
The "right to be forgotten" has emerged as a crucial legal right in the digital age. It refers to an individual's right to request the removal of their personal information from the internet. This right is based on the principle that individuals should have control over their personal data and the right to be able to move on from past mistakes or embarrassing incidents that are no longer relevant to their current life.
The right to be forgotten is particularly important in a world where social media, online search engines, and other digital platforms, hold vast amounts of personal data. In the absence of this right, individuals would have limited control over their personal information, leaving them vulnerable to identity theft, cyberstalking, and other forms of online harassment.
The European Union (EU) was one of the first governing bodies to recognise the importance of the right to be forgotten. In 2014, the EU's Court of Justice ruled that individuals have the right to request the removal of personal data from search engines if the information is inaccurate, irrelevant, or no longer necessary.
The EU's decision sparked a global debate about the right to be forgotten and its implications for freedom of expression and access to information. Some argued that the right to be forgotten could be used to censor legitimate journalism and limit the public's right to know about important issues.
However, the right to be forgotten is not an absolute right. It must be balanced against other fundamental rights, such as freedom of expression and access to information. For example, if information is of public interest, such as a public figure's criminal record, it may not be possible to remove it from search engines.
The right to be forgotten is also not a panacea for all digital privacy concerns. Individuals must still take steps to protect their personal data online, such as using strong passwords, avoiding public Wi-Fi, and being cautious about sharing personal information on social media.
The right to be forgotten is a legal concept that allows individuals to request the removal of their personal information from online platforms and search engines. This right is based on the idea that individuals should have control over their personal data and should be able to determine how it is used and shared.
The right to be forgotten is not an absolute right and must be balanced against other rights such as freedom of expression, public interest, and the right to access information. However, in certain circumstances, the right to be forgotten may be considered an essential right.
For example, if an individual’s personal information has been unlawfully obtained, used for fraudulent purposes, or is causing them harm or distress, the right to be forgotten may be essential to protect their privacy and personal safety. In these cases, the right to be forgotten can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
Additionally, the right to be forgotten can be essential for individuals who have been the victim of cyberbullying, revenge porn, or other forms of online harassment. In these cases, the right to be forgotten can help individuals remove harmful and embarrassing information from the internet and prevent further harm to their reputation and mental wellbeing.
The right to be forgotten can also be essential for individuals who have made mistakes in the past and wish to move on with their lives. For example, a person who has a criminal record may find it difficult to obtain employment or housing due to their past mistakes. The right to be forgotten can allow individuals to have their past mistakes removed from the internet and start fresh without the burden of their past mistakes following them.
Another challenge is enforcing the right to be forgotten. Online platforms and search engines may be based in different countries, making it difficult to enforce the right to be forgotten globally. Additionally, online platforms and search engines may not have the resources to handle the large volume of requests they receive for the removal of personal information.
The right to be forgotten is an essential right in today’s digital age. It allows individuals to protect their privacy, personal safety, reputation, and mental wellbeing. While the right to be forgotten must be balanced against other rights, such as freedom of expression and the right to access information, in certain circumstances, it can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
The right to be forgotten is a relatively new legal concept, and its status in India is currently unclear. India does not have a specific law that recognises the right to be forgotten, nor has any case law been established on the issue.
However, there have been several instances in India where individuals have sought the removal of their personal information from online platforms and search engines. In 2017, the Delhi High Court ordered Google and Facebook to remove content related to an individual's alleged extramarital affairs. The court held that the right to privacy was a fundamental right under the Indian Constitution, and that individuals have the right to control their personal information.
In 2019, the Madras High Court ordered the removal of a video that was allegedly defamatory towards a politician. The court held that individuals have the right to be forgotten, and that the removal of personal information from online platforms was necessary to protect an individual's privacy and reputation.
However, it is important to note that these cases do not establish a legal precedent for the right to be forgotten in India. The Indian government has not yet recognised the right to be forgotten in any law or policy.
In addition, India's approach to privacy and data protection is currently evolving. In 2017, the Indian Supreme Court recognised the right to privacy as a fundamental right under the Constitution. In 2018, the Justice BN Srikrishna Committee on Data Protection submitted its report to the government, which included recommendations on the right to be forgotten. The committee recommended that individuals should have the right to request the removal of their personal data from online platforms and search engines under certain circumstances, such as if the information is inaccurate or outdated. The Bill seeks to regulate the collection, storage, and processing of personal data. The Bill includes provisions related to the right to be forgotten, but it has not yet been enacted into law.
In conclusion, the right to be forgotten is an important right in today's digital age, and its recognition in India is still evolving. While there is no specific law governing the right to be forgotten in India, the courts have recognized it in some cases. It is important to strike a balance between the right to be forgotten and other fundamental rights such as freedom of speech and expression. As India continues to develop its laws and regulations on data protection and privacy, it will be interesting to see how the right to be forgotten is further recognized and protected.
Shivender Kumar Sharma is Managing Partner, SKS Law Chambers.
A Case For Mediation In Indian Insolvency Resolution Regime
By Ameya Vikram Mishra & Balram
Linguistic philosopher Buckminster Fuller famously observed that “synergy” is the only word in our language that means the behaviour of whole systems unpredicted by the separately observed behaviours of any of the system’s parts or sub-assembly of the system’s part. Insolvency resolution through mediation is an obvious context for giving meaning to this definition of “synergy” as it furthers commercial sense as opposed to expensive litigation, often followed by liquidation.
Mediation offers several advantages in the process of insolvency resolution. It is a structured process where the mediator is responsible for engaging with various stakeholders and sustaining discussions between them. It allows the stakeholders to share their specific concerns and expectations from the resolution plan. This, in turn, allows them to share their capacity and constraints to compromise in a voluntary and risk-free process.
Why does India need to mediate insolvency disputes?
The synergy of mediation assists the parties in shifting from a claim-based resolution to an interest-based resolution that accommodates the needs of a varied group of stakeholders. Mediation cuts through the formal categorization of classes of creditors. This identifies particular needs of vulnerable categories of creditors who may not be in a position to wait or suffer an impairment, such as small businesses for whom the debtor is their only customer.
As courts are not involved in a mediation process, it offers greater flexibility not only procedurally but also concerning substantive terms, combining informal and formal restructuring options [1]. This often leads to viable commercial arrangements between stakeholders, which increases the probability of value maximisation of the corporate debtor.
Similarly, mediation permits out-of-the-box remedies which facilitates a resolution plan which is more likely to be beneficial for all stakeholders than a conventional resolution/settlement plan comprising asset sales and business interest reconsolidation. Accordingly, a resolution plan reached through mediation (as opposed to an adversarial process) is often more likely to be enforced and complied with by the stakeholders.
As an illustration, under the Insolvency & Bankruptcy Code, 2016 (“IBC”), operational creditors do not form part of the committee of creditors and thus do not vote on resolution plans for the revival of the corporate debtor. However, they often comprise relevant groups such as suppliers and employees. Bringing their issues to mediation will allow them to be heard. The method, emphasizing compromise and win-win possibilities, can aid in relationship preservation instead of litigation. Even if mediation fails to result in a resolution, it can nevertheless promote communication and dialogue between disputing parties.
Mediation is already being used to settle post-resolution issues such as the distribution of a trust created for settlement of creditors in class action claims (such as allotment of property in a development project) and transnational claims—where courts in multiple jurisdictions are involved for settlement of claim and recovery of assets arising in liquidation for creditors located in their respective countries.
What can India borrow from global practices?
India is one of many jurisdictions to confront this issue. The case for mediation in insolvency resolution is apparent from its adoption in various jurisdictions such as the United States, Singapore, Spain, the United Kingdom, and the European Union. Regulations for insolvency resolution in these jurisdictions incorporate mediation at multiple stages and as part of an array of resolution tools that strengthen an effective insolvency resolution framework.
United States
Mediation in insolvency resolution has been used most extensively in the United States. Bankruptcy courts use their inherent powers under Section 105 of the Bankruptcy Code to make rules for mediation insolvency resolution. This effort was consolidated by the Alternative Dispute Resolution Act of 1998, which mandated rule-making by the federal and district courts to use ADR in "all civil actions including adversary proceedings in bankruptcy." Courts in the United States have set up court-annexed ADR programs in bankruptcy resolution, with mediator panels of experienced professionals. The court can mandate mediation under these rules. Mediation has been used for single creditor claims [2], large group claims [3], restructuring plan negotiations [4], and in resolving disputes arising from claims against the debtor [5], recovery of assets of the company [6], as well as in preference actions [7], future claims against the debtor[8], etc.
A provision similar to Section 105 of the Bankruptcy Code may also find a suitable place in India's insolvency law framework.
Singapore
Singapore endorsed mediation into the insolvency resolution process in 2017 to address the same problem. The committee constituted for this purpose had recommended that Judges encourage parties to consider mediation in insolvency disputes. To facilitate this process, existing institutional mediation centers should have a panel of mediators with experience in cross-border restructuring.
Singapore utilized the existing infrastructure at Singapore Mediation Centre (SMC) and Singapore International Mediation Centre (SIMC) to turn them into a global mediation hub. In the case of Re IM Skaugen SE[9], the Singapore High Court emphasized the importance of mediation in insolvency resolution[10]. Establishing a mediation center like the one in Singapore will transform insolvency resolution in India.
Spain
Under the Spanish Insolvency Act, 2013, an insolvency mediator can be appointed in a pre-insolvency resolution process to resolve claims between the creditor and the debtor through the negotiation of a payment plan. If the mediation does not reach a settlement in two months, or on breach of the agreed plan, the insolvency mediator can request the start of insolvency proceedings before a court. A similar mechanism has been designed for small enterprises as well.
The strict timelines for the mediation process must also be adopted in India to ensure that the sanctity of the process is not defeated.
United Kingdom
The United Kingdom has a general policy on mediation as an adjunct to resolving all litigation before courts, including insolvency resolution. The Chancery Court Guide 2016, which sets out the procedures for the Chancery Division of the High Court, including the Bankruptcy Courts, requires the courts to, where appropriate, 'encourage the parties to use alternative dispute resolution,' including mediation and early neutral evaluation (ENE) during insolvency resolution. To enable mediation[11], the courts grant a stay on the proceedings, and the consent of all the parties generally guides the lengths of the stay.
Such practices to promote mediation may also be considered to be adopted by Indian courts even in the absence of legislation.
European Union
In the EU, mediation is used in structuring pre-insolvency workout plans, which are court proceedings aiming to finalize a restructuring agreement negotiated voluntarily and privately ('workout') but did not find the support of all required creditors.
The European Commission Recommendations[12] on a New Approach to Business Failure and Insolvency also suggests that insolvency resolution should be undertaken through the use of a mediator on a case-by-case basis. The World Bank Principles for Effective Insolvency and Creditor Rights Systems[13] also urge mediation in the pre-insolvency resolution/ workout process.
In addition to the foregoing, mediation to resolve insolvency disputes is also prevalent in jurisdictions such as France[14] and Belgium[15].
What can be changed in the existing IBC regime?
Mediation may be availed at various stages in the insolvency process by including specific provisions in the IBC.
Recently, the Supreme Court of India, in Patil Automation Private Limited v. Rakheja Engineers Private Limited, held that the statutory pre-litigation mediation under Section 12A of the Commercial Courts Act of 2015 (“Act”) is mandatory. Any suit instituted violating the mandate of Section 12A must be visited with the rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908. This power can even be exercised suo moto by the court.
The CIRP under IBC is initiated on a single default without demonstrating the corporate debtor’s commercial insolvency. Therefore, it is submitted that a similar mechanism as specified in Section 12A of the Act should be incorporated in the IBC where both upon notice for payment of debt and after the filing of the CIRP application, the corporate debtor and the creditor in question can work to resolve the claims and disputes, if any, through mediation. Mediation at this stage of the proceedings may help eliminate insolvency applications intended for debt recovery, and invoking the full-fledged machinery of CIRP can be avoided.
In order to strengthen the mediation framework within IBC, it is indispensable that the National Company Law Tribunal (“NCLT”) is conferred with powers to refer a matter to meditation. In exercise of this power, NCLT can direct the promoters and erstwhile management of the corporate debtor to settle through mediation by way of a scheme or plan that accommodates these claims and evaluate it through each creditor or class of creditors. Where the corporate debtor is able to address the multiple claims of creditors, mediation assists in this endeavor, thus ensuring that only genuine cases of insolvency proceed to the resolution process. Mediation at this stage helps renew communications between the debtor and the creditors, including addressing the creditors' resentment of the default and likely impairment and enabling forward-looking arrangements between them.
In circumstances where it is clear that the CIRP has been initiated on account of a lack of cooperation between parties, the NCLT must attempt to refer the parties to mediation. This may be permitted even at appellate stages of the proceedings if required. This is especially important when the corporate debtor is commercially viable and can be run as a going concern.
Further, efficiency and efficacy being the hallmarks of ADR, the mediation process mustn’t be frustrated by undue delays. Thus, provisions for strict timelines for the mediation process, akin to amendments brought (in 2015 and 2019) to the Arbitration & Conciliation Act, 1996 (“Arbitration Act”), may be incorporated. A fast-track procedure envisaged under Section 29B of the Arbitration Act can also go a long way in ensuring the success of mediation in insolvency.
Way Forward for India
India possesses the necessary legal mechanism to promote mediation in the form of Section 89 of the Code of Civil Procedure, 1908, which encourages the resolution of disputes through appropriate ADR methods, including mediation. Even the Companies Act 2013 specifies the establishment of a panel of mediators to which the NCLT may refer relevant matters.
Nevertheless, the inclusion of necessary changes within the IBC remains a crucial decisive step for the success of mediation in this area of disputes.
Besides legislative changes in the IBC, institutional capacity in terms of qualified mediators with experience in commercial disputes is equally necessary. Establishing the International Arbitration and Mediation Centre in Hyderabad is a welcome step. However, it is important that the government provides necessary administrative support to such initiatives. The market for insolvency experts has proliferated in India, and permitting mediation with the CIRP process will encourage many insolvency professionals to qualify as mediators and assume these responsibilities.
The authors are presently working as Associate(s) in the office of Justice A.K. Sikri, International Judge, Singapore International Commercial Court and former Judge of the Supreme Court of India. The views/opinions expressed in the transcript are personal and do not represent the views of our employer or any other firm.
[1] See European Law Institute—Rescue of Business in Insolvency Law (2014-17), Available at:
https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/Instrument_INSOLVENCY.pdf
[2] In re Sacred Heart Hospital of Norristown, 190 B.R. 38 (Bankr. E.D. Penn. Dec. 20, 1995).
[3] The Lehman Brothers case. See also, Nancy A Welsh, 'Integrating Alternative Dispute Resolution into Bankruptcy: As Simple (and Pure) as Motherhood and Apple Pie?', Nevada Law Journal, Vol 11:397, Spring 2011, p. 397, on the difficult decisions arising in mass claims against the debtor in bankruptcy.
[4] In re Public Service Co. of New Hampshire, 99 B.R. 177 (Bankr. D.N.H. 1989).
[5] In re P.A. Bergner, Case Nos. 91-05501 to 05516, Order Approving Implementation of An Alternative Dispute Resolution Procedure Including Mandatory Mediation (Bankr. E.D. Wisc. Feb 11, 1993).
[6] See Dennis C. O'Donnell, Transnational Alternatives: Growing Role of Alternative Dispute Resolution in Transnational Insolvency Cases. This paper provides an account of using an Examiner as a mediator in the Eron bankruptcy and Lehman bankruptcy cases. Available at: https://www.iiiglobal.org/sites/default/files/transnationalalternativesgrowingrolesofalternativedisputeresolutionintransnationalinsolvencycases.pdf.
[7] In re Collins & Aikman Corp., 376 B.R. 815, 815-16 (Bankr. E.D. Mich. 2007).
[8] In re Piper Aircraft Corp., 376 B.R. 815, 815-16 (Bankr. S.D. Fla. 1994). Here future claims anticipated against the debtor company but not raised during the bankruptcy proceedings (that resulted in a resolution plan) were structured in trust. 100% of the claims that arose after the bankruptcy proceeding was settled through mediation.
[9] Re IM Skaugen SE, [2019] 3 SLR 979.
[10] The High Court held that, at para 98
"98. ….[T]he mediator can assist to iron out many of the wrinkles and creases that frequently erupt in a restructuring and which perhaps are not best resolved in the adversarial cauldron of the court. It is important that this be explored with vigour, as it seems to be as it seems to me to be self-evident that bridging differences and the trust divide is fundamental to a successful restructuring outcome…"
[11] Including settlement conferences by the Judges, who will thereafter cease to hear the matter unless all parties agree.
[12] European Commission Recommendations[12] on a New Approach to Business Failure and Insolvency, 12 March 2014, Vienna. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014H0135, last accessed on 13 October 2022.
[13] Available at:https://www.worldbank.org/en/topic/financialsector/brief/the-world-bank-principles-for-effective-insolvency-and-creditor-rights, last accessed on 13 October 2022.
[14] The French Commercial Code has a three-stage process for insolvency resolution using mediation. Under 'Mandat ad hoc', a mediator is appointed by the court at the request of the corporate debtor.
[15] Under the Belgium Act on the Continuity of Companies, a company intermediary assists in negotiating between the company and creditors to restructure debts.
Yaksha Prashnas - The Vexed Questions of Caste and Sword Marriage: What the Madras High Court Said in the Judgment of 1924
By Jayant Mohan
In the case of Maharaja of Kolhapur Vs S Sunderam Ayyar, the following issues arose and were decided:
a) What is the status of the Raja's offspring by sword-wife mothers in this family? Are they legitimate or illegitimate? Are sword-wives a species of inferior wives or kind a of super concubines?
b) Is the family, to which the late Raja of Tanjore belonged, a family of Kshatriyas or Sudras?
1. ‘Yaksha Prashnas’ or the vexed and unanswerable questions as stated above arose for the Indian Judges in pre-independence India with the interplay of the Indian Princes and Rulers Religious Beliefs, Customs with History and Legal System regarding Succession and Marriage Laws of the Maharajas and Princes. It is most interesting as to how the said issues were dealt with and judgment rendered by Secular Court of Law regarding Questions of Religion and History .
‘Yaksha’ in Vedic Mythology denotes ‘the benevolent spirit’. In Mahabharata the story of Pandavas at the end of their 12 year exile occurs known as ‘Yaksha Prashna’ which is a question-answer dialogue between Yudhishthira and the ‘Yaksha’ or ‘Noble Spirit’.
The story goes that the Pandavas were very thirsty in the middle of wild forests. Nakul, Sahdev, Arjun and Bhima went in search of drinking water. They reached a beautiful lake, each one after the other, and died after drinking water from the lake. They had ignored the warnings of the White Crane guarding the lake to first answer the questions and only then drink water.
Finally, when Yudhishthir reached the beautiful lake looking for his brothers, the White Crane reiterated the warning that anyone drinking water from the lake must answer his questions beforehand otherwise they will die. Yudhishthira agreed to answer the questions of the White Crane.
Thereafter, the Crane turned into a ‘Yaksha’ or ‘Noble Spirit’ and started asking 125 questions on God, Religion, Philosophy and Dharma which Yudhishthira answered.
The Answers of Yudhishthira made the ‘Yaksha’ very happy and he revived all the Pandava brothers back to life.
Then, the Yaksha revealed his true form of Yama-Dharma or ‘God of Death’ being the father of Yudhishthira and blessed him that the Pandavas will be protected because the eldest Pandava follows the path of Dharma (righteousness) and deserves the title of ‘Dharma Raj’ or ‘Most Pious One’.
Similarly, ‘Yaksha Prashnas’ arose for adjudication before the Courts in colonial pre-independence India between Queens Proclamation in 1858 and 1947 when India became independent.
QUEEN VICTORIA’S PROCLAMATION OF 1858 AND RESPECT FOR LOCAL CUSTOMS
In the aftermath of the 1857 rebellion, the British Government passed the Government of India Act, taking over direct control of the administration in India from the East India Company.
Queen Victoria’s Proclamation held on 1st November, 1858 at Allahabad granted to ‘the natives of our Indian territories’ the same rights as ‘all our other subjects’ and, among other things, promised to support religious toleration, to recognize the ‘customs of India’, to end racial discrimination and to ensure that ‘all shall alike enjoy the equal impartial protection of the law’.
This respect for ‘Customs of India’ was a significant shift from the previous
policy of the doctrine of lapse being followed by Lord Dalhousie under the East
India Company Rule to annex the kingdoms of Indian Princes and Rulers who
did not have a proper male lineal heir to the Ruler.
Under the Policy the British annexed the state of Satara, Jaitpur, Sambhalpur, Nagpur and most importantly Awadh (Oudh) between 1849 to 1856 which was one of the main causes of the Rebellion of 1857 against the Company Rule resulting in widespread violence and deaths of English persons, which undermined British authority.
Therefore, under the direct rule of Queen Victoria, the British Officials and the Administrators were very careful in dealing with the succession rights of Indian Rulers and Princes and the matters of succession were inevitably settled through the intervention of Courts.
The interplay of the Indian Princes and Rulers’ religious beliefs and customs with the orders and proclamations issued by British administrators resulted in complicated legal status of the heirs and inheritance was always heavily contested in the Courts of Law.
The Law Courts were called upon to decide such complex historical, social and mythological questions like what is the ‘Caste’ or ‘Gotra’ of Rajas or ‘Validity of Sword Marriages’ etc.
THE CASE WHERE THE ISSUE WAS THE CASTE OF SHIVAJI THE GREAT
At the crossroads of history, law and religion was one such succession battle between various claimants to the private properties of the Raja of Tanjore which came to be decided by the Madras High Court in the case of Maharaja of Kolhapur Vs S Sunderam Ayyar decided on January 21,1924.
The decision was rendered on 21st January, 1924 by the Madras High Court regarding succession of the magnificent Tanjore Fort and personal properties of the last Maharaja of Tanjore who had passed away in 1855.
The said first appeal arose from the decision of Subordinate Judge-Tanjore dated 2nd July, 1918 where amongst the 72 issues decided by the Judge were the two questions mentioned in the beginning which stand out for their unique complexity;
Sword Marriage’ was a prevalent form of marriage amongst the ruling Maharajas and Princes of India where many women were married to the sword or the dagger of the Raja, sword representing the Raja or the King. Such form of marriage was prevalent amongst the Kshatriyas because the sword or dagger was representative of the Kshatriyas whose profession was of arms. There was no giving away of the bride to the groom, treated to be an essential feature of marriage.
‘Sword Marriages’ were treated by the Pandits to be ‘Gandharva Marriage’ (a marriage importing amorous connection found on reciprocal desire) form, being that there was no giving away of the bride.
Recently, a popular Hindi movie ‘Bajirao Mastani’ on the romance between Bajirao Peshwa (1700-1740), the Maratha King, with Mastani (1699-1740), daughter of Maharaja Chhatrasaal of Bundelkhand, has been portrayed on screen. Mastani was the second wife of Peshwa. Many historians are of the view that Mastani was married to the sword of Bajirao Peshwa in Bundelkhand and later on was brought to Pune, the seat of Peshwa, to cohabit with him as his second wife.
The Bench which decided the Appeal before the Madras High Court comprised of the officiating Chief Justice Charles Gordon Spencer and Justice Kumaraswami Sastri. The most fascinating aspect of the process is how a British Judge (the officiating Chief Justice) decided the complicated issues pertaining to Indian history, mythology and religious beliefs and customs. Remarkable erudition, research and scholarship is evident from the reading of the decision. Justice Kumaraswami Sastri agreed with the opinion of Justice Spencer but wrote a separate judgment detailing separate reasons and supporting the conclusions of officiating Chief Justice.
The Judgment of Charles Gordon Spencer starts with the following line
“In A.D. 1674 during the reign of the great Mogul Emperor Aurangzeb, Ekoji alias Venkaji took Tanjore from its Nayak Rulers without firing a shot.
….In 1677 the forces of Ekoji and those of his half brother Sivaji came into conflict but by a compromise the former was allowed to retain Tanjore. In 1680 Sivaji got Tanjore and other territories ceded to him by the Bijapur Government, but in the same year Sivaji died and Ekoji retained his-hold on Tanjore.”
With the aforesaid Words, the Judgment proceeds to narrate the factual background which was the subject matter of the case being the ‘suit property’ namely the magnificent Tanjore Fort and Lands which were the personal properties of the Maharaja of Tanjore.
FACTUAL BACKGROUND OF THE CASE
On one side was the successors of Sivaji the great - the founder of the Maratha Empire in Deccan India represented through Maharaja of Kolhapur claiming the suit property. On the other side were the Successors of Ekoji (half brother of Shivaji) and Maharaja of Tanjore claiming rights by succession in the personal property of Ekoji. The successor of Ekoji being Last Ruler of Tanjore (Sivaji) passed away in 1855.
Since the last Maharaja of Tanjore did not have a male heir, he married 17 women in one day through ‘Sword Marriage’ in 1851 in a desperate attempt to get male heirs.
On October 29th, 1855, he left 15 Ranis, two legitimate daughters, a mother, 60 women living in a seraglio called the Mangala Vilas, of whom 40 aspired to be called sword wives in distinction to the dancing girls who were ordinary concubines, and 17 natural children begotten by the Raja through sword wives, six of these children being males
The British Government declared the Raja of the Tanjore State to have lapsed and vested with the Government of India as he did not leave behind a male heir.
As far as the personal properties of the Raja of Tanjore, namely the Tanjore Fort and the lands and other properties of the Maharaja of Tanjore were concerned, the Government of Madras issued a Government Order in 1862 handing over the Estate to be managed by the Widow of Raja of Tanjore namely Kamakshi Bai for management and control. The Government Order also mandated that on the death of the last surviving widow the Property will devolve upon the daughter of the Raja or failing her the next legal heir of the Raja.
Kamakshi Bai, the widow of the last Raja of Tanjore, died in 1912.
The receiver on July 8th, 1912, instituted this interpleader suit to decide who was entitled to take the estate making the adopted son's sons, the daughter's adopted grandchild, the sons and grandsons of the Raja by his sword wives, distant agnates including the Maharaja of Kolhapur, the descendants of the last ruler of Satara and of the Patel of Jinti, and remote bandhus, in fact all possible claimants, parties to the suit. The trial commenced on July 2nd, 1917 before the Subordinate Judge, Tanjore and judgment was pronounced on July 1st, 1918, after voluminous evidence had been recorded and innumerable exhibits admitted.
How the issue of validity of Sword Marriages and rights of the Children born out of such marriages was decided
While deciding on the vexed issue of validity of sword marriage and legitimacy of children born out of sword marriages, the court considered the voluminous evidence as well as primary sources of information such as historical accounts, treatises by scholars and literary and official accounts regarding practices and customs of ‘Sword Marriages amongst the Ruling classes’ was taken into account;
In the aforesaid background the issue of Caste of Ruler of Tanjore from Ekoji being half brother of Shivaji the Great came to be decided by the High Court. The Court relied upon evidence and materials to conclude ‘Sword Marriages’ were in fact a valid form of marriage but only amongst the Kshatriyas.
The High Court disagreed with the finding that Sword Wives was a valid form of marriage in the family of Raja of Tanjore but the status of Sword Wives was that of inferior wives. Therefore, the children born out Sword Marriages are ‘illegitimate’ and only entitled to be given shares reserved for illegitimate sons as per Hindu law and held that Sword Marriages were a valid form of marriage amongst Kshatriyas.
The High Court disagreed with the approach of the Subordinate Judge and held that there cannot be a half-way house regarding legitimacy and illegitimacy. Therefore, it is necessary to find whether the Sword Wives were regularly married or they were concubines whose offspring are illegitimate.
How the Issue of Caste of Shivaji the Great became an issue to be decided by the High Court
The validity of Sword Marriages and the right to inherit for offspring born out of such Sword Marriages will depend on the finding whether the fact that Raja of Tanjore belongs to Kshatriya caste or not since the first Raja of Tanjore i.e. Ekoji was the half-brother of Shivaji and both had common ancestors. Therefore, the issue of caste of Shivaji the Great arose and had to be decided upon.
Historical accounts record that Shivaji the great was the most Powerful Maratha Ruler in the Deccan. He was anointed/initiated by Gaga Bhat, a Brahmin from Benaras, at the age of 47 years in a regal ceremony for coronation of Shivaji the Great held at 6th June, 1674 at Raigad.
While determining the caste issue, three historical facts had to be probed which had arisen from the material on record:
1. Gaga Bhat, a Brahmin from Benaras did the Upananyanam or thread ceremony thereby raising Shivaji to the rank of Kshatriya and conferring on him the title ’Chhatrpati” or “Chief, Head King of Kshatriyas”.
2. Origins of the Mahratta Clan who traced their lineage to the Rajput Rulers from Udaipur (Ranas of Mewar) and the Mahrathas’ claim that they descend from the Ranas of Mewar being the first 96 families who had initially migrated from Udaipur and settled in Deccan.
3. In performing the Upanayana Sanskar of Shivaji there was considerable opposition from other Brahmins and Pandits of the time who claimed that in Kaliyuga there are no kshatriyas because they were extinguished by the Sage Parshuram.
The Veracity of the aforesaid facts had to be ascertained from the proof and evidence on record which the court proceeded with in the following manner;
Upanayanam (Thread marriage) of Shivaji the Great
The Judgment notes from the Satara Gazetter and Kolhapur Gazeteer prepared by the Administrators recording the facts and history of the District and people regarding the Thread ceremony or Upanayanam of Shivaji the Great for which a Pandit from Benaras had been called and he raised Shivaji to the rank of Kshatriya after the Upanayana Ceremony.
“It is a matter of history that Sivaji paid four lakhs of rupees to Gaga Bhat, a Brahmin of Benares, in order to have his upanayanam (thread marriage) performed when he was 47 years of age, and to be raised to the rank of a Kshatriya at the time of his coronation. In the Kolhapur Gazetteer, page 72, it is stated that the descendants of Sivaji. claim to belong to the Kshatriya caste and say that their ceremonies are the same as those of Brahmins.”
The brilliance of the Judge is evident from the way this vexed issue of “Gaga Bhat – A Brahmin from Benaras having been prevailed upon to perform the Upanayam sanskar of Shivaji the Great Maratha Ruler has been dealt with. The Judge considers this one event has been described by three scholars from three different viewpoints in the judgment as follows;
1. As per J Sarkar’s "Shivaji," pages 240-246, that Shivaji underwent a public purification for having omitted to observe Kshatriya rites for long. Thereafter a meeting of Brahmins was held who opposed Gaga Bhat to initiate Shivaji as they asserted that in Kaliyuga there was no true Kshatriya as Sage Parashuram had extinguished them. Gaga Bhat then proceeded to initiate Shivaji in modified form with Vedic mantras overcoming opposition.
2. Mr. Ben in his recent book called Siva Chhatrapati, published while these appeals were awaiting a hearing, that the argument that there were many Sudra kings without any knowledge of Kshatriya rites, though urged for the space of a year and a half, had no effect on Gaga Bhat but that he was finally prevailed upon to crown Sivaji by the plea that he was kind to his subjects, and maintained the true religion (pages 241-242).
3. Subasat's Bakar, page 114, that Gaga Bhat was satisfied by means of an emissary sent to Rajputana that Sivaji's ancestors came from Kshatriya families and that he was a Suddha (proper) Kshatriya is correct.
Despite the three versions of the same event as described by scholars having been noted by the Court it was found unnecessary to give an opinion on the issue of caste of Shivaji on this much vexed question in the following words:
“assuming that Sivaji and his descendants are Kshatriyas, it does not follow that Ekoji, his half-brother, who did not go through the ceremonies of purification and coronation, as Sivaji did, and his descendants are anything more than Sudras”
Therefore, the Court refrained from giving a finding regarding the Caste of Shivaji the Great – Founder of the Maratha Empire.
ORIGINS OF ANCESTRY OF THE MARATHAS BEING 96 FAMILIES DESCENDED FROM THE RANAS OF UDAIPUR
The Court noted the historical claim that Marathas had Migrated from Udaipur and were the Descendants of the Rana of Udaipur from Mewar State in Rajputana :
“The highest class of Mahrattas is supposed to consist of ninety-six families, who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system.”
This theory of the origins of Marathas was considered from the stand point of various historical and literary accounts. Also, voluminous evidence was led before the Subordinate Judge who had rejected the theory of origin of Marathas from Rajputana. The Court was of the view that there is no basis to prove that the descendants of Ranas of Mewar had come to so much distance to the south and found an empire and following finding regarding origins of the Marathas from the Ranas of Mewar regarding ancestors of Rulers of Mahratta Empire and Tanjore State
“On the whole it must be said that historically, genealogically, geographically, socially and ceremonially, the claim of this family to be classed as Kshatriyas has failed and the lower Court's finding on this point must be confirmed.”
In the aforesaid manner the Court affirmed the finding of the Subordinate Judge Tanjore that the Maharaja of Tanjore was not Kshatriya by caste and the claim of successors to inherit the property from Sword Marriage was rejected.
WHETHER NO KSHATRIYAS EXIST IN KALIYUGA BECAUSE SAGE PARSHURAM HAD DESTROYED THEM
In opposition to anointing Shivaji as a Kshatriya, some Brahmins and objected that in Kaliyuga no Kshatriyas exist because Parshuram a Sage had destroyed all Kshatriyas. The said theory is rejected by the Court and concludes that Kshatriyas continue to exist relying upon the decision of Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197 that concept of Caste is dynamic and notes the evolution of Hindu castes by occupation, migration and intermarriage, and new castes have been evolved among the descendants of Hindus are to be considered as having retained in the Hindu religion, and observes that the formation of new castes is a process which is constantly going on.
CONCLUSIONS AND LESSONS IN JUDICIAL WISDOM
In my opinion the remarkable decision shows judicial statesmanship, wisdom and scholarship wherein the Hon’ble Judges had considered the complicated issues of religion and history being ‘Yaksha Prashnas’.
The Court adjudicated with wisdom, logic and legal reasoning on the sensitive issue of ‘caste’ of one of the icons of India - Shivaji who was the founder of the Maratha Empire.
The Judges showed considerable respect and sensitivity of the issue of caste of Shivaji and the far reaching implications it may have on the descendants of Shivaji the Great . Therefore, the Court in its wisdom refrained from recording a finding on whether the caste of Shivaji was Kshatriya or not because the same may cause prejudice to the descendants of Shivaji, i.e. Maharaja of Kolhapur and Satara branches of the family of Shivaji who were parties in the case .
The Approach of the Court as observed from the decision is a shining example for Judges and Lawyers who are involved in deciding upon emotionally charged issues of life, religion and law with poise, dispassionate analysis based on logic and reasoning and most importantly keeping aware of the guiding light the golden words inscribed on the National Emblem of India - The Ashok Chakra with Three Lions namely:
Satyamev Jayate- Truth Always Prevails
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Jayant Mohan is an Advocate-on-Record in the Supreme Court. Practising since 2005, he has varied experience before the Apex Court in matters related to Constitutional and Criminal law, more particularly PILs related to the Environment, Mining Laws and Criminal Cases. He represents the State of Jharkhand before the Supreme Court.
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