Read Order: Rajwanti and Others v. Shamsher Singh and Others
Monika Rahar
Chandigarh, January 21, 2023: While dealing with an appeal preferred by the claimant-appellants against the award of the Motor Accident Claims Tribunal, Bhiwani (Tribunal) challenging the compensation so granted, the High Court of Punjab and Haryana has held that though the minor siblings of the (minor) deceased cannot be held to be dependent on the deceased, however, they would be entitled to filial consortium.
“Even the parents would be entitled to filial consortium. In view thereof, all five i.e. the parents and 3 siblings, are awarded an amount of Rs.44,000/- each towards filial consortium”, the Bench of Justice Alka Sarin held.
The case of the appellants’ Counsel was that the deceased who was a student at the time of his death due to a 2008-accident was aged 14-15 years as per the post-mortem report. Hence, the Counsel added that a multiplier of ‘18’ ought to have been applied and an addition @ 40% ought to have been made towards future prospects. It was further the contention that no amount was awarded towards loss of estate and loss of consortium and that the amount awarded towards last rites was also on the lower side.
Per contra, the counsel for the Insurance Company contended that only the mother and the father would be considered as the legal representatives and not the minor brothers and sisters of the deceased. It was further the contention that the amount awarded was just and proper and there was no scope of enhancement.
The Tribunal in the present case awarded an amount of Rs.1,73,000/- (Rs.1,68,000/- towards loss of dependency and Rs.5,000/- towards last rites) along with interest @ 7% from the date of passing of the award till the payment of compensation.
After hearing the parties, the Court observed that in the present case, at the time of the accident the minimum wage was Rs.4,184/- per month and being a bachelor, deduction of 50% would have to be applied as per the settled law. The Bench furtehr added that an addition of 40% would have to be added towards future prospects.
While observing that the Tribunal applied the multiplier keeping in view the age of the parents which was contrary to the law laid down, the bench opined that a multiplier of ‘18’ would be applicable keeping in view the age of the deceased and that an amount of Rs. 16,500/- would be payable towards loss of estate and Rs.16,500/- towards funeral expenses.
“Though the minor siblings of the deceased cannot be held to be dependent on the deceased, however, they would be entitled to filial consortium. Even the parents would be entitled to filial consortium. In view thereof, all five i.e. the parents and 3 siblings, are awarded an amount of Rs.44,000/- each towards filial consortium”, the Court asserted.
The bench additionally held that the Tribunal erroneously awarded the interest from the date of passing of the award, however, the same as per the settled law needs to be awarded from the date of filing of the claim petition.
“Accordingly, the entire amount including the enhanced amount shall carry interest @ 7% from the date of filing of the claim petition till realization”, the bench held.
Read Order: Sunil Kumar Chauhan v. State of UT
Monika Rahar
Chandigarh, January 10, 2023: The Punjab and Haryana High Court has denied bail to the accused persons who were running a racket by bringing people on an App called Hugo on the pretext of advancing an easy loan and in the backhand, downloading data from their contacts and phone gallery and using the same (private pictures) to threaten them into paying the demanded sum.
The bench of Justice Anoop Chitkara observed, “The allegations against the accused persons are that of active participation in the gang activities by alluring the complainant to download the app by sending on his mobile phone and subsequently enticing him to pay money.”
The petitioners, incarcerated upon their arrest in an FIR registered under Sections 384, 420, 468, 471, 509, 120-B IPC (Sections 66-D, 67 of Information technology Act, 2000 and Section 14 of the Foreigners act, 1946 added later on), approached the Court under Section 439 of Code of Criminal Procedure, 1973 (CrPC).
The complainant informed the police that he had received an SMS on his mobile number which contained a URL link and asked for Hugo loan application installation. When he clicked the link, the application sought permission to get access to all his contacts, and gallery on the phone and he allowed the said access.
Subsequently, he checked his eligibility for the loan on the Hugo loan app and filled in all his details. The application showed that he was eligible for a loan of Rs.3500/-. However, the complainant did not apply for the loan.
Later on, he got to know that some persons had his naked pictures and they were threatening to circulate the same to his contacts if the demanded amount was not paid. These pictures and contacts were downloaded by those who were operating the Hugo App.
After hearing the parties, the Court observed that the accused persons in these cases were running a racket on a mobile app Hugo loan application. Reflecting on the modus operandi, the Bench added, these scammers entice the needy persons for easy loan and while downloading the application, the app seeks access to the contacts and gallery which the people grant enabling them to download the app. After that the app would show them eligible for a meagre amount of loan.
“The amount in the present case is INR 3500. After realising the eligibility which is like peanuts, the persons do not continue with the application. However, in the meantime, the application downloads all the contacts and the photographs of the phone gallery. The gang members scroll through the photographs and try to find intimate photographs. In the phones where they find such photographs, they started black-mailing the persons by threatening them and to share the same to all their contacts from whose phone details have already been downloaded”, the bench added.
The Court further observed that the allegations against the accused persons were that of active participation in the gang activities by alluring the complainant to download the app by sending on his mobile phone and they subsequently enticing him to pay money.
“The accused take advantage of big loop-holes in identification and procuring Aadhar Cards and sim cards. Surprisingly, the petitioners were able to obtain the sim cards on other persons’ names or also open bank accounts with such documents. Given the grievousness of the offence, the petitioners are not entitled to bail at this stage. However, it shall be permissible for the petitioners to file fresh petition for bail on the ground of delay in trial or prolonged custody in accordance with law”, the Bench observed while dismissing the petition.
Read Order: TRILOK CHAND SHARMA V. STATE OF HARYANA AND ANOTHER
Monika Rahar
Chandigarh, December 2, 2022: While dealing with an appeal filed by the aggrieved-victim against the verdict of acquittal made by the Additional Sessions Judge, Gurugram, the High Court of Punjab and Haryana has held that normally in case of contradiction inter-se ocular account and medical account, the ocular account rendered in respect of the relevant crime does assume preponderance.
However, the Bench of Justices Sureshwar Thakur and Kuldeep Tiwari held, “... if the ocular account rendered qua the prosecution case is provenly false or is prevaricated, then the ocular account does loose its creditworthiness, and medical account assumes paramount evidentiary worth.”
Essentially, one Trilok, after getting bullet shot injuries was admitted in General Hospital, Gurugram. It was his brother’s testimony that the injured-Trilok had lent a certain sum of money to one Sagar who was refusing to return it. Later, in order to recover the said amount, the complainant along with his brother-Trilok and Sagar were advancing towards an ATM, when the complainant heard a gun-shot sound. Upon looking back, he found Sagar with a pistol (who ran away from the spot with the injured person’s scooty) and his brother-Trilok was shot.
From the spot, a country-made pistol and bullet used in the commission of offence were taken into police possession. During investigation, the accused was arrested and he made a disclosure statement leading to the recovery of the snatched scooty. Case property was deposited in FSL Madhuban. After completion of the investigation, the present police report under Section 173 Cr.P.C., was filed.
The prosecution examined as many as 19 witnesses and, subsequently, the public prosecutor closed prosecution evidence. After the closure of the prosecution case, the trial Judge drew proceedings under Section 313 Cr.P.C., whereins, the accused pleaded innocence, and claimed false implication. However, he did not choose to lead any defence evidence.
After hearing the parties, the Court observed that though, normally in case of contradiction inter-se ocular account and medical account qua rather, the ocular account rendered in respect of the relevant crime does assume preponderance. However, the Court added that if the ocular account rendered qua the prosecution case is proven false or is prevaricated, then the ocular account does lose its creditworthiness, and medical account assumes paramount evidentiary worth.
It was further held that if the recover(ies) were not made in pursuance to a provenly signatured disclosure statement recorded by the accused, before the investigating officer concerned, but were made from the crime site, which was but an open/un-secluded place, thereupon, the recoveries do not comprise any valid potent link in the chain of circumstances.
For the reasons assigned hereinabove, the instant appeal was dismissed.
Read Judgment: Mukesh Kumar v. The State of Bihar & Ors
Tulip Kanth
New Delhi, November 30,2022: While asking the State Govt and Bihar Pharmacy Council to file status report on the number of Hospitals being run by fake pharmacists & enquiring whether the Pharmacy Practice Regulations, 2015 are followed in the entire State of Bihar, the Supreme Court has opined that running the hospitals/dispensaries in absence of any registered pharmacist or running such hospitals by fake pharmacist will ultimately affect the health of the citizen.
In this matter before the Division Bench of Justice M.R.Shah and Justice M.M.Sundresh, serious allegations were made against the Bihar State Pharmacy Council and the State of Bihar for not taking any action with respect to fake pharmacist and/or running the Governments hospitals and/or other hospitals without registered pharmacist.
It was also alleged that the in-action on the part of the Bihar State Pharmacy Council/State Government had resulted into the affected health of the citizen and so the High Court ought to have called upon the Bihar State Pharmacy Council to file the status report on the allegations of fake pharmacist or on how many hospitals in the State are running without registered pharmacist.
Referring to the provisions of the Pharmacy Act, 1948 as well as the Pharmacy Practice Regulations, 2015, the Bench opined that it is the duty cast upon the Pharmacy Council and the State Government to see that the hospitals/medical stores, etc., are not run by the fake pharmacist and are run by the registered pharmacist only.
“The manner in which the High Court had disposed of the public interest litigation – writ petition ventilating the very serious grievances touching the health and life of the citizen is disapproved. The High Court has failed to exercise the powers vested in it under Article 226 of the Constitution of India”, the Bench said.
Observing that the impugned judgment passed by the High Court disposing of the writ petition was unsustainable, the Bench allowed the appeal and remanded the matter to the High Court after calling the detailed report/counter from the State of Bihar and Bihar State Pharmacy Council on how many Governments hospitals/hospitals/medical stores/private hospitals are being run either by fake pharmacist or without registered pharmacist.
The State and Pharmacy Council have also been asked to submit report on any action taken by the State Government on the fact-finding committee report submitted by the Bihar State Pharmacy Council which was reported to be forwarded to the State Government and action taken by the State Government or by the Bihar State Pharmacy Council against such fake pharmacist.
The State and the Concil also have to submit a report on whether the Pharmacy Practice Regulations, 2015 are being followed in the entire State of Bihar or not.
Read Order: Smt. Sarla Devi v. Sunil Kumar and Others
Monika Rahar
Chandigarh, November 17, 2022: While dealing with an appeal seeking enhancement for compensation awarded by the Motor Accident Claims Tribunal, Rohtak (the Tribunal) on account of death of Ranbir Singh who was working as Head Constable in Border Security Force at a monthly salary of deceased Ranbir Singh was Rs. 7444, the High Court of Punjab and Haryana has held that the Tribunal was in patent error in deducting Rs.1298 from his gross salary in view of the fact that the deceased was in disciplinary force and getting his meals and dress etc. for free.
Essentially, in this case before the Bench of Justice Nidhi Gupta, the claimants, being widow and mother of the deceased, preferred a claim seeking compensation on account of the death of Ranbir Singh in a motor vehicular accident. At the time of his death, deceased Ranbir Singh was working as Head Constable in Border Security Force and was posted in Samba in J&K and drawing a salary of Rs.11,000/- per month.
The Tribunal on considering the evidence on record and pleadings of the parties concluded that Ranbir Singh died due to injuries suffered by him in a motor vehicular accident that took place due to rash and negligent driving of the offending Car, being driven by its Driver Sunil Kumar (first respondent).
The compensation of Rs.7,87,200/- was directed to be disbursed. The Driver, Owner and Insurer of the offending car were held jointly and severally liable to pay the amount of compensation so awarded.
It was argued by the counsel for the appellant that the Tribunal was in grave error in not awarding anything on account of future prospects, consortium, as well as other conventional heads like loss of estate, funeral expenses etc. It was further submitted by the counsel for the appellant that the finding of the Tribunal qua allowances being drawn by the deceased was to be set aside as the deceased was in disciplinary force and was getting meals and dress etc. for free. It was further submitted that the Tribunal did not consider any amount on account of transportation.
The counsel for the respondent-Insurance Company refuted the above said arguments and prayed for dismissal of this appeal though, it was not disputed that the deceased was serving as Head Constable in BSF and drawing a salary of Rs. 7444/- per month.
After hearing the parties, the Court reiterated the factum of the death of Ranbir Singh due to rash and negligent driving of the aforesaid offending Car being driven by the first respondent-Sunil Kumar. Considering that the salary of deceased Ranbir Singh was Rs. 7444/-, the Court opined that the Tribunal was in patent error in deducting Rs.1298/- from his gross salary in view of the fact that the deceased was in disciplinary force and getting his meals and dress etc. for free.
Reference in this respect was made to a Supreme Court wherein it was held that the amounts which were required to be paid to the deceased by his employer by way of perks should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit.
Therefore, the Court held that the basic salary of the deceased has to be taken as Rs.7444/-. Deduction of 1/3rd was correctly effected by the Tribunal as the claimants are two in number, the Court added while holding,
“However, instead of 16, Multiplier of 15 needs to be applied; as also compensation under other conventional heads has to be included.”
Accordingly, a sum of Rs.77000/- was awarded towards loss of consortium, funeral expenses and loss of estate.
“Needless to say the amount already awarded by the Tribunal shall be deducted from the compensation re-worked above. Appellant shall also be entitled to interest @ 9% from the date of filing of the claim petition till actual realization”, the Court held.
Read Order: Gurdial Singh (since deceased) through LRs and another v. Raja Narinder Singh and others
Monika Rahar
New Delhi, November 14, 2022: Recently, the High Court of Punjab and Haryana has held that as per provisions of Section 77(c) of the Trust Act, 1882, it is provided that Trust is extinguished when the fulfillment of its purpose becomes impossible by destruction of the Trust property or otherwise.
The Bench of Justice Arvind Singh Sangwan also held,
“It is well settled principle of law that a compromise/consent decree passed in a previous suit can be set aside in a subsequent suit only if it is obtained by fraud and the allegations of fraud are to be specific and proved like a criminal charge.”
Challenge in this appeal was laid to the judgment and decree of the Trial Court vide which the suit filed by the respondents/plaintiffs was decreed as well as for setting aside the judgment and decree of the lower appellate Court, whereby the appeal filed by the appellants/defendants was dismissed.
Rattan Singh (owner of disputed estate) was married to one Naurati and out of this wedlock, the appellant (second defendant- Jagir Kaur) was born. Jagir Kaur was married to the first defendant-appellant (Gurdial Singh). After the death of his wife, Rattan Singh performed a second marriage with one Gurdev Kaur.
Vide a gift deed, Gurdial Singh transferred half share of agricultural land in favour of Gurdev Kaur and mutation was sanctioned. Later, Gurdev Kaur died and an FIR was registered against Gurdial Singh under Sections 302, 120-B of the IPC, alleging murder of Gurdev Kaur and Rattan Singh was cited as a witness but he never appeared in Court to support the prosecution case. In 1977, the disputed Trust was created by Rattan Singh, at the instance of the MLA Raja Narinder Singh (first plaintiff). Gurdial Singh was acquitted in the FIR case and the judgment of acquittal attained finality. Via a mutation sanctioned by the order of the Assistant Collector, First Grade, Ludhiana, qua the estate of Gurdev Kaur, transferred land in favour of Rattan Singh and Jagir Kaur in equal share. This order has also attained finality.
Jagir Kaur filed a suit for declaration against Rattan Singh that she be declared owner in possession of land measuring 49 Bigha 5 Biswas. Rattan Singh appeared and filed a written statement admitting the claim of Jagir Kaur. On the basis of the admission statement of Rattan Singh, the Sub-Judge, First Class, Ludhiana passed the judgment decreeing the suit.
The instant suit was filed in 1983 with a prayer that the first five plaintiffs, the Trustees of the Trust (sixth plaintiff), were the owners in possession of 98 Bigha 7 Biswa of land which was owned by Rattan Singh and that the judgment and decree passed in favour of the second defendant (Jagir Kaur) was liable to be set aside, having been procured by fraud and misrepresentation and further the mortgage deed executed by the first defendant in favour of the third and fourth defendants be also declared null and void.
As per grounds in the plaint, it was stated that the Trust was created prior to passing of the decree and the Trustees were not made party to the same. The second ground taken was that the second plaintiff was not served in the said case and never engaged Sh. Harnek Singh, Advocate as his counsel. Third ground was that it was wrongly written in that plaint that Jagir Kaur was the only daughter of Rattan Singh and Gurdev Kaur, whereas she was the daughter of the first wife of Rattan Singh, who had died. It was also mentioned in the plaint that the defendants forcible took possession of the land on procurement of judgment and decree and, therefore, the possession of Gurdial Singh and Jagir Kaur was illegal.
The appellants/defendants contested the factum of gift deed in favour Gurdev Kaur however, it was denied that Gurdev Kaur was murdered as alleged by the plaintiffs. It was also denied that the second plaintiff ever created any Trust regarding property and if there was any Trust Deed, the same was a sham transaction, created to cause loss to the defendants. It was further stated that the judgment and decree of the Sub-Judge, Ludhiana was legal and valid and that Rattan Singh (second plaintiff), engaged Sh. Harnek Singh, Advocate as his counsel and filed written statement and appeared in Court. In the written statement, it was specifically denied that the plaintiff-Trust was ever in possession of the land in dispute, therefore, there was no occasion for the defendants to take its forcible possession from the plaintiffs.
The Trial Court decreed the suit and the appeal filed before the lower appellate Court was dismissed.
Six substantial questions were framed by the appellant's counsel. The first question was whether in a subsequent suit, the Court can examine the validity of the pleadings made in a previous suit in view of the limited scope as per Order 23 Rule 3-A CPC? The second question was whether mere fact that two advocates are practicing in the same office and appearing for the plaintiffs and defendants independently can be a ground to set aside the decree, when the identification of the defendant making the admission is not in dispute?
Thirdly, it was questioned as to whether mere fact that one of the defendants in the previous suit, at one point of time, faced a criminal trial under Section 302 IPC followed by his acquittal by the Court can be a circumstance to set aside the decree passed in his favour? Whether sanctioning of mutation by the Court followed by incorporation and correction in the revenue record amounts to knowledge to the plaintiffs, was the fourth question. Fifthly, it was questioned as to whether in the absence of the terms and conditions of the Trust Deed, being complied with by plaintiff, it becomes non-existent in terms of Section 77(c) of the Trust Act, especially when a right to sell the Trust property is given and no rules are framed?
Lastly, the question was whether the absence of possession, ever given to the Trust, creates a suspicious circumstance that it is a sham and paper document and never acted upon?
After hearing the parties, the Court found merit in the present appeal. The Court observed that both the Courts below re-appreciated the pleadings of the previous suit beyond the scope of Order 23 Rule 3-A CPC. The Court noted that three reasons were assigned to hold that the impugned decree was obtained by fraud, the first reason was that no notice was issued to Rattan Singh; secondly that it was incorrectly mentioned that in the previous plaint that Jagir Kaur was the only daughter of Rattan Singh and Gurdev Kaur and; thirdly that the advocates representing Rattan Singh and Jagir Kaur were practicing in the same office and lastly that the decree required compulsory registration.
In the above respect, the Bench opined,
“It is a well settled principle of law that a compromise/consent decree passed in a previous suit can be set aside in a subsequent suit only if it is obtained by fraud and the allegations of fraud are to be specific and proved like a criminal charge.”
Contrary to the findings recorded by the Courts below to the effect that no notice was issued to Rattan Singh, the Bench opined that notice was issued to Rattan Singh and only thereafter, he appeared through his counsel and filed a written statement.
Another circumstance that the Courts below considered against the appellants was that Gurdial Singh, husband of Jagir Kaur and son-in-law of Rattan Singh, was involved in an FIR under Section 302 IPC and in para 7 of the plaint, it was mentioned that even Rattan Singh was injured in the said incident. However, the Court observed it was a matter of fact that Rattan Singh never appeared as a witness in the criminal trial nor any MLR was produced on record to substantiate the said claim. It was also a matter of fact that Gurdial Singh was acquitted after facing a full length trial and the alleged Trust came into existence in between the period when the FIR was registered and Gurdial Singh was acquitted, the Bench noted . Therefore, the third question of law decided against the respondents/plaintiffs.
Further, the Bench observed that Rattan Singh never appeared as a plaintiff's witness to support the case of the plaintiffs that he voluntarily executed the Trust Deed in favour of the sixth plaintiff or thumb marked the plaint, therefore, the plaintiffs withheld the best evidence of personal knowledge of Rattan Singh in voluntary execution of Trust Deed qua suffering the consent decree and an adverse inference was required to be taken against the plaintiffs.
In this regard, the Court found substance in the arguments raised by senior counsel for the appellants that the Trust Deed was only a sham and paper transaction. Thus, while deciding the fourth question of law in favour of the appellants, the Court observed,
“Both the Courts below have ignored this important aspect of the pleadings as per written statement filed by defendant No. 4-Bank as even replication was filed by the plaintiffs to this written statement.”
Further, the Bench also observed that from the pleadings of the plaintiffs as well as from the admission of PW-2, it was apparent that at no point of time, Rattan Singh transferred the possession of disputed land in favour of the Trust, therefore, there was nothing on record to suggest that after the registration of the Trust, it was implemented by Rattan Singh himself in favour of the Trust. Therefore, Question of law No. 6 was decided in favour of the appellants.
As far as the fifth question was concerned, the Bench observed that yet another circumstance which was ignored by the Courts below was that as per provisions of Section 77(c) of the Trust Act, 1882, it is provided that Trust is extinguished when the fulfillment of its purpose becomes impossible by destruction of the Trust property or otherwise.
“Clause 4 of the Trust Deed itself provides that a right was given to the Trust to sell the property, which is contrary to the very basic purpose of creating the Trust and, therefore, the Trust became non-existent, as it loses the character of a charitable trust, when it was never acted upon by Rattan Singh”, held the Bench while deciding this question in favour of the appellants.
Even otherwise, the Court observed,
“it is admitted case of the parties that appellant No. 2 Jagir Kaur is the real daughter of Rattan Singh and vide mutation No. 4873 sanctioned by the Assistant Collector, First Grade, Ludhiana, half share of the property of Gurdev Kaur was given to Jagir Kaur and half share was given to Rattan Singh. This order has attained finality and the revenue record was changed and the same has never been challenged.”
Thus, the Bench opined the Trust allegedly created by Rattan Singh never came in possession of the suit land and it was never acted upon by Rattan Singh.
“The reasoning given for creating the Trust that Gurdial Singh has committed murder of Gurdev Kaur is not proved as even the judgment of acquittal of Gurdial Singh has not been placed on record by the respondents/plaintiffs though the onus is on them and only the copy of the FIR is placed on record, qua which a inference has been wrongly drawn by both the Courts below”, the Bench opined while also adding that except registration of the said FIR, no reason was given as to why Jagir Kaur, the only daughter of Rattan Singh, was debarred from inheriting the property, when Rattan Singh already gave the suit land to Jagir Kaur by way of impugned consent decree.
In view of the above, the present appeal was allowed and the impugned judgments and decrees, passed by both the Courts below, were set aside.
Read Order: Poonam Choudhary v. State of Haryana and Another
Monika Rahar
Chandigarh, November 10, 2022: The Punjab and Haryana High Court has dismissed petitions filed by candidates who were otherwise fully eligible and qualified for appointment to the post of Assistant Professor, but were were not considered for appointment on the ground that the hard copy of the application form was submitted by them after the last date fixed by the Selecting Agency, while declaring the result of the written examination debarring them from participating in the selection process any further.
The Bench of Justice Harsimran Singh Sethi held,
“... the claim of the petitioners as raised in the present petitions cannot be accepted for the reason that it is a conceded position that the petitioners failed to submit their hard copy of the online application form with the respondent-Commission before the last date fixed… which was mandatory hence, cancellation of the candidature of the petitioners by the respondentCommission cannot be faulted…”
In the present petitions, the grievance of the petitioners was that though they were fully eligible and qualified for the appointment to the post of Assistant Professor by the respondents and secured more marks than the last selected candidate in the category in which they were competing, still they were not considered for selection and appointment on the ground that the hard copy of the application form was submitted by them after the last date as communicated to the petitioners by the Selecting Agency, while declaring the result of the written examination debarring them from participating in the selection process any further.
In this matter, the respondents submitted that while declaring the result, it was mentioned that the candidates were required to submit the hardcopy of the application form along with required documents within the time specified and since the petitioners failed to do so, the petitioners’ claim for selection and appointment in pursuance to the advertisement could not be considered any further as the submission of hard copy by the last date mentioned was mandatory.
The respondents further submitted that in similar facts and circumstances, in an another selection process, one Rekha Jangra and Suman Lata, who were similarly situated as the petitioners herein, who had also not submitted the hard copy of the application form before the last date prescribed, the Single Judge observed in therein [Rekha Jangra Vs. State of Haryana and others] that the said requirement of submission of hard copy of the application form up to the last date prescribed was mandatory hence, the claim of the said candidate, was rightly not considered any further by the respondent-Commission for selection to the post of Assistant Professor in the College Cadre.
In response, the petitioner’s counsel submitted that the reliance being placed by the second respondent on the order of the Single Judge in the case of Rekha Jangra's case (supra) could not be accepted as in that case, the respondents were directed to consider her against the reserved vacant posts for appointment as the said candidate had secured more marks than the last selected candidate in the category in which she was competing keeping in view the fact that a post was kept reserved, hence, keeping in view the order passed by the Division Bench, the petitioners were also entitled for the same relief.
The question which came for the Court’s consideration was whether once a direction is issued by Selecting Agency for compliance while considering the claim of eligible candidates in a selection process, the non-compliance of the said condition will oust the candidate from the zone of consideration even if the candidate has secured more marks than the last selected candidate, even though the said direction was given subsequently during the selection process and was not part of the main advertisement.
First of all, the Court considered whether the petitioners were covered by the judgment of the Coordinate Bench in Rekha Jangra's case (supra) or whether petitioners need to be extended the benefits as extended to Rekha Jangra by the Division Bench or not.
In this regard, the Court observed that while giving the benefit to Rekha Jangra, the Division Bench clearly stated that the said benefit was extended to Rekha Jangra as a one time measure and was not to be treated as a precedent.
“That being so, the order passed by the Division Bench cannot be brought into operation by the petitioners to claim the benefit”, the Court held.
Further, the Bench added,
“The judgment of the Single Judge passed in CWP No.1379 of 2017 was never set aside. Hence, once the law settled by the Coordinate Bench was never set aside by the Division Bench, law as settled by the Coordinate Bench in CWP No.1379 of 2017 dated 30.01.2017 is to be made applicable upon the petitioners.”
With respect to the present petition, the Court held that the claim of the petitioners as raised in the present petitions could not be accepted for the reason that they failed to submit their hard copy of the online application form with the respondent-Commission before the last date fixed, which was mandatory hence, it was held by the Bench that the cancellation of the candidature of the petitioners by the respondent-Commission could not be faulted with.
Further, the fact that the other candidates who failed to submit the application form, were declined further consideration for appointment in pursuance to the same advertisement was considered by the Court to hold that the petitioners could not be given the benefit when same yardstick was applied by the Recruiting Agency against all candidates and there could be candidates who were more meritorious than the petitioners who accepted the cancellation of their candidature, hence, the petitioners could not be given the benefit of relaxation in the mandatory requirement of submission of hard copy of the application so as to consider them eligible for being appointed as Assistant Professor.
Accordingly, the present petitions were dismissed.
Read Order: Gajinder Kumar v. State of Punjab
Monika Rahar
Chandigarh, November 10, 2022: The High Court of Punjab and Haryana has denied the grant of anticipatory bail to the petitioner, who in connivance with others prepared a forged Will of the deceased (initial owner of the property concerned) and thereafter in connivance with the Sub Registrar, got the same registered under Section 40 of the Registration Act.
The Bench of Justice Jasjit Singh Bedi opined,
“Thus, the custodial interrogation of the petitioner is required not only to ascertain the role of the other accused including the Government officials but also to take the investigation to its logical conclusion.”
The prayer in the present petition under Section 439 Cr.P.C. was for the grant of anticipatory bail to the petitioner in an FIR registered under Sections 420, 465, 467, 468, 471 and 120-B IPC.
The present FIR came to be registered on the application of the complainant alleging that one Piare Lal Bhagat, who was a retired PCS Officer had a property, which was claimed by his widow (Smt. Ram Piari). There was another woman who also claimed to be the wife of late Lal Bhagat.
After the death of Piare Lal Bhagat, in order to declare herself the owner of his property, Ram Piari filed a suit in 1987 and the said litigation was pending before the High Court. In 1997, Ram Piari executed an agreement to sell in his (complainant’s) favour regarding a house for a sum of Rs.12,00,000/- out of which, she received Rs. 8,00,000/- as earnest money. When she did not execute the sale deed, he filed a civil suit which was partly decreed. An appeal was preferred and was allowed in 2011. Thereafter, in execution proceedings, the sale deed was executed in his favour and the remaining amount of Rs. 4,00,000/- was deposited in the Court.
Ram Piari also executed a Special Power of Attorney in 1989 and a General Power of Attorney in 1991 in his favour. The Sub Registrar executed the aforementioned sale deed on the orders of the Court and was, therefore, aware of the facts.
However, accused Satnam Singh got prepared a forged Will in 1986 of Piare Lal Bhagat in his favour in connivance with Karnail Singh, Nambardar and Balkirat Singh and in 2019, he connived with PPS Goraya, Balkirat Singh and Jagjit Singh and got the same registered under Section 40 of the Registration Act despite the fact that the said document was carrying forged signatures of Piare Lal Bhagat.
Likewise, Gajinder Kumar (petitioner) in connivance with Mahinder Singh, Ramesh Kumar, Anil Kumar Sharma Vasika Nawis got prepared another forged Will of Ram Piari (2010) and thereafter in connivance with PPS Goraya, Sub Registrar, got the same registered under Section 40 of the Registration Act in 2019. The same also carried forged signatures of Ram Piari.
The above-named persons got registered two mutations i.e. one of Piare Lal Bhagat in connivance with Patwari and Kanoongo in favour of Gajinder Kumar (petitioner) which was disapproved. Thereafter, the accused persons again in connivance with the officials got registered mutation. The hearing of the dispute regarding the said mutations was pending in the Court of SDM-2, Amritsar. The said Will was prepared with a view to use the same in the appeals pending before the High Court. If the signatures on the Will purportedly executed by Ram Piari in favour of the accused were compared with her original signatures, the truth would be revealed.
It was the petitioner’s case that the complainant wanted to grab the property worth crores situated in a posh area of Amritsar which led to the registration of the present FIR. In fact, he got an ex parte decree on the basis of the Power of Attorney allegedly executed by Ram Piari. The Counsel added that the conduct of the complainant in purchasing the property through the Court smacks of mala fides.It was also submitted that the veracity of the Will, in question, which was said to be forged would be a subject-matter of examination during the course of pending civil/revenue litigations, and therefore, as the parties were yet to prove their respective cases, the custodial interrogation of the petitioner was not required as the entire case is purely civil in nature and no case for custodial interrogation is made out.
On the other hand, the State Counsel argued that civil proceedings and criminal proceedings can co-exist and mere pendency of civil proceedings with respect to a document in question would not bar appropriate criminal proceedings in the facts and circumstances of a particular case. He further contended that once the Will in question was found to be prima facie forged and the beneficiary of the same was petitioner, the custodial interrogation of the petitioner was certainly required looking into the gravity of the offence and to take the investigation to its logical conclusion. It was also submitted that the custodial interrogation of the petitioner was also required to verify the roles of the officers/officials of the Revenue Department and for proper and fair investigation of the case.
After hearing the parties, the Court opined that undoubtedly, various civil/revenue proceedings were pending between the parties as referred to in the FIR as also in the reply of the State.
“However, quite apparently, the Will allegedly executed by Ram Piari in favour of Gajinder Kumar (petitioner) dated 03.07.2010 has been found to be forged by the investigating agency as per the report of the FSL”, the Bench added.
Thus, the Court held that the custodial interrogation of the petitioner was required not only to ascertain the role of the other accused including the Government officials but also to take the investigation to its logical conclusion. Even otherwise, while making a reference to a Supreme Court case, the Court reiterated that the non-requirement of custodial interrogation cannot be the sole ground for grant of anticipatory bail.
Read Judgment: RAVI NAMBOOTHIRI v. K.A. BAIJU & ORS
Mansimran Kaur
New Delhi, November 10, 2022: The Supreme Court has observed that all State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences.
The Division Bench of Justice S. Abdul Nazeer and Justice V. Ramasubramanian allowed the appeals instituted by the appellant on being aggrieved by the Judgment passed by the High Court of Kerala, confirming an order passed by the Additional District Judge setting aside his election as Councilor of Ward No.5 of Annamanada Gram Panchayath, in the elections held in November 2015.
The Division bench was of the view that that the District Court and the High Court were wrong in declaring the election of the appellant to be void on the ground that the failure of the appellant to disclose in Form 2A, his conviction under the Kerala Police Act amounted to ‘undue influence on the free exercise of the electoral right’ and also a violation of Section 52(1A) read with Section 102(1) (ca) of the Kerala Panchayat Raj Act.
Facts in brief relevant for adjudication of the appeals were such that in November, 2015, elections to the Annamanada Gram Panchayath were held. Apart from others, the appellant and the first respondent contested from Ward No.5. On November 7, 2015, the appellant was declared as having been elected from Ward No.5.
The first respondent filed an Election Petition on the file of the District Munsif Court, on December 4, 2015 challenging the election of the appellant. The Election Petition was dismissed by the District Munsif Court, primarily on the ground that there was no prayer in the Election Petition to declare the election of the appellant as void, on the grounds stipulated in Section 102 of the Kerala Panchayat Raj Act.
There was actually a prayer for canceling the election held on November 5, 2015. Aggrieved by the dismissal of the Election Petition, the first respondent filed an appeal in the Court of the Additional District Judge.
The appeal was allowed and the election of the appellant was declared as void on the ground that the appellant suppressed in his nomination form, his involvement in a criminal case and that therefore he had committed a corrupt practice. Subsequently, aggrieved by the said judgment of the District Court, the appellant filed a revision petition before the High Court.
The Revision Petition was dismissed by an order dated October 30, 2018. Thereafter, the appellant filed a petition for review, but the same was also dismissed by the High Court. Therefore, challenging the order passed in the Revision Petition and the order passed in the Review Petition, the appellant came up with two appeals.
After considering the rival contentions, the Court took into account Section 102 of the Kerala Panchayat Raj Act.
In view of the same, the Court noted that subsection (1) of Section 102 places, (i) non qualification/disqualification of the returned candidate; (ii) commission of any corrupt practice by the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent; (iii) the improper rejection of any nomination; and (iv) the furnishing of details under Section 52(1A) which are fake, on a much higher pedestal.
If a challenge is made to the election of a candidate on any one of these four grounds, it is not necessary to show that the result of the election has been materially affected, the Court further stated.
In pursuance of the same, the Court noted that the appellant admittedly failed to furnish details of his past conviction in Form No.2A. Therefore, the ground on which his election was sought to be declared void, falls squarely within Section 102(1)(ca) of the Act.
With respect to the offences alleged under the Kerala Police Act , 1960, the Court noted that the question that was posed for consideration was as to whether the non-disclosure of the conviction for such offences would also come within the purview of Section 102(1)(ca) of the Kerala Panchayat Raj Act.
In pursuance of the same, the Court noted that the failure of the appellant to disclose his conviction for an offence under the Kerala Police Act, 1960 for holding a dharna in front of the Panchayat office, cannot be taken as a ground for declaring an election void.
Hence, the Court observed that the District Court and the High Court were wrong in declaring the election of the appellant to be void on the ground that the failure of the appellant to disclose in Form 2A, his conviction under the Kerala Police Act amounted to ‘undue influence on the free exercise of the electoral right’ and also in violation of Section 52(1A) read with Section 102(1) (ca) of the Kerala Panchayat Raj Act.
Thus, the appeals were accordingly allowed.
Read Order: SRI RAHUL CHARI AND ORS v. STATE OF KARNATAKA AND ORS
Mansimran Kaur
Bengaluru, November 10, 2022: In a case involving UPI service providing entities, the Karnataka High Court has directed the Magistrates that while dealing with applications under Sections 451 and 457 of the Cr.P.C., particularly in cases where it involves such entities/intermediaries to hear those intermediaries and then direct transfer of the amount.
Justice M. Nagaprasanna allowed the instant petition instituted by the petitioners who were before this Court calling in question the order passed by the Additional Chief Metropolitan Magistrate, Bengaluru whereby the amount from the personal account of the first petitioner was transferred to the account of the second respondent.
Factual matrix of the case was such that the first petitioner was the whole time Director of “PhonePe Private Limited”/second petitioner. The second petitioner was a pioneer in digital payments and financial services and is also engaged in the business of providing digital payment platform services enabling end users and customers to make payment and merchant/business entities to accept payment by card which is popularly known as “Unified Payment Interface” (‘UPI’).
The second petitioner was the Company and claimed to be a leading player in the digital payment ecosystem.The second respondent one Ms. Madhuri R.K. attempted to order some items online through her bank account and in order to enquire about the order, contacted customer care of the ecommerce app on the number obtained on Google website.
On doing so, an unknown person appeared to have fraudulently gathered the bank account details of the second respondent and falling prey to such fraud, the second respondent transferred a sum of Rs.69,143 to the said unknown person not by one but through fifteen transactions.
All the transactions were collected requests which were approved by the second respondent. A complaint then came to be registered on April 3, 2021 and a Cyber Crime Incident Report (CCIR) came to be filed by the second respondent reporting such online financial fraud/UPI fraud with suspect name as Amith Mishra and suspect’s phone number was also provided by the second respondent.
Upon receipt of the request from the Police, the Yes Bank followed the instructions and provided the information that was sought for. At this point in time, while furnishing information, the linked bank account leads to the account number of the first petitioner.
Later, the second respondent/complainant filed an application with the first respondent informing them about the transaction that took place on April 2, 2021 and on receipt of the said information an FIR came to be registered for offences punishable under Sections 66C and 66D of the Information Technology Act, 2000 against unknown person.
The second respondent who had her account in ICICI Bank filed an application before the concerned Court invoking Sections 451 and 457 of the CrPC praying to unfreeze the personal account of the first petitioner and transfer the amount to the account of the second respondent.
The first petitioner came to know that the amounts were debited from his personal account and details were sought from the fourth respondent to whom the amount was transferred. The first petitioner then got apprised of the fact that the amount was transferred to the account of the second respondent upon an order passed by the Magistrate. No alternatives available, the petitioners knocked the doors of this Court in the subject petition.
After giving anxious considerations, the Court noted that in the entire process the first petitioner from whose account the amount was transferred was not even heard in the matter.
Though the Court noticed that the amount belonged to the victim/ complainant, the accused was even known and there were no rival claimants, if notice was not issued to the account holder from whom debit is sought, there cannot be a rival claim. This rudimentary fact is given a go-bye by the Magistrate, the Court noted.
It was further noted by the Court that the application under Sections 451 and 457 of the Cr.P.C. was dealt with by the Magistrate in a casual and cavalier manner. The amount, however small it is, is the property of an individual in whose account it is held, the Court further remarked.
Such an amount which is a right to property of the account holder cannot be taken away without even bringing to his knowledge, the Court noted.
There was a debit from the account of the first petitioner for the purpose of satisfying the complainant. While the right of a complainant is to be looked into, since the complainant is a victim of a fraud, but the investigation cannot be cut short without unearthing the fraud and closing the issue, by transfer of amount from a third party, in the case at hand, from the personal account of the first petitioner.
All the factors will have to be borne in mind by the Magistrates while dealing with an application under Sections 451 and 457 Cr.P.C. , the Court observed.
Therefore, the impugned order, on the face of it, is arbitrary and cannot stand the scrutiny of law, the Court further noted.
Freezing of account in terms of Section 102 of the Cr.P.C. is a power that is available, but if the amount is sought to be transferred to any other account, the account holder whose account is frozen or de-frozen for the purpose of transfer of the amount shall be heard, the Court observed.
In view of the above, the writ petition was allowed.
Read Order: S.Muthukumar v. The Secretary to Government And Ors
LE Correspondent
Chennai, November 5, 2022: While dismissing the writ of Mandamus instituted to direct the first respondent to consider the petitioner for promotion to the post of Assistant Executive Engineer with retrospective effect, the Madras High Court has held that mere retrospective implementation of the Rules by the Government would not confer any right to claim promotion based on the eligibility of the petitioner.
The Bench of Justice S.M.Subramaniam asserted, “Promotion per se cannot be claimed as an absolute right. However consideration for promotion is a Fundamental Right of an employee. The question of consideration is aroused if the panel was prepared after taking administrative decision to fill up the promotional post. Thus the mere availability of vacancy itself would not confer any right on the employee to claim for promotion as a matter of right.”
The petitioner had joined as Junior Engineer in the Fisheries Department on October 10, 1983. The petitioner had passed Diploma in Civil Engineering and passed Account Tests for Public Works Department Officers and Subordinates Part I and Part II and therefore, he was qualified for consideration for promotion to the post of Assistant Executive Engineer in the Fisheries Department.
The petitioner was mainly filed to direct the the first respondent to consider the petitioner for promotion to the post of Assistant Executive Engineer for the panel of the year 1994-1995 with retrospective effect from August 1, 1994 and as Executive Engineer for the panel of the year 1999-2000 with retrospective effect from August 1, 1999 on notional basis.
The Bench considered the fact that when anyone of the junior to the petitioner was promoted to the higher post overlooking the seniority of the writ petitioner, only in such circumstances, the senior employee, who was wrongfully denied promotion can claim retrospective promotion.
It was note by the Bench that the respondents had stated that vacancies were not available during the relevant point of time and no panel was prepared or promotion was granted to any of the junior to the writ petitioner and thus considering the case of the writ petitioner for retrospective promotion would not arise at all.
“When none of the junior has been promoted overlooking the seniority or depriving the petitioner from getting promotion, the relief as such sought for by the petitioner cannot be granted and mere retrospective implementation of the Rules by the Government would not confer any right to claim promotion based on the eligibility of the petitioner”, the Bench said.
Thus, the petition was dismissed.
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.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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