Read Order: Delhi International Airport Ltd V. Airports Economic Regulatory Authority & Ors.
Chahat Varma
New Delhi, December 5, 2023: In a significant development, the Supreme Court has directed the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to reconsider the computation of the Hypothetical Regulatory Asset Base (HRAB) for Delhi International Airport Limited (DIAL) and Mumbai International Airport Limited (MIAL).
In the case at hand, applications were filed by both DIAL and MIAL based on the discovery of a new and important piece of evidence, specifically a letter dated 24.05.2011, which was an internal correspondence between the Ministry of Civil Aviation (MoCA) and the Airport Economic Regulatory Authority (AERA). The letter indicated a proposed approach to back solve the initial aeronautical Asset Base given the aeronautical charges. The applicants argued that this information, not known to them even after due diligence, led to an error apparent on the face of the record.
The division bench of Justice Sanjay Kishan Kaul and Justice M. M. Sundresh acknowledged the complexity surrounding the calculation of HRAB and the interpretation of the State Support Agreement (SSA) in the context of airport operations.
The contention put forth on behalf of the applicants revolved around the assertion that the 'single till' mechanism was prevalent in the year 2008-09. During this period, there was no distinction between aeronautical and non-aeronautical revenue, and the entire revenue—comprising both aeronautical and non-aeronautical—was treated as composite revenue. Tariffs were fixed on a cost-plus basis under this mechanism. The applicants argued that, for determining the opening of the HRAB for the fiscal year 2009-10, the entirety of the revenue from the previous year, i.e., 2008-09, should have been considered.
The proceedings also involved grounds raised concerning the categorization of fuel throughput charge (FTC) as an aeronautical service.
Furthermore, the applicants made a prayer in the alternative. They requested either the modification of the judgment or the remittance of the matter before the TDSAT.
After hearing the arguments from the counsel for the parties, the division bench expressed the view that the nature of jurisdiction exercised by the court is dependent on two specialist authorities/tribunals having applied their minds to the matter. The bench considered it challenging to re-appreciate evidence and facts, especially given that the TDSAT had not provided an opinion on it.
The bench deemed it inappropriate to delve into this aspect further. However, it noted that the letter, being an internal communication privy to the non-applicants, should have been presented before the relevant authorities.
“We are, thus, inclined to adopt the alternative prayer of the applicants by directing that the effect of this document ought to be examined by the TDSAT,” held the bench.
In light of these observations, the Court directed the TDSAT to reconsider the computation of the HRAB, taking into account the newly produced letter and the 'single till' mechanism.
The Court emphasized that the TDSAT should form its independent view on the matter and not be influenced by its earlier opinion.
The applications were disposed of accordingly.
Read Order: Mohit Singhal & Anr V. The State of Uttarakhand & Ors
Chahat Varma
New Delhi, December 5, 2023: The Supreme Court has set forth stringent requirements for establishing abetment to suicide, emphasizing the need for clear evidence of instigation, intent, and proximity.
Briefly stated, in the present case, the appellants were named as accused in the FIR for an offence punishable under Section 306 of the Indian Penal Code (IPC). It was established that the third respondent, the widow of deceased Ashok Kumar, had borrowed a sum of Rs. 40,000 from Sandeep Bansal @ Sandeep Lala, with the first appellant being the son of the said Sandeep Bansal. Subsequently, the widow alleged that while repaying the borrowed sum of Rs.60,000, Sandeep deducted Rs.15,000 towards interest, leading to a dispute. The third respondent's complaint outlined an incident, where the first appellant demanded money from her husband and allegedly assaulted him, as well as the third respondent and the deceased's mother. It was also alleged that the first appellant threatened to abduct the third respondent's daughter. Additionally, the prosecution relied on a suicide note purportedly written by the deceased, with the deceased taking his own life, due to alleged distress caused by the appellants' actions.
The Uttarakhand High Court, through its judgment, had rejected the plea to quash the offence.
The counsel representing the appellants asserted that even considering the case presented by the third respondent, the deceased was distressed due to the inability to repay a borrowed amount and had received a notice regarding a dishonoured cheque. It was argued that based on the suicide note and complaint of the third respondent, no offense punishable under Section 306 of the IPC could be established.
On the other hand, the counsel for the State endorsed the challenged judgment. They contended that the allegations in the suicide note were adequate to establish a prima facie case against the appellants. Furthermore, they emphasized that determining whether the offense under Section 306 of the IPC is established can only occur after evidence is presented.
The division bench referred to Section 107 of the IPC, which defines the abetment of a thing. It outlines various forms of abetment, including instigation, engagement in a conspiracy, and intentional aid by act or omission.
The division bench of Justice Abhay S. Oka and Justice Pankaj Mithal emphasized that, in the context of the case, the second and third clauses of Section 107 would not be applicable. The central question revolved around whether the appellants instigated the deceased to commit suicide. To satisfy the first clause of Section 107, there must be instigation by the accused prompting the deceased to commit suicide. The bench highlighted that the accused must possess mens rea, or a guilty mind, to instigate the deceased to commit suicide. Additionally, the instigation must be in close proximity to the act of committing suicide.
In the case at hand, the bench dismissed the notion that the appellants instigated the deceased to commit suicide. The bench emphasized that the alleged acts of the appellants, including demanding payment and using abusive language, which reportedly occurred more than two weeks before the date of suicide, could not be construed as instigation. There were no allegations of any proximate act by the appellants in relation to the date of the suicide. Thus, the bench concluded that the acts of the appellants, as described, could not be considered as instigation to commit suicide, especially considering the deceased's own responsibility in the matter.
With the above observations, the Court held that the offence punishable under Section 306 of the IPC was not established against the appellants. As a result, it was deemed that the continuation of their prosecution would amount to an abuse of the process of law.
Therefore, the Court decided to set aside the impugned judgment and quashed the summoning order passed by the Additional Chief Judicial Magistrate Ist, Dehradun, and allowed the appeal accordingly.
Read Order: Pop Singh & Ors V. State of Madhya Pradesh
Chahat Varma
New Delhi, December 5, 2023: The Supreme Court has recently modified the conviction of two men accused of culpable homicide from Section 304 (Part-I) to Section 304 (Part-II) of the Indian Penal Code (IPC), finding that they had not intended to cause the death of the victim.
In the case at hand, the Additional Sessions Judge, Indore, had convicted the appellants under Section 148 and Section 304 (Part-I) of the IPC read with Section 149 of the IPC. The Madhya Pradesh High Court had partly allowed the appeal, confirming the conviction under Section 304 (Part-I) but reducing the sentence from ten years to seven years.
The prosecution's case involved a dispute between the accused persons and Mr. Guman Singh, the father of the deceased, Jeevan Singh, regarding the purchase of land. On 23rd April 1997, as Jeevan Singh was en route to a vegetable market in Indore to sell vegetables on his scooter, he was attacked by the appellants armed with weapons, leading to his falling from the scooter. Witnesses, including Padam Singh, Bhagwantibai, Ramesh, and Peer Mohd., observed the assault. The appellants then proceeded to threaten Guman Singh at his house. Jeevan Singh was subsequently taken to the hospital but succumbed to his injuries. An FIR was lodged by Padam Singh, and the appellants were arrested, leading to the seizure of weapons.
The division bench, comprising of Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha, noted that there were indeed 09 injuries. However, all the injuries were lacerated wounds, and therefore, they could only be caused by the blunt side of the weapons used. The observation was made that if the appellants had an intention to do away with the deceased, nothing prevented them from assaulting the deceased with the sharp side of the weapons.
Therefore, the bench found that it could not be said that the appellants had an intention to cause the death of the deceased. However, based on the nature of injuries, it was clear that the act was done with the knowledge that the injuries were likely to cause the death of the deceased.
The bench, after careful consideration, concluded that the case would not fall under Section 304 (Part-I) but rather under Section 304 (Part-II) of the IPC. Consequently, the judgment and order of the Trial Court and the High Court were altered, and the conviction of the appellants was converted.
For the said offense, the Court found that 05 years of rigorous imprisonment would serve the ends of justice. Considering that the appellants had already undergone 03 years and 05 months, they were directed to surrender to custody to serve the remainder of the sentence.
Read Order: Ram Prasad v. State NCT of Delhi
Chahat Varma
New Delhi, December 5, 2023: In two separate rulings, the Delhi High Court has granted bail to two accused individuals, Ram Prasad and Rinku, in a case involving allegations of criminal intimidation, assault, and offense under the Protection of Children from Sexual Offences (POCSO) Act.
In the present case, the bail applications were filed by the petitioners for grant of regular bail in case registered under Sections 323/341/354/506/34 IPC & Section 10 of POCSO Act.
The case involved a complaint filed by 'M', who alleged that Ram Prasad illegally occupied her property and assaulted her, threatened to outrage her modesty, and cut the hair of her son. Additionally, other family members of Ram Prasad attacked the complainant's daughter, mother-in-law, and a neighbour. Ram Prasad was arrested on 18.12.2019 and sent to judicial custody.
Rinku, the second accused, was arrested on 31.12.2019 based on specific allegations against him in the statement recorded under Section 164 of the Cr.P.C. by the complainant's son.
The single-judge bench of Justice Rajnish Bhatnagar granted bail to both accused individuals. The bench noted that Ram Prasad had been in custody since December 2019 and that all material public witnesses had been examined. Additionally, the bench observed that there was no risk of evidence tampering and that the accused's continued detention was not necessary for the investigation.
Similarly, the bench considered that Rinku had also been in custody for a considerable period and that only official witnesses remained to be examined. Consequently, the Court granted bail to Rinku as well.
Read Order: Somdutt Singh @ Shivam and Ors V. NCB
Chahat Varma
New Delhi, December 5, 2023: The Delhi High Court has granted bail to two accused individuals in a case involving the seizure of a substantial quantity of psychotropic substances.
In the case at hand, the applicants had sought bail in a case registered under Sections 8/22(c)/23/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Kashmir @ Mausam and Somdutt Singh @ Shivam, the applicants, had been in custody since 30th October 2020, and 15th April 2021, respectively. The case centred around the seizure of a significant quantity of psychotropic substances from parcels and an apartment.
The prosecution's case included key points such as the substantial seizure of psychotropic substances, arrests based on investigation findings, connections established through mobile phones, and testimony from an employee.
The single-judge bench of Justice Amit Bansal observed that, on a prima facie view, the evidence suggested that the apartment, from where recoveries were made, was rented in the name of the applicant Kashmir at the instance of the co-accused persons, and they were paying rent for it. Furthermore, the applicant Kashmir was not found present at the apartment at the time of the recovery of the psychotropic substances. Therefore, at this stage, it could not be conclusively said that recoveries were made from the possession of the applicant, and this would have to be established during the trial.
Insofar as the applicant Somdutt Singh was concerned, the bench noted the only basis for implicating him was the statements tendered by the co-accused persons under Section 67 of the NDPS Act. The bench held that that confessional statements given under Section 67 of the NDPS Act are inadmissible and no recoveries were made from the applicant Somdutt Singh or at his instance.
In view of the aforementioned discussion, the bench concluded that the rigours of Section 37 of the NDPS Act did not apply in the case of both the present applicants.
Further, based on the principles of parity, considering the grant of bail to other co-accused, and with charges framed, the present applicants, who had been in custody for an extended period with satisfactory conduct in jail and no involvement in other cases, the Court held that the applicants were entitled to bail.
In light of these factors, the Court ruled in favour of granting bail to the applicants.
Read Order: M/s Bharat Petroleum Corporation Ltd. and Another V. ATM Constructions Pvt. Ltd.
Chahat Varma
New Delhi, December 4, 2023: The Supreme Court has clarified that a separate suit can be filed for damages arising from the use and occupation of property, even if a suit for possession of the property has already been decided. The Court held that the two suits have distinct causes of action.
In the present appeal, the appellants-defendants, M/s Bharat Petroleum Corporation Ltd. and others had challenged the orderpassed by the Madras High Court, whereby the appellants' application under Order VII Rule 11(d) of the Code of Civil Procedure (C.P.C.) in a commercial division suit filed by the respondent-plaintiff, ATM Constructions Pvt. Ltd., was dismissed.
The facts on record revealed that the respondent-plaintiff, ATM Constructions Pvt. Ltd., was the absolute owner of the disputed property. Originally owned by T. Padmanabhan, T. Sethuraman, and T. Gopinath, the property was leased to M/s Burma Shell Oil Storage and Distribution Company of India Ltd. for a period of twenty years. This company, a predecessor-in-interest of the appellants-defendants, used the property for a pump service and filling station. Due to default in loan repayment by the owners, the property was auctioned and acquired by Mrs. S. Bharwani. The respondent-plaintiff later purchased the property from Mrs. S. Bharwani. Also, the appellants' lease expired on 31.12.1997, leading to the respondent-plaintiff's demand for possession. After the appellants failed to comply, the respondent-plaintiff filed the first suit in 2006. During the pendency of the first suit, the other suit sought liquidated damages from 01.01.1998 to 31.12.2019, along with interest and future damages of Rs. 30,50,000 per month from 01.01.2020 onwards until the vacant possession of the property. In response, the appellants-defendants filed an application under Order VII Rule 11(d) C.P.C., which the High Court dismissed.
The division bench of Justice Vikram Nath and Justice Rajesh Bindal, in its consideration, highlighted the pivotal matter requiring attention: the cause of action. It was observed that the initial suit, brought forth by the respondent, centred on seeking possession. In contrast, the second suit was initiated to claim damages for the use and occupation of the property after the expiration of the lease period.
The bench acknowledged that a similar issue had been deliberated upon by a Full Bench of the Allahabad High Court in the case of Ram Karan Singh v. NakchhadAhir [LQ/AllHC/1931/205]. In that particular case, a suit for the recovery of possession and mesne profits was initiated on 24.08.1925. The plaintiff, in that suit, sought mesne profits up to the date of filing the suit, and the suit was decreed in favour of the plaintiff. However, the question of future and pendente lite mesne profits was neither raised nor addressed in that suit. Possession of the land was eventually delivered on 01.04.1927. Subsequently, the plaintiff filed a second suit for the recovery of mesne profits from the date of the institution of the first suit until the date of delivery of possession. The Full Bench opined that a subsequent suit for claiming mesne profits, where an earlier suit had already been decided, was maintainable.
Further, the bench referred to the case of Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd. [LQ/SC/2022/1106], wherein it was opined that the cause of action for claiming mesne profits accrues from day to day, constituting a continuing cause of action.
Thus, the bench determined that a suit for possession and a suit for claiming damages for the use and occupation of the property constitute distinct causes of action. Given the different considerations required for adjudication, the bench held that the second suit filed by the respondent, seeking damages for the use and occupation of the premises, was maintainable. Consequently, the application filed by the appellants for the rejection of the plaint was deemed rightly dismissed by the lower courts.
However, the bench clarified that the appellants retained the right to raise any issue regarding the time-barred nature of a specific part of the claim in the suit. Nevertheless, the bench emphasized that such time-barred considerations, if any, wouldn't render the entire claim in the suit as time-barred.
Following the aforementioned deliberations, the Court concluded that there was no merit in the present appeal. Consequently, the appeal was dismissed.
Read Order: Eldeco Housing and Industries Limited V. Ashok Vidyarthi and Others
Chahat Varma
New Delhi, December 4, 2023: The Supreme Court has reaffirmed the principle that no amount of evidence or merits of the controversy can be examined at the stage of deciding an application under Order VII Rule 11 of the Code of Civil Procedure (CPC).
In the case at hand, the plaintiff/appellant, Eldeco Housing and Industries Limited, had appealed against the order, passed by the Allahabad High Court. This order pertained to a Review Application. The High Court's decision had upheld the application filed by respondent No. 1, Ashok Vidyarthi, the defendant, before the Trial Court under Order VII Rule 11(d) of the CPC. Consequently, the Trial Court had allowed the application, leading to the dismissal of the suit filed by the appellant.
The factual background of the case was that an MoU was executed on 31.08.1998 between the appellant and respondent No. 1 concerning the sale of a property, acknowledging a pending litigation among the family members of respondent No. 1. The MoU specified that the sale deed would be registered after the resolution of the litigation and the vendor's rights were determined. Upon learning that respondent No. 1 intended to sell the property to third parties, the appellant filed a suit for injunction, seeking a restraint on the transfer or encumbrance of the property. However, the suit was dismissed as respondent No. 1 denied any intention to sell the property or create third-party interests.
Subsequently, the appellant was not informed about the status of the family members' litigation by respondent No. 1. When the appellant discovered respondent No. 1's intent to dispose of the property without updating them on the litigation's resolution, a suit for specific performance was filed to enforce the MoU dated 31.08.1998. In response, respondent No. 1 filed an application under Order VII Rule 11(d) CPC for the rejection of the plaint on the grounds of the suit being barred by law under Order II Rule 2 CPC.
The Trial Court initially rejected the application, and the High Court dismissed the revision filed against this order. However, the respondent No. 1 subsequently filed a Review Application, which was granted by the High Court, leading to the allowance of the application filed under Order VII Rule 11(d) CPC and the rejection of the appellant's suit.
The division bench of Justice Vikram Nath and Justice Rajesh Bindal examined the decision rendered in Kamala and others v. K.T. Eshwara Sa and others [LQ/SC/2008/1019], wherein thecourt had opined that for invoking clause (d) of Order VII Rule 11 CPC, only the averments in the plaint would be relevant. For this purpose, there cannot be any addition or subtraction. No amount of evidence can be looked into. The issue on merits of the matter would not be within the realm of the Court at that stage. The Court at that stage would not consider any evidence or enter a disputed question of fact of law.
The bench further, relying on the principles outlined in Dahiben v. Arvindbhai Kalyanji Bhanusali [LQ/SC/2020/554], emphasized that the remedy under Order VII Rule 11 is an independent and special one, empowering the court to summarily dismiss a suit if it finds no cause of action or if the suit is time-barred. The bench stressed that the power under this rule is drastic and must strictly adhere to specified conditions. It highlighted the court's duty to scrutinize the plaint's averments and documents at the initial stage. The bench also highlighted the mandatory nature of Order VII Rule 11, allowing its exercise at any stage of the suit, and clarified that if the plaint doesn't disclose a cause of action, rejection is imperative.
The bench emphasized that the documents referred to by the respondent in support of rejecting the plaint could not be considered at this stage. These documents were not part of the record filed along with the plaint. The respondent's stance, presented in the application under Order VII Rule 11 CPC, was that the mentioned documents were crucial for rejecting the plaint. The Court asserted that, at the stage of deciding the application under Order VII Rule 11 CPC, no evidence or merits of the controversy could be examined.
As a result, the Court concluded that the High Court's order in the Review Application, upholding the rejection of the plaint, should be set aside and the Trial Court was directed to proceed with the suit.
Accordingly, the present appeal was allowed.
Read Order: Sebastian Dominic V. K. Harris & Others Etc.
Chahat Varma
New Delhi, December 4, 2023: In a recent decision, the Supreme Court has upheld the promotion of a librarian who obtained an M. Phil degree through distance education. While the Court left open the question of the validity of the degree, it held that the promotion should not be disturbed as the librarian had already retired from service.
Briefly stated,the appellant, who was employed as a Reference Assistant at Kerala Agricultural University, had been promoted to the role of Assistant Librarian effective from 23.07.2008 due to possessing the necessary qualifications, including an MLISC (Masters Degree of Library & Information Sciences) and an M. Phil in Library Science from Vinayak Missions University (VMU), obtained in December 2007. However, the Academic Council of the University, on 03.04.2013, decided that degrees obtained through distance education from VMU would not be considered for promotion under the University Grants Commission Scheme, a decision subsequently endorsed by the Executive Council. The appellant faced action following a complaint by K. Harris, respondent No. 1, challenging the acceptance of the appellant's M. Phil qualification from VMU. In response, two writ petitions were filed in the Kerala High Court, one by the appellant, Sebastian Dominic, seeking to quash the decisions made by the Academic Council and the Executive Council. The second writ was filed by K. Harris, contesting the promotions of Sebastian Dominic and Sherly B to the position of Assistant Librarian.
The Single Judge of the High Court expressed the opinion that the action was taken by the Academic Council due to a complaint made by K. Harris regarding the validity of the appellant's M. Phil degree. Despite decisions made by the Academic Council and the Executive Council, the matter was kept pending, and consequential orders were not being passed. Consequently, a direction was issued for passing the appropriate order within a period of one month. The appellant's writ petition was subsequently dismissed, and the Division Bench of the High Court, in a challenge to the common order passed by the Single Bench, upheld the same.
Legal arguments were presented by the counsels regarding the validity of the appellant's M. Phil degree obtained from VMU. The central contention was that the said degree was deemed invalid, rendering the appellant ineligible for promotion to the position of Assistant Librarian, effective from the date of acquiring that qualification.
However, despite the legal issue regarding the validity of the appellant's M. Phil degree, the division bench of Justice Vikram Nath and Justice Rajesh Bindal considered that, given the appellant's promotion from 23.07.2008 until retirement on 31.01.2018, the appeals could be disposed of without disrupting the granted promotion.
The bench decided to leave the legal question open but upheld the promotion, considering the appellant's retirement more than five years ago. The order also stipulated that benefits granted to the appellant would not be disturbed.
Read Order: Shashikant Sharma &Ors V. State of Uttar Pradesh &Anr
Chahat Varma
New Delhi, December 4, 2023: The Supreme Court has quashed the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) against the accused appellants in a case related to a political rivalry. The Court held that the ingredients of the offence under Section 3(2)(v) of the SC/ST Act were not evident from the admitted allegations of the prosecution.
The accused appellants had filed the present appeal, challenging the rejection of their criminal appeal by the Single Judge of the Allahabad High Court. The Appellate Court had upheld the order of the Special Judge SC/ST (PoA) Act, which had dismissed the accused appellants' application for discharge under Section 227 of the Criminal Procedure Code, 1973 (Cr.P.C.). The Special Judge had directed the framing of charges against the accused appellants for offenses under Sections 147, 148, 149, 307, 323, 504 of the Indian Penal Code, 1860 (IPC), and Section 3(2)(v) of the SC/ST Act.
The appellant’s counsel contended that, for the offence under Section 3(2)(v) of the SC/ST Act to be established, there must be a specific allegation by the prosecution that the accused committed an offence punishable under the provisions of the IPC against a member of the Scheduled Caste/Scheduled Tribe, knowing that the victim belongs to such a community. The counsel further urged that the entire prosecution case was false and fabricated, lodged as a counterblast on account of political vendetta. On these grounds, the counsel requested the court to accept the appeal and reverse the impugned orders to the extent of the charge framed against the accused appellants for the offence punishable under Sections 3(2)(v) of the SC/ST Act.
The division bench, comprising of Justice Pamidighantam Sri Narasimha and Justice Sandeep Mehta, observed that there was a long line of precedents indicating that if the necessary ingredients of an offence were not established from the admitted evidence of the prosecution, as reflected in the documents filed by the Investigating Officer in the report under Section 173 Cr.P.C., the court was not obligated to frame a charge for such an offence against the accused. It was noted that the plea raised by the counsel for the appellants, asserting that the necessary ingredients of the offence punishable under Section 3(2)(v) of the SC/ST Act were not made out from the admitted allegations of the prosecution, had not been specifically controverted in the written submissions filed on behalf of the State.
The bench examined Section 3(2)(v) of the SC/ST Act and highlighted that, from a bare perusal of the provision, it was evident that for the above offence to be constituted, there must be an allegation that the accused, not being a member of the Scheduled Caste or Scheduled Tribe, committed an offence under the IPC punishable for a term of 10 years or more against a member of the Scheduled Caste or Scheduled Tribe, knowing that such person belongs to such a 'community.'
Upon reviewing the entire material on record, the Court concluded that as per the prosecution's own case, there was no allegation that an offense punishable with imprisonment of 10 years or more, committed by a person of an upper caste upon a person belonging to the Scheduled Caste community with the knowledge of the victim's community status.
“Going by the material collected during investigation, it is manifest that the incident had the undertones of a political rivalry,” remarked the Court.
Thus, the Court ruled that the ingredients of the offence under Section 3(2)(v) of the SC/ST Act were not evident from the admitted allegations of the prosecution. Consequently, the charge framed against the accused appellants for this offence was deemed groundless.
The Court quashed the impugned orders related to the charge under Section 3(2)(v) of the SC/ST Act and the order rejecting the appeal. However, the trial for the remaining offences was directed to continue. The Court also quashed the non-bailable warrants issued by the trial Court against the accused.
In light of quashing the charge under the SC/ST Act and considering the remaining charges under the IPC, the Court ordered the trial to be transferred from the Special Court to the Court of Sessions with jurisdiction to try the case. The appeal was allowed accordingly.
Read Order: Mariappan V. State Rep. By Inspector of Police
Chahat Varma
New Delhi, December 4, 2023: The Supreme Court has recently reduced the conviction of an accused in a land dispute-related murder case. The accused, originally convicted for murder under Section 302 of the Indian Penal Code (IPC) and sentenced to life imprisonment, was found guilty of culpable homicide not amounting to murder under Section 304 Part-I of the IPC and sentenced to 10 years of rigorous imprisonment.
In the case at hand, the appellant, accused no.1, was alleged to have committed the offence of culpable homicide. The incident involved the murder of an individual named Kolandaippam, stemming from a longstanding land dispute between the deceased and the accused. The trial court, found the appellant guilty under Section 302 of the IPC, while the other two accused were acquitted. Thereafter, the appellant filed an appeal before the Madras High Court. The High Court determined that the appellant's actions fell within the third limb of Section 300 IPC. Additionally, the court found that the exceptions to Section 300 IPC did not apply in this instance. Consequently, the High Court affirmed the appellant's culpability, warranting punishment under Section 302 of the IPC.
The division bench of Justice Vikram Nath and Justice Rajesh Bindal held that the evidence presented in the Trial Court, along with the surrounding facts and circumstances, unmistakably established beyond a reasonable doubt that the wound inflicted by the appellant was the cause of the deceased's death.
However, the bench referred to the judgment of Surinder Kumar v. Union Territory, Chandigarh [LQ/SC/1989/142], where the court had laid down criteria for invoking Exception 4 to Section 300 of the IPC. The court stated that for this exception to apply, it was necessary to satisfy four requirements: (i) The act was a result of a sudden fight, (ii) There was no premeditation, (iii) The act was committed in the heat of passion, and (iv) The assailant did not take undue advantage or act in a cruel manner.
The bench observed that if, during a sudden quarrel, a person, in the heat of the moment, picked up a weapon at hand and caused injuries, including one proving fatal, they would be entitled to the benefit of this exception, provided they did not act cruelly.
The bench analysed the circumstances of the present case and emphasized that the appellant's act of stabbing the deceased occurred ‘suddenly’ during a heated verbal argument, rather than as part of a pre-planned, intentional attack with the aim of causing death. While acknowledging previous enmity as a contributing factor to the altercation, the bench concluded that it wasn't the motive for a premeditated fatal assault.
Further, the bench noted that from the outset, as per the prosecution's narrative in the FIR, there was a heated discussion leading to a physical assault driven by anger. The eyewitness accounts also supported this version of events. Interestingly, despite the same evidence, the Trial Court acquitted two co-accused and convicted only the appellant. It was brought to light in the evidence that the appellant caused a single injury, while the other accused inflicted multiple injuries. Nevertheless, the Trial Court chose to acquit the other two accused.
Thus, the division bench concluded that based on the evidence presented, the appellant's act of killing the deceased occurred during a fit of anger in the heat of a passionate verbal quarrel. The Court applied Exception 4 to Section 300 IPC, indicating that the act could be considered culpable homicide not amounting to murder. Additionally, the Court found that the prosecution failed to establish the clear intent required for a conviction under Section 302 IPC.
As a result, the appeal was partly allowed, and the conviction under Section 302 IPC was converted to Section 304 Part-I. The appellant was sentenced to 10 years of rigorous imprisonment and fined Rs. 50,000, payable to the victim's family.
Read Order: Bhavna V. State & Anr
Chahat Varma
New Delhi, December 4, 2023: The Delhi High Court has upheld the acquittal of an accused in a cheque bounce case due to the complainant's failure to prove proper service of the legal demand notice.
The present case involved a dispute between the appellant, Bhavna, and the drawer, Raju, pertaining to a loan transaction and the subsequent dishonour of post-dated cheques issued as security. The appellant alleged that she had lent a total of Rs. 4,00,000 to the drawer in two instalments and, in return, received post-dated cheques as a security for the loan. However, upon presentation, the cheques were returned by the drawee bank due to insufficient funds. Subsequently, the appellant served a legal notice to the drawer demanding the repayment of the alleged cheque amount, which was not honoured. As a result, the appellant filed a complaint under Section 138 of the Negotiable Instruments Act (NI Act).
Following the trial, the Magistrate noted the lack of cogent proof of the service of the legal demand notice and identified material defects in the evidence led by the appellant. Despite the statutory presumption in favour of the appellant remaining unrebutted, the Magistrate concluded that the components of Section 138 of the NI Act were not conclusively proven. As a result, the drawer was acquitted.
The single-judge bench of Justice Amit Sharma observed that, for filing a complaint under Section 138 of the NI Act, the service of notice to the drawer was essential, and the burden to demonstrate that such notice had been served rested on the complainant. This was because the cause of action for filing the complaint arose only after the conditions specified in the proviso to Section 138 of the NI Act were fulfilled. Citing the Supreme Court's decision in V. Raja Kumari v. P. Subbarama Naidu & Anr. [LQ/SC/2004/1260], the bench highlighted that the question of whether notice, as required under Section 138 of the NI Act, had been served or not had to be decided during the trial. The complaint should not be dismissed at the threshold based on the alleged improper service of notice.
The bench further observed that once the notice had been sent to the correct address of the drawer by the complainant through registered AD, it would be presumed that the drawer had duly received the same. The burden to dislodge this presumption would be on the drawer, and this would be a question of fact to be determined during the course of the trial.
In the case at hand, the bench noted that both the postal receipt and the courier receipt relied upon by the appellant as proof of service were photocopies of the original documents, and the originals were not placed on record. Additionally, the contents of the postal receipt were not visible. The bench further noted that the appellant failed to provide an explanation for the non-production of the original service proofs, as required under Sections 63 and 65 of the Indian Evidence Act, 1872. The bench emphasized that there was nothing on record to show whether the originals of these documents had been lost or destroyed, and no explanation was provided regarding their non-production.
The bench specifically mentioned that the presumption under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act could not be attracted in the absence of foundational facts being proved. It highlighted that the appellant could have led evidence from the concerned post office and agency to demonstrate that the notice was sent to the drawer, which was not done.
Consequently, the bench concluded that the requirement of the service of notice had not been complied with by the appellant, and the necessary conditions to file a complaint under Section 138 of the Negotiable Instruments Act were not fulfilled in this case. Therefore, the bench held that the appellant had not fulfilled the requirement of the service of notice, rendering the complaint under Section 138 of the NI Act untenable.
Further, the bench observed that an appellate court must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court. It was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
Thus, in view of the aforesaid discussion, the Court was of the opinion that there was no illegality, perversity, or mis-appreciation of facts in the impugned judgment passed by the Magistrate.
The present appeal was dismissed and disposed of accordingly.
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.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
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)
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