While sources concerning specific subject matters exist, there exist few sources that allow practitioners to be aware of developments with respect to specific forums. The Bombay High Court Judgment Tracker intends to fill this gap by providing a monthly gist of all decisions of the Bombay Bench of the Bombay High Court.
Since the purpose of the column is to provide a brief snapshot of all decisions to practitioners, the authors have avoided undertaking an analytical critique of the decisions.
Here is a summary of all decisions of the Bombay Bench of the Bombay High Court for the month of June, 2023.
In the case of Panama Builders & Developers (P) Ltd. v. Nutan Kalpana Coop. Housing Society Ltd, the Court held that the Arbitral Tribunal had correctly applied the mandate of Section 73(1AB) of the Maharashtra Cooperative Societies Act, holding that members of the Managing Committee who executed the Development Agreement had no authority to execute the said agreement since they were removed from their positions by Section 73(1AB) of the MCS Act. It also held the Development Agreement cannot be used to enforce an arbitral action against the society. The Court stated that the actions of disqualified directors cannot be used to bind a legal person to a contract, since it would vitiate Section 11 of the Contract Act. The Court held that Section 73(1AB) of the MCS Act is mandatory in nature and disqualified members of the Managing Committee cannot bind the Society with its conduct, especially in light of sensitive documents such as the Development Agreement. The Court also stated that the Arbitral tribunal had not exceeded its jurisdiction in the present case.
In Principal Commissioner of CGST and Central Excise v ICICI Bank Ltd, the Court was of the opinion that when the issue is with regard to taxability and valuation, the remedy for the appellant in terms of what has been provided for under Section 35G(1) read with Section 35L(1)(b) would be to approach the Supreme Court by filing an appeal.
In Bharat Parihar and Ors v State of Maharashtra, the Court firstly relied on the Supreme court decision Radha Krishan Industries vs. State of Himachal Pradesh to hold that the disposing of objections to provisional attachment of a bank account is not an appealable order and that the only remedy available is the invocation of the writ jurisdiction under Article 226 of the Constitution. In the matter of provisional attachment of bank account under Section 83(2) of the CGST Act, the Court held that provisional attachment ceases to exist after the expiry of a period of one year from the date. Further, the Court held that when such an order is being communicated to the affected person whose bank account is attached, mere notings in the file of the concerned officer cannot constitute an order without a formal order as the law may mandate being passed.
In this judgment, passed on June 30 2023, the Bombay High Court clubbed three cases in the same judgment, which includes Bharat Parihar v State of Maharashtra, Kishan Lal Bunkar v State of Maharashtra and Sunbright Designers Pvt. Ltd. V State of Maharashtra And Ors.
a. In the case of Bharat Parihar v State of Maharashtra, the Court allowed Writ Petition no. 3742 of 2023, while stating that mere notings in the file of the concerned Officer cannot constitute an order without a formal order as the law may mandate being passed. It also held that a letter sent by the respondent to the bank to retain provisional attachment of an account cannot be viewed as an order provisionally attaching the petitioner’s bank account under Section 83(1) of the CGST Act. The Court also distinguished the case of Shrimati Priti Amrutlal Gandhi vs. State of Gujarat on the grounds that a fresh order as per the mandate of the law was passed in the case, while the same was not done in the present case.
b. In the case of Kishan Lal Bunkar v State of Maharashtra, the Court reiterated its stance taken in Writ Petition no.3742 of 202, stating that a letter provisionally attaching the petitioner’s bank account is rendered illegal and invalid by virtue of the provisions of Section 83(2) of the CGST Act and directed the parties to including the bank, to act on authenticated copy of the order.
c. In the case of Sunbright Designers Pvt. Ltd. V State of Maharashtra And Ors., the Court held a similar stance expressed in the above writ petitions and further held that the respondents in this case had the jurisdiction to resort to the provisions of Section 83 of the Act with respect to the petitioner located in Chennai, since the powers conferred under Section 83(1) of the Act can be exercised in respect of a person, who may not be within the territorial jurisdiction of the Maharashtra GST Authorities. Similarly, the Court also held that the Commissioner for the purposes of exercising power under Section 83 read with Section 122(1-A) of the CGST Act, would have a power to take action against “any person” as Section 122(1-A) mandates, even if such a person is outside his jurisdiction.
In PVR Ltd v M/S Proetus and ors, the Court held that merely because the details of the receiving bank are within the jurisdiction of another city, the fact alone would not mean that the amounts are payable in that city and that a part of the cause of action had arisen in that city.
In Nagesh Krishnaji Koyalkar v. Balaram Ashok Manjarekar and Ors., the Court held that in cases where there are multiple heirs who have inherited tenancy rights and there is an admission by the landlord regarding such entitlement, a single heir cannot seek tenancy rights in his favor only under Order XII Rule 6(1) of the Code of Civil Procedure, 1908, as this would be prejudicial to the rights of the other legal heirs.
In the case of Cheerful Trade & Realty Developers (P) Ltd. v. DBS Bank India Ltd, the Court directed a defendant to file an undertaking to bring back a quantum of ₹ 43.58 lakhs with interest, which in the instant case, was the point of contention as the said amount was allegedly acquired by selling certain quantity of shares pledged by the plaintiff to the defendant, as deduced by the Court on a prima facie view of the evidence submitted. The Court also placed an interim injunction on the remainder of the unsold shares and expedited the hearing of the commercial suit filed.
In the case of Ved Prakash Ahuja v. Roma Prakash Ahuja, the High Court observed that despite the petitioners having made efforts to obtain a certificate from the Income Tax Department for the authenticity of evidence under Section 65-B of the Indian Evidence Act and despite moving an application to the Trial Court for issuance of a direction to the Income Tax Department for the necessary certification, these documents were not given. Despite this, the Trial Court had erroneously observed that the petitioner had not taken any steps to procure the certificate, the High Court noted. The High Court, therefore, quashed the order by the Trial Court and directed the Income Tax Department to provide a proper certificate, citing the case of Arjun Panditrao Khotkar. It also stated that these observations were merely in respect of the petition for submission of evidence and would not constitute a finding on the merits of the case.
In Welcome plywood pvt ltd v. The Income tax officers and ors, the Court relied on its earlier judgment in Ananta Landmark P. Ltd v Dy CIT and quashed the notice issued by the respondent on the ground that reopening of assessment merely on account of the “change of opinion” of the Income tax officer was not justified. The Court further relied on the Supreme Court judgment in ITO Vs Lakhmani Mewal Das to hold that the requisite live link or nexus between the alleged transaction and the belief of escapement of income too did not exist. The Court also noted that the respondent failed to furnish particulars of the information available to prove that the income had escaped assessment, ultimately leading the Court to believe that it was a “change of opinion."
In Bharat Petroleum Corporation Limited v. Assistant Director of Income Tax and ors, the Court quashed and set aside the refund adjustment from the previous year with the successive year's refund by the respondent. The Court relied on its earlier judgment in Hindustan Unilever ltd v DCIT to hold that when a stay is granted under Section 220(6) of the Income Tax act, it would continue till the disposal of the appeal and not just for a period of six months. Further, the Court relied on Jetprivilege ltd v Dy CIT and BPCL v ADIT to hold that the failure to give intimation in writing prior to setting off the amount payable against the amount to be refunded is fatal.
In Prabhat Properties private ltd v Assistant Commissioner of Income and ors, the Court relied an earlier judgment in Ananta Landmark P. Ltd v Dy CIT and quashed the notice issued by the respondent on the ground that reopening of assessment merely on account of the “change of opinion” of the Income tax officer was not justified. The Court further relied on the Supreme Court judgment in ITO Vs Lakhmani Mewal Das to hold that the requisite live link or nexus between the alleged transaction and the belief of escapement of income too did not exist. The Court also noted that the respondent failed to furnish particulars of the information available to prove that the income had escaped assessment, ultimately leading the court to believe that it was a “change of opinion”. In this judgment, the Court also noted that the Assessing Officer, while considering the principle of ‘shifting of onus’ under the Evidence Act, must necessarily carefully examine the material and then give particulars and reason/s to disbelieve the assessee, whilst rejecting the objections, to shift the onus on the assessee. A failure to do so does not discharge the onus shifted upon the Assessing Officer by the assessee when the assessee submits all documents and explanations, the Court said. Such a failure would also mean that the Court has no reason to disbelieve the assessee, the Court said.
In Dhirendra Bhupendra Sanghvi v Assistant Commissioner of Income Tax circle and ors, the Court held that a notice and all consequential proceedings in the name of a dead person or the reopening of assessment of a dead person is null and void in law. Further, the requirement of issuing a notice to a correct person is not merely a procedural requirement but a condition precedent for a notice to be valid in law. The Court additionally pointed out that if the concerned officers follow settled law and abstain from issuing notices which are null and void, this would help courts which are already overburdened and would achieve the ultimate object of simplifying the tax administration, easing compliance and reducing litigation.
In Pr. Commissioner of Income Tax v Kimberly Clark lever Private ltd, the Court first observed that if the assessing officer believes that there has been an escapement of income, such belief must be based on some material on record. The Court emphasized that the arm’s length price determination occurs during assessment proceedings as per Section 92C and Section 92CA of the Act. According to Section 143, the Assessing Officer, in written form, assesses the total income or loss and determines the amount payable or refundable. The calculation of income from international transactions, considering the arm’s length price, is mandated during these proceedings. The Assessing Officer can refer to the TPO under Section 92CA only post-scrutiny selection. The CBDT guidelines affirm that TPO references for international transactions should only be made during these assessment processes. The Court further noted that the Assessing Officer's reference to the TPO for determining the arm's length price regarding the international transaction was inappropriate because there were no ongoing assessment proceedings. Consequently, the Tribunal's decision, stating that the reference was invalid due to the absence of pending assessment proceedings, was deemed to be accurate.
In the case of Tata Consultancy Services Ltd v Deputy Commissioner of Income Tax and Ors, the Court held that an amount paid to settle a dispute, claimed as an expense in the balance sheet, cannot be classified by the Assessing Officer as a penalty, especially when there is no cogent material to support the claim. The court relied on the case of Jindal Photo Films Ltd. V/s Deputy Commissioner of Income Tax and stated that the Assessing Officer had wrongly believed that payment made towards settlement of a class action suit was a payment towards a penalty imposed. The Court also said that without credible evidence to back the claim, the Assessing Officer could not classify the payment made to settle disputes as income which had escaped assessment and subsequently, could not reopen assessment proceedings for the same.
In the case of CIT v. Colgate Palmolive Marketing SDN BHD, the Court dismissed the appeal and upheld the order of the ITAT. It upheld the reasoning of the ITAT, which stated that payments made from the defendants to the petitioner could not be classified as any form of royalties under domestic laws or the Double Taxation Avoidance Agreement (DTAA). It also concurred with the findings of the ITAT that the payments made by the defendants to access a specialized system does not amount to transfer of any IP rights or consideration paid for right, property and information, and hence could not be classified as a royalty under Explanation 5 to Section 9(1)(vi). The Court also held that the payment made to the petitioner could not be classified as as royalty under clause (v) to Explanation 2 to Section 9(1)(vi) since there was no transfer of copyright in the same, citing the case of Engineering Analysis Centre of Excellence Private Limited Vs. Commissioner of Income Tax and Anr. The Court stated that the transaction could not fall under the ambit of royalty in DTAA and the ITAT had correctly held that the assessee did not have a permanent establishment in India. Hence, payments received by the assessee (Colgate Palmolive Marketing) from Colgate Palmolive (India) Limited (CPI) towards use of a Systems Applications and Product system (SAP system) was not taxable in India.
In the case of Prakash B. Kamat v. CIT, the Court set aside the order of the Income Tax Officer for recovery of dues from the petitioner. It referred to the cases of Satish D. Sanghavi v. Union of India and Narinder Singh v. Union of India, which stated that in the absence of any specific provisions in the statute, duty or penalty liability of the company cannot be recovered from its director who is not personally liable towards liability of the company. The Court stated that the term "gross neglect" in Section 179(1) of the Companies Act was to be viewed in the context of non recovery of tax dues of the company and not with respect to general functioning of the company, as held by the cases of Maganbhai Hansrajbhai Patel v. Assistant CIT and Gul Gopaldas Daryani v. ITO. The Court also stated that the petitioner fell under the exceptions under Section 179(1) since they had placed sufficient material on record to show that they were not connected with the company after their removal from directorship and that the Income Tax Officer had not adequately considered the same or provided any evidence to the contrary to the Court.
In Manjula Rita and ors v Principal commissioner of Income Tax and ors, the Court held that before passing an order under Section 179 of the Act, the Assessing Officer should have made out a case as required under Section 179(1) of the Act that the tax dues from the company cannot be recovered. Only after this requirement is satisfied would the onus shift on any director to prove that non recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company.
In SLS Energy PVT Ltd v Income Tax Officer, the Court held that even in a case where no scrutiny assessment has taken place under Section 143(3) of the Act, reassessment can be ordered only if the Assessing Officer has reason to believe that income chargeable to tax had escaped assessment. The Court placed reliance on the apex court’s decision in Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. to note that that notice for reopening an assessment under Section 148 of the Act could only be justified if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment.
In Shashikiran Janardhan Shetty v Assistant commissioner of Income Tax, the Court held that it is a settled principle of law that in incase of reopening of assessment beyond the period of four years, the Assessing Officer has to satisfy the jurisdictional condition that there was failure to disclose fully and truly the material facts. The Court also noted that it is a settled principle that the jurisdiction exercised under Section 148 of the Act by the Assessing Officer has to be tested on the touchstone of the reasons recorded and can neither be improved subsequently, nor through any addition made in the reply or in the subsequent pleadings.
In Nuclear Power corporation India ltd v Deputy commissioner of Income Tax-circle, the Court affirmed the view held in Ananta Landmark P. Ltd v Dy. CIT where the Court noted that where assessment was not sought to be reopened on the reasonable belief that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income, but rather where assessment was sought to be reopened on account of change of opinion of the Assessing Officer (AO), the said reopening was not justified. The Court also upheld the view that where primary facts necessary for assessment are fully and truly disclosed, the AO is not entitled to reopen the assessment on a change of opinion. The Court added that while considering the material on record, where one view is conclusively taken by the AO, it would not be open for the AO to reopen the assessment based on the very same material because of another view.
In Hindoostan Mills ltd v Deputy commissioner of Income Tax and ors, the Court opined that claiming losses of an amalgamating company is not allowable as per the provisions of the Act as such losses have already lapsed and it is within the ambit for the revenue audit, an agency responsible for identifying the revenue leakages, to reopen proceedings. The Court further relied on CIT v Kelvinator of India Ltd to hold that an exercise to review the original assessment order based on a ‘change of opinion’ is impermissible.
In Maharashtra State Power generation v Assistant commissioner of Income tax, the Court placed reliance on Acron Developers (P) Ltd. vs DCIT to observe that unless any income has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, the AO has no jurisdiction for reassessment. Furthermore, the Court relied on Ananta Landmark P. Ltd v Dy. CIT to note that where assessment is only sought to be reopened on account of a change of opinion of the AO, the reopening would not be justified. It was further held that where primary facts necessary for assessment are fully and truly disclosed, the AO is not entitled to reopen the assessment on a change of opinion.
In Citibank NA v Joint commissioner of Income Tax and ors, the Court held that under Section 148 of the Act, where the notice has been issued after the expiry of four years from the end of the relevant assessment year, the onus is on the Assessing Officer to show that income chargeable to tax has escaped assessment by reason of the failure on the part of assessee to disclose fully and truly all material facts.
In M/s Jk Industries v Commissioner of Income Tax and ors, the Court reaffirmed the view taken in Commissioner of Income Tax v/s. Needle Industries Pvt. Ltd which held that the expression “amount” in the earlier part of Section 244 (1A) of the Act would refer to not only the tax but also the interest, and that the expression “amount” is a neutral expression and cannot be limited to the tax paid in pursuance of the order of assessment. Further, in the context of Section 244(1A) of the Act, the expression “tax” would include interest also and the definition of tax under Section 2(43), meaning “income tax”, cannot be applied in the context of Section 244(1A) of the Act. The Court also noted that Section 240 of the Act makes no distinction between refund of tax or penalty paid and refund on other amounts collected.
In the case of Serum Institute of India (P) Ltd. v. Yohan Tengra, the Court held that the statements published by the defendants can to be looked into by the Court, even at the interlocutory stage as per the judgment in Shree Maheshwar Hydel Power Corporation Ltd and that the materials produced by the plaintiffs and defendants on record needed to be tested in order to prove defamation. The Court stated that in the case of Sahara India Real Estate Corporation Limited was inapplicable since the olaintiffs had not sought restraint orders on the ground of prejudice to any legal proceeding and/or administration of justice. The Court also rejected the contentions of the plaintiffs on defamations via pleadings and stated that statements made in pleadings do not amount to publication and cannot be made a subject matter of a sivil suit for defamation, while citing the case of Miss Kamalini Manmade vs. Union of India. It directed the defendants to restrain from publishing any defamatory material and delete any defamatory videos pending the final hearing and disposal of the suit.
In Vishal @ Sagar Haribhau Nanaware and Ors. vs State of Maharashtra, the accused were convicted under Section 302 (murder) read with Section 34 (offence committed with common intention) of the Indian Penal Code. After analyzing the evidence of the eye-witness, the Court concluded that they can be relied upon and that the mere omission of their mention in the FIR cannot falsify their presence on the spot of the incident. The Court accepted the eye-witnesses as natural witnesses as the evidence given by them corroborated each other’s testimonies. On the question of non-mention of an accused on an inquest report, the Court relied on Sambhu Das vs State of Assam and held that such an error is not fatal to the case as the inquest is not substantive evidence. A mere non-mention of the name does not imply that FIR was prepared after the inquest or there is a false implication. The Court differentiated the circumstances of this case with that in Nandlal vs State of Chattisgarh and Balaka Singh vs. State of Punjab. The Court further relied on Bhag Chandra Vs State of Madhya Pradesh and held that minor discrepancies in oral evidence are insignificant and that a court cannot adopt a hyper-technical view. Further, the ocular evidence was supported by the evidence in the post-mortem report. On the question of proof of motive in a case which rests on eye-witness, the Court relied on Sheo Shankar Singh vs State of Jharkhand and held that motive strengthens the evidence of the eye-witnesses. Considering all these factors, the Court held that the prosecution has established the guilt of the accused beyond reasonable doubt and dismissed the appeal of the accused.
In the case of Dr. Ravindra v. Avinash Vithal Rananavare, the Court dismissed the suit stating that the facts of the case, especially with respect to the preparation and execution of the will, indicated several suspicious circumstances which were not quelled by the plaintiffs. The Court cited the case of H Venkatachala Iyengar v. B. N Thimmajamma and others and stated that there was no evidence given by the plaintiffs that the testator had signed the will after understanding the nature and effect of the dispositions made therein and thereafter affixed his signature out of his own free will and accord. Merely witnessing the act of the testator signing the will was not sufficient to prove the above said requirements, the Court said. The Court also took into consideration several other factors such as several witnesses being close friends of the plaintiff, the exclusion of the defendants from the will, the plaintiffs as major beneficiaries in the will and inconsistent testimonies from witnesses, all of which contributed to suspicious circumstances. This placed a greater burden on the plaintiffs to quell the same, which was not done to the satisfaction of the Court.
In Sunlight Cable Industries v/s. The Commissioner of Customs NS II And 2 Ors, the Court placed reliance on Amit Cotton Industries vs. Principal Commissioner of Custom to hold that where the petitioners are not availing the double benefit of the IGST refund and a higher duty drawback, the petitioners would be entitled to a refund of the IGST paid on the exports in question.
In Dharmendra M Jani v Union of India and ors, the Court held the provisions of Section 13(8)(b) and Section 8(2) of the IGST to be legal, valid and constitutional.
In Eknath Shankar Kamble v. Chief Executive Officer, Zilla Parishas, Sangli and Ors., the Court was called to consider a case of a retired government employee who was earlier suspended on corruption charges but who was later acquitted of all charges without disciplinary action. The Court said that his period of suspension must be treated as the period spent on duty for the purpose of retiral benefits as the said suspension period will be counted towards qualifying service under Rule 43 of the Maharashtra Civil Services (Pension) Rules, 1982.
In Hemant Dhirajlal Banker vs State of Maharashtra, a case for extortion and organized crime was filed against the appellants. Firstly, the Court held that the actual delivery of property is an essential ingredient to constitute the offense of extortion under Section 383 of the Indian Penal Code. Secondly, the Court held that if there is not continuing unlawful activity (as defined under Section 2(1)(d) of MCOC Act) committed either individually or jointly, either as a member of an organized crime syndicate or on behalf of any such syndicate, there cannot be any offense of organized crime under Section 3 of the Act. Thirdly, the Court held that unless there is a prima facie ‘commission of a crime’, the presumption of organized crime as per Section 3 of MCOC Act, fails. Based on all these reasons, the case against the applicants was squashed.
In the case of Nutan Jaibharat Co-operative Housing Society v State of Maharashtra and Ors, the High Court directed a cooperative society to conduct a Special General Body Meeting under the prescribed bye-laws and rules, with an officiating Officer of the Court present. The Court also ordered for the video-taping of the proceedings and the minutes of meetings, which was to be distributed to all members. The Court further held that the various objections of the intervenors, such as the financial inability of the developer to construct the building, the non-submission of solvency certificate by the developer and the favorable allocation of high value flats to certain members of the society, would needed to be addressed on their own merits at the General Body Meeting.
In Adhyatma Bandhu Gupta and Anr v. Division Joint Registrar & Ors., the Court held that for the registrar to order the disqualification of a member under Section 75(5) of the Maharashtra Co-operative societies Act, 1960, the registrar must first arrive at a finding that a default has been committed under Section 75, subsequent to which the registrar must firstly provide an opportunity to the person who would potentially be affected, to show reasonable cause for non-compliance. Secondly, the registrar must weigh the justifiability of the reason provided such a person and record a finding. Basis of this, the registrar may choose to not pass any order of disqualification or penalty or lessen the measure of the remedial action, the Court said.
In the case of Rajendra v. State of Maharashtra, the Court set aside the order of the Administrative Tribunal which directed the respondent to expeditiously start working in their newly assigned post, even though the petitioner was already occupying the said post. The Court held that the Tribunal had acted in excess of its jurisdiction. The act of the Tribunal in transferring the respondents and directing them to start work, even when the case was still pending final hearing, was negatively received by the High Court, citing the case of Union of India v. Deepak Niranjan Nath Pandit. Citing the case of Dorab Cawasji Warden v. Coomi Sorab Warden, the Court distinguished the present case on the facts that there was no irreparable injury caused to the respondents if they were not granted the direction by the Court.
In Acme Enterprises vs Deputy Registrar, Co-operative Societies and Ors. the dispute was the remit of the authority exercised by the competent authority under Section 11 of Maharastra Ownership Flats Act, 1963, where they rejected the plea of the petitioners for a lack of conveyance on a deemed property and ruled in favour of the respondents’ ownership claims on the disputed property. The Court dismissed the petition and held that the issue of execution of conveyance of disputed property can form a subject-matter that can be dealt with by the competent authority. The dispute in this case was centered around Section 11 of Maharashtra Ownership Flats Act, 1963, which mandates a promoter to take all steps to complete his title and convey it to the flat purchasers. The dispute was the remit of the authority exercised by the competent authority under this section, which is supposed to step in when the promoter fails to exercise his duty. The Court relied on Mazda Construction Company and ors. vs. Sultanabad Darshan CHS Ltd and held that the competent authority cannot convey more than what the promoter had agreed to convey under the agreement executed and that the competent authority is only required to consider the extent of obligations incurred by the promoter and whether he had committed any default in conveyance. The Court further reiterated that the competent authority cannot delve into title. Thus, the court set out the remit of inquiry of the authority empowered under MOFA, 1963.
In Ajay Ram Thorat v State Of Maharashtra and Ors, the Court relied on the Supreme court judgment of Deepak v State of Maharashtra and ors in holding that when the competent authority passes an order of externment of a maximum period of two years, the order must disclose the application of mind by the authority and the order must record its subjective satisfaction about the necessity of passing an externment for the maximum period of two years based on material on record. If the order is passed without recording subjective satisfaction on the necessity of the externment, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India, the Court said.
In Shahazada Alisagar Bhaisaheb Kalimuddin and ors v. Joint Charity Commissioner, Greater Mumbai & Ors. , Shaikh Fakruddin Bhanpurwala v. Shabbir Husaini Chunawala & Ors and Shaikh Haiderbhai Roopwala v. Shabbir Husaini Chunawala & Ors, the Court held that the procedure under Section 41D(2) required service of notice on the Trustee / person charged. Such service cannot be made on an employee / person available in the Trust office and such service of notice cannot be presumed to have been served upon the Trustee / person charged. Further, the Court held that all charges against the Trustee / person are required to be adjudicated after serving the Trustee / person and hearing the said Trustee / person under the provisions of Section 41D.
In, BrihanMumbai Electric Supply & Transport Undertaking (BEST) vs. Best Jagrut Kamgar Sanghatana, BEST had hired the respondents initially on a temporary basis. It was alleged by the respondents that they were hired on a temporary basis despite the work being of a perennial nature and ‘artificial break’ was given to them after 6 months to deprive them of permanency and other welfare benefits. This artificial break constituted unfair labour practise, they said. BEST countered these arguments by raising the issue of limitation as the events took place 12-13 years ago. The Court accepted that giving 1-day break in service post 6 months’ service on the temporary post constitutes unfair trade practise. On the question of delay in filing of the complaint, the Court held that it was a continuing wrong as the denial of privileges to the respondents constituted a continuing injury. The Court reasoned that because of the renewal of temporary status, the employees were denied increments and other privileges. The Court relied on M.R Gupta vs Union of India and Road Transport Corporation & Others vs. Premlal Khatri Gajbhiye to hold that the suit was not barred by limitation.
In Abbott Healthcare Pvt Ltd. Vs Maharudra Chikane and Ors, the respondents were terminated from services by a private limited company which was blamed on poor work performance. It was contended that this termination was in violation of statutory norms and was entirely punitive. The dispute before the court was whether the Labour Court at Mumbai had appropriate territorial jurisdiction to deal with the case when the employees allegedly did not fall under its jurisdiction. On the question of whether the registered office of the employer will have concurrent jurisdiction of an issue, despite the employee not residing in that location, the Court held that there is no hard and fast rule and that every instance must be decided on facts of the case. Thus, the Court directed the labor court to frame this as a preliminary issue in the case before deciding on merits.
In the case of Moinuddin Pasmiya Shaikh v Slum Rehabilitation Authority, the Court listed the matter for July 24, 2023 and directed the advocates for the petitioners to tabulate claims for rent and allotment of houses under the Maharashtra Slum Areas Act, 1971, against the Slum Rehabilitation Authority and other defendants after hearing multiple interim applications and petitions regarding the wholesale trafficking and illicit dealing in flats redeveloped by the Maharashtra Slum Redevelopment Authority, which included free-of-cost slum rehabilitation tenements. The Court also made certain observations on the Act and made recommendations to amend the same, such as implementation of a lock-in period for allottees, increased usage of biometric and Aadhaar, etc. The Court also directed that these suggestions be forwarded to the Advocate General and Principal Secretary, Housing.
In the case of Allan Sebastian D'Souza v. Maharashtra Slum Areas, the Court held that merely issuing a notification in the Official Gazette under Section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971s not adequate to declare an area as a slum. The Court held that a declaration of an area as a slum has to be published under each of the "other manner of Publication of Declaration" as defined in Rule 3 of the Slums Rules and that only in rare instances, when it is not practicable to follow the rules, it may not be followed after giving the reasons in writing. The Court also rejected the respondents' contentions that all procedures were presumed to be followed under Section 114 of the Evidence Act. The Court said that this presumption was rebuttable and that the Slum Authority had not disputed the fact that the notice under Rule 3 was not served. It distinguished the cases of Gopal Narain V/s. State of UP, Harpal Singh V/s. The Union Territory and Pratap Singh Bahadur V/s. Manmohan Deo from the case at hand and stated that there was sufficient material to rebut the presumption under Section 114 of the Evidence Act, while dismissing the petition.
In Prabhu Anant Lungase and Anr. V. Dattatraya Pralhad Kamble and Ors., the Court held that once an exemption certificate is obtained by the landowners under Section 88-C of the Maharashtra Tenancy and Agricultural Lands Act, 1948, an application for possession under Section 33-B of the Act will fail if the landowners are employed or simply are not in need of the income, which can be earned from cultivation of the land by themselves.
In Kondiba Dnyanu Dongale v. Kashibai Ramrao Nigade, the Court held that the questions concering economic holding and annual income of the legal representatives of the certified landlord under Section 88C of the Maharashtra Tenancy and Agricultural Lands Act, 1948, need not be inquired into, in the event that the certified landlord passes away during pendency of the proceedings and before delivery of possession under Section 33B of the Act and that a mere inquiry regarding compliance with conditions laid down under Sub Section 5 of Section 33B is sufficient.
In Gitabai Namdev Jadhav and ors v Kisan Tulsiram Aware and ors, the Court observed that the definition of “tenant” under the Act of 1948 included contractual tenant, deemed tenant, protected tenant and permanent tenant. The Court further noted that for a person deemed to be a tenant, such a person must be in lawful cultivation of the land belonging to another person. If such land is not cultivated personally by the owner, such person should not be one of the excluded categories, that is, a member of owner’s family, a servant on wages and a mortgagee in possession, the Court added.
In the case of Shankar Shripad Latkar v. Dattatraya Haribhau Borawake, the Court held that once a notice of termination of tenancy satisfies the requirements of Sections 14, 25 and 27 of the Maharashtra Tenancy and Agricultural Lands Act, 1948, it is deemed to be a valid termination notice, which was proved by the petitioner. The Court also held that, on the basis of circumstantial evidence, the payment of rent should be complete and done via a single mode of transfer. In the instant case, there was no strong evidence to substantiate the receipt of money by the landlord and hence, it was rejected. The Court also stated that there needs to be sufficient material on record to prove 3 years of payment of rent under Section 25(2) of the Maharashtra Tenancy and Agricultural Lands Act, 1948, which was not present. Hence, the contentions were rejected.
In the case of SK Trading v State of Maharashtra, the Court held that an appeal against a composite order given under Section 26(6A) and (6B) of the Maharashtra VAT Act also includes the ability to appeal against orders pertaining to interest. It cited the case of Arcot Textile Mills Limited vs. Regional Provident Fund Commissioner and Ors. in support of the same and directed the tribunal to consider the petitioner’s stay application qua the challenge to the interest component.
In Nikhil Uttam Undre v. State of Maharahstra and Ors., the Court held that a member of a village panchayat can incur disqualification under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959, if it is found that such member’s family has encroached upon government land and there is no material on record to prove that such a member lives separately from his family, which has ration cards with respect to the property on the encroached land.
In Amit Tanaji Gote v. State of Maharashtra and Ors., the Court, relying on the judgment of the Supreme court in the case of Shibhabai Narayan Shinde and Anr v. Divisional Commissioner and Ors. held that in case a member is disqualified under Section 14-B(1) of the Maharashtra Village Panchayat Act, 1958, such person has two options. The member can either to invoke his option under Section 14-B(2), which empowers the State Election Commission to revoke disqualification. Or, the member could invoke Section 16(2) of the Act, which provides that anyone can filed an appeal before the State government against the decision of a collector in case of vacancy caused by such disqualification. The Court, in this context, held that an order passed by the divisional commissioner (earlier the competent authority under Section 16, and whose jurisdiction was ousted vide the notification released by the commission empowering the commission itself to hear appeal under Section 14-B(2) of the Maharashtra Village Panchayat Act, 1958), is sufficient grounds to remand the matter to the competent authority.
In Abasaheb Anandrao Tambe v. Kunal Arun Bendbhar & Anr., the Court held that a member of the panchayat can be disqualified under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959, on account of encroachment over government land or public property by his family members or legal representatives, even is such a member claims that he has no concern with the said encroachment. The Court reasoned that non-disqualification of such a member would defeat the avowed object of the legislature in prescribing a disqualification on that count, as the panchayat member may then choose to commit encroachment indirectly by immediate family members.
In Sangita Pandurang vs Additional Commissioner, Pune, the Court held that in a Sarpanch election, the Presiding officer is bound to hold elections by secret ballot only if the members demand for it. Otherwise, the election must happen via voice vote. The dispute concerned the election of Sarpanch and deputy Sarpanch of the Gram Panchayat. it was contended by the petitioners that the Presiding officers did not conduct himself in accordance with Maharashtra Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964. The rules required him to conduct the election of Sarpanch by show of hands. However, if the present members demanded for the same, then only voting was to be by a secret ballot. The Court held that the Presiding Officer does not have the liberty to conduct elections and that he is bound by Section 10 of the said Act. Thus the presiding officer cannot call upon the members present in the meeting to vote for the Sarpanch by a secret ballot unless this specific demand has been made by any member.
In the case of Trustees of the Port of Bombay v. Sayed Abdul Hamid Mohammed Shah Kadri, the Court directed the Court Receiver to take physical possession of the suit building on August 5, 2023, excluding the west wing, first floor, in the possession of ACI. The Court also held that the appointment of Court Receiver on a suit property does not imply that the property vests in the Court Receiver and that the rights of the third parties are subordinated to the rights of the parties to the suit, as stated in the case of Anthony C. Leo V/s. Nandlal Bal Krishnan and Ors. The Court also stated that when the the receiver is in actual possession of the property, no one can disturb possession of the Court Receiver and the Court may hold any person who disturbs the possession of the receiver guilty of committing contempt of court. However, there was material on record pointing out that Mr. Kadam, an alleged trespasser, was in possession of the suit building for 50 years since the Court Receiver and the Union of India declined to take possession of the suit property during the intervening period. The Court gave an opportunity to Mr. Kadam to claim possession title over the suit building and his entitlement to continue to occupy the portions of the suit building by instituting appropriate proceedings within a period of two months from the date of the judgment. It cited the case of Atul D.Sohni and Anr. v. B.M.Choksey and Ors, and observed that although the Court Receiver's powers were violated, the custodia legis (when property is taken under the custody of the court) of the property remained.
In the case of Shapoorji Pallonji & Co. (P) Ltd. v. New India Assurance Co. Ltd, the Court upheld the order of an Estate Officer who allowed the Amendment Application of the respondents' claim for damages in respect of their re-evaluated scheme for claiming rent arrears from the petitioner. The Court also held that the mere acceptance of the respondents' Amendment Application would not amount to a decision by the Estate Officer since the petitioners should also be given a fair chance to refute the claims put forward by the respondents and no prejudice should be caused to the petitioners. The Court held that the claims put forth by the respondents were in line with Rule 8 of the Public Premises Rules, 1971 and directed that all contentions of the case were to be decided by the Estate Officer.
In Reliance General Insurance Co. Ltd. v. Shri Intaj Mainuddin Shaikh and Ors., the Court held that if the minimum amount of one lakh rupees is not met under Section 173(2) of the Motor Vehicle Act, 1988, an appeal is not maintainable against an award of the claims tribunal.
In IFFCO Tokio General Insurance company v. Shankar Rane and ors, the Court placed reliance on the decisions in IFFCO Tokio General Insurance Company v. Smt Namrata Namdeo Vishe and ors to hold that in case where the driver does not possess a valid driving license and there is a breach of policy conditions, a pay and recover order can be passed in case of third party risks. In its reasoning, the Court relied on the Supreme court decision of National Insurance Company ltd v. Swaran Singh and others, to hold that a very heavy burden is placed on the insurance company to prove the breach of policy on the ground of invalidity of driving license.
In Tiscon Reality Pvt ltd v C.G Edifice Office and ors, the Court relied on Motilal Laxmichand Salecha HUF Vs. M/s Mour Marbles Industries Pvt. Ltd. & Ors, to hold that once a party issues a cheque for repayment of a loan, then the liability under the loan is substituted by the liability to honor the cheque. In a sense, the original liability to pay the loan is discharged by means of execution of cheque and in the event such cheque is not honored, a new liability arises under the provisions of the Negotiable Instruments Act, the Court added.
In the case of Suneel Dattatraya Mogre v. Prabhakar Baburao Thorat, the Court granted the defendant leave to defend the suit on depositing a sum of ₹ 50 lakhs in a matter concerning the dishonor of a cheque. The Court rejected the defendant's contention that the plaintiff could be defined as a "moneylender" under the Commercial Courts Act. It distinguished the judgments of Parikh Aluminex Limited v. M/s. Ashok Commercial Enterprises and Mour Marbles Industries Private Limited v. Motilal, Laxmichand, Shalech HUF from the present case, stating that the instant case was not for the recovery of a loan but for the dishonour of a cheque. The Court also held that Section 139 of the Negotiable Instruments Act would apply even if the defendant gave over a signed blank cheque to the plaintiff. The Court added a caveat that the presumption under Section 139 was a rebuttable presumption.
In, Mrs. Usha Hiralal Kanojia vs Mrs. Jayshree Mangesh Chauhan, the respondent was convicted for offence punishable under Section 138 of the Negotiable Instruments Act. The appeal before the Court was on the question of the importance of drawing a presumption under Section 139 of the Act and when it can be rebutted. The Court relied on the case of Basalingappa V. Mudibasappa, which summarized the principles on presumption. It is to be presumed that the cheque was issued for the discharge of a debt but this conclusion is rebuttable. The accused can raise its own evidence to raise probable defense. The Court held that the respondent was successful in rebutting the claims under this Section. The Court reiterated that the law does not provide for situation where the complainant adduces further evidence after the accused has adduced evidence. The former has to foresee what kind of evidence is produced by the accused and then prepare to rebut the same, the Court said. It cannot just depend on the presumption under the Act, the Court added. Hence, the court dismissed the appeal.
In Ranjit Vardichand Jain vs Nirmal Gagubhai Chhadwa, the Court held that rights and obligations provided in an MoU constitutes a concluded contract between the parties. The plaintiff before the Court had filed an application to effectuate an MoU where he purchased development rights in the joint development of a property carried out by the defendant. However, the defendant sold this property further. The Court ruled in favour of the plaintiff and upheld the validity of the provisions of the MoU. Mere requirement of execution of subsequent documents in the MoU does not negate the entire contract, the Court observed, as held in Chairman, LIC v. Rajiv Kumar Bhaskar. On the question of delay in filing a restoration suit in the civil court, the Court held that due to the plaintiff having performed his obligations, a mere delay cannot defeat his claim of specific performance of a contract. The Court relied on Bastion Constructions v.Nusli Wadi to hold that a delay does not amount to abandonment of the plaintiff’s rights.
In the case of Mauj Mobile (P) Ltd. v. Mohalla Tech (P) Ltd, the Court found the trademark "Moj'' to be deceptively similar to the already-registered trademark "Mauj" and restrained the defendants from using the "Moj" mark pending final disposal of the suit. The court rejected the contention that the 'Mauj' trademark was overbroad and distinguished the cases of Technova Tapes (I) Pvt.Ltd. v. TechNova Imaging Systems Pvt. Ltd., Shammi Narang & Anr. v. Pindrop Music App Private Limited. and Veerumal Praveen Kumar v. Needle Industries (India) Ltd. on facts. The Court also held that the the two trademarks 'Moj' and 'Mauj '' sounded deceptively similar and cited the case of K.R. Chinna Krishna Chettiar Vs. Sri Ambal & Co., Madras & Anr, to state that even if the defendants put an emoji, it is still deceptively similar to the already registered trademark. The Court also found the balance of favor tilted in convenience of the plaintiffs, citing the case of Bal Pharma Limited Vs. Centaur Laboratories Limited and opined that if interim reliefs were not granted, the plaintiff would suffer grave losses.
In the case of Sudha Aziz Jhaveri v. Bharat Amarchand Doshi, the Court directed that a Court Receiver be appointed on the suit property for leasing it out to prospective lessees or licencees in accordance with the law. The Court stated that there was no substantive material placed on record by the defendants to back up their claim of holding 100% rights in the suit property and that the defendants were not taking any steps to preserve or utilize the suit property to its fullest. The Court stated that the case of Bombay Forging Ltd Vs. M/s. Manilal & Sons would not apply since no proof of tenancy had been submitted by the defendants.. The Court also rejected the request for a stay on the proceedings, which were requested by the defendants.
In Girish Vinodchandra Dhruva and Ors. v. Neena Paresh Shah and Anr., the Court held that a grant of specific performance cannot be refused by a court under its discretion on extraneous considerations and sympathetic considerations. Once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established, then the court has to grant relief for specific performance. Subsequent rise in prices should not be treated as hardship so as to entail a refusal of a decree for specific performance as a rise in the price is a normal change and a decree for specific performance cannot be reversed on this ground alone.
In Gajanan Mahadeo Potdar v. Govind Maruti Jare and Ors., the Court held that even if there is a subsequent clarification application on an order passed by the court, so long as the court has clarified that there will be an injunction in favor of the applicant of the injunction, the defendants to the original injunction application cannot sell the suit property on grounds that there was no clarification finalized regarding the injunction.
In Ashutosh Yogesh Maneklal v. Lina Y. Maneklal and Ors., the Court held that liquidation of assets to meet a statutory dues should not be allowed if there is a specific direction by the court or tribunal to accumulate the receipts in a separate account and to appropriate the proceeds for the discharge of the said statutory liability.
In Kedar Darshan Co-operative Housing Society Ltd. v. Messrs Nooman Developers, the Court granted an interim injunction till the disposal of a suit. The case concerned the breach of a development agreement. The Court found that the plaintiffs had made out a prima facie case for seeking injunction so that no third party rights were created in the suit property.
In Sachin Namdev Wagdaye v Maharashtra housing area and Development authority, and ors, the Court relied on the Supreme Court judgment in Maharashtra Public Service Commission v. Sandeep Shriram Warade to hold that the qualification and experience required for a post is a matter on which the employer is the sole judge. It is for the employer to decide the qualification necessary for appointment to a particular post, the Court opined. The courts or tribunals cannot substitute their opinion about the requirement about such qualification. The court further relied on the judgements of the Supreme Court such as BB. Shivaih v. K. Adalanki Babu, Central Council for Research in Ayurveda & Siddha & Anr. v. Dr. K Santhakumari and U. V. Mahadkar Vs. Subhash Anand Chavan & Ors to draw a distinction between the criteria of “merit cum seniority” and “seniority cum merit.” The former lays greater emphasis on merit and ability while seniority plays a less significant role. The Court also placed reliance on Union of India Vs. K. V. Jankiraman, which noted that a mere recommendation for the initiation of a disciplinary inquiry cannot be a factor to adjudge the suitability of an officer for promotion.
In Balwant Krishna Thorat v Shankar Nivrutti Thorat and Ors, the Court agreed with the findings of the district court and placed reliance on the the apex court’s judgment Ramdas Vs. Sitabai to hold that a co-sharer cannot give possession of his undivided share to a vendee unless and until the land has been partitioned by metes and bounds. In furtherance of the same, the Court also held that, considering that no partition has admittedly been effected between the co-sharers, an injunction could never have been granted in favor of the one of the parties.
In Yes Bank limited v Union of India and ors, the Court held that once the DRT itself, on application of mind, has permitted the applicant in an Original Application a refund of court fees, and when the entitlement for refund of court fees has been fixed by a judicial order, it would not be permissible for the Registrar of the DRT to insist that a joint application ought to be presented for refund of court fees.
In Abdulla R. Khan V/s. Construction & Engineering Equipments, the Court held that when the termination of an employee is set aside as illegal, ordinarily the employee is entitled to be reinstated in service. Ordinarily, a workman whose service has been illegally terminated would be entitled to reinstatement with full back-wages except to the extent he was gainfully employed during the enforced idleness. The Court further noted that there can be a departure from this normal rule, in the circumstance of a given case. There might be circumstances which render an order of reinstatement impossible to be implemented or wholly inequitable. In such a situation, reinstatement cannot be automatic and as a matter of course. Over a period of time the circumstances which bear upon the right to be reinstated with full back-wages have been examined by the courts. In some cases, a more pragmatic view has to be taken to award compensation in lieu of reinstatement with or without back-wages, since reinstatement may not be justifiable.
In Jayant S. Shah and Ors. v. Bombay Mercantile Co-operative Bank Limted and Ors.,the Court held that a very technical approach should be avoided when dealing with a prayer for amendment of pleadings and that the Court is required to allow all amendments necessary to determine the real questions in controversy. The Court further held that a prayer for amendment of pleadings can be refused if it introduces a totally different or new or inconsistent case or changes the fundamental character of the suit.
In Kasthmandup Developers Pvt. Ltd. v. The State of Maharashtra and Ors., the Court held where stamp duty was paid on an original document and if the document is later abandoned and substituted by another document in respect of the same property, then a refund can be sought of the stamp duty for the original document.
In Krish Rajendra Chordiya v. The State of Maharashtra and Ors., the Court held that a prospective student who has chosen science in 11th and 12th standard must not be later debarred and denied their marksheet for not having had completed any science subject in their 10th grade by the institution, especially considering that education institutions are well aware of the rules and regulations governing them during admission of students and where there was no objection or rejection of the student during the admission process.
In Narhar Rango Kulkarni (deceased) v. Milind Shripad Bendre and Anr., the Court held that in the case of a compromise decree, there can be no undue influence and coercion by one party if the other party itself has been abusing the process of law and has entered into said compromise decree voluntarily with full knowledge.
In Oerlikon Balzers Coating India Pvt. Ltd v. Union of India and Anr., the Court struck down an FAQ, namely FAQ 61 of CDT circular 21/2020, which restricted appeals under Section 4 of the Direct Tax Vivad se Viswas Act, 2020 to those appeals ‘dismissed in limine’. The Court opined that the restriction was adverse to the interest of the assesse and contrary to the object and reasons of the Act.
In Omprakash Nagoja v. Ranger Forest, Bombay Range Office and Ors., the Court held that imported forest produce cannot be freely transported from the port of arrival, without the payment of transit fees to the forest department, if the entire corridor of transportation is not notified as a customs corridor excluding any authority of the forest department, which otherwise has all jurisdiction to regulate transport of forest produce as soon as it reaches the port of arrival.
In P.G Foils Ltd. v. Director General (Special Safeguards) Department of Revenue and Ors., the Court held that if an assessee, after executing bonds, undertakes a self assessment in light of a long delay in the passing of a final assessment order, and deposits pending duty amounts, no interest must be charged on such an assessee in the final assessment order.
In Ramhari Dagadu Shinde and Ors. v. The State of Maharashtra and Ors., the Court held that if a commission has no statutory or constitutional recognition, an order canceling the appointments to the posts of chairman/ members of such a commission is legal and there is no fundamental right of such chairman/ member to continue in such posts.
In Kunjumon Shivarahan Panicker and Anr. v. Chadravadan Pranlal Doshi and Ors., the Court held that a prayer for amendment of the plaint in a disposed of suit at an appellate stage can be allowed so as to ensure congruence between the plaint and the memo of appeal.
In Oil & Natural Gas Cooperation Ltd v. Petroleum Employees Union and Ors., the Court held that the constitutional scheme allows the regularization of employees in Public Sector Undertaking (PSU) who have been appointed pursuant of a legal recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant post. If an appointment is not made by following the rules and regulations of such PSU and contract labor or casual labours have remained in employment for a long period due to interim orders of a court, it confers no equity upon such workmen for their employment to be regularized and continued, the Court added.