Bombay High Court Judgment Tracker: November 2020

A review of judgments and orders passed by the Principal Bench of the Bombay High Court in the month of November.
Bombay High Court Judgment Tracker: November 2020
Judgment Tracker

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 November.

Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (MPID Act)

In State of Maharashtra v Anil Kohli, the Court held that National Company Law Tribunal does not have jurisdiction to lift an asset freezing order issued by the designated court under the MPID Act. Here, the question before the Court was whether an action taken by the designated court under the MPID Act against a ‘financial establishment’, can be challenged before the NCLT and not the designated court as contemplated under the MPID Act.

Indian Penal Code, 1860 (IPC)

In Dhananji Rambhau Satpute v State of Maharashtra, the Court held that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of the crime they were seen together or the offence took place in dwelling home where the husband also resided, then, if the husband does not offer any explanation of how the wife received injuries or offers an explanation which is found to be untrue, then courts will find a strong indication towards the husband being guilty of the crime.

In Shrinivas @ Shenu Shirsappa Ayyappa Swami v State of Maharashtra along with Vyankatesh @ Vynkati Narsimallu Sagar v State of Maharashtra, the Court held that in case of a murder, the circumstance of the accused last seen together with the victim does not by itself necessarily lead to the inference that it was the accused who had committed the crime. Here the Court overturned an order of conviction by a sessions court which had only taken circumstantial evidence into account in forming its opinion. The Court held that circumstantial evidence in itself did not satisfy the burden of proof on the prosecution to prove its case beyond reasonable doubt.

In State of Maharashtra v Dilip Gajendra Sonawane and Ors., along with Dilip Gajendra Sonawane v State of Maharashtra, the Court held that it is not necessary for the prosecution to explain all the injuries on the body of the victim for the court to hold that the accused has killed the said individual, however superficial or minor the injuries may be. Here the Court was hearing an appeal filed by the State against an order of conviction under Section 304 of the IPC. The appeal did not challenge the order of conviction but rather challenged the quantum of punishment awarded by the sessions court. Given the peculiar circumstances in the case, the Court agreed that on the principle of proportionality the quantum of sentence be enhanced.

In Aditya Sham Chaturvedi vs. State of Maharashtra, the Court decided that applicability of Sections 364 and 365 of IPC is distinct from one another, and therefore the appellant cannot equate Section 364A with Section 365. Further, while discussing the challenge to the quantum of punishment, the Court referred to the Supreme Court’s decision in Alister Anthony Pareira v. State of Maharashtra wherein the Supreme Court observed that the imposed sentence should be appropriate, adequate, just and proportionate commensurate with the nature and gravity of crime and the manner in which the crime is done. However, since the crime here was committed by the accused in a pre-planned manner, the Court was of the opinion that the sentencing by the trial court was just.

In State of Maharashtra v Nandu Pandu Kamble, the Court relying on the Supreme Court’s judgement in Chandrappa & Ors v State of Karnataka, refused to interfere with the trial court’s order acquitting the accused in a case under Sections 363 and 366(A) of the IPC on the basis that the prosecution failed to rebut the presumption of innocence of the accused which had been further reinforced by an order of acquittal of the trial court. In this case, there were discrepancies in the case of the prosecution, who had failed to prove beyond reasonable doubt that the victim was less than 16 years of age.

In Vinod Jaysing Kashid v The State Of Maharashtra, the Court held if there is no premeditation involved then an accused can only be charged under part 1 of Section 304 of the IPC. Here the Court observed that at the time of commission of offence the accused was intoxicated and even attempted to save the victim which suggested no premeditation on part of the accused. Hence, the Court overruled a verdict of guilty passed by the sessions court under Section 302 of the IPC.

In Aaditya @ Sadanand Dilip Parab v The State of Maharashtra, the Court held that the testimony of a rape victim stands on a higher pedestal then other witnesses and there is no rule of law which states that the victim's testimony cannot be acted upon without corroboration. The Court upheld the decision of trial court as evidence of the prosecutrix was wholly trustworthy and reliable.

Arbitration and Conciliation Act, 1996

In MEP RGSL Toll Bridge Pvt. Ltd. v Maharashtra State Road Development Corporation Ltd. along with Raima Toll & Infrastructure Pvt. Ltd. v Maharashtra State Road Development Corporation Ltd., the Court held that no party to a contract can superimpose on the other contracting party a condition that is not agreeable to the other party. The Court also held that when a contract entered into between the State and the person aggrieved is non-statutory in nature and purely contractual, then the rights of the parties are strictly governed only by the terms of the contract and no writ or order can be issued by the Court under Article 226 of the Constitution of India. Here the Court was adjudicating whether an arbitration agreement can be imposed on the Respondents (State instrumentalities) merely because of a policy introduced by the State Government promoting arbitration as the preferred mechanism of dispute resolution in contracts entered into by the State Government or its bodies.

Customs Act, 1962

In Mumbai Fabrics P. Ltd. v Union of India and ors., the Court withheld itself from rendering a finding about whether the imported goods in question fall under the specific heading of the customs tariff, since that would be a finding of fact. The Court held that a writ Court may be improper for fixing a timeline for winding up of investigation and for commencement and completion of adjudication. Having said so, the Court also observed that a writ court is primarily concerned with the decision-making process and with the correctness of the decision per se, thereby reiterating that the investigation must adhere to the due process, consistent with the principles of natural justice. In light of this, the Court stated that goods can only be seized under the Act if the proper officer has reason to believe that such goods are liable to be confiscated. Further, seizure cannot also be for an indefinite period under Section 110(2) of the Act.

The Courier Imports and Exports (Clearance) Regulations, 1998

In Commissioner of Customs (II) v Poonam Courier Pvt. Limited, the Court held that, even remedy under Regulation 14(2) of the Courier Imports and Exports (Clearance) Regulations, 1998 is not availed, the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) would have the jurisdiction to entertain an appeal under section 129A of the Customs Act, 1962. Court observed that remedy provided under Regulation 14(2) cannot supplant or curtail the remedy of appeal granted by the empowering statute; at best it can be construed as a supplementary remedy and the right of appeal is a substantive right of an aggrieved person as it is not a matter of procedure but is a vested right conferred by the statute.

Narcotic Drugs & Psychotropic Substances Act, 1985 and Code of Criminal Procedure, 1973

In Musa Abdul Wimumuni Kenneth v State of Maharashtra, the Court inter alia referred to Supreme Court judgments of Manoj @ Panu v. State of Haryana and State of Maharashtra v Najakat Ali Mubarak Ali and held that if the offences are committed under a single transaction, the sentences must run concurrently and not consecutively, as stipulated under Section 31 of Cr.P.C. This decision of the Court was also made in light of the fact that the accused had no previous criminal antecedents. Any previous antecedents admitted in a statement under Section 67 of the NDPS Act was held to be inadmissible in evidence in accordance with the decision of the Supreme Court in Tofan Singh v State of Tamil Nadu.

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Security Interest (Enforcement) Rules, 2002

In Radhika Rajesh Agarwal v Union of India and Ors., the Court referred to the principle laid down by the Supreme Court in United Bank of India v Satyavati Tondon & Ors. regarding the High Court’s inability to entertain a petition under Article 226 of the Constitution if an effective remedy is available to the Petitioner, which in this case is the DRT. Therefore, in the event of there being an availability of alternative statutory remedy of filing an application under Section 17(1) of the Act before the DRT, the Court chose not to interfere with the Petitioner’s case under its writ jurisdiction.

Protection of Children from Sexual Offences Act, 2012

In Suresh Angloswami Naidu v State of Maharashtra, the Court held that an accused can be tried for only the charges framed against him, and in the event a charge is altered or modified, it is necessary and imperative for the concerned Court to make the accused aware of the same and thereafter convict him/her after sufficiently hearing the accused. Convicting an accused for a charge which was not framed and which attracts higher punishment would certainly cause irreparable harm and prejudice to the accused in the eyes of law. The Court accordingly modified the conviction of the Appellant from Section 6 to Section 4 of the Act.

Central Goods and Services Tax Act, 2017

In Siddharth Mandavia v Union of India, the Court held that suspension and cancellation of importer exporter code number can be done only under Foreign Trade (Development and Regulation) Act, 1992 by the Director General of Foreign Trade or by his authorized officer for the reasons specified and, in the manner, provided in Section 8 of the said Act. Once the importer exporter code number is suspended or cancelled, that person would not be entitled to carry out any import or export except under a special license that may be granted by the Director General. The Court also held that the authorities should be careful while exercising power under Section 83 Act and should try to balance the interest of the government revenue on the one hand and the interest of the dealer on the other hand.

In M/s. Heritage Lifestyles and Developers Pvt. Ltd v UOI, the Court held that when a person is eligible for claiming input tax credit under any circular, then to deny him the benefit of the same on technical grounds is not justified. In this case, the Petitioner was eligible for claiming input tax credit and had attempted to file Form TRAN-1 to claim the same, however he was unable to file the form due to technical glitches. Thereafter he attempted to physically file the said form as provided under a subsequent circular, however his application was rejected by the Commissioner on the ground that he had neither tried to save or submit the TRAN-1 electronically.

Indian Evidence Act, 1872

In State of Maharashtra v Sharad Ramdas Shelar & Ors., the Court referred to the Supreme Court’s judgement in Mangat Ram v. State of Haryana to hold that the presumption under Section 113-A of the Evidence Act would not automatically apply, if a married woman commits suicide within a period of seven years of her marriage. For Section 113A to apply, the prosecution has to establish that the concerned woman has committed suicide within seven years of her marriage and that her husband has subjected her to cruelty. The presumption as defined under Section 498-A of the IPC may be attracted having regard to all other circumstances of the case, which shall be at the discretion of the court.

Mumbai Municipal Corporation Act, 1888, Maharashtra Regional and Town-Planning Act, 1966 and Constitution of India, 1950.

In Ms. Kangana Ranaut v Municipal Corporation of Greater Mumbai & Ors., the court said that the object and purpose of Section 354A of the Mumbai Municipal Corporation Act, 1888 (MMC Act) is stoppage of unauthorized ongoing work and not the demolition of unauthorized work already carried out. The court states that even after the MCGM had passed the final order for pulling down of these works upon the Petitioner’s failure to show sufficient cause, the Petitioner had the right to approach the MCGM for regularization of such works under Section 53(3) of the Maharashtra Regional and Town-Planning Act, 1966 (MRTP Act) or approach this court. The MCGM’s actions herein were unauthorized as under Section 354A of the MMC Act and seemingly sinister so as to prevent the Petitioner from taking recourse to the legal remedies available. The court discussed the extraordinary jurisdiction under Article 226 of the Constitution and said that an ex-facie illegal, arbitrary, unjustified, highhanded and malafide actions of the MCGM in ignoring statutory provisions and guidelines of the Courts and its own Circulars is an abuse of power and authority. Further, the court also referred to this court’s decision in Abdul Razzaq Sunesra v. MCGM wherein the validity of Section 515A of the MMC Act was upheld, whereby a remedy to approach this court under Article 226 of the Constitution challenging a notice under Section 351 of 354A of the MMC Act was permitted.

Civil Procedure Code, 1908

In Arvind Jeram Kotecha v Prabhudas Damodar Kotecha, the Court held that a decree of a foreign court is enforceable under Section 44A read with Section 13 of the Code, even where the decree does not contain any reasons. In this case, one party approached the Court seeking to enforce a decree of the United Kingdom’s Court, and this decree did not contain reasons supporting the conclusions reached by them. In this case, the Court referred to the definition of a decree of a foreign court under the explanation II of Section 44A and held that it included a formal expression of an adjudication. The Court further relied on the Privy Council’s judgement in Brijlal Ramjudas v Govindram Seksaria, in which it was held that a “judgment” within the meaning of Section 13 of the CPC meant “an adjudication by a foreign court upon the matter before it” and not a statement of reasons for the order for coming to its conclusion. In this case the judgement debtor had argued that reasons would be necessary to determine whether any of the exceptions given in Section 13 would apply to a foreign judgement or not, however the Court refuted this argument and stated that onus to show that the judgement/decree fell within any of the exceptions to Section 13 was on the judgement debtor, and there is no requirement that these exceptions can be deduced solely from the text of the judgement/decree. The Court also rejected the contention, that absence of reasons fell within exception B of Section 13, i.e., the decree was not given on merits of the case. In rejecting this contention, the Court relied on the Supreme Court’s judgement in Alcon Electronics v Celem S.A.

Right to Information Act, 2005

In Saket Gokhale v Union of India, the Court relying on the Calcutta High Court’s judgement in Avishek Goenka v Ashish Kumar and the Office Memorandums dated 21st October 2014, 23rd March 2016 and 7th October 2016 issued by the Ministry of Personnel, Government of India, held that personal details of applicants cannot be uploaded on Government Websites. The Court dismissed the Government’s argument that the Petitioner had not been singled out and the details of more than 4000 applicants had been uploaded on the website as the concerned ministry was not aware of the earlier Office Memorandums. The Court however stated that even though the Government was in the wrong, the Petitioner could not claim damages in writ jurisdiction of the Court and he should approach a civil court for claiming that remedy.

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing of essential Commodities Act, 1981

In Rohit Sidram Khatal v Commissioner of Police, the Court held that normally a delay in consideration of the representation of the detenu is not fatal when the delay is satisfactorily and reasonably explained, however when there is no explanation forthcoming for the reason of the delay, then an order of detention would stand vitiated under Article 22(5) of the Constitution. The Court further held that when the detenu is not furnished with true and faithful translation of the original version of the compilation of documents on the basis of which the detention was done, then the same would deprive the detenu his right for making effective representation which is again a violation of Article 22(5) of the Constitution.

Finance Act 2019 and Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019

In GR Palle Electricals v UOI, the Court interpreted the scope of Section 125(1)(e) of the Act, which provides that a person who has been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry, investigation or audit had not been quantified on or before 30 June 2019, then such a person would not be eligible to make a declaration under the Scheme. For interpreting the scope of this Section, the Court relied on the circular dated 27 August 2019 issued in this regard, and noticed that where a case is pending under investigation/audit, and where the duty involved is quantified and communicated to the declarant or admitted by the declarant in a statement on or before 30 June 2019 then he would be eligible to file a declaration under the Scheme. The Court also noticed that the word “quantified” has been defined to mean a written communication of the amount due and payable under the Tax Enactment. In this case, as the declarant had in a statement recorded on 11 January 2018 admitted his service tax liability of Rs. 60 lakhs to be outstanding, the same was held to be a valid quantification and communication, and thus the declarant was not ineligible under Section 125(1)(e) of the Act. The Court also held that under the scheme, when an opportunity for hearing is provided when the amount estimated by the Designated Committee exceeds the amount declared by the declarant, then it would be inconceivable that no opportunity for hearing is granted before rejecting an application on the ground of ineligibility. Lastly the Court held that the Scheme is a beneficial one and thus needs to be interpreted with a liberal view.

In Elaf Tours and Travels and Ors v Union of India, the Court held that in a case where a show cause notice is issued and final hearing has taken place on or before 30 June, 2019, then an assessee would not be eligible to make a declaration under the litigation category of the scheme, but once an order is passed, then a declaration could be made under the arrears category of the scheme provided that no appeal against the order is filed or that the limitation period for filing an appeal is over. The Court also reiterated that the primary focus of the scheme was to unlock the baggage of pending litigation from the pre-GST era and thus the officials should take a liberal view embedded with the principals of natural justice while considering a declaration made under the Scheme.

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and Code of Civil Procedure, 1908

In Vijay Anant Gangan v Zenabibi Gulam Rasool, the Court held that in a Civil Revision Application it needs to judiciously balance the equities of both the Parties. The Court further held that when the lease deed was for a piece of land, then the valuation of compensation can only be based on the value of the land and not any construction made thereon. Coming to the manner of quantification of the value of compensation under Order 41 Rule 5, for staying of a decree, the Court held that there cannot be a fixed rule for determining the same, and there is bound to be some kind of ad-hoc-[ism] and guess work in the manner of fixing of such compensation.

The Patents Act, 1970

In Dhaval Diyora v Union of India and Ors., the Court held that pre-grant representation cannot be filed while the decision of the Controller is on appeal because the time limit to file the same comes to an end once the decision on a patent application is made by the Controller. While holding so, the Court pointed out that pre-grant representations are meant to assist the Controller and that they must be decided simultaneously with examination. The Court in this case pointed out that once a decision to grant or refuse is made, the act of sealing is merely a ministerial act and does not have any bearing on the timeline for filing pre-grant representations

Constitution of India, 1950

In Cipel v Indian Oil Corporation Ltd. and Ors., the Court held that the jurisdiction of the Court under Article 226 cannot be used to interfere in a dispute between parties where the case includes determination of various question of facts. The Court held that in such cases parties have to settle their dispute as per the contract signed between them. Here, Indian Oil Corporation Ltd. had terminated the contract on account of repeated delay and also forfeited the balance Security Deposit.

In Federation of All Maharashtra Petrol Dealers Association v Union of India And Ors. along with Bharat Petroleum Corporation Ltd. (Refinery) Employees Union & Ors. v Union of India, through the Secretary, Ministry of Petroleum and Natural Gas & Ors., the Court held that disinvestment of a public company is matter of policy and policy decisions of governments are not subject to judicial scrutiny. Court also added if the initial decision of acquiring or starting an undertaking is not challenged on the same parity of reasoning, the decision to disinvest also cannot be impugned without showing that it is against any law or mala fide. On question of violation of fundamental rights of members of employee unions, the court held that, there is no fundamental or constitutional right for insisting on continuation of the Government’s strategic stake in BPCL, and that welfare schemes such as subsidies can continue even after change of character of undertaking and that therefore there is no violation of such rights.

Central Excise Act, 1944 & Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019

In N D Patel v Union of India & Ors., the Court held that the objective of a tax relief scheme, in a case of this beneficial nature (in this case the Sabka Vishwas Legacy Dispute Resolution Scheme, 2019), a reasonable and pragmatic interpretation has to be adopted to ensure that the declarant who seeks benefit under the scheme cannot be put into a condition worse, then he would have been had the declaration not been made. It was clarified that adopting an interpretation which puts the declarant in a condition worse, then he was before the declaration, would put defeat the very purpose of the scheme.

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