The Delhi High Court in Review: August, 2020 [Part I]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review.

While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity.

ARBITRATION

In IRB Ahmedabad Vadodara Super Expressway Tollway Private Limited v. National Highways Authority of India, the Court commented adversely on the extremely limited list maintained by an arbitral institution reflecting complete lack of diversity in terms of professional background, and noted that it was necessary to ensure the existence of a broad-based panel of arbitrators.

In GMR Hyderabad Vijayawada Expressways Private Limited v. National Highways Authority of India, the Court observed that while an Arbitral Tribunal was empowered to assign the task of quantification of the amount due and payable to the claimant in the arbitration proceedings to a third-party entity after upholding the in-principle entitlement of the claimant, by no stretch of imagination could the said task be sought to be relegated to the respondent which was obviously was an interested party to the dispute.

In JMC Projects (India) Limited v. South Delhi Municipal Corporation, the Court said that merely because an arbitration clause provided for an even number of arbitrators, in contrast to the mandate under Section 10 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’), the same would not ipso-facto lead to the invalidity of the clause and the Court would construe an arbitration clause providing for arbitration by two arbitrators as a reference to arbitration by a sole arbitrator.

In JMC Projects (India) Limited v. Indure Private Limited, the Court held that the requirement of an express agreement in writing being required to waive the applicability of Section 12(5) of the Arbitration Act, would not be satisfied by a mere reference to the conduct of a party during proceedings, no matter how extensive or suggestive.

Similarly, in Manish Chibber v. Anil Sharma, the Court observed that a mere recording in an order passed by an arbitrator indicating in extremely vague and specious terms that some form of consent had been obtained from a party for continuation of the arbitrator, even though his unilateral appointment was otherwise unsustainable in law, would not estop the said aggrieved party from seeking appointment of an independent arbitrator by approaching the Court.

In Avantha Holdings v. Vistra ITCL India Limited, while refusing to grant relief under section 9 of the Arbitration Act, the Court noted that when the petitioner itself was admittedly in default of its obligations then it could not seek to make a grievance about the manner in which the corresponding right of the respondent to deal with the pledged shares was being exercised.

BANKING AND FINANCE

In Sunil Goel v. Indiabulls Housing Finance Limited, the Court elaborated upon the concept of cross-liability or cross-collateralisation as applicable to commercial contracts and held that the said concepts are predicated upon reciprocity of security and commonality of the parties to the contract. The Court further noted that in the absence of any intention of the parties to contrary, once two loans are governed by independent loan agreements, the existence of a cross-collateralization clause in one of them would not by itself entitle the lender to proceed against the collateral provided in the said loan agreement towards satisfaction of a loan under the other agreement, unless the said security is also clearly identified as a collateral under such other agreement.

In Jindal Power Limited v. ICRA Limited, the Court held in relation to the scope and ambit of power of a credit rating agency (‘CRA’) that if the initial rating itself is unacceptable then the same will not be published by the CRA. However, once the entity under review had accepted the initial credit rating and sought certain financial facilities under cover of the said rating, then during the pendency of the said financial facility, the CRA is mandated to conduct periodic surveillance and the entity under review has no power of veto against dissemination of such subsequent credit ratings even if it is dissatisfied by the contents of the same.

CIVIL PROCEDURE

In Gautam Gambhir v. Jai Ambay Traders, the Court refused take on record a written statement inasmuch as it found that the outer limit of 30 days plus 90 days for filing a written statement under Rule IV of Chapter VII of the Delhi High Court Rules as applicable to all suits filed on the original side of the Court, was mandatory in nature and could not be extended further.

In Bhandari Engineers v. Maharia Raj Joint Venture, after an extensive review of the international best practices in this regard, the Court formulated a standard of the affidavit required to be filed by a judgment debtor in execution proceedings so as to obviate dilatory tactics, and ensure quick and efficient disposal of the execution proceedings.

In Anjaneya Bisanpur Agro Industries Private Limited v. Dilawar Singh Rawat, while expounding upon the law in relation to actionable admissions under Order XII Rule VI of The Code of Civil Procedure, 1908 (‘CPC’), the Court observed that when there was no independent title set up by the defendant in seeking to resist a suit for possession and its case was a purely an illusory one, the application for a decree on admissions should have been immediately granted.

In Vijay Goel v. State of NCT of Delhi, the Court deprecated the insistence of the trial court upon a certified copy of an order passed by the High Court inasmuch as it noted that the order in issue was digitally signed as also uploaded on the official website of the High Court and was accordingly easily verifiable and could be authenticated without requiring a certified copy thereof.

In Sanjeev Kumar v. Amarjeet, the Court upheld a decree of possession under Order XII Rule VI of the CPC on the basis of admissions in the written statement inasmuch as they were categorical admissions as regards the relationship of landlord and tenant, termination of the month-to-month tenancy and rate of rent also being more than Rs. 3,500/- per month, and which would also place the matter out of the ambit of the Delhi Rent Control Act, 1958.

In Abhijit Mishra v. Union of India and Shailendra Kumar Singh v. Govt. of NCT of Delhi through its Chief Secretary, the Court reiterated that an application for review under Section 114 of the CPC has a very limited scope and could not be permitted to be advanced as an appeal in disguise.

COMPANY LAW AND INSOLVENCY

In RK Aggarwal v. Official Liquidator, the Court held merely because the borrower qua the secured interest was undergoing liquidation proceedings, would not vest the Company Court with the jurisdiction over matters which otherwise fell within the domain of the Debts Recovery Tribunal (‘DRT’), and further held that if the ex-management of the company undergoing liquidation proceedings wanted to urge that certain action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was time barred, then it would have to approach the DRT for the said purpose.

In Reserve Bank of India Limited v. JVG Finance Limited, while rejecting a challenge to a report which had termed the transfer of certain assets of a company under liquidation as doubtful and motivated, the Court observed that the party claiming to be a bona-fide transferee was required to demonstrate the bona-fides of the transaction by producing the best evidence before the Court including balance sheets and income tax records which would have demonstrated the financial capacity to purchase the property as also an identification of the property as an asset in the books of the transferee.

In R. P. Khosla v. Anand Mohan Mishra (Advocate), while refusing to entertain an application under Section 340 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking prosecution for the alleged offence of filing false affidavits before the Court, the Court observed that insofar as the minutes of the Annual General Meeting and its genuineness were sub-judice before the National Company Law Tribunal (‘NCLT’), and which issue was central to determining the truthfulness of the contents of the affidavits filed before the Court, it is the NCLT alone which would be the appropriate forum to settle such disputes and controversies and that the petitioner would be at liberty to re-approach the Court once this aforesaid adjudication has transpired.

In Money Market Services (India) Private Limited v. Union of India Represented through The Secretary, Ministry of Corporate Affairs, the Court rejected a challenge to an order of the Registrar of Companies (‘ROC’) striking off the name of the petitioner from the Register of Companies inasmuch as it found that the striking off was ordered by a ROC situated in a different State and that, accordingly, the Court would not have the requisite territorial jurisdiction to entertain the petition.

In Welworth Software Private Limited v. Sun Distribution Services Private Limited, while upholding an order passed by the Telecom Disputes Settlement and Appellate Tribunal terming an asset-transfer agreement as being a mere ploy to evade certain liability owed to broadcasters, the Court reiterated that where the concept of separate corporate personality was being clearly employed for the purpose of committing an illegality or for defrauding others, the Court would ignore the corporate character and would examine the reality behind the corporate veil so as to do complete justice between the parties.

CONSTITUTIONAL LAW

While reiterating the power of a Writ Court to award monetary compensation in case of a death having occurred on account of gross negligence and flouting of rules by a public body, the Court in Meera v. MCD, further held that when the state of gross negligence was clear from the record, it was not necessary to relegate the petitioner to the remedy of a civil suit.

In Vectra Advanced Engineering Private Limited v. Union of India through Secretary, Ministry of Defence, while upholding the maintainability of a writ petition, the Court held that when the substantive relief sought was against an allegedly arbitrary decision of an entity which admittedly fell within the meaning of State as per Article 12 of the Constitution of India, and a consequential prayer was sought with regard to Bank Guarantee, then the writ petition could not be viewed purely from the prism of the consequential relief sought and could not be said to be completely lacking a public-law element.

In Gulshan Khatun v. Delhi Urban Shelter Improvement Board, the Court directed the authorities to consider restarting the provision of three-meals a day to homeless persons living in shelter homes while noting that the right to food had consistently been recognized as part of the right to life.

In Mohd. Tufail Khan v. Govt. of NCT of Delhi, the Court reiterated that when serious allegations have been levelled against an individual in a Public Interest Litigation (‘PIL’) then it was mandatory to implead the said person as a party in the said PIL.

In Palvinder Kaur v. North Delhi Municipal Corporation, the Court observed that once a writ petition had been disposed-off with certain directions, then the appropriate mechanism to ventilate grievances against alleged violation of the orders was to file an application for contempt and not to file a miscellaneous application in the disposed-off writ petition.

In Ritika Jain v. Union of India, the Court held that though a Writ Court can exercise jurisdiction under Article 226 of the Constitution even where the authority concerned is located outside its territorial boundaries, however, in order to do so at least a semblance of cause of action having a nexus or relevance with the subject matter of controversy should be demonstrated as having occurred within the territorial jurisdiction of the Court.

In Cox and Kings Global Services Private Limited v. Union of India, the Court held that an entity which was not a party to the earlier writ proceedings wherein a certain understanding was worked out qua other parties, which had a prejudicial impact on the rights of the said entity, could articulate its grievances through a distinct petition.

CONTEMPT

While rejecting a petition for contempt on the ground that despite the order quashing the freezing of the bank account, the bank in question had not permitted the operation of the said account, the Court in Rajiv Chakraborty Resolution Professional of Era Infra Engineering Limited v. Naveen Tyagi Branch Manager, Axis Bank Limited observed that the bank was correct in seeking further clarifications from the Enforcement Directorate as well as the Income Tax Department which had issued subsequent provisional attachment orders in relation to the said account.

CONTRACT LAW

In Beoworld Private Limited v. Bang & Olufsen Expansion, the Court held that the law permitted the parties to an international contract to confer jurisdiction on foreign courts located in neutral venues which did not have any nexus either with the parties or the contract between them, and that as an extension of this autonomy the parties could further contract between themselves to require one of them to approach only the courts located in a particular jurisdiction in the case of dispute, even while granting leeway to the counter-party to approach not only the said identified court but other courts of competent jurisdiction as well.

COVID-19

In Hindustan Construction Co. Limited v. National Hydro Electric Power Corporation Limited, the Court even though rejecting an application for stay of invocation of bank guarantees provided under an infrastructure contract, considering the limited parameters available under the applicable law, cautioned the public authorities to refrain from knee-jerk invocation of bank guarantees which would have the impact of further delay in completion of infrastructure contracts, particularly, when the country was already reeling from the COVID-19 outbreak and counselled that the larger impact of such decisions should also be taken into account.

In Gaurav Yadav v. Union of India, the Court rejected a PIL seeking inclusion of masks and sanitizers as essential commodities under the Essential Commodities Act, 1955, after noting that the said determination was purely a policy decision.

In Shahnaz Begum v. State, the Court observed that the recommendations of the High Powered Committee laying down conditions for grant of bail to decongest the jails in view of the COVID-19 outbreak are ultimately recommendatory in nature, and cannot be applied automatically without application of mind to the specific facts of each case.

In Malvinder Mohan Singh v. State of NCT of Delhi, the Court rejected the challenge to the criteria for bail as determined by the High Powered Committee and observed that the exclusion of under-trials charged with economic offences could not be said to be arbitrary considering their distinct nature and their capacity to injure the national economy and interest.

In Gaurav Kumar Bansal v. Union of India, the Court in relation to homeless persons being tested for Covid-19, held that in cases where it was not possible to secure the patient’s contact details, then in addition to the alternatives already prescribed in the policy, the identity of the concerned police officer exercising jurisdiction upon the concerned area. should also be permitted to be submitted for facilitating the testing of the concerned homeless person.

CRIMINAL LAW AND PROCEDURE

In Vinay Mittal v. Union of India, while expounding on the ‘Doctrine of Speciality’, the Court observed that in terms of Section 21 of the Indian Extradition Act, 1962, a person who stood extradited for a particular crime can be tried for only that crime and no other till the extradition requests qua other matters are also granted by the extraditing country.

In Tushar v. State, the Court held that even in heinous cases involving accusations of rape, the Court could exercise the requisite power to quash the proceedings when the complainant specifically stated that the complaint was made on account of a misunderstanding which had now been resolved and yet further, the prima-facie evidence such as the FSL report indicated that the allegations seemed to be incorrect.

In Sahil Parvez v. Government of NCT of Delhi, the Court observed that senior officials should eschew issuance of administrative instructions which might have the effect of creating bias on the part of the investigating officials.

In Ashok Panwar @ Ashok Pawar v. State (GNCT of Delhi), the Court deprecated the argument that an undertrial accused of a grave offence was required to be kept in custody for a long period so as to deal with him ‘strictly’, and reiterated that the only rational parameter for keeping the accused in judicial custody was to ensure that there was no interference with the investigation.

In Jayant Kumar Jain v. State, the Court granted bail to an accused in an FIR registered under Sections 409/467/468/471/120B of the Indian Penal Code,1860 (‘IPC’) inter-alia on the ground that in a connected FIR filed in a different State, with which there was overlap and commonality of allegations, the investigating officer concerned had admittedly filed a closure report.

In Mohmmad Anwar v. The State of (NCT) of Delhi, the Court in the context of only two persons having been identified and named at the said stage as having committed the offence in question, observed that in order to bring home the charge of unlawful assembly under Section 141 of the IPC, it is necessary for the prosecution to establish that the accused was accompanied by at least four other persons who were part of and involved in the offences as an unlawful assembly in order to meet the bench-mark of five or more persons as required under the provision.

In Amit Tomar v. The State (GNCT of Delhi), the Court rejected the argument regarding the doubtful nature of the identification of the accused by the complainant inter-alia by noting that the sketch of the accused had been prepared based on the description given by the complainant and no attempt was made to establish or even argue that the said sketch did not bear any similarity with the facial features of the accused.

In Jai Bhagwan @ Bhedha Bhai v. N.C.B. (Narcotics Control Bureau), the Court reiterated that while a statement of the co-accused can be used as corroborative evidence, it is very difficult to sustain the conviction solely on the basis of the testimony of a co-accused.

In Adia Askerbekova & Begaim Akynova v. Department of Customs, the Court allowed a Kyrgyzstani national who was undergoing trial to visit her country to take care of pressing personal obligations on the basis that even though there was no extradition treaty between India and Republic of Kyrgyzstan, there was indeed a treaty between the countries on mutual legal assistance in criminal trials, the provisions of which could be resorted to ensure the return of the person concerned with the attendant undertaking of the concerned Embassy in this regard.

In V.Murli v. State of NCT of Delhi, the Court reiterated that even in the absence of a Test Identification Parade, the identification of the accused for the first time in Court, can be relied upon if the eye witness concerned could be demonstrated to have had sufficient opportunity to observe the accused during the event and thus, have an enduring impression of the identity of the accused.

In Anuj v. State, the Court held that even when a person was acquitted by a Court in a criminal proceeding during which the acquitted person claimed to have been kept in illegal confinement by certain police officials, the factum of acquittal by itself would not render the arrest as an act beyond the official discharge of duties by the police personnel concerned. The Court further observed that inasmuch as the act of apprehending the acquitted person remained one which was done within the overall scope of duty, prior sanction within the meaning of Section 197 of the Code of Criminal Procedure, 1908 (‘Cr.P.C’) was essential to initiate prosecution.

In Anil Kumar v. State, the Court directed initiation of a departmental enquiry against various police officials for having adopted discriminatory parameters while investigating cross FIR(s) lodged by the parties.

In Birpal v. N.C.B., the Court granted bail in an offence under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) after observing that all the pre-conditions under the said provision stood satisfied as also that the accused seemed to be a low-ranking employee of the company which was attributed a major role, and no recovery was either effected from him nor was he connected to the money trail.

In Naushad v. State of NCT of Delhi, the Court reiterated that in the case of anticipatory bail, it is not merely the seriousness of the allegations that has to be considered, but also the circumstances surrounding the release of the accused such as if released on bail whether the accused would not flee from justice and would cooperate in the investigation as also not attempt to influence the witnesses or tamper with the evidence.

In Rajesh Kumar Sharma @ Rajesh Kumar v. C.B.I, the Court rejected an appeal against the conviction under the Prevention of Corruption Act, 1988, inter-alia while noting that the element of conspiracy between the government employee and his brother, even in the absence of direct evidence, could always be inferred circumstantially including the observations in a distinct criminal proceeding where though separate trails and separate judgments were rendered convicting the brothers, there remained various common elements thereunder.

In Sameem @ Sameer v. State (NCT of Delhi), the Court observed that on account of a large number of incidences of rape occurring in confined or secluded places, witnesses or extensive medical or forensic evidence may not be available and, hence, the testimony of the victim has to be of unimpeachable quality to be able to meet the standard of establishing the guilt of the accused beyond doubt.

In Udhav Kumar v. State (NCT of Delhi), the Court held that aside from the fact that the testimony of the child victim was extremely inconsistent, a further reason to weigh the victim’s testimony with caution was for the reason that the incident occurred late at night much after the victim’s normal bed time and that too in a wedding banquet with on-going festivities which would have in the ordinary course left the victim exhausted and unable to focus clearly.

In Sanjay Chuniana @ Sanju v. Govt. of NCT of Delhi, the Court acquitted the accused of the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 as also under Sections 376 and 506 of the IPC, on the ground that there were material inconsistencies in the statement of the complainant as also the same were not corroborated by any witness nor was there any meaningful investigation in the said case.

EDUCATION

In Sanyam Gupta v. Central Board of Secondary Education, the Court held that the assessment scheme put in place by the Central Board of Secondary Education (‘CBSE’) for calculating the final marks obtained by students appearing in the Class XII examination would also apply to students who appeared for improvement examinations and it was not permissible for CBSE to discriminate in this regard inasmuch as the improvement exams were meant to encourage students who aspired for better results and consequential improved prospects, and not to punish them for having charted the said course.

In Dr. Akshee Batra v. Union of India, the Court held that the counselling for a stray vacancy could not be undertaken without duly advertising the same and after ensuring due publicity inasmuch as otherwise eligible candidates might be unaware and consequently, unable to apply.

While reiterating that the terms of the admission brochure are binding on candidates, the Court in Dr. Navroz Mehta v. Union Of India, held that the bar contained therein on a person, who is already admitted in another post-graduate course, from participating in the counselling for the post-graduate course in question, cannot be sought to be questioned after participation in the admission process.

In Dr. Shilpi Pandey v. Ministry of Health and Family Welfare through its Secretary, the Court held that there was nothing illegal in the forfeiture of the amount deposited by a candidate for participation in the counselling process when the candidate in question, subsequently, fails to join the course which had been allotted during the process of the counselling.

In Dr. Akshita Khosla v. University of Delhi, the Court deprecated the complete nonchalance of the university authorities in not putting in place a proper protocol to ensure the timely issuance of degree certificates to students who had successfully graduated, and proceeded to constitute a committee to remedy the situation.

In Dr. Machat Balakrishnan Menon v. Medical Council Committee, while reiterating that a student who otherwise did not qualify for a particular quota could not be extended any relief by the Court, subsequent, to an admission having being granted inadvertently by the authorities concerned under the said quota, cautioned both the candidates as also the authorities concerned to strictly scrutinise the eligibility in relation to different quotas before allotment of seats.

In Vishakha Through Natural Guardian Shyam Singh v. CBSE, the Court refused the entitlement of a student for automatic promotion in terms of a circular inasmuch as it noted that the said benefit could not be availed in the complete absence of having attended the school nor having appeared in the internal assessment examination and without even paying the fees for the previous academic session.

ELECTION LAW

In Air Traffic Safety Electronics Personnel Association (India) v. Airports Authority of India, the Court held that for an election process which had put in place a certain pre-qualification for members of the concerned association to be permitted to vote in an election, it was a sine-qua-non that a formal process of identification of members who were actually eligible to vote should be carried out before the voting actually took place.

Dr. Amit George is an Advocate practicing before the High Court of Delhi.

The author would like to place on record his appreciation for the assistance provided by Advocates Rishabh Dheer, Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.