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

Review of Judgments and orders passed by the High Court in October.
The Delhi High Court in Review: October, 2020 [Part I]
Delhi High Court In Review

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

After an exhaustive review of the applicable precedent on the issue, the Court in Big Charter Private Limited v. Ezen Aviation PTY. Limited, held that after the insertion of the proviso to Section 2(2) of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) by the Arbitration and Conciliation (Amendment) Act, 2015, Section 9 of the Arbitration Act would also apply to international commercial arbitrations seated outside India as well. The Court further observed that a Court hearing an application under Section 9 of the Arbitration Act, in such a context, could be said to be divested of jurisdiction only if there was a specific “agreement to the contrary” between the parties stipulating so.

In Rajkumar Brothers v. Life Essentials Personal Care Private Limited, the Court reiterated that an appeal under Section 37 of the Arbitration Act, against an Order returning a petition under Section 34 of the Arbitration Act for filing in the Court of appropriate territorial jurisdiction would not be maintainable and Section 10 of the Delhi High Courts Act, 1966 would also not come to the aid of the appellant in this regard.

In Sanjiv Prakash v. Seema Kukreja, the Court reiterated that if a contract between the parties is superseded and completely replaced by a subsequent one, then the arbitration clause contained in the original contract would perish and no recourse could be had to the said clause in an attempt to invoke arbitration.

In Pramod Kumar Goel v. Delhi Development Authority, the Court observed that there can be no objection to a direction being passed under Section 9 of the Arbitration Act directing that the measurement of the work done at the site be recorded by an independent entity.

In exercise of its jurisdiction under Section 9 of the Arbitration Act, the Court in West Haryana Highways Projects Private Limited v. National Highways Authority of India, protected the right of the petitioner to collect toll under the agreement in question pending arbitration inasmuch as it would otherwise face irreparable financial injury in terms of inability to pay back its financers.

In GMR Ambala Chandigarh Expressways Private Limited v. National Highways Authority of India, the Court reiterated that a party whose claim has been rejected in the award passed by the arbitral tribunal could not subsequently maintain an application under Section 9 of the Arbitration Act for interim relief in relation to the said claim.

In City X Ray and Scan Clinic Private Limited v. The Medical Superintendent, Government of NCT of Delhi, the Court reiterated that once a party approaches the High Court under Section 11(6) of the Arbitration Act, the right of the counter-party to appoint an arbitrator under the terms of the contract stands extinguished.

However, in Tata Projects Limited v. Oil and Natural Gas Corporation Limited, the Court observed that even when a party could be said to have lost its right to appoint a nominee arbitrator and accordingly its decision to nominate a certain individual during the pendency of the proceedings before the High Court would be non-est in law, there was no embargo on the Court, in exercise of its powers under Section 11(6) of the Arbitration Act, in appointing the said individual as the respondent’s nominee arbitrator if the Court was otherwise convinced about the suitability and merit of the person in question.

While rejecting the objection to appointing an arbitrator on the ground that there was no privity of contract between the petitioner and the respondent and that the respondent had signed the contract purely as a constituted attorney of a third party, the Court in Odeon Builders Private Limited v. Engineers India Limited, observed that a stipulation in the arbitration clause that the award to be passed by the arbitral tribunal would be enforced against the respondent alone is a clear indication of the fact that it was the petitioner and respondent who would be proper parties to the arbitration and not the concerned third party.

In Crest Educations Private Limited v. Career Launcher (I) Limited, the Court observed that as against the rejection of a petition under Section 34 of the Arbitration Act on the merits, an application for recall under Order IX Rule 9 of the Code of Civil Procedure, 1908 (‘CPC’) would not lie.

BANKING AND FINANCE

In Daiichi Sankyo Company Limited v. Malvinder Mohan Singh, the Court observed that though an Order of status-quo in an execution petition would not be applicable in relation to properties which already stood encumbered in favor of a bank by the judgment debtor prior to the date of the Order, however, when there were serious allegations of connivance between the bank and the judgment debtor which required detailed examination, the proceeds of the sale of the concerned properties by the bank could be directed to be deposited in the Court.

In the context of a Reserve Bank of India regulation providing for a minimum threshold limit for grant of a concerned certificate for registration, the Court in Jeewan Holdings Private Limited v. Union of India observed that in the case of taxation and financial legislations, no undue leeway or extension of time for compliance can be provided inasmuch as it will cause severe prejudice to revenue collection as also compromise the ability of the authorities to maintain stability in the financial and commercial markets.

CIVIL PROCEDURE

In Jamia Hamdard Deemed University v. Hamdard National Foundation (India), the Court held that in terms of the mandate of Order XLIII Rule 1 A (2) of the CPC, a stranger to a consent decree could not seek to appeal thereagainst and to contend that the compromise should not have been recorded without demonstrating a clear locus in the form of the decree being enforceable against it and accordingly, causing it an element of prejudice.

In Ram Sarup Lugani v. Nirmal Lugani, the Court held that in case of any inconsistency, the provisions of the Delhi High Court (Original Side) Rules, 2018 (‘DHC Rules’) will prevail over those of the CPC. The Court, accordingly, held that in terms of Rule 5 of the DHC Rules which was mandatory in nature, the Court could not permit a replication to be taken on the record after the plaintiff has exhausted the maximum prescribed period of 45 days.

In Parnita Kapoor v. Arvind Malik, the Court reiterated that even in the absence of a formal counter-claim, a defendant in a suit would be entitled to claim the appropriate relief if the same arises out of the proceedings filed by the plaintiff itself.

While reiterating the parameters for grant of relief of interim mandatory injunction, the Court in Ashok Arora v. Supreme Court Bar Association, observed that when the impugned resolution passed by an association suspending an office bearer could not be demonstrated to be contrary to any of the rules and regulations of the association, then it could not be said that a case for interim injunction has been made out.

In Gagninder Kumar Gandhi v. Vijay Gupta, the Court observed that when the determination of a suit was premised entirely on the need for registration, or the lack thereof, of a pivotal document under the Registration Act, 1948, then it was appropriate that the said issue be decided as a preliminary one.

In Chelmsford Country Club v. Ajit Kaur, the Court observed that if the court fee filed by the party was deficient, it would not lead to an automatic rejection of the suit and the Court could always permit the party to make payment towards the deficient court fee.

In Paras Ram v. Surender Singh, the Court observed that when the plaintiff did not seek to amend the plaint, the Court could not have directed the plaintiff to amend the plaint without even calling upon the defendant to show cause.

COMMERCIAL COURTS

In Alka Traders v. COSCO India Limited, the Court rejected an appeal against Orders passed under Order VIII Rule 1 & 10 and Order IX Rule 7 of the CPC in a commercial suit inasmuch as it noted that neither of these provisions fell within the scope of Order XLIII of the CPC and were accordingly excluded from the scope of appeal under Section 13(1) of the Commercial Courts Act, 2015 (‘Commercial Court’s Act’).

In Ashutosh Razdan v. Netcom Softech Private Limited, the Court held that an Order determining a suit as not falling within the meaning of a ‘commercial dispute’ as envisaged under Section 2(1)(c) of the Commercial Courts Act cannot be perfunctory in nature and is required to advert to the factual matrix as also the averments made in the plaint and the applicable law before arriving at the said conclusion.

COMPANY LAW AND INSOLVENCY

In Barun Mitra v. AVP Buildtech Private Limited, the Court directed the National Company Law Appellate Tribunal to urgently list the application of an allottee in a housing project before the finalization of terms of settlement and resolution plan and further observed that the allottee was required to be heard before a final order was passed in this regard.

In Harmander Singh Sran v. HBN Dairies and Allied Limited, the Court directed the National Company Law Tribunal to urgently hear the application filed by an aggrieved party whose residential house was sought to be taken over by the resolution professional, and directed that till the application was heard no coercive steps in this regard be taken against the petitioner.

CONSTITUTIONAL LAW

While reiterating that the right to travel is a facet of the right to life under Article 21 of the Constitution and cannot be denied except under procedure established by law, the Court in Rajiv Saxena v. Union of India observed that a decision by the Central Government to suspend a passport under Section 10A of the Passports Act, 1967 beyond a period of four weeks has to be accompanied by reasons as also a grant of hearing to the aggrieved party.

In Dilbar Singh Negi v. Footwear Design & Development Institute, the Court observed that when no cause of action could be said to have arisen against a particular entity, then impleadment of the said entity in writ proceedings merely to create artificial territorial jurisdiction of the Court could not be countenanced.

In Shovan Patra v. Union of India, the Court observed that a public interest litigation filed by a serving officer of an organization geared purely towards vindicating the stand of the petitioner in view of the differences of opinion on matters of policy between him and his superior officers was unwarranted.

CONTEMPT

In Riddhima Singh through her Father Shailendra Kumar Singh v. Central Board of Secondary Education, the Court observed that though it is the right of a party to invoke the appellate remedy and approach a Division Bench against an Order passed by a Single Judge and seek quashing of an Order that it is aggrieved by, however, making scurrilous prayers in the appeal seeking an investigation into the manner in which an Order was passed by the Single Judge would amount to contempt of Court.

COVID-19

In Shiromani Akali Dal Delhi v. Directorate of Gurdwara Elections, the Court observed that even though the authorities concerned were bound to prepare fresh electoral rolls on account of previous Orders of the Court in this regard, the Court could not ignore the fact that preparation of the electoral rolls is an extremely resource-intensive exercise and one involving public interaction which would expose the concerned officials to the hazards of the pandemic. Accordingly, the Court permitted the revision of electoral rolls for the forthcoming elections instead of preparation of fresh electoral rolls.

In Rakesh v. State, the Court observed that the previous involvement of the petitioner in various other first information reports (‘FIRs’) would take the person out of the ambit of the Guidelines of the Minutes dated 18.05.2020 of the High Powered Committee pertaining to interim bail.

CRIMINAL LAW AND PROCEDURE

While granting regular bail to an accused, the Court in Faizan Khan v. State of NCT of Delhi held that for invoking the stringent provisions of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) in relation to the parameters for grant or refusal of bail, it was necessary that the material on record and the investigating agency’s status report should prima-facie disclose the commission of the offences under the UAPA and bald statements of witnesses would not suffice in this regard.

While refusing to interfere with the sentence awarded in a conviction under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Court in Manjeet Pandey v. The State (Government of NCT) of Delhi elaborated on the doctrine of proportionality and held that the discretion available with the Court to determine the sentence to be awarded must be exercised bearing in mind the principle of proportionality. The Court further observed that aggravated penetrative sexual assault on a child of two years of age was especially egregious in nature and would justifiably fall within the highest rung of proportionality and attract the maximum punishment.

In Santini Simone v. Department of Customs, the Court reiterated that Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), would not be applicable in the case of recovery and seizure of contraband in an Airport which is a ‘public place’. The Court further elaborated upon the purpose of drawing a sample of contraband and testing the same and observed that the ultimate aim in this regard is to establish the composition of the substance from which the sample is drawn. The Court, therefore, cautioned that it must be ensured that the sample is a true representative of the substance that was recovered before an assumption could be made that the composition of the sample was identical to that of the recovered substance.

In CCL ‘A’ v. State (NCT of Delhi), the Court held that if a juvenile had been denied bail by the Juvenile Justice Board and/or the Children’s Court, the said juvenile could file an application seeking bail directly before the High Court under Section 12 of the Juvenile Justice (Care and Protection of Children) Act 2015 (‘JJ Act’). Additionally, the Court clarified that Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has no application to the matter of grant or denial of bail to a juvenile. The Court further held that a bail plea filed on behalf of a juvenile would be considered only on the criteria under Section 12 of the JJ Act, and the general principles in relation to grant or denial of bail under Section 437 or Section 439 of the Cr.P.C. would have no application.

In Arvind Kejriwal v. State NCT of Delhi, the Court held that a conjoint reading of Sections 173(5), 173(6) and the first proviso attached to Section 207 of Cr.P.C. leaves no scope for doubt that it is the bounden duty of a police officer to forward all the statements to the Magistrate without any exception so as to enable the Magistrate to discharge his duty under Section 207 of the Cr.P.C. by furnishing copies of such documents to the accused. The Court further observed that it is the prime duty of the investigating agency to conduct free and fair investigation and to bring to the notice of the Court, the entire evidence collected without any pick-and-choose in this regard.

While reiterating that the applications for recall of witnesses are not to be routinely granted, the Court in Vikas v. State further held that this was especially true in cases under the POCSO Act, in the light of Section 33(5) thereof, which is intended to protect a child witness from the trauma occasioned by repeated appearances for the purpose of testimony.

While rejecting an application for interim bail by an accused in proceedings under Section 376 of the Indian Penal Code, 1860 (‘IPC’) read with Section 4 of the POCSO Act, the Court in Krishan Kumar v. State of NCT of Delhi held that even though the applicant is seeking only an interim bail, the Court must assess the plea of interim bail on the touchstone of the criteria for grant of regular bail in light of Section 29 of the POCSO Act.

In Rajeev Kumar v. State, the Court held that even when the medico-legal case (‘MLC’) report neither revealed any evidence of penetrative sexual assault nor any evidence of touching of the private parts of the victim, the act of the accused in pressing the mouth of the victim with his hand and lying down on her with a sexual intent would amount to sexual assault punishable under Section 8 of the POCSO Act.

In Ishwar Soni v. The State (Government of NCT of Delhi), the Court upheld a conviction under Section 366A of the IPC read with Section 6 of the POCSO Act inter alia on the ground that there were material inconsistencies between the defense of the accused and the suggestions put by him to the prosecution witnesses.

In Sanju Gharai v. The State (NCT of Delhi), while upholding a conviction under Section 376 / 506 of the IPC read with Section 6 of the POCSO Act, the Court observed that allegations of a monetary transaction going sour having led to the institution of a false complaint, was required to be backed up by the leading of cogent evidence in this regard by the accused.

In Jitender Prasad v. State, the Court upheld a conviction under Section 376/342 of the IPC read with Section 6 of the POCSO Act inter alia on the ground that the from the Forensic Science Laboratory clearly demonstrated that the bloodstains on the mat upon which the sexual assault was perpetrated and the bloodstains on the underwear of the accused clearly matched.

While upholding a conviction under Section 6 of the POCSO Act read with Section 506 of the IPC, the Court in Mahipal @ Lala v. The State (Government of NCT) of Delhi, observed that the fact that the prosecutrix has resiled from her statement under Section 164 of the CR.P.C. would not be fatal to the case of the prosecution in the background of the fact that the accused was the stepfather and upon the allegations having been made, he had been arrested thus leaving the prosecutrix with no option but to remain in the care of the authorities. Therefore, it was plausible to suggest that in her desperation to ensure his release she had resiled from her statement.

In Gurudev Singh v. Directorate of Revenue Intelligence, the Court reiterated that the parameters laid down under Section 37(1)(b) of the NDPS Act are applicable not only to matters with respect to grant of bail but to cases of suspension of sentence as well.

In Dharna Goyal @ Dharna Garg v. Aryan Infratech Private Limited, the Court reiterated that in order to subject a person to criminal prosecution under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’), it was not enough to merely state the designation of the person as a Director or the CEO of a company but specific and clear averments as regards the specific role played by the individual in the conduct of the business was required.

In Mohd Hussain Molani v. National Investigation Agency, the Court rejected a prayer for interim bail of an accused facing proceedings under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) inasmuch as it noted that the allegations were serious in nature, i.e. aiding in the transfer of funds to a terrorist organization and the evidence on record demonstrated the prima-facie involvement of the applicant.

In Shahzad v. State, the Court held that prima facie an acquittal under Sections 393 and 397 of the IPC could not cohabit with a simultaneous conviction for the said offence under Section 394 of the IPC. The Court further observed that while considering the aspect of suspension of sentence, the Court is concerned with the merits of the impugned Order of conviction and is not expected to make a tally of the various other cases in which the applicant/convict may be involved.

In Daulat Singh Consulting Private Limited v. Gateway Rail Freight Limited, the Court deprecated the tendency to file applications under Section 340 of the Cr.P.C. without any justifiable grounds and merely as a tactic to pressurize the counter-party.

In Ashraf Ali v. State of NCT of Delhi, the Court observed that a typographical error in a charge sheet could not be utilized to establish a case of disputed identity when the identity is otherwise clearly established in the supplementary statements under Section 173(8) of the Cr.P.C. as well as the statement in the arrest/personal search memo.

In Narinder Singh v. State, the Court reiterated that a mere change of counsel is not a ground for recall of a witness for further cross-examination.

EDUCATION

In Anuj Gupta v. Union of India through Department of Higher Education, Ministry of Education, the Court refused to interfere with the decision taken by an admission board to not conduct re-examination and reiterated the principle that the Court would ordinarily not interfere with the decision of experts in academic matters.

In Dr. Deepika Veerwal v. National Board of Examination, the Court deprecated the rejection of the candidature of a student on the specious ground that the necessary No-Objection-Certificate (‘NOC’) was defective when even the entity which had issued the NOC had subsequently validated the same, and the Court accordingly directed the institution to admit the student.

In Rhythm Jain v. National Testing Agency, the Court observed that when there was a strenuously contested issue of fact as to whether the candidate taking the exam had, in fact, lost a significant period of time while writing the exam on account of alleged technical glitches or not, then the plea of subjecting the marks to a normalization procedure could not be accepted.

In Yash Yadav v. Central Board of Secondary Education, the Court observed that a regulation which permits condonation of a high level of attendance shortage could not be validly invoked in a case where the ailment complained of is not serious in nature and the medical record submitted before the Court in this regard was also sketchy.

In Sandesh Jha v. University of Delhi, the Court observed that a belated challenge to the mode and manner of conduct of examinations despite having been well aware of the said rules which had been in place for several years could not be entertained.

In Nishant Khatri v. Jawaharlal Nehru University, the Court observed that the Court is not bound to grant damages in writ proceedings even when wrongful denial of admission is established, and the appropriate course for seeking damages is to approach the civil Court in this regard.

In Dr. Akshee Batra v. Union of India, the Court reiterated that cut-off dates for admission in medical courses cannot be relaxed even if seats remain vacant as a result thereof.

ENVIRONMENTAL LAW

In Khodiyar Animal Welfare Trust v. Ministry of Environment Forest and Climate Change, the Court observed that keeping in view the provisions of Article 41A and Article 51A(g) of the Constitution of India, the State is bound to make appropriate regulations even over and above those contemplated by the Convention on International Trade in Endangered Species on Wild Fauna and Flora, with an aim to protect the environment and safeguard the forests and the wildlife of the country.

Amit George
Amit George

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 Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.

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