- Apprentice Lawyer
The Lawyer's Digest is a collection of concise summaries of all the judgments passed by the Supreme Court of India over the course of a month.
Topics have been sub-divided into areas of law including arbitration, criminal law, consumer law, service and administrative law, etc. for ease of reading.
Here are the summaries of judgments passed in February 2021.
In National Highways Authority of India v. M/s Progressive Construction Ltd, the challenge arose from the cross-appeals filed by both parties under Section 37 before the division bench of the Delhi High Court which had vide the impugned interim order dated 04.12.2019 directed that the Appeals be confined to the findings with respect to only certain claims and one counterclaim. These cross-appeals arose from the Judgment passed under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the Single Judge vide Order dated 10.04.2019 has substantially set aside the Award passed by a tribunal, on the ground that the arbitral tribunal has drawn incorrect inferences from the documents on record and has not considered vital and relevant evidence in reaching its conclusions. During the proceedings, the parties agreed to a fresh adjudication of all the claims and counterclaims made by the parties before a Sole Arbitrator and hence the court appointed a sole arbitrator for afresh adjudication of claims and counterclaims. [Key Words: Sections 34, 37 of the Arbitration and Conciliation Act, 1996, cross appeals, three-member tribunal, fresh adjudication] [ Coram: Indu Malhotra, J., Ajay Rastogi, J.]
In Chintels India Ltd. vs Bhayana Builders, the appeal arose out of a certificate issued by the High Court of Delhi under Article 133 read with Article 134A of the Constitution of India. The question before the division bench of the High Court was whether the order of the single judge refusing to condone the appellant’s delay in filing an application under Section 34 of the Arbitration and Conciliation Act 1996 is an appealable order under Section 37 (1)(c) of the 1996 Act. The division bench of the High Court dismissed the appeal in light of the Ramdas Construction Co. case being upheld by the Supreme Court. The Court cited its judgment in Essar Constructions (2000) 6 SCC 94 where it examined the provision under Section 39 of the Arbitration Act 1940, which is pari materia to Section 37 (1)(c) of the 1996 Act, to hold that an order rejecting the application to set aside an award by reason of delay in filing is an appealable order, by applying the effects test. i.e., the effect of a refusal of condonation of delay results in refusal to set aside the award, whereas the condonation of delay does not result in setting aside the award. The Court also noted that the effects test stands incorporated in the language of Section 37 of the 1996 Act and also the express language of Section 37 (1)(c) which provides for appeal for orders setting aside or refusing to set aside the award under Section 34 and not just under Section 34 (2) of the 1996 Act. The Court distinguished its order under Ramdas Construction noting that the Court had refused to interfere in the judgment of the High Court by citing Himachal Pradesh Techno Engineers (2010) 12 SCC 210 and that such refusal to interfere could not be said to be approving the judgment of the High Court. The Court set aside the judgment of the High Court and remitted the matter to be considered afresh. [Key Words: Section 37 (1) (c), Section 34 of the Arbitration and Conciliation Act 1996, Order refusing condonation of delay] [Coram: RF Nariman, J., Navin Sinha, J., KM Joseph, J.]
In OPTO Circuit India Ltd. Vs. Axis Bank & Ors. the appellant was aggrieved by the order of the Enforcement Directorate freezing its bank accounts. The appellants’ writ petitions before the High Court came to be rejected giving rise to the present appeal. The Court observed that although the High Court was correct in holding the impugned order was passed with competence under the Prevention of Money Laundering Act 2002 (“PMLA”), it ought to have examined whether the due process contemplated under the PMLA were complied with. The Court noted that the in the present instance, there was nothing on record to suggest the authority issuing the order for freezing the bank accounts had recorded the reasons in writing as required under Section 17 (1) of PMLA or forwarded a copy thereof to the Adjudicating Authority as required under Section 17 (2). The Court noted that although the order directing freezing of accounts need not contain all details, it should necessarily record the belief as provided under Section 17 (1). The Court recalled Chandra Kishor Jha (1999) 8 SCC 266 to reiterate the salutary principle that if a statue provides for a thing to be done in a particular manner, it has to be done in that manner and no other. The Court also rejected the respondent’s submission that the order of freezing was made under Section 102 of the CrPC, stating that a) PMLA being a standalone provision and having the necessary powers, the powers and procedure therein are to be complied with; b) When a power is available under a special enactment, resorting to power under a general law does not arise; c) the power under Section 102, CrPC is with respect to the Police Officer in the course of an investigation and is different from the scheme under PMLA. The Court relied on Mohinder Singh Gill & Another (1978) 1 SCC 405 to reiterate that the validity of an order of a statutory authority ought to be judged by the reasons contained therein and cannot be supplemented by fresh reasons or grounds. Thus, the Court allowed the appeal to the extent of the illegality of freezing of the bank accounts, while reserving the right of the respondents to initiate action afresh in accordance with law. [Keywords: Section 17 (1), Section 17 (2) Prevention of Money Laundering Act 2002, freezing of bank accounts, procedural safeguards] [Coram: SA Bobde, CJI., AS Bopanna, J., V Ramasubramanian, J.]
In M/s. Kalamani Tex & Anr v. P. Balasubramanian, the Bench held that a High Court was allowed to interfere with a trial court’s finding of acquittal under Section 378, CrPC if the trial court committed a patent error of law, grave miscarriage of justice or arrived at a perverse finding of fact. In the present case, the Supreme Court reiterated that the trial court failed to appreciate that a statutory presumption under Section 118 read with Section 139 Negotiable Instruments Act (NIA), 1881 even applied to blank cheques, especially when a business relationship stood unrebutted. The respondent’s claim for compensation was not allowed as he did not ask for compensation before the High Court and did not even challenge the High Court’s judgment convicting the appellants. The Bench observed that while it was true that Chapter XVII of the NIA was punitive, compensatory and restitutive, and that they envisioned a single window for criminal liability as well as civil liability for the realisation of the cheque amount, it was also well settled that a uniform approach was necessary for awarding compensation which would ordinarily be “twice the cheque amount along with simple interest at the rate of 9% per annum.” [Key Words: cheque bounce, rebuttable presumption, preponderance of probability] [Coram: NV Ramana, J., Surya Kant, J., Aniruddha Bose, J.]
In State of Gujarat v. Bhalchandra Laxmishankar Dave, the bench depreciated the High Court reversing the Trial Court’s order of conviction under Section 7 read with Sections 13(1) and 13(2) of the Prevention of Corruption Act without any discussion or re-appreciation of evidence whatsoever. It was observed that, as distinguished from an appeal against acquittal, the High Court had fewer fetters in an appeal against conviction where, being the Court of appeal, it had wide powers of appreciation of evidence and had to re-appreciate the entire evidence on record being a First Appellate Court. [Key Words: appeal against conviction, appeal against acquittal, double presumption, presumption of innocence] [Coram: Ashok Bhushan, J., R Subhash Reddy, J. MR Shah, J.]
In Sk. Sakkar @ Mannan Vs. State of West Bengal, the appellant. being convicted under Section 20 of the Narcotics Drugs and Psychotropic Substances Act 1985 (“NDPS”) and sentenced to 5 years of rigorous imprisonment, was aggrieved by the dismissal of his appeal by the High Court. The Court held that there was no merit in the appeal noting that reappreciation of evidence on record does not ordinarily fall within the scope and ambit of powers under Article 136 of the Constitution. The Court also rejected the appellant’s plea for parity with his co-accused by noting that they were all rounded up based after the incident whereas the appellant was caught in conscious possession of the 11 kgs of ganja. However, the Court considered the plea for modification of sentence on grounds of protracted trial and the appellant’s good conduct, observing that on the date of occurrence in 1998, the NDPS Act as it existed prior to amendment in 2001 was applicable and the legislature in its wisdom had not provided for a mandatory minimum sentence. The Court modified the sentence of the appellant to period already undergone. [Key Words: Section 20 Narcotics Drugs and Psychotropic Substances Act 1985 [Coram: NV Ramana, J., Surya Kant, J., Anirduddha Bose, J.]
In Pravat Chandra Mohanty vs the State of Odisha & Anr., the appellants were police officers convicted and sentenced under Section 304 (Part II) read with Section 34, Section 471 read with Section 466, Section 342, Section 323 of the IPC with varying sentences by the trial court. In appeal, the High Court set aside the conviction under Section 304 (Part II) read with Section 34 of the IPC and upheld the conviction under Section 471 read with Section 466, Section 342, Section 323 of the IPC was upheld, while also convicting the appellants under Section 324 of the IPC. The appellants before the Court limited their challenge to conviction Section 324 of the IPC and in the alternative sought the leave of the Court to compound the offence with the legal representatives of the deceased, to which the LRs were agreeable. The Court examining the evidence on record, rejected the appellants’ submission that the weapon used in the offence being lathi and batons could not be termed as dangerous weapons under Section 324 IPC and hence upheld their conviction under the provision. The Court observed that although the offence under Section 324 IPC was compoundable as on the date of occurrence in 1985, no composition was allowed without the leave of the Court as provided under Section 320 (5) CrPC. The Court then referred to Provisional Government, Central Provinces and Berar vs. Bipin Choudhary AIR (1945) Nagpur, Oudh, Peshawar & Sind 104 to state where a person holding public office abuses their position, it is a matter of great public concern and not fit for grant of leave for composition under Section 320 CrPC. The Court also relied on Yashwant and others vs State Of Maharashtra (2019) 18 SCC 571 to state that when the police commit offences, the punishment has to be proportionately stringent. However, the Court took into consideration the agreement for composition of offence between the appellants and the LRs and also the advanced age of the appellants. The Court relied on Gulab Das (2011) 10 SCC 765 to state that even when composition of offence is not permitted, the Court can, in appropriate cases, consider the question of sentence. The Court thus partly allowed the appeals and reduced the sentence of the appellants under Section 324, IPC to 6 months along with directions to pay enhanced compensation to the LRs. [Key Words: Section 324 of the IPC, dangerous weapon, lathi, offence by police, compounding of offence- when impermissible] [Coram: Ashok Bhushan, J., Ajay Rastogi, J.]
In Pardeshiram v. State of MP (Now Chattisgarh, the Court held that as the accused was an agriculturist, the shovel was an agricultural tool possessed by agriculturists and as the accused and deceased were from the same family, the cause of provocation was sudden and without premeditation, it was a case falling under Exception 4 to Section 300, IPC. As the injuries were inflicted in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken advantage or acted cruelly or unusually, the appellant was liable to be convicted under Section 304, Part I. As the appellant had already served 18 years in jail, he was sentenced to the period already undergone and released. [Key Words: Appeal against judgment of conviction, Section 302 IPC] [Coram: Hemant Gupta, J., Ravindra Bhat, J.]
In Ram Vijay Singh v. State of Uttar Pradesh, appeals had been filed against an order of the Allahabad High Court dismissing an appeal against a conviction under Sections 302/34, IPC. The Court held that the plea of juvenility can be raised at any stage, even after finality of proceedings before the Court. Where there was an absence of documents to prove juvenility under Rule 12(3)(b) of the Juvenile Justice Rules, medical opinion would be sought from a duly constituted medical board. The Court of the Juvenile Justice Board may, if considered necessary, grant a benefit of doubt to the child by considering their age on the lower side within the margin of one year. However, Section 94 of the 94 of the Act did not have a corresponding provision regarding a margin. The Court held that where there was no medical report, an interim order of bail pending trial in a court was not determinative of juvenility. The Court held that a part of a statement of a witness may be believed even if some part is not relied upon by the Court. [Key Words: Determination of Juvenility, Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489, Section 7-A of the Juvenile Justice (Care and Protection of Children) Act 2000, Juvenile Justice (Care and Protection of Children) Rules 2007, Ilangovan v State of TN (2020) 10 SCC 533] [Coram: RF Nariman, J., Hemant Gupta, J., BR Gavai, J.]
In Vishwas Bhandari Vs. State of Punjab & Anr., the appellant was aggrieved by the order the High Court declining his application under Section 482 of the CrPC for quashing of the FIR and subsequent proceedings. The Court allowed the petition noting that the allegations contained in the FIR were primarily against the appellants’ co-accused under Section 363 and Section 366-A of the IPC and not against the appellant. The Court noted that the appellant had married the prosecutrix with the consent of both families and was also acquitted. Thus, the High Court had erred in declining to allow his petition under Section 482 CrPC in the absence of any evidence against him. [Keywords: Section 482 CrPC, Section 363 and Section 366-A of the IPC, abduction] [Coram: Hemant Gupta, J., S. Ravindra Bhat, J.]
In R Damodaran vs The State represented by the Inspector of Police, the appellant challenged his conviction under Section 302, IPC by the trial court which was later affirmed by the High Court. The appellant was accused of hitting his pregnant wife with a log with homicidal violence, resulting in her death. The Court recalled the principles to be kept in mind when only circumstantial evidence is laid before it as stated in Sharad Birdhichand Sarda (1984) 4 SCC 116 and Padala Veera Reddy 1989 Supp (2) SCC 706 and held that the chain of circumstances established by the appellant leave no doubt that it was the appellant who murdered his wife and who then took her to the hospital and made a false statement that she had suffered a cardiac arrest, as established by the statement of the PW-2, to whom the deceased had made a statement that the appellant had hit her with a log and also by the post-mortem report. Accordingly, the Court dismissed the appeal. [Key Words: Section 302 IPC, circumstantial evidence, chain of events] [Coram: Ashok Bhushan, J., Ajay Rastogi, J.]
In Laxmibai Chandaragi B and Anr v. State of Karnataka and Ors., a police complaint was lodged by the petitioner’s father alleging that his daughter was missing pursuant to which a FIR was registered of a missing person. During investigation, it became apparent that petitioner no.1 had travelled without informing her parents to Delhi and married petitioner no.2 out of her own will. The marriage certificate was also subsequently shared by the petitioner no.1 via WhatsApp. The same was also informed to the IO by the petitioner. However, the IO insisted on her appearance before the police station to record a statement for closure of investigation on the threat of possibility of a false case being registered by her parents against the petitioner no.2. The consequent action of the police would result in the arrest of petitioner no.2. The Court strongly deprecated the conduct of the IO in not recording her statement at her house instead of compelling the petitioner no.1 to come and record the statement at police station. Quashing the FIR, the Court observed that no consent of family or community is required if two adult individuals agree to enter into wedlock, and further suggested training programmes of IOs in such cases. [Key Words: FIR of missing person, wedlock, statement, threat by IO, quashing] [ Coram: SK Kaul, J., Hrishikesh Roy, J.]
In Devilal and Others v. State of Madhya Pradesh, the Court considered to what extent benefit could be given under the Juvenile Justice Act where the offender was more than 16 years but less than 18 years of age on the day of the incident. The Court held that in such a case, even if the accused were guilty, the matter must be remitted to the jurisdictional Juvenile Justice Board. Further, the Court held that merely because the blood pressure of a witness could not be detected, it was not necessary that the witness was not in a physical condition to make any reporting to the police and that such an assertion was purely an opinion of an expert. [Key Words: S 302/34 IPC, S 3(1)(10), 3(2)(5) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, Juvenile Justice (Care and Protection of Children) Act 2000, Mumtaz alias Muntyaz v. State of Uttar Pradesh (2016) 11 SCC 786] [Coram: UU Lalit, J., Indira Banerjee, J., KM Joseph, J.]
In Union of India v. KA Najeeb, appeals had been preferred by the Union through the NIA against an order of the Kerala High Court granting bail for offences under the IPC. The Court held that there is a difference between the parameters when deciding a bail application and when deciding on cancelling bail. The Court held that where it is obvious that a timely trial is not possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail. Importantly, the Court held that the statutory restrictions of S 43-D (5) of the UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. [Key Words: National Investigation Agency, Sections 143, 147, 148, 120-B, 341, 427, 323, 324, 326, 506(H), 201, 202, 153A, 212, 307, 149 of the IPC, Sections 16, 18, 18-B, 19, 20 of the Unlawful Activities (Prevention) Act 1967, S 3 of the Explosive Substances Act 1908, Puran v. Rambilas (2001) 6 SCC 338, State of Bihar v. Rajballav Prasad (2017) 2 SCC 178] [Coram: NV Ramana, J., Surya Kant, J., Aniruddha Bose, J.]
In State of Odisha v. Banabihari Mohapatra and Anr., the challenge was to the final judgment and order of the High Court of Orissa dismissing an application for leave to appeal filed by the State, thereby acquitting the respondents under Section 302/210 read with Section 34 of the IPC. It was argued by the petitioner State that there was a grave miscarriage of justice as the High Court had dismissed the leave to appeal on the ground of delay of 41 days despite the severity of the charges. The Court upheld the order of the High Court by observing that even though the leave to appeal had been rejected on the ground of delay, but it was done so after considering the merits of the application for leave to appeal. The Court examined the judgment of the Sessions Court and the witness statements to conclude that the prosecution had miserably failed to establish the guilt of the respondents and thus there was no need for any interference with the judgment of the Trial Court or the High Court. [Key Words: Section 302/210 r/w Section 34 IPC, leave to appeal, delay, witness statements] [Coram: Indira Banerjee, J., Hemant Gupta, J.]
In Gauri Shankar v. State of Punjab, the Court affirmed the conviction and sentence of life imprisonment under Section 302, IPC. It was argued by the appellant that on the date of framing of charges, the statement of material prosecution witnesses PW1 and PW2 was recorded without affording reasonable opportunity to the accused-appellant to cross-examine two material prosecution witnesses as mandated under Section 230 of the Code of Criminal Procedure (CrPC), 1973. The Court, after perusal of the record, found that the same was done as the accused had pleaded guilty after framing of charges, but as a rule of prudence, four witnesses were examined, and two of them were also cross examined. Thereafter, the accused claimed trial, but did not try to recall the previous two witnesses. It was further argued (for the first time) that the punishment for imprisonment for life till the end of natural life, could have been exercised only by the High Court or by this Court. While the Court agreed with the legal principle, however while looking at the totality of the case, the Court considered it appropriate to confirm the sentence of imprisonment for life meaning remainder of natural life, while upholding the conviction under Section 302 IPC. [Key Words: Section 302 IPC, Section 230 Code of Criminal Procedure 1973, punishment for imprisonment for life till the end of natural life, conviction, framing of charges] [ Coram: Indu Malhotra, J., Ajay Rastogi, J.]
In Khokan Vishwas Vs. State of Chhattisgarh, the appellant-accused challenged the confirmation of his conviction under Section 302, IPC. The Court examined the case to the limited extent as to whether the case would fall under Section 302, IPC or under Section 304-I, IPC. The Court noted that even by the prosecution case, the accused had had an altercation over money with his neighbour victim where the accused sat on the victim’s abdomen. The next evening, the victim complained of pain and was taken to a hospital and died two days later. The cause of death was noted to be shock due to septicaemia from internal injuries in the abdomen. The Court held that from the facts of the case it could not be said that the accused had the intention to cause death or such bodily injury which was sufficient to cause death in the ordinary course of nature. Therefore, the Court held that the case would fall under exception 4 to Section 300 IPC. The Court modified the judgment of the High Court, convicting the appellant-accused under Section 304-I, IPC and sentenced him to 14.5 years of imprisonment which he had already served. [Key Words: Culpable Homicide not amounting to murder, Section 300 IPC, Section 302 IPC, Section 304 IPC, Exception 4 under Section 300 IPC] [Coram: DY Chandrachud, J., MR Shah, J.]
In N. Vijay Kumar Vs. State of Tamil Nadu, the High Court overturned the order and judgment of the trial court acquitting the accused-appellant and convicted him under Sections 7 and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 and also imposed a sentence of rigorous imprisonment of one year along with a fine of Rs. 5000/-. Examining the evidence on record, the Court noted that although the powder coated currency was handed over to the accused at 5.45 PM, the phenolphthalein test was conducted only at 7 pm and no explanation was given for the same. The Court also noted that admittedly, PW2-Complainant had reason for ill feeling towards the accused and that the desk drawer where from which the marked currency and cell phone were recovered was unattended for a period before recovery when several people had come into and exited the room. The Court relied on Chandrappa & Ors (2007) 4 SCC 415 and also Murugesan (2012) 10 SCC 383 to reiterate that an appellate court under Section 378 CrPC ought not to disturb a finding of acquittal as long as the view taken by the trial court is a possible view, and since the view of the trial court was a possible view, the High Court had erred in overturning the acquittal. The Court also relied on C.M. Girish Babu (2009) 3 SCC 779 and B. Jayaraj (2014) 13 SCC 55 to state that mere recovery of marked currency is not sufficient to constitute offence under Section 13(1)(d)(i) of the Prevention of Corruption Act 1988. [Key Words: Sections 7 and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act 1988, Section 378 CrPC, Possible View, overturning acquittal] [Coram: Ashok Bhushan, J., R Subash Reddy, J., MR Shah, J.]
In Joydeep Majumdar v. Bharti Jaiswal Majumdar, the Bench reiterated that considering dissolution of marriage at the instance of a spouse who alleged mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship i.e. the wronged party could not be expected to condone such conduct and live with the spouse. It was further held that the degree of tolerance would vary according to socio-economic status. In the present case, dissolution of marriage, on account of cruelty, was allowed as the wife made several defamatory complaints to the husband’s superiors in the Army due to which a Court of Inquiry was held, albeit with no definite finding. The wife also made defamatory complainants to the State Commission for Women as well as other platforms due to which the husband’s career and reputation suffered. [Key Words: Samar Ghosh (2007) 4 SCC 511, dissolution of marriage, cruelty] [Coram: SK Kaul, J., Dinesh Maheshwari, J., Hrishikesh Roy, J.]
In Khushi Ram and Ors v. Nawal Singh and Ors, the bench held that in view of the fact that the consent decree before it (dated 19.08.1991) related to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause. Thus, the consent decree was not registrable. The Court also held that a family settlement could be entered into by an intestate widow (with surviving children) with her brother’s children as the latter constituted a class under Section 15(1)(d) of the Hindu Succession Act 1956, and the term “family” was to be construed widely. [Key Words: family settlement, family, strangers, intestate, Hindu window] [Coram: Ashok Bhushan, J., R Subhash Reddy, J.]
In Ram Vijay Singh v. State of Uttar Pradesh, appeals had been filed against an order of the Allahabad High Court dismissing an appeal against a conviction under Sections 302/34, IPC. The Court held that the plea of juvenility can be raised at any stage, even after finality of proceedings before the Court. Where there was an absence of documents to prove juvenility under Rule 12(3)(b) of the Juvenile Justice Rules, medical opinion would be sought from a duly constituted medical board. The Court of the Juvenile Justice Board may, if considered necessary grant a benefit of doubt to the child by considering their age on lower side within the margin of one year. However, Section 94 of the 94 of the Act did not have a corresponding provision regarding a margin. The Court held that where there was no medical report, an interim order of bail pending trial in a court was not determinative of juvenility. The Court held that a part of a statement of a witness may be believed even if some part is not relied upon by the Court. [Key Words: Determination of Juvenility, Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489, Section 7-A of the Juvenile Justice (Care and Protection of Children) Act 2000, Juvenile Justice (Care and Protection of Children) Rules 2007, Ilangovan v State of TN (2020) 10 SCC 533] [Coram: RF Nariman, J., Hemant Gupta, J., BR Gavai, J.]
In Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvy Ltd, an appeal had been filed under Section 62 of the IBC challenging a decision of the NCLAT affirming the decision of the NCLT holding that in view of the provisions of Section 10A the application filed by the appellant as an operational creditor was not maintainable. The question before the Court was whether the provisions of S 10A stood attracted to an application filed before the date on which the provision came into force in respect of a default occurring before 25 March 2020. The Court held that the expression ‘shall ever be filed’ was a clear indicator that the legislative intent was to ban any institution from filing applications commencing CIRP in respect of defaults occurring on or after 25 March 2020 for a period of 6 months, extendable up to one year as notified. The Court held that therefore, if the debt occurred on or after March 25, merely because the application was filed before 05 June 2020 was not a reason to permit such applications. [Key Words: Sections 5(11), 9, 10A, 62 IBC, Covid – 19, Rajasthan (Protection of Tenants) Ordinance 1949] [Coram: DY Chandrachud, J., MR Shah, J.]
In Committee of Creditors of AMTEK Auto Limited Through Corporation Bank vs Dinkar T Venkatasubramanian & Ors., the Court considered a Contempt Petition instituted by the Committee of Creditors of AMTEK Auto Limited (“COC”) against the successful resolution application Deccan Value Investors LP (“DVI”) and also an order seeking rectification of the order dated 18 June, 2020 of the Court filed by DVI. The resolution plan submitted by DVI came to be approved by the COC on 11 February, 2020 after a protracted and complicated resolution process while the Supreme Court was seized of the matter. By an order dated 8 June 2020, the Court had relegated the matter to the National Company Law Tribunal for decision under Section 31 of the Insolvency and Bankruptcy Code 2016 within a fortnight. DVI filed an application before the Court seeking extension of time for approval of the resolution plan by the NCLT so as to enable DVI to renegotiate in light of the substantial effect on the business due to the COVID-19 Pandemic. The Court had rejected the application by order dated 18 June, 2020 stating that the application to seek the withdrawal of the resolution plan is rejected, which is sought to be modified by DVI. Meanwhile, NCLT approved the resolution plan by order dated 9 July 2020, following which the erstwhile Resolution Professional and COC sought DVI’s participation in implementation of the resolution plan. DVI resisted the implementation stating that it intended to challenge the approval of the resolution plan before the NCLAT, leading to the institution of the Contempt Petition. The Court held that DVI was attempting to renege from its resolution plan under the guise of its application seeking further time to renegotiate when there was no provision of renegotiation after the approval by the COC. Thus, the Court declined to entertain DVI’s application for rectification/clarification. In regard to the Contempt Petition, the Court stated that although DVI’s conduct was not bona fide has to remain circumspect in invoking contempt jurisdiction as setting up an untenable plea should not in itself invite penal consequences under contempt law. Accordingly, the Court dismissed the Contempt Petition. The Court recorded DVIs statement that it shall not invoke plea of force majeure in the proceedings before NCLAT. [Key Words: Section 31 the Insolvency and Bankruptcy Code 2016, Law of Contempt, untenable plea] [Coram: DY Chandrachud, J., MR Shah, J.]
In Phoenix ARC Pvt Ltd v. Ketulbhai Ramubhai Patel, the challenge was to the dismissal of the company appeal by the NCLAT holding that the appellant is not a financial creditor of the Corporate Debtor. The question before the Court was to consider whether the appellant was a financial creditor within the meaning of Section 5(8) of the Insolvency and Bankruptcy Code, 2016, on the basis of a pledge agreement and a deed of undertaking entered into with L&T Infrastructure Finance Company Ltd (“L&T”). The transaction in question comprised of a facility agreement dated 12.05.2011 that had been entered into between Doshian Ltd (borrower) and L&T. A pledge agreement dated 10.01.2012 was subsequently entered into between Doshion Veolia Water Systems Pvt Ltd (Corporate Debtor) and L&T, pledging the shares of one Gondwana Engineers Ltd as security. On the same day, a deed of undertaking was also executed by the Corporate Debtor in favour of L&T. Thereafter, all rights, title and interest in the financial facility was assigned in favour of the present appellant by L&T. The Court upheld the judgment of the NCLAT by stating that the appellant could not be termed as a financial creditor as there was no financial debt owed to the Corporate Debtor. The Court further held that this was not a case where the Corporate Debtor had entered into a contract to perform the promise or discharge the liability of a borrower in case of his default and thus the pledge agreement and deed of undertaking could not be treated as a contract of guarantee within the meaning of Section 126 of the Indian Contract Act 1870. Relying on its judgment in Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited (2020) 8 SCC 401 the court held that the appellant at best could be given the status of a secured debtor who has advanced a security by way of pledge, but not a financial creditor within the meaning of Section 5 (7) and (8) of the Code. [Key Words: financial creditor, secured creditor, deed of undertaking, pledge, Section 5 (7) and (8), financial debt, contract of guarantee] [ oram: Ashok Bhushan, J., R. Subhash Reddy, J., MR Shah, J.]
In Phoenix Arc Private Limited v. Spade Financial Services Limited & Ors., the Court held that the IBC had made provisions for identifying, annulling or disregarding ‘avoidable transactions’ which distressed companies have taken, such as preferential transactions under S 43 IBC, undervalued transactions under Section 45(2) IBC, transactions defrauding creditors under Section 49 IBC, extortionate transactions under Section 50 IBC. The Court held that where no interest was claimed on the alleged debt, where the auditors of the debtor had been putting a note in its balance sheets that the interest was not being paid due to a dispute, where the Memorandum of Understanding does not stipulate the period of repayment, there is no time value of money and thus it is not a financial debt. In these circumstances, where the Loan was not registered with the Registrar of Companies, the Court held the Memorandum of Understanding to be eye-wash and collusive and thus would not constitute a financial debt. The Court held that where an individual held multiple positions in companies forming part of a group of companies, where the promoter of the group had invested in the person’s enterprises, had commercial transactions, and where the person was appointed the Group CEO (even for a short period) they would be related parties for the purposes of the IBC. The Court upheld the NCLAT’s finding that the Respondent’s transactions were taken on the basis of advice/ instructions/ direction of the board of directors of the Corporate Director were under Section 5(24)(f). On the question of whether the first proviso to Section 21(2) as to whether the disqualification under the proviso would attach to a financial creditor in praesenti or if the disqualification would extend to those financial creditors who were related to the corporate debtor at the time of acquiring the debt, the Court held that only those related parties in praesenti would be debarred from the CoC, those related party financial creditors that cease to be related parties in order to circumvent the exclusion under the first proviso to Section 21(2) should also be considered as being covered by the exclusion thereunder. [Key Words: CIRP, Sections 5(7), 5(8), 5(24), 21(1), 28(1) of the IBC 2016, ‘disburse’, ‘time value of money’, ‘sham transactions’, financial debt, related parties, insolvency and bankruptcy, IRP, CoC, interpretation of the word ‘is’] [Coram: DY Chandrachud, J., Indu Malhotra, J., Indira Banerjee, J.]
In UNITECH Limited & Ors. V. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors., the Court held that while deciding to exercise jurisdiction under writ in a contractual dispute, a Court must eschew disputed questions of fact which would depend upon an evidentiary determination requiring a trial. However, the jurisdiction under Article 226 is not ousted on the basis that the dispute pertains to a contract. The Court held that under the contract, the Andhra Pradesh Industrial Infrastructure Corporation was liable to make a compensatory payment if it were unable to execute a sale deed in favour of the developer in respect of the land within the specified time. The Court held that investors who respond to representations of the State while investing are legitimately entitled to assert that the representations must be fulfilled and to enforce compliance with duties which have been contractually assumed. [Key Words: Maintainability of writ petitions under Article 226 of the Constitution of India, Contractual Right to Compensatory Payment, Apportionment of the Liabilities between the instrumentalities of the state of Andhra Pradesh and Telangana, Andhra Pradesh Reorganization Act 2014] [Coram: DY Chandrachud, J., MR Shah, J.]
In Upendra Choudhary Vs. Bulandsharar Development Authority & Ors., the Court considered a petition under Article 32 of the Constitution by a homebuyer, who, inter alia, prayed that that the Court cancel all the sale agreements made by a real estate developer in a particular project and direct the return of payments with interest or in the alternate appoint a committee headed by a retired judge to ensure timely completion and delivery of the homes. The Court noted its observations in Devendra Dwivedi WP (Criminal) 272/2020 stating that recourse to jurisdiction under Article 32 is a matter for calibrated judicial discretion. The Court also recalled its order in Shelly Lal WP (C) No. 1390 /2020, where the Court declined to entertain a petition under Article 32 in a case with similar facts. The Court declined to entertain the petition under Article 32 after noting the specific statutory remedies available for the grievance of the petitioner. [Keywords: Real Estate Project, Judicial Intervention, Article 32, Jurisdiction, Judicial Discretion] [Coram: DY Chandrachud J., MR Shah, J.]
In Union of India v. A. Alagam Perumal Kone & Others, the Bench held that since there were such serious factual disputes, the High Court ought not to have disposed of the writ petition without even issuing notice to the Union to file a counter. The Bench reiterated that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. [Key Words: freedom fighters’ pension, disputed facts in writ petition] [Coram: Ashok Bhushan, J., R Subhash Reddy, J.]
In Gajanan Babulal Bansode & Ors. V. State of Maharashtra & Ors., applications had been filed challenging a Government Resolution which had notified that 636 additional candidates who had scored more than 230 marks in the Limited Departmental Competitive Examination (‘LDCE’) would be accommodated on the grounds that the same would be contrary to the Recruitment Rules. The Court held that Rule 5 of the rules, which could be exercised under the requirement of ‘exigencies of service’ relax the ratio prescribed for appointment by promotion may be resorted to only in rare and exceptional circumstances. The Court also reiterated that the authority cannot fill more than the notified number of vacancies advertised in excess of the notified vacancies. The Court directed that the Government Resolution be stayed during the pendency of proceedings before the Maharashtra Administrative Tribunal. [Key Words: Rule 4, 5 of the Police Sub-Inspector (Recruitment) Rules 1995, Article 320(3)(a) of the Constitution of India] [Coram: L Nageswara Rao, J., Indu Malhotra, J., Vineet Saran, J.]
In Rajesh Kumar Singh & Ors. v. State of Uttar Pradesh & Ors., the Bench held that Rule 5 and Rule 10 of the Uttar Pradesh Police Motor Transport Unit Subordinate Officers Service Rules, 2015 were not discriminatory inasmuch while the appellants contended that they were forced to undergo a selection process for appointment to the post of Head Constable Motor Transport, the selection process was mandated as Head Constable Motor Transport was very technical. It held that while Constable Drivers could be promoted based on seniority to Head Constable Drivers, the Constable Drivers wished to be appointed as Head Constable Motor Transport, then they would have to go through the selection process. [Key Words: constable drivers, lateral seniority] [Coram: L Nageswara Rao, J., Indira Banerjee, J.]
In Nawal Kishore Sharma v. Union of India and Ors., the bench held that Section 47 of the 1995 Act would not assist the petitioner as under Clause 5.9.F(ii) of the National Maritime Board Agreement, 100% compensation was payable to a seaman where the person was found medically unfair for sea service as a result of the injury while in employment: a case that neither the parties articulated. Moreover, the bench noted that Dilated Cardiomyopathy was not listed either under the 1995 Act nor the 2016 Act, and further that while the person was unfit for a seaman’s job, he was fit for other jobs. [Key Words: Clause 21 of the National Maritime Board Agreement, Shipping Corporation of India, Dilated Cardiomyopathy, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, Rights of Persons with Disabilities Act 2016] [Coram: SK Kaul, J., Dinesh Maheshwari, J., Hrishikesh Roy, J.]
In Anmol Kumar Tiwari & Ors. v. The State of Jharkhand & Ors., the bench held that writ petitioners were correctly reinstated in service as they were appointed due to the appointing authority’s error and themselves did not commit any acts of fraud of misrepresentation. Furthermore, the writ petitioners were already serving the state for a number of years after undergoing training. The intervenors were rejected appointment despite scoring more marks than the writ petitioners as (1) a few of them had already been appointed against the vacancies, (2) the writ petitioners could not be dislodged from their posts, and (3) the intervenors could not ask for appointment beyond the vacancies. [Key Words: merit, intervenor, selection error] [Coram: L Nageswara Rao, J., Indira Banerjee, J.]
In Himachal Road Transport Corporation & Anr v. Himachal Road Transport Corporation Retired Employees Union, the bench observed that the rigid parameters in D.S. Nakara had significantly been watered down and it was held by the Supreme Court in a number of cases that fixation of the cut-off date was an executive function based on several factors like economic conditions, financial constraints, administrative and other circumstances and “even if no reason is forthcoming from executive, for fixation of a particular date, it should not be interfered by Court, unless cut-off date leads to some blatantly capricious or outrageous result”. In the facts before it, it was reiterated that all the members of the respondent-Union, while in service, were governed by Contributory Provident Fund Scheme while all those employees who retired before 05.06.1995, were paid all retiral benefits, applicable to them. The employees who were governed by the Contributory Provident Fund Scheme and retired prior to 05.06.1995 and the employees who were in service and continued after 05.06.1995, of the appellant- Corporation, cannot be treated as a homogeneous class. [Key Words: DS Nakara, fixation of cut-off date for extending pension benefit] [Coram: Ashok Bhushan, J., R. Subhash Reddy, J., M.R. Shah, J.]
In Boloram Bordoloi v. Lakhimi Gaolia Bank and Ors., the Court affirmed the decision of the division bench of the Gauhati High Court which had confirmed the order of compulsory retirement arising out of the disciplinary proceedings initiated against the appellant while directing the respondent Bank to pay all retiral benefits. The appellant had argued that the disciplinary authority had issued a show cause notice indicating the proposed punishment of compulsory retirement even before furnishing of a copy of the enquiry report. It was further argued that the punishment was disproportionate to the gravity of charges and no reasoned order had been passed by the disciplinary authority. The court relied on its judgment in Managing Director, ECIL, Hyderabad (1993) 4 SCC 727 to state that the issuance of a mere show cause notice with the proposed or tentative punishment is not the same as a final decision taken by the disciplinary authority. Further, it held that if a punishment is imposed on the basis of an enquiry report, then no elaborate reasons are required to be given while stating that since the nature of the role of a bank manager is to deal with public money, the misconduct of the Appellant was grave enough to warrant the present punishment. [Key Words: compulsory retirement, disciplinary proceedings, show cause notice, disproportionate punishment, enquiry report, bank manager] [ Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]
In Rachna & Ors. v. Union of India & Anr. the case involved a writ petition filed by various aspirants of Civil Services Examination (CSE), 2020, who had exhausted their attempts in 2020 either due to the upper age limit or upper attempt limit and were seeking an additional attempt on the ground that their preparation time had been adversely affected by the onset of the COVID-19 pandemic. The Court examined the legislative scheme put forth by Rules 4 and 6 of the Rules for Competitive Examination, 2020 and held that they prescribe an upper and lower limit for both attempts as well as age, with exceptions for those classes that have been specifically granted concessions. The Court held that the 2020 Rules do not grant the Central Government with the discretion of providing any relaxation in number of attempts or age limits except to those classes specifically mentioned therein. It held that previous concessions in the number of attempts or age limit were policy decisions taken by the Central Government and cannot become a precedent to be relied upon in future. It reiterated, by relying upon M. Selvakumar (2017) 3 SCC 504, that policy decisions are open for judicial review by this Court for a very limited purpose and this Court can interfere into the realm of public policy so framed if it is either absolutely capricious, totally arbitrary, or not informed of reasons. It further held that judicial review of a policy decision is entirely different from issuing a mandamus for framing of policy and that it is within the remit of the executive to make policy decision based on prevailing circumstances for better administration. [Key Words: Judicial Review of Public Policy, Additional Attempt, COVID-19 Pandemic, Legitimate Expectation, Civil Services Examination] [Coram: AM Khanwilkar J., Indu Malhotra J., Ajay Rastogi J.]
In The High Court of Judicature at Madras Rep. by its Registrar General v. MC Subramaniam & Ors., special leave petitions had been filed against a judgment of the Madras High Court allowing a prayer for refund of court fees deposited. The respondent had filed a memo before the High Court seeking permission to withdraw appeal suits as the dispute had been resolved by a private out of court settlement and the Court had directed a refund of Court fee. However, the Registry had refused to refund the same. The Court held that the purpose of Section 89, CPC was to facilitate private settlement and thus informs Section 69-A of the Tamil Nadu Court Fees Act, which further encourages settlements by providing for refund of Court fee. The Court held that the appellant’s interpretation would lead to a scenario where parties who are referred to Mediation by Court would be entitled to a full refund of Court fee while parties who similarly save the Court’s time and resources by private settlement would be deprived of the same benefit was not tenable as it leads to an absurd and unjust outcome. The Court however held that this relief would not be available to parties who after the course of a long-drawn trial or multiple frivolous litigations approach the Court in the guise of having settled their dispute. [Key Words: S 69-A of the Tamil Nadu Court Fees and Suit Valuation Act 1955, S 89 CPC, 238th Report of the Law Commission on ‘Amendment of Section 89 of the Code of Civil Procedure 1908 and Allied Provisions’, Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440, Kamalamma v. Honnali Taluk Agricultural Produce Co-Operative Marketing Society (2010) I AIR Kar. R 279] [Coram: MM Shantanagoudar, J., Vineet Saran, J.]
In U.P Housing & Development Board & Anr. Vs. Namit Sharma, the appellant was aggrieved by the order of the High Court directing the appellant to allot one plot to the respondent against a registration no. originally assigned to his grandfather in the year 1982. Allowing the appeal, the Court held that the High Court had erred in directing the allotment of the plot when the Respondent did not have any vested right since neither been allotted any plot by draw of lots nor was the registration valid any longer by virtue of the Government Order dated 11.10.2002 directing refund of deposit of unsuccessful participants, which was also duly informed to the respondent. The Court also held that the High Court had erred in directing allotment merely on the information provided by the appellant that 19 plots were available for allotment. The Court also noted that although Rule 47 of the Uttar Pradesh Awas Evam Vikas Parishad Bhukhando Tatha Bhavano Ke Panjikaran Evam Pradeshan Sambandhi Viniyam, 1979 being regulation framed under Section 95(1) of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 empowers the Housing Commissioner to take any decision in the interest of the Board, the endorsement on the Respondent’s application was not by such a commissioner but addressed to the commissioner. [Key words: Housing Board, allotment of plot, transfer of registration, vested right] [Coram: Ashok Bhushan, J., R. Subash Reddy, J.]
In Saraswati Educational Charitable Trust and Anr v. Union of India and Ors., the challenge was to the notice dated 29 September, 2017, issued by the second respondent-Medical Council of India by which the petitioner was directed to discharge 132 out of 150 students admitted in the first year MBBS course for the academic year 2017-2018. It was argued by the respondents that these 132 students had been admitted in violation of the Medical Council of India Regulations on Graduate Medical Education, 1997 as these students had not been allotted by the Director-General Medical Education and thus were admitted by the college by conducting a selection on its own, without requesting for more candidates. The Court agreed with the same and held that the students who had secured admission via this process were fully aware of the fact that their names had not been recommended by the Director General Medical Education. However, taking note of the fact that cancelling their admissions at this stage would not serve any purpose, the Court directed them to do community service for a period of two years’ after completing their MBBS Course. The Court also directed the Petitioner to deposit Rs 5 crores in the registry of the Court which would be overseen by a trust constituted by the National Medical Council. [Key Words: Medical Council of India Regulations on Graduate Medical Education 1997, Director General Medical Education, discharge, community service, National Medical Council] [Coram: L Nageswara Rao, J., S Ravindra Bhat, J.]
In Lalitha R Nath and Others v. Kannur Medical College and Others, the bench directed that:
i. Kannur Medical College deposits INR 15,72,89,020/- with the Admission Supervisory Committee for Professional Colleges in Kerala along with full details of the guardians/students to whom the amounts have to be paid, their addresses and bank accounts, within a period of one month of the judgment. On deposit of the amounts, the ASC would disburse and make payments to the guardians/students.
ii. ASC will issue notice to the remaining 92 students, from which it will examine the objections or claims made by the guardians/students as to the actual amount paid by them on the basis of material placed by the guardians/students and the college. ASC will pass appropriate orders which the aggrieved may challenge before the High Court.
iii. KMC would make a deposit of INR 25 crores with the ASC, which deposit would be converted into multiple fixed deposit receipts as the ASC may deem appropriate. These accounts would be held in KMC’s name but operated by ASC.
iv. ASC would disburse and make payments to the guardians/ students on the basis of the orders passed by it or on the basis of the orders passed by the High Court in case a writ petition is filed impugning the order passed by the ASC regarding quantification and refund.
v. The orders passed by the ASC would indicate that the payments in terms of the said order would be made within 45 days of the passing of the order and that any party, be it the student/guardian or KMC, would have the right to challenge the order before the High Court. The High Court would be entitled to direct refund/payment.
vi. KMC would be entitled to claim affiliation and admit students only after depositing INR 15,72,89,020/- and INR 25 crores, apart from fulfilling all other statutory conditions.
vii. The entire process ought to be completed within 6 months.
[Key Words: medical college admission, admission fee refund, Kerala] [Coram: S Abdul Nazeer, J., Sanjiv Khanna, J.]
In Harshit Agarwal and Ors v. Union of India & Ors., the question before the Court was to determine the correctness of the discretion exercised by the first Respondent to not lower the qualifying cut off percentile for admission to BDS Course for the academic year 2020-2021 despite the recommendation of the executive committee of the Dental Council of India (the second Respondent). Referring to Regulation II (ii) of the Dental Council of India Revised BDS Course Regulations, 2007, the Court stated that the Central Government was empowered to use its discretion to lower minimum marks only when sufficient number of candidates failed to secure minimum marks. The Court held this criterion to be fulfilled in the present case as NEET (UG) 2020 was conducted for admission into different courses like MBBS, BDS and also UG AYUSH and other medical courses, which were introduced for the first time which resulted in the total number of seats available to the ratio of the students who had qualified, low. The first respondent had previously reduced the minimum marks for admission into first year BDS course for the year 2019-2020 in consultation with the second Respondent but did not continue this for academic year 2020-21 for extraneous reasons. Thus, the Court directed the vacant seats in first year BDS course for the year 2020-2021 to be filled up from the candidates who had participated in the NEET (UG) courses for the year 2020-2021 after lowering the percentile mark by 10 percentiles. [Key Words: Dental Council of India Revised BDS Course Regulations, 2007, NEET (UG) 2020, percentile, minimum marks] [ Coram: L Nageswara Rao, J., Krishna Murari, J.]
In Index Medical College, Hospital and Research Centre vs the State of Madhya Pradesh & Ors, the appeals arose out of failed challenge to the constitutional validity of Rule 12 (8) (a) of the Madhya Pradesh Chikitsa Shiksha Pravesh Niyam 2018 (“Admission Rules 2018”), under the Madhya Pradesh Niji Vyavasayik (Pravesh ka Viniyam Evam Shulk Ka Nirdharan) Adhiniyam 2007 (“the Act”) before the High Court. Rule 12 (8) (a) provided that those seats that are were assigned in the final/ mop-up round of counselling and are then vacated by such allottees, would not be included in the college level counselling (CLC). The respondent State contended that the object of the rule was to prevent misuse where some candidates would deliberately get allotted seats to later resign from them, making way for the same seats to be allotted to less meritorious students in the CLC. The Court relied on its judgment in Modern Dental College (2016) 7 SCC 353 where it held that the doctrine of proportionality is enshrined within Article 19 of the Constitution and that limitations imposed on the enjoyment of a right guaranteed under the Constitution should not be arbitrary or excessive to what is required in the interest of public. The Court also recalled observations of Justice MJ Rao in Om Kumar and Ors. (2001) 2 SCC 386 regarding the role of test of proportionality with the test of classification based on intelligible differentia. The Court noted that although the object of the Rule 12 (8) (a) was appropriate, the effect, i.e., proscribing the management from filling up such seats would defeat the right to occupation under Article 19 (1) (g) of the Constitution and does not have any nexus with the object sought to be achieved. The Court further noted that the classification of the seats remaining vacant due to non-joining may be based on intelligible differentia, but it does not have any rational connection with the object sought to be achieved by Rule 12 (8) (a) of the Admissions Rules 2018. The Court allowed the appeals by holding Rule 12 (8) (a) of the Admissions Rules 2018 to be violative of Articles 14 and 19 (1) (g) of the Constitution. [Key Words: Medical Admissions, Seats vacant of mop-up round, Rule 12 (8) (a) of the Madhya Pradesh Chikitsa Shiksha Pravesh Niyam 2018] [Coram: L Nageshwara Rao, J., India Banerjee, J.]
In Kaloji Narayana Rao University of Health Sciences v. Srikeerti Reddi Pingle and Ors., the challenge was to the decision of the Telangana High Court which had allowed the respondent’s admission to the MBBS Course for the academic year 2020-21 and had held the action of the University to treat her as ineligible, as illegal. The University had sought for a proof of study of Biological science in the qualifying exam (10+2) equivalent, to which the student had shown a letter from the Consulate General of India, New York stating that she had successfully completed 12th grade from a school in Connecticut, with Biology as a subject, which was equivalent to the Pre-University (2-year course) new intermediate university and the senior secondary board examination certificate of India. The Court referred to Regulation 4(1) of the Medical Council of India Regulations on Graduate Medical Education 1997 to hold that the certification relied upon by the Respondent was not sufficient to be classified as an “equivalent” qualification under Regulation 4 (2) (f), which must also be consistent with the eligibility conditions laid down under Regulation 4 (2) (a) to (e). Under the said Regulations, a candidate should produce clear and categorical material to show the necessary years of study in Physics, Chemistry, and biology in each of the two years of 10+2 examination or the applicable intermediate examination, with practical exams and not merely a general equivalence, which is what the candidate possessed in the present case. [Key Words: Medical Council of India Regulations on Graduate Medical Education 1997, MBBS Course, biological science, equivalent qualification] [ Coram: L Nageswara Rao, J., S Ravindra Bhat, J.]
In Najiya Neermunda & Anr. Etc .v. Kunhitharuvai Memorial Charitable Trust & Ors., the Court directed the Admission and Fee Regulatory Committee to re-examine the proposals of the Managements of Medical Colleges for the fixation of fee 2017-18 onwards and that no fetter could be placed on the exercise of power for fee fixation by the Committee. [Key Words: Fee fixation by Admission and Fee Regulatory Committee for MBBS Students in private self-financing medical colleges in Kerala, PA Inamdar (2005) 6 SCC 537, Sections 8 and 11 of 2017 Act][Coram: L Nageswara Rao, J., S Ravindra Bhat, J.]
In V.N. Public Health and Educational Trust etc. v. State of Kerala & Ors. etc., the Court examined the legislative scheme emerging from Section 10-A of the Indian Medical Council Act, 1956, Regulation 3 of Medical Council of India Establishment of Medical College Regulations, 1999 and Chapter XXI Clause 10 of the Kerala University of Health Sciences First Statute, that the issuance/reissuance of an Essentiality Certificate (EC) is not a mere ministerial act because by granting the same, the State Government undertakes the obligations of the private educational institution in case of the institution being unable to setup the medical college or impart education within it. It further held that an EC legitimizes the medical college and gives an assurance to the concerned stakeholders that the college shall fulfil the basic norms mandated by the MCI. On the aspect of withdrawal of an EC, relying on Sukh Sagar Medical College and Hospital (2020) SCC OnLine SC 851, it was held that an EC once granted can be withdrawn provided that it was obtained by playing fraud on the State Government or where the very substratum on which the EC was granted vanishes or any other reason of like nature. [Key Words: Essentiality Certificate, Certificate of Affiliation, Ministerial Act, Medical Council of India] [Coram: AM Khanwilkar J., BR Gavai J., Krishna Murari J.]
In the landmark case Vikas Kumar vs Union Public Service Commission & Ors., the three-judge bench of the Court examined the Rights of Persons with Disabilities Act 2016 (“RPWD Act 2016”) and spelled out the paradigm shift in the approach of the State in securing dignity to persons with disabilities and its positive obligations in doing so. The appellant, a civil service aspirant was denied a scribe by the Respondent, which claimed that the appellant was not eligible for the provision of a scribe under the Civil Services Examination Rules 2018 (“CSE 2018 Rules”) since he didn’t have a benchmark disability i.e., to the extent of at least 40%. The appellant has a disability in the form of dysgraphia, also known as Writer’s Cramp. Under direction from the Court, a medical board constituted by AIIMS certified that the appellant had dysgraphia and pegged the extent of disability at 6%. The Court also considered the guidelines issued by the Ministry of Social Justice and Empowerment under Section 56 of the RPWD Act 2016 and the revised guidelines for conducting a written examination for persons with benchmark disabilities (“MSJE Guidelines”). The Court took note that MSJE guidelines recognise the entitlement to a scribe only for candidates with benchmark disabilities as under Section 2(r) of the RPWD Act, although it called for policy to have flexibility to accommodate specific needs on case-to-case basis. The Court drew the distinction between the concept of disability as defined under Section 2(s) of the RPWD Act 2016 and the concept of benchmark disability under Section 2 (r). The Court notes that the conception under Section 2 (s) recognises the nature of impairment, its interconnection with barriers and the impact of the barriers in full and equal participation in society. Whereas the conception under Section 2 (r) applies to ‘specified disabilities’ and is defined in the context of special provisions contained in Chapter VI and Chapter VII o the RPWD Act 2016. The Court noted that UPSC/DoPT had erred in proceeding to frame the policy on provision of scribes only to persons with benchmark disabilities under Section 2 (r). The Court stated that the concept of benchmark disability can be applied only in the limited statutory context of Chapter VI and Chapter VII and its application in any other context is contrary to the text and intent of the RPWD Act 2016. The Court observed that the RPWD Act, 2016 is based on the principle of equality and non-discrimination. The Court emphasised the statutory recognition of the principle of reasonable accommodation under Section 3 (5) of RPWD Act, 2016. The Court has recognised the principle of reasonable accommodation in several judgments including Jeeja Ghosh v. Union of India (2016) 7 SCC 761. The Court held that the rights that emanate from provisions such as Section 3 extend to persons with disability as broadly defined by Section 2(s). The Court observed that the principle of reasonable accommodation requires the State to go beyond the needs of the class to address the requirement of individuals even if she were to be a class of her own. The Court considered its judgment by a two-judge bench in Surendra Mohan (2019) 4 SCC 237 and noted that it did not take into account the principle of reasonable accommodation and held that it would not be a binding precedent. The Court recognised that the appellant, a person with disability as under Section 2(s), was entitled to a scribe under the principle of reasonable accommodation. It thus allowed the appeal. The Court also issued directions to the Ministry of Social Justice and empowerment to frame guidelines for the grant of a scribe after consultation with persons with disabilities and their organisations. [Key Words: Section 2 (s), Section 2 (r), the Rights of Persons with Disabilities Act 2016, principle of reasonable accommodation] [Coram: DY Chandrachud, J., Indira Banerjee, J., Sanjiv Khanna, J.]
In Joginder and another v. State of Haryana and others, the Court held that the cap of 200 square yards, beyond which regularization had to be done in accordance with the 1964 rules applied to total area consisting of constructed area and appurtenant area or open space. The Court held that the illegal occupation of Panchayat land could be regularized provided the area of the illegal occupation was up to a maximum of 200 square yards and that a fair reading of Rule 12(4) was that in case of an illegal occupation of the area up to a maximum of 200 square feet, the area could be regularized and sold at not less than collector rate (the higher of floor or market rate). [Key Words: Rule 12(4) of the Punjab Village Common Lands (Regulation) Rules 1964,][Coram: DY Chandrachud, J., MR Shah, J.]
In UA Basheer thr GPA Holder v. State of Karnataka & Anr., the Court held that the phrase ‘every person holding vacant land in excess of the ceiling limit at the commencement of the Act’ in Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 meant that determination of excess land was to be made considering the status of the land at the time of the commencement of the Act and any partition affected after the commencement of the Act would not affect the validity of the Competent Authority’s determination of excess land owned by the joint family at the time of commencement of the Act. Further, the Court held that Sections 8 and 9 of the Act only required that an opportunity of being heard be provided to the person concerned or the person who filed the statement under Section 6 of the Act. The Court held that under Section 3(1)(a) of the Repeal Act, the question of current possession of the suit property was material to a full adjudication, as if the appellant enjoyed possession, then any proceedings for excess land under the Principal Act were liable to be abated. The Court however held that the division bench of the High Court ought to have settled questions of fact which had arisen, such as whether the Appellant’s claim over the suit property was calid, whether he was in actual physical possession and whether he had locus standi to pray for abatement of proceedings and directed the division bench of the High Court to consider the case afresh. [Key Words: joint family property, S 6(1), 8(1) Urban Land (Ceiling and Regulation) Act 1976][Coram: MM Shantanagoudar, J., Vineet Saran, J.]
In Compack Enterprises India (P) Ltd. v. Beant Singh, the Court reiterated that consent decrees are intended to create estoppels by judgment against the parties, thereby ending further litigation and that the Court would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree unless it is done with the revised consent of all parties thereto. However, consent decrees would not serve as estoppel where the compromise was vitiated by fraud, misrepresentation or mistake and that the Court in the exercise of inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetic errors in order to conform with the compromise. On the question of whether the phrase “this figure of mesne profits … will be increased by 10% after every 12 months, i.e., from 1.10.2009, 1.10.2011 etc.” should have been 10% every year, the Court held that there is an error apparent on the face of the record and thus the Court found it fit to exercise inherent jurisdiction to correct the terms of the consent decree to bring it in conformity with the intended compromise. Based on the findings of the lower Courts as well, the Court held that the intention of the compromise was that there should be a 10% increase in mesne profits every alternate year and rectified the inadvertent error. [Key Words: Suit for Possession and mesne profits, law governing consent decrees, intention of profits to compromise][Coram: MM Shantanagoudar, J., Vineet Saran, J.]
In A. Subramanian & Anr. v. R. Pannerselvam, the plaintiff had sought a permanent injunction against the defendant from disturbing his peaceful possession and enjoyment of the suit property. The Court, affirming the decision of the High Court on the facts of the case, held that the suit for injunction by the plaintiff was maintainable without entering into the title of the plaintiff, due to the previous civil suit for declaration and recovery by the defendant against person entrusted with the property, which was decided against the defendant. On facts, it dismissed the appeal since the possession of the plaintiff was admitted by the defendant. The Court also held that the First Appellate Court ought not to have examined the validity of the power of attorney. [Key Words: Title Suit, Suit for injunction, possession] [Coram: Ashok Bhushan J., R Subhash Reddy J., MR Shah J.]
In Ravinder Nath Agarwal v. Yogender Nath Agarwal was a Transfer Petition where the Court, inter alia, examined Sections 57, 213 and 264 of the Succession Act and held that in cases of a Will being executed by a certain classes of person, a purported executor or legatee under a Will cannot rely upon the same, in any proceeding before a Court unless he has obtained probate or letters of administration, and the jurisdiction to grant probate or letters of administration is available only in courts within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government. It held that as a consequence unless the testator belongs to any of the classes of persons specified in the Act; and unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. It also held that due to the effect of Section 213(2)(i) r/w Section 57(a) and (b), the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jain within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon, and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs. [Key Words: Sections 213, 57 of the Indian Succession Act 1925, Testamentary Suit, Partition Suit, Right in Rem] [Coram: V Ramasubramanian J.]
In H.S. Goutham v. Rama Murthy, the Court held that unless the procedure under Order XLI Rules 27, 28, 29 of the Code of Civil Procedure is followed, the parties to the appeal cannot lead additional evidence and the appellate court cannot direct any subordinate court to take additional evidence and send it to the appellate court. It was further held that as per Order XXI Rule 90, an application to set aside the sale on the ground of irregularity or fraud may be made by the decree holder on the ground of material irregularity or fraud in publishing or conducting it. [Key Words: Consent decree; fraud or material irregularity in conducting or publishing sale; additional evidence] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]
In Santosh Kumar @ Rana Ram Kalal v. Ashok Chand and Others, the Bench upheld the order of the High Court allowing an application under Order XIV Rule 2 as the same pertained to only documents annexed with the plaint, and could qualify as preliminary questions as opposed to “mixed questions of fact and law”. [Key Words: preliminary issues, mixed question of fact and law] [Coram: NV Ramana, J., Surya Kant, J., Aniruddha Bose, J.]
Parmar Samantsinh Umedsinh & Ors. v. State of Gujarat & Ors. involved a writ petition inter alia challenging the vires of Section 5(3)(iii)(a) and Section 29A of the Gujarat Provincial Municipal Corporation Act, 1949, on the ground that it violates the one member one ward mandate. The Court noted that Article 243R, which provides the composition of Municipalities, has two constitutional requirements (i) Municipality members must be elected through direct election and (ii) from territorial constituencies in Municipal area which is to be divided into wards. Further, it noted that Article 243ZA deals with election to Municipalities and provides that the State Legislature must provide for all matters related to the election to the Municipalities. It then proceeded to examine Article 243S (3), and held that it does not provide for the composition of a Municipality but only mandates that a member of a Municipality representing a Ward must be a member of the Ward Committee. It further held, relying upon the decision in L.V.A. Dixitulu (1979) 2 SCC 34, that in order to bar the State Legislature from providing multi-member wards, there must be an express or implied limitation within the Constitution. The Court held, after examining the constitutional scheme emerging from Articles 243R, 243ZA and 243S, that none of these Articles prohibit having more than one member for a ward. [Key Words: multi-member wards; constitutionality of multi-member wards; Article 243S; Article 243ZA] [Coram: Ashok Bhushan, J., Subhash Reddy, J., MR Shah ,J.]
In International Association for protection of Intellectual Property (India Group) v. Union of India, the petitioner approached the Court seeking directions to the effect that till a new chairperson of the IPAB is appointed, the incumbent (whose tenure had been extended by interim orders of this court, up to 31.12.2020) should continue to function as Chairperson. The Court rejected the argument of the applicant that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew (2020) 6 SCC 1 as the tenure of the incumbent to the office of the Chairperson of the Board had ended prior to the passing of the judgment. It further rejected the argument that the Board could not function without a judicial member since, at present, only the incumbent Chairperson is a judicial member by stating that Section 84(2) of the TM Act was subject to other provisions of the TM Act and by referring to Section 84 and 85, the Court concluded that a technical member could be appointed as a regular chairperson provided she or he has for at least two years, held the office of a Vice-Chairperson, which was met in the present case. [Key Words: chairperson, IPAB, Finance Act, Section 84, 85 of Trademarks Act, technical member, judicial member] [Coram: L Nageswara Rao, J., Hemant Gupta, J., S Ravindra Bhat, J.]
In Franklin Templeton Trustee Services Pvt Ltd and Anr v. Amruta Garg and Ors. etc, the challenge was to the winding up and the procedure adopted for winding up of six schemes of the Franklin Templeton Mutual Fund and which emanated from the judgment passed by a Division Bench of the Karnataka High Court. The Court confined itself to deciding the aspect of unitholders consent to winding up of schemes and directed the winding up of the six schemes to ensure disbursement of funds and liquidation of assets/ securities. Referring to Regulation 18 (15) of the Securities and Exchange Board of India (Mutual Funds) Regulations 1996 (‘Mutual Fund Regulations/ Regulations’), the Court held that consent of the unitholders would mean a simple majority of the unitholders present and voting, and not consent of majority of all the unitholders of the scheme. The primary objection regarding appointment of KFin Technologies Pvt Ltd for providing e-voting platform services was rejected as it was certified by the MCA and no instance of indictment were pointed out. The Court further rejected the objections made to the manner of conduct of the poll and its results and held that the majority had given their consent for winding up of the schemes. [Key Words: Securities and Exchange Board of India (Mutual Funds) Regulations 1996, winding up of schemes, disbursement of funds, unitholders consent, simple majority, conduct of poll] [Coram: S Abdul Nazeer, J., Sanjeev Khanna, J.]
In Kotak Mahindra Bank Pvt Ltd v. Ambuj A. Kasliwal & Ors., the challenge before the Court was to the order passed by the High Court of Delhi permitting the Respondent No.1 and 2 to pursue the appeal filed before the DRAT without pre-deposit of the portion of the debt due, as mandated under Section 21 of the RDDBFI Act 1993. The Court set aside the order of the High Court by stating that under Section 21, fifty per cent of the decretal amount needed to be deposited before the DRAT as a mandatory requirement of appeal, but in appropriate cases and for reasons to be recorded in writing, the Tribunal would have the discretion to mandate the deposit of twenty five percent of the decretal amount, but no less. Thus, a complete waiver of pre-deposit would be violative of Section 21 of the Act. [Key Words: Section 21 RDDBFI Act 1993, waiver of pre-deposit, discretion, appeal, DRAT, decretal amount] [ Coram: SA Bobde J., AS Bopanna, J., V Ramasubramaniam, J.]
In Sudipta Chakrobarty & Anr. Vs. Ranaghat S.D. Hospital & Ors., the Court observed that there was a long delay by the National Consumer Disputes Redressal Commission in providing reasons after having passed an operative order. The Court observed recalled its observations in State of Punjab & Ors. Vs. Jagdeev Singh Talwadi 1984 (1) SCC 596 wherein it had drawn the attention of the courts and tribunals to the difficulties faces by litigants due to such practice. The Court noted that when orders are passed without reasons, the rights of the aggrieved parties are prejudiced as they cannot assail such orders and even the succeeding party is unable to enjoy the fruits of the order. The Court directed that the judgment be brought to the notice of the NCDRC for appropriate measures and ensure that all pending judgments where operative portion is already be pronounced be delivered in two months. [Key Words: Judicial Delay, delay in delivering reasoned orders, pronouncement of only operative part of the order] [Coram: Indu Malhotra, J., Ajay Rastogi, J.]
In Amitabha Dasgupta vs United Bank of India, the appellant was aggrieved by the order of the National Consumer Disputes Redressal Commission (‘National Commission’) dismissing the Revision Petition filed against the judgment of the State Consumer Disputes Redressal Commission. The appellant was aggrieved by the respondent Bank having broken open his locker in his absence for non-payment of rent dues. The appellant was further aggrieved in as much as he claimed the Bank returned only two of the seven gold ornaments deposited in the locker. The Bank admitted that the appellant had cleared the rent dues before it broke open the locker but denied the presence of any other gold ornaments in the locker when it was opened. The District Forum allowed the complaint and directed the Respondent to pay Rs. 3,00,000/- towards cost of jewellery and Rs.50,000/- towards compensation for mental agony, harassment and cost of litigation. In appeal, the State Commission relied on UCO Bank 1996 (1) CPR 97 to state that the contents of the locker can only be decided on upon provision of elaborate evidence and the consumer forum was not equipped to undertake such an evaluation since it only has jurisdiction to conduct a summary trial and, therefore, it directed the appellant to approach the civil court for adjudication of the contents of the locker. The National Commission affirmed the judgment and dismissed the revision petition. The Court noticed several judgments in foreign jurisdictions and also of the High Courts to examine whether the relationship between the depositor and the Bank is that of bailment. The Court noticed Jagadish Chandra Trikha v. Punjab National Bank AIR 1998 Delhi 266 where the High Court had held the bank liable in the capacity of a bailee for the loss of ornaments. In Mohinder Singh Nanda 1998 ISJ (Banking) 6731 where the High Court noted that there was no evidence on record to show the bank had knowledge of the articles deposited in the locker and without entrustment, the bank cannot be held responsible for theft of items therein. The Court opined that the crux of the issue was whether there was delivery of possession or entrustment to the bank for the purpose of Section 148 of the Indian Contract Act 1872. The Court held that his requires findings on fact as to whether the Bank had knowledge of the contents of the locker, or the depositor could prove the contents of the locker. Hence, the Court upheld the impugned judgment to the extent of holding that the appellant should file a separate suit before the competent civil court. The Court, however, noted that the Bank also had a separate duty of care to exercise due diligence in maintaining and operating their locker systems. The Court laid down principles to followed by Banks in operating lockers. The Court noting that the Bank had acted negligently imposed costs of Rs. 5,00,000/- on the Bank. [Key Words: Bank Locker, Section 148, Indian Contract Act 1872, Bailment, Duty of care, Consumer Protection Act 2019] [Coram: MM Shantangoudar, J., Vineet Saran, J.]
In M/s Daddy’s Builders Pvt. Ltd. & Another vs Manisha Bhargava and Another, the appellant was aggrieved by the order refusing to condone the delay in filing written statement to a complaint under Section 13 of the Consumer Protection Act, 1986 by the State Consumer Disputes Redressal Commission, which was also upheld by the National Consumer Disputes Redressal Commission. The appellant while admitting the position of law as upheld in judgement of the constitution bench in New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited (2020) 5 SCC 757 that the District Forum does not have the power to extend the time to file a response beyond the time envisaged under Section 13 of the Consumer Protection Act, 1986, relied on para 63 of the judgment that stated that the judgment shall be applicable prospectively. The appellant relied on Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017 applicable as on the date of decision of the State Commission, which provided for condonation of delay in appropriate cases with suitable conditions. The Court dismissed the appeal, noting that Reliance General Insurance Co. Ltd did not mandate the condonation of delay and furthermore that the three-judge bench in J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635 had held that the consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Consumer Protection Act and Hilli Multipurpose Cold Storage Private Limited came to be referred to a larger bench owing to contrary decision by a two-judge bench. Para 63 of Hilli Multipurpose Cold Storage Private Limited was so as to not disturb those orders condoning the delay relying on Reliance General Insurance Co. Ltd. [Key Words: Section 13, Consumer Protection Act 1986, power to condone delay] [Coram DY Chandrachud, J., MR Shah, J.]
In Tata Motors Ltd. v. Antonio Paulo Vaz and Anr., the Bench held that the liability on the manufacturer could not fastened unless the manufacturer’s knowledge is proved as the relationship between the dealer and the manufacturer was on a principal-to-principal basis. [Key Words: principal to principal, agency, dealership agreements] [Coram: UU Lalit, J., Hemant Gupta, J., S Ravindra Bhat, J.]
In Asha John Divianathan v. Vikram Malhotra & Ors., the question before the Court was as to whether a transaction in violation of Section 31 of the Foreign Exchange Regulation Act. 1973 was void or voidable? The bench answered that the transaction would be void as it was settled that a “…contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition” and further that “…prohibition and negative words can rarely be directory”. Sans the permission, the transaction would not be a lawful agreement within the definition of Section 10 read with Section 23 of the Indian Contract Act 1872. Lastly, the bench held that all High Court decisions holding that Section 31 FERA was not mandatory, was not good law. However, invoking Article 142, the Bench held that all transactions which had become final need not be reopened and disturbed. [Key Words: directory, mandatory, void, voidable, FEMA, FERA, consequences of violation] [Coram: AM Khanwilkar, J., Indu Malhotra, J., Ajay Rastogi, J.]
In The Conservator and Custodian of Forest & Ors. v. Sobha John Koshy & Anr., the Bench noted while the private respondents were supposed to be handed back their private land as the State lost the adjudication under the Kerala Private Forest (Vesting and Assignment) Act 1971 in the year 1998, the State failed to do so as the land was inhabited by Tribunals. Meanwhile, after the enactment of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003 (which was not challenged by the private Respondents), the said land was declared as “ecologically fragile land” and was vested in the State of Kerala. The Bench noted that even though the owners lost their rights after the 2003 enactment did imply that they could not be compensated for the loss of land, yet the owners must be compensated for the benefits arisen out of the lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under the 1971 Act. As the parties admitted that there was no material on record to determine the benefits arising out of the land during the period the respondents were deprived the enjoyment of the possession, the Bench deemed that “ends of justice be met by allowing the claim of compensation to the respondents to the extent of 50% of value of the land as computed by Tehsildar and noted in the judgment of learned Single Judge”. [Key Words: Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003, Kerala Private Forest (Vesting and Assignment) Act 1971] [Coram: Ashok Bhushan, J., R Subhash Reddy, J., MR Shah, J.]