Magistrate can vary an order under Section 125 Cr.PC: SC

The Supreme Court of India recently clarified that reviving of maintenance application of wife under Section 125 of Criminal Procedure Code (“Code”) is not hit by the embargo contained in Section 362 of the Code.

“The use of expression ‘from time to time’ [in Section 125] has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time”, the Court said.

“…..Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions”, the Court added.

The Court further said that Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125.

It was pleaded before the Court that under Section 362 Cr.P.C. the court cannot alter or review the judgment except to correct a clerical or arithmetical error.

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CPC Order XXVII Rule 8A ‘archaic’, no exceptional treatment for Government: SC

The Supreme Court of India recently held that no exceptional treatment can be given to the Government while considering the application for stay filed by the Government in proceedings under Section 34 of the Arbitration and Conciliation Act.

Section 34 provides for filing an application for setting aside the arbitral award on limited grounds.

The Court held that the provisions of Order XXVII Rule 8A of the Civil Procedure Code (CPC), which states that no security shall be required from the Government in case of there being a money decree passed against the Government and the execution of which is prayed for, cannot be applied to arbitration.

The Court further stated that provisions of Order XXVII Rule 8A of the CPC are archaic, not applicable to current times and do not exempt the government from making deposits as directed by the Court.

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No Unfair Trade Practice from Star and Airtel: SC

The Supreme Court of India recently ruled that there is no basis to conclude that Star India (P) Ltd. (“Star India”) and Bharti Airtel Limited (“Airtel”) colluded to finance the prize money for the ‘Har Seat Hot Seat’ (“HSHS contest”) contest during the telecast of program ‘Kaun Banega Crorepati’ (”KBC”) in 2007 from the SMS revenue earned by Airtel.

“…………there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an “unfair trade practice” rendered by the National Commission on this basis is liable to be set aside”, the Court said.

The Court mentioned that The National Commission’s reliance on a newspaper report regarding the amount of revenue and profit earned by the appellants from the HSHS contest was unwarranted, in as much as there was absolutely no corroboration for the allegations therein with respect to the number of SMSs received, and the breakup of revenue earned into cost, value addition from service, and profit.

After reviewing the services-cum-sponsorship agreement between the appellants, the Court said there is no provision in the agreement for revenue sharing between the parties, or requiring Airtel to finance any part of the prize money paid by Star India towards the HSHS contest.

During HSHS contest, the viewers of KBC were invited to participate by answering an objective type question with four possible options during each episode, and viewers who wished to participate were required to send in the correct answer, inter alia through SMS services, offered by Airtel and other providers.

Posted in Company Law, Consumer Law, Contract Law, General Law, Telecommunications Law | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Commercial wisdom of CoC is not subject to adjudicating authority purview: SC

In a landmark ruling, the Supreme Court of India clarified that commercial wisdom of the committee of creditors is not subject to the adjudicating authority or the appellate authority’s purview under the Insolvency and Bankruptcy Code.

“The NCLAT judgment which substitutes its wisdom for the commercial wisdom of the Committee of Creditors and which also directs the admission of a number of claims which was done by the resolution applicant, without prejudice to its right to appeal against the aforesaid judgment, must therefore be set aside,” a large Bench of the Court ruled.

The Court further clarified that full freedom and discretion has been given to the Committee of Creditors to classify creditors and to pay secured creditors amounts which can be based upon the value of their security, which they would otherwise be able to realize outside the process of the Code, thereby stymying the corporate resolution process itself.

The Court also stated that the Committee of Creditors does not act in any fiduciary capacity to any group of creditors. On the contrary, it is to take a business decision based upon ground realities by a majority, which then binds all stakeholders, including dissentient creditors.

The Supreme Court also held that the time of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings, was not mandatory.

The Court said “If it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days.“

Posted in Administrative Law, Company Law, Constitution Law, General Law, Insolvency & Bankruptcy Law, International Law | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

NRIs have right to possess property in Punjab/Chandigarh: SC

Upholding the constitutional validity of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (“Act”), the Supreme Court of India clarified that non-resident Indians (“NRI”) have the right to recover immediate possession of residential or non-residential buildings in Union Territory of Chandigarh and State of Punjab on the satisfaction of the conditions mentioned in the Act.

“Section 13-B cannot, therefore, be treated as an arbitrary classification that infringes and violates Article 14 of the Constitution”, a large Bench of the Court said.

The Court said that Section 13-B of the Act cannot be held to be unconstitutional because it grants a right to claim eviction for bona fide need by summary procedure to a certain group of landlords, that is, Non-Resident Indians subject to and on the satisfaction of statutory conditions which incorporate a check on frivolous evictions.

“The right of Non-Resident Indians to initiate eviction under the summary procedure provided in Section 18-A of the Rent Act is not an unfettered and absolute right. It is subject to satisfaction of various pre-requisites and imperatives that ensure and check potential abuse by resorting to a short-circuit procedure. The requirement should arise from a genuine need of the Non-Resident Indian landlord or his dependent”, the Court further observed.

Posted in Administrative Law, Constitution Law, Consumer Law, General Law, Immigration, International Law, Real Estate | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Interception of phone calls only in case of public emergency/public safety: BHC

In an important ruling, the Bombay High Court recently ruled that the interception of the phone calls by the authorities is permitted only in the case of ‘public emergency’ or in the interest of ‘public safety’.

Stating that the orders passed by the Union Ministry of Home Affairs allowing Central Bureau of Investigation (“CBI”) to intercept the phone calls as ultra vires of Section 5(2) of the Indian Telegraph Act, 1885, the Court said “….an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety. The impugned three interception orders were issued allegedly for the reason of ‘public safety’. As held in PUCL (supra), unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression “Public Safety” as held in PUCL (supra) means the state or condition of freedom from danger or risk for the people at large. When either of two conditions are not in existence, it was impermissible to take resort to telephone tapping.”

“The Respondents could not justify any ingredients of risk to the people at large or interest of the public safety, for having taken resort to the telephonic tapping by invading the right to privacy. Neither from the impugned orders nor from the record any situation showing interest of public safety is borne out”, the Court added.

According to the CBI, the petitioner bribed a bank official for credit-related favor and three separate phone interception orders were allowed by the Union Ministry of Home Affairs.

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Amounts written in different inks render negotiable instrument void: MHC

The Madras High Court recently held that amounts written in different inks in a promissory note without any justification amounts to material alteration and would render the promissory note void.

Any material alteration without the consent of the parties would render the negotiable instrument void as per section 87 of the Negotiable Instrument Act. Thus, the duty of proving consent of parties is also cast upon the plaintiff as the duty to prove the promissory note lies with the plaintiff.

The Court further held that since the First Appellate Court is the final court to settle facts it is the solemn duty of the First Appellate Court to examine facts in all cases and such examination is within the confines of law.

Posted in Banking Law, Company Law, Consumer Law, General Law, Negotiable Instruments Act | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Homebuyers are Financial Creditors under Insolvency Code: SC

The Supreme Court of India recently upheld the amendments made to the Insolvency and Bankruptcy Code in 2018 (“Code”) to treat homebuyers as financial creditors. The Court said that the original provisions concerning Financial Creditors under the Code always subsumed homebuyers and that the amendment under challenge had only added an explanation to the section making this inclusion further clear.

The Court said, “The expression “borrow” is wide enough to include an advance given by the home buyers to a real estate developer for “temporary use” i.e. for use in the construction project so long as it is intended by the agreement to give “something equivalent” to money back to the home buyers. The “something equivalent” in these matters is obviously the flat/apartment.”

“Also of importance is the expression “commercial effect”. “Commercial” would generally involve transactions having profit as their main aim. Piecing the threads together, therefore, so long as an amount is “raised” under a real estate agreement, which is done with profit as the main aim, such amount would be subsumed within Section 5(8)(f) as the sale agreement between developer and home buyer would have the “commercial effect” of a borrowing, in that, money is paid in advance for temporary use so that a flat/apartment is given back to the lender”, the Court added.

The Court, referring to Section 88 of the Real Estate (Regulation and Development) Act (“RERA”), held that it was an additional remedy, which will not bar other remedies available to a homebuyer. The Code and RERA operate in completely different spheres and said, “Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.”

Posted in Arbitration Conciliation Law, Banking Law, Consumer Law, Contract Law, General Law, Insolvency & Bankruptcy Law, Real Estate | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Prohibiting registration of marks as ‘immoral’ or ‘scandalous’ against free speech: USSC

The United States Supreme Court recently struck down provisions in federal law prohibiting registration of trademarks on the grounds of being ‘immoral’ or ‘scandalous’ as violation of free speech rights.

“The statute, on its face, dis­tinguishes between two opposed sets of ideas: those aligned with con­ventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemna­tion. This facial viewpoint bias in the law results in viewpoint-discriminatory application”, the Court said.

Government sought to narrow the meaning of immoral and scandalous to cover just marks that are sexually explicit or profane.

The Court, however, said “The ‘immoral or scan­dalous’ bar does not draw the line at lewd, sexually explicit, or pro­fane marks. Nor does it refer only to marks whose “mode of expres­sion,” independent of viewpoint, is particularly offensive. To cut the statute off where the Government urges is not to interpret the stat­ute Congress enacted, but to fashion a new one. And once the ‘im­moral or scandalous’ bar is interpreted fairly, it must be invalidated.”

Respondent sought federal registration of the trademark FUCT. The Patent and Trademark Office denied his applica­tion under a provision of the Lanham Act that prohibits registration of trademarks that consists of or comprises immoral or scan­dalous matter.

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Occupational Safety and Health Hazards in Workplace: Govt.

The Government of India has declared the National Policy on Safety, Health and Environment at Workplace (NPSHEW) which aims to establish a preventive safety and health culture in the country through elimination of the incidence of work related injuries, diseases, fatalities, disasters and to enhance the well-being of employees in all the sectors of economic activity in the country.

A comprehensive legislation, Mines Act, 1952 has been enacted by Central Government to regulate the objectives of safety and health of workers in mines. The Mines Act, 1952 and the Rules and Regulations framed thereunder are administered by the Directorate General of Mines Safety (DGMS) under the Ministry of Labour and Employment.

In respect of factories, a comprehensive legislation in the form of the Factories Act, 1948, for taking care of the occupational safety and health aspects of the workers employed in factories registered under the Factories Act, 1948 has been enacted. The Act and the State Factories Rules framed thereunder are being enforced by the respective State/UT Governments through the Chief Inspector of Factories/Directorate of Industrial Safety and Health.

The Ministry has taken steps for drafting four labour codes on Wages, Industrial Relations, Social Security & Welfare, and Occupation Safety, Health and Working conditions respectively, by simplifying, amalgamating and rationalizing the relevant provisions of the existing Central Labour Laws. The Code on Occupational Safety, Health & Working Conditions has been drafted & contains provisions for setting up of a National Occupational Safety, Health Advisory Board.

Posted in Constitution Law, Consumer Law, Employment Law, General Law, International Law, Labor Law, Notifications/Publications/Circulars | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment