Whether injunction application to restrain daughter-in-law from entering the marital home is maintainable?

 In the present case, the first defendant has squarely questioned the title, of the plaintiff, to the suit property, and has contended that it is joint family property. She has claimed her right, therein, not merely on the ground that it is her matrimonial home, but as the mother of a coparcener to the joint family. These disputes required to be adjudicated, in the suit, and no order, interlocutory or otherwise, can be passed on the premise that the plaintiff is right, and the first defendant is wrong.

35. In my opinion, it is not necessary to enter, deeply, into the circumstances in which mandatory, or prohibitory, injunction, can be granted at an interim stage, as these principles are well settled. The decisions, on which Ms. Rajkotia relies, and which have been cited hereinabove, clearly indicate that, essentially, a plaintiff, in order to be justified to claim an interlocutory mandatory, or prohibitory, injunction, has to establish (i) a strong case in his favour, the standard being higher than that of a prima facie case, (ii) that denial of prohibitory injunction would result in irreparable loss to her, and (iii) that the balance of convenience is decidedly in favour of grant of mandatory, or prohibitory, injunction at the interlocutory stage. Additionally, grant of mandatory or prohibitory injunction, at an interim stage, has been approved where the failure, to do so, would result in the suit becoming infructuous, or the final relief, sought therein, being rendered illusory. None of these criteria are satisfied, in the present case. Most importantly, the first defendant had been residing with the plaintiff, since 2002 (or, at the latest, 2014, even if the plaintiff's stand were to be accepted), and it was only on 10th May, 2020 the first defendant left the house of the plaintiff, to visit her mother. It cannot, therefore, be said, by any stretch of imagination, that, by allowing the defendant to return to the house, where she had been staying till 10th May, 2020, irreparable harm would ensue, to the plaintiff. Mere bald assertions, to the effect that the first defendant was harassing the plaintiff, can hardly suffice. Given the option between allowing the first defendant to return to her matrimonial home, where she had been residing since 2002, or 2014, and banishing her, at least during the pendency of the suit, therefrom, the balance of convenience is also, decidedly, in favour of the former, rather than the latter, alternative.

36. Ms. Rajkotia had sought to submit that, were injunction, as prayed by her, in this application, not granted at this stage, the suit would be rendered effectively infructuous, as it would linger on for years. The submission fails to impress. The prayer, in the suit, is for a decree of possession, in favour of the plaintiff and against the defendants, in respect of the suit property, and for the decree of permanent injunction, restraining the first defendant from interfering with the peaceful possession of the suit property, by the plaintiff. In fact, the prayer, in the present application, effectively seeks grant of the prayers in the suit, before the suit is tried and at an interlocutory stage. If this Court were to restrain the first defendant, at this stage itself, from returning to the suit property, the plaintiff would secure possession thereof, and, effectively, a permanent injunction, in terms of prayer (b) in the suit, would also be granted. The plaintiff, therefore, effectively seeks decreeing of the suit without a trial.

IN THE HIGH COURT OF DELHI

I.A. 4618/2020 in CS (OS) 506/2018

Decided On: 02.07.2020

Anita Chopra  Vs.  Rohini Chopra

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Citation: MANU/DE/1332/2020

Print Page

Whether a tenant can deny the title of the landlord if the landlord has constructed a tenanted structure on leasehold land of government?

1)Tenant has contended that the landlord was not the 'owner' of the subject premises, since it is leasehold property, with the Delhi Development Authority as the owner/lessor; and the landlord was only a 'co-lessee' under the DDA alongwith one Shri Prem Nath Ohri;

2)In view of the decision of the Supreme Court in Shanti Sharma (supra), all that the law requires is that the landlord should hold a premises in a capacity of something more than that of a tenant and proof of title beyond that point is not required. In the present case, as per the tenant's own allegations, the landlord holds the land on which the subject premises is constructed on long lease granted by the DDA. The landlord is therefore owner of leasehold rights in the land comprised in the subject premises. For purposes of section 14(1)(e) of the DRC Act, 'ownership' is not meant only to be freehold and absolute ownership of property but includes rights in the property that are more than that of a tenant, regardless of other imperfections in title. Yet again therefore, no trial is called for on this point.

3) Though it is the tenant's allegation that the landlord was only a co-lessee of the subject premises under the DDA along with one Shri Prem Nath Ohri, the fact that only one co-lessee had filed the eviction petition is no bar to its maintainability. This issue is no longer res integra and it stands settled by several decisions of the Supreme Court that even one of the co-owners can, alone and in his own right, file a proceeding for ejectment of a tenant; and a tenant cannot question the maintainability of the proceedings on this score. (cf. Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr. MANU/SC/0075/2016 : (2016) 3 SCC 296 para 29).

IN THE HIGH COURT OF DELHI

RC. Rev. 269/2018 and CM Appl. No. 24045/2018

Decided On: 09.07.2020

Gaffar Ahmad  Vs.   Shiv Kumar Ohri

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: MANU/DE/1361/2020

Print Page

Orissa HC: Parameters for grant of the opportunity of hearing to victim/informant in an anticipatory bail application

I am of the view that in the absence of any provisions in Cr.P.C. in debarring an informant or de facto complainant or victim or an aggrieved party an opportunity of hearing in an application for anticipatory bail but keeping in view the criminal justice delivery system and public policy, it can be held as follows:--

"i. There is no mandate in law to issue notice to the informant/victim/aggrieved party by the Court before passing any interim order or final order in an application for anticipatory bail.

ii. While adjudicating an anticipatory bail application, if the Court feels that the informant/de facto complainant/victim/aggrieved party is required to be heard for an effective adjudication, then the Court can issue notice to such person for giving him a reasonable opportunity of hearing.

iii. If the informant/de facto complainant/victim/aggrieved party suo motu appears in Court in an application for anticipatory bail either to support or oppose such application and prays before the Court to give him an opportunity of hearing, the Court may accept such prayer if it feels the necessity of hearing such person in the interest of justice and for the just decision of the case.

iv. The counsel for the informant/de facto complainant/victim/aggrieved party can always appear during hearing of the anticipatory bail application and assist the State Counsel even if he is not awarded a right of audience in the matter by the Court. He can also assist the Court if any query is put forth to him.

v. Where it appears that there are a lot of aggrieved persons and all of them pray before the Court to give them an opportunity of hearing in an application of anticipatory bail, the Court may be reluctant to give them such opportunity if it feels that it would be a time consuming affair or in view of the time constraints, it would not be feasible to give each of them an opportunity of hearing or it would delay the disposal of such application. However if the Court feels in such cases to hear one of the aggrieved parties who can highlight the common grievances of all which is not properly addressed by the State Counsel, the Court can give an opportunity of hearing to such party.

vi. No particular category of cases can be enumerated as to where the informant/de facto complainant/victim/aggrieved party can be given an opportunity of hearing in an application for anticipatory bail inasmuch as it would depend upon the nature and gravity of the offences as well as the discretion of the Court which is to be exercised judiciously with reasonable care and caution.

vii. If a person is neither an informant nor victim but claims himself to be an aggrieved party and prays for an opportunity of hearing, the Court has to decide whether such person is an aggrieved party in the context of the case or not and if so, whether a right of hearing is to be given to him or not to take a right decision in the matter.

IN THE HIGH COURT OF ORISSA

B.L.A.P.L. No. 19817 of 2014

Decided On: 15.12.2014

Pramod Kumar Panda  Vs.  Republic of India

Hon'ble Judges/Coram:

S.K. Sahoo, J.

Citation:MANU/OR/0782/2014,

2015ALLMR(CRI)JOURNAL289

Print Page

Whether Court can release accused prosecuted for the offence of attempt to rape on default bail on expiry of 60 from the date of the first remand if chargesheet is not filed within that period?

It is true that in Section 376(2) IPC, it is mentioned that

the imprisonment for life means imprisonment for the remainder

of that person's natural life. It is a settled position that

imprisonment for life means imprisonment for the remainder of

that person's natural life. There is no dispute on that. But when

there is a specific provision in the Indian Penal Code which says

that in calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as equivalent to

imprisonment for twenty years we cannot ignore that provision

and interpret that imprisonment for life means imprisonment for

the remainder of that person's natural life even while computing

the detention period under Section 167(2) Cr.P.C. As observed by

the Apex Court the interpretation of the provisions of 167(2)

Cr.PC should be liberal. On a reading of Section 167(2)(a)(ii)

Cr.P.C along with 511 of 376 IPC coupled with Section 57 of the

IPC, it is clear that an accused who is charged for the offence

under Section 511 of 376 IPC can be imprisonment only for a

period of ten years. If that is the case, the petitioner is entitled

statutory bail in this case. Admittedly, 60 days is over after the

first remand of the petitioner. The petitioner was arrested on

19.6.2020. As on today admittedly the final report is not filed.

Therefore, the petitioner is entitled statutory bail under Section

167(2)(a)(ii) Cr.P.C. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE P.V.KUNHIKRISHNAN

Bail Appl..No.4876 OF 2020

CRIME NO.584/2020 

VINESH VISWAMBARAN, Vs STATE OF KERALA

Dated: 18th day of August 2020

Print Page

Whether court can treat exclusive jurisdiction clause conferring jurisdiction upon the court of a particular place as the seat of arbitration?

 Now, coming to the primary bone of contention between the parties, i.e., whether this Court has the territorial jurisdiction to entertain the present petition. The parties are ad idem that although the cause of action arose at Aurangabad, Maharashtra, this Court would have jurisdiction to entertain the present petition if it is found that Delhi was designated as the seat of arbitration by the parties. On this aspect, the petitioner contends that the Delhi was indeed designated as the seat of arbitration as the parties had specifically agreed to confer exclusive jurisdiction upon the courts at Delhi in all arbitration proceedings. On the other hand, it is the respondent's stand that the parties never agreed upon a seat of arbitration in the Work Order and that, therefore, only the Court, within whose jurisdiction the cause of action arose, would be a 'Court' within the meaning of Section 2(1)(e) read with Sections 16-20 of the Act, thereby rendering it competent to decide the present petition.

11. Having carefully examined the arbitration clause, I find that the sentence 'The courts of law at Delhi alone shall have the jurisdiction.' ensconced therein contains the key to the riddle, insofar as it is a clear expression of the parties' intent to confer exclusive jurisdiction in all arbitrations arising out of the Work Order, upon the courts at Delhi. The respondent's interpretation of the arbitration clause and opposition to vesting of jurisdiction in Delhi courts arises from its contention that the arbitration clause never provided for a seat of arbitration. In my view, the absence of the term 'seat' while referring to the courts at Delhi, does not alter the significant fact that the courts of law at Delhi alone have been vested with the jurisdiction upon arbitration proceedings arising out of the subject Work Order. In fact, on this ground alone, if the respondent's plea were to be accepted and this Court were to disregard the entire phrase "The courts of law at Delhi alone shall have the jurisdiction" within the arbitration clause, it would render a vital portion of the clause meaningless and futile.

12. Ultimately, the law does not prohibit parties from agreeing to confer exclusive jurisdiction in respect of arbitration proceedings, on mutually preferred, neutral seats. Therefore, notwithstanding the fact that no part of the cause of action arose in Delhi, the clear expression of intent within the arbitration clause to confer jurisdiction on the courts at Delhi helps cull out the fact that the parties chose Delhi as a neutral seat of arbitration. 

IN THE HIGH COURT OF DELHI

ARB. P. 218/2020

Decided On: 21.07.2020

Hamdard Laboratories (India)  Vs.  Sterling Electro Enterprises

Hon'ble Judges/Coram:

Rekha Palli, J.

Citation: MANU/DE/1403/2020

Print Page

Under which circumstances application U/S 9 of Arbitration Act is maintainable in foreign seated arbitration before the Indian court?

Analysis

32. In the light of the facts and submissions recorded above, the primary question which requires consideration is whether the appellants ought to be permitted to proceed with their request for interim measures of protection under Section 9 of the Act, after having failed in obtaining similar relief from the emergency arbitrator under the JCAA Rules, and even after the constitution of the arbitral tribunal.

33. Although Section 9(3) of the Act is, on its terms, expressly relatable to India-seated arbitrations, as evidenced by the reference to Section 17 of the Act, we are of the view that the principle thereof is equally applicable when interim measures are sought in the Indian courts in connection with a foreign-seated arbitration. Resolution of disputes by a tribunal of the parties' choice, and reduced interference by courts, are amongst the central features of arbitration. Section 9(3) of the Act reflects that understanding, and manifests a legislative preference that the grant of interim measures ought to be considered by the arbitral tribunal, once constituted, rather than by the courts. It is only when the remedy before the tribunal lacks efficacy, that a party can seek interim measures from the court under Section 9. In the LC Report also, the following justification is provided for the insertion of Section 9(3) into the Act:

"[NOTE: This amendment seeks to reduce the role of the Court in relation to grant of interim measures once the Arbitral Tribunal has been constituted. After all, once the Tribunal is seized of the matter it is most appropriate for the Tribunal to hear all interim applications. This also appears to be the spirit of the UNCITRAL Model Law as amended in 2006.

Accordingly, section 17 has been amended to provide the Arbitral Tribunal the same powers as a Court would have under section 9.]"

(Emphasis supplied.)

34. Mr. Singh submitted on behalf of the appellants that the aforesaid principle is not applicable to foreign-seated arbitrations, as interim measures granted by India-seated tribunals alone are automatically enforceable in India under Section 17(2) of the Act. It is for this reason, according to Mr. Singh, that Section 9(3) refers only to the availability of a remedy under Section 17, and not to remedies that may be available before a foreign-seated arbitral tribunal. Mr. Singh pointed to this very difference as the rationale for the insertion of the proviso to Section 2(2) of the Act, as contained in paragraph 41 of the LC Report, wherein the Law Commission referred to the decision of the Supreme Court in Bharat Aluminium and Co. vs. Kaiser Aluminium and Co., MANU/SC/0722/2012 : (2012) 9 SCC 552, and observed as follows:-

"41. While the decision in BALCO is a step in the right direction and would drastically reduce judicial intervention in foreign arbitrations, the Commission feels that there are still a few areas that are likely to be problematic.

(i) Where the assets of a party are located in India, and there is a likelihood that that party will dissipate its assets in the near future, the other party will lack an efficacious remedy if the seat of the arbitration is abroad. The latter party will have two possible remedies, but neither will be efficacious. First, the latter party can obtain an interim order from a foreign Court or the arbitral tribunal itself and file a civil suit to enforce the right created by the interim order. The interim order would not be enforceable directly by filing an execution petition as it would not qualify as a "judgment" or "decree " for the purposes of sections 13 and 44A of the Code of Civil Procedure (which provide a mechanism for enforcing foreign judgments). Secondly, in the event that the former party does not adhere to the terms of the foreign Order, the latter party can initiate proceedings for contempt in the foreign Court and enforce the judgment of the foreign Court under sections 13 and 44A of the Code of Civil Procedure. Neither of these remedies is likely to provide a practical remedy to the party seeking to enforce the interim relief obtained by it.

That being the case, it is a distinct possibility that a foreign party would obtain an arbitral award in its favour only to realize that the entity against which it has to enforce the award has been stripped of its assets and has been converted into a shell company.

(ii) While the decision in BALCO was made prospective to ensure that hotly negotiated bargains are not overturned overnight, it results in a situation where Courts, despite knowing that the decision in Bhatia is no longer good law, are forced to apply it whenever they are faced with a case arising from an arbitration agreement executed pre-BALCO."

35. We are unable to accept Mr. Singh's contention. The primary purpose of Part I of the Act (which inter alia includes Section 2, 9 and 17) is to govern India-seated arbitrations. The reference in Section 9(3) to Section 17 alone, cannot therefore be dispositive of the question as to whether the same principle applies where the arbitration is seated outside India. In our view, the absence of a specific reference to foreign-seated arbitrations in Section 9(3) ought not to be construed as a widening of the Section 9 power, to cover cases where the arbitral tribunal has been constituted, and is capable of granting efficacious relief. Such an interpretation would not just extend the scope of Section 9, but would amount to the provision being available in the Indian courts in connection with foreign-seated arbitrations, but not in connection with India-seated arbitrations. We therefore hold that, although an application under Section 9 is maintainable in connection with a foreign-seated arbitration, an application thereunder would not lie after the constitution of the arbitral tribunal, unless the applicant demonstrates that it does not have an efficacious remedy before the tribunal. (We are not required in the facts of the present case to decide whether the availability of a remedy before an emergency arbitrator, or the seat court, would also dissuade the Indian court from granting relief under Section 9.)

36. In considering the aforesaid question, the Court would certainly have regard to the question as to whether the remedy before the arbitral tribunal would be efficacious or not. This caveat is incorporated in Section 9(3) also, and would turn upon the facts and circumstances of each case, including the amplitude of the power conferred upon the arbitral tribunal. In making this assessment, the manner in which the applicant has framed the relief sought cannot be determinative; the more appropriate test is whether the tribunal is sufficiently empowered to grant effective interim measures of protection. 

IN THE HIGH COURT OF DELHI

FAO (OS) (COMM) 65/2020

Decided On: 07.07.2020

 Ashwani Minda   Vs.  U-shin Limited

Print Page

Supreme Court: Appeal by Victim against inadequate sentence is not maintainable

Chapter XXIX of the Code of Criminal Procedure, 1973

deals with ‘Appeals’ and Section 372 makes it clear that no

appeal to lie unless otherwise provided by the Code or any other

law for the time being in force. It is not in dispute that in the

instant case appellant has preferred appeal only under Section

372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act

5 of 2009. Section 372 and the proviso which is subsequently

inserted read as under:

“372. No appeal to lie unless otherwise provided.

– No appeal shall lie from any judgment or order of a

Criminal Court except as provided for by this Code or

by any other law for the time being in force:

Provided that the victim shall have a right to

prefer an appeal against any order passed by the

Court acquitting the accused or convicting for a

lesser offence or imposing inadequate compensation,

and such appeal shall lie to the Court to which an

appeal ordinarily lies against the order of conviction

of such Court.”

A reading of the proviso makes it clear that so far as victim’s

right of appeal is concerned, same is restricted to three

eventualities, namely, acquittal of the accused; conviction of the

accused for lesser offence; or for imposing inadequate

compensation. While the victim is given opportunity to prefer

appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. 

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 555 OF 2020

Parvinder Kansal  Vs   The State of NCT of Delhi 

Dated:August 28, 2020.

Print Page

Orissa HC: Live-in relationship by Same-sex couple is permissible under Domestic violence Act and woman in the said relationship is entitled to get the protection of the said Act

Thus, taking into consideration the aforesaid authoritative

pronouncements of the Hon’ble Supreme Court, there is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of

his choice even though such person may belong to the same gender as the  petitioner.

Therefore, we allow the writ application (criminal) and direct that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners.  The lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.

ORISSA HIGH COURT: CUTTACK

Writ Petition (Criminal) No. 57 of 2020

Chinmayee Jena @ Sonu Krishna Jena Vs State of Odisha 

P R E S E N T

 MR. JUSTICE S.K.MISHRA

AND

 MISS JUSTICE SAVITRI RATHO

Date of Judgment – 24.08.2020

Print Page

When should court release accused on default bail in case under NDPS Act?

In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 10152 of 2019

Decided On: 20.08.2020

 Iswar Tiwari   Vs.  State of Odisha

Hon'ble Judges/Coram:

S.K. Panigrahi, J.

Citation: MANU/OR/0171/2020

Print Page

Delhi HC: Court may issue interim orders against the third parties to arbitration only in exceptional circumstances

 Undoubtedly, section 9 provides that the court shall have the same powers for making interim orders under section 9 as a civil court has for the purpose of, and in relation to, any proceedings before it, and the powers of a civil court in this regard are very wide. The civil courts as and when required, and deemed appropriate in the facts and circumstances of a particular case have been making interim orders in respect of third parties, such as: interim injunction restraining third party-banks from honouring bank guarantees; attaching defendant's monies/property in hands of third party trustee, debtor, agent etc; restraining third party-subsequent transferee/person claiming rights in suit property from disposing of the same, and the like. As a corollary, the power of the court to issue interim orders under section 9 cannot be confined only to the parties to arbitration agreement. However, a significant parameter inherent in section 9, for exercise of this power against a non-signatory to arbitration agreement, is that the purpose of section 9 is to aid arbitration between the parties thereto, and the interim orders there under have to be with regard to subject matter of arbitration/in connection with the arbitral proceedings. In this context, it is relevant to draw a distinction between orders granting interim relief against a party to the arbitration agreement which incidentally affects a third party, on one hand, and orders granting relief directed against a third party, on the other. While the former is ordinarily acceptable as being within the scope of section 9, the power with respect to the latter should be exercised sparingly. For instance, an order appointing a third party as a receiver or guardian of a minor/person of unsound mind is not an order against the third party, or detrimental to its rights as such. Rather, it is a relief granted to the petitioner in support of the arbitral proceedings and affects the party to the arbitration agreement. Similarly, when a subsequent transferee, or a person claiming title under a party to arbitration is ordered to maintain status quo, or not to dispose of property which is subject matter of arbitration, it is again ancillary to arbitral proceedings in as much, as, it is for protection of the subject matter of arbitration that the order is passed. An injunction, or order of attachment with respect to the properties belonging to/monies owed to a party to arbitration, but in hands of a third party for/on behalf of the said party, is effectively a relief against the said party, which incidentally affects the third party. Pertinently, it is expressly provided in the C.P.C., that attachment before judgment shall not affect the prior existing rights of third parties in the property of the defendant sought to be attached. Injunction against a third party bank from honouring a bank guarantee is consequential to interim relief of restraining a party from encashing the same against the petitioner. To sum up, the court may issue interim orders against the third parties to arbitration only in exceptional circumstances which are such that denial thereof might frustrate the petitioner's rights in arbitration; defeat the very object of arbitration between the parties thereto; render the arbitration proceedings infructuous; lead to gross injustice; and/or, leave the petitioner remediless, depending on facts of each case."

IN THE HIGH COURT OF DELHI

O.M.P. (I) (COMM) No. 35/2020 and I.A. 3251/2020

Decided On: 10.06.2020

Blue Coast Infrastructure Development Pvt. Ltd.  Vs.  Blue Coast Hotels Ltd. and Ors.

Print Page

What is distinction between power of court and arbitrator to grant interim relief to party to arbitration against third party?

Reading of Section 9 of the Act as well as the judgments in Value Advisory (supra) and Gatx India (supra) makes it clear that the scope of power of a Court under Section 9 of the Act is not limited to parties to an Arbitration Agreement and the Court can issue interim directions even against a third party. The distinction between the powers under Section 9 of the Act and Section 17 of the Act has a clear rationale. An Arbitrator is a creature of the contract between the parties and therefore cannot venture outside the contract to issue directions to parties who are non-parties to the Arbitration Agreement. This limitation is not applicable to a Court exercising power under Section 9 of the Act.

IN THE HIGH COURT OF DELHI

O.M.P. (I) (COMM) No. 35/2020 and I.A. 3251/2020

Decided On: 10.06.2020

Blue Coast Infrastructure Development Pvt. Ltd.  Vs.  Blue Coast Hotels Ltd. and Ors.

Hon'ble Judges/Coram:

Jyoti Singh, J.

Citation: MANU/DE/1259/2020

Print Page

Whether the court must hear victim while deciding bail application of accused in bailable offences under the SC & ST Atrocities Act?

Our final conclusions may be summarised as under :

(1) Section 15A(3) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the

Constitution of India.

(2) Section 15A(3) of the Amendment Act, 2015, cannot be

termed as manifestly arbitrary.

(3) Section 15A(3) of the Amendment Act, 2015, has to be

construed as mandatory and not directory. The

non-compliance of the said provision would render the

order null and void.

(4) Section 15A(3) of the Amendment Act, 2015, in no

manner imposes any unreasonable restrictions or fetters

on the discretion of the competent court, for the purpose of

considering the plea of bail. The general principles with

regard to grant of bail would continue to apply even in

cases under the Atrocities Act.

(5) The right of a person, who is accused of committing

only bailable offence or offences, if any, under the Act, to

be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal

Procedure. There is no provision in the Act which curtails

the right of an accused to get bail in a case of bailable

offence. The provisions contained in Section 15A(5) does

not, in any manner, affect the absolute right of a person,

who is accused of only bailable offence or offences, to be

released on bail.

(6) When a person is accused of committing only bailable

offence or offences under the Act, it is not mandatory to

grant opportunity of hearing to the victim or the dependent

as provided under Section 15A(5) of the Act in a proceeding

relating to granting bail to such accused. However, before

the court decides to decline such opportunity to the victim

or the dependent, the court shall thoroughly verify and

ascertain that the allegations against the accused disclose

commission of only bailable offence or offences under the

Act, by him.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 6369 of 2020

THE CHIEF JUSTICE MR. VIKRAM NATH and

 MR. JUSTICE J.B.PARDIWALA 

HEMAL ASHWIN JAIN (SHETH) Vs  UNION OF INDIA

CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH

and MR. JUSTICE J.B.PARDIWALA

Date : 06/08/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

Print Page

How order 2 R 2 of CPC applies to arbitration proceeding?

Supreme Court, in Dolphin Drilling Ltd. Vs. Oil & Natural Gas Corporation Ltd. MANU/SC/0120/2010 : (2010) 3 SCC 267 held that the words "all disputes" in arbitration clause can only mean "all disputes that may be in existence when the arbitration clause is invoked and one of the parties to the agreement gives the arbitration notice to the other"; it cannot be held that once the arbitration clause is invoked, the remedy of arbitration is no longer available in regard to other disputes that might arise in future. We may add, that depending on nature of the agreement or obligations to be performed thereunder, it is not necessary that all disputes between parties arise at one point of time. This Court in National Highways Authority of India Vs. ITD Cementation India Ltd. MANU/DE/6011/2012 : 197 (2013) DLT 650 held that in large scale projects, it is not unheard that different facets of the project constitute subject matter of separate references and in the context of large scale works contracts, there cannot be any rigid application of the principles of Order II Rule 2 of the CPC unless it is demonstrated that prejudice has been caused to either party as a result of such non-adherence. We may further add that even if commencement of arbitration with respect to disputes which have arisen, can await culmination of full performance of the agreement, to commence arbitration at one time only, also with respect to other dispute which may arise, the claim earliest arising may by then become barred by time. Order II Rule 2 of the CPC also envisages successive causes of action.

IN THE HIGH COURT OF DELHI

FAO (OS) (COMM) 60/2020 and CM No. 10461/2020

Decided On: 07.07.2020

 Hero Wind Energy Private Ltd. Vs.   Inox Renewables Limited and Ors.

Print Page

Whether petition for interim measures U/S 9(3) of Arbitration Act is maintainable before the court if Arbitration tribunal is in existence from the same agreement?

 In our opinion, the words 'Arbitral Tribunal' in Section 9(3) of the Act have to take colour from all the said provisions and thus have to be interpreted as Arbitral Tribunal constituted to adjudicate the disputes which have arisen and been referred to arbitration and with respect whereto Arbitrators have been appointed and notified of their appointment. Much prior to the incorporation of Sub-Section (3) in Section 9, Supreme Court in Firm Ashok Traders Vs. Gurumukh Das Saluja MANU/SC/0026/2004 : (2004) 3 SCC 155 held, that under the 1996 Arbitration Act, unlike the predecessor Act of 1940, the Arbitral Tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures; the need for Section 9 of the Act, inspite of Section 17 having been enacted, is that Section 17 of the Act would operate only during the existence of the Arbitral Tribunal and its being functional; during that period, the power conferred on the Arbitral Tribunal under Section 17 of the Act and the power conferred on the Court under Section 9 of the Court may overlap to some extent but so far as the period pre and post the arbitral proceedings is concerned, the party requiring an interim measure shall have to approach only the Court. Seen in this light, the Arbitral Tribunal constituted with reference to the disputes which had earlier arisen, even though from the same agreement, cannot be the Arbitral Tribunal within the meaning of Section 9(3) of the Act even if were to be of the same composition. Section 9(3) of the Act does away with the jurisdiction of the Court with respect to interim measures also, once the Arbitral Tribunal is constituted. However, if a separate Arbitral Tribunal even if of same composition is to be constituted for disputes arising out of successive causes of action, Arbitral Tribunal constituted for adjudication of disputes arisen from a earlier cause of action cannot be the Arbitral Tribunal constituted for the disputes arising from a subsequent cause of action and qua which interim measures are sought.
32. We are thus unable to agree with the view taken by the learned Single Judge, of the petition of Hero being barred by Section 9(3) of the Act.

IN THE HIGH COURT OF DELHI

FAO (OS) (COMM) 60/2020 and CM No. 10461/2020

Decided On: 07.07.2020

 Hero Wind Energy Private Ltd. Vs.   Inox Renewables Limited and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw and Asha Menon, JJ.

Author:  Rajiv Sahai Endlaw, J.

Citation: MANU/DE/1349/2020

Print Page

Whether the court can refuse to grant a decree for possession to the plaintiff after declaring his title?

 A decree of possession does not automatically follow a

decree of declaration of title and ownership over property. It is

well settled that, where a Plaintiff wants to establish that the

Defendant’s original possession was permissive, it is for the

Plaintiff to prove this allegation and if he fails to do so,

 it may be presumed that possession was adverse, unless 

there is evidence to the contrary.

51. A person claiming a decree of possession has to establish

his entitlement to get such possession and also establish that

his claim is not barred by the laws of limitation. He must show

that he had possession before the alleged trespasser got

possession.

52. The maxim “possession follows title” is limited in its

application to property, which having regard to its nature, does

not admit to actual and exclusive occupation, as in the case of

open spaces accessible to all. The presumption that possession

must be deemed to follow title, arises only where there is no

definite proof of possession by anyone else. In this case it is

admitted that the Appellant-Defendant is in possession and not

the Respondent Plaintiff.

53. A suit for recovery of possession of immovable property is

governed by the Limitation Act, 1963. Section 3 of the

Limitation Act bars the institution of any suit after  expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

55. In the absence of any whisper in the plaint as to the date

on which the Appellant-Defendant and/or his Predecessor-in interest
 took possession of the suit property and in the absence

of any whisper to show that the relief of decree for possession

was within limitation, the High Court could not have reversed

the finding of the First Appellate Court, and allowed the

Respondent-Plaintiff the relief of recovery of possession, more

so when the Appellant-Defendant had pleaded that he had been

in complete possession of the suit premises, as owner, with

absolute rights, ever since 1966, when his father had executed

a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported

in (1907) PC 73, it cannot be disputed that a person in

possession of land in the assumed character of owner and

exercising peaceably the ordinary rights of ownership has a

perfectly good title against all the world but the rightful

owner...and if the rightful owner does not come forward and

assert his right of possession by law, within the period

prescribed by the provisions of the statute of limitation

applicable to the case, his right is forever distinguished, and the

possessory owner acquires an absolute title.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2843-2844 OF 2010

Nazir Mohamed  Vs J. Kamala 

Author: Indira Banerjee, J.

Dated:AUGUST 27, 2020

Print Page

Whether the court can convict accused if the investigating officer has failed to procure evidence regarding call details?

True, the mobile tower location, with respect to the mobile of accused and deceased if produced, would have assisted, but, failure of investigating agency to procure said evidence would not frustrate the entire prosecution case as other clinching material is available. Needless to say that the lapses on the part of the investigating agency would not benefit the accused, unless the lapses relate to vital aspects.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 503, 507, 572 of 2013, 278 and 279 of 2014

Decided On: 05.09.2019

 Lalit Ramesh Prabhawat  Vs.  State of Maharashtra

Hon'ble Judges/Coram:

Z.A. Haq and Vinay Joshi, JJ.

Author: Vinay Joshi, J.

Citation: 2019 SCC OnLine Bom 1808,MANU/MH/3348/2019

Print Page

Leading Supreme Court Judgment on legal consequences of filing of premature suit

We may now briefly sum up the correct position of law which is as follows :

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason.

The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors. - MANU/SC/0386/1987 : AIR1987SC1926). One more category of suits which may be added to -- where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2390 of 2002

Decided On: 11.03.2005

 Vithalbhai Pvt. Ltd.  Vs.  Union Bank of India

Hon'ble Judges/Coram:

R.C. Lahoti, C.J. and G.P. Mathur, J.

Author: R.C. Lahoti, C.J.

Citation: (2005) 4 SCC 315, AIR 2005 SC 189, MANU/SC/0195/2005

Print Page

Supreme Court: Defendant can not take the plea of title as well as adverse possession simultaneously and from the same date

 We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.P.T. Munichikkanna Reddy & Ors. (supra)

35. In the facts of the present case, this fact has not at all been proved.

The possession of Smt. Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.

36. The possession has to be in public and to the knowledge of the true

owner as adverse, and this is necessary as a plea of adverse possession

seeks to defeat the rights of the true owner. Thus, the law would not be

readily accepting of such a case unless a clear and cogent basis has been made out.M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.(supra)

37. We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr.(2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.

38. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

39. We have, thus, no hesitation in coming to the conclusion that the appeal is meritless and is accordingly dismissed with costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2710 OF 2010

NARASAMMA Vs  A. KRISHNAPPA 

Author: SANJAY KISHAN KAUL, J.

Dated:August 26, 2020.

Print Page

Whether Court should dismiss eviction suit filed before the expiry of the statutory period prescribed U/S 15(2) of Maharashtra rent control Act as a premature suit?

I have given due consideration to the respective submissions. The facts on record indicate that the respondent who is the landlord had issued a notice to the tenant on 11-2-2008 demanding arrears of rent. This notice was served on the tenant on 19-2-2008 but the same was not complied. The suit was filed on 1-3-2008. In this factual background, the aspect whether the petitioner can be permitted to raise the plea that the suit as filed was before expiry of the statutory period of ninety days from service of the demand notice deserves to be considered.

The provisions of section 15(2) of the said Act read thus:

Section 15(2): No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

What has been prohibited is the institution of a suit for recovery of possession against the tenant on the ground of non-payment of standard rent or permitted increases. Unless the period of ninety days has expired after service of the notice of demand on the tenant, such suit cannot be instituted. Hence there would be no jurisdiction with the Court to entertain a suit that has been instituted prior to the expiry of the statutory period of ninety days. In Vitthalbhai (P) Ltd. (supra) the Honourable Supreme Court considered the fate of a premature suit. In paragraph 22 thereof it was observed thus:

"... However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event: (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency."

The case in hand pertains to contingency No. (i) as contemplated by the Honourable Supreme Court. The said defect of premature institution also renders the presentation of the suit void thereby affecting the court's jurisdiction.

6. From the facts noted hereinabove, it is crystal clear that the suit was filed by the respondent prior to expiry of ninety days from the service of the demand notice. The presentation of the suit itself being void and going to the court's jurisdiction, the aforesaid plea would have to be permitted to be raised though it was not raised earlier. The aforesaid defect being incurable as the landlord could not have cured the said defect after filing the suit is without any doubt. Even if such plea was raised in the written statement, the defect in question was incurable. On the other hand if it is found that the Court has entertained the suit on the basis of presentation of the plaint which was patently void and affecting the jurisdiction of the Court, said legal plea would have to be permitted to be raised. This plea does not call for any factual adjudication as the date of service of the notice on the tenant and the date of presentation of the plaint are not in dispute. Moreover, the decree for eviction has been passed only on the ground of arrears of rent. The observations of learned Single Judge in paragraph 6 of the decision in Digambar Hari Sonpatki (supra) can be relied upon.

7. In view of aforesaid, the only conclusion that can be drawn from the aforesaid facts is that the suit for eviction was filed in a manner contrary to provisions of section 15(2) of the said Act. The trial Court had no jurisdiction to entertain such a prematurely instituted suit. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 3788 of 2015

Decided On: 07.07.2016

Jitendra Nagarkar vs Mohanlal Agrawal,

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: MANU/MH/2659/2016,2016 SCC ONLINE BOM 7056,

(2016) 6 Mah LJ 797 : (2016) 6 Bom CR 743, 2017(2) ALLMR 69

Print Page