2020 (3) Mh.L.J. 772-Yash Pramesh Rana and others Vs State of Maharashtra and others, A.A. Saed, Dama Seshadri Naidu and P.D. Naik J.J.

In the aforesaid judgment, Hon’ble Bombay High Court has succinctly analyzed the landmark judgments of Apex Court relating to the education sector. In the beginning, the High Court has observed:

  1. A boy began the battle. It was in 1856. Branded by birth as a Dalit, he wanted to join a school in the Bombay Presidency. It raised a storm, a storm of indignation and disbelief. And that boy's battle for admission has changed the course of Indian educational history. But the battle has not ceased, it seems. It continues in one form or another in the arena of courts, though.

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Landmark Judgment relating to procedure of disciplinary inquiry

 

Chief Engineer, Latur Zone & Competent Offer, Maharashtra State Electricity Distribution Company Limited Vs Nathuram

Writ Petition No. 11616/2018

Hon’ble Judge: R.V. Ghuge

12. I am unable to accept the said contention for the reason that a departmental enquiry has to be normally conducted in the following manner :

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The role of the directors of companies under criminal complaint under section 138 of negotiable instrument act, 1881

The Hon’ble Supreme Court in the case of Gunmala Sales Pvt Ltd vs Anu Mehta and ors reported in 2015 (5) Mh.L.J. ( S.C.) I = 2015 (3) Mh.L.J. ( cri) (S.C.) 523 = ( 2015) 1 SCC 103, while explaining the ambit, scope and purport of section 138 and section 141 in para 34 held thus :

34- We may summarise our conclusions as follows :

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Hindu marriage act

 

II] SEC.9 AND SEC.17- INTERIM MEASURES BY COURT AND TRIBUNAL

2019 (3) Mh.L.J. pg. 885-

Anti-suit injunction- Grant of – Plaintiff- wife and defendant- husband being Hindu were married in Mumbai as per Hindu rites and ceremonies- Merely because defendant- husband is having domicile of U.K., would be of no significance and would not divest jurisdiction of Court provided under section 19 for purpose of filing proceedings under provisions of Hindu Marriage Act.

Applicability of 1955 Act- Parties having been married in Mumbai under provisions of Hindu Marriage Act, 1955, that law governs marriage of a party. [ Arunima Naveen Takiar Vs Naveen Taklar]

 

Landmark judgments under arbitration act

I] SEC.7 -ARBITRATION AGREEMENT AND SEC.8 POWER TO REFER PARTIES TO ARBITRATION

  1. AIR 2011 SC 2507: Booz Allen and Hamilton Inc v. SBI Home Finance Ltd. and Ors.
  2. AIR 2016 SC 4675 A. Ayyasamy v. A. Paramasivam and Ors.
  3. AIR 2017 SC 2105: Indus Mobile Distribution Pvt. Ltd v. Datawind Innovation Pvt. Ltd and Ors.
  4. 2018 DGLS(SC) 338: Cheran Properties Limited  Versus Kasturi and Sons Limited and Others.
  5. AIR 2016 SC 5359: Ananthesh Bhakta Represented by Mother Usha A. Bhakta and Ors. v. Nayana S. Bhakta and Ors.
  6. 2017 SCC(2) 268: Greaves Cotton Limited Versus United Machinery and Appliances.
  7. 2006 SCC (7) 275 Rashtriya Ispat Nigam Limited & Anr Versus Verma Transport Company.
  8. 2003 SCC (5) 531 Sukanya Holdings Pvt.Ltd. Versus Jayesh H.Pandya and another.
  9. 2018 DGLS(SC) 165 Kerala State Electricity Board and Another Versus Kurien E.Kalathil and Another

Landmark judgments under arbitration act

 

II] SEC.9 AND SEC.17- INTERIM MEASURES BY COURT AND TRIBUNAL

  1. Parsoli Motor Works vs BMW India p ltd
  2. 2004 SCC(3) 155Ashok Traders (Firm)  & Anr. Versus Gurumukh Das Saluja & Ors.

To Read More Click Here: II]SEC.9 AND SEC.17- INTERIM MEASURES BY COURT AND TRIBUNAL

 

Landmark judgments under arbitration act

III] SEC.34- SETTING ASIDE OF AWARD

  1. 2012 SCC(2) 624: Assam Urban Water Supply & Sew.Board Versus Subash Projects & Marketing Ltd.
  2. AIR 2011 SC 1374:  Lodha State of Maharashtra and Ors v. M/s. Ark Builders Pvt. Ltd 
  3. AIR 2001 SC4010 Followed in many cases: Union of India Appellant v. M/s. Popular Construction Co-Respondent

 SET-ASIDE

  • 2012(3)MLJ 737
  • AIR 2003 SC 2629 FOLLOWED IN MANY: Oil and Natural Gas Corporation Ltd Appellant v. SAW Pipes Ltd Respondent.
  • 2015 BCR(2) 457- 2006 (11) SCC181
  • Geojit Financial services vs Kritika Nagpal Bom. HC - Radha Chemicals vs Union of India 2018- Kinnari Mullick vs Ghanshyam Das Damani SCC2018 (11) 328
  • 2010 (1) BCR 529 -AIR 2010 SC 3543 Doctrine of Severability
  • Apparel Export Promotion Council v. Prabhati Patni, Proprietor Comfort Furnishers and Anr.
  • Globe Congeneration Power Limited v. Sri Hiranyakeshi Sahakari Sakkere Karkhane Niyamit  2005
  • Mikuni Corporation v. UCAL Fuel Systems Limited, Carburettors Limited and Siemens VDO Automotive 2007
  • M/s Videocon Industries Limited v. M/s JMC Projects (India) Limited(VIDEOCON Judgment)  2012 Bombay HC
  • Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc.(BALCO Judgment)  Supreme court 2012 (9) SCC 552

To Read More Click Here: III] SEC.34- SETTING ASIDE OF AWARD

Landmark judgments under arbitration act

IV] SEC.36 ENFORCEMENT

1. AIR 2016 JHARKHAND 47: M/s. IndusInd Bank Limited, Dhanbad v. Rajesh Dayal

2. 2018 DGLS(SC) 92

3. AIR 2018 BOM 89

To Read More Click Here: IV] SEC.36 ENFORCEMENT

Suppression of Material Facts- Injunction order quashed

Dr. Jose Floriano Cristovam Pinto and another …Appellants  Vs Dr. Michelle N. Pinto Souza ( deceased ) through her legal heir Ms. Nenelle Nicole Mariah Desouza and another respondent

Coram: Nutan D. Sardessai, J.                                   Court: Panaji - Goa

Appeal from order No. 51 of 2016 decided on 20-01-2017 ( Panaji Goa) 2017 (3)  Mh.L.J page 543

Dr. Jose Floriano Cristovam Pinto v/s  Dr. Michelle N. Pinto Souza.

Civil Procedure Code O.39 R.1 and Portuguese Civil Code, 1867, Art. 2042.

Injunction order – Parents of appellant No.1 and plaintiff No.1/ respondents distributed properties to them during their lifetime by the family settlement -  Plaintiff No.1/ respondents had disposed of property allotted to them- On the death of parents, plaintiffs initiated inventory proceedings without disclosing family settlement deed.- Plaintiffs were guilty of suppression of material facts.

Plaintiffs were guilty of suppression of the material facts from the Court. The Learned Trial Court could not have secured the respondents with the equitable order of injunction against the appellants herein. The appeal is allowed and the impugned order securing the plaintiffs with an order of injunction is quashed and set aside.

Minority Institution- Relaxation in qualification of teachers applies to direct recruitment and not promotion

Girish B. Rai – Petitioner Vs Kalindi K. Rai and others - Respondents

Coram: R.D. Dhanuka J.                                          Court: Bombay

Review Petition No. 145 of 2015 in W.P. No. 255 of 2002 decided on 11-07-2016 (Bombay)
2017 (3) Mh.L.J. page 478- In this judgment, Hon’ble High Court held that, s. 3 (2) of MEPS Act ( 1978) avails relaxation for minority institution in case of qualifications of teachers which can be exercised only in respect of direct requirement and not while making a promotion.

It is also observed by the High Court that minority institution is a minority institution from its establishment by its character and the certificate issued in this behalf by appropriate Govt is just the ratification of the fact.

Medical negligence in ophthalmology loosing of eyesight can be a complication arising out of cataract surgery and not medical negligence.

Recently, we dealt with a Consumer Complaint against an ophthalmologist before the State Consumer Dispute Redressal Commission, Mumbai, Camp. Kolhapur. The complainant alleged that after undergoing cataract surgery, he lost eyesight of one of his eyes and hence claimed compensation from the ophthalmologist. The matter was dismissed by the District Forum and complainant took up the matter to the State Commission. We appeared on behalf of the ophthalmologist in the State Commission and showed with reference to the case – papers and medical texts that the complainant developed an infection after cataract surgery. The ophthalmologist had done everything necessary for such surgery i.e. prior and post. Thus, in spite of the doctor taking all the necessary precautions and performing surgery as per established medical procedure, infection occurred which was beyond the control of the doctor. Medical science does record the possibility of such an infection.

We relied on the following rulings:

1] Kushum Sharma and Ors Vs Batra Hospital and Medical Research Centre and Ors 2010 (2) AIR Bom R. 644.

2] Rameshbhai P. Prajapati and Vs Dr. P.N. Nagpal – I ( 1997) CPJ 471.

3] Hari Prasad Chunkai Vs Mannulal Jagannath Trust Hospital and or – I ( 2005) CPJ 783.

Considering the arguments of both sides, the State Commission was pleased to dismiss the appeal.

Limits of challenge to Arbitral Award u/s 34 of Arbitration and Conciliation Act, 1996

Govt of Maharashtra through its Health Department challenged the Arbitral Award passed by Hon’ble Shri Justice S.N. Variyava ( Retired S.C. Judge) before the District Court, Kolhapur u/s 34 of Arbitration and Conciliation Act, 1996. As per the award, the Govt of Maharashtra was directed to pay a sum of Rs 1,64,59,700/- towards the work of building of Govt Hospital. The award was challenged on the grounds of jurisdiction and calculations. We appeared on behalf of the Company and showed that scope Sec. 34 of Arbitration and Conciliation Act, 1996 is limited and it is not an appeal in disguise Reliance was placed by us on various rulings of Apex Court interpreting Sec. 34 as giving very limited scope to the Court for interference in the award of the arbitrator. The District Court was pleased to dismiss the application u/s 34 of Arbitration and Conciliation Act, 1996.

Recovery against sugar factory- effect of statutory notice extending limitation for filing of suit

A Suit was filed by us on behalf of a Company against a Sugar Factory for the refund of the amount paid to sugar factory for the supply of molasses. The sugar factory took a plea that molasses was not lifted in time and that time was the essence of the contract and hence the sugar factory was entitled to forfeit the amount for breach of contract by the company. We showed and proved before the court that as per the documents, time was not strictly essence of the contract. Further, time was once extended. The sugar factory, therefore, has shown to have wrongfully withheld the amount. We placed reliance on M/s Hind Construction Contractors by its Sole proprietor Bhikamchand Mulchand Jain ( dead) by L.R’s Vs State of Maharashtra reported in AIR 1979, Supreme Court, 720. Another Law point which was raised by the sugar factory was that the suit was not in limitation. We showed to the court that, the time provided for the filing of the suit gets extended in view of the notice sent by us u/s 164 of Maharashtra Co-operative Societies Act, 1960, entitling the plaintiff to get the exclusion of notice period of two months from limitation. The court accepted our contentions and decreed the suit with interest.

Requirements for success in cheque dishonor cases u/s 138 Negotiable Instrument Act

Criminal Appeals were filed by us on behalf of a partnership firm and its partners against their conviction u/s 138 of Negotiable Instruments Act, 1881. It was shown to the Appellate Court that there was doubt about the amount shown in the cheques, the accounts, the discrepancy in the signed receipt and the actual payment, non- production of relevant documents by the complainant admissions in a cross, lack of averments relating to the role of the partners. Reliance was placed on recent judgments of Bombay High Court and Supreme Court. It was pointed out that reliance placed by the Trial Court on Sec. 92 of Indian Evidence Act in such cases is erroneous as though receipt was signed, the proviso to Sec. 92 allows the accused to show that it was fraudulent, suffered from want or failure of consideration, mistaken in fact or law. The Appellate Court accepted the contentions and allowed the appeal by setting aside the conviction.

Injunction granted in the Civil Court against putting construction in the space provided for common use and enjoyment of the flat owners in a building

A case was filed against a builder in the Civil Court seeking an injunction against putting construction in the space provided for common use and enjoyment of the flat owners in a building. The builder took a contention that the said space was actually shown for construction in the sanctioned map of the local authority. However, it was shown to the court by us that, the map which was shown by the builder to the plaintiff and the map which was got sanctioned were different and the builder did not obtain the consent of the plaintiff for change in the map. The court thus gave an injunction in favour of the plaintiff against the builder injecting him from putting any construction in the suit passage. The Court relied upon Sec. 3 and 7 of Maharashtra Ownership of Flats & Regulation Act.
 
Comment

 

The new Real Estate Regulation and Development Act ( RERA), the law will bring in a lot of transparency and regulation on the building activity. Under the new regulation, the builders will have to register their projects with the competent authority, but the projects on the website and complaints relating to the projects will be dealt with by competent authorities under the new regime.

 

Enforcement of Negative Covenant under Mining Contracts

Recently we handled an interesting case undermining the law. It is usual practice in the mining area in this country that people who are granted the mining rights normally do not have the capacity to actually carry out mining. They, therefore, enter into an agreement of raising/ extraction and sale with different entities. In a recent case handled by us, an agreement for extraction /raising was entered into by our client with the mining leaseholders.
 
Eventually, however, disputes arose between the parties and the leaseholders started obstructing the raising activity of our client. The agreement had an arbitration clause under the provisions of the Arbitration and Conciliation Act, 1996. We, therefore, moved the District Court in Kolhapur u/s 9 of the Arbitration Act and sought interim relief against the mining leaseholders from obstructing our client in carrying out raising activities. The matter was very hotly contested on behalf of the mining leaseholders. The court applying the principles of a grant of an injunction- prima facie case, the balance of convenience and irreparable injury and interpreting the agreement was pleased to grant an injunction in favour of our client as prayed.

Assisted Reproductive Technology

The Lower house of Indian Parliament has recently passed bill in this behalf banning commercial surrogacy. The Bill is sent to upper house i.e. Rajya Sabha. I have already written a critical article on the bill which can be seen on the Articles put on this website.

We have seen that advancement of science and technology has enabled married couples who cannot or do not wish to have a child of their own and have an option of availing Assisted Reproductive Technology. There is a bill called Assisted Reproductive Technology Bill in India which is pending on this subject.
 
 

Hon’ble Justice Shukre, Bombay High Court, has laid down requirements for a suit to be filed on behalf of a Company

Hon’ble Justice Shukre has led down a requirement for a suit to be filed on behalf of a Company. It is held that O. XXIX of the Code of Civil Procedure is applicable to such suits. O. XXIX lays down that pleadings by a Corporation may be signed and verified on behalf of Corporation by the secretary or by any director or other principal officers of the Corporation which is able to depose to the facts of the case. J. Shukre has observed that this provision only explains as to how the pleadings are to be signed and verified. This provision of law nowhere clarifies anything about the institution of the suit. Institution of the suit requires a decision to be taken in that regard by a Company and since the Company, for carrying on its affairs, acts through its Board of Directors and in certain cases, well through the directors or secretaries too, provided their authority springs forth from the Articles of Association or some decision taken in the annual general meeting or a resolution passed by the Board of Directors, there has to be a decision taken by the Company to file a suit. Without such a decision, no suit can be instituted in the name of or by the Company. After all, the question of authority to institute a suit on behalf of the Company has never been considered a matter of mere technicality, the reason being that decision to institute a suit would have great consequences for the operation and functionality of the Company. If no such authority is produced or shown to exist or at least pleaded in the plaint, no suit can be instituted for and on behalf of the Company.