Read Order: Madan Lal v. State of Haryana and another
Tulip Kanth
Chandigarh, May 23, 2023: The Punjab and Haryana High Court has asked the Director General of Haryana Secondary Education Department to consider the plea of the petitioner for payment of his salary as per Notification/letter dated September 11, 2017 and to grant him the benefit of ESI and EPF.
It was the petitioner’s case that he, being fully eligible, was appointed as Lab. Assistant/Lab. Attendant on contractual basis in different schools of the State of Haryana in the month of July-2011, and since then he has been working as such. The contract with the service provider was terminated by respondent -Director General, Secondary Education Department, Haryana in 2014 and the petitioner was asked to continue to work as Lab Assistants in ICT Labs.
It was submitted that vide letter issued by the General Administration Department, Govt. of Haryana, the wages/honorarium of contractual/outsourced persons engaged under outsourcing Policy were increased and as per the Policy, the petitioner fell under the category of skilled person, as he is Matriculate and having one year Diploma.
Thus, the petitioner approached the High Court for adequate relief.
The State Counsel submitted before the Bench that the petition may be disposed of with a direction to the respondent Director General, Secondary Education Department, Haryana, to consider the case of the petitioner in the light of the letters dated August 28, 2014 and September 11, 2017.
After considering the contentions of the parties and the factual scenario, the Single-Judge Bench of Justice Harnaresh Singh Gill held, “...the present petition is disposed of with a direction to respondent No.2-Director General, Secondary Education Department, Haryana, to consider the case of the petitioner in the light of the letters dated 28.08.2014 and 11.09.2017 and decide the same within two months, in accordance with law, from the receipt of the certified copy of this order.”
Read Order: Ishrat Ali v Cosmos Cooperative Bank Limited
Simran Singh
New Delhi, May 23, 2023: In a Company Appeal, the National Company Law Appellate Tribunal affirmed the order of the Principal Bench which had rejected the Transfer Application filed by the appellant stating that litigant had no right to ask the Member to recuse himself from the hearing.
In the matter at hand, the appellant questioned the order dated 09-12-2022 wherein the transfer application filed by the appellant before the Principal Bench of National Company Law Tribunal (NCLT) was rejected. The appellant in its transfer application had sought recusal of the member who did not recuse from the proceedings. The Principle Bench had stated that the said ground could not be accepted for transferring a proceeding from NCLT Mumbai.
The Bench navigated through Rule 62 of the NCLT Rules, 2016 which dealt with the recusal which could be utilised by Members and President to recuse themselves from hearing a proceeding if conditions or factors as mentioned in sub-clauses (a), (b) and (c) were fulfilled.
“62. Recusal.-
(1) For the purpose of maintaining the high standards and integrity of the Tribunal, the President or a Member of the Tribunal shall recuse himself: –
(a)in any cases involving persons with whom the President or the Member has or had a personal, familial or professional relationship;
(b)in any cases concerning which the President or the Member has previously been called upon in another capacity, including as advisor, representative, expert or witness; or
(c) if there exists other circumstances such as to make the President or the Member’s participation seem inappropriate.
(2) The President or any Member recusing himself may record reasons for recusal:Provided that no party to the proceedings or any other person shall have a right to know the reasons for recusal by the President or the Member in the case.”
It was thus stated that the litigant had no right to ask the Member to recuse himself and giving such right to litigant would lead to disastrous and unwelcome results.
Read Order: M/s Reliance HR Services Private Limited v. Assistant Commissioner of Service Tax
Chahat Varma
New Delhi, May 23, 2023: The Principal bench of the Customs, Excise and Service Tax Appellate Tribunal by placing reliance on Rajender Kumar & Associates v. Commr. of Service Tax, Delhi-II [LQ/CESTAT/2020/229], has held that once the requirements of Rule 4A of the Service Tax Rules, 1994 and Rule 9 of Cenvat Credit Rules, 2004 are satisfied, the benefit of Cenvat credit on account of unregistered premises cannot be denied.
In the present case, M/s Reliance HR Services Private Limited (appellants) were engaged in the provision of manpower recruitment agency and commercial training or coaching services. During the course of audit conducted, it was noticed that the appellants had wrongly availed Cenvat credit on input services and invoices issued in the name of locations which were not included in the Centralized registration.
The appellants contended that they had availed Cenvat credit of service tax paid on the inputs/input services prior to registration at some locations with the service tax department and eligibility of credit usage of such services for providing taxable output services were not under dispute, therefore, non-registration of the branches was only a procedural lapse.
The Tribunal observed that in terms of Rule 4A (1) of Service Tax Rules, 1994, the invoice or the challan shall be serially numbered and shall contain the name, address and registration number of such person (i.e., provider of the services); name and address of the person receiving taxable service; description and value of taxable service provided or agreed to be provided and the service tax payable thereon.
The Tribunal further observed that as per proviso to Rule 9(1) of Cenvat Credit Rules, even if the duty paying documents does not contain all particulars but contain the details of duty or service tax paid or payable, description of the goods or taxable service, assessable value, name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, the Cenvat credit may be allowed.
Read Order: Shavva Sudheer Reddy v. Asstt. C.I.T
LE Correspondent
Mumbai, May 23, 2023: The Hyderabad bench of the Income Tax Appellate Tribunal has upheld the penalty levied by the Assessing Officer (AO) on the assessee, under section 271(1)(c) of the Income Tax Act, which was sustained by the Commissioner of Income Tax (Appeals) [CITA(A)].
Factual background of the case was that the assessee, an individual, filed his income tax return, declaring a total income of Rs. 8,50,600/-. Subsequently, a search and seizure operation under section 132 of the Income Tax Act was conducted in the case of the Mytrah Energy group, in which the assessee was also covered. As a result, a notice under section 153A was issued to the assessee, who filed a revised return of income, admitting a total income of Rs. 58,00,600/-. The assessment was completed with an addition of undisclosed investment under section 69B of the Income Tax Act amounting to Rs. 36,50,000/-. The AO, considering the admission of undisclosed investment by the assessee in sworn statements recorded, held that the assessee was liable for the penalty under section 271(1)(c) of the Income Tax Act for concealing income. In appeal, the CIT (A) sustained the penalty levied by the AO.
The bench of R.K. Panda (Accountant) and Laliet Kumar (Judicial) noted that it was an admitted fact that the assessee could not explain the source of the undisclosed investment towards the purchase of the property at Bangalore and the payment made towards interiors for purchase of villa at Kondapur.
So far as the argument of the assessee that undisclosed investment was offered to tax only to put a quietus on the issues and to avoid protracted litigation, the bench held that the addition was not voluntary but only after the search was conducted and incriminating evidence were found and confronted to the assessee for which the assessee had no other option but to pay the tax on the said amount. Had there been no search, the assessee would not have offered the above income to tax.
Read Order: Denso Ten Minda India Pvt. Ltd v. ACIT
Chahat Varma
New Delhi, May 23, 2023: The Delhi bench of the Income Tax Appellate Tribunal has noted that the assessment order pertaining to Denso Ten Minda India Pvt. Ltd. (assessee) lacked proper examination and discussion by the Assessing Officer (AO) regarding certain issues raised. As a result, the Tribunal has remanded the matter back to the AO for a fresh adjudication.
The counsel for the assessee had argued that the assessee had computed the book profits under section 115JB of the Income Tax Act at Rs. 11,99,54,253/-. The AO, in completing the assessment under section 143(3) of the Act, did not discuss any adjustment made to the book profits. However, the computation sheet prepared by the AO computed the book profits at Rs. 14,94,84,614/- without providing any explanation in the assessment order.
After a thorough review of the orders issued by the lower authorities and a careful analysis of the income computation and disclosures made by the assessee, the Tribunal noted that the assessee had declared a net amount instead of providing separate reporting for each item. Furthermore, the Tribunal observed that the AO had not conducted any examination or discussion regarding this matter in the assessment order. In light of these findings, the Tribunal decided to remand the issue back to the AO.
Read Order: Rabindra Kumar Das v State of Odisha
Simran Singh
New Delhi, May 23, 2023- The Orissa High Court, while exercising its civil writ jurisdiction and dismissing the petition, stated that it did not find any illegality and irregularity committed in the decision-making process of selection of respondent 7 as a successful bidder in respect of work so as to cause interference of this Court. It was held that the decision taken for revocation on the assessment made by the tender committee on the basis of the materials available on record could not be said to be mala fide exercise of power by the authority concerned.
“If the DTCN specifies the mode of submission of tender document and that mode was found to have been not followed, the submission of tender document itself was a defective one. The tender document had to be in consonance with the DTCN and it must be unconditional one and in proper form,” said a Single-Judge Bench of Justice M.S.Raman.
The Bench viewed that merely because the petitioner was found, on consideration of an erroneous document, that by itself could not create a right in favour of the petitioner, unless the parties had entered into agreement and there was concluded contract to that extent. “Since no right has been accrued in favour of the petitioner and the authorities, having realized their mistake, rectified the same and that the same is well within their jurisdiction, this Court is not inclined to interfere with the decision so taken.”
In the matter at hand, the petitioner being an ‘A’ class contractor sought for direction to the respondent to finalize the tender and award the contract in his favour, being the successful (L- 1) bidder, in view of the proceedings dated 30-09-2022 and further to execute necessary agreement with him pertaining to the work of ‘Construction of Bar Association Hall with Amenity Centre of District Court Building at Bhadrak’ for the year 2022-23 by quashing the letter dated 29-09-2022 by which respondent 3 had constituted a fresh technical evaluation committee and proceeded with the tender process.
The petitioner had further sought to quash the letter dated 08-02-2023 by stating therein that as per the decision of the committee held on 06-02-2023, the petitioner had been disqualified as L-1 bidder, and consequential action thereof taken by the authority was without jurisdiction, invalid, inoperative amounting to overreaching the directions of this Court contained in order dated 28-10-2022 and order dated 17-01-2023.
The Bench stated that admittedly petitioner was declared as L-1 bidder by the technical evaluation committee for the aforesaid work but, subsequently, on complaint being received against them, the same was re-examined on the basis of which it was found that the petitioner had taken advantage by producing fraudulent documents. On instructions being received from the competent authorities with regard to issuance of such documents and when it came to the notice of the technical evaluation committee that the same were not issued by them, ultimately took the decision in favour of respondent 7 as he was the 2nd highest bidder, as the petitioner incurred disqualification in terms of the provisions contained in the Detailed Tender Call Notice (‘DTCN’).
The Court stated that there was no bar to rectify an inadvertent error and mistake, which came to the notice of the tender inviting authority upon receipt of the complaint from one of the bidders, thus, decision was unanimously taken by the committee to revoke the bid for further evaluation. Therefore, it was held that no illegality had been committed in re-evaluating the bids after receipt of the complaint against the successful bidder and before issuance of Letter of Acceptance.
The Court stated that since the case of the respondent was that the allegation received against the petitioner was under scrutiny, this Court, vide order dated 17-01-2023, directed the respondents to proceed with the allotment of the work in favour of the selected person, since no interim order was operating. Pursuant to such direction and upon receipt of detailed clarification, the complaint received against the petitioner was finalised upon disqualification of the petitioner on 06-02-2023.
The Bench noted that the the L2 bidder was called upon thereafter vide letter dated 08-02-2023, for negotiation of the rate. Accordingly, the name of the L2 bidder was recommended vide letter dated 10-02-2023, for necessary approval, but the same was not received. Consequentially, because of pendency of the writ petitions, the work could not be progressed.
The Court stated that clauses 14 and 16 of the DTCN stipulated the eligibility criteria of satisfactory execution or completion of similar nature of works, and merely becoming L1 bidder did not automatically get entitled to be awarded with the work, irrespective of genuineness of the documents submitted and their satisfactory verification. Furthermore, it was noted that the tender document was not a statutory document and as and when, any inadvertent error was found in evaluation of bidding process, the same could be rectified by the tendering authority. The Committee opined that the tendering authority had every right to revoke the tender to pre-opening stage for further evaluation of the bid, as no right had been accrued in favour of the petitioner in any manner by the time the complaint was received on 30-09-2022 from respondent 7 and, as such, verification of original documents could not be held awaiting enquiry report on the allegations made against the petitioner.
The Bench stated that the disqualification of the petitioner had been made according to clauses 119(a) and 126(f) of the DTCN and the disqualification of the petitioner’s bid was within the competency of the authority and as such the same was in compliance of the provisions contained in the DTCN. Thereby, no error could be found with the authority in rejecting the bid of the petitioner. Once the petitioner was found ineligible, as he had produced false documents and committed fraud on the authority in violation of clauses-119 (a) and 126 (f) of the DTCN, the committee recommended for negotiation with the 2nd lowest bidder, i.e. respondent 7 . Accordingly a letter dated 08-02-2023 was issued to the L2 bidder namely respondent 7 to negotiate on a par with the rate quoted by the L1 bidder. The 2nd lowest bidder agreed to negotiate on a par with the rate quoted by L1 bidder (petitioner) and his original documents were verified with the uploaded documents. The tender of the 2nd lowest bidder being minus 10.30% less than the amount put to tender was recommended for approval. Thus, the Court did not find any error or illegality in selecting respondent 7 and the L1 bidder in the interest of justice, equity and fairplay.
The Bench was of the view that the petitioner had not approached the Court with clean hands and thus by giving distorted facts, it was held that the petitioner had misled the authority.
The Bench while relying on State of Punjab v. Jagdip Singh stated that it was no more res integra that the authority, who had committed a mistake could rectify the same if it was brought to its notice at a subsequent stage. Further while referring to Union of India v. Rakesh Kumar it was viewed that the principle of estoppel would not apply to the present context, inasmuch as if the mistake had been discovered, the same was to be rectified.
“As there is no concluded contract existed between the parties, the claim made by the petitioner to award the contract in his favour on the basis of the so called consideration made cannot be acceded to.” The bench navigated through Section 10 of the Contract Act, 1872 and stated that the right to make a contract included right not to make a contract. But said right was inherent in every person capable of entering into a contract. Therefore, once mistake was found out and the same had been rectified, it was within the domain of the authority to enter into a contract with a person, who was found eligible. Thereby, it was held that no illegality or irregularity had been committed by the authority.
Read Order: Wan Chenghua Vs. State Of U.T. Chandigarh
Tulip Kanth
Chandigarh, May 23, 2023:The Punjab and Haryana High Court has granted bail to an accused who was allegedly involved in duping and threatening gullible people through the Hugo Loan app and transferring money to overseas accounts after considering his incarceration period of 8 months while also observing that it is for the Government to take appropriate measures empathizing the people’s suffering and the global tarnishing of India's image by these cyber-thugs.
“The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure shall be incurred to trace him, shall be recovered from such person, and all the State shall have a lien over their assets to make good the loss”, Justice Anoop Chitkara said.
The complainant informed the police that he had received an SMS on his mobile number containing a URL link and as soon as he clicked on it, Hugo's loan application was installed. The application sought permission to access all his contacts and gallery on the cell and the complainant granted the permission.
The application showed that he was eligible for Rs 3500 loan. However, the complainant did not apply for a loan. Later, he received threatening calls and SMS demanding money and intimidating him that they had downloaded photos from his phone’s gallery and proclaimed that they would be sending obscene morphed pictures to all his contacts. Feeling scared, he transferred Rs 2045 and Rs 3500 but the accused continued to threaten him and demanded more money.
The Bench noted that the accused found system and human vulnerabilities and, with the help of his Indian agents, took advantage of significant loopholes. However, it was opined that keeping the people in jail for an indefinite period is not a panacea and the Court has to give regard to an upper limit for pre-trial custody.
The petitioner had averred that he is a permanent resident of the People's Republic of China with no relatives or community in India. It was observed by the Bench that the petitioner had been in custody since September 11, 2022 but almost all his co-accused, with lesser custody, stood released on bail.
“Given the penal provisions invoked viz-a-viz pre-trial custody of more than eight months, coupled with the quality of evidence, the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability of further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order”, the Bench said.
Referring to section 445 CrPC which mandates an accused to execute bonds by officers and Courts, with or without sureties, the Bench opined that sec.445 applies to all bails, including those granted under sections 389, 390, 397, 436, 437, 438, and 439 CrPC. The similarity between Sections 436 to 439 of the CrPC is that all these relate to bail, whether by an officer empowered to release on bail in bailable offenses or release under bail granted by Courts. Furthermore, S. 445 CrPC provides for depositing a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior.
Noting that there is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice, the Bench said, “Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial.”
The Bench concluded the matter by saying, “In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options.”
Thus, granting the relief of bail to the petitioner, the Bench also asked him to furnish a personal bond of Rs 25,000 and to give two sureties of Rs 1 lakh each to the satisfaction of the concerned court.
Read Order: Big Bags International Pvt. Ltd v. The Commercial of Customs and Ors
Chahat Varma
New Delhi, May 23, 2023: The Madras High Court has ruled that there was no justification for the respondents to issue the impugned letter dated 03.05.2023, which called upon Big Bags International Pvt. Ltd. (the petitioner) to pay the penalty amount within 7 days, despite the interim orders in force, that prohibited taking coercive steps for the recovery of the demand.
Briefly stated issue involved in the case was that the petitioner, engaged in the manufacture of Flexible Intermediate Bulk Container Bags, faced a penalty imposed by the first respondent under section 114(iii) of the Customs Act, 1962. The petitioner appealed this decision before the Customs, Excise and Service Tax Appellate Tribunal, but the appeal was dismissed. Subsequently, the petitioner filed a petition for the rectification of the mistake before the tribunal, which upheld the penalty. Aggrieved by the Tribunal's decision, the petitioner filed an appeal before the Division Bench of the Court. The Division Bench, through an interim order dated 22.09.2020, directed the respondents not to take any coercive steps for the recovery of the demand raised, as the matter was pending with the Adjudicating Authority.
The court noted that despite the interim order issued on 22.09.2020, which directed the Customs department not to take any coercive steps for the recovery of the demand, some actions were taken against the petitioner. As a result, the petitioner had to approach the Division Bench of the Court. In response to the petitioner's plea, the Division Bench issued an interim order on 21.04.2021. Referring to the earlier interim order granted on 22.09.2020, the Court observed that the action taken to attach the petitioner's bank account was a clear violation of the order passed by the Division Bench. Consequently, the Court directed the respondents to lift the order of attachment without delay.
The court noticed that now the second respondent, by impugned communication dated 03.05.2023, had called upon the petitioner to pay the penalty amount of Rs.2,50,00,000/-, within 7 days from the date of receipt of the notice and informed that in case of failure, action will be initiated against the petitioner in accordance with the provisions of section 142(1)(c)(iii) of the Customs Act, 1962.
The court made it explicitly clear that the interim orders dated 22.09.2020 and 21.04.2021, which were passed by the Division Bench of the Court, must be respected by the respondents. By setting aside the impugned letter, the Court deemed it invalid due to its violation of the previous orders issued by the Division Bench.
Read Order: Mohammad Daud, v. ITO
Chahat Varma
New Delhi, May 23, 2023: The Delhi bench of the Income Tax Appellate Tribunal has ruled that since it was the assessee's first year of business and he genuinely believed that the provisions of section 44AB of the Income Tax Act did not apply to him, his explanation constituted a 'reasonable cause’. The assessee claimed to be a commission agent supplying milk on behalf of 'Amul Milk' in a specific area and receiving a fixed commission only. Therefore, the Tribunal held that the assessee was eligible for the protection provided under section 273B of the Income Tax Act.
Brief facts of the case were that the assessee, an individual, engaged in retail trading of Amul Dairy Products, failed to file his return. Initially, he claimed to have no knowledge of accounting and bookkeeping, however, in response to a subsequent notice, the assessee filed his return. The Assessing Officer (AO) completed the assessment, accepting the declared income but initiated penalty proceedings under section 271B of the Act for the assessee's failure to get his books of account audited by a qualified Chartered Accountant as required under section 44AB of the Act. During the appellate proceedings, the assessee explained that he was engaged in the business of supplying milk on behalf of Gujarat Co.op Milk Marketing Federation Ltd. (Amul) in the assigned area. The daily proceeds received by the assessee were deposited in his bank account and then transferred to the principal concern, Gujarat Co.op Milk Marketing Federation Ltd., on the same day. The assessee contended that he was providing services on behalf of the principal concern and the receipts were not related to him personally. Additionally, it was submitted that as it was the first year of the assessee's business, and he was not aware that section 44AB was applicable to him and there was no wilful default on his part. The explanation of the assessee was not accepted by the Commissioner of Income Tax (Appeals) [CIT(A)] who confirmed the impugned penalty.
The Tribunal said that no penalty shall be imposable on the person if he proves that there was reasonable cause for the failure as provided under section 273B of the Act.
The Tribunal also observed that the assessee got the tax audit done and submitted the tax audit report before the AO when he was made aware that initial receipts having been deposited by him in the bank account maintained by him necessitated tax audit as per the provisions of section 44AB. However, the AO and the Commissioner of CIT(A) disregarded this fact and imposed/confirmed the penalty.
The Tribunal concluded that the penalty imposed on the assessee was not sustainable.
Read Order:NISHAN SINGH AND ORS v. UNION OF INDIA AND ORS
Tulip Kanth
New Delhi, May 23, 2023: The Delhi High Court has allowed the plea of the petitioners, who had joined the services of Central Reserve Police Force (CRPF) as Constable/GD and were below the age of 30 years as on the date they applied for being remustered as Driver (Constable) and had successfully undergone the basic training, to be remustered as Driver (Constable).
“ Their seniority shall reckon from the date other applicants who completed 35th D & M course”, the Division Bench of Justice Suresh Kumar Kait & Justice Neena Bansal Krishna further ordered.
The facts of this case were such that the petitioners had joined the services of Central Reserve Police Force (CRPF) as Constable/GD. The respondents issued Signals inviting applications from all the eligible Coys to join D & M Course for being remustered as Driver. The petitioners claimed that at the time they were detailed for D & M Course No. 35, they were below the age of 30 years i.e. the age prescribed in the Standing Instruction No. 03/2011.
The petitioners were informed that their request for remustering was turned down as they were over aged and the maximum age for remusteration was 30 years at the time of completion of the course. The petition had been preferred by the petitioners seeking setting aside of the Signals issued by the respondents whereby petitioners had not been remustered as Drivers on the pretext that they did not meet the requisite eligibility criteria, being over aged. In addition, parity was sought with those petitioners, who were remustered as Drivers.
It was the case of the petitioners that prior to the selection, the CRPF Recruitment Rules, 2010 (RR) were amended where-under the maximum age for remusteration was 30 years even for SC/ST/OBC candidates. It was submitted that the respondents had misinterpreted the RRs 2014 and had not remustered the petitioners stating that they will be over 30 years of age when they will be finally remustered after undergoing 44 weeks of Basic Training.
The respondents submitted that a direction was issued that the candidates who were successful in D & M 34 & 35 and were in possession of heavy transport vehicle license, were required to undergo upgradation course of six weeks at CTC Neemuch, provided they had not crossed the age of 30 years on the date of completion of Spl. D & M Basic Training. Since these petitioners were not in possession of heavy motor vehicle license and were not detailed for Special D & M course, therefore, they were not remustered in the rank of CT/Driver. It was submitted that age was no criteria and had no relevance.
The Bench went through the judgments in Deputy Commissioner Of Police Vs. Ex. Constable Karan Singh & Anr & Constable Rajesh Kumar Vs. State Of Punjab whereby it was noted that that the RR 2014, vide Gazette Notification dated November 13, 2014, prescribed that in case of remusteration, the age of 30 years, with3 years of relaxation to departmental candidates, had been given. The Court also held that when the candidates after qualifying the D & M course, which is a basic course, having undergone the 44 weeks course; they might have crossed the age of 30 years, but it will not disqualify them for remusteration.
“The petitioners in the present case were below the age of 30 years when they applied for D & M Course and so, they cannot be denied to get benefit of remusteration on this ground”, the Bench held.
After perusing Para- 11(e) of Standing Order No. 03/2011 dated May 20, 2011, the Bench opined that the Constables (GD) who had the aptitude for driving but not in possession of a driving license, may be provisionally selected for remusteration and after attending the D&M Course successfully they will be detailed to drive light motor vehicles and after upgradation courses of six weeks duration, they can be upgraded for medium and heavy motor vehicles.
Noting the fact that the petitioners had successfully qualified the 35th D & M course and they claimed to be in possession of heavy vehicle license and also they were actually never called upon by the respondents to produce the same, the Bench also made it clear that the respondents had not placed any documents on record to show that petitioners were asked to produce heavy vehicle license, which they failed to produce and they also failed to bring any document to show that condition mentioned in Para- 11(e) of Standing Order No. 03/2011 had been modified or deleted.
“In the light of the fact that as on the date of detailing for D & M Course No. 35 by their Superior, petitioners were below 30 years of age and they successfully qualified the aforesaid course and also the fact that they were in possession of the requisite heavy motor vehicle license, the present petition is allowed” , the Bench held while directing the respondents to pass necessary orders and grant consequential benefits, including arrears, within four weeks.
Read Order: Vinod Kumar Shrimali v Maharana Pratap University
Simran Singh
New Delhi, May 23, 2023: The Rajasthan High Court, while exercising its civil writ jurisdiction, allowed the petition which had questioned the office order dated 01-09-2018 whereby the salary of the six petitioners was refixed and abruptly reduced by the respondents. The Bench was of the view that in case an order has an adverse civil consequence, a citizen was required to be heard before passing such order.
“The fact that the payment has been erroneously made to an employee cannot be taken to be an excuse for not following the fundamental principles of natural justice,” said a Single-Judge Bench of Justice Dinesh Mehta.
In that matter at hand, the petitioner sought differential amount on the assertion that the petitioner were wrongly given higher pay scale than they were entitled to and the action of the respondents were illegal and violative of Article 14 of the Constitution since no opportunity of hearing was granted to the petitioners.
The respondents submitted that the petitioners were conferred benefit of selection pay however, due to inadvertence on completion of 9 years, they were given pay scale which ought to have been given on completion of 18 years. It was submitted that if wrong determination had been made due to inadvertence or otherwise, the University could correct its error and recover the excess amount which had been given to the petitioners.
The Court stated that the impugned office order which had been passed in violation of the principle of natural justice was liable to be quashed. “This being the position, without commenting upon right of the petitioners to get a particular salary or the respondents' right to recover the same, the present writ petition is allowed on solitary ground of non-observance of principles of natural justice.”
The Bench stated that in case the University proposes to proceed against the petitioners, it will be required of the University to give seven days' notice to the petitioners indicating the proposed grounds on the basis whereof the university seeks to refuse the petitioners pay scale they are/were getting and the consequential recovery. Further the notice was to be sent by the University by Registered post at the address given in the memo of the writ petition on or before 31-05-2023 to which the petitioners would be required to submit their reply before the Registrar of the University by 15-06-2023. The Registrar-University or the competent authority of the University would consider petitioners' representation and take an informed and reasoned decision within a period of 15 days' of receipt of the reply. Once a decision was taken, the University would be free to give effect to such decision in accordance with law. The petitioners' right to challenge any such decision, if prejudicial to their interest or rights would stand reserved. “Until the final decision is taken by the respondent-University pursuant to above direction, no recovery shall be effected from the petitioners.”
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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