ISSUE–VII (OCTOBER 12 - OCTOBER 18)


VOX IURA MAGAZINE- ISSUE 7
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1. SPECIFIC PERFORMANCE SUIT FILED WITHIN LIMITATION CANNOT BE DISMISSED ON THE SOLE GROUND OF DELAY OR LACHES: SC

Case name: Ferrodous Estates Pvt. Ltd. v. P.Gopirathnam (dead), Civil Appeal No.13516 of 2015.

The bench comprising of Justices Rohinton Fali Nariman and Navin Sinha observed that once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. An exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time, the court clarified.

Background: Ferrodous Estate Pvt. Ltd. had filed specific performance suit in 1981 against P. Gopirathnam and three others. The single judge of the Madras High Court held that the plaintiff is entitled to purchase the suit property and to get a decree for specific performance. The Division bench later set it aside (meanwhile, the case was referred to full bench on the issue of the bar contained in section 6 of the Tamil Nadu Urban Land Ceiling Act). In appeal, the Apex Court bench noted that as per Section 20 of the Specific Relief Act, as it then stood before 2018 amendment, the jurisdiction to decree specific performance is discretionary. But that discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal, the court said.

The Court noted that, in Nirmala Anand v. Advent Corporation Pvt. Ltd.,(2002) 8 SCC 146, it was held that mere escalation of land princes after the date of the filing of the suit cannot be the sole ground to deny specific performance. Reliance was also placed on the cases of Mademsetty Satyanarayana v. G. Yelloji Rao, (1965) 2 SCR 221 and Saradamani Kandappan v, S.Rajalakshmi, (2011) 12 SCC 18.

The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches.


2. ALL UAPA OFFENCES INVESTIGATED BY NIA OR STATE POLICE ARE EXCLUSIVELY TRIABLE BY SPECIAL COURTS: SC

Case name: Bikramjit Singh v. State of Punjab, Criminal Appeal No.667 of 2020.

The Supreme Court observed that all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under the NIA Act. The three-judge bench headed by Justice Rohintan Fali Nariman observed that the Special Court alone had jurisdiction to extend time to 180 days under first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act. In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.

Background: The accused, Bikramjit Singh, was remanded to custody by a Sub-Divisional Magistrate. After expiry of 90 days in custody, he filed an application for default bail before the Sub-Divisional Judicial Magistrate. This bail application was dismissed on the ground that the Sub-Divisional Magistrate had already extended time from 90 days to 180 days under Section 167 of Code of Criminal Procedure, 1973 as amended by UAPA. This order was later set aside by the Special Court holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). However, the default bail plea was refused. Later, the Punjab and Haryana High Court set aside this order of the Special Court, holding that in case the investigation is being carried out by the state police, the Magistrate will have power under Section 167(2) Cr.P.C. read with Section 43(a) of the UAPA to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions as per provisions of Section 209 Cr.P.C. whereas in case the investigation is conducted by the agency under the NIA Act, the power shall be exercised by the Special Court.

Contentions: Before the Apex Court, the accused raised two fold contentions: One, that the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D(2)(b) of the UAPA. Second, right to default bail was not extinguished by the filing of the charge sheet subsequent to his filing of bail application.

To answer the first contention, the Apex Court referred to relevant provisions in the three enactments i.e. the Cr.P.C, NIA and UAPA and observed: What becomes clear, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences”. Second question was also answered in favor of the appellant/accused by holding that so long as an application for grant of default bail is made on expiry of the period of 90 days, before a charge-sheet is filed, the right to default bail becomes complete.


3. SC DISMISSES PLEA SEEKING BAN ON ‘HALAL’ SLAUGHTER OF ANIMALS AS “MISCHIEVOUS”

The Supreme Court dismissed a PIL challenging the practice of ‘halal’ for slaughter of animals for food. The petitioner advocate contended that animals don’t have a voice of their own and can’t reach out to the court by themselves. The counsel for the petitioner-organization urged that even the European Court of Justice has ruled that ‘Halal’ is extremely painful and there are many reports which suggest that extreme pain and suffering is inflicted on to the animal in the process. The advocate also drew the attention of the bench to Prevention of Cruelty to Animals Act, 1960 and stressed that section 3 of the aforesaid act makes it the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering. The petitioner also laid emphasis on Section 11(1)(l) and section 28 of the Act. However, the bench observed that ‘Halal’ is only a method of doing so. Different ways are possible-there is ‘halal’, there is ‘jhatka’. Some people do ‘jhatka’, some do ‘halal’, how is it a problem?”. “Tomorrow you will say nobody should eat meat? We cannot determine who should be a vegetarian and who should be a non-vegetarian!” observed Justice Kaul, adding that the plea is totally misconceived. Eventually, the bench dismissed the plea calling it “mischievous”.


4. SC UPHOLDS REJECTION OF CANDIDATURE OF A DISTRICT JUDGE ASPIRANT WHO WAS LATER ACQUITTED IN CRIMINAL CASE U/S 498A IPC

The Supreme Court has dismissed plea of a District Judge aspirant whose candidature was on the ground of pendency of a criminal case under Section 498 IPC filed by his wife. The Court observed the mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground to turn the clock backward, the Bench observed.


5. DANGEROUS ACCUSED MUST BE HANDCUFFED: SC

The Supreme Court on Wednesday (14.10.2020) dismissed a plea raising the concerns regarding extra-judicial killings and handcuffing of prisoners. Chief Justice S.A. Bobde put forth that extra-judicial killings should not happen, but how can a person stop that. He also added that some accused are dangerous and should be hand-cuffed.

6. MERE GOLD SMUGGLING NOT A ‘TERRORIST ACT’ UNLESS DONE WITH INTENT TO THREATEN ECONOMIC SECURITY OF INDIA: NIA COURT

On 5th July, the Customs officials in the Thiruvananthapuram Airport seized 30 kg of 24 carat gold worth Rs.14.82 crore through diplomatic baggage addressed to the UAE consulate at Thiruvananthapuram. The NIA court observed Section 15 (Terrorist Act) of the Unlawful Activities Prevention Act, 1967 and stated that the said provision will be attracted only when there is an intention to cause damage to the economic security of India. The court opined that the petitioners smuggled the gold only with the profit motive and grated bail to ten persons.


7. SPECIAL LEAVE TO APPEAL AGAINST HIGH COURT JUDGMENT RECOGNIZING AND ENFORCING A FOREIGN AWARD WOULD LIE ONLY ON ‘EXTREMELY NARROW GROUND’: SC

Case name: Responsive Industries Limited v. Banyan Tree Growth Capital L.L.C. &Ors.

Background: On 12th September 2008, Banyan Tree (a company incorporated in Mauritius), Axiom, Responsive (other companies incorporated in India) and Wellknown (LLP) entered into a Share Subscription Agreement(SSA), where Banyan Tree agreed to make an investment of USD 50 Million in return for equity shares and convertible debentures in Axiom. The said agreement also provided three options for Banyan to exit its investment.

One of the options was ‘Put Option Deed’ – where Banyan would require Responsive and Wellknown to buy its shareholding in Axiom when the first two options are not available.

Banyan while exercising its right under the third option, issued the put option notice requiring Responsive and Wellknown to buy its shareholding in Axion. However, both refused to purchase the securities and stated the put option deed was void ab initio.

Arbitration at Singapore International Arbitration Centre (SIAC): The Arbitral Award made by the Tribunal declared that the Put option deed was valid and legal under Indian Law.

Bombay High Court: Banyan Tree filed a petition before the Bombay HC under section 47 and 49 of the Arbitration and Conciliation Act, 1996 for the enforcement of the arbitral award titled as “Put award”. The other companies challenged the arbitral award under section 34 of the 1996 Act. Rejecting the contention, the Bombay HC declared the award to be binding under section 46 of the said act.

Supreme Court of India (Special Leave Petition): Unsatisfied with the judgment, the Responsive Industries Limited filed a Special Leave petition before the Supreme Court of India. The SC observed paragraph 24 of the judgment in Vijay Karia and Ors. vs. Prysmian Cavi E Sistemi SRL and Ors and stated that an appeal under Article 136 is provided against the judgment of the HC only when it refuses to recognize or enforce a foreign award and not against an order which recognizes and enforces a foreign award. Thereby, the Bench rejected the appeal under Article 136.


8. NO END TO VIOLENCE AGAINST WOMEN: SC

The bench led by Justice Ashok Bhushan said women in India faces violence and discrimination in one form or the other in their various roles as daughter, sister, wife, mother, partner or single women. The bench added that domestic violence continued to be the least reported form of violence towards women. Women continue to be vulnerable to these crimes because of non-retaliation, coupled with absence of laws addressing their rights and ignorance of the existing statutes. Societal attitude, stigma and conditioning also made women vulnerable to domestic violence, the court said.


9. ANY STAY ON PROCEEDINGS IS VALID ONLY FOR 6 MONTHS: SC

Context: The Supreme Court of India on Friday (16.10.2020), the bench led by Justice Rohinton F. Nariman held that “Whatever stay has been granted by any court, including the High Court, automatically expires within period of 6 months.”

Details: It was made clear that an extension of the stay has to be granted only for a “good reason”, adding that, in such a case, it must be shown that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.


10. HATHRAS VICTIM WAS AT LEAST ENTITLED TO DECENT CREMATION; STATE ACTION INFRINGED HER HUMAN RIGHTS: ALLAHABAD HC

The Allahabad HC has expressed its displeasure on handling of Hathras Gangrape and murder case and deprecated the local authorities for violating the victim and her family’s human and fundamental rights. The Court observed the fundamental right to life, to live with dignity and to exist with dignity even after death as well as right to decent burial/cremation appears to have been infringed, hurting the sentiments of not only the family members but of all persons and relatives assembled on the spot. The Court has directed the Additional Chief Secretary (Home) to come out with a draft policy by the next date of hearing, so that proper guidelines in that regard may be laid to avoid incidents of this kind in future.


11. STRICT ACTION AGAINST INVESTIGATING OFFICERS/ MEDIA IF CONFESSIONS ARE LEAKED/DISCUSSED DURING INVESTIGATION -KERALA HC:

Case name: Jollyamma Joseph v. The State of Kerala

The Petitioner in this case and five other cases was alleged to have murdered Annamma Thomas and five other close relatives using cyanide.

The Kerala High Court while allowing the bail application of Jolly Joseph, observed that stringent actions will be taken against investigating officers or media if found to communicate confessions alleged to be given by the accused collected during the pendency of the investigation. Referring to Murukeshan v. The State of Kerala, the High Court reiterated that in a case involving the commission of cognizable offence and the FIR forwarded to the Magistrate concerned, no police officer has the right to leak out information regarding the outcome of the investigation.

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