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The court in command shall be careful when intervening with the arbitrator’s Interim Orders: Calcutta HC Preserves Deceased LLP Partner’s Share

APO 65 of 2023

Case: Concrete Developers LLP v Gaurav Churiwal and Ors

Appearance

Petitioner: Mr. Abhrajit Mitra, Sr. Adv.

Respondent : Mr. Ratnanko Banerji, Sr. Adv

CORAM: Hon’ble Justice Moushumi Bhattacharya

Order Dated: 24.11.2023

Introduction

The High Court of Calcutta recently contended that a Court exercising powers under Section 37 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) must be circumspect in its interference with interim orders of an arbitrator.

Facts of the Case

The present appeal, filed under section 37 of The Arbitration and Conciliation Act, 1996, is from an order passed by a learned sole arbitrator The impugned order is an interim order and was passed in an application filed by respondent no. 1/claimant under section 17(1) of the 1996 Act whereby the appellant was directed to deposit Rs. 6 crores in a separate interest-bearing account in the name of the Limited Liability Partnership (LLP) namely Concrete Developers LLP.

he LLP was constituted according to an Agreement dated 24.11.2015 to develop a high-end real-estate project – “Raghu Estates” in Alipore, Kolkata. The project had a developer’s allocation of 16 flats of the total number of flats constructed for the project.

Upon considering the submissions made on behalf of respondent no. 1 / claimant and the appellants in the context of the claimant’s prayer for directing the appellants to set apart Rs. 6,41,73,413.00/- being the total balance about Pawan Kumar Churiwal’s shares (the father of the claimant) as on 12.1.2021, the learned arbitrator was of the view that the claimant and/or the other legal heirs of the deceased partner, Pawan Kumar Churiwal are entitled to accounts and a share in the profits in the LLP. The appellants were accordingly directed to keep a sum of Rs. 6 crores apart in a separate interest-bearing account in the name of the LLP. The appellants were also directed to furnish the particulars of accounts to the claimant and to maintain the accounts till disposal of the arbitration. Counsel submits that an order for securing a particular amount of money can only be made concerning an “amount in dispute” whereas the impugned order is based on equitable considerations which cannot be done under the provisions of the 1996 Act. Counsel submits that the claimant’s section 17 application did not contain any prayer for securing any particular amount and that the impugned order is also contrary to section 24(5) of the LLP Act, 2008 which restricts the entitlement of a person to the share of a deceased partner to the capital contribution of the former partner and the former partner’s share in the accumulated profits of the LLP. Counsel further submits that the impugned order suffers from an absence of reasons as to the basis of the direction on the appellant to set Rs. 6 crores apart and is also contrary to the arbitrator’s findings in the 10th sitting. Counsel further submits that the claimant’s conduct in the arbitration was inequitable and that the impugned order is patently illegal and perverse.

Counsel submits that the object and purpose of section 17 is to preserve the value of the share of the deceased partner at the time of his demise so that the claimant’s share is not frittered away by the other partners who are in control of the appellant LLP. It is submitted that the appellant and the other partners were siphoning away profits from the sale of flats during the arbitration.

Analysis of the court

The facts and circumstances that were presented before the learned arbitrator or were disclosed in fits and spurts by the appellant / surviving partners fully justify the impugned interim order There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse. The Court’s view is supported by the reasons given above.

Taking into account the legal position, the case law on the subject, and the particular facts in the present matter, the Court is accordingly of the view that the impugned order does not call for any interference.

The aforesaid applications are accordingly dismissed. There shall be no order as to costs.

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Written By

Kaulav roy chowdhury

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Only true insights are been disclosed before death Calcutta HC Declines To Quash Abetment Case Against Wife Implicated In Husband’s ‘Suicide Note

Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.

 Case No: C.R.R 2798 of 2016

Appearance

Petitioner: Mr. Sandipan Ganguly

State: Mr. Prasun Kumar Dutta, Mr. Subrato Roy.

CORAM: The Hon’ble Justice Rai Chattopadhyay

Order dated: 28/11/2023

Introduction

The High Court of Calcutta has disbanded an application filled under section 482 of CRPC by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.

 

Facts of the Case

The petitioners have filed the present revision under Section 482 of the Cr. P.C, 1973, to seek an order of this Court quashing the proceedings under Sections 306/34 IPC.

The charge sheet was submitted arraying all the present petitioners as accused persons, on the allegations that torture inflicted by them has prompted the victim to commit suicide and thus the present petitioners have abated his fateful death, and an offense under Section 306 IPC has been committed by all the present petitioners in furtherance of their common intentions.

Petitioners, in this case, have contended inter alia that the FIR or any other material would not reveal the commission of the alleged offense against them. The advocate for the petitioner submits that the essential ingredient of the petitioners directly instigating the victim for the commission of suicide would not be available in this case. He has further stated that there is no intentional aiding or any positive act on the part of the petitioners to sustain the allegations of the de facto complainant. It has been submitted that the petitioner along with her minor child has been living separately from the victim for a considerable period. He emphasizes that there has been no direct contact or day-to-day transaction, interaction, or communication between the parties to even give rise to a situation where the petitioners might have instigated the victim for commission of suicide. He says that by no stretch of the imagination, any involvement of his clients can be conceived regarding what has happened or else it would contradict the settled law of the land in this regard. the ‘suicide note’ recovered, in this case, cannot be seen to be a simple declaration of self-condemnation of the said person. It also primarily reveals some other shades of emotions of the person, which cannot be undermined in any way. He writes that his wife and daughter are like dead persons, to him and they should not be allowed to attend his funeral. At the end of the said ‘note,’ the deceased writes that none of his matrimonial relations including his wife or child, should be allowed to see the dead body.

Analysis of the court

it is found that the investigation in this case has already been completed and the charge sheet has been filed, let the trial Court immediately proceed for commitment of the case, if not done as yet and the trial be commenced, within a period of four weeks from the date of receipt of copy of this order. The trial Court is requested to complete the trial as expeditiously as possible without granting any unnecessary adjournment to any of the parties. Needless to mention that the trial Court shall proceed independently and without being influenced by any of the findings of this Court, in this judgment, while proceeding with the trial of the case.

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Plea To Transfer Case To Another Court Must Be Based On Reason, Not Apprehension Of An Over Sensitive Mind: Delhi High Court Debby Jain .

Plea To Transfer Case To Another Court Must Be Based On Reason, Not Apprehension Of An Over Sensitive Mind: Delhi High Court Debby Jain .

Title : UPINDER KAUR MALHOTRA v. CAPT TEGHJEET SINGH MALHOTRA AND ANR

CORAM : HON’BLE MR. JUSTICE NAVIN CHAWLA

Case No. : CM APPL. 44415/2023

Decided on : 22.11.2023

Introduction

Petitions have been filed seeking transfer of HMA No. 596/2019, titled as Upinder Kaur Malhotra v. Capt. Teghjeet Singh Malhotra & Another; HAMA No. 06/2019, titled as Mrs.Upinder Kaur Malhotra v. Capt. Teghjeet Singh Malhotra; and HMA No. 211/2019, titled as Sqn. Ldr. Teghjeet Singh Malhotra v. Upinder Kaur Malhotra, from the Court of the learned Family Judge, Patiala House Courts, New Delhi (hereinafter referred to as the ‘Family Court’) to any other Court of appropriate and competent jurisdiction.

Fact of the Case

The transfer of the above petitions is sought on account of some alleged remarks having been made by the learned Judge in the course of the hearing on 08.12.2022 and 01.03.2023. The learned counsel for the petitioner submits that these remarks have led to formation of an opinion of the petitioner that she may not be able to get justice from the said court.

Placing reliance on the judgment of the King’s Bench Division in The King v. Sussex Justices, (1924) 1 KB 256, the learned counsel for the petitioner submits that Justice must not only be done, but must also appear to be done. He submits that considering the remarks that have been made against her counsel, the petitioner has a reasonable apprehension in mind that she would not get justice in the Court where the above proceedings are pending.

Case Analysis and Judgment

n the present petitions, the order dated 06.07.2023 passed by the learned Family Court reflects the vacillating stand of the petitioner in the prosecution of the proceedings that are pending before the learned Family Court. It appears that the present set of petitions is also another attempt of the petitioner to somehow delay the adjudication of those proceedings. I, therefore, see no reason to transfer the above referred proceedings pending adjudication before the learned Family Court to another Court. In view of the above, the petitions and the pending applications are dismissed.

https://www.livelaw.in/pdf_upload/upinder-kaur-506628.pd

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Madras High Court Stays ED Summons to District Collectors In Sand Mining Money Laundering Case .

Madras High Court Stays ED Summons to District Collectors In Sand Mining Money Laundering Case .

Title : Enforcement Directorate v. T.T.V.Dhinakaran

Case : W.P.No.20492 of 2008

CORAM : THE HONOURABLE MR JUSTICE R.SUBRAMANIAN AND THE HONOURABLE MRS JUSTICE R.KALAIMATH

Introduction

The Enforcement Directorate is on appeal against the order of the Hon’ble Single Judge allowing the application under Section 9(5) of the Presidency Towns Insolvency Act 1909, thereby setting aside the insolvency notice issued to the respondent herein.

Fact of the Case

The respondent was accused of violation of the provisions of the Foreign Exchange Regulation Act, 1973. Since the violation amounted to an offence under the provisions of the said Act and it also made him liable for penalty, proceedings were initiated by the appropriate Authority under the Foreign Exchange Regulation Act, 1973 for adjudication of the penalty. The Adjudicating Authority viz., the Special Director of Enforcement by its order in original dated 06.02.1998 imposed a penalty of Rs.31 Crores. Aggrieved the respondent preferred an appeal in A.No.51 of 1998 before the appellate Authority viz., the Foreign Exchange Regulation Appellate Board.

Case Analysis and Judgment

The notice impugned in the writ petition will have to be set aside solely on the ground that it is not competent for the Collector to effect recovery of monies due to the Central Government by invoking the State Act. Here again, court will have to reserve the liberty to the Enforcement Directorate to seek recovery under the provisions of Central Act viz., the Revenue Recovery Act 1 of 1890.

In fine, the OSA is dismissed, and the writ petition will stand allowed. Since court have accepted the contentions of the appellant on the vital issue relating to the effect of the order of the adjudicating Authority, we do not impose costs

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The post of Anaganbari sevika is not a government servant has no protection under Article 311(2) of the constitution of India- High court of Patna

THE POST OF ANGANBARI SEVIKA IS NOT A GOVERNMENT SERVANT ,HAS NO PROTECTION UNDER ARTICLE of  311(2) OF THE CONSTITUTION OF INDIA- HIGH COURT OF PATNA

Title -Urmila Kumari Vs The State of Bihar&Ors

Decided on -01/11/2023

+CWJC No.-5188/2023

CORAM-HONORABLE JUSTICE MR.MOHIT KUMAR SHAH

INTRODUCTION

As this petition is been filed for quashing the order passed by the District Programme officer ICDS where the petitioner was selected for  anganbari sevika has been cancelled and also pray for quashing of the order passed by the learned collector Samastipur where the appeal is been rejected and also pray for the reinstatement as anganbari sevika at anganbari centre.

FACTS

As per the facts of the case ,the advertisement was published on 09/12/2017 in the daily newspaper for filling the vacant post of anganbari sevika at anganbari centre and petitioner along with the private Respondent no.6 name nutanbala has filed application and finally petitioner was selected as anganbari sevika on 5/12/2018 in an aam sabha ,in presence of the lady supervisor Mira Kumari , inasmuch the petitioner has secured first position in merit list while private Respondent no.6 had secured second position where the respondent 6 filed her objection leading to institution of a case no.172/2018 before the respondent no.3 ie District Programme officer ICDS were alleged that the petitioner,her husband,her father-in- law are having their names in the voter list of three different panchayat and then petitioner had to appear before the respondent no.3 after hearing the parties cancel the selection of petitioner for which petitioner filed an appeal before the collector Samastipur and same has stood to be rejected.The learned councel for petitioner states that the petitioner has been continuously living at Village Mirzapur since from 2011 and also admitted by petitioner that her name was appearing in the voter list of two place and when petitioner got to know about the same she immediately filed an application form 7 before BLO requesting to delete her name from the voter list of mohiuddinagar and then her name was deleted and also states that the petitioner has applied for appointment her name was appearing in the voter list Inayatpur panyachayat.Thus the impugned order having not considered the aforesaid aspect of the matter ,are arbitrary and illigal hence to be set aside.Whereas the learned council for respondents submitted that as thirteen application were received for the post at Inayatpur panchayat where petitioner was in 1st position in merit list and Respondent no.6 was in second position as respondent no 6 was dissatisfied with the selection committee filed a case before District Programme officer (ICDS) rgading irregularities committed in selection of petitioner and after hearing the parties the District Programme officer passed the impunged order and cancelled the selection of petitioner and even petitioner filed for the appeal which was rejected by the collector.Thus the present petition is devoid of any merit and set aside

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties the court finds that since petitioner has failed to conclusively prove that she is a permanent resident of Inayatpur panchayat village mirzapur and the order passe by the District Programme officer and the learned collector donot find any fault with there order and decision.The Hon’ble court states that the post of anganbari sevika is neither a post having security of tenure nor a civil post and no protection under article 311 (2) of the constitution of India ,hence it is sufficient that after due notice to the petitioner and hearing her orde is passed and she may approach the learned civil court of competent jurisdictio.Having regard to the facts and circumstances of the case considering the material available in record the court donot find any merit in the present petition hence the appeal is dismissed.

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Written by -Prachee Novo Mukherjee 

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