It is not permissible in law for the appellate court to usurp the territorial jurisdiction of trial court to grant temporary jurisdiction is upheld by the Jaipur Bench of the Rajasthan High Court through a single bench of Hon’ble Mr. Justice Sudesh Bansal in the case of Rudresh Jhunjhunwala and Others v. Satish Kumar and Others (Civil Miscellaneous Appeal No. 136/2022).

Brief facts of the case are that the main contention before the is whether is it permissible in law for appellate court to override the territorial jurisdiction of trial court while granting temporary injunction. The case pertains to a land dispute wherein the defendants executed a sale deed with the plaintiffs for 0.41 hecter land for the consideration of Rs. 56,30,000/- and in the back drop of this deed defendant wants to sell the land to some other person(s). The plaintiffs filled a suit in trial court for specific performance of the sale deed and obtained a temporary injunction against sale of land to some other person.

The defendants argued on the authenticity of the sale deed and claimed that it did not contain specifications and parameters of the land, and hence, is void under section 29 (Agreements Void of uncertainty) of the Indian Contract Act, 1872. Defendant argued that the sale deed was not registered or stamped and therefore its authenticity is inconclusive.

The Court examined the interim order of the trial court and observed that the trial court prima facie held the case in favor of the plaintiffs as the defendants accepted the authenticity of their signatures on the sale deed and they did not allege forging of the same. Furthermore, the defendants have already registered a part of the disputed land in favor of the plaintiff’s father and their contention that this transfer is challenged in another application is irrelevant in the present case. Therefore the court held that the appellant’s contention on validity and authenticity of the sale deed cannot be examined at the present case and is to be decided by the trial court in its proceedings and “it is not permissible in law to usurp the jurisdiction of trial court by the appellate court … against the order of grant of temporary injunction.”

Judgement reviewed by- Paras Jindal

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A petitioner must adhere to the provisions contained in the Statute and take the consequences on the failure to abide by the stipulation contained therein, this has been observed in the recent matter of Fakira Devram Sansare v. The Collector & Ors. [Writ Petition No.14824 OF 2021], listed Bombay High Court, Bench at Aurangabad. The final proceedings of the case were taken place on February 2^nd 2022, and the said proceedings were presided by a single judge bench of Justice SMT. Bharati Dangre.

The petitioner contested the elections and came to be elected as a ‘Sarpanch’ of village panchayat from the seat reserved for scheduled category. The candidate, had submitted an affidavit before the Returning Officer while filing of his nomination form and had undertaken to produce the validity certificate within a period of one year from being declared elected, but he did not obtained the validity certificate.  

Hence, he incurred a disqualification to continue as a Sarpanch and his election was be deemed to have been terminated retrospectively.

While the case being heard, many landmark judgments of Shankar Raghunath Devre (Patil) v. State of Maharashtra & Ors. [2019 (3) SCC 220], Anant H. Ulahalkar & anr. v. Chief Election Commissioner & Ors. [2017 (1) B.C.R. 230] were quoted in order to put emphasize on the pertinent case.

The court also places reliance on Jyoti Basu and other v. Debi Ghosal & Ors. [AIR 1982 SCC 983] where it was held that “Outside of Statute, there is no right to elect, no right to be elected and no right to dispute the election. Statutory creations they are, and therefore, subject to statutory limitation.”

Court, after perusal of facts and evidences, held that “The petitioner, therefore, cannot travel beyond the Statute, which govern his election and on failure to produce validity certificate within period stipulated, he must face the consequences provided by the Statute.” In addition to the above, the court related the case with the principle and held that “In the light of the position of law which has been crystallized to the above effect, the petitioner who has contested the election for reserved seat and got himself declared, must adhere to the provisions contained in the Statute and must take the consequences on the failure to abide by the stipulation contained therein.” “The impugned order passed by the Collector, thereby terminating him from the post of Sarpanch of village panchayat Kanadgaon with retrospective effect, is just and proper and deserves to be upheld.”

Judgment reviewed by Pranav Sharma

 

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In the cases of Motor Accident Claims, a deduction of 1/4^th from the income of the deceased is to be made for personal expenses instead of 1/3^rd considering the number of dependents on the deceased is upheld by the Jaipur Bench of Rajasthan High Court through a single Judge Bench of Hon’ble Mr. Justice Birendra Kumar in the case of Indra Devi and Others v. The India Insurance Company and Others (Civil Miscellaneous Appeal No. 5451/2008).

Brief facts of the case are that the petitioner appealed for the enhancement of compensation awarded by the Motor Accident Claims Tribunal, Jaipur of Rs. 8,74,000/- along with 6% interest against claimed Rs. 96,90,000/-. Deceased Mahaveer Prasad was a 33 year old Constable in Jaipur Police. The claimants argue that deceased widow, two children, his mother, and his brother (a teacher in Government School) are the dependants of the deceased. The Court upheld the tribunals order with regards to Brother as a dependant as he was not dependant on the deceased at the time of the accident.

The Petitioners further argued that 1/4^th of the income of the deceased should be deducted for personal expenses as against 1/3^rd as held in the case re Sarla Verma and affirmed by the Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680, considering the number of dependents being four in the instant case. Moreover, it is the contention of the petitioners that 16 should be used as the multiplier instead of 15 given that the deceased was between 30-35 years old.

The Respondents argued the breach of insurance policy as the driver only had the license for Light Motor Vehicle while he was driving Heavy Commercial Vehicle when the accident occurred. The court held that the insurer company cannot absolve its liability to compensate the victims and in case of breach of insurance policy they can recover the money from the owner of the vehicle who breached the policy.

The Court further held that the tribunal wrongly deducted 1/3^rd for personal expenses and it should be 1/4^th as opined in the Sarla Verma Judgement and subsequent cases and likewise considering the age of the deceased 16 should be used as a multiplier instead of 15. Therefore, from the yearly salary of Rs. 84,000/- 1/4^th is deducted for personal expenses leading to Rs. 63,000/-. After multiplying it with 16 it comes to Rs. 10,08,000 and 50% should be added for under the head of future prospects. Under the conventional head (Consortium to Widow, mother, 2 minor children) Rs. 1,90,000 is to be added making the total compensation payable Rs. 17,02,000 along with 6% interest.

Judgement Reviewed by- Paras Jindal

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The Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e. prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds” for such satisfaction. The test which the Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail and the same was upheld by High Court of Delhi through the learned bench led by Justice Chandra Dhari Singh in the case of MAHESH vs. STATE (GOVT OF NCT OF DELHI) [BAIL APPLN. 51/2022] on 08.02.2022.

The facts of the case are that the Narcotics Cell Crime Branch received a secret information that Kamal Kalra who was involved in sale & supply of Ecstasy in Delhi-NCR would come near Goodwill Apartment situated in Rohini, Delhi with his associate Akshay to deliver Ecstasy to someone. The secret information was shared with Inspector/NCB, who verified the facts and conveyed the same to ACP. The ACP ordered to conduct a raid. The secret information was reduced into writing at Narcotics Cell, Crime Branch and the same was forwarded to senior officers in compliance of Section 42 of the NDPS Act.

During investigation, IO/ASI arrested the accused Kamal Kalra who made a disclosure statement therein that he procured the recovered contraband from Mahesh Goel. The present application has been preferred by the accused for seeking a regular bail.

The plaintiff’s counsel submitted that the main accused against whom there is an allegation of being in possession of 42 grams of Ecstasy has already been enlarged on bail. The allegation against the Applicant is that he was found in possession of 20 grams of Ecstasy which is much lesser than the allegation against the main accused and therefore, it was submitted that the Applicant should be released on bail as the case of the Applicant is on a better footing.

The respondent’s counsel opposed the Bail Application and submitted that the contraband recovered from the Applicant was of commercial quantity. It was stated that in case a bail is granted to the applicant, then it is quite likely that he may again get involved in drug trafficking.

In view of the aforementioned facts and circumstances, keeping in mind the legal provisions specifically on the ground of parity, the Court was inclined to allow the instant bail application albeit with stringent conditions.

The Court observed, “while considering the question of bail, the Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds” for such satisfaction. The test which the Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail.

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Judgment reviewed by – Shristi Suman

Clause 38A of the General Conditions of Contract (GCC) clearly states that the LOA will have precedence over the Special Conditions of Contract (SCC), which in turn, has precedence over the GCC. If there is an arbitration clause in the LOA, there is no question of resorting to the arbitration clause in the SCC. Where there are different agreements executed between the parties containing different arbitration clauses, the court has to examine the nature of the disputes between the parties to ascertain which arbitration clause would apply and the same was upheld by High Court of Delhi through the learned bench led by Justice C. Hari Shankar in the case of JOHNSON CONTROLS-HITACHI AIR CONDITIONING INDIA LTD vs. MAHAMAYA INFRASTRUCTURE PRIVATE LIMITED [ARB.P. 498/2021] on 02.02.2022.

The facts of the case are that the respondent owns the “Taj Gateway Resort” situated at Shimla, licensed to the Taj Group. The respondent desired to install heating, ventilation, and air conditioning in the said property for which it approached the petitioner. The petitioner was awarded the contract for providing the said services. The contract between the parties included GCC and SCC.

After the LOA was issued, the parties entered into a contract. Though the contract agreement was placed on record as reply filed by the respondent to the present petition, it was unsigned and undated.

The petitioner’s counsel submitted that in any event, prima facie, the contract agreement annexed as the reply of the respondent cannot be admitted by this Court in view of the limited jurisdiction that it exercises in the present proceedings. It was further submitted that even as per the priority sequence envisaged by Clause 38A of the GCC, the “Agreement” would have priority over the LOA and once Clause 1 of the SCC accorded precedence to the SCC over the GCC, the arbitration clause in the SCC would have to prevail over the arbitration clause in the LOA. It was lastly submitted that as the disputes involves issues which would be within the skill area of an Engineer or an Architect, it would be appropriate that the arbitration abide by the arbitration clause in the SCC rather than that of the LOA.

According to the facts and circumstances of the case, the Court was of opinion that the present dispute was technical in nature and the arbitrator should be someone with engineering or architectural knowledge but that cannot be a basis to decide which arbitration clause, therefore, the arbitration Clause in the LOA would prevail.

The Court observed that, “Clause 38A of the GCC clearly states that the LOA would have precedence over the SCC, which, in turn, would have precedence over the GCC. Once, therefore, there is an arbitration clause in the LOA, there is no question of resorting to the arbitration clause in the SCC. Where there are different agreements executed between the parties containing different arbitration clauses, the court has to examine the nature of the disputes between the parties to ascertain which arbitration clause would apply.”

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Judgment reviewed by – Shristi Suman