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The present petition before this Court is to appoint sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter PRET STUDY BY JANAK FASHIONS PRIVATE LIMITED V. DHANI LOANS AND SERVICES, LIMITED dealt with an issue mentioned above.

The petitioner was a person who was engaged in the business of retail of garments all over the country under its brand “Study by Janak” and which become the one-stop-shop for luxury Indian designer wear and couture for its customers. On the other hand, the respondent is a Non-Banking Financing Company (NBFC).

According to the petitioner, He got sanctioned three loan facilities ARB.P. 1049/2021 from the respondent of Rs.15 crores vide agreement dated 25.04.2018 and Rs.1.60 crores vide agreement dated 28.04.2018 and Rs.10 lakhs vide agreement dated 28.04.2018. And also Petitioner got sanctioned a loan facility of Rs.15 crores against the property from the respondent and the loan was on the adjustable interest rate for 144 months by way of 144 equated monthly instalments starting from 05.06.2018 till August 2030. As per the repayment schedule dated 13.07.2018, with the total number of EMIs too. Were rate of interest was also increased from 12% p.a. to a fixed rate of interest of 12.20% p.a. w.e.f. 05.07.2018.

Meanwhile, the petitioner made a written complaint to the respondent for an arbitrary and wrongful increased rate of interest without prior ARB.P. 1049/2021  intimation or consent of the petitioner. However, the respondent did not respond to the abovesaid complaint of the petitioner. It is further submitted that in November 2020, the petitioner again approached the respondent for releasing of one of three properties situated at Karol Bagh, New Delhi secured against the three loans, respondent issued a conditional No Objection Certificate (NOC) on 13.01.2021 wherein it was agreed to release the said property subject of payment of Rs.14,83,95,000/-. On 15.01.2021, the petitioner made the payment and requested the respondent to release the charge against the property situated at Karol Bagh.

Learned counsel for the petitioner submitted that petitioner has already invoked arbitration vide notice dated 19.08.2021 under clause 12 of the agreement and prayed this Court to appoint an Arbitrator to adjudicate the disputes between the parties, which is not disputed by learned counsel for the respondent. Accordingly, Mr Justice (Retd.) Vinod Goel is appointed sole Arbitrator to adjudicate the disputes between the parties.

The court perused the facts and argument’s presented, it believed that- “The arbitration shall be conducted under the Delhi International Arbitration Centre (DIAC). The fee of the Arbitrator shall be following the schedule of fees prescribed under the Delhi International Arbitration Centre (DIAC) (Internal Management) Rules and Delhi International Arbitration Centre (Administrative Cost and Arbitrators’ Fees) Rules, 2018. The learned Arbitrator shall ensure compliance with Section 12 of the Arbitration and Conciliation Act, 1996 before commencing the arbitration. The present petition is accordingly disposed of”.

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Judgment Reviewed by: Mandira BS 

No detailed order is required for passing any order for summoning the accused. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mr. Justice Sanjay Kumar Dwivedi in the matter of Binoy Kumar Jha @ Binay Kr. Jha and Ors Vs. The State of Jharkhand [Cr.M.P. No. 565 of 2021].

The facts of the case were associated with a petition to quash an order passed by the S.D.J.M Madhupur in relation with Pathrol P.S. Case No.56/2019 dated 14.09.2020. In the FIR it was alleged that a drainage was built by the accused. The complainant Godawari Devi did the same, but all the accused people began to abuse the complainant by dragging her by her hair, tore her dress, forcefully opened her mouth and poured the stool into her mouth with the statement that the complainant was a witch. Further, the accused people a silver chain and silver payal and they stated that the complainant was a witch who killed children and cattle. 

The counsel representing the petitioner submitted that the police after investigation did not send the petitioner for trial. The final report in favour of the petitioners showing their name in column 12 of the final report was submitted which showed that the offences were non-cognizable. It was stated that the Magistrate took cognizance against the petitioners. The petitioner’s counsel also submitted that the learned Magistrate had power to differ from the opinion of the Investigating Officer, but he was required to give reasons for the same. The Public Prosecutor for the state stated that the Magistrate have the power to proceed against the petitioners if there was a prima facie case. 

The Hon’ble Court after going through all the submissions and facts held that “It is well settled that no detailed order is required for passing any order for summoning the accused but in a case where Final Report has already been submitted in favour of the accused and the Magistrate is intending to proceed on a complaint petition, he is required to make reasons of differing with the Final Report, which has not been done in the case in hand… Accordingly, the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M., Madhupur in connection with Pathrol P.S. Case No.56/2019 is hereby quashed… This criminal miscellaneous petition is, therefore, allowed and disposed of.”

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Judgment reviewed by Bipasha Kundu

Once a will has been officially proven to be valid, the court cannot interfere and consider the validity of the will again in the proceedings. This was decided in the case of Saqib Ali Shah and others v. State of J&K and another [CRM(M) No. 611/2019 and CRM(M) No. 1421/2019] by Hon’ble Justice Sanjay Dhar at the High Court of Jammu and Kashmir.

The facts of the case are the respondent of the case had made a complaint against the petitioners alleging that they have fabricated and forged a Will that was executed by the father of the respondent. Further, it was also alleged that a mutation has been attested in the revenue record as per the order of Probate passed by the learned Principal District Judge, Jammu in respect of the said will, but, in fact, the will do not bear the signature of the testator. After conducting preliminary verification, the impugned FIR came to be registered by the Police Station in Jammu.

The petitioners also contended that as per the settled position of law, a Will, after it is probated, becomes conclusive proof with regard to its genuineness and it operates in rem. Thus, the question regarding the genuineness of the Will cannot be reopened by way of criminal proceedings. During the course of the investigation, the original Will Deed was sent to FSL, Jammu for comparison of signatures and expert opinion pertaining to Will Deed of the testator. As per the expert opinion, the report was found positive in favour of respondents.

Counsel for the petitioners has argued that once the Will in question stands probated by the order. It was also asserted that the investigation of the instant case is at its infancy and the same cannot be scuttled at this stage. even if the genuineness of the Will in question has been proved in the probate proceedings, the said question can be reopened in the criminal proceeding fir which it referred to the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another[ (2005) 4 SCC 370].

The Court decided that it is not open to this Court in these proceedings to examine and analyze the material on record and once the Court finds that the FIR discloses prima facie commission of a cognizable offence, the Court should stay its It also said that the law regarding the grant of probate or letters of administration has been the subject matter of discussion before the Supreme Court in the case of Surinder Kumar and ors vs. Gian Chand and ors [AIR 1957 SC 875] where the Court in the said judgment observed as under: “The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself”.

The Court categorically stated “the genuineness of the will which is the subject matter of the impugned FIR having been established in the probate proceedings, the same cannot again be called into question in criminal proceedings., once the marginal witnesses to a will depose about the genuineness of the Will and a finding is recorded with regard to the same by the Probate Court, it will not be legally permissible to reopen the said issue in criminal proceedings”.

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Judgement reviewed by-Sarita Kumari

Courts can impose restrictive conditions upon grant of bail subject to the evidence produced. The High Court bench consisting of J. Anoop Chitkara laid down strict conditions upon the petitioner seeking grant of bail in the case of Dinesh Kumar v. State of Himachal Pradesh [Cr. MP(M) No. 67 of 2021].

The petitioner came up to the court seeking regular bail on the ground that he was innocent. The petitioner had been accused of establishing sexual relations with the victim, a female aged 30 years and belonging to the Scheduled Caste Community, under the false promise that he would marry her. The victim filed an FIR against the petitioner claiming that he had stayed with her for four years under the promise of marriage and continued to have sexual relations during the entire period. He also promised the victim to solemnize Court Marriage in 2021. However, he was discreetly engaged with some other girl and upon confrontation about the same, he told the victim that such engagement was because of the family pressure and he was unhappy with the same. He continued to have coitus with her after this and even gave her contraceptive pills.

The Learned Counsel for the petitioner contended that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family. The Counsel for the State on the other hand contended that if the Court was inclined towards granting him bail then such a bond must be subject to very stringent conditions. This would take care of any possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses and the likelihood of fleeting justice. Relying on the case of Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1, Para 92], the counsel argued that the Court could impose restrictive conditions subject to the evidence produced.

The High Court, upon analysis of the case, stated that the victim continued to have coitus with the petitioner even when she came to know that he was engaged with another woman, and hence, any further incarceration of the petitioner would not be justified. Due to this, the petitioner is eligible for bail. Relaying on the case of Manish Lal Shrivastava v. State of Himachal Pradesh [CrMPM No. 1734 of 2020], the Court observed that “Any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another”.

Further, the Court asked the petitioner to surrender all firearms along with license within 30 days, which he, subject to the provisions of the Indian Arms Act, 1959, could claim back in case of acquittal. Further that the bail could be cancelled if during the pendency of the trial the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or if he violated any condition stipulated in the present order.

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Judgement reviewed by-Sarita Kumari

A determination has to be made as to whether or not the decree in terms of the settlement agreement has been satisfied as upheld by the High Court of Delhi through a learned bench led by Justice Amit Bansal in the case of Shree Vardhman Infrahome Pvt Ltd v. Akash Gupta & Ors. (CM(M) 770/2021)

The brief facts of the case are that the respondents, being members of the Flora Welfare Association, filed a complaint under Section 21 of the Consumer Protection Act, 1986, bearing Consumer Case No. 1893/2017 titled Flora Welfare Association Vs. Shree Vardhman Infrahome Pvt. Ltd., before the NCDRC. The said complaint was disposed of by the NCDRC vide decree dated 15th January, 2019, wherein it was recorded that the matter had been settled between the parties in terms of the written settlement dated 15th January, 2019, and which written settlement was ordered to form part of the said decree. Since the decree was not satisfied, the respondents filed execution applications under Sections 71 and 72 of the Consumer Protection Act, 2019 seeking enforcement of the decree dated 15th January, 2019 of the NCDRC as well as penalties to be imposed upon Shree Vardhman Infrahome Private Limited and its directors for non-compliance with the decree dated 15th January, 2019 of the NCDRC, and from which execution proceedings, the impugned order arises.

After the perusal of the facts and arguments, the Hon’ble Court held, “The impugned order indicates that the matter is now listed before the NCDRC when the objections, as recorded in paragraph 5, are to be considered. The NCDRC is requested to decide the objections filed on behalf of the petitioner company on the next date of hearing or any short date thereafter. No coercive steps pursuant to the recovery certificate, if any issued, shall be taken against the petitioner company till the time the said objections are adjudicated by the NCDRC. It is clarified that no observations with regard to the merits of the matter have been made in the order passed today and all rights and contentions of the parties, including issues with regard to maintainability, jurisdiction, and merits are kept open. The petition along with pending applications is disposed of.”

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Judgment reviewed by Vandana Ragwani