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Bombay High Court granted a summary judgment in favour of the plaintiff due to the defendant’s non-appearance and non-response in a case under S.138 of NI Act

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Title: Gini Tex Private Limited v. Soham Fashion & Ors.

Decided on: 29TH AUGUST, 2023.

COMMERCIAL SUMMARY SUIT NO. 1383 OF 2019

CORAM: KAMAL KHATA, J.

Facts:

The plaintiff initiated legal proceedings in the Commercial Division under Order XXXVII of the Code of Civil Procedure 1908 (“CPC”), seeking a summary judgment against the defendants. The plaintiff’s claim amounted to Rs. 45,18,600/-, along with an interest rate of 24% per annum from March 31, 2019, until the complete realization of the claim. The basis of the claim was the sale and delivery of goods, against which cheques were issued.

Issues:

The central issues in the case were:

  1. Whether the defendants were liable to pay the claimed amount to the plaintiff for the goods supplied?
  2. Whether the plaintiff was entitled to a summary judgment under Order XXXVII of the CPC?

Contentions:

The plaintiff, represented by Ms. Puthran, argued that they were a manufacturer/supplier of fabrics, and the defendants regularly procured goods from them. An agreed credit period was established, and delayed payments incurred interest charges. The defendants accepted the goods and issued cheques, but these cheques were dishonoured, leading to payment demands and the issuance of notices under Section 138.

The plaintiff highlighted that the defendants had admitted outstanding amounts in a letter and had even proposed a payment schedule. However, the defendants failed to honour their commitments.

The defendants failed to respond to the legal proceedings despite being served with a writ of summons, leading to the plaintiff’s assertion that they were entitled to a summary judgment under Order XXXVII Rule 2 (3) of the CPC.

Decision:

The suit was decreed in favour of the plaintiff for the sum of Rs. 45,18,600/- along with the specified interest. The defendants were required to pay the plaintiff’s legal costs, amounting to Rs. 50,000/-, in addition to any shortfall resulting from the refund of court fees. The plaintiff was entitled to a refund of court fees as per the High Court Rules. The awarded costs would not accrue any interest. The court directed that the decree be drawn up promptly. The plaintiff was granted the liberty to execute the decree without waiting for its official sealing. The summary suit was concluded with the aforementioned terms.

In conclusion, the court granted a summary judgment in favour of the plaintiff due to the defendant’s non-appearance and non-response. This judgment entailed the payment of the claimed amount along with interest, legal costs, and other financial considerations, as outlined in the court’s decision.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay HC: The State is ideally a quintessence of justice and a model litigant

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Title: State of Maharashtra and Anr. v. Ajay Rajendra Pawar.

Decided on: 23.08.2023

+ REVIEW PETITION (ST) NO. 29872 OF 2019

CORAM: SUNIL B. SHUKRE & MANISH PITALE, JJ

Facts of the Case:

The court is addressing two review petitions arising from an earlier common order issued on November 28, 2017, related to three writ petitions filed in 2016. The original petitions sought the enforcement of an order from September 9, 2014, in which the Minister of State for Revenue directed the state authorities to refund amounts deposited by the petitioners for leasing sand ghats. The petitioners argued that due to intervening circumstances beyond their control, they were unable to fully excavate the sand ghats, and therefore, the proportionate amounts they deposited should be refunded.

Issues:

The main issues revolve around the review of the 2014 order by another Minister of State for Revenue in a subsequent order dated July 2, 2019, and the subsequent actions of the state authorities. Additionally, the court examines the discriminatory treatment by the state authorities in implementing the orders for different petitioners.

Contentions:

The original petitioners argued that the subsequent order of July 2, 2019, was passed without jurisdiction, as it reviewed an already final order and was made subject to the result of pending writ petitions, even though no such petitions were pending at the time. They contended that the state authorities complied with the original order despite the subsequent order. The petitioners pointed out that the actions of the state authorities were discriminatory, as they complied with the 2017 order for one petitioner but filed review petitions for the other two.

The court criticized the state authorities for their discriminatory attitude and arbitrary actions, highlighting that the third beneficiary of the 2017 order had been treated differently. The court emphasized that the state, as a model litigant, should not perpetuate inequality and arbitrariness.

Decision:

The court rejected the request for additional time to obtain instructions from the Advocate General, considering the peculiar circumstances of the case and the injustice that would be done to the original petitioners. The court dismissed the review petitions filed by the state, stating that they should have realized their mistake and implemented the original order dated September 9, 2014, for all petitioners, just as they did for the third petitioner.

The court directed the state authorities to disregard the subsequent order of July 2, 2019, and implement the original order of September 9, 2014, for the two original petitioners. It ordered the state to pay the due amounts to the petitioners within three weeks from the date of the order, and in case of failure, imposed a simple interest rate of 7.0% per annum on the amounts due from November 28, 2017, until the release of the amounts. Additionally, the state was ordered to pay costs of Rs. 5 lakhs to each of the petitioners, which could be recovered from the concerned officers at the state’s discretion.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay High Court: Petitioners not entitled to claim wages as per the Memorandum of Settlement on the ground of M/s. Shipping Services being a sister concern of M/s. Damani Shipping Pvt. Ltd. without proving integrality of them.

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Title: Dattu Shankar Dhumal & Ors. v. The Director, M/s. Damani Shipping Pvt & Anr.

Decided on: 25 August 2023

WRIT PETITION NO. 11047 OF 2022

CORAM: CORAM: SANDEEP V. MARNE, J.

Facts:

The case revolves around a petition challenging an award issued on August 28, 2019, by the Central Government Industrial Tribunal-II (Tribunal). The award in question rejected a reference made by the petitioners, who were seeking an enhancement of wages to be on par with the wages revised as per the Memorandum of Settlement (MoS) dated April 29, 2008, signed between the Bombay Customs House Agents Association and Transport & Dock Workers Union. The petitioners were members of Bhartiya Kamgar Karmachari Mahasangh. Respondent No.1, M/s. Damani Shipping Pvt. Ltd., was a partnership firm engaged in freight brokerage and manpower services. Respondent No.2, Shipping Services, dealt with Clearing and Shipping Agent, Transport Contractor, and Supervision and Administration work. Both these companies were sister concerns.

Issues:

  1. Whether the petitioners were entitled to the enhanced wages as per the MoS, even though they were employed by Shipping Services?
  2. Who was the actual employer of the petitioners?

Contentions:

The petitioners contended that they were employed by M/s. Damani Shipping Pvt. Ltd. but were treated as employees of Shipping Services. They alleged that this arrangement was designed to avoid paying them higher wages as per the MoS. They argued that they had produced appointment orders from M/s. Damani Shipping Pvt. Ltd., which proved their initial employment by the latter. The petitioners also claimed that they were directed to work for various sister companies within the Damani family.

In their Statement of Claims, the petitioners further asserted that there could not be different conditions of service for workers under one roof. They maintained that despite being appointed by M/s. Damani Shipping Pvt. Ltd., they were listed as employees of Shipping Services with mala fide intentions. They sought remand of the proceedings to address this issue.

The respondents argued that the petitioners were indeed employees of Shipping Services, which was not a member of the Customs House Agents Association and therefore not bound by the MoS. They pointed out that the petitioners had admitted receiving salary and benefits from Shipping Services. The respondents contended that the petitioners’ claim was not sustainable due to the lack of evidence supporting the functional integrality between the two companies.

The respondents further argued that the tribunal had properly considered all documents and evidence, including the petitioners’ appointment letters and other documents produced. They stressed that the petitioners had failed to establish that their services were utilized by M/s. Damani Shipping Pvt. Ltd. while being treated as employees of Shipping Services.

Decision:

The court considered the conflicting contentions presented by both parties. It acknowledged that there was a contradiction between the petitioners’ claims in their Statement of Claims and their subsequent arguments in the present petition. The court pointed out that the petitioners admitted in the present petition that they were employed by Shipping Services.

Given this admission, the court found that the petitioners’ reliance on an appointment letter from M/s. Damani Shipping Pvt. Ltd. was misplaced. The court noted that the evidence showed one of the petitioners had resigned from Shipping Services and his final settlement dues were also paid by Shipping Services, further confirming their employment there.

The court concluded that the petitioners failed to prove that they were employed by M/s. Damani Shipping Pvt. Ltd. or that there was functional integrality between the two companies. Therefore, the tribunal’s decision to reject the reference and deny the enhanced wages was upheld. The court dismissed the petition, emphasizing the contradictions in the petitioners’ claims and their failure to provide sufficient evidence to support their case.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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Bombay HC acquits a person convicted for corruption due to lack of evidence

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Title: Ambadas s/o Ramaji Sahare v. State of Maharashtra

Decided on: 22.08.2023

+ CRIMINAL APPEAL NO.610 OF 2004

CORAM: KISHORE C. SANT, J

Facts of the Case:

The appellant (accused) has challenged judgment and order of conviction and sentence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, dated 13.9.2004 .

Damodhar Nathuji Dhurve, the Informant, owned few acres of  land on which were teak-wood trees. He needed permission of the Forest Dept.  to cut those trees and for such permission, he was in need of 7/12 extract, map, and certificate from Talathi and, therefore, he approached to the office of the accused for obtaining the above said documents. He intimated the purpose of his visit to the office of the accused and requested the documents. The accused allegedly asked him to give Rs.300 for those documents. The informant tried to negotiate with him the amount, but when he did not agree, the informant approached ACB and through a trap designed by ACB the accused was caught.  He was later convicted for offences mentioned above and this was challenged by him.

Issues

Whether the prosecution has proved the demand and acceptance of the bribe by the accused from the informant and whether interference is called for in the judgment and order of conviction impugned.

Contentions:

The appellant claimed that amount Rs.224.45 was due against the informant towards the fees of reimbursement and the amount is paid towards the said fees. The accused also pointed out that the informant was involved in construction of a mosque illegally on the land of the gram panchayat. The demand is not proved. Mere recovery of the amount is not sufficient to prove the charges. Insofar as the demand and the acceptance are concerned, kotwal PW2 Maroti Kathane, who was working with the accused, has not supported. The sanction order is also not as per the requirement. The sanction order is invalid and, therefore, the conviction deserves to be set aside. The prosecution has also examined Kotwal PW3 Manohar Hikare, whose evidence shows that when he entered into the office of the accused, only the informant was present and except the informant no other person was present.

On the other hand, the Respondent supported the judgment and order of conviction passed by learned Special Judge and submitted that the prosecution has proved the demand and acceptance.

Decision:

Court found that the prior demand by the accused is not proved by the prosecution, a doubt is created as to demand of the amount as a gratification as the admission given by shadow pancha PW4 Dilip Ganvir shows that the accused has communicated to informant PW1 Damodar Dhurve that the amount is towards fees and also asked the informant to take receipts and asked him to sit for taking such receipts. These admissions sufficiently create doubt as to the prosecution case .

The appeal was allowed. The impugned order was set aside and the appellant was acquitted of the charges.

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Bombay High Court declares compensation to the claimants of an “untoward incident” on the Railways

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Title: Ramesh Laxmanrao Dighade & Ors. v. UoI

Decided on: 25/07/2023

+ FIRST APPEAL N O . 1422 OF 2019

CORAM: SMT. M.S. JAWALKAR, J

Facts of the case

The present appeal is filed being aggrieved by the judgment and award dated 10/05/2018, passed by the learned Railway Claims Tribunal which dismissed the claim application of the appellants.

Amol Ramesh Dighade, a newly appointed member of the State Reserve Police Force, tragically died in a railway accident. He was on his way to Daund for training and had boarded the Nagpur-Bhusawal passenger train. Due to overcrowding, he sat near the toilet where he was hit by fellow passengers and fell off the moving train, resulting in his death.

The claimants, who are the family of the deceased, filed a claim petition seeking compensation from the railway authorities for the untimely demise of Amol Dighade. The respondent railway, however, contested the claim, arguing that the incident did not fall under the definition of an “untoward incident” as per the Railway Act. They claimed that the deceased was not a bona fide passenger, implying that the railway was not liable to provide compensation.

Issues:

1)Was the incident leading to Amol Dighade’s death an “untoward incident” as defined by the Railway Act?

2) Was Amol Dighade a bona fide passenger of the train, and thus eligible for compensation?

Contentions:

The claimants argued that the deceased was indeed a bona fide passenger, as evidenced by the valid railway ticket found on his body. They pointed out that the initial burden of proof had been met and that the railway’s assertion of suicide lacked sufficient evidence. They cited legal precedents that emphasized the need for a liberal interpretation of the Railway Act to ensure compensation for victims of railway accidents. Section 124-A of the Railway Act imposes strict liability or no-fault liability on railways in case of railway accidents.

The railway authorities contended that the incident did not constitute an “untoward incident” under the Section 123(c) of the Railway Act. They maintained that the deceased’s death was either a result of suicide or a breach of safety guidelines, implying that it was not the responsibility of the railway to provide compensation. It was contended that since the body was cut into pieces , it was a suicide. Also, none of the passengers complained of such happening. Thus, they believed that they should not held liable for suicide or run over of someone.

Decision:

After considering the facts, circumstances, and evidence presented by both parties, the judge concluded that the initial dismissal of the claim petition by the Railway Tribunal was erroneous. The presence of a valid railway ticket recovered from the deceased’s body was deemed sufficient evidence to establish that Amol Dighade was a bona fide passenger. The judge emphasized that a liberal interpretation of the Railway Act should be applied to ensure compensation for victims of railway accidents. The judge held that the incident was an “untoward incident” under the act, and ruled in favour of the claimants.

The judge allowed the appeal, quashed the earlier judgment, and ordered the respondent (Union of India) to pay compensation of Rs. 8,00,000 to the claimants. The judge highlighted the importance of practical evidence over theoretical possibilities in determining liability in such cases.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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