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Doctrine Of Forum Conveniens Is To Be Invoked To Determine The Most Appropriate Forum For Adjudication Of A Dispute: High Court Of Delhi

Title: Riddhima Singh V Central Board Of Secondary Education & Ors.

Citation: LPA 729/2023

Coram: Hon’ble The Chief Justice And Hon’ble Mr. Justice Tushar Rao Gedela

Decided On: 01.11.2023

Introduction:

The present LPA arises out of judgement dated 12.09.2023 passed in W.P.(C) No. 8383/2023 whereby the Ld. Single Judge dismissed the writ petition filed by the Appellant herein on grounds of forum non-conveniens without expressing any opinion on the merits of the matter.

Facts:

Appellant was a student in Respondent School (the „Respondent School‟). However, on 02.04.2018, the Appellant‟s father received a message from the Respondent School that due to non-payment of fees for the academic year 2017-2018, the Appellant was debarred from attending the Respondent School. Being aggrieved, the Appellant preferred W.P.(C) 6007/2019 (the „First Writ Petition‟) before this Court seeking issuance of directions against Respondent No. 1 („CBSE‟) to permit the Appellant to appear for Class X and Class XII examinations. During the pendency of the aforenoted writ proceedings, this Court, through interlocutory orders, directed the Respondent School to readmit the Appellant and directed the school to conduct Grade VII and Grade VIII examinations for the benefit of the Appellant. Both the examinations were conducted by the Respondent School and was cleared by the Appellant. It is pertinent to note that the Grade VIII examinations were delayed due to the COVID-19 pandemic.

Vide judgement dated 04.06.2021, the First Writ Petition was dismissed by the Ld. Single Judge on grounds that this Court was not the most appropriate forum to adjudicate the dispute. The Court considered that the Appellant was a resident of Uttar Pradesh and that the Respondent School was also located in Uttar Pradesh. As the grievances of the Appellant primarily pertained to the Respondent School, the Court held that the mere inclusion of CBSE as a respondent was not sufficient to enable this Court to exercise its jurisdiction under Article 226 of the Constitution of India. Aggrieved the Appellant preferred a review petition against this judgement which was also dismissed with costs of INR 30,000 imposed on the Appellant.

Subsequent to the events of the First Writ Petition, the Appellant preferred the underlying writ petition seeking compensation from CBSE for alleged “intentional harassment, mental trauma of holding back the Petitioner in Class VII for two academic years in violation of RTE Act.” Without adjudicating on the merits of the matter, the Ld. Single Judge dismissed the writ petition on the grounds of non-conveniens, noting that the Appellant has attempted to found territorial jurisdiction in Delhi merely because CBSE is headquartered in Delhi.

Learned Counsel for the Appellant contends that the Ld. Single Judge erred in not considering that Clause 18.3.2 of the CBSE Affiliation Bye-Laws explicitly states that the legal jurisdiction for suits filed against the CBSE shall be the Union Territory of Delhi.

Court’s Analysis and Judgement:

The principle emerging from Shristi Udaipur is squarely applicable to the facts of the present case. In essence, the basis of the Appellant‟s claim for compensation is the loss of an academic year due a delay in examinations for Grade VIII. As the responsibility for conducting the examinations fell on the Respondent School, it is plain that the most vital part of the cause of action arose in Uttar Pradesh, where the Respondent School is located. Moreover, it must also be noted that the Appellant is a resident of Uttar Pradesh. Therefore, on a holistic examination of these circumstances, as the Appellant has failed to produce any material establishing that the grievance caused to her is directly attributable to the actions of the CBSE.

doctrine of forum conveniens is invoked to determine the most appropriate forum for adjudication of a dispute and this exercise is undertaken not only for the convenience of the parties but also in the interest of justice. Therefore, this Clause cannot be read in a matter that would permit all cases filed against the CBSE, regardless of the existence of a more appropriate forum, to be adjudicated in the Union Territory of Delhi; the existence of such a clause cannot exempt Courts from invoking the doctrine of forum conveniens especially in cases like the present where no direct actions of the CBSE have been impugned by the Appellant. So the court did not find any eason to interfere with the Impugned Judgement. Accordingly, the present LPA was dismissed.

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Written by- Sushant Kumar Sharma

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Throwing On Another Person Any Liquid Or Substance Other Than ‘Acid’ Not An Offence U/S 326B IPC: Delhi High Court

Title: Rashmee Kansal v. The State and Others
Citation: W.P.(CRL) 712/2022

Coram: JUSTICE AMIT BANSAL

Introduction:

In a recent ruling, the Delhi High Court provided a crucial clarification regarding interpreting Section 326-B of the Indian Penal Code (IPC). The court emphasised that for an offence to be established under this section, it is essential that a person throws or attempts to throw ‘acid’ on another person. Importantly, the court specified that Section 326-B is exclusively tailored to address acid attacks and does not encompass incidents involving any other liquid or substance. This clarification offers a distinct understanding of the scope and application of Section 326-B, particularly in cases involving the throwing or attempted throwing of harmful substances on individuals.

Facts:

The case involves a respondent accusing her sister-in-law, the petitioner, of throwing a hot liquid at her, which allegedly landed on her right shoulder, blouse, and saree. Justice Amit Bansal, presiding over the matter, highlighted that if the liquid were indeed ‘acid,’ there would likely be external injuries and traces of the acid on the respondent’s body.

The petitioner sought the quashing of the FIR, claiming shared residency on a common property with the respondent. The petitioner argued that the FIR was a tactic to harass her, citing an ongoing property dispute between them. Additionally, it was noted that two complaints had been previously filed against the respondent by other occupants of the property.

In response, the respondent contested the existence of a property dispute and criticised the police investigation. The court considered an FSL report indicating that samples of the liquid substance collected from the property were Hydrochloric acid. However, the court noted that there was no evidence to demonstrate that the substance was thrown directly at the respondent’s body.

Court analysis and judgement:

In this case, the court provided a thorough analysis leading to the decision to quash the FIR. The central point of consideration was Section 326-B of the IPC, which specifies that an offense is established only if a person throws or attempts to throw ‘acid’ on another person and not any other liquid or substance. This legal criterion set the framework for evaluating the allegations.

The court took into account crucial medical evidence, including the discharge summary that indicated no external injury on the respondent at the time of hospital admission. Additionally, the PCR Form recorded the doctor’s statement asserting the absence of acid signs, categorizing it as a case of an old illness. These medical findings played a pivotal role in the court’s determination. Regarding the charge of criminal intimidation, the court observed a lack of substantive allegations in the FIR to substantiate the offense, providing a comprehensive legal analysis.

The legal representation included Mr. Sunil K. Mittal, Mr. Anshul Mittal, Mr. Harshit Vashisht, and Mr. Sarthak Sharma, Advocates for the petitioner, and Mr. Yasir Rauf Ansari, ASC (Crl.) with Mr. Alok Sharma and Mr. Rohan Kumar, Advocates for the respondents. The court, based on its analysis, quashed the FIR, highlighting that the substance thrown was not confirmed to be ‘acid’ and suggested that the allegation stemmed from an ongoing property dispute between the parties. This judgment analysis underscores the court’s meticulous consideration of legal criteria, medical evidence, and the context surrounding the allegations.

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Written By: Gauri Joshi

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Appellate Court Upholds Appellant’s Business Rights in Arbitration Dispute: High Court of Delhi

Title: HAD FLAVOURS PVT LTD. Vs. DADDY’S HOSPITALITY PVT LTD.

Citation: ARB. A. (COMM.) 29/2023 & IA Nos.12437/2023, 12439/2023

Coram: HON’BLE MR. JUSTICE SACHIN DATTA

Decided on: 06-11-23

Introduction:

The appellant is appealing against an order passed by the Ld. Sole Arbitrator, disposing of an application under Section 17 of the Arbitration and Conciliation Act, 1996 (the “A&C Act”). The Ld. Sole Arbitrator was appointed by the court vide order dated 10.02.2023, at the parties’ joint request. While appointing the Ld. Sole Arbitrator, the court directed that the said petition under Section 9 of the A&C Act would be placed before the Ld—sole Arbitrator as an application under Section 17 of the A&C Act.

Facts:

The case involves a Business Transfer Agreement (BTA) dated 29.01.2022 between two parties. The BTA specifies the transfer of a “transferred undertaking” along with certain rights and assets, including the brand “34 Chowringhee Lane.” The purchase consideration for this transfer was detailed, with a lump sum amount to be paid, and the appellant alleged that the respondent violated the BTA by continuing to operate a competing brand.

Disputes between the parties led to legal notices and the purported termination of the BTA by the respondent. The matter was taken to arbitration under the Arbitration and Conciliation Act, and the Sole Arbitrator issued an order addressing various prayers made in the petition under Section 9 of the Act.

The impugned order by the Sole Arbitrator restricted the appellant from creating new franchises or entering into business agreements with third parties for the use of the name/brand “34 Chowringhee Lane.” This restriction aggrieves the appellant.

Court analysis and judgement:

In the judgment the court considered the contentions of both parties and reviewed the impugned order issued by the Sole Arbitrator under Section 17 of the Arbitration and Conciliation Act. The key points in the judgment are as follows: The Sole Arbitrator had found that after the receipt of the consideration amount, the conduct of the business was recognized as the right of the claimant (appellant), with the respondent’s directors assisting in the business for remuneration. The impugned order also made a prima facie finding that the respondent could not claim a right to interfere with the conduct of the business. The court noted that putting restrictions on the appellant’s right to create new franchises or enter into business agreements with third parties was unwarranted in light of the findings in the impugned order, which recognized the appellant’s right to conduct the business. The appellant contended that such directions were unwarranted, especially considering that the respondent had not filed an independent Section 17 application seeking injunctive orders against the appellant.

The court emphasized that a blanket embargo on creating new franchises or business agreements might harm the business’s value due to market stagnation or share depletion. Such a direction was deemed inappropriate when dealing with the appellant’s Section 17 application in the absence of a similar application from the respondent. The court, therefore, set aside the portion of the impugned order that restricted the appellant from creating new franchises or entering into new business agreements with third parties during the proceedings. However, the court directed that any such actions should be done with the prior approval of the Sole Arbitrator and subject to the terms and rationale being presented to the Sole Arbitrator to safeguard the rights of the respondent. The judgment disposed of the present appeal with these directions, and any pending applications were also disposed of. In summary, the court found that the restrictions placed on the appellant by the impugned order were unwarranted and lifted them. Instead, it required that any such actions be taken with the approval of the Sole Arbitrator and subject to the protection of the respondent’s rights.

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Written By: Gauri Joshi

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First-Time Offender’s Sentence Reduced Due to Commitment to Reform and Lower Socio-Economic Status: High Court of Delhi

Title:  Mohd Nasim vs. The State

Citation: CRL.REV.P.296/2017

Coram: HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN

Decided on: 3-11-2023

Introduction:

The present criminal revision petition has been filed under sections 397/401 of the Code of Criminal Procedure, 1973, along with section 482 of the same Code. This legal action aims to challenge and set aside three specific legal orders and judgments: The order dated 27.03.2017, referred to as “the impugned order,” issued by the District and Sessions Judge of East, Karkardooma Courts (referred to as “the appellate court”). The judgment dated 17.03.2016, referred to as “the impugned judgment.” The order on sentence dated 15.07.2016, issued by the Metropolitan Magistrate-03, East, Karkardooma Courts (referred to as “the trial court”).These orders and judgments pertain to a criminal case that arose from the FIR numbered 151/2009, registered under sections 279/337 of the Indian Penal Code, 1860 (IPC) at PS Mandawli Fazad Pur. The purpose of this criminal revision petition is to seek a review and potentially set aside these legal decisions.

Facts:

The facts of the case are such that, The case pertains to an incident in 2009, where a road accident occurred involving a rickshaw used for carrying goods and a blue line bus with the registration number DL 1PB 9786 (referred to as “the offending vehicle”). The Investigating Officer, SI Yad Ram, arrived at the accident scene after receiving information about the incident. A statement from the complainant, Mohd. Sabir was recorded, in which he described that the rickshaw he was travelling in was hit from behind by the offending bus, driven in a rash and negligent manner.

As a result of the collision, the deceased, Mahesh, fell on the road, and the rear tire of the bus ran over him, causing injuries that led to his subsequent death during treatment. An FIR was registered based on the statement of the complainant, initially under sections 279/337 IPC, and later section 304A IPC was added due to the death of the deceased. The petitioner, identified as Mohd. Nasim was charged as the driver of the offending bus. The trial court conducted proceedings, and the prosecution presented its evidence, including 11 witnesses, including the complainant and the Investigating Officer. The petitioner pleaded innocence and claimed false implication during his statement.

The trial court, in its judgment, convicted the petitioner for offences under sections 279/304A IPC and imposed sentences, including imprisonment and compensation to be paid to the legal heirs of the deceased. The petitioner was also sentenced for an offence under section 279 IPC. The sentences were ordered to run concurrently.

 

 

Court Analysis & Judgement:

The Court concluded that, The present First Information Report (FIR) dates back to 2009, and the petitioner has been involved in legal and judicial proceedings related to this FIR since then. The petitioner is described as a first-time offender with a clear criminal record. They belong to a lower socio-economic stratum and are the primary provider for their elderly parents. The legal heirs of the deceased in this case have already received compensation. The petitioner has expressed a commitment to reform themselves. The petitioner’s actions, characterized as rash and negligent driving, led to the untimely death of a young man. This incident caused irreparable loss to the victim’s family.

 After considering all the facts, the court has decided that justice would be served by reducing the sentence imposed on the petitioner for the offence under section 304A of the Indian Penal Code (IPC) to simple imprisonment for six months. The remaining part of the sentence, as specified in the order on sentencing dated 15.07.2016, is to be maintained.  The court has directed the petitioner to surrender before the trial court on 20.11.2023 at 2:30 PM to serve the remaining portion of the sentence. The judgment is to be provided to the petitioner and sent to the relevant trial court for their information.

The present petition, along with any pending applications, has been decided and disposed of accordingly.

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State to ensure rigorous enforcement of prohibition of slow moving vehicles on Delhi NCT expressways – Delhi High Court

Coram : Chief Justice Sanjeev Narula

 

Order date : 17th October, 2023

 

Introduction :

 

A PIL was filed in the hon’ble Delhi High Court to address concerns over slow moving vehicles on the expressway prohibiting high-speed throughfare.

 

Facts:

 

The PIL filed by the petitioner stated that the purpose of the expressway is deteriorated when the slow moving vehicles clogs the roads and also jeopardizes public safety. The PIL intrinsically connects the right to safer travel with that of broad interpretation of right to life and personal liberty.

It was observed that the genesis of the PIL can be traced back to the petitioner’s personal experiences who has been commuting in the Delhi-Gurugram Expressway which is a segment of NH-48. The petitioner claims that the presence of slow moving vehicles in the expressway has significantly increased and has caused multitude of accidents resulting in loss of life and property damage. The petitioner had approached various authorities such as the National Highways Authority of India (NHAI) who has confirmed the prohibition of slow moving vehicles. NHAI came with an agreement with DCP- Gurugram (respondents 5) which stated that vehicles like tractors, carts, and two-three wheelers are explicitly barred.

NHAI reports between 2017-2022 produced data that 31 fatalities have been caused because of slow moving vehicles along with 137 grave accidents in the expressway. The petitioner also refers to the HC of Karnataka which refrained  two wheelers to use highways and insisted on using the service roads. The petitioner has filed the PIL on the ground that there is a lack of adherence to traffic norms and road regulations.

Courts Analysis and Judgement:

The court took cognizance of the issue and stated that it is of utmost importance to ensure that traffic rules and regulations are strictly enforced. The court also noticed that the NHAI has observed the alarmingly increasing slow moving vehicles in the expressway causing frequent accidents.

It was stated that that the prohibition of two-wheelers, three-wheelers, tractors and animal driven vehicles are done primarily to ensure the safety of all road users and use the express way effectively. It has been noted that there is a regulatory framework for providing safety measures but the problem persists in the enforcement and adherence.

The court directed the state to rigorously enforce the existing prohibitions with respect to slow moving vehicles. In furtherance, it was held that providing an additional specific lane would be filled with complexities upon the policy considerations.

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