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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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Petitioner’s Appeal Granted: Court Reverses Decision on Ink Age Test

Title: Dnyaneshwar Eknath Gulhane vs. Vinod Ramchandra Lokhande

Citation: Criminal Writ Petition NO. 542/2023

Coram: JUSTICE ANIL L. PANSARE

Decided on: 02-11-2023

Introduction:

In this case, the petitioner, who was the original complainant, is challenging an order dated 21.06.2023 issued by the learned Sessions Court in response to Criminal Revision Application No. 3/2023. This order was quashed and set aside from the previous order dated 13.12.2022, which was passed by a learned Judicial Magistrate First Class in Yavatmal. The magistrate’s order rejected the application filed by the respondent-accused to appoint a handwriting expert for an ink age test of a disputed cheque.

Facts:

In this case, the petitioner, who was the complainant, is challenging an order passed by the Sessions Court. The order in question was quashed and set aside a previous order issued by a Judicial Magistrate First Class, Yavatmal. The magistrate had rejected the application filed by the respondent-accused to appoint a handwriting expert for an ink age test of a disputed cheque. The rejection was based on the precedent set by the Rajasthan High Court in the case of Manish Singh Vs. Jeetendra Meera concluded that there is no scientific method available to accurately determine the age of ink and that it cannot be used to determine the date of writing.

The Sessions Court, while acknowledging the precedent, took exception to the magistrate’s order, arguing that the accused has the right to a fair trial and to defend themselves, including the right to present evidence such as a scientific test to determine the age of ink. The petitioner and respondent’s counsel presented arguments, with the respondent’s counsel suggesting that a chemical test might be used to determine ink age.

However, the petitioner’s counsel cited a judgment from the Madras High Court, stating that there is no scientific method available to ascertain the age of handwriting or ink. In light of this, the court concluded that attempting to determine the age of ink in this case would be futile, and it upheld the magistrate’s original decision. The case appears to revolve around whether an ink age test is a reliable and valid method for determining the date of writing on the disputed cheque and whether the accused should be allowed to pursue such a test in their defence.

Court analysis and judgement:

In this judgment, the court has made the following decisions and orders: The writ petition filed by the petitioner (original complainant) is allowed. The judgment and order dated 21.06.2023, which was passed by the Sessions Court in Criminal Revision Application No.3/2023, is quashed and set aside.

The order dated 13.12.2022, passed by the Judicial Magistrate First Class (Court No.3), Yavatmal, below Exh.49 in Summary Criminal Case No.2400/2016, is restored.

The parties involved in the case are directed to appear before the trial court on the scheduled date. In summary, the court has sided with the petitioner, and the order passed by the Sessions Court that quashed the magistrate’s decision to reject the application for an ink age test is reversed. The case is sent back to the trial court for further proceedings.

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It Is Necessary To Fulfil The Twin Conditions Which Are Required For Grant Of Bail Under The PMLA, 2002: High Court Of Chhattisgarh

Title: Mr. Rajnikant Tiwari V Directorate Of Enforcement, Goi

Citation: 2023:Cghc:26629

Coram: Hon’ble Shri Justice Narendra Kumar Vyas

Decided On: 02.11.2023

Introduction:

This is first bail application filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail, who has apprehension of being arrested in connection with Crime dated 29.09.2022 registered at Police Station- Directorate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 186, 204, 353, 120B, 384 of IPC, Sections 3 & 4 of the Prevention of Money Laundering Act, 2002.

Facts:

The case of the prosecution is that during a search and seizure investigation under Section 132 of the Income Tax Act conducted on 30.06.2022 and one Mr. Suryakant Tiwari at a hotel room of Hotel Shereton Grand, Bengaluru, certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Further investigation was conducted. In the course of the investigation, main accused- Suryakant Tiwari was summoned and was arrested on 13.10.2022.

It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, from which it would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved in criminal conspiracy to run a parallel system of collecting illegal levy on coal and were doing illegal and unaccounted cash movement as per instructions of Suryakant Tiwari.

All the above mentioned associates of Suryakant Tiwari had admitted in their statements recorded before the Income Tax officials that they were doing the illegal levy collection on the instructions of Suryakant Tiwari. The proceeds received from the above referred to action were being used for taking undue advantage and to influence public servants by corrupt and illegal means and by exercise of personal influence.

The role of the present applicant is that he was an active member of the extortion syndicate. He was the focal point where all the extorted cash was deposited and was stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari.

Learned Senior counsel for the applicant would submit that it is a case where the applicant would be entitled for the benefit under the exceptions carved out under Section 45 of the PMLA, 2002. He would further submit that the applicant has cooperated with the Investigating Agency on all occasions and there is no further possibility of the applicant misusing the bail or would influence in any manner the investigation or tampering of the evidence nor is there any possibility of the present applicant absconding either.

learned counsel for the respondent has filed reply to the application mainly contending that the present applicant has played specific role in commission of offence. It has been further contended that ED investigation revealed that unless cash @ Rs. 25/tonne of coal transported was paid to associates of Suryakant Tiwari, the concerned mining officer in the office of collectorate would not issue the requisite transit pass. All of this was facilitated/coordinated by Suryakant Tiwari with clout of Smt. Soumya Chaurasia and other Government officials. It has been further contended that once these associates of Shri Suryakant Tiwari received the additional charge of Rs. 25 per tonne of coal to be transported, message was then communicated to the Mining Officer (s) and thereafter the delivery orders were cleared for transport.

Court’s Analysis and Judgement:

Involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfil the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant.

Considering the facts and law, gravity of offence, possibility of tempering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail. Due to which the court was not in the opinion to grant the applicant the anticipatory bail. Hence the application was rejected.

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Written by- Sushant Kumar Sharma

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Court Cannot Turn A Blind Eye Towards Any Potential Violations Of Fire Norms: High Court Of Delhi

Title: Azad Market Residents Welfare Association V Ministry Of Home Affairs And Ors.

Citation: W.P.(C) 8437/2022

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

Decided On: November 06, 2023

Introduction:

The present petition has been filed as a public interest litigation (“PIL”) seeking directions from this Court to be issued to the Respondents in relation to inter alia (i) conducting a survey in order to identify unauthorized and illegal construction in the Azad Market, Delhi – 110006 (the “Subject Area”); and (ii) to take action against such properties situated in the Subject Area.

Facts:

Petitioner has brought to the notice of this Court the presence of illegal and unauthorized constructions situated in the Subject Area. It is stated the Subject Properties have been constructed in contravention to the Unified Building Bye Laws, 2016 (“UBBL 2016”); the Delhi Municipal Corporation Act, 1957 (the “Act”); and other building laws in vogue including inter alia the Master Plan for Delhi, 2021 (“MPD 2021”). Furthermore, it has been contented that the Subject Properties have been constructed and are being occupied without obtaining an Occupancy Certificates (“OCs”) and / or necessary permissions under the Delhi Fire Safety Act, 2007 (the “Delhi Fire Act”) read with the Delhi Fire Service Rules, 2010 (the “Delhi Fire Rules”)

Notice was issued in this matter on 26.05.2022, the Municipal Corporation of Delhi (“MCD”) filed a status report on 02.07.2022 (the “MCD Status Report”); the Delhi Fire Service filed an affidavit on 02.11.2022; and the Union of India filed an affidavit in the present PIL on 01.07.2023. Per the MCD Status Report, the MCD took action against illegal and unauthorized construction in the vicinity of the Subject Area.

Court’s Analysis and Decision:

Court pointed out that the grievance raised by the Petitioner has been sufficiently addressed by the MCD through the considerable efforts it has made in relation to clearing unauthorized and illegal construction in the Subject Area. Regarding the violation of fire norms court didn’t turn a blind eye, accordingly the MCD and the Delhi Fire Services are directed to ensure scrupulous and rigorous enforcement of the Fire Norms pertaining to premises specified under Rule 27 of the Delhi Fire Rules. In this regard, the MCD shall endeavour to conduct regular monitoring of the Subject Area to ensure that persons found violating the Fire Norms are promptly identified and referred to the Fire Prevention Wing under Rule 34 of the Delhi Fire Rules.

Furthermore, in the future if stray individual cases of unauthorized and illegal construction are found dotting the Subject Area, the Petitioner may approach the Special Task Force constituted by the Ministry of Housing and Urban Affairs, Government of India  (the “STF”) pursuant to the orders of the Hon’ble Supreme Court of India in W.P.(C) 4677/1985.

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Written by- Sushant Kumar Sharma

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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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