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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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To Curb Gun Problem, Make Bail Provisions More Stringent Like PMLA; Reverse Burden Of Proof: Amicus Tells Supreme Court

Title: Rajendra Singh vs. State of Uttar Pradesh

Citation: M.A. No. 393 of 2023 in Special Leave Petition (Criminal) No. 12831 of 2022

Coram: JUSTICE KM JOSEPH

Introduction:

The case introduces Senior Advocate S Nagamuthu’s role as the amicus curiae in an ongoing suo motu case in the Supreme Court, where the focus is on addressing the proliferation of unlicensed firearms. Nagamuthu proposes stricter bail provisions under various acts related to arms, explosives, and explosive substances. Notably, he suggests aligning these provisions with those found in acts like the Prevention of Money Laundering Act and the Narcotic Drugs and Psychotropic Substances Act. Additionally, Nagamuthu recommends a reversal of the burden of proof, implying that the court should assume the guilt of the accused based on certain foundational facts unless proven otherwise by the accused.

Facts:

The case outlines several key suggestions by Senior Advocate S Nagamuthu in the ongoing suo motu case aimed at curbing the proliferation of illegal arms and ammunition. Firstly, Nagamuthu recommends the establishment of a government-appointed committee of experts to study inputs from various sources and formulate recommendations within a year. He also proposes referring potential legislative changes to the Law Commission to address inadequacies in existing laws related to the manufacture, sale, import, export, use, possession, and storage of arms and ammunition.

Furthermore, the amicus curiae suggests quarterly meetings of chief secretaries and police chiefs to assess the situation and understand regional challenges. The recommendations extend to supplementary measures, including changes in pre- and post-arrest bail provisions, expediting trials, presumptions of innocence, and establishing special police units and courts to fast-track investigations and trials. The focus is on strengthening regulatory measures and enhancing the effectiveness of law enforcement in combating the illegal arms trade.

Case analysis and judgement:

The judicial proceedings in this case began when a bench led by retired judge KM Joseph, in February, took notice of the concerning issue of widespread possession and use of unlicensed firearms in India. This matter came to light during the hearing of a murder accused’s bail application. The court, led by Justice Joseph, highlighted the ‘disturbing’ trend and emphasized that unlike the United States, where the right to bear arms is recognized as a fundamental right, the Indian Constitution does not confer such a privilege.

The court, expressing the importance of addressing the use of unlicensed firearms, specifically sought the response of the Uttar Pradesh government on the number of cases related to the possession and use of unlicensed firearms. Subsequent hearings expanded the scope, with the court urging not only the State of UP but all states, union territories, and the union home ministry to provide country-wide information on the measures taken to tackle the problem of unlicensed firearms. Apart from recommending improved implementation of the Arms Act, the court hinted at the possibility of legislative changes being necessary. The focus on seeking a robust response from all stakeholders and the consideration of potential legislative amendments indicates the court’s commitment to addressing the issue comprehensively and ensuring effective measures to curb the proliferation of unlicensed firearms in India.

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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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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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