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

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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

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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

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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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Legal Battle Unfolds Over GNCTD’s OSWS Portal: Operationalization and Compliance Await Next Hearing

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Title: Anjana Gosain vs. Government of NCT & ANR.

Citation: W.P.(C) 2506/2019 & CM APPL. 19643/2021

Coram: JUSTICE PRATHIBA M. SINGH

INTRODUCTION:

The case appears to be an excerpt from a legal case or a court proceeding related to the outstanding bills of a lawyer engaged by the Government of the National Capital Territory of Delhi (GNCTD). The court seems to have issued orders to streamline the process of clearing lawyers’ bills and implement a Single Window System for bill clearance. The case is scheduled to be listed again on April 7, 2022, to report further progress on the implementation of the Single Window System.

FACTS:

The facts of the case are such that, the Coordination between various government departments has caused delays in clearing lawyers’ bills. The court emphasizes the importance of setting timelines for bill payments and the need to improve the process for clearing lawyers’ bills. The responsibility for coordinating the Single Window System for bill clearance has been assigned to the Additional Chief Secretary and the National Informatics Centre (NIC). A timeline for the development of the Single Window System is presented, including the approval of functional requirements, software development, GUI designing, coding, and validation.

The court expresses dissatisfaction with the timelines provided by GNCTD, citing the prolonged delay in processing lawyers’ bills, some of which date back to 2018.  The case is set to be listed on specific dates to monitor progress in the implementation of the Single Window System and the resolution of outstanding bill payments. These proceedings highlight the court’s efforts to expedite the payment of lawyers’ bills and streamline the process through the introduction of a centralized system. It also mentions that on April 7, 2022, certain actions were taken, including clearing outstanding bills of the Petitioner, creating a Virtual Machine with a provided URL for a security audit, and scheduling training for government counsels to use the SWS system from April 25, 2022, to April 29, 2022.

CAE ANALYSIS AND JUDGEMENT:

The court concludes that, In an order dated July 25, 2023, the Law Department of GNCTD was directed to engage developers to fully operationalize the OSWS portal with approval from the Finance Department of GNCTD. The court ordered a demonstration of the OSWS portal’s functionality for uploading and clearing fee bills of advocates. However, on the next hearing date (September 11, 2023), it was reported that the portal was not fully ready, and a status report was filed.

The IT team of the Law Department, GNCTD, provided a demonstration of the OSWS portal. They explained that the software has built-in timelines, and the processing time for bills would not exceed 20 to 25 days. Mr Bharat Parashar, Principal Secretary, Law, GNCTD, assured the court that the portal is ready to go live and that the file for inauguration has been moved to the concerned authority.

The court ordered the GNCTD to take immediate steps to operationalize the OSWS portal within the next month and requested a report on its functioning to be submitted at least two weeks before the next hearing date. It was noted that six departments had not yet appointed their Nodal Officers for the portal’s management, and they were directed to do so within the next two weeks. The case was listed for compliance on March 7, 2024. In summary, the case revolves around the development and readiness of the OSWS portal for processing bills of advocates representing GNCTD. The court is actively monitoring the progress and has set deadlines for operationalization and compliance. The next hearing is scheduled for March 7, 2024.

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Troubled Redevelopment Project in Mumbai: Delays, Defaults, and Termination Lead to Legal Battle: High Court of Bombay

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Title: Swashray Co-op. Housing Society Ltd& Ors. Vs. Shanti Enterprises

Citation: CAP (L) No. 10432 OF 2023

Coram: JUSTICE MANISH PITALE

Decided on: 03-11-2023

Introduction:

The case involves two cross-petitions filed under Section 9 of the Arbitration and Conciliation Act, of 1996. These petitions are related to interim measures sought by the parties while disputes concerning a redevelopment project are pending resolution through arbitration. The disputes in question are common in the context of cooperative housing societies and developers in Mumbai. The parties involved are referred to as follows:

  1. Petitioner – Society: Swashray Co-operative Housing Society Ltd., which is the Petitioner in Commercial Arbitration Petition (Lodging) No. 10432 of 2023 and the Respondent in Commercial Arbitration Petitioner (Lodging) No. 15203 of 2023.
  2. Respondent – Developer: Shanti Enterprises, which is the Respondent in Commercial Arbitration Petition (Lodging) No. 10432 of 2023 and the Petitioner in Commercial Arbitration Petitioner (Lodging) No. 15203 of 2023. The case pertains to disputes and issues related to a redevelopment project involving these cooperative housing societies and the developer in the city of Mumbai.

Facts:

In this case, the Petitioner–Society engaged the Respondent–Developer for a redevelopment project concerning a property located in Borivali (West), Mumbai. The Petitioner – Society, consisting of 16 members, and the Respondent–Developer entered into a Memorandum of Understanding (MoU) on July 9, 2015. The MoU included obligations for the Respondent–Developer to procure conveyance in favour of the Petitioner–Society and to incorporate the Society’s name in the property register. The conveyance was procured on August 6, 2015. However, issues arose when the Municipal Corporation of Greater Mumbai issued a notice under Section 354 of the Mumbai Municipal Corporation Act, 1881, which led to the evacuation and eventual demolition of the existing building on the site in 2017.

The Petitioner–Society alleged that there was no progress in the redevelopment project, and the Respondent–Developer failed to execute and register the development agreement. A resolution to terminate the MoU was passed on February 13, 2018, but this termination was not acted upon as the Respondent–Developer assured compliance. The development agreement was eventually executed on May 4, 2018.

Despite obtaining necessary permits like Intimation of Disapproval (IoD) and a commencement certificate, the Respondent–Developer’s progress stalled. The Petitioner–Society claimed that the Respondent started defaulting and failed to comply with the terms of the development agreement. The agreement required the Respondent–Developer to provide a bank guarantee, complete the project within a specified timeframe, and obtain an occupation certificate.

As the Respondent – Developer failed to meet these obligations and requested relaxation, a Supplementary Development Agreement was executed on November 28, 2019. However, the Respondent – Developer also failed to fulfill its commitments under this agreement. Society issued several notices and reminders, called a Special General Body Meeting to terminate the agreements, and ultimately terminated the Development Agreement, Power of Attorney, Supplementary Development Agreement, and Permanent Alternative Accommodation Agreements (PAAAs) due to a loss of trust in the Respondent – Developer’s ability to complete the project. The Society sought relief through a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996, requesting the court to grant mandatory reliefs due to the repeated defaults and breaches committed by the Respondent – Developer. The Society emphasized that its members should not suffer due to the Respondent’s actions and cited previous court decisions where similar relief was granted in Section 9 petitions.

This case highlights a complex dispute between a housing society and a developer involving a redevelopment project in Mumbai, with allegations of delays, defaults, and the termination of agreements.

Court analysis & judgement:

In this judgment, the court refers to a previous case, Sushil Kumar Agarwal Vs. Meenakshi Sadhu & Ors., where it was observed that in certain agreements, both the property owner and the developer would be entitled to sue for specific performance under Section 14(3) of the Specific Relief Act. However, in the present case, the court states that the Respondent–Developer cannot benefit from this position of law due to the material available on record, which shows significant breaches committed by the Respondent–Developer. The court finds that the Petitioner–Society has established a strong prima facie case, and it cannot be bound to a developer who has repeatedly defaulted, leading to a complete loss of trust and faith. As a result, the court dismisses the Commercial Arbitration Petition (Lodging) No. 15203 of 2023 filed by the Respondent–Developer. Simultaneously, it allows Commercial Arbitration Petition (Lodging) No. 10432 of 2023 filed by the Petitioner.

Restraining the Respondent, its partners, officers, servants, agents, and others from creating third-party rights in the property. Restraining the Respondent from interfering with the redevelopment process, construction, and possession of the property by the Petitioner–Society. Restraint from dispossessing the Petitioner – Society and its members from the project and property. Directing the Respondent to hand over possession of all original documents related to the property and the project. This judgment analysis highlights that the court has recognized the breaches committed by the developer and has granted specific reliefs to the petitioner society, ensuring that their interests are protected.

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