Bombay High Court Weekly Round-up: December 25, 2023 To December 31, 2023

The Bombay High Court held that additional fees applicable for changing the structure of a slum developer company/firm and inducting third parties is not applicable when the owner inducts his legal heirs as partners in order to ensure smooth transition after his death.

Justice Milind N Jadhav quashed an order of the Slum Development Authority (SRA) directing a slum developer to pay additional fees after the owner converted the sole proprietorship to a partnership and inducted his legal heirs as partners.

“it is crystal clear that the exemption provided in clause (ix) of the SRA office order dated 23.03.2015 is applicable to the facts of the Petitioner’s case as the conversion of the proprietorship firm into partnership firm was never intended to induct any third party but only the legal heirs, which even otherwise eventually would have taken place after the demise of Mr. Ramesh Malhotra”, the court observed.

The Bombay High Court held that a borrower who received loan in cash is liable for dishonour of cheques issued towards repayment even if the loan amount was beyond the permissible limit for cash transactions under the Income Tax Act.

Section 269-SS of the IT Act bars receipt of loan or deposit of more than Rs. 20,000 in cash.

Justice PK Chavan convicted a woman in a cheque bounce case, rejecting her defence that there is a violation of Section 269-SS as the amount given in cash exceeded Rs. 20,000.

“The penalty for taking such advance or deposit in contravention of provisions of Section 269-SS was to be suffered by the taker who accepts the advance. It is thus clear that no person should accept any loan or deposit of a sum of Rs.20,000/- or more otherwise than by an account payee cheque or account payee bank draft. The provision does not say that a person cannot advance more than Rs.20,000/- in cash to another person. The learned Magistrate has wrongly invoked the aforesaid provisions while dismissing the complaint. As such, the provisions of Section 269-SS and 271D of the Income Tax Act have absolutely no bearing over the case in hand…”, the court said.

The Bombay High Court refused to suspend sentence of artist Chintan Upadhyay observing that the confession of co-accused Pradeep Rajbhar, which implicated Upadhyay, was supported by corroborating evidence and was true and voluntary.

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse dismissed the application for sentence suspension filed by Upadhyay, who was convicted in the 2015 double murder case of his ex-wife, Hema Upadhyay, and her lawyer, Haresh Bhambhani.

“The aforesaid circumstances corroborate the confessional statement of co-accused-Pradeep which is found to be true and voluntary. It is also pertinent to note that bail granted by the Apex Court was not on merits but on account of long incarceration of the applicant i.e. 5 years and since about 12 witnesses were yet to be examined. Considering the overall evidence on record, this is not a fit case to enlarge the applicant on bail”, the court held.

The High Court of Bombay held that a debt owed to a financial institution covered only under the SARFAESI Act is arbitrable, however, a debt owed to a financial institution to which the provisions of RDDB Act also applies is non-arbitrable.

The bench of Justice Manish Pitale while distinguishing both the acts held that the proceedings under RDDB Act contains exhaustive provisions for the determination as well as the recovery of the determined debt, however, SARFAESI Act contains provisions only for the enforcement of the debt and no provision for the determination/crystallization of the debt.

The Court held that since the RDDB Act contains an exhaustive provision, the debts covered under the ambit of the Act are non-arbitrable.

An advocate who signs an application or pleading with scandalous remarks against the Court without reasonable grounds to create an artificial situation so that the matter was recused by a judge may be liable for a contempt action, the Bombay High Court reiterated while contemplating action against two lawyers and issuing contempt notice against their client.

The division bench comprising Justices Nitin Sambre and NR Borkar added that in a conflict between a lawyer’s obligations to the Court and his duty to the client, what prevails first is his obligation to the Court.

The Bombay High Court directed the Regional Passport Officer, Mumbai to renew the passports of a woman and her two sons, which were earlier rejected by the Passport Authority due to objections raised by the woman’s brother-in-law over the address mentioned by them in their passport applications.

Delivering the judgement, Justices AS Chandurkar and Firdosh P Pooniwalla stated, “A person cannot be deprived of his/her fundamental right to travel abroad on the ground that there is a dispute in respect of the property which is mentioned in the address given by the applicant for the purposes of including it in the passport.”

The court however clarified the Petitioners’ address in the passport would not by itself confer on them any right in respect of the said property so as to prejudice the brother-in-law in any way.

Nonetheless, the court observed that the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution. Therefore, no person can be deprived of this right except according to the procedure established by law as laid down in the Passports Act, 1967.

The Bombay High Court refused to vacate its ex-parte order restraining KLF Nirmal Industries from using for its coconut oil products blue packaging and label deceptively similar to that of Parachute Coconut Oil.

Justice RI Chagla observed that KLF Nirmal Industries Pvt. Ltd. failed to prove that Marico Ltd, manufacturer of Parachute coconut oil, knowingly supressed its delay in seeking the injunction against packaging of KLF Nirmal’s coconut oil products.

An accused claiming to be a juvenile need not produce a Date of Birth (DOB) certificate from his ‘first’ school to determine his age and a certificate from any school he attended can be submitted under the new Juvenile Justice Act 2015, (JJ Act) the Bombay High Court held.

Justice SM Modak set aside the trial court’s order that adjudicated the accused’s plea based on the old JJ Act and Rules.

The FIR was registered for kidnapping and rape, as well as under sections of 4 & 6 of the POCSO Act. The accused claimed that he was a juvenile on the date of the offence in 2018.

The Sessions Court had asked the accused to submit documents about his date of birth as per Section 12(3) of the Juvenile Justice (JJ) Rules, 2007, requiring a certificate from the school first attended.

However, Justice Modak observed, that although the trial Court considered Rule 12(3) of 2007 Rules, now 2015 Act and 2016 Rules are enacted. So, earlier rules do not exist.”

Quoting the Supreme Court judgment in Rishipal Singh Solanki vs. State of Uttar Pradesh (2021), the High Court said, “What was provided under Rule 12 of the JJ Rules 2007 has been provided under Section 94 of the JJ Act 2015. Section 94(2)(i) only refers to “date of birth certificate from the school” and does not insist on the first school certificate.”

The Bombay High Court’s Nagpur bench restored an order passed by a Magistrate Court in Murtizapur, Maharashtra, issuing process against a college principal for offences under Sections 294 (obscenity), 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation) of the IPC.

Justice Anil Pansare held that the words allegedly uttered by the Principal asking his colleagues “Whether your wives had come to me for sleeping to tell you that I am of bad character” inside his chamber in front of three other professors would amount to an obscene act.

The college Principal’s chamber was a ‘public place’ as contemplated under Section 294 of the IPC, the court said, adding, “The Sessions Court, however, took an erroneous view that the Principal’s Chamber is not a public place.”

The High Court of Bombay held that a dispute related to the business of the firm cannot be referred to arbitration by a partner in absence of other partners.

The bench of Justice Manish Pitale held that the implied authority granted to a partner does not extend to referring the dispute to arbitration in view of the bar under Section 19(2)(a) of the Partnership Act, 1932.

The Court also held that an arbitration notice issued by one of the partners without the consent of the remaining partners is invalid which renders the petition for the appointment of the arbitrator also invalid.

The Bombay High Court ordered the Additional Chief Secretary, Maharashtra Excise Department, to conduct an inquiry into excise officials who seized a company’s ethanol despite it not being a contraband as per Bombay Prohibition Act.

A division bench Justice GS Kulkarni and Justice Jitendra Jain in a writ petition observed that the excise officials appeared to have acted on the behest of the petitioner company’s competitors and harmed the petitioner’s reputation and business interest.

The court further deprecated the officers’ high-handedness by publishing photos of the boxes of ethanol with excise officers in the newspapers making it look like illegal materials were seized from the petitioner company.

The Bombay High Court quashed a proclamation order against a Police Naik allegedly absconding after raping and threatening a female Police Naik who used to work with him.

Justice Sarang V Kotwal observed that the accused has to be given at least 30 days to appear from the date of publication of the proclamation, as per section 82 of the CrPC.

The Bombay High Court held that the Apex Grievance Redressal Committee (AGRC) of the Slum Rehabilitation Authority (SRA) cannot review its own order in the guise of speaking to the minutes of the order.

Justice Madhav J Jamdar quashed an Order passed by the AGRC while speaking to the minutes of it earlier order, directing the parties to register a different agreement than the one mentioned in the original order.