Current's
DIGITAL MAGAZINE
SUPREME COURT AND BOMBAY HIGH COURT
Issue No: 14 of 2023
Issue Date: 08/04/2023
PART 1
SUPREME COURT AND BOMBAY HIGH COURT JUDGEMENTS
[1] - AGE OF RETIREMENT
[2] - AMENDMENT IN BYE-LAWS
[3] - APPEAL AGAINST ACQUITTAL
[4] - APPEAL AGAINST CONVICTION
[5] - BURDEN OF PROOF
[6] - COMPENSATION FOR ACQUISITION OF LAND
[7] - DECREE PASSING THEREOF
[8] - DETENTION ORDER VALIDITY
[9] - DISQUALIFICATION
[10] - ELECTION - DELETION OF VOTES
[11] - EXTRA-JUDICIAL CONFESSION
[12] - PREFERENTIAL RIGHT
[13] - RECRUITMENT PROCESS
[14] - STATEMENT UNDER SECTION 313
[15] - STOCK BROKER - PAYMENT OF FEE
[16] - SUMMONING DUTY OF MAGISTRATE
PART 2
JUDGEMENTS FROM OTHER COURTS
[17] - ARBITRAL AWARD
[18] - ARBITRATION REFERRING DISPUTE
[19] - COMPOUNDING OF OFFENCE
[20] - IRRETRIEVABLE BREAKDOWN
[21] - LICENSE FEE PAYMENT
[22] - PROCEEDING UNDER SENIOR CITIZEN ACT
[23] - QUASHING OF FIR
[24] - SPECIFIC PERFORMANCE OF CONTRACT
[25] - TRANSFER OF CASE
PART 3
LATEST CHANGES IN MAHARASHTRA STATE ACTS AND RULES
RERA Order
PART 1
SUPREME COURT AND BOMBAY HIGH COURT JUDGEMENTS
[1] - AGE OF RETIREMENT
2023(14)WD1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Before Milind N Jadhav)
Writ Petition; Interim Application No. 12761 of 2019; 3093 of 2022, dated 28-02-2023
University
of Mumbai; Satish V Ratnaparkhi vs. Satish V
Ratnaparkhi
Maharashtra Universities Act, 1994 Sec. 5, Sec. 72, Sec. 2, Sec. 30, Sec. 26, Sec. 78 - Age of retirement - Validity of clause - Petitioner has argued that age of retirement of Respondent by virtue of the Management Council Resolution would now be 60 years - Though Respondent was retired at 62 years on the basis of affirmative performance appraisal he could have continued till 65 years - Now it is contended by Petitioner that by virtue of the Management Council Resolution, Respondent stands retired at 60 years - Management Council Resolution certainly cannot override the statutory provisions of the Universities Act as also the applicable Regulations of the AICTE Act which are in force and squarely applicable on all fours to the Respondent's case - 2016 Government Resolution would override the 2011 Government Resolution, on bare perusal of the 2016 Resolution, it cannot be said that it would alter the statutory provisions of the said Act and the applicable Regulations under the AICTE Act as that course of action would not be permissible in law - Rule or regulation where retirement is found are in the AICTE Regulations and the Government Resolution - Respondent's case that he is entitled to continue upto the age of 65 years on the strength of the Regulations of AICTE Act which bind the Institute - It therefore cannot be said that the Institute is free either to adopt the resolution passed by the Management Council contrary to the governing AICTE Regulations or the Institute would adopt any condition of service contrary to the conditions of service prescribed by the AICTE Act or the Regulations notifying service conditions applicable to all faculty of Institutes which come under this purview - Division Bench upheld the said clause and rejected the challenge thereto by giving directions for composition of the Performance Review Committee for considering performance assessment exercise of Principals, Lecturers and Professor who were bound to be found to continue till the age of 62 / 65 years as the case may be - Subsequent GR of 2016 cannot override the earlier GR of 2011 which is in consonance with the AICTE Regulations - Petition rejected
[Paras 18, 19]
Law Point - Mandatory nature of the Regulations notified by the AICTE applicable to degree level institutions. It is also a settled principle that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE Act.
Acts Referred:
Maharashtra Universities Act, 1994 Sec. 5, Sec. 72, Sec. 2, Sec. 30, Sec. 26, Sec. 78
To View or Print Full Judgement: Click Here
[2] - AMENDMENT IN BYE-LAWS
2023(14)WD2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Before Rajesh S Patil)
Writ Petition No 421 of 2012, dated 20-03-2023
Blue Haven Co-op Housing Society Ltd; vs.
State of Maharashtra; Divisional Joint Registrar, Co-op Societies, Mumbai;
Deputy Registrar, Co-op Societies, Mumbai
Maharashtra Co-operative Societies Act, 1960 - Sections 152, 22, 13 and 23 - Maharashtra Co-operative Societies Rules, 1961 - Rule 12 - Amendment - In by laws - Society vide amendment, put a condition that there will not be more than 5% members of any community - Vide impugned order, amendment was disapproved - Held - If the proposed amendment is approved, it will divide the society on community basis - Building was not constructed on community basis, on inception there were no such Bye-laws of mathematical division of 5% per community - If the proposed amendment is approved, and in a situation where a member wants to sell his flat, and the community to which he belongs already has 5% membership out of 100%, in that situation he would have to search for a buyer of his community only - In such a situation, the sale is likely to be a distress sale - Proposed amendment is not in the interest of the society - Petition dismissed.
[Para 11]
Acts Referred:
Maharashtra Co-Operative Societies Act, 1960
Sec. 152, Sec. 22, Sec. 13, Sec. 23
Maharashtra Co-Operative Societies Rules, 1961 Rule 12
To View or Print Full Judgement: Click Here
[3] - APPEAL AGAINST ACQUITTAL
2023(14)WD3
IN THE SUPREME COURT OF INDIA
[Punjab And Haryana High Court]
(Before Krishna Murari ; B V Nagarathna)
Criminal Appeal No 1904 of 2014, dated 24-02-2023
Roopwanti vs. State of Haryana and Ors
Indian Penal Code, 1860 - Sections 324, 149, 148, 302, 307, 323 and 506 - Appeal against acquittal - Power of High Court - Held - Though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced - High Court should be slow in disturbing the finding of the fact arrived at by the trial Court - While exercising its powers to reverse an acquittal, the order of the trial Court must not only be erroneous, but also perverse and unreasonable - Appeal dismissed.
[Paras 8 to 11]
Law Point - While exercising its powers to reverse an acquittal, the order of the trial Court must not only be erroneous, but also perverse and unreasonable.
Acts Referred:
Indian Penal Code, 1860 Sec. 324, Sec. 149, Sec. 148, Sec. 302, Sec. 307, Sec. 323, Sec. 506
To View or Print Full Judgement: Click Here
[4] - APPEAL AGAINST CONVICTION
2023(14)WD4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Aurangabad Bench]
(Before Nitin B Suryawanshi)
Criminal Appeal No 345 of 2018, dated 02-03-2023
Bharat Chhagan vs. State of Maharashtra; X Y Z
Indian Penal Code, 1860 - Sections 375, 377 and 376 - Code of Criminal Procedure, 1973 - Section 164 - Evidence Act, 1872 - Section 6 - Protection of Children from Sexual Offences Act, 2012 - Sections 6, 29, 30, 5, 4 and 3 - Appeal against conviction - Offence of rape - Child was of 8 years old - Held - There is sufficient evidence on record to prove that at the time of incident victim's age was 8 years-prosecution evidence is cogent, reliable and prosecution witnesses are trustworthy-prosecution has proved the incident through evidence of victim and prosecution witness, which is reliable - From the evidence brought on record the prosecution has proved that accused has committed offence of rape as well as aggravated penetrative sexual assault within the meaning of Section 3 of the said Act - Accused has failed to discharge burden of proving his innocence - Appeal dismissed.
Acts Referred:
Indian Penal Code, 1860 Sec. 375, Sec. 377,
Sec. 376
Code of Criminal Procedure, 1973 Sec. 164
Evidence Act, 1872 Sec. 6
Protection of Children from Sexual Offences Act, 2012 Sec. 6, Sec. 29, Sec. 30,
Sec. 5), Sec. 4, Sec. 3
To View or Print Full Judgement: Click Here
[5] - BURDEN OF PROOF
2023(14)WD5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Before Arif S Doctor)
Testamentary Suit; Testamentary Petition No 11 of 2017; 1360 of 2016, dated 10-03-2023
Pishorilal Sethi Alias Pishorilal Baxi
Sreechand Sethi; Veerawali Pishorilal Sethi vs. Sunil P Sethi; Brijmohan P
Sethi; Ramesh Chander Sethi; Anilkumar Pishorilal Sethi
Indian Succession Act, 1925 - Section 63 - Bombay High Court (Original Side) Rules, 1980 - Rule 384-Letter of administration - Defendant challenged the will on ground that will is fabricated and signature on will is forged - Held - Defendant failed to demonstrate fabrication on will - Defendant failed to show as to how signature on will is not of deceased - Defendant failed to discharge burden of proof - Suit is decreed.
[Paras 10 to 13]
Acts Referred:
Indian Succession Act, 1925 Sec. 63
Bombay High Court (Original Side) Rules, 1980 Rule 384
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[6] - COMPENSATION FOR ACQUISITION OF LAND
2023(14)WD6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Before R D Dhanuka ; M M Sathaye)
Writ Petition No 1082 of 2019, dated 24-02-2023
Maruti Genba Veer; Laxmibai Maruti Veer;
Dilip Maruti Veer; Kisan Maruti Veer; Aanna Genba Veer; Shivaji Genba Veer;
Ramdas Genba Veer; Ankush Genaba Veer; Lahudas Genba Veer; Sandeep Lahudas Veer
vs. State of Maharashtra; District Rehabilitation Officer, Satara; Sub
Divisional Officer, Satara; Additional Commissioner, Pune
Land Acquisition Act, 1894 Sec. 48, Sec. 5A, Sec. 11, Sec. 4 - Maharashtra Resettlement of Project Displaced Persons Act, 1976 Sec. 16, Sec. 11 - Maharashtra Project Affected Persons Rehabilitation Act, 1986 Sec. 13 - Acquisition of land - Compensation - Respondents / State. Perusal of the part II slab III of the Schedule of Maharashtra Project Affected Persons Rehabilitation Act, 1986 applicable on the date of notification shows that the for slab 'not more than 3H and 23R', area to be acquired is 'Nil' - Petitioners writ land at Dhangarwadi could not have been acquired under law - It is clear that the Petitioners were diligently following up their cause - No hesitation in exercising our extra-ordinary jurisdiction under Article 226 of the Constitution of India - Sum and substance of the case made out by the Petitioners is that this is a petition by a diligent litigant, whose land has been acquired by illegal application of slab, who has neither parted with possession nor received any compensation - Quashed and set aside - Modifying the revenue record of the writ land - Respondent State is at liberty to take back amount of compensation in respect of writ land deposited in revenue account - Petition allowed
[Paras 18,19]
Acts Referred:
Land Acquisition Act, 1894 Sec. 48, Sec. 5A,
Sec. 11, Sec. 4
Maharashtra Resettlement of Project Displaced Persons Act, 1976 Sec. 16, Sec.
11
Maharashtra Project Affected Persons Rehabilitation Act, 1986 Sec. 13
To View or Print Full Judgement: Click Here
[7] - DECREE PASSING THEREOF
2023(14)WD7
IN THE SUPREME COURT OF INDIA
[Bombay High Court]
(Before Krishna Murari ; S Ravindra Bhat)
Civil Appeal No. 1312 of 2023, 1313 of 2023, dated 21-02-2023
Sanwarlal Agrawal & Ors vs. Ashok
Kumar Kothari & Ors
Code of Civil Procedure, 1908 - Order XII, Rule 6 - Decree - Passing thereof - Held - An Executing Court can construe a decree if it is ambiguous - Court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order - Circumstances under which an order had been made would also be relevant - Appeal allowed.
[Paras 10 to 20]
Law Point - An Executing Court can construe a decree if it is ambiguous.
Acts Referred:
Code of Civil Procedure, 1908 Or. 12R. 6
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[8] - DETENTION ORDER VALIDITY
2023(14)WD8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Nagpur Bench]
(Before Vinay Joshi ; Valmiki Sa Menezes)
Criminal Writ Petition No 697 of 2022, dated 03-03-2023
Chandbee W/o Usmaan Patel vs. State of
Maharashtra; District Magistrate, Akola; Sub Divisional Police Officer, Akola;
Police Inspector, Akola
Constitution of India - Article 226 - Code of Criminal Procedure, 1973 - Section 41 - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers Drug-Offenders, Dangerous Persons Video Pirates, Sand Smugglers and Persons Engaged In Black-Marketing of Essential Commodities Act, 1981 - Section 3 - Detention order - Validity - Crime which were made basis for order were not serious - Held - Investigating Authority, in all five crimes relied upon, were of the opinion that the arrest of the detenue was not required and notice in terms of Section 41(1)(a) was enough, this could not be considered to be material for arriving at a subjective satisfaction under Section 3 of the Act - Five crimes could not have been considered to be so serious as to warrant the detention under Section 3 of the Act, which would be wholly unjustified - Rule made absolute.
[Paras 11 to 17]
Acts Referred:
Constitution of India Art. 226
Code of Criminal Procedure, 1973 Sec. 41
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers
Drug-Offenders, Dangerous Persons Video Pirates, Sand Smugglers and Persons
Engaged In Black-Marketing of Essential Commodities Act, 1981 Sec. 3
To View or Print Full Judgement: Click Here
[9] - DISQUALIFICATION
2023(14)WD9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Aurangabad Bench]
(Before Arun R Pedneker)
Writ Petition No. 12628 of 2022, 12635 of 2022, dated 06-03-2023
Shobha W/o Arun Nemade; Raman S/o Devidas
Bhole; Amol S/o Manohar Ingale; Laxmi W/o Ramesh Makasare; Sawita D/o Ramesh
Makasare; Pramod S/o Pursottam Nemade; Megha W/o Devendra Wani; Bodharaj S/o
Daga vs. State of Maharashtra; District Collector, Jalgaon; Chief Officer,
Bhusawal Municipal Council, Jalgaon; Pushpa Rameshlal Batra
Maharashtra Local Authority Members Disqualification Act, 1986 - Sections 3, 3-A and 7 - Disqualification - Municipal Council - Held - A person disqualified under Section 3 (1) (a) would also suffer disqualification under Section 3-A (1) for the remainder of the term whereas a person disqualified under Section 3 (1) (b) would further suffer disqualification under Section 3-A (2) for duration of the period of six years commencing from the date of his disqualification - Petition partly allowed.
[Paras 20 to 26]
Law Point - A person disqualified under Section 3 (1) (b) would further suffer disqualification under Section 3A (2) for duration of the period of six years commencing from the date of his disqualification.
Acts Referred:
Maharashtra Local Authority Members Disqualification Act, 1986 Sec. 3, Sec. 3A, Sec. 7
To View or Print Full Judgement: Click Here
[10] - ELECTION - DELETION OF VOTES
2023(14)WD10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Aurangabad Bench]
(Before Arun R Pedneker)
Writ Petition No. 1725 of 2023, dated 28-02-2023
Santosh S/o Rajesaheb Thorbole vs. State
of Maharashtra; District Co-operative Election Officer and District Deputy
Registrar, Co-operative Societies, Osmanabad; Assistant Registrar, Co-operative
Societies, Kallam, Osmanabad; Vividh Ka
Maharashtra Co-Operative Societies Act, 1960 Sec. 14, Sec. 13, Sec. 27, Sec. 11 - Election - Deletion of votes - Membership - As per the provisions made in the by-laws of the Society, a non-account holder cannot become a member of the Society - Petitioner, 19 deleted members have agricultural land of 10 Acre - However, it is not supported by an affidavit of those 19 members - Disputed questions of facts, answer to which may not be immediately visible without foundational facts being contested and answered - Writ petition challenging intermediate stage of an election process this court would not venture in the findings of facts, when there is an alternate remedy provided in the Statute - Deletion of 76 voters from total of 317 would materially affect the election process and the managing committee members elected from the truncated voters list may not represent the will of the majority - Non inclusion of the large number of voters will materially affect the election outcome and the elected representatives may not represent the will of the majority Election Officer has considered the matter on merits and passed the impugned order - Court while Exercising the writ jurisdiction would not go into the facts as to who are the members who hold 10 Are of land or decide the question, whether a member can vote until his membership is cancelled without further qualification of holding 10 Acre of land - Questions of fact - Alternate remedy - As there is also a resolution of the society to delete the voters not holding 10 Acre of land and since the bye-law No.6(17)(u) of the society specifically provides for cessation of membership if the entire land is sold or transferred, this matter be more properly dealt by a properly instituted Election Petition - Set aside
[Paras 18,19,20]
Law Point - Jurisdiction to interfere in election process of Co-operative Societies is well settled that this court would not ordinarily interfere with the election process of the society unless the illegality committed is patent and that the interference by this Court is only in aid of the election process - It has to be noted that 58 members are deleted out of 588 members - Ground for deletion deleted members are not holding 10 Acre of land.
Acts Referred:
Maharashtra Co-Operative Societies Act, 1960 Sec. 14, Sec. 13, Sec. 27, Sec. 11
To View or Print Full Judgement: Click Here
[11] - EXTRA-JUDICIAL CONFESSION
2023(14)WD11
IN THE SUPREME COURT OF INDIA
[Patna High Court]
(Before Abhay S Oka ; Rajesh Bindal)
Criminal Appeal No 2230 of 2010, dated 14-03-2023
Pawan Kumar Chourasia vs. State of Bihar
Indian Penal Code, 1860 - Sections 201, 34 and 302 - Extra-judicial confession - Conviction - Held - It is a weak piece of evidence - However, a conviction can be sustained on the basis of extrajudicial confession provided that the confession is proved to be voluntary and truthful - Evidentiary value of such confession also depends on the person to whom it is made - Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made - Appeal allowed.
[Paras 5 to 7]
Law Point - Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made.
Acts Referred:
Indian Penal Code, 1860 Sec. 201, Sec. 34, Sec. 302
To View or Print Full Judgement: Click Here
[12] - PREFERENTIAL RIGHT
2023(14)WD12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Nagpur Bench]
(Before M S Jawalkar)
Appeal Against Order No 45 of 2022, dated 08-03-2023
Harishbhai S/o Ramjibhai Kothari vs.
Vinodbhai S/o Ramjibhai Kothari; Vijayalaxmi Wd/o Dinesh Kothari; Deepak S/o
Dinesh Kothari; Ketan S/o Dinesh Kothari; Kaushik S/o Dinesh Kothari; Pankaj
Roshan; Ganesh S/o Marotrao Gudadhe; Hdb Finan
Transfer of Property Act, 1882 - Section 44 - Hindu Succession Act, 1956 - Section 22 - Preferential right - Plaintiff and defendants inherited property in issue - Property was of HUF - No partition was taken in property and parties were residing therein as per their arrangement - Plaintiff filed suit seeking declaration of preferential right as defendant wanted to alienate the property - Interim injunction was not granted by Court below - held - though for the convenience some family arrangement is made, it does not mean that there was partition by metes and bounds - Most important is that the plaintiff was ready and willing to pay the same amount which the defendant No. 1 is receiving by proposed sale deed - Trial Court ought to have considered that if such injunction would not be granted the very purpose of filing of suit will frustrate - Ultimately statutory rights under Section 22 would be defeated and Trial Court has not considered what hardship would suffer other co-owners of the family - Order is liable to be quashed and set aside - Appeal allowed partly.
[Paras 20 to 27]
Law Point - Though for the convenience some family arrangement is made, it does not mean that there was partition by metes and bounds.
Acts Referred:
Transfer of Property Act, 1882 Sec. 44
Hindu Succession Act, 1956 Sec. 22
To View or Print Full Judgement: Click Here
[13] - RECRUITMENT PROCESS
2023(14)WD13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
[Nagpur Bench]
(Before Vinay Joshi ; Valmiki Sa Menezes)
Writ Petition No 8041 of 2022, dated 03-03-2023
Chandrapur District Central Co-operative
Bank Ltd; Santoshsingh S/o Chandansingh Rawat vs. State of Maharashtra;
Commissioner of Co-operation, Pune; Divisional Joint Registrar, Co-operative
Societies, Nagpur; District Deputy Registrar Co-operative Societies,
Chandrapur; Manohar S/o Laxman P
Constitution of India - Articles 166, 163 and 154 - Maharashtra Co-operative Societies Act, 1960 - Sections 88 and 73-AAA - Karnataka Government (Allocation of Business) Rules, 1977 - Rules 9, 10, 15, 5, 4 and 31 - Recruitment process - Chief Minister stayed recruitment process of staff of Co-operative Bank - Bank was not funded by state - Chief Minister was not having charge of that department - Held - Chief Minister was not the head of the Co-operation Department, but the said department was assigned to a separate Minister - There is no authority/power vested in the Chief Minister as per Rules of Business and Instructions to have supervisory powers over the decision taken by the concerned Minister - Once the powers are distributed by the Rules of Business and Instructions, there must be an express provision authorizing the Chief Minister to indulge in the matter assigned to the particular Ministry - Intervention of the Chief Minister is wholly unwarranted and without the authority of law - Petition allowed.
[Paras 55 to 61]
Acts Referred:
Constitution of India Art. 166, Art. 163,
Art. 154
Maharashtra Co-Operative Societies Act, 1960 Sec. 88, Sec. 73AAA
Karnataka Government (Allocation of Business) Rules, 1977 Rule 9, Rule 10, Rule
15, Rule 5, Rule 4, Rule 31
To View or Print Full Judgement: Click Here
[14] - STATEMENT UNDER SECTION 313
2023(14)WD14
IN THE SUPREME COURT OF INDIA
[Madras High Court]
(Before Dinesh Maheshwari ; Bela M Trivedi)
Criminal Appeal No. 762 of 2012, dated 22-02-2023
Vahitha vs. State of Tamil Nadu
Indian Penal Code, 1860 - Sections 300 and 302 - Code of Criminal Procedure, 1973 - Section 313 - Statement - Under Section 313 - Obligation - Held - Obligation to put material evidence to the accused under Section 313 is upon the Court - One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires - But once he does not avail this opportunity, then consequences in law must follow - Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction - Appeal dismissed.
[Paras 12 to 20]
Law Point - Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction.
Acts Referred:
Indian Penal Code, 1860 Sec. 300, Sec. 302
Code of Criminal Procedure, 1973 Sec. 313
To View or Print Full Judgement: Click Here
[15] - STOCK BROKER - PAYMENT OF FEE
2023(14)WD15
IN THE SUPREME COURT OF INDIA
(Before Ajay Rastogi ; Bela M Trivedi)
Civil Appeal No. 2402 of 2008, 5636 of 2007, dated 20-03-2023
GPSK Capital Private Limited (Formerly
Known As Mantri Finance Limited) vs. Securities and Exchange Board of India
Securities and Exchange Board of India Act, 1992 - Section 15-Z - Stock broker - Payment of fee - Held - Stock broker not only has to obtain a certificate of registration from SEBI for each of the stock exchange where he operates, at the same time, has to pay ad valorem fee prescribed in terms of Part III annexed to Regulation 10 of the Regulations, 1992 in reference to each certificate of registration from SEBI in terms of the computation prescribed under Circular dated 28th March, 2002 and fee is to be paid as a guiding principle by the stock broker which is in conformity with the scheme of Regulations 1992 - Appeal allowed.
[Paras 12 to 20]
Law Point - Stock broker has to obtain a certificate of registration from SEBI for each of the stock exchange where he operates, at the same time, has to pay ad valorem fee
Acts Referred:
Securities and Exchange Board of India Act, 1992 Sec. 15Z
To View or Print Full Judgement: Click Here
[16] - SUMMONING DUTY OF MAGISTRATE
2023(14)WD16
IN THE SUPREME COURT OF INDIA
[Kerala High Court]
(Before Dinesh Maheshwari ; Bela M Trivedi)
Criminal Appeal; Special Leave Petition (Crl) (Special Leave Petition (Criminal)) No 836 of 2023, 837 of 2023, 838 of 2023, 839 of 2023, 840 of 2023, 841 of 2023; 1487 of 2022, 1488 of 2022, 1489 of 2022, 1490 of 2022, 1491 of 2022, 1492 of 2022, 1493 of 2022, dated 17-03-2023
Cardinal Mar George Alencherry; Eparchy of
Bathery; Catholic Diocese of Thamarassery vs. State of Kerala & Anr
Indian Penal Code, 1860 - Sections 423, 34, 420, 409, 468, 465, 467, 120-B, 418 and 406 - Code of Criminal Procedure, 1973 - Sections 190, 156, 482, 203, 200 and 202 - Summoning - Duty of Magistrate - Held - Summoning of an accused is a serious matter and therefore the Magistrate before issuing the summons to the accused is obliged to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face any frivolous complaint, nonetheless one of the objects of Section 202 Cr.P.C. is also to enable the Magistrate to prosecute a person or persons against whom grave allegations are made - Just as it is necessary to curtail vexatious and frivolous complaints against innocent persons, it is equally essential to punish the guilty after conducting a fair trial - Order accordingly.
[Paras 17 to 28]
Law Point - Summoning of an accused is a serious matter and therefore the Magistrate before issuing the summons to the accused is obliged to scrutinize carefully the allegations made in the complaint.
Acts Referred:
Indian Penal Code, 1860 Sec. 423, Sec. 34,
Sec. 420, Sec. 409, Sec. 468, Sec. 465, Sec. 467, Sec. 120B, Sec. 418, Sec. 406
Code of Criminal Procedure, 1973 Sec. 190, Sec. 156, Sec. 482, Sec. 203, Sec.
200, Sec. 202
To View or Print Full Judgement: Click Here
PART 2
JUDGEMENTS FROM OTHER COURTS
[17] - ARBITRAL AWARD
2023(14)WD17
HIGH COURT FOR THE STATE OF TELANGANA
(Before P Naveen Rao ; J Sreenivas Rao)
Com Ca (Commercial Court Appeal) No 35 of 2022, dated 10-02-2023
Sree Durga Estates, A Registered
Partnership Firm vs. J A S Padmaja, W/o J Venkata Ramudu
Contract Act, 1872 - Section 56 - Arbitration and Conciliation Act, 1996 - Sections 34, 9 and 37 - Commercial Courts Act, 2015 - Section 13 - Arbitral award - Confirmed by Court under Section 34 and in appeal under Section 37 - Power of High Court - Held - As far as interference with an order made under Section 34, as per Section 37, is concerned, it cannot be disputed that such interference under Section 37 cannot travel beyond the restrictions laid down under Section 34 - Court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision - in case an arbitral award has been confirmed by the Court under Section 34 and by the Court in an appeal under Section 37, this Court must be extremely cautious and slow to disturb such concurrent findings - Appeal dismissed.
[Paras 15 to 20]
Law Point - In case an arbitral award has been confirmed by the Court under Section 34 and by the Court in an appeal under Section 37, this Court must be extremely cautious and slow to disturb such concurrent findings.
Acts Referred:
Contract Act, 1872 Sec. 56
Arbitration and Conciliation Act, 1996 Sec. 34, Sec. 9, Sec. 37
Commercial Courts Act, 2015 Sec. 13
To View or Print Full Judgement: Click Here
[18] - ARBITRATION REFERRING DISPUTE
2023(14)WD18
HIGH COURT FOR THE STATE OF TELANGANA
(Before Ujjal Bhuyan)
Arbitration Application No 72 of 2022, dated 24-02-2023
Ranganath Properties Private Limited vs.
Phoenix Tech Zone Private Limited
Customs Act, 1962 - Section 7 - Arbitration and Conciliation Act, 1996 - Section 11 - Special Economic Zones Act, 2005 - Sections 4, 42, 3, 2, 23, 51, 8 and 3 - Special Economic Zones Rules, 2006 - Rule 8 - Arbitration - Referring dispute - Held - As per the scheme of Section 42, any dispute of civil nature is required to be adjudicated by the Court designated under sub-section (1) of Section 23 but if such a Court has not been designated, such a dispute shall be referred to arbitration - When a dispute is referred to arbitration, the arbitrator is to be appointed by the Central Government - Since Section 42 is a statutory provision with a non-obstante clause, it would have an overriding effect over development agreements - Not only Section 42 has an overriding effect, even Section 51 of the SEZ Act makes it clear that provisions of the SEZ Act as a whole shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the SEZ Act - Application dismissed.
[Paras 25 to 40]
Acts Referred:
Customs Act, 1962 Sec. 7
Arbitration and Conciliation Act, 1996 Sec. 11
Special Economic Zones Act, 2005 Sec. 4, Sec. 42, Sec. 3, Sec. 2, Sec. 23, Sec.
51, Sec. 8, Sec. 3
Special Economic Zones Rules, 2006 Rule 8
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[19] - COMPOUNDING OF OFFENCE
2023(14)WD19
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(Before Samir J Dave)
Criminal Revision Application; Criminal Miscellaneous Application (For Condonation Of Delay); Criminal Miscellaneous Application (Regular Bail) No. 128 of 2023; 1 of 2023; 2 of 2023, dated 21-02-2023
Riteshkumar Ajitkumar Thakkar vs. State of
Gujarat
Limitation Act, 1963 - Section 5 - Negotiable Instruments Act, 1881 - Section 138 - Compounding of offence - Sentence was awarded - Parties entered into compromise - No objection was filed by complainant if accused is acquitted - Held - Revision application allowed.
[Paras 7 to 11]
Acts Referred:
Limitation Act, 1963 Sec. 5
Negotiable Instruments Act, 1881 Sec. 138
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[20] - IRRETRIEVABLE BREAKDOWN
2023(14)WD20
IN THE HIGH COURT AT CALCUTTA
[Port Blair Bench]
(Before Subrata Talukdar ; Rabindranath Samanta)
F A T No 3 of 2020, dated 09-02-2023
A Selvakumar vs. S Bhuvaneshwari
Hindu Marriage Act, 1955 - Section 13 - Divorce - Irretrievable breakdown - By husband - Held - Husband having by his own conduct brought the matrimonial relationship to a point of irretrievable breakdown cannot enjoy the benefit of his misdeeds - FAT dismissed.
[Paras 10 to 15]
Law Point - Husband having by his own conduct brought the matrimonial relationship to a point of irretrievable breakdown cannot enjoy the benefit of his misdeeds.
Acts Referred:
Hindu Marriage Act, 1955 Sec. 13
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[21] - LICENSE FEE PAYMENT
2023(14)WD21
DELHI HIGH COURT
(Before Mini Pushkarna)
C S (Os) (Civil Suit (Os)); I A (Interlocutory Application) No 226 of 2019, 607 of 2021; 15947 of 2019, 1865 of 2020, 4501 of 2021, 3965 of 2022, 10622 of 2022, 15242 of 2021, 1365 of 2022, dated 24-02-2023
Ashish Khanna & Anr; M/s Roshni Hotels
Pvt Ltd vs. Roshni Hotels Pvt Ltd & Ors ; Ashish Khanna & Anr
Code of Civil Procedure, 1908 - Order VIII, Rule 10, Sections 151, 94, Order XXXIX, Rule 10 - Negotiable Instruments Act, 1881 - Section 138 - Easements Act, 1882 - Section 60 - License fee - Payment thereof - Held - Even if the defendant was to succeed in its suit and be declared as a permanent licensee, even then the defendant would be liable to make payments towards the licence fees to the plaintiffs - Merely because claim of the defendant is pending with respect to its claim for declaration as a permanent licensee of the premises in question, would not be a ground to deny the payment of licence fees to the plaintiffs under the registered licence deed between the parties - Order accordingly.
[Paras 35 to 51]
Law Point - Merely because claim of the defendant is pending with respect to its claim for declaration as a permanent licensee of the premises in question, would not be a ground to deny the payment of licence fees to the plaintiffs under the registered licence deed between the parties.
Acts Referred:
Code of Civil Procedure, 1908 Or. 8R. 10,
Sec. 151, Sec. 94, Or. 39R. 10
Negotiable Instruments Act, 1881 Sec. 138
Easements Act, 1882 Sec. 60
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[22] - PROCEEDING UNDER SENIOR CITIZEN ACT
2023(14)WD22
DELHI HIGH COURT
(Before Mini Pushkarna)
C S (Os) (Civil Suit (Os)); I A (Interlocutory Application) No 528 of 2019; 14315 of 2019, dated 24-02-2023
Aditya Gupta vs. Narender Gupta & Ors
Code of Civil Procedure, 1908 Or. 39R. 2, Or. 39R. 1, Sec. 151 - Specific Relief Act, 1963 Sec. 41 - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Sec. 23, Sec. 2, Sec. 27 - Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 Rule 22 - Proceeding under Senior Citizen Act - Jurisdiction of civil courts barred - Application for ex-parte adinterim injunction with prayer for staying further proceedings - Parents have sought assistance of the Maintenance Tribunal in removing the plaintiff from the suit property, where the parties are jointly residing - Held, Senior Citizens have every right to protect themselves and in case of ill-treatment and abuse by their children/ legal heirs, can approach the Maintenance Tribunal for their eviction from their property of any kind, which includes both Ancestral as well as Self Acquired Property - Application is dismissed.
[Paras 25 to 31]
Law Point: Senior Citizens have every right to protect themselves
Acts Referred:
Code of Civil Procedure, 1908 Or. 39R. 2, Or.
39R. 1, Sec. 151
Specific Relief Act, 1963 Sec. 41
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Sec. 23, Sec.
2, Sec. 27
Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 Rule
22
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[23] - QUASHING OF FIR
2023(14)WD23
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(Before Gita Gopi)
Criminal Miscellaneous Application No 5336 of 2018, dated 09-02-2023
Ketul Manharbhai Patel & Others vs.
State of Gujarat & Others
Indian Penal Code, 1860 - Sections 504, 114, 506 and 386 - Code of Criminal Procedure, 1973 - Section 482 - Gujarat Money-Lenders Act, 2011 - Sections 40, 5 and 42 - FIR - Quashing thereof - Parties entered into settlement - Affidavit was filed in this regard - Held - Continuation of proceeding would amount to wastage of judicial time - Application allowed.
[Paras 6 to 9]
Acts Referred:
Indian Penal Code, 1860 Sec. 504, Sec. 114,
Sec. 506, Sec. 386
Code of Criminal Procedure, 1973 Sec. 482
Gujarat Money-Lenders Act, 2011 Sec. 40, Sec. 5, Sec. 42
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[24] - SPECIFIC PERFORMANCE OF CONTRACT
2023(14)WD24
IN THE HIGH COURT AT CALCUTTA
(Before Tapabrata Chakraborty ; Partha Sarathi Chatterjee)
F A (First Appeal) No 131 of 2017, dated 15-02-2023
Shyamal Kumar Roy vs. Sushil Kumar Agarwal
Code of Civil Procedure, 1908 - Order II, Rule 2 - Arbitration Act, 1940 - Section 34 - Limitation Act, 1963 - Article 54 - Arbitration and Conciliation Act, 1996 - Section 8 - Specific Relief Act, 1963 - Section 14 - Specific performance of contract - Time - Held - Conduct of the parties plays important role in the matter of exercise of discretionary jurisdiction by a Court of law and intention of the parties can be gathered from the conduct of the parties - Person coming to Court with pair of dirty hands cannot claim equity from the Court and Court shall exercise such discretion considering totality of facts and circumstances - Mere fixation of time for performance in the contract will not lead the Court to hold that time was the essence of contract - Answer to the query as to whether time was the essence of contract shall be gathered from the conduct of the parties - Appeal dismissed.
[Paras 30 to 42]
Law Point - Mere fixation of time for performance in the contract will not lead the Court to hold that time was the essence of contract.
Acts Referred:
Code of Civil Procedure, 1908 Or. 2R. 2
Arbitration Act, 1940 Sec. 34
Limitation Act, 1963 Art. 54
Arbitration and Conciliation Act, 1996 Sec. 8
Specific Relief Act, 1963 Sec. 14
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[25] - TRANSFER OF CASE
2023(14)WD25
HIGH COURT OF ANDHRA PRADESH : AMARAVATI
(Before Bandaru Syamsunder)
Transfer Civil Miscellaneous Petition No 307 of 2022, dated 13-02-2023
Kudithipudi Divya vs. Karnati Satish Babu
Code of Civil Procedure, 1908 Sec. 24 - Hindu Marriage Act, 1955 Sec. 13B - Transfer of case - General power of transfer and withdrawal - matrimonial proceedings - Transfer Civil Petition is filed by the petitioner/wife against the respondent/husband - Convenience of wife has to be considered, but at the same time it has to be considered whether the contention of the petitioner/ wife, seeking transfer on the grounds mentioned in her petition are tenable can be accepted - Held, court have to balance the convenience and inconvenience of the wife and also husband - Petition seeking divorce by mutual consent, due to that there is no necessity for the petitioner or the respondent to attend the Court frequently and their attendance before the Court is required whenever the Court asked - Petition filed by the petitioner is not maintainable either in law or on facts - Petition is dismissed.
[Paras 8 to 11]
Law Point : Court have to balance the convenience and inconvenience of the wife and also husband
Acts Referred:
Code of Civil Procedure, 1908 Sec. 24
Hindu Marriage Act, 1955 Sec. 13B
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PART 3
LATEST CHANGES IN MAHARASHTRA STATE ACTS AND RULES
MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
Order No. 44/2023
No. MahaRERA/Secy/File No. 27/238/2023 Date: 20-02-2023
Sub: Prescribed fees payable by a proprietary concern while seeking registration or renewal of registration as real estate agents.
Whereas, Government of India has enacted the Real Estate (Regulation and Development) Act, 2016 (the Act) and all sections of the Act have come into force with effect from 01.05.2017.
And whereas, the Government of Maharashtra vide Notification No. 23 dated 08.03.2017 has established the Maharashtra Real Estate Regulatory Authority, hereinafter referred to as "MahaRERA" or as "the Authority".
And whereas, the Government of Maharashtra has notified the Maharashtra Real Estate (Regulation and Development) (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules,2017 (the Rules) for carrying out the provisions of the Act.
And whereas, whereat the Authority has notified the Maharashtra Real Estate Regulatory Authority (General) Regulations, 2017 (the Regulations) to carry out the purposes of the Act.
And whereas, the Authority under Section 37 of the Act and Regulation 38 of the Regulations is vested with the powers to issue directions to the Promoters, real estate agents and allottees from time to time as it may consider necessary.
And whereas, Chairperson, MahaRERA is vested with the powers of general superintendence and directions in the conduct of the affairs of MahaRERA under Section 25 of the Act.
And whereas, Section 9(1) of the Act, mandates that no real estate agent shall facilitate the sale or purchase of or act on behalf of any person to facilitate the sale or purchase of any plot, apartment, unit or building as the case may be in a real estate project or part of it being the part of the real estate project registered under Section 3 of the Act being sold by a promoter without obtaining registration.
And whereas, in compliance of Section 9(2) of the Act, every real estate agent is required to make an application to the Authority for registration in such form, within such time and accompanied by such fees and documents as prescribed.
And whereas, Rule 11(3) and Rule 13(1) of the Rules prescribes the fees payable by a real estate agent for registration as well as for renewal of registration which is as under:
a) Rs. 10,000/- (Rupees Ten Thousand only) in case of applicant being an individual; and
b) Rs. 1,00.000/- (Rupees One Lakh only) in case of applicant being other than individual.
And whereas, the Authority has noticed that presently a proprietary concern is classified under the category "Other than Individual" and accordingly the fees that is collected is as prescribed for the said category.
And whereas, the Authority is of the opinion that a proprietary concern should be classified under the category "Individual" and not under the category "Other than Individual".
In view of the above the following directions are issued:-
a) The fees payable by a real estate agent who is a proprietary concern or a proprietor of a proprietary concern shall be Rs. 10,000/- (Rupees Ten Thousand Only) i.e. the fees prescribed for the category "Individual".
b) The directions at (a) above shall be applicable prospectively.
This Order shall come into force with effect from the date of this Order.
(As approved by Authority)
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Published by:
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