Recent trends in Domain Name Disputes – Arbitration’ – A KFCRI ‘Sector Specific’ Webinar Series – 06.09.2020

About KFCRI:

Kovise Foundation Conflict Resolution International (KFCRI) is a first of its kind institution providing ADR Practice Accreditation in all aspects of ADR as well as maintain a functioning administrative centre to manage and empower Dispute Resolution Mechanisms used by clients worldwide. KFCRI , under the aegis of  KOVISE FOUNDATION to disseminate the required Research and Development of Conflict Resolutions thereby facilitating peace and economic balance with effective resolution of all categories of disputes in socio, economic and political arena worldwide administering Alternate Dispute Resolution (ADR) Mechanism with Institutional Framework along with long term capacity building programmer seeding globally.

During this challenging time where most of the world is restricted within the vicinity of their homes, we may have less than a few tasks to engage in. Physical movements may be restricted but the keen urge of a human being to indulge in the search of knowledge can never be restricted. In furtherance to this initiative, we have planned to conduct a Sector specific series in the form of Online Webinars.

Kovise Foundation Conflict Resolution International (KFCRI) under the guidance of the Project Advisor, Mr. V. Inbavijayan the institution will be conducting a Webinar on the Topic ‘Recent trends in Domain Name Disputes – Arbitration’

About the Webinar:

The Panelist leading the webinar is Mrs. Harini Narayanswamy. She has her practice as an International Arbitrator & Intellectual Property Attorney and also is a Domain Name Panelist at the World Intellectual Property Organization (WIPO), Geneva.

The session shall be moderated by Mrs. Gaana Priya, a Research Associate member of KFCRI.

Date: 6th September 2020, Sunday

Time: 3:00 PM – 4:00 PM (IST)
          10:30 AM – 11:30 AM (BST)

Topic: ‘Recent trends in Domain Name Disputes – Arbitration’ – A KFCRI ‘Sector Specific’ Webinar Series – 06.09.2020

Register in advance for this webinar:
https://us02web.zoom.us/webinar/register/WN_jys0yHptRfOuu0bkn0acyQ

After registering, you will receive a confirmation email containing a link to join and more information about the webinar.

For any queries relating to KFCRI as an Accreditation Body and a Service Provider email us at kfcri.adr@gmail.com.

For any queries relating to KFCRI as an Accreditation Body and a Service Provider email us at kfcri.adr@gmail.com or connect with Shanmuga Dev (+91 7358579597) or  Suvethan.G.S (+91 9042343543) or Sharukumar.S.I (+91 9003184869) or or Sri Nikila (+91 9865851999).

Our Website: www.kfcri.org

SUPREME COURT UPHOLDS THE VALIDITY OF THE GUIDELINES ISSUED BY UNIVERSITY GRANTS COMMISSION TO CONDUCT EXAMS IN 2020

The 3-Judge Bench of the #SupremeCourt has in a recent case of Praneeth K and Others vs University Grants Commission and Others along with nine other Petitions,passed a Judgment dated 28-08-2020 and upheld the validity of the #Guidelines issued by the University Grants Commission (#UGC) dated 06-07-2020, directing all #universities and #colleges in the country to conduct terminal semester/final year #examinations by #30-09-2020.

In some of these tagged matters, various students, youth organisations and associations of teachers from across the country have challenged the Guidelines on Examinations and Academic Calendar for the Universities dated 06-07-2020 issued by the UGC in view of the #COVID-19 Pandemic and subsequent Lockdown situation, and the Office Memorandum (O.M.) dated 06-07-2020 issued by the Ministry of Human Resource Development (Ministry) in that regard.

A copy of the Guidelines dated 06-07-2020 issued by UGC is attached below:

A copy of the O.M. dated 06-07-2020 issued by the Ministry is attached below:

These Guidelines and O.M. have directed all the Colleges and Universities to conduct terminal semester/final year examinations by 30-09-2020 in online or offline or both online-offline mode. The Guidelines have further directed that the Colleges and Universities shall grant degrees only after conducting such exams.

In other tagged matters, some students have prayed that the State of Maharashtra and the State of West Bengal should comply with the UGC Guidelines dated 06-07-2020, as these States had decided not to conduct the final term examinations.

The Apex Court made the following observations in these matters:

1- That Section 12 of the UGC Act 1956 (the Act) provides that UGC has the duty to take all steps for the promotion and coordination of University education and for the determination and maintenance of teaching, examination and research in Universities. The term ‘steps’ includes issuance of guidelines, directions, circulars, etc. Therefore, the UGC is well within its power given under Section 12 of the Act to issue the Guidelines dated 06-07-2020, as they relate to coordination and determination of standards of higher education in institutions.

2- That under Regulation 6.1 of the UGC (Minimum Standards of Instruction for the Grant of the Master’s Degree through Formal Education) Regulations, 2003 (the Regulations), it is the statutory obligation of the Universities and Colleges to adopt the Guidelines issued by the UGC in respect of conduct of examinations.

3- But the Universities have control over the manner of conducting the terminal semester/final year examinations, i.e. whether in online mode or offline mode or both online-offline mode.

4- That the examinations for Final Year students are more important than that of students of intermediate or initial years of College. The students who appear in their Final Year examinations, have the chance to explore employment opportunities or higher education courses, unlike the students in intermediate courses. Thus, these Guidelines are not unreasonable, arbitrary, discriminative and violative of Article 14 of the Constitution of India 1950.

5- Further, the UGC has rightly fixed a uniform date of completion of Final Year examinations applicable throughout the country, as this would enable the Final Year students to apply for admission in higher education courses or for employment.

6- That the institutions have to comply with the UGC Standard Operating Procedure (SOP) while conducting the examinations. The said SOP provides that the examination centre floors, doors, gates, etc have to be disinfected, fresh mask and gloves to be used by exam functionaries, sanitisers should be available in the examination rooms, etc.

7- That the State Governments and State Disaster Management Authority also have to comply with the said Guidelines dated 06-07-2020 and conduct the terminal semester/final year examinations by 30-09-2020. Although, the UGC may consider extending the deadline for any particular state, if they approach UGC.

Therefore, the Supreme Court upheld the validity of the Guidelines dated 06-07-2020 as they are statutory in nature and have been issued for the welfare of the students. Thus, the Apex Court directed the Universities and Colleges across the country to adopt and comply with the said Guidelines and SOP, while conducting the terminal semester/final year examinations.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

FORMULATION OF SUBSTANTIAL QUESTION OF LAW TO DECIDE SECOND APPEAL IS A MANDATORY REQUIREMENT

Recently, the Hon’ble #SupremeCourt of India in the case of Nazir Mohamed v. J. Kamala, (Civil Appeal Nos. 2843-2844 of 2010), passed a Judgment on 27.08.2020, and held that formulation of #substantialquestionoflaw by the #HighCourt is mandatory and mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the Civil Procedure Code, 1908 (‘CPC, 1908’).

Section 100 of the CPC, 1908 states that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

The facts of the case before the Supreme Court relate to the Respondent/Plaintiff, who filed a suit for declaration of ownership of the suit premises, a direction to the Appellant/Defendant to deliver #possession of the suit premises to the Respondent/Plaintiff, a decree for payment of arrears of rent/occupation charges in respect of the suit premises, and a decree for payment of future profits. The Trial Court dismissed the Suit. The Respondent/Plaintiff filed the First Appeal against the said dismissal. The First Appellate Court allowed and passed an Order in favour of the Respondent/Plaintiff that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the suit property owned by him, but not to recovery of possession, since the Appellant/Defendant herein had been enjoying the suit property for a long time.

Thereafter, the Appellant/Defendant filed the #SecondAppeal against the Judgment of the First Appellate Court and the Respondent/Plaintiff also filed the Second Appeal, both before the Madras High Court, against the same Judgment of the First Appellant Court to the extent that the Respondent/Plaintiff had been denied the relief of delivery of possession in respect of his half share in the suit premises.

The High Court dismissed the Second Appeal filed by the Appellant/Defendant and allowed the Second Appeal filed by the Respondent/Plaintiff. The High Court held that the Respondent/Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree. In all other respects, the decree of the First Appellate Court was confirmed.

The Appellant/Defendant approached the Hon’ble Supreme Court against the Judgment of the High Court. The contention of the Appellant/Defendant before the Supreme Court was that there was no question of law involved in either of the Second Appeals, far less any substantial question of law, to warrant inference of the High Court in Second Appeals. The Hon’ble Supreme Court while analyzing the said contention observed as follows:

  1. In Hero Vinoth v. Seshammal [2 (2006) 5 SCC 545], the Supreme Court summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraph of this Judgment reads as below:

“When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”

  1. The Court explained that to be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. It further stated that to be a question of law “involved in the case”, there must be first, a foundation for it, laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by courts of facts, and it must be necessary to decide the question of law for a just and proper decision of the case.
  2. The Court specifically said that where no such question of law or even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a Second Appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami [AIR 1997 SC 1047].

Based on its observations, the Hon’ble Supreme Court summarized the principles relating to Section 100 CPC relevant for this case as:

  1. An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
  2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
  3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle.
  4. The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.

Therefore, the Supreme Court in this case observed that when no substantial question of law is formulated, but a second appeal is decided by the high court, the judgment of the high court is vitiated in law.  the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the high court, the high court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

The Supreme Court finally found and held that the High Court, with greatest of respect, has patently erred in its conclusion that there was contradiction in the findings of the First Appellate Court. The questions framed by the High Court, is a question of law, far less a substantial question of law. The Judgment and Order of the High Court under Appeal does not discuss or decide any question of law involved in the Case, not to speak of substantial question of law. Therefore, the Judgment and Order of the High Court under Appeal is set aside.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

STRANGERS CANNOT FILE AN APPEAL UNLESS THEY SATISFY THE COURT THAT THEY ARE AGGRIEVED PERSONS

Recently, the Hon’ble Supreme Court of India in the case of Sri V. N. Krishna Murthy & Anr. Etc. Etc. v. Sri Ravikumar & Ors. Etc. Etc., [Civil Appeal Nos. 2701-2704/2020],  vide its Judgment dated 21.08.2020, reiterated and held that a #stranger cannot be permitted to file an #appeal in any proceedings unless he satisfies the Court that he falls within the category of #aggrieved persons.

Under the Code of Civil Procedure 1908, Sections 96 and 100 provide for preferring an appeal from any original decree or from decree in appeal respectively. These
provisions do not enumerate the categories of persons who can file an appeal. However, the Court referred to the case of Smt. Jatan Kumar Golcha Vs. Golcha Properties Private Ltd [(1970) 3 SCC 573], to state that it is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the Appellate Court.

That the brief facts of the instant case relate to the disputes of a land situated at Village Jakkur, Bengaluru, North Taluk, in respect of which an Agreement to Sell and General Power of Attorney was executed by the Respondents in favour of some other Respondents herein, granting absolute rights for the sale of the said land. A Suit for permanent injunction was filed by one of the Respondents before the Trial Court for cancellation of the Agreement to Sell executed with regard to the disputed land. The Trial Court granted the permanent injunction to the Plaintiffs, who are Respondents herein. The Appellants, who were in possession of the disputed land through a sale deed, filed an Application for their impleadment during the pendency of the Suit before the Trial Court, which was dismissed by the Trial Court. The Order was challenged by filing a Writ Petition before the High Court which was dismissed as infructuous, as the Suit itself came to be decided, in the meantime. Aggrieved by the Judgment and Decree of the Trial Court, the Appellants preferred Appeals duly accompanied by an Application seeking leave to file an Appeal against the Judgment and Decree. The Hon’ble High Court, vide a common Judgment declined to grant leave to file an Appeal and rejected the Application.

The issue arises before the Hon’ble Supreme Court was whether the Appellants had the locus standi to question the Judgment and Decree passed by the Trial Court and whether the High Court was justified in rejecting their leave to Appeal.

The Court while dealing with the maintainability of an Appeal by a person who is not a party to a suit has relied on the following Judgments:

i) In the case of State of Punjab & Ors. Vs. Amar Singh & Anr [(1974) 2 SCC 70], the Court observed that “Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.”

ii) In the case of Baldev Singh Vs. Surinder Mohan Sharma and Ors [(2003) 1 SCC 34], the Supreme Court held that an appeal under Section 96 of the Civil Procedure Code, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of ‘person aggrieved’, it was observed in paragraph 15 as under:- “A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned.”

iii) In the case of A. Subash Babu Vs. State of A.P. and Anr. [(2011) 7 SCC 616], the Supreme Court held as under:-“The expression ‘aggrieved person’ denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant’s interest and the nature and extent of the prejudice or injuries suffered by him.”

iv) In the case of Srimathi K. Ponnalagu Ammani Vs. The State Of Madras represented by the Secretary to the Revenue Department, Madras and Ors., [66 Law Weekly 136], the Supreme Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words:-

“Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.”

In view of the aforesaid Judgments, the Hon’ble Supreme Court observed that the Appellants have failed to place any material or demonstrate as to how the Judgment and Decree passed by the Trial Court adversely or prejudicially affects them. Merely saying that the Appellants are prejudicially affected by the Decree is not sufficient. It has to be demonstrated that the Decree affects the legal rights of the Appellants and would have adverse effect when carried out.

Thus, the Hon’ble Court held that the Appellants can neither be said to be aggrieved persons nor bound by the Judgment and Decree of the Trial Court in any manner. The relief claimed in the Suit was cancellation of agreement to sell. On the other hand, the sale deeds which were the basis of the claim of the Appellants were executed on the basis of General Power of Attorney, and had nothing to do with the Agreement to Sell, which was subject matter of Suit. The Judgment and Decree of the Trial Court is in no sense a judgment in rem and it is binding only as between the Plaintiffs and Defendants of the Suit, and not upon the Appellants. The Appeal was dismissed and the Judgment of the High Court was upheld by the Court.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

SUPREME COURT REITERATES PRINCIPLES OF ARBITRABILITY OF CIVIL DISPUTES

Recently, the Supreme Court has in a case of Avitel Post Studioz Limited & Ors. Vs HSBC PI Holdings (Mauritius) Limited passed a Judgment dated 19-08-2020 and upheld the validity of the #arbitration proceedings initiated by the Respondent-#HSBC in a matter of serious allegation of #fraud and #misrepresentation committed by Avitel-Appellant Company.

In this case, Avitel Post Studioz Limited & Ors. (Avitel) and HSBC PI Holdings (Mauritius) Limited (HSBC) entered into a Share Subscription Agreement on 06-05-2011 (#Agreement) whereby, the Parties agreed that HSBC would invest in the equity capital of Avitel for a consideration of USD 60 Million. In the said Agreement, Avitel made representation to HSBC that their investment would be used for purchasing equipment and material to service a contract with British Broadcasting Corporation (#BBC). The said Agreement provided that in case of any #dispute arising out of the terms of the Agreement, the Parties would resort to arbitration as per the Singapore law at the Singapore International Arbitration Centre (#SIAC). Further, they may file a petition under Section 9 of the Arbitration and Conciliation Act 1996 (the Act) for seeking any interim relief during the pendency of such arbitral proceedings.

Around April 2012, HSBC suspected that there was no existing BBC Contract with Avitel and that Avitel had falsely and fraudulently represented facts to HSBC in order to secure investment. Thus, HSBC initiated arbitral proceedings at SIAC, where the Arbitrator passed two Interim Awards against Avitel. The said Interim Awards allowed HSBC to have Avitel’s accounts frozen in India and UAE and also, to conduct investigations into the financial affairs of Avitel through Ernst & Young and KPMG Dubai.

Thereafter, HSBC filed a Petition under Section 9 of the Act in the Bombay High Court, whereby, the Single Judge Bench of the Bombay High Court passed an Order dated 22-01-2014 and directed Avitel to deposit and maintain a balance of USD 60 Million in their Bank, as HSBC had a strong chance of success at SIAC arbitral proceedings. Further, Avitel was directed to refrain from withdrawing any amount from its account until further orders. The High Court also observed that the Parties had agreed to Singapore law as governing law and SIAC as dispute resolution forum in the said Agreement. Thus, the challenge against jurisdiction of the Arbitral Tribunal was dismissed. Aggrieved by the said Order dated 22-01-2014, Avitel filed an appeal before the Division Bench of the Bombay High Court.

In the said appeal, the Division Bench of the Bombay High Court passed an Order dated 31-07-2014 and upheld the Order dated 22-01-2014 of the Single Bench. But the Division Bench reduced the deposit amount of USD 60 Million to USD 30 Million to be maintained by Avitel in their Bank as damages to HSBC. The Division Bench further observed that the dispute pertaining to the act of fraud and misrepresentation by Avitel is civil in nature.

Meanwhile, the SIAC Arbitrator passed a Final Award dated 27-09-2014 and held Avitel guilty of inducing HSBC to invest in their Company by making false representation that their investment would be used for purchasing equipment and material to service a contract with BBC. The Arbitrator further directed Avitel to pay a total sum of USD 60 Million along with 4.25% interest for the loss of investment caused to HSBC.

Thereafter, Avitel challenged the said Final Award dated 27-09-2014 under Section 34 of the Act in the Bombay High Court, which was dismissed vide Judgment dated 28-09-2015 on the ground that it was not maintainable. Meanwhile, HSBC filed for enforcement of the Final Award dated 27-09-2014 in the Bombay High Court on 15-04-2015 under Section 48 of the Act.

While the enforcement proceedings were pending, Avitel filed an Appeal in the Supreme Court against the Order dated 22-01-2014 of the Single Bench of the Bombay High Court, whereby the Court restrained Avitel from making withdrawals and directed that its accounts are frozen until further orders. Whereas, HSBC filed a Cross Appeal in the Supreme Court against the Order dated 31-07-2014 of the Division Bench of the Bombay High Court, whereby the Court reduced the deposit amount from USD 60 Million to USD 30 Million as damages to HSBC.

The Supreme Court made the following observations in this case:

  1. That the act of inducing HSBC to invest USD 60 Million in Avitel on the false representation that the said investment would be used for purchasing material to service the BBC Contract amounted to fraud under Section 17 of the Contract Act. As a result, the Agreement became voidable at the instance of HSBC under Section 19 of the Contract Act.
  2. That generally, when an agreement becomes voidable on account of fraud or misrepresentation under Section 19 of the Contract Act, the arbitration clause in the said agreement is also vitiated. As a result, the parties are barred from invoking the arbitration clause.
  3. But in this case, although the Agreement had become voidable at the instance of HSBC, it did not render the arbitration clause invalid, as the Parties had agreed at the time of entering into the Agreement that the arbitration clause would be read as an independent clause. Thus, the Supreme Court held that the dispute in the present case was arbitrable and that HSBC is not barred from invoking arbitration clause in the Agreement.
  4. Further, based on the facts and circumstances of the case and the extent of loss suffered by HSBC due to the fraudulent acts of Avitel, the reduction of damages of USD 60 Million to USD 30 Million by the Division Bench of the Bombay High Court was not justified.

Thus, the Apex Court held Avitel liable for fraudulently inducing HSBC to invest in their Company and directed them to pay USD 60 Million that would help to reinstate HSBC in the same position as if the Agreement had never been entered into.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT UPHOLDS FIR FILED BY FATHER OF SUSHANT SINGH RAJPUT IN BIHAR

In a recent Judgment dated 19-08-2020 that was passed by the Hon’ble Supreme Court of India by J. Rishikesh Roy in a Transfer Petition (Crl) No. 225 of 2020 titled Rhea Chakraborty vs State of Bihar was filed by Actress, Rhea Chakraborty. The matter before the Supreme Court was whether the FIR filed by Mr. Krishan Kishore Singh (the Complainant), father of Late Sushant Singh Rajput (the Deceased) was maintainable in view of the fact that police investigations were underway in Mumbai.

The Transfer Petition that was filed was for transfer of FIR No. 241 of 2020 dated 25-07-2020 under Sections 120B (Punishment of criminal conspiracy), 306 (Abetment of suicide), 341 (Punishment for wrongful restraint), 342 (Punishment for wrongful confinement), 380 (Theft in dwelling house, etc), 406 (Punishment for criminal breach of trust), and 420 (Cheating and dishonestly inducing delivery of property), 506 (Punishment for criminal intimidation) of the Indian Penal Code, 1860 (IPC) filed at the Rajiv Nagar Police Station, Patna to Mumbai. The matter relates to the unnatural death of Actor, Sushant Singh Rajput, on 14-06-2020 at his residence in Bandra, Mumbai. It was alleged in the FIR that the Petitioner and the Deceased were in a live-in-relationship till 08-06-2020 when the Petitioner moved out. The Petitioner contended that incidents alleged in the Complaint filed in Bihar were entirely within the jurisdiction of the State of Maharashtra and as such the said FIR should be forwarded to the Police Station at Bandra, Mumbai for investigation. It was further alleged that despite want of jurisdiction the FIR was lodged in Patna because of the political pressure brought upon the Bihar Police. The Counsel for the Petitioner argued that just because the Complainant, i.e. Mr. Krishan Kishore Singh was a resident of Patna, it did not confer jurisdiction on the Bihar Police. He further argued that transfer of investigation to CBI on Bihar Government’s consent would not amount to lawful consent of the State Government as required under the Delhi Special Police Act 1946.

The Counsel for State of Bihar argued that allegations of criminal breach of trust, cheating and defalcation of the money from the account of the Deceased are offences within the jurisdiction of the Bihar Police. He further argued that Mumbai Police was merely contending an inquiry into the unnatural death of the Actor and such a proceeding is only limited to the cause of death and does not allow the Police to undertake any investigation. He also made a reference to the non-cooperation and obstruction of the Maharashtra Authorities to the Bihar Police when they reached Mumbai. He further stated that as no FIR was registered by the Mumbai Police, the action of the Bihar Police is legally justified and they can investigate into the matter. In the course of the inquiry by the Mumbai Police, they had recorded the statements of 56 persons and had the Post-Mortem Report, which could have enabled that Mumbai Police to register a FIR and initiate the investigation. The Counsel for Maharashtra also argued that when the father and other family members of the Deceased had given statements to the Mumbai Police, they never mentioned any allegations that have now been levied in the FIR. He therefore argued that the FIR was a result of an after-thought and improvements.

After hearing both Parties, the Learned Judge was of the view that four issues were before the Supreme Court for consideration:

“(a) Whether this Court has power to transfer investigation (not case or appeal) under Section 406 of the CrPC;

(b) Whether the proceeding under Section 174 CrPC conducted by the Mumbai Police to inquire into the unnatural death, can be termed as an investigation;

(c) Whether it was within the jurisdiction of the Patna Police to register the FIR and commence investigation of the alleged incidents which took place in Mumbai? As a corollary, what is the status of the investigation by the CBI on the consent given by the Bihar government; and

(d) What is the scope of the power of a single judge exercising jurisdiction under section 406 of the CrPC and whether this Court can issue direction for doing complete justice, in exercise of plenary power.”

J. Rishikesh Roy held that the Transfer Petition under Section 406 of CrPC was no doubt for securing the ends of justice. He however felt that the precedents on transfer of investigation had been decided in the case of Ram Chander Singh Sagar vs State of Tamil Nadu (1978) 2 SCC 35, where the Hon’ble J. Krishna Iyer had stated that the power of the court under Section 406 could be exercised only when the matter was before a sub-ordinate court and not for transfer of investigation from one police station to another. He therefore concluded herein, that as the case related to investigations that ought to be transferred, the Hon’ble Supreme Court could not decide upon the same in the said Transfer Petition.

He observed that the Mumbai Police has attempted to stretch the purview of Section 174 CrPC without filing any FIR and as such they could not investigate into matters other than the cause of death. The Mumbai Police was therefore not holding a parallel investigation as alleged by the Petitioner. Whereas, the Patna Police had the jurisdiction to investigate the matter as the Complainant had alleged commission of a cognizable offence which made it incumbent upon the Bihar Police to register a FIR and commence investigations. According to the Complainant, he had made several attempts from Patna to talk to his son, but the same was thwarted by the Accused Persons which he felt caused his son to take the dire step. It is his contention that had he been allowed to speak to his son, he would have been able to change the thought process of his son and prevented his death.

The Judge further held that the allegation related to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna, prima facie indicated that the Patna Police had proper jurisdiction. While referring to another Supreme Court Judgment Lee Kun Hee, President, Samsung Corporation, South Korea and Others Vs. State of Uttar Pradesh and Ors. (2012) 3 SCC 132, he was of the view that only the Patna Police had the jurisdiction due to the nature of the offences. He relied on the following Para:

“Moreover, the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police.”

He further noted that the FIR at Patna was subsequently transferred to the CBI with the consent of the Bihar Government during the pendency of the Transfer Petition. He held that in future if commission of a cognizable offence is determined there is a possibility of parallel investigation by the Mumbai Police.

He finally concluded by referring to the inherent power of the Supreme Court under Article 142 of the Constitution is necessary to do complete justice in any matter pending before it. Having in mind the peculiar circumstances of the present case he observed that the Actor, Sushant Singh Rajput was a talented actor in the Mumbai film world and died before his potential could be realised. His family, friends and admirers are keenly waiting the outcome of the investigation so that all speculations floating around can be put to rest. Therefore, a fair, competent and impartial investigation is the need of the hour. The expected outcome then would be, a measure of justice for the Complainant, who lost his only son. The Petitioner too had asked for CBI investigation. The dissemination of true facts through unbiased investigation would certainly result in justice for the innocent. He further stated equally importantly, when integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man must be considered. He further added “When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

It was finally concluded that while according approval for CBI investigation if any other case is registered on the death of the Actor, Sushant Singh Rajput in the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer

GUEST POST: Car accidents involving pedestrians – how to determine fault and available compensation

Hit and run cases have reached an all-time high. According to the National Highway Traffic Safety Administration, there is a considerable rise in the fatalities of #pedestrians that recorded 6,283 deaths in 2018. The number includes only fatalities arising from #caraccidents.  It is no surprise that of all DLY Car Accidents Detroit in which vehicles hit pedestrians at high speed, it can result in serious #injuries and fatalities. But speed is not the main wrecker because a person hit by a car moving at 10 miles per hour can also undergo serious injuries.

The hazard of distracted driving

Most of the hit and run cases happen due to distracted driving, which is a widespread #hazard but commonly overlooked. It has been the reason for thousands of car accidents, injuries, and even deaths. Of all the fatal motor vehicle cases reported in 2019, distracted driving contributed 8.5%.  Potentially dangerous distraction happens when drivers take their hands off the wheel, their eyes off the road, and their mind wanders away from the task of driving.  All such actions can lead to injuring pedestrians, and it can also happen when drivers take to reckless driving at high speed. 

Suppose your car hits a pedestrian, then you must know what to do immediately after the accident. If you are the driver, then you must know the basic rules of fault, the method of compensating injuries and damages, and, most importantly, how to drive safely to avoid such accidents.

Insurance coverage for pedestrian accidents

Health and disability insurance policies typically provide cover for injured pedestrians, and similar coverage is available under worker’s compensation coverage. Also, they may seek cover under auto insurance policies.

Auto liability insurance – An injured pedestrian can get compensation from the vehicle owner’s or driver’s auto liability insurance policy. Almost all states mandate auto owners and drivers to carry auto liability insurance to cover personal injuries to third parties as well as damage to property of third parties. Recoveries depend on the type of coverage in the insurance policy and who caused the accident.

No-fault coverage – In no-fault states, there are about a dozen such states, insurance companies must pay for the lost wages and medical expenses of their policyholders irrespective of who was at fault. This kind of policy is also known as Personal Injury Protection (PIP) policy. 

The laws between the states vary when it comes to compensating pedestrians. Some states allow the driver’s #insurancecompanies to pay for pedestrian’s medical expenses up to the PIP limit even if the pedestrian was at fault.

Avoiding pedestrian accidents

Drivers must comprehend the true meaning of defensive driving to avoid pedestrian accidents. Defensive driving means being aware of people, who walk, operate a wheelchair, use a bicycle, roller skate, rollerblade, play in the road, or raise an electric scooter. Drivers must be especially careful about paying attention to older adults and young children, who may be less aware of drivers on the road, most likely not pay attention to traffic signals and stray outside crosswalks.

Consult a lawyer to gather the right insights about your case and the possibility of getting the proper compensation.

Author bio:

Kelly Wilson is an experienced and skilled Business Consultant and Financial advisor in the USA.  She helps clients both personal and professional in long-term wealth building plans. During her spare time, she loves to write on Business, Finance, Marketing, Social Media. She loves to share her knowledge and Experts tips with her readers.

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SUPREME COURT HOLDS MR PRASHANT BHUSHAN’S TWEETS AS CONTEMPT OF COURT

Recently, the Hon’ble Supreme Court of India Bench of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, took up suo moto cognizance based on two of Mr Prashant Bhushan’s Tweets, after a Complaint filed by one Mahek Maheshwari, vide In Re Prashant Bhushan and Another, Suo Motu Contempt Petition (CRL.) No.1 of 2020, decided on 14.08.2020. It held Advocate Mr Prashant Bhushan guilty of Contempt of Court for his two Tweets which the Court said had shaken the “very foundation of constitutional democracy”.

The Case involves the Tweets in question, which were critical to the Supreme Court and posted by Mr Prashant Bhushan on Twitter on June 27th and June 29th, 2020. The June 27th Tweet said, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The June 29th Tweet included a Photo of Chief Justice of India, S.A. Bobde riding a Harley Davidson motorcycle, and said, “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

While holding the said Tweets amounting to criminal contempt, the Hon’ble Supreme Court observed and recorded the following points in its Judgment:

  1. The Bench said that Mr Bhushan being part of the institution of administration of justice, instead of protecting the majesty of law has indulged in an act, which tends to bring disrepute to the institution of administration of justice. He is expected to act as a responsible officer of this Court.
  2. The Judgment also states that he has made such a scandalous and malicious statement after having himself availed the right of access to justice during the said period, not only as a lawyer but also as a litigant.
  3. It further noticed that the Tweet clearly tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. There is no manner of doubt that the Tweet tends to shake the public confidence in the institution of Judiciary.
  4. While the Court noticed that the first part of the Tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI. However, the second part of the Tweet attempts to give an impression to a layman that the CJI is riding a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet, at a time when he has kept the SC in lockdown mode denying citizens their fundamental right to access justice.
  5. The Judges have also said that Mr Bhushan made a “wild allegation” in the second Tweet in question, by insinuating that the CJI was enjoying joy rides on a motorcycle while the Supreme Court was in lockdown. It continues to state that

“In this premise, making such wild allegation thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous. It has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice.”

  1. On the second Part of the Tweet the Court said that the date on which the CJI is alleged to have taken a ride on a motorbike is during the period when the Supreme Court was on a summer vacationIn any case, even during the said period, the vacation Benches of the Court were regularly functioning.

Amongst other observations the Hon’ble Court refused to accept the contentions of Mr Prashant Bhushan that the said statement was a bona fide criticism made by him on account of his anguish of non-functioning of the courts physically. Thus, the Court said that if such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in Judiciary cannot be permitted to be impaired by malicious attacks upon it. Therefore, Mr Prashant Bhushan was held guilty of Criminal Contempt of the Hon’ble Supreme Court of India.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

NATIONAL COMMISSION HOLDS HOSPITAL LIABLE FOR CAUSING INORDINATE DELAY IN MEDICAL TREATMENT

The National Consumer Disputes Redressal Commission (#NCDRC), New Delhi has in a recent matter of Yashumati Devi & Anr. vs Christian Medical College, Vellore passed a #Judgment dated 11-08-2020 and held the Opposite Party-#Hospital liable for its #negligent conduct in causing inordinate #delay in treating a #patient that led to his #death.

In this case, one, Mr. Raj Ballav Ram (the Patient), aged about 58 years, has been suffering from on and off pain in his left arm on exertion and while walking or climbing staircase, etc since 2006. He later got admitted in the Out-patient Department at Christian Medical College, Vellore (the Hospital) on 10-06-2009. The Hospital examined and diagnosed him with #CoronaryArteryDisease. Further, the Patient was advised to undergo ‘Coronary Angiogram’ test and if required, angioplasty, for which the Complainants, i.e. the Patient’s wife and son (the Complainants) deposited Rs. 1,50,000/- in the Hospital. The following day, the treating doctor advised the Patient to undergo Coronary Arterial By-pass Graft #surgery (Surgery) instead of #angioplasty to avoid multiple stenting. But the Patient had to wait for 15 more days before the Surgery could be conducted. Meanwhile, the doctors had started administering the Patient with doses of #Heparin regularly. At the time of Heparin shots, the Complainant No. 2 noticed bleeding at the spot where the needle was inserted into the Patient’s body, but the doctors ignored him. After a couple of days, the Patient showed signs of sudden numbness in his left arm and trouble in walking and/or wearing slippers. Although the doctors anticipated that it could be a #stroke, they conducted a CT scan after a delay of more than 4 hours and caused further delay in giving any medical treatment to the Patient. After a couple of days, the Patient passed away. The Complainants then approached the NCDRC and filed a consumer complaint against the Hospital for their alleged #medicalnegligence and callousness that caused the death of the Patient.

The NCDRC made the following observations in this case:

1- As per the “but for” causation test, in some cases, a complainant has to prove that the injury would not have occurred “but for” the negligence of the defendant. Also, that the defendant’s negligent act was a necessary cause for his or her injuries.

2- In this case, the Patient had shown signs of stroke, after an hour of 3rd dose of Heparin being administered to him by the doctors. But the Hospital failed to take corrective steps to control the overdose of Heparin, which led to the stroke. As a result, it proved to be fatal for the Patient.

3- Thereafter, the Hospital doctors delayed for more than 4 hours in conducting a CT Scan and did not give immediate medical attention and treatment to the Patient. The Patient showed signs of mini-stroke around 8.30 AM on 17-06-2009, but the CT Scan was done only around 12.30 PM and thereafter, medicines for reducing the swelling in his brain were given around 5 PM.

4- If the Hospital doctors would have conducted a CT Scan immediately, it would have helped them to diagnose a possible stroke. However, the Hospital delayed the diagnosis and CT Scan for the petty reason that the Complainants had to produce the receipt of Rs. 1850/- for CT Scan. This negligent conduct caused brain haemorrhage to the Patient that caused his stroke and death.

5- The NCDRC herein held that, although a hospital has every right to insist on payment, but it is also their prime duty to take proper care of its patients. But the Hospital herein chose to comply with its rigid protocols over medical ethics and delayed the medical diagnosis and treatment of the aged and emergent Patient, which amounts to failure of duty of care.

6- Further, the NCDRC held that if the Hospital doctors would have complied with the accepted standard of care, the Patient would not have suffered brain haemorrhage that caused his stroke and death. Thus, the “#butfor” causation test would be applicable to the instant case.

Hence, the NCDRC held the Hospital liable for deficiency in services rendered to the Patient and awarded the Complainants #compensation of Rs. 25 Lakh with interest @ 8% per annum from the date of the death of the Patient till the date of its realization.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT UPHOLDS RIGHTS OF DAUGHTERS IN PROPERTY

In a recent Judgment dated 11-08-2020 passed by the #SupremeCourt in Vineeta Sharma vs Rakesh Sharma and Others Civil Appeal No. 32601 of 2018 decided along with 7 connected SLPs, a Special Bench of the Supreme Court consisting of J. Arun Mishra, J. S. Abdul Nazeer and J. M.R. Shah decided the issue of the #rights of #daughters in a #coparcenary #property.

The Supreme Court decided the question concerning the interpretation of Section 6 of the #HinduSuccessionAct 1956 (the Act of 1956) as amended by the Hindu Succession (Amendment) Act 2005 (the Act of 2005) and decided the conflicting verdicts rendered in two Division Bench Judgments of the Supreme Court in Prakash and Ors. v. Phulavati and Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur and Anr. v. Amar and Ors., (2018) 3 SCC 343. As there were other connected matters pertaining to issues arising out of a daughter’s right to property, these SLPs were also decided simultaneously.

The Act of 2005 amended Section 6 of the Act of 1956, thereby allowing for the first time a daughter to be given the same rights by birth as a son in case of property. Section 6 of the Act of 2005 has been reproduced for easy reference:

Devolution of interest in coparcenary property.―

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

A brief historical overview of the Hindu Law would enable the Reader to understand the change in law. The Hindu Law is influenced and emanates from the Vedas. Over a period of time, this Law has evolved by the requirements of society. As law is dynamic and progressive, interpretations of law over a period of time has brought it to the current form. In 2005, the rights of a daughter (married or unmarried) was considered and the Act of 1956 was amended to give the daughter equality of status and recognition as a coparcener having the same rights as a son by virtue of birth. A coparcener generally gets his/her right by birth. However, a coparcener can also get a right by way of adoption. Prior to the Amendment, a woman enjoyed the status of being a member of Joint Hindu Family but not as a coparcener. She now therefore has a right to demand partition of property at par with that of a man who is also deemed to be a coparcener.

Under the Proviso to Section 6 of the Act of 2005, in case a coparcener dies leaving behind a female relative of Class 1 Heir, the said relative would be a coparcener and her right as a coparcener would be recognised. However, that is not to say that the rights of the daughters would in any manner affect the rights of other relatives as it stood before Amendment. With the advent of the Act of 2005, the rights of the wife of a coparcener is also entitled to equal share.

The Supreme Court after hearing Parties on both sides in the main Petition and connected matters, decided the reference as follows:

1- The substituted Section 6 of the Act of 2005 confers the status of coparcener on the daughter born before or after Amendment of 2005 in the same manner as a son and with the same rights and liabilities.

2- The rights can be claimed by the daughter born earlier but with effect from 09-09-2005 with reference to disposition or alienation or partition or testamentary disposition which had taken place prior to the Amendment.

3- Since the right is by birth, it is not necessary that the father of the coparcener should be living as on 09-09-2005.

4- The statutory fiction of partition in the Act of 1956 was only for the purpose of ascertaining the share of a coparcener. However, under the current law the coparcenery share can be partitioned.

The Supreme Court concluded by stating that matters pertaining to a daughter’s rights under the Act of 2005 has been unduly delayed due to legal imbroglio caused by conflicting decisions and directed that all pending matters pertaining to a daughter’s rights should be decided as far as possible within 6 months from the date of this Judgment. By this Judgment, the Supreme Court overruled the views to the contrary expressed in Prakash and Ors. v. Phulavati and Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur and Anr. v. Amar and Ors., (2018) 3 SCC 343.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer