DELHI HIGH COURT REITERATES ESSENTIAL ELEMENTS OF FREE AND FAIR POLICE INVESTIGATION AND TRIAL PROCEEDINGS

The Delhi High Court in a matter of Mr. Arvind Kejriwal and Anr. vs State NCT of Delhi passed a Judgment dated 21-10-2020 and held that the #investigatingagency is duty bound to conduct free and fair #investigation under Section 173 of Code of Criminal Procedure 1973 (CrPC) and bring to the notice of the #Court all #evidences without picking and choosing the evidence that supports the party.

In this case, the Accused had filed an Application under Section 207 of CrPC before the Patiala House Court for supply of certain deficient documents including the witness statements recorded during the investigation in FIR No 54/2018. But the Court declined to supply witness statement on the ground that it was an oral examination and thus, there were no written records.

Aggrieved, the Accused filed a Revision Petition before the Learned Additional Sessions Judge, New Delhi who passed an Order dated 24-07-2019 and dismissed the Revision Petition on the ground that it was an oral examination and was noted by the Investigating Officer in the Case Diary. Hence, it cannot be considered a statement under Section 161 CrPC and thus, it cannot be given to the Accused.

Section 161 of CrPC is reproduced below:

161. Examination of witnesses by police:

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Aggrieved, the Accused filed a Petition under Article 227 of the Constitution of India seeking quashing of the Impugned Order dated 24-07-2019 as the Learned Additional Sessions Judge, New Delhi did not supply crucial documents required in the Application filed under Section 207 of CrPC on behalf of the Accused.

The Delhi High Court made the following observations in this case:

1- The Investigating Officer is duty bound to supply all documents pertaining to a case to the Accused. In the event that he has supplied only those evidences/documents that support the prosecution, then he has to supply such other documents that also support the Accused.

2- It is the duty of the investigating agency under Section 173 CrPC to do fair and free investigation by bringing to the notice of the Court all the evidences collected during the investigation without picking and choosing the one which only favors the prosecution and does not support the Accused.

3- The Court has a duty to supply all the documents to the accused under Section 207 CrPC, even if the same were not relied upon by the prosecution. This is to ensure that the Accused is able to properly defend himself.

4- In the present case, although the oral examination was not recorded in written form, the said statement has been referred to and mentioned in various documents and thus, it acquires the status of Section 161 CrPC statement.

Therefore, the Delhi High Court held that it is the duty of the Investigating Agency to furnish all documents/evidence to the Court without picking and choosing those documents that support either party, because it does not have any power to appreciate the evidence, as it rests with Court. This would also enable the Court to discharge its duty under section 207 of Cr.P.C. by furnishing copies of such documents to the Accused.

Hence, the Delhi High Court set aside the Impugned Order dated 24-07-2019 of the Learned Additional Sessions Judge, New Delhi and directed the Trial Court to consider the witness statement recorded in the Case Diary as Section 161 CrPC statement.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer & Allied Services

DELHI HIGH COURT ALLOWS AUCTION OF JUDGMENT DEBTOR’S ASSETS BY VARIOUS BANKS

The #DelhiHighCourt has in a matter of Daiichi Sankyo Company Limited vs Malvinder Mohan and Others passed a Judgment dated 15-10-2020 and allowed #YesBank to conduct e-#auction of the properties of the Judgment Debtor that was the subject matter of the #enforcement proceedings. However, the High Court directed Yes Bank to deposit the sale proceeds with the Court until further orders.

In this case, the Singapore Arbitrator had passed an Arbitral Award dated 29-04-2016 (Arbitral Award) and held that the Judgment Debtor has to pay a sum of INR 3500 Crores to the Decree Holder-Daiichi Sankyo Company Limited (Daiichi). Thereafter, Daiichi filed a Petition for Enforcement of the said Arbitral Award before the Delhi High Court on 23-05-2016.

The High Court directed the Judgment Debtors to file Affidavit of Assets and disclose the details of all their assets and properties. Thereafter, the High Court passed an Interim Order dated 19-02-2018 and directed the Judgment Debtors to maintain a status quo with respect to the assets and properties as disclosed in the Affidavit. Further, the High Court passed another Interim Order dated 26-02-2018 and issued Warrants of Attachment with respect to all the unencumbered assets and properties as disclosed in the Affidavit and also directed the Judgment Debtors to maintain status quo with respect to other assets in which they had any interest whatsoever.

Meanwhile, Yes Bank, Axis Bank and ICICI Bank had initiated debt recovery proceedings against the Judgment Debtors as the latter had failed to repay loans to the respective banks. Later, Yes Bank planned to conduct e-auction of the properties of the Judgment Debtors including those properties that were the subject matter of the Enforcement Proceedings before the Delhi High Court (Subject Property). Hence, the Decree Holder-Daiichi filed an Application before the Delhi High Court seeking restraining order against the e-auction, so that status quo is maintained with regard to the Subject Property, until further orders/permission granted by the High Court. 

The Delhi High Court made the following observations in this case:

1- That the initial Order of 19-02-2018 provided interim protection, i.e. to maintain status quo, with respect to all the assets including the Subject Property until the next date of hearing. The subsequent Order of 26-02-2018 directed attachment of all unencumbered assets as well as extended the interim protection of status quo, that was provided in the initial Order, with respect to all other assets of the Judgment Debtors.

2- But much before the Arbitral Award dated 29-04-2016 was passed and the Enforcement Proceedings were initiated by Daiichi before the Delhi High Court, a mortgage charge in the Subject Property was already created in favor of the Banks, when Loan Agreement dated 08-04-2015 and Mortgage Deed dated 15-07-2015 were executed between the Judgment Debtor and the Banks. The Certificate of said Charge in the Subject Property had also been registered with the Ministry of Corporate Affairs (MCA).

3- Despite the fact that the details of mortgage were in public knowledge, the Decree Holder-Daiichi failed to raise any grievance about the mortgage/charge earlier. Thus, the Delhi High Court held that Daiichi cannot raise any issue or challenge at this stage with respect to the auction or creation of charge in favor of the Bank(s) or that the Subject Property was not an encumbered asset at the time of passing the Arbitral Award.

Therefore, based on the aforesaid grounds, the Delhi High Court held that the charge or encumbrance over the Subject Property preceded the Orders of the High Court dated 19-02-2018 and 26-02-2018. Thus, the High Court modified its Order dated 26-02-2018 to the extent that the interim protection of status quo would extend only to unencumbered assets, which would mean that the interim protection of status quo would not be applicable to the Subject Property.

The Delhi High Court further appointed a Court Commissioner to supervise the auction of the Subject Property and directed the Yes Bank to release the amounts received from sale of the subject property by auction into an escrow account maintained by the Bank until further orders. 

Sushila Ram Varma

Chief Legal Consultant

The Indian Lawyer & Allied Services

DELHI HIGH COURT REJECTS THE BAIL APPLICATION OF THE ACCUSED IN THE ‘DELHI RIOT MATTER’

The Hon’ble High Court of Delhi passed a Judgment dated October 14, 2020 in the case of Ashraf Ali v. State of NCT of Delhi (Bail Application 2614/2020) and held that since the Petitioner was a part of the #unlawful assembly which claimed an innocent life, he cannot be granted #bail.

In the present case, an FIR was registered on 28.02.2020 against the Petitioner for the offences punishable under Section 147/148/149/302/201/436/427 IPC as he was accused of being involved in stone-pelting and raising anti-community slogans on 24.02.2020. On 05.03.2020, 16.03.2020 and 01.04.2020 statements of witnesses Anil Pal, Ankit Pal and Amit Pal under Section 161CrPC were respectively recorded. However, none of the witnesses identified the Petitioner. But, in the supplementary charge sheet they identified the Petitioner as “Khalnayak”. A final report against the 12 accused persons was filed by the Police and the Petitioner was mentioned as Accused No.4.

The Counsel for the Petitioner contended that there’s no CCTV footage which proves that the Petitioner was a part of any mob on 24.02.2020. Moreover, as per the statement of a witness named Himanshu, the mob consisted of about 200-250 persons and he could identify only 5 people. No Test Identification Parade was conducted. The name of the Petitioner came up for the first time in identical supplementary statements dated 22.06.2020.

Furthermore, the Counsel contended that although the address of the Petitioner and the place of incidence that was set on fire correspond to each other, it is not a sufficient evidence to incriminate the Petitioner. The only evidence against the Petitioner was the statement of witness Himanshu u/s 161 CrPC dated 11.03.2020 that led to the arrest of the Petitioner.

A detailed investigation was also conducted from 12.03.2020 till 03.06.2020, however, no incriminating material was found against the Petitioner for commission of offences under Sections 302/201/436 IPC in the final report and the Petitioner was being falsely implicated under the afore mentioned Sections by virtue of Section 149 IPC. There was no evidence to prove that the Petitioner was involved in the act leading to the death of Dilbar Negi, the deceased.

Contradictory witness statements, absence of Test Identification Parade and CCTV Footage, therefore, prove that the Petitioner was being falsely implicated.

On the other hand, the ASG submitted that in the CCTV Footage the Petitioner could be seen promoting enmity and disharmony, pelting stones and instigating others on 24.02.2020 and that the Petitioner was part of the mob which caused the death of Dilbar Negi.

On perusal of the contentions raised by the parties, the Court held that “28. It is not in dispute that the term “Test identification parade” is used as a means to examine the truthfulness of the witness and his ability to identify unknown persons. The test is generally not necessary to identify the accused if the witness knows the accused and can recognise the accused in moonlight and lantern.

The purpose is primarily to test and strengthen the existing substantial evidence of the witness in court. If the witness cannot name the accused and can only identify him on the basis of his physical appearance then the Test cannot be taken into consideration.”

The Court further held that it cannot be denied that Petitioner was a part of the unlawful assembly.  There was also a loss of life and damage to the public property. Since the riots claimed an innocent life, it is bound to attract Section 302 IPC and therefore, the Petitioner could not be granted bail.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

Kovise Foundation Conflict Resolution International (KFCRI) Webinar on “International Seminar on Emerging Trends on Med- Arb”

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.

Kovise Foundation Conflict Resolution International (KFCRI) under the guidance of the Project Advisor, Mr. V. Inbavijayan the institution will be conducting Seminar on the Topic “International Seminar on Emerging Trends on Med- Arb”

About the Seminar:

KFCRI strongly believe in saying “An investment in knowledge always pays the best interest” and has ascertained the role of a Think-tank by way of which awareness relating to the Alternative Dispute Resolution has been constantly disseminated with every step taken along the way.

In compliance with every ideology, KFCRI is happy to inform you that it has amalgamated with Sathyabama School Of law under the guidance of Mr. V. Inbavijayan in conducting an International Seminar on emerging trends on Med-Arb. The main objective of this seminar is to primarily provide valuable insights into the arena of Med-Arb mechanism as it is one of the most sought after modes of dispute resolution in the current global scenario.

We gladly invite you to be a part of this initiative as it shall pave way for stimulating discussions in ADR. The details of the seminar are as follows,

International Seminar on Emerging Trends on Med- Arb

Date: 15th October 2020

Time: 4 Pm – 7 Pm IST

Topic: Emerging Trends on Med- Arb

Speakers:

1.     Dr. Christopher To

2.     Mr. Ramesh Selvaraj

3.     Mr. Muthupandi Ganesan

4.     Mr. Ben Giaretta

5.     Ms. Rekha Rangachari

6.     Dr. Kabir Duggal

Venue: Zoom Meetings

Registration linkhttps://forms.gle/6UHUUSAWMDE27J3fA                                                                                                                                                                    

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


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 REITERATES THAT NON-OBSERVANCE OF PRINCIPLES OF NATURAL JUSTICE WILL NOT RENDER THE PROCEEDINGS INVALID

A Three Judge Bench of the Hon’ble #SupremeCourt comprising of Justice RF Nariman, Justice Navin Sinha and Justice KM Joseph passed a Judgment dated October 16, 2020 in the case of State of U.P. v. Sudhir Kumar Singh (Civil Appeal No. 3498 of 2020) and held that #breach of principles of #naturaljustice will not render the proceedings invalid unless prejudice is caused to the litigants.

In the present case, the Allahabad High Court had set aside the cancellation of some tenders for unloading/loading of foodgrains/fertilizer bags into railway wagons, trucks etc., stacking the foodgrains/fertlizers in bags, bagging, standardization, cleaning of food grains/fertilizers etc. and transporting of food grains/fertilizers etc. from Railway Station to Corporate godowns or vice versa or transporting them from place to place for the Vindhyachal (Mirzapur) region, on the ground of breach of principles of natural justice. The High Court observed that as the award of tender in favour of the Applicant was cancelled, it constituted a breach of the principle of audi alteram partem.

The Apex Court while dismissing the State’s Appeal against the Judgment of High Court of Allahabad laid down the following guidelines:

  • “Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
  • ..
  • Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
  • No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
  • In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
  • The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

SUPREME COURT REITERATES AND INTERPRETS VARIOUS PROVISIONS OF LAW IN CASE OF DOMESTIC VIOLENCE

The #SupremeCourt has in a recent case of Satish Chander Ahuja vs Sneha Ahuja  passed a Judgment dated 15-10-2020, where the Apex Court interpreted various provisions of #Protection of #Women from #DomesticViolence Act, 2005. 

In this case, the Appellant, Mr Satish Chander Ahuja had purchased a property in Delhi (Premises) and was residing with his wife, son and daughter-in-law at the said Premises. The Appellant and his wife resided at the Ground Floor and his son and daughter-in-law resided at the First Floor of the Premises. Later, the Appellant’s son shifted to the Ground Floor owing to certain marital discord with his wife. He then filed a Divorce Petition under Section 13 (1) (ia) and (iii) of Hindu Marriage Act, 1955 (the 1955 Act) on the ground that his wife, i.e. the Respondent herein, had treated him with cruelty.

Magistrate Proceedings

Pending this Application in the Trial Court, the Respondent filed an Application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (the 2005 Act) before the Hon’ble Chief Metropolitan Magistrate alleging that she has been subjected to immense emotional and mental abuse by her in-laws and husband. The Learned Magistrate passed an Interim Order dated 26-11-2016 directing the Respondent’s in-laws and her husband not to alienate the #sharedhousehold or #dispossess the Respondent from the Premises until further orders.

Trial Court Proceedings

Aggrieved by the said Order of the Magistrate, the Appellant (Father-in-Law) herein filed a Suit in the Trial Court against the Respondent (Daughter-in-Law) herein seeking removal of Respondent from their Premises so that they could lead a peaceful life. The Appellant further pleaded that the Respondent had filed false and frivolous cases against them only because his son had filed a Divorce Petition against the Respondent. In fact, the Appellant and his wife have been subjected to violence on many occasions in the hands of the Respondent. Another ground for challenging the Magistrate’s Order is that the Appellant being the Father-in-Law is not responsible to maintain the Respondent, i.e. his daughter-in-law during the lifetime of her husband. The Trial Court passed a Judgment dated 08-04-2019, whereby the Court directed the Respondent herein, i.e. the Daughter-in-Law to vacate the physical possession of the Premises so that there is no interference in the peaceful occupation of the Premises by the Appellant and his wife.

Delhi High Court Proceedings

Aggrieved by the Trial Court’s Judgment dated 08-04-2019, the Respondent herein filed an Appeal before the Delhi High Court, which set aside the Trial Court’s Orders and sent the matter back to the Trial Court for proper adjudication. The High Court observed that during the pendency of the domestic violence proceedings before the Magistrate, the Trial Court’s Order directing the Respondent to vacate the Premises, where she has allegedly been subjected to domestic violence, would cause serious prejudice to the Respondent.

The High Court further reiterated that persons affected by domestic violence should have a right to reside at the suit premises/shared household, irrespective of whether they are the owner or they have any right, title or interest in the suit premises/shared household, as long as they are able to prove that they have endured domestic violence while being in a domestic relationship with the owner of such premises. Alternately, the Respondent should be given an alternate accommodation during the subsistence of her matrimonial relationship, under Section 19 (1) (f) of the 2005 Act.

Supreme Court Proceedings

Thus, aggrieved by the Order of the Delhi High Court dated 18-12-2019, the Appellant (Father-in-Law) filed an Appeal before the Supreme Court against the Respondent (Daughter-in-Law).

The Apex Court made the following observations in this case:

1- That the Protection of Women from Domestic Violence Act, 2005 was enacted to secure the rights of aggrieved persons living in a #domesticrelationship in a shared household. Domestic relationships may mean to include such cases where a widow is living with her mother-in-law in a premises owned by the mother-in-law, or where an orphaned-sister is living in her brother’s house, or where a widowed-mother is living at her son’s house, etc. ‘Domestic relationship’ has been defined under Section 2 (f) of the 2005 Act as follows:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

2- Thus, in the aforesaid instance, if the widowed-mother living in a domestic relationship with her son in a shared household is threatened of dispossession from the premises, then she can secure reliefs under the 2005 Act, irrespective of whether the son is the owner of the premises or not.

3- That in the present case, the owner of the Premises is the Appellant (Father-in-Law) alone as per the Deed dated 12-01-1983. Although the Respondent (Daughter-in-Law) or her husband did not have a share or interest in the said Premises, it was the matrimonial home of the Respondent where she had been residing in the First Floor since her marriage for a considerable period of time. Hence, the Premises have to be considered as a ‘shared household’ under Section 2 (s) of the 2005 Act. Section 2 (s) of the 2005 Act has been reproduced below:

“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

4- Further, as the Appellant’s son and the Respondent (Daughter-in-Law) were living in a domestic relationship in a shared household at the Premises, therefore, the claim of the Respondent herein that she has a right to reside in the said Premises, ought to have been considered and adjudicated upon by the Trial Court.

Thus, based on the aforesaid grounds, the Apex Court upheld the Order of the High Court and remanded the matter to the Trial Court for fresh adjudication of claims and for leading of evidence.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

Domain Name Disputes Arbitration | KFCRI Sector Specific Webinar Series

Kovise Foundation Conflict Resolution International (#KFCRI) under the guidance of the Project Advisor, Mr. V. Inbavijayan the institution has conducted a Webinar on the Topic ‘#DomainNameDisputes #Arbitration’ on 8th October 2020 (Thursday).

The Panelist leading the #Webinar is Mrs. Sushila Ram Varma. Mrs. Sushila Ram Varma is the Founder and Chief Consultant of “The Indian Lawyer & Allied Services”, Litigator, Arbitrator, and Negotiator. She is also the President of The Child Foundation and a Member of the Supreme Court Bar Association and Delhi High Court Bar Association.

The Link to the Webinar is given below:

Video Credits:

Speaker- Mrs. Sushila Ram Varma, Founder and Chief Consultant of “The Indian Lawyer & Allied Services”

Moderator- Mrs. Gaana Priya, a Research Associate of KFCRI

Organiser- Kovise Foundation Conflict Resolution International (KFCRI)

SUPREME COURT HOLDS THAT IF THE TESTIMONY OF RELATED WITNESS IS TRUTHFUL, IT CAN FORM THE BASIS OF CONVICTION

A Three Judge Bench of the Hon’ble #SupremeCourt comprising of Justices RV Ramana, Suryakant and Hrishikesh Roy passed a Judgment dated October 9, 2020 in the case of Karulal & Ors. v. State of Madhya Pradesh Criminal Appeal No. 316 of 2011 and held that if the #testimony of the #related #witnesses is truthful, it can form the basis of #conviction.

In the present case, an Appeal was preferred by the 5 Accused challenging the Judgment and Order dated 23.6.2009 whereby the High Court of Madhya Pradesh upheld their conviction under Section 148, 302 read with Section 149 of the Indian Penal Code, 1860. On completion of the investigation, a charge sheet was filed against five accused under 148, 302 read with Section 149 of the IPC, whereas, four others were charged under Section 506 IPC. However, the Trial Judge acquitted the four accused under Section 506 as the charges against them could not be proved.

The High Court of Madhya Pradesh in appeal, rejected the contention of the Appellants and held that the fact though the eye witnesses may not have seen the assault on the deceased happening, they reached the crime spot on hearing the shrieks of the deceased.  Their testimony that the accused was armed with lethal weapons and they fled the crime spot after the assault is pertinent to the case and cannot be ignored. The High Court opined that the testimony of the eye witnesses is consistent and the same is corroborated by the medical evidence. The High Court upheld the Order of conviction passed by the Trial Court and dismissed the Appeal.

In the Apex Court, the Appellants contended that because of past enmity they have been falsely implicated whereas the Respondent contended that medical evidence and injuries corroborate the oral testimonies.

While addressing the contentions raised by the Appellants and placing reliance on several judgments on law of evidentiary value of a related witness, the Court opined that being related to the deceased does not mean that they will falsely implicate innocent persons. In this case, an unrelated witness had also deposed supporting the testimony of related witnesses.

The Bench observed that:

“The above precedents make it amply clear that the testimony of the related witness, if found to be truthful, can be the basis of conviction and we have every reason to believe that PW3 and PW12 were immediately present at the spot and identified the accused with various deadly weapons in their hands.”

On the issue of past enmity raised by the Appellants, the Court observed the following:

“22. If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. In fact the history of bad blood gives a clear motive for the crime. Therefore this aspect does not in our assessment; aid the defence in the present matter.”

The Apex Court thus dismissed the Appeals and upheld the Order of Conviction passed by the High Court of Madhya Pradesh.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

DELHI HIGH COURT REFUSES TO ENFORCE FOREIGN JUDGMENT THAT RESTRAINS A PARTY FROM INITIATING LEGAL PROCEEDINGS

The #DelhiHighCourt has in a recent case of Interdigital Technology Corporation and Others vs Xiaomi Corporation and Others, passed a Judgment dated 09-10-2020 and held that a #foreigncourt cannot compel a party to #refrain from initiating #legalaction or withdraw pending #legalproceedings filed in another foreign court.

In this case, Wuhan Intermediate People’s Court (the Wuhan Court) passed an Order dated 23-09-2020 in favor of Xiaomi Corporation and held that InterDigital, Inc., InterDigital Holdings, Inc. and their affiliates shall refrain from filing any suit or application for permanent injunction, etc against Xiaomi Corporation and others before any court in India, China or other countries, seeking adjudication of royalty rates charged by Xiaomi Corporation for 3G and 4G Standard Essential Patents (the Anti-Suit Injunction Order). Failing which, InterDigital, Inc., InterDigital Holdings, Inc. and their affiliates would be liable to pay RMB 1 Million Yuan per day of violation.

Standard Essential Patents (SEPs) are the common technology standards set for technical requirements or specifications that have to be followed by manufacturers of mobile phones, tablets and other electronic devices. These SEPs are set and owned by entities (SEP Holder) in terms of the globally applicable standards formulated by Standard Setting Organizations (SSOs) such as European Telecommunications Standard Institute (ETSI).

The SEP Holder is under an obligation to grant license of the SEP to third parties on fair, reasonable and non-discriminatory terms. In return, the third parties have to pay reasonable royalty rates to the SEP Holder. The purpose of granting license is to ensure that the third parties manufacture, sell, lease, repair or dispose of equipments in accordance with the technology standards set by the SEP.

In this case, InterDigital, Inc., InterDigital Holdings, Inc. and their affiliates, being aggrieved by the Order dated 23-09-2020 passed by the Wuhan Court, moved an Application before the Delhi High Court seeking injunction to restrain Xiaomi Corporation and Others from enforcing the Anti-Suit Injunction Order of the Wuhan Court dated 23-09-2020.

The Delhi High Court made the following observations in this case:

  1. That the Defendants had failed to serve a copy of the Application for Injunction filed in the Wuhan Court to restrain the Plaintiffs from filing a suit or other application in any court in India, China or other countries. This establishes the fraudulent intention of the Defendants to supress material facts about the litigation preferred in China.
  • That the purpose of filing the Anti-Suit Injunction Application by the Defendants in the Wuhan Court without the knowledge of the Plaintiffs, seems to exclude them from interfering with the hearing and adjudication regarding fixation of global royalty rates between the Parties.
  • That the proceedings initiated by the Plaintiffs in the Delhi High Court are maintainable in law and the Plaintiffs were entitled to file this Suit in the Delhi High Court. Therefore, the Defendants cannot be allowed to enforce the Anti-Suit Injunction Order dated 23-09-2020 passed by the Wuhan Court, otherwise it would defeat the right of the Plaintiffs including the right to address the issue of royalty rates.
  • That the Wuhan Court, being a foreign court, cannot pass an Anti-Suit Injunction Order and compel the Plaintiffs to withdraw proceedings or initiate proceedings against the Defendants in India. The right to initiate prosecution and legal proceedings is a right granted by the law. Moreover, the Wuhan Court did not even provide any reasonable justification for passing such an Anti-Suit Injunction Order.
  • Further, an anti-suit injunction cannot be granted to restrain a person from instituting proceedings in a court not subordinate to that court, or to restrain any person from applying to any legislative body, or to restrain any person from instituting or prosecuting any proceeding in a criminal matter, etc, under Section 41 of the Specific Relief Act 1963.

Based on the aforesaid grounds, the Delhi High Court held that the Defendants did not act fairly with the Plaintiffs and that the Order of the Wuhan Court violated the public policy of India. Therefore, the Delhi High Court did not allow the Anti-Suit Injunction Application of the Defendant.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT RULES THAT AIRLINES ARE BOUND TO MAKE FULL REFUNDS OF AIRFARE CHARGED FOR TRAVEL DURING COVID-19 LOCKDOWN

In a recent Judgment dated 1-10-2020 passed by the #SupremeCourt, in Pravasi Legal Cell v. Union of India and other connected matters, the controversies regarding refund of money by #Airlines was finally decided and disposed of by a Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah.

In a Writ Petition filed under Article 32 an NGO called #Pravasi Legal Cell had challenged the policy of Airlines which were giving “credit shells” instead of refunding the passenger’s money for cancelled trips. It was alleged that the offer by Airlines in providing “credit shell” instead of refunding the full amount collected for the tickets cancelled on account of lockdown is a clear violation of the law. It further was alleged that the #MinistryofCivilAviation (MoCA) during the period of #Lockdown had issued an advisory to all stakeholders in the Civil Aviation Sector on 16-04-2020 for refund of full amounts collected without levy of cancellation charge to be made within three weeks of cancellation.

Contrary to the above directions the concerned Airlines were not refunding the amounts paid by the passengers and were instead offering a “credit shell” to be utilised by the passenger on or before 31-03-2021. The Petitioners who had moved the Writ Petition challenged the policy of the Airlines that were not ready to refund the full amount collected for the tickets and claimed that though the Airlines provided a “credit shell” with a validity of one year, the said act is contrary to the Civil Aviation Requirements (CAR). It was further held that as per CAR the option of holding refund in a “credit shell” by Airlines is the prerogative of the passenger and cannot be a default practice of the Airline. The Petitioners referred to the Office Memorandum (OM) of 16-04-2020 issued by MoCA and submitted that the said  OM only considered the tickets that were booked during the lockdown period and left out the majority of passengers who had booked tickets before flights were banned. That having done so it appeared that the Government had indirectly approved the practice of Airlines for providing “credit shell” for tickets booked before the lockdown and that such acts of the Airlines was contrary to the law and in violation of CAR. The Petitioners therefore approached the Supreme Court of India for directions to the Respondent to refund the full amount collected for the tickets booked anytime for travel.

Writ Petitions were filed by Air Passengers Association of India, Col. Ashok Prehar and Travel Agents Federation of India with similar grievances and seeking similar reliefs. These Writ Petitions were clubbed with the first Writ Petition namely, Pravasi Legal Cell and were decided together.

The Airlines tried to explain their conduct by pleading that due to COVID-19 all businesses suffered including airlines and by giving a “credit shell” they were looking at “a workable solution in view of the interest of passengers as well as Airlines”.

The Directorate General of Civil Aviation (DGCA) filed an Affidavit and submitted to the Supreme Court that the meeting was held on 2-07-2020 under the Chairmanship of Secretary Civil Aviation to discuss issues relating to refund of airfare by Airlines. The said Minutes were also placed on record. Thereafter, follow up Meetings were held on 8-07-2020 and 11-07-2020 with representatives of Online Travel Agents and other similar Organizations. The DGCA submitted that refund of fares is governed by CAR. It further stated that cancellation of flights due to force majeure puts a responsibility on the Airlines to refund the full fare to the passengers but does not allow compensation to the passenger. The DGCA further submitted that any enforcement action taken by the DGCA for violations of CAR against Airlines may result in reduction/suspension of approved schedule of Airlines which is already operating with limited capacity. Imposition of penalties or enforcement action against Airlines would only further jeopardize the generation of cash by the Airlines making it impossible to refund money to the passengers. The DGCA therefore, provided a workable solution keeping in mind the Airlines as well as the passengers and arrived at a formulation that is reproduced after the Article for the reader’s reference as Annexure-A attached below:

Though various contentions and issues were raised by parties on both sides and suggestions and formulations were given, the Supreme Court accepted the suggestions that were acceptable to the majority of stakeholders. The Court held that in the ordinary course modalities and timelines on refund for cancellation are governed by CAR Policies dated 22-05-2008, 6-08-2010 and 22-07-2019. In exercise of its powers under the provisions of Aircrafts Act, 1934 and the Rules made thereunder.

The Supreme Court further held “we cannot lose sight of the present situation prevailing in the country and across the globe, i.e. the effect of pandemic COVID19.

It cannot be disputed that the civil aviation sector, which is one of the important sectors, is seriously affected in view of the ban imposed for operating flights. Added to the same, air passenger traffic has come down heavily and which is gradually being restored. At this moment any strict enforcement action of the CARs would further restrict/reduce their operations and such enforcement action may further jeopardise the possibilities of generation of cash by airlines which can further adverselyaffect/delay the refund cycle.

Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holder. In view of the suggestions and formulations arrived at in the meetings held by respondent nos.1 and 2, which are acceptable to the majority of stake holders, have to be implemented in letter and spirit.

The Supreme Court further held that bearing in mind the contentions of all it considered it appropriate to dispose of the batch of cases with the following directions:

“1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.

2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers.

3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR).

4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is exIndia, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made.

5. If the tickets are booked for international travel on a foreign carrier and the booking is exIndia during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks.

6. In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021. It is open to the passenger either to utilize such credit shell upto 31st March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he / she has booked the ticket and the airlines shall honour such a transfer.

6.1. The credit shell issued in the name of the passenger shall be transferable which can be utilized upto 31st March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance.

7. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.

8. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.”

Sushila Ram Varma

Advocate and Chief Consultant

The Indian Lawyer & Allied Services