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

TIL Legal Fundamentals: Episode 8: Domain Name Dispute Resolution

In the last few years, there has been tremendous growth in digital and internet media. In this #digital era, #internet has become the most effective medium of conducting #business, trade and commerce, education, governance and communication.

Moreover, during the #Covid-19 and Lockdown period, there has been a significant rise in online presence. People have become increasingly dependent on digital media for communication, work, business, entertainment, education, etc. There has also been an increase in the #domain name registrations across the globe.

The Indian Lawyer & Allied Services is a multi-city commercial and business boutique Law Firm that provides advice in different aspects of Contract Law and has expertise in corporate and commercial laws.

Thus, in our endeavour, we bring before you the Eighth Episode of our YouTube Series called ‘TIL Legal Fundamentals’ and enable parties to understand domain name dispute resolution practices and policies that are followed across the world.

Please find the link below of Episode 8 of TIL Legal Fundamentals: Domain Name Dispute Resolution:

VIDEO CREDITS:

Written and Edited By: Team, The Indian Lawyer & Allied Services

Category: Legal

License: Standard YouTube License

#domain #domainname #dispute #resolution #arbitration #covid19 #lawyers #legalhelp #remedy #court #aggrieved #kfcri #ADR

For more queries, please contact us at contact@theindianlawyer.in and theindianlawyer@gmail.com

To subscribe to The Indian Lawyer & Allied Services:

https://www.youtube.com/channel/UCRpX3PDDCU3c3Fmwwqy3CzA

Kovise Foundation Conflict Resolution International Webinar on Domain Name Disputes Arbitration on Wednesday, 08-10-2020

Greetings,
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 ‘Domain Name Disputes Arbitration’

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 session shall be moderated by Mrs. Gaana Priya, a Research Associate of KFCRI.          
Date: 8th October 2020 (Thursday)

Time:  3:00 PM – 4:00 PM (IST) (GMT+5.30)

Topic: ‘Domain Name Disputes Arbitration’ – A KFCRI ‘Sector-Specific’ Webinar Series – 08.10.2020

Register in advance for this Webinar: 

https://us02web.zoom.us/webinar/register/WN_eguHLfPMQdyrxrW3FCwyzg

After registering, you will receive a confirmation email containing a link to join and more information about the webinar. The same can be used to attend the webinar.

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

SUPREME COURT REITERATES PRINCIPLES OF TRANSFER OF OWNERSHIP IN HIRE-PURCHASE CONTRACTS

The #SupremeCourt has in a matter of M/S Magma Fincorp Ltd. vs Rajesh Kumar Tiwari passed a Judgment dated 01-10-2020 and reiterated the principles of transfer of #ownership in #hirepurchase #agreements.

In this case, the Complainant-Respondent had entered into a Hire-Purchase Agreement (the Agreement) with the Appellant- then known as M/S Magma Fincorp Ltd for hire-purchase of a Mahindra Marshal Economic Jeep (the Vehicle). The cost of the Vehicle was Rs. 4,21,121/- out of which Rs. 1,06,121/- had been paid by the Respondent. The balance amount of Rs. 3,15,000/- was paid by the Appellant-Financier to the vendor. The Respondent then received possession of the #Vehicle from the dealer/vendor on 29-07-2002.

As per the Agreement, the Respondent had to repay a sum of Rs. 4,38,585/- including finance charges, to the Appellant-Financier in 35 monthly instalments commencing from 01-08-2002 till 01-06-2005 (the Amount). But the Respondent only paid the first 7 instalments and failed to pay the monthly instalments thereafter. As a result, the Appellant took re-possession of the Vehicle from the Respondent on 14-07-2003 allegedly by giving a prior Notice dated 26-07-2003 to the Respondent. But as the Respondent still did not pay the instalments, the Appellant sold the Vehicle in November 2003 and recovered the dues from the sale proceeds.

Aggrieved by the actions of the Appellant, the Respondent filed a Complaint on or about 15-07-2005 under Section 12 of the Consumer Protection Act 1986 for deficiency of services, before the District Consumer Dispute Redressal Commission (District Forum). The Complaint was made on the ground that he could not repay the instalments due to illness and that the Appellant did not allow any further time for repayment.

The District Forum passed an Order dated 22-08-2008 allowing the Complaint on the ground that the prior sale Notice dated 26-07-2003 was not sent to the Respondent at the address mentioned in the Agreement and thus, it would not be deemed to have been served upon the Respondent. Further, the Appellant-Financier was directed to pay compensation and damages to the Respondent.

Aggrieved by the Order of the District Forum dated 22-08-2008, the Appellant-Financier filed an Appeal before the State Consumer Dispute Redressal Commission (State Commission), which passed an Order dated 31-08-2017 and upheld the Order of the District Forum.

Aggrieved by the Order of the State Commission dated 31-08-2017, the Appellant filed a Revision Petition before the National Consumer Dispute Redressal Commission (National Forum), which passed an Order dated 02-08-2018 and upheld the Order of the State Commission.

Aggrieved by the Order dated 02-08-2018 of the National Forum, the Appellant filed an Appeal before the Supreme Court. The Apex Court made the following observations in the said case:

1- Hire-purchase contracts:

i) A hire purchase agreement is an executory contract of sale, conferring no right in rem on the hirer (purchaser), until the conditions for transfer of the property to him have been fulfilled. The financier continues to be the owner of the goods under a hire purchase agreement until all the instalments are paid or otherwise as mentioned in the hire-purchase agreement.

ii) Thus, when the financier takes re-possession of a vehicle under hire, upon default by the hirer in payment of instalments, it is deemed that the financier has taken repossession of its own vehicle.

iii) In this case, as per the Hire-Purchase Agreement, ownership of the Vehicle was to remain with the Financier until all the instalments were repaid by the Respondent-Purchaser.

iv) So as the Respondent had defaulted in repayment of the monthly instalments, the Financier was entitled to take re-possession of the Vehicle and sell it to recover the unpaid dues from the sale proceeds.

2- Deficiency of services:

i. Section 2 (g) of the Consumer Protection Act 1986 (the Act) defines “deficiency” as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

ii. In this case the Agreement did not provide that the Financier had to issue a mandatory prior sale notice to the Respondent-Purchaser before terminating the Agreement or taking re-possession of the Vehicle.

iii. But as the Appellant had issued a Notice prior to the sale of the Vehicle, it is deemed that the obligation for issue of a prior notice was implicit in the Agreement.

iv. Thus, in the present case, as there was an error in the address of the Respondent in the said Notice, the Appellant was liable for deficiency only to the extent that it omitted to give the Respondent a proper notice before taking re-possession and selling the Vehicle.

3- Erroneous Orders of the District Forum, the State Commission and the National Forum

The District Forum, the State Commission and the National Forum had erred in passing their respective Orders on the following grounds:

(i) The District Forum has held the Appellant liable for deficiency in services as it had taken possession of the Vehicle “forcefully” or by “snatching” upon default and then, sold it to third parties. But the Respondent did not make any allegation in his Complaint about breach of the Agreement due to Appellant’s act of taking possession of the Vehicle “forcefully”. The District Forum erred in making out a new case when there were no pleadings/submissions to support the same.

(ii) The State Commission and the National Forum made unsubstantiated assumptions that the Appellant had deliberately sent the Notice to a wrong/different address so that it can sell the Vehicle without the knowledge of the Respondent. But it was not the case of the Respondent that the Vehicle was sold without notice or knowledge.

(iii) Further, the District, State and National Forums did not properly assess the loss/damages, if any, suffered by the Respondent due to non-service of Notice before determining the amount of compensation and damages in the said case.

Thus, the Apex Court held that the Appellant in this case cannot be held liable for deficiency in service on account of entering the premises of the Respondent to take re-possession of the Vehicle upon default of payment of instalments, as the Agreement had authorized the Financier to do so. Therefore, the Supreme Court set aside the Orders of the District Forum, the State Commission and the National Forum.

But the Apex Court directed the Appellant to pay a composite sum of Rs. 15,000/- to the Respondent for deficiency on account of failure to serve a proper notice before taking re-possession of the Vehicle.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

APPLICABILITY OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 IN THE RECENT INVESTIGATIONS PERTAINING TO THE DEATH OF SUSHANT SINGH RAJPUT

In recent times the Investigation on the #SushantSinghRajput’s Death case has taken a complete turn after the Narcotic Drugs Bureau (#NCB) joined the #Investigations regarding the cause of the death of the late Actor. Investigation by the NCB has opened a pandora’s box of celebrities who are either taking restricted drugs or peddling the same.

This paper seeks to give an overview of the offences committed and penalties that can be levied. The Author does not cast aspersions on any of the celebrities who are being named or shortlisted in the investigations by the NCB.

The Indian law and Regulations regarding the control of #Narcotic #Drugs and #PsychotropicSubstances is based on the country’s obligations towards the United Nations (#UN) Conventions where India is a signatory and where various countries have entered into these Conventions for controlling and limiting the use of narcotic drugs and psychotropic substances for medical and scientific purposes. The following Conventions by which India is bound is as follows:

  1. The UN Single Convention on Narcotic Drugs 1961,
  2. The Convention on Psychotropic Substances, 1971 and
  3. The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988

The law pertaining to use and abuse of drugs is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The NDPS Act is very stringent and drug offences invite heavy penalties including imprisonment.

The quantum of sentence and fine depends on the quantity of drugs involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Commercial quantities that are allowed are notified for each drug and if a person is found to have the notified quantity for Commercial use, it will not be deemed to be an Offence.

Under the NDPS Act, abetment to an offence will fall within the definition of criminal conspiracy and will attract penalties and prosecution. The penalties can range from a fine to a death penalty in the case of repeated offenders. Though the NDPS Act provides for some immunities depending on the facts.

The penalties for various offences under the NDPS Act are as follows[1]:

OffencesPenaltiesSections of the Act
Cultivation without license  of opium, cannabis or coca plants  Rigorous imprisonment-up to 10 years + fine up to Rs.1 lakhOpium – 18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmerRigorous imprisonment -10 to 20 years + fine of Rs. 1 to 2 lakhs (regardless of the quantity)19
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substancesSmall quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantity but less than commercial quantity – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 LakhsPrepared opium-17   Opium – 18   Cannabis-20   Manufactured drugs or their preparations-21   Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substances  Same as above23
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside India  Rigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)24
Knowingly allowing one’s premises to be used for committing an offence  Same as for the offence25
Violations pertaining to controlled substances (precursors)  Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs25A
Financing traffic and harbouring offenders  Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs27A
Attempts, abetment and criminal conspiracySame as for the offenceAttempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offence  Half the punishment for the offence30
Repeat offenceOne and half times the punishment for the offence. Death penalty in some cases.  31 Death – 31A
Consumption of drugsCocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution  27 Immunity – 64A
Punishment for violations not elsewhere specified      Imprisonment up to six months or fine or both32

Small and Commercial Quantities

For several offences under the NDPS Act, the punishment depends on whether the quantity of drugs involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified. The quantities for some common drugs are as follows[2]:-

DrugSmall QuantityCommercial Quantity
Amphetamine2 grams50 grams
Buprenorphine1gram20 grams
Charas/HashishCharas/Hashish1 kg
Cocaine2 grams100 grams
Codeine10 grams1 kg
Diazepam20 grams500 grams
Ganja1 kg20 kg
Heroin5 grams250 grams
MDMA0.5 gram10 grams
Methamphetamine2 grams50 grams
Methaqualone20 grams500grams
Morphine5 grams250 grams
Poppy straw1 kg50 kg

Who gets immunity?

A person gets immunity from the applicability of NDPS under Section 64 and 64A. As per these Sections, a person can get immunity from prosecution and penalties if he/she makes a full and true disclosure of the whole circumstances relating to such contravention of the NDPS Act.

As per the law, if any addict, who is charged with an offence punishable under Section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment, then he/she shall not be liable to prosecution under Section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

Punishment for repeat Offenders

As drug abuse is generally habitual in nature, the NDPS Act aims to discourage repeated misuse and abuse by imposing often far stricter punishment on repeat offenders. Generally, punishment is decided by the offence and in case of a repeated offence the punishment can range anywhere from 18 months to 30 years. Similarly, the fine also increases in case of a repeated offence.

There is a provision that even invites death penalty for repeated offences. This provision is often criticized. But one cannot lose view of the larger picture which is, that the Government wants to discourage and eradicate the use of drugs and psychotropic substances from society. In recent times, a movie called Udta Punjab shows that drugs are being used as soft terrorism to harm the youth of Punjab which adjoins Pakistan. In this movie, the Director endeavours to show the harmful effects of substance and drug abuse and the helplessness of the family of the victim.

The Indian Government in a move that was widely hailed by the Human Rights Community in the 2014 Amendment, clarified that the death penalty can be imposed only as a substitute for the other punishments. However, on a close inspection of the drug market globally, it seems that even the drug penalty does not act as a sufficient deterrent for drug dealers and prevent them from surreptitious practices that these laws seek to control.

Procedural safeguards in the NDPS Act

Since the NDPS Act gives extensive powers to law enforcement agencies there is a need for providing adequate safeguards to prevent innocent civilians from being unnecessarily harassed. An authorised person who makes an arrest under the NDPS Act has to report all details to his immediate superior. Similarly, the Code of Criminal Procedure 1973 (CrPC) requires that a Police Officer who makes a search for drugs to do so in the presence of 2 panchas i.e. witnesses and these panchas must be persons who are considered respectable in society. Thereafter, a statement containing the details of the search and seizure, with the signature of the panchas, must be given to the accused for his perusal.

Another Section that provides safeguard is Section 50 of the Act that gives the accused the right to be searched in the presence of a Magistrate or a gazetted officer. The Hon’ble Supreme Court of India in the case of State of Punjab v. Balbir Singh 1994 AIR 1872 upheld this right and held that the police officer must, inform the accused about this right.

Finally, Section 58 of the NDPS Act imposes strict punishments on people making vexatious or frivolous complaints.

Though the NDPS Act allows drugs for scientific or medical purposes the provisions are very stringent thereby making it virtually impossible for the health sector for the use of such restricted drugs for scientific or medical purposes. There are times that such drugs are required for terminally ill patients who cannot tolerate the pain.

The Medical Institutions require licenses from various regulatory agencies. Hence, the 2014 Amendment seeks to provide a single window clearance system, so that they could have an easy access to these drugs and thus these Institutes have been given the status of Recognized Medical Institution (RMI).

Therefore, a special category of drugs called Essential Narcotic Drugs has been created and its use is regulated by the Central Government. Hopefully, it will help in giving some relief to the terminally ill patients who require drugs.

Sushila Ram (Varma)

Chief Legal Consultant

The Indian Lawyer and Allied Services


[1] Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences

[2] Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences