SUPREME COURT

• CRIMINAL LAWS

Khilari Vs. State of U.P. and Ors. Decided on 23.01.2009 MANU/SC/0073/2009

Grant of Bail by the High Court during the pendency of Appeal challenging conviction recorded by Sessions Court for offences punishable under Section 302 and 506 of the Indian Penal Code, 1860 - Whether Bail rightly granted

It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the court in support of the charge.

Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh and Ors. MANU/SC/0203/2002, Puran etc. v. Rambilas and Anr. etc. MANU/SC/0326/2001 and in Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Anr. MANU/SC/0214/2004.

In the instant case there was complete non-application of mind and non-consideration of the relevant aspects and accordingly the impugned order therefore held to be not sustainable and set aside

Mohan Chand Vs. State of Uttarakhand Decided on 23.01.2009 MANU/SC/0074/2009

Appellant was found to be guilty of offence punishable under Section 376 of the Indian Penal Code, 1860 - Appeal against the order of conviction was dismissed by the High Court - Appellant contended that at the first instance his name was not stated and, he therefore was falsely implicated and the conviction also bad due to insufficiency of evidence to establish the accusations

The prosecutrix did not know the name of the accused and, therefore, there was necessity for Test Identification Parade. The evidence of the prosecutrix was clear and cogent. In the instant case the accused was not personally known to the victim and therefore question of stating his name in the FIR did not arise. However, she had categorically stated that the rape was committed on her by the truck driver. After the arrest of the accused he was put in TI Parade and the victim had correctly identified him. That being so, the judgments of the trial Court and the High Court held to be suffering from no infirmity to warrant interference.

• CONSUMER LAWS

New India Assurance Co. Ltd. Vs. Abhilash Jewellery Decided on 22.01.2009 MANU/SC/0067/2009

Respondent had a business establishment in the State of Kerala, had taken a Jeweller's Block Policy - During the currency of the policy, Respondent lodged a claim with the Appellant for the loss of gold ornament - Claim was repudiated by the Appellant on the ground that the loss of gold was occasioned as it was in the custody of an apprentice, who was not an employee

View taken by the National Commission that an apprentice is an employee because Section 2(6) of the Kerala Shops and Commercial Establishments Act defines an employee to include an apprentice was held to be incorrect. The present case since covered solely by the contract of insurance, though uses the word 'employee', but does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment.

In the present case, since the word 'employee' has not been defined in the contract of insurance, it has to be given the meaning which it has in common parlance and in common parlance, an apprentice is a trainee and not an employee. Even if he is given a stipend that does not mean that there is a relationship of master and servant between the firm and the apprentice

• CIVIL LAWS

Asit Kumar Kar Vs. State of West Bengal and Ors. Decided on 21.01.2009 MANU/SC/0062/2009

Distinction between a petition under Article 32 of the Constitution of India, a review petition and a recall petition

In a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order that was passed without giving an opportunity of hearing to an affected party. The instant petition under Article 32 was treated as a recall petition as the order passed in the referred case of All Bengal Licensees Association v. Raghabendra Singh and Ors canceling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences.

HIGH COURT

• INTELLECTUAL PROPERTY RIGHTS

BOMBAY HIGH COURT

Music Choice India Private Limited Vs. Phonographic Performance Limited (Decided on 22.01.2009) MANU/MH/0028/2009

Plaintiff is a broadcaster of music - Plaintiff sought a licence from the owner of Copyright in sound recordings to broadcast their music - Defendant is assignee of such rights- Plaintiff offered certain consideration as to payment of money for broadcasting those sound records - Defendant has not accepted offer - Plaintiff approached the Copyright Board and then within a fortnight of this application moved the Civil Court on the ground that the Defendant has demanded an unreasonable royalty from the broadcasters - Plaintiff's contention is that the royalty claimed by the Defendant is excessive and arbitrary which the Defendant , as a creature of the Statute (the Act) cannot do - Issue is whether the Civil Court's jurisdiction is barred pending adjudication of the dispute before the Copyright Board under Section 31(1)(b) of the Copyright Act

Rights of the broadcasters as claimed by the Plaintiff were not pre- existing in Common Law. These rights are for the first time, created under Section 31(1) (b) of the Act. The Act prescribes a machinery for the enforcement of these newly created rights. The Civil Courts jurisdiction to grant any declaration or injunction, subject to the statutory determination is also barred.

Inherent jurisdiction of the Copyright Board in absence of any provision to grant interim relief.

Even where there was no specific provision in a legislation granting jurisdiction to a Tribunal of passing interim relief, it has been settled position in law that interim relief is passed in aid of the final relief as an inherent power of that Court or Tribunal. In the case of The Management Hotel Imperial, New Delhi v. Hotel Workers' Union MANU/SC/0116/1959 it was held that under Section 10(4) of the Industrial Disputes Act, the Industrial Tribunal has power to grant interim relief where it is admissible, as a matter incidental to the main question referred to the Tribunal without itself being referred in express term. Hence, it was held that even where the question of compensation was referred to a Tribunal, interim relief could be granted by the Tribunal on merits. The Plaintiff's suit is in essence an action for obtaining interim relief from the Civil Court pending adjudication of the dispute by the Copyright Board. That constitutes an abuse of the legal process laid down under the Act.

• COMMERCIAL/ CONTRACT

BOMBAY HIGH COURT

Nine Paradise Hotels Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, 1956 and Mr. Rajan Chourse Vs. National Textile Corporation Ltd., (Western Region) (Finally Mills), a Company incorporated under the provisions of the Companies Act, 1956 and Union of India (UOI) represented through the Ministry of Textile (Decided on  15.01.2009) MANU/MH/0020/2009

Constitution of India - Articles 14 and 226 - National Textile Corporation Limited (hereinafter "the Corporation") published a tender notice inviting tenders for sale of free hold land with structures and plant and machinery - Petitioners submitted their tender bid on 12th December 2008 while fulfilling all the terms and conditions of the tender - Corporation opened bids on 12th December 2008 itself - Same day, Corporation called upon all the bidders to collect their Earnest Money Deposit as it was not accepting any of the bids - Petitioners and others requested the Corporation to disclose the reserved price however there was disclosure of the reserve price - Petitioners approached Court under Article 226 praying for issuance of a writ directing the Respondent Corporation to comply with the terms and conditions of the tender and accept the bid of Petitioner No. 1 of Rs. 405 crores and to complete the transaction in favour of the Petitioners - Whether the Court can exercise powers inherent under Art. 226 to call for judicial review in such matters

Judicial review would apply to the contractual power by the Government bodies in order to prevent arbitrariness or favouritism. The decision of the authorities cannot be termed as unfair only because some other decision could possibly be taken with reference to the terms and conditions of the tender. Unless the Petitioners could demonstrate that the decision is totally arbitrary without appropriate reasons and is a colourable exercise of power, while noticing the inherent limitation in exercise of its power, the Court would hardly be clothed with the power of judicial review in such administrative decisions.

• ARBITRATION

DELHI HIGH COURT

Sterlite Optical Technologies Ltd. Vs. Bharat Sanchar Nigam Ltd. (Decided on 14.01.2009) MANU/DE/0043/2009

Arbitration and Conciliation Act, 1996 - Sections 5, 11(2), 11(5), 11(6) and 34; Contract Act - Section 28 - Parties entered into a contract - Agreement contains an arbitration agreement/ clause which is in dispute in this case - Petitioner has applied under Section 11 ( 6) of the Arbitration Act on the ground that the respondent in spite of request has refused to join in the appointment of the arbitrator and / or the appointing authority has failed to appoint the Arbitrator and thus the agreed arbitration procedure has failed

The arbitration clause in the present case showed that the parties had in the agreement itself agreed on the arbitrator. The CMD of the respondent was the agreed arbitrator. When the parties have agreed on the arbitrator to whom the disputes are agreed to be referred, upon disputes arising, the parties or any of them are required to approach the said named arbitrator. In such case, sub-sub-clause (c) of Sub-section 6 is attracted and a party becomes entitled to request the Chief Justice for securing the appointment only when the named arbitrator fails to perform any function entrusted to him under that procedure. When an arbitrator is named in the agreement, the parties raising the dispute or making the claims is not required to approach the other party to join in the appointment of the arbitrator or to appoint the arbitrator.

• CIVIL

DELHI HIGH COURT

Anil Nanda and Anr. Vs. Escorts Ltd. and Ors. (Decided on 16.01.2009) MANU/DE/0048/2009

Appellant No. 2 contends to have made a contribution of Rs. 1.5 Crores to the corpus of Escort Heart Institute and Research Center, Delhi Society (EHIRC) on the footing that it was a purely charitable body, whose income would be utilized solely for charitable purposes - Appellant No. 1 was on the governing body of EHIRC-Delhi Society and was representing Appellant No. 2 - Appellants were aggrieved by amalgamation of charitable EHIRC- Delhi Society with a non charitable Chandigarh society and then the subsequent incorporation of the amalgamated society as a company - Company issued shares and the said shares had been transferred for huge consideration to individuals other than those involved in the institution of the initial charitable society - Appellants contends a cause of action founded not only on a contract but also on torts of fraud, deceit, misrepresentation and conversion against the Defendants in the suit.

If the allegations made in the plaint are true and correct then the Respondents have indulged in a fraud of egregious nature by converting a charitable society and its properties into a private profit making company. The principle in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Ors. reported in MANU/SC/0683/2003, that once fraud is proved it will deprive the person of all advantages or benefits obtained thereby would be attracted here.

• COMPANY

DELHI HIGH COURT

Hillcrest Realty Sdn. Bhd. Vs. Hotel Queen Road Pvt. Ltd. and Othrs (Decided on 14.01.2009) MANU/DE/0023/2009

Respondent is private limited company - Appellant is a preference shareholder in Hotel Queen Road Pvt. Ltd. - Respondent 'converted' itself into a public limited company in September/October, 2002 and it concealed this fact - What is the legal position on the "suppression or non- disclosure of facts"

In Seemax Construction (P) Ltd. v. State Bank of India and Anr. it was held that, a party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. The desirable disclosures v obligatory disclosures controversy was mentioned in this decision but not dealt with since it was observed that in that case, there was an obligation to disclose the facts that were actually suppressed. The interim application was dismissed for concealment of material facts. Relying on the principle of J.K. Kashyap v. J.K. Guha and Standipack Pvt. Ltd. v. Oswal Trading Co. Ltd. , it was held that suppression of a material fact disentitles a litigant from obtaining discretionary relief from the Courts.