Bombay High Court Weekly Roundup: February 26 To March 3, 2024

Grand Paradi Co-operative Housing Society Ltd. & Ors. v. Mont Blanc Properties & Industries Pvt. Ltd. & Ors. 2024 LiveLaw (Bom) 106

State of Maharashtra v. Dr. Anil Pinto 2024 LiveLaw (Bom) 107

Shendra Advisory Services P. Ltd. v. Deputy Commissioner of Income Tax 2024 LiveLaw (Bom) 108

ABC v. State of Maharashtra 2024 LiveLaw (Bom) 109

Devika Natvarlal Rotawan v. State of Maharashtra and Ors 2024 LiveLaw (Bom) 110

Shanta Digambar Sonawane v. Union of India and Anr. 2024 LiveLaw (Bom) 111

Lata Rajesh Shetty @ Latha Rajesh Shetty v. Satish Surappa Poojari 2024 LiveLaw (Bom) 112

Central Bureau of Investigation v. Netflix Entertainment Services India LLP 2024 LiveLaw (Bom) 113

The Commissioner of Income Tax (TDS) v. M/s. B. Arunkumar Trading Ltd 2024 LiveLaw (Bom) 114

Yogesh Rajendra Mehra v. Principal Commissioner CGST & Central Excise Raigad 2024 LiveLaw (Bom) 115

Eknath Ganpatrao Khadse and Ors. v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 116

Godrej Industries Ltd. v. The Assistant Commissioner of Income Tax 2024 LiveLaw (Bom) 117

Maharashtra State Electricity Distribution Company Ltd. v. Ramchandra s/o. Madhavrao Naik and Anr. 2024 LiveLaw (Bom) 118

HDFC Bank Limited v. Kishore K. Mehta and Anr. 2024 LiveLaw (Bom) 119

Reports/Judgments

Bombay High Court Declines Application For Increasing Valuation Of Suit, Says Pecuniary Jurisdiction Lies With City Civil Court

Case Title: Grand Paradi Co-operative Housing Society Ltd. & Ors. v. Mont Blanc Properties & Industries Pvt. Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 106

The Bombay High Court held that it cannot entertain an application for increasing the valuation of a suit over which it has already lost jurisdiction due to an increase in pecuniary jurisdiction of the Mumbai City Civil Court and the consequent transfer of cases from HC to that court.

It further held that allowing a court to decide an application in any suit that was already transferred to another court would set a dangerous trend.

Justice Sandeep V Marne refused to entertain an application for amendment of a plaint to increase its valuation. The Bombay City Civil Court (Amendment) Act, 2023, had caused the suit to be transferred to the City Civil Court due to its increased pecuniary jurisdiction.

Medical Negligence: Bombay High Court Upholds Doctor's Conviction For Patient's Death 40 Yrs Ago

Case Title: State of Maharashtra v. Dr. Anil Pinto

Citation: 2024 LiveLaw (Bom) 107

The Bombay High Court upheld the conviction of a septuagenarian doctor for his negligence by not taking immediate steps to deal with a complication during a surgery, leading to the death of a patient in 1984.

Justice Bharati Dangre increased the fine imposed on Dr. Anil Pinto from Rs. 5,000 to Rs. 5 lakh. Out of this sum, Rs. 4.9 lakh is directed to be paid to the family of the victim.

“An error of judgment on part of the professional is also not negligence per se, but when an expert surgeon like Dr. Pinto leave the patient waiting, with a spasm of a vital artery and which subsequently resulted in formation of clots, definitely amounts to negligence. The most relevant period of 12 hours was allowed to pass with no serious steps being taken, with a just wait and watch policy adopted by him”, the court observed.

Share Premium Received By Issuance Of Shares Is On Capital Account And Gives Rise To No Income: Bombay High Court

Case Title: Shendra Advisory Services P. Ltd. v. Deputy Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 108

The Bombay High Court held that the share premium received by the issuance of shares is on the capital account and gives rise to no income.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that even if the assessee had violated the provisions of the Companies Act, 1956, it would be penalized by the provisions of that Act, and it would never turn a capital receipt into a revenue receipt or vice versa. There is nothing on record from the balance sheet filed indicating that the share premium amount has been utilized for purposes other than what is prescribed in Section 78(2) of the Companies Act, 1956.

S.125(3) CrPC | Magistrate Can't Order Imprisonment For More Than 12 Months' Default In Maintenance In A Single Application: Bombay High Court

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 109

The Bombay High Court ordered the release of a man sentenced to simple imprisonment of 47 months for of default in payment of interim maintenance awarded to his wife and daughter in a domestic violence case.

Justice Sharmila U Deshmukh observed that under section 125(3) CrPC, the power of the Magistrate to impose punishment of imprisonment for default is restricted to 12 months, as the proviso provides a limitation period of 12 months from the due date of payment.

“by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months. If an application cannot be filed seeking warrant for recovery of amount remaining unpaid for period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year. The period of 12 months is the outer limit”, the court observed.

The court clarified that while only 12 previous months of defaults can be clubbed in one application, imprisonment can be imposed for subsequent defaults in subsequent applications.

High Court Asks Maharashtra Govt To Consider 26/11 Mumbai-Terror Attack Victim's Plea For EWS Housing

Case Title: Devika Natvarlal Rotawan v. State of Maharashtra and Ors

Citation: 2024 LiveLaw (Bom) 110

The Bombay High Court directed the Housing Minister of the Maharashtra Government to consider 26/11 Mumbai Terror Attack victim - Devika Rotawan's - plea for a residential premises in the economically weaker section (EWS).

A division bench of Justices GS Kulkarni and Firdosh Pooniwala called it a “real case” to exercise discretion. Especially when discretion is often exercised in lesser deserving cases, it remarked.

“In our opinion, these are the real cases where authorities need to exercise discretion appropriately which is otherwise routinely exercised in cases found to not at par with a case as the present case. We limit ourselves to direct the minister to take appropriate decision.”

The bench was irked by the mechanical manner in which the Secretary of the housing department said in his noting that such a request could not be considered even without filing an affidavit in the matter.

Minor Mistakes Due To Disability Should Not Lead To Serious Consequences Such As Loss Of Job Opportunity: Bombay High Court

Case Title: Shanta Digambar Sonawane v. Union of India and Anr.

Citation: 2024 LiveLaw (Bom) 111

The Bombay High Court held that refusing to remedy errors stemming from candidates' disability contravenes the principle of equality, and employers should ensure that such minor mistakes do not lead to loss of the job opportunity itself.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye set aside the cancellation of candidature to a post in the Railways of a 31-year-old blind woman, who inadvertently entered the wrong birth year in her application.

“Visually impaired individuals may make mistakes, such as typing errors, due to their impairment or may need to rely on others. These errors, stemming from their disability, should not result in discrimination or unfair treatment by employers. Rejecting the applications and then refusing to remedy the mistakes even within a reasonable time solely because of these errors, would contravene the principle of equality”, the court held.

The court further observed that legislation for the disabled should not merely remain in the statute book, and reasonable accommodations tailored to the specific needs of disabled individuals should be made to procedures.

Person Seeking Letters Of Administration Must Personally Serve Notice At Last Known Address Of Legal Heir With Unknown Whereabouts: Bombay High Court

Case Title: Lata Rajesh Shetty @ Latha Rajesh Shetty v. Satish Surappa Poojari

Citation: 2024 LiveLaw (Bom) 112

The Bombay High Court observed that a person seeking Letters of Administration (LoA) with Will Annexed must personally serve the citation (notice of the application) to the last known address of a legal heir whose whereabouts are unknown.

Justice Manish Pitale revoked the LoA granted to a person who had directly published the citation in newspapers without personally serving the citation on the ground that whereabouts of the concerned legal heir were unknown.

“By simply stating that the whereabouts of the person are not known, the petitioner in the said testamentary petition cannot be permitted to bypass the mandatory requirement of Rule 399 of the said Rules [Bombay High Court (Original Side) Rules] to personally serve the citation. The use of the words “when possible” have to be interpreted to mean that citations are mandatorily required to be served on at least the last known address of the person cited as a legal heir of the deceased”, the court observed.

Public Perception Cannot Be A Ground For Staying The Release Of The Docuseries On Indrani Mukerjea: Bombay High Court

Case Title: Central Bureau of Investigation v. Netflix Entertainment Services India LLP

Citation: 2024 LiveLaw (Bom) 113

The Bombay High Court dismissed a petition filed by CBI seeking to stay the release of the Netflix docuseries – “Buried Truth – The Indrani Mukerjea Story.”

The docuseries features accused Indrani Mukerjea and five other witnesses cited by the CBI in the Sheena Bora murder trial. Mukerjea is the prime accused in her daughter - Sheena's – murder.

The judges agreed to watch the series themselves.

The court stated that public perception cannot be a ground for staying the release of the docuseries. The court found nothing in the docuseries prejudicial to the prosecution or the witnesses yet to be examined. The court noted that there are already movies and books in the public domain about the Sheena Bora case, and the docuseries is based on information that is already publicly available.

Storage Tanks Does Not Qualify Either As Land Or As Building, TDS Deductible On Storage Charges: Bombay High Court

Case Title: The Commissioner of Income Tax (TDS) v. M/s. B. Arunkumar Trading Ltd

Citation: 2024 LiveLaw (Bom) 114

The Bombay High Court held that the respondent (assessee) ought to have deducted tax under Section 194I of the Income Tax Act, 1961, from the storage charges paid by the assessee.

The bench of Justice KR Shriram and Justice Sharmila U Deshmukh observed that the storage tanks in question do not qualify either as land or as buildings within the meaning of Section 194I. In terms of Section 194I, there has to be a lease, sub-lease, tenancy, or any other agreement involving land or any building, excluding factory buildings.

Deficiency In Filing Appeal Can't Make Appeal Filed Within Prescribed Period Of Limitation To Be Labelled As Time Barred: Bombay High Court

Case Title: Yogesh Rajendra Mehra v. Principal Commissioner CGST & Central Excise Raigad

Citation: 2024 LiveLaw (Bom) 115

The Bombay High Court held that any deficiency in filing the appeal or application, like failure to file physical documents, cannot cause the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation.

The bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla observed that once the appeal was filed (albeit under the online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide that the proceeding be strictly filed sans deficiency, and only then would the proceedings be held to be validly filed. The bench stated that if such a proposition were to be recognized as the correct position, it would not only tantamount to a patent absurdity but also result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy (access to justice). Thus, the parties would necessarily have an opportunity to remove the deficiencies, if any, that may prevail at the time of filing the proceedings after the proceedings are filed.

Bombay High Court Refuses To Quash Land Deal Related Corruption FIR Against NCP Leader Eknath Khadse, Wife

Case Title: Eknath Ganpatrao Khadse and Ors. v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 116

The Bombay High Court refused to quash a 2017 corruption case related to a land deal against former Maharashtra revenue minister and Nationalist Congress Party (NCP) MLC Eknath Khadse, his wife, and son-in-law.

A division bench of Justice Nitin W Sambre and Justice NR Borkar held that applicability of Section 17A of the Prevention of Corruption Act, requiring prior sanction before conducting enquiry into a public servant, will have to be considered at an appropriate stage as the offence was registered before Section 17A came into force.

“it is a premature stage to consider the claim of the petitioner no.1 (Khadse) for the protection under Section 17A of the Act of 1988. Even otherwise, it cannot be said at this stage that the blanket protection can be enjoyed by the petitioners by taking shelter to Section 17A of the Act of 1988 particularly having regard to the nature of the allegations against the petitioner no.1”, the court further observed.

Bombay High Court Quashes Reassessment Notices Issued Against Godrej For Beyond Limitation Period

Case Title: Godrej Industries Ltd. v. The Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 117

The Bombay High Court quashed the reassessment notices issued against Godrej because the notice was issued beyond the limitation period.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the validity of a notice must be judged on the basis of the law existing as on the date on which the notice is issued under Section 148 of the Income Tax Act, which in the present case is July 31, 2022, by which time the Finance Act, 2021, is already on the statute, and in terms, no notice under Section 148 for AY 2014–15 could be issued on or after April 1, 2021, based on the first proviso to Section 149. Therefore, the fifth proviso cannot apply in a case where the first proviso applies because, if a notice under Section 148 could not be issued beyond the time period provided in the first proviso, then the fifth proviso could not save the notices. The fifth proviso can only apply where one has to determine whether the time limit of three years and ten years in Section 149(1) is breached.

The bench, while distinguishing the judgment passed by the Supreme Court in the case of Ashish Agarwal, noted that it only deemed the first notice issued under Section 148 to be a show cause notice under Section 148A(b) and left all defenses available to the assessee under Section 149. The bench noted that the Supreme Court in Ashish Agarwal did not grant any stay, and the period from May 21, 2021, until the notice under Section 148A(b) is issued cannot be excluded under the second limb of the fifth proviso or even under the first limb.

Application For Enhancing Electricity Load Doesn't Constitute Intimating Supplier About Change In Class Of Usage: Bombay High Court

Case Title: Maharashtra State Electricity Distribution Company Ltd. v. Ramchandra s/o. Madhavrao Naik and Anr.

Citation: 2024 LiveLaw (Bom) 118

The Aurangabad Bench of the Bombay High Court held that an electricity consumer's application for load enhancement of electricity does not constitute intimation to the electricity supplier of change in the class of electricity usage.

Justice SG Mehare restored a bill of over Rs. 23 lakhs levied on a landlord and tenant for unauthorized usage by MSEDCL after it found that the use of the concerned premises was changed from operating a printing press (industrial use) to running a coaching class (commercial use).

“Enhancing the load and changing the user of the electricity supply from one class to another class are apparently distinct. The load may be enhanced for any class of user of electricity for the purpose for which it was supplied. The consumer is bound to inform the supplier about any change in the class/tariff”, the court observed.

The court held that usage of electricity for a purpose other than for which it was supplied as per demand is unauthorized usage.

Bombay High Court Issues Contempt Notices To Lilavati Hospital's Founder Trustee & Son On HDFC's Plea

Case Title: HDFC Bank Limited v. Kishore K. Mehta and Anr.

Citation: 2024 LiveLaw (Bom) 119

The Bombay High Court issued contempt notices against the founder trustee of Lilavati Hospital – octogenarian Kishore Mehta and his son Rajesh for alleged breach of undertakings given to the court and for allegedly failing to deposit 25% of debt amount, in proceedings filed by HDFC Bank.

HDFC claimed the respondents had deposited only Rs 3.68 crore whereas they were supposed to deposit 25% of Rs. 14.74 crore with 16% interest from 2004.

Justice AS Chandurkar and Justice Jitendra Jain noted that the duo avoided execution of the arrest warrant and automatic dismissal of their appeal, by affirming payment of amount. “The aforesaid reasons are prima facie sufficient for the Court to proceed in accordance with Rule 1036 of the Contempt of Courts (Bombay High Court) Rules, 1994.”

Other Developments

Mention Details Of Previous Bail Applications And Orders In All Bail Applications: Bombay High Court To Advocates And Litigants

The Registry of the Bombay High Court issued a circular mandating particulars of previous bail applications to be included in bail applications before the HC, following recent directions by the Supreme Court in the case of Kusha Duruka v. State of Odisha.

The circular directed all Advocates and parties-in-person at the Principal Seat at Bombay and its Benches at Nagpur, Aurangabad, and High Court of Bombay at Goa to adhere to the directions issued by the Supreme Court.

Bombay High Court Directs Advocates And Litigants Not To Mention Caste Or Religion Of Parties In Memo Of Parties

The Bombay High Court recently issued a notice prohibiting advocates and litigants from mentioning the caste or religion of any parties in petitions, suits, or proceedings filed before the court.

“…the Advocates and Parties-in-person shall not mention the Caste / Religion of any parties in the memo of parties in any petition / suit / proceeding filed before the Principal Seat at Bombay (Appellate Side and Original Side) and its Benches at Nagpur, Aurangabad and High Court of Bombay at Goa”, the notice reads.

This notice was issued following Supreme Court directions in Transfer Petition (Civil) No. 1957 of 2023 to refrain from mentioning the caste or religion of parties in petitions filed before the court.

Division Bench Agreed That 2023 Amendment To IT Rules As It Stands Violates Free Speech: Petitioner To Bombay High Court

Association of Indian Magazines contended before the Bombay High Court that the division bench that delivered a split verdict in a petition challenging the 2023 amendment to the IT Rules agreed that the amended Rule as it stands violates and has a chilling effect on free speech.

The 2023 amendment to the IT Rules, 2021 empowers the government to establish a fact checking unit (FCU) to identify fake, false, and misleading information about its business on social media.

Advocate Gautam Bhatia for the association contended that a prima facie case was made out against the amendment, deprivation of safe harbour would cause irreparable injury to the petitioners, and the central government has to show that balance of convenience lies against stay on notification of FCU.

“Justice Gokhale says the reason why that there is no chilling effect is that when you read in 'knowledge' and 'intent' required in the Rules, that saves the Rules from being violative of free speech and the chilling effect. So both judges agree that as the Rule stands it violates and has a chilling effect. Justice Patel believes you cannot save the Rules by reading in, Justice Gokhale believes you can save the Rule by reading in”, Bhatia argued.

Govt Fact Check Unit In Public Interest, Cannot Be Stayed At The Behest Of A Few Individuals: Centre To Bombay High Court

The Bombay High Court reserved order on interim application by comedian Kunal Kamra and others seeking stay on formation of Fact Check Unit under 2023 amendment to IT Rules, 2021 till the pendency for their writ petitions against the amendment.

The 2023 amendment to the IT Rules, 2021 empowers the government to establish an FCU to identify fake, false, and misleading information about its business on social media.

Solicitor General Tushar Mehta argued at there cannot be an interim order which encourages public mischief at the behest of few individuals.

Chief Justice DK Upadhyaya assigned the matter to Justice AS Chandurkar after the division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict in the writ petitions challenging the amendment. While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgements were divergent on all aspects.

The petitioners argued that both Justice GS Patel and Justice Neela Kedar Gokhale agreed that the amended rule, in its current form, violates the freedom of speech.