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Calcutta High Court Monthly Digest: April 2024
Srinjoy Das
1 May 2024 5:40 AM GMT
NOMINAL INDEXM/s Fullerton India Credit Company Limited vs Ms Manju Khati 2024 LiveLaw (Cal) 79United Machinery & Appliances v. Greaves Cotton Limited 2024 LiveLaw (Cal) 86Ram Asheesh Yadav v. Union of India & Ors. 2024 LiveLaw (Cal) 81Sankar Mandal v. Union of India 2024 LiveLaw (Cal) 82 Md. Khalid v The State of West Bengal and others 2024 LiveLaw (Cal) 83 SK. Jaynal Abddin...
NOMINAL INDEX
M/s Fullerton India Credit Company Limited vs Ms Manju Khati 2024 LiveLaw (Cal) 79
United Machinery & Appliances v. Greaves Cotton Limited 2024 LiveLaw (Cal) 86
Ram Asheesh Yadav v. Union of India & Ors. 2024 LiveLaw (Cal) 81
Sankar Mandal v. Union of India 2024 LiveLaw (Cal) 82
Md. Khalid v The State of West Bengal and others 2024 LiveLaw (Cal) 83
SK. Jaynal Abddin Versus Commissioner Of Income Tax, Kolkata 2024 LiveLaw (Cal) 84
Subhas Mondal Vs The State of West Bengal & Anr. 2024 LiveLaw (Cal) 85
Centrotrade Minerals & Metals Inc v. Hindusthan Copper Limited 2024 LiveLaw (Cal) 86
ANJANI PUTRA SENA v STATE OF WEST BENGAL AND ORS 2024 LiveLaw (Cal) 87
EMAMI LIMITED v HINDUSTAN UNILEVER LIMITED 2024 LiveLaw (Cal) 88
Paschim Banga Cha Majoor Samity & Ors. v The State of West Bengal & Ors. 2024 LiveLaw (Cal) 89
Ashadul Sekh and others v The State of West Bengal and other 2024 LiveLaw (Cal) 90
Prabir Kumar Mitra vs State of West Bengal & Ors. 2024 LiveLaw (Cal) 91
Uphealth Holdings Inc v. Glocal Healthcare Systems Pvt Ltd 2024 LiveLaw (Cal) 92
Berger Paints India Ltd. Versus JSW Paints Pvt. Ltd 2024 LiveLaw (Cal) 93
Baishakhi Bhattacharyya (Chatterjee) & Ors. Vs. State of West Bengal & Ors. 2024 LiveLaw (Cal) 94
The Principal Commissioner Of Income Tax, (Central) -2, Kolkata Versus M/S. BST Infratech Limited 2024 LiveLaw (Cal) 95
Md. Farid Vs. Union of India & Ors 2024 LiveLaw (Cal) 96
Dhansar Engineering Company Pvt Ltd v. Eastern Coalfields Ltd 2024 LiveLaw (Cal) 97
Kashmira Khan Vs. The West Bengal State Election Commission & Ors 2024 LiveLaw (Cal) 98
Ashish Kumar Sharma Versus The Deputy Commissioner, State Tax, Bureau Of Investigation, South Bengal, Howrah Zone And Others 2024 LiveLaw (Cal) 99
ORDERS/JUDGEMENTS
Citation: 2024 LiveLaw (Cal) 79
Case Title: M/s Fullerton India Credit Company Limited vs Ms Manju Khati
The Calcutta High Court single bench of Justice Prasenjit Biswas held that a certified copy of the original agreement 'attested by a Notary Public' is sufficient to meet the requirement of Section 8(2) of the Arbitration Act. Once filed, the courts must refer the parties to arbitration.
Section 8(2) of the Arbitration Act provides, “The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.”
The High Court held that the Trial Court wrongly concluded that the Petitioner had failed to produce either the original or a duly certified copy of the agreement as required under the Arbitration Act. However, it was established that the Petitioner did provide a certified copy of the original agreement, attested by a Notary Public. This was deemed sufficient to meet the legal requirements.
Citation: 2024 LiveLaw (Cal) 80
Case Title: United Machinery & Appliances v. Greaves Cotton Limited, CS. 2 of 2015
The High Court of Calcutta has dismissed an application filed under Section 8 of the A&C Act by observing that the allegations of fraud and forgery would be serious in nature when the cognizance of the same is take by the magistrate.
The bench of Justice Krishna Rao relied on the judgment of the Supreme Court in A. Ayyasamy vs. A. Paramasiva, (2016) 10 SCC 386 and Rashid Raza vs. Sadaf Akhtar, (2019) 8 SCC 710 to hold that dispute would not be referred to arbitration when the allegations of fraud and forgery are serious in nature and goes to the existence of the agreement containing arbitration clause.
Important Developments
Case No: WPA/4011/2024
Case: THE COURTS ON ITS OWN MOTION VS STATE OF WEST BENGAL
The Calcutta High Court on Thursday reserved its verdict in various pleas seeking a probe into the alleged instances of violence against women and land grabbing which had occurred in Sandeshkhali, West Bengal under the watch of former Pradhan Shahjahan Sheikh, and his workers.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya were considering public interest litigations seeking an independent probe into the instances of violence alleged against Shahjahan and his men.
Upon hearing the allegations raised by counsel, and reading the affidavits placed on record regarding the sexual assault faced by the women, and land grabbing faced by the people of the area, the Chief Justice orally remarked:
"The entire district administration and ruling dispensation must owe a moral responsibility. Even if [the affidavit] 1% is true it is absolutely shameful. And West Bengal says it is safest for women? If one affidavit is proved to be right all of this falls."
Earlier, the Court had directed the investigation into the attack on ED officials allegedly at the behest of Sheikh's officials to be transferred to the CBI, as well as custody of Shahjahan Sheikh.
Case: Kuntal Ghosh v CBI & connected matters
Case No: CRM (DB) 172 of 2024 & connected matters
The Calcutta High Court has hauled up Bengal's Chief Secretary for not submitting a report on the time required for him to decide over the grant of sanction to prosecute government officials who are being probed in connection with the multi-tier recruitment cash-for-jobs scam.
Upon being told that the report which had been called for by the Court on an earlier occasion had not yet been submitted by the chief secretary, the division bench of Justices Joymalya Bagchi and Gaurang Kanth held:
"Least expectation is for the report to be submitted. This is very painful. The bench is giving a direction [with no response]. We are asking the government pleader to appear at 2pm. If this order also does not get a response, then [we will summon]. Now we have to follow a procedure before summoning officials, so we are recording in this order that we will be constrained to call for his personal appearance."
Citation: 2024 LiveLaw (Cal) 81
Case: Ram Asheesh Yadav v. Union of India & Ors.
A single-judge bench of the Calcutta High Court comprising of Justice Partha Sarathi Sen while deciding a writ petition in the case of Ram Asheesh Yadav v. Union of India has held each candidate selected for the post of Constable in RPF must be free from all vices, possess a sense of sufficient responsibility, and be truthful, dutiful, vigilant as well as honest. Therefore, the furnishing of wrong information for securing a job amounts to fraud upon the employer.
Citation: 2024 LiveLaw (Cal) 82
Case: Sankar Mandal v. Union of India
A single-judge bench of the Calcutta High Court comprising of Justice Raja Basu Chowdhury while deciding a writ petition in the case of Sankar Mandal v. Union of India has held that non-disclosure of information cannot form the sole ground for the competent authority to discharge the employee.
The court observed that an employer while passing an order of discharge from service for giving false information may take into consideration the criminal antecedents and has a right to consider continuance of such candidate. However, the court, inter alia, relied on the case of Pawan Kumar v. Union of India & Anr., wherein the Supreme Court held that an employee could not be arbitrarily discharged from service on ground of mere suppression of material or false information. The court further reiterated the holding in the case of Avtar Singh v. Union of India & Ors., wherein the Supreme Court held that “although empanelment creates no right to appointment, there cannot be any arbitrary denial after empanelment as well.”
Citation: 2024 LiveLaw (Cal) 83
Case: Md. Khalid v The State of West Bengal and others
The Calcutta High Court has allowed the premature release of a convict incarcerated for more than 31 years in connection with the infamous Bowbazar Blasts which rocked the city more than three decades ago.
In noting the conflict between the human rights of an individual and the interest of the public a large, a single bench of Justice Sabyasachi Bhattacharya held:
It is not credible that the person who has spent over three decades in custody and deliberately seeks premature release would repeat his offence again which, quite obviously, would send him back into a dark abyss to a point of no-return. Not only will [releaso contribute another reformed citizen to the mainstream society, the same will set a good precedent for other convicts in prison to attempt emulation and shall act as a deterrent for them to be less than perfect in their conduct in prison.
Citation: 2024 LiveLaw (Cal) 84
Case Title: SK. Jaynal Abddin Versus Commissioner Of Income Tax, Kolkata
The Calcutta High Court has held that payments by supervisors to individual labourers, each not exceeding Rs. 20,000, cannot be disallowed under Section 40A(3) of the Income Tax Act, 1961.
The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has observed that the supervisors acted as agents of the assessee to disburse the amount to individual labourers, which in no case exceeded Rs. 20,000/- for any individual labour. Therefore, in view of the circumstances prescribed in the second proviso to Section 40A(3) read with Rule 6DD(l) of the Income Tax Rules, 1962, and the provisions of the Indian Contract Act, the payment of Rs. 1,21,49,190 cannot fall within the scope of Section 40A(3) of the Act, 1961.
Citation: 2024 LiveLaw (Cal) 85
Case: Subhas Mondal Vs The State of West Bengal & Anr.
The Calcutta High Court has upheld the conviction of a man under Sections 376(2)(f) and 511 IPC, for the offence of attempt to rape and Section 354 of the IPC for outraging the modesty of the 10-year-old victim girl.
It was the case of the prosecution that the accused groped the minor victim's breasts from behind and hugged her while she was returning alone from the toilet.
A single bench of Justice Shampa (Dutt) Paul also found that there was enough evidence to convict the man under Section 7 of the POCSO Act, but the same could not be applied retrospectively since the incident happened in 2010, and the Act came into force in 2012.
Citation: 2024 LiveLaw (Cal) 86
Case Title: Centrotrade Minerals & Metals Inc v. Hindusthan Copper Limited. IA. No. GA. 5 of 2021 in EOS. 11 of 2003
The High Court of Calcutta has dismissed an application by Hindustan Copper Limited (HCL) under Sections 48/49 of the A&C Act seeking to refuse enforcement of the foreign award in favour of the Centrotrade Minerals.
The bench of Justice Sugato Majmudar held that once the enforceability of an award is affirmed by the Supreme Court, it cannot be opposed on a new ground which could have been taken in earlier proceedings in relation to the enforceability. It held that such an application would be barred by constructive resjudicata.
Citation: 2024 LiveLaw (Cal) 87
Case: ANJANI PUTRA SENA v STATE OF WEST BENGAL AND ORS
The Calcutta High Court has allowed a plea by the Anjani Putra Sena to carry out its annual Ram Navami Yatra (procession) in Howrah on 17th April (Wednesday).
A single bench of Justice Jay Sengupta allowed the procession whilst adding that there should not be any sloganeering, or hate speech and capped the number of attendees to 200.
The Court further clarified that the State is expected to have the resources available to manage a gathering of 200 people and that in case it was facing difficulties in doing the same, it was free to requisition central forces in writing, by giving 24 hours' notice.
Citation: 2024 LiveLaw (Cal) 88
Case: EMAMI LIMITED v HINDUSTAN UNILEVER LIMITED
The Calcutta High Court has restrained consumer goods giant Hindustan Unilever Ltd (HUL) from using the 'Glow & Handsome' trademark to sell its men's care products following a suit by Emami Ltd. whose brand "Fair & Handsome" allegedly held the major market share.
In 2020, HUL changed the name of its men's skin cream from “MEN'S FAIR & LOVELY” to “GLOW & HANDSOME.” Emami immediately challenged HUL's use of the mark “GLOW & HANDSOME” before the Calcutta High Court, on the basis that this constitutes infringement and passing off of Emami's well-known and reputed mark “FAIR AND HANDSOME.”
In finally deciding the case, a single bench of Justice Ravi Kishan Kapur held:
A conscious and deliberate decision by a competitor in adopting a leading, prominent and essential component of a trade rival while seeking to change the name of its existing brand is not something which can be disregarded. In choosing the word “Glow and Handsome”, there is also an element of taking unfair advantage of a leading, prominent and essential feature of the petitioner's mark which deceives or is likely to deceive. Nobody has any right to represent the goods of somebody else. In doing so, the rival takes a “free ride”. There is no line between permissible free riding and impermissible free riding. All “free riding” is unfair.
Citation: 2024 LiveLaw (Cal) 89
Case: Paschim Banga Cha Majoor Samity & Ors. v The State of West Bengal & Ors.
The Calcutta High Court's circuit bench at Jalpaiguri has directed the West Bengal government to finalise the minimum wage of tea plantation workers within 6 weeks, under the Minimum Wages Act, 1948.
This comes after a coordinate bench had upheld the interim hike in wages for the workers and directed the state to finalise a minimum wage within 6 months. Upon the expiry of this period, the petitioners represented by Senior Advocate Dr S Muralidhar approached the Court stating that the State had not complied with the Coordinate bench's direction for setting a minimum wage.
Upon hearing these submissions, a single bench of Justice Aniruddha Roy held:
To receive minimum wages is a statutory and legal right under the Minimum Wages Act. Even an individual if thinks fit that he is deprived of such legal right can maintain a writ petition. [State] shall decide the issue in the light of the observation made by the co-ordinate bench In the matter of: Goodricke Group Limited & Ors. (Supra) as quoted above, by passing a reasoned order in accordance with law. The entire exercise as directed above shall be carried out and completed by the respondent No. 2 positively within a period of six weeks from the date of communication of this order.
Citation: 2024 LiveLaw (Cal) 90
Case: Ashadul Sekh and others v The State of West Bengal and other
The Calcutta High Court has set aside a notice by the Range Forest Officer, Krishnanagar which prevented forest dwellers from entering into forest land for the purpose of staying or cultivating.
In setting aside the notice upon observing that the interests of the forest dwellers had not been accounted for, a single bench of Justice Sabyasachi Bhattacharya held that:
No process of recognition rights as envisaged in Rule 12A of the 2007 Rules have been initiated in the locality. Notice issued by the Forest Range Officer, Krishnagar Range, which was not preceded by any such exercise and purports to oust the petitioners from their forest dwellings and to deprive them and others of the locality on similar footing of their rights under the 2006 Act, was de hors the law and palpably without jurisdiction.
Writ Petition On Issue Of Thika Tenancy Not Maintainable: Calcutta HC Declines Plea, Directs Party To Approach WB Land Reforms & Tenancy Tribunal
Citation: 2024 LiveLaw (Cal) 91
Case: Prabir Kumar Mitra vs State of West Bengal & Ors.
The Calcutta High Court has dismissed a writ petition filed by one Prabir Kumar Mitra (landlord) for a declaration to the effect that a petrol pump run by Indian Oil Corporation Limited on the land of the writ petitioner did not vest under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 or West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
In dismissing the plea, a single bench of Justice Suvra Ghosh held:
This Court is inclined to hold that the writ petition seeking declaration to the effect that the petrol pump in question did not vest under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 or West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is not maintainable before this Court. WPA No. 2710 of 2023 is, therefore, dismissed on the ground of maintainability.
Citation: 2024 LiveLaw (Cal) 92
Case Title: Uphealth Holdings Inc v. Glocal Healthcare Systems Pvt Ltd, AP-COM/490/2024
The High Court of Calcutta has held that power of a Court exercising powers under Section 9 of the A&C Act are wider than the powers of a Court under Order XXXVIII Rule 5 of CPC. It held that unlike under CPC, the dissipation of assets is not a mandatory requirement for interim relief under Section 9 of the A&C Act.
The bench of Justice Ravi Krishan Kapur a petitioner under Section 9 of the A&C Act cannot be burdened with the rigours of Order XXXVIII Rule 5 of CPC.
Citation: 2024 LiveLaw (Cal) 93
Case: Berger Paints India Ltd. Versus JSW Paints Pvt. Ltd
The Calcutta High Court has upheld an order by a single bench which held that using the word 'silk' to denote a paint's finish was customary in nature, and could not be protected as a trademark.
A division bench of Justices IP Mukherji and Prasenjit Biswas held:
There shall be no interference with the impugned judgment and order dated 12th December 2023 provided the respondent uses the word “silk” on the tumbler only when the product contained therein has a silk finish and does not use that word when the product has any other finish/sheen. Such description would be maintained in the website of the respondent and in any other form of advertisement of the product.
Citation: 2024 LiveLaw (Cal) 94
Case: Baishakhi Bhattacharyya (Chatterjee) & Ors. Vs. State of West Bengal & Ors.
The Calcutta High Court invalidated almost 24,000 teaching and non-teaching jobs across government and aided schools, which were filled up as a result of the 2016 SSC Recruitment process, which was subsequently challenged due to the cash-for-jobs recruitment scam.
In a detailed order running into more than 280 pages, a division bench of Justices Debangsu Basak and Md Shabbar Rashidi cancelled the entire panel of the 2016 SSC Recruitment upon finding irregularities with OMR sheets and ordered the state to conduct fresh examinations for the same.
The Bench also directed those whose appointments had been cancelled to return all salaries and benefits drawn by them as they were rendered to be "proceeds of crime" due to the fraudulent nature of their appointment.
Citation: 2024 LiveLaw (Cal) 95
Case Title: The Principal Commissioner Of Income Tax, (Central) -2, Kolkata Versus M/S. BST Infratech Limited
The Calcutta High Court has held that merely proving the identity of the investors does not discharge the onus on the assessee if the capacity or credit worthiness has not been established.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that the assessee has not established the capacity of the investors to advance money for the purchase of the shares at a high premium. The credit worthiness of those investors' companies is questionable, and the explanation offered by the assessee, at any stretch of imagination, cannot be construed to be a satisfactory explanation of the nature of the source.
Citation: 2024 LiveLaw (Cal) 96
Case Name- Md. Farid Vs. Union of India & Ors
A Division Bench of the Calcutta High Court comprising of Justice Tapabrata Chakraborty and Justice Uday Kumar while deciding a Writ Petition in the case of Md. Farid Vs. Union of India & Ors has held that an employee is entitled to interest on the withheld amount of gratuity upon acquittal in the criminal proceedings pending against him on the date of his retirement.
Citation: 2024 LiveLaw (Cal) 97
Case Title: Dhansar Engineering Company Pvt Ltd v. Eastern Coalfields Ltd, RVWO No. 38 of 2023
The High Court of Calcutta has held that a policy circular issued by a parent company contemplating arbitration would not be an arbitration agreement if it requires fresh consent of the contractor to refer the dispute to arbitration.
The bench of Justice Ravi Krishan Kapur held that when for existing contracts, the circular required consent of the contractor for reference to arbitration, it cannot be construed to be an arbitration agreement as it would require a fresh arbitration agreement to be executed between the parties prior to reference of dispute to arbitration.
The Court held that a circular expressing desire for arbitration would not be construed as an arbitration clause unless a definite agreement is not executed between the parties pursuant to such expression of desire.
Citation: 2024 LiveLaw (Cal) 98
Case: Kashmira Khan Vs. The West Bengal State Election Commission & Ors
The Calcutta High Court has recently set aside the election result of the gram panchayat election of Sankrail, West Bengal which was held in 2023 over allegations of 'merciless beating', 'violence' and ballot snatching by hooligans belonging to the ruling dispensation during the counting of votes.
A single bench of Justice Amrita Sinha also cancelled the election certificate of the returned candidate, directed the seat to be treated as vacant, and asked the Election Commission to take steps for holding fresh elections. The Court stated:
The Commission ought to take bold steps to uphold the goal and value of democracy and not let antisocial elements and hooligans trample democracy right under its nose. When the offence came to the knowledge of the machineries of the Commission, then prompt necessary action to stall the counting process was the only remedy to prevent miscarriage of justice.
Citation: 2024 LiveLaw (Cal) 99
Case Title: Ashish Kumar Sharma Versus The Deputy Commissioner, State Tax, Bureau Of Investigation, South Bengal, Howrah Zone And Others
The Calcutta High Court has held that the GST department cannot compute the penalty amount on a higher value than the invoice value without proper evidence and reason.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that a transporter or owner of the goods is bound to carry certain documents as mentioned in the Act that are to accompany the goods. In the instant case, prior to the movement of the goods, an e-way bill was generated in which the tax invoice number was duly incorporated. Proof of payment of tax has also been established, and the e-way bill was valid until September 5, 2022. The mistake committed by the appellant was not extending the e-way bill after its expiration, despite such liberty being granted under the Rules.
