Bombay High Court Weekly Round-Up: February 20 To February 26, 2023

Mahipati Antu Jadhav v. State of Maharashtra 2023 LiveLaw (Bom) 110

Sunil Rama Kuchkoravi v. State of Maharashtra 2023 LiveLaw (Bom) 111

Ms. M. V. Nordlake GmbH v. Union of India 2023 LiveLaw (Bom) 112

Pr. Commissioner of Income-Tax v. Godrej & Boyce Mfg. Co. Ltd. 2023 LiveLaw (Bom) 113

ACC Ltd. v. Dr. Rustum Samboyce And Ors. 2023 LiveLaw (Bom) 114

Naresh Goyal v. Directoratate Of Enforcement And Anr 2023 LiveLaw (Bom) 115

M/s. Perfect Auto v. Santosh Narsingdasji Agrawal 2023 LiveLaw (Bom) 116

Natraj Sanskrutik Kala Kendra through its proprietor Vishal Nandkishor Gangawane v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 117

Rochem India Pvt. Ltd. Versus CBIC 2023 LiveLaw (Bom) 118

Kalpesh Shantikumar Mehta & Ors. vs. NKGSB Co-op. Bank Ltd & Anr. 2023 LiveLaw (Bom) 119

Reports/Judgments

NALSA's Scheme For Undertrial Prisoners Cannot Take Away Court's Discretion To Grant Or Refuse Bail: Bombay High Court

Case Title: Mahipati Antu Jadhav v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 110

The Bombay High Court held that the NALSA’s scheme for release of undertrial prisoners is meant to bring the attention of the stakeholders i.e., courts, to the undertrial persons languishing in jail, but it cannot override the court’s discretion to grant or refuse bail to such prisoners on merits.

Justice S. M. Modak, while denying bail to a murder accused, observed that nothing can take away the discretion of the court in grant of bail.

Convicted Of Murdering His Mother, Bombay High Court Allows Death Row Convict To Attend His Daughter’s Marriage (livelaw.in)

Case Title: Sunil Rama Kuchkoravi v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 111

The Bombay High Court allowed a death row convict, who murdered his mother and cut her body parts to eat them, to attend his daughter’s marriage. An Escort Party in civil dress will remain present at the venues.

A division bench of Justice A. S. Gadkari and Justice P. D. Naik observed that his presence is necessary for performing religious ceremonies.

INS Vindhyagiri - MV Nordlake Collision | Liability Can Be Limited At Interim Stage Before Completion Of Trial: Bombay High Court (livelaw.in)

Case Title: Ms. M. V. Nordlake GmbH v. Union of India

Citation: 2023 LiveLaw (Bom) 112

Ruling that the liability of a vessel owner for an accident can be limited at the interim stage before the completion of the trial, the Bombay High Court limited the liability of German company M.V. Nordlake Gmbh for the 2011 MV Nordlake – INS Vindhyagiri collision in Mumbai.

“Once the suit is instituted, it is not imperative that the order to limit liability can only be after a full fledged trial. The Court is not precluded from passing a decree at an intermediate stage without the trial running its full course…there is no embargo either under the provisions of the Code (CPC) or Rules 1980 (Bombay High Court (Original Side) Rules) to entertain the application for limitation of the liability”, Justice N. J. Jamadar held while deciding a Notice of Motion for limitation of liability.

Availability Of Interest-Free Surplus Fund To Make Investment: Bombay High Court Deletes Addition On Interest Expenditure (livelaw.in)

Case Title: Pr. Commissioner of Income-Tax Versus Godrej & Boyce Mfg. Co. Ltd.

Citation: 2023 LiveLaw (Bom) 113

The Bombay High Court upheld the CIT’s order in deleting the addition made on account of interest expenditure as the assessee, Godrej & Boyce, had sufficient interest-free surplus funds to make the investment.

The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that the AO has neither examined the claim in respect of expenditure incurred in relation to the exempt income of the assessee nor recorded any satisfaction with regard to the correctness of the assessee’s claim with reference to the books of account. The disallowance made by applying Rule 8D is not only against the statutory mandate but also contrary to the legal principles laid down.

Prima Facie No Negligence: Bombay High Court grants interim relief To ACC Cement Case Over Dematerializing NRI’s Shares In Someone Else’s Name

Case Title: ACC Ltd. v. Dr. Rustum Samboyce And Ors.

Citation: 2023 LiveLaw (Bom) 114

The Bombay High Court held that none of the factors necessary to record finding of negligence have been considered by the trial court in a decision that found ACC Cement negligent for dematerializing (digitizing) an NRI’s shares in someone else’s name.

Justice Amit Borkar observed that prima facie the NRI’s claim was not based on a right created under a statute or under contract.

On March 27, 2017 a civil court held ACC negligent for dematerializing the NRI - Dr. Rustom Sam Boyce’s - shares in someone else’s name despite being put to notice that the shares were stolen.

It allowed the NRI to retrieve 3912 and 6250 shares of ACC along with accrual rights, bonus, dividends, from November 1, 2005. ACC approached the HC against this decree.

Bombay High Court Quashes ED Investigation Against Jet Airways Founder Naresh Goyal, Wife Anita (livelaw.in)

Case Title: Naresh Goyal v. Directoratate Of Enforcement And Anr

Citation: 2023 LiveLaw (Bom) 115

The Bombay High Court quashed the Enforcement Directorate (ED)'s ECIR against former Jet Airways Chairman Naresh Goyal and his wife Anita.

The division bench comprising Justices Revati Mohite Dere and Prithviraj Chavan passed the order on a petition filed by the duo seeking quashing of the ECIR registered against them under the Prevention of Money Laundering Act (PMLA).

[Maharashtra Rent Control Act] Court Can Fix Interim Standard Rent Only In A Rent Recovery Suit: Bombay High Court (livelaw.in)

Case Title: M/s. Perfect Auto v. Santosh Narsingdasji Agrawal

Citation: 2023 LiveLaw (Bom) 116

The Bombay High Court held that a court can fix interim standard rent under the Maharashtra Rent Control Act, 1999 at any stage of a suit for recovery of rent but not in any other kind of suit.

Justice Anil S. Kilor of the Nagpur bench set aside trial court’s order fixing interim rent of a shop premises in a suit for fixation of standard rent.

Kala Kendra’s Performance License Can’t Be Cancelled When Alleged Offence Under POCSO Act Not Committed On Premises: Bombay High Court (livelaw.in)

Case Title: Natraj Sanskrutik Kala Kendra through its proprietor Vishal Nandkishor Gangawane v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 117

The Bombay High Court held that the performers license of Natraj Sanskrutik Kala Kendra, Nashik couldn't have been cancelled on the ground of crime registered against the proprietor as the alleged crime was not committed on the Kala Kendra's premises.

Justice RG Avachat added that since the proprietor has been acquitted of the crime, the ground for cancellation does not exist anymore.

Constitute GST Tribunal To Reduce Needless Litigations In The Form Of Filing Writ Petitions: Bombay High Court Advises CBIC (livelaw.in)

Case Title: Rochem India Pvt. Ltd. Versus CBIC

Citation: 2023 LiveLaw (Bom) 118

The Bombay High Court advised the Central Board of Indirect Taxes (CBIC) to construct GST tribunals to reduce needless litigation in the form of filing writ petitions.

"It would be advisable, to avoid further complications, that the Board issues instructions to incorporate Clause 4.2 of the Circular dated 18 March 2020 in each order which is appealable to the Appellate Tribunal constituted under Section 109 of the Act. This would guide the aggrieved parties as to the future course of conduct and reduce needless litigation in the form of filing writ petitions such as the present ones," the division bench of Justice Nitin Jamdar and Justice Abhay Ahuja said.

Multiple Arbitrations By Arbitrator Involving The Same Co-operative Bank Under S. 84 Of MSCS Act; Not A Disqualification: Bombay High Court (livelaw.in)

Case Title: Kalpesh Shantikumar Mehta & Ors. vs. NKGSB Co-op. Bank Ltd & Anr.

Citation: 2023 LiveLaw (Bom) 119

The Bombay High Court ruled that reference of more than two arbitrations to the same arbitrator under Section 84 of the Multi-State Co-operative Societies Act, 2002 (MSCS Act), involving the same Co-operative Bank, would not fall foul of clause 22 of Schedule V of the Arbitration and Conciliation Act, 1996 (A&C Act).

Noting that in the statutory arbitration contemplated under the MSCS Act, the arbitrator is appointed by the Central Registrar/Commissioner of Co-operative Societies under Section 84 (4) of the MSCS Act, the bench of Justice Bharati Dangre held that the embargo created under clause 22 comes into picture only when the Arbitrator is appointed by one of the parties or an affiliate of one of the parties.

Therefore, the fact that the Arbitrator was appointed on more than two occasions in the past three years, with respect to disputes involving the same Co-operative Bank, would fall outside the purview of the embargo created under clause 22, the Court said.

Other Developments

Supreme Court's Credibility "Sky High", Can't Be Eroded By Individuals' Statements: Bombay HC On Dismissing PIL Against Law Minister & Vice President (livelaw.in)

Case Title: Bombay Lawyers Association v. Jagdeep Dhankar and Ors

"The credibility of the Hon’ble Supreme Court of India is sky-high. It cannot be eroded or impinged by the statements of individuals," the Bombay High Court said in a detailed order dismissing the PIL against the Vice President Jagdeep Dhankhar and Law Minister Kiren Rijiju.

"The Constitution of India is supreme and sacrosanct. Every citizen of India is bound by the Constitution and is expected to abide by the constitutional values. The constitutional institutions are to be respected by all, including constitutional authorities and persons holding constitutional posts," the bench added in the order .

A division bench of Acting Chief Justice SV Gangapurwala and Sandeep Marne passed the order on an PIL by the Bombay Lawyer's Association alleging constant public criticism of the judiciary’s ‘collegium system’ and remarks against the basic structure doctrine.

"Why Now, Because Of The Scenario Outside?": Bombay High Court Asks SFIO Seeking Hearing In Case Against Adani After A Year (livelaw.in)

The Bombay High Court casually asked the Serious Fraud Investigation Office if it had sought circulation of a case involving Adani Enterprises (AEL), its Chairman Gautam Adani and Managing Director Rajesh Adani because of the "scenario outside."

"Why is the matter circulated now? Because of the present scenario outside?," Justice RG Avchat asked SFIO in a lighter vein, referring to the controversy following the Hidenburg report against Adani.

The court was seized with AEL and Gautam Adani's appeal to quash a Sessions Court's order from 2019, refusing to discharge them from a case of alleged violations of market regulations amounting to nearly Rs 388 crore.

In December 2019, the High Court had stayed the order till the next date, i.e., January 13, 2020. According to the last available order on the High Court website from December 2021, interim relief was extended till February 2022.

Stray Dogs Won't Get Aggressive If You Feed And Care For Them: Bombay High Court Tells Residential Complex Management (livelaw.in)

If you provide food and some amount of care, stray dogs will not get aggressive, the Bombay High Court observed seeking an amicable solution between the warring management of Seawoods Estate Limited and dog lovers from the society.

The court added that it resolved the issue of strays in the Bombay High Court by feeding them.

The court, however, observed that once dedicated spots were identified, the financial and physical obligations to feed, sterilize, vaccinate, neuter would fall on volunteers. It sought a list of such volunteers and adjourned the matter to March 20, 2023.

Actor Nawazuddin Siddiqui Approaches Bombay High Court Seeking Whereabouts Of His Children Who Are In Estranged Wife's Custody (livelaw.in)

Actor Nawazuddin Siddiqui has approached the Bombay High Court in a Habeas corpus petition seeking the whereabouts of his children who are in his estranged wife Aaliya's custody.

After a brief hearing the division bench of Justices AS Gadkari and PD Naik asked Siddiqui and his wife's counsels to arrive at a consensus regarding visitation rights for Siddiqui. He expressed the desire to speak to his children.

"We suggest you have a discussion and come to an agreement about the visitation rights," the court said.

Court Will Have To Balance State’s Interest With Fundamental Right To Health, Custody Not Pre-Trial Punishment: Nawab Malik To Bombay High Court (livelaw.in)

The Bombay High Court sought to know how bail can be granted despite Section 45 of the Prevention of Money Laundering Act after it was informed that NCP leader Nawab Malik is suffering from kidney failure.

Justice MS Karnik was hearing Malik’s bail plea in Directorate of Enforcement’s money laundering case against him. Section 45 provides for stringent conditions to grant bail to accused in money laundering cases.

Senior Advocate Amit Desai for Malik referred to the proviso to Section 45 of CrPC which provides for court’s discretion in granting bail to sick persons, persons under sixteen years of age, and women in a non-bailable offence.

The proviso is an enabling provision, Desai said, adding that the court will have to balance state’s interest with the fundamental right to health.

Russia-Ukraine War Has Materially Affected Economy, Adani Won Dharavi Redevelopment Tender Fairly: Maharashtra Govt To Bombay High Court

Maharashtra government has argued before the Bombay High Court that the old tender and the new tender for Dharavi Redevelopment cannot be compared as the current economic state is different due to the Russia Ukraine war.

Sunil Baburao Tumbare, Deputy Secretary, Housing Department in response to Dubai-based Seclink Technologies's petition challenging the award of contract to Adani group said that Adani Group won he tender in a fair and transparent process.

Seclink could have complied with the tender conditions and participated in the bid but it chose not to, the government said, adding that Seclink didn’t participate in the pre-bid meetings or gave any suggestions.

A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep V. Marne on Friday kept the matter for further consideration on March 14.