Bombay High Court Weekly Roundup: March 21 To March 27, 2022
Sharmeen Hakim
28 March 2022 4:06 AM GMT
Nominal Index Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi The State of Maharashtra v Shadab Tabarak Khan Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others Shrikrupa Stone Crusher v State of Maharashtra and ors. Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited Poorti Rent a Car and Logistics Pvt. Ltd. &...
Nominal Index
Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi
The State of Maharashtra v Shadab Tabarak Khan
Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others
Shrikrupa Stone Crusher v State of Maharashtra and ors.
Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited
Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors
Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others
Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.
Perizad Zorabian Irani Versus PCIT And Ors.
CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.
RPG Enterprises Limited v Riju Ghoshal and anr
Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others
ROUND-UP
Case Title: Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi
Citation: 2022 LiveLaw (Bom) 90
Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity.
The Bench thus held that an adopted child would be entitled to take the caste identity of his adoptive mother, despite the caste authorities' insistence on making the child's biological father's records available.
"One of the effects would be that the child would not get identity of mother and particularly caste of the mother. He would be without identity throughout his life. Similarly, very purpose of adopting child by the petitioner being a single mother would stand frustrated. In our opinion, such a situation could not be envisaged by law."
Case Title : The State of Maharashtra v Shadab Tabarak Khan
Citation : 2022 LiveLaw (Bom) 91
A single judge of the HC, held that under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the Juvenile Justice Board has to assess a heinous offence to determine whether CCL is to be tried as an adult or juvenile.
If the child above 16 years of age, the Board has to conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, before deciding if the CCL can be tried as an adult.
Case Title: Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others
Citation: 2022 LiveLaw (Bom) 92
Observing that "greed, acrimony and deceit" are clear from the son's conduct, the Bombay High Court dismissed the contempt petition he filed against his parents in connection with a property dispute and directed him pay them cost of Rs. 50,000.
The petitioner son -Manoj Kumar Dalmia- alleged non-compliance of consent terms he allegedly signed with his parents, giving him more than his share in the couple's Santacruz flat, while also permitting his family to reside there. He would also get their second flat, which was their only source of livelihood.
There was no reason whatsoever for Respondent Nos. 2 and 3 (parents) to ordinarily enter into the Consent Terms which basically seek to undo what they had been able to preserve thus far, by securing orders from this Court and the Supreme Court," a division bench noted about the "lopsided" terms.
Case Title : Shrikrupa Stone Crusher v State of Maharashtra and ors.
Citation : 2022 LiveLaw (Bom) 93
The Bombay High Court considered whether grant of short term permit for extraction of minor minerals under Rule 59 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (the Rules of 2013) ought to be preceded by holding public auction or whether such short term permit can be granted on the basis of an application made to the Competent Authority.
"it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained."
Case Title: Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited
Citation: 2022 LiveLaw (Bom) 94
A division bench of the Bombay High Court allowed an application filed by US investment firm Invesco Developing Markets Fund, the largest shareholder of Zee Entertainment Enterprises Limited (Zee), against a single judge's order granting interim injunction to Zee and restraining the investor from holding an Extraordinary General Body Meeting.
1.The bench relied heavily on the Supreme Court's decision in LIC vs. Escorts wherein the SC held that a shareholder cannot be restrained from calling a meeting, such shareholder need not disclose reasons for the resolutions proposed and that the reasons for the resolution are not subject to judicial review.
2.That civil court's jurisdiction to entertain the Suit is in the teeth of Section 430 of the Act matters that fall within the domain of the NCLT.
3.Bench dealt with the consequences of ruling that a Civil Court can, in certain cases, grant an injunction restraining shareholders of a company from exercising their statutory right to call for and hold an EGM. "If we were to open this flood gate, Corporate democracy, as we understand it, would be rendered nugatory. Shareholders will be repeatedly restrained and injuncted from exercising their statutory rights…We cannot lay down a precedent resulting in such drastic consequences derailing the democratic functioning of Companies across India owing to the non-cooperative and obstructive conduct of the Board of Directors."
Case Title : Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors.
Citation : 2022 LiveLaw (Bom) 95
The Bombay High Court held that a Bank, being a "secured creditor" within the meaning of section 2(zd) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), is entitled to initiate proceedings against a debtor under Section 13 thereof, notwithstanding the fact that the assignor of debt portfolio was not a "financial institution" at the material time.
A bench of Chief Justice Dipankar Datta and Justice MS Karnik concluded that,
"initiation of action under Chapter III of the SARFAESI Act by the respondent no.1, being a "secured creditor" within the meaning of section 2(zd) thereof for the purpose of enforcing the security interest that was created earlier, is legally permissible. That the respondent no. 1 is the successor-in-interest of the respondent no.2, which was not a "financial institution" at the material time would make no difference insofar as consequence in law is concerned."
Case Title: Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others
Citation: 2022 LiveLaw (Bom) 96
A bench led by Justice Shahrukh Kathawalla directed disbursal of ad-hoc compensation of Rs. 1 lakh to each of the 953 fisherfolk families being affected by an infrastructure project in Thane.
"As the fisherfolk and their families cannot be expected to starve till the authorities decide the quantum of compensation…" the bench observed in their order.
The court noted that the State's Draft Compensation Policy dated November 29, 2021, adopts the approach of the National Green Tribunal. According to the NGT's calculation in the matter of Ramdas Janardan Kohli on February 27, 2015, compensation for one family was pegged at Rs. 6 lakh for three years.
Case Title: Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.
Citation: 2022 LiveLaw (Bom) 97
The Bombay High Court dismissed an appeal filed by the Securities and Exchange Board of India (SEBI) and permitted the shareholders of Reliance Commercial Finance Ltd. (RCFL) to carry out a voting process based on debenture trust deeds (DTDs) in compliance with the circular issued by the Reserve Bank of India (RBI).
The court noted that the SEBI Circular stated that it would take effect immediately on October 13, 2020.In the present case, RCFL committed defaults prior to October 13, 2020, and the ICA was executed on July 6, 2019, which are dates prior to the coming into force of the SEBI Circular and prior to the Supplementary DTD incorporating reference to the SEBI Circular.
Case Title: Perizad Zorabian Irani Versus PCIT And Ors.
Citation: 2022 LiveLaw (Bom) 98
The Bombay High Court ruled that remuneration received from partnership firm cannot be treated as gross receipt in profession for the purpose of compulsory audit under Section 44AB of the Income Tax Act, 1961.
The Bench held that that none of the clauses under Section 44AB envisage the situation where an assessee is carrying on both profession as well as business.
Case Title: CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.
Citation: 2022 LiveLaw (Bom) 99
The Bombay High Court has refused to read principles of natural justice into Section 14 of the SARFESI Act and direct magistrates to put a borrower to notice before taking possession of the asset for the bank or financial institution.
"Only a post-possession right to approach the tribunal is conferred on a borrower in terms of section 17, nothing more and nothing less," the bench observed.
The court observed that principles of natural justice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI Act), are available to a borrower only to a limited extent and not till the secured creditor takes possession of the asset after serving a notice to the borrower and responding to it.
Case Title: RPG Enterprises Limited v Riju Ghoshal and anr
Citation: 2022 LiveLaw (Bom) 100
The Bombay High Court granted interim relief to RPG Enterprises Ltd, named after its founder, Mr. Rama Prasad Goenka, a known industrialist. Considering the factors such as (i) the extent of knowledge of the RPG mark, and its recognition by the relevant public; (ii) the duration of the use of the RPG marks; (iii) the extent of the products in relation to which the RPG mark is being used; (iv) the extent and duration of advertising and promotion of the RPG mark; (v) the geographical extent of the trading area in which the RPG mark is used…I am of the opinion that prima facie, the Plaintiff's RPG mark deserves protection as a well-known trade mark as the same has come to acquire a secondary meaning to connote to the public the goods and / or services emanating from the Plaintiff."
Case Title: Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others
Citation: 2022 LiveLaw (Bom) 101
The Bombay High Court is set to decide a complex position in law – will mere filing of a Partition Suit by a minor family member amount to severing of ties from a Hindu Undivided Family even if the Suit is eventually dismissed for non-prosecution while the plaintiff was still a minor, or should that minor be considered a part of HUF.
The question has come up in a case where the concerned minor, after attaining majority in March 2020, has now challenged a gift deed executed by his parents as a part of HUF while he was a minor, but, had sought partition of the property under the HUF. The property was eventually sold by another close relative who purportedly received it as a gift and a third party is in possession of the house in an eastern suburb of Mumbai.
