Delhi High Court Weekly Round-Up: January 2 To January 8, 2023

Citations 2023 LiveLaw (Del) 1 to 2023 LiveLaw (Del) 16

NOMINAL INDEX

GIRISH & ORS v. UNION OF INDIA & ORS 2023 LiveLaw (Del) 1

BHAVIKAA KESHWANI & ANR. (THROUGH THEIR LEGAL GUARDIANS) v. UNIVERSITY OF DELHI & ANR. 2023 LiveLaw (Del) 2

AKSHAY DHINGRA v. STATE (GOVT. OF NCT OF DELHI) 2023 LiveLaw (Del) 3

ARJUN ANAND v. UNIVERSITY OF DELHI & ORS. 2023 LiveLaw (Del) 4

Sanghvi Movers Ltd. versus Vivid Solaire Energy Pvt. Ltd. 2023 LiveLaw (Del) 5

ARMASUISSE v. THE TRADE MARK REGISTRY & ANR. 2023 LiveLaw (Del) 6

Ram Sarup Lugani & Anr. versus Nirmal Lugani & Ors. 2023 LiveLaw (Del) 7

Sameer Wankhede v. UOI & Ors. 2023 LiveLaw (Del) 8

M/s Fermina Developers Private Limited versus Indiabulls Housing Finance Limited 2023 LiveLaw (Del) 9

Kamlesh v. State 2023 LiveLaw (Del) 10

NEERAJ BHATT v. THE STATE (GOVT. OF NCT) OF DELHI 2023 LiveLaw (Del) 11

MR. SAAD AHMED SIDDIQUI (IN J.C.) & ORS. v. THE STATE (GOVT. OF NCT OF DELHI) 2023 LiveLaw (Del) 12

Raj Kumar Gupta versus M/ S Narang Constructions & Financiers Pvt Ltd 2023 LiveLaw (Del) 13

Govind Singh v. Satya Group Pvt. Ltd, FAO (COMM) 136 of 2022 2023 LiveLaw (Del) 14

SUNIL v. STATE 2023 LiveLaw (Del) 15

Pratima Devi (Dog Amma) v. Municipal Corporation of Delhi & Ors. 2023 LiveLaw (Del) 16

High Court Directs Delhi Govt To Ensure Free Food, Medical Treatment To Below Poverty Line HIV+ Persons

Title: GIRISH & ORS v. UNION OF INDIA & ORS

Citation: 2023 LiveLaw (Del) 1 

The Delhi High Court has directed the Delhi Government to ensure free food and medical treatment to HIV positive persons, who are below the poverty line and are unable to afford the same in the national capital.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad also directed the Delhi government to ensure strict compliance of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention & Control) Act 2017 and the Rules made thereunder.

The court passed the direction while disposing of a public interest litigation filed in 2011 by various individuals, who were suffering from HIV AIDS and multiple disabilities, for housing and other facilities for their well being, including hot cooked meals.

Delhi University Admissions: High Court Junks Plea Challenging Seat Allocation Policy For CUET, 2022

Title: BHAVIKAA KESHWANI & ANR. (THROUGH THEIR LEGAL GUARDIANS) v. UNIVERSITY OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 2 

The Delhi High Court has dismissed a plea challenging Delhi University’s policy for seat allocation in admissions to various undergraduate courses in its colleges through Common University Entrance Test, 2022.

A vacation bench of Justice Vibhu Bakhru said the challenge is unsubstantial, and that there is no plausible reason to hold that the Common Seat Allocation System (CSAS) is arbitrary, unreasonable and falling foul of Articles 14 or 21 of the Constitution of India.

The court was hearing a plea moved by two candidates, who apart from challenging the CSAS, also sought permission to change their course or seat mutually.

Law Doesn’t Permit Husband To Take Away Wife's Household Articles, Jewellery Without Her Consent And Knowledge: Delhi High Court

Title: AKSHAY DHINGRA v. STATE (GOVT. OF NCT OF DELHI)

Citation: 2023 LiveLaw (Del) 3 

The Delhi High Court has observed that the law does not permit a husband to take away the wife's household articles including jewellery without her consent and knowledge.

Observing that no person can be allowed to take law in his own hands with an excuse that the parties are litigating, Justice Amit Mahajan observed:

“Only because a complaint of wife in relation to istridhan is pending, does not mean that the husband can be allowed to surreptitiously throw the wife out of the matrimonial house and take away the articles.”

The court made the observation while denying pre-arrest bail to a man in a complaint lodged by his wife alleging that her household articles were stolen while she was away from the house. The FIR was registered under Section 380 of Indian Penal Code, 1860.

‘Attended Classes Sporadically, Minimum Attendance Criteria Can’t Be Glossed Over’: Delhi High Court To Law Student

Title: ARJUN ANAND v. UNIVERSITY OF DELHI & ORS.

Citation: 2023 LiveLaw (Del) 4 

The Delhi High Court has refused to grant any interim relief to a third year law student, who was debarred from appearing in V-semester examinations by Campus Law Centre, Delhi University.

"The father of the Petitioner, who is present during the hearing, has expressed his dismay and urges the Court to take a lenient view considering the fact that the decision of the University would prolong Petitioner’s course and result in wastage of six precious months. The Court, however, remains unconvinced as the Petitioner has attended classes sporadically throughout the semester, and the minimum attendance criteria is a requirement which cannot be glossed over," said the court.

A vacation bench of Justice Sanjeev Narula issued notice on the law student’s plea seeking deletion of his name from the detention lists dated December 30 and 31, 2022 and permission to appear in the V semester examination commencing from January 3 to 14, 2023.

PO, Though Not Having Arbitartion Clause, Intrinsically Linked To Main Agreement, Dispute Arbitrable: Delhi High Court

Case Title: Sanghvi Movers Ltd. versus Vivid Solaire Energy Pvt. Ltd.

Citation: 2023 LiveLaw (Del) 5 

The Delhi High Court has ruled that the parties would be governed by the arbitration clause contained in the Contract, even though the arbitration clause is not specifically incorporated in the purchase orders.

The bench of Justice Mini Pushkarna held that the purchase order was not independent of the Contract and that the parties clearly intended the Contract to be the main agreement. Thus, the Court concluded that the parties would be governed by the arbitration clause contained in the Contract, even though an arbitration clause was not specifically incorporated in the purchase order.

'Bound To Suggest Link To Swiss Official Establishment': Delhi High Court Sets Aside Orders Granting Trademark Registration Of ‘Swiss Military’ Mark To Private Company

Title: ARMASUISSE v. THE TRADE MARK REGISTRY & ANR.

Citation: 2023 LiveLaw (Del) 6 

Ruling in favour of Armasuisse, which is a federal agency of Switzerland, the Delhi High Court has declared various marks under the name “Swiss Military” ineligible for trademark registration.

Justice C Hari Shankar allowed the appeals moved by Armasuisse, which represents the military wing of the Swiss Government, and set aside the orders passed by Deputy Registrar of Trademarks permitting trademark registration in favour of a private entity, Promoshirt, for the impugned marks in respect of clothing and textile.

“…it cannot be held that the use of the white cross on a red background, or the "SWISS MILITARY" logo below it, serves in trade to designate the geographical origin of the goods as being Switzerland. The possibility of such a mark confusing or deceiving the public into believing that the goods are of Swiss origin when, in fact, they are not, may fatally imperil the entitlement of the mark to registration in view of Section 9(1)(a) of the Trade Marks Act; Section 9(1)(b) would not, however, stand attracted on that ground," the court observed.

Court Can Permit Parties To Join Application Seeking Leave To Sue Trust Under Section 92 CPC Before Grant Of Leave: Delhi High Court

Case Title: Ram Sarup Lugani & Anr. versus Nirmal Lugani & Ors.

Citation: 2023 LiveLaw (Del) 7 

The Delhi High Court has ruled that courts can permit a person to join an application seeking leave to institute a suit against a Trust under Section 92 of the Code of Civil Procedure as at that stage the suit is yet to be instituted.

Dealing with a case wherein one of the two plaintiffs died even before the court had granted the leave to file a suit, and therefore a prayer was made seeking impleadment of two more persons as co-plaintiffs, Justice Yashwant Varma said court does not lack the power to permit persons to join an application seeking leave to sue a Trust.

It further said no provision of the Code, either expressly or impliedly, prohibits persons from joining an application for leave to sue. All that Section 92 mandates is that the application seeking leave must be made by at least two persons, the court observed.

Delhi High Court Refuses To Entertain Sameer Wankhede’s Plea Seeking Protection From Search and Seizure In Disproportionate Assets Case

Title: Sameer Wankhede v. UOI & Ors.

Citation: 2023 LiveLaw (Del) 8 

The Delhi High Court refused to entertain a plea moved by former Mumbai zonal director of Narcotics Control Bureau (NCB) Sameer Wankhede seeking protection in a case accusing him of owning disproportionate assets.

Wankhede had sought a direction that he must be given time to submit relevant documentary evidence before any action in terms of search or seizure is initiated against him.

Justice Anup Jairam Bhambhani refused to entertain the plea after opining that Wankhede had failed to produce relevant material on record so as to enable the court to exercise its jurisdiction under Article 226 and also in view of lack of territorial jurisdiction.

Determination Of Debt/ Adjudication Of Liability, Under SARFAESI, No Need To Refer To Arbitration: Delhi High Court

Case Title: M/s Fermina Developers Private Limited versus Indiabulls Housing Finance Limited

Citation: 2023 LiveLaw (Del) 9 

The Delhi High Court has ruled that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act) or the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) do not lay down an omnibus bar to arbitration. In each case, the Court would have to consider the nature of the dispute and determine whether the said statutes require the dispute to be tried exclusively by the Debt Recovery Tribunals (DRTs), the Court held.

The bench of Justice Yashwant Varma noted that the dispute between the parties, relating to whether the petitioner/debtor had made a default in repaying the loan, empowering the respondent/creditor to proceed under Section 13 of the SARFAESI Act, involved the determination of debt. Thus, the dispute fell within the scope of adjudication contemplated under Section 13 of the SARFAESI Act and it cannot be referred to arbitration, the Court said.

Section 13 of the SARFAESI Act provides a procedure for seeking enforcement of security interest by a secured creditor, if a default is made by the debtor.

MLC Report Can’t Be Discarded For Non Examination Of Doctor Who Prepared It, Colleague Can Prove Record: Delhi High Court

Case Title: Kamlesh v. State

Citation: 2023 LiveLaw (Del) 10 

Upholding life imprisonment of an accused convicted for committing rape upon a 2 year old minor girl, the Delhi High Court has ruled that MLC (medico-legal case) report can be relied upon by the courts even when the doctor who prepared it is not examined and the record is proved by any other doctor of the hospital.

The division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar said that proving of MLC report by a colleague doctor or an administrative staff of the hospital, who identify handwriting and signatures of the doctor who had examined the patient, is sufficient and good proof. It added that such a report cannot be doubted.

Delhi High Court Grants Four Weeks Parole To POCSO Convict For Filing SLP In Supreme Court

Title: NEERAJ BHATT v. THE STATE (GOVT. OF NCT) OF DELHI

Citation: 2023 LiveLaw (Del) 11

The Delhi High Court has granted parole of four weeks to a man convicted under Protection of Children from Sexual Offences (POCSO) Act to enable him file a special leave petition (SLP) before the Supreme Court. His conviction was upheld by the high court on July 04 last year.

Justice Swarana Kanta Sharma granted relief to Neeraj Bhatt who was convicted under Sections 363 and 376(2) of Indian Penal Code, 1860 read with Section 6 of POCSO Act in December 2019 by a Special POCSO court. He was sentenced to a rigorous imprisonment of 10 years and is presently confined in the city’s Mandoli jail.

‘Cannot Overlook Rights Of Accused Or Convict’: Delhi High Court Asks Trial Court Judges To Show Sensitivity Towards Undertrials

Title: MR. SAAD AHMED SIDDIQUI (IN J.C.) & ORS. v. THE STATE (GOVT. OF NCT OF DELHI)

Citation: 2023 LiveLaw (Del) 12 

The Delhi High Court has advised trial court judges to pay “special attention” and “show sensitivity” in cases where accused persons are languishing in jails as undertrials and also where they may be rendered remediless.

Justice Swarana Kanta Sharma observed that although criminal courts are duty bound to consider rights of the victim, they cannot overlook or brush aside the rights of an accused or a convict.

“A person who gets convicted has a statutory right to challenge the conviction in a higher court as well as seek suspension of sentence. However, such statutory right can only be exercised once the order on sentence is also pronounced by the Court concerned, as sentence is a part of the judgment in a trial,” the court said.

Non-Attestation Of Affidavit With Section 34 Application; A Procedural Irregularity; Application Valid: Delhi High Court

Case Title: Raj Kumar Gupta versus M/ S Narang Constructions & Financiers Pvt Ltd

Citation: 2023 LiveLaw (Del) 13

The Delhi High Court has ruled that non-attestation of the affidavit accompanying the application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) is a mere procedural irregularity. Thus, it cannot be treated as fatal to the institution of the suit, the bench of Justice Neena Bansal Krishna concluded. The Court held that the application cannot be considered as non-est for the purpose of computing limitation under Section 34 (3).

The petitioner- Raj Kumar Gupta, filed an application under Section 34 of the A&C Act before the Delhi High Court, challenging the arbitral award rendered against it. After certain objections were raised by the Registry to the petition filed by the petitioner, the petition was refiled after a delay of 57 days beyond the limitation period of three months and 30 days, as provided under Section 34(3).

Participation In The Arbitration Proceedings Cannot Be Considered To Be A Waiver Of Section 12(5) Of The A&C Act: Delhi High Court

Case Title: Govind Singh v. Satya Group Pvt. Ltd, FAO (COMM) 136 of 2022

Citation: 2023 LiveLaw (Del) 14 

The Delhi High Court has held that mere participation in the arbitration proceedings cannot be considered to be waiver of Section 12(5) that provides for ineligibility of arbitrator.

The bench of Justices Vibhu Bakhru and Amit Mahajan held that applicability of Section 12(5) can only be waived off by an express agreement and not by the conduct of parties. The Court held that the objection to challenge an arbitration award on the ground of ineligibility of arbitrator due to his unilateral appointment can be raised regardless of no such objection being taken before the arbitrator.

‘Lawyers In Criminal Courts Absolute Necessity, Not Luxury’: Delhi High Court Acquits Man Who Faced Trial Without Any Legal Aid

Title: SUNIL v. STATE

Citation: 2023 LiveLaw (Del) 15 

Calling it a classic case where canons of justice were kept aside by trial court as the accused wasn't provided any effective legal aid, the Delhi High Court has acquitted a man in a case of preparation for committing dacoity.

"Considering the overall facts and circumstances of the case, this Court’s judicial conscience does not permit to now remand back the matter and direct the learned Trial Court to again conduct a fresh trial. In view thereof, the accused is acquitted of all the charges since the trial in itself was vitiated due to non-assistance of accused by legal aid counsel, besides existence of several inconsistencies and lacunae in the case of prosecution before the learned Trial Court," said the court.

Justice Swarana Kanta Sharma in the ruling observed that the judiciary has a crucial role to play in ensuring enforcement of human rights and has to meet the “great challenge” towards making justice accessible in practical terms to the poor.

Delhi High Court Orders Status Quo On MCD’s Demolition Action Against Makeshift Shelter Of 80-Yr-Old ‘Dog Amma’

Title: Pratima Devi (Dog Amma) v. Municipal Corporation of Delhi & Ors.

Citation: 2023 LiveLaw (Del) 16

The Delhi High Court ordered status quo on the action of Municipal Corporation of Delhi (MCD) of demolishing a temporary makeshift shelter of an 80 years old woman, housing over 200 displaced stray dogs for over 30 years.

Pratima Devi, an octogenarian popularly known as “Dog Amma”, moved court seeking immediate alternate shelter after the demolition happened on January 3, leaving the elderly woman and stray dogs shelterless. 

Other Important Updates

No Criminality Found In Alt News Co Founder Mohd Zubair's Tweet, Not Named In POCSO FIR Chargesheet: Delhi Police Tells High Court

Delhi Police informed the Delhi High Court that no criminality was found in the tweet posted by Alt News Co-founder Mohammed Zubair in response to a Twitter user in August 2020. The police had earlier registered an FIR under POCSO Act against the fact-checker.

Advocate Nandita Rao, appearing for Delhi Police, told Justice Anup Jairam Bhambhani that Zubair has also not been named in the chargesheet filed in respect of the FIR in question.

The court has now listed the matter on March 2 and asked the police to place the chargesheet on record.

Delhi Govt Not Willing To Pay Towards Payment Of Dues To Reliance Infra: DMRC To High Court

The Delhi Metro Rail Corporation (DMRC) informed Delhi High Court that the Delhi Government "is not inclined" to contribute towards the payment of unpaid dues of arbitral award to Reliance Infrastructure-promoted Delhi Airport Metro Express Private Ltd (DAMEPL).

Justice Yashwant Varma took note of the affidavit filed by DMRC in which it was stated that Delhi government has informed that it is not inclined to provide Rs. 3565.64 Crores towards equity for payment of the arbitral amount with interest.

Attorney General for India R. Venkataramani on behalf of Central Government and DMRC told the court that the matter is under active consideration and deliberation of appropriate authorities and they are hopeful that the same will be resolved by January 16.

Delhi High Court Stays Trial Against BJP Leaders Hans Raj Hans, Manjinder Singh Sirsa In Defamation Case By Manish Sisodia

The Delhi High Court stayed the trial court proceedings against Bhartiya Janata Party leaders Hans Raj Hans and Manjinder Singh Sirsa in a defamation case filed by deputy Chief Minister Manish Sisodia.

Justice Dinesh Kumar Sharma also issued notice on the pleas moved by the two BJP leaders challenging the trial court order dated November 28, 2019 summoning them in the matter.

Both Sirsa and Hans, along with four other leaders namely Manoj Kumar Tiwari, Parvesh Sahib Singh Verma, Harish Khurana and Vijender Gupta, were issued summons by an Additional Chief Metropolitan Magistrate under sections 500 read with 34 of the Indian Penal Code, 1860.