Delhi High Court Weekly Round-Up: October 17 To October 23, 2022

Citations 2022 [LiveLaw (Del) 980 TO 2022 LiveLaw (Del) 1005]

NOMINAL INDEX

IC-76585M MAJOR NISHANT KAUSHIK vs UNION OF INDIA AND ORS 2022 LiveLaw (Del) 980

Manika Batra v. Table Tennis Federation of India & Ors. 2022 LiveLaw (Del) 981

Umar Khalid v. State 2022 LiveLaw (Del) 982

M/S CELL PAGE COMMUNICAITON v. VIJAY SHANKAR PANDEY 2022 LiveLaw (Del) 983

ABC v. State 2022 LiveLaw (Del) 984

PCIT Versus M/s Boeing India Pvt. Ltd. 2022 LiveLaw (Del) 985

Balaji Enterprises Versus Principal Additional Director General 2022 LiveLaw (Del) 986

Samata Party v. ECI & Ors 2022 LiveLaw (Del) 987

x v. GNCTD 2022 LiveLaw (Del) 988

Shriram Transport Finance Co. Ltd. versus Narender Singh 2022 LiveLaw (Del) 989

Vag Educational Services v. Aakash Educational Services Ltd. 2022 LiveLaw (Del) 990

Diamond Entertainment Technologies Pvt. Ltd. & Ors. versus Religare Finvest Limited 2022 LiveLaw (Del) 991

MEHENDIRAM FOODS PRODUCTS PRIVATE LIMITED v. GOVERNMENT OF NCT OF DELHI 2022 LiveLaw (Del) 992

MOHD KASHIF v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 993

Shiva Fire Works and Anr v. Govt. of NCT of Delhi and Ors 2022 LiveLaw (Del) 994

ATUL VADERA v. THE GOVT. OF NCT OF DELHI & ORS. 2022 LiveLaw (Del) 995

X v. STATE OF NCT OF DELHI (ACTING THROUGH ITS SECRETARY) & ANR. 2022 LiveLaw (Del) 996

DR JITARANI UDGATA v. UNION OF INDIA & ANR. 2022 LiveLaw (Del) 997

JOHNEY REBERIO v. UNION OF INDIA & ORS 2022 LiveLaw (Del) 998

Manzar Imam v. NIA & Anr. 2022 LiveLaw (Del) 999

Jitendra Narain v. State & Anr. 2022 LiveLaw (Del) 1000

ALPHAVECTOR INDIA PVT. LTD. vs M/S SACH INDUSTRIES & ORS 2022 LiveLaw (Del) 1001

Omega Finvest LLP versus Direct News Private Limited 2022 LiveLaw (Del) 1002

Calcom Cement India Ltd. versus Binod Kumar Bawri & Ors. And Dalmia Cement (Bharat) Limited versus Binod Kumar Bawri & Ors. 2022 LiveLaw (Del) 1003

AERO CLUB versus BHAWNA TRADING CO. & ANR 2022 LiveLaw (Del) 1004

DR. PRAGYA SHUKLA v. UNION OF INDIA & ANR and other connected matter 2022 LiveLaw (Del) 1005

1. Armed Forces Tribunal Exercising Similar Jurisdiction As High Court, No Appeal 'Can/Should' Lie Before HCs: Delhi High Court

Title: IC-76585M MAJOR NISHANT KAUSHIK vs UNION OF INDIA AND ORS

Citation: 2022 LiveLaw (Del) 980

Months after a division bench of Delhi High Court said the jurisdiction of High Courts under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court, a co-ordinate bench has said that ordinarily, no appeal from a final decision or order of the Armed Forces Tribunal can lie before the High Court.

The division bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee said there is no provision under The Armed Forces Tribunal Act for an appeal against any such final decision or order of the AFT before any other forum like the High Courts.

"Further, as per Section 31 of the Act, such an appeal to the Apex Court shall lie within 30 days from the date of the said decision of the Tribunal with the leave of the Tribunal or the Apex Court, as the case may be," said the bench.

2. Delhi High Court Appoints Former SC Judge Justice Vineet Saran As Returning Officer For TTFI Elections

Case Title: Manika Batra v. Table Tennis Federation of India & Ors.

Citation: 2022 LiveLaw (Del) 981

The Delhi High Court has appointed the retired Supreme Court Judge, Justice Vineet Saran, as the returning officer for conducting elections of the Executive Committee (EC) of Table Tennis Federation of India (TTFI).

Justice Rekha Palli requested the former judge to prepare the electoral college and conduct the elections as per the federation's constitution. The retired judge has also asked to ensure that only those state associations which are compliant with the Sports Code are permitted to participate in the elections.

The returning officer, will be paid a sum of Rs. 7,50,000 besides secretarial expenses, which will be borne by the TTFI, Justice Palli said in an order on October 17.

3. Umar Khalid's Name Finds A Recurring Mention In Conspiracy Behind Delhi Riots, Protests Were Geared Towards Grave Consequences: Delhi High Court

Case Title: Umar Khalid v. State

Citation: 2022 LiveLaw (Del) 982

Denying bail to activist Umar Khalid in Delhi riots larger conspiracy case, the Delhi High Court observed that the protests against Citizenship Amendment Act, 2019 (CAA) and 2020 North-East Delhi riots were prima-facie orchestrated at various "conspiratorial meetings" held from December 2019 till February 2020, some of which were also attended by Khalid.

A division bench of Justices Siddharth Mridul and Rajnish Bhatnagar said that Khalid's name finds a recurring mention from beginning of the conspiracy till the riots, adding that he was a member of WhatsApp groups like DPSG and Muslim students of JNU and had also participated in various conspiratorial meetings.

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4. Citizen's Arrest Compromises Right To Life And Personal Liberty, Adherence To Procedure Must Be Strict And Scrupulous: Delhi High Court

Title: M/S CELL PAGE COMMUNICAITON v. VIJAY SHANKAR PANDEY

Citation: 2022 LiveLaw (Del) 983

Observing that the arrest of any citizen compromises his right to life and personal liberty, the Delhi High Court has said that the adherence to any procedure, which affects the liberty of the citizen, has to be strict and scrupulous.

"The arrest of any citizen compromises his right to life and personal liberty, which are the most sanctified of the fundamental rights under Part III of the Constitution of India. Liberty is a sanctified preambular constitutional goal," Justice C Hari Shankar said.

The court made the observation in an order on a plea filed by Cell Page Communication challenging the issuance of warrants against it by the Additional District Judge in 2019 in an execution proceeding of a money decree. The suit had earlier been decreed in favour of Vijay Shankar Pandey and against the Cell Page Communication for a sum of Rs 25 Lakh with simple interest at 9 percent from May 2014 till filing of the suit and pendente lite.

5. [POCSO Act] Child Sexual Abuse Increasing Alarmingly, Courts Must Imbibe Legislative Wisdom: Delhi High Court

Title: ABC v. State

Citation: 2022 LiveLaw (Del) 984

Observing that offences against minors, especially sexual assault, are increasing alarmingly, the Delhi High Court stressed that it is necessary for the courts to "imbibe the legislative wisdom" behind enactment of the Protection of Children Against Sexual Offences (POCSO) Act.

Observing that rape is a heinous crime which is abhorrent not only as against the victim but also against society at large, a division bench of Justice Siddharth Mridul and Justice Anup J. Bhambhani observed:

"The plight of a victim and the shock suffered can be felt instinctively; as the victim of rape is left devastated by the traumatic experience, as well as an unforgettable shame; being haunted by the memory of the horrific experience forcing her into a state of terrifying melancholia."

6. TDS On NRI Payment: Delhi High Court Rejects Appeal By Revenue- Payment Found As Salary, Not Fees

Case Title: PCIT Versus M/s Boeing India Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 985

The Delhi High Court, while upholding the order passed by the Income Tax Appellate Tribunal (ITAT), has held that the provision of TDS on NRI payments under Section 195 of the Income Tax Act has no application once the nature of payment is determined as salary and a deduction has been made under Section 192.

The division bench of Justice Manmohan and Justice Manmeet Pritam Singh Arora has observed that the real employer of the seconded employees continues to be the Indian entity and not the overseas entity.

7. SCN Without Any Reasons: Delhi High Court Quashes Order Cancelling GST Registration

Case Title: Balaji Enterprises Versus Principal Additional Director General

Citation: 2022 LiveLaw (Del) 986

The Delhi High Court has quashed the order cancelling the GST registration as the Range Inspector has physically verified the premises, neither by serving any notice of the physical verification nor in the report generated after the verification was uploaded on the portal.

The division bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju has observed that there was an infraction of the provisions of Rule 25 of the CGST and the order has gone beyond the frame of the Show Cause Notice.

The petitioner/assessee assailed the order cancelling its GST registration. The order was based on the show-cause notice. The SCN revealed that there is next to nothing stated as to the reason why the concerned authority proposed the cancellation of registration.

8. Delhi High Court Dismisses Samata Party's Plea Against Allotment of 'Flaming Torch' To Uddhav Thackeray's Shiv Sena

Title: Samata Party v. ECI & Ors

Citation: 2022 LiveLaw (Del) 987

The Delhi High Court on Wednesday dismissed the plea filed by Samata Party against allotment of flaming torch symbol to Uddhav Thackeray's Shiv Sena by Election Commission of India for the upcoming Andheri East Assembly bypoll in Maharashtra.

Samata Party was formed in the year 1994 and was accorded recognition on October 24, 1994. The party had participated in the 2009 and 2014 Lok Sabha General Elections but was defeated in both of them. Since the party was de-recognised back in 2004, it had lost the right over the 'flaming torch' symbol.

After hearing the party's plea against the ECI decision, Justice Sanjeev Narula said that Samata Party has failed to demonstrate any right over the symbol 'flaming torch'.

9. High Court Gives Delhi Govt Four Months To Decide on Recognizing Transgenders As Third Gender on DTC Bus Tickets

Title: x v. GNCTD

Citation: 2022 LiveLaw (Del) 988

The Delhi High Court on Wednesday directed the Delhi Government to decide in four months a representation seeking recognition of transgender community as a third gender on the tickets of DTC buses and a provision for free travel for them.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad disposed of a public interest litigation (PIL) filed by a person belonging to the transgender community claiming that the representation made on August 26 to the Delhi Government and DTC was not responded to.

The PIL thus sought directions on the Delhi Government and DTC to recognize transgender community as the third gender on the bus tickets issued to the commuters by conductors. It also sought directions for providing free of cost travel in the buses plied by DTC including cluster, feeder and mini buses.

10. Notice Stating Right To Initiate Arbitration Not A Notice Under Section 21 of A&C Act: Delhi High Court

Case Title: Shriram Transport Finance Co. Ltd. versus Narender Singh

Citation: 2022 LiveLaw (Del) 989

The Delhi High Court has ruled that a notice issued by a party, merely stating its right to initiate arbitral proceedings, which it would subsequently initiate if the payment was not made by the opposite party, is a unilateral communication which does not qualify as a notice under Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Division Bench of Justices Rajiv Shakdher and Tara Vitasta Ganju reiterated that the A&C Act does not contemplate unilateral appointment of an arbitrator by one of the parties and that there must be a consensus between the parties for appointment of the arbitrator. 

The Court added that commencement of arbitral proceedings is incumbent on the receipt of such request or notice, as provided under Section 21 of the A&C Act.

11. Arbitral Tribunal Cannot Recall The Order Terminating The Arbitral Proceedings: Delhi High Court

Case Title: Vag Educational Services v. Aakash Educational Services Ltd.

Citation: 2022 LiveLaw (Del) 990

The High Court of Delhi has held that once the arbitral tribunal terminates the arbitration proceedings on account of claimant withdrawing its claims, it cannot recall the order of termination order.

The bench of Justice C. Hari Shankar held that once the arbitral proceedings are terminated, the arbitral tribunal becomes Functus Officio and it cannot entertain an application recalling its earlier order by which it terminated the arbitral proceedings.

The Court further held that after the termination of arbitral proceedings, the tribunal would be coram non judice and any order passed by it would be without any jurisdiction.

12. Initiation Of Proceedings Under The SARFAESI Act Does Not Bar The Arbitration Of Disputes: Delhi High Court

Case Title: Diamond Entertainment Technologies Pvt. Ltd. & Ors. versus Religare Finvest Limited

Citation: 2022 LiveLaw (Del) 991

The Delhi High Court has ruled that the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) provide a remedy in addition to the adjudication under the Arbitration and Conciliation Act, 1996 (A&C Act)and hence, initiation of proceedings under the SARFAESI Act does not bar the arbitration of disputes.

The Single Bench of Justice Neena Bansal Krishna held that whether an arbitral award would operate as a res judicata, barring the second arbitration under the same agreement, must be decided by the Arbitrator since it involves mixed questions of fact and law.

13. High Court Dismisses Plea Alleging Delhi Govt's Tender Conditions For Midday Meal Scheme Are 'Tailor-Made' For Existing Players

Title: MEHENDIRAM FOODS PRODUCTS PRIVATE LIMITED v. GOVERNMENT OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 992

The Delhi High Court has dismissed a plea challenging the tender conditions set by Delhi Government with regard to the contract for preparation and supply of mid day meals to children of primary and upper primary classes of Government Aided Schools and Alternative and Innovative Education (AIE) Centres under the Samagra Shiksha Abhiyan.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that the conditions imposed in the tender cannot be said to be "whimsical, capricious, arbitrary or meant to be suited for a select few."

14. LOC A Coercive Measure, Can Be Issued To Ensure Surrender Of A Person Evading Summons Or Arrest: Delhi High Court

Title: MOHD KASHIF v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 993

The Delhi High Court has reiterated that a look out circular (LOC) is to be issued in such cases where the accused is deliberately evading arrest or summons or where he fails to appear in a court despite issuance of non-bailable warrants.

"An LOC is a coercive measure to ensure that a person surrenders and interferes with petitioner's right of personal liberty and free movement. LOC is to be issued in cases where the accused is deliberately evading summons/arrest or where accused fails to appear in Court despite issuance of Non-Bailable Warrants," Justice Anoop Kumar Mendiratta observed.

15. Delhi High Court Dismisses Plea Against Blanket Ban On Sale And Bursting Of Firecrackers In National Capital

Title: Shiva Fire Works and Anr v. Govt. of NCT of Delhi and Ors

Citation: 2022 LiveLaw (Del) 994

The Delhi High Court has dismissed a plea challenging the direction issued by Delhi Pollution Control Committee (DPCC) on September 14 for a complete ban on manufacturing, storage, sale and bursting of all kinds of firecrackers till January 1, 2023 in the national capital.

Justice Yashwant Varma said it would not be appropriate for the High Court to consider the issue when the same is pending adjudication before the Supreme Court.

The plea was moved by two entities, engaged in storing and selling of green crackers, claiming that there was no occasion for the DPCC to include green crackers while imposing a complete ban.

16. Delhi High Court Refuses To Entertain PIL Seeking Permission To Use Lead-acid Battery In E-Rickshaws

Title: ATUL VADERA v. THE GOVT. OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 995

The Delhi High Court has refused to entertain a public interest litigation (PIL) seeking permission for use of traditional lead acid batteries in the e-rickshaws and e-carts plying in the national capital.

The plea, moved by an e-rickshaw driver, sought a choice to be given to purchasers of e-rickshaws and e-carts to use either traditional acid battery or the technologically advanced lithium battery.

17. Delhi High Court Enhances Compensation For Child Sexual Abuse Survivors From Rs 7 Lakh To 10.5 Lakh

Title: X v. STATE OF NCT OF DELHI (ACTING THROUGH ITS SECRETARY) & ANR.

Citation: 2022 LiveLaw (Del) 996

Ordering increase in the amount of compensation for survivors of child sexual abuse from Rs 7 lakh to at least Rs 10.5 lakh under the 2018 Delhi Victim Compensation Scheme, the Delhi High Court said that the final compensation to the victims must be the maximum amount as provided in the scheme's schedule.

The schedule of 2018 scheme mentions both minimum as well as the upper limit of compensation to be awarded to victims.

Justice Jasmeet Singh said that special courts will be within their rights to adjudicate and grant compensation for more than 10.5 lakhs and will also decide the final as well as the interim compensation to be granted.

18. How Should Courts Determine If An Authority Is A State Under Article 12? Delhi High Court Answers

Title: DR JITARANI UDGATA v. UNION OF INDIA & ANR.

Citation: 2022 LiveLaw (Del) 997

The Delhi High Court has discussed in detail the guidelines that must be borne in mind by the courts while adjudicating the question as to whether an authority can be termed as a "State" within the meaning of Article 12 of the Constitution of India.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that the control exercised by the State over an authority should be pervasive in nature to the extent that the authority should have limited autonomy.

"It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as 'State' under Article 12. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive," the court held.

19. Person Facing Sexual Harassment Enquiry Can't Be Represented By Lawyer Or Next Friend Before ICC, Will Prejudice Complainant: Delhi HC

Title: JOHNEY REBERIO v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 998

The Delhi High Court has said that allowing a person, who is facing a sexual harassment enquiry before the Internal Complaints Committee (ICC), to be represented through someone with legal background will create a prejudice for the complainant, whose case is also being considered by the committee without aid of a legal practitioner or next friend.

Rule 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules states that parties in question shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of proceedings before the ICC. 

The plea before the court contended that ICC is deemed to be vested with powers akin to a civil court and a person should be entitled to be represented by a person who is capable of conducting cross-examination of the complainant.

20. UAPA Accused In Jail For 9 Yrs, No Charges Framed Till Date; Delhi HC Asks Trial Court To Decide Bail Plea In 75 Days

Title: Manzar Imam v. NIA & Anr.

Citation: 2022 LiveLaw (Del) 999

The Delhi High Court has asked the trial court to decide the bail plea moved by an accused, who has been in jail for more than nine years in a case registered under Unlawful Activities (Prevention) Act, within a period of 75 days.

Manzer Imam, an alleged Indian Mujahideen operative, was arrested in August 2013 in a case registered by the National Investigation Agency (NIA) alleging that he, along with others, conspired to commit terrorist acts and made preparations for targeting prominent places in the country.

Justice Jasmeet Singh disposed of the bail plea after Imam's counsel withdrew the same with liberty to approach the trial court. The counsel appearing for NIA earlier argued that Imam had not exhausted the remedy to approach the special judge.

21. Delhi High Court Grants Transit Anticipatory Bail To Senior IAS Officer In Rape Case

Title: Jitendra Narain v. State & Anr.

Citation: 2022 LiveLaw (Del) 1000

The Delhi High Court has granted transit anticipatory bail to Jitendra Narain, ex-Chief Secretary of Andaman and Nicobar Islands, in a rape case registered against him.

Narain, a senior Indian Administrative Services (IAS) officer, was transferred from the post of Chief Secretary on July 22. As per media reports, Narain has been placed under suspension by the Ministry of Home Affairs following the registration of the case. He was posted as the Chairman and Managing Director of the Delhi Financial Corporation.

Protecting Narain only till October 28, Justice Yogesh Khanna allowed him to avail his legal remedy to approach the court at Port Blair till the said date.

22. Delhi High Court Halts Manufacturing Of 'Ninety Nine' Bicycles After 'Ninety One' Producer Alleges Trademark Infringement

Title: ALPHAVECTOR INDIA PVT. LTD. vs M/S SACH INDUSTRIES & ORS

Citation: 2022 LiveLaw (Del) 1001

Observing that bicycles by their very nature are bought by a large swathe of population which could also include semi-illiterate persons, the Delhi High Court has halted the fresh manufacturing of 'NINETY NINE/99' cycles as it found its mark "deceptively or confusingly similar" to the name of 'NINETY ONE/91' cycles which are produced by a different company.

"The competing marks can be easily confused and the same can be in the form of sponsorship or affiliation. Consumers may be deceived to believe that both bicycles originate from the same manufacturers and the marks 'NINETY NINE/99' and 'NINETY ONE/91' are series marks," said Justice Prathiba M. Singh.

23. Arbitration Clause In The Initial Agreement Binding Even If Subsequent Settlement Doesn't Have It: Delhi High Court

Case Title: Omega Finvest LLP versus Direct News Private Limited

Citation: 2022 LiveLaw (Del) 1002

The Delhi High Court has ruled that an arbitration clause contained in a rent agreement would continue to be binding upon the parties, despite the fact that after the expiry of the agreement the parties had entered into a 'Terms of Settlement' and 'Addendum to Settlement', which did not contain an arbitration clause.

The Court observed that the relationship between the parties came into existence on the execution of the rent agreement. Further, it noted that the 'Terms of Settlement' and the 'Addendum to Settlement' executed between the parties did not contain a stipulation that the arbitration clause between them stood rescinded. 

The Court held that the arbitration clause was binding on the parties and thus, the dispute between the parties arising on the breach of the terms of settlement must be referred to arbitration.

24. Rewriting Commercial Contractual Terms Is Fatal To An Arbitral Award: Delhi High Court

Case Title: Calcom Cement India Ltd. versus Binod Kumar Bawri & Ors. And Dalmia Cement (Bharat) Limited versus Binod Kumar Bawri & Ors.

Citation: 2022 LiveLaw (Del) 1003

The Delhi High Court has ruled that where the parties agree to enter into a mutual consultation in the future, for making amendments to an original agreement, the same would only constitute an "agreement to agree", which is not enforceable in law.

The Court held that the finding of the arbitral tribunal that though the amendment contemplated by the "Amendment to the Share Holders Agreement" was not in fact carried out by the parties, however, the original Share Holders Agreement stood altered, extinguishing the liability of the party, was erroneous in law.

The Single Bench of Justice C. Hari Shankar ruled that rewriting of a contract between two parties, especially a commercial contract, is completely impermissible in law and that rewriting of commercial contractual terms is fatal to an arbitral award.

25. Delhi High Court Orders Sadar Bazar Trader To Pay ₹5 Lakh To Aero Group For Selling Counterfeit Woodland Products

Title: AERO CLUB versus BHAWNA TRADING CO. & ANR

Citation: 2022 LiveLaw (Del) 1004

The Delhi High Court has permanently restrained a trader in the national capital from manufacturing or selling counterfeit Woodland products and directed it to pay Aero Club a sum of Rs 5 Lakh within three months.

Woodland's Parent Company Aero Club had approached the high court last year seeking permanent injunction restraining the infringement of its trademark and copyright. 

Aero Club or Aero Group uses the mark 'Woodland' for a variety of products like shoes, belts and wallets. It had alleged that two Sadar Bazar-based wholesalers of belts and wallets were engaged in the sale of counterfeit products. An ex-parte ad interim injunction was granted in favour of Aero Club on December 21.

26. A Candidate Who Is Not In Reserve Or Waiting List Cannot Have Right Of Consideration: Delhi High Court

Title: DR. PRAGYA SHUKLA v. UNION OF INDIA & ANR and other connected matter

Citation: 2022 LiveLaw (Del) 1005

The Delhi High Court has said that a candidate, who is not falling in the reserve or waiting list, cannot claim a right to be considered for the appointment.

A division bench of Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela said there is a sanctity attached to a reserve or waiting list by which candidates within such a list may be considered for appointment against vacancies created due to non-joining of the original select list candidates.

"Though, the caveat being that the prerogative is still that of the user department or the agency carrying out the selection procedure. A word of caution being that no candidate has an indefeasible right to appointment and only to consideration alone. It is trite that it is the prerogative of the Government/department to fill or not fill all the vacancies," the court said.