Madras High Court Weekly Roundup: April 18 2022 to April 24 2022
Upasana Sajeev
25 April 2022 3:21 AM GMT
A weekly round-up of important cases from Madras High Court and its subordinate courts. Citations: 2022 LiveLaw (Mad) 163 To 2022 LiveLaw (Mad) 177 NOMINAL INDEX Dr. S. Kothandaraman v. The Pro-Chancellor and connected matter, 2022 LiveLaw (Mad) 163 Chinnasami and Ors. v. Dhanasekaran, 2022 LiveLaw (Mad) 164 Algae Labs Pvt. Ltd. Versus State Tax Officer-I, 2022 LiveLaw...
A weekly round-up of important cases from Madras High Court and its subordinate courts.
Citations: 2022 LiveLaw (Mad) 163 To 2022 LiveLaw (Mad) 177
NOMINAL INDEX
Dr. S. Kothandaraman v. The Pro-Chancellor and connected matter, 2022 LiveLaw (Mad) 163
Chinnasami and Ors. v. Dhanasekaran, 2022 LiveLaw (Mad) 164
Algae Labs Pvt. Ltd. Versus State Tax Officer-I, 2022 LiveLaw (Mad) 165
M/s. Shri Nandhi Dhall Mills India Private Limited Versus Senior Intelligence Officer, 2022 LiveLaw (Mad) 166
Sivashankar Baba @ C.N. Sivasankaran v. State, 2022 Livelaw (Mad) 167
Numinous Impex (I) Pvt. Ltd. Versus The Commissioner of Customs, 2022 Livelaw (Mad) 168
M/s.St. John CFS Part Pvt. Ltd. Versus The Commissioner of Central Excise, 2022 Livelaw (Mad) 169
Nallammal and another v. Sengoda Gounder and others, 2022 LiveLaw (Mad) 170
M/s Cholamandalam Investment and Finance Company Ltd. v. Harkhabhai Amarshibhai Vaghadiya, 2022 Livelaw (Mad) 171
R Vijayagopal v. The Inspector of Police and Another, 2022 LiveLaw (Mad) 172
Thanikodi v. Parameswari and Others, 2022 LiveLaw (Mad) 173
Rajivgandhi v. The State represented by Inspector of Police, 2022 LiveLaw (Mad) 174
S.M.D Mohamed Abdul Khader v. Muniswari, 2022 LiveLaw (Mad) 175
Arjunan v. Arunachalam, 2022 LiveLaw (Mad) 176
Rajasthani Marbles and Anr. v. Na.K. Kumar Son of N. Kuppurathinam, Arb. O.P. (Comm.Div) No. 73 of 2021, 2022 LiveLaw (Mad) 177
Case Title: Dr. S. Kothandaraman v. The Pro-Chancellor and connected matter
Citation: 2022 LiveLaw (Mad) 163
The Madras High court has held that the regulations prescribed by the All India Council For Technical Education (AICTE) are binding on all universities and institutions and these universities or institutions cannot prescribe rules on their own.
The bench of Justice V Parthiban was hearing two connected writ petitions filed by Dr. S Kothandaraman and Dr. A.V Raviprakash, Principal and Professor at the Pondicherry Engineering College against their forced retirement by the University. The university had prescribed the age of superannuation as 62 years as against the age of 65 years prescribed by AICTE.
The court held that the age of superannuation as prescribed under AICTE regulation is binding on the third respondent University and any other prescription of the age of superannuation repugnant to the AICTE regulation is to be held void and inoperative and it cannot be enforced in law.
CaseTitle: Chinnasami and Ors. v. Dhanasekaran
Citation: 2022 LiveLaw (Mad) 164
The Madras High Court recently observed that it is high time that the subordinate Courts come into grips with the fundamental principles of CPC and nip in the bud those suits which are not maintainable.
The bench of Justice N. Anand Venkatesh observed that there are sufficient provisions in CPC to undertake such an exercise and what is required is the awareness about the availability of such provisions and invoking the same in a pro-active manner.
The remarks were made while setting aside a decree passed by the lower Appellate Court with respect to schedule properties, on the ground of lack of territorial jurisdiction. The court held that the order of the trial court was a nullity as it lacked territorial jurisdiction and that the court should not have even gone into the merits of the case. The court further stated that if the courts below had been careful enough and had dismissed the suit then and there, the suit which was instituted in 2008 would not have dragged on for 14 long years.
Case Title: Algae Labs Pvt. Ltd. Versus State Tax Officer-I
Citation: 2022 LiveLaw (Mad) 165
The penalty imposed for mismatch of address in invoice and RC was quashed by the Madras High Court bench of Justice C. Saravanan on the grounds that there was a post facto alteration in GST registration.
The court noted that the address has been included in the petitioner's place of business in the GST Registration. Thus, there is a post facto inclusion of the address, which was mentioned in the tax invoice raised by the supplier and in the E-way Bill.
Case Title: M/s. Shri Nandhi Dhall Mills India Private Limited Versus Senior Intelligence Officer
Citation: 2022 LiveLaw (Mad) 166
The Madras High Court bench of Justice Anita Sumanth has held that merely because an assessee has, under the stress of investigation, signed a statement admitting tax liability and having also made a few payments as per the statement, it cannot lead to self-assessment or self-ascertainment.
The court observed that the ascertainment contemplated under Section 74 (5) of the Income Tax Act is of the nature of self-assessment and amounts to a determination that is unconditional, and not one that is retracted. If such an ascertainment/self-assessment had been made, there would be no further proceedings contemplated, as Section 74 (6) states that with the ascertainment of demand in Section 74 (5), no proceedings for show cause under Section 74 (1) shall be issued.
5. Madras High Court Grants Bail To Godman SivaShankar Baba In POCSO Case
Case Title: Sivashankar Baba @ C.N. Sivasankaran v. State
Citation: 2022 Livelaw (Mad) 167
The Madras High Court granted bail to self styled godman CN Siva Sankaran (commonly known as Siva Sankar Baba) accused under the POCSO act in various child sexual abuse cases. He has been accused of sexually harassing and misbehaving with the minor girl children studying in his school.
While granting the conditional bail, Justice G Jayachandran directed the accused to submit his passport and to co-operate with the investigation. The court further instructed the accused not to leave the state without giving prior information to the investigating officer. It was also directed that the conditions imposed by the Supreme Court shall also continue.
6. GST ITC Refund Can't Be Denied Even If Taxpayer Has Claimed Duty Drawback: Madras High Court
Case Title: Numinous Impex (I) Pvt. Ltd. Versus The Commissioner of Customs
Citation: 2022 Livelaw (Mad) 168
The Madras High Court bench of Justice C. Sarvanan has held that the refund of input tax credit (ITC) cannot be denied even if the taxpayer has claimed duty drawback.
The court, while allowing the petition, directed the department to scrutinise the refund ITC claims filed by the petitioner under Section 16(3) of the Integrated Goods and Services Tax Act, 2017 read with Section 54 of the Central Goods and Services Tax Act, 2017 and Rule 89 of the Central Goods and Services Tax Rules, 2017 and other applicable rules and refund the ITC together with applicable interest under the provisions of the respective enactments, within a period of three months from the date of receipt of a copy of this order.
Case Title: M/s.St. John CFS Part Pvt. Ltd. Versus The Commissioner of Central Excise
Citation: 2022 Livelaw (Mad) 169
The Madras High Court bench of Justice R. Subramanian and Justice N.Sathish Kumar has held that the pre-deposit payment made by the parent company having a separate service tax registration amounts to proper compliance.
The court stated that, without a doubt, the Tribunal was correct in concluding that the deposit made by the parent company, which had a separate service tax registration, could not be considered proper compliance.At the same time, the order of the Tribunal imposing a condition has been complied with. The court found that the rigid view of the tribunal would only result in the appeal being thrown out on technical grounds, resulting in a denial of opportunity to the assessee.
The court directed the department to treat the payment made by the parent company as a payment made by the appellant company for the purposes of compliance with the interim order alone.
Case Title: Nallammal and another v. Sengoda Gounder and others
Citation: 2022 LiveLaw (Mad) 170
The Madras High Court bench of Justice Teeka Raman has held that the easement right cannot be created by the act of the parties themselves without any recital in the documents. The easement right is a statutory right and therefore has to be proved in a manner known to law.
The court was hearing a second appeal filed by one Nallammal for permanent injunction. The lower courts had passed orders against the appellant holding that the respondents herein (defendants in the suit) had a right of easement by necessity.
Case Title: M/s Cholamandalam Investment and Finance Company Ltd. v. Harkhabhai Amarshibhai Vaghadiya
Citation: 2022 Livelaw (Mad) 171
The High Court of Madras has held that manifest intention to arbitrate is a sine qua non for filing an application under S. 9 before the commencement of the arbitration. No interim relief can be granted if the intention to arbitrate is missing.
The Single Bench of Justice M. Sundar held that manifest intention to arbitrate is a jurisdictional fact that must precede the application under S. 9 of the Act. It also held that Court would only appoint the receiver when the applicant is successful in demonstrating that the property is in imminent danger of waste.
Case Title: R Vijayagopal v. The Inspector of Police and Another
Citation: 2022 LiveLaw (Mad) 172
The Madras High Court has quashed the charge sheet on the file of Judicial Magistrate, Theni and the order of de-nova trial for altered charges against a lawyer who was accused of forging documents of surety.
The Madurai Bench of Justice G.R Swaminathan observed that the lawyer was merely discharging his professional service in connection with the furnishing of sureties. He had not fabricated or manufactured the documents in question. The sureties had come to the court and they brought the documents with them. The petitioner had only presented the same along with his memo of appearance. The court also observed how the prosecution never contested that the petitioner had conspired with the sureties in the tampering of documents. Thus, the lawyer cannot be faulted with penal liability.
Case Title: Thanikodi v. Parameswari and Others
Citation: 2022 LiveLaw (Mad) 173
The Madras High Court has recently held that when a claim is presented under the Motor Vehicles Act, the insurance company is liable to pay compensation even when the driver of the vehicle was not possessing a valid driving license. It added that amount may later be recovered from the owner of the vehicle.
The Madurai bench of Justice Teeka Raman made the above observations on an application filed by the owner of the offending vehicle, Thanikodi against the order passed by the Motor Accidents Claims Tribunal, Peiyakulam. The Tribunal had held that the owner of the vehicle was liable to pay compensation and exonerated the insurance company and had awarded compensation.
The court applied the principle of pay and recovery and directed the insurance company to compensate the family of the deceased and later recover this amount from the owner of the vehicle in the manner known to law.
12. Ban Two-Finger Test On Rape Victims Forthwith:Madras High Court Directs State
Case Title: Rajivgandhi v. The State represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 174
The Madras High Court has directed the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith.
The bench of Justices R. Subramanian and N. Sathish Kumar issued this direction as it noted that the two finger test is being used in cases involving sexual offences, particularly, on minor victims even after the Supreme Court judgment which held that it violates the right of rape survivors to privacy, physical and mental integrity and dignity.
The court was dealing with an appeal filed under Section 374(2) CrPC against an order of conviction and sentence under the POCSO Act. The accused, Rajivgandhi had been convicted for life sentence which would be till the end of the life time for the offences under Section 5(l) read with Section 6(1) of the POCSO Act with a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for 3 months and 7 years rigorous imprisonment for an offence under Section 363 of IPC along with a fine of Rs.20,000/- in default to undergo simple imprisonment for 3 months.
Case Title: S.M.D Mohamed Abdul Khader v. Muniswari
Citation: 2022 LiveLaw (Mad) 175
While setting aside the order of a lower court, the Madras High Court recently allowed an accused under Section 138 of the Negotiable Instruments Act to examine complainant's side of witnesses. Justice G.K Ilanthiraiyan sitting at Madurai observed,
"Accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent material namely by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself."
Case Title: Arjunan v. Arunachalam
Citation: 2022 LiveLaw (Mad) 176
The Madras High Court has recently held that while dealing with the aspect of "retrospective effect" under the Indian Registration Act, the courts shall not go by retrospective operations in simpliciter, as stated in the said Section, but consider all the attentive circumstances. These may relate to the purchase of stamp paper and the evidence of description, if any, presence of the executant and whether the executant, namely, the seller is a party defendant in the suit.
Only on a cumulative analysis of all attentive circumstances, a decision is to be rendered not by general presumption as stated by the provision alone, the bench of Justice Teekaa Raman observed.
Case Title: Rajasthani Marbles and Anr. v. Na.K. Kumar Son of N. Kuppurathinam, Arb. O.P. (Comm.Div) No. 73 of 2021
Citation: 2022 LiveLaw (Mad) 177
The High Court of Madras has held that the arbitration clause contained in a partnership deed survives the termination of the deed. The Court held that the clause is an independent agreement and outlives the main contract in which it is incorporated.
The bench of Justice M Sundar reiterated that all the issues related to the arbitrability of the claims shall be decided by the arbitral tribunal unless it is a clear case of deadwood. The Court held that Section 11 of A&C Act does not permit elaborate pleadings on the claims.
The Court also held that a poor drafting of an arbitration clause shall not deprive a party of its right to refer its disputes to arbitration as long as the intention of the parties to arbitrate can be clearly gathered from the clause.
OTHER DEVELOPMENTS
1. Retired Headmaster Moves Madras High Court Seeking Medical Admission Under 7.5% Reservation Quota
Case Title: S.Munusamy v.The Secretary And Others.
Case No: WP No. 8964 of 2022
A retired Headmaster, S Munusamy has recently moved the Madras High Court seeking admission to the medical course under the benefit of 7.5% reservation quota for the government school students under the Tamil Nadu Admission to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on preferential basis to students of Government Schools Act, 2020.
According to the bench of Justice Dr. Anita Sumanth, the petitioner has without a doubt cleared the second limb by scoring 348 marks in the NEET qualifying exam. The difficulty was in declaring that the petitioner did his schooling from sixth standard to higher secondary. The difficulty arises in so far as there is no equivalent of Higher Secondary course in the era when the petitioner did his schooling and what was available then was only an SSLC of one year.
The court thus directed the authorities to examine the feasibility of allotting a seat in the government college and to take necessary steps by the next date of hearing.
Case Title: Dr. G. Selvarajan v. Dr. M.S Santhosh and Ors
Case No: W.A No. 1093 of 2022
The Madras High Court on Monday sought a response from the parties as to why a CBI enquiry should not be ordered in a series of scam relating to admissions to the medical courses in state.
The court was hearing an appeal filed by Dr G. Selvarajan, former secretary of the Selection Committee, Directorate of Medical Education, seeking a stay of a single bench order whereby the court had found Selvarajan along with others guilty of not conducting the mop-up counselling for the management seats. The court had also found that Selvarajan and the other respondents in the writ petition were giving the seats to non-meritorious students to the exclusion of meritorious students. Thus, the court had ordered an enquiry against Dr Selvarajan and others and had issued directions to stop pension and other benefits payable to the individuals, subject to the outcome of the investigation.
When the matter came up before the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy, the court sought response from the state government as to what action had been taken pursuant to the order of the single bench. The court also sought a response as to whether an FIR was registered and whether the Chief Secretary had taken actions to initiate enquiry against the appellant.
Case Title: The Principal, Loyola College v. The State of Tamil Nadu and Ors.
Case No: W.P 9443 of 2022
The Madras High Court on Monday stayed the demand made by the University of Madras for payment of annual provisional affiliation fee in respect of each aided and un-aided courses offered by 5 Autonomous Colleges in Chennai namely, Loyola College, Madras Christian College, Women's Christian College, New College and Stella Maris College.
The bench of Justice Anita Sumanth stayed the demand, agreeing with the arguments of the petitioner colleges that the University had been making the demand without resolution of the University Senate and without the Governor-Chancellor's assent.
4. Scam In Filing Motor Accident Claims: Madras High Court Orders Inquiry Against Advocates Involved
Case Title: M/s. Cholamandalam MS General Insurance Co. Ltd and another v. The Director General of Police and others
Case No: Crl. O.P No. 2302 of 2021 and Crl O.P 4174 of 2021
The Madras High Court bench of Justice Anand Venkatesh has recently directed the Bar Council of Tamil Nadu and Puducherry to initiate inquiry against four advocates – Manohar Reddy, Bharathi, K. Selvi and M. Sankar for their alleged involvement in a large scale scam involving filing of vexatious motor accident claim petitions before the courts in the State.
The court directed the Special Investigation Team, Coimbatore, West Zone to give a formal complaint based on the orders passed in the petition before the concerned jurisdictional police stations within a period of two weeks from the date of the order. The court also directed that after the FIR is registered by the Concerned jurisdictional police station, the investigation shall be transferred to the file of the Special Investigation Team, West Zone and the investigation shall be conducted by the Deputy Superintendent of Police, CCIW, CID Coimbatore Sub Division. This officer shall be conferred with all the powers of investigation including arrest, remand, seizure etc.,
The court was of the view that mere filing of the claim with the fake and fabricated documents is an offence which requires enquiry and action to be initiated against the concerned persons.
5. Madras High Court Seeks State's Response On Implementation Of National Education Policy 2020
Case Title: Arjunan Elayaraja v. The Secretary & Ors.
Case No: WP/818/2022 (PIL)
The Madras High Court has directed the State Government to file its counter affidavit in a PIL filed by one Arjunan Elayaraja, seeking to implement the National Education Policy, 2020 in the State of Tamil Nadu.
When the matter came up before the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy, the court took on record the counter affidavit filed by the Secretary to the Union Ministry of Education. Further, it granted four weeks' time to the state government to file its counter.
6. IIT-M Professors Get Pre-Arrest Bail From Madras High Court In PhD Scholar Sexual Harassment Case
Case Title: Prof. Edamana Prasad and Anr v. State rep. By Inspector of Police
Case No: Crl OP 7776 of 2022
The Madras High Court on Wednesday granted Anticipatory Bail to two professors of the Indian Institute of Technology, Madras (IIT-M) in connection with a case for sexually harassing a PhD candidate of the University.
While granting bail, Justice G Jayachandran observed that there was no reasons to deny bail to the professors as no allegation was directly made against them. The only allegation against the professors was that they had failed to take any action against the prime accused.
The court directed the professors not to leave the state without the prior approval of the police. It was also directed that the professors were not to leave the country without the approval of the trial court. Considering that the professors were respected academicians who may have to travel outside the country for research purposes or seminars etc, the court also directed that in such situations, the trial court may grant permission to leave the country.
Case Title: Prof. I Elangovan v. The Chancellor, Thiruvalluvar University and Others
Case No: W.P No. 9721 of 2022
The Madras High Court on Friday issued notice to the Chancellor and Registrar of Thiruvalluvar University and the Principal Secretary to Government, Department of Higher Education on a plea seeking to establish the "Department of Dr. B.R. Ambedkar Studies" in the Thiruvalluvar University.
The first bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy was hearing the petition filed by Prof. I Elangovan, retired professor and member of Syndicate of the Thiruvalluvar University. In his petition, Mr. Elangovan sought directions to the Chancellor and Registrar of Thiruvalluvar University and the Principal Secretary to start the said department within a time frame fixed by the court.
The Chief Minister of Tamil Nadu Mr. M K Stalin on Saturday urged the Chief Justice of India Justice NV Ramana to consider allowing Tamil, the official language of the state of Tamil Nadu to be used in the High Court of Madras.
Mr Stalin was speaking at a function organised for laying the foundation stone for the 9- storey administrative block of the High Court.
Highlighting that the litigants have to travel all the way to Delhi for seeking justice, the CM also pushed for setting up of a bench of Supreme court at Chennai.
He also suggested bringing in social Justice in the appointment of judges to the High Court and the Supreme Court. He suggested that there was a need to bring in the Principle of Inclusiveness in the appointment of judges to the higher judiciary.
Justice V Ramasubramanian, Judge Supreme Court of India, on Saturday spoke at an event organised at the Madras High Court to lay the foundation stone for Administrative Block of Madras High Court and inaugurate Court buildings located in Namakkal and Villupuram Districts.
In his address, Justice Ramasburamanian lauded the Madras High Court, his parent High Court, for its high case clearance rate.
Referring to the case clearance rate in the State, Justice Ramasubramanian said that the Tamil Nadu judiciary ranks amongst top performers of Indian Judiciary.
