Bombay High Court Weekly Round-Up: December 18 To December 24, 2023
Amisha Shrivastava
28 Dec 2023 7:11 AM GMT
Nominal Index [Citation 592 - 606]Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors. 2023 LiveLaw (Bom) 592Bank of India v. M/s. Maruti Civil Works 2023 LiveLaw (Bom) 593Manya Vejju v. Sapna Bhog 2023 LiveLaw (Bom) 594HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors. 2023 LiveLaw (Bom) 595Dr. Sublendu Prakash Diwakar v. State of Maharashtra...
Nominal Index [Citation 592 - 606]
Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors. 2023 LiveLaw (Bom) 592
Bank of India v. M/s. Maruti Civil Works 2023 LiveLaw (Bom) 593
Manya Vejju v. Sapna Bhog 2023 LiveLaw (Bom) 594
HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors. 2023 LiveLaw (Bom) 595
Dr. Sublendu Prakash Diwakar v. State of Maharashtra 2023 LiveLaw (Bom) 596
Gautam P Navlakha v. National Investigating Agency 2023 LiveLaw (Bom) 597
Atos India Private Limited v. State of Maharashtra 2023 LiveLaw (Bom) 598
Isha Exim v. UoI 2023 LiveLaw (Bom) 599
Jahid alias Javed Liyakat Ansari v. State of Maharashtra 2023 LiveLaw (Bom) 600
Aniket s/o Shahadev Labade v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 601
Parvej Khan v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 602
Leyla Mohmoodi v. Additional Commissioner of Customs 2023 LiveLaw (Bom) 603
Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors. 2023 LiveLaw (Bom) 604
Harjinder Kaur v. The Foreigner Regional Registration Office & Anr. 2023 LiveLaw (Bom) 605
Phonographic Performance Ltd. v. Kaamakazi Solution Pvt. Ltd. & Ors. 2023 LiveLaw (Bom) 606
Reports/Judgments
Case Title: Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 592
The Bombay High Court held that the trial court cannot return a plaint merely on the ground that the defendant's suit is pending in another court and it would be desirable to try both suits together.
Justice Sandeep V Marne set aside an order of the District Court, Kolhapur returning a plaint so that it could be filed in another court without explicitly giving a finding that the District Court, Kolhapur lacked the jurisdiction to entertain the case.
Case Title: Bank of India v. M/s. Maruti Civil Works
Citation: 2023 LiveLaw (Bom) 593
The Bombay High Court held that no appeal is maintainable under the Commercial Courts Act, 2015 against an order of the court dismissing the defendant's application for rejecting or returning a plaint.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor observed that such orders are not specifically enumerated in Order 43 of the CPC which lists the kind of orders appealable under section 13 of the Commercial Courts Act.
The court dismissed an appeal challenging an order of the District Judge, Thane rejecting Bank of India's application for rejecting a commercial suit against it.
Case Title: Manya Vejju v. Sapna Bhog
Citation: 2023 LiveLaw (Bom) 594
The Bombay High Court held that an inquiry under Section 60 of the Copyright Act by the trial court, cannot partake the character of determination as to whether there is indeed no infringement of copyright since the same would tend to pre-empt and prejudge an action for infringement of copyright, which the owner may institute.
Section 60 of the Copyright Act allows a person who has received threats of legal action for copyright infringement or has been wrongly accused of infringement in advertisements to take legal action. The recipient of the threats can file a lawsuit seeking a court declaration of who rightfully owns the copyright. They can also seek a court injunction to stop further threats, as well as monetary damages.
A single bench of Justice NJ Jamadar while remitting the matter back to the trial court for reconsideration, held that while an inquiry can be embarked upon under Section 60, in the present case, the inquiry had transgressed the remit of determination under the enacting part of Section 60 of the Act, as it ventures deep into the arena of infringement of the copyright or otherwise, in substance.
Case Title: HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors.
Citation: 2023 LiveLaw (Bom) 595
The Bombay High Court ruled that an insurance company, despite cancelling the policy, remains liable under the 'pay and recover' principle if the vehicle owner was not notified about such cancellation before the accident date.
Justice Kishore C Sant sitting at Aurangabad dismissed an appeal filed by HDFC Ergo contesting a judgment of the Motor Accident Claims Tribunal, Jalgaon, directing it to pay compensation to the family of the deceased in a motor accident and recover the amount later from the vehicle owner.
“the appellant could not produce evidence to show that the intimation of cancellation of policy was received by the insured prior to the date of accident. It is the case of the appellant that the intimation was sent to the insured. However, said intimation was not served for want of complete address. The fact remains that the intimation of cancellation of policy was not received by the insured”, the court observed.
Case Title: Dr. Sublendu Prakash Diwakar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 596
The Bombay High Court held that under section 91 of the CrPC, an accused at the stage of framing of charges, can seek production of potentially exculpatory documents voluntarily submitted to investigating officer (IO) even if he has the documents in his possession and submitted copies to the IO.
Justice Bharati Dangre set aside a sessions court order refusing to direct the IO to produce documents submitted by the accused on the ground that the accused already had possession of documents and could produce them during trial.
The court reasoned that the documents produced through the IO as being received by him during the investigation would be significant instead of the accused producing them before the court in defence as there can be a clarification at the stage of framing of charges itself as to what documents were furnished by the accused during the investigation.
Case Title: Gautam P Navlakha v. National Investigating Agency
Citation: 2023 LiveLaw (Bom) 597
There is no material to infer senior journalist and accused Gautam Navlakha had committed a terrorist Act as contemplated under Section 15 of UAPA, the Bombay High Court observed in its detailed order granting him bail in the Bhima Koregaon – Elgar Parishad riots case.
“The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and/ or statements of the witnesses,” the court observed.
The bench of Justices AS Gadkari and Shivkumar Dige granted bail to Navlakha an, accused in the Bhima Koregaon- Elgar Parishad case over alleged Maoist links.
Navlakha, a journalist and activist was arrested on April 14, 2020 for his alleged involvement in the violence that erupted at Bhima Koregaon village in Pune district on January 1, 2018. He has been in jail for over 3 years and 8 months.
Case Title: Atos India Private Limited v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 598
The Bombay High Court held that an agreement to provide manpower to perform maintenance is a contract of service and not a sale contract under the MVAT Act.
The bench of Justice KR Shriram and Justice Neela Gokhale has observed that the pith and substance of the contract or true nature of the transaction show that the contract is a contract for service simpliciter and is not a works contract or composite contract consisting of two contracts, one for service and one for sale, but is an indivisible contract for service only. On examination of the contract as a whole, it becomes obvious that the contract is essentially an agreement to render service. The theory of works contract or the concept of aspect theory is not attractive.
Customs Deputy Commissioner's Order Contrary To AAR's Ruling, Bombay High Court Quashes
Citation: 2023 LiveLaw (Bom) 599
The Bombay High Court quashed the customs deputy commissioner's order contrary to the ruling passed by the Authority of Advance Ruling (AAR).
The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the ruling passed by the AAR in the petitioner's own case is binding under Section 28 J (1) on the petitioner and the respondents/department as there is no change in law post-decision and the decision has been accepted by the department in the absence of any further challenge before the higher forum.
Bombay High Court Grants Bail To Murder Accused Held For 5 Years Without Framing Of Charges
Case Title: Jahid alias Javed Liyakat Ansari v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 600
The Bombay High Court granted bail to an accused in a murder case citing his prolonged incarceration without the framing of charges for the past five years.
Justice Bharati Dangre while granting bail to one Javed Ansari, stated
“Though the material in the charge-sheet indicate the Applicant's active participation in the subject C.R., if the concerned Court on account of the reason that it was embroiled in several time-bound matters, was not able to take the trial of the Applicant any further, I am left with no other option than to secure his release on bail, as he cannot be incarcerated indefnitely as an under-trial prisoner and it is more than fve years, he remained incarcerated without the trial.”
Case Title: Aniket s/o Shahadev Labade v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 601
The Bombay High Court held that in cases involving offences under both the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a victim does not have the right to file an appeal under Section 14-A of the Atrocities Act against acquittal or bail.
A Full Bench of Justice Mangesh S Patil, Justice Vibha Kankanwadi and Justice RG Avachat sitting at Aurangabad while answering a reference by a Single Judge in an anticipatory bail application held –
“in a case involving offences under both, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Children from Sexual Offences Act, a victim thereof does not have a right to prefer appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”
The court said that provisions of the CrPC apply to cases involving offences under both Acts, and the victim can appeal against acquittal or conviction for lesser offence as per proviso to section 372 of the CrPC.
Case Title: Parvej Khan v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 602
The Bombay High Court directed the state government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad also directed the state to come up with a standard operating procedure (SOP) to keep details of the victim confidential while participating in the TI parade.
Astonished at the handling of a POCSO case in which a 6-year-old victim was subjected to the identification process within the jail premises, the court criticized the special executive magistrate for not adhering to the stipulated procedures under the POCSO Act, specifically designed to prevent confrontation between the accused and the victim.
Case Title: Leyla Mohmoodi v. Additional Commissioner of Customs
Citation: 2023 LiveLaw (Bom) 603
The Bombay High Court held that the action on the part of the Assistant Commissioner of Customs in disposing of or selling the gold jewellery belonging to the petitioners or assessee subject matter of the proceedings was illegal and unconstitutional.
The bench of Justice GS Kulkarni and Justice Jitendra Jain has directed the respondents or department to restore to the petitioners an equivalent amount of gold, namely 1028 gms, or to compensate the petitioners by making payments equivalent to the market value of the gold, as of date.
The petitioners were Iranian nationals. They arrived at Chhatrapati Shivaji Maharaj International Airport, Mumbai, by Oman Air Flight. The petitioners were wearing gold ornaments (bangles) with a net weight of 1028 grams. They were intercepted by the customs officials at Mumbai Airport, and the gold bangles worn by them were seized by the customs officials.
Case Title: Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 604
The Bombay High Court set aside the Maharashtra Administrative Tribunal's (MAT) February 2023 order barring candidates from the Maratha community from being considered for government jobs under the Economically Weaker Sections (EWS) category in the recruitment processes of 2019.
A division bench of Justice Nitin Jamadar and Justice Manjusha Deshpande upheld the state government's decision to allow candidates who initially applied under the Socially and Educationally Backward Class (SEBC) in 2019, to switch to the EWS category during the ongoing recruitment process.
The court highlighted the one-time situation created after the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Class Act, 2018 (SEBC Act), leading to government resolutions extending the EWS quota to candidates who had initially applied under through SEBC category.
The court noted that no alteration occurred in EWS reservation and the original EWS candidates had not been disqualified, they just had to compete with a larger pool of candidates when the state allowed SEBC candidates to apply under EWS. The SEBC candidates still had to produce due EWS certificates to be eligible under EWS category, the court said.
Case Title: Harjinder Kaur v. The Foreigner Regional Registration Office & Anr.
Citation: 2023 LiveLaw (Bom) 605
The Bombay High Court stayed the deportation of a Yemeni National and ordered his immediate release from the custody of the Pune police. He was detained by the police on 6th November 2023 under the Foreigners Act.
A division bench comprising Justices Revati Mohite Dere and Gauri Godse observed that the Yemeni National – Fahd – was detained at the police station for one month and 18 days in the absence of a designated detention centre as required under the Foreigners Act.
Moreover, it was found that he has been living in India for several years, had a family here, and had also applied for an extension of his visa once he was granted refugee status by the United Nations.
Case Title: Phonographic Performance Ltd. v. Kaamakazi Solution Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Bom) 606
The Bombay High Court granted ad-interim injunction against playing of copyrighted songs without license in the New Year 2024 event to be organized at Ramada Hotel, Lucknow.
Justice RI Chagla granted the relief to Phonographic Performance Ltd. (PPL) in its infringement suit against Kaamakazi Solution Pvt. Ltd, the organizer of the event.
“In my view, in the absence of ad-interim relief, the Plaintiff will suffer grave irreparable loss. A prima facie case made out of the likelihood of infringement of the Plaintiff copyrighted works. This Court is of the prima faice view that the balance of convenience is in favour of the Plaintiff and the Defendants have chosen not to make an appearance despite service. Hence, the ad-interim relief is being granted”, the court observed.
Other Developments
The Bombay High Court issued notice to the Attorney General of India PIL challenging the exception from disqualification granted to MPs and MLAs under the anti-defection law in the event of their political party merging with another.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif Doctor sought the response of the Central government to the petition challenging paragraph 4 of the tenth schedule of the Constitution within 6 weeks and kept the matter for further hearing on February 7, 2023.
The PIL challenges the exception to legislators from “disqualification on ground of defection” in case of merger of political parties.
