Bombay High Court Judgment Tracker: September 2020

While sources concerning specific subject matters exist, there exist few sources that allow practitioners to be aware of developments with respect to specific forums. The Bombay High Court Judgment Tracker intends to fill this gap by providing a monthly gist of all decisions of the Bombay Bench of the Bombay High Court.

Since the purpose of the column is to provide a brief snapshot of all decisions to practitioners, the authors have avoided undertaking an analytical critique of the decisions.

Here is a summary of all decisions of the Bombay Bench of the Bombay High Court for the month of September.

The Code of Civil Procedure, 1908

In Sundaram Home Finance Ltd v. Rahul Jayvantrao Kaulavkar & Ors, the Court held that a disputed question of jurisdiction of the civil court in cases falling under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 cannot be decided in an application under Order 7 Rule 11 of the Code.

In this case, one party was alleging that the secured land was agricultural land, to which the provisions of SARFAESI would not apply, and the other party was disputing this claim. The Court held that such a disputed issue could only be settled by leading evidence in a suit, and that the applicant was at liberty to seek determination of this issue at a preliminary stage.

Real Estate (Regulation and Development) Act, 2016

In Nagpur Integrated Township Pvt Ltd v. Maharashtra Real Estate Regulatory Authority, the Court held that the requirement of making a pre-deposit of at least 30 per cent of the penalty before admission of an appeal before the Appellate Authority under Section 43(5) of Act is only applicable to a person qualifying as a ‘promoter’ under the definition given under the proviso to the aforementioned Section.

The Court further held that when any person legitimately raises the issue that he doesn’t qualify as a ‘promoter’ under the Act, then the Appellate Authority has to take a prima facie view of the matter and only thereafter pass an order of pre-deposit.

In M/S Renaissance Infrastructure v. Shri Parth B Suchak And Another, it was held that the mere fact that the consideration for an agreement of sale of the plot is not money, but rather the satisfaction of the buyer’s share in a partnership, would not take away from the character of the agreement as one of agreement of sale. On this basis it was held that as long as the buyer of the plot is an allottee, to whom plots of land have been sold, the said project would constitute a real estate project, irrespective of the type of consideration.

Prevention of Corruption Act, 1988

In State of Maharashtra v. Mallinath Rajaram Harsure and State of Maharashtra v. Kailas Pandurang Pawar, the Court reiterated that the prerequisite for convicting a person under Sections 7, 12 (1)(d) r/w 13(2) of the Act is to show that a demand was made for a bribe. If the prosecution cannot show the proof of demand, then proof of acceptance of bribe will not suffice to convict an accused under the Act.

Income Tax Act, 1961

In Asian Satellite Broadcast Pvt Ltd v. Income Tax Officer, Circle (1)(3), the Court held that reopening of assessment by the assessing officer under the proviso to Section 147 of the Income Tax Act, 1961 cannot be sustained four years after the end of the relevant assessment year, if the assessee has made a true and full disclosure of primary facts. It was further held that once the assessee has disclosed all relevant primary facts, the mere change in the inference drawn from such facts by the assessing officer cannot constitute a ground for reopening concluded assessments.

In State Bank of India v. Assistant Commissioner of Income Tax, the Court differentiated the Supreme Court’s decision in GKN Driveshafts (India) Limited v. Income Tax Officer, and held that the assessee cannot be totally debarred from the alternate remedy of approaching the High Court under Article 226 of the Constitution of India, when exercise of authority under Section 148 of the Income Tax Act, 1961 prima facie appears to be totally without jurisdiction.

Relying on the Supreme Court’s decision in Ajanta Pharma Limited v. Assistant Commissioner of Income Tax, it was held that the while the assessee should ordinarily avail the remedy of objecting to the notice under Section 148, and object to the proceedings, the same would not be the case where the assesse’s objection is with respect to jurisdiction and where the absence of jurisdiction appears to be apparent on the face of record.

It was additionally held that no general principle is deducible for the proposition that if a part of the income of a business is tax-free, expenditure incurred for the purpose of earning such income is outside the purview of Section 10 (which concerns exemptions).

Commercial Courts, Commercial Division and Commercial Appellate Division Of High Courts Act, 2015

In Vajinath Dayanand Kale & Ors v. Nerkar Properties LLP & Ors, the Court held that an application filed before the designated commercial court for return of plaint for presentation to proper court under Order 7 Rule 10 of CPC can be only heard by the appellate court against the decree of the commercial court, and cannot be adjudicated by way of a writ jurisdiction.

Reference was made to Section 8 of the Act, which states that challenges to interlocutory orders, including orders on the issue of jurisdiction, can only be tried in appellate proceedings. It was held that the intention behind this provision is to prevent commercial suits from being obstructed by jurisdictional challenges.

Maharashtra Co-operative Societies Act, 1960

In Audumber Narayan Wadekar v. The State of Maharashtra, Through the Department of Co-operation, and Textiles, the Court, in the context of a resignation tendered by the Chairman of the Board of Directors of a society held that where a resignation is not required to be accepted under the by-laws, the act of resignation would be ‘unilateral’ and would not require acceptance to be effective. It further held that resignations of a unilateral nature would not require acceptance to be effective from the date of tendering even if the wording of the letter of resignation indicates that the request of acceptance has been made.

Relying on its own previous decision in Prakash Mahadeo Khot & Ors. v. Maruti Dadu Khot and Ors, the Court further clarified that where resignation is tendered with effect from a future date, it can be withdrawn before the date on which it takes effect.

Customs Act, 1962

In Sidharth Vijay Shah v. Union of India & Ors, the Court held that an aggrieved person is entitled under Section 110-A of the Act to seek release of seized goods that have been provisionally attached goods under Section 110, irrespective of whether such goods are ‘prohibited goods’ as defined in Section 2(33) of the Act.

In Ganesh Benzoplast Limited v. Union of India & Ors, the Court held that amendment to Section 128 of the Act vide the Finance Act 2001 does not omit the power of the Commissioner (Appeals) to pass remand orders. It was further held that the expressions ‘modifying’ and ‘annulling’ would need to be given the widest meaning possible to make appellate jurisdiction meaningful, and would therefore include within its purview the power to pass remand orders.

It was clarified that the power of remand is an inherent power of appellate authorities exercising quasi-judicial powers. Moreover, on the issue of compliance of appellate orders, the Court, following the Supreme Court’s decision in Union of India v. Kamlakshi Finance Corporation Limited, held that the mere fact that an order of the appellate authority is pending appeal would not constitute a ground for not following the order, unless such order has been stayed by the competent court.

In Dunox Trading and Exports Pvt Ltd v. Union of India and Ors & Elantra Exports Pvt Ltd Vs Union of India and Ors, the Court held that the S. 110 (5) of the Act is coercive in nature, thus there has to be strict compliance with the procedure laid down. The Court further held that due to its coercive nature, such a provision would apply prospectively and not retrospectively.

Maharashtra Village Panchayats Act, 1959

In Lalita Dhanraj Jadhav v. State Of Maharashtra, the Court held that the expression 'the date of the order' as stipulated in S. 16(2) of the Panchayat Act has to be construed as the date of actual or constructive knowledge of the order, and the limitation period for filing of an appeal under the Act would be construed from such a date.

Indian Evidence Act, 1872

In State of Maharashtra v. Mukesh Bhojraj Puraswami, the Court held that total compliance of Section 27 of the Act is necessary, in order to make the information received from the accused admissible in a trial. In this case, the investigating officer did not state the precise nature of the statement of the accused which led to the discovery of the murder weapon. The investigating officer had simply stated that the accused had volunteered to produce one rope, and he did not provide any specific evidence to show that the accused had volunteered to produce the rope used in the commission of the offence. In such a case, the Court held that Section 27 would not apply.

In State of Maharashtra v. Ashok Tukaram Dhamne, the Court upheld the trial court order acquitting accused on the grounds that there were material contradictions and omissions in the statements of the prosecution’s star witnesses.

In Bhagwat Putalya Pawar v. State of Maharashtra, the Court held that recovery of the dead body at the instance of the accused would be admissible evidence under Section 8 of the Act (Motive, preparation and previous or subsequent conduct), even when the same may not be admissible under Section 27 (how much of information received from accused may be proved) of the Act.

To come to this conclusion, the Court relied on the Supreme Court’s decision in AN Venkatesh & Anr v. State of Karnataka. The Court also reiterated that when a wife dies under unnatural circumstances in the matrimonial household, the law puts the onus on the husband to offer an explanation as to the cause of the death under Section 106 of the Act.

It was further held that for the defense under exception 4 of Section 300 of the Indian Penal Code 1860 (no premeditation in a sudden fight) to be applicable, it must be established that the act causing the death of the deceased was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, as the accused had subsequently proceeded to bury the dead body, he had taken undue advantage and had acted in a cruel and unusual manner, due to which the exception could not be applied.

Code of Criminal Procedure, 1973

In Kailas Gangaprasad Yadav v. State of Maharashtra, the Court held that when the prosecutrix is conversant in only one language, then the entire statement of the prosecutrix under Section 164 of the Code should be recorded in that language only.

In Vishal Mahesh Suple & ors v. State of Maharashtra, the Court reiterated that it can quash an FIR in cases where the complainant settles with the accused and the possibility of conviction of the accused appears to be remote and bleak on account of non-cooperation of the complainant, except in the cases of rape, murder, dacoity or the cases under the special statutes like Prevention of Corruption Act or offences committed by public servants while working in that capacity etc.

Negotiable Instruments Act, 1881

In Praveen Kumar v. State of Maharashtra and Anr, the Court, relying on the decisions of the Supreme Court in Gunmala Sales Private Limited v. Anu Mehta and others and Anita Malhotra v. Apparel Export Promotion Council and Others, reiterated that if there exists some unimpeachable, incontrovertible evidence to indicate that the Director could not have been concerned with the issuance of cheques, asking him to stand trial would be abuse of the process of the court. Thus, the High Court may quash the proceedings relating to dishonour of a cheque under Section 138 r/w 141 and 142 of the Act.

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged In Black Marketing Of Essential Commodities Act, 1981

In Ajay Nandkishor Pasi v. State of Maharashtra and Ors, the Court held that a delay in execution of a detention order passed under Section 7 of the Act would not vitiate the detention order where the delay could be satisfactorily explained by the authorities. In the present case, there was a delay of 65 days in execution of the order of detention on account of the accused having absconded, and the authorities had shown the efforts they had made to locate the accused. Thus, the Court held that the reasons for delay had been satisfactorily explained by the authorities.

Arbitration and Conciliation Act, 1996

In Pioneer Publicity Corporation Pvt Ltd v. Airport Authority of India and Ors, the Court reiterated that for a valid arbitration agreement to exist, it would not be necessary for there to be a formally signed document. In the present case, since the parties had acted extensively and repeatedly on the contract containing the arbitration clause, they could not claim that there was no contract formally concluded and vitiate the arbitration clause. For coming to this conclusion, the Court relied on the Supreme Court’s decision in Unissi (India) Pvt Ltd v. Post Graduate Institute of Medical Education and Research.

Rahul is a law clerk at the Supreme Court of India. Pranav, Khushwant, and Anusha are advocates based in Mumbai.