The Delhi High Court in Review: September, 2020 [Part I]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review..While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity..ARBITRATION.In Chaitanya Construction Company v. Delhi Jal Board, the Court rejected the denial of existence of the arbitration agreement by the Respondent on the ground that it had not formally signed a contract inasmuch as the Court found that the Petitioner had duly signed the agreement containing the arbitration clause which had been forwarded by the Respondent and thereafter the Respondent had indeed issued work orders to the Petitioner, based on this agreement which had been signed by the Petitioner.In Dinesh Gupta v. Anand Gupta, while reiterating that the discretion under Section 9 and Section 17 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) is to be exercised while bearing in mind the principles behind Order 38 and 39 of the Code of Civil Procedure, 1908 (‘CPC’), the Court further held that while directing a party to furnish security pending the final adjudication of the disputes, the ultimate underlying principle must be one of doing complete and substantial justice and of balancing the equities between the parties..In Bharat Sanchar Nigam Limited v. Aksh Optifibre Limited, the Court reiterated that when the agreement between the parties did not specifically enumerate the rates for carrying out a particular activity and did not provide any basis for arriving at the same, then the arbitral tribunal was justified in fixing the rate on the basis of common business sense.In Himachal Pradesh Power Corporation Limited v. Hindustan Construction Company Limited, the Court held that when an arbitrator’s brother had appeared as a counsel on behalf of a party in a separate unconnected matter, then the arbitrator would not be hit by the ineligibility bar as visualized under category 10 of the Seventh Schedule read with Section 12 (5) of the Arbitration Act..In Ved Prakash Mittal & Sons v. Principal Kirorimal College, the Court reiterated that in the absence of any express bar in the arbitration agreement to the raising of any particular dispute before the arbitral tribunal, the arbitral tribunal was competent to adjudicate a counter-claim raised by the respondent as expressly permitted under Section 23 of the Arbitration Act.In VIN Softech Private Limited v. Sarcon Projects Private Limited, the Court reiterated that when the nominee arbitrators in a three-member arbitrator tribunal are unable to arrive at a consensus regarding the presiding arbitrator, then the Court would be empowered to appoint the presiding arbitrator in view of Section 11(4) of the Arbitration Act..In National Highways Authority of India v. Sahkar Global Limited, the Court reiterated that any party which sought to call into question the data produced by the counter-party was under a corresponding duty to provide legitimate and correct information to the arbitral tribunal in response thereto.In Omcon Infrastructure Private Limited v. Indiabulls Investment Advisors Limited, the Court held that the judgment of the Supreme Court in Perkins Eastman Architects DPC & Anr. v. HSCC India Ltd. [2019 SCC Online SC 1517] could not be read in a very narrow and pedantic manner, and that the ineligibility of the Managing Director of a company to unilaterally appoint a sole arbitrator would also apply to the company itself. In Kal Airways Private Limited v. Spicejet Limited, the Court reiterated that the executing Court could not go into the merits of a challenge to an award even if the proceedings under Section 34 of the Arbitration Act were pending..BANKING AND FINANCE.In Hindustan Construction Company Limited v. National Hydro Electric Power Corporation Limited, the Court observed that within the realm of the law in relation to encashment of unconditional bank guarantees, proportionality could be said to fall within the exception of ‘special equities’ though this could be invoked only in the case of a crystalized liability and the contract between the parties having been concluded..In State Bank of India v. Ram Kumar Jain, the Court held that when a cheque is deposited and is dishonoured, then, the cheque has to be returned to the customer and if the same is not done and the amount against the same is credited to the account of the customer, then, the bank could not seek to reverse the said entry several years down the line. In CRSC Research and Design Institute Group Co. Limited v. Dedicated Freight Corridor Corporation of India Limited, the Court held that the limited exceptions to the rule against interfering with encashment of unconditional bank guarantees viz. egregious fraud, irretrievable injustice and special equities, must be pleaded and proved by cogent evidence in order to merit a stay against encashment..CIVIL PROCEDURE.In Dilawar Singh Rawat v. Anjaneya Bisanpur Agro Industries Private Limited, the Court reiterated that no intra-Court appeal would lie against an order passed by a single bench of the High Court in exercise of jurisdiction under Article 227 of the Constitution of India.In Advance Magazine Publishers Incorporated v Bombay Rayon Fashions Limited, the Court held that in terms of the judicial framework existing within Delhi, the mere fact that a judge had been assigned the work of an Additional Sessions Judge under the Code of Criminal Procedure, 1973 (‘Cr.P.C’) would not ipso-facto denude the Court of the Additional Sessions Judge of the competence to try a civil suit if the High Court were to so direct in exercise of power under section 24 of the CPC. It was further held that in exercise of powers under Section 24 of the CPC, the High Court could transfer proceedings from one Court subordinate to it to another even if the transferee Court did not even enjoy territorial jurisdiction..In Shyam Sunder v. Shikha Arora, the Court reiterated that the mere pendency of an application under Order VII Rule 11 of the CPC does not operate as an automatic stay on the requirement to file a written statement within the period prescribed under the CPC.In Neena Khatry v. Varun Moudgil, the Court reiterated that when a specific timeline for performing certain actions has been set out in a consent decree, then in the absence of the consent of all parties, the executing Court could not extend the timeline except for the purpose of preventing manifest injustice..In Kiran Kaur v. Delhi Development Authority, the Court held that that the power to recall an order would be exercised by a court only in limited and exceptional circumstances viz. where it has been obtained by a fraud practiced on the Court, or where the Court has been misled by a party or when the Court itself committed an error which resulted in manifest prejudice to a party.In Ashish Bhalla v. State (Govt. of NCT of Delhi), the Court deprecated the practice of taking undue advantage of innocuous orders passed while permitting withdrawal of petitions to seek to forcibly dispossess the counter-party to the litigation under the garb of the said order..COMPANY LAW AND INSOLVENCY.In Dr. Rajesh Kumar Yaduvanshi v. Serious Fraud Investigation Office (SFIO), the Court elaborated on the difference between the allegation that a nominee Director is guilty of negligence in performance of his/her duties as opposed to an allegation that the Director has in fact been complicit in approving the statements which were known to be false. The Court held that it was only the latter conduct which could be said to fall within the ambit of the offence recognized under Section 448 of the Companies Act, 2013 (‘Companies Act’) and accordingly set aside the summons issued to the said Director by the Serious Fraud Investigation Office.In Delhi & District Cricket Association v. Sudhir Kumar Aggarwal, the Court held that inasmuch as a dispute in relation to election to the Board of Directors fell within the jurisdiction of the National Company Law Tribunal (‘NCLT’), a civil Court would have no jurisdiction to enter into the said arena. The Court further held that in terms of the vast scope of Section 430 of the Companies Act even the issue of the manner of appointment of the ombudsman would fall within the jurisdiction of the NCLT..In Sandeep Agarwal & Anr. v. Union of India & Anr. and Ashish Gupta v. Union of India & Anr., the Court observed that the Companies Fresh Start Scheme, 2020 provides for a fresh cause of action for directors of such companies to challenge their disqualification under section 164 of the Companies Act qua companies that were still active and noted that the scheme of the Companies Act was to act as an ‘enabler’ and not a ‘disabler’.In Mukul Mittal v. Union of India, the Court reiterated that thatthe proviso to Section 167(1)(a) of the Companies Act could not be sought to be applied retrospectively..CONSTITUTIONAL LAW.In Rana Motors Private Limited v. Government of NCT of Delhi, the Court set aside the notifications issued by the Government of NCT of Delhi in relation to installation of speed governors inasmuch as it found that the same were ultra-vires Rule 118 of the Central Motor Vehicles Rules, 1989 and were beyond the scope of power granted thereunder.In Trilok Goyal v. Union of India, the Court held that a Public Interest Litigation (‘PIL’) seeking grant of government funds for implementation of a purported project in public interest by the Petitioner was not maintainable.In Rumy Chowdhury v. The Department of Revenue, Government of NCT of Delhi, the Court held that in the case of an inter-caste marriage, the determination of the caste of the offspring is to be undertaken after the examination of the peculiar facts of each case and positive or cogent evidence was required to the effect that the community to which the mother belonged had in fact accepted the children as its own in order for such a caste certificate to be issued..In Nishant Khatri v. Delhi High Court through its Registrar General, while rejecting a PIL against certain alleged discrepancies in the Delhi Judicial Services Examinations on the ground that the Petitioners had either not participated or failed to qualify for the examination in question, the Court held that inasmuch as the rule of locus standi was comparatively relaxed in the case of a PIL only for the reason that it was geared to assist the underprivileged who could not assert their legal rights, and the aggrieved lawyers who had participated in the examination could not be said to fall within the said category since they had easy access to the court system.In UDI Departmental Store v. Govt. of NCT of Delhi, the Court held that once the authority concerned had decided as a matter of policy that it would not be issuing liquor licenses under certain categories henceforth, then the Petitioners could not claim grant of such license as a matter of right.In Pardeep Singh v. Agricultural Produce Market Committee, the Court held that an allotment which is purely temporary in nature would confer no such vested right which could be sought to be ventilated in writ proceedings post the expiry of the period of allotment..CONTEMPT.In North Delhi Municipal Corporation v. R. S. Meena, the Court held that in exercise of contempt jurisdiction under the Contempt of Courts Act, 1971, supplemental orders going far beyond the directions contained in the order of which contempt had been alleged could not be issued.In Jamna Datwani v. Janak Datwani, the Court, however, noted that when there was some ambiguity in the order of which the contempt was alleged inasmuch as a different perception may legitimately have arisen therefrom, the Court would be empowered to issue supplemental directions to the parties to give effect to the underlying spirit of the order..CONTRACT LAW.In Alankit Assignments Limited v. Union of India, the Court held that in certain circumstances even a letter of intent may indeed amount to a concluded contract between the parties. The Court further observed that even a governmental authority could not vary the terms of contract unilaterally to its benefit, and reiterated that services performed by a party and received by the counter-party without demur would result in an entitlement to be paid fair compensation for the same under Section 70 of the Indian Contract Act, 1872 even in the absence of a formal contract between the parties..COVID-19.In The Joint Director, Directorate of Enforcement v. A Raja, the Court observed that considering the advancements in the technology, there was no inflexible rule that a voluminous and complex case could not be heard through video conferencing.In Bilal v. State of NCT of Delhi, the Court reiterated that the recommendations of the High Powered Committee laying down conditions for grant of bail to decongest the jails in view of the COVID-19 outbreak are ultimately recommendatory in nature, and each case has to be decided on its facts..CRIMINAL LAW & PROCEDURE.In Khalid v. State (Government of NCT of Delhi), while considering an application for extension of the period of investigation under Section 43(d) of the Unlawful Activities Prevention Act, 1967 (‘UAPA Act’) the Court held that inasmuch as a decision to extend the judicial custody of an accused would evidently seriously affect the accused, therefore, the principles of natural justice required that the accused be granted the right to oppose the passing of such an extension order.While granting bail to an accused in a proceeding under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Court in Dharmander Singh @ Saheb v. The State (Government of NCT of Delhi) held that the presumption of guilt engrafted within Section 29 of the POSCO Act would be applicable only at the stage when charges have formally been framed against the accused. The Court, therefore, held that when an application for bail was being considered before the stage of framing of charges then the grant or refusal of bail would have to be considered on standard parameters and without reference to Section 29..In Babu v. The State (GNCT of Delhi), while noting that it was bound by the decision of the Division Bench in Kishan Lal v. State 39 (1989) DLT 392 to the effect that non-filing of the Forensic Science Laboratory (‘FSL’) report along with the charge sheet would not entitle the accused to grant of bail under Section 167(2) of the Cr.P.C., the Court, however, opined that the said view would require to be revisited inasmuch the non-filing of the FSL report in the specific context of the proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) is a serious lacuna and would make it difficult to take cognizance of such a charge-sheet.In Samuel Okeke v. State, the Court held that in proceedings under the NDPS Act, it was essential that the samples which are drawn are from the same composition as the substance which was actually recovered from the accused and that if the sample is drawn after the contents of two or more packets are mixed together then the sample no longer could be said to be a true representation of the exact composition of the different packets. The Court stressed on the importance of this course of action in light of the law that the quantity of the entire mixture including the neutral substances have to be considered for the purposes of determining whether the quantity of the illicit substance is a small quantity or a commercial quantity inasmuch as if one of the packets did not contain any illicit substance, mixing the said innocuous content with the contents of another packet containing the illicit substance, would increase the quantity of the offending substance and render the accused liable to much stricter punishment based on a higher ultimate quantity..While rejecting a challenge to a detention order, the Court in Mohd. Nashruddin Khan v. Union of India, observed that abscondence of the detenue does not mean only physical disappearance but would also encapsulate within its scope even an intent to disappear or evade the concerned the authority. In this light, the Court further observed that the conduct of the detenue in not informing the authority about his present address and only providing the counsel’s address for the purpose of communication of service of notices was unacceptable and would in fact defeat the whole point of serving the detention order and which is to actually detain the named detenue.In Anil @ Sunil @ Senior v. State, the Court elaborated upon the foundational principles for construing in-court identification, which are ultimately geared towards achieving reliability, and identified elements such as the opportunity available to the witness to view the accused, the degree of attention, the accuracy of the description, the level of certainty at the stage of confrontation and the period elapsed between the crime and the actual confrontation..While reiterating that in absence of any proven demand by the accused, mere recovery of treated currency notes would not be enough to prove payment of a bribe under the Prevention of Corruption Act, 1988, the Court in Central Bureau of Investigation v. Ram Swaroop Chandel, further observed that the argument of the prosecution that certain unequivocal terms were being pseudonymously to refer to a bribe could not be based on mere presumption but had to be established through some cogent material.In Devangana Kalita v. State of NCT of Delhi, the Court granted bail to the accused in proceedings under Sections 147/148/149/186/353/283/332 /323/307/427/120B/34/188 of the Indian Penal Code, 1860 (‘IPC’) & Sections 25, 27 of the Arms Act, 1959 (‘Arms Act’) and Sections 3 & 4 of the Prevention of Destruction of Public Property Act, 1984 inasmuch as it noted that the material on record would only demonstrate the presence of the accused during a peaceful agitation, and which by itself is a fundamental right, and there was no material to demonstrate any active involvement in instigation of other persons or in deliverance of any hate speech..In Shri Arun Kumar Sharma v. Adesh Goel, while rejecting an application to recall the complainant for further cross-examination in proceedings under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’) , the Court reiterated that the limited right to this extent available under Section 311 of the Cr.P.C could not be utilized to delay the trial or fill in any lacuna in the case.In Jay Haresh Somaiya v. Narcotics Control Bureau, the Court reiterated that even if a self-incriminating statement can be said to be admissible, it would ultimately remain a weak form of evidence and could at best be used as a means of a corroboration.In Sonu @ Raja v. State, the Court held even if a country made pistol had fallen into disrepair, it would nonetheless fall within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act inasmuch as it was unlike an antique weapon which could not be used a firearm even after carrying out the requisite repairs, and would therefore not be excluded from the scope of the Arms Act by virtue of Section 45(c)..In Sunil @ Saleem v. State of NCT of Delhi, the Court noted that even if an FSL report is said to be inconclusive, the aspects which are established therein would still have evidentiary value in a corroborative sense and it could not be said that the FSL report was completely devoid of evidentiary value.In Sumit @ Tinka v. State (Government of NCT of Delhi), the Court reiterated that the very limited scope of interference against an order framing charges to the effect that the Court had to restrict itself to merely ascertaining whether there existed a strong suspicion founded on material that the accused has committed the offence and in doing so the Court was to presume that the material produced by the prosecution was true.In Veerpal v. State (NCT of Delhi), the Court reiterated that the testimony of the injured witness has high evidentiary value and is liable to be accepted unless serious doubts can be cast on the same..In Ajay Kumar v. State, the Court overturned the conviction of the accused for offences punishable under Section 376 and 506 of the IPC inter alia on the ground that not only was it evident from the record that the married prosecutrix and the appellant had been pursuing a relationship prior to the alleged incident yet further the relations between the husband of the prosecutrix and the accused were also strained and the F.I.R. in question had originally been written by the husband and thereafter signed by the prosecutrix.In Harish Yadav v. State (NCT of Delhi), the Court reiterated that the provisions of Section 50 of the NDPS Act would have to be complied with when recovery is made from a bag carried by the accused in his hand subsequent to the search of his person.In Girdhari Lal Bhagat v. Directorate of Intelligence, the Court observed that in appropriate circumstances where mitigating circumstances are present, such as the convict being a first time offender and being the only male member of the family, then a reduction in the awarded sentence for the offence punishable under Section 21(c) of the NDPS Act was called for..In Amrik Singh v. NCT of Delhi, the quashed proceedings for offences punishable Section 25 of the Arms Act, 1959 in a case where four cartridges recovered from the hand-baggage of the accused person, without an accompanying firearm, upon finding that there was no reason to suspect that the accused was in conscious possession of the ammunition in question.In Sumit v. State (NCT of Delhi), the Court reiterated that the mere absence of injury marks on the body of the prosecutrix does not by itself demonstrate that the accused did not indulge in forcible intercourse.While construing Rule 1210(II) of the Delhi Prison Rules, 2018 the Court in Surender Kumar @ Surendar Tokas v. State of NCT of Delhi, observed that the entitlement of parole thereunder was premised upon uniformly good conduct for a preceding period of one year and further held that there was no infirmity in an order rejecting an application for bail since a mobile phone and two SIM cards were recovered from the room which was occupied by the convict..In Sunil Kumar v. State, the Court reiterated that when the co-accused had been acquitted for an offence involving common intention, then the other co-accused could not be found guilty for the said offences since the common intention was the very basis of the charge.While overturning a conviction under Section 302 of IPC, the Court in Kamal v. State, observed that the mere fact that a mobile phone which was alleged to be in the possession of the accused had been demonstrated to have been used in the vicinity of the crime scene at the contemporaneous period would not be sufficient to secure a conviction when there was a complete absence of positive evidence that it was the accused who was using this number at the relevant period in time.In Sukash @ Sukesh Chandra Shekhar v. State of NCT, the Court refused bail to the accused after noticing his prior conduct which revealed that he was consistently attempting to interfere in the administration of justice including impersonating himself to be a sitting Judge of the Supreme Court and contacting judicial officers under the said guise..While discharging a former Director of a company from proceedings under Section 138 of the NI Act, the Court in Ali Baba Nabibasha v. Small Farmers Agri-Business Consortium and in Kunal Dhawan v. State, reiterated where the accused had resigned from the company and the requisite Form 32 has also been submitted with the Registrar of Companies then it could not be said that such an accused was in-charge of and responsible for the conduct of the day-to-day affairs of the company.In Chand @Chandu v. State, the Court reiterated that where a minimum sentence has been provided for, a sentence lesser than a minimum sentence could not be imposed.In Mohd. Mister v. State, the Court held that when it was clearly demonstrated that the accused was apprehended virtually red handed at the scene of the crime then the non-joinder of public witnesses would not be of much relevance..In Shivam Sahu v. State(GNCT of Delhi), the Court while rejecting bail to an accused in a proceeding under Section 376 read with Section 506 of the IPC and Section 6 of the POCSO Act inter alia on the ground that the allegations of rape had been consistently reiterated both at the time of registration of F.I.R. and the subsequent stage of statement under Section 167 of Cr.P.C as also to the doctor at the hospital where the Medico Legal Case (‘MLC’) was prepared.In Jayant Kumar Jain v. State, the Court granted the bail to an individual who was a director in the company inter alia on the ground that the case pertains purely to a commercial transaction and was based on documents which already stood seized as also the fact that the Petitioner has already approached the NCLT where a moratorium had been declared and an Interim Resolution Professional had been appointed..DISABILITY LAW AND MENTAL HEALTH.In National Federation of the Blind v. Union of India, the Court called upon all the state governments and union territories to comply with the directions issued under Section 38 of the National food Security Act, 2013 (‘Food Security Act’) which had recognized disability as a separate criterion for eligibility for coverage under the Food Security Act..EDUCATION.In Justice For All v. Government of NCT of Delhi, the Court held that the right to education under Article 21A of the Constitution and elementary education under Sections 3, 8(a) and 12(1)(c) of Right to Education Act, 2009 (‘RTE Act’) would encompass within their fold, education through digital means including through online means. The Court further noted that Government schools were free to devise their own mechanisms to impart education through digital means provided the basic minimum non-discriminatory standard of impartation of education was met, and it is not mandatory that synchronous face-to face real time online education be necessarily resorted to. However, while observing that students hailing from the economically disadvantaged category could not be subjected to a ‘digital apartheid’, the Court held that schools must ensure availability of the requisite tools and equipment for such students to be able to access the lessons and if the school had to bear any additional cost in this regard then it could seek reimbursement from the State in accordance with Section 12(2) of the RTE Act after having duly incurred the concerned expenditure..In Aviral Shankar Pandey through his Father Vinay Shankar Pandey v. University of Delhi through its Registrar, the Court while observing that the Delhi University was required to undertake a re-examination of its eligibility criteria for courses and that ideally computer science as a subject was required to be taken into consideration for drawing the merit list for taking admission to B. Sc. Hons. Physics, however, noted that considering the belated stage at which the Court had been approached when only the cut-offs remained to be announced, it would be inappropriate to pass any order in this regard so as to avoid last-minute chaos.While refusing to interfere with the criteria put in place by the university of Delhi for admission under the Extra Curricular Activities (‘ECA’) category, the Court In Prayark Mehta v. University of Delhi, held that every criteria would result in certain hardship to certain students, however, that by itself cannot be a ground to strike down the criteria in the absence of demonstration of any overarching arbitrariness..In Dhritiman Ray v. University of Delhi., the Court observed that a system set up for issuance of online degree certificates would be rendered completely ineffective if the authorities would continue to insist on physical submission of documents for processing of applications, and accordingly, directed deletion of the said requirement.In Rao Umrao Singh Teacher Training College v. National Council for Teacher Education, the Court refused relief to a college seeking recognition inasmuch as it found serious complacency and delay in the filing of the application coupled with the fact that college had also not strictly followed the process of online application.Amit.Dr. Amit George is an Advocate practicing before the High Court of Delhi..The author would like to place on record his appreciation for the assistance provided by Advocates Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.