9 total views, 1 today
5 total views, 0 today
5 total views, 0 today
Whether HC Has Jurisdiction To Execute Arbitral Award Obtained By Bank Or Financial Institution? Bombay HC To Decide [Read Order]
The Bombay High Court will soon be hearing a matter on a crucial point of law, whether an arbitral award obtained by an entity covered under the Recovery of Debts Due to Banks and Financial Institutions Act 1993 (RDDBI), can be executed by the High Court or has to be sent to the Debt Recovery Tribunal for execution.
Justice GS Patel has framed four questions of law that will be examined by the high court in an arbitration case between Kotak Mahindra Bank and Baun Foundation Trust, while hearing Chamber Summons application filed by Baun.
Justice Patel, in an ad-interim order, acknowledged that there were many advocates who are concerned with the moot issue as there are “several hundred matters” in the high court for the enforcement of arbitral awards at the instance of an entity covered by the RDDBI Act. He appointed senior advocate Zal Adhyarujina as the amicus curiae to assist the court in this matter.
Kotak obtained an arbitral award against Baun dated August 3, 2017. Since the arbitral claimant (Kotak) is a bank, it is therefore covered by the provisions of the RDDBI Act, as also by the SARFAESI Act. Moving in execution, Kotak attached Baun’s movables, fittings and fixtures in a residential flat at Malabar Hill of which Baun is the licensee. Thereafter, Baun filed an application for Chamber Summons in the execution application filed by Kotak before the high court.
Abhinav Chandrachud along with Amit Vyas of Vertices Partners appeared on behalf of applicant Baun Foundation. Chandrachud submitted that when an award goes unchallenged, or where the result is an award, it is put into enforcement as a decree of the court.
A decree is covered by the definition of a debt under the RDDBI Act. Now, Section 18 of the RDDBI Act confers exclusive jurisdiction on the Debts Recovery Tribunal where debts are sought to be recovered by banks and non-banking financial institution. If, therefore, every decree is a debt, and it makes no difference whether the decree arises from a judgment of a court or from an award of a tribunal that is enforceable as a decree, then it is only the DRT that has exclusive jurisdiction to put that arbitral award into execution, Chandrachud said.
Chandrachud relied on the decision of a bench of the high court in the case of Bank of India v Shree Satya Corporation & Ors & Bhagvatibai B Khetan & Ors in support of his argument.
What Court Said
Justice Patel noted: “The effect or impact of accepting this argument is possibly far greater than the apparent narrowness of the proposition might suggest. There is the question of what is to be done with a host of pending enforcement orders in execution, matters where a receiver has been appointed in execution, disclosures have been ordered, warrants issued, attachments levied and so on.”
He further noted that there are many advocates who are concerned with this issue and how they wish to address the court and make their submissions:
“These Advocates say they want to address the Court on these questions. Also, and without meaning any disrespect to Dr. Chandrachud and only because I think it is appropriate to have an independent perspective, I will request Mr Zal Andhyarujina, or if he is unable for any reason to accept the assignment, Mr Sharan Jagtiani to assist the Court as amicus. I leave it to them to decide if both will appear together.”
Following questions will now be examined by the court:
(a) Whether an arbitral award in the hands of an entity covered by the RDDBI Act must be sent to the Debt Recovery Tribunal for enforcement and execution?
b) Whether this Court has no jurisdiction to entertain any execution application in respect of an arbitral award obtained by an entity covered by the RDDBI Act?
(c) The scope of the Division Bench decision in Bank of India v Shree Satya Corporation & Ors & Bhagvatibai B Khetan & Ors?
(d) If the answer to questions (a) or (b) (or both) is in the affirmative, what is the effect on past orders in execution of such awards, and on pending execution applications where orders have been passed?
Thus, Justice Patel instructed the prothonotary to notify these questions of law to be taken up for hearing after the upcoming summer vacation.
Read the Order Here
7 total views, 1 today
There Can Be No Justification For Unwarranted Delay In Disposing Parole Applications Of Convicts: Delhi HC
Observing that there can be no justification for unwarranted delay in disposing of the parole applications of the convicts, the Delhi High Court has once again directed the State to ensure that the schedule, as prescribed in the Parole/Furlough Guidelines, 2010, is strictly adhered to and in case of delays, a record of reasons be maintained.
“…There can be no justification for the unwarranted delay in disposing of the applications of the convicts.
“We therefore, dispose of this application with a direction to the respondent that it shall ensure that the schedule, as prescribed in the Parole/Furlough Guidelines, 2010, is strictly adhered to. In case of any delay, the respondent shall maintain a record of the reasons thereof,” ordered a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar.
The bench said so while hearing an application moved by Sanjeev Kumar through advocate Ajay Verma highlighting the delay in deciding of parole application of convicts which many a time defeats the very purpose for which a parole is being sought.
Advocate Ajay Verma brought to court’s notice that the original writ petition on this issue had been disposed of by the court on January 8, 2014, directing the state government to consider the applications of the prisoners pending consideration expeditiously and pass orders within a period of three weeks.
Back then also, the state was directed to adhere to the schedule fixed as per the Parole/Furlough Guidelines, 2010.
However, not much has changed, he submitted.
“This application has been necessitated for the reason that despite the aforesaid orders (of January 8, 2014), the respondent had failed to comply with Rules 16.4, 16.6, 16.8, 16.10 and 20 of the Parole/Furlough Guidelines, 2010 resulting in irreparable loss to the convicts,” noted the bench of ACJ Mittal.
It is to be noted that Section 16 provides that an application of parole has to be made to the jail superintendent who will forward a copy of the same to the police station concerned which will have to submit its report within seven days.
In case verification report is required from the police station of some other state, the rules provide a time of 10 days for the same. If no report is received by the Superintendent of Jail within the periods aforementioned, it shall be presumed that the police authorities concerned have no objection to parole being granted.
Rue 16.11 provides that the application, would then have to be immediately forwarded to the Deputy Secretary Home (General), Govt. of NCT of Delhi with a forwarding note to the effect that since no report had been received from the concerned police authorities, it is presumed that they had no objections to the grant of parole, and the application be disposed on merits.
Pursuant to notice issued by the high court, the Delhi government filed a status report disclosing status of the applications which were filed and the manner in which they have been examined and orders passed thereon.
“A perusal thereof would show that though quite a few applications are being decided in accordance with the schedule stipulated in the guidelines, however, there are several applications which have not been processed during the stipulated time,” noted the bench.
When the government made an attempt to explain the difficulty by way of which this delay has occasioned, the bench said there can be justification for the delay.
Back in 2014 also, the state had contended that because of practical problems and various agencies involved, it was unable to adhere to the time limit to dispose of the applications but the court was not inclined to agree with the contention.
“Once the guidelines are framed in consultation with the State Government, they have to be implemented. If there is any problem on the part of State to implement the guidelines, they are at liberty to bring this to the notice of this court under whose directions the Guidelines were framed. As of today, no such application is filed by the State Government seeking more time than provided in the Guidelines for disposing of the applications,” the court had noted in its January 8, 2014, order.
11 total views, 1 today
The bench of Chief Justice Dipak Misra asked the Centre to file the response within a week on the plea.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said the petition will be heard along with other pleas on the same matter which is being heard by the Constitution bench.
Owing to Section 377 of the IPC continuing on the statute book, various adult and consenting members of the LGBTQ (Lesbian, Gay, Bisexual and Transgender and Queer) community continue to face the threat of a false prosecution and some are actually facing it, Suri’s plea said.
The post Supreme Court notice to Centre on plea against criminalisation of homosexuality appeared first on Legal News India – News Updates of Advocates, Law Firms, Law Institutes, Courts & Bars of India.
8 total views, 2 today
The Bombay High Court today directed the Maharashtra government to consider on “priority”, establishing a “model child-friendly courtroom” for minor victims, witnesses and juveniles facing inquiry under a protection law for them.
A bench of Justices Naresh Patil and G S Kulkarni also directed Maharashtra Advocate General Ashutosh Kumbhakoni to file, within a month, a comprehensive reply on the status of vacancies at child welfare committees and Juvenile Justice Boards across the state, and on all such provisions of the Juvenile Justice Act (JJ Act) that are yet to be implemented.
The JJ Act focuses on children in conflict with the law and those in need of care and protection.
The bench was hearing a suo motu (on its own motion) petition following the directions of the Supreme Court to all high courts to consider, among other things, establishing “child-friendly” courts and vulnerable witness courts in each district.
In February this year, the SC had passed a slew of directions for the chief justices of all HCs across the country related to a clutch of laws.
It had asked the HC chief justices to ensure that all provisions under the JJ Act, the Protection of Children from Sexual Offences Act, the Prohibition of Child Marriage Act, and the provisions under the Indian Penal Code for trials for sexual offences were implemented in full spirit.
The bench of Justices Patil and Kulkarni, accordingly, initiated the aforementioned petition on their own and sought the AG’s assistance on drawing up a plan to implement the directions.
The bench was informed that while Delhi had some child -friendly courts, Maharashtra was yet to establish such court rooms.
At this, the bench suggested that the state take suggestions from Delhi on the same.
“Frame comprehensive suggestions on all that remains to be done. Take help from Delhi, from social activists, and from experts in the field of juvenile justice to ensure that the Supreme Court’s directions can be implemented.
“But remember, that our first priority should be to establish a model child-friendly court,” the bench noted.
“The design and atmosphere of this courtroom should be such that minor victims or witnesses feel comfortable in deposing before the court. The courtroom can also be used for the juveniles facing inquiry under the JJ Act.
“Because bringing a child to court, even for an inquiry, is very different from bringing an adult to face trial. A child must be treated as a child for all purposes, even for an inquiry or trial,” the bench said.
The judges appointed lawyer Deepa Chavan as an amicus curiae to assist the court in the hearing by offering information and expertise on the issues in the case.
9 total views, 2 today
Opposition members will move the Supreme Court against the rejection by Rajya Sabha Chairman M. Venkaiah Naidu of the impeachment motion against the Chief Justice of India, Congress leader Kapil Sibal said on Monday.
The former Union Law Minister told the media: “The order by the Chairman is unprecedented, illegal, wrong and unconstitutional.”
He said it was the first time an impeachment motion was rejected at the admission stage.
“It is illegal because the Chairman has passed the order which is required to be passed after conducting an enquiry,” he added.
“We will move the Supreme Court to challenge the order,” he said.
8 total views, 2 today
Dera Castration Case: Devotee Moves Court Seeking Protection Of Identity, CBI Says Dispose Plea On Humanitarian Grounds [Read Order]
A devotee of rape convict Gurmeet Ram Rahim, who underwent castration on behest of the controversial Dera Sacha Sauda chief, has moved the CBI court in Haryana’s Panchkula requesting that his identity and of all those castrated like him be not made public during his trial.
The application has been moved by a sadhu, a follower of Dera, who later turned a witness/ complainant in the case before Dera Sacha Sauda chief in which he is facing charges of criminal conspiracy, criminal intimidation, voluntarily causing hurt by dangerous weapons and cheating.
In his application before Special Judicial Magistrate Kapil Rathi, the witness said he and others like him who were castrated by Dr Pankaj Garg at the behest of Ram Rahim be provided protection of identity owing to social stigma attached to it.
Advocate Tanveer Ahmed Mir, Partner, Lex Alliance along with advocate Dhruv Gupta, appearing for Ram Rahim, told the court that they would file a reply to the application moved by the witness/applicant on the next date of hearing i.e., May 1.
The CBI, on the other hand, said: “the application moved by the witness/applicant may be disposed of on humanitarian grounds”.
“In view of the submissions made, the application moved by the applicant/witness will be disposed of after filing of reply on behalf of the accused No.1,” the court ordered.
It has also ordered that Dr Pankaj Garg, who is accused of carrying out the castration of devotees at the behest of Ram Rahim, has also been directed to be present in the court on May 1.
Meanwhile, the CBI did not file any separate reply to the application moved by Ram Rahim seeking directions to the CBI to supply him some documents pertaining to statement of witnesses.
On April 19, the court heard the arguments extended by advocate Tanveer Ahmed Mir who argued that the CBI has been concealing certain documents.
The agency is yet to respond to the same and will be advancing the arguments on May 1.
The court has now remanded Ram Rahim and Dr MP Singh in judicial custody till May 1. Ram Rahim is produced before court through video conferencing.
Advocate Mir and Gupta will also be leading the defence on behalf of Honeypreet, who claims to be the adopted daughter of the self-styled Godman, in a case involving the violence and rioting in the aftermath of conviction of Ram Rahim.
Read the Order Here
8 total views, 1 today
The Delhi High Court has directed the Delhi Cantonment Board (DCB) to reimburse the cost of medicines purchased by a retired headmistress of one of the schools run by the civic body for herself, husband and schizophrenic adult son.
Justice Rajiv Shakdher issued the interim direction after noting the “peculiar circumstances” of the woman’s plea in which she claimed that since September 2014 she had been denied reimbursement of medicines purchased locally from chemists when such drugs were not available in the Cantonment General Hospital.
With the direction, the court listed the matter for further hearing on September 18.
The order came as the DCB had not filed an affidavit, as directed by the court on January 24, indicating the applicable rules and regulations for providing medical benefits to a retired employee.
The court had sought the affidavit in the petition by the retired headmistress, Shanta Batra, who moved the high court seeking medical benefits and facilities at par with serving employees of the Board.
The petitioner, represented by advocates Robin David and Dhiraj Philip, contended that not providing the same medical benefits to her and her family as granted to serving employees of the Board was “discriminatory, highly prejudicial and unconstitutional”.
In her petition, she also sought directions to the Centre and the Board to frame a scheme on the lines of the Central Government Health Scheme for providing medical benefits to retired employees of the DCB.
The post High Court directs Delhi Cantonment board to reimburse medical expenses of retired employee appeared first on Legal News India – News Updates of Advocates, Law Firms, Law Institutes, Courts & Bars of India.
7 total views, 0 today