Judgments
High Court of Delhi
ACTION ISPAT & POWER PVT. LTD v. SHYAM METALICS & ENERGY LIMITED & ORS.
MANU/DE/3262/2019
10.10.2019
Company
A winding up order passed by a Company Judge is not irrevocable and proceedings can be later transferred to NCLT, if same is in company’s interest
The instant appeal has been preferred in the name, and on behalf of the Appellant-company, by Mr. Naresh Kumar Aggarwal, who claims himself to be the Managing Director of the said Appellant company, to assail the order passed by the Learned Company Judge in Application. By the impugned order, the Learned Company Judge allowed the said Application preferred by Respondent No.2 – SBI, and directed transfer of the Company Petition to the National Company Law Tribunal (NCLT). The Learned Company Judge revoked the order admitting the winding up petition and appointing the Official Liquidator as the provisional Liquidator.
When the plea of a creditor – particularly the secured creditor, to transfer the proceedings to the NCLT from the Company Court is pitted against the plea of the ex-management not to do so, unless very strong reasons for accepting the plea of the ex-management are brought forth such as a clear statutory bar, the Company Court would lean in favour of transferring the winding up proceedings pending before it to the NCLT.
Merely because the learned Company Judge had ordered the winding up of the appellant company on 03.08.2004, it does not follow that the appellant company should necessarily be liquidated and dissolved. The other options available, namely to resolve/ revive the appellant company can and should always be explored for which purpose the NCLT is invested with jurisdiction, unless irrevocable steps towards liquidation have already been undertaken. Respondent No. 2 being the secured creditor of the appellant clearly has a stake in the proceedings for winding up and their impleadment was really a foregone conclusion.
The process under IBC is meant to find the best possible solution in a given case, which is beneficial to the company concerned as well as its creditors and other stakeholders. Therefore, in the interest of equity and justice, and keeping in mind the special nature of the IBC, if the Learned Company Judge has found it fit to transfer the winding up petition to NCLT on the application of Respondent No. SBI– who is a secured creditor, present Court would not ordinarily interfere with the judgment of the Learned Company Judge, and that too, on the asking of the erstwhile management.
Pertinently, the respondent No. 2 has already initiated proceedings before the NCLT in respect of the appellant company which, in any event, would continue. Continuation of two parallel proceedings – one before the Company Court for liquidation, and the other before the IBC for resolution/ revival, would serve no useful purpose. As per statutory scheme found in Section 434(1)(c) of Companies Act, 1956, the proceedings for winding up pending before the Company Court could be transferred to the NCLT and there is no provision for transfer of proceedings from the NCLT to the Company Court. The impugned order passed by Company Judge is upheld. Appeal dismissed.
Tags : Winding up Transfer NCLT
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High Court of Delhi
SMT. VEENA DEVI v. CONTAINER COPORATION OF INDIA LTD.(CONCOR) AND ORS.
MANU/DE/3274/2019
10.10.2019
Service
An order of transfer passed in lieu of punishment is illegal and cannot be sustained
By the instant petition, the Petitioner, who was initially appointed as Stenographer Gr-I in the year 2005 and with successive promotions was appointed as Junior Officer/Private Secretary on 1st July, 2018, assails and seeks quashing of her transfer and the relieving order.
Whether the subject transfer effected to meet any exigency or for better administration of the affairs of the respondents and did not suffer from any malafides or ulterior motives, is the short question for consideration in the instant petition.
Transfer and posting is an incident of service and the prerogative of the employer in such matters cannot be interfered with, unless, it comes to be shown that, the action of transfer or posting suffered from the vice of malice or was punitive.
The Supreme Court in Somesh Tiwari v. Union of India observed that, indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that, the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
The given facts and circumstances thus leave no doubt that, the impugned transfer order and the consequent relieving order were passed as a punitive action of taking the appropriate disciplinary action, as provided for under the rules. The impugned transfer and reliving order, which the Court finds to be punitive action, cannot therefore be sustained. The impugned transfer order and relieving order are quashed. Petition allowed.
Tags : Transfer Punitive action Legality
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Supreme Court
R. Srinivas Kumar Vs. R. Shametha
MANU/SC/1382/2019
04.10.2019
Family
Marriage can be dissolved, if it breaks down irretrievably
In present case, the Appellant-husband has preferred the present appeal feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, by which the High Court has confirmed the judgment and order passed by the learned Family Court refusing to pass a decree of divorce against the Respondent-wife,.
It is not in dispute that, since last 22 years both the Appellant-husband and the Respondent-wife are residing separately. It also appears that, all efforts to continue the marriage have failed and there is no possibility of re-union because of the strained relations between the parties. Thus, it appears that marriage between the Appellant-husband and the Respondent-wife has irretrievably broken down. In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, it is noted by present Court that, Courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage and all efforts are made in that regard and when the Court is convinced beyond any doubt that, there is actually no chance of the marriage surviving and it is broken beyond repair.
Present Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India, 1950 for dissolution of a marriage where the Court finds that, the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. In the present case, admittedly, the Appellant-husband and the Respondent-wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, while protecting the interest of the Respondent-wife to compensate her by way of lump sum permanent alimony, present is a fit case to exercise the powers under Article 142 of the Constitution and to dissolve the marriage between the parties. The application for divorce filed by the Appellant-husband for dissolution of marriage is hereby allowed.
Relevant
Hitesh Bhatnagar v. Deepa Bhatnagar MANU/SC/0428/2011
Tags : Marriage Dissolution Divorce Grant
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Supreme Court
Yatinkumar Jasubhai Patel and Ors. Vs. State of Gujarat and Ors.
MANU/SC/1395/2019
04.10.2019
Education
Institutional Preference is permissible in Post Graduate Medical Courses even after introduction of NEET Scheme
The original writ Petitioners have preferred the special leave petition/appeal against impugned judgment passed by the Division Bench of the High Court, by which the Division Bench has dismissed the said writ petition upholding the vires of Rules 2, 3, 4.1 and 4.3 of Gujarat University relating to admission to the Post Graduate Medical Courses framed by the Gujarat University providing that, the preference shall be given to the candidates graduating from the Gujarat University (providing for "Institutional Reservation"). The short question which is posed for consideration of this Court is, whether after the introduction of the NEET Scheme, still the "Institutional Preference" in the Post Graduate Medical Courses would be permissible.
It is not in dispute that, "Institutional Preference" in the Post Graduate Medical Courses is held to be permissible by present Court in catena of decisions. Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the "Institutional Preference". Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions. Under the guise of introduction of the NEET Scheme, the Petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions.
Once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible.
In view of the decisions of present Court in the cases of Dr. Pradeep Jain and Ors. v. Union of India (UOI) and Ors., a Constitution Bench decision of present Court in the case of Saurabh Chaudri and Ors. v. Union of India (UOI) and Ors.; and Saurabh Dwivedi and Ors. v. Union of India (UOI) and Ors., Institutional Preference to the extent of 50% is approved and it is observed and held that, introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a Regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only. Appeal/writ petitions dismissed.
Relevant
Dr. Pradeep Jain and Ors. v. Union of India (UOI) and Ors. MANU/SC/0047/1984
; Saurabh Chaudri and Ors. v. Union of India (UOI) and Ors. MANU/SC/0879/2003
; Saurabh Dwivedi and Ors. v. Union of India (UOI) and Ors. MANU/SC/0671/2017
Tags : Admissions Reservation Validity
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Supreme Court
Ravi Setia Vs. Madan Lal and Ors.
MANU/SC/1374/2019
04.10.2019
Contract
Specific performance of a contract cannot be enforced in favour of a person who fails to prove readiness to perform essential terms of agreement
The Plaintiff assails correctness of the order allowing the second appeal of the Defendants. By the impugned order, the High Court set aside the concurrent orders of the Courts below decreeing the Plaintiffs suit for specific performance. Learned Counsel for the Appellant-Plaintiff, submitted that, the High Court in a second appeal ought not to have interfered with a concurrent finding of fact that, the Plaintiff was ready and willing to perform his part of the obligations under the agreement.
There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances.
The grant of relief for specific performance under Section 16(1)(c) of the Specific Relief Act, 1963 is a discretionary and equitable relief. Under Section 16(1)(c), the Plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the Plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The Plaintiff did not aver in the application that, he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the Defendant did not preclude the Plaintiff from depositing the amount in proof of his readiness and willingness.
The High Court has rightly observed that, there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the Plaintiff.
According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that, the Defendants Nos. 1 and 2 subsequently sold the land on 16.01.1991 to Defendants Nos. 4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the Plaintiff that, he was ready and willing to perform his part of the obligations under the contract.
In a second appeal, the High Court ought not to enter into re-appreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete mis-appreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law. The Plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. The appeal is dismissed.
Tags : Obligation Agreement Specific performance
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High Court of Himachal Pradesh
Naresh Kumar Vs. State of H.P. and Ors.
MANU/HP/1538/2019
04.10.2019
Criminal
FIR as well as criminal proceedings can be quashed to prevent abuse of process of any Court, even in not compoundable cases, where parties have settled the matter
Present petition has been preferred under Section 482 of Code of Criminal Procedure, 1973 (CrPC) for quashing of FIR registered under Sections 354(D) and 509 of Indian Penal Code, 1860 (IPC) lodged by Respondent No. 2 and consequential proceedings initiated in pursuance thereto against the Petitioner. Present petition has been fled on the basis of compromise arrived at between the parties.
No doubt Sections 354(d) of IPC is not compoundable under Section 320 of CrPC., however, as explained by Supreme Court in Gian Singh vs. State of Punjab and Anr., Narinder Singh and Ors. vs. State of Punjab and Anr., Parbatbhai Aahir and Ors. vs. State of Gujarat and Ors. and the State of Madhya Pradesh vs. Laxmi Narayan and Ors., power of High Court under Section 482 of CrPC is not inhibited by the provisions of Section 320 of CrPC and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 of CrPC, if warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable, where parties have settled the matter between themselves.
Fact that, complainant, who has appeared and endorsed the compromise arrived at with petitioner/accused, present is a fit case to exercise power under Section 482 of CrPC. and further even otherwise if criminal proceedings are allowed to continue, no fruitful purpose is going to be served. In Madan Mohan Abbot vs. State of Punjab, the Hon'ble Supreme Court emphasized and advised that in the matter of compromise in criminal proceedings, keeping in view of nature of this case, to save the time of the Court for utilizing to decide more effective and meaningful litigation, a commonsense approach, based on ground realities and bereft of the technicalities of law, should be applied.
Further, offence in question as alleged does not fall in the category of offences prohibited for compounding in terms of the pronouncements of the Apex Court by exercising power under Section 482 of the CrPC. In view of statement of Respondent No. 2/complainant recorded on oath in this Court, prayer of Petitioner can be allowed. In view nature and gravity of offence and considering facts and circumstances of the case in entirety, present petition deserves to be allowed for ends of justice and the same is allowed accordingly and FIR is quashed. Consequent to quashing of FIR, criminal proceedings initiated in pursuance to the aforesaid FIR, are also quashed. Petition disposed off.
Relevant
Gian Singh vs. State of Punjab and Anr. MANU/SC/0781/2012
; Parbatbhai Aahir and Ors. vs. State of Gujarat and Ors. MANU/SC/1241/2017
; Narinder Singh and Ors. vs. State of Punjab and Anr. MANU/SC/0235/2014
; The State of Madhya Pradesh vs. Laxmi Narayan and Ors. MANU/SC/0320/2019
; Madan Mohan Abbot vs. State of Punjab MANU/SC/1204/2008
Tags : FIR Proceedings Quashing of
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