Judgments
Supreme Court
Sushila Aggarwal and Ors. vs. State (NCT of Delhi) and Ors.
MANU/SC/0100/2020
29.01.2020
Criminal
Protection under Anticipatory Bail is not time bound and life of Anticipatory Bail does not end when the Accused is summoned by Court
In the present case, the issues were referred in lieu of the conflicting decisions of different Benches to the Supreme Court to decide whether the protection under Section 438 of the Code of Criminal Procedure, 1973 should be time-bound to allow a person to surrender before the Trial Court and seek bail and whether the life of an anticipatory bail ends at the time and stage when the accused is summoned by the Court.
The Court, on the first matter, reasoned that the provisions of Section 438 CrPC are in favour of the accused and should not put any restriction on time; at the same time they do not impose a condition on the Court to limit the relief available to the Accused. The Court has to consider the nature and gravity of the offence in a case. If there are special facts or features in regards to the offence, it is open for the Court to impose any appropriate conditions including fixed nature of relief.
The Court on the second matter said that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial, depending on the conduct and behavior of the accused. An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
Tags : Supreme Court Anticipatory Bail
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Supreme Court
State of Kerala and Ors. vs. Rajesh and Ors.
MANU/SC/0084/2020
24.01.2020
Narcotics
The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985
The appellant-prosecution had challenged the direction exercised by the learned Single Judge of the Kerala High Court in granting post- arrest bail to accused respondents without noticing the mandate of Section 37(1)(b)(ii)of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) under the order impugned dated 10 May 2019 followed with the 12 June 2019 rejecting the application filed by the Appellant under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for recalling the order of post arrest bail dated 10 May 2019.
The Court observed that the scheme of Section 37 reveals the exercise of granting bail is subject to limitations under Section 439 of CrPC and the non obstante clause under Section 37.The operative part of the section prescribes two conditions which have to be satisfied to enlarge bail of a person accused under NDPS Act. The first condition entails giving the prosecution an opportunity to oppose the application and the second condition requires that the Court has to be satisfied that there are reasonable grounds for believing that he is not guilty of the offence.
If either of these two conditions is not satisfied, bail cannot be granted. The expression ‘reasonable grounds’ means something more than prima facie grounds and contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.
There cannot be a liberal approaching the matter of bail in Narcotics Drugs and Psychotropic Substances Act, 1985.
Tags : Jurisdiction Narcotics
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NATIONAL COMPANY LAW APPELLATE TRIBUNAL
Navin Raheja vs. Shilpa Jain and Ors.
MANU/NL/0024/2020
22.01.2020
Company
If the delay in possession is due to Force Majeure, it cannot be claimed that the Corporate Debtor defaulted in delivering the possession.
The Respondents, in the present case, had booked an apartment in a residential project. The Corporate debtor had issued a joint allotment letter and executed a Flat Buyer’s Agreement. The possession of the flat was to be provided within 36 months by 3rd August, 2015, but could not be delivered because the construction was not completed. As per the Agreement, in the event of construction not being complete, the Corporate Debtor is under obligation to pay the allottee(s) compensation @ Rs.7/- per sq. ft. of the super area per month for the entire period of such delay, to be adjusted at the time of conveying the apartment and it would be treated as a distinct charge. The ‘Corporate Debtor’ stated that the processing of its application for obtaining an Occupation Certificate was under the control of the concerned Government/ Competent Authority and any delay on account of the actions inactions and omissions on the part of the Government/ or Authority was beyond the reasonable control of the ‘Corporate Debtor’/ Promoter. In the circumstances, in terms of the Flat Buyer’s Agreement a ‘force majeure’ condition would be applicable.
The questions that arose for consideration were whether the corporate debtor could be held to have committed default where the possession was delayed due to reasons beyond the control of Corporate Debtor.
The Court observed that the Adjudicating Authority before admitting an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 filed by allottee(s) will take into consideration the decision of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Limited & Anr. v. Union of India & Ors.
If the delay is not due to the ‘Corporate Debtor’ but force majeure, as noticed above, it cannot be alleged that the ‘Corporate Debtor’ defaulted in delivering the possession.
Tags : Corporate Debtor Possession
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Supreme Court
Standard Chartered Bank vs. MSTC Limited
MANU/SC/0073/2020
21.01.2020
Banking
Debt Recovery Tribunal has no power to condone delay in filing Review Application under RDB Act
In the present case, the Respondent had filed a review petition before the Debt Recovery Tribunal with the application for condonation of delay which was dismissed on the grounds that Section 5 of the Limitation Act, 1963 does not apply to review petitions. The Respondent then filed a Writ Petition before the Bombay High Court which was disposed off by the impugned judgment holding that that where an alternative remedy was not available, writ petition was maintainable.
The Court noted that Section 24 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) states that the provisions of the Limitation Act, 1963 apply to “an application made to a Tribunal”. Section 2 (b) of the Act define application as one made under Section 19 of the RDB Act. The application for review is filed not under Section 19 but as per Section 22 (2) (e) read with Rule 5A of the Debt Recovery Tribunal (Procedure) Rules, 1993. On this basis, the Bench observed that an application for review cannot possibly be said to be an application filed under Section 19 even on a cursory reading of the provisions of the Act, as it traces its origin to Section 22(2)(e) read with Rule 5A of the Rules. Such applications filed under Rule 5A are not for recovery of debts but are only applications to correct errors apparent on the face of the record n a judgment that has been delivered in an application filed under Section 19.
The Bench upheld the Supreme Court’s Decision in International Asset Reconstruction Company Of India Ltd v. The Official Liquidator of Aldrich Pharmaceuticals Ltd and Others, which had held that the Debt Recovery Tribunal cannot condone delay in filings appeals.
The only application that is referred to by Section 24 of the RDB Act is an application filed under Section 19 and no other. This being the case, an application for review not being an application under Section 19, but an application under Section 22(2)(e) read with Rule 5A of the Rules, this judgment (International Asset Reconstruction Company of India Ltd case) would apply on all fours to exclude applications which are review applications from the purview of Section 24 of the RDB Act. Thereby, the Supreme Court held that the Apex Court’s decision was erroneous.
Tags : Delay Debt Recovery Tribunal
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NATIONAL COMPANY LAW APPELLATE TRIBUNAL
M. Ravindranath Reddy vs. G. Kishan and Ors
MANU/NL/0016/2020
17.01.2020
Insolvency
Lease of Immoveable Property cannot be considered as supply of goods or rendering a service, and cannot fall under the definition of ‘Operational Debt’
In the present case, the Appellant was the Corporate Debtor of the Respondents/ Petitioners, Lessors of industrial Premises. That tenancy of the Appellant was yearly, and the rent payable for the period from July 2011 to June 2017 was Rs. 85,67,290/- and the Corporate Debtor stopped making the payment from January 2017, after the last part payment was made, which was adjusted towards rental dues. The Adjudicating Authority held that the Corporate Debtor had taken the property of the Petitioners on rent and they were paying rent up to June 2017.
The question arose as to whether a landlord providing lease would be treated as services to the corporate debtor, making the landlord an operational creditor within the meaning of Section 5 (20) read with Section 5 (21) of the Insolvency and Bankruptcy Code, 2016. Further, whether the petition filed under Section 9 of the Code would be not maintainable on account of ‘pre-existing dispute.
The Court observed that the Code only provided for two types of debt- financial debt and operational debt. Where the debt was neither of the two, the creditor would not qualify under Sections 7 or 9. For an amount to qualify as operational debt, it should be a ‘claim’ under Section 3 (6), such claim should be ‘debt’ under Section 3(11) and such ‘debt’ should strictly fall under ‘Operational Debt’ under Section 5 (21). Only if the claim by way of debt falls within one of the three categories as under Section 5(21) of the Code, can be categorized as an operational debt.
NCLAT held that lease of immovable property cannot be considered as a supply of goods or rendering of any services and thus, cannot fall within the definition of 'Operational Debt.
The Adjudicating Authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute. The Adjudicating Authority is to see whether there is a plausible contention which requires further investigation. Thus in the present case, there was a pre-existing dispute, which is proved by the issuance of notice under Section 106 of the Transfer of Property Act, 1882 much before the issuance of demand notice, under Section 8 of the Code. Based on the above, the application filed under Section 9 of the Code could not have been admitted.
Tags : Operational Debt Immovable Property
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