Bombay High Court Weekly Round-up: November 26, 2023 To December 03, 2023
Nominal Index [Citation 547 - 560]Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors. 2023 LiveLaw (Bom) 547AjitSingh Ghorpade v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 548Rohit s/o Chandrakant Bhagat v. State of Maharashtra 2023 LiveLaw (Bom) 549L&T Finance Limited v. Diamond Projects Limited 2023 LiveLaw (Bom) 550Anandrao G Pawar v. Municipal Corporation of...
Nominal Index [Citation 547 - 560]
Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors. 2023 LiveLaw (Bom) 547
AjitSingh Ghorpade v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 548
Rohit s/o Chandrakant Bhagat v. State of Maharashtra 2023 LiveLaw (Bom) 549
L&T Finance Limited v. Diamond Projects Limited 2023 LiveLaw (Bom) 550
Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 551
Vishwas S/o Pitambar Patil v. State of Maharashtra 2023 LiveLaw (Bom) 552
The Hongkong and Shanghai Banking Corporation v. UoI 2023 LiveLaw (Bom) 553
Shonali Kedar Dighe v. Ashita Tham and Ors. 2023 LiveLaw (Bom) 554
Anuradha Kapoor and Ors. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 555
Patanjali Foods Ltd. v. SE Oil Products Pvt Ltd. & Anr 2023 LiveLaw (Bom) 556
High Court On Its Own Motion v. State of Maharashtra 2023 LiveLaw (Bom) 557
Ashok Dayabhai Shah And Ors. v. Securities And Exchange Board of India And Ors. 2023 LiveLaw (Bom) 558
Tribhuvansing Raghunath Yadav v. State of Maharashtra 2023 LiveLaw (Bom) 559
Shantapa alias Shantesh S. Kalasgond v. M/s. Anna 2023 LiveLaw (Bom) 560
Reports/Judgments
Case Title: Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors.
Citation: 2023 LiveLaw (Bom) 547
The Bombay High Court held that a No Confidence Motion against Sarpanch and Upa Sarpanch would be valid even without being formally proposed and seconded as long as it was passed by the required majority and fulfilling all requirements under section 35 of the Maharashtra Village Panchayats Act.
Justice Madhav Jamdar upheld the No Confidence Motion passed against the Sarpanch and Upa-Sarpanch of Gram Panchayat Ukkadgaon in Solapur District observing that it was passed meeting all statutory requirements.
“the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the said Act as the said infraction does not affect the merits of the case”, the court held.
Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 provides that a member who has given notice of a motion shall either state that he does not wish to move the motion, or formally move the motion, after the motion is duly seconded.
The court dismissed two writ petitions filed by the Sarpanch and Upa-Sarpanch against an order dated October 13, 2023, wherein the Collector, Solapur, dismissed their Dispute Applications challenging the validity of the Motion of No Confidence.
Case Title: AjitSingh Ghorpade v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 548
The Bombay High Court refused to hear a plea by advocate Ajitsingh Ghorpade seeking directions for appropriate measures to safeguard people from waterfalls and water bodies, claiming that every year around 1,500 to 2,000 people lose their lives to 'unsafe water bodies' in Maharashtra.
A division bench of Chief Justice D K Upadhyaya and Justice Arif Doctor observed –
“On being explained that the averments made in the PIL petition are unsubstantiated, vague and general in nature, learned counsel representing the petitioner states that the petitioner may be permitted to withdraw the PIL petition with liberty to institute a fresh petition. In view of the aforesaid, the PIL petition is dismissed as withdrawn with liberty to file fresh petition, if the petitioner is so advised, with appropriate data, information, law and study.”
Accordingly, the lawyer withdrew the plea.
On a query by the bench, the petitioner's lawyer had claimed that he had gathered the information that 1500-2000 people lost their lives to unsafe water bodies each year from newspapers and social media posts. He contended that the state government be directed to take steps to ensure the safety of people who visit such water bodies.
Case Title: Rohit s/o Chandrakant Bhagat v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 549
The Bombay High Court clarified that the child victim of offenses under the Protection of Children from Sexual Offences (POCSO) Act or their guardians are not obligated to appear before the court in appeals or applications for suspension of sentence by the convict.
Justice Anil Pansare of the Nagpur Bench observed that confusion has arisen among advocates, investigating agencies, and court officials regarding the necessity of the presence of a child victim, through parents or guardians, in appeals under Section 374 or applications for suspension of sentence under Section 389 of the CrPC.
The court emphasized that the child's or the guardian's presence is not obligatory except in bail applications, as per directions given by the court in Arjun Kishanrao Malge v. State of Maharashtra.
The court admitted an appeal against conviction and directed the appellant to delete the victim's name from both the appeal and the application for suspension for sentence.
Case Title: L&T Finance Limited v. Diamond Projects Limited
Citation: 2023 LiveLaw (Bom) 550
The High Court of Bombay held that the judgment of the Constitution Bench in N.N. Global does not affect the power of Court to grant interim measures under Section 9 of the A&C Act despite the non-payment or insufficiency of payment of stamp duty on the arbitration agreement or the main agreement containing the arbitration clause.
The bench of Justice Bharati Dangre held that unlike Section 11 or 8 of the A&C Act, the Court exercising powers under Section 9 of the Act is not required to make a determination on the existence and validity of the arbitration agreement rather the Court would have to grant interim relief on the parameters of three-fold test of (a) prima facie case (b) balance of convenience and (c) irreparable injury.
The Court held that an inadequately/insufficiently stamped instrument/document/agreement shall not preclude the party from seeking interim measures as contemplated under Section 9 of the A&C Act.
Case Title: Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 551
The Bombay High Court held that tenants cannot stretch their limited right to reconstruct or repair a dilapidated building in order to obstruct the property owner/landlord from redeveloping his property.
Ruling in favor of the petitioner/landlord, division bench of Justice GS Patel and Justice Kamal Khata set aside the no-objection certificate ("NOC") and subsequent repair permissions granted to tenants w.r.t. a building in Worli.
The court observed that the petitioner/owner was desirous of redeveloping the property and was willing to re-accomodate tenants free of cost on basis of ownership. As such, he was entitled to “enjoy the fruits of development of that property to the fullest possible extent.”
It was added that when an owner does not exercise his rights, "and stands idly by doing nothing to the prejudice of the tenants", the tenants are not without a remedy. They can have the building repaired or rebuilt to its original condition, but no more.
Confession Made To Police Patil Admissible In Court: Bombay High Court
Case Title: Vishwas S/o Pitambar Patil v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 552
Confession made to Police Patil is admissible in court as Police Patil is not a “Police Officer” for the purpose of Section 25 of the Evidence Act, Bombay High Court held.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase while upholding a man's conviction for murdering his own daughter, observed that his advocate relied on an outdated judgment to challenge the testimony of a prosecution witness.
The advocate representing the appellant had relied on the Single Judge decision in Ram Singh v. State of Maharashtra (1999) wherein it was held that the Police Patil is a Police Officer and therefore, confession made before him is not admissible in evidence. Based on this case, he challenged the testimony of a Police Patil who testified that the appellant confessed to him.
However, the court pointed out that subsequently, a Full Bench (three judge bench) of the Bombay HC in Rajeshwar s/o Hiraman Mohurle v. State of Maharashtra (2009) held that Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a “Police Officer” for the purpose of Section 25 of the Evidence Act.
Bombay High Court Orders Dept. To Refund Tax Deposited By HSBC Under Protest
Case Title: The Hongkong and Shanghai Banking Corporation v. UoI
Citation: 2023 LiveLaw (Bom) 553
The Bombay High Court ordered the department to refund the tax deposited by HSBC under protest.
The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that once the amounts were deposited by the petitioner and retained by the department without the authority of law, the claim of the petitioner for refund could not have been denied. It was appropriate for the petitioner to invoke the jurisdiction under Article 226 of the Constitution, praying for a writ for the refund of money illegally retained or withheld.
The petitioner/assessee challenged the actions of the department/respondents in retaining the amount of Rs. 56,19,84,075, which was contended by the petitioner to be without any authority in law and that no tax is leviable or payable by the petitioner.
Bombay High Court Dismisses 20-Year-Old Testamentary Suit In Favor Of Actress Pooja Bedi, Her Aunts
Case Title: Shonali Kedar Dighe v. Ashita Tham and Ors.
Citation: 2023 LiveLaw (Bom) 554
The Bombay High Court dismissed a 20-year-old testamentary suit regarding the estate of actor Pooja Bedi's uncle -Bipin Gupta - after Bedi and her aunts proved that the impugned 'Will,' bequeathing everything to a trust, was a “sham and bogus.”
Justice Milind Jadhav dismissed a petition filed by Vasant Sardal seeking to execute Gupta's alleged Will dated September 4, 2003. Sardal was one of the two executors of the Will and a co- trustee of the organisation that stood to gain from the Will.
However, the property will now be distributed amongst Gupta's legal heirs: his two sisters, Ashita Tham and Monica Uberoi & to his niece, Bedi, on behalf of her mother.
The estate includes tenancy rights in a flat in Firdaus Building, an Art Deco structure, a flat in the Neel Tarang building in Mahim, a two-acre plot in Panchgani, bank balances, investments in shares and bonds, and valuables in his possession.
Court held that the testator's treating doctor neither made an attesting witness nor did he testify to the soundness of the testator. It was an obscure bequest to a Charity controlled by complete strangers, the Court observed, Court was of the view that the Will appeared disjunctive as, despite half of page 2 being blank, the Will was only executed on page 3.
Lastly, the court said it was unnatural for Gupta to have excluded his sisters from the will.
Accordingly, the HC directed the police to transfer all movable assets to Bedi and her aunts after taking necessary undertakings from them.
Case Title: Anuradha Kapoor and Ors. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 555
The Bombay High Court held that a court can compound the offence in check bounce cases without the complainant's consent provided that the accused applied for compounding in the initial stages of the case and the complainant was adequately compensated.
Justice Anil Pansare of the Nagpur bench quashed a cheque bounce case against six out of twelve accused subject to the accused depositing the cheque amount along with interest and litigation costs as compensation to the complainant.
“when the application for compounding offences u/s 138 of the NI Act is made at the initial stage of the case and if the complainant is duly compensated, the trial Court will be fully justified in compounding the offence without consent of the complainant”, the court held.
Case Title: Patanjali Foods Ltd. v. SE Oil Products Pvt Ltd. & Anr
Citation: 2023 LiveLaw (Bom) 556
The Bombay High Court appointed a court receiver and directed immediate seizure of the refined soya bean oil produced by SE Oil Products Pvt Ltd as its trademark was 'deceptively similar' to the trademark of Patanjali Food Ltd.
In an ex-parte ad-interim order, Justice RI Chagla observed that prima facie, SE's trademark was identical to Patanjali's registered trademark “TULSI” and non-registered trademark “TULSI GOLD”.
The order was passed in an intellectual property rights suit by Patanjali. The court had said that the order would be uploaded only after the Additional Special Receiver completed the surprise seizures.
“I am of the opinion that the similarity between the rival trademarks is not a matter of coincidence. Defendant's impugned mark is identical with and/or deceptively similar to the Plaintiff's registered Trademark “TULSI” and Trademark “TULSI GOLD,” the court observed.
Case Title: High Court On Its Own Motion v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 557
A division bench of Justices Gautam S Patel and Kamal Khata of the Bombay High Court held that an electricity bill or connection on a certain address is not proof of ownership or legality of construction.
An electricity distribution licensee cannot possibly assess questions of title of the property and check if the apartment or units have the necessary planning permissions, the court said.
“An electricity connection application and a bill cannot be used to prove ownership because that is not even the demand of the distribution licensee... It is impossible to expect a distribution licensee to act beyond the remit of the statute to assess questions of title to the property in question let alone assess questions of whether the structure or structures or apartments or units do or do not have the requisite planning permissions.
Case Title: Ashok Dayabhai Shah And Ors. v. Securities And Exchange Board of India And Ors.
Citation: 2023 LiveLaw (Bom) 558
The Bombay High Court pulled up the Securities and Exchange Board of India (SEBI) for not complying with the Court's order directing it to furnish documents concerning proceedings initiated against Bharat Nidhi Ltd (BNL), a company owned by Times Group MD Vineet Jain.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain, while directing SEBI to comply with the concerned order dated October 23, 2023 and furnish the requested documents to the complainants, observed that SEBI's conduct is damaging to the confidence of investors.
“There has been persistent non-compliance of such orders passed by the Court, despite the Special Leave Petition of the SEBI being rejected, is too far to be imagined nay totally unacceptable. SEBI is a public body, it is required to act in public interest, it needs to comply with the orders passed by this Court...Such approach of the SEBI, in our opinion, would cause a dent to the confidence, the investors would repose in the SEBI, which needs to function solely to further the object and purpose, for which it is created by the Act of the Parliament”, the court observed.
The observation was made by the court while dealing with a writ petition filed by minority shareholders of BNL seeking documents related to an investigation on their complaint.
Case Title: Tribhuvansing Raghunath Yadav v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 559
The Bombay High Court observed that the physical production of undertrial prisoners to the court can be 'cumbersome', and that their production could be ensured using a Video Conferencing (VC) facility with dedicated links for prison authorities and time schedules communicated in advance.
“At various stages it may not be necessary to produce the accused, as production of the accused physically in Court is a cumbersome procedure, which consumes time, money and resources…If the dedicated links are allotted to the prison authorities, and time slots are scheduled by the respective Courts, which are also intimated in advance, production of the accused persons can be a simple procedure instead of carrying the prisoners physically to the Court”, the court observed.
Justice Bharati Dangre called for the expansion of VC facilities in courts and prisons to ensure that undertrial prisoners are produced either physically or virtually.
Case Title: Shantapa alias Shantesh S. Kalasgond v. M/s. Anna
Citation: 2023 LiveLaw (Bom) 560
The Bombay High Court declined to temporarily restrain a Pune restaurant from using the trademark 'ANNA' in an infringement suit, upon finding that during the registration stage, the plaintiff had told the Trademarks Registry that there was no similarity between his mark 'ANNA IDLI GRUHA' and the defendant's mark 'ANNA.
In dismissing the plaintiff's plea for a temporary injunction restraining the defendant from using his mark 'ANNA,' a single bench of Justice Sandeep V Marne held that the principle of 'prosecution history estoppel' would apply in this case.
The doctrine of prosecution history estoppel, which is traditionally associated with patent infringement actions is increasingly being applied in trademark infringement cases and aims to prevent a party from claiming advantages associated with a right consciously waived in previous proceedings.
It was observed that after having declared during registration, that there was no similarity between his mark and the defendant's mark, the Plaintiff could not turn around at the present stage and contend that the two marks were deceptively similar.
Other Developments
Advocate Somasekhar Sundaresan Sworn-In As Additional Judge Of Bombay High Court
Advocate Somasekhar Sundaresan was sworn in as Additional Judge of the Bombay High Court after Chief Justice Devendra Kumar Upadhyaya administered the oath of office upon him.
Only recently the Centre had notified his appointment as an additional judge of the Bombay High Court.
The Collegium of Bombay High Court recommended the name of Advocate Sundaresan for elevation on October 4 2021. Subsequently, on 16 February 2022, the Supreme Court Collegium recommended his name for appointment as an Additional Judge of the Bombay High Court.