Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index-September 5, 2022 – September 11, 2022]

Central Excise Act, 1944; Section 173L - For the purpose of considering the value for refund under Section 173­L what is required to be considered is the value of the returned goods - "value" means the market value of the excisable goods and not the ex­duty value thereof. Therefore, the submission on behalf of the assessee that the returned goods may be treated as a raw material and therefore the "value" of the raw material can be considered for the purpose of "value" while determining the refund under Section 173­L cannot be accepted. (Para 5) Peacock Industries Ltd. v. Union of India, 2022 LiveLaw (SC) 740

Code of Civil Procedure, 1908; Section 2(12) - Transfer of Property Act, 1882; Section 111(a) - Tenant while continuing in possession after the expiry of the lease liable to pay mesne profits - A tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. (Para 60) Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd., 2022 LiveLaw (SC) 744

Code of Civil Procedure, 1908; Section 96, 105 and Order IX Rule 13 - The appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal - Only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect - Though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. (Para 8) G.N.R. Babu @ S.N. Babu v. Dr. B.C. Muthappa, 2022 LiveLaw (SC) 748

Code of Criminal Procedure, 1973; Section 2(wa), 372 - Right of appeal to the victims - Public, who are recipients of these services, also become victims, though indirectly, because the consequences of such appointments get reflected sooner or later in the work performed by the appointees - The appellant in one of these appeals, is a victim, as he could not get selected on account of the alleged corrupt practices. Therefore, the contention regarding the locus standi of the appellants is to be rejected. (Para 18- 24) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Code of Criminal Procedure, 1973; Section 239 - Scope and ambit - No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless- The word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever. (Para 60 - 74) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Code of Criminal Procedure, 1973; Section 397 - 401 - The revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure. (Para 76) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Code of Criminal Procedure, 1973; Section 439 - Bail - The offer of payment of ad interim compensation to the victim cannot be a ground to release the accused on bail. (Para 7) State of Jharkhand v. Salauddin Khan, 2022 LiveLaw (SC) 755

Code of Criminal Procedure, 1973; Section 482 - Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others. (Para 42) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Code of Criminal Procedure, 1973; Section 482 - Prevention of Corruption Act, 1988 - Corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. (Para 44) P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749

Compassionate Appointment - Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified - Compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. (Para 8) Ahmednagar Mahanagar Palika v. Ahmednagar Mahanagar Palika Kamgar Union, 2022 LiveLaw (SC) 739

Constitution of India, 1950; Article 32 - Mandamus - A mandamus cannot be issued to the legislature to enact or amend legislation - Writ petition seeking direction to amend the Hindu Succession Act 1956 as recommended by the Law Commission of India in its 204th report - Dismissed. S. Venkatesh v. Union of India, 2022 LiveLaw (SC) 752

Constitution of India, 1950; Articles 14, 15 - Appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India - Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement - Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified. (Para 8) Ahmednagar Mahanagar Palika v. Ahmednagar Mahanagar Palika Kamgar Union, 2022 LiveLaw (SC) 739

Consumer Protection Act, 1986 - In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record (Para 7.1) Rajiv Shukla v. Gold Rush Sales and Services Ltd., 2022 LiveLaw (SC) 750

Consumer Protection Act, 1986 - Delivering a defective and old model car against a booking for a new car made by a customer who has paid full sale consideration is an "unfair trade practice" - Non delivery of a new car can be said to be an unfair trade practice and even it can be said to be dishonesty on the part of the dealer and against the morality and ethics - Once the new car was booked and the full sale consideration was paid, a duty was cast upon the dealer to deliver a new car which is not defective. (Para 7.2) Rajiv Shukla v. Gold Rush Sales and Services Ltd., 2022 LiveLaw (SC) 750

Criminal Trial - Sentencing - Gravity of crime is the prime consideration for deciding what should be the appropriate punishment - It is always the duty of the Court to balance aggravating circumstances and mitigating circumstances at the time of imposing sentence - If undue sympathy is shown by reducing the sentence to the minimum, it may adversely affect the faith of people in efficacy of law - The judicial discretion is always guided by various considerations such as seriousness of the crime, the circumstances in which crime was committed and the antecedents of the accused. (Para 12-13) Sahebrao Arjun Hon v. Raosaheb Kashinath Hon, 2022 LiveLaw (SC) 745

Insolvency and Bankruptcy Code, 2016 - If the Resolution Plan ignores the statutory demands payable to any State Government or a legal authority, altogether, the Adjudicating Authority is bound to reject the Resolution Plan - If a company is unable to pay its debts, which should include its statutory dues to the Government and/or other authorities and there is no plan which contemplates dissipation of those debts in a phased manner, uniform proportional reduction, the company would necessarily have to be liquidated and its assets sold and distributed in the manner stipulated in Section 53 of the IBC - The Committee of Creditors, which might include financial institutions and other financial creditors, cannot secure their own dues at the cost of statutory dues owed to any Government or Governmental Authority or for that matter, any other dues. (Para 52-54) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Insolvency and Bankruptcy Code, 2016; Section 3(30)- Secured Creditor - A creditor in favour of whom security interest is credited - Such security interest could be created by operation of law. The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority. (Para 57) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Insolvency and Bankruptcy Code, 2016; Section 30(2) - A resolution plan which does not meet the requirements of Sub Section (2) of Section 30 of the IBC, would be invalid and not binding on the Central Government, any State Government, any statutory or other authority, any financial creditor, or other creditor to whom a debt in respect of dues arising under any law for the time being in force is owed. Such a resolution plan would not bind the State when there are outstanding statutory dues of a Corporate Debtor. (Para 48) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Insolvency and Bankruptcy Code, 2016; Section 31(2) - If a Resolution Plan is ex facie not in conformity with law and/or the provisions of IBC and/or the Rules and Regulations framed thereunder, the Resolution would have to be rejected - Even if Section 31(2) is construed to confer discretionary power on the Adjudicating Authority to reject a Resolution Plan, it has to be kept in mind that discretionary power cannot be exercised arbitrarily, whimsically or without proper application of mind to the facts and circumstances which require discretion to be exercised one way or the other. (Para 50-51) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Insolvency and Bankruptcy Code, 2016; Section 53 - Gujarat Value Added Tax, 2003; Section 48 - Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC- Under Section 53(1)(b)(ii), the debts owed to a secured creditor, which would include the State under the GVAT Act, are to rank equally with other specified debts including debts on account of workman's dues for a period of 24 months preceding the liquidation commencement date. (Para 56) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Insolvency and Bankruptcy Code, 2016; Section 7 - CIRP can be initiated against the Corporate Guarantor without proceeding against the principal borrower - The liability of the guarantor is co-extensive with that of the Principal Borrower. (Para 13-16) K. Paramasivam v. Karur Vysya Bank Ltd., 2022 LiveLaw (SC) 742

Interpretation of Statutes - May and Shall - The expression "may", if circumstances so demand can be construed as "Shall". (Para 51) State Tax Officer v. Rainbow Papers Ltd., 2022 LiveLaw (SC) 743

Medical Negligence - Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care - It would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment. Devarakonda Surya Sesha Mani v. Care Hospital, Institute of Medical Sciences, 2022 LiveLaw (SC) 753

Penal Code, 1860; Section 411 - In order to bring home the guilt under Section 411 IPC, the prosecution must prove (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. (Para 21-22) Shiv Kumar v. State of Madhya Pradesh, 2022 LiveLaw (SC) 746

Practice and Procedure - Nowadays, there is a tendency to make such allegations against the judicial Officers whenever the orders are passed against a litigant and the orders are not liked by the concerned litigant. We deprecate such a practice. If such a practice is continued, it will ultimately demoralize the judicial officer. In fact, such an allegation can be said to be obstructing the administration of justice. Anupam Ghosh v. Faiz Mohammed, 2022 LiveLaw (SC) 751

Prevention of Corruption Act, 1988; Section 13(1)(e) - it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. (Para 80) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Prevention of Corruption Act, 1988; Section 13(1)(e) - Prosecution not required to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant. As noticed above, the first part of the explanation refers to income received from legal/lawful sources. (Para 41) State v. R. Soundirarasu, 2022 LiveLaw (SC) 741

Remission - Premature Release - Supreme Court says due consideration of remission policy must be given to all eligible prisoners - Issues slew of directions to UP Govt - Holds that application by eligible prisoner must not be insisted- Benefit of policy which is more beneficial to the prisoner must by given. Rashidul Jafar @ Chota v. State of U.P., 2022 LiveLaw (SC) 754

NOMINAL INDEX

1. Ahmednagar Mahanagar Palika v. Ahmednagar Mahanagar Palika Kamgar Union, 2022 LiveLaw (SC) 739
2. Anupam Ghosh v. Faiz Mohammed, 2022 LiveLaw (SC) 751
3. Babanrao Rajaram Pund v. Samarth Builders & Developers, 2022 LiveLaw (SC) 747
4. Devarakonda Surya Sesha Mani v. Care Hospital, Institute of Medical Sciences, 2022 LiveLaw (SC) 753
5. G.N.R. Babu @ S.N. Babu v. Dr. B.C. Muthappa, 2022 LiveLaw (SC) 748
6. Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd; 2022 LiveLaw (SC) 744
7. K. Paramasivam v. Karur Vysya Bank Ltd., 2022 LiveLaw (SC) 742
8. P. Dharamaraj v. Shanmugam, 2022 LiveLaw (SC) 749
9. Peacock Industries Ltd. v. Union of India, 2022 LiveLaw (SC) 740
10. Rajiv Shukla v. Gold Rush Sales and Services Ltd., 2022 LiveLaw (SC) 750
11. Rashidul Jafar @ Chota v. State of U.P., 2022 LiveLaw (SC) 754
12. S. Venkatesh v. Union of India, 2022 LiveLaw (SC) 752
13. Sahebrao Arjun Hon v. Raosaheb Kashinath Hon, 2022 LiveLaw (SC) 745
14. Shiv Kumar v. State of Madhya Pradesh, 2022 LiveLaw (SC) 746
15. State of Jharkhand v. Salauddin Khan, 2022 LiveLaw (SC) 755
16. State Tax Officer v. Rainbow Papers Ltd; 2022 LiveLaw (SC) 743
17. State v. R. Soundirarasu, 2022 LiveLaw (SC) 741