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Bombay High Court Monthly Digest:...

Bombay High Court Monthly Digest: June 2024 [Citations 278-319]

Amisha Shrivastava

3 July 2024 3:30 AM GMT

Reports/Judgments

Birth Of First Child Before Joining Service not a bar for availing Maternity Leave After Joining Service Under AAI Regulations: Bombay High Court

Case Title: Airports Authority of India Workers Union & Anr v. Under Secretary, Ministry of Labour & Anr.

Citation: 2024 LiveLaw (Bom) 278

A Division bench of the Bombay High Court comprising of Justice A. S. Chandurkar and Justice Jitendra Jain in the case of Airports Authority of India Workers Union & Anr Vs The Under Secretary, Ministry of Labour & Anr held that birth of a first child before joining the service is not relevant for considering of maternity leave after joining the service. The object of Maternity Benefit Regulation under AAI Regulations is not to curb the population but to give such benefit only on two occasions during the service period.

The court further held that

“The object of the Maternity Benefit Regulation which is posed for our consideration is not to curb the population but to give such benefit only on two occasions during the service period and, therefore, it is in that context that the condition of two surviving children is imposed”

Thus the court held that the birth of the first child from the first marriage before joining the service would not be relevant for considering the claim of maternity leave post her joining the Respondent for the purposes of the 2003 Regulation.

With the aforesaid observations, the court allowed the writ petition.

No Irreversible Actions In Winding Up, Company Court Can Transfer Proceedings To NCLT: Bombay High Court

Case Title: Omkara Assets Reconstruction In the matter of ICICI Bank Ltd. v. Classic Diamonds (India) Ltd.

Citation: 2024 LiveLaw (Bom) 279

The Bombay High Court bench of Justice Abhay Ahuja held that as long as no irreversible actions, such as actual sales of immovable or movable properties, have occurred, the Company Court retains the discretion to transfer proceedings to the NCLT.

The bench held that it is only where the winding up proceedings have reached the stage where it would be irreversible, making it impossible to set the clock back, that the Company Court must proceed with the winding up instead of transferring the proceedings to NCLT.

Bombay High Court Restrains Release Of Film “Hamare Baarah” Allegedly Derogatory To Islamic Faith Till June 14

Case Title: Azhar Basha Tamboli Ltd & Ors v. Ravi S Gupta & Ors.

Citation: 2024 LiveLaw (Bom) 280

The Bombay High Court restrained the release of film “Hamare Baarah” on any public platform until June 14, 2024.

A division bench of Justices NR Borkar and Kamal Khata was dealing with a writ petition against the Central Board of Film Certification (CBFC) seeking to revoke the certification granted to the film and thereby injunct it from being released.

“Respondent Nos. 1 to 6 are restrained from in any manner exhibiting, circulating or making available for viewership to the general public the film in question, namely “Hamare Baarah” on any public forum/platform including the platforms of the Respondent Nos. 10 to 12, till 14^th June 2024”, the court directed.

Bombay High Court Allows Release Of Film 'Hamare Baarah' After Makers Agree To Delete Certain Controversial Dialogues

Case Title: Azhar Basha Tamboli v. Ravi S Gupta & Ors

Citation: 2024 LiveLaw (Bom) 281

The Bombay High Court allowed the release of the film Hamare Baarah after the makers agreed to delete certain controversial dialogues.

A vacation bench of Justice Kamal Khata and Justice Rajesh S Patil was dealing with a writ petition against the Central Board of Film Certification (CBFC) seeking to revoke the certification granted to the film and thereby injunct it from being released.

“We are of the view that if an individual such as in this Petition is permitted to stall the release of movies which have been duly certified by the CBFC it would encourage holding film producers to ransom,” the court said.

Withholding Of Salary Or Emoluments Does Not Fall Within The Ambit Of Offence Of Cheating: Bombay High Court

Case Title: Rajiv Bansal & Ors vs State of Maharashtra and Ors

Citation: 2024 LiveLaw (Bom) 282

A single judge bench of the Bombay High Court comprising of Justice N. J. Jamadar in the case of Rajiv Bansal & Ors vs State of Maharashtra and Ors held that withholding of salary or emoluments does not fall within the ambit of offence of cheating.

The court held that for the offence of cheating, there needs to be deceit coupled with injury. Cheating involves deception, fraudulent and dishonest inducement and thereby making the person deliver any property or to consent that any person shall retain any property. The court further held that

“The withholding of a portion of the salary/emoluments by no stretch of imagination can fall within the dragnet of the offence of cheating as the employer cannot be said to have either deceived the employee or fraudulently, or dishonestly induced the employee to deliver the property or give consent to any person to retain the property or intentionally induced the employee to do or omit to do anything, which the employee would not do or omit, if he was not so deceived.”

The court further held that to constitute the offence of cheating, the intention of the accused should be dishonest from the inception of the transaction. However, the act of AIL to deduct the salary/emoluments was in exercise of its authority as an employer. Terming such deduction as illegal is different than terming such deduction to be cheating.

Long-Term Continuance Of Employment Does Not Create Inherent Right To Regularization: Bombay High Court

Case Title: The Chief Officer, Pen Municipal Council & Ors. v. Shekhar B. Abhang & Ors.

Citation: 2024 LiveLaw (Bom) 283

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a writ petition in the case of The Chief Officer, Pen Municipal Council & Ors. v. Shekhar B. Abhang & Ors. held that regularization of services cannot be claimed merely based on long-term continuance of employment as this does not create any inherent right to regularization.

The court relied on the landmark Supreme Court Judgment of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. which established that public employment must adhere to the principles of equality enshrined in Articles 14 and 16 of the Constitution of India, and regularization can only be considered in cases of irregular (not illegal) appointments against duly sanctioned posts where the employees have worked for ten years or more without court orders.

"Right To Decent Last Rites": High Court Directs Municipal Commissioner To Personally Address Issue Of Inadequate Burial Grounds In Mumbai

Case Title: Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2024 LiveLaw (Bom) 284

The Bombay High Court directed the Commissioner of Municipal Corporation of Greater Mumbai (MCGM) to personally look into the issue of inadequate burial grounds in Mumbai and take necessary steps to identify and acquire new burial plots.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar expressed disapproval over the Municipal Corporation's lack of action, emphasizing the importance of the right to a decent burial.

“Such callousness on the part of the authorities cannot be appreciated. Right of dead to be given a decent and respectful last rites is as important as any other right available when he is alive. Moreover, it is the statutory duty and obligation cast on The Municipal Corporation to provide adequate place for burial of the dead. The authorities of the Municipal Corporation, thus, cannot shirk their shoulders away from such statutory responsibility”, the court stated.

The court was dealing with a PIL regarding paucity of space for adequate burial grounds in the city.

Record Indicates They Conspired To Transform India Into Islamic Country: Bombay High Court Denies Bail To Alleged PFI Members

Case Title: Razi Ahmed Khan v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 285

The Bombay High Court denied bail to three alleged members of the banned organization Popular Front of India (PFI) booked for allegedly conspiring to “overawe the Government by use of criminal force” and “transform India into an Islamic country by 2047”.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak rejected the appeals filed by three accused against the orders of the Special Judge, Nashik, which had previously rejected their bail applications.

“Record of investigation indicates that, the Appellants in connivance with other Accused persons conspired to overawe the Government by use of criminal force. The first information report is self-eloquent. There is more than sufficient material available on record in the form of statements of witnesses and the documents seized from the electronic devices of the Accused persons that, they indulged into activity of inciting like minded people to join them to overawe the Government by use of criminal force. They also conspired to transform India into an Islamic country by 2047. They are not only propagators but actively intending to implement the Vision-2047 document of their organization”, the court observed.

Abortion Can Be Allowed Where Continuing Pregnancy Would Cause Grave Mental Injury: Bombay High Court

Case Title: XYZ v. The Dean of BJ, Government Medical College and Others

Citation: 2024 LiveLaw (Bom) 286

The Bombay High Court held that abortion can be allowed in cases where continuing pregnancy would cause grave mental injury to the pregnant woman.

The division bench of Justice N.R. Borkar and Justice Somasekhar Sudaresan held that such allowance cannot be limited to pregnancy emanating from sexual assault.

The 19 years old petitioner had approached the High Court seeking permission to terminate her 25-weeks pregnancy which had resulted from a consensual relationship.

Prima Facie Unauthorised Use Of Karan Johar's Name: Bombay High Court Restrains Release Of Film "Shaadi Ke Director Karan Aur Johar"

Case Title: Karan Johar v. IndiaPride Advisory Pvt. Ltd. And Ors.

Citation: 2024 LiveLaw (Bom) 287

The Bombay High Court restrained the release of the upcoming film “Shaadi Ke Director Karan Aur Johar”, and any promotional material finding a strong prima facie case that the makers have made unauthorised use of filmmaker Karan Johar's name and personality.

The court also restrained the makers from using Johar's name or any other attributes or reference to the name “Karan Johar” in any manner, in the title of the film or in the promotion directly or indirectly including but not limited to all promotional materials etc. which is intended to be sold, promoted or otherwise distributed in relation to the film.

Justice RI Chagla said in his order, “In my view a strong prima facie case has been made out by the plaintiff to protect his personality rights which are vested in him considering that he has the status of celebrity as apparent from several blockbuster films which he has directed and produced. There is no manner of doubt that the plaintiff has played a role in transforming the Bollywood film industry and launched careers of several successful actors. I have to doubt that prima facie the subject film is a direct reference to the plaintiff and makes unauthorised use of plaintiff's name.”

The court observed that the use of Karan Johar's name makes it evident that the makers are using the personality of Karan Johar.

“The defendants are creating confusion in the minds of the public at large that it is associated with him as the general public will immediately identify and associate the use of the name “Karan” and “Johar” together in the title of the said film solely with the Plaintiff upon becoming aware of the title of the said film”, the court stated.

Bombay High Court Refuses To Stay BMCs Permissions For Animal Sacrifice At Shops And Markets On Bakrid

Case Title: Jiv Maitri Trust v. Union of India & Ors

Citation: 2024 LiveLaw (Bom) 288

The Bombay High Court declined to stay the implementation of a circular issued by the Brihanmumbai Municipal Corporation (BMC) permitting animal sacrifices at 67 private meat shops and 47 municipal markets during Bakrid on June 17, 2024.

A division bench of Justice MS Sonak and Justice Kamal Khata, while dealing with petitions seeking urgent stay on the BMC circular, noted that the petitioners mentioned the matter and sought urgent hearing through a praecipe (a written request for an urgent hearing).

The court noted that the praecipe does not seek any interim relief and simply seeks circulation of matter for urgent hearing. The court did not find this method appropriate for seeking relief. Oral application for interim relief cannot be entertained, the court said.

Blatant Contravention Of Provisions For Maintaining Case Diary: Bombay High Court Seizes Case Diary From Police, Directs DGP To Take Remedial Action

Case Title: Gopal C. Mehta & Ors. v. State Of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 289

Taking serious note of “blatant contraventions of the Circulars issued by the DGPMS as well as other statutory requirements” for maintenance of case diaries by the police, the Bombay High Court seized the improperly maintained case diary of a criminal investigation from the police and sent it to the DGP for remedial action.

A division bench of Justice AS Gadkari and Justice Neela Gokhale said that the investigating officer in the case had failed to comply with Section 172(1-B) of the CrPC and the circular issued by the Director General of Police, Maharashtra State (DGPMS) on February 12, 2024. The circular mandates police officers to maintain case diaries in the form of bound and numbered pages as per legal provisions.

“We direct the D.G.P.M.S. to take appropriate remedial action in this regard and to ensure strict compliance at least of its own Circulars by all the Police Officers in the State”, the court directed.

Substituting Legal Representative Of Deceased Employee By Another For Compassionate Appointment Is legal: Bombay High Court

Case Title: Kalpana and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 290

A full bench of the Bombay High Court comprising of Anil S. Kilor, Anil L. Pansare and M.W.Chandwani, JJ., while answering the questions of law in the case of Kalpana and Ors. vs. State of Maharashtra, held that the prohibition on substituting name of one legal representative of deceased employee for compassionate appointment, by another legal representative is arbitrary & irrational.

The court observed that if the application submitted by one of the family members has already resulted in an order of appointment in favour of such an applicant, at that stage, substitution may not be permitted. However, where the application seeking appointment on compassionate basis is still pending consideration and if any application for substitution of name in place of the former one is rejected, it would amount to denial of appointment on compassionate ground contrary to the policy.

Bombay High Court Orders Bank of Baroda To Refund Rs 76 Lakh, Says Account Holder Not Liable For Unauthorized Transactions Due To Third Party Breach

Case Title: Jaiprakash Kulkarni v. The Banking Ombudsman and Ors.

Citation: 2024 LiveLaw (Bom) 291

The Bombay High Court directed the Bank of Baroda to refund Rs. 76,90,017 to a company and its director who lost the amount in a cyber fraud incident involving unauthorized electronic banking transactions for which no OTP was sent.

A division bench of Justice GS Kulkarni and Justice Firdosh P. Pooniwalla allowed a writ petition seeking refund of the amount observing –

“both as per the RBI Circular and the said Policy of Respondent No.2 (bank), the liability of the Petitioners in respect of the said unauthorized transactions would be zero as the unauthorized transactions have taken place due to a third party breach where the deficiency lies neither with Respondent No.2 nor with the Petitioners...In these circumstances, as per the RBI Circular and as per the Policy of Respondent No.2, the Petitioner is entitled to refund of the said amount from Respondent No.2.”

Bombay High Court Allows Slaughtering Of Animals For Bakri Eid In Protected Area Around Vishalgad Fort

Case Title: Hajrat Peer Malik Rehan Mira Saheb Dargah, Vishalgad v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 292

The Bombay High Court permitted the slaughtering of animals for the festival of Bakri Eid on June 17, 2024, in the protected area around the Vishalgad Fort in Kolhapur District.

A division bench of Justice BP Colabawalla and Justice Firdosh P. Pooniwalla granted interim relief to petitioners in petitions challenging the ban on animal slaughter in the area issued by various authorities, including the Director of Archaeology and Museums, Bombay, the Superintendent of Police, Kolhapur, and the Chief Executive Officer, Zilla Parishad, Kolhapur.

“We are of the opinion that at least for the festival of Bakri Eid which is on 17th June 2024, and Urus which is till 21st June 2024, the slaughtering of animals by the Petitioners can be permitted. However, we make it clear that the actual killing or sacrifices of animals or birds shall only take place in the closed premises at Gat No. 19 which is a private land owned by Shri Mubarak Usman Mujawar. The killing of animals and birds certainly should not be done in an open place or in a public place”, the court held.

The court said that interpreting the entire 333-acre area as a protected monument, which would prevent the residents within this area from cooking and consuming food, is absurd.

“It is not in dispute that in the protected area, namely, 333 acres 19 gunthas, there are about 575 people and about 107 families residing in Vishalgad…If we were to hold that the entire area of 333 acres and 19 gunthas was the “protected monument”, then under Rule 8(c), these 107 families, admittedly residing within the area of 333 acres 19 gunthas, would not be allowed either to cook or consume food. This would effectively mean that these 107 families would either have to starve or go outside their homes (beyond 333 acres 19 gunthas) and cook and consume their food. This interpretation would be absurd to say the least”, the court said.

Similar Trademark For Drug Treating The Same Ailment But Having Different Composition From Already Registered Trademark Is Deceptive: Bombay High Court

Case Title: Glenmark Pharmaceuticals Ltd. v. Gleck Pharma (OPC) Pvt Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 293

A single judge bench of the Bombay High Court comprising of Justice Firdosh P. Pooniwalla, held that structurally & phonetically similar trademark can't be registered for drug treating similar ailment but having different composition from already registered mark, as it may create confusion for consumers leading to potential side effects.

Bombay High Court Grants Temporary Injunction In Favor Of Pidilite In Infringement Suit For Cement Container Design

Case Title: Pidilite Industries Limited v. Astral Limited

Citation: 2024 LiveLaw (Bom) 294

The Bombay High Court granted ad interim injunction in favour of Pidilite Industries Limited (Pidilite) restraining Astral Limited (Astral) from infringing Pidilite's registered design of Coex plastic containers of its M-SEAL PV SEAL products.

Justice Firdosh Pooniwalla held, “the Plaintiff has made out a prima facie case for grant of ad-interim reliefs in terms of prayer (a) of the Interim Application. If the injunction as sought in prayer (a) is not granted, then grave loss, harm and prejudice would be caused to the Plaintiff as the Defendant would then continue to use the impugned container with the design of the Plaintiff.”

The court rejected the Defendant's argument that the Plaintiff's container design is a mere trade variant of a known design and cannot be protected under Section 19(1)(c) of the Designs Act. The court found this argument to be incorrect as the Defendant failed to show any prior design similar to the Plaintiff's design.

The court outlined three factors to determine if an article's design is a trade variant: the nature and size of the article, its utilitarian nature, and whether only minor changes are possible, which may still be substantial enough to render the design novel.

The court found that the Plaintiff's container design was not significantly similar to any known designs or combinations thereof. The features of the Plaintiff's design were substantially different and not minor or inconsequential, the court said. Additionally, the Defendant, being in the same trade, had not produced a container with a similar design until recently, supporting the originality of the Plaintiff's design, the court held. “The Defendant has failed to demonstrate that there is any prior design or one very similar to it that precedes the Plaintiff's design or that the Plaintiff has merely created a trade variant”, the court observed.

Bombay High Court Calls For Robust Mechanism To Impose Costs For Misuse Of Judicial Process In Rape Cases Stemming From Failed Relationships

Case Title: Saket Abhiraj Jha v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 295

Highlighting that rape cases stemming from failed relationships between adults waste the valuable time of both the police and the courts, the Bombay High Court called for a robust mechanism to impose heavy costs on individuals who misuse the judicial process.

Justice Pitale highlighted the recurring nature of such cases in urban areas like Mumbai, which leads to wastage of valuable time which can be otherwise utilized in investigating serious offences.

“With passage of time, the alleged victim and the accused come together, having resolved their differences and then the victim gives consent for grant of bail and even for quashing of such proceedings...This Court is of the opinion that in such cases a robust mechanism ought to be developed for imposing heavy costs on such individuals who end up wasting the time of the Investigating Authority as well as the Court. In an appropriate case, this Court shall proceed to pass such an order”, the court stated.

The court granted bail to one Saket Abhiraj Jha, who was arrested for various alleged offences, including rape, extortion, and defamation under the IPC and the Information Technology Act, 2000 (IT Act).

Indian Succession Act | Bombay High Court Larger Bench To Decide Whether Probate Of Will Can Be Revoked In Cases Not Covered In Section 263

Case Title: Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka

Citation: 2024 LiveLaw (Bom) 296

The Bombay High Court referred to a larger bench the question of whether explanations to Section 263 of the Indian Succession Act, 1925, which deals with the grounds on which probate of a will can be revoked or annulled for “just cause”, are exhaustive or merely illustrative.

Justice Manish Pitale referred the following questions to the larger bench –

“(I) Whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the judgements of learned Single Judges of this Court in the cases of George Anthony Harris vs. Millicent Spencer [AIR 1933 Bom 370] and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?”

[Commercial Courts Act] Plaint Can't Be Rejected For Bypassing Pre-Institution Mediation If It Genuinely Seeks Urgent Reliefs: Bombay High Court

Case Title: Chemco Plast Applicant/Defendant In the matter between: Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast

Citation: 2024 LiveLaw (Bom) 297

The Bombay High Court dismissed an application filed under Order VII Rule 11 of the CPC, by defendant Chemco Plast seeking rejection of a trademark infringement suit filed against it by plaintiff Chemco Plastic Industries Pvt. Ltd.

The court observed that the suit is not barred under section 12A of the Commercial Courts Act (mandatory mediation) as it contemplates urgent interim reliefs.

“this Court finds that on the basis of the pleadings in the plaint, the documents filed therewith, as also on the basis of the pleadings in the application for interim reliefs, the plaintiff has indeed made out enough grounds to demonstrate that it does contemplate urgent interim reliefs, thereby showing that the plaint in the present case cannot be rejected as being barred by section 12-A of the aforesaid Act”, the court observed.

Bombay High Court Orders Inquiry Into Functioning Of Juvenile Court After Clerk Allegedly Disobeys HC Orders8

Case Title: XYZ v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 298

The Bombay High Court directed the Principal District Judge, Thane to conduct an inquiry into the functioning of Juvenile court in Bhiwandi, Mumbai after a clerk allegedly refused to accept charge sheet in a case despite HC orders.

A division bench of Justice AS Gadkari and Justice Neela Gokhale was dealing with an application filed by a juvenile accused seeking quashing of the FIR.

“Prima facie, it appears to us that the clerk Mr. Sudhir Pawar attached to Juvenile Court at Bhiwandi has blatantly flouted the Orders passed by this Court. He has displayed total disregard for our Orders. It is unfortunate to note that even the Presiding Officer of that Court namely Smt. Seema Ghute is either oblivious to the orders passed by this Court or has feigned deliberate ignorance thereto. We strongly condemn this conduct of Mr. Pawar and find the conduct of the Registry of the said Court disgraceful. It clearly amounts to interference in the smooth administration of criminal justice. It also appears to us that the Presiding Judicial Officer has no control over her Court and, therefore her role also needs to be examined by the Principal District Judge”, the court observed.

Bombay High Court Allows Release Of Film 'Hamare Baarah' After Makers Agree To Delete Certain Portions & Add Disclaimer

Case Title: Azhar Basha Tamboli v. Ravi S Gupta & Ors.

Citation: 2024 LiveLaw (Bom) 299

The Bombay High Court allowed the release of film "Hamare Baarah", on June 21, 2024 after the makers agreed to make certain changes in the movie.

A division bench of Justice BP Colabawalla and Justice Firdosh Pooniwalla passed the order in a writ petition seeking a ban on the film on the ground that it is derogatory to Islam and married Muslim women in India.

The petitioner agreed to not raise any objection to the release of film after the agreed-upon changes are made to the movie.

The makers agreed to mute certain dialogues and a Quranic verse and put two disclaimers of 12 seconds each in the film.

Bombay HC Confirms Conviction of Teacher for Sexually Assaulting 3 Students

Case Title: Ramesh Ratan Jadhav v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 300

The Bombay High Court upheld the conviction of one Ramesh Ratan Jadhav, a primary school teacher, for sexually assaulting three minor girls in the classroom.

Justice Kishore C Sant observed, “The evidence of the victim girls is found to be reliable. The presence of the accused is not denied. Though the defence is taken of animosity as a motive for false implication, the same does not appear to have been taken from the cross-examination & statement under Section 313.”

The prosecution alleged that Jadhav, while teaching in a primary school, sexually assaulted three girls, who were in the second standard. The incidents occurred in the classroom, where Jadhav allegedly touched the girls' vaginas and chests after making them lie down on the table and floor. An FIR was registered on December 24, 2021, at Ratnagiri Rural Police Station, leading to Jadhav's arrest, charge sheet, and trial.

The court noted that the minor victims' evidence was consistent and corroborated by other witnesses, including the male students who were sent outside the classroom. The defence's argument of a false implication due to school management disputes was not supported by the cross-examination or Jadhav's statement under Section 313 of the CrPC, the court noted.

The court found no reason to interfere with the Trial Court's judgment and dismissed the appeal.

Dress Code Violation: Bombay High Court Orders Bar Council Action Against Lawyer For Attending Without Robes

Case Title: KN Surendran Pillai v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 301

The Bombay High Court directed the Bar Council of Maharashtra and Goa (BCMG) to take action against Advocate Jagdish M. Ahuja for appearing in court without the prescribed attire of bands and Advocate's Gown.

Justice Prithviraj K Chavan noted in his order –

“He is not in proper attire, in the sense, he is without bands and Advocate's Gown as prescribed by the Rules. The Bar Council of Maharashtra and Goa shall initiate appropriate action against him.”

Bombay High Court Upholds Entertainment Duty Demand Of Rs. 71 Lakhs On Film & Television Producers Guild Of India For 2006 APSARA Awards

Case Title: Film & Television Producers Guild of India (FPGI) ) v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 302

The Bombay High Court upheld the state government's demand for entertainment duty of Rs. 71,87,500 on the Film & Television Producers Guild of India (FPGI) for organizing the APSARA Awards Function in 2006.

A division bench of Justice KR Shriram and Justice Jitendra Jain, however, struck down the penalty of the same amount imposed of FPGI.

The petitioner contended that the APSARA award function did not fall within the ambit of "entertainment" as defined under Section 2(a) of the Act, especially considering the amendments introduced in 2010 which specifically included "award function" within the scope of entertainment subject to concessional rates. The petitioner argued that since the function was held prior to 2010, it should not be subjected to entertainment duty.

The court noted that while the definition of "award function" was formally inserted into the Act in 2010, the scope of "entertainment" had always encompassed performances and exhibitions, irrespective of the amendment year.

The court rejected the petitioner's contention that subsequent insertion is to be construed to mean that award function would not fall within the definition of “entertainment” prior to 2010 as “misconceived”.

Bombay High Court Upholds ITAT's Order Directing Vodafone India To Deposit Rs.230 Crores For Staying Income Tax Demand

Case Title: Vodafone India Services Pvt. Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 303

The Bombay High Court upheld the order passed by the Income Tax Appellate Tribunal (ITAT) directing Vodafone India to deposit Rs. 230 crores for staying income tax demand.

The bench of Justice GS Kulkarni and Justice Somasekhar Sundaresan directed the petitioner, Vodafone India, to deposit an amount of Rs. 230 crore, being the lowest or minimum amount of 20% of the disputed tax demand, which, in our opinion, is clearly in consonance with the provisions of Section 254(2A) of the Income Tax Act.

The first proviso to Section 254 (2A) of the Income Tax Act provides that the ITAT may grant stay under the first proviso, subject to the condition that the assessee deposits not less than 20% of the amount of tax, interest, fee, penalty, or any other sum payable.

Pending Criminal Proceedings Won't Change Nature Of Commercial Dispute: Bombay High Court Declines SBI's Plea To Reject Rs 36 Crore Recovery Suit

Case Title: Bombay Iron And Steel Labour Board v. State Bank of India

Citation: 2024 LiveLaw (Bom) 304

The Bombay High Court dismissed an interim application filed by the State Bank of India (SBI) seeking rejection of a Commercial Summary Suit filed by the Bombay Iron and Steel Labour Board for recovery of deposits worth Rs. 36 crores with interest.

Justice Abhay Ahuja held that the dispute between the parties qualifies as a commercial dispute and is eligible to be tried under the Commercial Courts Act, 2015, as it is a banking transaction.

“the Defendant – bank which is a banking company / banker, has in the ordinary course of its business, accepted the deposits of money from the Plaintiff – Board which is repayable on demand or maturity and issued fixed deposit receipts which are mercantile documents and the suit has been filed for enforcement of the fixed deposit receipts, as the Defendant – bank had failed to repay the amounts payable to the Plaintiff – Board, despite demand / legal notice for recovery, therefore, in my view, the dispute is a commercial dispute, squarely falling within the definition of commercial dispute as defined under Section 2(1)(c)(i) of the Commercial Courts Act.”

The court held that the allegation of fraud, in the plaint would not change the cause of action of the suit, which is a failure of SBI to pay the amount with interest accrued as per the fixed deposit receipts, despite legal notice as well as the pre-institution mediation. The plaintiff claimed that mediation failed as SBI refused to participate.

Non-Communication Of SCN To Call Book Is Fatal; Bombay High Court Quashes SCNs Against ICICI Home Finance

Case Title: ICICI Home Finance Company Ltd. v. UOI

Citation: 2024 LiveLaw (Bom) 305

The Bombay High Court, while quashing show cause notices against ICICI Home Finance Company Ltd., held that non-communication of show cause notices transferred to the call book is fatal.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the reason why the show cause notices were transferred to the call book was because of the SLP pending in the Apex Court in Malabar Management Services Pvt. Ltd. The legality of the issues raised in Malabar Management Services Pvt. Ltd. has attained finality, and in Union of India & Anr. vs. . Intercontinental Consultants & Technocrats Private Limited, the issue is decided in favor of the assessee. Therefore, petitioner's case was kept in abeyance in view of the pending SLP in the Apex Court, and it is accepted that the issue covered the issue in petitioner's case as well. It would, therefore, serve no purpose in adjudicating the show cause notice.

The bench did not accept the suggestion made by the department that they should be permitted to proceed with the adjudication of show cause notices and remarked that it could be nothing but an exercise in futility.

Slump Sale Doesn't Amount To Sale Of Goods Within MVAT Act: Bombay High Court

Case Title: Piramal Enterprises Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 306

The Bombay High Court held that slump sale under the Business Transfer Agreement (BTA) would not amount to sale of goods within the purview of the Maharashtra Value Added Tax (MVAT) Act.

The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that it was completely a flawed approach on the part of the reviewing authority to tax part of the BTA considering it to be petitioner's sales/turnover of sales, for the financial year 2010-11 in respect of the amounts of the intangible assets as set out in schedule 3.3 of the BTA. Thus, in the context of the BTA, the reviewing authority could not have regarded the intangible items to be in any manner “sale of goods”, so as to fall within the petitioner's turnover of sales.

The issue raised was whether the department could tax sale of the petitioner's 'Base Domestic Formulation Business' as a “going concern” (slump sale) under the provisions of the Maharashtra Value Added Tax Act, 2002.

Bombay High Court Criticizes Judge For Using “Handicapped” To Express Frustration Over Heavy Caseload

Case Title: Godrej Projects Development and Anr. v. Zakir Ramzan Qureshi and Ors.

Citation: 2024 LiveLaw (Bom) 307

The Bombay High Court criticized an Additional Sessions Judge for using the word “handicapped” to express frustration over heavy case load.

Justice Prithviraj K Chavan observed, “The tone and tenor of the language is unwarranted and unacceptable, in the sense, the Judicial Officer should not have expressed his frustration and inability by using the words “handicapped” as well as non inclination to grant stay.”.

Employee's Conduct Of Filing Petitions Does Not Show Abandonment Of Claim For Reinstatement: Bombay High Court

Case Title: Patil Samgonda Namgonda v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 308

A single judge bench of the Bombay High Court comprising of Gauri Godse, J., while deciding Writ Petition in the case of Shri. Patil Samgonda Namgonda v. State of Maharashtra, held that employee's conduct of filing petitions does not show the abandonment of claim for reinstatement in service.

Employees Once Accepting Promotion On Particular Basis Without Protest, Are Estopped From Challenging The Same: Bombay High Court

Case Title: Shripad Dwarkanath Gupte and Ors v. Union Of India

Citation: 2024 LiveLaw (Bom) 309

A division bench of the Bombay High Court comprising of Devendra Kumar Upadhyaya, CJ. & Arif S. Doctor, J., while deciding Writ Petition in the case of Shri Shripad Dwarkanath Gupte And Ors vs Union Of India, held that employees once accepting the promotions on grade wise basis without protest, are estopped from challenging the same.

Even If Case Doesn't Fall Under Section 36(3) Second Proviso, Court Can Consider Whether To Grant Unconditional Stay: Bombay High Court

Case Title: CFM Asset Reconstruction Pvt. Ltd. and Anr. v. M/s. SAR Parivahan Pvt. Ltd. and Ors.

Citation: 2024 LiveLaw (Bom) 310

The Bombay High Court bench of Justice Firdosh P. Pooniwalla held that even in a case which does not fall under the second proviso of the Section 36(3), by relying on the first proviso, the Court can consider whether to grant unconditional stay of the award or not.

Section 36 of the Arbitration and Conciliation Act, 1996 deals with the enforcement of arbitral awards. It outlines the procedure for enforcing an arbitral award once the time for challenging the award under Section 34 has expired.

Recording Unnatural Offence With Minor Boys | Bombay HC Grants Bail to POCSO Accused Without Prima Facie Sexual Intent

Case Title: Kapil Suresh Taak v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 311

The Bombay High Court granted bail to a man booked for allegedly stripping three teenagers, inserting fingers in the anus, abusing them and assaulting them with a leather belt.

Justice Anil S Kilor allowed the bail application of one Kapil Suresh Taak observing,

“After going through the FIR and the allegations made in the FIR against the Applicant coupled with the material collected during investigation, prima facie nothing is brought on record to show that there was any sexual intent. The case is of physical and mental torture meted out to the minor victims in the background that Applicant and other co-accused have considered them as thieves.”

Jurisdiction of High Courts Under Section 37 Of Arbitration Act Is Limited To Arbitrary, Capricious And Perverse Orders: Bombay High Court

Case Title: M/s Halliburton India Operations Private Limited v. Vision Projects Technologies Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 312

The Bombay High Court division bench of Justice A.S. Chandurkar and Justice Rajesh S. Patil held that the appellate jurisdiction under Section 37 of the Arbitration Act is limited to cases where the lower court's order was arbitrary, capricious, perverse, or ignored settled legal principles on interlocutory injunctions.

Section 37 of the Arbitration Act allows appeals against specific orders related to arbitration, including refusals to refer to arbitration, measures under Section 9, and decisions on arbitral awards under Section 34.

Bombay High Court Summons Patanjali Director In Trademark Infringement Case

Case Title: Mangalam Organics Ltd. v. Patanjali Ayurved Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 313

The Bombay High Court directed Patanjali Ayurveda director Rajnish Mishra to appear before it in connection with trademark infringement case filed by Mangalam Organics alleging that Patanjali infringed on packaging and trade dress of its camphor product.

Justice RI Chagla was dealing with a contempt application by Mangalam Organics Ltd. against Patanjali Ayurved Ltd. and others for alleged breach of an ad-interim order dated August 30, 2023.

Pune Porsche Accident | 'All Sympathies For Victims But Court Is Bound To Implement Law': Bombay HC While Releasing Minor Accused

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 314

The Bombay High Court, while ordering the release of the minor accused in the Pune Porsche car accident case, criticised the “haphazard manner” in which the prosecution and law enforcement agencies handled the situation, influenced by public outcry. The Court said:

“We can only express our dismay and perturbation by describing the whole approach as an unfortunate incident and hope and trust that the future course of action to be chartered, shall be in accordance with existing provisions of law, avoiding any haste. However, at this stage, while pronouncing upon the reliefs sought before us, in the Writ Petition we deem it necessary to discharge our solemn obligation, by adherence to the Rule of Law and we feel bound by it, though the respondents, the law enforcing agencies have succumbed to the public pressure, but we are of the firm opinion that the Rule of law must prevail in every situation, howsoever catastrophic or calamitous the situation may be.”

Calling the accident a “ghastly” incident, a division bench of Justice Bharati Dangre and Justice Manjusha Deshpande emphasized the importance of adhering to the rule of law, quoting Martin Luther King: "Injustice anywhere is a threat to justice everywhere."

The court added, “It is our bounden duty to prioritize justice above everything else, and definitely, we are not swayed away by the uproar created upon occurrence of the ghastly mishap, for which allegedly the CCL is personally responsible and which has resulted in loss of two innocent lives. We have all sympathies for the victim and their families but as a Court of Law, we are bound to implement the law as it stands. Law is an objective thing and there it stands, irrespective of whether it entails any hardship.”

The court said that the minor has to be treated like any other child in conflict with the law. It added:

“The outcry, as a knee jerk reaction to the accident, resulting into a clarion call of “see the accused's action and not his age”, will have to be overlooked upon assimilating that the CCL is a child under the Juvenile Justice Act, being under 18 years and regardless of his crime, he must receive the same treatment, which every other child in conflict with law is entitled to receive, as the purpose of the Act of 2015 is to ensure that children who come in conflict with law are dealt with separately and not like adults.”

Banning Hijab On College Campus Is In Larger Academic Interest, To Avoid Disclosure Of Religion: Bombay High Court While Dismissing Students' Plea

Case Title: Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.

Citation: 2024 LiveLaw (Bom) 315

The Bombay High Court observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc. on the campus of a Mumbai college is in students' larger academic interest.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil while dismissing a writ petition against the dress code by nine female students NG Acharya and D. K. Marathe College of Art, Science and Commerce observed –

“The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student's religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers. The insistence for following the dress code is within the college premises and the petitioners' freedom of choice and expression is not otherwise affected.”

The court referred to the Full Bench decision of the Karnataka High Court in Resham v. State of Karnataka, which upheld a government order prescribing a dress code excluding hijabs. In that case, the Karnataka High Court had held that such a dress code aimed at treating students as a homogeneous class to serve constitutional secularism and was not violative of any fundamental rights.

Discrepancies Between Dates Of Creation And Signing Assessment Order; Bombay High Court Quashes MVAT Order Passed Beyond 4 Years

Case Title: Karvy Innotech Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 316

The Bombay High Court, while noting the discrepancies between the dates of creation and signing of the assessment order, quashed the Maharashtra Value Added Tax Act (MVAT) Order, which was passed beyond the limitation period of 4 years.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the return related to 1st April 2015 to 31st March 2016 and, therefore, a four-year period would expire on 31st March 2020, and the digital signature on the order served on the petitioner has been put on 23rd June 2020. In the order filed with the reply, the date typed is March 19, 2020.

Intimate Relationship Between Adults Does Not Justify Sexual Assault On Partner: Bombay High Court While Refusing To Quash Rape Case

Case Title: Amol Bhagwan Nehul v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 317

“A relationship between two adult individuals does not justify sexual assault by one on his partner”, the Bombay High Court observed while refusing to quash a rape case filed by a woman against her boyfriend.

A division bench of Justice AS Gadkari and Justice Dr. Neela Gokhale dismissed a petition seeking the quashing of an FIR and the subsequent charge sheet filed against the petitioner observing –

“The Complainant has clearly alleged that, the Petitioner had established sexual intercourse forcibly with her and without her consent, despite a relationship…it is trite that a relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as 'consensual' ceases to exist. The allegations in the present F.I.R. do not demonstrate a continuous consent on the part of the complainant.”

The petitioner is booked for offences under Sections 376, 376(2)(n), 377, 504, and 506 of the IPC, registered at Karad Taluka Police Station, Satara.

Transportation Of Machinery From JNPT To Factory Doesn't Constitute Supply, GST Not Payable: Bombay High Court

Case Title: Fabricship Pvt. Ltd. v. UoI

Citation: 2024 LiveLaw (Bom) 318

The Bombay High Court held that transportation of machinery from Jawaharlal Nehru Port Authority (JNPT) to the factory of the assessee does not constitute supply, and hence GST is not payable.

The bench of Justice KR Shriram and Justice Jitendra Jain observed that the first limb of Section 129(1)(a), which provides for a penalty equal to one hundred percent of the tax payable, cannot be invoked in the present case. The State GST Authority in the impugned order has erroneously applied the rate of GST without first satisfying itself whether the transportation to one's own factory can at all fall within the charging section. The applicability of the rate of tax would get triggered only if a transaction falls within the meaning of the term “supply” as per Section 7 of the Maharashtra Goods and Service Tax Act (MGST Act).

GST Regime At Nascent Stage; Bombay High Court Quashes Order Rejecting IGST Refund

Case Title: Sanjeev Suresh Desai v. UoI

Citation: 2024 LiveLaw (Bom) 319

The Bombay High Court quashed the order rejecting Integrated Goods and Service Tax (IGST) on the grounds that the order was passed without any reason and without application of mind.

The bench of Justice KR Shriram and Justice Jitendra Jain have observed that the CGST Commissioner does not have the power to condone the delay, but the writ court does.

The bench further observed, “Our judicial conscience does not permit us to reject this cause shown as bogus, particularly in view of the fact that the petitioner was an individual and the GST regime was at a nascent stage. Moreover, in both orders impugned in the petitions, there is no whisper about the merits of the application.”