Calcutta High Court Monthly Digest: July 2024

Arabul Islam vs The State of West Bengal 2024 LiveLaw (Cal) 154

M/s. Asian Hotels (East) Ltd. & Anr. Versus The Deputy Commissioner of State Tax & Ors. 2024 LiveLaw (Cal) 155

M/S. B.B.M. Enterprises Vs State Of West Bengal And Ors. 2024 LiveLaw (Cal) 156

M/s. Araha Hospitality Private Limited vs. Indian Railway Catering and Tourism Corporation Limited and others 2024 LiveLaw (Cal) 157

Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal 2024 LiveLaw (Cal) 158

Vodafone Idea Limited Vs Commissioner Of Income Tax Citation: 2024 LiveLaw (Cal) 159

Accuhealth Solutions Private Limited Versus The State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 160

Kotak Mahindra Bank Limited Vs Shalibhadra Cottrade Pvt. Ltd. And Ors. Citation: 2024 LiveLaw (Cal) 161

M/s Zillion Infraprojects Pvt Ltd Vs Bridge and Roof Co India Ltd Citation: 2024 LiveLaw (Cal) 162

Axis Bank Limited Versus Indian Cable Net Company Limited & Ors Citation: 2024 LiveLaw (Cal) 163

Government of West Bengal & Anr. Versus Essex Development Investments (Mauritius) Ltd. Citation: 2024 LiveLaw (Cal) 164

K2V2 Hospitality Llp Vs Limton Electro Optics Pvt. Ltd. And Ors. Citation: 2024 LiveLaw (Cal) 165

Future Market Networks Ltd. Vs Laxmi Pat Surana & Anr Citation: 2024 LiveLaw (Cal) 166

The Incoda Vs The General Manager, Metro Railway And Anr. Citation: 2024 LiveLaw (Cal) 167

Tamoghna Ghosh Vs. The State of West Bengal & Ors Citation: 2024 LiveLaw (Cal) 168

Satyabrata Barik @ Mithu. Vs. The State of West Bengal & Anr Citaiton: 2024 LiveLaw (Cal) 169

Gaurav Churiwal vs Concrete Developers LLP and Ors. Citation: 2024 LiveLaw (Cal) 170

Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors. Citation: 2024 LiveLaw (Cal) 171

Ashok Kumar Gupta Vs M.D. Creations And Ors. Citation: 2024 LiveLaw (Cal) 172

Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors. Citation: 2024 LiveLaw (Cal) 173

Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises Citation: 2024 LiveLaw (Cal) 174

Shashanka Maiti & Ors. v/s. The State of West Bengal Citation: 2024 LiveLaw (Cal) 175

Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd. Citation : 2024 LiveLaw (Cal) 176

Susmita Pandit Versus State of West Bengal & Another Citation: 2024 LiveLaw (Cal) 177

Subhash Tiwari & Anr. Vs. The State of West Bengal & Anr Citation: 2024 LiveLaw (Cal) 178

The State Of West Bengal Vs Bijan Behari Chowdhury 2024 LiveLaw (Cal) 179

ORDERS/JUDGEMENTS

Calcutta High Court Imposes 10K Cost On Litigants For Filing 'Fake' Post-Poll Violence Case

Citation: 2024 LiveLaw (Cal) 153

Case: GOPA DAS VS STATE OF WEST BENGAL AND ORS

The Calcutta High Court has imposed a fine of Rs 5000 each on a petitioner and defendant for filing a fake case relating to post-poll violence in West Bengal in the aftermath of the Lok Sabha Elections 2024.

A single bench of Justice Amrita Sinha imposed the total cost of Rs 10,000 when the parties had approached the court seeking to withdraw their case.

During the hearing of the case, the parties had submitted before the Court that they wished to withdraw the case as an amicable settlement had been arrived at between them after the petitioners initially claimed that they were BJP workers who were ousted from their homes by those belonging to the ruling dispensation.

Calcutta High Court Grants Bail To Former TMC MLA Arabul Islam Accused In Murder Of ISF Leader

Citation: 2024 LiveLaw (Cal) 154

Case: Arabul Islam vs The State of West Bengal

The Calcutta High Court has granted bail to Trinamool Congress (TMC) leader and former MLA Arabul Islam who was accused in the murder of an Indian Secular Front (ISF) leader.

Islam was arrested by the police in February on suspicion of murder and vandalism of government property.

A division bench of Justices Arijit Banerjee and Prasenjit Biswas granted bail to Islam upon imposing several conditions on him.

The complaint against the petitioner was filed when there was a confrontation between him and his supporters and members of the rival political party during the filing of nomination for the 2023 Panchayat Elections.

Calcutta High Court Stays Demand Order Confirming Payment Reversal Of ITC Due To Cancellation Of Supplier's Registration

Citation: 2024 LiveLaw (Cal) 155

Case Title: M/s. Asian Hotels (East) Ltd. & Anr. Versus The Deputy Commissioner of State Tax & Ors.

The Calcutta High Court stayed the demand order confirming the payment reversal of the ITC due to the cancellation of the supplier's registration.

The bench of Justice Raja Basu Chowdhury has observed that the prima facie case was made by the petitioner/assessee, and there shall be a stay of the demand raised by the proper officer as is reflected in the order, subject to the petitioners' depositing 10% of the disputed tax amount with the GST authorities.

Chief Justice Or Their Designate Cannot Adjudicate Merits Of Dispute Under Section 11 Of Arbitration Act: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 156

Case Title: M/S. B.B.M. Enterprises Vs State Of West Bengal And Ors.

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that it is completely beyond the domain of the Chief Justice and/or his designate, sitting in jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996, to adjudicate even prima facie on the merits of an arguable issue involved in the matter, which would fall categorically within the domain of adjudication by the Arbitrator.

It held that all jurisdictional issues, including limitation, are to be decided by the Arbitrator. The bench held that even if there is a shade of doubt as to the issue of limitation, the Court sitting under Section 11 cannot decide the same conclusively and the matter has to be relegated to the Arbitrator.

Section 11 outlines the procedure for the appointment of arbitrators and the role of the Chief Justice or his designate in such appointments.

Calcutta High Court Declines Plea Challenging Tender Awarded By IRCTC Alleging Allottee's Non-Disclosure Of Involvement In 'Rail Neer Scam'

Citation: 2024 LiveLaw (Cal) 157

Case: M/s. Araha Hospitality Private Limited vs. Indian Railway Catering and Tourism Corporation Limited and others

The Calcutta High Court has declined a plea challenging a tender allotted by the Indian Railway Catering & Tourism Corporation (IRCTC). The plea challenged the allotment process on the ground that the allottee/successful bidder had been accused in the 'Rail Neer scam', and was being investigated by the Central Bureau of Investigation (CBI) for the same.

A single bench of Justice Shampa Sarkar held:

"The petitioner has not been able to satisfy that the action of the authority suffers from arbitrariness, perversity or favouritism. The court should not normally interfere with the policy of the tendering authority. If the petitioners or the court think that charges of corruption prior to three years should be a relevant factor in the decision making process, such opinion cannot be a reason for exercise of power of judicial review. When technically qualified and experienced people have formulated the terms and conditions of the tender, the court should not interfere because the court feels that a more stringent interpretation of the terms would be wiser, more logical or fair."

Calcutta High Court Denies Bail To Chinese Man Who Allegedly Attempted To Enter India With Fake Nepali Passport, Travel Documents

Citaiton: 2024 LiveLaw (Cal) 158

Case: Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal

The Calcutta High Court Circuit Bench at Jalpaiguri has denied bail to a Chinese national who attempted to enter India using a fake Nepali passport and travel documents, posing as a Nepali citizen.

A single bench of Justice Subhenu Samanta upheld the order of the trial court and stated: Magistrate had taken cognizance of the offence on the basis of the charge sheet submitted by the police and refused to grant default bail. I find no illegality or irregularity in the impugned order passed by the Learned Magistrate. The Learned Magistrate has correctly taken cognizance of the offence on the strength of the charge sheet, and as the charge sheet has been submitted has been correctly refused the prayer for default bail.

Cellular Mobile Service Providers Not Obliged To Deduct TDS On Income Received By Distributors: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 159

Case Title: Vodafone Idea Limited Vs Comissioner Of Income Tax

The Calcutta High Court has held that the cellular mobile service providers are not obliged to deduct the tax at source (TDS) on income received by distributors/franchisees from customers.

The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has relied on the decision of Supreme Court in the case of Bharti Cellular Limited Vs. Assistant Commissioner of Income Tax Circle-57, Kolkata and Anr. In Which It Was Held That The Assessees Would Not Be Under A Legal Obligation To Deduct Tax At Source On The Income/Profit Component In The Payments Received By The Distributors/Franchisees From The Third Parties/Customers, Or While Selling/Transferring The Pre-Paid Coupons Or Starter-Kits To The Distributors.

Cancer Marker Test: Calcutta High Court Holds Accuhealth Solutions Liable For Negligence & Lack Of Expertise

Citation: 2024 LiveLaw (Cal) 160

Case Title: Accuhealth Solutions Private Limited Versus The State of West Bengal & Ors.

The Calcutta High Court bench of Justice Shampa Sarkar has held that Accuhealth Solutions Private Limited indicated carelessness, lack of expertise and negligence in conducting the cancer marker test for the patient.

The bench held that the diagnostic centre did not possess the necessary capability to perform the test independently and had instead outsourced it to AI Diagnostics.

Even Without Further Allegation Of Bias Under Section 12(5) Of Arbitration Act, Unilaterally Appointed Arbitrator Is Ineligible: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 161

Case Title: Kotak Mahindra Bank Limited Vs Shalibhadra Cottrade Pvt. Ltd. And Ors.

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even a unilateral appointment of the arbitrator, without any further allegation of bias under Section 12(5) of the Arbitration and Conciliation Act, 1996, renders the Arbitrator ineligible.

The bench held that in addition to the grounds specifically mentioned in Section 12(5) read with the Seventh Schedule unilateral appointment of Arbitrator by one of the parties itself has also been brought under the purview of disqualification by ineligibility.

Calcutta High Court Strikes Down Arbitration Clause As Unconstitutional, Upholds Subcontractor's Right To Independent Dispute Resolution

Citation: 2024 LiveLaw (Cal) 162

Case Title: M/s Zillion Infraprojects Pvt Ltd Vs Bridge and Roof Co India Ltd

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has struck part of the arbitration clause as being violative of Article 14 of the Constitution. The clause prevented the subcontractor from participating in arbitration proceedings despite having to bear the expenses for its claims.

Further, it allowed the Indian Oil Corporation (IOCL) to unilaterally decide whether a dispute could be referred to arbitration, thus depriving the subcontractor of an independent right to raise disputes.

Axis Bank Doesn't Perform Public Functions That Would Subject It To Writ Jurisdiction: Calcutta High Court

Case Title: Axis Bank Limited Versus Indian Cable Net Company Limited & Ors

Citation: 2024 LiveLaw (Cal) 163

The Calcutta High Court bench of Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that Axis Bank does not perform public functions that would subject it to writ jurisdiction. It held that adherence to RBI guidelines by a private bank does not equate to the performance of public duties.

The bench held that: “the appellant bank carrying on the business or commercial activity of banking does not discharge any public function or public duty.”

2063 Crore Arbitral Award: Calcutta High Court Directs West Bengal Government, WBIDC To Pay Amount

Case Title: Government of West Bengal & Anr. Versus Essex Development Investments (Mauritius) Ltd.

Citation: 2024 LiveLaw (Cal) 164

The Calcutta High Court bench of Justice Krishna Rao has rejected the petition made under Section 36 of the Arbitration and Conciliation Act, 1996 by the West Bengal Government and West Bengal Industrial Development Corporation claiming fraud in making of the arbitral award. The bench noted that the arbitral tribunal arrived upon the findings after considering the materials placed before it and the submissions made by the respective parties.

Further, it noted that the arbitral tribunal recorded all the submissions of the parties in the award. Therefore, the bench dismissed the Section 34 petition.

The bench directed the West Bengal Government and West Bengal Industrial Development Corporation to deposit 100% of the awarded sum.

Composite Reference To Arbitration Necessary When Dispute Involves Same Subject Matter: Calcutta High Court

Case Title: K2V2 Hospitality Llp Vs Limton Electro Optics Pvt. Ltd. And Ors.

Citation: 2024 LiveLaw (Cal) 165

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held allowed composite reference of two companies to arbitration noting that the two arbitration agreement refer to the self-same demised property. Moreover, it noted that both the agreements were entered into by the same proposed lessee with two co-owners of the self-same property.

The bench held that: “if two different references were to be made, there would be ample scope of conflict of decision pertaining to the self-same subject matter between the co-owners of the self-same property.”

Supreme Court's Interpretation Of 'Three Months' As 90 Days In Section 34(3) Of Arbitration Act As Obiter Dicta, Not Ratio Decidendi: Calcutta High Court

Case Title: Future Market Networks Ltd. Vs Laxmi Pat Surana & Anr

Citation: 2024 LiveLaw (Cal) 166

The Calcutta High Court bench of Justice Subhendu Samanta has held that the Supreme Court's observations regarding the interpretation of "three months" in Section 34(3) of the Arbitration and Conciliation Act, 1996 as 90 days in various cases were not the ratio decidendi but obiter dicta.

The bench held that the period of limitation must be computed based on calendar months, therefore, the period of limitation in Section 34(3) would be three months excluding the date of receipt of the arbitral award.

Invocation of Arbitration Beyond Stipulated Period In Clause Does Not Frustrate Parties' Intent To Arbitrate: Calcutta High Court

Case Title: The Incoda Vs The General Manager, Metro Railway And Anr.

Citation: 2024 LiveLaw (Cal) 167

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the invocation of arbitration after the period defined in the arbitration clause doesn't frustrate the intention of the parties to refer disputes to arbitration.

The bench held that the outer limit stipulated in the arbitration clause for invocation of arbitration if failed by the claimant, does not constitute a waiver or a deliberate relinquishment of the claim by the claimant.

Calcutta High Court Allows BJP Rally Outside CESC Office Over Alleged Increase In Electricity Prices, Limits Attendance To 1,000 Protestors

Case: Tamoghna Ghosh Vs. The State of West Bengal & Ors

Citation: 2024 LiveLaw (Cal) 168

The Calcutta High Court has allowed a protest by the supporters of the Bharatiya Janata Party (BJP) outside the offices of the Calcutta Electricity Supply Corporation (CESC) at Victoria House in Kolkata over the alleged increase in electricity prices. The protestors had approached the court for permission to hold the rally after the Kolkata Police declined to allow the same.

A single bench of Justice Rajarshi Bharadwaj allowed the protest rally while laying down certain conditions and limiting the attendance to a maximum of 1,000 protestors. The Court took judicial notice of the fact that such protests held by other political parties at the very same venue had been allowed by the police and reiterated earlier decisions that there shall be a level playing field for all political parties in the state.

Calcutta High Court Quashes Case Against Man Accused Of Voyeurism, Stalking For Secretly Clicking Photos Of Woman From His Residence

Case: Satyabrata Barik @ Mithu. Vs. The State of West Bengal & Anr

Citaiton: 2024 LiveLaw (Cal) 169

The Calcutta High Court has quashed a case of voyeurism and stalking against a man booked under Section 354C and D of the Indian Penal Code (IPC). The man was arrested by the police upon the complaint of a woman who had accused him of secretly taking pictures of her from his residence.

Justice Bibhas Ranjan De quashed the case initiated against the man upon observing that while photographing a woman doing private acts may amount to voyeruism, the act of stalking would require specifc elements to be proven.

LLP And Its Individual Partners Can't Raise Same Issue By Separate Appeals U/s 37 Of Arbitration Act: Calcutta High Court

Case Title: Gaurav Churiwal vs Concrete Developers LLP and Ors.

Citation: 2024 LiveLaw (Cal) 170

The Calcutta High Court single bench of Justice Sabyasachi Bhattacharyya held that an LLP and its partners cannot file separate appeals under Section 37 of the Arbitration and Conciliation Act by citing the principle of 'separate legal entity'. It was held that the principle of res judicata would apply to prevent the individual partners from raising the same issue under Section 37, if the previous appeal filed in the name of the LLP was dismissed.

Dept. Failed To Put Assessee On Notice In Respect Of Section 69A Addition, Assessment Order Not Sustainable: Calcutta High Court

Case Title: Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors.

Citation: 2024 LiveLaw (Cal) 171

The Calcutta High Court has quashed the assessment order on the grounds that the department has failed to put the assessee on notice in respect of addition under Section 69A of the Income Tax.

The bench of Justice Raja Basu Chowdhury has observed that the determination made by the respondent-department as reflected in the assessment order stands vitiated by reasons of failure on the part of the department to put the petitioner on notice in respect of addition under Section 69A. Since the assessment order is violative of the principles of natural justice, it is unenforceable in law.

'Rohan Builders' Not Binding Precedent, Court Empowered To Extend Arbitrator's Mandate Even If Section 29-A Petition Filed After Termination: Calcutta High Court

Case Title: Ashok Kumar Gupta Vs M.D. Creations And Ors.

Citation: 2024 LiveLaw (Cal) 172

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the court is empowered the court is empowered to extend an arbitrator's mandate even if a petition under Section 29-A of the Arbitration and Conciliation Act, 1996, is filed after the termination of the mandate.

Justice Bhattacharyya clarified that the absence of negative expressions in Section 29-A, which are present in other statutes to enforce strict timelines, indicates legislative intent to allow judicial discretion in extending mandates.

Dismissal Of First Execution Application On Default Ground Does Not Bar Fresh Petition: Calcutta High Court

Case Title: Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors.

Citation: 2024 LiveLaw (Cal) 173

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held mere dismissal of the first execution application on the ground of default does not prevent the award-holder/decree-holder from filing a fresh execution petition.

The High Court held that the provisions of Rules 105 and 106 of Order 21 of the Code of Civil Procedure do not preclude the award-holder/decree-holder from filing a fresh execution case on the same cause of action after a dismissal for default. Unlike Order 9, there is no specific bar in Order 21 regarding execution cases. The bench noted that even Rule 4 of Order 9 allows for a fresh suit on the same cause of action if the previous suit was dismissed for default without the parties' presence.

Arbitrator's Reliance On Unverified Evidence Violates Fundamental Policy Of India: Calcutta High Court

Case Title: Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises

Citation: 2024 LiveLaw (Cal) 174

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that evidence which does not qualify as pleadings supported by due verification or affidavit cannot be equated with proof of a claim. It held that the arbitrator's reliance on such evidence was contrary to the fundamental policy of Indian law.

The bench further held that the arbitrator was not in a situation where an exact figure cannot be determined, and which would require a reasonable guesswork by the tribunal. Rather, it was a case where the tribunal arbitrarily granted an amount to the claimant without any material basis.

Trial Court Should Not Issue Warrant Of Arrest Mechanically, Without Application Of Mind: Calcutta High Court

Case: Shashanka Maiti & Ors. v/s. The State of West Bengal

Citation: 2024 LiveLaw (Cal) 175

The Calcutta High Court has held that a trial court cannot issue a warrant of arrest without application of mind and justifying the same under the law.

A single bench of Justice Suvra Ghosh quashed the warrant of arrest against the petitioners, who were accused under inter alia Section 420 of the Indian Penal Code while observing that the trial court had issued the warrant of arrest against the petitioners mechanically without application of mind.

Extended Limitation Can't Be Invoked If No 'Omission' & Suppression Of Material Facts' To Evade Tax : Calcutta HC

Case Title: Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd.

Citation : 2024 LiveLaw (Cal) 176

The Calcutta High Court held that no service tax will be levied on activities such as cutting or mineral extraction which are part of mining operations, if mining operations are itself not subjected to service tax on the date of levy.

The High Court clarified that if the State seeking to recover tax, cannot bring the subject within the letter of law, then it goes without saying that the subject is free.

Only Men Can Be Prosecuted Under 'Gender-Specific' Law Of Sexual Harassment U/S 354A IPC: Calcutta High Court

Case: Susmita Pandit Versus State of West Bengal & Another

Citation: 2024 LiveLaw (Cal) 177

The Calcutta High Court has recently held that sexual harassment charges under Section 354A of the Indian Penal Code (IPC) cannot be applied against women since the provision specifically begins with the term "a man."

A single bench of Justice Ajay Kumar Gupta perused the provision which begins, "[354A. Sexual harassment and punishment for sexual harassment--(1) A man committing any of the following acts--"

It was held that "it can be safely accepted that a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment. This offence is gender specific and only a male can be prosecuted under this offence. A female accused will not be covered under the mischief of this Section as a result of the specific words “a man” used in the Section 354A sub-sections (1), (2) and (3) of the IPC. Accordingly, the allegation of an offence punishable under Section 354A of IPC is not applicable against the present petitioner."

Calcutta HC Declines To Quash Case Against Man Who Allegedly Insulted Son-In-Law's Tribe, Said "Tum Log Chhota Jaat Hai"

Case: Subhash Tiwari & Anr. Vs. The State of West Bengal & Anr

Citation: 2024 LiveLaw (Cal) 178

The Calcutta High Court has declined to quash a case initiated under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, (SC/ST Act) against a man who allegedly insulted his son-in-law using casteist slurs in his locality when the complainant had gone to bring his wife back from her maternal home.

It was alleged that the accused said: “tum jaisa nich jat ke sath meri beti nehi jayegi...Bhumij log nich aur chhuddar hota hai," (my daughter will not go with a lower caste like you) in the confines of his home, while he physically assaulted the petitioner and said “tum log chhotta jat hai” (you people are lower caste) outside in his locality.

Arbitrator's Award For Compensation For Excess Work And Business Loss Without Sufficient Evidence Is Perverse, Contrary To Fundamental Policy: Calcutta High Court

Case Title: The State Of West Bengal Vs Bijan Behari Chowdhury

Citation: 2024 LiveLaw (Cal) 179

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the arbitrator's decision to award compensation to the claimant for excess work and business loss, without sufficient evidence to support these claims, is perverse and contrary to the fundamental policy of Indian law.

The matter pertained to an arbitral award that granted monetary claims to the claimant. The Petitioner argued that the award lacked any reasoning and that the arbitrator despite framing certain issues failed to decide on any of them. It contended that the monetary amounts awarded were based on no material evidence. The Petitioner argued that the arbitrator's findings were unjustified as they were based solely on the Respondent not presenting independent evidence through oral witnesses or documentary evidence. The claimant, according to the Petitioner, must rely solely on its own evidence and materials to support its case. Therefore, the premise that the award was justified due to the Respondent failure to provide evidence was legally untenable.