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Calcutta High Court Monthly Digest: March 2024 [Citations 60-78]
Srinjoy Das
31 March 2024 7:40 PM IST
![Calcutta High Court Monthly Digest: March 2024 [Citations 60-78]](https://www.livelaw.in/h-upload/2022/02/01/750x450_408693-calcutta-high-court-monthly-digest.jpg "Calcutta High Court Monthly Digest: March 2024 [Citations 60-78]")
NOMINAL INDEXJanak Ram v State 2024 LiveLaw (Cal) 60SRMB Srijan Limited v Great Eastern Energy Corporation Limited 2024 LiveLaw (Cal) 61 ENFORCEMENT DIRECTORATE, KOLKATA ZONAL OFFICE I v STATE OF WEST BENGAL AND ORS 2024 LiveLaw (Cal) 62 Arpita Chowdhury v. Nabadwip Municipality & Anr 2024 LiveLaw (Cal) 63 Monoyara Begum v Union of India 2024 LiveLaw (Cal) 64Proactive Ship...
NOMINAL INDEX
Janak Ram v State 2024 LiveLaw (Cal) 60
SRMB Srijan Limited v Great Eastern Energy Corporation Limited 2024 LiveLaw (Cal) 61
ENFORCEMENT DIRECTORATE, KOLKATA ZONAL OFFICE I v STATE OF WEST BENGAL AND ORS 2024 LiveLaw (Cal) 62
Arpita Chowdhury v. Nabadwip Municipality & Anr 2024 LiveLaw (Cal) 63
Monoyara Begum v Union of India 2024 LiveLaw (Cal) 64
Proactive Ship Management Private Limited. vs. The Owners and Parties Interested in the Vessel Green Ocean 2024 LiveLaw (Cal) 65
Commissioner Of Customs (Port), Kolkata Versus M/S. Sandeep Kumar Dikshit 2024 LiveLaw (Cal) 66
Adani Wilmar Limited and another Vs. The State of West Bengal and others 2024 LiveLaw (Cal) 67
PCIT vs ITC INFOTECH INDIA LIMITED 2024 LiveLaw (Cal) 68
Everest Infra Energy Limited. Vs. Transmission (India) Engineers & Anr 2024 LiveLaw (Cal) 69
M/s. Mainak Engineering Private Limited vs Bihar Rural Livelihoods Promotion Society 2024 LiveLaw (Cal) 70
Praxair India Pvt. Ltd. vs Steel Authority of India Ltd. 2024 LiveLaw (Cal) 71
SRMB Srijan Limited vs Great Eastern Energy Corporation Limited 2024 LiveLaw (Cal) 72
The Secretary, E & NF Railway Junior Co-operative Credit Society Limited, Eastern Railway vs Sri Jyotish Chandra Sarkar & Anr. 2024 LiveLaw (Cal) 73
Odisha Power Generation Corporation Limited Vs. M/s. Techniche Consulting Service and Others 2024 LiveLaw (Cal) 74
Dipanwita Das (Sarkar) Vs. Moloy Das 2024 LiveLaw (Cal) 75
Dr Pranat Tudu v State of West Bengal 2024 LiveLaw (Cal) 76
Reshmi Bhagat Vs. State of West Bengal and others 2024 LiveLaw (Cal) 77
Tree House Education And Accessories Ltd. Versus Holy Trust School 2024 LiveLaw (Cal) 78
Citation: 2023 LiveLaw (Cal) 60
Case: Janak Ram v State
The Calcutta High Court's Circuit Bench at Port Blair has recently held that referring to an unknown lady as "darling" would be a criminal offence under Sections 354A and 509 of the Indian Penal Code (IPC).
A single bench of Justice Jay Sengupta upheld the conviction of the accused who had referred to a lady constable as 'darling' in an inebriated condition. It said:
Addressing an unknown lady, whether a police constable or not, on the street by a man, drunken or nor, with the word “darling” is patently offensive and the word used essentially a sexually coloured remark. using such expression to an unacquainted lady cannot but be an act intended to insult the modesty of the addressee. At least as of now, the prevailing standards in our society are not such that a man on the street can gleefully be permitted to use such expression in respect of unsuspecting, unacquainted women.
Citation: 2024 LiveLaw (Cal) 61
Case: SRMB Srijan Limited v Great Eastern Energy Corporation Limited
The Calcutta High Court has recently held that the mere silence of a party affecting the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that it is the duty of the person keeping silence to speak or unless the silence is in itself equivalent to speech.
A single bench of Justice Moushumi Bhattacharya referred to Section 17(2) of the Indian Contract Act, and held:
Fraud also takes within its fold active concealment of a fact by the party having knowledge of the fact or a promise made without the intention of performing it or any other act which is fitted to deceive. It is relevant that section 17(2) contemplates “active concealment” which points to deliberate non-disclosure with a pre-meditated intention to deceive the other party or induce him to enter into the contract.
Citation: 2024 LiveLaw (Cal) 62
Case: ENFORCEMENT DIRECTORATE, KOLKATA ZONAL OFFICE I v STATE OF WEST BENGAL AND ORS
The Calcutta High Court on Tuesday transferred an investigation to the Central Bureau of Investigation (CBI) pertaining to the assault on Enforcement Directorate (ED) officers who had gone to Sandeshkhali, West Bengal to raid the residence of ration-scam accused Shahjahan Sheikh.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya set aside an earlier order constituting an SIT with members of the state police and directed the State to forthwith transfer all papers concerning the matter to the CBI, as well as the custody of prime accused Shahjahan Sheikh. It held:
It was made explicitly clear that the West Bengal State Police are restrained from proceeding with the investigation in the cases which have been registered by them. Despite such an order, the one case stood transferred to the CID, West Bengal who has issued notices dated 01.03.2024 under Section 91 and Section 160 CrPC. Thus, this act of the State Police would be sufficient to hold that the State Police are totally biased and every attempt is being made to delay the investigation in order to protect the accused who has been absconding for more than 50 days.
Citation: 2024 LiveLaw (Cal) 63
Case: Arpita Chowdhury v. Nabadwip Municipality & Anr
The Calcutta High Court has recently allowed a plea moved by the mother of a minor child to replace the biological father's surname in the child's birth certificate with the name of the step-father.
It was submitted that the child was born from her first marriage and that after the dissolution of that marriage, she remarried and moved out of the marital house to live with her present husband, who had accepted the child, and whom the child had known as his father.
In directing the Municipal Corporation to re-issue the child's birth certificate, a single bench of Justice Amrita Sinha held:
One cannot be hyper-technical while dealing with personal issues with hardly any public law element involved. With the change in circumstances, the entry in respect of the father of the minor child has to be taken as improper and liable to be rectified and the records are to be corrected. If the necessary alteration is not done, then the child and her parents may have to face several embarrassing situations in the future. Every individual has the right to live with dignity and honour.
Citation: 2024 LiveLaw (Cal) 64
Case: Monoyara Begum v Union of India
The Calcutta High Court has recently ordered the release of a Pakistani national who remained in prison, even after serving the full length of their sentence under the Foreigners Act, 1946.
A single bench of Justice Sabyasachi Bhattacharya observed:
Articles 14 and 21 of the Constitution of India are [not] restricted to Indian citizens, but are available to any person on the soil of India. In fact [it] does not flow from the Constitution but has merely been recognized by the Constitution. Such rights are implicit human rights which are inextricable from a life worth being called a human existence and a person cannot be denuded under any circumstances. The petitioner, having completed his sentence, cannot be retained in further custody, in any prison cell, of whatever colour, texture or dimension. The petitioner no. 2 is entitled to live a life of dignity.
Citation: 2024 LiveLaw (Cal) 65
Case: Proactive Ship Management Private Limited. vs. The Owners and Parties Interested in the Vessel Green Ocean.
The Calcutta High Court has held that when pleading urgency under Section 12 A of the Commercial Courts Act, allowing the suit to remain in records on a contingency of urgency which may arise at a later date, is patently contradictory.
A single bench of Justice Moushumi Bhattacharya held:
The words used in section 12-A makes it clear that the contemplation of urgency begins and ends at the point of institution, i.e. material point of time when the contemplation must fructify into a proved and pleaded case for urgent interim relief. Hence allowing the suit to remain in the records despite an absence of urgency on the contingency that urgency may arise at a later point of time is patently contrary to the mandate of section 12-A.
Citation: 2024 LiveLaw (Cal) 66
Case Title: Commissioner Of Customs (Port), Kolkata Versus M/S. Sandeep Kumar Dikshit
The Calcutta High Court has held that the supplementary show cause notice, although termed the supplementary, is actually an independent show cause notice even though it relates to the case of smuggling.
The bench of Chief Justice T.S. Sivagnanam and Justice Supratim Bhattacharya has observed that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter (XIV) of the Act unless the owner of the goods is given a notice in writing with the prior approval of the officer of the Customs not below the rank of Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or impose a penalty. Clauses (b) and (c) would not be relevant for the purpose of this case; equally, the first proviso is also not relevant. The second proviso, which was inserted by Act 13 of 2018 with effect from March 29, 2018, states that notwithstanding the issue of notice under Section 124, the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed.
Citation: 2024 LiveLaw (Cal) 67
Case Title: Adani Wilmar Limited and another Vs. The State of West Bengal and others
The Calcutta High Court has held that Adani Wilmar is eligible for sanction of incentives under the West Bengal State Support for Industries Scheme, 2008, post GST.
The bench of Justice Sabyasachi Bhattacharyya has directed the respondent department to disburse the balance amount of the claim of Rs. 4070 lakhs under the West Bengal State Support for Industries Scheme, 2008, in favor of the petitioners at the earliest, preferably within two months from the date, subject to the petitioners complying with the other formalities as contemplated in the Scheme.
Citation: 2024 LiveLaw (Cal) 68
Case: PCIT vs ITC INFOTECH INDIA LIMITED
The Calcutta High Court reiterated that the selection of the tested party is to further the object of the comparability analysis by making it less complex and requiring fewer adjustments.
The Division Bench comprising Justice T.S Sivagnanam and Justice Supratim Bhattacharya observed that “the tested party normally should be the least complex party to the controlled transaction and there is no bar for selection of tested party either local or foreign party and neither the Act nor the guidelines on transfer pricing provides so”.
Citation: 2024 LiveLaw (Cal) 69
Case: Everest Infra Energy Limited. Vs. Transmission (India) Engineers & Anr
The Calcutta High Court has recently held that a judgment which fails to consider a precedent which was available at the time of pronouncing the judgment but was not shown to the Court, is not reviewable on the ground of being per incuriam.
A single bench of Justice Moushumi Bhattacharya held:
A judgment containing an erroneous point of law is not reviewable; it is an appealable judgment. A judgment pronounced on a question of law which is subsequently reversed or modified by a superior Court is also not a reviewable judgment. A judgment which fails to consider a decision which was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam. Such a judgment would be open to challenge before a superior Court. Explanation to Order XLVII Rule 1 preserves the finality of a decision even where the question of law is subsequently unsettled by a superior Court.
Citation: 2024 LiveLaw (Cal) 70
Case Title: M/s. Mainak Engineering Private Limited vs Bihar Rural Livelihoods Promotion Society.
The Calcutta High Court division bench of Justice I.P. Mukerji and Justice Biswaroop Chowdhury held that the settlement process undertaken by the Chairman and Managing Director of the company doesn't involve adjudication. It held that the termination of a settlement attempt does not always result in a “final and binding” decision.
Citation: 2024 LiveLaw (Cal) 71
Case Title: Praxair India Pvt. Ltd. vs Steel Authority of India Ltd.
The Calcutta High Court single bench of Justice Moushumi Bhattacharya held that the word “Court” in Section 29A of the Arbitration and Conciliation Act, 1996 for extension of the mandate of the arbitrator takes the character of the appointing authority under Section 11 of the Arbitration Act. Therefore, it held that can only be the Court which has the power to appoint an arbitrator under Section 11.
Citation: 2024 LiveLaw (Cal) 72
Case Title: SRMB Srijan Limited vs Great Eastern Energy Corporation Limited.
The Calcutta High Court single bench of Justice Moushumi Bhattacharya held that for an unconditional stay of an arbitral award on pretext of fraud, there should prima facie case of fraud which should be evident on the face of the record without the necessity of a detailed or through examination. The bench held that fraud must be evident and reprehensible, with a substantial impact on the outcome of the arbitration proceedings.
Citation: 2024 LiveLaw (Cal) 73
Case Title: The Secretary, E & NF Railway Junior Co-operative Credit Society Limited, Eastern Railway vs Sri Jyotish Chandra Sarkar & Anr.
The Calcutta High Court single bench of Justice Prasenjit Biswas held that disputes concerning the management, constitution, or business of the society, between the society and its members or those claiming through them, are subject to arbitration under Section 84 of the Multi-State Co-operative Societies Act, 2002. Therefore, it set aside orders of District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission for entertaining the complaint.
Citation: 2024 LiveLaw (Cal) 74
Case: Odisha Power Generation Corporation Limited Vs. M/s. Techniche Consulting Service and Others
The Calcutta High Court has recently held that an arbitration agreement pending adjudication by the facilitation council is eclipsed not obliterated.
A single bench of Justice Moushumi Bhattacharya held:
There is nothing in the MSMED Act to suggest, least of all section 18, that the arbitration conducted by the Facilitation Council would subsume the arbitration agreement between the parties or alter the seat/venue chosen by them. At best, the arbitration agreement is eclipsed during the adjudication by the Facilitation Council – only to rise again after the Council pronounces its decision. Thus, the arbitration agreement between the parties takes precedence after publication of the award by the Facilitation Council.
Citation: 2024 LiveLaw (Cal) 75
Case: Dipanwita Das (Sarkar) Vs. Moloy Das
The Calcutta High Court has allowed an appeal, dismissing an application for dissolution of marriage while holding that in matrimonial life it is the collective duty of a couple to create a congenial atmosphere.
A division bench of Justices Harish Tandon and Madhuresh Prasad held that the Constitution recognises equality in gender and both partners must show mutual respect to each others' decision as it is the hallmark of society.
Citation: 2024 LiveLaw (Cal) 76
Case: Dr Pranat Tudu v State of West Bengal
The Calcutta High Court has recently allowed the resignation of a government doctor, who sought to resign from his position to contest as a candidate in the upcoming Lok Sabha parliamentary elections.
In taking note of the statutory regulations around the petitioner's case, a single bench of Justice Rajasekhar Mantha held:
On the issue of public interest being the primary consideration under Clause 14 (West Bengal Service Rules), apart from the same being directory, this Court is of the view that when any person seeks to contest an election to the post of a public representative, he is deemed as a person seeking to represent the public at large. There is, therefore, deemed public interest in a person seeking to contest in anelection and to be a representative of the people.
Citation: 2024 LiveLaw (Cal) 77
Case: Reshmi Bhagat Vs. State of West Bengal and others
The Calcutta High Court has recently held that the object of a public examination cannot be construed in such a restrictive manner which would make it cruel to the candidates.
A single bench of Justice Sabyasachi Bhattacharya held:
The object of a public examination cannot by any means be construed to be so restrictive as to be cruel on the candidates, particularly for brilliant people like the petitioner, who has already cleared the preliminary and mains in the tough banking examination concerned. The endeavour of the authorities ought to be encourage such people and not to shut them out on trivial issues.
Citation: 2024 LiveLaw (Cal) 78
Case Title: Tree House Education And Accessories Ltd. Versus Holy Trust School
The Calcutta High Court single bench of Justice Moushumi Bhattacharya held that it would be an unnatural construction of Section 11 of the Arbitration and Conciliation Act, 1996 where a party with a bona fide and a genuine claim is left in the lurch on the defence of the claim being barred by limitation. It held that when parties engage in constant communication for the settlement of claims, it would be unjust to dismiss a claim solely on the grounds of being time-barred.
