Calcutta High Court Weekly Round-Up 13th May To 19th May, 2024

NOMINAL INDEX

Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors. 2024 LiveLaw (Cal) 117

Malda District Central Cooperative Bank Employees Association and others Vs. The Election Commission of India and others 2024 LiveLaw (Cal) 118

Rita Ghoshdastidar v. St. Joseph & Mary's School and Ors. 2024 LiveLaw (Cal) 119

MFAR Constructions Private Limited vs Bengal Shristi Infrastructure Development Limited 2024 LiveLaw (Cal) 120

Paresh Ghosh & Ors. Vs The State of West Bengal 2024 LiveLaw (Cal) 121

Bmg Gulf Fzc Vs Quippo Oil And Gas Infrastructure Limited 2024 LiveLaw (Cal) 122

Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others 2024 LiveLaw (Cal) 123

Balgopal Merchants Private Limited Versus The Principal Commissioner Of Income Tax -2, Kolkata 2024 LiveLaw (Cal) 124

Commissioner Of Customs (Preventive) Versus Shri Rajendra Kumar Damani @ Raju Damani 2024 LiveLaw (Cal) 125

Principal Commissioner Of Income Tax, Asansol Versus Sri Manoj Parmar And Others 2024 LiveLaw (Cal) 126

ORDERS/JUDGEMENTS

Recovery Of Excess Payment To Employee On Ground Of Erroneous Pay Scale, Cannot Be Made At End Of Service: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 117

Case Name : Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors.

A single judge bench of the Calcutta High Court comprising of Hon'ble Justice Rajasekhar Mantha, while deciding Writ Petition in the case of Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors., held that irrespective of whether the upgradation of pay scale and posts is made contrary to law, recovery of any excess payment received by the employee on the ground of such revision cannot be made either at the end of the service of the employee or thereafter.

We Don't Operate In A Totalitarian State, Govt Can't Exercise Blanket Power Over Every Institution Under The Sun: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 118

Case: Malda District Central Cooperative Bank Employees Association and others Vs. The Election Commission of India and others 

The Calcutta High Court has recently allowed a plea by the Associations, working for the Malda Districts Central Cooperative Bank and the Mugberia Central Cooperative Bank (petitioners), directing that the Election Commission of India (ECI) shall not requisition them for the purpose of any parliamentary elections, since the organisations which they worked in, were not created by any statute or under any law.

A single bench of Justice Sabyasachi Bhattacharya held:

"We do not operate in a totalitarian state and, as such, it cannot be held that the Government has blanket power over any and every institution or concern or undertaking or operating under the Sun within the territory of India for any purpose whatsoever, unless so stipulated specifically in the Constitution or any specific law. For the limited purpose under discussion thus, Article 324 has to be read in conjunction with Section 159 of the Representation of People Act. The bank cannot be said to be one controlled, partially or wholly, or financed by any Government."

Writ Challenging Termination Of Teaching Staff From Private Unaided Educational Institution Not Maintainable If Dispute Involves Private Contract Matters: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 119

Case: Rita Ghoshdastidar v. St. Joseph & Mary's School and Ors.

A single bench of the Calcutta High Court comprising of Justice Hiranmay Bhattacharyya while deciding a writ petition in the case of Rita Ghoshdastidar v. St. Joseph & Mary's School and Ors. has held that a writ petition challenging the termination of a teaching staff member from a private unaided educational institution is not maintainable if dispute primarily involves private contractual matters.

Attempts By Arbitrator To Reach Settlement Cant Be Termed As 'Conciliation Proceeding' Under Part III: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 120

Case Title: MFAR Constructions Private Limited vs Bengal Shristi Infrastructure Development Limited

The Calcutta High Court division bench of Justice I. P. Mukerji and Justice Biswaroop Chowdhury held that attempts made by the arbitrator to encourage the parties to reach a settlement cannot be termed as 'conciliation proceeding' under Part-III of the Arbitration and Conciliation Act, 1996. The bench held that conciliation is seen as an independent proceeding or an alternative dispute redressal forum the object of which is to reach a settlement between the parties. It has its own procedure and ultimate result.

Evidence Of Prosecution Witness Being Inconsistent With Medical Evidence Is Most Fundamental Defect In Prosecution's Case: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 121

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

The Calcutta High Court has recently held that if there is an inconsistency between the evidence of the witness for the prosecution and medical evidence, it would signify a fundamental defect in the case of the prosecution, which unless reasonably explained would discredit the entire prosecution case.

A single bench of Justice Shampa (Dutt) Paul modified the sentence imposed on the accused who were involved in physical assault, by convicting them u/s 324 IPC instead of 323 IPC and held:

If the evidence of the witness for the prosecution is inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. In the present case, it is on record that there was an altercation between two groups and a free fight took place. Evidence shows assault by lathi or Bamboo. The injuries as discussed above are also not grievous and the instruments as noted by the doctor allegedly used for the assault were not dangerous sharp-edged weapons as alleged. No fracture either in the scalp or elsewhere has been noted.

Misconceived Section 9 & Section 11 Applications; Bar Should Take Necessary Steps, Spare Courts Of 'Unpleasant Duty': Calcutta High Court

Citation: 2024 LiveLaw (Cal) 122

Case Title: Bmg Gulf Fzc Vs Quippo Oil And Gas Infrastructure Limited

The Calcutta High Court single bench of Justice Ravi Krishan Kapur held that it is for members of the Bar to introspect and take necessary steps and spare the Courts of the unpleasant duty. The decision came while reviewing applications presented before the Commercial Court and High Court, which were held to be beyond their jurisdiction.

Specifically, the Commercial Court was held to be not empowered to entertain applications under Section 9 of the Arbitration and Conciliation Act, 1996. Additionally, the bench held that the High Court lacked the authority to appoint an arbitrator in International Commercial Arbitration.

Cooperative Bank Employees Not Covered Under Definition Of “Public Servant” As Per Section 21 Of IPC In Context Of Election Duties: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 123

Case Name : Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others

A single bench of the Calcutta High Court comprising of Justice Sabyasachi Bhattacharyya, while deciding Writ Petitions in the case of Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others, held that Cooperative bank employees cannot be considered as “public servants” under Section 21 of the IPC when it comes to election duties.

Investment Made From Share Premium Without Any Noticeable Business Activity, Legitimacy Of Income Not Established: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 124

Case Title: Balgopal Merchants Private Limited Versus The Principal Commissioner Of Income Tax -2, Kolkata

The Calcutta High Court has held that the source of investments by those two companies is also the share capital and share premium raised by them while issuing their own shares to other closely held companies, and those companies had no noticeable business activities.

The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya, while upholding the ITAT's order, noted that the effects of the documents were considered by the tribunal, and it was not satisfied with the genuineness of the transaction. More importantly, the assessee itself claimed that there was no noticeable business activity during the year. Thus, the tribunal ultimately concluded that the assessee has failed to establish the basic ingredients required to be established under Section 68.

Retracted Statement Can't Be Said To Be Involuntary Without Being Examined By Court: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 125

Case Title: Commissioner Of Customs (Preventive) Versus Shri Rajendra Kumar Damani @ Raju Damani

The Calcutta High Court has held that it is the duty cast upon the court to examine the correctness of the validity of the retraction, the point of time at which the retraction was made, whether the retraction was consistent, and whether it was merely a ruse.

The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that if the tribunal was of the view that the statement recorded under Section 108 of the Act was not admissible on account of the retraction, that by itself cannot render the statement involuntary.

Income Tax Dept. Failed To Incorporate Revised CPWD Rates As Quantum Of Rent For Building: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 126

Case Title: Principal Commissioner Of Income Tax, Asansol Versus Sri Manoj Parmar And Others

The Calcutta High Court has held that the income tax department was delaying the matter for a prolonged period and failed to incorporate the revised Central Public Works Department (CPWD) rates as the quantum of rent for the building.

The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya, while dismissing the appeal filed by the department, observed that ultimately a partial reprieve was given to the owners of the building by virtue of the interim order. Considering all these aspects, it is evidently clear that there is no disputed question of fact and all that the hiring department was harping upon with regard to the CPWD rates.