Bombay High Court Weekly Round-Up: July 17 To July 23, 2022

Rahim Manji Kaba vs Moosabhai Gagji Khetani 2022 LiveLaw (Bom) 256

Satvinder Jeet Singh Sodhi and Anr. vs State of Maharashtra  2022 LiveLaw (Bom) 257

Anand Prabhakar Joshi vs Bank of Maharashtra 2022 LiveLaw (Bom) 258

Santacruz Gymkhana vs State of Maharashtra and Anr. with connected matters 2022 LiveLaw (Bom) 259

Vodafone Idea Limited vs UOI and Ors 2022 LiveLaw (Bom) 260

Derivados Consulting Pvt. Ltd. vs Pramara Promotions Pvt. Ltd. 2022 LiveLaw (Bom) 261

Jagannath Bhagnath Bedke vs Haribhau Jagannath Bedke 2022 LiveLaw (Bom) 262

Sterlite Industries (lndia ) Limited and ors vs Special Director of Enforcement and ors 2022 LiveLaw (Bom) 263

International Society for Krishna Consciousness Bangalore v. International Society for Krishna Consciousness and Ors 2022 LiveLaw (Bom) 264

ROUND-UP

Bar Under Section 41(1) Of The Presidency Small Causes Courts Act Is Not Attracted When The Tenant-Landlord Relationship Is Non-Existing: Bombay High Court

Case Title: Rahim Manji Kaba v. Moosabhai Gagji Khetani

Citation: 2022 LiveLaw (Bom) 256

The Bombay High Court held that bar under Section 41(1) of the Presidency Small Causes Courts Act, 1882[i] is not attracted to a dispute regarding declaration of tenancy rights under a partnership deed when the licensor-licensee or landlord/tenant relationship is non-existent

The Bench held that the bar under Section 41 of the Presidency Small Causes Courts Act only applies where the parties have a landlord-tenant or licensor-licensee relationship between themselves.

S.138 NI Act | Non-Executive Directors Not Liable For Company's Actions/ Omissions Unless Involved In Day-To-Day Affairs: Bombay High Court

Case Title: Satvinder Jeet Singh Sodhi and Anr. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 257

The Bombay High Court quashed criminal proceedings against independent non-executive directors of Tecpro Systems Ltd observing they were not responsible for day-to-day functioning of the company.

The court was dealing with an application requesting quashing of criminal proceedings before the trial court in a cheque bounce case under the Negotiable Instruments Act.

"Non-executive director not being a promoter of or key managerial persons shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently", the court stated.

11 Yrs Of Frivolous Litigation: Bombay High Court Reprimands Petitioner In Person, Imposes 1 Lakh Cost

Case Title : Anand Prabhakar Joshi v. Bank of Maharashtra

Citation: 2022 LiveLaw (Bom) 258

The Bombay High Court reprimanded a Pune resident, seeking second review of the court's earlier decision, stating that the petition was without merit and constituted abuse of process and law. A penalty of Rs. 1 lakh was imposed on the petitioner.

The court said that advanced age of the petitioner cannot be a reason to take a sympathetic view as he is "fully aware that he has been fighting a lost legal battle which has no merit at all".

"Such conduct is highly deprecated as the petitioner appears to be incorrigible", the court stated.

Entertainment Duty Not Applicable On Billiards Tables At Members-Only Club: Bombay High Court

Case Title: Santacruz Gymkhana Versus State of Maharashtra and Anr. with connected matters

Citation: 2022 LiveLaw (Bom) 259

Entertainment duty is not applicable on billiards tables at a members-only club, the Bombay High Court held while quashing demand notices issued to eight elite clubs in Mumbai under the Bombay Entertainment Duty Act 1923.

Unlike a commercial pool parlor meant for public entertainment at a fee, the clubs neither allow outsiders nor benefit commercially from the activity. Therefore, providing billiards tables cannot be treated as "entertainment" and consequently cannot be taxable under the Act, the court held.

[IGST] Roaming Services And International Long Distance Services Provided By Vodafone Idea To Foreign Telecom Operators Is An Export Of Service: Bombay High Court

Case Title: Vodafone Idea Limited versus UOI and Ors.

Citation: 2022 LiveLaw (Bom) 260

The Bombay High Court has ruled that the international Inbound Roaming Services (IIR) and the International Long Distance (ILD) Services provided by Vodafone Idea to Foreign Telecom Operators (FTOs) is an export of services, and thus, Vodafone Idea is eligible for the refund of the IGST paid by it.

Noting that the provisions of Section 13(2) of the IGST Act were applicable, the Court held that the place of supply of service was the location of the recipient of the service, i.e., the location of the FTO, which was outside India.

An Enabling Clause Does Not Constitute A Binding Arbitration Agreement Between The Parties: Bombay High Court

Case Title: Derivados Consulting Pvt. Ltd. versus Pramara Promotions Pvt. Ltd.

Citation: 2022 LiveLaw (Bom) 261

The Bombay High Court ruled that once the parties have agreed to use the word 'may', the parties have conferred a discretion to enter into an arbitration agreement in the future; and that such an enabling clause does not constitute any binding arbitration agreement between the parties.

The Single Bench of Justice G. S. Kulkarni held that the use of the word "may" does not bring about any arbitration agreement between the parties, when tested on the touchstone of Section 7(1) of the Arbitration and Conciliation Act, 1996 (A&C Act), which defines the arbitration agreement.

S.125 CrPC Meant For Immediate Support, Courts Cannot Be Hyper Technical In Their Approach: Bombay High Court

Case Title – Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke

Citation - 2022 LiveLaw (Bom) 262

The Aurangabad Bench of Bombay High Court while deciding a writ petition related to maintenance said that courts should not get too technical while deciding petitions under section 125 of the Cr.P.C.

"The said provision is made for the immediate support that too financial in nature of a person so that he or she can survive", the court stated.

Bombay High Court Quashes ED Order Imposing 25Cr Penalty On Sterlite Industries & Its Directors Over Alleged Violation Of Forex Rules

Case Title : Sterlite Industries (lndia ) Limited and ors v Special Director of Enforcement and ors

Citation: 2022 LiveLaw (Bom) 263

"Passing of the adjudication order after the offence has been compounded, is thus contrary to the statutory provisions discussed hereinabove, is not maintainable and thus without jurisdiction," the Bombay HC held.

In a relief to public limited company Sterlite Industries and its Directors, court an almost 14 years old order passed by the Special Director of the Enforcement Directorate (ED) which imposed penalties of Rs 20 crore on the company and Rs 5.20 crore on its promoter Anil Agarwal and three other Directors.

By this order passed on November 21, 2008, the ED had alleged violation under the Foreign Exchange Management Act, 1999 (FEMA) while acquiring 100% stake in Netherlands based Monte Cello BV which owned two copper mines in Australia.

ISKCON Bangalore vs. ISKCON Mumbai | Question Of Trademark's Proprietorship To Be Determined By Registrar: Bombay High Court

Case Title – International Society for Krishna Consciousness Bangalore v. International Society for Krishna Consciousness and Ors

Citation- 2022 LiveLaw (Bom) 264

The Bombay High Court has clarified that its previous decision of 2020, allowing the trademark infringement suit filed by ISKCON Mumbai against a clothing manufacturer was limited to recognizing ISKCON as a well known trade mark in India within the meaning provided in Sections 2 (1)(zg) of the Trade Marks Act, 1999.

A division bench of Justices G.S. Patel & Gauri Godse made it clear that through the said judgment, the High Court has in no way recognized ISCKON Mumbai as the sole and exclusive proprietor of the mark.

"Registrar of Trademarks, is therefore, bound by the finding that ISKCON is well-known mark. As to who is entitled to the use of that mark or can be held to be its registered proprietor are questions expressly left open", the court said.