Bombay High Court Weekly Round-Up: April 25 To May 1, 2022

Vikramjeetsingh Dhall Proprietor of Dhall Foods and Beverages vs The Collector of Mumbai (City) & Ors; 2022 LiveLaw (Bom) 158

Nitin Navindas Hundiwala vs Union of India, through the General Manager, Western Railway; 2022 LiveLaw (Bom) 160

Gautam Navlakha vs National Investigation Agency; 2022 LiveLaw (Bom) 161

Jasani Realty Pvt. Ltd. v. Vijay Corporation; 2022 LiveLaw (Bom) 162

Ganesh V/s. The State of Maharashtra; 2022 LiveLaw (Bom) 163

Farhad Ginwalla & Anr. VS. Zenobia Poonawala & Ors with connected matters; 2022 LiveLaw (Bom) 164

Namdeo and Anr. v. State of Maharashtra and Ors.; 2022 LiveLaw (Bom) 165

Shemaroo Entertainment Limited vs. News Nation Network Private Limited; 2022 LiveLaw (Bom) 166

Muktabai and ors v State of Maharashtra; 2022 LiveLaw (Bom) 167

Nitin Gopinath Bhailume and anr. V The State of Maharashtra; 2022 LiveLaw (Bom) 168

Malvika Rajnikant Mehta & Ors v. JESS Construction; 2022 LiveLaw (Bom) 169

ROUND-UP

1. Seized Foreign Liquor Emptied Into Nearest Nallah? Bombay HC Startled At Excise Procedure Of Destroying Contraband

Case Title: Vikramjeetsingh Dhall Proprietor of Dhall Foods and Beverages vs The Collector of Mumbai (City) & Ors

Citation: 2022 LiveLaw (Bom) 158

Startled at a statement made by the Maharashtra State Excise Department that it will destroy seized foreign liquor by emptying it "into nearest available nallah (stream)," the Bombay High Court directed the officials to act prudently, cautiously and in accordance with law, while doing so.

"We expect the Excise Department to act prudently, cautiously and in accordance with law. If this means that the Excise Department must get clearance from a Pollution Control Board then so be it. In its anxiety to destroy this liquor, the Excise Department must not endanger the larger public health," directed a division bench of Justices Gautam Patel and Madhav Jamdar earlier this month.

2. Boarding Crowded Mumbai Local Train A "Calculated Risk"; Not A "Criminal Act" : Bombay HC Awards Compensation To Injured Passenger

Case Title: Nitin Navindas Hundiwala vs Union of India, through the General Manager, Western Railway

Citation: 2022 LiveLaw (Bom) 160

The Bombay High Court observed that boarding a crowded train for a Mumbaikar was a 'calculated risk' not a 'criminal act' and directed the railways to pay over Rs 3 lakh compensation to a septuagenarian who slipped and fell right after boarding a crowded train in 2011.

Justice Bharati Dangre set aside the Railways Claims Tribunal's order rejecting the senior citizen's claim and held that the incident would fall within the meaning of "untoward incident" under Section 123 (c)(2) of the Railways Act.

"If in the daily chores, a passenger attempts to gain an entry, into an overcrowded train and is pushed by other passengers, resulting into his fall, there is no reason why such incident cannot fall within the ambit of 'untoward incident' and [it] wasn't an instance wherein the Railways were exempt from liability."

3. Bhima Koregaon Case : Bombay High Court Dismisses Gautam Navlakha's Plea To Shift Him To House Arrest

Case Title: Gautam Navlakha vs National Investigation Agency

Citation: 2022 LiveLaw (Bom) 161

The Bombay High Court dismissed a petition by senior journalist Gautam Navlakha seeking to shifted out of Taloja Prison and be placed under house arrest, instead, in the Bhima Koregaon – Elgar Parishad Caste violence case.

A division bench of Justices Sunil Shukre and GA Sanap said that whatever grievances Navlakha had in prison could be placed before the trial court for appropriate action.

"Petitioner would be at liberty to bring to the attention of presiding officer of special NIA court the grievances in respect of difficulties faced by him and the said officer directed to ensure grievance redressed within parameters of law."

4. Merely Because An Application Under Section 7 Of IBC Is Filed, It Is Not An Embargo On The Court Exercising Jurisdiction Under Section 11 Of The A&C Act: Bombay High Court

Case Title: Jasani Realty Pvt. Ltd. v. Vijay Corporation

Citation: 2022 LiveLaw (Bom) 162

The High Court of Bombay has held that merely because an application under S.7 of IBC is filed before the adjudicating authority which is pending consideration does not oust the jurisdiction of the High Court to entertain an application filed under S. 11 of the A&C Act.

The Single Bench of Justice G.S. Kulkarni held that an application filed under S.7 of the IBC creates an erga omnes effect or involves third party rights only after it has been admitted by the adjudicating authority, however, before its admission, there is no embargo on the power of the court to decide on an application filed under S.11 of the A&C Act for the appointment of an arbitrator.

5. Evidence Of Last Seen Together By Itself Not Conclusive That Death Was At Hands Of Accused: Bombay High Court

Case Title: Ganesh V/s. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 163

The Bombay High Court recently observed that the evidence of 'last seen together' by itself would not lead to the conclusion that the death was at the hands of the accused.

Justices Sadhana S. Jadhav and S.G. Dige observed that there was enough evidence to show that the accused, Ganesh, had abandoned the deceased, Sanjay, after the incident and the fact that they were together by itself won't contribute to the allegation that the death was at the hands of the accused.

6. "Arrogant, Incomprehensible Conduct": Bombay High Court Judge Bars Lawyer From Appearing Before His Bench In Any Matter

Case Title: Farhad Ginwalla & Anr. VS. Zenobia Poonawala & Ors with connected matters.

Citation: 2022 LiveLaw (Bom) 164

Justice GS Kulkarni of the Bombay High Court has directed a lawyer not to appear in any matter before him following the advocate's "incomprehensible" and "most arrogant" conduct in a clutch of applications pertaining to an arbitration dispute.

The court stopped short of initiating contempt proceedings against advocate Premlal Krishnan considering his career, following a written apology cum undertaking not to repeat his disrespectful conduct in the future.

"Such an apology is being accepted, however with a caution that in no court Premlal Krishnan, shall breach the assurance which is set out in the undertaking/affidavit…"

7. Son Not Expected To Brand His Father As 'Swindler': Bombay High Court Upholds Eviction From Self-Acquired House Of Elderly Parents

Case Title: Namdeo and Anr. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 165

The Bombay High Court evicted a son from the self-acquired house of his parents and held that a son cannot claim that his parents have lost mental balance.

Justice Rohit Deo observed that, "In the conservative Indian society, a son is not expected to brand his aged father a 'swindler' or then allege that the aged parents have lost mental balance. The allegations that the aged parents have been physically assaulted, that the other son was also assaulted and that visitors are prevented from entering the residential house, are not specifically traversed."

It was further observed that the emotional and physical well-being of the aged parents cannot be ensured unless the petitioners vacate the self-acquired residential house.

8. Shemaroo Films' Copyright Infringement Suit: Bombay High Court Grants Interim Injunction Against News Nation, Suspects Defence Of 'Fair Use'

Case Title: Shemaroo Entertainment Limited vs. News Nation Network Private Limited

Citation: 2022 LiveLaw (Bom) 166

The Bombay High Court regarded that the defence of de minimis and fair use has to be seen through the prism of the fact that the parties involved, Shemaroo Entertainment Limited and News Nation Network, had entered into an agreement for a non-exclusive license.

The suit was filed by Shemaroo, which is primarily involved in film production, after premature termination of its non-exclusive licensing contract with News Nation, alleging that the latter continued to exploit its content sans an agreement.

In this background, Justice N. J. Jamdar observed, "It is not the case of the defendant that there was a qualitative change in the nature of the exploitation; during the continuance of license agreement and post termination. If for an identical activity, the defendant had obtained license for valuable consideration, on first principles, these defences (of de minimis and fair use ) may not be readily available to the defendant."

9. Employees Can't Seek Condonation Of Interruption In Service For "Enhancing" Pension: Bombay High Court

Case Title: Muktabai and ors v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 167

The Bombay High court recently sought to answer whether an employee can seek condonation of interruption in service to "enhance" the pension, where the employee already has qualifying service for pension.

A bench of Justices RD Dhanuka and SG Mehare stated that, "the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of the last salary drawn on the substantive permanent post."

10. Kopardi Rape Case: Bombay High Court Permits Convicts To Pursue Academics In Jail

Case Title: Nitin Gopinath Bhailume and anr. V The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 168

The Bombay High Court welcomed the desire expressed by two convicts in the Kopardi rape and murder case to pursue further studies in jail.

A bench of Justices Prasanna B. Varale and SM Modak allowed the petitions even as their death penalty is pending confirmation.

The duo, Jitendra Shinde and Nitin Bhailume were convicted in November 2017 for the rape and murder of a minor at Kopardi village in 2016. Advocate Rebecca Gonsalvez representing them said the two now wanted to pursue their academic career even though they are lodged in Yerawada Central Jail, Pune, by seeking admission to Open Universities.

11. Agreement On The Name Of The Arbitrator Would Not Amount To A Waiver Of Notice Under Section 21 Of The A&C Act: Bombay High Court

Case Title: Malvika Rajnikant Mehta & Ors v. JESS Construction

Citation: 2022 LiveLaw (Bom) 169

The High Court of Bombay held that simply because the arbitration agreement provides for the name of the arbitrator, the same would not amount to a waiver of notice under Section 21 of the A&C Act.

The Single Bench of Justice N.J. Jamadar held that the use of the word "Unless otherwise agreed by the parties" in Section 21 means that the parties can dispense with the requirement of giving a notice of arbitration, however, the mere fact that the parties have named the Arbitrator would not imply that the parties have agreed to waive the requirement of the notice contemplated under Section 21 of the Act.