Bombay High Court Weekly Roundup: June 27 - July 3, 2022

Ocean Sparkle Limited. V Oil and Natural Gas Corporation Ltd. And anr; 2022 LiveLaw (Bom) 233

Ajay Vaishampayan v. Union of India; 2022 LiveLaw (Bom) 234

Adani Ports and Special Economic Zone Limited Versus The Board of Trustees of Jawaharlal Nehru Port Authority and Ors.; 2022 LiveLaw (Bom) 235

Ashish Ashok Chakor v. State of Maharashtra; 2022 LiveLaw (Bom) 236

Mohammad Raisuddin v The National Investigating Agency and anr; 2022 LiveLaw (Bom) 237

Master Dhairya Pritesh Bansod vs. The Principal, Mothers Pet Kindergarten, Nagpur and ors.; 2022 LiveLaw (Bom) 238

The Board of Control for Cricket in India Versus Regional Director Employees State Insurance Corporation and anr; 2022 LiveLaw (Bom) 239

'A' versus State of Maharashtra and Anr.; 2022 LiveLaw (Bom) 240

1. Undisputed Claims Can't Be Set-Off Against Unliquidated Damages That Are Not Ascertained: Bombay High Court

Case Title : Ocean Sparkle Limited. V Oil and Natural Gas Corporation Ltd. And anr

Citation: 2022 LiveLaw (Bom) 233

The Bombay High Court recently has observed that set-off of unliquidated damages that are not ascertained or admitted against an undisputed claim is not tenable.

Single judge G.S. KULKARNI reiterated that a Section 9 Court would not be unduly bound by procedural law contained in the Code of Civil Procedure, 1908, the underlying principle being to make arbitration an effective form of dispute resolution; and that a performance bank guarantee ("PBG") cannot be invoked contrary to the provision for its invocation in the PBG itself.

2. Bombay High Court Dismisses Plea Challenging PoP Ban For Sculpting Idols

Case Title: Ajay Vaishampayan v. Union of India

Citation: 2022 LiveLaw (Bom) 234

The Bombay High Court on Monday dismissed a PIL challenging the ban on use of Plaster of Paris (POP) for making Ganesh idols.

PIL petitioner Ajay Vaishampayan, an activist, had claimed that PoP was banned without any scientific tests on its effect on water. And Shadu clay idols, used as an alternate option, were more harmful for the environment.

However, a division bench of Chief Justice Dipankar Datta and Justice MS Karnik noted that the Supreme Court had already dismissed an appeal against the National Green Tribunal's order, thereby upholding the ban.

3. Bombay High Court Imposes Rs. 5 Lakh Cost On Adani Port In Challenge To Disqualification In JNPA Tender

Case Title: Adani Ports and Special Economic Zone Limited Versus The Board of Trustees of Jawaharlal Nehru Port Authority and Ors.

Citation: 2022 LiveLaw (Bom) 235

The Bombay High Court on Monday dismissed Adani Ports and Special Economic Zone Limited's petition challenging its disqualification in the tender for upgradation of the container terminal in Navi Mumbai by the Board of Trustees of Jawaharlal Nehru Port Authority (JNPA).

A division bench of Chief Justice Dipankar Datta and Justice MS Karnik said the plea was "non-meritorious" and imposed costs of Rs. 5 lakh, payable to JNPA.

4. Friendly Relations Not Consent To Establish Physical Relations: Bombay High Court

Case Title: Ashish Ashok Chakor v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 236

The Bombay High Court recently observed that a girl merely being friendly with a boy doesn't allow him to misconstrue it as her consent to establish a sexual relationship with her and rejected the anticipatory bail application of a man accused of impregnating a woman under the pretext of marriage.

Justice Bharati Dangre rejected the pre-arrest bail plea filed by one Ashish Chakor accused of raping a woman under the pretext of marriage and booked under sections Sections 376(2)(n), 376(2)(h) and 417 of the IPC.

5. Discussions About Working For Islam Not Incriminating: Bombay High Court Grants Bail To Man Accused Of IS Links After 7 Years Of Incarceration

Case Title : Mohammad Raisuddin v The National Investigating Agency and anr

Citation: 2022 LiveLaw (Bom) 237

The Bombay High Court has granted bail to a man from Parbhani, accused of taking an oath of allegiance to the banned terror organisation Islamic State and booked under the Unlawful Activities (Prevention) Act.

A division bench of Justices Revati Mohite Dere and VG Bisht granted bail to Mohammad Raisuddin noting that laboratories had given divergent views connecting "oath" document to the handwriting of the accused. Moreover, NIA did not tender the opinion in the accused's favour for over two years.

Even otherwise, the Oath declaring a former leader of the IS as the "caliph" of Muslims was not prima facie incriminating, the court said.

6. No Absolute Right Under RTE Act For Admission To Unaided Minority Schools : Bombay High Court

Case Title: Master Dhairya Pritesh Bansod .vs. The Principal, Mothers Pet Kindergarten, Nagpur and ors.

Citation: 2022 LiveLaw (Bom) 238

A student doesn't have a "right" to admission to a private un-aided minority school under the Right of Children to Free and Compulsory Education Act, 2009 and granting admission is the absolute discretion of the school, the Bombay High Court has held.

The court cited the Supreme Court judgement in Society for Unaided Private Schools of Rajasthan v. Union of India wherein it was held that a Private Un-aided Minority School is not covered by the Right of Children to Free and Compulsory Education Act, 2009.

7. ESI Act Applicable To BCCI As Its Activities Are Commercial In Nature : Bombay High Court

Case Title: The Board of Control for Cricket in India Versus Regional Director Employees State Insurance Corporation and anr

Citation: 2022 LiveLaw (Bom) 239

The Bombay High Court has upheld an order holding that the nature of activities conducted by the Board Of Control for Cricket in India are commercial activities under the ESI Act making the regulatory body liable to pay its employees accordingly.

Justice Bharati Dangre, in a judgement passed last week, dismissed an appeal filed by the BCCI and upheld the finding of the Employee Insurance Court (ESI Court) that the Board was covered under the notification dated 18/9/1978 issued under the provision of Section 1(5) of the Employee State Insurance (ESI) Act by the Maharashtra Government.

8. Can't Force Rape Victim To Mother A Child: Bombay High Court Allows Termination Of Minor's 16 Week Pregnancy

Case Title: 'A' versus State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 240

The Bombay High Court recently allowed the termination of a 16 weeks' pregnancy of a minor who was a victim of sexual abuse and was also in custody at an Observation Home for a crime of murder under section 302 of the Indian Penal Code (IPC).

A bench of Justices A.S. Chandurkar and Urmila Joshi-Phalke noted that the Apex Court has observed that reproductive choice is an insegragable part of a woman's personal liberty as envisaged under Article 21 of the Constitution of India. "She cannot be forced to give birth to a child...She has a choice to give birth to the child or not," it observed.