Delhi High Court Weekly Round Up: February 7 To February 12, 2022

ORDERS/ JUDGMENTS OF THE WEEK

1. A Reliable Testimony Of An Injured Witness Holds Weight Even In The Face Of Procedural Irregularities For Conviction Under S. 307 IPC: Delhi High Court

Case Name: Saleem Khan v. The State (Govt. of GNCT, Delhi)

Citation: 2022 LiveLaw (Del) 92

The Delhi High Court vindicated the case of the State upholding S. 307/324 IPC (attempt to murder/voluntary causing hurt by dangerous weapons) Conviction after confirming the reliability of the testimony of the injured witness. 

Appellant's objections to procedural irregularities such as non-examination of public witness and non-recovery of the weapon of offense by the prosecution were brushed aside in light of the reliable testimony of the injured witness.

Justice Manoj Kumar Ohri highlighted the law on appreciation of injured witness according to a very high degree of reliability.

Thus, the testimony of an injured witness, unless countered by significant discrepancies, is highly reliable, removing all doubts as to the likelihood of the witness falsely implicating the attacker.

2. CPC- Plaint Has To Be Amended Once Application For Amendment Allowed Under Order VI Rule 18: Delhi High Court

Title: THARVINDER SINGH & ORS. v. VIRESH CHOPRA & ANR

Citation: 2022 LiveLaw (Del) 93

The Delhi High Court has observed that once an application for amendment is allowed in terms of Order VI Rule 18 of Code of Civil Procedure, the plaint has to be amended.

Justice Pratibha M Singh also reiterated that in case the amended plaint is not filed within the stipulated time, the plaint cannot be amended thereafter.

The Court was dealing with a revision petition, the wherein the petitioners, who were defendants in the suit, had challenged the impugned order dated 28th July, 2020 by which the respondents (plaintiffs') application under Order VI Rule 17 CPC was allowed and the application of the Defendants under proviso to Order VII Rule 11 CPC was dismissed.

The Plaintiffs were accordingly directed to file the amended plaint, on the next date of hearing or within 15 days upon resumption of normal hearing, whichever was later.

3. Delhi High Court Clarifies Controlled Substances Are Not Affected By The Bar To Bail Under Section 37 Of The NDPS Act

Case Name: TINIMO EFERE WOWO Vs THE STATE GOVT OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 94

In a case involving a foreign national arrested under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court clarified the liability of persons accused of offenses involving controlled substances and the foreigner's right to bail.

In this case, the Petitioner was the source person for Pseudoephedrine drug for a business chain operating in Punjab, Haryana, and Delhi. Holding the drug to be a "controlled substance", Justice Bhatnagar held that the bar of Section 37 is not applicable in this case.

4. Settlements Entered In Industrial Disputes Valid & Legal Even Though Provisions Similar To Order XXIII Rule 3 CPC Do Not Exist In Industrial Disputes Act: Delhi HC

Title: M/S WEARWELL (INDIA) PRIVATE LIMITED v. MOHD. NIZAM

Citation: 2022 LiveLaw (Del) 95

The Delhi High Court has observed that settlements entered into in industrial disputes are legal and valid even though provisions similar to Order XXIII Rule 3 CPC do not exist in Industrial Disputes Act, 1947.

Justice Pratibha M Singh added that settlements can be entered into between Management and Workman even outside the court or conciliation proceedings as is clear from sec. 18(1) Industrial Disputes Act.

"Such settlements would be valid and legal. Upon a settlement being entered into, parties may place the same before the forum concerned and the same can be recorded, upon the Court being satisfied that the terms are legal, just and fair. A settlement under Section 18(1) would be binding on the parties. The usual procedure for recording a settlement would be that parties would file an application and appear before the court and confirm the settlement," the Court said.

5. Order XXXVII CPC- Defendant Entitled To Unconditional Leave To Defend Suit If Substantial Defence Or Triable Issues Shown: Delhi High Court

Title: SMT. NEELAM BATRA v. SHRI V. RAMCHANDRA RAO

Citation: 2022 LiveLaw (Del) 96

The Delhi High Court has observed that under Order XXXVII of the Code of Civil Procedure, a defendant is entitled to the leave to defend the suit if he satisfied the Court that he has a substantial defence or that there are triable issues by way of which the plaintiff is not entitled to leave to sign judgment.

Justice Suresh Kumar Kait made the following observations:

"Order XXXVII CPC was included in the Code of Civil Procedure with the intent to allow the plaintiff who has an undisputed liquidated claim against the defendant, who has no substantial defence and/or raises no genuine triable issues to obtain a quick and summary judgment without pointlessly being kept away from what is due, in respect of any monetary dues, to recover the dues swiftly by a summary procedure instead of taking the extensive route of a regular suit."

"But if the defendant satisfies the court that he has a substantial defence or satisfy the Court that there are triable issues by way of plea the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit."

6. Recourse To S.14 Arbitration Act Not Available In Respect Of Challenge To Arbitrator U/S 12(1): Delhi High Court

Case Title: Union of India v. M/S APS Structures Pvt. Ltd, OMP (T) (Comm) 2/2022

Citation: 2022 LiveLaw (Del) 97

The Delhi High Court has held that recourse to Section 14 (failure or impossibility to act) of the Arbitration and Conciliation Act, 1996 is not available in respect of any challenge to the appointment of arbitrator under Section 12(1) of Act.

Section 12 provides for 'grounds of challenge', whereas sub section (1) provides that an arbitrator must disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.

Justice Vibhu Bhakru has held,

" It is well settled that recourse to Section 14 of the A&C Act is not available in respect of any challenge to the arbitrator under Section 12(1) of the A&C Act."

7. Recourse To S.14 Arbitration Act Not Available In Respect Of Challenge To Arbitrator U/S 12(1): Delhi High Court

Case Title: Manushi Sangathan v. Delhi Fire Service

Citation: 2022 LiveLaw (Del) 98

The Delhi High Court refused to entertain the writ petition filed by Manushi Sangathan, an organization representing 67 hawkers and vendors, challenging the mock drill report submitted by Delhi Fire Service in the suo moto case registered last year following a fire incident at a building in the Nehru Place market.

The Bench comprising of Justice Manmohan and Justice Navin Chawla, which is already examining the matter in the suo moto case, chided the Petitioner, stating,

" You are committing an abuse of process by approaching this Court with multiple proceedings. You can't put fear of God in public authorities by filing by abuse of law".

The mock drill report stated that the time taken by various agencies in reaching the spot was too high thereby indicating that there were significant hindrances due to heavy pedestrian movement, heavy traffic, hawkers and parking problems. Accordingly, the report had recommended that the place may be made a hawker free zone.

8. Institutions Can't Cancel Enrolment Of 'Erroneously Admitted' Students Mid-Course In Absence Of Any Wrongdoings On Their Part: Delhi High Court

Case Title: Abha George & Ors Versus All India Institute Of Medical Sciences (AIIMS) & Anr.

Citation: 2022 LiveLaw (Del) 99

The Delhi High Court has allowed a petition filed by students of MSc Nursing at the All India Institute of Medical Sciences (AIIMS), challenging an Office Memorandum (OM) of the Institution canceling their admission.

The students had been admitted based on the eligibility conditions in the Prospectus of AIIMS and offer letters. However, 2 months into the course, the Institution decided to cancel their admissions as it had released the qualifying examination results later than the due date. Thus, the students approached the Court, praying for relief.

Noting that the students had been studying for two months into the course, Justice Prateek Jalan ruled that the Institution could not now hold the students responsible for the University's shortcomings.

9. Legal Representatives Entitled To Motor Accident Claim: Delhi HC Upholds Compensation Given To Children From Deceased's First Marriage

Case Title: UNITED INDIA INSURANCE CO.LTD v. FARIDA SAROSH POONAWALA AND ORS

Citation: 2022 LiveLaw (Del) 100

Reiterating that legal representatives of a person are entitled to motor accident claim, the Delhi High Court has upheld the compensation given to two children from the deceased's first marriage.

Justice Sanjeev Sachdeva was dealing with a plea impugning the award dated 22.03.2021 whereby the detailed accident report was disposed of and compensation was awarded to the children.

It was the case of the appellant, Insurance company, that the tribunal had erred in awarding compensation to two children of the deceased from his first marriage. It was submitted that they cannot be treated as dependent family members of the deceased.

It was also argued that the tribunal had erred in taking the monthly salary of the deceased at Rs. 41,807 whereas as per the claim of the wife of the deceased the salary was only Rs. 35,000 per month.

10. "No Discrimination": Delhi High Court Dismisses Pleas Challenging Allowance Reduction For Air India Employees

Case Title: ALL INDIA AIRCRAFT ENGINEERS ASSOCIATION & ANR.

Citation: 2022 LiveLaw (Del) 101

The Delhi High Court has dismissed pleas challenging office order by which allowances of the Air India employees were reduced, observing that there was no discrimination rather there was a justifiable ground in reducing the allowances for the pilots and engineers.

Justice V Kameswar Rao said that it was for the Centre and Air India to determine, by taking into account relevant considerations, what ought to be the appropriate reduction in allowances.

"As long as the reduction is not palpably arbitrary, the scope of judicial review is very limited," the Court said.

The Court was dealing with a plea filed by two associations namely India Aircraft Engineers' Association and Air India Aircraft Engineers' Association.

11. Minor Child Entitled To Claim Maintenance For His Upbringing By Father, Not Bound By Divorce Settlement: Delhi High Court

Title: FATEH SAHARAN v. ROHIT SAHARAN

Citation: 2022 LiveLaw (Del) 102

The Delhi High Court has observed that a minor child is entitled to claim maintenance for his upbringing by the father and that such a child is not bound by the divorce settlement regarding maintenance between his parents.

Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with an appeal filed by a minor child being aggrieved by the grant of interim maintenance by the Family Court at Rs. 15,000 per month.

The High Court had vide order dated April 22, 2021 enhanced the said maintenance amount and directed the father to pay Rs. 25,000 per month to the minor, considering that his school fee itself was in that range.

Observing that when the mother of the minor child obtained divorce by mutual consent, the maintenance was fixed in respect of the child at Rs. 5,000 per month, the Court said:

"It goes without saying that the appellant being a minor, is not bound by that settlement, and he is entitled to claim maintenance for himself for his upbringing from the respondent i.e., his father."

12. Pre-Trial Detention Impacts Right Of Accused To Defend Himself, Affects Fair Trial Guaranteed Under Article 21: Delhi High Court

Case Title: VIKAS CHAWLA v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 103

Noting that the consequences of pre-trial detention are grave in nature, the Delhi High Court has observed that keeping an undertrial in custody would impact his right to defend himself during trial and that he will be clearly denied the right to a fair trial which is guaranteed under Article 21 of the Constitution.

Justice Chandra Dhari Singh made the observation while granting bail to one Vikas Chawla accused of cheating HDFC Bank as well as BMW Financial Services to the tune of several crores of rupees by using forged and fabricated documents and emails.

Senior Advocate Vikas Pahwa appearing for the petitioner submitted that the petitioner was arrested on 5th August, 2021 and was in custody since then. It was submitted that the investigation of the case was completed and Chargesheet was also filed. He also argued that all the incriminating evidences and materials against the petitioner were documentary in nature and that there was no chances of the petitioner tampering with the same.

13. "Use Of Bank's Seal Unauthorisedly A Matter Of Enormous Gravity": Delhi High Court Upholds Workman's Punishment Of Compulsory Retirement

Title: THE CHIEF MANAGER PUNJAB AND SIND BANK v. SHRI PARAMJIT SINGH NANDA

Citation: 2022 LiveLaw (Del) 104

The Delhi High Court has upheld the punishment of compulsory retirement awarded to a workman, guilty of forgery, fabrication of bank statements and other forms of misconduct, observing that the use of a bank's seal unauthorisedly is a matter of enormous gravity which cannot be simply brushed under the carpet.

Justice Pratibha M Singh also observed that forging the signatures of a colleague or even turning a blind eye to such forgery by a third party, and reaping benefits from the same is wholly impermissible.

The Court allowed the petition filed by Punjab and Sind Bank challenging the Award dated 9th October, 2019 passed by the Central Government Industrial Tribunal cum Labour Court wherein the punishment of compulsory retirement imposed on the Respondent Workman was unjustified and unwarranted.

14. Authority Must Have Valid Reasons For Accepting/ Rejecting Bids Even If Tender Clause Stipulates Otherwise: Delhi High Court

Case Title: PKF Sridhar and Santhanam v. Airports Economic Regulatory Authority of India. WP (C ) 12385/2021

Citation: 2022 LiveLaw (Del) 105 

The Delhi High Court recently observed that merely because a clause in the tender stipulates that the bids may be accepted or rejected without assigning any reasons, does not mean that the tender authority can act arbitrarily. It must have valid reasons for exercising its discretion.

The division bench comprising of Justices Vipin Sanghi and Jasmeet Singh said,

" No doubt, the tender-inviting authority cannot act arbitrarily or whimsically, or out of mala fides in the matter of awarding or cancelling the tendering process. Even the clause which stipulates that they may not assign reasons for not accepting any bid, or rejecting the bids, does not mean that they should not have any valid reasons to justify their conduct."

The petitioner had preferred the present writ petition being aggrieved by the cancellation of the tender in question, issued by the respondent-Airports Economic Regulatory Authority of India.

15. Objections Against Enforcement Of Foreign Arbitral Award Can't Be Filed In A Piecemeal Manner: Delhi High Court Imposes 1 Lakh Cost

Case Title: TAQA India Power Ventures Private Limited and Ors. vs NCC Infrastructure Holdings Limited, OMP (EFA) (Comm.) 1/2018

Citation: 2022 LiveLaw (Del) 106

The Delhi High Court has held that a Judgement Debtor cannot be permitted under Section 48 of the Arbitration and Conciliation Act, 1996, to file its objections against enforcement of an arbitral award in a piecemeal manner.

Justice Vibhu Bakhru held,

" The respondent cannot file its opposition in a piecemeal manner. It is seen that the present petition was filed in the year 2018 and has been pending since. Sufficient opportunity was granted to the respondent to file its objections, however, the respondent has limited its objection only on the ground of territorial jurisdiction of this Court."

The respondent after completing his arguments regarding maintainability of the execution petition had submitted that in the event the Court finds that the petition is maintainable, the respondent should be given an opportunity to file its objection on merits.

16. Accused Can't Be Kept In Custody Indefinitely: Delhi High Court Grants Bail In Rs. Two Crore Cheating Case

Case Title: NANCY GILL v. STATE

Citation: 2022 LiveLaw (Del) 107

The Delhi High Court has observed that an accused person cannot be kept in custody indefinitely when the right to speedy trial is a concomitant of Article 21 of the Constitution of India.

Justice Subramonium Prasad observed thus:

"When right to speedy trial is a concomitant of Article 21 of the Constitution of India, it can be presumed that one the facets would also be that the accused cannot be kept in custody indefinitely."

The Court was dealing with a plea filed by a woman seeking bail in an FIR registered under sec. 420 of the Indian Penal Code.

The complainant, a jeweler by profession, had alleged that the petitioner, who was his customer, had dishonestly represented that the Prime Minister of India had started a programme wherein the King of Brunei wanted to start 14 Super Specialty Hospitals in different parts of India, with the first opening in Ahmedabad, Gujrat.

17. Right To Speedy Trial Can't Remain Dead Letter: Delhi High Court Grants Bail To Person Accused With Commercial Quantity Ecstasy

Case Title: Mahesh v. State

Citation: 2022 LiveLaw (Del) 108

"Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India, and the same needs to be given effect by this Court in letter and in spirit, else it will remain as a dead letter of law," the Delhi High Court observed on Tuesday.

The remarks were made while granting bail to an accused under the Narcotics, Drugs and Psychotropic Substances Act, 1985, languishing in jail for more than four years.

Justice Chandra Dhari Singh was hearing the regular bail application filed by Mahesh, who was allegedly found to be in possession of 20 grams of Ecstasy (commercial quantity).

The investigation against him was complete and chargesheet was also filed before the Sessions Court. Charges were framed against him in November 2018 under Sections 22 and 29 of the NDPS Act.

The High Court noted that till date, out of a total of 14 witnesses only two witnesses have been examined, and as such there is no probability of the trial being concluded in the near future.

18. Rough Estimation Of Prosecutrix's Age Given By Her Father Can't Be Used To Rebut Documentary Evidence: Delhi HC Upholds POCSO Conviction

Case Title: Mohd. Afsar v. State, Crl. A. 274/2020

Citation: 2022 LiveLaw (Del) 109

The Delhi High Court recently refused to accept the rough estimation of age, given by a rape victim's father, to determine whether the offences under the POCSO Act are attracted.

Justice Mukta Gupta observed that to determine the age of a victim, suspected to be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 applies. It provides that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school.

In the instant case, the Bench noted that as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years.

Thus, even if in the cross examination, her father had given a rough approximation of her age, the same cannot be taken as an exact estimation of the date of birth of the prosecutrix. 

19. Reinstatement In Service Cannot Flow As A Matter Of Right When Acquittal Is Not An Honourable Acquittal: Delhi High Court

Title: JAHAN SINGH v. TRIBAL COOPERATIVE MARKETING DEVELOPMENT FEDERATION OF INDIA LTD TRIFED AND ANR

Citation: 2022 LiveLaw (Del) 110

Dismissing a petition filed by an Accountant challenging his dismissal from service on being convicted in a criminal case, the Delhi High has observed that reinstatement in public service cannot flow as a matter of right where the acquittal of such person is not an honourable acquittal.

The petitioner who was working at the post of Accountant Grade I had approached the Court challenging the order dated March 19, 2013 whereby he was dismissed from service under Rule 19(i) of the CCS (CCA) Rules, 1965 based upon his conviction under sec. 7 and 15 of the Prevention of Corruption Act, 1988 on the ground that the petitioner tried to extract a bribe for processing the release of an amount outstanding to a vendor.

The High Court had then vide order dated May 4, 2020 acquitted and exonerated the petitioner from all charges.

IMPORTANT WEEKLY UPDATES

1. Delhi High Court Appoints Administrator To Run Table Tennis Federation Of India In Manika Batra's Plea

The Delhi High Court appointed an administrator to run the affairs of Table Tennis Federation of India (TTFI) thereby suspending the operation of it's Executive Committee after observing that prima facie, conduct of the federation was blameworthy.

Justice Rekha Palli hinted that the administrator appointed is likely to be a retired Chief Justice of a High Court. The Court said that it will also be appointing two or three persons along with the administrator, while adding that there names will be reflected later in the order.

The Court was dealing with a plea filed by Table Tennis player Manika Batra, challenging the Rules issued by Table Tennis Federation Of India (TTFI) which makes attending of National Coaching Camp compulsory for being selected for international events.

2. Amazon- Future Disputes: Delhi High Court To Commence Hearing On February 24

The Delhi High Court said that it will commence hearing in a bunch of pleas pertaining to disputes between Amazon and Future Group, over the latter's deal with Reliance Retail, on February 24.

A single judge bench comprising of Justice C Hari Shankar said that it will first be hearing the appeals filed by the Future Group and then proceed to hear other matters.

While noting the possible and relevant issues between the parties, the Court clarified that it was only jotting out the facts to ascertain the manner in which hearing in the pleas are to be commenced.

The Judge added that it had not even tentatively applied its mind while doing the same and that it has not expressed any opinion on the issues between the parties.

3. Whether 2012 Guidelines To Prevent Detention Of Juveniles In Adult Jails Complied? Delhi High Court Seeks Report

The Delhi High Court directed the Secretary of Delhi State Legal Services Authority ('DSLSA') to submit a report within two weeks on implementation and compliance of the 2012 guidelines and directions regarding the juveniles and children in conflict with law who are lodged in adult jails.

A coordinate bench of the High Court in the case titled Court On Its Own Motion v. Dept. Of Women And Child vide order dated May 11, 2012 had issued a slew of directions to ensure that such juveniles are not remanded and kept in adult jails.

In paragraph 19 of the said judgment, the Court had directed the police authorities to submit a report to the Court in every six months regarding the implementation of the said directions with copies to be given to NCPCR and DSLSA.

4. Illegal Encroachment In Chandni Chow Area: High Court Orders Personal Presence Of Commissioners Of Delhi Police, NDMC

Observing that no desired results were achieved by the efforts of the authorities concerned to permanently end the illegal encroachment by hawkers and vendors in city's Chandni Chowk area, the Delhi High Court directed the personal appearance of Commissioners of Delhi Police and North Delhi Municipal Corporation.

A Bench of Justice Vipin Sanghi and Justice Jasmeet Singh was dealing with a plea concerning illegal encroachments in Chandni Chowk area, being a no hawking and no vending zone.

"Looking to the continuing states of affairs which show that ad hoc actions have been taken for selective removal of encroachments by the MCD and Delhi Police but same has not yet yielded desired result of permanently ending the encroachment by hawkers and vendors in the no-hawking-no-vending zone of Chandni Chowk, we are of the view that time has come for this court to require the presence of Commissioner of Police, Delhi as well as Commissioner North Delhi Municipal Corporation to explain how they propose to deal with the ongoing menace," the Court ordered. 

5. Indian Medical Students Unable To Rejoin Colleges In China Amid Covid-19 Travel Curbs: Delhi HC Issues Notice To MEA, NMC

About 150 Indian medical students enrolled in China have moved the Delhi High Court, seeking permission to pursue their physical training here, as they are unable to travel to China amid Covid-19 travel restrictions.

The matter came up this week before the division bench of Chief Justice DN Patel and Justice Jyoti Singh, which has issued notices to the respondents including Ministry of External Affairs and the National Medical Commission.

The plea filed through Advocates PV Dinesh, Ashwini Kumar Singh and Bineesh K. claims that careers of about 18,000 students is stake as they are stranded in India due to the pending restrictions imposed by Chinese government.

6. "Expression Of Opinion Or Criticism Is Not Defamation": Newslaundry Tells Delhi High Court In TV Today's Suit

Online news portal Newslaundry told the Delhi High Court that expression of an opinion does not amount to defamation, thereby opposing the Rs. 2 crores copyright infringement and defamation suit filed against it by TV Today, which owns channels India Today and AajTak.

Senior Advocate Saurabh Kirpal appearing for Newslaundry made three fold submissions before a single bench of Justice Asha Menon.

Firstly, he argued that the cause of action as disclosed in the plaint was extremely unclear and hence it was not possible for the Court to decide interim application on the basis of the said pleadings.

Secondly, he argued that even assuming that it was possible to consider some injunctive relief, TV Today had disentitled itself from any interim relief because of the "misleading documents" filed by it.

7. Marital Rape Exception: Delhi High Court Grants Two Weeks Time To Centre For Deciding Its Stand

The Delhi High Court has granted two weeks' time to the Central Government to decide and clarify its stand in a bunch of pleas challenging the exception of Marital rape under Section 375 of the Indian Penal Code.

The development came after Solicitor General of India, Tushar Mehta referred to the recent additional affidavit filed by the Centre wherein it had reiterated the request to defer hearing in view of the pending consultative process.

Mehta told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar that time was sought for providing a stipulated timeline within which the Central Government would conduct an effective consultative process in order to assist the Court on the issue.