Delhi High Court Weekly Round-Up: March 13 To March 19, 2023

Citations 2023 LiveLaw (Del) 226 to 2023 LiveLaw (Del) 252

NOMINAL INDEX

MS. X THR. HER NATURAL GURADIAN /FATHER AND ANR. 2023 LiveLaw (Del) 226

M/s Balaji EXIM vs Commissioner, CGST and Ors. 2023 LiveLaw (Del) 227

M/s Kuldeep Kumar Contractor vs. Hindustan Prefab Limited 2023 LiveLaw (Del) 228

Social Jurist, A Civil Rights Group v. Bar Council of India & Ors. 2023 LiveLaw (Del) 229

A S RAWAT v. DAWA TASHI 2023 LiveLaw (Del) 230

Amazing Research Laboratories v. Krishna Pharma 2023 LiveLaw (Del) 231

M/s. Modi Construction Company vs. M/s Ircon International Ltd 2023 LiveLaw (Del) 232

Zahir Ahmed vs. Government of NCT Of Delhi Through District Magistrate & Ors. 2023 LiveLaw (Del) 233

SANJAY MALIK @ SANT SEVAK DAS v. THE STATE & ANR. 2023 LiveLaw (Del) 234

Rohit Verma v. NHRC 2023 LiveLaw (Del) 235

DR. SUBRMANIAN SWAMY v. UNION OF INDIA & ORS. 2023 LiveLaw (Del) 236

Court on Its Own Motion vs. Govt of NCT of Delhi & Ors. 2023 LiveLaw (Del) 237

Title: DOLBY INTERNATIONAL AB v. THE ASSISTANT CONTROLLER OF PATENTS AND DESIGNS 2023 LiveLaw (Del) 238

MAHAVIR SR. MODEL SCHOOL AND ANR. v. DIRECTORATE OF EDUCATION 2023 LiveLaw (Del) 239

Tejashwi Prasad Yadav v. Central Bureau of Investigation 2023 LiveLaw (Del) 240

SUPERTECH URBAN HOME BUYERS ASSOCIATION (SUHA) FOUNDATION Vs UNION OF INDIA & ORS 2023 LiveLaw (Del) 241

PARNITA KAPOOR & ORS. v. AM 2023 LiveLaw (Del) 242

Chadha Motor Transport Company Pvt Ltd vs. Barinderjit Singh Sahni 2023 LiveLaw (Del) 243

Prime Interglobe Pvt Ltd vs. Super Milk Products Pvt Ltd 2023 LiveLaw (Del) 244

Kewal Krishan Kumar v. ED 2023 LiveLaw (Del) 245

PC Commissioner of Income Tax vs. M/s Fish Poultry and Egg Marketing Committee 2023 LiveLaw (Del) 246

Ashwini Kumar Upadhyay v. Union of India & Ors. 2023 LiveLaw (Del) 247

DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED vs DELHI METRO RAIL CORPORATION LTD 2023 LiveLaw (Del) 248

DEVAS EMPLOYEES MAURITIUS PVT. LTD v. ANTRIX CORPORATION LIMITED & ORS 2023 LiveLaw (Del) 249

KESHAW SANYASI GAWO SHEWASHARAM v. GOVT OF NCT AND ANR 2023 LiveLaw (Del) 250

Bawana Infra Development Pvt Ltd vs. Delhi State Industrial & Infrastructure Development Corporation Limited (DSIIDC) 2023 LiveLaw (Del) 251

Yash Deep Builders v. Sushil Kumar Singh 2023 LiveLaw (Del) 252

Delhi High Court Allows Minor To Terminate Pregnancy, Even As Father Fails To Come Forward To Sign Consent Form

Title: MS. X THR. HER NATURAL GURADIAN /FATHER AND ANR.

Citation: 2023 LiveLaw (Del) 226

The Delhi High Court has allowed a 16-year-old minor to undergo medical termination of pregnancy after her father, who had earlier gave consent in the court for the procedure, failed to come forward to fulfil the formality of signing the consent form.

Keeping in view the fact that only two or three days were left for the minor to complete 24 weeks of pregnancy, Justice Dinesh Kumar Sharma allowed the Superintendent of Nirmal Chhaya Complex who was appointed as victim’s guardian by the Child Welfare Committee to sign the consent form.

The victim was in the custody of Nirmal Chhaya Complex since October 17 last year.

Applications For Refund Of ITC Cannot Be Denied On Mere Suspicion: Delhi High Court

Case Title: M/s Balaji EXIM vs Commissioner, CGST and Ors.

Citation: 2023 LiveLaw (Del) 227

The Delhi High Court has held that applications for refund of Input Tax Credit (ITC) cannot be rejected merely on suspicion and without any cogent material.

The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan directed the department to initiate a refund of ITC of Rs. 72,03,961/-based on the goods that the petitioner has exported.

A ‘No-Claim Declaration’ Given By Party Would Not Extinguish Its Remedy To Invoke Arbitration: Delhi High Court

Case Title: M/s Kuldeep Kumar Contractor vs. Hindustan Prefab Limited

Citation: 2023 LiveLaw (Del) 228

The Delhi High Court has ruled that while dealing with a petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), if the arbitration clause between the parties in the Special Conditions of Contract (SCC), which does not contain the mandate of a pre-arbitral procedure, is claimed to be overridden by another arbitration clause existing in the General Conditions of Contract (GCC), which mandates following a pre-arbitral mechanism, the same must be adjudicated by the Arbitral Tribunal as per the Kompetenz-Kompetenz principle.

Representation On Making RTE Act Compulsory Subject In All Law Schools Will Be Looked Into: BCI To Delhi High Court

Title: Social Jurist, A Civil Rights Group v. Bar Council of India & Ors.

Citation: 2023 LiveLaw (Del) 229

The Bar Council of India (BCI) told the Delhi High Court that it will look into and decide a representation for making Right of Children to Free and Compulsory Education Act, 2009, or RTE Act, a compulsory subject for students in all law schools, within a reasonable time.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad disposed of a public interest litigation moved by NGO Social Jurist after the submission.

Restricting Right To Information Only To Citizens Contrary To Constitution, RTI Act; No Absolute Bar On Disclosure To Foreigners: Delhi High Court

Title: A S RAWAT v. DAWA TASHI

Citation: 2023 LiveLaw (Del) 230

Observing that restricting the right to information only to citizens would be contrary to the Constitution of India and Right to Information Act, the Delhi High Court has ruled that Section 3 of the RTI Act would have to be read as a "positive recognition of the right in favor of citizens but not as a prohibition against non-citizens."

Under Section 3 of the RTI Act, "all citizens" have the right to information.

“Considering that the RTI Act also accords information relating to life or liberty an important and distinct position, it would be inherently contradictory to hold that only citizens are entitled to the Right to Information. Life or liberty could also relate to non-citizens including foreigners, NRI’s, OCI card holders and such other persons,” Justice Prathiba M Singh ruled.

An Arbitration Award In Violation Of The Provisions Of The Indian Contracts Act Is Patently Illegal: Delhi High Court

Case Title: Amazing Research Laboratories v. Krishna Pharma

Citation: 2023 LiveLaw (Del) 231

The Delhi High Court has held that an arbitration award that is passed in violation of the provisions of the Indian Contracts Act, 1872 would be liable to be set aside as suffering from patent illegality.

The bench of Neena Bansal Krishna partially set aside an arbitration award that was passed in contravention of Sections 59-61 of the Indian Contracts Act, 1872. The Court explained the law of apportionment of funds vis-à-vis a running and non-mutual account.

Arbitrator Can Declare Terms Of Contract Null, Even If No Declaration Is Sought By The Party In Its Pleadings: Delhi High Court

Case Title: M/s. Modi Construction Company vs. M/s Ircon International Ltd

Citation: 2023 LiveLaw (Del) 232

The Delhi High Court, while dealing with a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), has rejected the contentions raised by the petitioner that the Award of the Majority Tribunal declaring the Clause providing for compound interest as null, was perverse since there were no pleadings made by the opposite party in its Statement of Defence seeking the said declaration.

While holding that it is within the domain of the Arbitrator to interpret the terms of the contract, the bench of Justice Neena Bansal Krishna upheld the Majority Award and the findings made by the Majority Tribunal that since the relevant Clause providing for compound interest did not specify the rate of interest, the entire clause was void under Section 29 of the Indian Contract Act, 1872.

Conversion Of Public Places Of Worship Into Residences By Caretakers Is Contrary To Law: Delhi High Court Orders Waqf Board To Secure Mosque Property

Case Title: Zahir Ahmed vs. Government of NCT Of Delhi Through District Magistrate & Ors.

Citation: 2023 LiveLaw (Del) 233

The Delhi High Court has ruled that conversion of public places of worship into residences and their occupation by persons, who take care of the places, is contrary to law.

The Court was dealing with a writ petition filed by the one Zahir Ahmed, who came into occupation of a property located next to the Masjid Zabta Ganj in Delhi, due to his father’s position as an Imam of the mosque. Ahmed filed a writ petition challenging the eviction order passed by the Sub Divisional Magistrate (SDM), Chanakyapuri. The possession of the property has already been handed over to Delhi Waqf Board.

'Woman's Consent To Stay In A Man's Company No Basis To Infer She Also Consented To Sexual Liaison': Delhi High Court

Title: SANJAY MALIK @ SANT SEVAK DAS v. THE STATE & ANR.

Citation: 2023 LiveLaw (Del) 234

The Delhi High Court has said that merely because a woman consents to be in the company of a man, “regardless of for how long”, can never be the basis to infer that she had also consented to “sexual liaison” with him.

Observing that a distinction needs to be articulated between a prosecutrix “consenting to a situation” vs. “consenting to sexual liaison,” Justice Anup Jairam Bhambhani said:

“Though it is universally accepted that consent given under force, coercion or duress is no consent in law since it is not free or volitional, in many cases it is necessary to examine consent in a more granular manner, with the awareness that substantivity of consent may also be vitiated by several other circumstances that erode the freedom of choice. Several circumstances, including emotional exploitation, may vitiate the substantivity of consent.”

Take Decision Within 6 Months On Complaint Accusing West Bengal Police Of Committing Excesses In Nabanna Chalo Rally: Delhi High Court Directs NHRC

Case Title: Rohit Verma v. NHRC

Citation: 2023 LiveLaw (Del) 235

The Delhi High Court has directed the National Human Rights Commission (NHRC) to decide within six months a complaint filed over alleged police atrocities by the West Bengal police during Nabanna Chalo rally organised by Bharatiya Janata Yuva Morcha in October 2020.

Justice Prathiba M Singh disposed of a petition moved by one Rohit Verma, a BJP volunteer, aggrieved by the Commission's inaction in responding to his complaint.

‘No Foreign Investment Today, Prayers Have Become Purely Academic’: Delhi High Court On Subramanian Swamy’s Plea Against 2013 Tata-AirAsia Deal

Title: DR. SUBRMANIAN SWAMY v. UNION OF INDIA & ORS.

Citation: 2023 LiveLaw (Del) 236

The Delhi High Court has disposed of a public interest litigation filed by BJP leader Subramanian Swamy against the Foreign Investment Promotion Board (FIPB) clearance granted by Union of India in 2013 in favour of a Malaysian Company Air Asia Investment Limited.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad closed the proceedings in view of the fact that there is no foreign investment as of today and the prayers sought in the petition have become purely academic.

Proper System Available To Redress Grievances Of Home Buyer, Not Bank’s Responsibility To Get Project Completed: Delhi High Court

Case Title: Court on Its Own Motion vs. Govt of NCT of Delhi & Ors.

Citation: 2023 LiveLaw (Del) 237

The Delhi High Court has said that banks cannot be loaded with the responsibility of getting the real estate projects completed and they cannot assume the role of a builder to complete the project.

The division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that banks "can only give a red flag" to the borrower for misutilization of funds by the builder, and it is for the lenders to take appropriate legal action by approaching the civil forum to ensure that the project is completed on time.

Delhi High Court Pulls Up Assistant Controller For Cut-And-Paste Order, Says Grant Or Rejection Of Patent A Serious Matter

Title: DOLBY INTERNATIONAL AB v. THE ASSISTANT CONTROLLER OF PATENTS AND DESIGNS

Citation: 2023 LiveLaw (Del) 238

The Delhi High Court has observed that the orders refusing applications for grant of a patent cannot be passed mechanically and that any decision to grant or refuse a patent has to be informed by “due application of mind” which must be reflected in the decision.

Pulling up an Assistant Controller of Patents & Designs for passing a “copy-paste” order while refusing an application for grant of patent, Justice C Hari Shankar said that such orders do little justice to the solemn functions which have been entrusted on officers in the office of Controller of Patents and Designs.

Private Schools Dependent On Fee Collected By Them, Maintaining Surplus Can’t Be Construed As Commercialization Of Education: Delhi High Court

Title: MAHAVIR SR. MODEL SCHOOL AND ANR. v. DIRECTORATE OF EDUCATION

Citation: 2023 LiveLaw (Del) 239

Observing that private unaided schools are entirely dependent on the fee collected by them, the Delhi High Court on Wednesday ruled that planning and maintaining a surplus by such schools, per se, cannot be construed as commercialisation of education.

Emphasising that it is important for private unaided schools to maintain a surplus for further development and honing of their educational facilities and services, Justice Sanjeev Narula said:

“The right of unaided schools to determine fee to be charged from students cannot be faltered purely only on account of presence of reasonable surplus in their books of account.”

Tejashwi Yadav To Appear Before CBI In Delhi On March 25, Central Agency Tells Delhi High Court Arrest Not On Cards

Title: Shri Tejashwi Prasad Yadav v. Central Bureau of Investigation

Citation: 2023 LiveLaw (Del) 240

The Central Bureau of Investigation on Thursday told the Delhi High Court that it will not arrest the Bihar Deputy Chief Minister Tejashwi Prasad Yadav if he appears before the agency in Delhi this month on any Saturday.

The submission was made before the bench of Justice Dinesh Kumar Sharma in response to Yadav's petition challenging the summons issued to him by CBI asking him to appear at its headquarter in Delhi for questioning in the alleged land for jobs scam case.

Delhi High Court Junks Supertech Homebuyers’ Pleas For Stopping Banks From Charging EMIs From Them, Says Avail Alternative Remedies

Title: SUPERTECH URBAN HOME BUYERS ASSOCIATION (SUHA) FOUNDATION Vs UNION OF INDIA & ORS

Citation: 2023 LiveLaw (Del) 241

The Delhi High Court has dismissed Supertech Urban Home Buyers Association (SUHA) Foundation and other home buyer’s petitions seeking directions for financial institutions to not charge the pre-EMIs or full EMIs from them till delivery of possession of flats by the real estate developer Supertech Limited.

Justice Purushaindra Kumar Kaurav said there are various agreements - buyer-developer agreement, loan agreement or tripartite agreement - between the homebuyers, the builder and the banks, and the rights claimed by the homebuyers are eventually flowing from the respective agreements only.

Delhi High Court Sentences Lawyer To 6 Months Jail For Contempt Of Court, Seeks Action Taken Report From Bar Council

Title: PARNITA KAPOOR & ORS. v. AM

Citation: 2023 LiveLaw (Del) 242

The Delhi High Court on Thursday sentenced a lawyer to six months of simple imprisonment after finding him guilty of contempt of court for not complying with the judicial orders directing him to pay the use and occupation charges to the landlord in respect of a property situated in Kingsway Camp area.

Observing that it is a fit case where any leniency shown by the court will be misunderstood as weakness, Justice Manmeet Pritam Arora also imposed a fine of Rs. 2,000 on the lawyer.

Participation In A Civil Suit Filed By Partner, Doesn’t Operate As Waiver Of Right To Invoke Arbitration: Delhi High Court

Case Title: Chadha Motor Transport Company Pvt Ltd vs. Barinderjit Singh Sahni

Citation: 2023 LiveLaw (Del) 243

The Delhi High Court has ruled that, merely because the defendant participated in a civil suit filed by the plaintiff, he cannot be said to have waived his right to invoke arbitration with respect to all future litigation between the parties under the Agreement.

The bench of Justice Neena Bansal Krishna held that participation of a party in a civil suit instituted by a partner, would not debar the party from initiating independent proceedings by way of arbitration, seeking independent remedies under the Partnership Deed.

Arbitral Tribunal’s Order Rejecting Party’s Request To File Counter Claims On Ground Of Delay, Doesn’t Foreclose Its Right To Invoke Arbitration: Delhi High Court

Case Title: Prime Interglobe Pvt Ltd vs. Super Milk Products Pvt Ltd

Citation: 2023 LiveLaw (Del) 244

The Delhi High Court has ruled that the Arbitral Tribunal’s order rejecting a party’s request to file counter claims on the ground of delay, does not foreclose its right to invoke arbitration seeking independent reference of its claims.

The bench of Justice Prateek Jalan remarked that, when arbitration proceedings are invoked at the instance of one party, it is generally open to the other party to file its counter-claims in the same proceedings. However, this does not per se signify that the Court has also referred the claims of the prospective counter-claimant to arbitration, so as to bar its right to assert its claims at a future date.

Delhi High Court Grants Bail To Shakti Bhog CMD Kewal Krishan Kumar In Money Laundering Case

Title: Kewal Krishan Kumar v. ED

Citation: 2023 LiveLaw (Del) 245

The Delhi High Court granted bail to Kewal Krishan Kumar, chairman and managing director (CMD) of Delhi-based Shakti Bhog Foods Limited, in a money laundering case. 

Kumar was arrested by the probe agency on July 04, 2021. As per a press release issued by ED at that time, the arrest was in continuation of search carried out at nine premises located in Delhi and Haryana during which various incriminating documents and digital evidence was recovered.

Read Also: 'Infirm' Person Entitled To Seek Bail Under Proviso To Section 45(1) PMLA Even When Not 'Sick': Delhi High Court

Fee Earned By APMC For Regulating Poultry Market, Exempt Under S. 10(26AAB) of Income Tax Act: Delhi High Court

Case Title: PC Commissioner of Income Tax vs. M/s Fish Poultry and Egg Marketing Committee

Citation: 2023 LiveLaw (Del) 246

The Delhi High Court has ruled that the income/ fee earned by an Agricultural Produce Marketing Committee (APMC) for regulating the poultry market, would fall within the scope of Section 10(26AAB) of the Income Tax Act, 1961, and thus the same would be exempt from income tax.

Rejecting the argument of the revenue department that unless income which is earned by an APMC is relatable to agricultural produce, it cannot be excluded from its total income, the bench of Justices Rajiv Shakdher and Tara Vitasta Ganju remarked that Section 10(26AAB) uses the expression “any income” and not “agricultural income” of the APMC.

‘We Are Not Lawmakers, It’s People’s Choice’: Delhi High Court Refuses To Entertain PIL Seeking Compulsory Voting In Elections

Title: Ashwini Kumar Upadhyay v. Union of India & Ors. 

Citation: 2023 LiveLaw (Del) 247

The Delhi High Court on Friday refused to entertain a public interest litigation moved by Advocate and BJP leader Ashwini Kumar Upadhyay for compulsory voting in the Parliament and State Assembly elections for increase in voter turnout and political participation.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that voting is a right and the choice of the people, and asked Upadhyay if there is anything in the Constitution of India which makes voting mandatory.  

2017 Airport Metro Arbitral Award: Delhi High Court Issues Directions To Centre, Delhi Govt For Payment Of Unpaid Dues To Reliance Infra By DMRC

Title: DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED vs DELHI METRO RAIL CORPORATION LTD

Citation: 2023 LiveLaw (Del) 248

The Delhi High Court directed the Union of India and Delhi government to forthwith attend to Delhi Metro Rail Corporation (DMRC)'s request for extension of sovereign guarantee or subordinate debt to enable it make payment of dues to Reliance Infra-owned Delhi Airport Metro Express Private Limited (DAMEPL) under the 2017 arbitral award.

Justice Yashwant Varma said the decision shall be taken within a period of two weeks from today and if permission is accorded to the DMRC in respect of either of the suggestions, it shall proceed to deposit the entire amount payable under the award along with up-to-date interest in terms thereof within a period of one month therefrom.

Antrix Devas Deal: Delhi High Court Upholds Single Judge's Decision Of Setting Aside 2015 Arbitral Award, Says Fraud 'Serious And Complex'

Title: DEVAS EMPLOYEES MAURITIUS PVT. LTD v. ANTRIX CORPORATION LIMITED & ORS

Citation: 2023 LiveLaw (Del) 249

The Delhi High Court dismissed an appeal against single judge’s order setting aside a 2015 arbitral award by which Antrix Corporation Limited, commercial and marketing arm of ISRO, was required to pay US$ 562.2 million to Devas Multimedia Private Limited over wrongful repudiation of a contract.

A division bench of Chief Justice Satish and Justice Subramonium Prasad in its judgment on the appeal moved by Devas Employees Mauritius Private Limited said it is "well established" that Devas was incorporated with fraudulent intentions so that it could enter into the agreement with Antrix.

The court said it sees no perversity in Single Bench's decision to set aside the arbitral award on the grounds of fraud and it being with in conflict with the public policy of India. Permitting Devas and its shareholders to reap the benefits of the ICC Award would amount to the court perpetuating the fraud, said the court.

Delhi Govt Has Made Efforts To Rehabilitate Jhuggi Dwellers On Paper, Ground Reality Far From Desirable: High Court

Title: KESHAW SANYASI GAWO SHEWASHARAM v. GOVT OF NCT AND ANR

Citation: 2023 LiveLaw (Del) 250

The Delhi High Court has said that though the Delhi Government has sought to make efforts to rehabilitate jhuggi dwellers “on paper” in terms of the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015, the ground reality is “far from desirable.”

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was hearing a plea moved by a trust namely Keshav Sanyasi Gawo Shewashram, established for maintaining a temple and cow shelter, against an eviction notice issued to its occupants for vacating the premises. It is being relocated for three months to a shelter home in Geeta Colony.

Power To Award Interest As Per S. 31 Of Arbitration Act, Applies Only In Absence Of An Agreement: Delhi High Court

Case Title: Bawana Infra Development Pvt Ltd vs. Delhi State Industrial & Infrastructure Development Corporation Limited (DSIIDC)

Citation: 2023 LiveLaw (Del) 251

The Delhi High Court has ruled that Section 31 (7) (a) of the Arbitration and Conciliation Act, 1996 (A&C Act), which deals with the Arbitrator’s discretion while awarding interest in respect of the pre-reference period, applies only where there is no agreement between the parties with respect to the rate of interest to be awarded.

The bench of Justice Chandra Dhari Singh remarked that the Arbitral Tribunal may not resort to Section 31(7)(b), while awarding post-award interest, when express provisions regarding the rate of interest are present in the agreement between the parties.

Section 9 Of The Arbitration Act Does Not Envisage The Restoration Of Terminated Contract: Delhi High Court

Case Title: Yash Deep Builders v. Sushil Kumar Singh, OMP (I) (COMM) 401 of 2022

Citation: 2023 LiveLaw (Del) 252

The Delhi High Court has held that the scope of Section 9 of the A&C Act does not envisages relief in the nature that would restore a contract which already stands terminated.

The bench of Justice Chandra Dhari Singh held that the Court while exercising powers under Section 9 of the A&C Act cannot direct specific performance of a determinable contract. It held that a contract which in its nature determinable cannot be specifically enforced under Section 14(d) of the Specific Reliefs Act, therefore, the Court cannot do something that is statutorily prohibited.