Gujarat High Court Weekly Round Up: March 28 To April 3, 2022

Nominal Index

Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh 2022 LiveLaw (Guj) 94

Niraj Jaidev Arya Versus State of Gujarat 2022 LiveLaw (Guj) 95

Gitaben Govindbhai Patel vs Rameshbhai Hirabhai Patel 2022 LiveLaw (Guj) 96

\Mohsinkhan Muso Murajkhan v. Directorate General Of Police 2022 LiveLaw (Guj) 97

Chandra Darshan Developers Through Partner Versus Hiralal Gopalbhai 2022 LiveLaw (Guj) 98

M/s Dilipkumar Chandulal Versus State of Gujarat 2022 LiveLaw (Guj) 99

STATE OF GUJARAT Versus RAVAL DEEPAKKKUMAR SHANKERCHAND & 2 other(s) 2022 LiveLaw (Guj) 100

Shri Shakti Cotton Pvt. Ltd. Versus Commercial Tax Officer 2022 LiveLaw (Guj) 101

Bahdurbhai Devarabhai Khavad Versus Dy. Executive Engineer,Surendranagar Jal Sinchan Sub Division & 1 Other(S) 2022 LiveLaw (Guj) 102

Shree Radhekrushna Ginning And Pressing Pvt. Ltd. Through Director Yash Pareshbhai Khachar Versus State Of Gujarat 2022 LiveLaw (Guj) 103

1. Probate Shall Be Granted Only To An Executor Appointed By The Will: Gujarat High Court

Case Title: Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh

Citation: 2022 LiveLaw (Guj) 94

The Bench comprising Justice Ashokkumar Joshi of the Gujarat High Court has been hearing an Article 227 petition challenging the order of the Trial Judge pertaining to an application under Order 6 Rule 17 of CPC.

The brief facts of the case were that the deceased mother of the Petitioners/Appellants was the owner of certain movable and immovable properties and had executed a will in 2013 in favour of the Petitioners/Appellants. Subsequent to the death of the mother, the Petitioners became owners of the properties and preferred an application seeking the probate of the will while the Trial Judge invited objections against the application.

The Respondent therein filed an objection against the issuance of probate in favour of the Petitioners. The Petitioners therefore preferred the application in question in 2016 seeking amendment of probate application praying for the replacement of the word Probate by Letter of Administration. This application was rejected and hence the petition was filed.

2. Fraudulent Claim of ITC, Revenue Interest is Protected by Attachment: Gujarat High Court Grants Bail

Case Title: Niraj Jaidev Arya Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 95

The Gujarat High Court bench of Justice Gita Gopi has granted bail to the accused of fraudulently availing the input tax credit (ITC) as the department has attached the immovable properties, which were much beyond the alleged GST evasion.

The applicant, a designated partner and managing director of "Utkarsh Ispat LLP," which is in the business of purchasing mild steel scrap and, thereafter, converting it into mild steel billet. The department conducted a search and seizure operation at the factory and office premises of the LLP and at the residence of the applicant on the ground that several purchase transactions had been made from fictitious entities.

3. Gujarat High Court Grants Interim Injunction On Immovable Property Based On 'Agreement To Sell'

Case Title: Gitaben Govindbhai Patel vs Rameshbhai Hirabhai Patel

Citation: 2022 LiveLaw (Guj) 96

The Gujarat High Court ordered interim injunction on an immovable property and restrained its owner from changing its status during the pendency of the suit, based on an agreement to sell arrived at between the parties.

The Bench comprising Justice AP Thaker observed,

"So far as the suit based on agreement to sell for specific performance of contract, even if that agreement to sell is not registered, same can be considered for collateral purpose... If there is contract of agreement to sell and the same is not refused by the defendant and further when legal notice has been issued to the defendant for purpose of that contract, if no injunction is granted in favour of the plaintiff, then, there might be multiplicity of litigation in case defendant transfers the property during the pendency of the litigation."

4. Registration Of FIR By Itself Can't Have Any Nexus With Breach Of Maintenance Of Public Order: Gujarat High Court

Case title - Mohsinkhan Muso Murajkhan v. Directorate General Of Police

Citation: 2022 LiveLaw (Guj) 97

Quashing a detention order passed u/s 3 (2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act], the Gujarat High Court on Tuesday observed that simpliciter registration of FIR by itself cannot have any nexus with the breach of maintenance of public order.

With this, the Bench of Justice A. P. Thaker ALLOWED the plea moved by detenue Mohsinkhan and QUASHED the impugned order of detention (dated 29.11.2021) passed by the respondent – detaining.

5. Prima Facie Case, Balance Of Convenience, Irreparable Injury, Three Pillars Of Injunction Order: Gujarat High Court

Case Title: Chandra Darshan Developers Through Partner Versus Hiralal Gopalbhai

Citation: 2022 LiveLaw (Guj) 98

"The object of the interlocutory injunction, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial", the Gujarat High Court has opined.

The Bench comprising Justice AP Thaker was considering an appeal under Order 43 Rule 1(r) against the order passed by the Magistrate Court in a Special Civil Suit restricting the Defendants (Appellants, herein) from selling, transferring, mortgaging or passing any interest to third party in the suit property.

6. Dealer's GST Registration Can't Be Cancelled For Inadvertent Mistake Of CA: Gujarat High Court

Case Title: M/s Dilipkumar Chandulal Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 99

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has ruled that the dealer should not be forced to pay a hefty price for the cancellation of the GST registration for the chartered accountant's mistake.

The writ was against the the cancellation of the GST registration. The chartered accountant of the assessee wanted the HUF registration to be cancelled. Instead of inserting the registration number of the HUF, inadvertently, the CA inserted the registration number of the proprietorship. In such circumstances, the registration of the proprietary firm under the GST was cancelled.

7. Abetment Of Suicide | "Positive Act" Of Instigation Necessary For Conviction U/S 306 IPC: Gujarat High Court Reiterates

Case Title: STATE OF GUJARAT Versus RAVAL DEEPAKKKUMAR SHANKERCHAND & 2 other(s)

Case Citation: 2022 LiveLaw (Guj) 100

The Gujarat High Court has reiterated that without a positive act on the part of the accused to instigate or aid in committing suicide, conviction under Section 306 of the Indian Penal Code cannot be sustained.

"The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide."

8. Attachment of Immovable Properties Of Director Despite settlement of Tax Dues Under Tax Resolution Scheme: Gujarat High Court Condemns Dept.

Case Title: Shri Shakti Cotton Pvt. Ltd. Versus Commercial Tax Officer

Citation: 2022 LiveLaw (Guj) 101

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has condemned the act of the department for attaching the personal immovable properties of the director even though the tax dues were settled under the Tax Resolution Scheme.

The writ-petitioner/assessee, a company which is a taxable entity, has incurred liability towards the payment of tax under the provisions of the GVAT Act. The company incurred a liability in the year 2013. The company preferred an application under the "Vera Samadhan Yojana, 2019". An application was filed on November 6th, 2019. In accordance with the scheme, the company was required to pay an amount, and upon deposit of the amount, the interest to the tune of Rs.60,53,560 was waived. The company deposited the amount under the scheme and discharged its total liability.

9. Gujarat High Court Rejects Application Seeking Benefits And Interests On The Ground Of Delay Under Contempt Of Courts Act

Case Title: Bahdurbhai Devarabhai Khavad Versus Dy. Executive Engineer,Surendranagar Jal Sinchan Sub Division & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 102

Averring that there was no delay in making payment of pensionary benefits as alleged by the Appellants, the Gujarat High Court has refused to interfere in the Letters Patent Appeal seeking Respondent authorities to pay all the consequential pensionary benefits and 18% interest on delayed payment.

The Appellant herein had his services terminated against which he and other persons had filed a reference which was allowed. Accordingly, the Appellant was held to be entitled to similar benefits as another similarly placed daily wager. The Appellant had also approached the Court by way of Section 12 of Contempt of Courts Act wherein the Division Bench had observed:

"In that view of the matter, it cannot be said that the respondents have not fully complied with the directions issued by this Court. As much as pensionary benefits are extended and received by the applicant, during the pendency of this application, we are of the view that it is not a fit case to be proceeded further under the provisions of the Contempt of Courts Act, 1971."

10. Distinction Between "Attachment Of Property" And "Charge Over Property": Gujarat High Court Explains

Case Title: Shree Radhekrushna Ginning And Pressing Pvt. Ltd. Through Director Yash Pareshbhai Khachar Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 103

"Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations; it does not confer any title on the attaching creditors", the Gujarat High Court affirmed in a judgment.

Justice JB Pardiwala was hearing a writ application under Art 226 wherein the Applicant had prayed for the issuance of a writ of mandamus for the quashment of the order by Respondent No. 2 and thereby release the charge on the property of the Applicant

Other updates from High Court

1. Orphan Lady Seeks Gujarat High Court's Direction To State Govt To Issue Her 'No Religion, No Caste' Certificate

A 36-year-old orphan lady from Surat, Kajal Manjula has moved a writ petition before the Gujarat High Court seeking a specific direction to the State Government authorities to issue her a special 'No Religion, No Caste' certificate.

The petitioner has sought this direction in the larger interest of justice as she has averred in her plea that Society as well as her family make her suffer a lot and therefore, she decided to get a Special 'No Religion, No Caste' Certificate.