Madras High Court Weekly Round-Up: January 10, 2022 To January 16, 2022

A weekly round-up of important cases from Madras High Court and its subordinate courts.

1. SpiceJet Vs Credit Suisse AG- Madras High Court Dismisses Appeal Against Airline's Admission Of Winding Up

Case Title: SpiceJet Limited v. Credit Suisse AG

Citation: 2022 LiveLaw (Mad) 11

Madras High Court has dismissed the appeal preferred by SpiceJet against a single-judge bench order for admission of its winding up on Credit Suisse AG's Company Petition.

After hearing the counsels appearing for SpiceJet and Credit Suisse at length, a Division Bench of Justices Sathi Kumar Sukumara Kurup and Paresh Upadhyay noted in the order that the Original Second Appeals are dismissed and the Connected Civil Miscellaneous Petitions are accordingly disposed off. Since the stay on the operation of the impugned order is till today, the bench agreed to extend the application of stay order till 28th January so as to afford the appellant an opportunity to approach the Supreme Court.

The grievances of the appellant airlines and the issues framed by the court were pertaining to the alleged errors in the single judge bench order that does the following:

(i) admission of the winding-up petition, which is filed invoking Sections 433 (e) and (f) of the Companies Act, 1956, and

(ii) appointment of the Official Liquidator, High Court of Madras as Provisional Liquidator.

2. Adolf Hitler Was A Vegetarian, Hated Animal Cruelty; Man Can't Be Judged By Outer Appearance: Madras High Court While Upholding Death Penalty

Case Title: The State Represented By Deputy Superintendent of Police v. Samivel @ Raja

Citation: 2022 LiveLaw (Mad) 12

In a case arising out of aggravated sexual assault and cruel murder of a 7-year-old child from a marginalised community, the Madurai Bench of Madras High Court has upheld the death sentence imposed on the culprit by the trial court.

A Division Bench of Justice S. Vaidyanathan and Justice G. Jayachandran confirmed the death sentence of the accused made by Mahila Court, Pudukottai.

The bench held that the brutality of the attack, the barbaric manner in which the deceased child was murdered and the mental agony undergone by the parents makes it one of the 'rarest of rare' cases. The court added that it necessitates the imposition of death sentence, since no other sentence including life imprisonment will be adequate.

The accused was booked for offences under Sections 364, 376, 302, 201 IPC r/w 5(m), 5(j)(iv) and 6 (1) of POCSO Act as well as 3(2)(V) of SC/ ST Act. The case of the prosecution was that the accused developed a friendship with the child belonging to the Scheduled Castes Community and used it to fulfil his sexual desires.

"It is pertinent to mention here that everyone's mind contains a liar, a cheat and a sinner and a man cannot be judged by his outer appearance, as Adolf Hitler, who ordered the execution of some eight million people and was responsible for the deaths of many millions more, hated cruelty to animals and was a vegetarian. If a person like the accused herein is allowed to survive in this world, he will definitely pollute the mind of other co-prisoners, who will be at the verge of release from jail in which he is confined. When the attitude of a man turns into the one of a beast, having no mercy over other creatures, he should be punished and sent to the eternal world", the court noted in the order.

3. 'Publicity' Under Garb Of PIL: Madras High Court Dismisses Plea To Keep TASMAC Liquor Shops Closed On Public Holidays

Case Title: B. Ramkumar Adityan v. The Chief Secretary & Ors.

Citation: 2022 LiveLaw (Mad) 13

In a plea seeking directions to keep the TASMAC liquor shops closed during public holidays, the Madras High Court has criticized the practice of advocates filing public interest litigations for 'publicity'.

The Bench however refrained from imposing cost and the plea was dismissed as withdrawn.

The petitioner, Advocate B. Ramkumar Adityan, had sought appropriate directions from the High Court to the state government for declaring Pongal, Christmas, Thai Poosam, Republic Day, etc. as 'dry days'.

"Festive mode has become a tragic mode", said the petitioner referring to the untoward incidents allegedly on account of alcohol consumption in those days.

4. Petitioner Cannot File Writ Petition Before Exercising Remedy U/S 17 Of SARFAESI Act; Madras High Court

Case Title: R. Ganesan v. M/s. ASREC (India) Limited

Citation: 2022 LiveLaw (Mad) 14

The Madras High Court, in a Bench comprising of Justice M. Duraiswamy and Justice Sathya Narayan Prasad in R. Ganesan v. M/s. ASREC (India) Limited has reiterated the legal position and dismissed the writ petition filed by the Petitioner due to non-exercise of alternate remedy of appeal under Section 17 of the SARFAESI Act.

As per the terms of Section 17, an appeal can be filed to the Debt Recovery Tribunal within 45 days from the date on which the measures referred to under Section 13(4) of the Act are taken.

Relying on the Supreme Court judgments in The Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. and Agarwal Tracom Private Limited Vs. Punjab National Bank and others, the Bench held that the aggrieved parties cannot challenge proceedings taking place under the SARFAESI Act directly by way of a Writ Petition under Article 226, without exhausting the remedy of appeal available to them.

5. Divorce Decree From French Court; Maintainability Of Suit For Partition Of Dissolved Community Property Before Indian Court: Madras High Court Explains

Case Title: Venkateswarane Sivadjy v. Alice Viala

Citation: 2022 LiveLaw (Mad) 15

In a divorce proceeding characterised by questions on Conflict of Laws, Madras High Court has held that a suit filed for partition and separate possession of the property in India, as per Indian laws is maintainable and will not be barred by virtue of not approaching French Notary for liquidation under Article 1444 of the French Civil Code.

A Division Bench of Justice T. Raja and Justice D. Bharatha Chakravarty was disposing of an appeal filed by the Husband under Section 96 of C.P.C r/w under Order 41 R 1 of C.P.C against the judgment and decree by Family Court, Pudukottai.

The husband and wife, in this case, were French nationals for whom the personal law applicable would be the French Civil Code since it's Lex Patriae. This being the law of nationality of the persons who got divorced in 2005 , it would be applicable to them irrespective of where they are domiciled.

Under French Law, the marital relationship can either be based on a prenuptial contract, and in its absence, the relationship would be governed by Community regime.

The major question that arose before the court was the Lex Causae that's applicable for effecting the manner of partition. The main contention of the appellant was that Article 1444 of the French Civil Code mandates either of the parties to resort to the liquidation proceedings within three months from the date of divorce coming into force, that too, before the Notaries in France. Therefore, the appellant contended that the current suit filed by the wife, eight years after the divorce, before an Indian Court is not maintainable.

The court responded in the judgment to the above submission of the appellant in consonance with the findings of the Family Court. The court added that the manner of effecting partition is a rule of procedure, and therefore, in rules of procedure, lex fori(law of the forum) will apply.The court held that the Indian Law would be lex causae and not the French Code Civil. This would mean that Article 1444 wouldn't apply.

6. Madras High Court Orders 10 Lakh Compensation For Death Of Woman Negligently Shot By Stray Dog Hunter

Case Title: G. Babu v. the District Collector & Others

Citation: 2022 LiveLaw (Mad) 16

Madras High Court has ordered to pay compensation to the son of a deceased mother who was shot accidentally in a 'Shoot and Kill' stray dog hunt with the sanction of Eraiyur Panchayat.

A single-judge bench of Justice S.M Subramaniam has ordered the District Collector, Perambalur and the functionaries including the Eraiyur Panchayat President to pay Rs 5 laksh each as compensation to the petitioner son.

The court has also censured the authorities for shooting stray dogs, which is an illegal act in itself.

"It is an unusual incident where the responsible Panchayat President and the Councilors have engaged the 8th respondent for shooting out the stray dogs in the Village. The very operation itself is illegal and further the bullet removed from the mother of the petitioner during postmortem confirms that the death occurred due to the bullet injuries. Under these circumstances, this Court is inclined to consider the case of the petitioner for grant of compensation…", the court observed.

7. Pendency Of Cases Involving Large Scale Revenue Causes Loss To Nation: Madras HC Calls For Quick Disposal Of Income Tax, Mining, Excise Matters

Case Title: Dalmia Refractories Limited v. State of Tamil Nadu & Ors.

Citation: 2022 LiveLaw (Mad) 17

The Madras High Court recently expressed its concern over long pendency of cases involving large scale revenue.

Justice S.M Subramaniam observed that cases of Income Tax, Customs, Excise, Mines and Minerals etc. must be disposed of quickly to prevent misuse of nation's property.

Talking about the skewed tactics employed by stakeholders in keeping the writ petitions pending, so as to reap undue benefits of interim orders in force, the court added the following:

"The growing tendency on writ side is that such writ petitions involving large scale revenue, more specifically, Income Tax, Customs, Excise, Mines and Minerals etc., interim orders are in force for several years and the Nation's properties are being looted or misused or taken undue advantage of. Such a situation is absolutely unconstitutional and further anything under the earth belongs to the Government and it is the Nation's property, which belongs to 'We the People of India'. Thus, no one can be allowed to extract without adhering to the Act, Rules and Regulations and any violations are to be treated seriously and all these persons must be liable for all consequences", the court observed.

8. Madras High Court Strikes Down Women Reservation In Excess Of 50% For Chennai Corporation Polls

Case Title: R. Parthiban v. The Chief Secretary & Ors.

Citation: 2022 LiveLaw (Mad) 18

In a plea against reservation in excess of 50 per cent for women in Greater Chennai Municipal Corporation, Madras High Court has held that reservation can only be based on the total number of seats in the Municipality and not on Zonal wise demarcation.

The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has struck down the 2019 Government Notification which reserved 89 wards out of 200 wards for Women Candidates and another 16 seats for the Scheduled Caste Women, bringing the total tally to 105.

The public interest litigation, calling reservations in excess of 50 per cent discrimination against men and violation of constitutional principles, was filed by Advocate R. Parthiban. The senior counsel appearing for the petitioner, S. Prabakaran, had argued that women are entitled to only 84 seats according to the Tamil Nadu Municipalities (Amendment) Act, 2016 and the Chennai City Municipal Corporation (Amendment) Act, 2016 mandates 'not less than fifty per cent reservation' for women.

9. Sun TV Network Has Exclusive Broadcasting Rights Over 'Jilla' Movie: Madras High Court

Case Title: M/S Sun TV Network Ltd v. M/S Supergood Films Private Ltd & Ors.

Citation: 2022 LiveLaw (Mad) 19

Madras High Court has allowed a writ petition that sought a declaration of the exclusive copyright of Sun TV Network over the broadcast of 'Jilla' movie, while granting permanent injunction against the defendants from exhibiting/ exploiting the movie in a similar manner.

A single-judge bench of Justice N. Anand Venkatesh observed that the second defendant, United India Exporters, only had the right to exploit the theatrical release of the film outside India as per the agreement between them and Super Good Films Private Limited. It does not include the exclusive rights to make, sell or let out for their copies of the cinematographic film 'JILLA' and broadcast the said film through various mediums of broadcast and transmission outside India.

The court observed that Supergood Films, the producer and exclusive copyright owner of 'Jilla', have assigned the exclusive copyright in favour of the plaintiff Sun TV Network in respect of satellite television broadcast as early as 8^th July 2013. The said agreement was entered into much before the theatrical release rights assigning agreement between Supergood Films and United India Exporters.

Other Developments

1. Air India Disinvestment: Madras High Court Asks Centre To Produce Share Purchase Agreement

Case Title: Air India Corporation Employees Union v. Union of India & Ors. & Connected Matters
In a plea preferred by one of the trade unions of Air India against its disinvestment, the Madras High Court has directed the Central government to produce the contentious share purchase agreement before the court.

Justice V. Parthiban took note of the petitioner's argument that the share purchase agreement is instrumental in deciding the case that involves high stakes for all parties concerned.

"The learned Additional Solicitor General is therefore directed to furnish a copy of the share purchase agreement to the Court on or before the next date of hearing," it ordered.

Further, on the request of the petitioner employees' union to go through the contents of the counter statement filed by the Union and file a rejoinder if necessary, the matter was adjourned to 21st January for disposal.

The benefit of the interim order for the retention of accommodation and medical facilities has also been extended till the next date of hearing.

2. Madras High Court Seeks Centre's Response On Plea Challenging Vires Of Dam Safety Act

Case Title: S.Ramalingam v. The Union Of India & Another

The Madras High Court has issued notice on a plea challenging the vires of recently enacted Dam Safety Act, 2021, as being violative of Articles 14, 19 and 21 of the Indian Constitution.

The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has granted three weeks' time to the Union of India, represented by ASG R. Shankaranarayanan, to file its counter affidavit in the matter.

The petition has been filed by DMK MP from Mayiladuthurai, S. Ramalingam, saying that the Centre, through the impugned legislation, usurps the powers of the state government and disturbs the federal structure. The matter was mentioned before the Court by Senior Advocate P. Wilson last week.

The Senior counsel argued that the Parliament lacks the legislative competence for enacting the legislation. He highlighted that Entry 17 in List II under the 7^th Schedule of the Constitution refers to- Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

Wilson also requested that Centre must refrain from constituting the National Dam Safety Authority and National Committee on Dam Safety proposed under the impugned Act, till the writ petition is disposed of.