Bombay High Court Weekly Round-Up: January 23 To January 29, 2023

MA Multi-Infra Development Pvt. Ltd. v. ACIT 2023 LiveLaw (Bom) 43

Vishwanatha Sridhar Prabhu v. Union of India & Anr. 2023 LiveLaw (Bom) 44

Axis Trustee Services Limited v. Union of India and Ors. 2023 LiveLaw (Bom) 45

ABC v. State of Maharashtra 2023 LiveLaw (Bom) 46

Yoko Sizzlers v. Yokoso Sizzlers 2023 LiveLaw (Bom) 47

Pradeep Sharma v. NIA 2023 LiveLaw (Bom) 48

Yogesh Laxman Pandav and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 49

National Centre for the Performing Arts v. Union of India 2023 LiveLaw (Bom) 50

GoDaddy.com LLC & Anr. (Applicants) in Bundl Technologies Pvt. Ltd. v. Aanit Awattam & Ors. 2023 LiveLaw (Bom) 51

Shivaji S/o Rajaram Take v. State of Maharashtra 2023 LiveLaw (Bom) 52

Shivkaran s/o Ganpati Gaikwad v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 53

Bajaj Electricals Limited v. Chanda S. Khetawat & Anr. 2023 LiveLaw (Bom) 54

Freedom City Ventures v. State of Maharashtra 2023 LiveLaw (Bom) 55

Zenobia Poonawala v. Rustom Ginwalla & Ors. 2023 LiveLaw (Bom) 56

NAREDCO West Foundation v. Union of India 2023 LiveLaw (Bom) 57

All India Wine Producers Association v. Deputy Secretary and Assistant Chief Election Officer, Maharashtra State & Ors. 2023 LiveLaw (Bom) 58

Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal 2023 LiveLaw (Bom) 59

PSP Projects Limited v. Bhiwandi Nizampur City Municipal Corp. 2023 LiveLaw (Bom) 60

Reports/Judgments

Reassessment Notice after 4 Years should have the Sanction Of PCIT: Bombay High Court

Case Title: MA Multi-Infra Development Pvt. Ltd. v. ACIT

Citation: 2023 LiveLaw (Bom) 43

The Bombay High Court ruled that issuing a reassessment notice after four years is subject to the approval of the Principal Chief Commissioner of Income-tax (PCIT).

The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata has ruled that the approval for the issuance of a notice under Section 148 ought not to have been obtained from the Additional Commissioner of Income Tax but from the authority specifically mentioned under Section 151(ii) of the Income Tax Act.

The court allowed petitioner's challenge to a notice dated March 31, 2021, under Section 148 of the Income Tax Act, 1961 on the grounds that it was issued after the four-year period, which required approval from the Principal Chief Commissioner of Income-tax under Section 151(ii) of the Act.

'Difficult To Comprehend Reasoning, Logic Or Rationale In This Order': Bombay High Stays IBBI Order Suspending Valuer's Registration

Case Title: Vishwanatha Sridhar Prabhu v. Union of India & Anr.

Citation: 2023 LiveLaw (Bom) 44

The Bombay High Court granted a stay on an order passed by the Insolvency and Bankruptcy Board of India (IBBI) against a Registered Valuer, saying that it was “difficult to comprehend the reasoning, logic or rationale” in the order.

A division bench of Justices G S Patel and S G Dige stayed the operation of the IBBI order suspending Vishwanatha Prabhu's registration as a 'registered valuer' observing, “The impugned order seems to us to have completely overlooked the inherent absurdity that it creates. It proceeds on the basis that the mere pendency of a criminal proceeding robs a person such as the Petitioner of his “fit and proper person” status because it supposedly affects his 'integrity, reputation and character'.

The reason for suspension was Prabhu's arrest in the Punjab and Maharashtra Cooperative Bank-Housing and Development Infrastructure Ltd loan fraud case. The court said even charges have not been framed against Prabhu and it is entirely possible that the court in question, when it takes up the charge-sheet, may not in fact frame charges against him at all.

Administrator Could Not Have Taken Policy Decision After Yes Bank Reconstruction: Bombay HC While Quashing Write Off Of AT-1Bonds

Case Title: Axis Trustee Services Limited v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 45

The Bombay High Court set aside Yes Bank's decision to write of Additional Tier 1 bonds Rs. 8415 Crore value observing that the RBI appointed Administrator could not have taken such a policy decision after the bank already stood reconstituted.

A division bench of acting Chief Justice SV Gangapurwala and Justice S. M. Modak, while deciding a batch of petitions filed by the bond holders, noted that the final reconstruction scheme sanctioned by the central government did not contain any provision for writing down AT-1 bonds.

Right to Choose Mother's Alone, Not Medical Board's; Court Can't Abrogate Her Right: Bombay High Court Allows Medical Termination of 33-Week Pregnancy

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 46

The decision to terminate a pregnancy is the woman's alone after a severe foetal abnormality is found irrespective of the length of the pregnancy, the Bombay High Court held while allowing a married woman to terminate her 33-week pregnancy against the advice of the Medical Board. The bench noted that the Medical Board had advised against the termination merely because the pregnancy is at an advanced stage. The court, however, said if termination is refused it would not only be condemning the foetus to a less than optimal life, but would also be condemning the mother to a future that would certainly rob her of every positive attribute of parenthood.

'Yoko' and 'Yokoso' May Have Different Meanings in Japanese, Doesn't Make Marks Dissimilar: Bombay High Court Grants Relief To Yoko Sizzlers

Case Title: Yoko Sizzlers v. Yokoso Sizzlers

Citation: 2023 LiveLaw (Bom) 47

The Bombay High Court restrained a Pune-based restaurant from using the mark 'Yokoso Sizzlers', observing that prima facie it is deceptively similar to the registered trademark 'Yoko Sizzlers'.

Justice Manish Pitale granted interim relief to Yoko Sizzlers in an intellectual property rights suit filed by it against Yokoso Sizzlers.

"Merely because Yoko and Yokoso have different meanings in Japanese language, it would not amount to dissimilarity of the marks in question. Therefore, it is found that a strong prima facie case is made out on behalf of the plaintiff, for granting ad-interim relief. This Court is convinced that unless such relief is granted, the plaintiff will suffer grave and irreparable loss, thereby indicating that the balance of convenience also lies in favour of the plaintiff," the court said.

Bombay High Court Denies Bail To Former Encounter Specialist Pradeep Sharma; Says He Is Influential, Tampering Cannot Be Ruled Out

Case Title: Pradeep Sharma v. NIA

Citation: 2023 LiveLaw (Bom) 48

The Bombay High Court denied bail to former “encounter specialist” Pradeep Sharma, an accused in the Antilia Terror Scare and Manshukh Hiran Murder Case citing his clout and prosecution in a past encounter.

The division bench of Justices Revati Mohite Dere and R. N. Laddha also questioned Sharma's presence in then Police Commissioner Param Bir Singh's chamber in March 2021. It is the NIA's case that Sharma and dismissed cop Sachin Waze planned Hiran's murder within the Mumbai Police Commissionerate.

The HC criticized NIA's investigation into the terror threat near the Ambani residence. The court said that NIA has not done in-depth investigation. Sharma's name came up for the first time as a co-conspirator during a hearing and that too after being asked by the court, the bench noted. It added that the NIA has not mentioned this anywhere in the charge sheet.

Bombay HC Grants Pre-Arrest Bail To Neighbour Booked Under SC/ST Act For Whistling, Says Making Sounds In His Own House Does Not Show Sexual Intent

Case Title: Yogesh Laxman Pandav and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 49

The Bombay High Court granted anticipatory bail to three persons accused of committing atrocities against a member of a Scheduled Caste observing that mere creation of sound by accused in his own house cannot mean that it was with sexual intent.

The court also noted that in the first alleged incident of caste abuse, the complainant has alleged that accused persons had abused her in chorus. The name of the caste did not form part of the abuse. “Still if we consider that, that abuse was with an intention to insult the informant; yet, it is to be noted that it is alleged to have been uttered in chorus, which is an unbelievable act. Abuses cannot be given in chorus”, the court added.

Failure To Adjust Interest Paid By NCPA Is SVLDR Schemes, Should Not affect SVLDR Schemes: Bombay High Court

Case Title: National Centre for the Performing Arts v. Union of India

Citation: 2023 LiveLaw (Bom) 50

The Bombay High Court held that failure to adjust interest paid by the National Centre for the Performing Arts (NCPA) was hyper- technical and should not come in the way of implementation of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 ( SVLDRS).

The division bench of Justice Nitin Jamdar and Justice Abhay Ahuja observed that the object of the SVLDR Scheme should not be lost sight of, as the scheme has itself been formulated for the smooth settlement of disputes. The interpretation of the provisions should be to carry forward the object rather than to frustrate the it by giving rise to more litigation.

Bombay High Court Refuses To Pass Omnibus Direction Stopping Domain Name Registrar GoDaddy From Registering Names Containing “Swiggy” TradeMark

Case Title: GoDaddy.com LLC & Anr. (Applicants) in Bundl Technologies Pvt. Ltd. v. Aanit Awattam & Ors.

Citation: 2023 LiveLaw (Bom) 51

The Bombay High Court directed GoDaddy, a Domain Name Registrar to inform food delivery service Swiggy each time a domain name containing its trademark 'SWIGGY' is registered. The court however, refused to stop GoDaddy from registering future domain names infringing Swiggy's trademark.

“…it would not be appropriate to continue the ad-interim order granted in terms of prayer clause (g), as it would amount to granting an omnibus and global temporary injunction, operating in futuro. Each instance of infringement would require the Plaintiff to rush to this Court for a direction in this very suit or separate proceedings against specific parties but an omnibus direction as contained in prayer clause (g) could not have been granted”, the court held.

Justice Manish Pitale said that Swiggy will have the liberty to seek relief against each future infringement once it comes to know of the same from GoDaddy.

The court said that the plaintiff has to claim reliefs in context of specific instances of infringement by individuals against whom orders can be passed. Even in a “John doe” action, specific instance of infringement is identified though it may not be known who is responsible for the infringement, the court reiterated.

Bombay High Court Dismisses Petition Challenging Appointment of Complainant's Erstwhile Lawyer As Special Public Prosecutor In Murder Case

Case Title: Shivaji S/o Rajaram Take v. State of Maharashtra,

Citation: 2023 LiveLaw (Bom) 52

The Bombay High Court upheld the appointment of Ujwala Pawar as Special Public Prosecutor in the trial case related to the murder of Advocate Sambhaji Rajaram in Maharashtra's Ahmednagar. Pawar had previously represented the complainant in the same case.

A division bench of Justices Vibha Kankanwadi and Abhay Waghwase observed that just like the accused who has a constitutional right to be represented by an Advocate of his choice, even the informant has some right, may be in a restricted way, to seek the State's permission for an Advocate of his choice.

Ocular Evidence To Prevail Over Dying Declaration When Deceased Was Adversely Motivated: Bombay High Court

Case Title: Shivkaran s/o Ganpati Gaikwad v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 53

The Bombay High Court held that if the deceased was adversely motivated, and the eyewitnesses inspire confidence, eyewitness evidence would prevail over dying declaration regarding the cause of the death.

Justice SG Mehare of Aurangabad bench, while upholding the acquittal of a man and his family members accused of murdering his wife held –

“where it is proved that the mental condition of the deceased was motivated adversely due to the immediate past events, the circumstances do not support the dying declaration, and the evidence of ocular witnesses inspires the confidence, the ocular evidence would prevail over the statement of the deceased as to the cause of his death.”

The court also said that the past conduct of a person is relevant to determine whether it was a homicide or suicide. The court added that constant disappointment may lead to depression and feelings of revenge in the person.

Reference Under Section 18(1) Of MSMED Act Would Override Arbitration Agreement Between Parties: Bombay High Court

Case Title: Bajaj Electricals Limited v. Chanda S. Khetawat & Anr.

Citation: 2023 LiveLaw (Bom) 54

The Bombay High Court ruled that once reference under Section 18(1) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) is made and the Facilitation Council is in the process of commencing arbitration under Section 18(3), the application under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) seeking appointment of arbitrator cannot be allowed merely because the parties had entered into an arbitration agreement.

The bench of Justice Bharati Dangre noted that the applicant/ buyer had issued notice under Section 21 of the A&C Act prior to the date the supplier filed the reference under Section 18(1) of the MSMED Act before the Facilitation Council. However, the Court observed that in view of the Apex Court's decision in Gujarat State Civil Supplies Corporation Ltd. v. Mahakali Foods Pvt Ltd (2022), once the statutory mechanism under Section 18(1) of the MSMED Act is triggered by a party, it would override the arbitration agreement between them.

Removal Of Objections In Any Proceedings Before An Authority Does Not Render The Proceedings Time Barred: Bombay High Court

Case Title: Freedom City Ventures v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 55

The Bombay High Court held that correction or removal of objections in any proceedings before any authority does not render the proceedings time barred if the correction does not alter the nature of the proceeding.

“...the absence of any provision to amend, alter, change or modify the name of the applicant in the application for claiming refund of stamp duty should not come in the way of making a bonafide correction as long as there is no express statutory prohibition to do so. In fact, the authority to correct ministerial errors is an inherent power vested in every authority”, the court added.

Award Debtor Failed To Take Recourse To S. 26 of Arbitration Act; Cannot Challenge Award Claiming Expert Was Not Examined: Bombay High Court

Case Title: Zenobia Poonawala v. Rustom Ginwalla & Ors.

Citation: 2023 LiveLaw (Bom) 56

The Bombay High Court ruled that if an award debtor has failed to take recourse to the provisions of Section 26 of the Arbitration and Conciliation Act, 1996 (A&C Act), it cannot seek to set aside the award on the ground that the expert, whose report was relied upon by the arbitrator, was not examined by the opposite party.

The bench of Justice Manish Pitale was dealing with a petition challenging the arbitral award in a dispute between partners, where the award debtor contented that the dissolution notice of the partnership firm was invalid since one of the partners was allegedly of unsound mind at the time of issue of notice.

While holding that the question of unsoundness of mind can never be decided in the arbitral proceedings, and the same can be decided only by a special forum created by a special law, the Court ruled that the said ground was rightly dismissed by the arbitrator.

Decide On Real Estate Proposals For Environment Clearance In Accordance With DCPR-2034: Bombay High Court To SEIAA

Case Title: NAREDCO West Foundation v. Union of India

Citation: 2023 LiveLaw (Bom) 57

The Bombay High Court directed the Maharashtra State Environment Impact Assessment Authority (SEIAA) to re-start deciding proposals pending before it for environmental clearance on a petition by NAREDCO, a self-regulatory real estate body.

The court of ACJ SV Gangapurwala and Sandeep Marne ordered that all project proposals should be considered in accordance with the new Development Control and Promotional Regulations 2034 and unified development regulations for Maharashtra within eight weeks.

“prima facie there appears to be deviation in the exact location at which open recreational spaces is to be provided. Therefore, SEIAA is required to take into consideration the provisions of DCPR 2034 or UDCPR as applicable, in order to determine permissibility of provision of open recreational spaces on podium level in a particular project. The judgment and order dated 13 September 2022 of NGT in case of Anil Tharthare vs. The Secretary, Environment Dept. State of Maharashtra & Ors. cannot be construed to mean a blanket prohibition to consider the proposals of the projects governed by DCPR 2034 or UDCPR”

Liquor Ban For A Long Period Violates Merchants' Right To Livelihood: Bombay High Court Limits Prohibition To MLC Polls Voting Day

Case Title: All India Wine Producers Association v. Deputy Secretary and Assistant Chief Election Officer, Maharashtra State & Ors.

Citation: 2023 LiveLaw (Bom) 58

The Bombay High Court reduced the four-day ban on liquor sale in Thane, Palghar, Raigad and Nashik districts due to Maharashtra Legislative Council graduate constituencies elections to just the day of voting observing that a longer ban would violate the merchants' right to livelihood under Article 21 of the Constitution.

“Imposing a prohibitory ban for long period on merchant establishments and establishments which provide livelihood is contrary to the enshrined principles under Article 21 of the Constitution of India and whenever such thing happens, the Authorities need to be thoughtful”, the court stated.

Justice Milind Jadhav directed that the ban be restricted to only January 30, 2023, i.e., the day of voting.

'Saw No Change In Husband's Behaviour After Settlement Efforts, Can't Be Blamed': Bombay High Court Upholds Grant Of Maintenance To Divorced Woman

Case Title: Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal

Citation: 2023 LiveLaw (Bom) 59

The Bombay High Court upheld the grant of maintenance to a woman, whose husband's petition for divorce was allowed by the family court on the ground of desertion and cruelty.

Dealing with the argument that prior to the decree of divorce she had refused to live with the husband without a sufficient reason and thus cannot be held to be entitled to maintenance, the court said when she had gone back to her matrimonial home but possibly saw no change in her husband's behaviour and left again, she cannot be said to have refused cohabitation without sufficient reasons under Section 125(4) of the Cr.P.C.

Justice G. A. Sanap of the Nagpur bench, while upholding the family court order, said if the wife had no desire at all to establish the cohabitation with the husband, she would not have at all agreed to join his company.

Court Not Powerless To Appoint Appropriate Arbitral Tribunal, Even If Party Forfeits Its Right Under Arbitration Clause: Bombay High Court

Case Title: PSP Projects Limited v. Bhiwandi Nizampur City Municipal Corp.

Citation: 2023 LiveLaw (Bom) 60

The Bombay High Court ruled that even if a party's right to appoint its nominee in the Arbitral Tribunal as per the arbitration clause, is forfeited because it failed to exercise its right within the statutory period after receiving the notice invoking arbitration, it would not render the Court powerless to appoint an appropriate Arbitral Tribunal, after considering the nature of the disputes.

The High Court was dealing with a petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking appointment of a Sole Arbitrator. Justice Manish Pitale noted that the respondent had forfeited its right to appoint its nominee as per the Arbitration Clause, which contemplated a three-member Arbitral Tribunal. However, this does not mean that the Court is constrained to only appoint a Sole Arbitrator on the insistence of the petitioner, the Court ruled.

Other Developments

“Generations Pass Without A Home": Bombay HC Initiates Suo Motu Case Over Developers Abandoning Cessed Building Redevelopment Projects In Mumbai

Case Title: Upkar Singh Lalsingh Kochhar v. Maharashtra Housing and Area Development Authority and Anr.

The Bombay High Court initiated a suo-motu writ petition to develop a mechanism for situations where the developer stops re-development midway, leaving tenants without a home or transit rent for decades.

The division bench of Justices Gautam Patel and SG Dige observed this was an “increasingly common problem of the human condition” in Mumbai, where projects were left abandoned. A consequent dereliction in payment of property tax etc, would result in the civic body and Maharashtra Housing Area Development Authority having a claim against the property itself.

Bombay High Court Restrains ED From Taking Coercive Action Against Jet Airways' Founder Naresh Goyal, His Wife Till Jan 31

Case Title: Naresh Goyal v. Directorate of Enforcement and Anr.

In a relief for former Jet Airways Chairman Naresh Goyal and his wife Anita, the Bombay High Court directed the Enforcement Directorate (ED) not to take any coercive steps against them till January 31.

The division bench comprising Justices Revati Mohite Dere and Prithviraj Chavan passed the order on a petition filed by the duo seeking quashing of the ECIR registered against them under the Prevention of Money Laundering Act (PMLA). In the interim, they prayed no-coercive steps be taken against them.