Bombay High Court Weekly Round-Up: December 26 to December 31, 2022

ABC v. XYZ 2022 LiveLaw (Bom) 518

M/s. Mallak Specialities Pvt Ltd. v. The New India Assurance Co. Ltd. 2022 LiveLaw (Bom) 519

Deccan Paper Mills Co. Ltd. v. M/s. Regency Mahavir Properties & Ors. 2022 LiveLaw (Bom) 520

Altaf Babru Shaikh v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 521

GTL Infrastructure Ltd. v. Vodafone India Ltd. (VIL) 2022 LiveLaw (Bom) 522

Jotun India Private Limited v. Union of India 2022 LiveLaw (Bom) 523

Javed Raza Shroff v. The State of Maharashtra 2022 LiveLaw (Bom) 524

Siddhodhan alias Shudhodan s/o Namdeorao Kurule v. State of Maharashtra 2022 LiveLaw (Bom) 525

Bank of India v. Magnifico Minerals Private Limited and Anr. 2022 LiveLaw (Bom) 526

Sandip Prakash Rathod v. State of Maharashtra 2022 LiveLaw (Bom) 527

Reports/Judgments

Bombay High Court Imposes ₹5000 Cost On Law Firm For Disclosing Rape Victim's Name In Petition

Case Title: ABC v. XYZ

Citation: 2022 LiveLaw (Bom) 518

The Bombay High Court recently took strong exception to the disclosure of a rape victim's name in the petition and imposed costs of Rs. 5000 on the law firm that drafted the petition.

A division bench of Justices Revati Mohite Dere and Prithviraj Chavan observed that advocates often don't refrain from using the victim's name despite Section 228A of IPC mandating non-disclosure of the rape victim's name and a 2-year punishment prescribed for the disclosure.

"Despite Section 228A of the Indian Penal Code and despite repeatedly telling the Advocates that it is an offence to disclose the name of the prosecutrix which is punishable with two years, the name of the prosecutrix is disclosed in the aforesaid petition. Hence, the law firm, who drafted the petition, to deposit costs of Rs.5,000/- with the Kirtikar Law Library within two weeks from today."

Reference Limited To Quantum Of Compensation; Dispute Non-Arbitrable If Insurer Disputes Liability: Bombay High Court

Case Title: M/s. Mallak Specialities Pvt Ltd. v. The New India Assurance Co. Ltd.

Citation: 2022 LiveLaw (Bom) 519

The Bombay High Court has ruled that where the arbitration clause only provided for reference of dispute relating to quantum of compensation payable under the insurance policy, the plea taken by the insurance company, disputing its liability under the policy, would make the dispute non-arbitrable.

The bench of Justice Bharati Dangre reiterated that an arbitration clause has to be interpreted strictly. The Court observed that the insurer's unequivocal admission of liability under the policy is sine qua non for triggering the arbitration clause, in absence of which the dispute between the parties fell under the excepted category, making the arbitration clause ineffective and incapable of being enforced.

Arbitration Can Be Invoked Against Party Deleted From Section 9 Application: Bombay High Court

Case Title: Deccan Paper Mills Co. Ltd. v. M/s. Regency Mahavir Properties & Ors.

Citation: 2022 LiveLaw (Bom) 520

The Bombay High Court has ruled that once an application is filed under Section 9 of the Arbitration and Conciliation Act,1996 (A&C Act), merely because the applicant choses to subsequently delete a party from the proceedings under Section 9, it cannot be held that the arbitral proceedings can never be invoked against such a party.

The bench of Justice Manish Pitale held that a party applying for interim measures under Section 9 may wish to delete certain parties, if it finds that the interim measures sought in the facts and circumstances of the case are limited to only a few of the parties to the proceedings.

Vehicle Owner Also Liable To Pay For Maintenance, Treatment Of Animals Recovered From His Truck: Bombay High Court

Case Title: Altaf Babru Shaikh v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 521

The Bombay High Court upheld an order directing the owner of a vehicle to pay towards maintenance and health inspection of the animals seized from it under the Prevention of Cruelty to Animals Act.

Justice Prakash Naik in the judgement noted that the Sessions Judge, while upholding the magistrate's order, has made reference to Rule 5 of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 which provides for joint and several liability for the cost of transport, treatment and care of animals in case of offence relating to transport of animals, by the vehicle owner, consignor, consignee, transporter, agents and any other parties involved.

Correspondence Between Parties Cannot Overrule Clear Intention Under Agreement Providing For Optional Arbitration: Bombay High Court

Case Title: GTL Infrastructure Ltd. v. Vodafone India Ltd. (VIL)

Citation: 2022 LiveLaw (Bom) 522

The Bombay High Court ruled that where a clause stipulated that the parties ‘may’ be referred to arbitration, the said clause does not constitute an arbitration agreement, despite the fact that the clause conferred a binding nature upon the decision of the Arbitrator. The Court added that the said clause merely contemplated a future possibility and a choice to refer the disputes to arbitration.

The bench of Justice Bharati Dangre held that once an option is made available to a party to not be referred for arbitration, the mandatory nature of an arbitration agreement gets ripped off. It further ruled that the correspondence exchanged between the parties cannot overrule or surpass the clear intention of the parties as manifest under the terms of the agreement.

The Court said that the correspondence exchanged between the parties or any contention raised before the Court, after the dispute has arisen, is of no consequence if the agreement between the parties does not indicate an intention to refer disputes to arbitration.

Marine Paint As Part Of Vessel? Bombay High Court Confirms AAAR Decision

Case Title: Jotun India Private Limited v. Union of India

Citation: 2022 LiveLaw (Bom) 523

The Bombay High Court dismissed the writ petition challenging the advance ruling given by the Maharashtra Appellate Authority for Advance Ruling (AAR).

The division bench of Justice Nitin Jamdar and Justice Gauri Godse has observed that the authority and the appellate authority followed the entire procedure and that full opportunity was given to the petitioner. There was no evidence of a violation of natural justice principles due to a lack of opportunity to be heard.All points put forth by the petitioner as to why anti-fouling paint should be considered part of the ship were taken into consideration, and the authority and the Appellate Authority took a particular view of the matter.

Bombay High Court Grants Pre-Arrest Bail To Chairman Habib Group Trusts In SC/ST Act Case

Case Title: Javed Raza Shroff v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 524

Ruling that the bar on granting anticipatory bail in cases under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act won’t apply as the allegations against him appear to be motivated and an afterthought, the Bombay High Court granted pre-arrest bail to Chairman of Habib Group Trusts Mumbai Javed Shroff, who has been accused of sexual harassment and using casteist slurs against a teacher employed with the trust.

The bar under section 18A of the SC/ST act becomes applicable only once a prima facie case is established under Section 3(i) of the Act. The Dongri police has booked Shroff for offences under Sections 354-A, 504, 506, 509 of the IPC and Sections 3(1)(W)(I)(II) of SC/ST Act.

A division bench of Justices AS Gadkari and Prakash Naik found unexplained delay in filing the FIR and the allegations to be vague.

Difficult To Accept A Widow With Two Children Residing In A Thickly Populated Locality Could Be Forcibly Raped On Several Occasions: Bombay High Court

Case Title: Siddhodhan alias Shudhodan s/o Namdeorao Kurule v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 525

Finding it difficult to accept that a widow with two children could be raped many times in a thickly populated locality, the Bombay High Court recently quashed an FIR against a man accused of raping a woman.

“In fact, there was long standing acquaintance between applicant and accused. It is difficult to accept that a widow with two children residing in a thickly populated residential locality could be forcibly raped not once but on several occasions,” said the court.

A division bench of Justice Vibha Kankanwadi and Justice Abhay Waghwase of the Aurangabad bench was dealing with a criminal application filed by the man seeking to quash the charge sheet and FIR filed against him for offences punishable under Sections 376, 406, 427, 323, 506 of the IPC.

The court noted that the alleged instances were reported for the first time six months after they began. From the supplementary statement of the woman, the court noted that the applicant is her neighbour who regularly visited her house and even helped her at times.

The court also noted that the neighbours and her parents seem to be totally unaware about the alleged incidents.

Nationalised Banks Insensitive, Lackadaisical Attitude Putting Public Money At Grave Risk: Bombay High Court Pulls Up Bank Of India

Case Title: Bank of India v. Magnifico Minerals Private Limited and Anr.

Citation: 2022 LiveLaw (Bom) 526

The Bombay High Court pulled up Bank of India for its ‘lackadaisical attitude’ in dealing with public money, observing that nationalized banks should be made conscious of the fact that their negligence causes a great deal of loss to the public.

A division bench of Justice K. R. Shriram and Justice Kamal Khata refused to condone a delay of 579 days in filing a commercial appeal against a November 2020 order.

“... the staff / officers of public sector banks/Nationalized Banks and public undertakings are insensitive about the fact that they are working for the public and dealing with public money. Their lackadaisical attitude puts the public money at grave risk and consequently the economy of the country. Whilst applicant (a Nationalized Bank) expects the Courts to protect the interest of the public, they continue to be lackadaisical and negligent and have taken the Courts for granted, which in our opinion, is required to be stopped”.

‘Dying Declaration Concocted Document, Ought To Have Been Discarded Outright’ By Trial Court: Bombay High Court Frees Man Convicted Of Wife’s Murder

Case Title: Sandip Prakash Rathod v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 527

The Bombay High Court recently set aside a man’s conviction for murdering his wife disbelieving a woman’s dying declaration due to circumstances surrounding it. The man was convicted in March 2015.

The court noted that there was no explanation for impression of right thumb on the dying declaration instead of the usual left, and no information about whether any sedative was given to her before the declaration. Further, the endorsement of the medical officer was not supported by case papers.

The division bench of Justice Vibha Kankanwadi and Justice Rajesh Patil of Aurangabad bench said:

“PW-5 police head constable Sardar has not explained as to why he had taken right thumb impression of Kavita (deceased) on Exhibit-31(dying declaration). In fact it is always the practice to take thumb impression of left hand on any document….It (dying declaration) does not appear to be true and it is also not supported by the case papers, of which details were necessary, as to whether the sedative was started, what was the position of the left hand of Kavita etc.”

Other Developments

No Progress By Mental Health Authority In Five Years, State Counsel Handicapped Without Instructions: Bombay High Court Summons Secretary Health

Livid over the Maharashtra Mental Health Authority's non-functioning and lackadaisical attitude, the Bombay High Court recently directed state health department's principal secretary and CEO of the authority to remain present during the next hearing in court.

"…for last almost five years no progress at all has been achieved by the Authority," the division bench of Justices NJ Jamadar and Gauri Godse noted observed and appointed Senior Advocate JP Sen as amicus curiae.

The court took strong exception to the lack of instructions by the State to the government pleader. Even a copy of the government resolution, dated October 20, 2018, constituting the State Mental Health Authority has not been furnished to him, it observed.

Bombay High Court Refuses Urgent Hearing To Former ICICI Bank CEO Chanda Kochhar In Plea Against Arrest

Former ICICI Bank CEO and MD Chanda Kochhar and her husband Deepak have approached the Bombay High Court alleging illegal arrest by CBI in the case of alleged irregularities regarding loans granted to Venugopal Dhoot's Videocon Group.

While they sought urgent hearing of their petition for interim relief of release, the vacation bench of Justice Madhav J Jamdar and Justice S G Chapalgaonkar said there was no urgency and the petitioners can approach the regular court on January 2 and seek circulation of their plea.

It is the Kochhars' claim that their arrest was without prior sanction under the Prevention of Corruption Act (PCA). They have sought setting aside of the remand order.

Breaking: Bombay High Court Refuses to Extend Stay On Order Granting Bail to Anil Deshmukh

The Bombay High Court refused to extend the stay on order granting bail to former state home minister Anil Deshmukh in a corruption case after the Central Bureau of Investigation (CBI) approached the vacation bench seeking another extension.

Paving way for Deshmukh's release, Justice Santosh Chapalgaonkar refused to entertain CBI's plea in light of regular court's earlier order that no further extension will be entertained.

PIL In Bombay High Court Challenges 75% Marks Eligibility Criteria For JEE Mains, Seeks Deferment Of Exam To April 2023

A PIL has been filed in the Bombay High Court seeking deferment of the upcoming JEE Mains examination. It also challenges the eligibility criterion of 75 percent marks in Class XII.

The PIL challenges a notification issued by the National Testing Agency (NTA) on December 15, 2022, declaring dates of JEE Mains, 2023 from January 24 to 31, 2023 and providing the minimum eligibility criteria.

The petition contends that many candidates are from batches that were assessed on the basis of performance in the previous years as the board exams were cancelled due to COVID pandemic. According to the petition, the marks scored by such students are not a true reflection of their actual ability.

According to the petition, the notification has been issued at a short notice of only 40 days as compared to the usual 3 to 4 months in the previous years. Further, the schedule clashes with the board practical examinations, pre-board examinations, internal assessments, vivas, etc. of various boards.

‘Far Too Much Time Is Lost In Mentioning’: Justice GS Patel-led Bench In Bombay HC Issues Directions To Reduce Paper Inflow, Streamline Listing Process

The Bombay High Court bench headed by Justice Gautam Patel has issued a slew of directives on the administrative side on an experimental basis to “reduce paper in-flow” and streamline the process of listing cases before his bench.

According to the notice dated December 28, an automated system for listing will be implemented, doing away with any mentioning of matters unless there is extreme urgency (imposition of costs if urgency is not found). The Daily Board for every week will be issued the previous Friday or Saturday, it adds.

Bombay High Court Makes E-filing Mandatory For Criminal Cases, Arbitration Petitions

The Bombay High Court made e-filing of new criminal cases, arbitration petitions and civil contempt petitions mandatory from January 9, 2023. Earlier, the court issued a notice making e-filing mandatory for all cases in the Commercial Division, all cases concerning Direct and Indirect Tax, and Non-Commercial Arbitration cases filed at Original Side from January 2, 2023.