Madras High Court Weekly Round-Up: November 14 to November 20, 2022

Citations: 2022 LiveLaw (Mad) 461 To 2022 LiveLaw (Mad) 470

NOMINAL INDEX

Kirankumar Moolchand Jain versus TransUnion CIBIL Ltd., 2022 LiveLaw (Mad) 461

Sunitha v. Additional Chief Secretary to Government and others, 2022 LiveLaw (Mad) 462

S Rajarethinam (Deceased) and others v. State of Tamil Nadu and others, 2022 LiveLaw (Mad) 463

M/s. Polyhose India Private Limited versus The Additional Director General of Foreign Trade, 2022 LiveLaw (Mad) 464

M/s. Deetech Projects Pvt. Ltd. versus M/s. Batliboi Environmental Engineering Ltd., 2022 LiveLaw (Mad) 465

S Muthumalai Rani v The Secretary and others, 2022 LiveLaw (Mad) 466

Arul Daniel v Suganya and other connected matters, 2022 LiveLaw (Mad) 467

S Jagathrakshakan v The Deputy Director, Directorate of Enforcement, 2022 LiveLaw (Mad) 468

V Senthil Balaji v Nirmal Kumar and others, 2022 LiveLaw (Mad) 469

Viacom18 Media Private Limited v Bharath Sanchar Nigam Limited and others, 2022 LiveLaw (Mad) 470

REPORT

1. Section 31 Of The Credit Information Companies (Regulation) Act, 2005 Does Not Bar Constitution Of An Arbitral Tribunal: Madras High Court

Case Title: Kirankumar Moolchand Jain versus TransUnion CIBIL Ltd.

Citation: 2022 LiveLaw (Mad) 461

The Madras High Court has ruled that the bar contained under Section 31 of the Credit Information Companies (Regulation) Act, 2005 (CIC Act) will not apply to proceedings for constitution of an arbitral tribunal, to resolve the disputes in the manner prescribed under the CIC Act.

The Single bench of Justice Senthilkumar Ramamoorthy held that the object and purpose of Section 31 of the CIC Act is to preclude the parties from seeking redressal of grievances in any manner other than that prescribed under the CIC Act. It added that since Section 18 of the CIC Act provides for dispute resolution through arbitration, the provisions of Section 31 would not bar the constitution of an arbitral tribunal.

2. Tamil Nadu Govt Misusing Preventive Detention Laws, Will Order State To Pay Compensation Whenever Detention Is Found Frivolous: Madras High Court

Case Title: Sunitha v. Additional Chief Secretary to Government and others

Citation: 2022 LiveLaw (Mad) 462

Expressing shock over Tamil Nadu government's abuse of preventive detention laws, the Madras High Court has said that it will impose costs on the State whenever a preventive detention order is found to be illegal.

The division bench of Justice MS Ramesh and Justice Anand Venkatesh gave the ruling in two habeas corpus petitions filed by relatives of the detenues under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual offenders, Slum-Grabbers and Video Pirates Act, 1982.

The court held that callous indifference towards the violation of fundamental rights guaranteed under Article 21 of the Constitution clearly constituted a "Constitutional Tort". It added that such detention orders, which are passed ignoring the law, only to be set aside, clearly shows the State's refusal to follow the law.

3. DK Basu Guidelines Violated: Madras HC Initiates Suo Moto Contempt Proceedings Against DGP & Other Police Officials Over Lawyer's Arrest In 2017

Case Title: S Rajarethinam (Deceased) and others v. State of Tamil Nadu and others

Citation: 2022 LiveLaw (Mad) 463

The Madras High Court on Monday initiated suo moto contempt proceedings against the Director General of Police and other police officials for prima facie flouting the guidelines issued by the Supreme Court in DK Basu's case, while arresting a lawyer in 2017.

Justice SM Subramaniam observed that the report of the Magistrate concerned revealed about the excessiveness of the police and an act of violation allegedly committed by them. It observed that the police officials are expected to understand the scope of fundamental rights enumerated under Articles 14,16,19 and 21 of the Constitution while initiating action against any individuals. The bench also expressed dismay over the long delay in concluding the disciplinary action that was initiated against the errant officials.

The court was satisfied that the procedures as contemplated under DK Basu were not followed. In light of the such matter, the thought it fit to initiate suo moto contempt proceedings against the officials.

4. DGFT Cannot Amend Foreign Trade Policy; Can't Restrict The Benefit Of SHIS Scheme: Madras High Court

Case Title: M/s. Polyhose India Private Limited versus The Additional Director General of Foreign Trade

Citation: 2022 LiveLaw (Mad) 464

The Madras High Court has ruled that the Director General of Foreign Trade (DGFT), in exercise of its power to clarify the doubts regarding the interpretation of the Foreign Trade Policy (FTP), as formulated by the Central Government, cannot amend the very policy itself.

The single bench of Justice N. Sathish Kumar noted that the FTP 2009-2014 provided for grant of Status Holder Incentive Scrip (SHIS), an export incentive, to the entire Plastic sector. The Court held that the DGFT cannot restrict the said incentive to the plastic products falling under a particular Serial Number under the ITC HS Classification, in the absence of any amendment in the FTP.

5. Arbitration Survives Even If Arbitration Under MSMED Act Declared Non-Maintainable: Madras High Court

Case Title: M/s. Deetech Projects Pvt. Ltd. versus M/s. Batliboi Environmental Engineering Ltd.

Citation: 2022 LiveLaw (Mad) 465

The Madras High Court has ruled that once a dispute is referred to the Facilitation Council under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), if the Facilitation Council adjudicates the dispute on merits, such decision would operate as res judicata and would bar the institution of arbitral proceedings in respect of the same dispute.

However, the Court held that if the Facilitation Council declines to exercise jurisdiction on the ground that the petition was not maintainable before it, the arbitration clause contained in the agreement between the parties would survive.

The single bench of Justice Senthilkumar Ramamoorthy observed that by way of a legal fiction contained under Section 18(3) of the MSMED Act, an arbitration agreement in terms of the A&C Act is statutorily imported once the dispute is taken up for arbitration under the MSMED Act. The Court ruled that the said legal fiction does not have the effect of novating the agreement between the parties by deleting the arbitration clause contained in the said agreement.

6. Set Up Flying Squads To Inspect Govt Hospitals, Ensure Doctors & Medical Staff Attend Duty During Working Hours: Madras HC Directs Health Secy

Case Title: S Muthumalai Rani v The Secretary and others

Citation: 2022 LiveLaw (Mad) 466

The Madras High Court recently directed the government to constitute "Flying Squads" at Regional and District levels to conduct frequent surprise inspections in Government Hospitals, Primary Health Centres, etc., across the State to ensure that Doctors and other staffs are properly working in the hospitals and also ensure that the Hospitals are working in a good manner.

The court also directed that the activities of the Flying Squad could be monitored by the Head of Departments or the Government to maintain its efficiency.

7. Proceedings Under Section 12 Of DV Act Can Be Challenged Only Under Article 227, Not Section 482 CrPC: Madras High Court Full Bench

Case Title: Arul Daniel v Suganya and other connected matters

Citation: 2022 LiveLaw (Mad) 467

A Full Bench of the Madras High Court on Thursday held that proceedings under Section 12 of the Domestic Violence Act can be challenged in the High Court only under Article 227 of the Constitution and not by invoking the court's power under Section 482 CrPC.

The matter was referred to the bench of Justice PN Prakash, Justice RMT Teeka Raman and Justice AD Jagadish Chandira after Justice N Satish Kumar, while considering a batch of petitions seeking to quash the application filed under Section 12 of the DV Act by invoking the provision under Section 482 CrPC, in an order observed that a division bench's recent ruling on the legal question was not in consonance with the Supreme Court decisions.

While disposing of the petition, the larger bench observed that the High Court did not have the powers to quash proceedings under the Domestic Violence Act through Section 482 of CrPC. It observed that this is because, under the Domestic Violence Act, a Magistrate court is the designated court to hear applications. Since Magistrate's court is not a criminal court, a petition under Section 482 is not maintainable. The High Court could thus entertain challenges against proceedings under Domestic Violence Act only under Article 227.

8. Madras High Court Quashes ED's Money Laundering Proceedings Against DMK MP Jagathrakshakan

Case Title: S Jagathrakshakan v The Deputy Director, Directorate of Enforcement

Citation: 2022 LiveLaw (Mad) 468

The Madras High Court recently quashed Enforcement Directorate proceedings against DMK MP S Jagathrakshakan. A bench of Justice PN Prakash and Justice RMT Teeka Raman allowed the petition filed by the Minister after observing that the FIRs in the predicate offense were already quashed by a single judge.

While seeking to quash the proceedings under the Money Laundering Act, the petitioners relied on the decision of the Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others. In this case, the Supreme Court observed that If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.

In light of the above judgment, the court allowed the petition filed by the Minister and set aside the proceedings under the Money Laundering Act.

9. . High Court Restrains Tamil Nadu BJP IT Wing Head From Making Defamatory Remarks Against DMK Minister Senthil Balaji

Case Title: V Senthil Balaji v Nirmal Kumar and others

Citation: 2022 LiveLaw (Mad) 469

The Madras High Court has recently restrained the head of Tamil Nadu BJP IT Wing, CTR Nirmal Kumar from making any defamatory remarks, statements or tweets against DMK Minister Senthil Balaji.

The interim orders were passed by a bench of Justice CV Karthikeyan on a plea by Senthil Balaji.

In his plea, Balaji submitted that the defendant, was habitually offending the Minister due to political differences, through tweets and other interviews. He also submitted that the allegations did not have any backing as there was no evidence to support the claims. The defendant was thus making vexatious and slanderous allegations without any basis, Balaji said.

10. Madras High Court Restrains Over 12K Websites From Illegally Broadcasting FIFA World Cup 2022

Case Title: Viacom18 Media Private Limited v Bharath Sanchar Nigam Limited and others

Citation: 2022 LiveLaw (Mad) 470

The Madras High Court on Friday granted interim injunction to Viacom18 and restrained more than 12,000 websites from showcasing the FIFA World Cup 2022.

While granting the interim injunction, Justice M Sundar said:

With regard to prima facie case, there is no difficulty in accepting prima facie that the plaintiff is the owner of the Copyright in the Sporting Event. In Terms of balance of convenience, if this interim order is not granted now, it would result in alleged piracy being completed in all and every aspect of the matter.

Finding merit in the case of the Plaintiffs, the court restrained the respondent internet service providers "or any other person or entity" from infringing the plaintiff's copyright over the FIFA World Cup sporting event "to prevent copying, transmission, communication, displaying, releasing, showing, hosting, streaming, uploading, downloading, exhibiting, playing and exhibition of the sporting event".

OTHER DEVELOPMENT

1. Madras HC Permits Online Gaming Companies To Withdraw Petitions Against TN Ordinance Which Is Yet To Come Into Force

Case Title: All India Gaming Federation v. State of Tamil Nadu and other connected cases

Case No: WP No. 29911 of 2022

The All India Gaming Federation and other online gaming companies on Wednesday withdrew all petitions challenging Tamil Nadu government's ordinance for Prohibition of Online Gambling and Regulation of Online Games, after State informed that it is yet to be notified.

The bench of Acting Chief Justice T Raja and Justice D Krishnakumar also gave liberty to the petitioners to file fresh petitions once the ordinance comes into effect.

When the matter came up for hearing today, Senior Advocate Kapil Sibal appearing for the state of Tamil Nadu objected to the petitions and contended that the petitioners were seeking a premature prayer. He informed the court that the ordinance has not yet come into effect and that the petitioners did not have necessary cause of action to challenge the ordinance.

Observing that the court could not interfere at such a time when the ordinance itself had not come into effect, the court gave liberty to the petitioners to withdraw the suit with liberty to file fresh petitions.

2. Madras High Court Dismisses Plea Seeking CBI Probe Into Death of Former Chief Minister Jayalalithaa

Case Title: RR Gopaljee v Union of India

Case No: WP No. 119133 of 2022 (Filing No)

The Madras High Court has dismissed a plea seeking CBI enquiry into the death of former Tamil Nadu Chief Minister Jayalalitha. The bench of Acting Chief Justice T Raja and Justice D Krishnakumar dismissed the petition observing that it was not maintainable.

While dismissing the petition, the court asked Petitioner R R Gopaljee to exhaust his remedies before the CBI and other concerned authorities by way of representations before approaching the High Court.

3. Footballer Priya's Death: Madras HC Refuses To Pass Orders On Doctors' Anticipatory Bail Pleas, Asks State To Ensure Their Safety

Case Title: Paul Ramshankar v Inspector Of Police and Somasundar v Inspector of Police

Case No: CRL OP 28484 of 2022 and CRL OP 28487 of 2022

The Madras High Court on Friday refused to pass orders on the anticipatory bail petitions filed by two doctors allegedly connected with the death of footballer Priya. At the same time, the court orally directed the State to ensure the safety of the two doctors and further that their families should not be harassed.

"We're living in a country where a Doctor, a Covid Warrior, was not given a decent burial. We must ensure the safety of the doctors as they have been getting threatening calls", Justice AD Jagadish Chandra observed.

The court adjourned the matter to two weeks. In the meantime, the doctors were given liberty to surrender before the police if they wished to do so.

4. After Gujarat & Telangana, Madras Bar Protests Against Supreme Court Collegium Proposal To Transfer Judge

After Gujarat and Telangana, the Madras High Court Advocates Association has come forward opposing the proposal to transfer a sitting judge.

The Association has taken objection to the transfer of Acting Chief Justice T Raja to Rajasthan High Court.

The Association wrote a letter to Chief Justice DY Chandrachud opposing the transfer. In its letter, the association President G Mohanakrishnan wrote that the transfer "does not bode well for the judiciary and is seen as a disincentive for efficiency and judicial decency."

The letter further states that, Justice Raja's transfer which has come at a time when he has only six months to retire is a bad news for the judiciary.