The Complete Supreme Court Annual Digest- 2023 [Part-XII]

Information

RTI Act will become 'dead letter': Supreme Court directs States, Union to fill vacancies in Information Commissions. Anjali Bhardwaj v. Union of India, 2023 LiveLaw (SC) 942

'Ensure public authorities follow the mandate of Section 4 RTI Act': Supreme Court directs Central / State Information Commissioners. Kishan Chand Jain v. Union of India, 2023 LiveLaw (SC) 665 : AIR 2023 SC 4001

Temporary Injunction

Grant of Temporary Injunction - Principles and precedents discussed. (Para 21) Thiru K. Palaniswamy v. M Shanmugham, 2023 LiveLaw (SC) 133 : AIR 2023 SC 1253

Import

CTO for enhanced production capacity issued after SC's order fixing total import limit; importer not entitled to proportionate increase in import quota. Sanvira Industries v. Rain CII Carbon (Vizag) Ltd., 2023 LiveLaw (SC) 497 : AIR 2023 SC 3091

Industrial Disputes

'After allowing workmen to work for 2 decades, management cannot challenge the award': Supreme Court allows appeal of FCI workers. FCI Executive Staff Union v. Employer, Management of FCI, 2023 LiveLaw (SC) 491 : AIR 2023 SC 3293 : (2023) 8 SCC 116

Industrial Disputes Act, 1947

Industrial Disputes Act, 1947 - Advocate cannot claim the right of legal representation - No ground to revisit the well settled position of law which has prevailed for almost half a century. ThyssenKrupp Industries India Pvt. Ltd. v. Suresh Maruti Chougule, 2023 LiveLaw (SC) 868

Industrial Disputes Act, 1947; Sections 10(1)(d), 17B and 25F - Having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the Award, merely because it made its compliance with the Award conditional long ago. In the light of their absorption in regular service, these workmen, who may have otherwise opted for employment opportunities elsewhere, altered their position and remained with the FCI. Having placed them in that position, it is no longer open to the management of FCI to seek to turn back the clock. (Para 16) FCI Executive Staff Union v. Employer, Management of FCI, 2023 LiveLaw (SC) 491

Industrial Disputes Act, 1947; S.33C(2) - U.P. Industrial Disputes Act, 1947; S.6H - The appellant–workman claimed unlawful termination of his employment (sometime in 1979) and approached the Labour Court. The Labour Court directed his reinstatement and also directed payment of back wages at the rate of ₹8000/-. The Respondent, U.P. Power Corporation, filed a writ petition which was dismissed after the High Court had kept it pending for 11 long years, on 03.01.2006. The appellant thereafter represented to the employer on several occasions, but unsuccessfully. Ultimately, he approached the Labour Court yet again for calculation of his dues. In this second round, the Labour Court by order dated 31.08.2020 calculated back wages and directed payment of ₹8000/- per month. By the impugned order of the High Court those directions were set aside. Held, the High Court could not have done what it in fact did, i.e., to set aside the second order of the Labour Court which merely calculated the amounts due and made consequential directions. The adjudication between the parties having crystallized with the award dated 22.12.1995, which was confirmed by the High Court, there was no occasion for any intervention, much less by the High Court. In these circumstances, the second award of the Labour Court is hereby restored. The respondent–U.P. Power Corporation Limited is hereby directed to pay to the appellant the sum indicated, i.e., ₹10,54,311/-, with interest @ 11% p.a. calculable from 21.09.2006 and shall also pay ₹2,00,000/- as costs. The appeal is allowed. (Para 3, 6) Phool Mohd. v. Executive Engineer, 2023 LiveLaw (SC) 736

Insolvency and Bankruptcy Code, 2016

Admitting claims after a resolution plan has been accepted by COC would make CIRP an endless process. RPS Infrastructure Ltd. v. Mukul Kumar, 2023 LiveLaw (SC) 773 : AIR 2023 SC 4197

Application under Section 12A for withdrawal of CIRP is maintainable prior to the Constitution of CoC. Abhishek Singh v. Huhtamaki Ppl Ltd., 2023 LiveLaw (SC) 250

Cannot ask successful resolution applicant to pay arrears payable by corporate debtor for grant/restoration of electricity connection. Tata Power Western Odisha Distribution Ltd. v. Jagannath Sponge Pvt. Ltd; 2023 LiveLaw (SC) 788

Cut-off date to determine the resolution applicant's eligibility under Section 240A is the date of submitting the resolution plan. Hari Babu Thota, 2023 LiveLaw (SC) 1051

Delay in filing CIRP application condonable on sufficient reasons. Sabarmati Gas Ltd. v. Shah Alloys Ltd., 2023 LiveLaw (SC) 9 : AIR 2023 SC 288 : (2023) 3 SCC 229

Date of order pronouncement & time taken to provide certified copy excluded from limitation period for appeal to NCLAT. Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406 : (2024) 2 SCC 545

EPFO employees must comply with the IBC timeline for filing claims; default officers must face action. Employees Provident Fund Organization v. Fanendra Harakchand Munot, 2023 LiveLaw (SC) 734

For rejection of a resolution plan under Section 31(2), NCLT must pass a reasoned order. Ramkrishna Forgings v. Ravindra Loonkar, 2023 LiveLaw (SC) 1007 : (2024) 2 SCC 122

Homebuyers who secure RERA decrees can't be treated differently from other financial creditors under IBC. Vishal Chelani v. Debashis Nanda, 2023 LiveLaw (SC) 894

IBC overrides electricity act; dues to secured creditors at higher footing than electricity dues. Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd., 2023 LiveLaw (SC) 534 : AIR 2023 SC 3501 : 2023) 10 SCC 60

IBC resolution plan can't ignore Government dues: Supreme Court dismisses review petitions against 'rainbow papers'. Sanjay Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : AIR 2023 SC 5636 : (2024) 2 SCC 362

Ineligibility of resolution applicant as per S.164(2)(b) Companies Act can't be presumed unless competent authority declares disqualification. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

In the case at hand, we find that there was no occasion before the Adjudicating Authority- NCLT to be swayed only on the per se ground that the hair-cut would be about 94.25% and that it was not convinced that the fair value of the assets have been projected in proper manner as the bid of the appellant was very close to the fair value of the assets of ACIL. Ordering revaluation of the assets, by the Official Liquidator, Ministry of Corporate Affairs, Government of India, in-charge of the particular area, cannot be justified. (Para 29) Ramkrishna Forgings v. Ravindra Loonkar, 2023 LiveLaw (SC) 1007 : (2024) 2 SCC 122

NCLAT can 'recall' its judgment, can't 'review' them: Supreme Court affirms NCLAT ruling. Union Bank of India v. Financial Creditors, 2023 LiveLaw (SC) 589

No casual interference with commercial wisdom of CoC : Supreme Court sets aside NCLT direction to reevaluate corporate debtor's assets. Ramkrishna Forgings v. Ravindra Loonkar, 2023 LiveLaw (SC) 1007 : (2024) 2 SCC 122

No modified resolution plan can be directly placed before NCLT without being finally approved by the CoC. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Once a resolution plan is approved, no modifications are permissible. SREI Multiple Asset Investment Trust Vision India Fund v. Deccan Chronicle Marketeers, 2023 LiveLaw (SC) 231 : (2023) 7 SCC 295

Principle of commercial wisdom not validate a decision taken by CoC in contravention of law. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Properties sold in auction sale before declaration of moratorium can't be treated as liquidation asset. Haldiram Incorporation Pvt. Ltd. v. Amrit Hatcheries Pvt. Ltd., 2023 LiveLaw (SC) 1029

Reliance Home Finance Insolvency: Supreme Court allows debenture holders to be covered under resolution plan of Authum Investments. Authum Investment and Infrastructure Ltd. v. R.K. Mohatta Family Trust, 2023 LiveLaw (SC) 173 : AIR 2023 SC 1459

Remedies against third-parties not available under Section 66 of IBC. Glukrich Capital Pvt. Ltd. v. State of West Bengal, 2023 LiveLaw (SC) 464

Resolution professional entitled to take control of corporate debtor's rights in assets licensed to third parties. Victory Iron Works Ltd. v. Jitendra Lohia, 2023 LiveLaw (SC) 193 : (2023) 7 SCC 227

Sabka Vishwas Scheme: Supreme Court grants relief to company which missed deadline due to IBC moratorium. Shekhar Resorts Ltd. v. Union of India, 2023 LiveLaw (SC) 15 : AIR 2023 SC 276 : (2023) 3 SCC 220

Section 240A IBC - Even if MSME registration obtained post commencement of CIRP, the promoter is eligible to submit a resolution plan. Hari Babu Thota, 2023 LiveLaw (SC) 1051

Section 9 petition not to be dismissed if few invoices are time barred but remaining invoices are not. Next Education India Pvt. Ltd. v K12 Techno Services Pvt. Ltd., 2023 LiveLaw (SC) 270

Supertech Insolvency: Supreme Court approves 'project wise resolution' plan. Indiabulls Asset Reconstruction Company Ltd. v. Ram Kishore Arora, 2023 LiveLaw (SC) 436 : AIR 2023 SC 2273

Supreme Court upholds constitutionality of IBC provisions relating to personal guarantors; says adjudicatory role can't be read into Section 97. Dilip B. Jiwrajka v. Union of India, 2023 LiveLaw (SC) 1010

Tax & Customs dues to be paid as per waterfall mechanism under Section 53. Principal Commissioner of Customs v. Rajendra Prasad Tak, 2023 LiveLaw (SC) 952

The Code was specifically introduced by Parliament for ensuring quick and time-bound resolution of insolvency of corporate entities in financial trouble, by first attempting to revive the Corporate Debtor, failure whereof would entail liquidation of the Corporate Debtor's assets, and no unnecessary impediment should be created to delay or derail the CIRP. (Para 29) Ramkrishna Forgings v. Ravindra Loonkar, 2023 LiveLaw (SC) 1007 : (2024) 2 SCC 122

When matter is heard on a particular date but order pronounced later, NCLT not to affix date of hearing on order. Sanjay Pandurang Kalate v. Vistra ITCL (India) Ltd., 2023 LiveLaw (SC) 1060

Insolvency and Bankruptcy Code (Amendment) Act, 2021 - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - A company could not avail benefit of the Sabka Vishwas scheme as it was under moratorium under IBC - The Courts are meant to do justice and cannot compel a person to do something which was impossible for him to do - Directed that the payment of amount already deposited by the company be appropriated towards settlement dues under “Sabka Vishwas Scheme 2019 and the company be issued discharge certificate. Shekhar Resorts Ltd. v. Union of India, 2023 LiveLaw (SC) 15 : AIR 2023 SC 276 : (2023) 3 SCC 220

Insolvency and Bankruptcy Code, 2016; Section 7 - It was inappropriate for the NCLAT to direct the NCLT to admit the application under Section 7 of IBC straightaway without an evaluation of the rival contentions on merits. (Para 8) Maneesh Pharmaceuticals Ltd. v. Export Import Bank of India, 2023 LiveLaw (SC) 1073

Insolvency and Bankruptcy Code, 2016; Section 7 - Limitation Act, 1963; Section 5 and 18 - Delay of 1392 days - Additional affidavit stating that the delay was only of 662 days in view of the acknowledgement - Adjudicating Authority condoned the delay of 662 days and passed an order of admission and appointment of Interim Resolution Professional (IRP) – Held, the Adjudicating Authority as well as NCLAT have accepted the explanation for the delay caused in filing the Section 7 IBC petition to be satisfactory and have condoned the same - taking the date of acknowledgment of debt in Balance Sheet and the three OTS proposals the same were within the limitation under law or the extended limitation due to acknowledgments – Appeal dismissed. Axis Bank Ltd. v. Naren Seth, 2023 LiveLaw (SC) 791 : (2024) 1 SCC 679

Insolvency and Bankruptcy Code 2016; Section 31 - After passing of the Resolution Plan under Section 31 of IBC by the Adjudicating Authority and in the light of Section 32A of IBC, the criminal proceedings under Section 138 of the NI Act will stand terminated only in relation to the Corporate Debtor if the same is taken over by a new management. (Para 86) Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd., 2023 LiveLaw (SC) 195

Insolvency and Bankruptcy Code 2016; Section 31 - Process under the IBC whether under Section 31 or Sections 38 to 41 cannot extinguish criminal proceedings under Section 138 NI Act 1881 against former directors of the corporate debtor. (Para 18) Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd., 2023 LiveLaw (SC) 195

Insolvency and Bankruptcy Code 2016; Section 53 - Waterfall mechanism - Complete code - The waterfall mechanism is based on a structured mathematical formula, and the hierarchy is created in terms of payment of debts in order of priority with several qualifications, striking down any one of the provisions or rearranging the hierarchy in the waterfall mechanism may lead to several trips and disrupt the working of the equilibrium as a whole and stasis, resulting in instability. Every change in the waterfall mechanism is bound to lead to cascading effects on the balance of rights and interests of the secured creditors, operational creditors and even the Central and State Government. (Para 16) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Insolvency and Bankruptcy Code, 2016 - A resolution applicant cannot be rendered ineligible to submit a resolution plan under the IBC, by assuming his/her disqualification under Section 164(2)(b) of the Companies Act, 2013, unless a categorical order disqualifying him/her to act as a director of any company is passed by the competent authority. There is no concept of 'deemed disqualification' under Section 164(2)(b) of the Companies Act, 2013. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - Admitting claims after the Resolution Plan has been accepted by the Committee of Creditors (COC) under IBC even though the Adjudicating Authority has yet to approve the plan, would make the Corporate Insolvency Resolution Process (CIRP) an endless process. (Para 21) RPS Infrastructure Ltd. v. Mukul Kumar, 2023 LiveLaw (SC) 773

Insolvency and Bankruptcy Code, 2016 - Commissioner and employees of the Employees Provident Fund Organization (EPFO) must ensure that they comply with the timelines under the IBC. In case of failure to comply with the timelines, action must be taken against erring employees. Employees Provident Fund Organization v. Fanendra Harakchand Munot, 2023 LiveLaw (SC) 734

Insolvency and Bankruptcy Code, 2016 - if a modified resolution plan, carrying however minor modification/revision, is not finally approved by Committee of Creditors (CoC), then presentation of such modified plan before the Adjudicating Authority for approval is an incurable material irregularity. No modified resolution plan can be placed directly before the NCLT, without being finally approved by the CoC. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - National Company Law Appellate Tribunal (NCLAT) Rules, 2016 - The Supreme Court has upheld the ruling of NCLAT fivemember bench, wherein it was held that NCLAT is empowered to recall its judgment but not to review them. The Supreme Court has affirmed the NCLAT's ruling and dismissed an appeal filed against the order. Union Bank of India v. Financial Creditors, 2023 LiveLaw (SC) 589

Insolvency and Bankruptcy Code, 2016 - Once the Resolution Plan stands approved by the National Company Law Tribunal (NCLT), the Electricity Department cannot demand payment of arrears, which were payable by the Corporate Debtor, from the Successful Resolution Applicant for restoration/grant of electricity connection. The 'clean slate principle' would stand negated if the Successful Resolution Applicant is asked to pay the arrears payable by the Corporate Debtor for the grant of an electricity connection in her/his name. Tata Power Western Odisha Distribution Ltd. v. Jagannath Sponge Pvt. Ltd; 2023 LiveLaw (SC) 788

Insolvency and Bankruptcy Code, 2016 - Recovery of Debts and Bankruptcy Act, 1993 - The question of election between the fora for enforcement of debt under the 1993 Act and initiation of CIRP under the IBC arises only after a recovery certificate is issued. The reliefs under the two statutes are different and once CIRP results in declaration of moratorium, the enforcement mechanism under the 1993 Act or the SARFAESI Act gets suspended. In such circumstances, after issue of recovery certificate, the financial creditor ought to have option for enforcing recovery through a new forum instead of sticking on to the mechanism through which recovery certificate was issued. (Para 11) Tottempudi Salalith v State Bank of India, 2023 LiveLaw (SC) 914 : AIR 2023 SC 5610 : (2024) 1 SCC 24

Insolvency and Bankruptcy Code, 2016 - Recovery of Debts and Bankruptcy Act, 1993 - The enforcement mechanism for a recovery certificate is an independent course, which a financial creditor may opt for realisation of its dues crystalised under the 1993 Act, instead of chasing the mechanism under the 1993 Act. The IBC itself is not really a debt recovery mechanism but a mechanism for revival of a company fallen in debt, but the procedure envisaged in the IBC substantially relates to ensuring recovery of debts in the process of applying such mechanism. (Para 11) Tottempudi Salalith v State Bank of India, 2023 LiveLaw (SC) 914 : AIR 2023 SC 5610 : (2024) 1 SCC 24

Insolvency and Bankruptcy Code, 2016 - Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2018, is binding upon the National Company Law Tribunal (“NCLT”). (Para 34) Abhishek Singh v. Huhtamaki Ppl Ltd., 2023 LiveLaw (SC) 250

Insolvency and Bankruptcy Code, 2016 - Right of the Financial Creditor to invoke the mechanism under the IBC after issue of recovery certificate stood acknowledged as a valid legal course. (Para 11) Tottempudi Salalith v State Bank of India, 2023 LiveLaw (SC) 914 : AIR 2023 SC 5610 : (2024) 1 SCC 24

Insolvency and Bankruptcy Code, 2016 - Section 15 of the IBC and Regulation 6 of the IBBI Regulations mandate a public announcement of the CIRP through newspapers. This would constitute deemed knowledge on the appellant. In any case, their plea of not being aware of newspaper pronouncements is not one which should be available to a commercial party. (Para 20) RPS Infrastructure Ltd. v. Mukul Kumar, 2023 LiveLaw (SC) 773

Insolvency and Bankruptcy Code, 2016 - Section 53 - the distribution of the assets shall have to be made as per Section 53 of the IBC subject to Section 36(4) of the IBC, in case of liquidation of company under IBC - Exclusion of Sections 326 and 327 of Companies Act 2013 in the event of liquidation of company as per IBC not arbitrary. (Para 18) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Insolvency and Bankruptcy Code, 2016 - Section 60(5) - Once the Resolution Plan stands approved, no alterations/modifications are permissible. It is either to be approved or disapproved, but any modification after approval of the Resolution Plan by the CoC, based on its commercial wisdom, is not open for judicial review unless it is found to be not in conformity with the mandate of the IBC Code. (Para 22) SREI Multiple Asset Investment Trust Vision India Fund v. Deccan Chronicle Marketeers, 2023 LiveLaw (SC) 231 : (2023) 7 SCC 295

Insolvency and Bankruptcy Code, 2016 - The 'Doctrine of Election' cannot be applied to prevent a Financial Creditor from approaching the National Company Law Tribunal (NCLT) for initiation of Corporate Insolvency Resolution Process (“CIRP”) against a Corporate Debtor. (Para 11) Tottempudi Salalith v State Bank of India, 2023 LiveLaw (SC) 914 : AIR 2023 SC 5610 : (2024) 1 SCC 24

Insolvency and Bankruptcy Code, 2016 - the development rights created in favour of the Corporate Debtor constitute “property” within the meaning of the expression under Section 3(27) of IBC -Since the expression “asset” in common parlance denotes “property of any kind”, the bundle of rights that the Corporate Debtor has over the property in question would constitute “asset” within the meaning of Section 18(f) and Section 25(2)(a) of IBC- these rights and interests in the immovable property are definitely liable to be included by the Resolution Professional in the Information Memorandum and the Resolution Professional is duty bound under Section 25(2)(a) to take custody and control of the same. (Para 37) Victory Iron Works Ltd. v. Jitendra Lohia, 2023 LiveLaw (SC) 193 : (2023) 7 SCC 227

Insolvency and Bankruptcy Code, 2016 - The exclusion of assets owned by a thirdparty, but in the possession of the Corporate Debtor held under contractual arrangements, from the definition of the expression “assets”, is limited to Section 18. In other words, the Explanation under Section 18 does not extend to Section 25. Victory Iron Works Ltd. v. Jitendra Lohia, 2023 LiveLaw (SC) 193 : (2023) 7 SCC 227

Insolvency and Bankruptcy Code, 2016 - The IBC is a significant prong in economic reforms. It has radically reshaped the law relating to insolvency and bankruptcy. The manner in which the law is administered will have to keep pace with technology. Both the Union government in its rule making capacity and the administrative heads of tribunals must ensure a seamless transition to working in the electronic mode. A copy of this judgment shall be forwarded to the Chairperson of the NCLAT and to the Secretaries to the Union Government respectively in the Ministries of (i) Finance; (ii) Corporate Affairs; and (iii) Law and Justice for ensuring compliance and remedial steps. (Para 30, 31) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406 : (2024) 2 SCC 545

Insolvency and Bankruptcy Code, 2016 - the principle of 'Commercial Wisdom' of the Committee of Creditors (“CoC”) cannot brush aside the shortcomings of the CoC in cases where decision making was done in contravention to a law which is in force for the time being. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - the Resolution Plan could not have been approved by the NCLT on twin reasons, (i) ineligibility of Successful Resolution Applicant in view of Section 88 of the Indian Trust Act; and (ii) the failure of Resolution Applicant to place the revised resolution plan before the CoC prior to seeking approval of the NCLT. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - The Supreme Court has declined to grant any interim relief in respect of order passed by the National Company Law Appellate Tribunal (“NCLAT”) directing 'project wise insolvency resolution process' of Supertech Ltd.'s Eco Village-II project. The Bench has observed that constituting Committee of Creditors (CoC) for all the projects of Supertech Limited would affect the ongoing projects and cause hardship to the homebuyers. The Bench has directed that during the pendency of the appeal, any process beyond voting on the Resolution Plan should not be undertaken without specific orders of the Supreme Court in respect to the Corporate Insolvency Resolution Process (CIRP) of Eco Village-II project. Indiabulls Asset Reconstruction Company Ltd. v. Ram Kishore Arora, 2023 LiveLaw (SC) 436 : AIR 2023 SC 2273

Insolvency and Bankruptcy Code, 2016 - There is no and there cannot be any concept of post facto approval of any resolution plan by CoC which had not been placed before it prior to the filing before the Adjudicating Authority. The requirement of CIRP Regulations, particularly of placing the resolution plan in its final form before the CoC, has to be scrupulously complied with. No alteration or modification in the process could be countenanced. We say so for the specific reason concerning law that if the process as adopted in the present matter is approved, the very scheme of the Code and CIRP regulations would be left open-ended and would be capable of inviting arbitrariness at any level. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - Whether the delay in the filing of claim by the appellant ought to have been condoned by the Resolution Professional. Held, The IBC is a time bound process. There are, of course, certain circumstances in which the time can be increased. The question is whether the present case would fall within those parameters. The delay on the part of the appellant is of 287 days. The appellant is a commercial entity. That they were litigating against the Corporate Debtor is an undoubted fact. We believe that the appellant ought to have been vigilant enough in the aforesaid circumstances to find out whether the Corporate Debtor was undergoing CIRP. The appellant has been deficient on this aspect. The result, of course, is that the appellant to an extent has been left high and dry. (Para 19) RPS Infrastructure Ltd. v. Mukul Kumar, 2023 LiveLaw (SC) 773

Insolvency and Bankruptcy Code, 2016; Section 12A - Section 12A does not debar entertaining applications for withdrawal even before constitution of CoC; application cannot be kept pending for constitution of CoC. (Para 35) Abhishek Singh v. Huhtamaki Ppl Ltd., 2023 LiveLaw (SC) 250

Insolvency and Bankruptcy Code, 2016; Section 238 - Electricity Act, 2003; Sections 173, 174 - Section 238 of the IBC overrides the provisions of the Electricity Act, 2003 despite the latter containing two specific provisions which open with non-obstante clauses (i.e., Section 173 and 174) - The provisions of the IBC which treat the dues payable to secured creditors at a higher footing than dues payable to Central or State Government. (Para 49-53) Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd., 2023 LiveLaw (SC) 534

Insolvency and Bankruptcy Code, 2016; Section 238 - Real Estate (Regulation and Development) Act, 2016 - Section 238 of the IBC contains a non obstante clause which gives overriding effect to its provisions. Consequently, its provisions acquire primacy, and cannot be read as subordinate to the RERA Act. (Para 8) Vishal Chelani v. Debashis Nanda, 2023 LiveLaw (SC) 894

Insolvency and Bankruptcy Code, 2016; Section 240A - Cut-Off date to determine resolution applicant's eligibility under Section 240A is date of submitting resolution plan. Hari Babu Thota, 2023 LiveLaw (SC) 1051

Insolvency and Bankruptcy Code, 2016; Section 240A - Even if MSME registration obtained post commencement of CIRP, promoter eligible to submit resolution plan. Hari Babu Thota, 2023 LiveLaw (SC) 1051

Insolvency and Bankruptcy Code, 2016; Section 5 (7) & (8) - Real Estate (Regulation and Development) Act, 2016; Section 18 - Homebuyers cannot be treated differently from other "financial creditors" under the IBC just because they have secured orders from the authority under the RERA. (Para 8) Vishal Chelani v. Debashis Nanda, 2023 LiveLaw (SC) 894

Insolvency and Bankruptcy Code, 2016; Section 53 - Not all dues owed under statute are treated as 'government' dues - Dues payable to statutory corporations which do not fall within the description “amounts due to the central or state government” such as for instance amounts payable to corporations created by statutes which have distinct juristic entity but whose dues do not constitute government dues payable or those payable into the respective Consolidated Funds stand on a different footing. Such corporations may be operational creditors or financial creditors or secured creditors depending on the nature of the transactions entered into by them with the corporate debtor. On the other hand, dues payable or requiring to be credited to the Treasury, such as tax, tariffs, etc. which broadly fall within the ambit of Article 265 of the Constitution are 'government dues' and therefore covered by Section 53(1)(f) of the IBC. (Para 46) Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd., 2023 LiveLaw (SC) 534

Insolvency and Bankruptcy Code, 2016; Section 53 - The 'waterfall mechanism' - The priority of claims: Firstly, insolvency resolution process costs and the liquidation costs; Secondly, workmen's dues for the period of 24 months preceding the liquidation commencement date and debts owed to a secured creditor in the event such secured creditor has relinquished security; Thirdly, wages and any unpaid dues owed to employees other than workmen for the period of 12 months preceding the liquidation commencement date; Fourthly, financial debts owed to unsecured creditors; Fifthly, any amount due to the central government and the state government and debts owed to a secured creditor for any amount unpaid following the enforcement of security interest; Sixthly, any remaining debts and dues; Seventhly, preference shareholders; and Eighthly equity shareholders or partners. This hierarchy or order of priority thus accords government debts [clause (e)] and operational debts [clause (f)] lower priority than dues owed to unsecured financial creditors. (Para 27) Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd., 2023 LiveLaw (SC) 534

Insolvency and Bankruptcy Code, 2016; Section 53 - The definition of secured creditor in the IBC does not exclude any Government or Governmental Authority. If a resolution plan ignores statutory demands payable to any state government or legal authority, it would be bound to reject the resolution plan. (Para 25, 26) Sanjay Kumar Agarwal v. State Tax Officer, 2023 LiveLaw (SC) 939 : AIR 2023 SC 5636 : (2024) 2 SCC 362

Insolvency and Bankruptcy Code, 2016; Section 61(2) - Time taken by Tribunal to provide certified copy of order ought to be excluded from computation of limitation. (Para 28) Limitation Act, 1963; Section 12 - Insolvency and Bankruptcy Code, 2016; Section 238A - the date on which the order was pronounced must be excluded while computing limitation for filing of appeal against such order. The NCLAT erred in not excluding date of pronouncement of order while computing limitation. (Para 23) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406 : (2024) 2 SCC 545

Insolvency and Bankruptcy Code, 2016; Section 66 - the remedy against third party is not available under Section 66 of IBC, and in such circumstances, it is for the Resolution Professional or the successful resolution applicant to take such civil remedies against third party for recovery of dues payable to corporate debtor, and the civil remedies which may be available in law are independent of the said Section. (Para 10) Glukrich Capital Pvt. Ltd. v. State of West Bengal, 2023 LiveLaw (SC) 464

Insolvency and Bankruptcy Code, 2016; Section 9 - Limitation Act, 1963; Section 5 and Article 137 - The limitation period for initiating CIRP under Section 9, IBC is to be reckoned from the date of default, as opposed to the date of commencement of IBC and the period prescribed therefor, is three years as provided by Article 137 - The same would commence from the date of default and is extendable only by application of Section 5 Limitation Act - it is incumbent on the Adjudicating Authority to consider the claim for condonation of the delay when once the proceeding concerned is found filed beyond the period of limitation. (Para 23-24) Sabarmati Gas Ltd. v. Shah Alloys Ltd., 2023 LiveLaw (SC) 9 : AIR 2023 SC 288 : (2023) 3 SCC 229

Insolvency and Bankruptcy Code, 2016; Section 9 - Pre-Existing Dispute - What is to be looked into is the existence or otherwise of a dispute and/or the suit or arbitration proceedings prior to the receipt of demand notice or invoice, as the case may be. (Para 34-38) Sabarmati Gas Ltd. v. Shah Alloys Ltd., 2023 LiveLaw (SC) 9: AIR 2023 SC 288 : (2023) 3 SCC 229

Insolvency and Bankruptcy Code, 2016; Section 9 - When a petition under Section 9 of IBC is filed based on several invoices and some of the invoices are time barred, then NCLT must consider the remaining invoices which are within limitation and whether they cross the minimum threshold of Rs. 1 Crore. The Section 9 petition cannot be dismissed on the sole ground that some of the invoices are time barred. Next Education India Pvt. Ltd. v K12 Techno Services Pvt. Ltd., 2023 LiveLaw (SC) 270

Insolvency and Bankruptcy Code, 2016; Section 95 to 100 - It cannot read an adjudicatory role into these provisions and that the entire process of timelines would be rendered negatory if the role of adjudicator is changed. For the Court to change the adjudicatory role envisaged under these provisions would amount to "rewriting the legislative functions. The Resolution Profession is just making a recommendatory report and it is not binding and the true adjudicating function commences at Section 100 after the submission of the report. Dilip B. Jiwrajka v. Union of India, 2023 LiveLaw (SC) 1010

Insolvency and Bankruptcy Code, 2016; Section 95 to 100 - The role of adjudicating authority commences under Part III after the submission of the recommendation report of Resolution Professional (RP). This is based on intelligible differentia of insolvency of corporates and insolvency of individuals and partnership firms. Though the ultimate report of RP is only recommendatory, the legislature has ensured that the recommendation is made after taking into account the information and explanation by the debtor. Dilip B. Jiwrajka v. Union of India, 2023 LiveLaw (SC) 1010

Insolvency and Bankruptcy Code, 2016; Section 95 to 100 - These provisions cannot be held as unconstitutional for not affording an opportunity of hearing to the personal guarantors before the insolvency petition filed by creditors is admitted against them and the moratorium is automatically applied against them as soon as the insolvency petition is filed. The statute (IBC) does not suffer from any manifest arbitrariness to violate Art 14 of the Constitution. Dilip B. Jiwrajka v. Union of India, 2023 LiveLaw (SC) 1010

Insurance

BMW car damage - Supreme Court refuses claim for replacement; says insured can't claim anything more than insurance policy coverage. Bajaj Allianz General Insurance Co. Ltd. v. Mukul Aggarwal, 2023 LiveLaw (SC) 1000

'Breach of condition must be fundamental to deny insurance claim altogether': Supreme Court directs insurer to award 75% claim in vehicle theft case. Ashok Kumar v. New India Assurance Co. Ltd., 2023 LiveLaw (SC) 587 : : AIR 2023 SC 3622 : (2024) 1 SCC 357

Fire Insurance - Exact cause of fire immaterial if insured was not responsible for initiating fire. New India Assurance Co. Ltd. v. Mudit Roadways, 2023 LiveLaw (SC) 1018

Insurance companies must deal in a bonafide & fair manner; should not just care for its own profits. Isnar Aqua Farms v. United India Insurance Co. Ltd., 2023 LiveLaw (SC) 615 : AIR 2023 SC 3973

Insurance company is not liable if claimant was travelling in a trailer which was not insured even if the tractor was insured. Dhondubai v. Hanmantappa Bandappa Gandigude, 2023 LiveLaw (SC) 725

Insurance company must give cogent reasons for not accepting the surveyor's report. (Para 17) National Insurance Company Ltd.v. Vedic Resorts and Hotels Pvt. Ltd., 2023 LiveLaw (SC) 445 : AIR 2023 SC 3064

Insurance Contract - Fire and Special Perils policy - Supreme Court directs insurer to pay reinstatement value of the goods damaged and not the depreciated value, because as per the policy, in case the insurance company is unable to reinstate or repair because of some municipal or other regulations, it shall be liable to pay such sum as would be requisite to reinstate or repair such property. Oswal Plastic Industries v. Manager, Legal Dept., 2023 LiveLaw (SC) 34 : AIR 2023 SC 412 : (2023) 1 SCR 985

Insurance coverage for accidental death - proximate cause necessary; Supreme Court denies claim for sunstroke death during election duty. National Insurance Company Ltd. v. Chief Electoral Officer, 2023 LiveLaw (SC) 90 : AIR 2023 SC 868 : (2023) 2 SCR 312

Insurance Law - Accidental death - Death due to sun stroke during election duty will not come under the scope of the clause "death only resulting solely and directly from accident caused by external violent and any other visible means"- proximate causal relationship between the accident and the body injury is a necessity- plain reading of the clauses is the guiding principle to interpret insurance contracts. National Insurance Company Ltd. v. Chief Electoral Officer, 2023 LiveLaw (SC) 90 : 2023 ACJ 401 : AIR 2023 SC 868 : (2023) 6 SCC 441 : (2023) 2 SCR 312

Insurance Law - Court elucidates the principles of interpretation. (Paras 26, 27) National Insurance Company Ltd. v. Chief Electoral Officer, 2023 LiveLaw (SC) 90 : 2023 ACJ 401 : AIR 2023 SC 868 : (2023) 6 SCC 441 : (2023) 2 SCR 312

LIC not entitled to levy fee for endorsing transfer or assignment of a policy. Life Insurance Corporation of India v. Dravya Finance Pvt. Ltd., 2023 LiveLaw (SC) 759

Marine Insurance - If a ship is sent to sea in an unworthy state, the insurer is not liable for any loss due to unseaworthiness. Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : AIR 2023 SC 4640 :: (2023) 9 SCC 407

Negligence by Doctor - In a case of negligence committed by Doctor, the Insurance Company which covered the Doctor would have to reimburse the compensation to the Complainant to the extent of its liability under the Policy, as against the Doctor concerned. Nagarmal Modi Sewa Sadan v. Prem Prakash Rajagaria, 2023 LiveLaw (SC) 344

Negligence by doctor - Insurer liable to reimburse compensation to complainant to the extent of its liability under the policy. Nagarmal Modi Sewa Sadan v. Prem Prakash Rajagaria, 2023 LiveLaw (SC) 344

The Supreme Court directs insurer to pay reinstatement value of goods damaged in fire instead of depreciated value. Oswal Plastic Industries v. Manager, Legal Dept., 2023 LiveLaw (SC) 34 : AIR 2023 SC 412 : (2023) 1 SCR 985

Theft coverage denied saying gold wasn't kept in 'locked safe' : Supreme Court says insurance claim can't be rejected based on ambiguous term. Mehta Jewellers v. National Insurance Company Ltd., 2023 LiveLaw (SC) 859

Theft of Vehicle - Any violation of the condition of the insurance policy should be in the nature of a fundamental breach to deny the claimant insurance coverage. (Para 14) Insurance - Theft of Vehicle - Mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. (Para 9, 10) Ashok Kumar v. New India Assurance Co. Ltd., 2023 LiveLaw (SC) 587 : AIR 2023 SC 3622 : (2024) 1 SCC 357

Theft of Vehicle - Insurer had repudiated the claim by saying that the driver had left the vehicle unattended in the public road with the key on the ignition. The time gap between the driver alighting from the vehicle and noticing the theft, is very short. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle. Even if there was some carelessness, it was not a fundamental breach of condition for totally denying the insurance claim altogether. Therefore, a claim up to 75% must be awarded on a nonstandard basis. (Para 15 - 18) Ashok Kumar v. New India Assurance Co. Ltd., 2023 LiveLaw (SC) 587 : AIR 2023 SC 3622 : (2024) 1 SCC 357

Wherever an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of the insured. (Para 14) National Insurance Company Ltd.v. Vedic Resorts and Hotels Pvt. Ltd., 2023 LiveLaw (SC) 445 : AIR 2023 SC 3064

Insurance Act, 1938

Insurance Act, 1938; Section 38 - Life Insurance Corporation (LIC) is not entitled to levy a service charge or fee for endorsing the assignment or transfer of a policy. (Para 9) Life Insurance Corporation of India v. Dravya Finance Pvt. Ltd., 2023 LiveLaw (SC) 759

Integrated Goods and Services Tax Act, 2017

Integrated Goods and Services Tax Act, 2017 - The Supreme Court has recalled its judgment dated 10 April 2023, where the Court had ruled that Duty Free Shops situated in the arrival or departure terminals of Airports are outside the customs frontiers of India and therefore, they cannot be saddled with any indirect taxes like the Service Tax. While allowing the review plea filed by the Commissioner of CGST and Central Excise against the Supreme Court's verdict in Commissioner of CGST and Central Excise v. Flemingo Travel Retail Ltd [Civil Appeal Diary No. 24336/2022 dated 10.04.2023], the court observed that while hearing the appeal, none of the submissions of the Union of India had been recorded or considered, and that the judgment only adverts to the submissions of the respondent- assessee. Commissioner of CGST and Central Excise Mumbai East v. Flemingo Travel Retail Ltd., 2023 LiveLaw (SC) 673

Intermediate Education Act, 1921 (Uttar Pradesh)

Intermediate Education Act, 1921 (Uttar Pradesh); Section 16-FF(3) - the process of appointment of Teachers under the Act is not concluded without obtaining the mandatory approval of the District Inspector of Schools (“DIOS”). There is no vested right of the candidate to be appointed merely because the selection process has been completed. Section 16-FF(3) mandates the approval by the DIOS for appointment as the Head of Institution or Teacher. State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360

Intermediate Education Act, 1921 (Uttar Pradesh); Section 16-FF(3) - the Act does not contemplate 'deemed appointment' of a candidate if the District Inspector of Schools (“DIOS”) does not approve the proposal for appointment of the candidate within 15 days period, as given under Regulation 18. The selection process of the candidate concludes only after the mandatory approval of the DIOS is granted. Section 16-FF(3) of the Act itself makes approval by DIOS mandatory for appointment to the post of teacher. Therefore, a Regulation made under the said Act could not have provided for a 'deemed appointment'. Subordinate legislation cannot transcend the prescription of a statutory provision. State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360

Intermediate Education Act, 1921 (Uttar Pradesh); Section 16-FF(3) - the vacancies to the teaching posts in Uttar Pradesh which arose prior to amendment of Regulation 17 are to be governed by amended rules. The amendment to Regulation 17 was notified on 12.03.2018 and it now prescribes a written examination for the selection of Teachers in minority institutions. It is a settled principle of law that a candidate has a right to be considered in the light of existing Rules, which implies Rules in force as on the date of consideration. State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360

Interpretation of Statues

Statutory provision can't be declared ultra vires without a specific challenge in pleadings. Union of India v. Manjurani Routray, 2023 LiveLaw (SC) 745 : AIR 2023 SC 4077 : (2023) 9 SCC 144

Doctrine of harmonious construction - ambiguous clauses in deed must be interpreted consistent with other clauses & with intent of parties. Shri Nashik Panchavati Panjarpol Trust v. Chairman, 2023 LiveLaw (SC) 711 : AIR 2023 SC 4316

When can a provision be held to be clarificatory with retrospective effect? the Supreme Court explains. Sree Sankaracharya University of Sanskrit v. Dr. Manu, 2023 LiveLaw (SC) 468 : AIR 2023 SC 2645

Interstate Water Dispute

Cauvery river dispute - Supreme Court refuses to interfere with CWRC Order directing Karnataka to release 5000 cusecs to Tamil Nadu. State of Karnataka v. State of Tamil Nadu, 2023 LiveLaw (SC) 838

Judgment

Legislature can't directly overrule judgment, but law can be made to alter the basis of court verdict. NHPC Ltd. v. State of Himachal Pradesh Secretary, 2023 LiveLaw (SC) 756 : AIR 2023 SC 4457

High Courts cannot refuse to follow SC judgment on ground of review/reference pending against it; in case of conflicting judgments, follow earlier one. Union Territory of Ladakh v. Jammu and Kashmir National Conference, 2023 LiveLaw (SC) 749

Supreme Court criticises Bombay High Court for not uploading reasoned order despite one month's passage after pronouncement. Vipul Pramodchandra Shah v. State of Maharashtra, 2023 LiveLaw (SC) 716

Nullification of court direction by legislation impermissible without altering basis of judgment : Supreme Court in ED director's case. Dr. Jaya Thakur v. Union of India, 2023 LiveLaw (SC) 518

If judgment is not delivered within 6 months after reserving, case should be assigned to another bench for fresh hearing. Umesh Rai @ Gora Rai v. Union of India, 2023 LiveLaw (SC) 448

Supreme Court asks all Courts & Tribunals to number paragraphs in Orders & Judgments. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303

Judiciary

Credit judicial officers' pension arrears by December 8 or face contempt : supreme court's final warning to states. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 1011

'Appointments only on advertised vacancies' : Supreme Court holds 2 judges to be wrongly appointed; refuses to unseat them noting 10 yrs service. Vivek Kaisth v. State of Himachal Pradesh, 2023 LiveLaw (SC) 997

Supreme Court issues directions to Delhi Government for construction of Delhi judiciary infrastructure, judges' residences. Malik Mazhar Sultan v. U.P. Public Services Commission, 2023 LiveLaw (SC) 1068

The Supreme Court passes a slew of directions to High Courts of Madhya Pradesh, Punjab and Haryana for recruitment in district judiciary. Malik Mazhar Sultan v. U.P. Public Service Commission, 2023 LiveLaw (SC) 962

'High Court best suited to understand needs for judicial service' : Supreme Court rejects Haryana Govt's plea to conduct civil judge recruitment by PSC. Malik Mazhar Sultan v. U.P. Public Service Commission, 2023 LiveLaw (SC) 832

Judge aspirants get relief; Supreme Court sets aside BPSC's rejection of candidates for not producing original certificates. Sweety Kumari v. State of Bihar, 2023 LiveLaw (SC) 818 : AIR 2023 SC 4491

Supreme Court dismisses PIL seeking 2 years' cooling off period for retired judges' post-retirement appointments. Bombay Lawyers Association v. Union of India, 2023 LiveLaw (SC) 753

Unseating Judges after 6 yrs experience is against public interest though their selection was illegal : Supreme Court in Kerala District Judges case. Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658

Supreme Court says Kerala HC erred in fixing cut-off for viva-voce in 2017 District Judge selection; refrains from unseating selected candidates. Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658

Supreme Court upholds Tripura HC Order that directed State Govt to pay remuneration to retired judge who served as chairman of nsa advisory board. State of Tripura v. Justice (Retd.) Alok Baran Pal, 2023 LiveLaw (SC) 557

DHJS Exam 2022 : Supreme Court sets aside Delhi HC Order allowing re-evaluation of answer sheet. Registrar General, High Court of Delhi v. Ravinder Singh, 2023 LiveLaw (SC) 553

The Supreme Court says its permission is not needed for high courts to transfer presiding officers of Special MP/MLA Courts. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 519

Supreme Court quashes departmental proceedings against judicial officer in Odisha. Suchismita Mishra v. High Court of Orissa, 2023 LiveLaw (SC) 477

Civil Judges' Appointment - The Supreme Court takes a divergent view on granting relief to candidates who submitted category certificates after the cut-off date. Sakshi Arha v. Rajasthan High Court, 2023 LiveLaw (SC) 460 : (2024) 2 SCC 671

No adverse observations against judicial officers without due opportunity. Ashvini Vijay Shiriyannavar v. State of Karnataka, 2023 LiveLaw (SC) 458

Judicial officers' pension - Supreme Court lays down time line for disbursal of arrears by States/UTs. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

District judiciary should not be called 'subordinate judiciary'. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

'Judges are not employees of state, district judiciary's independence part of basic structure'. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

Increase in salary of high court judges must reflect in same proportion to district judges. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

Judicial officers' inability to meet targets during initial years need not be viewed seriously : Supreme Court relaxes ACP norms for Civil Judges (Jr Div). All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

Judicial officers' pension - notionally include increment which becomes due on the day after retirement. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 452 : AIR 2023 SC 2673 : (2024) 1 SCC 546

Supreme Court stays promotion of Judicial Officers as District Judges in Gujarat. Ravikumar Dhansukhlal Maheta v. High Court of Gujarat, 2023 LiveLaw (SC) 426 : AIR 2023 SC 2328

Can't direct that 50% hc judges should be from district judiciary; but at least 1/3rd should be from judicial services. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 385

Pronouncing the operative portion without preparing the entire Judgment is unbecoming of a judicial officer: Supreme Court upholds dismissal of civil judge. Registrar General High Court of Karnataka v. Sri M.Narasimha Prasad, 2023 LiveLaw (SC) 286 : AIR 2023 SC 2005

Judicial officers' pay hike - Supreme Court dismisses review petitions of Centre & States against direction to implement commission recommendations. Union of India v. All India Judges Association, 2023 LiveLaw (SC) 273 : (2024) 1 SCC 606

District Judges Appointment - Only 10% posts can be filled through limited competitive examination. Rajendra Kumar Shrivas v. State of Madhya Pradesh, 2023 LiveLaw (SC) 181 : (2023) 5 SCC 364 : (2023) 2 SCR 219

Judicial officer suppresses criminal case in application form; Supreme Court upholds termination, says subsequent closure of case irrelevant. Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Supreme Court criticises centre for sitting over collegium proposals for judges' transfer, says it gives impression of 'third party interferences'. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Transferred Judge does not go with the label 'Bar Judge' or 'Service Judge': Supreme Court makes important clarification on categorising vacancies. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Juvenile

JJ Rules 2007 - Where exact assessment of age is not possible, reduction of 1 year can be given: Supreme Court accepts juvenility plea in 95 murder case. Pawan Kumar v. State of U.P., 2023 LiveLaw (SC) 1003

JJ Act - 'May' in Section 19(1) be read as 'shall'; the Children's Court must hold an inquiry on whether a child should be tried as an adult. Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857

The Supreme Court releases a man incarcerated for 12 years after finding that he was a juvenile at the time of offence. Makkella Nagaiah v. State of Andhra Pradesh, 2023 LiveLaw (SC) 757 : AIR 2023 SC 4564 : (2023) 9 SCC 807

The Supreme Court releases a death row prisoner after 28 years on finding him to be a juvenile at the time of offence. Narayan Chetanram Chaudhary v. State of Maharashtra, 2023 LiveLaw (SC) 244 : AIR 2023 SC 1826

Person convicted for rape-murder found to be juvenile: Supreme Court sets aside death sentence, sustains conviction. Karan @ Fatiya v. State of Madhya Pradesh, 2023 LiveLaw (SC) 159 : AIR 2023 SC 1355 : (2023) 5 SCC 504 : (2023) 2 SCR 587

Juvenile Justice (Care and Protection of Children) Act, 2015

Juvenile Justice (Care and Protection of Children) Act, 2000 - Bone Ossification test does not give precise age, not entirely accurate. Pawan Kumar v. State of U.P., 2023 LiveLaw (SC) 1003

Juvenile Justice (Care and Protection of Children) Act, 2000 - Courts must extend the benefit of juvenility where 2 views are possible on the same evidence. Pawan Kumar v. State of U.P., 2023 LiveLaw (SC) 1003

Juvenile Justice (Care and Protection of Children) Act, 2000 - Primary school certificate valid proof of evidence, takes precedence over panchayat register. Pawan Kumar v. State of U.P., 2023 LiveLaw (SC) 1003

Juvenile Justice (Care and Protection of Children) Act, 2000; Section 2(k) - Juvenile Justice (Care and Protection of Children) Rules, 2007; Rule 12 - Procedure to be followed in determination of Age - Where exact assessment of age not possible, reduction of 1 year can be given. Pawan Kumar v. State of U.P., 2023 LiveLaw (SC) 1003

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 19(1)(i) - Children's Court must hold an inquiry to determine whether the child should be tried as an adult. (Para 9 - 12) Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857

Juvenile Justice (Care and Protection of Children) Act, 2000; Section 16 r/w 15(1)(g) - If the date of birth of the petitioner is 02.05.1989, he was 16 years 7 months old as on the date of the crime, i.e., 21.12.2005. Accordingly, the petitioner was a juvenile in conflict with the law on the date of commission of the offence. The maximum period for which the petitioner could have been in custody is three years. However, as the plea of juvenility was raised for the first time in the present writ petition before us, the process of criminal law, which commenced in 2005, led to the petitioner being convicted and sentence for life imprisonment concurrently by the Trial Court, the High Court as well as the Supreme Court. In the meanwhile, the petitioner has undergone more than 12 years of imprisonment. Having accepted the report of the II Additional Sessions Judge, the petitioner can no longer be incarcerated. (Para 6 – 8) Makkella Nagaiah v. State of Andhra Pradesh, 2023 LiveLaw (SC) 757

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 75 - Penal Code, 1860 - Sections 323 and 504 - Muzaffarnagar school student slapping case, in which a primary school teacher punished a Muslim boy by asking other students to slap him. Held, the victim must have undergone trauma. The State Government to ensure that proper counselling is extended to the victim of the offence through an expert child counsellor. Even the other students, who were involved in the incident, in the sense that they allegedly followed the mandate issued by the teacher and assaulted the victim, need counselling by an expert child counsellor. The State Government will take immediate steps to do the needful by providing services of an expert child counsellor. Tushar Gandhi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 843

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 75 - Penal Code, 1860 - Sections 323 and 504 - Student slapping case - Physical punishment inflicted upon a student who belongs to a minority community. Considering the manner in which the Police have delayed action and especially the fact that though a case of cognizable offence was made out, only a non-cognizable case was reported, we direct that the investigation shall be conducted under the supervision of a senior IPS Officer, nominated by the State Government. The IPS Officer so nominated will go into the question of whether the second proviso to Section 75 of the JJ Act is attracted and whether Section 153A of the IPC needs to be applied. Tushar Gandhi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 843

Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 9 (2) - Once the applicant has discharged his onus, in support of his claim of juvenility by producing the date of birth certificate from the school, the State had to come up with any compelling contradictory evidence to show that the recordal of his date of birth in the admission register was false. Narayan Chetanram Chaudhary v. State of Maharashtra, 2023 LiveLaw (SC) 244 : AIR 2023 SC 1826

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 9 (2) - Death penalty case reopened to inquire into juvenility claim - Convict found to be a juvenile after 28 years of offence - Supreme Court orders release. Narayan Chetanram Chaudhary v. State of Maharashtra, 2023 LiveLaw (SC) 244 : AIR 2023 SC 1826

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 9 (2) - So far as the procedure for making an inquiry by the Court, Section 9(2) of the 2015 Act does not prescribe scrupulously following trial procedure, as stipulated in the 1973 Code and the Indian Evidence Act, 1872. Narayan Chetanram Chaudhary v. State of Maharashtra, 2023 LiveLaw (SC) 244 : AIR 2023 SC 1826

Juvenile Justice (Care and Protection) Act, 2015; Section 18 - The JJB having found a child to be in conflict with law who may have committed a petty or serious offence and where heinous offence is committed, the child should be below 16 years, can pass various orders under clauses (a) to (g) of sub-section (1) and also sub-section (2). However, the net result is that whatever punishment is to be provided, the same cannot exceed a period of three years and the JJB has to take full care of ensuring the best facilities that could be provided to the child for providing reformative services including 19 education, skill development, counselling and psychiatric support. (Para 16) Karan @ Fatiya v. State of Madhya Pradesh, 2023 LiveLaw (SC) 159 : AIR 2023 SC 1355 : (2023) 5 SCC 504 : (2023) 2 SCR 587

Juvenile Justice (Care and Protection) Act, 2015; Section 9(3) - A trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child - It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. (Para 30-33) Karan @ Fatiya v. State of Madhya Pradesh, 2023 LiveLaw (SC) 159 : AIR 2023 SC 1355 : (2023) 5 SCC 504 : (2023) 2 SCR 587

Part 11: The Complete Supreme Court Annual Digest- 2023 [Part-XI]