An enquiry under Section 31, is the limited enquiry that the Adjudicating Authority is permitted is, as to whether the resolution plan provides:
i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment ofother debts of the corporate debtor,
(ii) the repayment of the debts of operational creditors in prescribed manner,
(iii) the management of the affairs of the corporate debtor,
(iv) the implementation and supervision of the resolution plan,
(v) the plan does not contravene any of the provisions of the law for the time being in force,
(vi) conforms to such other requirements as may be specified by the Board.
Scope of Judicial Review:
Appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.
Section 8 of Arbitration and Conciliation Act, 1996 is as under:
Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”
For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matters governed by Part-I of the Act, Judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the arbitral Tribunal, if (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the Arbitration Agreement do not take appropriate steps as contemplated under sub- sections (1) & (2) of Section 8 of the Act.
Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.
Full Text of Ordinance
ORDINANCE No. 79 OF 2020
THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020
Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.
AN ORDINANCE further to amend the Kerala Police Act. 2011.
In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…”
[ Source: Kunapareddy Alias NookalaShanka Balaji Vs. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774]
Section 2(s), of Domestic Violence Act defines shared household asunder:
“(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”
Questions raised before the Court:
(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?
(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?
General Clauses Act is the interpretation law of India.
General Clauses Act, 1897 is the official Interpretation Statute containing the rules for interpretation of statutes in India. This book contains section-wise detailed commentary with reference to case law about each Section of this Act. A must have book for practicing lawyers as well as those jurists interested in development of law. This is a section by section, Commentary on General Clauses Act, 1897.
Click at any of the following links to know more about this book about interpretation:
Law of Joint Property, it’s Ownership and Partition:
Right to own property in India dates back to over 5000 years and if we go by ancient scriptures, at least 2000 years. If Indians call their country motherland, they call the land they own, as their mother; the provider of all needs, from nourishment to shelter. In other words the attachment to land is a matter of emotion and not purely of law.
It is for this reason, the British Government as the colonial rulers over India in 1893, enacted a unique law called Partition Act, 1893. This law along with other laws and the ancient principles of Hindu Law govern the ownership of property which is owned by by more than one person. This book deals with all the nuances of law relating to ownership, enjoyment and partition of this property including the principles on which the property can be forced to be sold by public auction by court.
Click at any of the following links to read free sample of this book about Joint Property:
P.Chidambram is a Senior Advocate practicing in the Hon’ble Supreme Court of India with 49 years of standing at the Bar, of which 35 years as a Senior Advocate. Currently, he is Member of Parliament (RS). He was formerly Union Minister of Finance (1996-1998, 2004-2008 and 2012-2014) and Union Minister of Home Affairs (2008-2012). He is a member of the Indian National Congress, which is the principal Opposition Party in Parliament, and has been in public life for over 40years. The Petitioner is also a senior Spokesperson of the Congress Party as well as a prominent and widely-read columnist.
The allegations against P. Chidmbram:
It is alleged that during the period from 15.11.2016 to 19.11.2016 huge cash to the tune of Rs. 31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of “group of companies”. The statements recorded during investigation have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case.
The stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment,possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act. Continue reading “Ex Finance Minister Chidambram is not entitled to bail.”→
Speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21.
This constitutional right cannot be denied even on the plea of non-availability of financial resources. The court is entitled to issue directions to augment and strengthen investigating machinery, setting-up of new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures as are necessary for speedy trial.
Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice.
Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. Chief Justices and Chief Ministers have resolved that all cases must be disposed of within five years which by any standard is quite a long time for a case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings. Lack of infrastructure is another handicap. Continue reading “Right of speedy trial”→
The appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same and thus the trial is vitiated.
At the outset it is required to be noted that after conclusion of the investigation, the Investigating Officer had filed the chargesheet against the accused for the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned Trial Court has framed the charge against the appellantoriginal accused for the aforesaid offences, in exercise of its powers under Section 227/228 of the CrPC. Framing of the charge against the accused for the aforesaid offences was the subject matter before the High Court. By the impugned Judgment and Order the High Court has dismissed the Revision Application and has confirmed the Order passed by the learned Trial Court ordering to frame the charge against the accused for the aforesaid offences. Hence, the appellantoriginal accused is before this Court by way of present appeal.
That it is mainly contended on behalf of the appellant that in the present case as the complainant and Investigating Officer are the same and therefore in view of the decision of this Court in the case of Mohan Lal (Supra) the entire criminal proceedings are vitiated and therefore the appellant – original accused is to be discharged. However, it is required to be noted that apart from the fact that the decision of this Court in the case of Mohan Lal (Supra) has been doubted and pursuant to the Order passed by this Court dated 17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to the larger Bench. In the subsequent decision in the case of Varinder Kumar (Supra), a three Judge Bench of this Court had an occasion to consider the decision of this Court in the case of Mohan Lal (Supra) and the three Judge Bench of this Court has held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively, it is further held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (Supra) shall continue to be governed by the individual facts of the case. Therefore, the reliance placed upon the decision of this Court in the case of Mohan Lal (Supra) by the learned Counsel appearing on behalf of the appellant/original accused is misplaced. Now, the submission made by Shri Vikas Singh, learned Senior Advocate appearing on behalf of the appellant/original accused that the subsequent Bench in the case of Varinder Kumar (Supra) could not have held that the decision of this Court in the case of Mohan Lal (Supra) shall be applicable prospectively is concerned, at the outset, it is required to be noted that this Bench is not considering whether in the subsequent decision in the case of Varinder Kumar (Supra), the Bench could not have considered the prospective applicability of the decision in the case of Mohan Lal (Supra) or not? The three Judge Bench of this Court held that the decision of this Court in the case of Mohan Lal (Supra) would be applicable prospectively and the same shall not affect criminal prosecutions, trials and appeals. We are bound by that decision. Therefore, we are of the opinion that the decision of this Court in the case of Mohan Lal (Supra) shall not be applicable to the facts of the case on hand as criminal prosecution has been initiated in the present case much prior to the decision in the case of the Mohan Lal (Supra). Therefore, the appellant cannot be discharged at this stage on the aforesaid ground mainly that the Investigating Officer and the complainant/informant are the same the trial is vitiated, relying upon the decision of this Court in the case of Mohan Lal (Supra). Even the decision of this Court in the case of Bhagwan Singh (Supra), relied upon by the learned Counsel appearing on behalf of the appellant original accused, also shall not be of much assistance to the appellant at this stage. In the case of Bhagwan Singh (Supra) and after the trial this Court held that as the complainant herself was the Investigating Officer, the case of the prosecution would not be free from doubt. It was the case after trial and not at the stage of framing of the charge. Where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record but it would be completely a different thing to say that the trial itself would be vitiated for such infraction.
The concept of restitution is a common law principle and it is a remedy against unjust enrichment or unjust benefit. The court cannot be used as a tool by a litigant to perpetuate illegality. A person who is on the right side of the law, should not have a feeling that in case he is dragged in litigation, and wins, he would turn out to be a loser and wrongdoer as a real gainer, after 20 or 30 years.
It is a settled law that when there is stay of proceedings by court, no person can be made to suffer for no fault on his part and a person who has liability but for the interim stay, cannot be permitted to reap the advantages on the basis of interim orders of the court. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417, it was held that no person can suffer from the act of court and unfair advantage gained by a party of interim order must be neutralised. The Court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by the abuse of process of the court. No one should be allowed to use the judicial process for earning undeserved gains or unjust profits. The object and true meaning of the concept of restitution cannot be achieved unless the courts adopt a pragmatic approach in dealing with the cases. The Court observed: Continue reading “Restitution is a remedy against unjust enrichment or unjust benefit.”→