Sunday, 19 September 2021

Whether court can direct the victim to repay the State any benefit reaped by her if she compromises prosecution under SC & ST Atrocities Act?

Sri Nagendra Srivastava, learned AGA for the State submits

that this is a matter pertaining to SC/ST Act. He submits that

there is a growing tendency on the part of the complainant to

make accusations/collect compensation from the State

Government and then enter into compromise.

4. This Court is of the opinion that when matters are sought to

be compromised, then they are necessarily in the realm of

personal disputes and not crime against society. If society has

not committed any atrocity on a member belonging to

Scheduled Caste and Scheduled Tribe and such member decides

to compromise a matter, then said victim is required to repay

the State any benefit reaped by the victim, as per the benevolent

scheme of the State to pay compensation to members of such

community.

5. Therefore, on condition of complainant either filing an

undertaking that complainant has not taken any monitory

benefit from the State or in case, any monitory benefit has been

reaped from the State, then on a condition to deposit the same

before the trial court to be transmitted to the concerned

authorities of the State, concerned Court shall verify the factum

of compromise and furnish its report before the court.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 8350 of 2021

Applicant :- Satish And 2 Others

Opposite Party :- State of U.P. and Another


Hon'ble Vivek Agarwal,J.

Order Date :- 3.9.2021

Print Page

Supreme Court: Moratorium Ordered U/Sec.14 IBC Does Not Apply To Proceedings In Respect Of Directors/Management Of Corporate Debtor

At this juncture, we must however clarify the right of the petitioners to move against the promoters of the first respondent Corporate Debtor, even though a moratorium has been declared under Section 14 of the IBC. In the judgment in P. Mohanraj v. Shah Bros. Ispat (P) Ltd. (2021) 6 SCC 258, a three judge Bench of this Court held that proceedings under Section 138 and 141 of the Negotiable Instruments Act 1881 against the Corporate Debtor would be covered by the moratorium provision under Section 14

of the IBC. However, it clarified that the moratorium was only in relation to the Corporate Debtor (as highlighted above) and not in respect of the directors/management of the Corporate Debtor, against whom proceedings could continue. Speaking through Justice Rohinton F Nariman, the Court held:

“102. Since the corporate debtor would be covered by the

moratorium provision contained in Section 14 IBC, by which

continuation of Sections 138/141 proceedings against the corporate

debtor and initiation of Sections 138/141 proceedings against the

said debtor during the corporate insolvency resolution process are

interdicted, what is stated in paras 51 and 59 in Aneeta Hada [Aneeta

Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 :

(2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] would then

become applicable. The legal impediment contained in Section 14

IBC would make it impossible for such proceeding to continue or be

instituted against the corporate debtor. Thus, for the period of

moratorium, since no Sections 138/141 proceeding can continue

or be initiated against the corporate debtor because of a

statutory bar, such proceedings can be initiated or continued

against the persons mentioned in Sections 141(1) and (2) of the

Negotiable Instruments Act. This being the case, it is clear that

the moratorium provision contained in Section 14 IBC would

apply only to the corporate debtor, the natural persons

mentioned in Section 141 continuing to be statutorily liable

under Chapter XVII of the Negotiable Instruments Act.”

(emphasis supplied) We thus clarify that the petitioners would not be prevented by the moratorium under Section 14 of the IBC from initiating proceedings against the promoters of the first respondent Corporate Debtor in relation to honoring the settlements reached before this Court. 

 Reportable

IN THE SUPREME COURT OF INDIA

EXTRAORDINARY/APPELLATE JURISDICTION

SLP (C) No. 12150 of 2019

Anjali Rathi and Others . Vs Today Homes & Infrastructure Pvt. Ltd. and Others .

Author: Dr Dhananjaya Y Chandrachud, J

Dated: September 8, 2021.

Print Page

Supreme Court Guidelines for imposition of costs in commercial litigation

Costs:

51. The costs following cause is a principle which is followed in most countries. There seems to be often a hesitancy in our judicial system to impose costs, presuming as if it is a reflection on the counsel. This is not the correct approach. In a tussle for enforcement of rights against a State different principle apply but in commercial matters costs must follow the cause.


53. We may note that the common thread running through all these three cases is the reiteration of salutary principles: (i) costs should ordinarily follow the event; (ii) realistic costs ought to be awarded keeping in view the ever increasing litigation expenses; and (iii) the cost should serve the purpose of curbing frivolous and vexatious litigation.

54. There has to be a proportionality to the costs and if they are unreasonable, the doubt would be resolved in favour of the

paying party. As per Halsbury’s Laws of England, the discretion to award costs must be exercised judicially and in accordance with reason and justice. The following principles have been set out therein:

“In deciding what order (if any) to make about costs, the court

must have regard to all the circumstances, including:

(i) The conduct of all the parties;

(ii) Whether a party has succeeded on part of his case, even if he

has not been wholly successful; and

(iii) Any payment into court or admissible offer to settle made by

a party which is drawn to the court’s attention.

The conduct of the parties includes:

a. Conduct before, as well as during, the proceedings and in

particular the extent to which the parties followed any relevant

pre-action protocol;

b. Whether it was reasonable for a party to raise, pursue or contest

a particular allegation or issue;

c. The manner in which a party has pursued or defended his case

or a particular allegation or issue; and

d. Whether a claimant who has succeeded in his claim, in whole

or in part, exaggerated his claim.”

55. We may add that similar principles are followed in Australia, Hong Kong and Canada largely based on the Common Law principle. In fact in Canada, the Manitoba Law Commission Report analysed the ‘Costs Awards in Civil Litigation’ and referred to six broad goals as under:

a. indemnification – successful litigants ought to at least be

partially indemnified against their legal costs;

b. deterrence – potential litigants should carefully assess the merits

of the claim and should refrain from taking any unnecessary legal

actions;

c. rules should be made decipherable and simple to understand;

d. early settlement of disputes should be encouraged;

e. the costs regime should facilitate access to justice; and

f. there should be flexibility in rules to ensure that justice can be

done.

56. We have set forth the aforesaid so that there is appreciation of the

principles that in carrying on commercial litigation, parties must weigh the commercial interests, which would include the consequences of the matter not receiving favourable consideration by the courts. Mindless appeals should not be the rule. 

57. The best reflection of what costs have been incurred is what the parties have paid towards the counsel fee and out of pocket expenses. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.4862-4863 OF 2021

UFLEX LTD. Vs  GOVERNMENT OF TAMIL NADU & ORS.

Author: SANJAY KISHAN KAUL, J.

Dated: September 17, 2021.

Print Page

Whether Summoning And Detaining A Person Without Any Crime Registered Against Him amounts to illegal detention?

 The report of the Metropolitan Sessions Judge, after due inquiry into the matter sets out the factual details of the matter. The report indicates that the contempt petitioner was not only summoned to Akividu Police Station in the name of counseling but was also detained. In the circumstances, there was clear violation of the directions issued by this Court not only in Arnesh Kumar1 but also in the case in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 . The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this Court.

As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles. In the circumstances, the Division Bench was not right and justified in setting aside the view taken by the Single Judge of the High Court. We, therefore, allow this appeal. While setting aside the decision of the Division Bench of the High Court, we restore the decision of the Single Judge.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1003 OF 2021

M.A KHALIQ & ORS. Vs ASHOK KUMAR & ANR. 

Dated: September 15, 2021.

Print Page