The National Company Law Appellate Tribunal (NCLAT), Delhi recently ruled that for the purpose of determining whether an appeal has been filed within time (limitation), the date of filing of the appeal would be the date on which it is e-filed, even if there are defects at the time of the e-filing [Innovators Cleantech Pvt. Ltd v. Pasari Multi Projects Pvt. Ltd.]

A coram of Chairperson, Justice (retired) Ashok Bhushan and Technical Member Barun Mitra reasoned that a larger Bench of the appellate tribunal has already held that re-filling an appeal after curing defects cannot be treated as a “fresh filing.”

“When defects are cured and the Appeal is registered, the date of refiling of the Appeal after curing the defects, cannot be treated to be the fresh date of filing of the Appeal for computation of limitation … The date of refiling and date of filing are two different concepts, which are clear from statutory scheme,” the NCLAT said.

Reliance was also placed on a 2022 notification issued by the NCLAT which dealt with the limitation period within which cases are to be filed before the appellate tribunal.

This notification provided that, “Limitation shall be computed from the date of e-filing.”

“The above Order dated 24.12.2022 issued by this Tribunal and as noticed by the Hon’ble Supreme Court in Sanket Kumar Agarwal and Anr. leaves no doubt that computation of limitations has to be done from the date of e-filing of the Appeal and any other interpretation of the Rules and the Orders issued by this Tribunal is not permissible.”

In the same judgment, the NCLAT also held that an appeal cannot be dismissed merely on ground that appellant did not apply for certified copy of order being challenged.

The appellate tribunal added that nowadays, litigants often file appeals while relying on web-copies of orders passed by the National Company Law Tribunals (NCLTs) / Adjudicating Authorities.

“We have no doubt that the Appeal can be filed without applying a certified copy of the orders, in the facts and situation of a particular case. At present, all orders are uploaded on website of the Adjudicating Authority and this Tribunal and litigants often file the Appeal by relying on uploaded copy on the website. We, thus, are of the view that Appeal filed without applying for a certified copy of the order, cannot be dismissed on this ground that Appellant has not applied for certified copy of the order,” the NCLAT said.

The judgment was passed while dismissing two interlocutory applications (IAs) that had opposed the maintainability of an appeal filed before the NCLAT.

The applicant who filed the IAs argued that the limitation period within which the appeal should have been filed expired on September 27, 2023 and that the defect-free appeal was filed only on January 16, 2024.

The appellant countered that the appeal was e-filed on September 25, 2023, albeit with some defects that were eventually cured.

The applicants argued that the September 25 filing cannot be accepted as the date of filing the appeal since it was not accompanied by a vakalatnama, or the challenged order, or any notarised affidavit.

Further the said appeal was not in prescribed format, the applicant added. Rather, the September 25 filing was only a “bunch of papers” which cannot be viewed as the date of filing the appeal for the purpose of limitation, the applicant said.

The applicant also cited a similar view expressed by the Delhi High Court in the case of IRCON International Ltd. vs. Reacon Engineers (India) (P) Ltd.

The NCLAT, however, disagreed after noting that the High Court's judgment was based on a rule that was applicable specifically to the High Court.

"It is relevant to notice that judgment of the Delhi High Court ... were delivered in context of specific rule applicable in the Delhi High Court namely – Rule 5 of Delhi High Court Rules effective from w.e.f 01.12.2018," the NCLAT observed.

The appellate tribunal proceeded to dismiss the IAs and post the main appeal for hearing on August 22.

Advocates Anuj Bhandari and Gaurav Jain represented the appellant.

Senior Advocate Sanjeev Sen and advocates Ashok Kumar Jain, Amit Kasera, Anjali, Singh and Pragyan Mishra appeared for the respondent/ applicant.

A similar ruling was passed by the appellate tribunal on July 2 as well, when it held that for the purpose of determining when a moratorium starts, the effective date of an insolvency application against personal guarantors is the date on which it is filed.

In this regard, the NCLAT disagreed with the Kerala High Court's ruling that a moratorium would commence only after the application is defect-free.

The Supreme Court will deliver on Monday (August 5) its judgment on a plea by the Aam Aadmi Party-led Delhi government against the appointment of ten aldermen by the Lieutenant Governor (LG) to the Municipal Corporation of Delhi (MCD) without the aid and advice of the State cabinet [Government of NCT of Delhi vs Office of Lieutenant Governor of Delhi].

Justice PS Narasimha will pronounce the judgment for the Bench comprising him along with Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala.

The verdict comes nearly 15 months after the Court concluded hearings in the matter.

The judgment assumes significance at a time when the Delhi civic body is under fire for its apparent mismanagement of the city's drains and stormwater handling, leading to the death of three students in Rajinder Nagar.

The petition by AAP-led Delhi government claimed that this was the first time since Article 239AA of the Constitution came into effect in 1991 that such a nomination has been made by the LG by completely bypassing the elected government. 

According to the Delhi government's petition, the only two courses of action open to the LG were to either accept the proposed names recommended to him for nomination by the elected government or differ with the proposal and refer it to the President. 

The Supreme Court had sought the response of the Delhi LG, VK Saxena in the matter in March last year.

During the hearings, the CJI had orally remarked that the nomination of aldermen by the LG could destabilise the democratic functioning of the MCD. In May 2023, the Court reserved its verdict.

Notably, on account of the pendency of the verdict, the standing committee of the MCD could not be constituted as the ten alderman are part of the body which elects this committee.

MCD Mayor Shelly Oberoi had flagged concern that the civic body's functioning has come to a halt as a result, while urging the top court to allow the MCD Corporation to perform the functions of the standing committee for the time being.

Senior Advocate Abhishek Manu Singhvi with Advocate Shadan Farasat and Natasha Maheshwari appeared for the Delhi government. Additional Solicitor General Sanjay Jain appeared for the LG.

The Delhi High Court has upheld the order of a sessions court to close the rape case against Bharatiya Janata Party (BJP) leader Syed Shahnawaz Hussain [P (Complainant) v State of NCT of Delhi & Anr].

In an order passed on August 2, Justice Neena Bansal Krishna said that oral, documentary, and scientific evidence rule out the possibility that Hussain intoxicated and raped the woman.

“In the present case, the overwhelming independent ocular, documentary and scientific evidence collected during the investigations, whereby the presence of the respondent no.2 and complainant on the date of the alleged incident at the place of alleged incident i.e. Sharma Farmhouse is completely ruled out, the possibility of the commission of alleged offence is rendered zilch. Hence, conclusion of the learned Additional Sessions Judge in accepting the Cancellation Report has to be upheld,” the Court said.

It, therefore, accepted the stand of Delhi Police that no rape case was made out against Hussain and upheld the order passed by the Additional Sessions Judge (ASJ) in this regard.

“In view of the foregoing discussions, there is no infirmity in the impugned order dated 16.12.2023 and the revision petition is hereby dismissed,” Justice Krishna ruled.

The complainant-woman had accused Hussain of taking her to his farmhouse, intoxicating her and raping her.

It was also alleged that he made a video of the act and threatened her with dire consequences if she disclosed the incident to anyone.

It was the complainant's case that the FIR was registered only after the intervention of the Delhi High Court and the Supreme Court.

A Magistrate Court had in October 2023 refused to accept the cancellation report filed by the Delhi Police in the case and instead issued summons to Hussain.

Hussain the approached the Sessions Court against this order. The ASJ first stayed the summoning order and then quashed it.

The complainant then approached the High Court against the same.

The complainant woman was represented through advocates Prabhoo Dayal Tiwari, Ajay Tiwari, Asif Iqbal, Unnati Agarwal, Ziaul Haq, Heena, Taran Jain, Asiph Shahid Ali, Shiwani Bhargava, Sakshi Bhayana, Akash Awana and Aadesh Taneja.

Additional Public Prosecutor Amit Ahlawat appeared for the Delhi Police.

[Read Judgment]

The Delhi High Court has held that writ petitions cannot be filed before courts against a social media platform like X (formerly Twitter) since the same is not a wing of the State and does not discharge any government/ public functions [Sanchit Gupta v Union of India & Anr].

Justice Sajeev Narula ruled that though X plays a critical role in information dissemination and influencing public opinion, it is a private entity and does not perform a public function or discharge a public duty.

“While ‘X’ plays a critical role in information dissemination and influencing public opinion, its core function is to provide a platform for expression—a service that has ‘public discourse’ as consequence, yet is private in operation. There is no directive, statutory or otherwise, from the government that delegates traditional state functions to ‘X’. The platform is not mandated to carry out public duties. ‘X’ is voluntary and user-driven, distinguishing it from entities that operate under a compulsion of law or provide services that are essential public utilities,” the Court said.

The Court rendered these findings while dealing with a writ petition filed by one Sanchit Gupta challenging X’s decision to suspend his X/ Twitter handle.

Gupta alleged a breach of principles of natural justice, equity and fairness.

He also made the Union of India a party to his case and said that it is the government’s responsibility to ensure that constitutional rights are not infringed upon by private entities, especially those that play a significant role in public communication and discourse, such as X Corp.

However, the Court rejected the arguments and held that there was nothing to indicate that Central government has failed in their regulatory duties or that there has been a disregard of legal obligations necessitating the intervention of the High Court through a mandamus.

“In light of the above, the present writ petition, in the opinion of the Court is not maintainable and is accordingly dismissed along with pending applications,” the Bench ordered.

Advocates Ankit Shah, Avneesh Kumar Upadhyaya, Megha Tyagi, Kriti Jain and Tarun Arora appeared for Sanchit Gupta.

Union of India was represented through Central Government Standing Counsel Mukul Singh and advocate Seema Singh.

[Read Judgment]

The landmark Supreme Court judgment in Kesavananda Bharati vs. State of Kerala which propounded the Basic Structure doctrine was a milestone in taking forward the ideals of social and economic justice, apex court judge Justice BR Gavai said on Saturday.

The Supreme Court has always stood for fundamental rights and many rights have evolved over time, he opined.

"In my view Kesavananda Bharati is a milestone in Indian jurisprudence for taking forward social and economic justice", he said.

The Supreme Court judge was delivering the SN Bhuyan centenary lecture in Guwahati. The theme of the lecture was '75 Years Of The Constitution Of India: Dr Ambedkar's Vision And Social Justice'.

Late SN Bhuyan, the father of sitting apex court judge Justice Ujjal Bhuyan, had also served as the Advocate General of Assam.

Justice Gavai in his address touched upon the plight of women in the pre-Independence times.

"During that time, women were considered the most downtrodden and faced difficulties getting educated and in some cases faced a worse plight than untouchables."

The judiciary, executive and legislature has since, however, taken strides to ensure social and economic justice for women, he argued.

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"We have seen over last 75 years numerous steps have been taken for social and economic justice. People from SCSTs have reached high positions; in Maharashtra we have a Chief Secretary and DGP who are women. The role of courts has been positive."

Justice Gavai reiterated that it was only because of Constitution of India and Dr. BR Ambedkar that someone like him could succeed in life.

"It is because of his vision that we have progressed towards social and economic justice. Judiciary, executive and legislature has made strides to give effect to Constitution and directive principles ... I urge upon all of you to make every effort to march towards social and economic justice in our Constitution, that will be the only way to give a tribute to the Constitution and SN Bhuyan," he said in conclusion.

Justice Bhuyan introduced Justice Gavai to the audience on the occasion. He mentioned that Justice Gavai's opinion in the caste sub-categorisation case has elicited divergent opinions.

"In a good democracy, views and counter-views are always welcome," he added in this context.

Supreme Court judge Justices Hrishikesh Roy and N Kotiswar Singh, Gauhati High Court Chief Justice Vijay Bishnoi, Solicitor General Tushar Mehta, Supreme Court Advocates-On-Record association president Vipin Nair, Assam Advocate General Devajit Saikia and Gauhati High Court Bar association president KN Choudhury were also present at the event.

[Watch our live coverage of the lecture]

The Kerala High Court on Friday commuted former CPI(M) leader R Baiju’s death penalty to 10 years of rigorous imprisonment in the case related to the death of Congress activist KS Divakaran [State v R Baiju] .

The co-accused were also sentenced to 10 years of rigorous imprisonment except for one Sethukumar who was acquitted of all charges.

On November 29, 2009, Baiju and other accused had attacked Divakaran and his family members at their home, leading to severe injuries on Divakaran's head. He later succumbed on December 9, 2009.

A bench of Justices PB Suresh Kumar and MB Snehalatha did not find any satisfactory material to hold that the accused had the object of committing the victim's murder.

"If the object of the conspiracy was to commit murder of the deceased, we are of the view that the assailants would have certainly carried some weapons with them. But at the same time, it has been established that accused 1 to 4 and 6 intended to commit house trespass and mischief," the Court said.

After looking at the wooden logs used by the accused to attack the victim, the Court concluded that the object of the conspiracy was only to cause grievous hurt by dangerous weapons or means.

The Court thus modified the conviction of the five accused including Baiju from murder to culpable homicide not amounting to murder.

"In the absence of any satisfactory evidence to indicate that the assailants intended to cause the death of the deceased or bodily injury as is likely to cause his death, the only offence that is made out is the offence punishable under Section 304 Part II," the Court held.

On the individual role of the accused, the Court said the four other accused had committed the offences at the behest of Baiju.

It further observed that Baiju, who was then a Municipal Councillor, had a tendency to react aggressively to criticism and it was his conduct which led to the crime.

"It is seen from the evidence that the sixth accused is a person who maintains an inflated sense of self-importance and superiority and has a tendency to react aggressively to criticism and opposition, viewing any challenge to his authority as a personal affront. His conduct which led to the crime exemplifies sheer intolerance and gross abuse of authority over trivial matters. Such behaviour undermines the democratic principles of peaceful political discourse and mutual respect," the Court said.

Baiju along with Sujith alias Manju, Sathish Kumar alias Kannan, Praveen, Benny, and Sethu alias Sethukumar had been found guilty of murder by the trial court in 2018.

While Baiju was sentenced to death, the others had been awarded life imprisonment. The convicts then moved the High Court which also heard the death sentence reference against Baiju.

Having examined the evidence, the High Court found that the victim's refusal to purchase coir mats from Baiju had irritated him.

"The evidence on record as regards the manner in which the sixth accused reacted to the deceased when he refused to purchase coir mats from him and the manner in which the sixth accused reacted to PW2 when he raised the issue relating to the sale of coir mats in the Wad Council Meeting, establishes that the sixth accused entertained a grudge against the deceased and his son, PW2," it said.

With that the trigger, the Court said the since the accused were members of a political party, it constitutes reasonable grounds to believe that there was a criminal conspiracy among them to attack the victim.

Having concluded that the accused had attacked the victim and Baiju's inflated sense of self had led to it, the Court said,

"No individual, regardless of position, is above the law, and inciting violence for political gain, according to us, shall be met with utmost severity while imposing sentences in cases of this nature to preserve social harmony and justice, for harsh punishment would not only serve as a deterrent, but would also give a message to the society that instigators are equally, if not more, culpable than the individuals who carry out the crime."

Senior counsel S Sanal kumar appeared for R Baiju.

Senior counsel P Vijaya Bhanu appeared for Manju.

Senior Counsel B Raman Pillai appeared for Sethu.

Advocate Vishnuprasad Nair appeared Kannan.

Advocate Anwin John Antony appeared for Praveen and Benny.

Public Prosecutor EC Bineesh appeared for the State.

[Read Judgment]

False complaints of sexual harassment must be dealt with an iron fist, the Punjab and Haryana High Court recently observed while ordering a police inquiry against a woman suspected of filing several false sexual harassment complaints to extort money.

Justice Harpreet Singh Brar highlighted that false sexual harassment cases can have a deep stigmatic effect on those who are falsely accused and have long term adverse effects on their lives and self-esteem.

The courts have a duty to ensure that such false or vexatious criminal cases are halted, the judge added.

"This unscrupulous and unethical practice of initiating criminal prosecution in order to extort money from unsuspecting victims, must be taken note of and strictly condemned to ensure that the judicial process is not used as an instrument of oppression and harassment," the Court said.

The Court further pointed out that false sexual harassment cases undermine the sufferings of real victims.

"It takes a lot of courage for women of this country to come forward and report a crime in the first place. By instituting false cases, the sufferings of the victims are undermined, leading to a perception among women that even if they step forward to report an offence, they will not be taken seriously either by the investigating agency or the Court," the July 16 order stated.

The Court made the observations while dismissing a woman's (litigant) plea for the registration of a criminal case to investigate allegations that her landlords verbally harassed and physically assaulted her.

She accused the landlords of causing hurt, criminal intimidation, sexual harassment and criminal conspiracy.

However, the police refused to register her complaint. A trial court and a sessions court also declined to order any investigation into the matter.

Therefore, she approached the High Court for relief.

The High Court, however, was not convinced by the litigant's case.

It reviewed the litigant's credentials and discovered that she had filed at least three petitions before the High Court (including the present case), all of which related to sexual harassment complaints.

The Court found that the litigant appeared to have filed 19 sexual harassment complaints in the district of Jind itself. In a July 4 order, another Bench of the Court had also recorded the State's submission that the litigant was a "habitual" complainant who filed cases to extort money.

The Court proceeded to express anguish over the ramifications of filing false sexual harassment cases.

The Court observed that those falsely accused of sexual harassment become doomed to live in constant fear and anxiety due to the humiliation brought in by the blemish of being a perpetrator of a sexual offence. Such accusations also lead to the ostracisation of one's family, the Court added.

"The Court cannot remain a silent spectator to such manifestly frivolous and vexatious instances of false implication ... If this modus operandi is allowed to continue unchecked, irreparable loss would be caused to the society at large," the Court said.

Therefore, it ordered the Director General of Police of Haryana to look into the credentials of the litigant and assign a senior police officer to investigate her credentials, the allegations levelled by her and examine how many similar complaints have been filed by her in Punjab, Haryana and Chandigarh.

"In case the allegations levelled by the petitioner are found to be false and manipulated, the DGP, Haryana is directed to take strict action against her, in accordance with law," the Court said.

The Court also dismissed the woman's plea for the registration of a criminal case. It reasoned that no criminal court is expected to act like a post office and direct a police investigation into every case where an application under Section 156(3) of the Code of Criminal Procedure (CrPC) is filed. 

Legal aid counsel Kamal K Yogi appeared for the petitioner.

Additional Advocate General Vikas Bharadwaj appeared for the Haryana government.

[Read Order]

The General Counsels Association of India (GCAI) has signed a Memorandum of Understanding (MoU) with the International Arbitration and Mediation Centre, Hyderabad (IAMC) to boost mediation as a means of dispute resolution.

The MoU signing took place as part of a roundtable hosted by Unum Law, Gibson Dunn and the Secretariat and was graced by Justice Hima Kohli, judge of the Supreme Court of India as the Chief Guest.

In her keynote address, Justice Kohli highlighted that mediation is a very powerful tool and a reliable partner to boost arbitration. Noting the role of GCs in this regard, she stated,

“GCs can leverage their skills to innovate methods to encourage mediation-arbitration or arbitration-mediation-arbitration, as mediation allows for business relations to be preserved."

She added,

"The growth of so many arbitration institutions has made arbitration more appealing and approachable. A specialised arbitration bar is the need of the hour and will draw a good pool of talent, akin to bars in several high courts, it will help boost confidence in domestic and international markets, will induce a cultural shift in the legal community positioning it as a superior alternative to litigation."

President and Vice-President of GCAI CV Raghu and Shukla Wassan echoed the sentiment that GCs could play a big role in encouraging mediation.

IAMC Registrar Tariq Khan remarked that collaboration with the industry is an important factor in promoting mediation and encouraging the institutionalisation of arbitration and mediation.

The MoU captures the essence of this vision and aims to act as a tool to further the cause of mediation by leveraging the expertise of GCs. 

The MoU signing was followed by a roundtable discussion on recent developments in arbitration law and ease of doing business in India.  The panel comprised GCAI Founding Member and Vedanta Group General Counsel Dr Sanjeev Gemawat; Chief of Governance and Strategic Acquisitions at Akasa Air Priya Mehra Dewan; Partner at Gibson Dunn Paul Tan; Managing Director of Secretariat Chaitanya Arora; and Unum Law Partner Anushka Shah. 

Luthra & Luthra Law Offices Partner Piyush Mishra is set to join Phoenix Legal as Partner and National Head of Bankruptcy and Restructuring.

Mishra is joining Phoenix with two other partners - Shivani Sinha and Rohit Sharma - and a few associates.

Confirming this development, Phoenix Legal co-founder Sawant Singh said,

"We are delighted to welcome Piyush on board as our National Head of Bankruptcy and Restructuring. His impressive track record in infrastructure, finance, insolvency, and restructuring, both in India and globally, will greatly enhance our existing practice and create exciting synergies with our other key areas of expertise. We also welcome partners Shivani and Rohit and an extensive team of experienced professionals."

Mishra is a 2002 graduate of National Law School of India University (NLSIU), Bangalore.

He is a dual-qualified lawyer and has extensive experience in distressed assets space, including restructuring and insolvency, enforcement of security, and acquisition of such assets. He has acted for lenders (CoC and individual), resolution professionals, bidders and distressed debt funds in pre-IBC resolutions, CIRP process and liquidations.

Before joining Luthra, he worked with AZB Partners, Cyril Amarchand & Mangaldas, Allen & Overy LLP (London) and the erstwhile Amarchand Mangaldas.

On his joining Phoenix Legal, Mishra said,

"Joining Phoenix Legal is a thrilling opportunity for me, given the firm's outstanding reputation in key areas like infrastructure, finance, corporate law, and disputes. I'm eager to leverage our combined strengths, fostering a dynamic collaboration that will propel us forward."

Luthra Capital Markets Partner Geeta Dhania has also left the firm and joined ELP.

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