ARTIFICIAL INTELLIGENCE, HEALTH CARE AND LAW: PART 3 - The Daily Guardian
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ARTIFICIAL INTELLIGENCE, HEALTH CARE AND LAW: PART 3

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It is interesting to determine the Legal Liabilities in the context of AI in health care. Medical Malpractice forms part of general negligence under Law. Given the fact that, negligence is attributable to breach of duty caused by the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate human affairs would do, that which a prudent, rational/ reasonable man would not do. Usually, elements of negligence include duty to care, violation of duty, resultant injury, injury should be linked to violation of duty. Usually, negligence in context of health care can occur in advice/ counselling, diagnosis, treatment. However, in case of AI system used in the context of health care matters become very complex.

An interesting question in this context is can an AI Algorithm be sued for malpractice? However, the capacity to sue and to be sued can be determined only in case some legal recognition at least limited recognition is accorded to AI. Can AI Algorithm be subject to duty and care? Can AI used in Robotics Surgeries be subject to wrongful or incorrect conduct of operation?

In case an AI Algorithm is engaged for counselling and therapeutic sessions and does not sufficiently advice or counsel the patient regarding their medical conditions to prevent harm from occurring then it may amount to negligence. Can the AI Algorithm be subject to such negligence?

In case a patient is wrongly diagnosed or misdiagnosed by an AI Algorithm, then it amounts to a tort of negligence. However, in this scenario can a doctor using the AI technology also be liable for such misdiagnosis. However, if the AI Algorithm gets more and more accurate using machine learning techniques than a Doctor, then it may be difficult to attribute negligence to the doctor, since the Doctor is not the coder of such Algorithms. Can AI Algorithm be considered as a product within the ambit of Product Liability in the context of health care?

The net effect of which means that it is a form of Strict Liability where in the burden of proof will lie on the defendant, in which case the manufacture of the AI based software/ product and not the patient. However, the issue of strict liability brings in a new twisted option since human beings and AI are working together in the decision-making process and casting liability on the human being alone may be a challenge.

Can AI be brought under the private law regimes for compensating patients suffering from harm due to the errors or issues of the AI Algorithm.

However, in case it is found that there is a defect in the AI system in the context of Health Care that has resulted in the cause of patient’s injury, then the manufacturer shall hold liability of the same. further, in case the patient’s injury is a resultant of failure to properly handle and maintain the AI system, then the Doctor shall also be cast with contributory negligence. Vicarious Liability is usually applied in situations where one can be held responsible for the acts of the other, usually in case of employee employer relationships. In the context of AI, in health care can the Doctors /hospitals be liable for the negligence of the AI Algorithm. However, in order to attribute liability to the Doctors/ hospitals in this scenario a legal relationship should be established between the Doctors/hospitals and the AI Algorithms. In this kind of scenario some kind of legal recognition should be provided to the AI.

Can AI Algorithms qualify to be rendering professional advice like Doctors? Do they require any specific medical licenses or specifications in this regard? In case of any issue arising thereof, what is the landscape of legal liability will be interesting questions in the context of AI in health care.

CASE STUDIES

The AI based Chatbots are developed with Machine Learning Algorithms including natural language processing in order to provide real time assistance to Health Care Providers, Professionals, Patients, thereby transforming Health Care, Patient Care, and Medical Care.

AI based Chatbots are being used to provide assistance to patients with regard to booking of medical appointments, knowing the status of their appointments, medical reports status and are used to sort out any grievances thereof.

Chatbots are primarily used in Health Care Industry for providing Information, by the way of pop-up Notifications. However, most of these Chatbots are used as tools or bots for providing enhanced customer support, by providing automated information. Further, Medical Chatbots are used by medical professionals for the purpose of getting assistance with regard to the Patient’s Medical Conditions and to offer different Medical Solutions to the Patient’s Health Conditions. Further, these Chatbots also provide Information relating to Medicines, their Dosage, Adverse Effects, and have the potential to improve the Health Care Industry.

These AI based Chatbots also raise some Medico Legal as also Legal Regulatory Aspects.

AI-TELEMEDICINE

AI and Health Care has also revolutionised Telemedicine and Telehealth Applications. AI, Telemedicine and Telehealth are empowering remote patient monitoring offering better diagnosis addressing Hospital Work Force issues supporting Health related Education. AI and Health Care has also taken over automation of manual and repetitive tasks of collecting, analysing data including medical records and history. AI in Telemedicine is assisting the Doctors and Medical Professionals to diagnose, monitor the Patients Health Conditions and progress and is also providing assistance in health-related counselling. It is very interesting to note the kind of Doctor-Patient relationship with the application of AI in Telemedicine. AI Algorithms are also helping in detecting the occurrence of certain rare genetic diseases and disorders by analysing the photographs of the Patients during the Telemedicine Consultations. Further, the AI Algorithms in Telemedicine can be used for comparison of the old photographs with the new photographs of the Patient in order to identify the intensity of the disease or medical issue.

The AI Algorithms are also analysing the medical history of the Patients and are suggesting the best possible medical treatments to the Patients and helping the Doctors and Medical Professionals during the Telemedicine Consultations reducing the time and costs. AI by way of facial recognition can help in identifying the Patients and the Doctors during the Telemedicine Consultations. The application of AI in Telemedicine can also alert the Doctor in regard to the seriousness and the medical condition of the Patient thereby identifying the Emergency Cases. AI in combination with Cloud Computing can augment the Health Care Services to a next level. AI by way of facial recognition can also detect the Doctors fatigue and can also predict the screen time of the Doctors during the Telemedicine Consultation as also how many Patients the Doctor will be able to see before burning out. AI in Telemedicine can also help in better creation and management of medical records.

AI-ROBOTIC SURGERIES

Surgical Robots are being developed with the application of AI and Robotics. These Surgical Robots are used for Procedures that require repetitive movements. AI in combination with deep Machine Learning is used for automating processes which is collected by observing the Medical Surgeons while performing surgeries. These AI based Robots can avoid unintentional and accidental movements. Given the Data and Algorithms, AI shall be able to determine the patterns with surgical procedures for coming up with best practices and improving their accuracy and precision. AI can also be used for identifying the procedures and steps in real time by analysing the videos of surgeries. They can also improve the outcomes of Patients, by accessing and treating diseases while integrated with medical procedures, instrumentation, and other technologies.

AI-NURSING

AI in Nursing has potentially helped nurses to improve the quality and efficiency of Nursing Care. AI applications including Machine Learning, Deep Learning, Natural Language Processing can aid in Nursing Research and Practice and can play an effective role in patient caring and outcomes. AI Algorithms shall be relevant in Nursing since these Algorithms can create Electronic Health Records in Patients and can analyse and help in Patient Monitoring. Integrating Data from Electronic Health Record AI can be used for providing Information regarding Patient’s specific preferences and can identify potential risk and help the nurse with nursing notes by providing analysis of the same. However, the AI Systems through Machine Learning can aid in sending Warnings or Notifications to the nurses in case of any immediate interventions. AI in Nursing Care can transform Nursing Care from reactive to predictive and enable more intelligent and smart Nursing Aids. The recent developments of AI in Nursing include Automating Nursing Documentation, Alerting and Notifying Nurses in cases of any Patients Movements, Breathing, Postures and Positions, Automatic Intimation of Completion of Saline Bottles, Remainders for giving Medications.

AI-MENTAL HEALTH

The use of AI in Mental Health Care is already being explored where in AI Algorithms are used for early detection and diagnostics of Mental Health Issues including Bipolar Disorders, Depression, Schizophrenia. The Mental Health issues are treated based on the Language Interaction, Speech, and other gestures during the Counselling and Therapy Sessions. AI by way of Machine Learning and Deep Learning based on Algorithms is capable of analysing the Speech Data and other interactions and can aid Psychologists and Psychiatrists. These Machine Learning Algorithms shall be able to analyse the Data and diagnose the Mental Illness. AI as a technology can dramatically improve research and treatment using its smart Algorithms for analysing the pattern and behaviour of Human Beings. AI shall act as a Virtual Mental Health Agent suggesting and predicting steps and strategies to be followed during the treatments. Further, AI by way of facial recognition can analyse and perform Health Assessments and can improve the user’s wellbeing. Needless to say, AI could also help in management of Mental Disorders given the anonymity and accessibility of the AI Algorithms.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

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NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.

The National Company Law Appellate Tribunal (NCLAT) in the case Shardha Buildcon Pvt. Ltd v. The Dhar Textile Mills Ltd, the bench comprising of Justice Ashok Bhushan and Justice Mr. Barun Mitra observed and has dismissed the appeal filed by the Resolution Applicant seeking permission to withdraw its resolution plan and held that allowing withdrawal of a resolution plan will be having serious disastrous effect on the whole purpose of the Insolvency & Bankruptcy Code, 2016.

Before the NCLAT, the appellant filled an appeal against the order dated 21.07.2022 passed by NCLT Indore which relying upon the judgment of Supreme Court in the case Ebix v. Educomp dismissed the application filed by the Appellant wherein seeking for the withdrawal of the resolution plan.

The Appellant contended that the judgement of Ebix is not applicable as the same deals with the cases where the Corporate Debtor has undergone changes but in the present case, wherein the Appellant is seeking withdrawal due to the financial difficulty that is being faced by the Appellant.

The argument of the Appellant was rejected by the bench and has held that even if the Appellant is allowed to withdraw from the plan due to financial difficulty and the same will be amounting to go back from the commitment made in the resolution plan which is not permissible.

The bench observed that the IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Thus, permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC.

Accordingly, the NCLAT bench dismissed the appeal filed by the Appellant and has upheld the order of NCLT, Indore.

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Supreme Court: Order Of Termination Approved By Industrial Tribunal Is Binding On Parties, Labour Court Can’t Take Contrary View.

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SUPREME COURT

T

he Supreme Court of India in the case Rajasthan State Road Transport Corporation vs Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr observed that the that an order of termination approved by an Industrial Tribunal is binding on the parties and a Labour Court cannot take a contrary view against it.

The bench comprising of Justice MR Shah and Justice Krishna Murari observed and has stated that once the order of termination was approved by the Industrial Tribunal on appreciation of the evidence led before it, thereafter it was stated that the findings recorded by the Industrial Tribunal were binding between the parties and no contrary view could have been taken by the Labour Court contrary to the findings being recorded by the Industrial Tribunal.

However, the court was considering an appeal plea by the Rajasthan State Road Transport Corporation.

The bench observed that a workman was subjected to departmental enquiry for not issuing tickets to 10 passengers after collecting the fare. Thus, on conclusion of the departmental enquiry, his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the Industrial Act. In the said proceedings, it was permitted by the management to lead the evidence and prove the charge/misconduct before the Tribunal. By order, the Tribunal approved the order of termination.

It was observed that after a judgment and an award in 2019, the Labour Court, Jaipur allowed the said reference and set aside the order of termination. An order was passed by the Labour Court while awarding 50% back wages from the date of termination till his death i.e., December 10, 2018. The Award and the judgement passed by the Labour Court was challenged before both, Single and Division Benches of the High Court. However, the petitions were dismissed both the times.

The Court observed after going through the relevant facts of the case that once the order of termination was approved by the Industrial Tribunal, thereafter the fresh reference under Section 10 of the Industrial Disputes Act, wherein challenging the order of termination was not permissible.

Adding to it, the court stated that though it is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the finality has been attained by the Labour Court.

Before the High Court, though the aforesaid fact was pointed out, the court did not consider this aspect and confirmed the judgment and award passed by the Labour Court for setting aside the order of termination, which has been approved by the Industrial Tribunal. 

It was held by the Supreme Court that the judgment and award passed by the Labour Court, confirmed by the High Court is unsustainable and allowed the appeal plea.

It has been committed by the High Court that a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.

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‘Attempt To Threaten Judges With Contempt Pleas Unacceptable’ : Madhya Pradesh High Court

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‘Attempt To Threaten Judges With Contempt Pleas Unacceptable’ : Madhya Pradesh High Court

 While fully, firmly and finally deprecating most strongly the most reprehensible practice of bringing “every wrong order” that is passed by the Trial Courts under the contempt jurisdiction, it is most assuaging to learn that none other than the Madhya Pradesh High Court itself has in a most laudable, learned, landmark and latest judgment titled Majid Beg and Ors vs Shri Tej Pratap Singh in Contempt Petition Civil No. 1987 of 2022 pronounced as recently as on September 20, 2022 observed sternly that trying to threaten judges with contempt pleas will not be accepted. It must be noted that while very strongly pulling up four litigants for making ‘reckless allegations’ against a Trial Court Judge, a Division Bench comprising of none other than the Hon’ble Mr Chief Justice Ravi Malimath himself and Hon’ble Mr Justice Vishal Mishra observed without mincing any words in simple, straightforward and suave language that, “…We deprecate such attitude. We do not appreciate that every wrong order passed by the Trial Court is to be brought under contempt and the concerned judge has to be proceeded against trying to threaten the judges with petitions for contempt, in our considered view, is not going to be accepted.” Absolutely right!

More to the point : If Judges cannot function smoothly, then even God cannot save our country for it is Judges who determine God’s fate. As for instance when a woman lawyer named KL Chitra filed a PIL in Supreme Court for action to create a High Court Bench in West UP, the then CJI Ranjan Gogoi had very clearly said that we are no one to rule on this and it is only for the Centre to act in this regard. While adding a rider, the then CJI Gogoi said that he fully sympathized with the contentions that the people of so many districts of West UP are made to travel so far about 700 to 750 km on average all the way not even to Lucknow which is 200 km earlier but right till Allahabad to get justice. KL Chitra abided by that judgment instead of beating her chest and complaining and accusing Judge of being biased which really deserves to be applauded as inspite of losing the case as her PIL was dismissed yet she took it in correct spirit that judiciary whether it is UP Chief Justice or UP Chief Minister or Chief Justice of India is no one to rule on this and it is Centre and Centre alone which has to take the final call on it!   

Anyway, coming back to the key issue, it must be noted at the outset itself that this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Chief Justice Ravi Malimath for a Division Bench of the Madhya Pradesh High Court comprising of himself and Hon’ble Mr Justice Vishal Mishra sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed seeking initiation of proceedings for contempt against the respondent herein for willfully disobeying the order dated 9th July, 2022 passed in Miscellaneous Criminal Case No.27507 of 2022.”

To put things in perspective, the Division Bench then envisages in para 2 of this learned judgment that, “Shri Vishal Vincent Rajendra Daniel, learned counsel for the petitioners contends that the respondent has violated the aforesaid order. He submits that the order passed by this Court in paragraph-9 has been disobeyed. He submits that even though the impugned order therein dated 10.05.2022 was set aside, the trial judge is proceeding to recall the witnesses and record their evidence. It is his submission even though he brought it to the notice of the trial judge, he was told that there was no order to restrain him not to summon the witnesses. Therefore, in view of the fact that there is no specific order restraining him not to summon the witnesses, there is no disobedience of the aforesaid order. Therefore, it is pleaded that since the contempt has been committed in disobeying the directions contained in paragraph-9, appropriate action be taken against the respondent.”

While mentioning about the core issue itself, the Division Bench after hearing the petitioners counsel as mentioned in para 3 then enunciates in para 4 of this remarkable judgment that, “Paragraph-9 of the order, which is said to have been disobeyed by the respondent reads as follows:-

“9. Therefore, in view of the above, present petition is allowed. Order dated 10.05.2022, passed by the learned Chief Judicial Magistrate, Seoni is set aside and learned Chief Judicial Magistrate is directed to decide the matter afresh after granting an opportunity of hearing to the petitioners/accused and to raise all such objections as are available to them, in accordance with law. Criminal case is pending for more than 9 years. Therefore, learned CJM is expected to dispose of this case as early as possible preferably within a period of six months from the date of receipt of copy of this order.””

Furthermore, the Division Bench then specifies in para 5 of this robust judgment that, “It is the further plea that the trial judge has stated that there was no order passed by the High Court directing him not to recall any of the witnesses. What was ordered by the High Court was to decide the matter afresh after giving an opportunity of hearing to the petitioners/accused etc. Therefore, what is being done by the trial judge is in accordance with the directions especially given in paragraph-9. Hence, there is no contempt.”

Most forthrightly, the Division Bench then mandates in para 6 of this pragmatic judgment that, “On considering the contentions, we are of the considered view that no contempt would arise in this matter. There is no specific order directing the trial court not to summon the witnesses or anything of the like nature. This Court after setting aside the order dated 10.05.2022 which is an order under Section 311 of the Cr.P.C., directed the CJM to decide the matter afresh after granting opportunity. ‘Afresh’ necessarily means from the beginning. Opportunity has already been granted. Therefore, we do not find any willful disobedience as pleaded by the petitioners. Hence, the petition is liable to be dismissed on this ground itself.”

Most remarkably and also most significantly, the Division Bench then encapsulates in para 7 what constitutes the cornerstone of this notable judgment that, “So far as the contentions being advanced are concerned, we do not appreciate the same. Apparently, the plea of the petitioners is that in spite of the order of the Court, the trial judge has disobeyed the same. We have hereinabove held that the same does not amount to contempt. Every order that is passed by a superior court, is liable to be followed by the lower court. Even assuming the case of the petitioners is to be accepted of certain misapplication of the law, that does not amount to contempt. The understanding of the trial court is quite a different issue than disobedience. One has to show that the disobedience is willful to the orders passed by the superior courts. If there is any scope for any interpretation in the directions being issued then that cannot constitute a contempt. In the instant case, the impugned order therein was set aside with a direction to consider the matter afresh. Therefore, the trial court has to consider the matter afresh. As to how that amounts to contempt, we are unable to follow. Therefore, we are of the view that this is nothing but a pure adventurism by the petitioners in making such reckless allegations against the trial judge. We deprecate such attitude. We do not appreciate that every wrong order passed by the trial court is to be brought under contempt and the concerned judge has to be proceeded against. Trying to threaten the judges with petitions for contempt, in our considered view, is not going to be accepted. Since this matter is arising for the first occasion we have restrained ourselves from taking strict action but only direct a warning to the petitioners to desist from such adventurism.”

Finally, the Division Bench then as a corollary finds no hesitation in coming to the palpable conclusion as directed in para 8 of this progressive judgment that, “Petition is accordingly dismissed.”

In a nutshell, what inevitable conclusion that can be drawn from this most powerful, pragmatic and progressive judgment is that the Madhya Pradesh High Court has minced just no words to make it indubitably clear that any attempt to threaten Judges with contempt plea is totally unacceptable. There is absolutely no bona fide reason why any citizen of India should dare to differ even marginally with what the Division Bench comprising of none other than the Hon’ble Mr Chief Justice Ravi Malimath himself and Hon’ble Mr Justice Vishal Mishra have dwelt upon so succinctly and so convincingly that there remains no valid reason not to agree in totality with what they have held so commendably!

Sanjeev Sirohi, Advocate

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Supreme Court Sets HC Bail Condition Of Depositing Rs 7.5 Lakhs: Plea Seeking Pre-Arrest Bail Not Money Recovery Proceedings.

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Supreme Court Sets HC Bail Condition Of Depositing Rs 7.5 Lakhs: Plea Seeking Pre-Arrest Bail Not Money Recovery Proceedings.

The Supreme Court in the case Udho Thakur Vs State Of Jharkhand observed while opening that petitions seeking pre arrest bail are not same as money recovery proceedings petitions, the Top Court of India recently annulled a condition imposed by the Jharkhand High Court of depositing 7.5 Lakhs as “victim compensation” while granting pre-arrest bail.

The Division bench comprising of Justice Dinesh Maheshwari and Justice Bela M Trivedi observed and stated that even if we take the submissions of the learned counsel for the contesting respondent on its face value, the bench is clearly of view that in essence, the petitions seeking relief of pre arrest bail are not money recovery proceedings and, ordinarily, for adopting such a course there is no jurisdiction that for the purpose of being given the concession of pre-arrest bail, the person concerned apprehending arrest has to make payment.

In the present case, the bench was considering an appeal plea filed challenging the order of the Jharkhand High Court granting pre-arrest bail to the appellants on the condition that they furnish a bond of Rs.25,000/- and deposit a demand draft Rs.7,50,000/- as an ad-interim victim compensation.

It was submitted by the counsel appearing for No. 2 submitted 1 that the expression “victim compensation” as used in the impugned order may not be apt as it was not a case of recovery of victim compensation, but otherwise, the condition cannot be said to be onerous or unjustified because receiving of the said sum of Rs. 7,50,000/- by the appellants at the time of marriage has not been a fact in dispute.

It was observed that the counsel appearing for the state government relied on several orders against imposing the terms of payment for the purpose of granting the relief of pre-arrest bail and remitting the matter for re-consideration.

The order of High Court was modified by the Court without remitting the matter back to the High Court.

The court observed while having regard to these circumstances that the said condition of depositing a sum of Rs.7,50,000/- for the purpose of granting the relief of pre-arrest bail cannot be approved and else and the order of granting bail deserves to be maintained. However, the court is of the view that no useful purpose would be served by sending the matter for reconsideration to the High Court and the order impugned deserves to be modified appropriately only in these appeals.

The order was clearly clarified by the Supreme Court of India in the manner-releasing the appellants on bail in the event of arrest on furnishing bond of Rs. 25,000/ will remain intact but on the other part of the order, the appellant require to deposit a sum of Rs. 7,50,000/- has been annulled.

Accordingly, with the aforesaid observation, the court disposed of the petition.

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Delhi High Court: [CPC] Objective Of Interrogatories Is To Narrow Controversy, Can’t Be Used By Plaintiff For Substituting Burden Of Proof.

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The Delhi High Court in the case Micromax Media Pvt Ltd v. M/S Hewlett Packard India Sales Pvt Ltd and Ors. observed and stated that the interrogatories cannot be used by the plaintiff in a suit for substituting its burden of proving things by adducing relevant evidence, adding that its objective is to narrow the controversy and facilitate the framing of issues regarding the disputed facts in the case.

The bench comprising of Justice Neena Bansal Krishna observed and has further added that Order 11 Rule 1 of the Code of Civil Procedure, 1908 is for expediting trial of the suit, thereby saving the costs of litigation and judicial time.

The Court stated that the interrogatories must be used liberally by the parties and one of the greatest objects of the interrogatories when properly administered is to save evidence i.e., for diminishing the burden of proof which was otherwise on the plaintiff. Thus, the object is not merely to discover the facts but also to save the expense of proving a part on the case.

It was observed that Order XI Rule 1 of the Code states that the plaintiff or defendant in a suit may, by leave of the Court, deliver interrogatories in writing for examination of opposite parties or for any of the parties.

It is also stated in the provision that no party shall deliver more than one set of interrogatories to the same party without an order for the same.

It was observed by the court that interrogatories are not limited to giving plaintiff the knowledge of something which is not already known, but includes getting admission of anything which he has to prove on any issue raised between the defendant and him.

The court added that Order 11 gives a party a right to interrogate with a view to obtain an admission from his opponent of everything which is material and relevant to the issue raised in the pleadings.

In the present case, the court was delaing with an application filed under Order XI Rules 1 and 5 read with Section 151 of the Code by Micromax Media Private Limited seeking directions to make Hewlett Packard India Sales Private Limited officials to answer the interrogatories in the suit filled.

It was ststed in the application that the defendants in their Written Statement-cum-Counter Claim had admitted the entitlement of the plaintiff company to the MVC rebates and bonus for the period between December 2008 till June 2009.

However, Hewlett allegedly set off and raised a counter-claim of Rs. 5,69,00,000 against  Micromax claiming that it had received excess payments from the month of November 2007 to April 2009 which was discovered during the audit. The court was informed that no document was placed by the defendant company on the basis of which it was claiming excess payment.

The counsel appearing for the defendant company seek dismissal dismissal of the application by taking a preliminary objection that the company had nowhere admitted to the entitlements to the alleged MVC rebates.

Before the Court, it was also argued that the interrogatories sought to be administered to the defendants were nothing but a fishing expedition tantamounting to embarking on a roving enquiry.

Also, the court observed that the documents sought from the defendants, relating to their Counter-Claim, did not shorten the controversy or narrow the scope of evidence that the plaintiff would have to prove necessarily in support of its claim.

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No need for a NOC to transfer flats built on land leased to the developer: SC

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Supreme Court

The Maharashtra government cannot require a “no objection certificate” from the collector in order to register the transfer of flats in cooperative societies built on land not provided directly by the state, the Supreme Court ruled last week.

The Court was hearing a petition filed by the state government challenging a decision issued by the Bombay High Court on September 29, 2009, which held that the state could not insist on payment of a premium and the issuance of a NOC for registering the transfer of plots when there is clear evidence that the land was allotted first to builders who built flats and then sold it to purchasers. Following that, the owners formed a cooperative society.

The HC decision was based on a petition filed by Aspi Chinoy, a senior advocate in Mumbai, and the Cuffe Parade Residents Association, who were residents of the 22-story Jolly Maker Apartments.

The top court bench of justices BR Gavai and BV Nagarathna dismissed the state’s appeal on Friday, “Since the land was not allotted to a society but to a builder on lease, who has constructed flats for private individuals, who have subsequently formed a Cooperative Society, the 1983 Resolution and 1999 Resolution would not be applicable to the members of such a society.”

The state had relied on two resolutions, dated May 12, 1983 and July 9, 1999, to levy a premium as a condition for granting permission for flat transfers.

The Resolution of 1983 provided for the grant of land at reduced rates to various categories of co-operative societies.

Following the 1983 Resolution, the government issued a modified resolution in 1999 that applied to co-operative societies to whom government lands were sanctioned at reduced rates.

Chinoy had approached the HC, questioning the resolutions’ relevance to their plot. He had challenged the collector’s letter of June 27, 2000 to the sub-registrar, Bombay City, Old Custom House, directing him not to register any transaction involving the transfer of flats in the buildings located in B.B.R. Block Nos. 3 and 5, Nariman Point and Cuffe Parade, Bombay, without first obtaining a NOC from the collector.

According to the residents, their building dates back to 1971, when the state government solicited bids for the lease of Plot Nos.93, 94, 99, 100, and 121 from Block V Back Bay Reclamation Estate. In response to the notice, M/s. Aesthetic Builders Pvt. Ltd. successfully won the bid and completed the construction of flats. On December 12, 1975, the building’s occupancy certificate was issued. Two years later, the owners established the Varuna Premises Cooperative Society Limited.

The bench said, “The present case is not a case where the land is allotted to a co-operative society by the government. The land was leased out to the builder, who was the successful bidder and after the ownership of flats was transferred to the private individuals, a society of the flat owners was formed.” The judges also lifted the stay on the refund order issued by the Supreme Court.

Chinoy claimed that the flat in which he lives was first sold to A Madhavan in 1972 and then to Reshmidevi Agarwal in 1978.

Chinoy then entered the picture by signing an agreement with Agarwal in December 2020 in exchange for five shares in the society.

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