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Covid-19 and the courts

The experience online has been refreshing. One has to ensure that one has downloaded the necessary apps which are usually Webex, Vidyo, or Zoom depending on the forum one is arguing in. The hearing can be conducted not just on a desktop but various other instruments such as a cell phone, iPad or the Surface Pro from the comfort of one’s home.

Prashanto Chandra Sen

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Apart from the threat to life posed by the pandemic, another dramatic impact was the crippling of the justice system. Overnight the courts had to be shutdown. This was at a time when the cry for justice was the shrillest. Disasters such as these are opportunities for autocrats to tighten their grip; for unscrupulous politicians to exploit the situation to their advantage; intrusive surveillance; lockdown of protests, and the tragic trampling of human rights arising from the sheer confusion of authorities battling the unprecedented, silent, fury of nature. For two months the Indian bureaucrats issued over 4,000 different rules attempting to keep a population of 1.3 billion shut indoors. The labour migrations was the most immediate effect visible. The arbitrariness of the rules were enhanced by what the Economist described as the “petal plucking” changes of mind by the Indian authorities.

 Subsequently there were stirrings of courts through the online system. Without detracting from the tragedy, one needs to note that Covid, like war, is forcing innovation at a scale and pace, that no government could contemplate. It is forcing overhaul of decades or even centuries of procedures and habits. In UK for example reforms which were languishing are suddenly being implemented. In 2016 the UK government had launched what it claimed was the most ambitious court modernisation program in the world. More than 100 courts were told to finance a vast digitisation of justice. But by the time the pandemic struck little had changed. One pilot to test video courts involved only 11 hearings. All that has changed with the pandemic. Technology began to be used which even a month ago would have been unthinkable.

 In India the move to online working has been surprisingly smooth ( the glitches notwithstanding) . As Justice A.K. Jayasankaran Nambiar of the High Court of Kerala perceptively remarked in one of the online webinars, that switching to this technology is a matter of change of mindset more than anything else. Till the first week of July the Supreme Court had heard 7,800 cases online, and the High Courts about 1.75 lakh cases. Out of this Delhi High Court had taken 9000 cases through video conferencing from the beginning of the lockdown till first week of July. While in isolation this is an impressive figure, the volume of cases dealt with and the disposal rate when the physical hearings were taking place normally were far more.

The experience online has been refreshing. One has to ensure that one has downloaded the necessary apps which is usually Webex, Vidyo, or Zoom depending on the forum one is arguing in . The hearing can be conducted not just on a desktop but various other instruments such as a cell phone, IPAd or the surface pro from the comfort of one’s home. There is tremendous flexibility in the hearings.

One day before the hearing a link is generated and a designated time is given. However it is not certain that the designated time is the time when the hearing will be actually taken up. More often than not the hearing is delayed.

There is a discipline in the manner in which arguments are conducted. The lawyers and judges are both aware of the time limitations and so the arguments are made brief and to the point. Interruptions from the opposite party while one side is arguing are reduced. The sound distortions which occur during the hearings make the participants extra sensitive to not disturbing the flow, when one side is arguing. Initially the duration of the hearings tended to be short. As the participants became more used to the technology, lengthy hearings have become more common. The excuse of any party, that the records are voluminous are now being swiftly rejected as not being germane to whether the final hearing can be held or not.

There is ease of conferences, as lawyers and clients are adopting Zoom and similar apps for conferences. Considerable commuting time is freed up and expenses saved, both within or between cities. The stakeholders have become familiar with technology. There is far greater ease and efficiency with which legal work can be transacted. It is becoming apparent, that this transition is not impermanent. Even when physical hearings begin, the online system will be used. I envisage a hybrid system. Any unfamiliarity with technology for online hearing is fatal for lawyers and will ensure that even the most technophobic lawyer embraces technology.

Yet there are costs for this transition. The biggest issue is the infrastructural restraints. Many of the lawyers have gone back to their native places where the connectivity may not be very good, making it difficult for him/her to participate in online hearings. Not every lawyer has the access to a laptop or a good quality cell phone. Many of the lawyers are living with joint families and face constraints of space, making it difficult for them to participate in virtual hearings or conferences. Some High Courts have used the online systems extensively and some have been slower to adapt. The lower courts have also not taken to the online systems easily. Infrastructural challenges is one of the biggest challenges which could derail the entire process of online transformation.

At the same time technology offers opportunities and solutions which were never possible before. Covid has permanently altered the conception of the court as a physical space, where lawyers congregate for a hearing. It is now a virtual space accessible from anywhere. Complex arguments are often being advanced through mobile phones. With commuting time being saved, it is not only the lawyers who have cause to celebrate but it has also become easy for the client to access the court without having to trudge all the way physically to where the Court is situated.

Already in the UK there is talk of makeshift courtrooms in bigger venues. There is the possibility of requisitioning empty London theatres; jurors logging in from church halls with someone to help with the IT. This is a model which can be followed in India. Malls and other public spaces can be used, if proper infrastructure is put in, with common facilities for lawyers and other stakeholders to access for the purpose of online hearings. This would reduce the space constraints on the main court rooms and enable proper social distancing. It would also enable lawyers particularly the young lawyers who do not have access to proper infrastructure to have access to such facilities being made available publicly.

While equality of access is something which can be addressed by proper government investment in infrastructure, there are certain types of matters inherently unsuited to online hearings. Criminal cases involving extensive oral evidence cross examination etc; digital death sentencing is not what any justice system would have in mind; delicate matters like child custody, family hearings, jury hearings ( in UK) are outside the pale of video conferencing; important constitutional matters are awkward guests in the virtual world. Judges are less likely to grant bail online than physically. There are grave fears of compromise in fairness of judicial process. It either requires a leap of faith or a leap of technology for these types of matters to be brought in to online embrace.

Such leaps are not fanciful. Parties could consent to have the delicate matters conducted online. Fit-bits and apple watches are able to monitor our bodily functions far more accurately than ever. It is a matter of time before the technology evolves sensors which can detect micro emotions, making it possible for Judges to observe demeanour of witnesses in a manner far superior to what is possible through the human eye. However these are musings for the future.(Although in arbitrations online evidence by videoconferencing is very common) It is essential at present, to take stock of how digitisation was initiated in India and where we are in terms of online capabilities.

Attempts at online transformation is something which has been attempted for quite some time in India. The Salem Advocate Bar Association Case was one of the first cases that broadly interpreted the provisions of the Civil Procedure Code and allowed for the use of electronic media during the evidence stage. In the State of Mahrashtra vs Dr Praful B Desai the Supreme Court in the context of Criminal Procedure held that the term presence does not only mean physical presence. In 2005 itself a proposal which was mooted by Rajendra Babu J for the digitisation of courts, was accepted. There was the Constitution of the E Committee. It functions under the aegis of the Supreme Court with the Chief Justice of India as the Patron in Chief cum Ad-Hon’ble Court Chairman. The E Committee published the National Policy and Action Plan for the Implementation of Information and Communication Technology.

In 2008 the CrPC was amended to include the use of audio electronic means. In 2014 the Supreme Court e- committee initiated a pilot exercise to study Video conferencing in certain jails and courts. In 2016 video conferencing equipments were installed in 704 locations. Use of video conferencing in family courts was allowed in family courts pursuant to the decision in Santhini v Vijaya by the Supreme Court. In the Swapnil Case in 2018 it was held that if no person can plead ignorance of law, there is a corresponding duty to spread awareness of the law. Law should not just mean the statutory law but also the procedural aspects of the law. This was the principle to justify live streaming of important issues of Constitutional and National importance. By 2019, 488 court complexes and 342 jails in the country had a video conferencing set up. Currently in sensitive matters the court has allowed trial by video conferencing for a substantial part. Currently, video online facilities are now being regularly used.

For the future we need a vision of what we need to deliver through technology. The goals must be rooted in principal rather than potential technical achievements. Technology must ultimately serve goals that are socially desirable and the strategy adopted to fulfil them must be based on morality and Constitutional values.

Guiding principles of technological innovation have to involve minimal asymmetry of information; digitilisation should be implemented uniformly in one swoop; There should be interoperability; Ease of use; accessibility; Automation of key processes; Intelligent tools to stakeholders; and transparency. Most importantly there should be privacy of information. In India currently personal usage of personal data or information of the citizens is protected by the IT Act and the rules. These rules do not apply to data generated by the Government. The recent Puttaswamy Case will no doubt greatly influence the promotion of a legal regime where personal data is adequately protected.

The basic precepts of open justice have to be promoted which is (a) Entitlement to attend the proceedings. (b) Promotion of full fair and accurate reporting; (c) duty to give reasoned judgments; (d) Public access to the judgments of the court.

 Richard Sisskind, President of Society For Computers and Law, and also holding the Chair of the Advisory Board of Oxford Internet Institute at Oxford is a pioneer in this field. Author of the seminal book ‘Online Courts and the Future of Justice’, he envisages two stages of evolution in Online Justice. The first generation is when judges make the decision without being in the physical court rooms. The second generation is artificial intelligence giving out binding decisions without human agency for large volume mall causes matter.

All the above objectives may require a statutory framework in place. The votaries of a statutory framework argue that such a frame work would ensure that the design and operation of the platform, follows well defined principles at every level including the planning, monitoring the progress of implementation, redressing breaches of data and redressing any harm done to an individual citizen through any misuse or malfunction of the platform. It would help adapt the laws and rules on judicial procedure, and administration to an online platform and not require repeated re-interpretation or amendment of the existing laws in these areas.

 It is further argued that no statutory backing makes it impossible to enforce the digitisation of the court through filing of Petitions. It will ensure justiciability of the platform processes and accountability of the platform authorities. A policy framework lacks legislative guidance.

It can also be argued that the existence of a statute will be of little consequence as far as judicial administration of the online regime is concerned. There is a limit to which the legislature can interfere with the functioning of the courts so that the independence of the judiciary is preserved. Too much regulation may stultify the system. The rapid changes in technology would require flexibility of response best done through practice directions and policies. In fact the UK has no legislative framework. The directions and the policy should be implemented by the staff and officials of the court, who are trained in IT along with an IT cell, well advised by experts of the highest calibre and expertise. The accountability of the functionaries in the court can be enforced easily. This is because any of these processes would involve lawyers who, being affected by these procedures are more likely to keep the authorities/functionaries on their toes.

An important factor to be kept in mind in the administration of an online system is the relative difficulty of any person to keep up with the latest developments in technology. Often impact on privacy etc becomes apparent only later. It would therefore be critical that the courts are well advised by the best experts in the field and with high levels of integrity. Selection process for the experts for technological advice would have to be rigorous.

It would also have to be ensured that the technology being used by the court systems are similar or at the very least easily adaptable to one another. The inter connectivity would be a greatly empowering feature increasing the efficiency of the justice system considerably.

For the moment, video conferencing and online hearing is here to stay. It is already being used for sensitive cases. It is also used for cases having outstation experts/witnesses etc and emergency cases. A hybrid system will definitely emerge in the very near future. The online forms of justice delivery are now getting similar to other forms of service delivery where there is a combination of physical service with the online services. Apart from the High Courts and the Supreme Court the, NCLT, Income Tax appellate tribunal etc are all using video conferencing. It may be useful for all the forums to use one type of app for the purpose of administration of Justice. Even better would be the development of a customised app by the Supreme Court which could be used by all the courts and tribunals all over the country, after rigorous trial runs.

The benefits of the online system would be considerable. The E filing enables access to the court records at any time of the day. There is a huge saving of time in service of pleadings, etc which otherwise considerably delay the process. Now even service by whats app has been accepted as an admissible form of service by the Supreme Court in a Suo Motu case recently. It is far more difficult for the recalcitrant litigant to evade service of processes. In the past such evasion has been an important factor for considerable delay in proceedings. It is easy to attach court records. Appellate courts would be able to access court records through the online system and would not need to wait for the next date for the records to be procured from the lower court. The chances of pass overs are less in the online system. Technology is something that the younger generation is comfortable with and would therefore be well suited to use the system. Even the older generation has taken well to the technology.

The Covid has compelled the stakeholders in the legal ecosystem to engage with technology. It has achieved the impossible, which is to shock us into realising the need for up-scaling technology. The nature of practice is such that the risks and uncertainties of the hearing process made it appear that it would be impossible to make the transition to an online/digital form of hearing. Covid has demonstrated how easy it is to make the transition, the fears and hesitations have been self created.

 It is not just a matter of practical necessity but also of Judicial Independence. A situation where for sometime due to the lockdown the legal system was almost paralysed cannot be repeated. Even if wholesale digital reforms are not embraced, there must be sufficient capacity to continue the functioning of the court system, even if there is a lockdown due to a pandemic or even for any other reason. If we don’t heed the warning, the existence of those spared by the Covid would still be hollowed out because as Immanuel Kant once said “If justice perishes human life on earth has lost its meaning”

NB: the author would like to acknowledge that a lot of information in this article has been derived from Daksh which is an NGO based in Bangalore and has done pioneering work in this field including preparing a white paper on the subject. Sr. Prashanto Chandra Sen (B.A LL.B BCL Oxford University). He practices at the Supreme Court of India and Delhi High Court.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

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The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

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ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

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The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

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