By Dr. K. Shivaram
Senior Advocate | Rahul K. Hakani | Shashi Bekal
Advocates
8 Chief Information Commissioner vs. High Court of Gujarat AIR (2020) SC 4333
Date of order: 4th March, 2020 Bench: R. Banumathi J., A.S. Bopanna J., Hrishikesh Roy J.
Right to Information – Certified copies to third parties – Only on affidavit – Not inconsistent with RTI Act – RTI Act will not override High Court Rules [Right to Information Act, 2005, S. 6(2), S. 11, S. 12; Gujarat High Court Rules, R. 151]
FACTS
An RTI application dated 5th April, 2010 was filed by respondent No. 2 seeking information pertaining to certain cases along with all relevant documents and certified copies. In reply, by a letter dated 29th April, 2010, the Public Information Officer, Gujarat High Court, informed respondent No. 2 that for obtaining the required copies he should make an application personally or through his advocate by affixing a court fee stamp of Rs. 3 along with the requisite fees to the ‘Deputy Registrar’. It was further stated that as respondent No. 2 is not a party to the said proceedings, as per Rule 151 of the Gujarat High Court Rules, 1993 his application should be accompanied by an affidavit stating the grounds on which the certified copies are required and on making such application he will be supplied with the certified copies of the documents as per Rules 149 to 154 of the Gujarat High Court Rules, 1993.
HELD
Rule 151 of the Gujarat High Court Rules stipulates that a third party to have access to the information / obtaining the certified copies of the documents or orders is required to file an application / affidavit stating the reasons for seeking the information, and this is not inconsistent with the provisions of the RTI Act but merely lays down a different procedure from the practice of payment of fees, etc., for obtaining information. In the absence of any inherent inconsistency between the provisions of the RTI Act and other laws, the overriding effect of the RTI Act would not apply.
For information to be accessed / certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to.
9 In Re: Expeditious trial of cases u/s 138 of the Negotiable Instruments, Act, 1881 Suo motu W.P. (Crl) No. 2 of 2020 Date of order: 17th April, 2021 Bench: A.S. Bopanna J., B.R. Gavai J., L. Nageswara Rao J., Ravindra Bhat J., S.A. Bobde CJI
Dishonour of cheques – Long pendency of disputes – Guidelines issued [S. 138, Negotiable Instruments Act, 1881]
FACTS
Special Leave Petition (Criminal) No. 5464 of 2016 pertains to dishonour of two cheques on 27th January, 2005 for an amount of Rs. 1,70,000. The dispute has remained pending for the past 16 years. Concerned with the large number of cases filed u/s 138 of the Negotiable Instruments Act, 1881 (the 1881 Act) pending at various levels, a Division Bench of this Court decided to examine the reasons for the delay in disposal of these cases. The Registry was directed to register a suo motu Writ Petition (Criminal).
HELD
Courts are inundated with complaints filed u/s 138 of the 1881 Act. The cases are not being decided within a reasonable period and remain pending for a number of years. This gargantuan pendency of complaints has had an adverse effect on disposal of other criminal cases. Concerned with the large number of cases pending at various levels, a larger bench of the Supreme Court has examined the reasons for the delay in disposal of cases. The following conclusions were arrived at:
1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints u/s 138 from summary trial to summons trial.
2) Inquiry shall be conducted on receipt of complaints u/s 138 to arrive at sufficient grounds to proceed against the accused when such accused resides beyond the territorial jurisdiction of the court.
3) For the conduct of inquiry u/s 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting on examination of witnesses.
4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences u/s 138 committed within a period of 12 months, notwithstanding the restriction in section 219 of the Code.
5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint u/s 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.
6) Judgments of this Court in Adalat Prasad [(2004) 7 SCC 338] and Subramanium Sethuraman [(2004) 13 SCC 324] have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court u/s 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint.
7) Section 258 of the Code is not applicable to complaints u/s 138 and findings to the contrary in Meters and Instruments [(2004) 13 SCC 324] do not lay down the correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider / recall summons in respect of complaints u/s 138 shall be considered by the committee constituted by an order of this Court dated 10th March, 2021.
8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned committee. Any other issue relating to expeditious disposal of complaints u/s 138 shall also be considered by the committee.
10 Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal & Anr. CA No. 323 of 2021 Date of order: 15th April, 2021 Bench: Rohinton Fali Nariman J., B.R. Gavai J., Hrishikesh Roy J.
Period of Limitation – Balance Sheet entries – Acknowledgement of debt [S. 18, Limitation Act, 1963]
FACTS
In 2009, Corporate Power Ltd. (corporate debtor) set up a thermal power project in Jharkhand and availed of loan facilities from various lenders, including the State Bank of India (SBI). The account of the corporate debtor was declared as a non-performing asset by SBI on 31st July, 2013. On 27th March, 2015, SBI issued a loan-recall notice to the corporate debtor in its capacity as the lenders’ agent. On 20th June, 2015, the appellant issued a notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) on behalf of itself and other consortium lenders to the corporate debtor.
On 1st June, 2016, the appellant took actual physical possession of the project assets of the corporate debtor under the SARFAESI Act. On 26th December, 2018, the appellant filed an application u/s 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) before the National Company Law Tribunal, Calcutta (NCLT) for a default amounting to Rs. 59,97,80,02,973 from the corporate debtor. As the relevant form indicating the date of default did not indicate any such date, this was made up by the appellant on 8th November, 2019 by filing a supplementary affidavit before the NCLT, specifically mentioning the date of default and annexing copies of balance sheets of the corporate debtor which, according to the appellant, acknowledged periodically the debt that was due.
On 19th February, 2020, the section 7 application was admitted by the NCLT, observing that the balance sheets of the corporate debtor, wherein it acknowledged its liability, were signed before the expiry of three years from the date of default and entries in such balance sheets being acknowledgements of the debt due for the purposes of section 18 of the Limitation Act, 1963 (Limitation Act), the section 7 application is not barred by limitation. The corporate debtor filed an appeal before the National Company Law Appellate Tribunal (NCLAT), which held that entries in balance sheets would not amount to acknowledgement of debt for the purpose of extending limitation u/s 18 of the Limitation Act on account of a NCLAT Full Bench decision in the case of V. Padmakumar vs. Stressed Assets Stabilisation Fund, Company Appeal (AT) (Insolvency) No. 57 of 2020 (decided on 12th March, 2020).
HELD
The default had been admitted by the corporate debtor and the signed balance sheet of the corporate debtor for the year 2016-17 was not disputed by it. As a result, the NCLT held that the section 7 application was not barred by limitation and therefore admitted the same. It further held that the majority decision of the Full Bench in
V. Padmakumar (Supra) is contrary to a catena of judgments and hence set aside.
11 In Re: Cognizance for Extension of Limitation Suo motu W.P. (C) No. 3 of 2020 Date of order: 27th April, 2021 Bench: S.A. Bobde CJI, Surya Kant J., A.S. Bopanna J.
Covid-19 – Supreme Court – Relief for litigants and lawyers [Constitution of India, Articles 141, 142]
FACTS
Due to the onset of the Covid-19 pandemic, this Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions / applications / suits / appeals / all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State).
The Supreme Court in the same case vide order dated 23rd March, 2020 had extended the due date till further orders. The said order was extended from time to time.
Thereafter, on 8th March, 2021, it was noticed that the country is returning to normalcy and since all the Courts and Tribunals have started functioning either physically or by virtual mode, extension of limitation was regulated and brought to an end. The period between 15th March, 2020 and 14th March, 2021 stood excluded.
The Supreme Court Advocates on Record Association (SCAORA) has now, through this Interlocutory Application, highlighted the daily surge in Covid cases in Delhi and stated how difficult it has become for the Advocates-on-Record and the litigants to institute cases in the Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23rd March, 2020 has been prayed for.
HELD
The period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, section 12A of the Commercial Courts Act, 2015, and provisos (b) and (c) of section 138 of the Negotiable Instruments Act, 1881 and any other laws which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
12 The Chief Election Commissioner of India vs. M.R. Vijayabhaskar & Ors. CA 1767 of 2021 Date of order: 6th May, 2021 Bench: Dr. D.Y. Chandrachud J., M.R. Shah J.
Oral comments – reported by media – Sanctity and validity [Article 19, 226, Constitution of India]
FACTS
The Madras High Court entertained a Writ Petition under Article 226 of the Constitution to ensure that Covid-related protocols are followed in the polling booths at the 135-Karur Legislative Assembly Constituency in Tamil Nadu. During the hearings, the Division Bench is alleged to have made certain remarks, attributing responsibility to the Election Commission (EC) for the present surge in the number of cases of Covid-19, due to its failure to implement appropriate safety measures and protocol during the elections. The Court observed, ‘the institution that is singularly responsible for the second wave of Covid-19…’ and that the EC ‘should be put up for murder charges’. These remarks, though not part of the order of the High Court, were reported in the print, electronic and tele-media.
The issue is that these oral remarks made by the High Court, which the EC alleges are baseless, tarnished the image of the EC which is an independent constitutional authority.
HELD
Courts must be open both in the physical and metaphorical sense. Our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas.
Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression. The Constitution guarantees the media the freedom to inform, to distil and convey information and to express ideas and opinions on all matters of interest. Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact not only on the rights of citizens but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law.
The independence of the judiciary from the executive and the legislature is the cornerstone of our Republic. Independence translates to being impartial, free from bias and uninfluenced by the actions of those in power, but also recognises the freedom to judges to conduct court proceedings within the contours of the well-established principles of natural justice. Judges in the performance of their duty must remain faithful to the oath of the office they hold which requires them to bear allegiance to the Constitution. An independent judiciary must also be one which is accountable to the public in its actions (and omissions).
