Sugam Shine, Author at Legal Desire Media and Insights

Tamil Nadu: Woman DCP files a sexual harassment complaint against Inspector General.

Sugam Shine — Tue, 21 Aug 2018 00:55:17 +0000

The DCP in her written complaint has given all the details of the sexual harassment by the senior officer for a period of seven months. She has described instances in her complaint where the IG attempted to hug her on several occasions and started harassing her when she protested.
In response an internal committee (Vishakha Committee) has been formed by the Tamil Nadu government to investigate into a sexual harassment complaint filed by a female Deputy Commissioner of Police (DCP) against Inspector General (IG), her senior officer.
She has further stated that the IG used to call her at odd hours and send vulgar text messages to her. He also used to watch pornographic materials while she was around. The IG also threatened to make an adverse annual report against her if she didn’t adhere to his demands which could affect her career.
The matter has been forwarded to the Vishakha Committee and the issue will be investigated as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. According to the norms of Vishakha Committee, if the sexual harassment case appears to be on the face of it against the senior officer, the committee shall refer the complaint to the concerned police unit to register a case to initiate criminal proceedings against him.

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LLP can be allowed to amalgamate with a private limited company under a scheme of amalgamation filed before the NCLT- Chennai NCLT

Sugam Shine — Fri, 17 Aug 2018 03:28:02 +0000

In a recent landmark order by the Chennai bench of the National Law Company Tribunal (“NCLT”), an interesting question arose, as to whether a limited liability partnership (“LLP”), could be allowed to amalgamate with a private limited company under a scheme of amalgamation, in the absence of an express provision in the Limited Liability Partnership Act, 2008 (“LLP Act”) and the Companies Act, 2013 (“New Companies Act”) permitting the same.

Brief Facts of the case.

Real Image LLP (“Transferor LLP”) sought to merge with a private limited company, Qube Cinema Technologies Private Limited (“Transferee Company”).Transferor LLP filed a joint company petition before the NCLT for the sanction of transfer of its business, assets and liabilities to the Transferee Company as under the scheme of amalgamation.

The scheme further provided for the issue and allotment of equity shares to each of the partners of the Transferor LLP in consideration of the amalgamation, after adjustment of the investment held by the Transferor LLP in the capital of the Transferee Company.

The NCLT was satisfied with the contention of the petitioners in relation to the safeguard of interests of the employees, as well as the accounting aspect of the amalgamation and therefore granted sanction for the scheme of amalgamation.

No objections were raised by the Regional Director, Southern region, the Registrar of Companies or the Official Liquidator with respect to the veracity of the scheme of amalgamation.

However, the issue that came up for consideration before the NCLT was ‘whether an LLP can be allowed to amalgamate with a private limited company under a scheme of amalgamation filed before the NCLT.’

The counsel for the Transferor LLP and Transferee Company (“Petitioners”) made the following submissions: The provisions of the LLP Act and the New Companies Act are worded identically and both provisions empower only the NCLT to sanction the scheme.

Section 394 (4)(b) of the Companies Act, 1956 did not have any bar for the transferor entity to be a body corporate which includes a LLP. However, the corresponding Section 232 of the New Companies Act, does not contain similar provisions.

The counsel for the Petitioners further contended that Section 234 of the New Companies Act permits amalgamation of a ‘foreign company’ with another company or vice versa. Foreign Company as per the said section also includes a ‘body corporate’ thus also including a foreign LLP within its purview.

Therefore, the legislation as it stands today permits a foreign LLP to merge with an Indian company but no such benefit has been extended for merger of an Indian LLP with an Indian company.

NCLT’S Opinion

The NCLT expressed its view on the legislative intent behind enacting both the acts and stated that the intention was to facilitate the ‘ease of doing business’ and create ‘a desirable business atmosphere’. The Companies Act, 1956 categorically deals with the issue in the present case, but the New Companies Act does not contain any specific provision in this regard. Further, if the legislation permitted a merger between a foreign LLP and an Indian company, then the legislative intent cannot be presumed to mean a prohibition of a merger of an Indian LLP and an Indian company. The NCLT therefore, treated the lack of parity between the Companies Act, 1956 and the LLP Act/New Companies Act as a case of ‘casus omissus’ i.e. a case of omission.

After this order it will be interesting to see the manner in which the tax authorities treat such an amalgamation as per the present tax provisions.

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MP High Court : Minor’s ‘consent’ for sex no consent at all.

Sugam Shine — Mon, 13 Aug 2018 10:54:16 +0000

Women , women rights, women security, rape, molestation are the most common headlines of Indian news stories now a days. All the governments have said that they did these or that to stop all these problems but prima faciely there is no change to be witnessed and the situation is still the same. Similarly there have been a plethora of judicial decisions related to all this topics and the MP High Court most recently given one such Important decision where they have said that “A minor’s ‘consent’ for sex is no consent while setting aside a sessions court acquittal of an accused in a child rape case.”
Earlier on April 26, 2016, a special judge in Seoni district had acquitted accused Sooraj Prasad Deharia, who was charged with rape under IPC and Pocso Act, on benefit of doubt.
The sessions court had based the acquittal on medical report, which said there was no injury on the survivor’s body, and noted that she did not raise an alarm when the assault took place. This gives sufficient reason to believe that it was consensual sex, the lower court felt.
The state government filed a revision petition and a division bench of Chief Justice Hemant Gupta and Justice V K Shukla set aside the sessions court order.
According to the school admission register and radiological examination, the girl was less than 14 years old, the judges noted, and said that even if she had consented, it couldn’t be treated as “consensual sex”. The judges said “Consent is not permissible in respect of such a victim. Hence, an offence under Section 376 IPC is disclosed.”

[embeddoc url=”https://mphc.gov.in/upload/jabalpur/MPHCJB/2016/MCRC/17099/MCRC_17099_2016_Order_07-Aug-2018_digi.pdf”]

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SC imposes Rs. 105 cr. fine on Pune based real estate company for environment damage.

Sugam Shine — Mon, 13 Aug 2018 03:19:44 +0000

The Supreme Court has slapped a fine of Rs. 105 Crore on a Pune-based real estate company- Goel Ganga Developers for causing damage to the environment and building residential towers, and for thereby violating the law. The Court, however, refused to order demolition of the buildings since the homebuyers were already given possession of the flats. This judgment was given in the case of M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD V. UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.[CIVIL APPEAL NO. 10854 OF 2016] by Justice Deepak Gupta.
Six months time has been granted by the SC bench to the Company, for depositing the money before its registry. All assets of the Company along with its directors’ assets will be attached if it fails to comply with the order.
The Company had expanded the built-up area without any permission, and the construction done by it was also in violation of the environmental clearance that was given to the project. 738 flats and 115 shops were built by the Company at Bhagyodaya, Amrut Ganga and Ganga Towers projects on Sinhagad road in Pune. The construction of 2 shops and around 69 flats were in the final stages. It was noted by the Court that the approval given to the company for construction of the built-up area was for 57,658.42 sq meters, but the Company, in complete violation of the law, had expanded the built-up area to 1,00,002.25 sq meters.
The Court, however, had to legalise the construction after it observed the fact that most of the homebuyers in the projects belonged to middle-class families, and if the buildings were demolished, they would suffer huge monetary losses.
The Order given by the National Green Tribunal (NGT) was upheld by the Apex Court. The order concluded that the developer had violated the law and fine was imposed on the developer. It was also held by in NGT’s order that the company shall not be allowed to build the 2 buildings in which it had to construct 454 flats and was directed to give back the money with interest @ 9% per annum to the buyers.[embeddoc url=”https://www.sci.gov.in/supremecourt/2016/37233/37233_2016_Judgement_10-Aug-2018.pdf”]

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Delhi High Court : Woman can’t stay at in-laws’ house if she mistreats them.

Sugam Shine — Sat, 11 Aug 2018 15:22:57 +0000

In today’s world of nuclear families quarrels with in-laws are common phenomenon. Decing a very similar matter the Delhi High Court has come up with a judgement that is one of its kind where it has said “A woman cannot have the right to stay at the property of her in-laws if she mistreats them, the Delhi high court said while dismissing the plea of a woman who allegedly subjected her in-laws to cruelty and torture.”
The Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016, entitled a senior citizen to seek eviction of his son, daughter or his legal heirs on account of ill-treatment but excluded the daughter-in-law.
Justice Vibhu Bhakru said that excluding the daughter-in-law from the said rules would “debilitate” provisions of the rules and render it incapable to serve the object of safeguarding the rights of senior citizens.
“It is difficult to accept that although a senior citizen is entitled to evict his/her son who is maltreating him, he/she has no option but to suffer the ill-treatment at the hands of his/her daughter-in-law,” the court said in its 11-page judgment.
The court dismissed the plea of a woman, Darshna, who had challenged the order of a district magistrate who had directed her to vacate the first-floor of the house of her in-laws she had occupied.
“It is relevant to note that Darshna has no right, title and interest in the premises and, therefore, cannot insist on residing with Dhani Ram and his wife, especially when the relationship between the said parties had deteriorated to the extent as indicated above,” the court said.
According to the case, disputes arose between Darshna and her husband. She also had uncordial relations with her 75-year-old father-in-law Dhani Ram and his wife. While she had instituted domestic violence proceedings against the in-laws, her husband had filed a divorce case against her.
Darshna’s husband was not staying at his parents’ place for the past several months. Meanwhile, Dhani Ram filed a plea before the district magistrate, seeking eviction of his son and daughter-in-law from the premises.
Appearing for the petitioner, her counsel contended that the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016, only enabled a senior citizen to evict his son and daughter or legal heirs from his self-acquired property on account of non-maintenance and ill-treatment.
He said the property in question was not Dhani Ram’s self-acquired property and his application for eviction was not maintainable. However, the court said that such a contention is “unmerited”.
“The contention that the property in question is ancestral or Hindu Undivided Family (HUF) property prima facie does not appear to be sustainable,” the court said.
In-laws had contended that Darshna misbehaved with them and had subjected them to physical violence. They claimed they were compelled to lock themselves in a room.
They furnished medical records of him and his wife to substantiate his claim that they had been physically assaulted. Dhani Ram had produced CCTV recordings, which showed Darshna assaulting him and his wife.
The district magistrate had referred the matter to the sub-divisional magistrate of Karol Bagh for verification. The report indicated Darshna used to fight with her in-laws.
The court dismissed the daughter-in-law’s plea while stating she would be entitled to the reasonable maintenance.
Advocate Geeta Luthra said this would not clash with the Domestic Violence Act because the son is a licensee of the property and his wife is staying as the extension of his family.
Hence, if the parents terminate the licence with the son, then the daughter-in-law automatically loses the right to their property. Senior advocate Vikash Pahwa said there would be no clash with the DV Act because the spirits of both the acts are different.
“There will no clash. But there should be clarity. Both the rules and Act in question are different and will be tried by different courts and by different judges,” Pahwa said.
What is to be seen now is the fact that whether this judgment delivered by the Delhi High Court is able to meet its objective.

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Begging not a crime in Delhi says Delhi HC.

Sugam Shine — Fri, 10 Aug 2018 00:57:30 +0000

The Delhi HC has struck down the Bombay Prevention of Begging Act while decriminalizing the begging on a finding that the provisions penalizing begging in the National Capital Territory are unconstitutional and deserve to be struck down. The Bombay Act is liable to be struck down since there is no central law on begging and most of the states, including Delhi have adopted the Bombay Act or have formulated their own laws governing the issue. This judgement came in the case of Karnika Sawhney Vs UOI & Ors.[CM APPL . 1837/2010]

The Court further said that the Delhi State Government will have the liberty to formulate any other provision to prevent the racket forcing people to beg. In this regard, the Court also advised the state government to conduct an examination considering the sociological and economical aspect of the issue.
In doing so, the Court has stated that all the provisions that directly or indirectly criminalize the act of begging, as extended in the National Capital Territory of Delhi, are unconstitutional and are liable to be struck down.
However, while striking down the provisions, the Court has given an exception for two provisions which do not directly or indirectly criminalize begging, which includes the penalty for employing persons or children to receive charity and using animals for obtaining charity.
Commenting on the issue, the Court said that in a country where the government has not been able to provide basic amenities and food to the poor and needy, the act of begging cannot be deemed to be an offence. Further, the court said that criminalizing begging violates the fundamental rights of the most unguarded people in our society and thus, it is a wrong approach to deal with the issue.

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Ban imposed on publication of pictures & videos of Child victims of Sexual abuse by the SC.

Sugam Shine — Thu, 09 Aug 2018 00:46:57 +0000

The Supreme Court of India has ordered a blanket ban on the publication of pictures and videos of child victims in cases related to sexual abuse after the pictures of those who were physically abused in Deoria, Uttar Pradesh were published by the media.
This ban was imposed by the court while hearing a matter related to sex abuse at government-run shelter home in Muzaffarpur, Bihar. The SC expressed serious concern over rising incidents of rape in the country. The SC, while quoting the National Crime Records Bureau (NCRB) figures, has stated that each day four women are getting raped, on the basis of the number of cases reported.
The Court has also taken a strong exception to the publication of images and telecast of videos of victims as it, in a way, compels the victims to relive the trauma time and again. The Court has made it clear that no one would be allowed to meet the inmates of the Muzaffarpur homes except National Commission for Protection of Child Rights (NCPRC) and State Commissions for Protection of Child Rights (SCPRC) who can interview them with the help of trained counselors.
In addition to this, the Court also ordered the arrest of the wife of one of the accused who had posted the name of a child victim on her facebook wall. Further, the Court slammed the Bihar Government for failing to prevent the abuse and it has also accused the government of funding the Muzaffarpur shelter home without checking its background since sexual abuse activities were taking place in it.Su

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NCLT: Homebuyer who subrogates his rights to bank can’t be a financial creditor

Sugam Shine — Mon, 06 Aug 2018 13:38:54 +0000

The National Company Law Tribunal (NCLT), Allahabad bench has held that a homebuyer who substitutes all his rights in favor of the bank while taking a loan cannot claim to be a financial creditor under the Insolvency and Bankruptcy laws.
The Tribunal, while examining the petition filed by the homebuyer to initiate insolvency proceedings against the company, found it to be not maintainable since the agreement annexed to the petition showed commutation of rights in favor of the bank.
While referring to the specific clause in the agreement, the Tribunal said that in case of any default under the loan agreement which results in the cancellation of allotment or if due to any reason whatsoever the allotment is cancelled, any amount payable to the borrower in the event of cancellation shall be payable to the bank. It has been further stated in the agreement that any amount paid to the bank by the builder under the abovementioned clause will amount to a valid discharge of Builder’s liability.
This order is a result of a case instituted by a Gurgaon resident to initiate insolvency proceedings against the Sunworld Residency Private Limited. The Gurgaon resident had booked an apartment in one of the Sunworld Residency’s projects named ‘Sunworld Arista’ located in Noida, Uttar Pradesh for Rs. 1.36 crore approximately.
The Tribunal, however, denying to give the status of a financial creditor to the petitioner, granted him the liberty to claim the refund of the due amount in exercise of his option of cancellation according to the agreement before an appropriate forum.

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The SC has three women judges for the first time, With Justice Indira Banerjee’s appointment.

Sugam Shine — Sun, 05 Aug 2018 04:58:42 +0000

Women Empowerment has always been one of the burning issues of India and the recent developments in the Apex Institution of Indian Judiciary have certainly come up as a positive ray of hope for women empowerment.
Union Ministry of Law and Justice on Friday cleared the appointment of Justice Indira Banerjee as a judge of the Supreme Court. With this appointment, the top court now has three women judges for the first time in history – Justice R Banumathi, Justice Indu Malhotra and Justice Indira Banerjee.
Banerjee, 60, who was the chief justice of the Madras High Court, is only the eighth woman to be elevated to the Supreme Court. The Centre has also cleared the appointment of Odisha High Court Chief Justice Vineet Saran and Uttarakhand High Court Chief Justice KM Joseph to the top court.
In other developments the Centre has also appointed Justice Gita Mittal, the acting chief justice of the Delhi High Court, as the chief justice of the Jammu and Kashmir High Court. She is the first woman judge to ever head it.This development came just a day after Sindhu Sharma became the first woman judge of the High Court.

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Property and bank accounts of 40 Amrapali Companies attached by SC.

Sugam Shine — Thu, 02 Aug 2018 10:50:45 +0000

The Supreme Court of India took a strict step by attaching the property of the Amrapali Group including its 40 subsidiary companies and its promoters, directors for defrauding its homebuyers. This step has been by the SC as the Amrapali Group failed to comply with the Supreme Court’s order to complete its long-pending housing projects.This judgment was given by the bench of Justices Arun Mishra and U U Lalit.
In doing so, the Supreme Court has given a strong message that the courts cannot be taken for granted by a corporate body. The SC has questioned the conduct of the Amrapali Group and accused the group of engaging in “dirty games” with the judiciary as the group approached the National Buildings Construction Corporation (NBCC) complete the construction of the housing projects while the case was still pending in the court.
The SC further said that the group has also tried to defraud the court and has also failed to comply with its directions to furnish details of the assets of the company. The court said that the Amrapali Group has committed serious contempt of court by not complying with its orders.
The bench also questioned NBCC’s act of inviting co-developers for finishing up the housing projects without taking prior approval of the Hon’ble Court. The Amrapali Group has also been asked to submit the details of all the assets and bank accounts of their 40 subsidiary companies along with the PAN details of the directors and promoters.

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