TIER-1

Shubham Budhiraja (Advocate, Delhi High Court) Shubhambudhiraja02@gmail.com (i)                   Plaintiff had filed the Suit inter alia claiming a preliminary decree of partition of the suit properties and declaring the Plaintiff to be an owner of 1/3rd share of the suit properties. Plaintiff had further sought a final decree of partition thereby partitioning the properties by metes and bounds according to the shares of the parties and delivering separate possession to the parties.   (ii)                 It is settled law that in a suit for partition, the Court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed Court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possessio...

Shubham Budhiraja [1] Mr. A and Mr. B enter into an agreement for construction of a mall. A sub-lease the property to C to carry on its outlet in the mall, during the year, Govt. declared service tax on the sub-lease and therefore Mr. A raise the demand of service tax from C for payment to the govt. Mr. C denied it. Mr. A filed section 11(6) for appointment of arbitrator, which was defended by Mr. C on ground that (I) debt is time barred, (II) Main contract is unstamped. The Delhi High Court refused both the contentions and appoints the arbitrator [2] .     (I)                  In N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Limited & Ors.: (2021) 4 SCC 379 , the Supreme Court had observed that non-payment or deficiency of stamp duty did not invalidate the main contract. The Court had also referred the decision in the case of Garware Wall Ropes Limited v. Coastal Marine Constru...

    SHUBHAM BUDHIRAJA [1]   A took the Fire Insurance policy and filed a claim before an arbitrator against the Insurance company. A filed claims of R.s. 100 towards plant and machinery whereas surveyor assessed R.s. 80 but the arbitrator allowed and granted R.s. 90. The Insurance Company challenged the award on the basis that there is a case of under insurance as per surveyor report and therefore award of R.s. 90 not justified. The Hon’ble High Court refused the plea and confirmed the award by holding that merely because the said report has been relied upon for the purpose for assessing the loss caused to plant and machinery; it does not mean that every aspect of the said report had to be necessarily adopted. In so far as arbitrator directing Insurance company to pay litigation expenses, Hon’ble High Court set aside the same by holding that It is settled law that relief not prayed for cannot be granted. The Arbitrator failed to take note of the fact that both t...

  A and B went into the arbitration and arbitrator decided in favor of A. The arbitrator awarded the amount in foreign currency. During the execution of award, dispute arises on date of which conversion rate should be taken. It was held that court cannot go behind the decree in execution. Where agreement is silent then conversion rate will be taken of date of decree become final. It is not necessary that the commercial transactions between Indian parties be confined to Indian territories alone. There may be transactions which may entail exposure in foreign currency. For the purposes of enforcement, no distinction can be made between decree/awards where amounts are awarded in foreign currencies on the basis of the nationality of the disputing parties .   (I)                  In Forasol v. Oil and Natural Gas Commission (1984) Supp SCC 263 , the Supreme Court had considered the aforesaid question and...

  SHUBHAM BUDHIRAJA [1]  (Advocate, Delhi High Court) ( shubhambudhiraja02@gmail.com ) Mr. A was appointed as IRP of PQR limited and in the 1 st COC meeting, COC approved the agenda of reimbursement of fees of law firm which represented financial creditor before NCLT in admission of CIRP of PQR Limited.  Further, SBI, one of COC member, appointed PWC, EY, etc. firms to assist the CIRP process and same was approved by COC. Mr. A appointed Mr. B to conduct due diligence for purpose of section 29A eligibility of resolution applicants. It was held that Mr. A is guilty of professional misconduct because (i) Appointment of Mr. B was not required as scope of his work was already covered within scope of work of PWS, EY, etc., (ii) It was impressible for a member of COC (SBI) to appoint the PWC, EY to assist the CIRP. It is for IRP to decide whether he needs assistance of professionals and not for the COC to decide. These appointments burden the cost on the corporate debtor that ...

  Shubham Budhiraja Shubhambudhiraja02@gmail.com Advocate, Delhi High Court A filed suit against B for infringement of his trademark whereas B filed its written statement along-with application under Order 7 Rule 11 for rejection of the plaint for lack of cause of action. B took the plea because he is a prior user of the mark and thus there is no infringement. The Trial court dismissed the application . The Hon’ble High Court under Article 227 confirmed the trial's court order and held that these pleas would be an answer to the suit but not indicative of an absence of cause of action. There can be no confusion between the existence of a cause of action and the absence of merit in the suit. Whether the plaintiff would ultimately succeed or not, cannot dictate the existence of a cause of action .   (I)                  The High Court exercising supervisory jurisdiction does not act as a co...

  SHUBHAM BUDHIRAJA [1] Ms. A (Mother) executed a Will in favor of his elder son Mr. C and died in year 1995. Mr. B (Father) executed the registered will and died in year 2005. The Elder son  Mr. C  died  in the year 2005. The other son Mr. D filed a partition suit to divide the family property whereas wife of elder son Mr. C filed petition to probate the Will of Mother and Father. The Court Probated the Will. The High Court set aside the Will for reason that Will was drafted in suspicious circumstances because (i) Mother and Father were ill during days when they Will was drafted, (ii) Mr. C being direct beneficiary was present at time when will was drafted, (iii) There are contradictory statements regarding timings when will was drafted. The Supreme Court set aside the High Court order and held that Will was not executed in suspicious circumstances because (i) the signatures are not disputed; (ii) the Father was attester in Mother’s will, (iii) Father Will was r...