Legally, especially in terms of the Constitutional rights of individual citizens of India, there is little to quibble room on the Supreme Court order of March 20 which has paved the way for anticipatory bail to offenders under the SC/ST (Prevention of Atrocities) Act and introduced safeguards in an attempt to weed out false and/or frivolous complaint at the threshold point of filing of a complaint under the Act. The Court has not in any way interfered in the intent, provisions or aims of the Act which is a progressive and much-needed legal instrument to prevent atrocities against members of the Scheduled Castes and Scheduled Tribes; it has only, after detecting rampant misuse of the provisions for which official records are available with the National Crime Records Bureau tried to ensure that the warp and woof group politics does not trump individual rights. The so-called “dilution” of the Act, however, has sparked a violent, nationwide agitation in which at least nine persons lost their lives in a single day on Monday with all political parties including the ruling BJP taking a stand against the apex court verdict. Politics, we predict, will win over logic yet again in this benighted land.
The primary argument against the Court order is that all laws are subject to misuse but that doesn’t mean we should do away with the law. This is a perfectly valid argument and one which we endorse. But when the data suggests widespread and cynical use of the justifiably harsh provisions of an Act to prosecute bigoted individuals who would dare insult and/or oppress in any way, manner of form our fellow citizens using their “caste” as a marker, and the highest law court in the land after due deliberation tweaks the mode of enactment of certain provisions of the Act which were specifically misused to strike a balance between the rights of an accused and the need to ensure protection from hate crimes to members of a historically oppressed community which is what an atrocity under the Act amounts to, all political parties and interest groups need to be more circumspect. It is perfectly understandable, however, given the cynical times we live in and with the General Election fast-approaching, no political party will listen to sober advice. That is par for the course. But it is still our duty to flag a vital issue emanating out of Monday’s Bharat Bandh agitation called by various SC/ST groups prima facie backed by different political parties in different States.
The violence which resulted in nine deaths including six in Madhya Pradesh and one in Rajasthan, both Assembly poll-bound States ruled by the BJP, apart from two in Uttar Pradesh where the Bahujan Samaj Party has its strongest base, should be a matter of grave concern for thinking, peaceful citizens including leading Dalit intellectuals and leaders. To be assertive in protesting an issue one feels strongly about is one thing, indulging in an orgy of violence, arson and wanton destruction of public property quite another. Any justification of such acts in the name of “an expression of rage”, however qualified, only empowers the anti-nationals who indulge in atrocities against members of the SC/ST communities. That some legal-activists, academic-activists and media-activists have accused the Supreme Court of having a “caste bias” because they disagree with its decision is the thin edge of the wedge for rule of law in India. Admitting the Government’s review petition filed against the March 20 order on Tuesday, the Court iterated that there has been no dilution of the Act and the innocent must be protected, while issuing notices to all parties and holding it will take up the issue of revisiting its order in 10 days’ time. Hopefully, all sides will use this time to think about how to de-politicise the situation rather than raise the pitch for electoral gains.
Courtesy: The Pioneer
Although India is a democratic republic but equality to the schedule cast and schedule tribes is still not available. People of SC/ST communities are suffering at every phase of their lives.
On March 20, 2018, the Supreme Court in its decision in SK Mahajan versus the State of Maharashtra examined the manner in which the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 was being misused. While doing so, the Supreme Court unfortunately displayed selective amnesia by focusing on only certain instances of misuse, passing broad sweeping comments and issuing guidelines preventing such misuse while in essence ignoring the decades of abuse and exploitation that members of the scheduled caste (SC) and scheduled tribe (ST) have been and still are subjected to.
The judgment of the Supreme Court is another dispiriting blow to a country whose current Government formed by the Bharatiya Janata Party (BJP) has overtly and in some cases, subtly tried to implement the philosophy of division, discrimination and exploitation espoused by its philosophical father, the Rashtriya Swayamsevak Sangh (RSS).
In this week’s column, I will attempt to highlight the manner in which this Government has failed our most downtrodden communities and why we must be wary of their hate-filled approach that places more importance on the varna system than the words of our Constitution.
The state of affairs: When I say that SCs, STs and OBCs are some our most downtrodden communities, I don’t say so lightly. To give some perspective, STs constitute approximately 8.2 per cent of India’s population but only 22.6 per cent of such STs have toilet facilities. In terms of dropouts, over 70.6 per cent of SC boys and over 71.3 per cent of SC girls drop out before Class X. In terms of absolute poverty, almost half of all Adivasis are classified as poor.
These are just cold, hard numbers for thought and looking back over the past few years at the suicide of Rohith Vermula, the hacking of Shankar, a 21-year-old Dalit in broad daylight and the innumerable instances of violence, paints a miserable picture where SCs, STsand OBCs are treated as second-class citizens in our country. Ideally, a responsible, sensitive Government which respects the words of our Constitution would take all efforts to ensure that this disparity in treatment, as well as the brutality that these communities are subject to, is addressed as a matter of priority.
Sadly, the BJP Government does not classify as one such Government. Instead, through its words and actions, the BJP has betrayed the Constitution of the country and has failed these communities.
Words and actions: As the numbers highlighted above show the status of SCs, STs and OBCs is deplorable. Reservation is an important tool, which can help bridge this disparity and enable SCs, STs and Dalits to achieve some amount of upward mobility and escape the shackles of poverty and deprivation. Clearly though, this is an idea which does not sit well with the BJP and the RSS. Repeatedly, we have seen comments from Mohan Bhagwat, Manmohan Vaidya and other leaders voicing their displeasure with the idea of reservation.
This is because reservation is a mechanism, which can help ensure that people of all castes and communities enjoy the benefits of India’s growth. The idea behind reservation is to ensure an India where no community or caste is left behind.
This, however, is not the idea of India that the BJP/RSS harbours. By adopting this language of exclusion and hatred, the BJP repeatedly demonstrates little regard for the values of our Constitution and lesser still for the dignity of all people irrespective caste, religion or creed.
Unfortunately, it’s not just the words of the BJP and the RSS that betray their true divisive intentions but their actions too.
I have seen the BJP try to implement this politics of divisiveness and hatred in my home state of Jharkhand. The BJP has consistently made attempts to take away the rights of SCs and STs in the state. Right from 2010, when Arjun Munda and his BJP Government made attempts to dilute the provisions of the Chotanagpur Tenancy Act (CNT) by waiving off the requirement to obtain the
deputy commissioner’s consent for transfer of tribal land (only to be rapped on its knuckles by the High Court) to just recently when Raghubar Das and his Government have sought to make some striking changes to the CNT and the Santhal Pargana Tenancy Act (SPT).
Both the CNT and the SPT were originally enacted to protect the land rights of the tribals from this region, however, the BJP Government has sought to systematically take away these protections and make it easier for private players to steal the land of tribals and Adivasis.
While originally, under Section 21 of the CNT, the use of tribal land for anything other than agriculture, constructions of ponds, well and brick making was barred, the BJP has sought to amend the act to empower the Government to make rules for non-agricultural use of agricultural land.
Other amendments to the acts seek to not only expand the list of projects for which tribal land can be acquired but also to do away with the provision of compensation in case of fraudulent transfers.
Another example of how the SCs/STs and OBCs are being targeted unfairly is the recent proposal of the University Grants Commission, which has received the nod of the Ministry of Human Resource Development. As per this proposal, the University Grants Commission proposes to calculate the reservation department-wise rather than on the basis of the total number of posts in a University.
This proposed change is certain to impact the already low number of faculty members from the SC/ST and OBC community at central universities.
It is therefore clear that the BJP has adopted an all-out assault on the rights of SCs, STs and OBCs by attacking their right to education, their right to employment and their right to property. There is, however, no doubt that the people of the country are wising up to the mala fide motives of the BJP and no matter how many times Prime Minister Narendra Modi and his Government make empty promises and give long-winded speeches about being a Government that cares about its most neglected, the facts on the ground make for some uncomfortable viewing for those who respect and adhere to values of our Constitution.
(The writer, Jharkhand PCC president, is a former MP and IPS officer. Views expressed are personal and entirely of the writer)
Writer: Ajay Kumar
Courtesy: The Pioneer
The Supreme Court on Monday mentioned that we must to give equality to all communities but UCC is not negotiable.
Conflict is endemic to value pluralism in all its forms, a political philosopher with his ear to ground realities once wrote, so there is no point pretending that the patriarchal, misogynist and supremacist political-religious leaders of various communities will give in easily to the prospect of gender, economic and social equality enacting a prospective uniform civil code for India must be aimed at.
For over 70 years, we have waited for the cry for reform of personal laws that are in conflict with our Constitutional right to equality to emanate from within various religious communities. That has now come to pass in some measure and the both the executive and the judiciary have duly taken cognizance of this development as they are duty-bound to. But even if this were not the case, it is the duty — sadly neglected by post-Independence Central administrations to appease fundamentalists in minority communities in particular — of the Government to push forward with ensuring that no regressive community laws prime facie ultra vires of the Constitution allow individual rights of bonafide citizens of India regardless of gender, jaati or mode of worship to be trumped by group rights in the name of religious freedom.
It is against this backdrop that the Supreme Court on Monday, after its landmark ruling last year making instant triple talaq or talaq-e-biddat illegal, agreed to examine the constitutional validity of social (mal)practices such as polygamy and nikah halala, nikah misyar and nikah mutah among Muslims. While the practice of polygamy within the community allows Muslim men to have four wives, nikah halala is the humiliating process through which a Muslim woman who wants to re-marry her husband after a divorce must marry and consummate a marriage with a different man before she can get back together with her (first) husband. The other two forms of nikah are “temporary marriage” contracts entered into by men “for their pleasure” the petitioners, including aggrieved Muslim women, submitted. Allowing the petition, the apex court agreed to refer the matter to a Constitution Bench for a comprehensive hearing given its importance. Crucially, the Court served notice to the Centre to elicit its views, holding that the issues raised by the petitioners were not addressed by the Supreme Court Bench in the Shayara Bano case which abolished triple talaq.
The Centre must, now, representing the will of the people of India, ensure that it is unequivocal in its opposition to these practices in the Muslim (and any other communities where approximations of the same are practiced despite laws prohibiting it). Further, discriminatory property and/or inheritance laws in the Muslim and/or other communities minority or majority which make a mockery of gender equality must also be flagged by the Government in its reply to the notice. Even if a de jure Uniform Civil Code takes a bit of time given such a promulgation by the Government is dependent on many factors, not least a two-third majority in both Houses of Parliament, it would be the first step in ensuring that at least a de facto one law for one nation on the civil side too becomes a reality sooner rather than later. It may or may not win the Government votes but such a move will certainly earn it the eternal gratitude of millions of Indians from all communities, and especially Muslim women.
Courtesy: The Pioneer
India has produced a number of brilliant scientific minds, and yet it never fails to disregard reason and logic. It is disheartening to see Indians favor unsubstantiated arguments rather than appealing to reason.
The world lost an amazing and accomplished mind this past week. Stephen Hawking believed in one unified theory to explain all the other ones and his motivation to do so came from a belief that everything is connected to each other, how else could we achieve singularity? He has always believed that there is more to humanity than what meets the eye and has firmly demonstrated the courage to follow what we felt was lying there as an unsolved puzzle to answer many of the mysteries from yesterday to enable us to have a meaningful yet more reformed tomorrow. He has always tried to give shape to something that he felt was hidden but obvious to really give an absolute understanding of how we see or perceive the world that we live in today.
The essence of such an approach is that one should not ignore instances from the past just because the past does not conform to the theory we want to prove. A scientific approach, therefore, is premised on the fact that there is no such thing as an irreversible fact/statement and one should not be too arrogant to believe that there, a particular viewpoint is the only viewpoint that should be considered so long as the person making the argument does so in a rational and logical manner. A scientific approach is not restricted to science only and finds application in the social and political sphere as well. Therefore, as long as a particular viewpoint does not intend to harm, disparage another individual and is backed up by rational argument, it ought to be respected even if one disagrees with it.
A wonderful example of the application of a rational, scientific approach is the Constitutional debates wherein extremely strong-willed and opinionated individuals were willing to listen and engage in intense debate and were willing to amend their point of view if convinced by rational and civil dialogue. It is, therefore, disheartening to see our great country, which has produced so many brilliant scientific minds and often been an example of inclusiveness, abandon this scientific/rational approach.
Instead, the approach that is in fashion now seems to be one where a person has decided his/her conclusion first and then manipulates facts and history to justify the argument. In this piece, I will attempt to highlight how we seem to have disregarded our rich scientific, rational history of peaceful discussion and acceptability of different views in favor of loud, unsubstantiated and often violent disagreement.
A recent example of this is the attempt by some to alter or hide historical facts. This often takes the form of altering the curriculum at schools, to one that suits the narrative of the powers that be, even if it comes at cost of the truth.
We must be wary of such approach as this would encourage children to either miss out on important historical events or require them to learn about mythical events as actual facets of history. One should not be ashamed of our culture. There is an argument for learning about great epics like the Mahabharata and the Ramayana. These great works should not be taught as lessons in history but as impressive works of literature and culture. Children should be encouraged to follow a scientific approach that encourages them to make up their own minds by relying on established facts. We must be wary of brainwashing young children otherwise they will grow up to be non-thinking adults and that would be a great loss for the child as well as the country.
Another disturbing example of manipulating science and research towards selfish political ends is a committee that has been formed by the Government to help research and provide archaeological findings which prove that Hindus are the direct descendants of the subcontinent’s first inhabitants. It should be recognized that nations have been built due to the constant movement of individuals since time immemorial. A modern democracy cherishes its diversified populace rather than finding ways to divide them.
Another example that was in the news recently was on the desecration of statues in Kerala. Irrespective of the political views that one holds, such acts of vandalism are not the hallmarks of a modern democracy. It indicates intolerance towards other ways of life and beliefs. As Indians, our aim should be to disagree with any point of view using our words and engaging in meaningful conversation. Favoring brute force over intelligent discussion indicates a lack of appreciation for our history and a lack of respect for the diverse groups that help make India a vibrant country that it is.
Setting the right tone: In every sphere of life, in order to ensure that the citizens of the country follow the right example, it is crucial that individuals, who are in the public space, set the right example and set the tone for the rest of the public. Due to the presence of 24×7 news cycles and the prevalence of social media, comments made by individuals in the public space are available to everyone. Therefore, in such time, one expects elected representatives and the current Government to be mindful of their words and actions. However, it seems this is too much to ask.
Comments made by certain members of the Bharatiya Janata Party (BJP) on a variety of issues have at their mildest been hilariously unscientific and at their extreme have been downright evil. The hilariously unscientific comments have been on a variety of topics, including the theory of evolution which has been rigorously questioned and thoroughly proven since Charles Darwin’s conception of the theory.
Satyapal Singh, who ironically is India’s Minister for Higher Education, suggested that Darwin’s theory of evolution is “scientifically wrong” and commented on how “nobody, including our ancestors, in written or oral, has said they saw an ape turning into a man.”
There was also the comment on astrology by former Chief Minister of Uttarakhand, Ramesh Pokhriyal Nishank, who said, “Science is a dwarf in front of astrology…astrology is the biggest science. It is in fact above science. We should promote it.”
Comments like this may seem hilarious at the first glance but we should not underestimate the impact they have on the public who rely on their leaders to act and speak in a responsible manner. Such blatant disregard for science and rational argument sets a wrong example.
Sadly though, in certain instances, there are comments and actions that have evil intentions. These comments are typically backed up by half-truths or a version of facts that have been manipulated to suit this evil end.
In the end though, in order for India to achieve its goal of transforming into a modern, liberal democracy, any behavior that takes away from a rational, scientific approach must be abandoned.
Writer: Ajay Kumar
Courtesy: The Pioneer
In a stunning move, four of the senior-most judges of India’s Supreme Court have publicly slammed the functioning of the country’s top court and warned that democracy will not survive without an independent judiciary.
Four senior judges of India’s Supreme Court have complained publicly about the way the court is being run and cases are assigned. They accused Chief Justice Dipak Misra of ignoring their suggestions to take remedial measures. In a press conference on 12 Jan 2018, the first of its kind to be held by sitting Supreme Court judges, Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph alleged selective assignment of important cases to benches by Chief Justice Misra.
The judges’ move highlights the widening rift in the upper echelons of the country’s judiciary. The press conference was held at the house of Justice Chelameswar, who is lower in seniority only to the chief justice of India. “This is an extraordinary event in the history of any nation, more particularly this nation, and an extraordinary event in the institution of judiciary,” Justice Chelameswar told reporters.
‘This is an extraordinary event in the history of any nation, more particularly this nation, and an extraordinary event in the institution of judiciary,’ said Justice Chelameswar “It is with no pleasure that we are compelled to call this press conference. But sometimes administration of the Supreme Court is not in order, and many things which are less than desirable have happened in the last few months,” Chelameswar said. “Democracy cannot survive without an independent judiciary,” the judge added. “We tried to collectively persuade the chief justice of India that certain things are not right and remedial measures need to be taken, but unfortunately we failed.” Misra who took over as chief justice in August 2017, has yet to comment on the allegations. In a letter to Chief Justice Misra that has been made public, the judges said they “are not mentioning details only to avoid embarrassing the institution.”
Observers say it was unprecedented for Indian judges to publicly criticize the head of the country’s highest court. The action drew mixed reactions, with some praising the four judges and others condemning them.
R.S. Sodhi, a retired Supreme Court justice, was quoted by The Associated Press news agency as saying that the judges’ decision to express their grievances openly was appalling. He said they should have sought redress within the system.
Former solicitor general of India N Santosh Hegde said he was “devastated” by their action which has caused “irreparable” damage to the institution. “As a retired judge of the Supreme Court, I feel devastated. “For some reason or the other, their cause is justified, (but) relief they are seeking is wrong..going to the media? No. Judiciary was always considered as a family. Family disputes are never taken to the streets,” Hegde told the Press Trust of India news agency.
But Supreme Court advocate Indira Jaising described the press conference as “historic.” “I think we, the people of India, have a right to know what is going on within the judiciary and I welcome this,” she said. Former Law Minister Hansraj Bharadwaj said the allegations made by the judges are a loss of prestige for the entire institution. “If you lose public’s trust, what remains?” Bharadwaj told the Indian news agency, ANI. “Judiciary must remain the pillar of democracy. It is the responsibility of the law minister to see how it functions.”
The opposition Congress party also claimed in, tweeting: “We are very concerned to hear four judges of the Supreme Court expressed concerns about the functioning of the Supreme Court.” Senior politician and Bharatiya Janata Party leader Yashwant Sinha said on Twitter that he stood firmly with the four judges. “Seen some of the comments. Stand firmly with the four judges. Instead of criticizing them, let us concentrate on the issues raised by them. If the highest court is compromised then democracy is in peril,” he wrote.
Prime Minister Narendra Modi’s government, especially the law ministry, was guarded in its reaction, viewing it as “an internal matter of the judiciary.”
Influential and slow
India’s Supreme Court is the highest judicial forum and the final court of appeals in the country. It currently comprises the chief justice and 24 other senior judges, with six vacancies. The institution wields enormous influence in the South Asian nation and has in the past revoked laws passed by the parliament that it regarded as infringing upon citizens’ rights.
The four senior justices, along with the CJI, are part of the Supreme Court collegium that selects judges to the apex court and high courts. The controversy comes at a time when Indian judiciary is already struggling with its reputation for being a snail-paced justice delivery system, with a huge backlog of pending cases. It’s estimated that about 30 million cases are pending in various courts across the country.
The government and judiciary in India must focus on delivering justice to its citizen and restore credibility of the institution that is vital for the survival of democracy in India . The individual judge have limited value in the entire eco-system of justice so the present battle of top judges must be ignored and the focus must shift back to address the larger institutional issues at the earliest.
Prashant Tewari: Editor-in-Chief , Opinion Express
As BJP led NDA government headed by PM Narendra Modi is pushing for the structrual reforms in the financial sector by pushing GST, demonitization, direct tax reforms, bank NPA resolution, introduction of insolvency act, opening up bank account for every citizen: it is imperative to push for stringent laws to promote online and cheque transactions. Opinion Express readers specially the PIO/NRI population should be informed about the changes happening in India for the larger benefit. The overseas investors should take a note on the information shared below.
INTRODUCTION: WHAT IS A CHEQUE?
A Cheque is a bill of exchange drawn upon a specified banker & not to be expressed to be payable otherwise than on demand. The following are the essential characteristics of a cheque:
BOUNCING OR DISHONOR OF CHEQUE:
A cheque is said to be dishonoured or bounced when it is presented for payment to a bank but it is not paid because of some reason or the other.
The following can be the reasons for bouncing of a cheque in India:
Cheque bouncing is a criminal offence in India. The following tips and steps will provide for as a useful guide for cases of cheque bouncing as per the provisions of the Negotiable Instruments Act:
Step 1 : Demand Notice
Once the bank has return the cheque, i.e. the cheque has bounced, you are required to send a letter (demand notice) within 30 days of such bouncing to the party who wrote the cheque (the drawer) threatening to initiate proceedings under the Negotiable Instruments Act in case the amount is not paid within a stipulated time period (usually 15 days).
Even though there is no prescribed format for this notice, its purpose of demanding payment and informing the issuer that s/he will be prosecuted in case payment is not made should be highlighted very clearly. Further, proof of delivery of such letter should be preserved carefully.
Demand letter can be sent by the complainant her/himself. However, it is advisable to get the draft vetted by a cheque bounce lawyer before sending it to the person concerned.
The following information should be stated clearly demand notice:
Send Legal Notice for Cheque Bounce
Step 2 : Drafting of Complaint:
After lapse of 15 days from the date of delivery of the demand letter, if no payment has been received, there is a 30 day time period to file the complaint before a magistrate.
Jurisdiction for filing the complaint: A magistrate in any of the places out of the following:
The following documents will be required in filing the suit:
Step 3 : Court Process for filing a case
|Amount on cheque
|Rs. 0 to Rs. 50,000/-
|Rs. 50,000/- to Rs. 2,00,000/-
|Above Rs. 2,00,000/-
By Vishnu Sharma Adv Supreme Court of India.
Analysis of SC revolt: Indian judiciary must accept that there are certain judicial ethics that every judge must have to strictly adhere to after taking oath under constitutional guidelines. 1. A judge shall not enter public debate or express his views to public on political matters or on matters that are pending or are likely to arise for judicial determination. 2. A judge is expected to let his judgement speak for themselves. He shall not give interviews to the media.
Unfortunately, top judges of the Supreme Court went public on 12 Jan 2018 to cleanse their soul for lodging protest against presumably erratic boss. The act broke the backbone of the top court, and set a precedent for high courts and lower courts to target respective boss of their territory. The wise men instead of approaching the government or the President of India opted for press to air their grievance. Technically, they have invited contempt action against themselves. But we are not talking of individuals but the institution that has suffered tremendously by the act of top judges. CJI should take the responsibility of the gross mismanagement in apex court and introspect the reasons why his top brother judges are up in arm against his conduct, he has completely failed to conduct the administration of the apex court transparently by occupying high seat but four wise men has failed the system. It is a man made unprecedented crisis that could have been easily avoided in the larger interest of the institution that all the top judges ( wise men ) are part off.
Detail cover story on the subject will be published in Feb 2018 issue of Opinion Express.
New delhi: What an irony! It took 2G special court judge OP Saini about seven years and more than 1,500 pages to conclude that there was not a single piece of “legally admissible evidence” against any of the 17 accused in what was touted as one of India’s biggest scams.
One would question — and rightly so — on what basis the charges were framed in this case, which culminated into a protracted trial spanning over six years. Principles of criminal trial enunciate that charges are framed only after the trial court is satisfied about the ‘primafacie’ case against the accused.
In his 1,552-page judgment, 2G judge Saini talks about how he waited for around 7 years from 10am to 5pm everyday – with a special emphasis on “summer vacation” – for someone to approach his court with legally tenable evidence, but to no avail.
This statement, which may remind many of a popular scene from the Bollywood comedy ‘Jolly LLB’, would have displayed the judge’s anguish but for one exception that it was the same judge who had found sufficient legally admissible evidence available on re- cord to kick start the trial on a day-to- day basis after framing charges in October 2011.
The entire case should have col- lapsed on that very day when the order on the charges was to be pronounced, with a direction to exonerate all accused, if what the 2G verdict now holds is the correct view – subject to its fate in appeal.
If six years of trial, which was being monitored by the Supreme Court and in which the chargesheets were vetted by the Central vigilance Commission (CVC), eventually determines that the premise of the whole case was “rumour, gossip and speculation”, this was not only a fragrant violation of the rights of the accused who were made to stand trial and their bail pleas were repeatedly dismissed, but also an avoidable waste of public money and human resources – and for this, only and only the trial court is answerable.
Judge OP Saini described the chargesheet as “orchestrated” but it was his decision to order trial against the accused based on the same “orchestrated” chargesheet.
Alternatively, if we tend to reasonably construe it as a case of late realization by the trial court, then also the judge, being the master of the trial, should explain why a trial would run for six years without any evidence against the accused; why the judge would not exercise his powers under the Criminal Procedure Code (CRPC) to demand evidence from the prosecution during the trial; why it is only at the stage of writing the judgment the court acknowledged that the prosecution had no case at all and finally, why did it take the judge eight months to author the judgment of acquittal in a case that was bereft of any merit.
Section 311 of the CrPC empowers the trial court to summon and examine “any such person if his evidence appears to it to be essential to the just decision of the case”.
There have been several instances quoted in the judgment where the judge drew inferences to reach conclusions that former Telecom Minister A Raja was not guilty of manipulating the process of 2G license allocation so as to illegally benefit some companies or to loot the public exchequer.
Consider this portion of the judgment: “It is clear that somebody from the PMO had given a go ahead to the DoT for issue of new licences and most probably it was Sh. Pulok Chatterjee himself… It was not A Raja, but Pulok Chatterjee, in consultation with T K A Nair, as he had suppressed the most relevant and controversial part of the letter of A Raja from the then Prime Minister.” But Pulok Chatterjee was never called as a witness during the trial.
The prosecution did not make him a witness and the judge, finally condemned both Chatterjee and Nair, without feeling the need to call them to the court first.
Was it not proper for the trial court to invoke its powers under Section 311, CrPC and call Chatterjee and Nair as witnesses before arriving at the conclusion that “most probably” Chatterjee gave a go ahead for the grant of 2G licenses and thus it was he who misled then PM Manmohan Singh?
If the accused has a right to earn freedom for want of proof, why should a man be declared guilty of suppressing facts in a case like this, without giving him an opportunity to explain? Is this not declaring a man guilty without giving him an audience first – one of the principles of natural justice i.e. audi alteram partem?
Read this too: “Prime Minister is a busy executive. Where from would he find time to read such lengthy notes. Prime Minister is not expected to be immersed in files. It was much easier and better for him to read and understand the letter of Sh. A Raja rather than this note of Sh. Pulok Chatterjee.”
Another part of the judgment stated: “There is no material on the record to show if this letter was taken note of in the PMO. Hon’ble Prime Minister may even not be aware of this reply.”
This also forms a part of the verdict: “When the letter was duly discussed and considered by the Hon’ble Prime Minister, and no one from the PMO has been examined as a witness nor the relevant files with processing notes have been produced before the Court, how can one say that the facts were misrepresented or that the Hon’ble Prime Minister was misled regarding the opinion of Law Minister for referring the matter to EGoM?”
Here again, if the letters between the PM and A Raja and the consequent actions held the key to determine whether there was a conspiracy or not, what prevented the trial court from summoning the PM and/or other officials from the PMO as witnesses instead of drawing inferences by citing lack of prosecution witnesses and using phrases such as “may” and “is not expected”?
The trial court harped upon the same formula when it indicted the then Law Minster and the Law Secretary but never summoned them as witnesses to ascertain why they objected to the Raja’s mandate on 2G license allocation.
“If the Law Minister felt so strongly about the matter to be referred to the EGoM, he should have written either to the Prime Minister or to Sh. A Raja, instead of recalling from DoT, a reference which had already been returned… the conduct of the Law Secretary and the then Law Minister was against all established canons, discipline and protocol of Government working,” read the judgment but did not state why these high functionaries were being reproached without letting them take the witness box.
Undoubtedly, the prosecution’s case has to stand on its own feet and the judge is absolutely right when he says that the “high profile nature of a case cannot be used as grounds for holding people guilty without legal evidence.”
But it is an equally important principle laid down by the Supreme Court in a body of judicial precedents that “a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution, since then alone can law and order be maintained” and therefore, the presiding judges has a duty “to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community.”
The question therefore looms large whether the prosecution was given a “fair chance” to prove the case and also if the trial court did its best “to find out the truth” apart from following the golden rule of “proof beyond reasonable doubt”.
It is also intriguing that the trial court allowed the defence, including the prime accused Raja, to lead evidence and examine witnesses under Section 313 of the CrPC even though the judgment now appears to have ruled that prosecution had no case at all. What was the necessity to hear the arguments of the defence if the prosecution’s case was without any “legally admissible evidence” against them?
Further, if the judge is correct in holding that “a huge scam was seen by everyone where there was none”, what is the “mess” the judge is talking about?
The trial court noted that a “mess” and some “confusion” got created due to action and inaction of some bureaucrats in PMO, DoT and Finance Minis- try. However, if Raja’s note to the PM was unambiguous and that there was nothing wrong in the method of granting of 2G licenses as proposed by Raja, where is the question of these officials creating a “mess” by surreptitiously approving this method?
About routing of Rs 200 crore from Dynamix Realty to Kalaignar Tv (P) Limited, which was run by the DMK family, including Kanimozhi, through Kusegaon Fruits and vegetables (P) Limited and Cineyug Films (P) Limited, the trial court agreed that the transaction “may have some unusual features and the documentation created for the same may suffer from deficiencies”. But it held that these factors alone did not make it out a “transaction of payment of illegal gratification.”
The prosecution’s case of the money trail was dismissed on the ground that it could not establish a link of the money with public servants and that there was also a problem of “chronological proximity” because the first transfer of money began four months after the licenses were given. Thus, no upfront or transfer of money in quick succession prompted the judge to rubbish the prosecution’s claim, thereby ignoring the possible criminality of the transaction although under the Prevention of Corruption Act, it is not required to prove pecuniary benefits.
While cancelling the telecom licences, the Supreme Court had fined three companies of Rs 5 crore each, and five others of Rs 5 lakh each, for earning the benefits of the “wholly arbitrary and unconstitutional action” in grant of 2G licenses. But with the trial court now deciding that there was no scam and no illegality, the companies would do well to demand a refund, along with inter- est and damages on account of loss of reputation etc.
The Supreme Court, in its main judgment, indeed clarified that investigation and the criminal trial will not be affected by its order of cancellation of licenses but the truth of the matter remains that CBI and ED were directed to file reports on status of probe in the top court after vetting by the CvC.
So does it now mean that all these status reports lacked complete sub- stance and “legally admissible evidence” but the CvC as well as the Supreme Court silently accepted these reports?
One of the finest legal minds, Justice Krishna Iyer had in Inder Singh v/s State (Delhi Admin), 1978, emphasised that if a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err; it is argued that it is too imperfect.
“Proof beyond reasonable doubt is a guideline, not a fetish,” he had further emphasised. The final word by the trial court in 2G case seems to be a precise illustration of the apprehensions that were raised by Justice Iyer four decades ago.
Utkarsh Anand: Author is the Legal Editor of CNN-News18.
The Bharatiya Janata Party (BJP) leader Subramanian Swamy while addressing the media on the 2G spectrum scam verdict that came out on Thursday morning said that the court’s decision was not a setback but an aberration which should serve as a lesson for the Prime Minister. “This is not a setback at all, its an aberration as the law officers were not serious on fighting against corruption. So, I hope the PM takes a lesson from this. We must now fight corruption on war footing,” Subramanian Swamy said while addressing the media. Swamy even suggested that Centre set up a war commission against corruption as people will otherwise raise questions against the Modi government in 2019. Swamy also said that there were some in BJP who were not really interested in fighting corruption.
Swamy took all credit for initiating the 2G scam case through a letter that he wrote to then PM Manmohan Singh. After Singh did not take action, Swamy said he approached higher courts to get thing moving. Calling the judgement given by the special CBI court earlier in the day: bad, Swamy said that it should be appealed in the higher court. “Today’s judgment is a very bad judgement, this must be appealed in higher court,” he added. “Judge says earlier there was a lot of enthusiasm, but later it became worse and worse. Judge also said counsels were lackadaisical. This is a big condemnation of the Govt’s controlling of the case,” Swamy added. He also said, the only reason that the case acquired traction initially was because he himself was fighting the case and that later he was sidelined by the norms.
Talking about the former AG Mukul Rohatgi, Swamy said that he had opposed the former’s appointment as AG since he had appeared for some of the accused companies. “Former AG Mukul Rohatgi has welcomed this verdict, I had written to PM opposing his appointment as AG. Rohatgi had appeared for some of the accused companies,” he said.
Earlier in the day, CBI had said that it would file an appeal against the 2G scam case verdict by a special court, which acquitted all the 16 accused rejecting the case presented by the agency. “The judgement relating to the 2G scam case of today has been prima facie examined and it appears that the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective by the learned court. The CBI will be taking necessary legal remedies in the matter,” CBI spokesperson Abhishek Dayal said.
Former telecom minister A Raja and DMK MP Kanimozhi were today acquitted by the special court in the 2G spectrum scam case. Fifteen other accused in the case and three companies were also acquitted.
Swamy shared confidence that he will ensure conviction for all the high and mighty architect of 2G scam in the higher courts wherein CBI & ED will file an appeal.
In the previous Article, I discussed about the applicability of the provisions of Limitation Act, 1963 in respect of the proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) before the Adjudicating Authority, which is Hon’ble National Company Law Tribunal (NCLT) and suggested that since NCLT is duty bound to fol- low the principles of natural justice and the rules framed for its working under the IBC and the Companies Act, 2013 and it will be appropriate for NCLT as ‘Adjudicating Authority’ to follow the principles of public policy that enforcement of rights and obligations must not be permitted to remain influx and indefinite period of time keeping in view the provisions of Limitation Act, 1963 and which enshrine the aforesaid pub- lic policy as part of principles of natural justice.
Irrespective of the conclusion in the previous Article that Limitation Act, 1963 shall be applicable on the proceedings before the Hon’ble NCLT even if the said section 433 of the Companies Act, 2013 would not have been made applicable on proceedings under Insolvency and Bankruptcy Code, 2016, there is another very important aspect which needs academic discussion as to whether what is the true meaning and scope of the word ‘debt’ in true commercial sense as defined under the In- solvency and Bankruptcy Code, 2016.
Such academic discussion assumes importance in view of various recent judgements/orders passed by the Hon’ble National Company Law Appellate Tribunal, New Delhi (NCLAT), where it is categorically held that provisions of ‘Limitation Act, 1963’ are not applicable to the proceedings under the IBC. For the paucity of space, I have not reproduced the observations in all such cases, but just summarised the said judgements and made some suggestions for further consideration:
In speculam Plast Pvt. Ltd. vs. PTC Techno Pvt. Ltd., the Hon’ble NCLAT observed as under:
The question that arises for determination in these appeals is:-
“Whether Limitation Act, 1963 is applicable for triggering ‘Corporate Insolvency Resolution Process’ under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”)?”
In answering the above question which was framed by the Hon’ble NCLAT, it held as under:
“For determination of the issue, it is to be noticed as to whether ‘I&B Code’ is a ‘self- contained Code’ or not.”
The Hon’ble NCLAT then relied upon many observations of Hon’ble Supreme Court of India in ‘M/s. Innoventive Industries Ltd v. ICICI Bank & Anr’, 2017 SCC OnLine SC 1025’ and on the basis of the said observations in the aforesaid case, the Hon’ble NCLAT then examined as to whether the provisions of Limitation Act, 1963, which is general legislation on the law of limitation, shall govern the proceedings of initiation of corporate insolvency resolution process and thereafter under the IBC.
Relying upon the judgements of Hon’ble Supreme Court of India in the case of ‘Mukri Gopalan v. Cheppilat Puthanpuravil Aboobacker (1995) 5 SCC 5’, and ‘Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133’, it held that “from the decision of Hon’ble Supreme Court in ‘Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133’, it is clear that even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law, to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act, 1963 or not.”
The Hon’ble NCLAT then goes to great length to examine various provisions of the IBC to reach a conclusion that legislature intent is to exclude the provisions of Limitation Act, 1963 from the proceedings under IBC. The Hon’ble NCLAT then examined the issue of stale claim and effect of delay and laches in filing the proceedings under the IBC, based on such a claim and observed that:
“Learned Amicus Curiae rightly contended that there should be a time limit for raising claim, including money claim. In this regard, it is desirable to refer the definition of ‘Debt’ and ‘Default’ as defined in sub-section (11) and (12) of Section 3 of the ‘I&B Code’, and quoted below: –
“3(11) “debt” means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;
3(12) “default” means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be”
From the aforesaid definition, it is clear that ‘debt’ is a liability or obligation in respect of a claim which is due from any person and includes a ‘Financial Debt’ and ‘Operational Debt’. It is further clear that when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the ‘Corporate Debtor’, it amounts to ‘default’.
Now, the question arises, whether a person can claim any amount due from another, a ‘Corporate Debtor’ after long delay on the ground that Limitation Act, 1963 is not applicable?
To decide the aforesaid issue, it is necessary to notice the Doctrine of Limitation and Prescription, as held by jurists and Hon’ble Courts. The Doctrine of Limitation and Prescription is based on two broad considerations.
First, there is ‘a presumption that the right not exercised for a long time is non-existent and second that the object of fixing time limit for litigation is based on public policy, fixing a life span of legal remedies for the purpose of general welfare.
…………………..”Further, on the basis of ‘Salmond; jurisprudence, 12 Ed and judgements of Battley vs. Faulker (1820) 3 B & Ald 288 and Rajider Singh vs. Santa Singh, AIR 1973 SC 2537, and N. Balakrishnan v M.A. Krishnamurthy, (1988) 7 SCC 123, it held that,
“in view of the settled principle, while we hold that the Limitation Act, 1963 is not applicable for initiation of ‘Corporate Insolvency Resolution Process’, we further hold that the Doctrine of Limitation and Prescription is necessary to be looked into for determining the question whether the application under Section 7 or Section 9 can be entertained after long delay, amounting to laches and thereby the person forfeited his claim. If there is a delay of more than three years from the date of cause of action and no laches on the part of the Applicant, the Applicant can explain the delay. Where there is a con- tinuing cause of action, the question of rejecting any application on the ground of delay does not arise.Therefore, if it comes to the notice of the Adjudicating Authority that the application for initiation of ‘Corporate Insolvency Resolution Process’ under section 7 or Section 9 has been filed after long delay, the Adjudicating Authority may give opportunity to the Applicant to explain the delay within a reasonable period to find out whether there are any laches on the part of the Applicant. The stale claim of dues without explaining delay, normally should not be entertained for triggering ‘Corporate Insolvency Resolution Process’ under Section 7 and 9 of the ‘I&B Code’. However, the aforesaid principle for triggering an application under Section 10 of the ‘I&B Code’ can- not be made applicable as the ‘Corporate Applicant’ does not claim money but prays for initiation of ‘Corporate In- solvency Resolution Process’ against itself, having defaulted to pay the dues of creditors. In so far it relates to filing of claim before the ‘Insolvency Resolution Professional’, in case of stale claim, long delay and in absence of any continuous cause of action, it is open to resolution applicant to decide whether such claim is to be accepted or not, and on submission of resolution plan, the Committee of Creditors may decide such question. If any adverse decision is taken in regard to any creditor disputing the claim on ground of delay and laches, it will be open to the aggrieved creditor to file objection before the Adjudicating Authority against resolution plan and for its necessary correction who may decide the same in accordance with the observations as made above.”
The aforesaid observations make it clear that Hon’ble NCLAT decided that IBC is a complete code by itself and it by implied legislative intent exclude the applicability of the Limitation Act, 1963. It is also made clear that delay and laches beyond a reasonable period of above 3 year in filing application for trigging initiation of Corporate In- solvency Resolution Process may be a ground for dismissal of such petition in given circumstances, if delay and laches are not explained to the satisfaction of the Adjudicating Authority. However in this regard it not only contradicted itself from other observations, but also made a sharp departure from these ob- servations in case of section 10 petition by corporate debtor itself.
It may be noted that ‘Speculam Plast Pvt. Ltd.’ was then followed by Hon’ble NCLAT in deciding more appeals, namely Ellora Paper Mills Ltd. & Anr vs. Ajitnath Steels Pvt. Ltd.; Sanjay Bagrodia vs. Sathyam Green Power Pvt. Ltd. and Labdhi Enterprises vs. Baramati Agro Pvt. Ltd.
From the aforesaid it is clear that one issue which was neither raised nor answered, still needs consideration. It is whether ‘bad debt’, ‘dead debt’, ‘unenforceable debt’ or ‘unrecoverable debt’, can be used as ‘financial debt’ and ‘operational debt’, to initiate corporate insolvency resolution process (CIRP) under IBC or default can occur for not praying such ‘debt’ if any demand is raised in respect thereto. In my personal opinion, the question framed in the above cases was itself incorrect and hence conclusion reached is also incorrect in law, particularly in view of many judgements of the Hon’ble Supreme Court and many high courts, where it was clearly held that a ‘debt’ which is not enforceable in law or fact cannot be revived for the purposes of ‘winding up’ proceedings under the provisions of Companies Act, 1956. There are no two opinions that ‘winding up proceedings’, like ‘initiation of corporate insolvency resolution process’ are also not proceedings for recovery of a debt and that if corporate insolvency resolution process (CIRP) fails, then corporate debtor must be ordered to be liquidated under the provisions of IBC, like ‘final winding up order’, leading to distribution of assets of the corporate debtor to its all stakeholders. It may also be noted that, whereas the Hon’ble High Court, in winding up proceedings had the discretion to finally winding up the company or not, there is now compulsory liquidation of corporate debtor if corporate in- solvency resolution process fails for any reason. Hence the ultimate net result of both processes was and is the same. In my opinion, it will be commercial ab- surdity and far from the truth to state that any person who files a claim before Insolvency Resolution Process (IRP) does not wish the recovery of that claim by seeking repayment under CIRP or under liquidation process.
In view of the above, the following observation of the Hon’ble Supreme Court and Hon’ble Delhi High Court are very apt to reproduce, regarding the meaning and scope of ‘debt’ even in the proceedings which are not recovery proceedings, like winding up and CIRP under the IBC.
In Karnataka Steel & Wire Products and Ors. vs. Kohinoor Rolling Shutters & Eng. Works and Ors., the Hon’ble Su- preme Court of India held that;
……………………………. In the impugned judgment, the Full Bench of the Karnataka High Court has recorded its conclusion that the provisions contained in Section 458A of the Companies Act does not confer a fresh cause of action and, therefore, if the time for the claim is already barred under the relevant provision of the Limitation Act, then the appointment of official liquidator on an application being filed for winding up of the company, would not revive the barred date. It appears that the aforesaid view of the Karnataka High Court is in agreement with the decision of the Madras High Court in 63 Company Cases 749 and is in variance with the two Full Bench decisions, one of Delhi High Court in MANU/DE/0038/1978: AIR1978Delhi158 : AIR1978Delhi158 and the other of Kerala High Court in MANU/KE/0009/1989 : AIR1989K- er41 : AIR1989Ker41 . In the absence of any authoritative pronouncement of this Court on the question, it would, therefore, be necessary to examine the different views expressed by different High Courts as well as the relevant pro- visions of the Companies Act, and to find out which view is correct.
2. Under the provisions of the Com- panies Act, a winding up proceeding commences by presentation of a peti- tion as provided under Sub-section (1) of Section 441 of the said Act and at any time, after the presentation of a winding up petition, the Court may appoint the official liquidator. Under Section 446 of the Act, once an official liquidator is appointed, then all legal proceedings against the company can be proceeded with only with the leave of the Company Judge and subject to such terms as the Company Court imposes. Under Sub-section (2) of Section 446, it is the winding up Court which gets the jurisdiction to entertain any suit or proceeding by or against the company as well as any claim made by or against the company. Section 458A merely excludes the time in computing the period of limitation for any claim. The aforesaid section is extracted herein-below in extenso for better appreciation of point in issue:
“Section 458A. Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the Court, the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded.”
In the case of Faridabad Cold Storage & Allied Industry v. official Liquidator of Ammonia Supplies Corpn. (P) Ltd. MANU/ De/0038/1978 : AIR1978 Delhi158 , the question for consideration was as to what is the period of limitation for a claim filed under Section 446(2) of the Companies Act and what is the starting point of the said period of limitation. It was held by the Full Bench of Delhi High Court that any such application in respect of a claim filed under Section 446(2) of the Companies Act is covered by the residuary article under Article 137 of the Limitation Act and the period of limitation is three years form the date when the right to apply accrues. The Court further held that the right to file a claim petition under Section 446(2) in respect of a claim enforceable at law on the date of the winding up order, arises on the date the winding up order is passed. The period of limitation of three years would, therefore, be from the date of the winding up order, after giving full effect to the provisions of, and the benefit of Section 458A of the Companies Act. The point in issue in case in hand is something different than the point that arose for consideration and was decided by the Delhi High Court. The order Judgment of the Delhi High Court in the case of R.C. Abrol & Co. Pvt. Ltd. v. A.R Chaddha & Co., MANU/DE/0039/1978 : AIR1978Delhi167 , the question of consideration was whether for an application under Section 446(2)(b) of the Companies Act, the provisions of Article 137 of the Limitation Act would apply or not and the High Court answered the same in the affirmative. That is not the dispute in the case in hand inasmuch as there is no dispute about the applicability of Article 137 of the Limitation Act to an application filed for enforcement under Section 446(2)(b) of the Companies Act. So far as the Judgment of Kerala High Court is concerned, in the case of K.P. Ulahannan and Ors. v. The Wan- door Jupiter chits (P) Ltd. , the question for consideration was whether the time prescribed under Section 458A of the Companies Act would be excluded for computing the period of limitation for a claim petition being filed under Section 446(2)(b) of the Companies Act read with Article 137 of the Limitation Act. In the aforesaid case, the Full Bench of Kerala High Court came to hold that the starting point of limitation for claim under Section 446(2)(b) is the date on which the winding up is passed or a provisional liquidator is appointed and Article 137 of the Limitation Act applies to such proceedings. It further held that the effect of Section 458A of the Companies Act is that the period from the date of commencement of winding up of the company to the date on which the winding up order is made and a further period of one year are to be excluded in computing the period of limitation. But where a claim which was barred on the date and winding up petition is filed, would revive on account of Section 458A of the Companies Act was never raised or considered in the aforesaid case. In a latter decision of the Delhi High Court however in the case Liberty Finance Pvt. Ltd (In liquidation) v. Pandit Radha Mohan and Ors. MANU/DE/0080/1978 , Ranganthan J, as he then was, considered the question, which is the subject matter of consideration in the case in hand and held that the expression “any claim” occur- ring in Section 446(2)(b) of the Companies Act means, “a claim which is legally enforceable and, therefore, a claim which had become time barred on the date of presentation of the winding up petition cannot be described as a legally enforceable claim and the provisions of Section 446(2)(b) do not enable the official liquidator to file or receive claims which had been quietened by the lapse of time.” Where there is an enforce- able claim as on the date of the winding up petition, the official liquidator can make an application under Section 446(2) and such an application will attract the provision of Article 137 of the Limitation Act. It was further held that reading Section 458A of the Companies Act and Article 137 of the Limitation Act together, such an application by the official liquidator should be filed within a period of four years from the date of the winding up order. To the same effect is the Judgment of the Punjab and Haryana High Court in the case of Maruti Limited (In Liquidation) and Anr. v. Parry and Company Ltd., 1989 CC 309.
3. On a plain reading of the provisions contained in Section 458A of the Companies Act, it is crystal clear that the aforesaid provision merely excludes the period, during which a company was being wound up by the Court from the date of the commencement of the winding up till the order of winding up is made and an additional period of one year immediately following the date of the winding up. In other words, in respect of a legally enforceable claim, which claim could have been made by the company on the date on which the applications for winding up is made, could be filed by the official liquidator by taking the benefit of Section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under Article 137 of the Limitation Act.
The Legislature, by way of an amendment, brought into force the provisions of Section 458A, so that in official liquidator, who is supposed to be in custody of the assets and liability of the company, would be able to file a claim on behalf of the company, (SIC) legally enforceable on the date of the winding up, after excluding the period, indicating under Section 458A of the Companies Act, so that the company or its shareholders will not suffer any loss. But by no stretch of imagination, the said provisions contained in Section 458A can be construed to mean that even a barred date or a claim which was not enforceable on the date of the winding up, would stand revived, once a winding up application is filed and order is made by virtue of Section 458A of the Companies Act. We, therefore, affirm the view taken by the Karnataka High Court under the impugned Judgment and dismiss these appeals. There will be no orders as to costs.
The Hon’ble Delhi High Court, in CIt vs. Chipsoft technology Pvt. Ltd. has held as under:
“8. Two aspects are to be noticed in this context. The first is that the view that liability does not cease as long as it is reflected in the books, and that mere lapse of the time given to the creditor or the workman, to recover the amounts due, does not efface the liability, though it bars the remedy. This view, with respect is an abstract and theoretical one, and does not ground itself in reality. Interpretation of laws, particularly fiscal and commercial legislation is increasingly based on pragmatic realities, which means that even though the law permits the debtor to take all defences, and successfully avoid liability, for abstract juristic purposes, he would be shown as a debtor. In other words, would be illogical to say that a debtor or an employer, holding on to unpaid dues, should be given the benefit of his showing the amount as a liability, even though he would be entitled in law to say that a claim for its recovery is time barred, and continue to enjoy the amount. The second reason why the assessee’s contention is unacceptable is because with effect from 1-4-1997 by virtue of Finance Act, 1996 (No.2), an Explanation was added to Section 41 which spells out that “loss or expenditure or some benefit in respect of any such trading liability by way of remission or cessation thereof” shall include the remission or cessation of any liability by a unilateral act by the first mentioned person under clause”. The expression “include” is significant; Parliament did not use the expression “means”. Necessarily, even omission to pay, over a period of time, and the resultant benefit derived by the employer/assessee would therefore qualify as a cessation of liability, albeit by operation of law.
9. The submission of the assessee that no period of limitation is provided for under the Industrial Disputes Act, as a result of which it is exposed to liability at any time, is insubstantial and unpersuasive. This is because in The Nedungadi Bank Ltd. vs K.P. Madhavankutty MANU/SC/0049/2000 : AIR 2000 SC 839 the Supreme Court held that even though under the Act no period of limitation has been prescribed, a stale dispute one where the employee approaches the forum under the Act after an inordinate delay cannot be entertained and adjudicated. In view of the foregoing reasons, the question of law is answered in the affirmative, in favour of the revenue, and against the assessee; consequently the orders of the Commissioner (Appeals) and the impugned order of the ITAT are hereby set aside. The order of the Assessing Officer is hereby restored. The appeal is allowed in the above terms without any order on costs.”
From the aforesaid it is clear that a ‘debt’ which is rendered unrecoverable under the provisions of Limitation Act, cannot be claimed in commercial sense and that such debt can be written off as bad debt and even form part and parcel of profit and loss of a commercial enterprises for the purpose of Income Tax and Companies Act. Now reverting to the provisions of IBC it may be noted that pursuant to the provisions of section 3(11) of the IBC, debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. The word ‘due’ used in the definition of ‘debt’ signifies that the debt shall be an enforceable debt. In other words, the debt shall be legally due and recoverable. The said intention of legislature becomes clear from the definition of ‘default’ provided in section 3(12) of the IBC. In terms of the provisions of Section 3(12) of the IBC, default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or corporate debtor, as the case may be. Hence the word ‘due’ signify that the debt shall be legally enforceable against the corporate debtor and the word ‘payable’ signifies that the debt shall be recoverable in fact and in law. In other commercial sense it should be ‘alive’ and ‘living’ debt. In this regard, the following words of the Hon’ble Supreme Court in the case of M/s Innovative Industries require special attention of one and all;
“It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact.”
Accordingly, the question here arises is that can the debt shall be considered as duly recoverable for an indefinite period of time for the purpose of the proceedings under the IBC. If the rationale of the judgement passed in Speculam Plast Pvt. Ltd. vs. PTC Techno Pvt. Ltd. is to be followed then a holder of an unpaid debt which became due and payable 3 years or more in the past but not enforced in law, in presenty can also be used as ‘financial debt’ or ‘operational debt’ to initiate proceedings under IBC and as a result of the same, the Adjudicating Authority will entertain such petitions under IBC which debt otherwise in law are unrecoverable claims, dead debts and lifeless, unenforceable claims, under the law of limitation. This certainly can not be the intention of the parliament to make dead debt alive and enforceable for the purposes of IBC, nor is such interpretation permissible in law.
It is a serious question to ponder as to whether a person who cannot claim the amount of his debt by filing a suit for recovery because his debt is debarred by law of limitation, can be allowed to file a petition under IBC even as his claim of debt is not legally recoverable due to the law of limitation and enjoy the satisfaction of such a claim either as part of CIRP or under the liquidation if CIRP fails for any reason. A debt which becomes due shall be considered as legally payable or recoverable within the time limit prescribed under the agreement executed for such debt transaction and, if such time limit is not prescribed under such agreement, then the same shall be recoverable within the reasonable period of time. What shall be considered as reasonable period of time is prescribed under the Limitation Act, 1963 and hence the same shall be followed. A debt, the recovery of which is barred by limitation, cannot be considered as legal debt for the purpose of proceedings under IBC as such debt has no longer remained payable. It is neither due nor repayable. It cannot satisfy the requirement of ‘default’ which is essential requirement of triggering corporate insolvency resolution process, under the provisions of sections 7, 9 or 10 of IBC.
Even under the earlier Companies Act, 1956, in a petition of winding up on the ground of inability to pay debt, the debt which were time barred were not considered even though there is no specific provisions under the said Act which provides about the applicability of Limitation Act, 1963 on the proceedings of winding up before the Hon’ble High Courts. It is also pertinent to note here is that the Companies Act, 1956 also uses the word ‘due’ and ‘payable’ which were tested and interpreted by the various Hon’ble High Courts from time to time. In various judgements passed by the Hon’ble High Courts of respective states, it has been held that a creditor whose debt is barred by limitation cannot file a petition for winding up of a company on the ground of its in- ability to pay debt since his debt is not legally recoverable.
In Interactive Media And … vs Go Airlines Limited, the Hon’ble Delhi High Court has held that a winding up petition will be maintainable when a company is unable to pay the debt which is due and payable. The debt should be one which is legally recoverable and is not barred by the law of limitation.
In another case of Niyogi Offset Printing Press Limited versus Doctor Morepen Limited, (2009) 149 Company Cases 467, it was held that “27. The claim of the petitioner for recovery of the amount has become barred by time. If the petitioner files a suit for recovery of the said amount, the suit will be dismissed as barred by time. If the claim of the petitioner to recover the amount has become barred by time, it will not be appropriate to initiate the process of winding up of the respondent company. Under Section 433(e) of the Companies Act, 1956 the machinery for winding up cannot be allowed to be utilized merely as a means for realizing debts due from a company which is also barred by time. Consequently there are no grounds to initiate the winding up proceedings against the respondent company. The petition, therefore, is without merit is liable to be dismissed. The petition, therefore, is dismissed.”
In another case of vijayalakshmi Art Productions vs vijaya Productions Pvt. Ltd., 1997 88 CompCas 353 Mad, 1996 (2) CTC 396, the Hon’ble Madras High Court also held that:
“In the summary enquiry under section 433 at the stage of admission before deciding as to whether winding up proceedings should be initiated the court to ascertain whether, interalia, the claim made by the creditor is barred by limitation or whether it is legally enforceable. If the claim made by the creditor is on the face of it not one which can be en- forced, it is unnecessary to examine as to whether the claim is a genuine claim, and as to whether the respondent has a bonafide and reasonable defence on the merits to the claim. The right to apply for winding up under section 439(b) is a right conferred on the credits and not on any person, however anxious that person may be, to have the company wound up.”
What was true in commercial world in the case of winding up petition under section 433(e) of the Companies Act, 1956 should be true for the proceedings under IBC. Under the Companies Act, 1956, the debt which were ‘due and payable’ was the basis for determining the filing of winding up petition and similarly, under the IBC, a default, on the occurrence of which proceedings under IBC can be initiated, is said to be made in payment of debt when there is non- payment of amount which has become ‘due and payable’. A debt when become payable and not demanded within the time period prescribed, cannot be claimed from the creditor by filing a case before the adjudicating authority. The debt of such person cannot be considered for payment even at the time of liquidation of such company and hence shall also not been considered as ‘financial debt’ or ‘operational debt’ for the purpose of initiation of IBC proceedings. It is my fervent plea that issue be correctly examined on the basis of commercial reality and on the hypothetical basis. In my personal view there is nothing which is self sufficient and can operate in vacuum, even if it is a code by itself. IBC is also another law of the land like others and must pass the test of ground reality and commercial wisdom and public policy.
(The writer is a senior Advocate & president, NCLT Bar Association New Delhi)
The SC ruling will go a long way in stopping child marriages
The Supreme Court must be congratulated for its landmark ruling that criminalizes men having non-consensual marital sex with girls as young as 15. This ruling is bound to deflate the pernicious argument that tradition is sacrosanct and must be upheld even when it heinously throttles the life and livelihoods of the voiceless and the most marginalized. The same was true when we battled Sati and the same is true now.
Unimaginably the subsequent governments have opposed this social trans-formative ruling with harrowing and hollow arguments like- child marriages were a reality in India and that “the institution of marriage must be protected. Otherwise, the children from such marriages will suffer.” The Centers position also exposed their devious position of allowing marital rape of minors in the garb of the ‘sanctity of marriage’. This is truly unacceptable from a democratically elected government which should aim at crusading against social ills that plague our society and not protect them.
This landmark ruling comes as a respite to several girls who were forced into child marriages and have thus faced countless forms of violence and strangulating oppression relentlessly throughout their lives. There is enough evidence to show that the mar- ital lives of children are surrounded by a noxious environment of humiliation, oppression and loneliness. The young child is forced to comprehend this as destiny and she resigns to feelings of dire anxiety and extreme hopelessness. How long would this nation have tolerated this physiological and psychological scarring of its young?
Even with all these obvious perils and in spite of being made illegal, the heinous practice of child marriage continues to flourish under the patronage of social bigotry and the nexus it enjoys with the political class- which was palpable in the government’s ambiguous stand. Instead of regretting to the fact that it had miserably failed in preventing child marriages the government stood in the court to slyly protect it.
This landmark ruling has adeptly exposed this unholy nexus and their evil intention of using tradition as a fig leaf to conceal a horrendous and oppressive practice, at the same time providing respite to millions and paving way for a modern India. The judgement’s like these that will strengthen the idea of India which continues to plummet down on the Human Development Index. The court has done a fantastic job and now we as citizens should resolve that this landmark judgement is implemented in every nook and corner of our country.
-By Deana Uppal
OPINION EXPRESS MAGAZINE
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