Substantive right accrued to a litigant should not be defeated citing procedural defects capable of being cured: SC - Business Guardian
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Substantive right accrued to a litigant should not be defeated citing procedural defects capable of being cured: SC



Don’t compare Turban, Kirpan with Hijab: SC

Without mincing any words, the Supreme Court has in an extremely laudable, learned, landmark and latest judgment titled M/S Ramnath Exports Pvt Ltd vs Vinita Mehta & Anr. in Civil Appeal No. 4639 of 2022 [Arising out of SLP (C) No. 30216 of 2018] cited in 2022 LiveLaw (SC) 564 and pronounced as recently as on July 5, 2022 minced absolutely no words in holding unequivocally that substantive right accrued to the litigant should not be defeated citing a procedural defeat capable of being cured. The Bench of Apex Court comprising of Justice Indira Banerjee and Justice JK Maheshwari minced just no words to hold that, “It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity.” Very rightly so.

To start with, this refreshing, robust, rational and recent judgment authored by Justice JK Maheshwari for a Bench of Apex Court comprising of himself and Justice Indira Banerjee sets the ball rolling by first and foremost putting forth in para 2 that, “This appeal arises out of the judgment dated 04.07.2018, passed by High Court of Uttarakhand at Nainital in First Appeal No. 50 of 2008, preferred by appellant herein against the ‘common judgment’ dated 16.04.2008 passed by Trial Court in Suit No. 411 of 1989 (filed by respondents herein joining appellant as defendant) and Suit No. 419 of 1993 (filed by appellant herein joining respondents as defendant). In Suit No. 411 of 1989, respondents sought ‘permanent injunction’ against appellant restraining it from interfering in the right of use of concerned passage or causing any interference or putting any obstruction in the usage of the said passage and not to make any septic tank, soakage pit or raise any other construction. The respondents also prayed for grant of ‘mandatory injunction’ against the appellant, making prayer to remove and demolish the walls on the concerned passage and restoring the passage to its original width of 13 ft. and filling up the ditch near the gate of plaintiff no.2 (respondent no.2 herein). In Suit No. 419 of 1993, appellant herein prayed for ‘permanent injunction’ restraining the respondents/defendants from providing or creating any passage through the property of appellant after demolishing the existing passage. Since both the suits involved grievances pertaining to the passage of the same land, therefore by consent order dated 18.08.2006 both were consolidated. The common issues were framed by Trial Court to facilitate disposal of both suits by same evidence. Consequently, the aforesaid consolidated suits were disposed off by the Trial Court by a common judgment dated 16.04.2008, though two separate decrees were drawn on 30.04.2008. The Suit No. 411 of 1989 was partly decreed in favour of plaintiff no. 2 (respondent no.2 herein), whereas Suit No. 419 of 1993 was dismissed.”

As it turned out, the Bench then mentions clearly in para 3 that, “Being aggrieved by the common judgment, appellant preferred First Appeal No. 50 of 2008 before the High Court challenging both the decrees. On filing appeal, at the initial stage, appellant also preferred an application being CLMA No. 4365 of 2008 (in short be referred as “CLMA”) and sought permission to file a single appeal assailing the common judgment dated 16.04.2008 alongwith two separate decrees dated 30.04.2008. The first appeal was admitted by High Court vide order dated 18.07.2008 and by the same order, two weeks’ time was granted to file objections on CLMA and further two weeks to file rejoinder. It was further directed to list the application after lapse of the said period.”

To put things in perspective, the Bench then envisages in para 4 that, “The High Court without passing any order on the said CLMA, at the time of hearing of the appeal, accepted the preliminary objection regarding maintainability of single first appeal without entering into the merits of the case. The Court said that the case is restricted to the question of applicability of principle of res judicata and, taking into consideration the material placed and the contentions raised by both the parties, the appeal was dismissed holding that one appeal is not maintainable and barred by res judicata. In the impugned order, the High Court has considered the full bench judgment of Allahabad High Court in the case of Zaharia Vs. Dibia & Ors., ALR (1910) Allahabad 51, and also the case of Narhari & Ors. Vs. Shanker & Ors., AIR 1953 SC 419 in which full bench judgment of Lahore High Court passed in case of Mt. Lachhmi Vs. Mt. Bhulli, AIR 1927 Lahore 289 was relied. The Court distinguished the full bench judgment of Mt. Lachhmi (supra) of Lahore High Court and also the judgment of this Court in the case of Narhari (supra) and placing reliance upon the judgment of Lonankutty Vs. Thomman & Anr., (1976) 3 SCC 528, said that the case in hand is similar to the case of Lonankutty (supra) which was dismissed on the ground of res judicata alone. The High Court further relied upon the judgment of this Court in Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624, wherein, this Court was dealing with the concept of res judicata discussed law on the point of applicability of res judicata and observed that losing party must file appeals in respect of all adverse decree founded even on partially adverse or contrary speaking judgments.”

As we see, the Bench then observes in para 5 that, “In impugned order, the Court held that separate appeals ought to have been filed by appellant against the decree given in Suit No. 411 of 1989 as well as in Suit No. 419 of 1993. Failure to file separate appeals would invite the applicability of principle of res judicata. The Court in the order concluded that one appeal against both the decrees is not tenable in terms of clear stipulation as per Section 96 of CPC. As separate appeals have not been filed against both the decrees, res judicata would operate as against the findings given in another suit even after consolidation. Thus, held that, the cause of appellant is foreclosed by applicability of principle of res judicata.”

Simply put, the Bench then reveals in para 6 that, “Being aggrieved, the appellant preferred instant appeal and learned counsel present has contested the same on following grounds –

a) The appellant had assailed the findings recorded by Trial Court by mentioning both the suit numbers alongwith payment of requisite court fee for the purpose of valuation on the basis of consolidated value of suits;

b) The first appeal was admitted by High Court vide order dated 18.07.2008 , but the same was dismissed after a decade without entering into the merits of the case;

c) While admitting the appeal, notice was issued on CLMA, i.e., application to seek permission to file single appeal impugning the common judgment and two decrees, but without deciding the said application, the preliminary objections raised by the respondents has been maintained causing serious prejudice to it;

d) The essence of rule of res-judicata is that the two proceedings should be so independent of each other that the trial of one cannot be confused with trial of other suit, but where two suits having common issue were tried together and disposed-off vide single judgment, can they be said to be two distinct and independent trials;

e) In effect, only one judgment was passed in the trial and suits were not clubbed but were consolidated for all purposes;

f) In support of the said contentions learned counsel would rely upon –

i. State of Andhra Pradesh & Ors. Vs. B. Ranga Reddy (thru LR’s) & Ors., (2020) 15 SCC 681;

ii. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624;.”

No doubt, the Bench then rightly points out in para 7 that, “Per contra, the counsel for the respondents has argued in support of the findings recorded in the impugned judgment and made the following submissions –

a. The appellant unilaterally preferred single appeal and paid the Court fee on the basis of consolidated value of suits, whereas, separate Court fee was to be calculated on each decree and affixed accordingly;

b. Appeal against decree in Civil Suit No.411 of 1989 can be filed before District Judge, having a limitation of 30 days as per Section 8 of Suits Valuation Act, 1887, whereas, looking to the valuation, appeal against decree in Civil Suit No.419 of 1993 lies before High Court having a limitation of 90 days. No such appeal against decree in Civil Suit No.411 of 1989 before District judge was preferred by appellant;

c. The judgment and decree passed in Civil Suit No.411 of 1989 has attained finality inter-se parties since it was not challenged within the prescribed period of limitation;

d. Consolidation of suits was done only for evidence and it does not mean that one appeal can be preferred since suits still retain their separate identity. Even assuming that the consolidation was for all purposes, yet the procedure for preferring an appeal cannot be waived or by-passed;

e. Since the day of notice in first appeal, objection has been raised for filing only one appeal and still the said defect was not rectified by the appellant;

f. Learned counsel placed reliance on following judgments to substantiate the submissions –

i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624;

ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil Appeal No.3327 of 2020)

iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020 SCC OnLine SC 756;.”

Quite pertinently, the Bench then observes in para 8 that, “After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties.”

Be it noted, the Bench then hastens to add in para 9 that, “In the instant case, it is not disputed that appellant herein filed CLMA, i.e., application seeking permission to file single appeal against the common judgment as well as the two separate decrees passed in consolidated suits. Further, as is evident from the record, especially from the order dated 18.07.2008, the High Court at the time of admission of the appeal specifically directed that CLMA be listed for disposal after expiry of four weeks’ time given to both parties to file counter as well as rejoinder affidavits.

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Kejriwal unveils ‘Guarantee’ for LS Polls: AAP’s pledge for change



On “Kejriwal ki Guarantee”, he said 24X7 power supply, good education and health facilities, and arranging two crore jobs for youths every year are part of it.

Delhi Chief Minister and AAP national convener Arvind Kejriwal declared “Kejriwal ki Guarantee” on Sunday, outlining 10 urgent initiatives to be pursued swiftly, including the liberation of Indian territory from Chinese control, should the INDIA bloc come to power at the Centre. This opposition alliance, comprising parties like AAP, Congress, Trinamool Congress, and Dravida Munnetra Kazhagam, was established to challenge the BJP-led National Democratic Alliance in the Lok Sabha elections.

A day after his release from jail on interim bail, Kejriwal on Saturday said the INDIA bloc will form the next government and his AAP will be part of it. Addressing a press conference on Sunday, the AAP leader said people will have to choose between “Modi ki Guarantee” and “Kejriwal ki guarantee”. The latter is a “brand”, Kejriwal said.

On the announcement of his guarantees, Kejriwal said, “I have not discussed with my INDIA bloc partners about this. I will press upon my INDIA bloc partners to fulfill these guarantees.”

Kejriwal said while the AAP has fulfilled its “guarantees” of free power, good schools, and Mohalla Clinics in Delhi, “(Prime Minister Narendra) Modi has not fulfilled his guarantees”.

On “Kejriwal ki Guarantee”, he said 24X7 power supply, good education and health facilities, and arranging two crore jobs for youths every year are part of it.

“We worked on management to ensure 24×7 power supply in Punjab and Delhi. We can do it in the entire country. The government schools in the country are in a bad shape. We will arrange good quality education across the country. We know how to do it,” he said.

Kejriwal also promised to end the Agniveer scheme and ensure that farmers get MSP for their crops as per the Swaminathan Commission’s report. “Rashtra Sarvopari is our guarantee. China has occupied our land and we will free it from their occupation,” he said. Kejriwal also promised to provide full statehood to Delhi.

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Macro & financial stability, boost to infra, extended PLI likely key areas in Modi 3.0



If one were to go by the Central Government’s poll manifesto which has stayed aligned to the pre-poll interim Budget, a strong adherence to the path of macro and financial stability as priorities, marked by low inflation, strong external balances, high growth, and fiscal prudence, appears to be the likely scenario if it comes back to power. A DBS Group research by Radhika Rao, senior economist, DBS Group Research and Taimur Baig, MD and Chief Economist, DBS Group Research indicates that the government will continue with the infrastructure push, policies to expand the manufacturing sector, and establish the country’s position as a voice of the Global South.

On the first, the focus will be on improving physical and digital infrastructure, marked by new metro networks, new railway tracks, new-age trains, improved connectivity, new bullet trains, roads, and energy infrastructure. Concurrently, besides expanding the 5G network, improving rural broadband connectivity, exploring 6G technology and the digitization of land records, amongst others, were highlighted in the to-do lists, as per Rao and Baig.

Secondly, Make-in-India and PLI schemes are likely to be expanded, with an emphasis on employment creation, simplification of regulatory processes, appropriate infra for manufacturing hubs, and R&D. A mix of traditional and new-age sectors will likely be prioritized, including a globally competitive food-processing industry, and core sectors (steel, cement, metals, engineering etc), besides a push towards indigenous defense manufacturing, pharma, new age & chip manufacturing, auto and electric vehicles, amongst others.

Existing social welfare programs are likely to be enhanced with better outreach, including, a middle-class focus through the provision of high-value jobs, quality healthcare and infra to improve ease of living, amongst others. Also on the radar is affordable housing program expansion with a focus on slum redevelopment, sustainable cities, etc. The PM Garib Kalyan Anna Yojana is to be a priority, which will continue to provide free foodgrain ration to about 800 mn residents. On healthcare, Rao and Baig see continuity to provide quality free health treatment to up to 500,000 poor families under Ayushman Bharat.

The economists are also of the view that the PM Ujjwala Yojana, which has already benefited 100 mn with cooking gas connections, will be expanded. Subsidies for solar panels on roofs of 10 mn households up to 300 units/month under the PM Surya Ghar Muft Bijli Yojana, unorganized workers, farmers and continuation of financial assistance to farmers under PM Kisan, farm self-sufficiency, etc.), start-ups and micro-credit enterprises, will be the other focus areas to boost the economy from a bottom-up approach.

Rao and Baig foresee limited fiscal implications from these announcements as part of these were included in the interim budget and the manifesto did not outline any new big-bang reforms or fresh social welfare spending programs. “We maintain our FY25 fiscal deficit assumption at -5.1% of GDP with the existing borrowing program,” says the economists.

A broad-based push towards more contentious structural reforms (land, labor, farming, etc.) did not receive a mention in the manifesto, which may still be prioritized if the party returns for a third term. In our view, the incoming government is neither limited by nor will be restricted by the poll promises. To that extent, the scope of reforms can be wider than what has been laid out in the respective manifestos.

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Govt extends date for submission of R&D proposals



The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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India, Brazil, South Africa to press for labour & social issues, sustainability



The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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India to spend USD 3.7 billion to fence Myanmar border



India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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