SUMMER INTERNSHIP REPORT

SAMARTH NAYAR
17817703818
VII-D

INTEGRATED B.A. L.L.B.

SUMMER INTERNSHIP REPORT

SUBMITTED FOR PAPER CODE: 451, COMPREHENSIVE
VIVA AND SUMMER INTERNSHIP ASSESSMENT

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

GGSIP UNIVERSITY
December, 2021

 TABLE OF CONTENTS
S. No. Certificate Course Pg No.

1 Declaration 3

2 Acknowledgement 4

3 Task 1: Drafting of Complaint U/S 138 NI Act and research on 5

the latest case law on Section 65B as to Requirements for
admissibility of electronic evidence.

4 Task 2: Research Work: Whether a HUF property becomes a self- 11

acquired property after partition?
5 Task 3: Research Work: Whether Covid-19 can be understood to 15
mean force majeure in case of lease agreements?
6 Task 4: Research Work: Delays in Construction Contracts with 23
respect to Liquidated Damages
7 Task 5: Research on the issue: Whether an agent which entered 31
into an agreement on behalf of the Principal can be struck off
from the memo of parties with respect to S. 230 of ICA and ACA,
and whether a Non-Joinder of a necessary party can be Fatal to
the suit?
8 Task 6: Research Work: Court has no powers to direct collection 35
of blood samples.
9 Task 7: Drafting List of Dates and Grounds for Bail before the 40
Hon’ble Delhi High Court in a rape case
10 Conclusion 47

11 Internship Certificate 48

 DECLARATION
This declaration is made at Delhi that this Summer Internship Report contains the
work accomplished by me which was assigned to me during the Internship. This work
was done in respect of the partial fulfilment of the requirement for the award of
degree of BA. LLB. This has not been submitted either in whole or in part to any
other Law University or affiliated Institute under University, recognized by the Bar
Council of India for the award of any law degree or diploma within the territories of
India. All information provided here, have been comprehended from the lectures so
attended.

That the certificate attached herein is the true copy of the certificate that I received in
lieu of the work undertaken by me during the course of my Internship.

Samarth Nayar
17817703818
BA. LLB
VIIth Semester
Section D
Date: 25 November, 2021
Place: New Delhi

 ACKNOWLEDGEMENT
I would like to take this opportunity to thank the various people associated with my
internship experience under Sr. Advocate Sacchin Puri without whose help and
guidance, it would have been a tough time.

At the foremost, I would like to express my gratitude to Sacchin Puri Sir who gave
me the opportunity to intern under him. He was extremely kind and professional
throughout the internship. Seeing him argue and interact with clients was a true
inspirational experience.

I would like to thank Adv. Kamil Khan, who was an associate under Sacchin Puri Sir.
I was assigned to Kamil Sir, and it was under his guidance that I was able to undergo
various tasks of research, attend court and arbitration proceedings, and directly
observe their interactions with briefing counsels and clients.

Adv. Sandeep Kumar, Adv. Dhan Singh and Adv. Shweta Arora were the other
associates working in the offices. It was under their constant guidance and support
that I was able to complete this Internship.

I would be amiss if I did not thank the numerous clerks in the Offices who were a
source of constant support and help at any point during the Internship.



 Task 1:

WORK ALLOTTED: Drafting of Complaint U/S 138 NI Act and research on the
latest case law on Section 65B as to Requirements for admissibility of electronic
evidence.

DATE ON WHICH IT IS ASSIGNED: 02/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Negotiable Instruments Act, 1881

2) Various Formats

3) SccOnline.com

4) Casemine.com

5) corporate.cyrilamarchandblogs.com

6) https://bnblegal.com/

RESEARCH:

Facts of the case: The complainant dealt in Aluminium Composite Sheets and the
accused contacted them for the same. The accused was supplied their order through
various invoices on different dates with different amounts in August 2019.

As per the terms of their agreement, the accused had to make the payments within a
month from the date of the invoice of the order. Hence all the payments were to be
made by September 2019. However, the accused kept on delaying the payment.

When the accused, after repeated reminders, finally issued one cheque amounting to
Rs. 32,026/- to the complainant, it got dishonoured due to insufficiency of funds.
Thereafter this dishonored cheque was returned to the accused.

Two more cheques were issued from the accused later amounting to Rs. 50,000/- each
and the extra amount was to be considered as interest. However, the first cheque of
Rs. 50,000/- got dishonoured due to insufficiency of funds.

Finally in July 2021, the accused once again asked the complainant to deposit both
the cheques and assured that they won’t be dishonoured again. However, both the
cheques again got dishonoured due to insufficiency of funds. Considering the
malafide intention of the accused to withhold the money of the complainant, a legal
notice was sent to the accused and after the lapse of the prescribed period of 15 days,
this complaint case has been instituted against the accused U/S 138 NI Act

Observation: Based on the following facts, a Complaint case U/S 138 NI Act was
drafted containing:

• Particulars: This contains the details pertaining to the matter, i.e Date of issue of
cheques in question, date of return memos of the bank, date of issuance, dispatch
and delivery of the Legal Notice, date of institution of complaint, location of
bank of the complainant, reasons for dishonouring of the cheques and drawer/
signatory of the cheques in question.

• Index of the Complaint

• Memo of parties: Contained the full address of both the parties, the concerned
Police station, i.e Mianwali Nagar in this case and at the last, Delhi with date and
with name of the Advocate and his Enrolment No., Address and Contact no.

• Main complaint: In this, the name of the court was written at the top followed by
the case no., then in the matter of (Name of both parties ....Complainant
Versus ....Accused, then Name of P.S. and then the title of the matter, i.e
“COMPLAINT UNDER SECTION 138 R/W 142 OF THE NEGOTIABLE
INSTRUMENTS ACT, AS AMENDED UPTO DATE”. Facts of the whole
matter were written there with annexures being marked for various documents
that needed to be enclosed and jurisdiction of the court was put at the end, i.e. the
area in which the base branch of the complainant’s bank was located and the
same fell within the local limits of the territorial jurisdiction of Tis Hazari Court,

 Delhi. Then Prayer was mentioned in which it was prayed to (i) summon the
accused to stand trial, (ii) prosecute and punish the accused as per S.138 r/w
S.142 of NI Act, (iii) direct the accused to pay Rs. 97,228 along with
compensation which may be imposed as fine by the Hon’ble Court U/S 357
Cr.P.C, (iv) any other order.

• Affidavit of the complainant was drafted, followed by verification of the

deponent at the end.

• Evidence by way of affidavit: All the documents were exhibited along with the
facts of the case by the deponent. Those documents which are needed to be
admitted in the court to refer as proofs during the trial to make part of the
evidence are treated as exhibits.

• List of documents : This contained all those annexures which were mentioned in
the main complaint such as copy of invoices, original cheques, return memos,
ledger account, copy of the legal notice, speed post receipts, tracking records,
etc.

• List of witnesses: Contains the list of all those people who can be relied upon by
the complainant to substantiate his claim such as Concerned Clerk, Manager,
Bank official from the bank of the complainant and accused, concerned clerk,
post master from the post office, etc.

• Certificate U/S 65B of Indian Evidence Act: Contained the statement of the
person from whose computer system the tracking records and invoices were
downloaded. The statement was in a form of a written affidavit containing the
statement that the computer system and the printer were in optimal working
condition and that the deponent himself is fully responsible for the veracity of
the printouts.

Research on Section 65B

Further research on the issue as to whether the representing advocate can also sign
the certificate as under Section 65B and the latest law on the requirements for
admissibility of electronic evidence was also given.

Research: On both the issues, the answer was found in the case of Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal. The three judge bench headed by Justice
Rohinton Nariman stated that the certificate shall be issued by the person who owns
and operates the computing device and is a condition precedent to the admissibility of
evidence by way of electronic record. This essentially meant that since there is no
exceptions given elsewhere as well, the representing advocate can very well sign the
certificate.

On the second issue, the same case was referred. The Court overruled the Tomaso
Bruno v. State of UP and Shafhi Mohammad v. State of Himachal Pradesh, and
clarified the position as follows:

• A certificate under Section 65B(4) is mandatory, and a condition precedent to the

admissibility of evidence by way of electronic record. Oral evidence cannot
suffice in place of a certificate under Section 65B(4) and evidence cannot be
given by a person in charge of a computer device, in place of the requisite
certificate under Section 65B(4)

• The law laid down in Anvar P.V. v. P.K. Basheer need not be revisited. However,
the last sentence in paragraph 24 of the said judgment which reads as “if an
electronic record as such is used as primary evidence under Section 62 of the
Evidence Act, the same is admissible in evidence, without compliance with the
conditions in Section 65-B of the Evidence Act” is to be read without the words
“under Section 62 of the Evidence Act”.

• The non-obstante language of Section 65B(1) makes it clear that when it comes
to information contained in an electronic record, admissibility and proof thereof
must follow the drill of Section 65B, which is a special provision in this behalf.
Sections 62 and 65 are irrelevant for this purpose.

 • The requirement under Section 65B(4) is unnecessary if the original document

itself is produced. This can be done by the owner of a laptop computer, tablet or
even a mobile phone by stepping into the witness box and proving that the
concerned device, on which the original information is first stored, is owned and/
or operated by him. Where the computer happens to be on a system or network
and it is impossible to physically bring such system or network to court, then the
only means of providing information contained in such electronic record is in
accordance with Section 65B(1), together with the requisite certificate under
Section 65B(4).

• Where the requisite certificate has been sought from the person or the authority
concerned, and the person or the authority concerned refuses to give such a
certificate, or does not reply to such demand, the party asking for such certificate
can apply to the court for its production under the provisions of the Evidence
Act, the Code of Civil Procedure, 1908 and/or Code of Criminal Procedure,
1973.

• Given that the certificate under Section 65B(4) may be given long after the
electronic record has actually been produced by the computer, it is sufficient that
the certificate is either to the best of the issuer’s knowledge or belief.

• The conditions under Sections 65B(2) and 65B(4) must be satisfied

cumulatively.

Miscellaneous research required which aided the drafting:

• Validity of a cheque issued : 3 months

• Payee/Complainant has to send a legal/demand notice to the drawer/accused

within 30 days from the dishonour of the cheque.

• A 15 day time duration needs to be given to the drawer/accused to pay the

amount of the cheque which got dishonoured.

 • After the lapse of 15 days, a complaint case can be instituted in the court on

the 16th day but within 30 days after the receipt of the legal notice.

Conclusion: Based on the research and facts of the case, the complaint U/S 138 NI
Act was successfully drafted. Furthermore, research work necessary for issues given
was provided.

10



 Task 2:

WORK ALLOTTED: Research Work: Whether a HUF property becomes a self-

acquired property after partition?

DATE ON WHICH IT IS ASSIGNED: 06/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Hindu Succession Act, 1956

2) Livemint.com

3) SccOnline.com

4) casemine.com

5) iPleaders.in

RESEARCH:

On the issue as to whether a HUF property becomes a self acquired property after
partition or not. The answer was found in the affirmative. To further supplement the
answer, a number of case laws were also attached.

1) In Mukesh Kumar. vs Pavitra, 2016 SCC OnLine Del 4907

The Court held that:

“6. A reading of the ratio of the judgment of the Supreme Court in the case
of Yudhishter (supra) shows that inheritance of ancestral property after
passing of the Hindu Succession Act, 1956 will not mean that the sons/
children of the persons who inherited the property will have a right in the
same on the ground that the ancestral property is an HUF property.
Ancestral property when inherited by a person after passing of the Hindu
Succession Act becomes self acquired property in the hands of a person
who inherits the same.
11

 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra)
after passing of the Hindu Succession Act, 1956 the position which
traditionally existed with respect to an automatic right of a person in
properties inherited by his paternal predecessors-in-interest from the
latter‟s paternal ancestors upto three degrees above, has come to an end.
Under the traditional Hindu Law whenever a male ancestor inherited any
property from any of his paternal ancestors upto three degrees above him,
then his male legal heirs upto three degrees below him had a right in that
property equal to that of the person who inherited the same. Putting it in
other words when a person „A‟ inherited property from his father or
grandfather or great grandfather then the property in his hand was not to be
treated as a self-acquired property but was to be treated as an HUF property
in which his son, grandson and great grandson had a right equal to „A‟.
After passing of the Hindu Succession Act, 1956, this position has
undergone a change and if a person after 1956 inherits a property from his
paternal ancestors, the said property is not an HUF property in his hands
and the property is to be taken as a self-acquired property of the person
who inherits the same.”

2) In Bhanwar Singh v. Puran, (2008) 3 SCC 87

12. Indisputably, Bhima left behind Sant Ram and three daughters. In terms
of Section 8 of the Act, therefore, the properties of Bhima devolved upon
Sant Ram and his three sisters. Each had 1/4th share in the property. Apart
from the legal position, factually the same was also reflected in the record
of rights. A partition had taken place amongst the heirs of Bhima.

13. Although the learned First Appellate Court proceeded to consider the
effect of Section 6 of the Act, in the court’s opinion, the same was not
applicable in the facts and circumstances of the case. In any event, it had
rightly been held that even in such a case, having regard to Section 8 as
also Section 19 of the Act, the properties ceased to be joint family property
12

 and all the heirs and legal representatives of Bhima would succeed to his
interest as tenants in common and not as joint tenants. In a case of this
nature, the joint coparcenary did not continue.

2) In Yudhister v. Ashok Kumar, 1987 1 SCC 204

The Court, by following the amendment and enforcement of the Hindu

Succession Act in 2005, women were also allowed to enjoy their ancestral
property with equal rights but those ancestral property rights had not been
granted to women before. Now, women and men have equal rights over
their ancestral property. There are certain conditions of the ancestral
property if the inheritance is before 1956 then it is not a HUF property. In
such cases, since a HUF (Hindu Undivided Family) already existed before
1956, thereafter, as the same HUF with its structures continues, the status
of HUF (Hindu Undivided Family) continues, and in such a case only,
members of joint Hindu family are coparceners give them the opportunity
to a share within the HUF (Hindu Undivided Family) premises.

“8) ….The decision which the High Court had in mind and on which in fact
the High Court relied was a decision in the case of Commissioner of
Income-tax, U. P. v. Ram Rakshpal, Ashok Kumar, 67 I.T.R. 164. In the
said decision the Allahabad High Court held that in view of the provisions
of the Hindu Succession Act, 1956, the income from assets inherited by a
son from his father from whom he had separated by partition could not be
assesssed as the income of the Hindu undivided family of the son.

10. This question has been considered by this Court in Commissioner of

Wealth Tax, Kanpur and Others v. Chander Sen and Others, [1986] 3 SCC
567 where one of us (Sabyasachi Mukharji, J) observed that under the
Hindu Law, the moment a son is born, he gets a share in father's property
and become part of the coparcenary. His fight accrues to him not on the'
death of the father or inheritance from the father but with the very fact of

13

 his birth. Normally, therefore whenever the father gets a property from
whatever source, from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and it will
become part of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court observed that
this position has been affected by section 8 of the Hindu Succession Act,
1956 and, therefore, after the Act, when the son inherited the property in
the situation contemplated by section 8, he does not take it as Karta of his
own undivided family but takes it in his individual capacity.

3) In Commissioner of Wealth Tax, Kanpur v. Chander Sen, 1986 3 SCC 567

It was held that after passing at the Hindu Succession Act, 1956 the
standard view that on the legacy of stable property from paternal ancestors
up to three degrees, automatically on HUF (Hindu Undivided Family) came
into existence, now remained as the legal position of Section 8 of the Hindu
Succession Act, 1956.

Conclusion: The first case of Mukesh v Pavitra, authored by Valmiki J. was used as
the latest law and added into the compilation of cases for a pending matter before the
Hon’ble Delhi High Court.

14

 Task 3:

WORK ALLOTTED: Research Work: Whether Covid-19 can be understood to

mean force majeure in case of lease agreements?

DATE ON WHICH IT IS ASSIGNED: 09/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Indian Contract Act, 1860

2) Transfer of Property Act, 1885

3) SccOnline.com

4) casemine.com

5) Mondaq.com

RESEARCH:

Force Majeure has commonly been understood as a superior force or the

circumstances that are beyond the control of either of the contracting parties. Under
the Indian legislation force majeure is not specifically dealt with under any statute,
however Section 32 and 56 of the Indian Contract Act, 1872 have been referred in
terms of the doctrine of force majeure. Various cases have been adjudged by the
courts on which the concept of force majeure is dependent.

M/S Haliburton Offshore Services Inc. Vedanta Ltd., Delhi HC

Facts of the Case:

The Contractor; was selected via competitive bidding to carry out different sets of
works for the development of end-to-end integrated Oil Well Construction at three
fields namely ‘Mangala’, ‘Bhagyam’ and ‘Aishwarya’ (“MBA fields”) in Rajasthan.
On 25th April 2018 a Contract (“the Contract”) was entered into with the Company

15

 amounting to USD 197 Million for period of two years for completion of the work in
MBA fields.

The original completion date as per the Contract was 16th January 2020 for the MBA
fields respectively. However, as delays were caused in completion of the project on
25th November 2019, the Contractor was called upon to give its cure plan.

On 05th December 2019, the Contractor submitted its cure plans for each of the
fields, thereby submitting that the work would be completed by 31st March 2020 for
the MBA fields respectively. However, the said cure plan was not accepted by the
Company and vide its letter dated 16th January 2020 informed the Contractor that it
would use alternative sources to complete the project if the entire project did not
achieve completion by 31st January 2020.

Thereafter, the Contractor vide its letter dated 18th March 2020 invoked Force
Majeure clause due to outbreak of COVID-19. The Company then on 31st March
2020 issued a notice informing the Contractor that the balance activity will be
completed by alternative sources.

On 13th April 2020, the Contractor filed a Petition against the Company and sought
an injunction order against the Company from invoking the bank guarantees issued
by the Contractor. On 13th April 2020, the Company terminated the Contract on
various grounds and invoked the bank guarantees.

Issues

1. Was COVID-19 the cause of the non-performance in the present case?

2. Whether COVID-19 can provide succour to a party in breach of contractual

obligations? and

3. Whether invocation of Bank Guarantees is liable to be injuncted on the grounds

of Force Majeure i.e., COVID-19, if the breach occurred prior to the outbreak?

Findings of the Court

Breach of a contract has to be examined on the facts and circumstances of each case.
Breach or non-performance cannot be justified merely on the invocation of

16

COVID-19 as a Force Majeure condition. The Force Majeure Clause must be

interpreted narrowly, not broadly.

It is also not the duty of the Courts to provide a shelter for justifying non-
performance. There has to be a ‘real reason’ and a ‘real justification’ which the Court
would consider in order to invoke a Force Majeure clause. There was nothing on
record to show the steps taken by the Contractor towards mitigation, which was
necessary as per the Force Majeure clause.

The Contractor was in breach of the contract before the announcement of the
Lockdown. Opportunities were also given to the Contractor to cure the same
repeatedly. Despite the same, the Contractor could not complete the project. Thus, the
outbreak of a pandemic cannot be used as an excuse for non-performance of a
contract for which the deadlines were before the outbreak itself.

Relevant Paragraphs

“60. As per the above clause, the performance by the Contractor would be excused if
it is prevented or hindered or delayed by any natural event including a pandemic or
plague. The question is whether the Contractor, in this case, was prevented, hindered
or delayed by COVID-19 in the punctual performance of its obligations. Admittedly,
the Force Majeure clause was invoked by Contractor only on 18th March, 2020 and
not before that. Thus, the Contractor did not itself feel that COVID-19 had,
previously, hindered the performance of its contract.

62. The question as to whether COVID-19 would justify non-performance or breach

of a contract has to be examined on the facts and circumstances of each case. Every
breach or non-performance cannot be justified or excused merely on the invocation
of COVID-19 as a Force Majeure condition. The Court would have to assess the
conduct of the parties prior to the outbreak, the deadlines that were imposed in the
contract, the steps that were to be taken, the various compliances that were required
to be made and only then assess as to whether, genuinely, a party was prevented or is
able to justify its non- performance due to the epidemic/pandemic.

17

 63. It is the settled position in law that a Force Majeure clause is to be interpreted
narrowly and not broadly. Parties ought to be compelled to adhere to contractual
terms and conditions and excusing non-performance would be only in exceptional
situations. As observed in Energy Watchdog (supra) it is not in the domain of Courts
to absolve parties from performing their part of the contract. It is also not the duty of
Courts to provide a shelter for justifying non- performance. There has to be a real
reason and a real justification which the Court would consider in order to invoke a
Force Majeure clause.”

Ramanand and ors v. Dr Girish Soni, Delhi HC

Brief Facts

The Petitioners were tenants of a commercial premises in Khan Market, New Delhi.
The Respondent being the landlord had filed for evection of the Petitioners from the
premises and had succeeded in obtaining a decree for eviction from the lower court.
After being unsuccessful in the lower court, the Petitioners filed the aforesaid
Revision Petition before the Delhi High Court challenging the eviction order. The
Delhi High Court stayed the eviction order subject to certain terms and conditions
which inter alia required the Petitioners to pay a sum of INR 3.5 lakh per month in
advance for each month as rent.

On account of the nationwide lockdown, the Petitioners moved an urgent application

in the aforesaid Revision Petition seeking suspension of rent during the lockdown
period in order to not fall foul of the eviction order which required it to pay INR 3.5
lakh per month as rent.

Issues

Whether the present Covid-19 pandemic and resultant lockdown would entitle tenants
to claim suspension of rent or waiver from payment of rent.

18

Findings of the Court

On the question as to whether the COVID-19 induced lockdown can entitle a tenant
to seek waiver or non-payment of rent would depend on the terms of the contract. The
fundamental principle is that such relief would be available only if such government
orders or pandemic are conceived as force majeure events and consequently if the
contract provides for waiver or suspension of rent. The same has not been done by the
government.

Further, even if the contract covers the present lock down as a force majeure, it is
important to ascertain the consequences provided for. Many contracts only provide
for termination on occurrence of a force majeure event. Therefore, even upon
occurrence of the force majeure event, the lessee cannot seek suspension or waiver of
rent but can only terminate the contract. The Court added that Section 32 of the ICA
is invoked if the only in circumstances where force majeure provisions are included
in contracts. In case there is no such provision, Section 56 of the ICA shall be
applicable.

The Delhi High Court has ruled that in the absence of a contractual provisions
allowing suspension, if a tenant invokes equitable jurisdiction of the Court on account
of temporary inability to use the premises, facts and circumstance in each case will
have to be looked at in determining whether a tenant is entitled to any relief by way
of suspension of rent.

The Delhi High Court has also clarified that Section 108 of TPA (which embodies the
Doctrine of Frustration) will govern tenancies and leases in the absence of force
majeure clauses in lease deeds (T. Lakshmipathi v. P. Nithyananda Reddy (2003) 5
SCC 150). The remedy in Section 108 of TPA is for treating the lease as void at the
option of the lessee if events contemplated therein occur. Under no circumstances can
one take recourse to Section 108 of TPA to make a case for suspension of rent.

Relevant Paragraphs

19

“12. In circumstances such as the outbreak of a pandemic, like the current COVID-19
outbreak, the grounds on which the tenants/lessees or other similarly situated parties
could seek waiver or non-payment of the monthly amounts, under contracts which
have a force majeure clause would be governed by Section 32 of the Indian Contract
Act, 1872.

13. `Force Majeure’ is defined by Black’s Law Dictionary as “an event or effect that
can be neither anticipated nor controlled”. As per the dictionary, “The term includes
both acts of nature (e.g. floods and hurricanes) and acts of people (e.g. riots, strikes
and wars)”.

14. The Supreme Court in Energy Watchdog v. CERC & Ors., (2017) 14 SCC 80 has
clearly held that in case the contract itself contains an express or implied term
relating to a force majeure condition, the same shall be governed by Section 32 of the
ICA. Section 56 of the ICA, which deals with impossibility of performance, would
apply in cases where a force majeure event occurs outside the contract. The Supreme
Court observed:

“34. “Force majeure” is governed by the Contract Act, 1872. Insofar as it is

relatable to an express or implied clause in a contract, such as the PPAs
before us, it is governed by Chapter III dealing with the contingent
contracts, and more particularly, Section 32 thereof. Insofar as a force
majeure event occurs dehors the contract, it is dealt with by a rule of
positive law under Section 56 of the Contact Act.”

Thus, in agreements providing for a force majeure clause, the Court would examine
the same in the light of Section 32. The said clause could be differently worded in
different contracts, as there is no standard draft, application or interpretation. The
fundamental principle would be that if the contract contains a clause providing for
some sort of waiver or suspension of rent, only then the tenant could claim the same.
The force majeure clause in the contract could also be a contingency under Section
32 which may allow the tenant to claim that the contract has become void and
surrender the premises. However, if the tenant wishes to retain the premises and there

20

 is no clause giving any respite to the tenant, the rent or the monthly charges would be
payable.

26. Finally, in the absence of a contract or a contractual stipulation, as in the present

case, the tenant may generally seek suspension of rent by invoking the equitable
jurisdiction of the Court due to temporary non-use of the premises. The question as to
whether the suspension of rent ought to be granted or not would depend upon the
facts and circumstances of each case as held by the Supreme Court in Surendra Nath
Bibran v. Stephen Court, AIR 1966 SC 1361. In the said case, the Court directed
payment of proportionate part of the rent as the tenant was not given possession of a
part of the property.

Other Notable Cases

Sangeeta Batra v M/s VND Foods, (2015) 3 DLT (Cri) 422

The High Court held that the fact that the lease premises, intended to be run as a
restaurant, was sealed is of no relevance as the tenants did not choose to terminate the
lease. It was held that unless the lessee terminates the lease, the obligation contained
under section 108(b) cannot be avoided. In view of the settled legal position, the High
Court, in this judgment, held that, for a lessee to seek protection under section 108(b)
(e) of the TPA, there has to be a complete destruction of the property, which is
permanent in nature, due to the force majeure event. In this case, the High Court
observed that section 32 of the ICA did not have applicability despite an implied term
relating to a force majeure condition.

Therefore, the Delhi High Court relied on the aforesaid case and took the view that
temporary non-use of a premises on account of lockdown which was announced due
to the outbreak of Covid-19, cannot be construed as rendering the lease void under
the TPA and therefore a tenant cannot waiver payment of rent. This decision further
reinforces the legal position in India, that is, the grant of protection of force majeure
would be governed as per the provisions of each contract and shall differ on a case-
to-case basis.

21

 Standard Retail Pvt Ltd v M/s G S Global Corp, Commercial Arbitration Petition (L)
Nos 404 of 2020

In a recent judgment of the Bombay High Court, the court denied relief to a party
seeking protection of force majeure on account of the Covid-19 outbreak and
specifically stated the lockdown cannot come to the rescue of the petitioners so as to
resile from their contractual obligations of making payments. The order also stated
that the fact that the petitioner had suffered damages is also not a factor which can be
considered and held against the respondent.

Conclusion: The research was considered relevant and adequate and was used to
draft a consultation note for one Mr. Punit Gupta. It was concluded that even upon
occurrence of the force majeure event, the lessee cannot seek suspension or waiver of
rent but can only terminate the contract, unless otherwise is specified in the contract.
In the case at hand, since the client had been living at the lease premises continuously
during the premises, he could not seek relief under grounds of Covid-19 as force
majeure.

22



 Task 4:

WORK ALLOTTED: Research Work: Delays in Construction Contracts with

respect to Liquidated Damages

DATE ON WHICH IT IS ASSIGNED: 13/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Indian Contract Act, 1860

2) Arbitration and Conciliation Act, 1996

3) SccOnline.com

4) casemine.com

5) Mondaq.com

RESEARCH:

In the matter at hand, the suit was progressing before Hon’ble Delhi High Court
before the bench headed by Justice Suresh Kumar Kait in the matter of Mr. Uday
Gupta v Emaar MGF Land Ltd, Arb. Petition 436/2021.

The Arbitration Petition was against an Arbitration Award passed against the
Petitioner. The same was challenged under Section 34 of the ACA on the ground that
the enforcement of the award would be contrary to Indian public policy. It was also
alleged that the award is in contravention with the most basic notions of the morality
or justice.

In the present case, the Arbitral tribunal had refused to award any liquidated damages
on the ground.

Some cases on the issue:

1) ONGC Vs SAW Pipes, (2003) 5 SCC 705

23

 Facts of the Case:

Respondent Company Saw Pipes which dealt in the business of supply of

equipment for offshore exploration of oil entered an agreement with the
appellant ONGC to supply them with casing pipes. Due to the reason for
worker’s strike all over Europe at that time, the raw material which was agreed
by them, could not be acquired by the respondent in time to complete the order.
This had been conveyed by the respondent to the appellant and the appellant in
response to it extended the delivery date stipulating that the amount equivalent
to liquidated damages for delay in supply of pipes would be recovered from the
respondent. There was a clause in the contract that stated – for delay of every
week the contractor will be charged 1% of the whole unit price of the order or
the part which the contractor has failed to deliver and these liquidated damages
can be recovered up to the ceiling limit of 10% of the whole price of the unit. It
has also been agreed by the parties that the stipulated liquidated damages are
genuine, pre-estimated, not in the form of penalty, and can be deducted from the
bill of the payment.

Respondent had caused the delay and when the appellant withheld the US $ 3,
04,970.20 and Rs. 15, 75,559/- on account of customs duty, freight charges, sale
tax by way of liquidated damages. The respondent disputed the deduction and
the dispute was referred to the Arbitral tribunal. The Arbitral tribunal passed the
award in favour of Respondent. Aggrieved by this Appellant filed an appeal
challenging the arbitral award before the Bombay High Court which was
dismissed and hence the present appeal was filed in Supreme Court.

Issues:

1. Whether the Supreme Court has jurisdiction under Section 34 of the

Arbitration and Conciliation Act, 1996 to entertain the present appeal?

2. Whether the award can be set aside if the tribunal has failed to follow the
procedure prescribed under the Arbitration and Conciliation Act, 1996?

24

 Judgement

The court held that the decision of the arbitral tribunal led to the violation of the
Indian Contract Act, 1872 as it failed to consider Sections 73 and 74 of the
Indian Contract Act and the ratio laid down in Fateh Chand v. Balkishan Das
and passed the decision in favor of Saw Pipes on the grounds that ONGC did not
prove the loss suffered due to the breach even though the contract stipulated the
liquidated damages. The Hon’ble Court relied on Fateh Chand’s decision
wherein it was specifically held that jurisdiction of the Court to award
compensation in case of breach of contract is unqualified except as to the
maximum stipulated, and compensation has to be reasonable.

Under Section 73, when a contract has been broken, the party who suffers from
such breach is entitled to receive compensation for any loss caused to him which
the parties knew when they made the contract to be likely to result from the
breach of it. This section is to be read with Section 74, which deals with penalty
stipulated in the contract, inter alia [relevant for the present case] provides that
when a contract has been broken, if a sum is named in the contract as the
amount to be paid in case of such breach, the party complaining of breach is
entitled, whether or not actual loss is proved to have been caused, thereby to
receive from the party who has broken the contract reasonable compensation not
exceeding the amount so named. If the compensation named in the contract is by
way of penalty, consideration would be different and the party is only entitled to
reasonable compensation for the loss suffered. But if the compensation named in
the contract for such breach is the genuine pre- estimate of loss which the parties
knew when they made the contract to be likely to result from the breach of it,
there is no question of proving such loss or such party is not required to lead
evidence to prove the actual loss suffered by him

Relevant Paragraph

“331. From the aforesaid discussions, it can be held that:-

25

 (1) Terms of the contract are required to be taken into consideration before
arriving at the conclusion whether the party claiming damages is
entitled to the same;

(2) If the terms are clear and unambiguous stipulating the liquidated
damages in case of the breach of the contract unless it is held that such
estimate of damages/compensation is unreasonable or is by way of
penalty, party who has committed the breach is required to pay such
compensation and that is what is provided in Section 73 of the Contract
Act.

(3) Section 74 is to be read along with Section 73 and, therefore, in every

case of breach of contract, the person aggrieved by the breach is not
required to prove actual loss or damage suffered by him before he can
claim a decree. The Court is competent to award reasonable
compensation in case of breach even if no actual damage is proved to
have been suffered in consequences of the breach of a contract.

(4) In some contracts, it would be impossible for the Court to assess the
compensation arising from breach and if the compensation
contemplated is not by way of penalty or unreasonable, Court can
award the same if it is genuine pre-estimate by the parties as the
measure of reasonable compensation.

For the reasons stated above, the impugned award directing the appellant to
refund the amount deducted for the breach as per contractual terms requires to
be set aside and is hereby set aside.

2) Mcdermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181

The Court reiterated the supervisory role of the court in the arbitration proceeding,
where intervention should happen only in cases of fraud or bias. The appellants raised
objections to the authenticity of certain documents produced by the respondent in

26

front of the arbitrator but subsequently failed to ask for court assistance in taking
evidence, therefore waiving off that right.

Relevant Paras

“31. We, therefore, are of the opinion that in the instant case the second part of
Section 55 of the Indian Contract Act would be attracted and not the first part.

Whether time was the essence of contract, the question which, further, arises for
consideration is as to whether the Respondents having proceeded on the basis that
time was of the essence of the contract, it was bound to issue a notice of repudiating
the contract subject to reservation as regards its claim of damages. MII, however,
states that it had never raised a contention that the time was of the essence of the
contract, but the claim arises in view of the delay caused in completion of the
contract for a period of 34 months and consequent escalation of costs. The price
payable in terms of the sub-contract did not adequately cover increased costs
expended by MII. On a plain reading of the provisions of Section 55 of the Indian
Contract Act, it is evident that as the parties did not intend that time was to be of the
essence of the contract on the expiry whereof the contract became voidable at the
instance of one of the parties, but by reason thereof the parties shall never be
deprived of damages.

We may notice that the BSCL had never pleaded before the Arbitrator that the time
was of the essence of the contract. In Construction contracts generally time is not of
the essence of the contract unless special features exist therefor. No such special
features, in the instant case, has been brought to our notice.

The learned arbitrator proceeded on the basis that the BSCL had accepted and
acknowledged that no additional cost on account of delay was occasioned in
completing the helidecks. MII is found to have incurred additional cost for offshore
installation. The learned arbitrator has also found that MII had not received any
payment on account of such increased cost. The compensation under the said head of

27

 claim was only in addition to Change Order Nos. 2,3 and 7 to which we shall advert
to a little later.

This Court in Hind Construction v. State of Maharashtra [(1979) 2 SCC 70] stated:

"7. The question whether or not time was of the essence of the contract would
essentially be a question of the intention of the parties to be gathered from the terms
of the contract. [See Halsbury's Laws of England, 4th ed., Vol.4, para 1179].”

"8. Even where the parties have expressly provided that time is of the essence of the
contract such a stipulation will have to be read along with other provisions of the
contract and such other provisions may, on construction of the contract, exclude the
inference that the completion of the work by a particular date was intended to be
fundamental. [See Lamprell v. Billericay Union (19849) 3 Exch 283, 308; Webbv.
Hughes (1870) LR 10 Eq 281; Charles Rickards Ltd. v. Oppenheim (1950) 1 KB
616].””

52. The 1996 Act makes provision for the supervisory role of courts, for the review of
the arbitral award only to ensure fairness. Intervention of the court is envisaged in
few circumstances only, like, in case of fraud or bias by the arbitrators, violation of
natural justice, etc. The court cannot correct the errors of the arbitrators. It can
only quash the award leaving the parties free to begin the arbitration again if it
desired. So, the scheme of the provision aims at keeping the supervisory role of the
court at minimum level and this can be justified as parties to the agreement make a
conscious decision to exclude the court’s jurisdiction by opting for arbitration as they
prefer the expediency and finality offered by it.”

3) New India Assurance v Genus Power Infrastructure Ltd., (2015) 2 SCC 424

The Court delved upon the tenability of the claim by the respondent claimant which
said that they had signed the letter due to extreme financial difficulties, under duress,
coercion and undue influence exercised by the appellant. The Court observed that the
plea raised by the respondent was bereft of details and particulars; it was a mere
assertion because the respondent did not protest when the letter was signed and issued

28

notice after three weeks. The Court opined that if it is found that such plea is an
afterthought or lacks credibility, then the matter should be put to rest there and then.
The Court also observed that the financial position of the respondent was not so
precarious that they would have had to sign under undue influence. Thus, it was held
that the claim was settled voluntarily and free from coercion and that no arbitrable
dispute existed between the parties.

Relevant Paras

“8. It is therefore clear that a bald plea of fraud, coercion, duress or undue influence
is not enough and the party who sets up a plea, must prime facie establish the same
by placing material before the Chief Justice/his designate. Viewed thus, the relevant
averments in the petition filed by the respondent need to be considered, which were
to the following effect:- "(g) That the said surveyor, in connivance with the
Respondent Company, in order to make the Respondent Company escape its full
liability of compensating the Petitioner of such huge loss, acted in a biased manner,
adopted coercion undue influence and duress methods of assessing the loss and
forced the Petitioner to sign certain documents including the Claim Form. The
Respondent Company also denied the just claim of the Petitioner by their acts of
omission and commission and by exercising coercion and undue influence and made
the Petitioner Company sign certain documents, including a pre-prepared discharge
voucher for the said amount in advance, which the Petitioner Company were forced
to do so in the period of extreme financial difficulty which prevailed during the said
period. As stated aforesaid, the Petitioner Company was forced to sign several
documents including a letter accepting the loss amounting to Rs.6,09,55,406/- and
settle the claim of Rs.5,96,08,179/- as against the actual loss amount of
Rs.28,79,08,116/- against the interest of the petitioner company. The said letter and
the aforesaid pre-prepared discharge voucher stated that the petitioner had accepted
the claim amount in full and final settlement and thus, forced the petitioner company
to unilateral acceptance the same. The petitioner company was forced to sign the said
document under duress and coercion by the Respondent Company. The Respondent
Company further threatened the petitioner Company to accept the said amount in full

29

and final or the Respondent Company will not pay any amount toward the fire policy.
It was under such compelling circumstances that the petitioner company was forced
and under duress was made to sign the acceptance letter.”

9. In our considered view, the plea raised by the respondent is bereft of any details
and particulars, and cannot be anything but a bald assertion. Given the fact that there
was no protest or demur raised around the time or soon after the letter of subrogation
was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and
that the financial condition of the respondent was not so precarious that it was left
with no alternative but to accept the terms as suggested, we are of the firm view that
the discharge in the present case and signing of letter of subrogation were not because
of exercise of any undue influence. Such discharge and signing of letter of
subrogation was voluntary and free from any coercion or undue influence. In the
circumstances, we hold that upon execution of the letter of subrogation, there was full
and final settlement of the claim. Since our answer to the question, whether there was
really accord and satisfaction, is in the affirmative, in our view no arbitrable dispute
existed so as to exercise power under section 11 of the Act. The High Court was not
therefore justified in exercising power under Section 11 of the Act.

30



 Task 5:

WORK ALLOTTED: Research on the issue: Whether an agent which entered into
an agreement on behalf of the Principal can be struck off from the memo of parties
with respect to S. 230 of ICA and ACA, and whether a Non-Joinder of a necessary
party can be Fatal to the suit?

DATE ON WHICH IT IS ASSIGNED: 16/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Indian Contract Act, 1860

2) Arbitration and Conciliation Act, 1996

3) SccOnline.com

4) casemine.com

5) Mondaq

6) Legalserviceindia.com

RESEARCH:

On the research issue at hand, there was a dispute between GAIL and Beta Infratech
that was before the Arbitral Tribunal headed by Retd. Justice Kailash Gambhir. Beta
had signed a non-binding term sheet with GAIL for supply of gas to Beta Power
Plant. It was also noted that the Gas will be sourced from Vasai Gas fields which is
under the control of ONGC. It was a subtle understanding that GAIL was
representing the interests of ONGC in an agent-principal relationship.

However, Beta was not able to get gas from ONGC since the Vasai Gas fields were
allocated by the Government of India for some other purpose therefore the Beta
Power Plant could not be commissioned in time leading to losses for Beta.

31

Beta therefore sued GAIL on the grounds that it had to provide gas to Beta as per the
rate decided in the term-sheet.

GAIL was arguing that since it was only an agent in this contract, Beta should have
filed ONGC as well in the memo of parties. The research pertained to this issue.

On the first issue:

1. Vivek Auto v Indian Inc, 2005 SCC OnLine SC 1585

“8. Section 230 of the Contract Act categorically makes it clear that an agent is
not liable for the acts of a disclosed principal subject to a contract to the
contrary. No such contract to the contrary has been pleaded. An identical issue
was considered by this Court in Marine Container Services South Pvt. Ltd. v. Go
Go Garments. 1998 3 SCC 247 where a similar order passed under the
Consumer Protection Act was set aside by this Court. It was held that by virtue
of Section 230 the agent could not be sued when the principal had been
disclosed.”

2. Raj v VSNL, 2004 SCC OnLine Del 548

“6. A reading of Section 230 of the Indian Contract Act, 1872 will clarify that
RITES is not a necessary party in these proceedings as it enunciates that in the
absence of any contract to that effect an agent cannot personally enforce
contracts entered into by him on behalf of his principal, nor is he personally
bound by them. Sections 231 and 232 carves out a pragmatic and mercantile
exception in that if the agent has not disclosed his principal, or if the principal is
not learnt of during the performance of the contract, the agent may be proceeded
against independently. The position in this Suit has been complicated by RITES'
demand for arbitration of disputes through the aegis of arbitration vis-a-vis
VSNL and itself. RITES has also disclosed the existence of the Arbitration
Clause between the Plaintiffs and VSNL. It is in this factual matrix that the
Plaintiffs now pray that the disputes be referred to arbitration. However, learned
counsel for VSNL contends that the disputes cannot be referred to arbitration
and that they must necessarily be adjudicated by this Court in this civil action.

32

 7. IA No. 217/2002 is an application filed on behalf of RITES under Section 8 of

The Arbitration & Conciliation Act, 1996 filed on 4.1.2002 praying for a
direction against the Plaintiff to refer the disputes to arbitration. The Plaintiffs in
its Reply has firstly submitted that the application is not maintainable but has
thereafter recorded that it has no objection to the matter being referred to the
arbitration. IA No. 8752/2002 is the second application filed by RITES under
Section 8 of the Arbitration & Conciliation Act, 1996 filed on 23.9.2002 praying
for a direction against Defendant No. 1 to refer the disputes to arbitration. This
application has been contested by VSNL, which had filed its Written Statement
also containing a Counter Claim for a sum of Rs. 30,14,256/- on 20.3.2002. I am
of the view that even RITES is not a necessary or proper party to the present
Suit and it is, therefore, struck off from the array of parties. Being an agent of
VSNL, RITES cannot, in law, enforce the terms of the Contract which it had
entered into as an agent, especially in view of the presence of its principal,
VSNL. If it has any claim or disputes between itself and its principal, namely,
VSNL, it must file a separate action. The result is that both the applications,
bearing No. 217/2002 and 8752/2002, are dismissed as not maintainable.”

3. Rites v Shabir Ahmed & Sons, 2010 SCC OnLine Del 463

8. The Award in this case in spite of the Governor of U.P. being made a party,
has been passed against the petitioner/RITES/agent whereas the owner of the
work is admittedly the Director U.P. Technical Education Department,
Rawatpur, Kanpur through Governor of U.P., respondent No.2 in the present
case.

9. In my opinion, the Award is therefore wholly illegal and needs to be modified

in terms of the law under Section 34 of the Arbitration and Conciliation Act,
1996. I, therefore, while sustaining the Award with respect to the relevant
findings given therein order that the Award will be an Award against the
respondent No.2 i.e. the Director U.P. Technical Education Department,
Rawatpur, Kanpur through Governor of U.P. and not against the present
petitioner. Respondent No.2 obviously has not in any manner challenged the
33

 Award or filed any objections thereto and none has appeared for the respondent
No.2 during the course of hearing of the present objections.

10. With the aforesaid observations, the objection petition is allowed and
disposed of to the extent mentioned above by modification of the Award, leaving
the parties to bear their own costs.”

On the second issue as to whether non-joinder of a necessary party may be fatal to the
suit or not, the answer was found in the affirmative.

In the case of Khetrabasi Biswal vs. Ajay Kumar Baral, (2004) 1 SCC 317

“125. It has been held that non-joinder of a necessary party goes to the root of the
matter and violates the principle of audi alteram partum. It has been held that an order
issued against a person without impleading him as a party, and thus, without giving
him an opportunity of hearing must be held to be bad in law. (Ref :(1984) 4 SCC 251
Prabodh Verma vs. State of U.P.; (2004) 2 SCC 76 at para 27 Ramrao vs. All India
Backward Class Bank IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 67
Employees Welfare Assn.; (2010) 10 SCC 707 Girjesh Shrivastava & Ors. vs. State of
Madhya Pradesh & Ors.).”

Conclusion: The research I provided improved the arguments before the Learned
Arbitrator. However, in the hearing of the tribunal in the present case, the Arbitral
Tribunal gave Beta the freedom to add ONGC as a party as well which was done by
Beta.

34



 Task 6:

WORK ALLOTTED: Research Work: Court has no powers to direct collection of

blood samples.

DATE ON WHICH IT IS ASSIGNED: 23/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Criminal Procedure Code, 1973

2) Indian Evidence Act, 1872

3) Constitution of India

4) Code of Civil Procedure

5) SccOnline.com

6) casemine.com

7) LiveLaw.in

8) Legalserviceindia.com

RESEARCH:

On the research issue at hand, I was asked to find out cases wherein it had been held
that the court had no power to direct collection of blood samples. I was also asked to
find out cases against the preposition.

1. Goutam Kundu v. State of W.B., (1993) 3 SCC 418

“26. From the above discussion it emerges—

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.
35

 (3) There must be a strong prima facie case in that the husband must establish non-
access in order to dispel the presumption arising under Section 112 of the
Evidence Act.

(4) The court must carefully examine as to what would be the consequence of
ordering the blood test; whether it will have the effect of branding a child as a
bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

[Distinguished in Sharda v. Dharmpal, (2003) 4 SCC 493, para 39]

2. Sharda v. Dharmpal, (2003) 4 SCC 493

“78. At this stage we may observe that taking of a genetic sample without consent
may in some countries e.g. Canada be viewed as a violation of the persons physical
integrity although the law allows such forced taking of sample. But even this practice
was held to be valid when the sample is collected by a health care professional.
Collecting samples from the suspects for DNA tests in some countries have not been
found to be violative of right of privacy.

80. The matter may be considered from another angle. In all such matrimonial cases
where divorce is sought, say on the ground of impotency, schizophrenia....etc.
normally without there being medical examination, it would be difficult to arrive at a
conclusion as to whether the allegation made by his spouse against the other spouse
seeking divorce on such a ground, is correct or not. In order to substantiate such
allegation, the petitioner would always insist on medical examination. If respondent
avoids such medical examination on the ground that it violates his/her right to privacy
or for a matter right to personal liberty as enshrined under Article 21 of the
Constitution of India, then it may in most of such cases become impossible to arrive
at a conclusion. It may render the very grounds on which divorce is permissible
nugatory. Therefore, when there is no right to privacy specifically conferred
by Article 21 of the Constitution of India and with the extensive interpretation of the
phrase "personal liberty" this right has been read into Article 21, it cannot be treated

36

as absolute right. What is emphasized is that some limitations on this right have to be
imposed and particularly where two competing interests clash. In matters of aforesaid
nature where the legislature has conferred a right upon his spouse to seek divorce on
such grounds, it would be the right of that spouse which comes in conflict with the
so-called right to privacy of the respondent. Thus the Court has to reconcile these
competing interests by balancing the interests involved.

81. If for arriving at the satisfaction of the Court and to protect the right of a party to
the lis who may otherwise be found to be incapable of protecting his own interest, the
Court passes an appropriate order, the question of such action being violative
of Article 21 of the Constitution of India would not arise. The Court having regard
to Article 21 of the Constitution of India must also see to it that the right of a person
to defend himself must be adequately protected.

82. It is, however, axiomatic that a Court shall not order a roving inquiry. It must
have sufficient materials before it to enable it to exercise its discretion. Exercise of
such discretion would be subjected to the supervisory jurisdiction of the High Court
in terms of S. 115 of the Code of Civil Procedure and/or Article 227 of the
Constitution of India. Abuse of the discretionary power at the hands of a Court is not
expected. The Court must arrive at a finding that the applicant has established a
strong prima facie case before passing such an order.

83. If despite an order passed by the Court, a person refuses to submit himself to such
medical examination, a strong case for drawing an adverse inference would be made
out. S. 114 of the Indian Evidence Act also enables a Court to draw an adverse
inference if the party does not produce the relevant evidences in his power and
possession.”

3. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

“14. …The trial court erroneously held that the documents produced by the
respondents were not sufficient or relevant for the purpose of adjudication and DNA
test was conclusive. This is not a correct view. It is for the parties to place evidence in

37

support of their respective claims and establish their stands. DNA test is not to be
directed as a matter of routine and only in deserving cases such a direction can be
given, as was noted in Goutam Kundu case [(1993) 3 SCC 418 : 1993 SCC (Cri) 928]
. Present case does not fall in that category. The High Court's judgment does not
suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not
expressed any opinion on the merits of the case relating to succession application.”

4. Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

“23. There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs.
State of West Bengal (1993) 3 SCC 418 and Sharda vs. Dharmpal (2003) 4 SCC 493.
In Goutam Kundu, it has been laid down that courts in India cannot order blood test
as a matter of course and such prayers cannot be granted to have roving inquiry; there
must be strong prima facie case and the court must carefully examine as to what
would be the consequence of ordering the blood test. In Sharda, while concluding that
a matrimonial court has power to order a person to undergo a medical test, it was
reiterated that the court should exercise such a power if the applicant has a strong
prime facie case and there is sufficient material before the court. Obviously,
therefore, any order for DNA test can be given by the court only if a strong prima
facie case is made out for such a course.”

The above mentioned cases were the ones wherein the Court directed the collection
of blood samples. The cases mentioned below are the ones wherein the court
digressed from the above said cases.

1. Salauddin v. State of Haryana, 2009 SCC OnLine P&H 10318

“18. It is, therefore, beyond doubt that where investigation involves the collection of
evidence that can be gathered from the “examination” of the person of an accused, a
court would be entitled to issue a direction in terms of Section 53 of the Code i.e.
38

direct the medical officer concerned to extract a blood sample by use of such
reasonable force, as may be necessary in the circumstances of a case. It would be
necessary to mention here that a D.N.A. examination is a significant tool in the
armory of the investigation agency, as Section 53 of the Code permits the use of
reasonable force in collecting any evidence from the person of an accused. A
direction therefore, issued by a court directing an accused to furnish his blood sample
and simultaneously directing the use of a reasonable force would not violate Article
20(3) or Article 21 of the Constitution of India.”

2. Sanjeev Nanda v. State of NCT of Delhi, 2007 SCC OnLine Del 859

“24. The judgments reported as Anil Anantrao Lokhande v. The State of

Maharashtra, 1981 Cr. L.J. 125; Jamshed v. State of UP, 1976 Cr LJ 1680
(All); Swati Lodha v. State of Rajasthan, 1991 Cr. LJ 939 (Raj) have held that an
accused can be asked to give blood sample by the Court, in the course of an inquiry
or trial. It has also been held that even an accused on bail would fall within the
mischief of that provision; the Court has powers to require sub mission of such
samples. In Thogirani's case (2004 Cri LJ 4003) (supra) it was held that though
Section 53 of the Code refers to ex amination of the accused by a medical
practitioner, at the request of a police officer, there is no reason why the Court should
not have a wider power for the purpose of doing justice in criminal cases by issuing a
direction to the police officer to collect blood sample from the accused and conduct
DNA test.”

Conclusion: Cases found above aided in improving the compilation of cases and
were used in argument before the court.

39

 Task 7:

WORK ALLOTTED: Drafting List of Dates and Grounds for Bail before the
Hon’ble Delhi High Court in a rape case

DATE ON WHICH IT IS ASSIGNED: 27/08/2021

IS IT CONTINUING WORK: NO

TOOLS USED IN RESEARCH:

1) Criminal Procedure Code, 1973

2) Indian Evidence Act, 1872

3) Indian Penal Code, 1860

4) Code of Civil Procedure

5) SccOnline.com

6) casemine.com

7) LiveLaw.in

RESEARCH:

Brief facts:

Kavita Rani i.e., the Prosecutrix/Complainant, is a married woman working in a

Beauty parlour. The Appellant/Accused met her in 2018 for some job. In May 2018,
they went to one Blue Diamond Hotel and committed Sexual Intercourse, and took
pictures of her. After that, he began threatening her that he will tell the same to her
husband.

On this pretext, he continuously forced her to have sex with him. On the date of the
incident, the Accused repeatedly called her but when she didn’t answer, he rushed to
her home and began to pressurise her that if she doesn’t go with him, he will tell
about the affair to her husband. Thereafter, he forcibly took her to one Ashiyana
40

Guest House (Blue Diamond) where he had forcibly committed sexual intercourse
with her, and then beat her. After she returned home, she told everything to her (the
accused told everything to her husband pg 40) who abandoned her and her children.
She stated the same in her statement U/S 164 CRPC.

On 12.12.2020, she went to the Adarsh Nagar Police Station to file a FIR, bearing no.
296/2020, against the accused U/S 376/509. The accused was promptly arrested on
the next day, that is, 13-12-2020 and has been languishing in the Judicial Custody
ever since.

Previously, five applications for Regular Bail have been moved by the Accused on
13.01.2021, 31.03.2021, 26.04.2021, 09.06.2021 and 29.07.2021. However, they
have been dismissed on merit by the LD. ASJ.

List of Dates

12.12.2020 FIR registered U/S 376/506 IPC bearing No. 796/2020 at Adarsh
Nagar for incident on 09.12.2020. On the date of the incident,
after having sexual intercourse, the Appellant beat the Prosecutrix
and then threatened to tell everything to her Husband. And after
three days of the incident, FIR was lodged regarding the same.
(Annexure B Pg. 22-42)
13.12.2020 Medical Examination of the Prosecutrix was conducted where she
refused internal checkup. Furthermore, there was no external sign
of injury in her body. (Annexure C Pg. 43-48)

13.12.2020 Statement of the Prosecutrix U/S 164 CrPC was recorded wherein
the Prosecutrix made contradictory statement. (Annexure D Pg.
49-54)
04.02.2021 Chargesheet in the instant matter was filed. (Annexure G Pg.
101-122)
09.06.2021 Fourth Bail Application of the Applicant was dismissed by the
Hon’ble Court of Sh. Jagdish Kumar Ld. ASJ: Special FTC
(North) Rohini Courts, Delhi.
29.07.2021 Fifth Bail Application of the Applicant was dismissed by LD.
ASJ. (Annexure A Pg. 14-21)

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 Grounds for Bail argued:

1. The case does not stand its grounds. There is no evidence, just a prosecutrix’s
statement and that too filled with inconsistencies.

2. Firstly, there is no medical evidence since the prosecutrix refused to undergo

internal examination.

3. Secondly, her statement is filled with contradictions: She is confused with the
venue of occurrence. On pg 14 and 41, Ashiyana Guest House is mentioned.
However, in the FIR, venue mentioned is Blue Diamond. On the multiple
statements that she gave, she contradicted herself in one of the same statements.
On pg. 64, she mentioned both the hotels as the date of occurrence of the event.

4. She again contradicted herself, on Pg. 40, when she stated that the accused told all
the details of to her Husband. But on previous occasions, she said that it was she
who had told everything to her husband.

5. Furthermore, she doesn’t remember the room number or even the floor of the
hotel.

6. Sonu (pg. 78), who runs the Ashiyana hotel, stated that he gave rooms to both of
them on five previous occasions but only after taking valid IDs and maintaining
the same in the register. Interestingly, he did not take their IDs or mention on the
register for allotment of the room on the date of the incident. Furthermore, no
camera recordings are available for the date of the incident.

7. Sanjay (pg 82), who runs the Blue Diamond hotel, although verified that he made
an entry by both their names on 24.06.2018, but no records are available for the
same. There are also no statement/records regarding the date of incident.

8. After an RTI (pg ___) was filed to verify whether a call to 100 number has been
made by the Prosecutrix or not. The RTI revealed that no call was received by the
PCR from her number.

9. It is respectfully submitted that the Ld. ASJ erred in dismissed the previous bail
applications vide order dt. 13.01.2021, 31.03.2021, 26.04.2021, 09.06.2021 and

42

 29.07.2021(Impugned Order). The main contention of the ASJ to refuse bail has
solely been that the offence is one of a serious nature.

10. It is submitted that India’s criminal system is based on the cardinal principle of
“Innocent until proven guilty”. The principle holds true even in cases where
serious offences are involved. In Ghurey Lal v. State Of Uttar Pradesh, (2008) 10
SCC 450, the Supreme Court has held that the accused is presumed innocent until
proven guilty. Presumption of innocence is in favour of the accused person. In the
case where the nature of injury, medical evidence and other circumstances are
doubtful, benefit of doubt has to be given to the accused

11. Keeping the accused in jail is mainly for the purpose of investigation, in case the
accused is not cooperating, and to secure attendance of the accused, not for the
purposes of incarceration. It was also held in the case of Rajesh Kumar Mehta V.
State of Uttarakhand, 2020 wherein the Uttarakhand High Court stated that:

“9. The object of keeping the accused person in detention during the
investigation is not punishment. The main purpose is manifestly to secure the
attendance of the accused. Bail is the rule and the committal to jail is an
exception. Refusal of bail is a restriction on the personal liberty of the
individual, guaranteed under Article 21 of the Constitution of India. In the case
of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694,
the Hon'ble Apex Court has observed that the personal liberty is very precious
fundamental right and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case.”

12. It is submitted that bail can only be rejected on notable and established grounds
such as: (a) tampering of witness/evidence, (b) fleeing justice or if a (c) prima
facie case is made out against the accused.

13. In the present case, on the first ground, there is no possibility that the accused
could influence witnesses or tamper evidence. He is neither financially influential
nor politically connected. Moreover, the accused has never, on any previous
occasion, been tried for any criminal offence before. Lastly, it could not be

43

 suggested that the Police and other investigating officers could be swayed by the
accused’s influence. In the case of Ashok Kumar v. State of Punjab, 2018, the
Punjab & Haryana High Court while granting Bail to an accused said that:

“5. In view of the submissions made by learned counsel for the petitioner and by
considering that the petitioner is in custody since 05.12.2017; the trial may take
time to conclude; no purpose would be served by keeping the petitioner in
custody and all witnesses are officials witnesses and there is no possibility that
the petitioner may influence the witnesses or tamper with the evidence, the
present petition is allowed and the petitioner (Ashok Kumar) is directed to be
released on regular bail subject to his furnishing bail/surety bonds to the
satisfaction of the trial Court.”

14. On the Second ground, the accused has a name and reputation in the local areas.
His friends and family all reside in the same area. The accused does not have any
financial resources to run away. More so, it is pertinent to mention, that the
accused does not have a history of fleeing justice. As in the case of Gurcharan
Singh v.Delhi Admn.,1978 1 SCC 118, the Supreme Court cleared the Bail Law of
India. It stated that:

“24. Section 439(1) CrPC of the new Code, on the other hand, confers special
powers on the High Court or the Court of Session in respect of bail. Unlike
under Section 437(1) there is no ban imposed under Section 439(1) CrPC
against granting of bail by the High Court or the Court of Session to persons
accused of an offence punishable with death or imprisonment for life. It is,
however, legitimate to suppose that the High Court or the Court of Session will
be approached by an accused only after he has failed before the Magistrate and
after the investigation has progressed throwing light on the evidence and
circumstances implicating the accused. Even so, the High Court or the Court of
Session will have to exercise its judicial discretion in considering the question of
granting of bail under Section 439(1) CrPC of the new Code. The overriding
considerations in granting bail to which we adverted to earlier and which are
common both in the case of Section 437(1) and Section 439(1) CrPC of the new
44

 Code are the nature and gravity of the circumstances in which the offence is
committed; the position and the status of the accused with reference to the victim
and the witnesses; the likelihood, of the accused fleeing from justice; of
repeating the offence; of jeopardising his own life being faced with a grim
prospect of possible conviction in the case; of tampering with witnesses; the
history of the case as well as of its investigation and other relevant grounds
which, in view of so many valuable factors, cannot be exhaustively set out.”

15. On the third ground, the entire case made against the accused is baseless,
fabricated and false. As stated above, there are numerous contradictions in the
statement of the Prosecutrix. There is not even a tiny shred of medical evidence to
prove that the accused had committed the offence or that the offence had been
committed on the Prosecutrix. Furthermore, there is no record of the Accused and
the Prosecutrix entering or booking a room in either Hotel Ashiyana or Blue
Diamond on the date of the incident. It goes on to showcase that no prima facie
case is made out against the accused. The Supreme Court in Sushila Aggarwal vs
State (NCT Of Delhi), 2020 also elaborated on this point. It held that:

“3.4 Taking us to the recommendations in the 41st Report of the Law

Commission and the observations made in the Report of the Committee on
Reforms of the Criminal Justice system, headed by Dr. Justice V.S. Malimath, it
is submitted by Shri Vishwanathan that Section 438 is a check on the power of
arrest of the police. It is submitted that as stated in the above Law Commission
Report, it is a check not only against false cases, but also in cases where the
need to arrest does not arise.

7.2 (6) The discretion under Section 438 cannot be exercised with regard to
offences punishable with death or imprisonment for life unless the court at that
very stage is satisfied that such a charge appears to be false or groundless.

(8) Mere general allegations of mala fides in the petition are inadequate. The
court must be satisfied on materials before it that the allegations of mala fides
are substantial and the accusation appears to be false and groundless.”

45

16. It is lastly stated that the chargesheet has been filed against the accused and all the
investigation against him stand completed. Therefore, keeping the accused in
custody serves no purpose.

17. It is in public interest that undertrials be granted bail during the covid pandemic to
relieve the capacity of the Jails and to ensure social distancing.

Conclusion: Based on the research and the facts of the case, a List of Dates for the
matter as well as brief grounds for Bail was drafted. Fortunately, the accused was
granted bail after two hearings by the Hon’ble Delhi High Court.

46



 Conclusion
Internships provide real world experience to those looking to explore or gain the
relevant knowledge and skills required to enter into a particular career field. They are
relatively short term in nature with the primary focus on getting some on the job
training and taking what’s learned in the classroom and applying it to the real world.
Internships are not only an amazing educational tool, they make one grow as a
person.

I have developed my professional skills, knowledge, communications skills, and most

importantly my confidence. This internship gave me opportunity to meet incredible
people currently working in the field, gaining valuable references, as well as getting
exposure to the working environment.

To conclude the report, I would say that this internship was an enlightening learning
experience. It to an extent helped bridge the gap between academic knowledge and its
application in real life. I felt privileged to be a part of the legal fraternity and I was
also grateful to have interned with Senior Advocate Sacchin Puri, who was kind
enough to allow me to intern at his offices and the Adv. Sandeep sir, Kamil sir and
Shweta Ma’am who spared their valuable time everyday to teach and guide me
towards a more fruitful utilization of my time in Law School. The objective of my
internship was to gain the practical knowledge and the know how of the legal
profession. This span of one month has been thoroughly a knowledgeable and also a
joyful experience.

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48