Category Archives: High Court of Calcutta

PIL Regarding Netaji Subhas Chandra Bose’s Disappearance

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For years, the death of Netaji Subhas Chandra Bose has been the subject of conjecture and rumor.

The Times of India reports that a Division Bench of the Calcutta High Court comprising Chief Justice S S Nijjar and Justice P C Ghosh admitted a PIL praying that the the Mukherjee Commission be reopened. There is also apparently another writ petition challenging the Centre’s rejection of the Mukherjee Commission report which pending before the bench.

According to Government of India Notification No. S O 339 (E) dated May 14, 1999, Justice Manoj Mukherjee, a retired Supreme Court judge, was appointed to enquire into all the facts and circumstances related to the disappearance of Netaji Subhas Chandra Bose in 1945 and into subsequent developments including:

  1. Whether Netaji Subhas Chandra Bose is dead or alive?
  2. If he is dead whether he died in the plane crash, as alleged?
  3. Whether the ashes in the Japanese temple are ashes of Netaji?
  4. Whether he has died in any other manner at any other place and, if so, when and how?
  5. If he is alive, in respect of his whereabouts.

    6.  

The Commission submitted its report on November 8, 2005 in which it said:

  1. Netaji Subhas Chandra Bose is dead
  2. He did not die in the plane crash, as alleged
  3. The ashes in the Japanese temple are not of Netaji
  4. In the absence of any clinching evidence a positive answer cannot be given
  5. Answer already given above

    6.  

The Government did not agree with the findings of the Commission that Netaji Subhas Chandra Bose did not die in the plane crash and that the ashes in the Japanese Renoki temple are not the ashes of Netaji.

A Russian general had apparently sworn under oath that he had seen documentation which referred to a live Subhas Chandra Bose in Russia.

There were questions regarding the denial of access of archives in Moscow to the Commission. In response to these questions, the Minister of State in the Ministry Of External Affairs, Rao Inderjit Singh, said that the Commission, during its visit to the Russian Federation from 20 to 30 September 2005, visited seven archives.

The Minister said that despite the fact that Russia’s Archive Law, 2004, which is applicable not only to representatives of foreign countries but also Russian citizens, allows access to classified archives, without any exception, only to a strictly defined category of officials, taking into consideration the interest of the Indian side, the Russian government had competent authorities conduct a detailed study of these archives and copies of all documents found with the name of S C Bose, had been handed over to the Indian side. These, in turn, had been given to the Justice Mukherjee Commission.

There have been a number of (conspiracy) theories surrounding the disappearance of Netaji and the PIL filed appears to be yet another attempt to discover what happened to him.

Protecting Victoria Memorial

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In a public interest litigation filed by environmentalist Subhas Dutta, the Calcutta High Court has banned the use of coal-based tandoors within a three kilometre radius of Victoria Memorial in an effort to protect the monument from pollution caused by the ovens. This was done taking into consideration a report compiled by the Nagpur-based National Environmental Engineering Research Institute (NEERI).

High Court enables Students to take Exam

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The Calcutta High Court has come to the aid of seven students whose colleges didn’t stand up for them according to a report in The Telegraph. The students had paid late fees along with exam fees to register to take an exam only to be told that the University had scrapped the late fees system even though no official circular had been issued saying so. The Court allowed the students to take the exam and fined their colleges ten thousand INR for failing to get them hall tickets.

The Choice of Law in Contracts

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High Court Cases

The substantive provisions of Contract Law give immense freedom to parties to decide on the terms of any agreement they might reach. There are a few provisions which are inflexible –- for example, an agreement to do something illegal is not, under any circumstances, a legally enforceable contract.

That being said, as long as parties do not go against the tenets of contract law, they have immense freedom to choose such things as the time of performance, the place of performance, the manner of performance, how disputes are to be settled etc.

One of the areas which parties can choose what works best for them is that which deals with the law that governs the contract. Indian courts, however, appear to have blown hot and cold on the issue, in a way. In most cases where contracts governed by a non-Indian law have come up before it, the courts have said that although they do have jurisdiction to try the case, they will not do so.

In the case of Messrs. Lakhinarayan Ramniwas v. Lloyd Triestino Societa Per Azinni (AIR 1960 Cal 155), the contract involved stated that if a dispute arose, the suit would be filed in Italy and tried according to Italian Law. The Calcutta High Court held that such a clause cannot oust the jurisdiction of the Indian courts to try the suit although considering the circumstances of the case, it stayed the suit instituted in India.

The Calcutta High Court reiterated this principle in the case of Swedish East Asia Co. Ltd. v. B P Herman and Mohatta (AIR 1962 Cal 601) in which a contract which chose Swedish law and courts was involved.

In Lakshminarayan Ramniwas v. Compagnia Genovese D’Esportazione (AIR 1960 Cal 545), a suit was brought in India regarding a Bill of Lading which limited jurisdiction to Italy. The suit was stayed but the Court said ‘if no proceedings are taken in Italy, the defendants will be at liberty to mention the matter for that purpose’. Quoting Dicey quoting The Fermarh (1957) 1 WLR 815, the judgment said:

“It is well established that where there is a provision in a contract providing that disputes are to be referred to a foreign tribunal, then prima facie, this court will stay proceedings instituted in this country in breach of such agreement, and will only allow them to proceed when satisfied that it is just and proper to do so.”

The clause of the contract involved in the case of Union of India v. Navigation Maritime Bulgare (AIR 1973 Cal 526) said, “Any dispute arising under this Bill of Lading to be decided in Bulgaria according to Bulgarian Law.” This forum selection clause was not interpreted to mean that the jurisdiction of the Courts of India was ousted. However, considering the balance of convenience and the law applicable, the court concluded that the dispute should be decided in a Bulgarian Court.

And in the case of Black Sea Steamship U L Lastochkina Odessa, USSR v. Union of India (AIR 1976 AP 103), a dispute arose in the course of the operation of an international trade contract which stated that disputes would be adjudicated in the USSR. Considering the small size of the claim and the availability of the defendant, the Vishakapatnam court decided that the balance of convenience and interest of justice were in favour of its deciding the suit. The jurisdiction clause in the contract involved in this case did not appear to choose any law though. It merely said, “All claims and disputes arising under and in connection with this bill of lading shall be judged in the USSR.”

Regarding the choice of law in a contract, as the Andhra Pradesh High Court pointed out, ‘the firm conclusion is that it is perfectly open to the court to consider the balance of convenience, and interests of justice and like circumstances when it decides the question of jurisdiction of a court in the light of a clause in the agreement between parties choosing one of several courts or forums which were available to them’.