Legal News & Views

In a recent judgement, the Hon'ble Orissa High Court in the matter of CHANDANESWAR ENTERPRISES LTD. VERSUS INDUSTRIAL PROMOTION & INVESTMENT CORPORATION OF ORISSA LTD., addressed the issue of forfeiture of earnest money. The fact was that the Corporation had auctioned some properties for which the petitioner appeared as the highest bidder and as per agreement deposited an EMD of Rs. 1 lacs. However, the Corporation as well as the petitioner laid down certain conditions which were not acceptable to either party. Under the circumstances, the sale did not go through and the Corporation forfeited the EMD and came out with further advertisements for sale/auction of the properties. On each occasion the petitioner remained the highest bidder. Finally, the Corporation decided to accept the petitioner as the highest bidder but refused to adjust the forfeited EMD with the new offer. On petitioner appealing before the hon'ble court, the court opined that:- 5. The sole point tha...

In a recent judgment in CHARANJIT PAL JINDAL vs L.N. METALICS, it was held by the Hon'ble Supreme Court that when a company is accused/implicated in dishonour of cheques under Section 138/141 of the NI Act, the company must be impleaded first and only then can the directors or authorised persons of the company be impleaded.

Interestingly it appears that among other issues a particular point name mutation in land related matters keep on coming up before the various court of laws and while some aspect of it has been decided by the Hon'ble Supreme Court as early as 1996, the same issue keeps on getting decided incorrectly. Case 1 H. LAKSHMAIAH REDDY & ORS. VS L. VENKATESH REDDY, Civil Appeal Nos. 3725-3726 of 2015 [Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of 2011]-Decided on 17-4-2015.  Held: The assumption on the part of the High Court that as a result of the mututation, 1st defendant divested himself of the title and possession of half share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh's case (supra) are relevant and are extracted below :          ...

In a recent judgment in  SURINDER SINGH vs PIARA SINGH, while deciding on various issues related to a disputed will, the Hon'ble court held that :- 1) When attesting witnesses not found that, it becomes incumbent upon the propounder of the Will to prove two facts (i) that the attestation of one attesting witness atleast was in his handwriting; and (ii) that the signatures of the executant is in his handwriting. 2) A Will is not a document which can be admitted in evidence without complying with the provisions specifically stipulated for proving the same.

In a judgment, a bench comprising of VM Kanade and CB Colabawalla, JJ  has ruled that a widow, even after she has remarried, has the rights over her former husband's properties. In the present case, the petition was filed by a man against his former sister-in-law who had claimed the right over her deceased husband’s properties after she married another man. The brother of the deceased relied  on the provisions of the  Hindu Widows' Re-marriage Act, 1856, which stated the limited right and interest which a widow had in her deceased husband’s property would cease to exist if she remarries without express permission, and the next heirs of her deceased husband, or other persons entitled to the property, shall thereupon succeed to the same. The Court ruled that provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows' Remarriage Act, 1856. There was no provision in the Hindu Succession Act, 1956 which was pari materia with section 2 of the ...

The Kerala High Court on Thursday refused permission to the Travancore Devaswom Board to construct a Convention Centre near Shanghumugham Beach. According to TDB, the land was situated very close to Sanghumugham beach and the international airport. Considering the commercial importance of the locality, the board had decided to construct a convention center. The Court observed that the primary purpose of the Devaswom Boards was to put those lands to use in connection with the activities of the temple and religious, spiritual, cultural and other aspects which are intricately connected with the activities of the temple. Any activity of the Devaswom Boards, which are merely the statutory guardians of devaswom lands, to put such property to commercial use should be restricted to the bare minimum and which is indispensable in the context of any particular locality or temple. It has also to be done only by ensuring that any such investment generates appropriate income. Article referred:...

The National Consumer Disputes Redressal Commission has dismissed an appeal by Hindustan Petroleum Corporation Ltd (HPCL) against an order by a lower body that imposed heavy damages on the company after faulty fixation of gas-tube led to an explosion at the premises of a customer. HPCL and its gas agency were told to pay Rs 2.25 lakh in damages and Rs 25,000 in terms of compensation to V Venkateshwar Reddy, a resident of Kurnool in Andhra Pradesh, though both of them tried to shift the responsibility for the accident from themselves. Both HPCL and the gas agency argued that the explosion was not caused by any fault of theirs. The gas agency said the pipe was fixed at 10.30 a.m. and the explosion occured after almost 15 hours. So, it said, the fault could not have been in how the repair was carried out. HPCL, on its part, said it had a pre-existing agreement with its gas agency that the gas agency’s actions were as ‘principal’ and not as an agent of HPCL. As a result, the agency...

A developer cannot escape his contractual obligation towards the buyer in a developed property by claiming that he had outsourced the development work to another builder, the Pune district consumer disputes redressal forum has held. In a recent order, the forum, headed by president V P Utpat, ordered a construction firm in Mundhwa to deliver the possession of a 180 sq ft shopping block to the complainant, Meena Harish Bhujbal, with whom he had a registered sale agreement. "As an alternative, if the developer expresses his inability to deliver possession of the block then he should pay the prevailing market price," the forum, which also comprised Mohan Patankar and Kshitija Kulkarni as members, ordered. The three-member bench further directed the firm, Sai Constructions, to pay Rs 25,000 damages to Bhujbal on account of deficiency in service by not delivering possession of the shopping block as promised and causing physical and mental agony to the complainant. The damage...

Sebi says such cases fall under the purview of commercial transactions and will not fall within the scope of the Consumer Protection Act Investors who lose money while trading in the stock market based on the recommendations provided by their broker cannot drag the brokerage firms to the consumer court, the Securities and Exchange Board of India (Sebi) has reiterated. Such cases fall under the purview of commercial transactions, Sebi added. Sebi has clearly laid down the framework for investor redressal and every exchange has an arbitration panel in place to hear such investor complaints. In a notice issued to all its trading members on Wednesday, BSE Ltd said the exchange has received a letter from Sebi regarding cases filed by clients against stock brokers in various consumer forums. “As stated in the said Sebi letter, it may be noted that as per settled law, regular trading in shares to earn profits are in the nature of commercial transactions. Where a person engages a broker...

Delhi Development Authority has been slapped with a fine of Rs five lakh by National Consumer Disputes Redressal Commission for its "meritless and frivolous litigation" challenging the compensation awarded to an allottee who was given flat in a dilapidated condition. Stating that such unscrupulous acts and "gross abuse of process of law" must be dealt with a heavy hand, Justice VB Gupta also directed DDA to recover the punitive damages from the salaries of the delinquent officers, who have been pursuing "meritless and frivolous" litigation with the sole aim of "wasting the public exchequer". The case relates to Sudershan Bhareja who had applied for LIG Rohini Residential Plotted Scheme, 1981 in which he was given a priority number but no allotment was made to him. In year 2002, DDA floated another "Narela Housing Scheme, 2002" which provided that waiting registrants of Rohini Scheme could also apply under this. The flats were adve...

Befitting punishment should be awarded by courts to the guilty so that "public abhorrence" of the offence committed is reflected, the Supreme Court has said. "The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. Law courts have been consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. "While it is true that sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence manifestly inadequate. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime," a bench comprising justices T S Thakur and R Banumathi said. The observations came while hearing an appeal filed by Haryana native Ravinder Singh who had approached the apex court against Pu...

In the context of a right of direct action by an injured party (Spain and France) against a D&I insurer,  in  The London Steamship Owners' Mutual Insurance Association Ltd v The Kingdom of Spain & anr  [2015] EWCA Civ 333, 1 April 2015, Spain and France were held bound by an arbitration agreement contained in an insurance policy which they never signed. The case is an illustration of the circumstances in which state immunity will be waived and defines who is a "party" to an arbitration agreement contained in an insurance policy. It is also a reminder of the very limited category of disputes that will be inarbitrable under English law. The  Prestige  sank off the west coast of Spain in 2002. It was carrying 70,000 tonnes of fuel oil which polluted the Atlantic coastline of Spain and France. The Spanish and French authorities commenced criminal court proceedings against the ship's officers, its owners and the owners' protection and indemnity insu...

A person who is involved in purchasing and selling of flats for profits, he does not fall within the purview of “consumer” and is not entitled for compensation from the construction firm for delay in handing over possession of the flats, observed NCDRC while rendering relief to a construction firm. The Commission was hearing a revision petition filed by Magrath Property Developer challenging the order of Karnataka State Commission vide which the order of District Consumer Forum passed in favour of the Complainant was upheld. Earlier, Complainant had booked six flats in the project floated by Magrath Property Developer and alleging delay in possession of the said flats, he approached District Consumer Forum. District Forum allowed the complaint and Magrath Property Developer was directed to pay Rs 8,86,347 as interest, Rs 1 lakh as compensation and Rs 10,000 as cost to the Complainant. In appeal filed by the Construction Firm, State Commission upheld the order of District Consumer Forum...

Indulging in an interesting discussion as to whether the decision given in Brulotte v. Thys Co., 379 U. S. 29 (1964) that a patent holder cannot charge royalties for the use of his invention after its patent term has expired is still a good law, the Court with a majority of 6:3 held that the rule of Stare decisis requires to adhere to the law laid in Brulotte and overturning Brulotte would thus upset expectations, most so when long-dormant licenses for long-expired patents spring back to life. Giving reasons, Kagan J., who delivered the opinion of the Court, explained the reason for not overturning the ruling is that Brulotte’s statutory and doctrinal underpinnings have not eroded over time and the core feature of the patent laws on which the case relied remains just the same. The Court also observed that overruling a case always requires “special justification”, over and above the belief “that the precedent was wrongly decided” which cannot be established with Brulotte. In the insta...

The CCI while closing case against Ansal Properties & Infrastructure Ltd ruled that consumer related issues do not come under the ambit of the Competition Act, 2002 (the Act). The informant was aggrieved by the conduct of Ansal Properties for non-compliance of an order passed by the Delhi Consumer Dispute Resolution Forum in two cases filed by the Informant and his wife.  It was alleged that Ansal was not paying the amount as directed by the Consumer Forum. The CCI found that allegation of the informant for non-compliance of Consumer Forum order does not fall within the jurisdiction of the CCI under the Act because the issue raised does not involve any issue which contravenes the provisions of the Act, [In Re:Mr. Preetam Chhabra v. Ansal Properties & Infrastructure Ltd , Case No. 37 of 201, decided on 25.06.2015]  Article referred: http://blog.scconline.com/post/2015/07/03/consumer-related-issue-does-not-come-under-the-ambit-of-the-competition-act.aspx

The Supreme Court has agreed to examine whether a doctor is legally bound to pay compensation for alleged medical negligence, even if he had treated the patient free of cost. The case reached the top court after three consumer forums threw out the appeals of the parents of a 12-year-old from Bengal who died after being administered an injection of what appears to have been a contra-indicated drug. Ishita Banerjee, daughter of Hooghly resident Mihir Banerjee, had been rushed to Dr Abhijit Roy's clinic in May 2001 after repeated bouts of vomiting. According to Mihir, Roy asked his compounder to administer an injection of the drug Zofer, an anti-emetic drug to control nausea, particularly in cancer patients undergoing chemotherapy. She was also given Rantac, a common drug for stomach problems. Within a few hours of administering the Zofer injection, the child developed further complications, including loose motions. The doctor then prescribed two other medicines, but ...

Consumer forums cannot be "used to extort money for unjust enrichments", a consumer forum in the city said while disposing a matter where a man had sought compensation of around Rs 5 lakh for allegedly being duped by a mobile phone seller. The complainant, advocate Hari Shankar Rai, said the phone had a camera of lower resolution than promised by the seller and also did not have a FM radio. While seeking the hefty compensation, Rai claimed he suffered a loss of around Rs 50,000 on account of the phone, which he had purchased for Rs 3,000. Though the forum awarded him a compensation of Rs 5,000, it observed that Rai's claim was "hard to believe" and there was no evidence to prove that he suffered such a huge loss on account of the phone. East district consumer disputes redressal forum also imposed a cost of Rs 20,000 on D2H mobile shop in Okhla Industrial Area for indulging in unfair trade practices to promote sale of its products by misrepresenting facts. ...

An insurance company cannot deny a claim by saying headache was pre-existing, said insurance ombudsman. It added that no one could make any claim if that had been the case. The order was issued after considering a complaint lodged by a woman from Thiruvananthapuram, who was denied claim for the money she spent on treatment in a foreign country. On her visit to the US in March last year, she was admitted to a hospital following headache due to climate change. She spent $315 (Rs 18,000) for two hours of treatment. She told the doctor that she often suffered headaches, which was entered in the medical report. Before leaving for US, she had availed an overseas travel insurance policy from the New India Insurance Company. When she approached the insurer later, the claim was denied by the company saying the headache was pre-existent citing the medical report. Insurance ombudsman P K Vijayakumar said, "The third party administrator (TPA) who settles the dispute between insurance comp...

Chanakya Sharma, (21), a student of National Law University in Lucknow,  contested for a year against an errant courier company in the consumer court in Ahmedabad and won on July 1. This case has set two precedents the court adjudged that the courier company's liability printed on its receipt, which says that in case of any loss or damage the company shall not pay more than Rs 100, is against the public policy and ordered the company to pay a compensation of Rs 7, 000. Secondly, court admitted the case in Ahmedabad, where cause of action arose rather than the prevalent norm of accepting a case at the place of contract. The place of contract in this case was Jaipur. Sharma, a resident of Jaipur hired the services of Overnite Express Ltd in Jaipur to send his project report titled Critical thinking and legal reasoning' on a condition of dropping it in the Nirma University, Ahmedabad on March 7, 2014. However, his project reached 7 days later causing him the loss of 15 marks o...

Consumers be aware that banks can deposit EMI cheques before due date if the same is done to ensure that bank receives payment on due date. While the rationale behind the above arrange is understandable, there are certain inequities here which were not addressed by the commission in the recent matter which came up before that NCRDC (National Consumer Disputes & Redressal Commission). Pradeep Bhupendrabhai Desai, a businessman, had an account with HSBC. He averned that the bank sent a letter offering him a pre-approved personal of Rs 5 lakh at an interest rate of 14.95 per cent and one per cent processing fee. The loan would be repayable in 48 monthly instalments of Rs 13,903, payable by the 15th of each month. The bank deposited the EMI cheques three to four days prior to the due date of the 15th of each month. There were occasions when the EMI instalment was credited two days prior to the due date. The bank also added one extra instalment of Rs 3,346.37 as the 49th instalm...

Diabetes cannot be cited as a reason to deny employment, the Madras High Court has said, pointing out that with an estimated 40.9 million diabetics India is world's diabetic capital. Asking the Railways how can it deny job to a woman candidate on the ground that she suffered from diabetes, the court said that a diabetic is eligible for appointment in government posts as there is no scientific proof to show such a person would not be able to discharge his or her duties. Posing this question, a division bench comprising justices V Ramasubramanian and T Mathivanan directed Southern Railways to appoint the woman within eight weeks. "In the absence of any scientific evidence to show that a diabetic will not be able to discharge the duties of office, it is not possible to accept the stand taken by the authorities," it said while dismissing a petition by the Chief Personnel Officer of Southern Railway. The bench said this was especially in view of the fact that India has...

Some very important issues came up recently in O.P. Gandhi vs PIO, Tihar Jail before the Central Information Commission (CIC), a body responsible among other issues to deal with violation of Right To Information (RTI). The issue was an appeal filed by an undertrial prisoner who claimed:- 1) He had been kept in jail beyond term 2) He had been deliberately arrested on a Friday While hearing the appeal the Ld. Commission made some important proclamations :- " 14. The Commission noticed that appellant has a grievance that he was unnecessarily kept in prison beyond term on the pretext that he was needed in a different case. The officers should have enquired about other case before expiration of term. They kept him in jail for some more days on the excuse that they were ‘holidays’ for courts etc. From this it appears that prisoner was detained beyond the period of term. 15. ‘Excessive detention’ like this is a matter of serious concern, as that violates right to personal ...