Legal News & Views

In The Board of Auqaf, West Bengal Vs Golam Mustapha, the Calcutta High Court observed that as per the Wakf Act 1995, there are three judicial functions which are vested with the tribunal to be discharged viz. (i) as a trying forum by entertaining suits as contemplated under Section 6, Section 7 and Section 32(3) of the said Act; (ii) as an appellate forum by entertaining appeals as contemplated under Section 33(4), Section 13 38(7), Section 40(2), Section 40(4), Section 51(5), Section 52(4), Section 64(4), Section 67(4), Section 67(6), Section 69(3) and Section 73(3) and (iii) under Section 83(2) by entertaining applications, as contemplated under Section 35, Section 39(3), Section 48(2), Section 83(2) and Section 94(1) of the said Act. The bench then said that Tribunal cannot assume supervisory jurisdiction to pass any direction upon the Board of Wakf and/or any other authority under the said Act. As such, jurisdiction which was not vested either directly or indirectly upon the ...

In Ibrahim Ali Barbhuiya vs Musstt Rustana Begum before the Guwahati High Court, the review petitioner have prayed for ad-interim injunction for restraining the opposite parties from disturbing the possession of the petitioners in respect of the land mentioned in Schedule-2 to 5 of the plaint. As this Court would have to deal with the same set of facts in both the cases, for convenience, both the matters have been heard and decided together. The review petitioners are the appellants in RFA 63/2016, and they are the plaintiffs in T.S. 13/1997. The said suit was for declaration of title and partition. The said suit was dismissed by the judgment and decree dated 05.09.2016 passed by the learned Civil Judge, Hailakandi, inter-alia, on the ground that the suit was not maintainable in its present form and that the suit was bad for non-joinder of necessary parties. However, liberty was granted that the petitioners are not precluded from instituting a suit afresh by impleading all the necess...

The High Court of Kerala has clarified that an order adjudicating a claim over a property under attachment before judgment is appealable as if it was a decree. The clarification was made by a division bench comprising Justice V Chitambaresh and Justice Narayana Pisharadi, answering a reference whether such an order could be challenged in an original petition under Article 227 of the Constitution. The reference was occasioned when the registry refused to assign a number to an original petition filed challenging an order on claim petition, on the ground that it was original petition was not maintainable as the order was appealable. The decision of a single judge in Ali v Muhammadali 1995(2) KLT 225 was cited. However, the single bench overruled the objection of the registry by relying on a decision of division bench in Anto Mamkoottam v Peruvanthanam Service Co-operative Bank 1996(2) KLT 962. In view of the ensuing confusion, the reference to division bench was made. The divisio...

The Allahabad High Court in Vivek Kumar Singh Vs. State of U.P. and Ors., while deciding on an application for quashing the summoning order passed by Additional Chief Judicial Magistrate held that in determining the question cheating, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to ...

In Poddar Pigments vs CCE, Jaipur, the Delhi bench of the Customs, Excise and Services Tax Appellate Tribunal ( CESTAT ) has held that sending of samples to buyers is a Promotional Activity which cannot be treated as outward transportation for the purpose of allowing Cenvat credit.  In the instant case, the assessee availed Cenvat credit of service tax paid on courier services, which stand utilised by the appellant for despatch of samples of their final product to their prospective customers.  The original adjudicating authority allowed such credit but on appeal by the Revenue, Commissioner (Appeals) reversed the order by observing that such courier services are nothing but outward transportation of the goods and since factory gate is the starting point of such outward transportation, the credit could not be available to the assessee. Article referred: http://www.taxscan.in/sending-samples-buyers-promotional-activity-outward-transportation-cestat/25072/?utm_source=f...

In Shreya Milind Nimonkar Vs. Seema Shanbhag and Ors, the Maharashtra State Consumer Disputes Redressal Commission, Mumbai had rejected the amendment to the plaint by the Appellant on the ground of delay. The Appellant had earlier filed a complaint in the name of the OP-1 only as she was not aware of that the main surgeon in this medical negligence case is another person and was trying to amend the plaint so as to include the said surgeon as a party. However, the State Forum reject the plaint due to a delay of 3 years 2 months.  On appeal the NCDRC said that the Order 1 Rule 10 of CPC enables the Court to add any person as party at any stage of the proceedings, if the person whose presence before the Court is necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision.  Addition of the new prop...

In  MOULASAB S/O. HASANSAB KARANACHI vs THE STATE OF KARNATAKA before the Karnataka High Court, the lorry driven by the accused had hit a cyclist from his hind side, who sustained injuries and succumbed to it. One of the contentions raised in the appeal was that the alleged place of accident was a traffic hit area and there were speed breakers as well the traffic signals, as such the alleged offending vehicle lorry could not run in high speed in that area. The court while dismissing the revision plea said: “By the said statements of these witnesses that there were speed breakers and also a traffic signal near the place of accident, by itself cannot be taken that rash or negligent driving in the said area was not possible. By the word ‘rash driving’ it cannot be automatically imagined that the vehicle alleged to be rash in its driving should also necessarily be coupled with high speed.” The court also referred to the Supreme Court judgment in Ravi Kapur v. State of R...

In Canara Bank v. Stephen John, the bank had assailed an order of the Chief Judicial Magistrate, who granted 45 days’ time to debtors to pay Rs. 45 lakh to the secured creditor. The Kerala High Court observed that there is no discretion whatsoever for the Chief Judicial Magistrate exercising power under Section 14 and the power is conferred only for the regulation of matter as distinguished from a power to decide the rights of parties. If the scope of the jurisdiction of the Chief Judicial Magistrate under Section 14 is understood in this fashion, there is no difficulty in arriving at the conclusion that the power is only administrative and not judicial. The court also took note of the amendment brought in which mandates that before rendering assistance to the secured creditor, it is obligatory for the Chief Judicial Magistrate exercising power under Section 14 of the Act to satisfy that the secured creditor has made a declaration in the form of an affidavit as regard...

In Nisar Ahmed v. Branch Manager, State Bank of India, the appellant applied to the respondent bank for a loan of Rs 9,00,000, but only a loan of Rs. 5,25,000 was sanctioned. The appellant produced as evidence a letter signed by the Respondent-Branch Manager wherein the respondent expressed inability to sanction a loan of Rs. 9,00,000 at the moment due to unavailability of subsidy. The respondent assured to sanction a sum of Rs.5,00,00 and the balance amount after the subsidy amount was received. The respondent produced the letter of arrangement, entered into4 days after the assurance received by the appellant, which clearly showed that the sanctioned amount was only Rs. 5,25,000, of which Rs. 1,94, 750 was as premium loan, Rs. 3,04,000 as working capital and Rs. 26,250 to be arranged by the appellant himself. NCDRC decided that only sanction letter was the proper document for sanction of loan and only the amount mentioned in the sanction letter can be said to be a loan amount...

In Dr. Abdul Rasheed v. State of Kerala, a company executed a settlement deed in favour of three children of its managing director. The Sub-Registrar impounded them since the instruments were insufficiently stamped. The District Registrar and Land Revenue Commissioner affirmed this order impounding the deeds. A single bench of the high court, before which the petitioner challenged these orders, refused to interfere. Writ appeal was filed and one of the question before the Division Bench was whether an artificial person, say a company, execute a deed of settlement. The Registration Department contended that a settlement deed must have been executed in favour of the members of a family, while a company can execute a gift. Referring to relevant articles of the Stamp Act, the bench said: “Settlement of property predominantly takes place among the members of a family, though it can be “for some person dependent” on the settlor. Unless we read down “some person dependent” to mean on...

In Dr. Abdul Rasheed v. State of Kerala, a company executed a settlement deed in favour of three children of its managing director. The Sub-Registrar impounded them since the instruments were insufficiently stamped. The District Registrar and Land Revenue Commissioner affirmed this order impounding the deeds. A single bench of the high court, before which the petitioner challenged these orders, refused to interfere. The Division Bench of the Kerala High Court rejecting the decision on the Registration authority decided that while the registration authorities have impounded the document under Section 33 of the Indian Stamp Act, Section 34 more specifically explains what to do with documents presented before authorities and it is rule of law in case of conflict the specific law would prevail over the general law. If we hold that any document presented for registration cannot be taken back, and if the transaction cannot be resiled from, it destroys a person’s contractual fre...

The Madhya Pradesh High Court has held that criminal proceedings for abetment of suicide cannot be initiated against a teacher if a student committed suicide on feeling humiliated by punishment. The decision was rendered by Justice Atul Sreedharan while dismissing a petition filed by the uncle of the deceased student seeking registration of FIR against the Principal of the school for offence punishable under Section 306 of Indian Penal Code for abetment of suicide. Article referred: http://www.livelaw.in/teacher-not-liable-for-abetment-if-student-commits-suicide-on-punishmentmp-high-court-read-order/

In Executive Engineer, PWD v. Commissioner, Workmen’s Compensation, Respondent 2  was engaged as a labour by the contractor, Respondent 3 who worked with the appellant and suffered permanent injury. The compensation awarded buy the Commissioner  Workmen Compensation Act was challenged by th he appellant contending inter alia that there was no privity of contract between him and Respondent 2, therefore, liability to compensate him could not be fastened on the appellant. The J & K High Court, after duly considering the submissions made by the appellant, observed that his contention was fallacious. The Court noted that it was undisputed that Respondent 3, who had engaged Respondent 2 as a labour, worked with the appellant as a contractor. Respondent 2 was engaged to carry out the work of the appellant. Furthermore, the job of repairing the iron rod, that was the direct reason for the injury, was assigned to Respondent 2 by the Junior Engineer of the appellant. ...

In Ashok Kumar v. Piara Singh, the respondent filed an ejectment petition before the Rent Controller on the grounds that the petitioner-tenant had defaulted in paying the rent since June 2008. The petitioner contended that the respondent was not the landlord as he had taken the premises on rent from one Narinder Singh. The Rent Controller found that a relationship between tenant and landlord existed between the parties. And since the petitioner defaulted in paying the rent, petitioner was ordered to be ejected from the property concerned. The Appellate Authority confirmed the findings and upheld the order passed by the Rent Controller. Feeling aggrieved, the petitioner approached the High Court. While the Court did not find any registered sale deed proving the factum of sale; however, the several other documents showed that there was some arrangement between the petitioner and Narinder Singh whereby the petitioner exercised the rights of the landlord. The Court held the law to...

In Tusar Kanti Basu Chowdhury v. Nil Kamal Basu Chowdhury, the petitioner filed a case under Section 8 of West Bengal Land Reforms Act 1995, for pre-emption in respect of land which was transferred in favour of the opposite party (OP) by the predecessor-in-interest under a registered sale deed. Petitioner sought pre-emption of the land in question on the ground of adjoining ownership. The application for pre-emption was contested by the OP contending that the petitioner had waived his right, if any, by becoming an attesting witness to the above-mentioned registered sale deed. The application for pre-emption was allowed by the trial court. However, the Additional District Judge reversed the order of the trial court. Aggrieved thus, the petitioner was before the High Court in revision. The Calcutta High Court perused the record and found that the petitioner was indeed the attesting witness in the registered deed of sale of the land in question in favour of the OP. The Court reli...

In The State Trading Corporation of India Ltd. vs Gandhar Oil Refinery India Ltd., the appellant-corporate debtor had approached the NCLAT against an order passed by the NCLT through which the NCLT had, upon hearing an application by the operational creditor under S. 9 of the Insolvency Code, had placed a moratorium on the functioning of the appellant and ordered CIRP to be initiated.  It was contended by the appellant that the agreement between the appellant and the respondent stipulated that the debt would mature when a third party, to which the respondent supplied certain goods, shall pay for those goods to the appellant. The appellant had already paid a substantial part of the debt, i.e. Rs. 78 crores, and the outstanding amount of Rs. 1.75 crores had not been paid yet as the same had not been received by the appellant from the third party. The appellant also submitted that since no payment had been received from the third party, the debt had not yet matured hence the ...

In CS Grewal v. M/s Taneja Developers and Infrastructure Ltd., first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 04.04.2016, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 05/2016, vide which, the said complaint was ordered to be dismissed on the ground that the appellant/complainant C.S. Grewal did not fall under the definition of ‘consumer’ u/s 2(1)(d) of the Act and hence, the consumer complaint was not maintainable.  It was held by the State Commission that the complainant had only applied for an allotment of plot and his application had not matured into an ‘allotment’ and hence, he could not be called a ‘consumer’. The Ld. NCDRC said that the facts and circumstances on record makes it very clear that the allotment of a plot was duly made by the OP Builder in favour of the ap...

In Mr. Chetan Sharma Vs. Jai Lakshmi Solvents (P) Ltd., the Corporate Debtor tried to raise the issue of existence of dispute within the company before the Ld. NCLAT.  The Corporate Debtor said that the delivery of goods against which payment has been claimed by the creditors were fraudulently taken by the MD, who has since accepted his liability and has undertaken all the liabilities of the ‘Corporate Debtor’ incurred by him fraudulently. Thus, according to the Appellant, a novation of the contract took place, which makes the alleged sums recoverable only from Mr. Dinesh Arora and not from the ‘Corporate Debtor’. The Ld. Tribunal held that it is a settled law that unilateral ‘transfer’ of liability does not constitute a ‘dispute’ within the meaning of Section 5(6) of the ‘I&B Code’. The ‘dispute’ under Section 5(6) of the ‘I&B Code’ has to be between the ‘Corporate Debtor’ and the ‘Operational Creditors’ and an inter-se dispute between two groups of shareholders of th...

In SBI Cards & Payments Services Pvt Ltd vs Rohidas Jadhav, the Bombay High Court was hearing an execution application wherein the respondent Rohit Jadhav was evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure 1908. He was served notice by an authorized officer of the claimant, SBI Cards and Payments Services Pvt Ltd, by sending a PDF and message to his mobile number on WhatsApp. The Hon'ble Judge held - "For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened,”

In Arvinder Singh @ Ghoga vs State of Punjab, the Punjab & Haryana High Court was hearing an Application for regular bail filed under Section 439 of the Cr.P.C. by Singh, a resident of Pallian Khurd in Nawanshahr, who was arrested in May, 2016. He had been charged inter alia with the offence under Section 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India) of the Indian Penal Code, along with provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967. Singh had asserted that sharing of the alleged seditious/communally sensitive or hateful posts on social media does not disclose any ingredients to establish the offence under Section 121. He had further contended that the acts of receiving money from abroad or distributing Pamphlets or sending Booklets abroad meant to convey the objective of securing “purity” or “non-servility” of the ‘Sikh Panth’ cannot render him liable for offences under the UAPA as well. The State, on t...

In Surendralal Girdharilal Mehta vs Union of India & Ors., the objection of the petitioner before the Calcutta High Court was that a show cause notice was issued against Girdharilal Mehta (since deceased) and against one S.C. Mehta under Section 50 of the FERA calling upon the noticees to show cause as to why penalty should not be imposed on them under the said Act for alleged contravention of Section 8 (1) of FERA read with Sections 64(2) and 51 thereof. There is no one by the name of S.C. Mehta in the petitioner’s family. No further step beyond issuance of the show cause notice has been taken by the respondent authorities. The petitioner therefore prayed for quashing of the show cause notice on the ground of inordinate delay in proceeding with the adjudication arising out of the said show cause notice causing worry, anxiety, expenses and disturbance to his vocation and peace of mind. The Calcutta High Court referring to several judgments and quashing the notice held...

In Surinder Kumar Beri vs. Deepak Beri, certain ‘directions’, which were not in the agreement between the parties, were issued by the arbitrator. The ‘directions’ included the appointment of a team to examine the stock and other records and also for auditing financial statements. The Delhi High Court held that No doubt these directions can be said to be an attempt by the learned Arbitrator to try and execute/implement the terms and conditions agreed upon by the parties. However, such directions could be passed only by the process of adjudication after having concluded the mediation proceedings. It appears that the learned arbitrator has mixed up the mediation process and the adjudicatory process based on the hearings which have been conducted and the exchange of emails by the parties. He has recorded a settlement, passed an award based on the settlement and has also passed further directions which could only have been passed pursuant to adjudication.” Held - An arbitr...

In Janak Dilip Dwarkadas vs The Joint Charity Commissioner, Mumbai, Bai Kabibai and Hansraji Morarji Charity Trust entered into an agreement with a private developer to sell a piece of land owned by the trust in Ghatkopar. According to the said agreement, certain structures on the land were leased by the builders to the trust for a period of 99 years. Thereafter, the Charity Commissioner granted sanction for sale of the land in 1989. Nine years later, the petitioner was inducted into the board of trustees of the said trust. In 2003, the structures on the said land leased out to the trust were surrendered by the trustees to the same developer. Thereafter a change report was filed before the Charity Commissioner who accepted the report and made requisite changes in the schedule of the properties of the trust. In 2007, the petitioner resigned as a trustee and a change report notifying the same was accepted by the Charity Commissioner. However, the 2003 order of the Cha...

In Ram Balakrishnan vs Somitri Das, the matter before the Ld. NCDRC was that complainant an NRI, had booked flat in a project started by the Opposition Party was had not proceeded beyond the initial stage inspite of the complainant paying on time. The argument forwarded by the was that the claim amount was below the threshold allowed for NCDRC. The Ld. NCDRC rejecting the objection held that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or av...

The Supreme Court on a writ petition filed by one Deepak Kalra orally observed that a bar association can not restrain advocates from appearing on behalf of and defending any individual. The petition who is contesting several matters against his estranged wife, and is aggrieved of the Jabalpur District Bar Association passing a resolution prohibiting advocates from representing him. Article referred: http://www.livelaw.in/bar-associations-cant-deny-advocates-the-right-to-legally-represent-any-individual-sc/

In Natwarlal Mehta vs Goswamini Rukmini Bahuji Maharaj, the Calcutta High Court has observed that wrong advice of advocate can be considered as sufficient ground to condone the delay in filing the written statement. Justice Sabyasachi Bhattacharyya made this observation while setting aside a trial court order that rejected a petition to accept that a written statement was rejected, primarily on the premise that ignorance of law and wrong advice of advocate were not sufficient grounds to condone the delay. “One has to be pragmatic and cannot live in Utopia. Undoubtedly, ideally, an advice from an Advocate ought to be correct, and fault ought to be attributed on the litigant for having delayed the filing of written statement; but in terms of real-life situations, we often find that there are errors committed both on the part of the Bench and the Bar. As such, we cannot think in terms of such ideal scenario and raise the sanctity of legal advice to such a pedestal that the litiga...

In Smt. Bindu Dadlani vs Smt. Gita Ghosh, an application seeking an opportunity to lead evidence was turned down by the trial court. This order was challenged before the high court that directed the applicant to appear on a returnable date and granted the petitioner liberty to pray for adjournment before the court below. The trial court, in the meantime, refused adjournment in spite of request for adjournment and production of an advocate’s letter communicating the order of the high court that granted him liberty to pray for adjournment before the trial court. The court then heard the application under Section 7(1) and (2) of the West Bengal Premises Tenancy Act and disposed of the same. Justice Sabyasachi Bhattacharyya, in his interim order, observed: “Since it is well-settled that communication by an advocate is as good as production of certified copy of the order in question, unless strongly rebutted, prima facie the trial court acted without jurisdiction in disbelievin...

In Amrit Paul Singh vs TATA AIG General Insurance, the Supreme Court considered an appeal from the Punjab & Haryana High Court. The appeal was filed by the owner of the truck involved in the accident. The Motor Accidents Claims Tribunal found that the truck was being plied without permit, and held that statutory breach of policy conditions had occurred. Therefore, the insurer was not held liable. Aggrieved, the owner filed appeal before the high court unsuccessfully. In the SLP filed in the Supreme Court, the owner contended that absence of permit was not a fundamental breach which led to the accident. It was also contended that application for permit was filed, and it was during its pendency that the accident had occurred. Rejecting the contentions, the bench held as follows; “In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the...

In M/s Indira Industries vs. PCIT, the assessee filed a return for the year 2012-2013 under Section 139 of Income Tax Act, 1961. Subsequently, the revenue issued a notice to the assessee under Section 148 of IT Act. The revenue wanted to open a re-assessment for the said year, on the grounds that the interest on loan amount shown to be paid to the bank was diverted by the assessee to its partners. The assessee challenged the re-assessment contending that the notice was issued after expiry of 2 years, which was not permissible. The High Court considered the submissions made on behalf of the parties and perused Section 148 of the IT Act. The Court noted that read with Section 263(2), a notice of re-assessment under Section 148 could have been issued only within a time period of two years from the date of the scrutinization of the original assessment. Holding the said notice to be a show cause notice, the High Court observed, principles and grounds available for assailing a show ...

In Suresh Kumar Kohli vs Rakesh Jain, the Supreme Court has held that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs.