Legal News & Views

In CIVIL APPEAL NO 5699 OF 2019, M/s Treaty Construction & Anr. vs M/s Ruby Tower Co-op. Hsg. Society Ltd., the society had complained before the State Commission that several sale deeds were executed between a Co-operative Housing Society and M/s Treaty Construction during the period 1994 to 2002 whereby, its members purchased certain apartment units as also commercial units of varied sizes but, despite making payment over and above the agreed sale consideration, the builders failed to discharge their part of the contract inasmuch as the interior works remained incomplete; and they also failed to obtain the Completion Certification as also the Occupancy Certificate. The State Commission had partly allowed the claim of the society by imposing penal charges on the appellant along with some other conditions. The appellants petition before the NCDRC was rejected, who then approached the Supreme Court with the pecuniary jurisdiction of the State Commission being the primary issue....

In CRIMINAL APPEAL NO(s).1070 OF 2017, SANJAY RAJAK vs THE STATE OF BIHAR, thr Supreme Court was dealing with the submission made on behalf of the convict-appellant, that non recovery of the dead body makes the prosecution case doubtful. The accused in this case was convicted under Section 364A of the Indian Penal Code for Kidnap and killing a child aged 5-6 years. Rejecting the contention of the convict, the Supreme Court held that it is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delecti will render the prosecution case doubtful entitling the accused to acquittal on benefit of doubt. It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based on reasonability and probability based on normal human prudence and behavior. In the facts and circumstances of the present case, the failure of the police to recover the dead body is not much of conseque...

In CRL.O.P No.13147 of 2015 and Crl.M.P.Nos.1 and 2 of 2015, Rangabashyam vs Ramesh, the question before the Madras High Court involved in this case is whether an unregistered Partnership Firm can also be brought within the purview of Section 141 of the Negotiable Instruments Act, and in such cases whether the Partnership Firm must be made as an accused along with the other partners, in order to maintain a complaint for an offence under Section 138 of the Negotiable Instruments Act ? The respondent has filed a complaint against the petitioners for an offence under Section 138 of the Negotiable Instruments Act for a cheque issued by the petitioners. The petitioners applied to quash the proceedings primarily on the ground that the cheque in question was drawn in favour of the respondent only on behalf of the partnership firm. Therefore, the complaint cannot be maintained without issuing the statutory notice to the partnership firm and making the partnership firm as an accused in the...

In Company Appeal (AT) (Insolvency) No. 703 of 2018, Ahluwalia Contracts (India) Limited vs Raheja Developers Limited, the plaintiff had filed an application under Section 9 as Operational Debtor which was rejected by the NCLT citing existence of dispute and an arbitration proceeding  against the claim. On appeal, the NCLAT referring to the judgements of the Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited− 2017 & Innoventive Industries Ltd. v. ICICI Bank and Anr., observed that from the aforesaid findings, it is clear that ‘claim’ means a right to payment even if it is disputed. Therefore, merely because the ‘Corporate Debtor’ has disputed the claim by showing that there is certain counter claim, it cannot be held that there is pre-existence of dispute, in absence of any evidence to suggest that dispute was raised prior to the issuance of demand notice under Section 8(1) or invoice. In the present case, it is not in dispute that the arbitrati...

In CS (COMM) 470/2016 & CC(COMM) 73/2017, SSMP INDUSTRIES LTD. vs PERKAN FOOD PROCESSORS PVT. LTD., the Plaintiff had filed the present suit seeking recovery of Rs.1,61,47,336.44 while the Defendant has filed its written statement/counter claim in which it avers that it is, in fact, entitled to recover a sum of Rs.59,51,548/- and no amount is due and payable by it to the Plaintiff. The Plaintiff company has since gone into insolvency and a Resolution Professional has been appointed. The question has arisen as to whether the adjudication of the counter claim would be liable to be stayed in view of Section 14 of the Code. The Delhi High Court observed that a ld. Single Judge of this Court in Power Grid Corporation of India v. Jyoti Structures Ltd., (2018) 246 DLT 485. held that until and unless the proceeding has the effect of endangering, diminishing, dissipating or adversely impacting the assets of corporate debtor, it would not be prohibited under Section 14(1)(a) of the Code...

IN CIVIL APPEAL OF 2019, Madhav Prasad Aggarwal vs Axis Bank Ltd., the respondent bank gave loan facility to builder against a projec against mortgage of project property. The appellants had purchased flat in the said project and have been paying instalments and were in possession of letter of allotments and other correspondences but not registered deeds. The plaintiffs on becoming aware of the loan facility, filed a suit to force the builder to complete the project, reject the loan etc. and arrayed the respondent bank as a defendant. The respondent No.1­bank (defendant No.15) appeared in the concerned suit and filed a notice of motion to reject the plaint against the bank, in exercise of powers under Order 7 Rule 11(d) of CPC on the ground that the suit(s) against the said respondent would be barred by provisions of Section 34 of SARFAESI Act. The bank's application was rejected by the Single Judge of the High Court holding that the facts of the present case clearly indicate th...

In FIRST APPEAL NO. 1620 OF 2012, Royal Sundaram Alliance Insurance Co. Ltd. vs Mr.Ajit Chandrakant Rakvi, the Bombay High Court bench of Justice N.J.Jamadar was hearing an appeal filed against the award passed by the Motor Accident Claims Tribunal on the grounds among others that the amount towards medical claim reimbursed should not have been taken into consideration while calculation of compensation under the Motor Vehicles Act as such amounts would result in a double benefit to the claimant. The Appellant asserted that the Tribunal had awarded the compensation under the medical head in the absence of any documentary evidence to prove the same.  The court referred to judgment of the Supreme Court in Helen C. Rebello Vs. MSRTC AIR 1998 SC 3191 which stated that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Act, the Tribunal held that the said principle applied even to the personal injury c...

In C. R. M. 4792 of 2019, Abdul Khaleque vs State Of West Bengal, taking strong exception to the failure of the then Inspector-In-Charge of a police station to register an FIR even after an order of the Magistrate under Section 156(3) of the Code of Criminal Procedure, the Calcutta High Court observed that where the judicial authority issues direction for registration of FIR under Section 156(3) of the Code of Criminal Procedure, requirement to hold preliminary enquiry is obviated and it is the mandate of law that such FIR must be promptly registered. Failure to do so constitutes a constitutional tort arising out of breach of the fundamental right of access to justice for victims of crime. In Lalita Kumari vs. Government of Uttar Pradesh & Ors. reported in (2014) 2 SCC 1 a Constitution Bench of the Apex Court held that prompt registration of FIR is imperative for the following reasons:- 97.1. (a) It is the first step to “access to justice” for a victim. ...

IN THE HIGH COURT OF KARNATAKA AT BENGALURU, WRIT PETITION NO.22137 OF 2019 (GM-DRT), BETWEEN TRISHUL DEVELOPERS vs AND 1. L & T HOUSING FINANCE LIMITED, the developer had borrowed Rs 20 crore from L & T Housing Finance Limited, on default of payments received a notice from L & T Financial services, which is not a secured creditor.  However, the finance company argued that Trishul developers had in its reply to the demand notice sent on the letter head of L & T Financial services, admitted that they have secured a loan and it was never their intention to avoid payments of any legitimate dues. DRT quashed the demand notice but the same was allowed on appeal by the DRAT. On appeal the High Court setting aside the order of the DRAT held that it is well-settled principles that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and only the secured creditor, and no other person or ent...

In NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, FIRST APPEAL NO. 101 OF 2016,  PANKAJ R. TOPRANI  vs BOMBAY HOSPITAL AND RESEARCH & MEDICAL & 2 ORS.,  the National Consumer Disputes Redressal Commission has ordered the Bombay Hospital located in South Mumbai area, to pay Rs. 30 lakh as compensation to a deceased patient's family on account of negligence shown by the hospital. The doctors have been directed to pay Rs. 1 lakh jointly. The NCDRC observed that :- In a catena of judgements, the Hon’ble Supreme Court has laid down the essential components of ‘Negligence’ as follows:- 1) The existence of a duty to take care which the defendant owes to the plaintiff; 2) The breach of that duty towards the plaintiff and 3) Damage or injury by the complainant as a result of such breach. The ‘Duty of Care’ for a medical professional starts from the time the patient gives an implied consent for his treatment and the medical professional accepts him as...

IN THE HIGH COURT OF HIMACHAL PRADESH, FAO(MVA) No.564 of 2018, National Insurance Company Limited vs Kamal Kishore, the issue was the liability of insurer towards third party risks in respect of vehicle, not registered in accordance with Chapter-IV of Motor Vehicles Act and whose temporary registration had also expired. When the vehicle met with an accident, the insurer repudiated the claim on the above mentioned grounds. On appeal, the High Court held that in the present case insurance cover Ex.PX., is admittedly comprehensive insurance covering third party risk. There is no such stipulation or condition therein that insurer will not be liable towards third party risk for want of valid registration certificate of the vehicle. The insurance policy is a contract executed between the owner and the appellant. Under Section 149 of Motor Vehicles Act, there is no such defence available to the insurer for repudiation of claim on the ground of invalid/absence of registration certifi...

In NATIONAL COMPANY LAW APPELLATE TRIBUNAL, Company Appeal (AT) (Insolvency) No. 140 of 2019, Rotomac Global Private Limited vs Deputy Director, Directorate of Enforcement, Bank of Baroda initiated ‘Corporate Insolvency Resolution Process’ against ‘Rotomac Global Private Limited’ (Corporate Debtor). After the conclusion of the ‘corporate insolvency resolution process’ in absence of any viable and feasible resolution plan, the Adjudicating Authority ordered for liquidation of the ‘Corporate Debtor’. Meanwhile the Enforcement Directorate had also initiated action against the Directors of the company under Prevention of Money Laundering Act and basing on the material and evidences on record and exercising the powers conferred by Sub-Section (1) of Section 5 of the ‘Prevention of Money Laundering Act, 2002’, passed a Provisional Attachment Order No.08/2018 dated 28.05.2018 attaching the properties which fall within the definition of ‘Proceeds of Crime’ in terms of Section 2(1)(u) of the P...

IN CIVIL APPEAL NOS. 5522­5523 OF 2019, Gurmit Singh Bhatia vs Kiran Kant Robinson, in a suit filed for specific performance, purchaser who purchased the suit property during the pendency of the suit filed an application in the pending suit under Order 1 Rule 10 of the CPC for impleadment as a defendant in the suit. The case of the applicant was that he has purchased the suit property and is a necessary and proper party to the suit as he has a direct interest in the suit property. Though the Trial Court allowed the application, the Chhattisgarh High Court set aside the said order of the Trial Court. On appeal, the Supreme Court observed that in Kasturi v. Iyyamperumal, the Apex Court had held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It was further held that,...

IN CRL. REF 1/2014, STATE versus KHIMJI BHAI JADEJA, the accused was allegedly one of the promoters of an investment scheme floated in and around Delhi. It is alleged that around 1,852 different victims were allured; induced and; cheated to invest different amounts of money, at different points of time, and at different places under the scheme, on the pretext that their money would be tripled within three days. Relying on the judgement of the apex court in Narinderjit Singh Sahni&Anr. Vs. Union of India &Ors. (2002) 2 SCC, the Delhi High Court has held that in a case of inducement, allurement and cheating of large number of investors/ depositors in pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction. All such transactions cannot be amalgamated and clubbed into a single FIR by showing one investor as the complainant, and others as witnesses. Delhi Police had argued that every case of cheating and induceme...

In CIVIL APPEAL NO.11133 OF 2011, M/S ADANI POWER (MUNDRA) LTD. vs GUJARAT ELECTRICITY REGULATORY COMMISSION AND ORS., the appellant cancelled a contract as per terms of the agreement when it realised the contract cannot be fulfilled and paid the damages as per agreement. The respondent however did not want to cancel and insisted that the appellant fulfill their part. The matter went to the Commission and thereafter to the Appellate body where the orders were against the appellant herein. Thus the appeal before Supreme Court. The Supreme Court observed that from a plain reading of the contract it is clear that in the event of non-compliance with any of the requirements as provided in Article 3.1.2 within the period specified in the said Article, an option is available both to the seller or the procurer to terminate the PPA. The only requirement is that, in either of the situations, the liability would be only on the seller to pay the liquidated damages at the rate of Rs. 10 lakhs pe...

IN CIVIL APPEAL NO. 4478 OF 2007, SOPANRAO & ANR. vs SYED MEHMOOD & ORS., one of the objections before the Supreme Court was that the suit had been filed beyond the period of 3 years set by the limitation act for suits for declaration and the said objection was accepted by the trial court. The Supreme Court however found the objection is totally untenable. The court held that admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within l...

IN CIVIL APPEAL No.5131 OF 2019, Hemlata Verma vs M/s ICICI Prudential Life Insurance Co. Ltd. & Anr., NCDRC held that the delay of 207 days in filing the revision petition before the Commission against the order dated 08.12.2016 of the State Commission, Delhi passed in Appeal No.768 of 2009 was not properly explained by the appellant and, therefore, no case is made out to condone the delay. The revision petition was, therefore, dismissed as being barred by limitation. On appeal the Supreme Court while disagreeing with NCDRC observed that the Commission while declining to condone the delay placed reliance on the decision of this Court in Ramlal vs. Rewa Coalfields Ltd., AIR 1962 SC 361. However, the later decision of this Court in Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., (1987) 2 SCC 107 has held that in matter of condonation of delay, the Court should take liberal view. In our view, the Commission should have, therefore, taken note of subse...

In PAVAN DILIPRAO DIKE vs VISHAL NARENDRABHAI PARMAR, appeal was filed against the High Court order reversing the order of acquittal by the trial court wherein the trial court had dismissed the complaint on the ground that the complainant has failed to prove that the cheque which was dishonored was given by the accused to the complainant to discharge the legal debt/liability. The High Court had observed that as per Section 139 of the Act of 1881, the burden to prove that the cheque in question was issued for some purpose other than discharging legal debt/liability is on the accused and that the cheque was of the account of the accused and the accused has not been able to show that the signature on the cheque is not of the accused. On appeal the Supreme Court agreeing with the High Court held that the High Court has rightly reversed the order of acquittal passed by the trial court wherein the presumption under Section 138 has not been taken into account. The trial court committ...

IN CIVIL APPEAL NO.3506 OF 2010, Sopan vs Syed Nabi, the plaintiff had borrowed money from the defendant against which 3 documents were signed. One was an outright sale deed, another whereby the plaintiff had agreed to repay the said amount and secure reconveyance of the property and the third which declared that possession of land had been given against the loan. The plaintiff agreed if the amount is not repaid on “Velamavasya” the deed will be considered as sale deed. It is in that background the plaintiff claiming that he is prepared to repay the amount so as to secure back the property and, in that regard, construing the transaction as a mortgage, got issued a demand notice dated 10th September, 1980 through his Advocate which was disputed by the defendant. The plaintiff claimed the transaction as mortgage by conditional sale while the defendants claimed it to be outright sale. On appeal, the Supreme Court held that Section 58 (c) of the Transfer of Property Act which defi...

IN PETITION FOR ARBITRATION (CIVIL) NO. 65 OF 2016, Reckitt Benckiser (India) Private Limited vs Reynders Label Printing India Private Limited and Anr., the singular questiont before the Supreme Court was whether respondent No.2 ­a company established under the laws of Belgium, having its principal place of business at Nijverheldsstraat 3, 2530 Boechout, Belgium, could be impleaded in the proposed arbitration proceedings despite the fact that it is a non­ signatory party to the agreement dated 1st May, 2014, executed between the applicant and respondent No.1 ­ a company established under the Companies Act, 2013 ­ merely because it (respondent No.2) is one of the group companies of which respondent No.1 also is a constituent. The Supreme Court referring to Chloro Controls India Private Limited Vs. Severn Trent Water Purification Inc. and Ors., observed that as per the doctrine of 'Group of Companies' an arbitration agreement entered into by a company, being one within a group...

IN CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5123 OF 2019, Parminder Singh versus New India Assurance Co. Ltd. & Ors., the SUPREME COURT OF INDIA while looking into a case of permanent disability due to accident referring to the Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., decided that  that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle. 

In W.P.No.22234 of 2016, and W.M.P.Nos.18968 of 2016 and 26265 of 2018, Jasmine Ebenezer Arthur vs 1. HDFC ERGO General Insurance Company Limited 2. HDFC Bank Ltd. 3. Insurance Regulatory and Development Authority of India, the plaintiff had filed the writ petition on her claim being rejected by the insurer as well as the insurance ombudsman. The insurance company assailed the writ on several grounds : - 1) Writ is not maintainable against the insurer which is a private ltd. company 2) The disease of which her husband the insured died was not covered under the policy. 3) Opinion of an eminent doctor also concurred with the above point 4) The ombudsman had also rejected the policy The Madras High Court however did not agree. The High Court observed that a reading of Article 226 makes it clear that it can be invoked not only for infringement of fundamental rights, but also for any other purpose. Therefore, as stated above, the question that requires determination is whether the private ...