Refusal to register a document

Refusal to register a document under the Registration Act, has to be as per the Act

AIR 2011 AP 101
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Tender condition

AIR 2011 SC 2194
AIR 2011 Ori 112

Tender condition liable to be struck down if irrational and arbitrary.
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Impossibility of performance

AIR 2011 SC 1989

Law excuses when performance is impossible.
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Breach of policy condition

Even if there is a breach of policy condition, insurance company is liable to satisfy decree at first instance. It can later recover compensation amount from owner and/or driver of offending vehicle.
AIR 2011 Raj 104
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DRT has no power to condone delay

AIR 2011 MP 205
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Stay of SARFAESI proceedings

No civil court or consumer forum can stay the proceedings under SARFAESI. AIR 2011 Ori 164
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Subsequent addendum to justification/reasons of order - not permitted

Commissioner of Police v. Gordhan Das Bhanji, AIR 1952 SC 16, the Supreme Court has held as under :

"We are clear that the pubic orders publicly made in exercise of statutory authority cannot be construed in the light of explanation subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by the public authorities agreement to have public effect and are intended to effect the acting's and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order Itself.

when law requires something to be done in a particular way it must be done in that way or not at all

Nazir Ahmad v. King Emperor, AIR 1936 PC 253. Crates on Statute .Law, 6th Edition P. 263 states the same principle In the following language :

"If the requirements of a statute which prescribe the manner in which something Is to be done are expressed in negative language, that is to say, If the statute enacts that it shall be done in such a manner or in no other manner. It has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will Invalidate the whole proceedings."

In A. K. Roy v. State of Punjab, AIR 1986 SC 2160, the Supreme Court was called upon to construe the provisions of Section 20(1) of the Prevention of Food Adulteration Act, 1954, which Inhibited institution of any prosecution for an offence under the Act not being an offence under" Section 14 or Section 14A, "except by or with the written consent of the Central Government or the State Government or the person authorised in this behalf by general or special order by the Central Government or the State Government" The Supreme Court held as under :

"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The Intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein which power had public exercise in the manner provided and not otherwise."

Journalist qualified privilege - not to disclose source

AIR 1987 Bom 339 - Javed Akhtar
68 (1997) DLT 259 - re, the pioneer

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No lease when document not signed

AIR 2011 NOC 337 (All)
WP (civil misc) 3707 of 1996
Ram Shankar Trivedi v. Commissioner
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Merit cannot be disregarded merely on technical grounds

AIR 2011 P&H 159

Merit cannot be disregarded merely on technical grounds
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Stamp Act, 1899 - Stamp Duty on Gift

Market value is not relevant in in assessment of stamp duty of the gifted property. Disclosure of value of property in gift deed is sufficient for purpose of payment of stamp duty. AIR 2011 All 135 (Sumit Gupta v. State of UP)

Specific Performance and arbitration

Specific performance can be sought and granted in arbitration. AIR 1999 SC 2102
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Section 8 Arbitration - objection

Opposing an application for interim relief is not a waiver of right to insist on arbitration.

Rashtriya Ispat Nigam v. Verma Transport (2006) 7 SCC 275
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Spes successionis and muslim law, relinquishment

Spes successionis is not transferable under Islamic law and TP act.

However, estoppel and relinquishment are applicable for protecting ends of justice

2011 9 SCC 223

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Change of end use of land acquired for public purpose

1.

Tulsi Cooperative Housing Society, Hyderabad & Ors. v. State of A.P. & Ors., reported as (2000) 1 SCC 533 (Three Judges Bench) 

"19… We are unable to accept the extreme contention urged by the learned Senior Advocate for the Government that the land should be permitted to be utilized for purposes other than those for which it was acquired. Once we uphold the validity of the proceedings for acquisition under the Acquisition Act,

it has to follow that the lands have to be utilized for the purpose for which they were acquired…."

2.

Narpat Singh & Ors. v. Jaipur Development Authority & Anr., reported as (2002) 4 SCC 666. 

"12… The land acquired
must be used for the public purpose for which it has been acquired."
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Disclosure of source of document

1.         Writ can be considered and disposed of, and a separate inquiry can be ordered    into circumstances of disclosure. Without setting up an inquiry in the        circumstances of disclosure of document, state has lesser strength in arguing that         a certain document cannot be relied upon.

B. Sudhakar Reddy v. Engineer-in-Chief, 1998(6)ALD326

“18. Before parting with this case, I would like to place on record one more aspect of the matter : the internal notings and correspondence of the officers at various level in the Government are generally confidential opinions. In the context of law of contempt, such notings fell for consideration of the Supreme Court in State of Bihar v. Kripalu Shanker, MANU/SC/0166/1987 : 1987CriLJ1860 , wherein Their Lordships observed (at para 13):

"......... ....... .. .... ... .....

It would be dangerous to found an action for contempt for the views expressed in the notes filed, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes filed by the Court after getting them summoned. This would impair the independent functioning of the civil service essential to democaracy. This would cause impediments in the fearless expression of opinion by the officers of the Government. The notings on files differ from officer to officer. It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedience of an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him. To rely upon the notings in a file for the purpose of initiating contempt, in our view, therefore, would be to put the functioning of the Government out of gear. We must guard against being over sensitive, when we come across, objectionable notings made by officers, sometimes out of inexperience, sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved."

the same logic, applies even in the context of maintaining the confidentiality of the notes, especially in the context of awarding of Government contracts of high-stakes, where day-in and day-out, we find in the newspapers that attempts are made to prevent competing contractors from participating in the tenders by use of force and complaints of threats to the officers in-charge of such process. Unless, the confidentiality is strictly maintained, the officers would not be in a position to take decisions fearlessly and independently. Invariably in a number of cases before this Court, such internal correspondence is relied upon without disclosing the source of information, by some parry or other; the State on the other hand, raises a routine objection that such material could not be relied upon, in the absence of any explanation as to the source of information, but hardly do we hear that, in any case the State took the follow-up action in the sense, that it tried to identify the person who is responsible for the leakage of such information and dealt with him appropriately in accordance with law. In the circumstances, I am of the view, having regard to the stand taken by the State that it had already initiated an enquiry into the matter of leakage of certain internal correspondence pertaining to this case, though the writ petition is disposed of, the respondents 1 and 2 are directed to complete the enquiry within a period of 30 days from to-day and report to this Court the result of such an enquiry.”

2.      Argument about source of documents are not relevant if they  are no disputed facts or documents are admitted

            Balkrishna v. State of Maharashtra, 2010(1)BomCR626

50. The consideration above clearly shows that no disputed question of facts are required to be looked into by this Court while deciding the controversy. The documents placed on record are not disputed by respondent Nos. 1,2 and 3. Most of the documents considered are the orders of the Courts/ Authorities. The arguments about source of document or then about defective affidavit in support of Writ Petition are therefore not relevant as the same have got no bearing on merits of the controversy. As adjudication in writ petition turns only on interpretation of law, no finding on alleged malafides either way, is relevant. It is therefore, not necessary to consider the cases cited by petitioners or respondent No. 6 for that purpose.

3.         Private law of confidentiality etc prevails over public interest  (decision by Justice            Chelameshwar – now in the supreme court)

            Bharat Biotech International Limited v. AP Health & Medical Housing and         Infrastructure             Development Corporation, 2003(1)ALD463

55. But that does not solve the problem in the present case. The third respondent filed an affidavit along with certain documents indicating that the petitioner had also made an attempt in the month of July, 2001 to obtain WHO Pre-qualification, but failed. This fact is not disputed by the petitioner though the petitioner raised some objections regarding the production of the document on the ground that it is a confidential correspondence between the petitioner and WHO, the third respondent being the trade rival of the petitioner cannot be permitted to place the document on the record of the Court, without disclosing thesource from which he had obtained the document.

56. In a case like the present one the larger public interest, that is the requirement of maintenance of higher standards in the health care of the society, should prevail over the private law rights of the parties. The examination of the said document discloses that the WHO made certain observations to the effect that the petitioner's manufacturing operations did not meet the good manufacturing practices set up by the WHO. Such observation was made an year and half back. The learned Counsel for the petitioner vehemently submitted that, now the first petitioner meets all the standards set up by the WHO. In fact in the counter-affidavit filed in response to the implead petition, the writ petitioner also made an assertion that the petitioner has already initiated the process once again to obtain WHO pre-qualification.

4.         If a document is relevant and admissible under the Evidence Act, 1872, it cannot be        discarded merely because source is not disclosed.

Devidas v. State of Maharashtra, 2006(2)MhLj100

9.… It is further found by the Tribunal that the letter purportedly written by Ex-Chairman of the Legislative Council filed on record with the rejoinder cannot be taken into consideration as the source from where the letter is obtained had not been disclosed. Learned counsel for respondent No. 6 has canvassed this reasoning before us. We cannot approve such an approach. A document cannot be discarded merely because the source is not disclosed. What is required to be considered is whether the document is relevant and admissible. If it is admissible in evidence, the document can be considered if it is properly proved according to the Rules of Evidence. In this behalf, a reference can be made to the ruling of the Apex Court in the matter of Pushpadevi M. Jatia v. M. L. Wadhavan reported in : 1987CriLJ1888 . In this case, the Apex Court endorsed the already established principle that relevant evidence can be taken into consideration irrespective of the method by which it was obtained.

Further Note:

Section 5 of the Evidence Act 1872 permits relevance of a piece of evidence as the only test of admissibility of evidence.  The courts have taken the view there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained. (See: Shyni Varghese v.  State (Govt. of NCT of Delhi), 147 (2008) DLT 691; M.P. Sharma v. Satish Chandra,  AIR 1954 SC 300; State of Madhya Pradesh v. Ramesh C. Sharma, (2005) 12 SCC 628; R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471; State v.  Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600)

The Hon’ble Supreme Court has gone to the extent of holding that “it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence….  It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.” (See: Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345)

5.         If genuineness of document is not denied, there is no infirmity if the source of       document is not disclosed

Jyoti Rastogi v. State of UP, 2004 3 AWC2662

Headnote

Official Secrets Act, 1923--Sections 3 and 5--Selection proceeding for appointment--Whether confidential?--Held, “no”--Document can be said to be confidential only if it has protection of Official Secrets Act or any other valid law--And such confidentiality claimed by making proper affidavit--Petitioner being candidate has right to information of proceedings of selection--Fact that she obtained it from source not disclosed--Not to make document inadmissible in evidence--Genuineness of document not denied by respondents.

Admissibility of Illegally obtained evidence

 The courts have taken the view there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained. (Shyni Varghese v.  State (Govt. of NCT of Delhi), 147 (2008) DLT 691; M.P. Sharma v. Satish Chandra,  AIR 1954 SC 300; State of Madhya Pradesh v. Ramesh C. Sharma, (2005) 12 SCC 628; R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471; State v.  Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600)

 The Supreme Court has gone to the extent f holding that “it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence….  It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.” (Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345)

Court interference in Tender - eligibility criteria

Appellants: Directorate of Education and Ors.
Vs.
Respondent: Educomp Datamatics Ltd. and Ors.

AIR2004SC1962, 2004 2 AWC(Supp)1789SC

As a matter of policy Government took a conscious decision to deal with one
firm having financial capacity to take up such a big project instead of
dealing with multiple small companies which is a relevant consideration
while awarding such a big project. Moreover, it was for the authority to set
the terms of the tender. The Courts would not interfere with the terms of
the tender notice unless it was shown to be either arbitrary or
discriminatory or actuated by malice. While exercising the power of judicial
review of the terms of the tender notice, the Court cannot say that the
terms of the earlier tender notice would serve the purpose sought to be
achieved better than the terms of tender notice under consideration and
order change in them, unless it is of the opinion that the terms were either
arbitrary or discriminatory or actuated by malice.

Disposal of files in 4 days

2009 27 LCD 1040

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Civil Court has jurisdiction to try suit for cancellation of deeds

AIR 1996 All 90

Section 44A of the Land Acquisition Act

http://www.indiankanoon.org/doc/948313/

 

In our view Section 44A prohibits transfer of land. Section 44B of the Land Acquisition Act provides for land not to be acquired under this Part except for certain purposes for private companies other than Government Companies. Sections 44A and 44B of the Land Acquisition Act are inserted by the Land Acquisition (Amendment) Act, 1962. The amendments are intended to safeguard the public interest. Therefore, Sections 44A and 44B of the Land Acquisition Act are intended to safeguard the public interest. Section 44A accordingly puts an interdict to transfer by sale, gift or lease or otherwise any acquired land without permission of the appropriate Government. "Transfer" means passage of a right from one to another. Transfer may take place in three different ways. It may be by virtue of an act done by a transferor with an intention, as in the case of a conveyance or a gift or; secondly, it may be by operation of law as in the case of forfeiture, bankruptcy, intestacy or thirdly, it may be an involuntary transfer effected through court, as in execution of a decree for either enforcing a mortgage or for recovery of money due under a simple money decree. In view of the words, "sale, gift or lease", it seems the statute contemplates a transfer inter vivos.

Policy guidelines issued by govt are binding on it

(2011) 7 SCC 493
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Land Acquisition - acquired for one purpose can be used for another

respondents are not barred from utilizing the land for any other purpose
than the one for which the land was required. It is well settled principle
laid down in a catena of judgments. In the case of Union of India v. Jaswant
Rai Kochhar MANU/SC/0358/1996 : (1996) 3 S.C.C. 491, it has been held that
land acquired for public purpose may be used for another purpose. Similar
view has been taken in the cases of Ravi Khullar v. Union of India
MANU/SC/1906/2007 : (2007) 5 S.C.C. 231; State of Maharashtra v. Mahadeo
Deoman Rai alias kalal MANU/SC/0471/1990 : (1990) 3 S.C.C. 579; and Bhagat
Singh v. State of U.P. MANU/SC/0774/1998 : (1999) 2 S.C.C. 384

Directory or Mandatory

Dattatraya Moreshwar v. The State of Bombay, AIR 1952 SC 181, this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory.

4 year limitation period under Section 47A of Indian Stamp Act, 1899

Girjesh Kumar Srivastava v. State, AIR 1998 All. 237, a full bench of this Hon'ble High Court has held that " In our opinion, the language of the sub-section shows that the period of four years qualifies the action which may be taken by the Collector…. The bar of limitation applies to the action which may be taken by the collector and not a reference." Therefore, it is settled law that even if petitioners were liable to be proceeded against, no action can be taken after lapse of four years. The above cited full bench decision of this Hon'ble Court was followed in Meena Khanna v. State of UP, 2005 3 AWC 2296, wherein after considering the plea of limitation, this Hon'ble Court was pleased to hold that "in view of decision rendered by Full Bench of this Court, the entire proceedings initiated against the Petitioner under Section 47-A of Stamp Act beyond the prescribed period of limitation is wholly without jurisdiction and beyond the authority under law. Thus the impugned order passed by respondent no.4 ad affirmed by respondent no.2 cannot sustain on this ground alone…." (emphasis supplied).

Consequences of not filing counter affidavit

2007 (25) LCD 955
AIR 1993 SC 2592
1997 (11) SCC 179
AIR 1985 SC 1019
1998 (3) SCC 112
1996 (6) SCC 342
AIR 1986 SC 638

Recovery charges

Unless actual sale happens, recovery charges are not recoverable. AIR 1983 All 234: 2002 RD 689: 2010 109 RD 148
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Interest on delayed payment

2006 24 LCD 479
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PoA holder cannot ask for certiorari, mandamus, prohibition - it must be sought by the person aggrieved personally

2010 28 LCD 1 / 2003 4 AWC 3010 (DB)
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Remedy for non compliance of directions given by high court is not application but by writ

1987 Supp SCC 705
2006 24 LCD 1741 -also for alternative remedy
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Show cause notice liable to be quashed when issue without jurisdiction

2007 218 ELT 647 (SC)
Check but
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Notice when forms an integral part -its receipt will give jurisdiction

IFB Automotive Seating: http://indiankanoon.org/doc/463286/ : AIR 2003 Cal 80

Kusum Ingots http://indiankanoon.org/doc/1876565/

Adani Exports

Similar matters should receive similar judicial treatment

Vinod Trading, 1982 2 SCC 40
Veer Bajrang, AIR 1987 SC 1345
Vishnu Traders, 1995 Suppl 1 SCC 461
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Contempt and third parties

2005 23 LCD 1082
AIR 1970 SC 1767
Even if a party is not arrayed in the original matter, he can be held up for contempt.

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226 maintainable against private individuals

2010 8 SCC 329 (para 55)
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Contempt

Deliberately stating falsehood on oath is contempt. 2000 2 SCC 362

Reconsideration of a claim - especially stale claim

2008 10 SCC 115

Limitation: don't get hypertechnical

Don't get hyper technical, see and try to decide matters on merit. From the conduct of the of the party it can't be said that it had been absolutely callous and negligent.. It prosecuted the matter after it became aware of the non-appearance of its advocate. 2010 6 SCC 786
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Limitation

Not filing separate application for condonation of delay is not consequential if otherwise averments are made and sufficient cause is there
(2010) 12 SCC 159
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Nexus with cause of accident and reason for repudiation of claim

In absence of a nexus between license of a driver and the accident, insurer would not be liable to allow claim on non-standard basis. United India Insurance Company v. Gaj Pal Singh Rawat, 2010 NCJ 37 (NC)

Limitation: Whether or not pleaded, court is bound to consider as a preliminary question

State Bank of India v. BS Agricultural Industries Limited, (2009) 5 SCC 121

Government Servant is not 'consumer' qua the government

The Complainant was not a consumer as he has not hired the services of the Central  Government for any purpose whatsoever nor he purchased anything so as to bring his status within the category of 'consumer'. As a matter of fact he himself rendered services to the Central Government in lieu of consideration. 


1 (2011) CPJ 473, para 18

Banking Ombudsman & Consumer Forum

Consumer after claiming relief in front of Banking Ombudsman can approach Consumer Fora 

IV (2010) CPJ 315

Forceful repossession of vehicle - deficiency in 'service'

L&T Finance, IV (2010) CPJ 402 (NC)
ICICI Bank v. Prakash Kaur, (2007) 2 SCC 741
ICICI Bank v. Shanti Devi, (2008) 7 SCC 532


repossession of a vehicle forcibly without serving any notice is violation of principles of natural justice.

Order is not effective unless communicated to the concerned party

AIR 1963 SC 395
AIR 1996 SC 1313
AIR 1998 SC 2722
(2002) 8 SCC 443
(2003) 5 SCC 413

pecuniary jurisdiction of the consumer forum

At the admission stage itself, the complainant has to prima facie satisfy that sufficient justification and material exist to make claim. I (2011) CPJ 308 (NC)

If the claim is exaggerated, it is to be rejected.

consumer - dispute : purchasing more than one vehicle makes it commercial purpose

Purchasing more than one vehicle for doing transport business amounts to commercial purpose 


1 (2011) CPJ  264 (NC)

Purchase in Open Auction is not 'consumer disputes'

I (2011) CPJ 449
I (2011) CPJ 526
(2009) 4 SCC 660 / II (CPJ) 1 SC

Doctrine of Election in consumer matters

It is well settled principle of law that once the complainant had adopted certain route for redressal  of his grievance, then he should have availed that to the logical end of that route.


III (2006) CPJ 136 (NC)
I (2011) CPJ 395

Excessive charging on eatables in cinemas is permissible

AIR 2007 Delhi 137

1 (2010) CPJ 98 (delhi)

Medical Negligence - expert evidence

Parties permitted to file expert evidence in remand 1 (2010) CPJ (NC)

Expert evidence necessary - I (2009) CPJ 32 (SC) "judges are not experts in medical science, rather they are laymen". This judgments looks pro - doctors.

See also 1 (2010) CPJ 620 (Delhi SCDRC)

Arbitration clause doesn't oust jurisdiction of consumer tribunals

I (2010) CPJ 602 (UP SCDRC) at para 4/5.

Medical Negligence - no fees, no 'service'

1 (2010) CPJ 281

See also VP Shantha

Medical negligence - when does the obligation of the hospital cease

Mahendra Devi v. Subrata Patra, 2006 CTJ 401 (CP) (SCDRC)

Obligation of nursing home and its staff ceased as soon as the patient was discharged in good condition.

Inordinate Delay in passing judgment by trial court ground for setting it aside

See AIR 2001 SC 3173
1 (2010) CPJ 611 (CG-SC)

consumer - definition

LAXMI ENG. WORKS Vs. P.S.G. INDUSTRIAL INSTITUTE reported in the AIR 1995 page 1428 and SCC 1995  (3) page 583.  - http://indiankanoon.org/doc/1433560/ 


does not include 'commercial activities'.

Pipeline Provisions - retroactivity

[1995] 2 All ER 714
[1970] 3 All ER 165

Interim order does not continue automatically

2009 (3) AWC 3115:
2009 (6) ALJ 397
AIR 2007 SC 1411
AIR 2008 SC 2718

Sale of property in violation of Order 39 injunction

Sale is invalid in exercise of power u/s 151 CPC

See  AIR 1996 SC 135, AIR 2008 SC 901: (2008) 8 SCC 348

Settlement Agreement - binding nature

Double Dot Finance Services

2005 1 ARBLR 324 (Delhi)
upheld by DB in 2009

Public Policy and Contracts : Distinction between Coercion and Public Policy

D.S. Veer Ranji v. Ciba Speciality Chemicals (I) Limited, Bombay High Court, 2001. (2001) Indlaw Mum 454

Joint venture - meaning / scope / definition

See Note at http://india-financing.com/Law%20of%20Joint%20Ventures%20in%20India-%20Article.pdf

 AIR 1986 Guj 18

Applicable law

2006 5 SCC 702 - law will apply which is in force at the time of the grant not which is at the time of the making of an application.

(1996) 5 SCC 268

[1995] 2 All ER 714

482 and discharge

Notwithstanding that discharge application can be filed, a petition under 482 CrPC is still maintainable. 1998 7 SCC 698

Fixation of rate of interest

See 2011 (3) BomCR (A.B) 114

       2011 (3) BomCR (SC) 87

Discussion on fixation of rate of interest

Consumer Status in Electricity

If a premises are used as residential premises and professional also carries on his professional work there, he is entitled to benefit of residential tariff LT-1. Position would be different when premises are not used for regulatory purposes. Krupa Zubin v. MHERC, 2011 (2) BCR (OS) 510

No pleading, No evidence.

Pleadings are foundation on which evidence can be lead. No evidence is permitted if there is no pleading. 2011 (2) Bom CR (OS) 266.

Equality

Nobody is above the law. Arundhati Walavalkar v. State of Maharashtra, 2011 (2) Bom CR (SC) 14. [prosecution of a judge travelling without ticket]

Examination of witness - presence of other witnesses

There is no specific provision in CPC to provide that when a witness is being examined, other witnesses who are proposed to be examined by party concerned should not be present in court. Indur Kartar Chhugani, 2011 (2) Bom CR (OS) 12.

Cheque Bounce and 420 IPC

Conviction under Section 138 of the NI Act. Prosecution under 420 IPC was barred by Section 300(1) of CRPC. Kolla Veera Raghav Rao, 2011 (2) Bom CR (Cri) SC 754

CPC and arbitration

Strict provisions of Evidence Act or CPC are not to be followed by arbitrator, but principles of natural justice cannot be over looked at any stage of proceeding. Shunk Corrugators, 2011 (2) BomCR (OS) 19

Publicity to a debt

In England, it is an offence by statute to unduly publicise the existence of any debit with the object of concerning the debtor to pay.  This is unlawful harassment. Argyll v. Argyll, (1965) 1 All ER 611 (Thomas J.)

Same lawyer cant act for both parties

Hilton v. Barker Booth, 2005 1 All ER 651

Without Prejudice

2006(14)SCALE300

Re: Legal Aid

Mere ground that petitioner is a woman, she is not entitled to legal aid. Existence of prima facie case for granting of legal aid is necessary. AIR 2011 NOC  212 AP

Penalty and Forfeiture Clause

There is no absolute right to forfeit entire amount without proof of total damages. When material on record shows that extent of damages is less, no one can be allowed to enrich himself by taking advantage of the forfeiture clause. When actual loss is ascertainable , entire forfeiture cannot be held valid. AIR 2011 AP 65.

'consumer' and cooperative soiciety

Complaint against Society is maintainable but members cannot be held personally liable. AIR 2011 Bom 68.

Arbitration - section 9 - when exercised

Interim injunction 

Court will not grant injunction where court feels that the grant of injunction would frustrate the object of arbitration. AIR 2011 Mad 110

Service of posts

Endorsement "not claimed" tantamounts to valid service. AIR 2011 Cal 72

Legal Aid

Mere ground that petitioner is a woman, she is not entitled to legal aid. Existence of prima facie case for granting of legal aid is necessary. AP 2011 NOC

Winding up - disputed debt

Dispute in relation to a debt means dispute between the petitioner and the respondent company. There is a privity of contract, and dispute between third party and the respondent company is not relevant.

Sunil Kothari v. Today Homes, (2011) 107 SCL 216 (Delhi)

Period of limitation cannot be curtailed or cut short by contract

National Insurance Co. Ltd. v. Sujir Ganesh Nayak (1997 Supreme Court dated 21.03.1997)

Period of limitation cannot be cut short by contract.


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Contracts and change in law

Contracts already entered into giving rise to accrued rights and interest are not disturbed by change in law (esp designated legislation)

See


Parag Milk Foods P Ltd v. Union of India, WP No. 2231/2011 (pending)
Parag Milk Foods P Ltd v. Union of India, 2007 Vol. 109 (3) Bom LR 1774 (para 10c, 8c)
Eurotex Industries v. Exports Limited, (2011) 113 (2) Bom LR 0834 (para 33)
Union of India v. Asian Food Industries, (2006) 13 SCC 542 (para 48)
Agri Trade India Services P Ltd v. Union of India, 132 (2006) DLT 500 (para 48)

Southern Petrochemical Industries Co Ltd v. Electricity Inspector, (2007) 5 SCC 447 (para 127)

Vishwant Kumar v. Madan Lal Sharma, (2004) 4 SCC 1 (para 4) - there is a difference between a mere right and what is right accrued or acquired.

Authorisation to sue

Suit filed by a person authorised by Chief Executive Officer does not constitute authority to sign and verify plaint in absence of resolution of board of directors. Letter of authority is not sufficient.
(2011) 163 Comp Cas 37 (SC)

Director's capacity to file pleadings

(2011) 163 Comp Cas 37 (SC)

Even a director will need to be authorised by a board resolution to file pleadings, and a letter of authority is insufficient

Provisions of the CPC not considered though.

RTI - information relating to corruption and human rights is not exempt

2011 (266) ELT 456 (Mad.)
Superintendent of Police v. R. Karthikeyan

Especially statistical information cannot be refused.


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Foreign Guarantee and FEMA

If the said guarantee declaration had been executed by the respondent in breach of any provisions of FEMA or FERA, the respondent could be prosecuted for the same. But, it could not be said that the guarantee was null, void or could not be enforced on that ground.

There was no doubt that a debt was owed by the respondent to the petitioner and, further the petitioner did not have to wait to obtain a decree from civil court on the basis of the guarantee declaration.

[2011] 106 SCL 433 (delhi)



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Pleadings are foundation of a case

Pleadings are foundation on which evidence can be lead. Opportunity of proof and evidence need not be given if pleading to effect are not there. 2011 (2) Bom CR (OS) 266

Guarantee - when the debt accrues

The liability of the guarantor would not arise until (a) the borrower has failed; and (b) a notice of demand has been served on the guarantor. Only then can it be said that the debt would accrue. 1981 51 comp cases 301


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Presence of witnesses in cross examination

There is no specific provision in CPC to provide that when a witness is being examined, other witnesses who are proposed to be examined by party concerned should not be present in court.
2011 (2) Bom CR 12 (OS)

Right to information - no need to give reasons

AIR 2011 Bom 53

Use of Hindi in HIGH COURTs

AIR 2011 NOC 178 (All)

Arguments and pleadings can be in Hindi, but a judge cannot be compelled to deliver a judgment in Hindi. Hindi pleadings to be accompanied by english translations

No sanskrit permissible.

Withdrawal application

Application for withdrawal of withdrawal application is maintainable AIR 2011 SC 1137

Money lending

Advancing of friendly loan as an isolated single transaction does not require money lending license. AIR 2011 Jha 47

Power of Attorney Holder is not entitled to right of audience

Varsha Maheshwari v. Bhushan Steels, AIR 2011 Bom 58.

except with permission of the court

SEBI Act - when can Art 226 be invoked.

Rose Valley Real Estates & Construction Ltd v. SEBI, [2011] 106 SCL 598

While the power under Art 226 can be exercised for (a) judicially reviewing a decision or order of the Board in absence of a functioning Tribunal; and (b) for examining the validity of the decision or order when its validity is challenged questioning the vires of the statute or the provision under which the decision or order is made, it can also also be exercised in the interest of  justice or for preventing a miscarriage of justice, e.g. when the aggrieved person is unable to appeal under Section 15T or 15Z for absence of decision or order of the Board or the Tribunal.

Right to Information Act - constitutionality

Constitutional validity of second schedule of the Right to Information Act 2005 (i.e. exclusion of certain organisation) relating to Enforcement Directorate is upheld.
[2011] 106 SCL 564, ESAB India v. Special Director, Enforcement Directorate.

fraudulent conduct of business - mens rea

Application under Section 542/543 of the Companies Act, 1956 for fraudulent conduct of business - such allegation which is criminal nature in nature, it is necessary to prove that such an allegation which is criminal in nature, it is necessary to specifically plead and prove, and mens rea is required.
OL v. V. Selvaraj (Madras) SCL (mag) 56

Notice when complete

Notice is effective against the person to whom it is sent only when it reaches him

AIR 1996 SC 330

1998 92 Comp Cas 517 (Kar.)

UCP - Certificate of Posting

Subhash Chandra v. Bihar, 1995 Supp 1 SCC 325 - when some important communication is sent, the best way is to either lodge the same personally or send by RP and not by UCP


Shiv Kumar v. Haryana 1994 4 SCC 445 - it is not safe to decide a controversy at hand on the basis of the certificate of posting as it is not difficult to get such postal seals at any time.


LMS Ummu Saleema v. BB Gujral, AIR 1981 SC 1191, presumption in evidence act regarding sending of post is only a presumption that it has been delivered and not an inevitable conclusion

Imposition of Penalty - Discretion

Cabot International Capital Corporation v. SEBI, Appeal No. 36/2000 (Order dated May 04, 2001) - even if a violation (SEBI) is proved, to award a penalty is within the subjective satisfaction of the Adjudicating Officer.  See Bombay HC order dated March 3, 2004 in Appeal No. 7/2001 (SEBI v. Cabot...)

Judicial Discipline - Law of Precedents

Official Liquidator v. Dayanand, 2008 10 SCC 1
Mansukh Stock Broker . SEBI decided on January 10, 2011 (Appeal No. 194 of 2010)

vehicle not transferred on the date of accident, no insurable interest

Complainant is not entitled to insured sum because as on the date of accident the vehicle was not transferred in the name of the complainant.  Therefore, it cannot be said that the complainant had any insurable interest in the vehicle. In terms of S 157 of the MV Act, the deemed transfer of insurance vehicle is limited to  third party risk and not to others.  NIA v. Chandrakant Bhujang Rao, II (2010) CPJ 170 (NC) (relying on Supreme Court  1996 (1) SCC 221.)

Change in Director / Liability of the Company

A company must take steps to see that it is aware of all the changes that it has to notify to the Registrar, and if it fails to do so, then the company becomes liable for default. [Public Prosecutor v. Coimbatore National Bank Ltd. (1943) 13 Comp Cas 50 (Mad); see also Trichinopally Mills Ltd, In re (1941) 11 Com Cas 4 (Mad)].

Section 303 of the Companies Act, 1956

http://indiankanoon.org/doc/141028/

Impossibility

The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do.

AIR 1954 SCR 310

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Contempt for breach for permanent injunction and Rule 2A of Order 39, CPC

MCGM v, Bhikanlal Nanakchand Sharma, (2007) Vol. 109 (1) Bom. L.R. 0430

Cheriyan Mathew v. Kuriakose Peter, (2004) 13 SCC 637

 

 

Rule 2A of Order 39 is not available for breach of permanent injunction. (See also AIR 1987 Guj 160); (2002) 3 BCR 161.

 

Also doubtful if Rule 2A could apply to breach of undertaking given to the court.

 

Account of Profits

in case of breach of fiduciary duty


K.C. Skaria vs. The Govt. of State of Kerala, AIR 2006 SC 811


in case of breach of contract


Attorney General v. Blake, 2004 All ER (HL)

Frustration of contract:Onus of proof

Only if the party pleads frustration, will the other party get to plead and prove that frustration was due the the breaching party's neglect, default or self-induced. Sri Amuruvi v. KR Sabhapathi, AIR 1962 Mad 132; Dinanath v. Premchand, MANU/MP/0120/1956; VL Narasu v. PSV Iyer, AIR 1953 Mad 300

Court will not interfere so long as arbitrators view is a possible one and it remains within the terms of contract

NHAI v. Unitech-NCC Joint Venture, MANU/DE/2176/2010; McDermott International v. Burns Standard Co. Ltd, (2006) 11 SCC 181

Pleadings to be liberally construed

 Bismillah v. Janeshwar Prasad (1990) 1 SCC 207 (para 9); Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242;  Smt. Kalawati Tripathi v. Smt. Damayanti Devi, AIR1993 Pat 1 (para 13)

Courts cannot decide outside pleadings

(Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284; Kalyan Singh Chouhan v. C.P. Joshi, JT 2011 (2) SC 97).  It is not permissible for the court (and also arbitral tribunal) to travel beyond the pleadings

Unilateral mistake - misunderstanding scope of contractual obligations

Dhulipudi Namayya v. Union of India, AIR 1958 AP 533 and State of Andhra Pradesh v. Pioneer Builders, 1999 (3) ALD 140 which relied on Hillas & Co. v. Arcos Ltd., (1932) All ER 494.  Pioneer in Appeal  (AIR 2007 SC 113) reversed on other grounds. This was untouched.

Arbitration clause can survive even the settlement agreement

AIR 1990 Bom 45

exclusion of jurisdiction of indian courts

territorial  jurisdiction of a court when the plaintiff intends to invoke jurisdiction of any court in India, has to be ascertained on the basis of the principles laid down in the Code of Civil Procedure.  Agreement cannot take away jurisdiction of court.  (2008) 1 SCC 618

Fraud and Contract

Fraud which vitiates the contract must have a nexus with the acts of the parties prior to entering into the contract.
(2006) 13 SCC 599, Reliance Salt Ltd v. Cosmos Enterprises 

Limitation and Arbitration - Section 14

Benefit of Section 14 of the Limitation Act, 1963 is also available in arbitration proceedings. (2011) 1 SCC 117

Jurisdiction

The place where the repudiation is received is the place where the suit would lie. (1989) 2 SCC 163 ABC Laminart

10F Appeal and Arbitration

The High Court has no jurisdiction under Section 10F of the Companies Act against the orders of the CLB allowing applications for referring the  matter to arbitration.  
Vijay Sekhri v. Tinna Oil & Chemicals,    2011 100  CLA Del 344


(SUBJECT TO DISCUSSION)


SEE ALSO : SUMITOMO 2008 4 SCC 91

Section 543 of the Companies Act - preference

Under S 543 of the Companies Act only a member or a creditor could make an application, not the Government (SFIO).
While SFIO can approach the board under Section 401, but it has to show ingredients necessary for 397/398.


Pradeep Vakil v. Union of India, [2011] 161 Comp Cas 231 (CLB - Mum)

Arbitration and 397/398 Company Law Board

20th Century Finance Corporation Ltd v. Union of India, [2011] 161 Comp Cas 247 (Delhi)

"The grievance of the appellant was that the respondent had not adhered to the clauses of the sponsorship agreement. The right to get the memorandum and the articles of association amended had accrued to the appellant and the pre-requisite for the appellant was to fulfill all the obligations imposed on it by the sponsorship agreemnt as it was disputed by the respondents for the amendment of the mem/arts.... It flowed from the contractual obligations contained in the sponsorship agreement and had to be necessarily determined through means of arbitration as contained in the article 8(2) of the sponsorship agreement. "

arbitration, termination of the proceedings

Arbitrator of his own cannot extend time, and the proceedings get terminated automatically. BK Gopakumar v. NFDCL, 2011(1) BOMCR 12

Arbitration Agreement

mere use  of the word "arbitration" in a clause does not make it as arbitration agreement. Discovery Properties & Hotels Pvt Ltd v. CIDCO, 2011(1) BOMCR 343

foreign judgment

Section 13(b) Foreign judgment passed by the UK High Court under its summary procedure after considering evidence available on record would be decision on merits. It would be conclusive hence enforceable in India. AIR 2011 P&H 69 (NOC)

Also  simultaneous execution petition in India and Foreign Court not barred, especially when the decree holder has started that nothing has been recovered from execution filed in other court.


costs imposed by foreign court is a decree, can be executed under section 44-A of CPC.

winding-up and alternative remedy

"when the petitioner invokes a just and equitable ground ... the petitioner must convince the court not only of just and equitable ground for ordering winding-up, but also that there is no alternative remedy open to the petitioner. Apart from that the petitioner is bound to substantiate the conditions of insolvency existing to persuade the court to exercise the equitable jurisdiction. If the details of the insolvency are wanting and no supportive documents are produced, then the petitioner could not be said to have proved prima facie the status of the respondent company's insolvency. The creditor has to show the prima facie evidence that the (a) existing assets and the probable assets are insufficient to meet the existing liabilities; (b) the company is heavily indebted to various debtors; and that there is no possibility of the respondent company's making profit or the business being carried on....."

"the jurisdiction of the company court is summary jurisdiction and unless there is material before the company court to show that the company has reached the stage of commercial insolvency, the court will not order a winding up."

Hence, unless the petitioner made a definite case as to the commercial insolvency of the respondent, the mere fact that there was corporate guarantee would not entitle the petitioner to go for this relief."

[2011] 105 SCL  274 (Mad) - Dallah Abrarka v. Pentasoft Technologies Ltd

Arrangement without consideration S 391

expression 'arrangement' contemplates give and take between the parties and where there was no consideration, i.e. no give and take between the parties, same was not an arrangement under section 391 of the companies act and therefore not reconstruction capable of being sanctioned under section 391. [2001 105 SCL 301 (Guj)]

NOTE: This case has received adverse comments from commentators and senior counsels. 

Winding-up and registered office of the company

Kotak Mahindra Bank v. Hermonite Associates Ltd, [2011] 105 SCL 421 (Delhi)

"While examining the words 'has served on the company, b y causing it to be delivered at the registered office, by registered post or otherwise in section 434(1)(a), reference must be made to Section 51. The word 'served' in section 434(1)(a) is followed by the words 'by causing it to be delivered at its registered office.' The latter words have to be given due effect .... The document which includes notice under Section 434(1)(a) may be treated as served if it is 'sent' in the manner specified under Section 51.... Otherwise, by keeping the registered office closed and locked, service of notice under Section 434(1)(a) or documents under Section 51 cannot be effected...  Any other interpretation would make the provisions of the Act unworkable and will be detrimental to third parties, creditors or the members."


also  (1989) 1 SCC 264 - sending by (R) post is sufficient compliance.

winding-up should not be a method to arm twist

See IBA Health (I) P Ltd v. Info Drive Systems Sdn Bhd., [2010] 104 SCL 367 (SC)

A company court therefore should be guarded from such vexatious abuse of the process and cannot function as a Debt collecting agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere.

misstatement in prospectus

Dharmendra Kumar Lila v. ROC, [2010] 104 SCL 275 (Delhi)

SARFAESI Act, challenge to deposit requirement

Condition of pre-deposit of 25% is not unreasonable.

courts cannot substitute legal provisions nor can can they legislate.

Consumer - Admission of Complaint

Admission of complaint filed under the Act should be rule and dismissal thereof should be exception - but if complaint is barred by time, the forum is bound to dismiss the same unless consumer makes out a case for condonation of delay. AIR 2011 SC 212

Appeal and 227

Power under Section 115 CPC and that under Art 227 are different and not inter changeable. When there is a remedy available by way of 115, the court should not exercise power under 227 except in exceptional cases. AIR 2011 Gau 1.

Bar Council Resolution to not defend accused is illegal

AS Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308

Termination of contract for loss of confidence

Percept Talent Management Pvt. vs Yuvraj Singh, 2008 (2) ARBLR 49 Bom, 2008 (2) BomCR 654: http://www.indiankanoon.org/doc/1028780/. 

" An agreement of this kind is founded on trust, confidence and the basic principles which underlie a fiduciary relationship. The agreement is an instrument to provide an exposure to the public persona of the sportsperson. The public image of the sportsman is what the agreement is inextricably involved in generating. And the agent who represents the sportsman, negotiates on his behalf and deals as his sole and exclusive representative is a vital link in the creation of a public image. Such agreements are founded on trust and confidence. Where trust and confidence have ceased to exist in a relationship, the relationship cannot survive. The law will not enforce and compel parties to observe a relationship such as this where the foundation upon which it exists disappears. For the law does not enforce the husk where the substance does not survive. The aggrieved party is left to seek its remedies for breach in damages." 

Termination of Contract of Employee - compensation

“When a Claimant has been wrongly dismissed or his contract of engagement has been wrongly terminated, damages cannot include compensation for injured feelings, for the manner of his dismissal or for the loss he may sustain from the fact that his having been dismissed makes it more difficult for him to obtain fresh employment: Addis v Gramophone [1909] AC 488 ; Johnson v Unisys Ltd [2003] 1 AC 518 ;McGregor on Damages (17 ^th ed) 28–018 to 28–019, 28–023 to 28–024 pp 950–952, 954–955