Right to practise of an advocate

First case since notification dated 15.6.2011

After notification under Section 30 of Advocates Act, all the lawyers have acquired, a right to practice before all courts/tribunals and such other forum of India as a matter of right.

AIR 2012 Ker 23
N P Pushpangadan v. Federal Bank

Sent from phone

Application for Recall and Appeal can be filed and maintained at the same time

19. In A. K. P. Haridas v. V. A. Madhavi Amma and others, MANU/KE/0076/1988 : AIR 1988 Ker 304, the Court observed that the remedy under Order IX, Rule 13 and that by way of appeal are not inconsistent, or mutually exclusive. There is no bar in resorting to both the remedies simultaneously or any of them alone. The relevant paragraph reads as under :

There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under Order IX. Rule 13, if such a remedy is also available to the party. For example when the defendant is set ex parte under Order IX. Rule 6 and an ex parte decree passed, though that decree is appealable, an application under Order IX, Rule 13 also will lie. The real question for consideration is only whether an application under Order IX, Rule 13 will lie.

 

20. Thus, it is imminently clear that a decree passed for defendant's default in filing written statement is an ex parte decree duly comes within the ambit of Order IX, Rule 13 and as such an application to set aside underOrder IX, Rule 13 is maintainable.

Held in :

MANU/UP/3612/2011

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

W.P. No. 510 (M/S) of 2006

Decided On: 04.02.2011

Appellants: Vidya Sagar and others
Vs.
Respondent: Addl. District Judge, Court No. 2, Lucknow and others

Consequential order challenged, main order not challenged - writ not sustainable.

Civ Misc WP 51649 of 2011
2012 1 ALJ NOC 55 (All)

AIR 2003 SC 1216
AIR 2008 SC 1272

Sent from phone

When the foundation goes, the edifice falls

2005 SCC 477
Competent authority v. Barangore Jute Factory

Also see Hamid Khan 2008 8 SCC 730

Sent from phone

Judgement of coordinate bench is also binding

Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. MANU/SC/1021/2010 : AIR 2011 SC 312 : (2011) 1 SCC 694, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (Bhandari, J.), after referring to the dictum in Bristol Aeroplane Company Ltd. (supra) and certain passages from Halsbury's Laws of England and Raghubir Singh (supra), has stated thus:

149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

When law requires certain thing to be done in a certain way it must be done in that way and in no other

By catena of judgments, Hon'ble Supreme Court and this Court settled that a thing should be done in the manner provided by the Act and statutes and not otherwise, vide Taylor v. Taylor (1876) 1 Ch. D. 426; Nazir Ahmed v. King EmperorMANU/PR/0020/1936 : AIR 1936 PC 253; Deep Chand v. State of Rajasthan MANU/SC/0118/1961 : AIR 1961 SC 1527; Patna Improvement Trust v. Smt. Lakshmi Devi and Ors. MANU/SC/0389/1962 : AIR 1963 SC 1077; State of Uttar Pradesh v. Singhara Singh and Ors. MANU/SC/0082/1963 : AIR 1964 SC 358; Nika Ram v. State of Himachal PradeshMANU/SC/0193/1972 : AIR 1972 SC 2077; Ramchandra Keshav Adke v. Govind Joti Chavare and Ors. MANU/SC/0511/1975: AIR 1975 SC 915; Chettiam Veettil Ammad and Anr. v. Taluk Land Board and Ors. MANU/SC/0405/1979 : AIR 1979 SC 1573; State of Bihar and Ors. v. J.A.C. Saldanna and Ors. MANU/SC/0253/1979 : AIR 1980 SC 326, A.K. Roy and Anr. v. State of Punjab and Ors. MANU/SC/0156/1986 : AIR 1986 SC 2160; State of Mizoram v. Biakchhawna MANU/SC/0522/1995 : (1995) 1 SCC 156; J.N. Ganatra v. Morvi Municipality Morvi MANU/SC/0635/1996 : AIR 1996 SC 2520; Babu Verghese and Ors. v. Bar Council of Kerala and Ors. MANU/SC/0168/1999 : AIR 1999 SC 1281; and Chandra Kishore Jha v. Mahavir Prasad (1998) 8 SCC 266.

Guarantee - liability of directors

below is a short summary of the cases sent and mentioned.

 

PC Agarwala (2005) 8 SCC 104

 

This does not help. Here certain directors were sought to be made liable under the Payment of Wages Act by holding them personally responsible for the affairs of the company. The SC held that such an approach was permissible only if the statute allowed the same, and as the payment of wages act did not provide for it, directors of a company could not be made personally liable.

 

Meeking Transmission WP Tax No. 749/2003 dated 14.2.2008

 

This also does not help. This is case on piercing the corporate veil, and the circumstances when the same is permissible.

If we are going to argue that corporate veil should be pierced then the law laid down here may be relevant (see para 70)

 

1997 AWC 645 Adesh Kumar Jain and others Vs. U.P. S.E.B. and others, 1998 All.C.J. 266 (referred in Hamirpu Awas case)

 

the Court while rejecting a similar contention that the Director of the company would be personally liable for dues of the company held that though it is true that the Director of a company may be an agent of the company but that would not result in making the assets of the company to be the assets of the Director and vice versa. It further held that in the absence of any statutory provisions, recovery from the personal assets of the Director cannot be made Not relevant

 

Shri Kundanmal Dabriwala MANU/PH/3320/2011

The case deals with the question whether a debt which has been satisfied/extinguished between the borrower and the lender can be enfroced against the guarantor for the remainer. Here pursuant to a court order, Haryana State financial corporation had extinguished its claim and therefore subsequently was not allowed to claim from the guarantor. Not relevant

IFCI v. The Cannanore Spinning,  AIR 2002 SC 1841

 - see last 4 lines of para 36 (on discharge of guarantor)

"Significantly, it may be stated that the liability of the guarantor cannot but be stated to the a strict liability and even if the principal debtor is discharged from his liability unless such discharge is through the act of the creditor without consent of the surety/guarantor, the creditor' right of action against the surety is preserved."

 

Kailash Nath Agarwal v. PICUP, AIR2003SC1886

 

The question before the court was whether a recovery action can be taken against guarantors in view of Section 22 of the SICA that bar proceedings against the company which is under BIFR. There is nothing on the liability of directors or them as guarantors.