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Indian Laws - Case Laws
Showing 41 to 60 of 71 Records
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2018 (5) TMI 1788 - SUPREME COURT
Remand of the case to High Court - Section 100 of the Code of Civil Procedure, 1908 - whether the High Court was justified in allowing the appeal? - Held that:- The need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribed under Section 100 of the Code of Civil Procedure, 1908 - the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribed under Section 100 of the Code.
The High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it - Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to subsection( 5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".
The High Court committed an error because it framed two additional questions in the judgment itself.
Having formed an opinion to remand the case, we have refrained from applying our mind to the merits of the case. It is now for the High Court to decide the appeal on merits - appeal allowed - The case is remanded to the High Court for deciding the appeal afresh on merits in accordance with law.
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2018 (5) TMI 1762 - MADRAS HIGH COURT
Broadcasting services - Whether the impugned Regulations and the Tariff Order can exist and operate through the powers conferred to and under the TRAI Act, 1997?
Whether the impugned Regulations and the Tariff Order would impinge upon the provisions of Copyright Act, 1957?
Held that:- The jurisdiction of the enactments have already been dealt with in extenso. Suffice it is to state that TRAI Act involves regulation of airwaves and frequencies being public properties, touches upon various stakeholders with primacy to the public interest. To put it differently, the general public is the king, being the subscriber whose interest should be guarded and protected under the Act as a prime factor. TRAI is thus, obligated to take adequate measures as mandated by the statute. The Cable Television Networks (Regulation) Act, 1995 and the Indian Telegraph Act, 1885 go with the TRAI Act strengthening the hands of the authority. TRAI Act came into being on the need enough to have a better enactment than the Telegraph Act, 1885, supported and safeguarded by the Cable Television Networks (Regulation) Act, 1995. This Act deals with cable television network. That is the reason why, the authority is the same along with the definition of digital addressable system and introduction transmission of programmes through digital addressable system etc. Therefore, this enactment deals with the last part of the broadcast.
Section 2(k) of the TRAI Act merely explains a telecommunication service. Therefore, even assuming it can be divided into three parts as suggested by the learned counsel for the petitioners, the conclusion does not change. The TRAI Act does not deal with a mere means of transmission alone. Perhaps the petitioners do understand it rather well. That is the reason why they laid the challenge before the Division Bench of Delhi High Court to the very provision. The principle governing the noscitur a sociis cannot be applied as the petitioner suggested. There is no ambiguity on the definition provision.
The permission obtained from the Central Government would bring a broadcaster within the fold of a service provider. The petitioners themselves claimed and raised disputes as service providers. A finding was also rendered by the Court which reached finality. Thus, as a natural sequitor, the Regulations and Tariff Order would ipso facto apply to the petitioners' case.
While there is no BRR involved under the TRAI Act, no right has been given to a television channel under Section 37 of the Copyright Act. Merely because, the television channel becomes a broadcaster, no independent right can be placed as against the “broadcasting” which may involve any work or a programme coming under the Act's purview. In this connection, the definition of TV Channel as adumbrated in the impugned regulations will have to be seen. While the copyright does not make any reference to a TV Channel, it has been referred accordingly as such, only after obtaining permission for downlinking under the impugned regulations. Therefore, the TV channel has been understood in a very restrictive manner under the impugned regulations. Needless to state that the Cable Television Networks (Regulation) Act, 1995, also deals with the television channel as against the Copyright Act.
A party, who approbates and reprobates should not be shown any indulgence by the Court. Certainly, the law governing "issue estoppel" would also come into play. It also applies to the declaration made by the Court on the basis of the stand taken by the petitioners that it is a service provider under the TRAI Act.
Both the Cable Television Networks (Regulation) Act, 1995, and the TRAI Act are coming under entry 31 of List I of VII schedule. Therefore, if once competency is attributable to the Cable Television Networks (Regulation) Act, 1995, it is axiomatic that the same has to be extended to the TRAI Act as well. On the same analogy, a power conferred under the aforesaid Act cannot be imported into the Copyright Act through the amendments made. Merely because the petitioners are affected, the impugned regulation and the amendment would not partake the character of content. While there is no material to support the conclusion on content, as contended by the petitioners, the judgments inter se governing the field have not been taken note of.
Petition disposed off.
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2018 (5) TMI 1750 - GAUHATI HIGH COURT
Arbitration award - Section 34(5) of the Arbitration and Conciliation Act, 1996 - issuance of prior notice to the party - Held that:- Section 34(5) was inserted by way of amendment under the Arbitration and Conciliation (Amendment) Act, 2015, made effective from 23.10.2015. Section 34(5) was inserted by way of amendment under the Arbitration and Conciliation (Amendment) Act, 2015, made effective from 23.10.2015 - A perusal of the aforesaid provision under Section 26 of the Amendment Act, it is seen that arbitral proceedings which have commenced in accordance with the provisions of Section 21 of the principal Act would remain unaffected by the Amendment Act unless the parties otherwise agree. The terms and conditions of the Contract in question are governed under the General Conditions of Contract, 1998.
The application filed by the appellants under Section 34 of the Act was not maintainable in the absence of compliance of the mandate of Section 34(5) of the Act - appeal dismissed.
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2018 (5) TMI 1749 - DELHI HIGH COURT
Condonation of delay in filing petition - relevant time - the copy of the petition(s) was served on the respondents for the first time on 19.04.2018 - case of respondents is that as the petitions could not be filed without service of a copy thereof on the respondents, the date of filing of the present petitions has to be considered as 19.04.2018 - the petitions were filed beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award - condonation of such delay - Section 34 (5) of the Arbitration and Conciliation Act, 1996.
Held that:- Section 34 (5) of the Act clearly show that the service of a prior notice on the other party is a mandatory requirement before filing of an application under Section 34 of the Act. Not only is such notice to be given but also the application itself has to be accompanied by an affidavit of the applicant endorsing the compliance of said requirement. This requirement of the service of prior notice therefore, cannot be said to be a mere formality or directory in nature.
Taking the date of filing as 19.04.2018, the petitions would be beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award and this Court would not have the power to condone the delay even if the petitioner is able to make out a sufficient cause for this delay - It was incumbent on the petitioner to have served a copy of the petition(s) on the respondents before filing the present petition. In absence of such prior notice to the respondents, the filing itself cannot be considered as valid in law, so as to stop the period of limitation.
Petition dismissed.
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2018 (5) TMI 1368 - SUPREME COURT
Partition and separate possession of suit properties - concept of ancestral property - whether the appellants were entitled to claim partition in ancestral property in view of the amendment in the Hindu Succession Act, 1956 by adding Section 29-A vide Chapter II-A under the heading of Succession by Survivorship? - Held that: - On a plain reading of the newly added provision i.e., Section 29-A of the Act, it is evident that, inter-alia, daughter of a coparcener ought not to have been married at the time of commencement of the amendment of 1989 - In the instant case, it is admitted position that both the appellants, namely, Mangammal, got married in the year 1981 and Indira, got married in or about 1984 i.e., prior to the commencement of the 1989 amendment. Therefore, in view of clause (iv) of the Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, appellants could not institute the suit for partition and separate possession at first instance as they were not the coparceners.
Moreover, under Section 29-A of the Act, legislature has used the word “the daughter of a coparcener”. Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989 - the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.
Division of property - Held that: - the appellants are not entitled to any share in coparcenary property since they were not the coparceners in view of 1989 amendment. However, on the death of their father and mother, appellants would get their property through succession in their respective shares.
Appeal allowed in part.
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2018 (5) TMI 1241 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Validity of E-auction Sale - validity of Notice issued under Rule 8 (6) of the Rules, 2002 dated 23-09-2016 and 03-11-2016 issued by the Respondent Bank against the alleged secured assets - petitioners argue that the writ petition is maintainable as the statutory alternative remedy proved to be ineffective and that pendency of the same would not bar his clients from invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution - SARFAESI Act.
Held that: - the sale held by the bank on 30-11-2016 pursuant to the notice dated 23-09-2016 under Rule 8(6) of the Rules of 2002 followed by the sale notice dated 21-10-2016, published in newspapers on 23-10-2016 under Rule 9(1) of the Rules of 2002, fell foul of the statutory mandate at its very inception, as the petitioners were not afforded the required 30 days clear notice to exercise their right of redemption, as the requisite gap was not maintained between the date of receipt of the Rule 8(6) notice dated 23-09-2016 and the publication of the Rule 9(1) sale notice on 23-10-2016, whereupon their right of redemption under the amended Section 13(8) of the SARFAESI Act stood prematurely extinguished.
The writ petition is accordingly allowed holding that the sale held by the bank on 30-11-2016 stands vitiated on grounds more than one. Consequently, the sale certificate dated 13-01-2017 shall also stand cancelled - petition allowed.
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2018 (5) TMI 1140 - SUPREME COURT
Non-compliance with pre-deposit - whether the order of the National Company Law Appellate Tribunal dismissing the main appeal itself of the appellant herein for non-compliance of the direction to deposit the amount as a condition for grant of stay, is justified and legal? - section 53B of the Competition Act, 2002.
Held that: - provisions of Section 53B of the Act confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied - Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so.
The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.
Appeal restored which shall be decided by the Appellate Tribunal on merits.
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2018 (5) TMI 1065 - DELHI HIGH COURT
Interim bail - Sections 21/25/29 NDPS Act - smuggling of heroin - bail is sought on the ground that the wife of the petitioner is unwell and the family of the petitioner comprises of his aged father, wife and eight children - Held that: - States report has been filed, which though does not confirm that the wife of the petitioner has tuberculosis, however, confirms the structural picture of the parental house of the petitioner. The picture depicts the house in a completely dilapidated house and complete disrepair - the petitioner has made out a case for grant of interim bail for a period of four weeks from the date of his release, on furnishing of bond as required - petition allowed.
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2018 (5) TMI 1064 - DELHI HIGH COURT
Bilateral investment treaty arbitrations - Jurisdiction and approach of National Courts or on the nature of arbitrations under such treaties - As the number of investment treaty arbitrations have grown, concerns over the investment treaty system have arisen. These concerns include a perceived deficit of legitimacy given that States are being judged on their conduct by private non-elected individuals. Concerns have also arisen in respect of inconsistent arbitral awards, the independence and impartiality of arbitrators, and the delays and costs of arbitral procedures.
Whether there is a threshold Bar or inherent lack of Jurisdiction with this Court to deal with bit arbitration? - Held that: - It is settled law that the jurisdiction of the Civil Courts in India is all embracing except to the extent it is excluded by an explicit provision of law or by clear intendment arising from such law. The ouster of the jurisdiction of a Civil Court is not to be lightly inferred and can only be established if there is an express provision of law or is clearly implied.
Though Article 253 of the Constitution empowers the Indian Parliament to make a law to give effect to International Treaties, yet the Parliament has not passed any specific legislation to give effect to BIPA Agreements. However, there is no statutory bar or case law relating to treaty obligation which creates an ouster of jurisdiction or threshold bar for Indian courts in relation to a bilateral investment treaty arbitration. Accordingly, there is no explicit or implicit ouster of jurisdiction of National Courts.
This Court is of the opinion that the agreement to arbitrate between an investor and the host State which results by following the treaty route is not itself a treaty but falls in a sui generis category. In the present BIPA Arbitration, a contractual obligation and a contractual right is involved and therefore, there is no bar as to the subject matter of the dispute or as to the jurisdiction of the court to hear the present case.
This Court is of the view that the intent of the BIPA is to afford protection to investors and such a purpose is better served if the arbitration agreement is subjected to international law rather than the law of the State. After all the rationale behind the bilateral investment treaty is primarily to afford protection to private investor from expropriation by the foreign State (which normally takes place through State Legislation). The treaty also involves a deliberate attempt to ensure for private investors the benefits and protection of consensual arbitration; and this is an aim to which the National Courts should, in an internationalist spirit and because it has been agreed at an international level, aspire to give effect - the agreement to arbitrate between an investor and a host State is contractual inasmuch as it is not itself a treaty but flows from the treaty provisions which is justiciable in accordance with the principles of international law and there is no threshold bar or inherent lack of jurisdiction in the court to deal with BIPA Arbitrations.
Whether the Courts in India can restrain Bilateral Investment Arbitration, which are oppressive, vexatious, inequitable or an abuse of the legal process? - Held that: - there is no unqualified or indefeasible right to arbitrate. The National Courts in India do have and retain the jurisdiction to restrain international treaty arbitrations which are oppressive, vexatious, inequitable or constitute an abuse of the legal process.
As pointed out by the learned Amicus Curiae, the concepts of ‘oppression, ‘vexation’, ‘inequity’ and ‘abuse of process’ have been known to the common law and equity for centuries, being the primary theories used by the court to regulate its process pursuant to its inherent jurisdiction - the doctrine of abuse of rights is founded upon the notion that a party may have a valid right, including a procedural right, and yet exercise it in an abnormal, excessive or abusive way, with the sole purpose of causing injury to another or for the purpose of evading a rule of law, so as to forfeit its entitlement to rely upon it. The theory of abuse of rights has its origins in private law and is recognized in the great majority of national legal systems.
Whether filing of multiples claims by entities in the same vertical corporate chain with regard to the same measure is per se an abuse of the legal process or vexatious? - Held that: - There is no presumption or assumption that filing of multiple claims by entities in the same vertical corporate chain with regard to the same measure is per se vexatious - Proceedings could be vexatious where they are absurd. For instance, if having lost a BIPA arbitration on merits, the same investor invokes another BIPA arbitration for the same claim without having made any investment through the second foreign State; but it would not be so held where there are substantial reasons to bring the two sets of proceedings simultaneously - Since it is the case of the Plaintiff-Union of India that the claim under the Netherlands-India BIPA is without jurisdiction, invocation of another treaty by the parent company cannot be regarded as an abuse per se.
The investment treaty arbitration between a private investor and the host State, which results by following the treaty route is not itself a treaty, but is sui generis and recognized as such all over the world. It has its roots in public international law, obligations of States and administrative law. As a species of arbitrations, it is of recent origin and its jurisprudence cannot be said to be settled or written in stone; far from it. Investment Treaty jurisprudence is still a work in progress - As the present case is not a commercial arbitration, the Act, 1996 shall not apply. This Court is of the view that in a situation where the Act, 1996 does not apply, its inherent powers are not circumscribed by anything contained in the Act.
Tribunal while deciding the said issue will take into account the Defendants' undertaking to this Court that if the Plaintiff-Union of India gives its consent, it would agree to consolidation of the two BIPA arbitration proceedings before the India-United Kingdom BIPA Tribunal.
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2018 (5) TMI 1063 - ALLAHABAD HIGH COURT
Surrender of license to sell Liquor - Recovery of 'licence fee' in addition to the 'basic licence fee' consequent to surrender of licence for country made liquor by the petitioner - contention of the learned counsel for the petitioner is that as a result of surrender of such licence all that can be forfeited/ recovered from the petitioner is the basic licence fee and security amount and not the fee payable by him in respect of the ''Monthly Minimum Guaranteed Quantity' - Section 36 of United Provinces Excise Act, 1910.
Held that: - the 'fee' for the licence in question as referred in Section 36 of the Act, 1910 comprises of the 'basic licence fee' and a 'licence fee'. The 'licence fee' is the excise duty leviable on the AMGQ which the licensee guarantees to lift for his retail shop during an excise year for the purpose of retail sale. This is a guarantee given by the Licensee at the time of grant of licence and he is bound by it, it being a contractual obligation entered into by him with open eyes. This is in addition to the ''basic licence fee' and is remaining part of the consideration for the licence - MMGQ is nothing but 1/12th part of the AMGQ and the ''monthly installment of licence fee' is nothing but 1/12th of the part of the ''licence fee' in addition to the ''basic licence fee' and is payable every month. This in nutsell is the ''fixed fee system' referred in the long title of the Rules, 2002 and Rule 3 thereof which was accepted by the petitioner while accepting the licence and is the fee referred in Section 36 of the Act, 1910 - Rules 12 and 14 are not attracted in the present case.
The petitioner is liable to pay the 'basic licence fee' and 'licence fee' in terms of Section 2(d) and 2(m) of the Rules, 2002 read with Section 36 of the Act, 1910 and Rule 19 of the Rules, 2002, which includes the monthly installment licence fee in respect of MMGQ which was part of AMGQ, which the petitioner had guaranteed to lift at the time of grant of licence and was also very well aware about the said facts - As regards the consequence of surrender of licence and cancellation as far as the State is concerned, they are similar, as, they entail a going back by the licence on the contractual obligation accepted by him.
Petition dismissed - decided against petitioner.
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2018 (5) TMI 991 - DELHI HIGH COURT
Recovery of amount for supply of goods to partnership firm - the only ground urged before this Court in this appeal, was that the goods which were supplied by the respondent no.1/plaintiff to the appellants/defendant nos.1 and 3 were defective and hence the respondent no.1/plaintiff was not entitled to the amount - Held that: - neither in the leave to defend application nor in this Court documents have been filed showing any RFA No.401/2018 Page 5 of 6 intimation sent by the appellants/defendant nos.1 and 3 to the respondent no.1/plaintiff/seller, that the goods supplied under the subject invoices as stated in para 4 of the plaint, are defective. Once that is so, the provision of Section 42 of the Sale of Goods Act applies and hence it was not open to the appellants/defendant nos.1 and 3 to contend that payment could not be claimed by the respondent no.1/plaintiff on account of having supplied the defective goods.
Unless a defendant in an Order XXXVII CPC suit raises genuine triable issues, leave to defendant cannot be granted on the basis of the defences which are frivolous and vexatious - In the present case the defence of the defective goods is completely frivolous and vexatious and the defence does not raise genuine triable issue in view of Section 42 of the Sale of Goods Act.
Petition dismissed - decided against petitioner.
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2018 (5) TMI 990 - DELHI HIGH COURT
Entitlement to Executive Car Facility - petitioner-Kulranjan Toppo is holding the post of DGM (IT) in the Grade Pay of ₹ 7600/- and petitioner-Sunil Dwivedi is holding the post of DGM (Finance) in the same Grade Pay - Held that: - All that is required as per respondent’s Executive Car Policy (Annexure-4) is that the concerned Officer has to be DGM (M3a). It is not the case of respondent that petitioners are not DGM (M3a). It is matter of record that petitioners had applied for the Executive Car Facility in question before the Office Order of 3rd October, 2016 came into force.
It needs no reiteration that an Office Order is to operate prospectively. In case of petitioners, it is sought to be operated retrospectively on the plea that it is a clarification and not an amendment. Since Executive Car Facility was extended to petitioner-Kulranjan Toppo way back in the year 2012, therefore, it cannot be said that impugned Office Order of 3rd October, 2016 is of clarificatory nature.
Respondent is directed to provide the Executive Car Facility to petitioners upon completion of necessary formalities within a period of six weeks from today - petition allowed.
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2018 (5) TMI 989 - DELHI HIGH COURT
Genuinity of petitioner - Allotment of flat to petitioner, wife of Late Sh. Gurdial Singh, who had applied for allotment of MIG flat under the New Pattern Registration Scheme, 1979 - It is the case of the petitioner that the non-allotment of the flat to the petitioner and withdrawal of the earlier decision on the basis that the case is not covered under the “wrong address policy” is absolutely illegal and without merit - whether the respondent was justified in withdrawing the earlier decision of allotting flat on the ground that the case does not fall under the “wrong address policy”?
Held that: - the dispute is whether the identity of the petitioner is genuine; that she is the wife of original registrant and there was change of address / residence and duly informed to the respondent and the same has been properly / rightly recorded in the ration card, the only authenticated source of information. There was some doubt in the mind of the authorities, but doubt can be clarified if the relevant information was sought from the ration card authorities, who would have the relevant information, including the application submitted and other supporting documents.
The only action respondent need to take is to verify the identity of the petitioner; the genuineness of the address on the ration card and the change to the present address as well - Accordingly, this Court is of the view that the petitioner shall file appropriate certificate from the ration card Authority related to the change of addresses (till the present address) and furnish a fresh affidavit on the lines already submitted to the respondent within eight weeks from today - petition disposed off.
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2018 (5) TMI 988 - DELHI HIGH COURT
Detention of petitioners - Smuggling - COFEPOSA Act - detention of the petitioners stand vitiated on account of non supply of either the printed copies/ hard copies of the documents contained in the CDs.
Held that: - It is well settled in law that the RUDs are an integral part and parcel of the GOD. The GOD contains the reasons and justification provided by the Detaining Authority on the basis of which he arrives at his subjective satisfaction regarding the necessity of preventively detaining of the detenue under Article 22 of the Constitution of India, read with Section 3 of the COFEPOSA Act. It is obligatory on the part of the Detaining Authority to supply copies of all the RUDs on which the subjective satisfaction of the Detaining Authority is based - The documents which are supplied on CDs, by themselves, are not viewable to the human eye. To read the documents on CDs, it is essential that the relevant hardware in the form of a CD player, or a laptop computer with the facility of reading the CD, or a Desktop computer with facility of reading a CD is employed. Without such aids, the person who is delivered the CD would never know as to what is the document, if any, contained therein. The CD is only a storage medium. To retrieve the documents stored therein, the necessary equipment is essential.
Reliance placed on Section 3(3) of COFEPOSA Act is misplaced for the reason that the said section itself mandates that the grounds of detention must be communicated to the detenue soon after the detention “but ordinarily not later than five days”. The use of the negative language in Section 3(3) itself shows that the Parliament, in ordinary circumstances, did not consider it appropriate to grant more than five days to the Detaining Authority to serve the GOD and the RUD upon the detenue. However, in exceptional circumstances and for reasons to be recording in writing, not more than fifteen days from the date of detention, have been provided for the purpose of serving the GOD and the RUD on the detenue.
The RUD contained in CDs taken note of herein above have been relied upon extensively in the GOD formulated by the Detaining Authority. The GOD are more or less identical in both the cases, since they stem out of the same transaction. The GODs repeatedly refer to the whatsapp messages contained in the CDs, as well as to the CDRs which have been relied upon by the Detaining Authority to establish the connection between the detenue and others concerned - The detention of the petitioners under Section 3(1) of the COFEPOSA Act cannot be sustained.
Detention of petitioner set aside - petition allowed.
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2018 (5) TMI 839 - TELANGANA & ANDHRA PRADESH HIGH COURT
Suit for recovery of borrowed amount alongwith interest - execution of promissory notes - burden of proof - Whether the suit promissory note is true, valid and supported by consideration? - benefits of Act 45 of 1987 and Act 1 of 1990.
Held that: - The instant case is a converse case, where, though the plaintiff did not enter the witness box, but the facts were spoken by PW.1 on behalf of the plaintiff and the case of the plaintiff to the extent of execution of the document was admitted by the defendant, though he denied the consideration and attestation. The suit promissory note is not a compulsorily attestable document and there is no dispute with regard to execution of Ex.A1 promissory note - as rightly pointed out by the learned counsel for the respondent/plaintiff, Section 118(a) of the Negotiable Instruments Act comes into operation.
The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.
Where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under Section 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever.
In view of admission of execution of the Ex.A1 promissory note, the burden is on the defendant to prove his case. Besides himself, the defendant examined DWs.2 to 4 to show that the said Mohana Rao was in the habit of lending money, but did not speak of non-passing of consideration - That borrowing of higher amount was also not proved by the defendant in the instant case by producing any documentary evidence. In view of the same, the judgment and decree passed by the trial Court cannot be set aside and accordingly it is affirmed.
Appeal suit is dismissed.
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2018 (5) TMI 790 - MADRAS HIGH COURT
Direction to call for the records - Dishonor of cheque - Section 138 of Negotiable Instruments Act - Held that: - the petitioners though received the notice dated 27.12.2008 as is evidenced by the postal acknowledgments cards, did not issue any reply denying their liability - In the instant case, the complaint is very clear as to the role played by the 1st accused. The other allegations levelled by the petitioners are disputed facts. Inherent powers cannot be invoked to quash a complaint on a disputed questions of fact - petition dismissed.
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2018 (5) TMI 789 - JAMMU & KASHMIR HIGH COURT
Cognizance of offence - Cheque bounced - petitioners filed a motion seeking discharge on the grounds that the complaints are premature for the reason that the same have been filed before the expiry of the stipulated period of (15) days, as provided under the Statute, for making payment from the date of the receipt of the said notice - Held that: - the learned counsel representing the respondents admitted that the respondents have erred in law in filing the complaints before the expiry of the period detailed in Section 138(C) of the Negotiable Instruments Act, 1881 - that the respondents have erred in law, the complaints in all the three cases having been filed before the period stipulated under Section 138(C) of the Negotiable Instruments Act, are held to be premature and, therefore, the orders impugned passed on the dates 20th, 24th & 20th of April, 2017, respectively in all these complaints and the proceedings emanating therefrom are quashed - petition disposed off.
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2018 (5) TMI 726 - SUPREME COURT
Restructuring of Tribunal System - Separation of powers and independence of judiciary.
Held that: - We broadly approve the concept of having an effective and autonomous oversight body for all the Tribunals with such exceptions as may be inevitable. Such body should be responsible for recruitments and oversight of functioning of members of the Tribunals. Regular cadre for Tribunals may be necessary.
Learned amicus suggests setting up of all India Tribunal service on the pattern of U.K. The members can be drawn either from the serving officers in Higher Judicial Service or directly recruited with appropriate qualifications by national competition. Their performance and functioning must be reviewed by an independent body in the same was as superintendence by the High Court under Article 235 of the Constitution. Direct appeals must be checked. Members of the Tribunals should not only be eligible for appointment to the High Courts but a mechanism should be considered whereby due consideration is given to them on the same pattern on which it is given to the members of Higher Judicial Service.
The issues may require urgent setting up of a committee, preferably of three members, one of whom must be retired judge of this Court who may be served in a Tribunal. Such Committee can have inter action with all stakeholders and suggest a mechanism consistent with the constitutional scheme as interpreted by this Court in several decisions referred to above and also in the light of recommendations of expert bodies.
To consider the matter for further, list on Thursday i.e. 10th May, 2018 as prayed by learned Attorney General.
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2018 (5) TMI 725 - DELHI HIGH COURT
Payment within statutory time - dishonor of cheque - Examination of respondent - Section 313 Cr.P.C. - admissibility of evidence - the documents filed by the respondent for return of jewellery were photocopies.
Held that: - In the present case, all original documents were produced by the accused and shown to the appellant and returned before exhibiting the photocopies. Thus the documents Ex.CW1/D1 to Ex.CW1/D5 were proved in accordance with law. Even otherwise an objection as to mode of proof can be taken at the stage of trial only as held by the Supreme Court in the decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [2003 (10) TMI 639 - SUPREME COURT].
One of the contentions of the Learned Counsel for the appellant was since the statement of the respondent was not recorded under Section 313 Cr.P.C., trial was conducted in an arbitrary manner. This contention deserves to be rejected in view of the decision of Supreme Court in Basavaraj R. Patil v. State of Karnataka [2000 (10) TMI 953 - SUPREME COURT] wherein it was observed that Section 313 Cr.P.C. is only for the benefit of the accused and prejudice, if any, can only be caused to the accused for his non-examination under Section 313 Cr.P.C. and not the complainant.
The provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion - It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
Appeal dismissed.
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2018 (5) TMI 724 - DELHI HIGH COURT
Maintainability of revision petition - Prayer for sending the cheque for examination to a handwriting expert - Section 138 of the Negotiable Instrument Act, 1881.
Held that: - the Criminal Revision No. 37/15 was not maintainable has essentially to be set aside and is thus set aside with observations to the effect that the said CRL. REV. 37/15 which dealt with the impugned order dated 05.03.2015 of the learned Trial Court in CC NO. 6478/14, dealt with matters of moment in relation to the prayer made by the petitioner seeking that the document Ex. CW1/A be sent to the hand writing expert for examination as to who had written the same, inasmuch as the impugned order dated 05.03.2015 by the learned Trial Court itself observed to the effect that the core issue was in relation to the agreement pertaining to sale of the property on one hand and the issuance of the cheque in question as security in relation to sale consideration to the complainant, qua which Ex. CW1/A was allegedly issued by the petitioner herein.
The CRL.M.C.193/16 is thus allowed to the extent that the impugned order dated 03.10.2015 of the learned ASJ Dwarka Courts, New Delhi holding that the CRL.REV.NO.37/15 was not maintainable, is thus set aside - petition disposed off.
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