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Indian Laws - Case Laws
Showing 81 to 89 of 89 Records
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2018 (8) TMI 633 - BOMBAY HIGH COURT
Dishonor of Cheque - sufficient evidence to prove dishonor of cheque within statutory period.
Held that:- In the present case, if the findings of the trial Court that the appellant had failed to prove dishonour of cheque and that the complaint could not be said to have been filed within limitation, are found to be erroneous, then the impugned order acquitting the respondent will have to be reversed. Since the trial Court found that the issue of legal debt or liability was proved by the respondent, the only question that arises in the present case is, as to whether it could be said that there was sufficient evidence to prove dishonour of cheque to conclude that the respondent had committed offence under Section 138 of the said Act - once such a memo or slip issued by the bank bearing its official mark concerning dishonour of cheque is placed on record by the complainant, the burden is clearly on the accused to disprove the fact of dishonour of cheque.
When the basic fact of dishonour of cheque was not proved by the appellant and the burden was not discharged, offence under Section 138 of the said Act could not be said to have been committed by the respondent.
Another important aspect of the present case is that when there is lack of evidence to show dishonour of cheque and consequently the date when the cheque was dishonoured, there is no reference point to ascertain as to whether the notice for demand of payment was issued by the appellant to the respondent within the period of 30 days of receipt of information from the bank regarding return of cheque as unpaid, as provided under proviso (b) to Section 138 of the said Act - This is the reason why the trial Court has held that the appellant failed to prove that she made demand for payment of amount within the statutory period, as the statutory period could not be computed in the facts of the present case.
Analysis of the provisions of the said Act, particularly Sections 138, 142 and 146 thereof, shows that cognizance of the offence under Section 142 of the said Act could not have been taken by the Court in the present case because the basic fact of dishonour of cheque could not be proved by the appellant - the complaint in the present case was correctly rejected by the trial Court, thereby acquitting the respondent.
Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 632 - BOMBAY HIGH COURT
Whether the Appellate Tribunal has committed an error in holding that, the provisions of the RERA are applicable to the 'Agreement of Lease' executed between Appellant and Respondents? - Held that:- The intention of the Legislature, which is found reflected in the 'Objects and Reasons' of the Act and its various provisions, makes it abundantly clear that, to all the projects, wherein the possession of the apartments is to be handed over in consideration of the sale price or the market price, such projects are included under the purview of this Act. It has to be held that, the Legislature would have never intended to exclude the persons like the Respondents, who have invested their hard-earned money in such projects, from the protective and benefcial provisions of this Act.
Here the Hayden's Rule of Suppression of Mischief needs to be applied with full force and if that Rule is applied, then the provisions of the RERA are required to be held as equally applicable to the long term leases, like the present one of “999 years”; or, where the substantial amount of consideration is already obtained by the 'Developer'. Then the definitions of the terms 'Allottee', or, 'Real Estate Project', or, even that of 'Promoter', are required to be interpreted in that context and not in isolation, by placing reliance simplicitor on the word 'selling' used in these three definitions - Merely because the Legislature has excluded the allotment, when it is given on rent, it does not exclude the long term lease like the present one. That will be defeating and frustrating the object of the Act.
The Appellate Tribunal has rightly held that, so far as the present case is concerned, considering the long term lease of '999 years', it would definitely amount to sale.
Whether the Appellate Tribunal has committed an error in holding that, the 'Adjudicating Authority' under the RERA has jurisdiction to entertain the complaints filed by the Respondents, under Section 18 of RERA? - Whether the Adjudicating Authority, under the RERA, can go behind the 'Registration Certificate' of the Appellant, so as to hold that it has no jurisdiction, though the project is registered under the said Act? - Held that:- This course is not permissible under the law to challenge the Registration Certificate issued by one 'Authority' before the another 'Authority' and calling upon that 'Authority' not to consider such 'Certificate of Registration' and then to hold that the RERA is not applicable to the said project. Once there is registration under the RERA, then it follows that, all the provisions of the RERA become applicable to such project, unless some phases are specifically excluded from registration. It also becomes applicable to the persons, who have invested in the said real estate project. It is applicable both, to the Appellant and also to the Respondents. The Appellant, after having taken the advantage of registration under the RERA, cannot turn back and say that the provisions of the RERA are not applicable to the complaints made by the Respondents in respect of the very same project - The Appellant had, therefore, no choice but to get their project registered under the RERA, considering that it was for development of the plot, exceeding the area of more than 500 sq.mtrs. and it was for the number of apartments exceeding 8, inclusive of all phases.
The very fact that the Appellant has got itself registered under the RERA makes it necessary to infer that, the Appellant was very well aware that this project was for sale of the apartments constructed in the project and that is why, it was bound by the provisions of the RERA - there is no question of applying the logic that, if the project is not registered, whether the RERA will not be applicable, even if it is otherwise proved to be a project of development, because, as per the mandate of the RERA, all the real estate projects are now required to be registered, if the apartments therein are constructed for the purpose of sale or otherwise. The fact that the Appellant has, therefore, registered the project also makes it necessary to infer that, the Appellant has invited upon itself the applicability of the provisions of the RERA, as Appellant is also fully aware that whatever 'Agreements' executed by it with the Respondents are in the nature of sale, though they are titled as 'Agreements of Lease'.
The dispute in the present case definitely falls within the jurisdiction of RERA. The interplay of all the provisions contained in the Act, coupled with the real purport of the 'Agreement of Lease', leads to no other inference, but to hold that, the complaints filed by the Respondents before the 'Adjudicating Officer', under Section 18 of the Act, are definitely maintainable and the 'Adjudicating Officer' is having the jurisdiction to entertain and decide those complaints.
Appeal dismissed.
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2018 (8) TMI 631 - BOMBAY HIGH COURT
Cheque bounce case - Prosecution proceedings u/s 138 of the Negotiable Instruments Act - Whether moratorium prohibiting institution of a proceeding as provided for in Section 14 of the Insolvency and Bankruptcy Code, 2006 (hereinafter referred to as Code) applies even to a criminal proceeding. - Held that:- The criminal revision should not have been directed to be kept in abeyance by resorting to Section 14 of the Code. For that matter even the National Company Law Tribunal in its order in a proceeding under Section 10 could not have and has not specifically directed any prohibition against the continuation of a criminal proceeding. The learned Additional Sessions Judge has committed a gross illegality in directing the criminal revision to be kept in abeyance by the impugned order. The order is not sustainable in law and is liable to be quashed and set aside.
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2018 (8) TMI 630 - DELHI HIGH COURT
Dishonor of cheque - Prosecution of the respondents - it was alleged that no payments had been made by them pursuant to the notices of demand in the wake of dishonor of certain cheques which had been issued by the respondents in favour of the petitioner (complainant) towards discharge of their liability.
Held that:- The legislature has thus clarified that the court within whose local jurisdiction the branch of the bank where the payee or the holder in due course maintains the account in which the cheque in question is delivered for collection would ordinarily be the court of competent jurisdiction to take cognizance of and inquire into and try the offence under Section 138 of the Negotiable Instruments Act, 1881. By this reckoning, the court of the Metropolitan Magistrate at New Delhi District would be the jurisdictional court to deal with the criminal complaint cases in as much as the cheques in question here were presented by the petitioner for collection through its bank having branch in Connaught Place, New Delhi.
The criminal complaint cases would stand revived on the file of the concerned Metropolitan Magistrate of New Delhi district, who is directed to proceed further thereupon in accordance with law - petition allowed.
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2018 (8) TMI 497 - MADRAS HIGH COURT
Reversal of Order of Conviction - Offence under Section 138 of the Negotiable Instruments Act, 1881 - Held that:- P.W.1 [P.Venkatesan], who is the Power of Attorney admitted in his cross examination that he did not know the particulars about the lending of money to the respondent. In this regard, in his cross-examination, he specifically stated that he did not know the transaction happened between his wife and the respondent - The said circumstances shows that P.W.1 is not having due knowledge with regard to the loan transaction happened between the complainant and the accused - the said lapse on the part of the appellant will shake the very root of her case.
Promissory note - case of respondent is that the recitals of the promissory note clearly proves that it has not been executed in favour of the appellant - Held that:- As per the recitals found in the promissory note, it is clearly proved that the loan amount of ₹ 75,000/- was received by the respondent only on 05.02.2007. But, P.W.1 to P.W.3 categorically mentioned in the proof affidavit that only ₹ 25,000/- was paid as a loan on 05.02.2007. Hence, the existing liability of the respondent has not been proved by the appellant through the cogent and convincing evidence - interference is not necessary in the findings of the First Appellate Court.
Appeal dismissed.
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2018 (8) TMI 181 - CALCUTTA HIGH COURT
Omission to issue the notice under Section 34(5) of the Arbitration Act, 1996, as amended by the Act 3 of 2016 - Held that:- The substantive right of a party to challenge an arbitral award is provided by sub-sections (2) and (2A) of Section 34 of the Act stipulating the grounds on which an arbitral award can be set aside by the Court. Sub-sections (3) of the said Section 34 of the Act lays down the statutory period of limitation within which an application for setting aside of an arbitral award has to be filed before the Court - Although, the purpose and intention of incorporation of the provisions contained in sub-sections (4) and (5) of Section 34 of the Act is expeditious disposal of the application for setting aside of the arbitral award, the said provisions being procedural in nature cannot be construed as mandatory.
If the provisions of sub-sections (5) and (6) of the Act is held to be mandatory as contended by the respondent, the same would defeat the substantive right of party to file an application for setting aside of the arbitral award under sub-sections (2) and (2A) of the said section within the stipulated time under sub-section (3) - the provisions contained in sub-sections (5) and (6) of Section 34 of the Act are procedural and not mandatory.
Applications allowed.
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2018 (8) TMI 180 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Contravention of Competition Act - direction to Opposite Parties to cease and desist from indulging in such activity - contravention of Section 3(3)(a) & (b) of the Competition Act, 2002 - alleged price increase - Held that:- The Commission not only looked into ‘Sate-wise Market’ but also ‘Region-wise Market’ and range of percentage change in prices between 2007-2011. The Commission has noticed the Range of Percentage change of different years for the months of October over September (2007-2011) for ‘Central, Northern and Eastern States’. The Commission also highlighting the unprecedented trend for the percentage increase in the prices in all the five regions namely- Central Region, Northern Region, Eastern Region, Western Region and Southern Region - It is clear that the Commission while dealing with the market dealt with the ‘relevant market’ i.e. all regional markets of Cement, which are the relevant geographical market i.e. relevant product market of Cement.
Penalty - Held that:- The Commission has imposed mere minimum penalty, no interference is called for against the same.
Appeal dismissed - decided against appellant.
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2018 (8) TMI 35 - SUPREME COURT
Dishonor of Cheques due to insufficiency of funds - failure to rebut the presumption that the cheque is issued in discharge of a legally enforceable debt or liability - Section 139 of the N.I. Act - Held that:- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability - This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption - The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by him, the presumption u/s 139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence.
Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 34 - SUPREME COURT
Whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by Amending Act 3 of 2016 (w.e.f. 23rd October, 2015), is mandatory or directory?
Held that:- It is seen that Section 34(5) does not deal with the power of the Court to condone the non-compliance thereof. It is imperative to note that the provision is procedural, the object behind which is to dispose of applications under Section 34 expeditiously - One must remember the wise observation contained in the case of Kailash v. Nanhku and Ors. [2005 (4) TMI 542 - SUPREME COURT], where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are the handmaids of justice and if, in advancing the cause of justice, it is made clear that such provision should be construed as directory, then so be it.
Section 80, though a procedural provision, has been held to be mandatory as it is conceived in public interest, the public purpose underlying it being the advancement of justice by giving the Government the opportunity to scrutinize and take immediate action to settle a just claim without driving the person who has issued a notice having to institute a suit involving considerable expenditure and delay - This is to be contrasted with Section 34(5), also a procedural provision, the infraction of which leads to no consequence. To construe such a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of Section 34(5), thereby scuttling the process of justice by burying the element of fairness.
It shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act - in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed.
Thus, Section 34(5) is held to be directory - appeal allowed.
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