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2020 (8) TMI 853 - MADRAS HIGH COURT
Attachment of Bank Property - execution of decree by attachment and sale of the property namely land and building and premises with all fixtures and fittings, machineries, electrical installations, etc. - seeking reduction of upset price from One crore to Forty lakhs - HELD THAT:- On the admitted facts, this Court is of the view that the bank's right to proceed against the property is protected against any one who has no prior right. In this case, the order of attachment was much after the mortgage and therefore, is not binding and the bank can proceed against the property as held by the Hon'ble Division Bench of this Court. Order 38 Rule 10 of C.P.C. protects the rights of the prior mortgagee and therefore, any attachment after the mortgage cannot affect the rights of the bank which existed prior to the attachment. The bank is not a party when the order of attachment was passed by the executing Court in 2008. It is true that the order of attachment will be subject to the bank's right to proceed against the property based on the mortgage.
The order passed by the learned Principal Subordinate Judge in raising the attachment to enable the bank to proceed against the property is perfectly in order. However, the order of attachment will hold good as it is valid otherwise and it is enforceable subject to the mortgage rights of the bank to proceed against the property for recovery of its dues - The order of attachment cannot affect the bank or the auction purchaser to get absolute title after the sale at the instance of the bank is confirmed.
Petition dismissed.
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2020 (8) TMI 852 - SUPREME COURT
Entitlement to compensation in excess of what was stipulated in the Apartment Buyers Agreement - delay in handing over the possession of the residential flats - Reimbursement of taxes and interest charged to the flat purchasers - Deficiency in providing amenities - Levy of electricity charges by the developer - Failure to construct the club house - whether the flat buyers are constrained by the stipulation contained in Clause 14 of ABA providing compensation for delay at the rate of ₹ 5 per square feet per month?
HELD THAT:- The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.
The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.
Club House - HELD THAT:- Since permission of BDA has still not been received legal action is contemplated again. The developer has produced photographs depicting the amenities which have been provided within the precincts of the club house. Membership fees for the club are stated to have been received in the account of the RWA and not in the account of the developer. The position which has been stated before the court has not been disputed by counsel for the Appellants. Hence, it is found that there has been no breach by the developer of the obligation to provide a constructed facility of a club for the RWA.
Other Amenities - HELD THAT:- A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff. True, in a situation such as the present it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers. The general appreciation in land values results in an increase in the value of the investment made by the buyers. Difficulties in determining the measure of compensation cannot however dilute the liability to pay. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.
Tax - HELD THAT:- The developer has offered an explanation of why as a result of pending litigation, the dues towards works contract tax were not paid earlier. Indeed, if they were paid earlier, the purchasers would have been required to reimburse their proportionate share of taxes earlier as well. No part of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue.
Electricity - HELD THAT:- The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in Clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties.
Parking - HELD THAT:- The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement - The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.
The dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities - Appeal allowed.
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2020 (8) TMI 848 - SUPREME COURT
Seeking sanction of modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1966 - HELD THAT:- From the records of the case, particularly the order dated 20.8.1970 of sub division of plot number 473 B and the award of the arbitrator, it is patently clear that the name of Pune Municipal Commissioner was at no point of time reflected as holder of the private road. There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records - On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473 B1, B2, B3 and 473 B4 shown as vacant land held by the owners of all the three adjacent plots.
The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator.
The right to property may not be a fundamental right any longer, but it is still a constitutional right Under Article 300A and a human right - In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The Appellant trust cannot be deprived of its property save in accordance with law.
The High Courts exercising their jurisdiction Under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration - In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
In the facts and circumstances of the instant case, in the light of admissions, on the part of the Respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the Respondents had a public duty Under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator - the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested Under Section 88 of the Regional and Town Planning Act.
Appeal allowed.
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2020 (8) TMI 841 - SUPREME COURT
Condonation of delay of 45 days in filing application - interpretation of Section 173 of Motor Vehicles Act, 1988 - HELD THAT:- Chapter XII of the Act is a beneficial legislation intended at protecting the rights of victims affected in road accidents. Moreover, the Act is a selfcontained code in itself which provides procedures for filing claims, for passing of award and for preferring an appeal. Even, the limitations for preferring the remedies are contained in the code itself.
The interpretation of a beneficial legislation must be remedial and must be in furtherance with the purpose which the statute seeks to serve. The aforesaid view has been reiterated by this court on multiple occasions wherein this court has highlighted the importance acknowledging legislative intention while interpreting the provisions of the statute.
Section 173 provides that, any person aggrieved by the award passed by the Tribunal may approach the High Court within ninety days. However, the second proviso states that the High Court “may” still entertain such appeal even after the expiry of ninety days, if the appellant satisfies the Court that there exists sufficient reason behind the delay - Ordinarily, the word “may” is not a word of compulsion. [Justice G.P. Singh in Principles of Statutory Interpretation, 14th Edn.,page 519] It is an enabling word and it only confers capacity, power or authority and implies discretion.
Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.
The delay of 45 days has been properly explained by the appellants, which was on account of illness of the wife of Appellant No.1. It was not appropriate on the part of the High Court to dismiss the appeal merely on the ground of delay of short duration, particularly in matters involving death in motor accident claims. Moreover, in the present case no mala fide can be imputable against the appellants for filing the appeal after the expiry of ninety days.
Matter remanded for fresh consideration on merits - petition allowed by way of remand.
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2020 (8) TMI 839 - ALLAHABAD HIGH COURT
Levy of administrative charges - purchase of Molasses from various sugar factories situated in the State of Uttar Pradesh - HELD THAT:- As an interim protection, we provide that the respondents shall not demand any Administrative Charges, provided the petitioner continues to deposit GST as demanded both by the Central and the State Government under the said enactments - It is further provided that separate accounts for sale/supply/purchase of molasses shall be maintained both by the petitioner as also the State. The same shall abide by final outcome of this writ petition.
List immediately after four weeks.
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2020 (8) TMI 827 - SUPREME COURT
Interplay between the provisions of the Code of Criminal Procedure and the Drugs and Cosmetics Act, 1940 - Whether in respect of offences falling under chapter IV of the Act, a FIR can be registered Under Section 154 of the Code of Criminal Procedure and the case investigated or whether Section 32 of the Act supplants the procedure for investigation of offences under Code of Criminal Procedure and the taking of cognizance of an offence Under Section 190 of the Code of Criminal Procedure?
HELD THAT:- It is concluded that:-
I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.
II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated Under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.
III. Having regard to the scheme of the Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure.
IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu [1996 (12) TMI 350 - SUPREME COURT] and to follow the provisions of Code of Criminal Procedure.
V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power Under Article 142 of the Constitution of India in this regard.
VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the Code of Criminal Procedure, but also immediately report the arrests to their superior Officers.
Appeal dismissed.
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2020 (8) TMI 685 - GUJARAT HIGH COURT
Dishonor of Cheque - insufficiency of funds - settlement has been reached already - HELD THAT:- Having gone through the material on record, it appears that in respect of the impugned order dated 7.12.2019, a specific settlement has taken place in writing which settlement has been produced on record which is reflecting on page-51 which is signed by the parties and the learned advocate appearing on behalf of respondent No.2 has confirmed this fact of settlement in true sense. Additionally, it is also visible from the record that on page-59 of the affidavit filed by respondent No.2 on oath, confirming the terms of the settlement.
The present application stands allowed.
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2020 (8) TMI 684 - KERALA HIGH COURT
Dishonor of Cheque - insufficiency of funds - legally enforceable debt - rebuttal of presumption - Both the trial court as well as the appellate court held that the proof of hire purchase agreement is not sufficient to rebut the presumption under Section 138 of the N.I.Act - HELD THAT:- A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118A and Section 139 of the N.I.Act. Once the complainant has succeeded in proving that the accused executed the cheque, then the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the N.I.Act. In this case, the accused has failed to raise a probable defence which creates doubt with regard to the existence of a debt or liability. In the light of the evidence adduced, this Court is perfectly in agreement with the findings of the trial court as well as the appellate court that the presumption mandated by Section 138 of the N.I.Act has not been rebutted, in accordance with law.
Revision Petition is dismissed confirming the concurrent conviction and sentence imposed against the revision petitioner by the trial court as well as the appellate court. During the pendency of the proceeding, this Court called for a report from the Sub Inspector of Police, Vithura Police Station to ensure the presence of the revision petitioner before this court - The accused is sentenced to pay a fine of ₹ 2,50,000/- and in default to pay the fine amount, the accused shall undergo sentence of simple imprisonment for a period of three months. The fine amount if realised, the same shall be released to the complainant under Section 357(1) of Cr.P.C. - Criminal Revision Petition is allowed in part.
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2020 (8) TMI 683 - DELHI HIGH COURT
Permission for withdrawal of petition - Dishonor of Cheque - non-retrospective application of Section 143A of the Negotiable Instruments Act, 1888 - HELD THAT:- The learned counsel for the petitioner seeks to withdraw the present petition seeking liberty to seek redressal before the learned Trial Court by filing a fresh application under Section 148 of the amended Negotiable Instruments Act, 2018 brought into force w.e.f. 01.09.2018 both in relation to the applicability thereof or exercise of discretion in terms of Section 148(1) of the said enactment qua the quantum of the amount to be deposited in terms of Section 148(1) being a minimum of 20%.
Petition dismissed as withdrawn.
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2020 (8) TMI 639 - HIMACHAL PRADESH HIGH COURT
Cancellation of Certificate of Registration of Non-Banking Financial Institution - HELD THAT:- The petitioner has not made any effort to justify its calculation of NOF given in its Balance Sheet for the year 2016-17. This contention raised during hearing of the writ petition does not find mention in the body of the writ petition, therefore, has not been responded by RBI in its reply filed to the writ petition. However, in its letter dated 04.12.2018 submitted in response to Bank’s letter dated 30.11.2018 and in its reply dated 15.01.2019 to the show cause notice dated 03.01.2019, the petitioner had specifically relied upon the above extracted circular to justify its calculations of NOF made in the Balance Sheet for the year ending on 31.03.2017. In its appeal preferred under Section 45-IA(7) of the RBI Act, the petitioner again defended its calculations in arriving at NOF on the strength of Master Circular of RBI.
A bare perusal of the circular relied upon by the petitioner makes it evident that NOF described therein only pertains to Exposure norms to be followed by All India Financial Institutions namely Exim Bank, NABARD, NHB and SIDBI. NOF described therein cannot be read for calculating NOF of petitioner NBFC. The NOF of petitioner has to be calculated only in terms of Section 45-IA of RBI Act. Petitioner has not disputed investment of ₹ 17 Lakhs and loans of ₹ 54.41 Lakhs advanced by it to its Group Companies. Therefore, these amounts in excess of 10% of Owned Fund have been justifiably deducted by RBI while determining ₹ 150.33 Lakhs as NOF of the petitioner.
In its notification dated 27.03.2015, the RBI had specified ₹ 200 Lakhs as minimum NOF required by an NBFC to commence or carry on business of NBFI. The then existing NBFCs holding CoR for carrying on business of NBFI were given timeline upto 01.04.2016 for achieving NOF of ₹ 100 Lakhs and upto 01.04.2017 for attaining NOF of ₹ 200 Lakhs. Petitioner NBFC did not achieve the minimum prescribed limit of NOF within the stipulated period. It failed to comply with the directions issued by the Bank under the provisions of Chapter III B of RBI Act. Therefore, no opportunity for complying with the directions could be granted to it as the CoR was cancelled by taking recourse to Section 45-IA(6)(iv).
Thus, Master Circular relied upon by the petitioner for calculating its NOF is not applicable to it. NOF of the petitioner for the year ending on 31.03.2017 (2016-17) is required to be and justifiably determined by RBI in accordance with Explanation I of Section 45-IA of the RBI Act - Since NOF of the petitioner-NBFC determined under the applicable provisions of RBI Act fell short of minimum limit of ₹ 200 Lakhs prescribed by RBI for carrying on the business of NBFI, therefore, its CoR was cancelled by RBI taking recourse to Section 45-IA(6)(iv) of the Act - The CoR of the petitioner was cancelled by RBI under the provisions of Section 45-IA(6)(iv) of the RBI Act, which does not entail providing any opportunity for complying with the provisions/ conditions violated by the petitioner. Otherwise also, sufficient opportunity had already been granted by the RBI in the notification dated 27.03.2015 to achieve prescribed NOF, i.e. to comply with its directions. In any case, shortfall in NOF in the Balance Sheet of the petitioner for the year 2016-17 cannot be rectified three years later in 2020.
Petition dismissed.
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2020 (8) TMI 571 - SUPREME COURT
Interpretation of Statute - Right of Daughter in the property of her parents etc. - Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 - right of a coparcener in the property - retrospective and retroactive statute - HELD THAT:- In view of the provisions contained in Section 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased - The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.
The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.
The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).
Effect of enlargement of daughter's rights - HELD THAT:- As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of Section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution - There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband's death, subject to saving the alienations made in the intermittent period.
Acquisition of Rights in Coparcenary Property - HELD THAT:- As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma [2015 (10) TMI 2761 - SUPREME COURT] with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.
Partition and Effect of Statutory Fiction - HELD THAT:- Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.
When the proviso to unamended Section 6 of the Act of 1956 came into operation and the share of the deceased coparcener was required to be ascertained, a deemed partition was assumed in the lifetime of the deceased immediately before his death. Such a concept of notional partition was employed so as to give effect to Explanation to Section 6. The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither did it affect the severance of interest nor demarcated the interest of surviving coparceners or of the other family members, if any, entitled to a share in the event of partition but could not have claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond.
It is apparent that the right of a widow to obtain an equal share in the event of partition with the son was not deprived under old Section 6. Unamended Section 6 provided that the interest of a coparcener could be disposed of by testamentary or intestate succession on happening of exigency under the proviso. Under the old law before 1956 devise by a coparcener of Hindu Mitakshara family property was wholly invalid. Section 3
What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of proviso to Section 6 - If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.
Section 6(5) - HELD THAT:- The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized Under Section 6(5) - It is settled law that family arrangements can be entered into to keep harmony in the family.
There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has separated, to the non-separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be inferred from how their family business was carried on after one coparcener was separated from them. Whether there was a separation of one coparcener from all other members of a joint family by a decree of partition, the decree alone should be looked at to determine the question.
The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise - There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.
Thus, it is decided as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
The views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju and Ors. [2018 (5) TMI 1368 - SUPREME COURT] overruled - The opinion expressed in Danamma @ Suman Surpur and Anr. v. Amar [2018 (3) TMI 867 - SUPREME COURT] is partly overruled.
Let the matters be placed before appropriate Bench for decision on merits.
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2020 (8) TMI 533 - SUPREME COURT
Cancellation of assignment deed - section 31 of the Specific Relief Act - suit for specific performance - rectification of the instrument - arbitral proceeding - HELD THAT:- A perusal of section 26(1) of the Specific Relief Act, 1963 would show that when, through fraud or mutual mistake of parties, a contract or other instrument in writing does not express the real intent of the parties, then either party or his representative in interest may either institute a suit to have the instrument rectified or as defendant, may, in addition to any defence open to him, ask for rectification of the instrument. Importantly, under section 26(3), a party may pray in a rectification suit for specific performance – and if the Court thinks fit, may after rectifying the contract, grant specific performance of the contract. Thus, what is made clear by this section is that the rectification of a contract can be the subject matter of a suit for specific performance, which have been already seen, can be the subject matter of an arbitral proceeding.
Under section 27(1) of the Specific Relief Act, 1963, “any party interested” in a contract may sue to have it rescinded and such rescission may be adjudged by the Court in the cases mentioned in clauses (a) and (b) of sub-section (1). Sub-section (2) of section 27 refers to four exceptions to this rule - Third parties to the contract are not persons who can be said to be “any person interested”, particularly when section 27(2)(c), which refers to third parties, is seen and contrasted with the expression “any person interested” in section 27(1) – under section 27(2)(c), third parties come in as an exception to the rule only when they have acquired rights in good faith, without notice and for value, during the subsistence of the contract between the parties to that contract.
The factum of registration of what is otherwise a private document inter parties does not clothe the document with any higher legal status by virtue of its registration.
When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem. All these anomalies only highlight the impossibility of holding that an action instituted under section 31 of the Specific Relief Act, 1963 is an action in rem.
Appeal dismissed.
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2020 (8) TMI 531 - DELHI HIGH COURT
Seeking information from GSTN under RTI - Exemption from Disclosure of information - Section 8(1) (d) and Section 8(1) (j) of the RTI Act, 2005 - Respondents (CIC) has directed the petitioner to provide copies of the minutes of the board meetings as well as the resolutions for the period 01.04.2013 to 31.12.2015 after severance of the record containing information which is exempted from disclosure under the RTI Act.
HELD THAT:- the minutes of the board meetings are bound to contain some confidential information relating to the commercial aspects of the company, the technological aspects of the technology and other IT network that it is providing to various governments/government agencies. It would include information of commercial confidence, information which can be termed to be trade secrets, information which can be termed to be intellectual property regarding the various IT technologies used. Disclosure of such information is likely to harm the interest of the petitioner. Respondent has failed to show that larger public interest warrants the disclosure of such information. This aspect has not been noted or stated in the impugned order.
The CIC had passed a decision to give the Minutes of the Board Meeting directing expunction of information which was exempt under Section 8(1)(d) of the Act. Hence, as noted by the aforenoted judgment, the CIC left the whole thing at the discretion of the petitioner which was held not to be the correct approach.
A perusal of the reply given by the CPIO dated 17.09.2014 to respondent No. 2’s application shows that there were in all 10 Board Meetings that had been held. Further details are not on record. In the facts of this case, it would be for the CIC to go into the minutes of the Board Meetings and of the AGMs and to determine as to which of the information which is contained in the minutes attracts the provision of Section 8(1)(d) of the Act, namely, are exempt from disclosure and which portion of the minutes can be given to respondent No. 2 in response to his application under the RTI Act.
The matter is remanded back to the CIC for fresh consideration - petition allowed by way of remand.
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2020 (8) TMI 433 - ORISSA HIGH COURT
Extension of period of suspension for further 180 days - alleged import of overvalued diamonds - approval under section 17(a) of the Prevention of Corruption Act - HELD THAT:- The order of extension of suspension of the petitioner as at (A) dated 19.07.2019 which was assailed in the Original Application before the Tribunal reveals that the same has been passed upon acceptance of the recommendation of the Suspension Review Committee by the with the Disciplinary Authority - That period having been expired in the meantime, the last order of extension has come on 15.01.2020. On that occasion, the Suspension Review Committee had again recommended for continuance of suspension which has been accepted.
The opposite parties have been shifted from their place of posting, where the allegations were leveled. In the absence of any specific material, the likelihood on their part to influence the investigation and tamper with the evidence in the criminal trial is hardly inferable. There are no such indications that even in their present place of posting, the working atmosphere in case of their joining the work in the office is likely to be polluted when the fact remains that the petitioners are at liberty to post them in any such non-sensitive post as deemed proper. After that incident, no further allegation of their misconduct in any way has also been reported - other group B officers, who have also been arraigned in the criminal case arising out of the same incident wherein the opposite party as at (B) is an accused, are all on bail. The CBI has moved for cancellation of bail granted all accused persons. The investigation by CBI is complete in respect of both the set of accused. In case of those officers also, the Review Committee had submitted the recommendation.
The case of the opposite party at B rather stands on a better footing than those two protection officers implicated in the case. In that view of the matter, the continuation of suspension of this opposite party as at (B) is apparently discriminatory and violative of Articles 14 and 16 of the Constitution because thereby equals have been treated unequally - there are no infirmity in the ultimate conclusion of the Tribunal that further continuance of suspension of the opposite parties would no more be useful.
However as it is found that the challenges were to the order dated 19.07.2019 extending the suspension of the opposite party of (A) with effect from 22.07.2019 and order dated 22.07.2019 extending the suspension of the opposite party at (B) with effect from 24.07.2019; We, accordingly direct that they be not treated to have been under suspension with effect from above said dates and not as has been ordered by the Tribunal as effective from the expiry of the initial period of suspension for 90 days - application allowed in part.
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2020 (8) TMI 419 - MADHYA PRADESH HIGH COURT
Grant of Bail - Misappropriation of amount - forgery of receipt of depositing the amount as service tax before complainant - alleged incident was committed during the period from 05.04.2016 to 28.11.2016 while the complainant lodged the report on 19.09.2017 - HELD THAT:- The applicant who was working as Accountant in the complainant's firm Datt Enterprises, during the period from 05.04.2016 to 28.11.2016, in connivance with co-accused who was working as Manager withdraw the amount of ₹ 51,46,895/- from the account of firm Datt Enterprises by online transaction in the name of depositing service tax and also withdraw the amount of ₹ 18,09,303/- from the account of Datt Associates and out of that amount they deposited some amount in applicant accounts located at Axis Bank, Branch and some amount was invested in the movable and immovable properties. Thus applicant and co-accused misappropriated that amount.
Looking to the gravity of offence, this Court is not inclined to grant bail to the applicant at this stage - Bail application dismissed.
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2020 (8) TMI 375 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - cross-examination of the case - acquittal of the accused - sufficient opportunity to the complainant to lead further evidence of PW-1 not provided - principles of natural justice - HELD THAT:- The respondent- accused has been secured by issuance of summons and thereafter the GPA holder of the complainant has been examined and subsequently, the case had been posted for cross-examination of PW-1 on 29.06.2019 and that the case came to be dismissed and the accused was acquitted. As could be seen from the order, it indicates that PW-1 was absent and the advocate for the complainant had sought time to keep PW-1 present for the purpose of cross- examination but without giving any opportunity, though time had been sought by the counsel for the complainant, erroneously, the impugned order has been passed. However, if one more opportunity is given, no prejudice would be caused to the respondent-accused.
Thus, if one more opportunity is given to the complainant-appellant to lead his evidence, without pleading for any further time, then under such circumstances, it would meet the ends of justice - The trial Court is directed to dispose of the case expeditiously by affording full opportunity to the appellant-complainant - appeal allowed.
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2020 (8) TMI 374 - KARNATAKA HIGH COURT
Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - offence punishable u/s 138 of the N.I. Act or not - Service of notice - Whether the Judgment of conviction and Order on sentence under revision deserves interference at the hands of this Court? - HELD THAT:- In the instant case, the accused as DW-1 while taking such a vague contention has not produced any corroborative evidence to prove his contention. On the contrary, the very same accused in his cross-examination has stated that as a builder, he develops land for which he raises loans from banks and several individuals. Thus, he has shown that he is a regular borrower not just from the father of the complainant but from banks and other individuals also. Further in the very same cross-examination, when he was confronted with the cheque which was marked at Ex.P4, he has admitted that the said cheque pertains to him and admitted a suggestion as true that the amount mentioned in the cheque is in his hand-writing - With these admissions and the statements made by DW-1 in his cross-examination coupled with evidence of PW-1 and DW-2 it clearly goes to show that the complainant both by his oral and documentary evidence has clearly established that the cheque in question was issued to him by the accused towards the repayment of the loan amount which is said to have been taken by the accused, from him. Merely because the complainant has not produced his bank passbook or statement, by that itself, it cannot be suspected that there was no such loan transaction.
The oral and documentary evidence led by the complainant and the admissions made by the accused in his cross-examination and also the non denying of the submissions of PW-1 in his cross- examination would clearly go to establish that the accused had availed a loan of ₹ 9,35,000/- from the complainant and towards the repayment of the same, he had issued the cheque marked at Ex.P4. Thus, apart from a mere legal presumption under S.139 of N.I. Act, the complainant's evidence further crystalises the said presumption and proves it to be a fact.
Service of notice - HELD THAT:- The notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such a notice, the accused has not responded to the same in any manner. Therefore it clearly goes to show, that the accused had issued a cheque in favour of the complainant towards the repayment of the legally enforceable debt and the said cheque was dishonoured when presented for encashment, with the reason 'funds insufficient'. The defence taken by the accused that the loan transaction was with the father of the complainant but not with the complainant since has remained not proved, the Courts below have rightly held that the complainant has proved the alleged guilt against the accused which is punishable under S.138 of the N.I. Act.
The quantum of sentence ordered also being proportionate to the gravity of the proven guilt, there are no ground to interfere with the impugned Judgment of conviction and Order on sentence - revision petition dismissed.
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2020 (8) TMI 287 - KERALA HIGH COURT
Exercise of Equity Jurisdiction - Return of property which had been taken over as bought-in land (by Government) after accepting amount towards the Abkari Workers Welfare Fund dues - principles of restitution - remedy of "rescission" - HELD THAT:- Admittedly, the sale was conducted on the basis of a notice showing arrears of Abkari Workers Welfare Fund and Sales tax. It is later on admitted that there were no sales tax dues actually pending from the petitioner. That is to say, there was no proper notice as envisaged under Section 34 as also under Section 49(2)(iv) of the Revenue Recovery Act prior to the sale and the sale was for that very reason vitiated. It is admitted that the purchase was made on behalf of the Government and not on behalf of the requisitioning authority. On that ground also, the sale was vitiated. An application for re-conveyance of the bought-in land had been made within 3 months from the confirmation of the sale. It is also a fact that the Government decided in principle to return the bought-in land as per Exhibit P3. Even though Exhibit P3 was issued in 2011, admittedly, the actual amount of arrears was made known to the petitioner only as per Exhibit P5 on 4.11.2016.
Apart from the fact that the sale has to be held to be invalid since the same has been completed without following the procedure prescribed by law, even on the principles of equity, it is a case coming within the remedy of "rescission" - While holding that the sale is vitiated, it cannot be forgotten that the petitioner has liabilities to the Government. In my view, equity requires that the petitioner is directed to pay the amount of ₹ 5,54,045/- along with simple interest at the rate of 6% from 4.11.2016 to 29.8.2019, and that on receipt of the same the respondents return possession of the land taken possession as bought-in land from the petitioner.
It is declared that the proceedings under Section 50(2), which culminated in the taking over of the petitioner's lands as bought-in-land on behalf of the State is vitiated - respondents are directed to restore the lands to the petitioner after receiving a sum of ₹ 5,54,045/- along with simple interest at the rate of 6% per annum from 4.11.2016 to 29.8.2019 - petition disposed off.
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2020 (8) TMI 286 - MADHYA PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - Power to pass revisional orders - Section 420 of IPC - HELD THAT:- In the instant case it is admitted fact that complainant respondent filed criminal complaint under Section 200 & 202 to initiate the proceedings against the petitioner accused under Section 138 read with Section 142 of NI Act. Learned trial court took cognizance under Section 138 of Negotiable Instrument Act against the petitioner accused. Thereafter petitioner accused appeared before the trial court. He adduced his evidence. The statement of accused was recorded. Petitioner-accused adduced defence witness - There is no evidence on record to give a conclusion that any document has been forged or fabricated. Thereafter, respondentcomplainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondent-complainant and it was held that petitioner-accused cheated the complainant-respondent by giving a cheque from another person i.e. Santosh Malviya and Santosh Malviya also gave his cancelled cheque to the present petitioneraccused to cheat the respondent- complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B & 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law.
It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable - if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. It is clear from the record that complainant respondent-complainant did not allege any fact against Santosh Malviya in his complaint under Section 138 of NI Act and during his evidence before trial court any witness did not allege any fact against Santosh Malviya, so it is not proper to implead Santosh Malviya as an accused under Section 319 of Cr.P.C. If Santosh Malviya is added as an additional accused there would be denovo trial. It is admitted fact that his case is fixed for final arguments since 2014, so in these circumstances when the complainant-respondent did not allege any act of cheating in his complaint and his evidence so it would not be appropriate to start denovo trial.
The impugned order dated 11.09.2014 passed by learned 3rd Additional Session Judge, Raisen is allowed, whereby learned Sessions Judge allowed the revision presented by respondent-complainant and directed to take cognizance under Section 420 of IPC against the petitioner-accused according to law and also to take cognizance under Section 120-B read with Section 420 of IPC against one Santosh Malviya is hereby set-aside - criminal revision allowed.
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2020 (8) TMI 255 - DELHI HIGH COURT
Direction for early disposal of application - grievance of the Petitioner in this petition is that despite the matter being reserved for orders, no orders were pronounced in the Order XII Rule 6 application - HELD THAT:- As per the settled law, orders which are reserved have to be pronounced within two months. If the same are not pronounced for three months, the litigant is entitled to approach the High Court.
The same is clear from a reading of the Supreme Court's judgment in Anil Rai v. State of Bihar [2001] 7 SCC 318[2001 (8) TMI 1330 - SUPREME COURT]
Petition disposed off.
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