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Indian Laws - Case Laws
Showing 1 to 20 of 66 Records
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2021 (4) TMI 1373
Suit for possession through specific performance of an agreement by way of execution of sale deed of land - it is alleged that the agreement dated 6.11.1992, put forth by the plaintiff was a forged document, which did not even bear their signatures.
Whether the courts below have misread and misinterpreted the agreement to sell Exhibit PW-1/A inasmuch as it clearly identifies the property subject matter of agreement to sell and the findings thus recorded are vitiated? - HELD THAT:- In the instant case, agreement to sell refers to a ‘Kutcha house’ allegedly owned and possessed by the defendants in an area of around 5 biswa at Kangar, Tehsil Haroli, District Una, with further rider that revenue papers regarding Khasra number etc., of the house would be produced at the time of registration of sale deed. Neither the land in question nor the house involved has been identified in the agreement. No khasra number finds mentioned in the agreement. The extent of the area alleged to have been sold by the defendants in the agreement is around 5 biswa, whereas the plaint talks about land measuring 0-9 marlas out of total land measuring 3 kanals and 4 marlas, comprised in specific khasra numbers - All material aspects which needed to be reflected with certainity have been left in the realms of speculation. Neither the agreement gives out clear identity of the land nor it spells out the boundaries. Even the area of the house-subject matter of the agreement is not correctly recorded therein. No ascertainable or determinative intention can be deciphered from this agreement. Such an agreement to sell is not capable of enforcement. Its specific performance cannot be granted.
Whether the courts below were wrong in dismissing the suit for specific performance by holding it to be hit of Section 9 of the Specific Relief Act and Section 29 of the Indian Contract Act in the absence of any such plea raised by the respondents in the written statement and the findings thus recorded are beyond pleadings? - HELD THAT:- Section 29 of Indian Contract Act entitles a defendant to avoid an agreement if the same is void. Also the defendant is entitled to take the defence of vagueness & void nature of the agreement in order to avoid its specific performance under Section 9 of the Specific Relief Act. Such a defence would essentially revolve around frame of the agreement and its logical interpretation in the facts of the case. Agreement being vague & therefore un-enforceable is a plea, which can be raised by the defendants even without specifically expressing it in the written statement - In TILAK RAJ BAKSHI VERSUS AVINASH CHAND SHARMA (DEAD) THROUGH L. RS. AND ORS. [2019 (8) TMI 1899 - SUPREME COURT], the Apex Court was inter-alia considering two questions viz i) whether the High Court was right in, without even a plea, holding that the family settlement is vague and unenforceable and void ii) Whether the High Court was right in holding that the Courts could not exercise discretion under Section 20 of the Specific Relief Act 1963 as the contract is not specifically enforceable.
Whether the courts below have misread and mis appreciated the statements of PW-1 and PW-2 and the findings thus recorded are vitiated? - HELD THAT:- The stamp vendor was not examined by the plaintiff. Defendant No.2 Malkit Singh while appearing in examination-in-chief stated that Ext. PW1/A, dated 6.11.1992, was a forged document and never executed by the defendants. This witness was not at all cross-examined by the plaintiff in respect of the valid execution of the agreement. No suggestion was given to this witness by the plaintiff that he had executed the agreement. Burden of proving due execution of the agreement was on the plaintiff, which he failed to discharge. Under the circumstances, there was hardly any necessity for expert opinion about signatures on the document - Plaintiff miserably failed to prove due execution of the agreement (Ext. PW-1/A).
The agreement dated 6.11.1992 (Ext. PW-1/A) is vague & void, therefore, not capable of being enforced. Plaintiff even otherwise has failed to prove its execution by the defendants in accordance with law. No interference in concurrent dismissal of plaintiff’s suit by the learned Courts below, is called for.
Appeal dismissed.
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2021 (4) TMI 1372
Seeking grant of anticipatory bail - informant was abused by the applicant and co-accused, knowing that he belongs to scheduled caste - no specific role was assigned to the applicant in the F.I.R. - HELD THAT:- It is a settled principle of law that a man cannot be stated to be guilty unless his guilt is proved after adducing reliable evidence. Sending a person to custody after finding his guilt is a rule. But before finding the accused guilty, it is not always possible or permissible to conclude on the basis of the charge-sheet or on the basis of the process issued under Section 204 in a complaint case that custody of that person is necessary. The word "bail" has not been defined in the Code, the literal meaning of the word "bail" is to set free or liberate a person on security being given of his appearance.
The most crucial part of the investigation lies in the examination of witnesses. The statements made by them can hold a person guilty. The police officer who is investigating the case has been empowered to conduct witness examination. The witnesses are bound to answer the questions which are related to the case truly. Section 161 lays down the procedure for the examination of witnesses by the police.
There should be no delay on the part of the police officer investigating the case in examining the witnesses. In the event of a delay of the examination of the witness, the onus lies on the investigating officer for explaining the reasons for the delay.
The purpose of a charge-sheet is to notify a person of criminal charges being issued against them. After the charge-sheet is filed, the person against whom the charge-sheet has been filed comes to be known as an accused. The filing of charge-sheet with the magistrate indicates commencement of criminal proceedings.
The Hon'ble Supreme Court has held in number of cases that fair investigation, which precedes filing of charge-sheet, is a fundamental right under Article 21 of the Constitution of India. Therefore, it must be fair, transparent and judicious. A tainted and biased investigation leads to filing of a charge-sheet which is infact based on no investigation and therefore, the charge-sheet filed in pursuance of such an investigation cannot be held to be legal and in accordance with law.
In the present case, from the perusal of the statement recorded by the Investigating Officer, this Court finds that the incident in dispute took place on 04.04.2020 when the first corona wave was sweeping the country and the informant has stated that being a journalist, he got the crowd removed with the help of police since there were chances of spread of infection. Thereafter, the applicant and co-accused persons threatened him not to become a big journalist and he was subjected to caste related abuses and his mother and sister were subjected to abuses. When he tried to speak, they used the word "chamaar" etc., and he was beaten by legs and fists. When he raised alarm, Kamlesh and Rajbir Singh came and saved him. Thereafter, the accused persons left the scene, threatening him of life. Both the accused persons are habitual of misbehaving with the people of locality. The statements of other witnesses recorded by the Investigating Officer also proves the above allegations - From the statements of witnesses recorded by the Investigating Officer, the allegation of intimidation with intent to humiliate a member of scheduled caste in public view by taking his caste name is fully proved.
Bail application rejected.
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2021 (4) TMI 1371
Entitlement for rental income - grievance is that the Petitioners have moved applications before the NCLT and the same have not been taken up for hearing and are being adjourned from time to time - HELD THAT:- Taking on record the statements of ld. Counsels for both the Respondents, that the matter is listed tomorrow i.e. on 13th April, 2021, this Court does not deem it appropriate to pass any further orders. Needless to add that the difficulty of the Petitioners may be appreciated by the NCLT, and it is hoped that the applications of the Petitioners would be taken up for hearing and orders are passed expeditiously, and if possible, within a period of one month from today.
The present petition with all pending applications is disposed of.
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2021 (4) TMI 1369
Restraining the appellant from invoking the shares pledged in its favour by the respondents/borrowers - HELD THAT:- It was obligatory for the learned Single Judge, while passing the order restraining the lenders/lessees from invoking the pledge of shares, to return at least a prima facie finding and provide some reason as to why the invocation of the pledge deserved to be interdicted by way of an interim measure. Unfortunately, there are no reasons forthcoming in the impugned order dated 26.03.2021 which, therefore, continues to operate as on date.
The operation of the orders dated 26.03.2021 and 08.04.2021 passed in the aforesaid OMPs, suspended till further orders - List on 27.05.2021.
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2021 (4) TMI 1368
Removal of attachment - certain transfers to be void or not - first charge over the properties in view of Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- When it is established that the earliest demand notice under the IT Act with reference to the assessment years 2012-13 and 2013-14 was issued by the Income Tax Authorities on 31.03.2015 prior to the mortgage executed in favour of the petitioner-Bank on 27.01.2016 and 06.02.2016, the provisions of Section 281 of the IT Act would be applicable and the question of priority would not arise, in view of the fact that once the provision of Section 281 of the IT Act is applied, then the said transfer become void ab initio and the mortgage or transfer made thereafter is consequently void. Such transfers are to be construed as fraudulent transfers or mortgage and therefore, the mortgage in favour of the petitioner-Bank cannot be held as valid in the eye of law and since it is held as invalid, the question of invoking Section 26E of the SARFAESI Act would not arise at all.
In view of the facts and circumstances that the earliest demand notice at the first instance issued by the Income tax Department on 31.03.2015 is not disputed, it is to be construed that the proceedings under the IT Act for recovery of tax dues were pending on the date, i.e., 31.03.2015 and therefore, any transfer made thereafter is hit by the provision of Section 281 of the IT Act and all such transfers are void and therefore, the subsequent mortgage became consequently invalid in the eye of law and therefore, the application of SARFAESI Act would not arise at all. Further, the scope of Section 26E of the SARFAESI Act is relatabe to the priority and the priority would arise only if more than one person could able to establish the right over the property and in the present case, when there is no right to mortgage was vested with the assessees, the question of priority would not arise at all.
When the assessee has no right to mortgage the property purchased, then the Bank cannot accrue any right to deal with the mortgaged property or to claim priority based on the provision of Section 26E of the SARFAESI Act.
The petitioner could not establish any right to deal with the property and even in such cases where such right are claimed, the persons aggrieved has to approach the Income Tax Authorities under Schedule 2 Rule 11 of the IT Act and in the present case, the question does not arise as the transfer itself became void.
Petition dismissed.
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2021 (4) TMI 1365
Suit filed for possession - Malaise of constant abuse of procedural provisions which defeats justice - Order XXI Rule 97 of the Code of Civil Procedure (CPC) - HELD THAT:- The vendor and her son (judgment debtors) after executing the sale deed in respect of a major portion of the property, questioned the transaction by a suit for declaration. The decree holders also filed a suit for possession. During the pendency of these proceedings, two sets of sale deeds were executed. The vendors' suit was dismissed-the decree of dismissal was upheld at the stage of the High Court too. On the other hand, the purchasers' suit was decreed and became the subject matter of the appeal. The High Court dismissed the first appeal; this Court dismissed the Special Leave Petition. This became the background for the next stage of the proceedings, i.e. execution. Execution proceedings are now being subsisting for over 14 years. In the meanwhile, numerous applications including criminal proceedings questioning the very same documents that was the subject matter of the suit were initiated. In between the portion of the property that had been acquired became the subject matter of land acquisition proceedings and disbursement of the compensation.
This Court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing [1872 (3) TMI 2 - PRIVY COUNCIL] which observed that the actual difficulties of a litigant in India begin when he has obtained a decree.
Thus, to avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, the Court must play an active role in deciding all such related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in any suit.
It is directed that all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers Under Article 227 of the Constitution of India and Section 122 of Code of Civil Procedure, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with Code of Civil Procedure and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.
Appeal dismissed.
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2021 (4) TMI 1356
Constitution of Arbitral Tribunal to adjudicate the disputes that have arisen between the parties in relation to the Contract Agreement - scope of examination under Section 11 of the A & C Act at a pre-referral stage - whether the Contract Agreement stands discharged by the Settlement Agreement is required to be adjudicated by the Arbitral Tribunal constituted in terms of the Arbitration Clause as contained in the Contract Agreement? - HELD THAT:- This Court is not required at this stage to give a conclusive finding as to the existence of an arbitration agreement between the parties. In one sense, the Court would require to take a negative view if it finds that ex facie there is no Arbitration Agreement between the parties, and accordingly, the Court would reject the application under Section 11 of the Act. However, in all other cases where an arguable case is made out by the applicant, the parties are required to be referred to arbitration.
It is clear that once it is apparent that the parties had entered into an agreement to refer the disputes to arbitration, the dispute whether the same has been discharged by a settlement is required to be liberally construed in favour of relegating the parties to arbitration. Unless the Court comes to the conclusion that the dispute raised by the claimant with regard to the validity of the settlement is bereft of any merit; is not bona fide; or is a frivolous one, the Court must relegate the parties to resolve the disputes in arbitration.
In case where the Courts finds that the arbitration agreement does not exists, the parties would nonetheless be entitled to agitate the disputes before Civil Courts. In this perspective, once it is established that the parties had entered into an arbitration agreement, the Courts must lean in favour of relegating the parties to that forum. Once it established that the parties had entered into an Arbitration Agreement, the question whether the contract (including the arbitration clause) stood discharged by accord and satisfaction must be considered with the perspective whether the same is established without any detailed adjudicatory exercise. Thus, unless the Courts concludes that the said disputes are ex facie unmerited and frivolous, the parties must have their say before the agreed forum.
It is apparent from the above that SPML had indicated that it was facing financial constraints on account of NTPC withholding the Bank Guarantees. NTPC on the other hand does not appear to have provided any substantial grounds for withholding the same. It however, continued to persist with SPML that it would release the Bank Guarantees if SPML withdraws the disputes - SPML had invoked the arbitration clause and had sought reference of disputes to arbitration. It had also approached this court. Thus, it would be difficult for SPML to establish that it was economically coerced to enter into the Settlement Agreement. However, this Court is unable to accept that the dispute whether the Contract Agreement stood discharged/novated in terms of the Settlement Agreement, is ex facie untenable, insubstantial or frivolous.
The present application cannot be rejected by relegating the petitioner to once again seek reference of the disputes before an adjudicator. SPML had requested NTPC to appoint an adjudicator but NTPC had not done so. Thus, the contention that the present petition is pre-mature as the parties have not referred the disputes to an adjudicator, is unmerited.
The petition is disposed of.
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2021 (4) TMI 1355
Seeking setting aside of the ex-parte judgment and decree dated 01.02.2019 as well as for seeking condonation of delay of 582 days in filing the application - whether the summons in the suit were duly served or not? - whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing? - Order IX Rule 13 CPC.
HELD THAT:- In the present case, the defendant was duly served with the summons in the suit and had appeared.
"Sufficient Cause" is an elastic expression and no hard and fast guidelines are prescribed. The Court, in its discretion, has to consider the "sufficient cause" in the facts and circumstances of every individual case. Although in interpreting the words "sufficient cause", the Court has wide discretion but the same has to be exercised in the particular facts of the case - Article 123 of The Limitation Act prescribes that the application for setting aside an ex-parte decree should be filed within thirty days of passing of the decree.
In the present case, although the defendant has blamed her counsel for his non-appearance which resulted in passing of the decree however, a perusal of the judgment dated 01.02.2019 would show that the same was passed after considering the merits of the case.
In the opinion of this Court, the defendant has failed to show any "sufficient cause" for its absence in the Court on the material dates. The defendant has also failed to satisfactorily explain the delay of 582 days in filing the captioned application. The explanation given by the defendant is only an eye-wash.
This Court is not inclined to accept the explanation provided by the defendant. Consequently, the captioned applications are dismissed.
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2021 (4) TMI 1349
Seeking direction to set up an independent Tribunal comprising of retired High Court judges who can look into the claims of each parish Church to determine which faction/denomination must have control over each such Church - handing over of the management of concerned Church to the denomination constituting majority, or in the alternative, direct such Independent Tribunal to partition all disputed Churches and their properties equitably - protection of Churches belonging to members of the Patriarch faction/denomination and the exercise of their religious freedom - enforcement and protection of fundamental rights of the Petitioners guaranteed under Articles 14, 21, 25 & 26 of the Constitution of India - protection by Articles 25 and 26 of the Constitution of India - seeking declaration to the effect that Petitioners and members belonging to the same religious denomination have the right to practice and profess their religious beliefs.
HELD THAT:- A mandamus cannot be issued by this Court for setting up an adjudicatory body or tribunal. Entry 11A of the Concurrent List of the Seventh Schedule to the Constitution deals with, inter alia, “constitution and organization of all courts, except the Supreme Court and the High Courts”. Having due regard to the provisions of Articles 245 and 246 of the Constitution, no such mandamus can be issued by this Court. Nor can a direction be issued by this Court to the legislature of a State to enact a law.
As the petitioners have themselves indicated in the course of the synopsis, the judgment of this Court in K.S. VARGHESE AND ORS. VERSUS ST. PETER'S AND PAUL'S SYRIAN ORTH. AND ORS. [2017 (7) TMI 1440 - SUPREME COURT], is the reason for instituting the writ petition under Article 32 since the petitioners consider themselves to be aggrieved by the judgment. The remedy of a party which is aggrieved by a judgment and order of this Court cannot certainly lie by instituting a petition under Article 32 of the Constitution. Such a petition would not be maintainable.
An adjournment is declined to have granted - it is concluded that on the face of the prayers as they stand, the petition cannot be entertained - petition dismissed.
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2021 (4) TMI 1344
Validity of Arbitral Award - execution of award was stayed on deposit of 60% of the figure - Jurisdiction of High Courts to interfere with deposit orders - HELD THAT:- Repeatedly referring to Section 5 of the Arbitration Act in particular and the Arbitration Act in general and despite this Court having laid down in M/S. DEEP INDUSTRIES LIMITED VERSUS OIL AND NATURAL GAS CORPORATION LIMITED & ANR. [2019 (11) TMI 1632 - SUPREME COURT] that the High Court under Article 226 and 227 should be extremely circumspect in interfering with orders passed under the Arbitration Act, such interference being only in cases of exceptional rarity or cases which are stated to be patently lacking in inherent jurisdiction, we find that High Courts are interfering with deposit orders that have been made. This is not a case of exceptional rarity or of any patent lack of inherent jurisdiction.
This being the case, the impugned order of the High Court of Karnataka is set aside and that of the learned Additional City Civil and Sessions Judge is restored. The deposit of 60% and security for the remainder is to be made within four weeks from the date of our order - Appeal disposed off.
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2021 (4) TMI 1341
Seeking grant of Anticipatory Bail - sexual harrasment to complainant - HELD THAT:- No doubt, the allegations against the petitioner are serious in nature but the severity of the allegations is not the only consideration which should result in denial of grant of bail to the petitioner. The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail.
In the instant case, there is no denial to the fact that the petitioner and his wife who is the mother of the complainant are involved in various litigations amongst each other - There is a history of litigations in regard to the control of business between the petitioner and the mother of the complainant. Ld. Sr. counsel for the petitioner has also laid much emphasis on the delay in lodging the FIR and contended that there is no plausible explanation for the delay and the same is fatal to the case of the complainant. In the instant case, the alleged offence took place on 18.05.2020 and on the same very day, according to the complainant she had informed her mother about the incident and also discussed with her but the complaint was only lodged on 29.12.2020. In between this period from the record, it is evident that the petitioner and the mother of the complainant have been litigating.
In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.
No doubt, the delay in lodging the FIR is not always fatal and it depends upon the facts of each case. The reasons given by the counsel for the complainant for the delay is that the complainant never wanted to spoil the matrimonial home of her mother and secondly her fiance would have left her if he had come to know about the conduct of the petitioner. Though, the complainant has tried to explain the delay, but the same can be looked into at the time of trial and as to what would be the fate of such delay would be seen at that particular stage - In the instant case, the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times.
The petitioner is admitted to anticipatory bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the IO/SHO concerned with the condition that he shall not tamper with the evidence or threaten any of the witnesses - bail application disposed off.
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2021 (4) TMI 1336
Seeking exemption from payment of property tax - Charitable Hospital - seeking allotment of lands, for the purpose of setting up of hospital offering free / concessional medical services - HELD THAT:- The General meaning for the word “Charity” is generosity and helpfulness, especially towards the needy or suffering. An institution engaged in relief of the poor, charitable organization is dedicated to the General Public purpose, more specifically, for the benefit of needy people, who cannot pay for benefits received. The charitable institution does not distribute earnings for the benefit of private individuals. Thus, the character of a Charitable institution must be considered with reference to the facts and circumstances as well as the manner, in which, such institutions are being run by such trust or person.
In the present case, the learned counsel for the petitioner made a submission that a holistic approach is required. Equally such a holistic approach is imminent for Revenue also. Thus, the holistic approach towards the institution alone would result in neutralizing the provisions of the Act more specifically, regarding property tax. The exemptions are exceptions and to be granted discreetly, if the applicant is capable of establishing that they are providing medical services dominantly to the poor, needy and deserving people of the society.
This Court is of the strong opinion that it is for the charitable institution to establish the facts and circumstances. In the present case, the petitioners have provided some data, showing that they are providing medical services to the poor, needy and deserving people.
On perusal of the official website of the petitioner/Sundaram Medical Foundation, the same would reveal that “Sundaram Medical Foundation was established in 1990 by Dr.S.Rangarajan with the help of M/s.Sundaram Finance Group of Companies as a Community Centred Hospital, following the best tradition of medical service. Dr.Rangarajan's vision was to provide Quality Health Care which is cost-effective and community centred - Based on the inspection, the Corporation Officials formed an opinion that the petitioner/Sundaram Medical Foundation is not doing charitable services so as to grant exemption from payment of property tax. Thus, irrespective of the fact whether the petitioner is accepting the rates for hospital wards at Sundaram Medical Foundation published by www.medifee.com is correct or incorrect, the very facts regarding the inspection conducted by the Corporation Officials and their findings would show that there is no free access to the poor, needy and deserving patients in the petitioner/Hospital and the charges collected are also competitive and on higher side - it cannot be construed as if the petitioner is providing medical treatment at free of cost to the large number of poor, needy and deserving patients.
There is a clear indication that the medical services is to be provided largely and predominantly to poor, needy and deserving people alone. When such a character is missing, then the writ petitioner Foundation is not entitled to get exemption. During the inspection, it is found that the petitioner is providing treatment to rich and affluent, but certainly not at concessional rate - the petitioner is not entitled to avail the benefit of property tax exemption under Section 101(e) of the Chennai City Municipal Corporation Act.
Petition dismissed.
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2021 (4) TMI 1335
Validity of assessment order - retesting report was never supplied - HELD THAT:- Mr. Sourabh Goel, Advocate has entered appearance on behalf of the respondent and states that as a matter of fact the report must have been supplied to the petitioner but to avoid un-necessary delay the department would not have any objection in again handing over a copy of the retesting report to the petitioner and passing a fresh order of assessment after permitting the petitioner to cross-examine the expert if required.
The impugned order is set aside and the respondent is directed to transmit a copy of the retesting report to the petitioner and thereafter the matter would be decided in accordance with law - Petition disposed off.
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2021 (4) TMI 1329
Over entitlement of the Appellants to receive interest on delayed payment on the subject-heads, which were to be paid by the employer in local currency as per the stipulations in the said agreement - HELD THAT:- The High Court in the appeal concurred with the Arbitration Court and concluded that omission to include the rate of interest in the bid document, the "appendix to bid" to be specific, had resulted in creation of contractual term that there would not be any claim for interest on delayed payment (as per Clause 60.8) so far as payment in local currency component contained in the agreement is concerned.
The underlying principle guiding award of interest is that interest payment is essentially compensatory in nature. But as it is already observed, interest on delayed payment formed part of the contract itself. The agreement did not contain any express exclusion Clause on payment of interest on delayed payment whether on component of payment in foreign currency or local currency - The Appellate Court's rationale that such blank interest column might have had resulted in acceptance of the bid of the Appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable. There are no material from which such a conclusion could be reached. No material has been shown from which it can be inferred that omission to fill in the blank space gave the Appellants some kind of competitive edge in the bid process.
The simple interest at the rate of 8% would be just and equitable on the sum left unpaid - appeal allowed.
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2021 (4) TMI 1327
Decree for specific performance - seeking direction to the Respondents to deliver vacant possession of the schedule property - decree of permanent injunction restraining the Respondents from alienating or encumbering the suit property - decree of permanent injunction restraining the Respondents from alienating or encumbering the suit property and a decree of mandatory injunction to deposit the title deeds with the Court - contention of the Appellants is that the agreements and the MOUs have to be read together - HELD THAT:- There is no dispute about the agreements dated 20.03.1991 and the MOUs between the parties. It is also a fact that Income Tax Department wanted to compulsorily acquire the property, due to which Writ Petitions were filed which were disposed of on 11.09.1998. Writ Appeals filed by the Department were pending on the date of filing of the suit. The relevant clause in the MOU is that the Appellants shall pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words “at the time of registration of sale” in clause 3 of MOUs - there are force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.
The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief - The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.
A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage - the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994.
Appeal allowed.
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2021 (4) TMI 1326
Tender Call Notice inviting tender from eligible registered diet preparation and catering firms/suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience - field of preparation and distribution of therapeutic and non-therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019-2020 - HELD THAT:- What is clear is that the authority concerned read its own TCN to refer to the licence to be submitted by bidders as the labour licence under the Contract Labour Act - Sub-clauses (20) and (21) of Tender document in particular, make it clear that the staff employed would be employed by the agency as contract labour, the agency being responsible to make alternative arrangements in cases where their staff goes on strike.
This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority - The High Court has not adverted to any of the decisions, and in second-guessing the authority’s requirement of a licence under the Contract Labour Act, has clearly overstepped the bounds of judicial review in such matters. In any case, a registration certificate under Section 4 of the Orissa Act cannot possibly be the equivalent of a valid labour licence issued by the labour department.
The requirement of the Section 1(4) of Contract Labour Act, that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this is not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority’s interpretation of its own TCN which, as has been stated hereinabove, cannot be so second-guessed unless it is arbitrary, perverse or mala fide.
Thus, except for an incantation of the expression mala fide, no mala fide has in fact been made out on the facts of this case - appeal allowed.
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2021 (4) TMI 1324
Seeking interim protection pending arbitration to restrain the 1st Respondent, IL & FS Financial Services Ltd. (IFIN) from acting on its Event of Default (EoD) notice of 23rd July 2019 - seeking temporary injunction restraining IFIN from acting in furtherance of a pledge invocation notice - Sections 241 and 242 of the Companies Act 1956 - HELD THAT:- The NCLAT has absolutely no jurisdiction over this Court, even on its Original Side, given that this is a Chartered High Court. The High Court is in no way subject to the NCLAT's jurisdiction or superintendence. I do not see how the words 'court of law' can be 'read down', because other than the NCLT, there is no other judicial authority over which the NCLAT exercises such superintending power. But if we leave that aside and focus on the words 'arbitration panel and arbitration authority', and even assuming for a moment that the NCLAT has the power to stay arbitrations, it certainly does not have the authority to stay the hands of this Court in hearing a petition under Section 9 or any other petition that properly comes before this Court under the Arbitration and Conciliation Act 1996. Indeed, I do not even see how the NCLAT has such control over arbitral tribunals. The NCLAT can make no order under Section 9, Section 11, Section 34, Section 37 or any of the other provisions of the Arbitration and Conciliation Act 1996. Notably, Section 9 of the Arbitration Act--and indeed no provision of that Act--is made subject to the provisions of the Companies Act 2013. This in itself is a telling circumstance.
It is enough for the present order to hold that the NCLAT order cannot and does not come in the way of this Court making an appropriate order under Section 9 of the Arbitration and Conciliation Act 1996. When and how that arbitration is to be commenced is another matter, one with which I am not presently concerned.
Everything in the Arbitration Act is founded on a contract; and this necessarily means that to claim an equitable and discretionary relief, a Section 9 petition is not to be handled like a regular civil suit invoking a non-contractual civil remedy. The Respondent must be shown to be in wrongful conduct. Its actions must be shown to ones in violation of the contract. A respondent seeking to enforce its contractual rights will suffer no injunction unless it is shown that the Respondent itself is in breach or has acted contrary to the contract. Once a breach by the Petitioner is not only demonstrated but is accepted, equity will not operate in its favour. Conversely, where there is a demonstration of a breach by the Respondent, the Petitioner may be entitled to seek an equitable relief in the court's discretion.
Petition dismissed.
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2021 (4) TMI 1322
Validity of arbitration proceedings - seeking permanent injunction to restrain ADM from initiating, proceeding with, or continuing with arbitration proceedings - whether a case is made out to grant an anti-arbitration injunction? - HELD THAT:- The principles relating to the grant of anti-suit injunctions were examined and formulated in paragraph 24 of Modi Entertainment [2003 (1) TMI 734 - SUPREME COURT], wherein the Supreme Court held, inter alia, that an anti-suit injunction would not be granted to forbear the exercise of jurisdiction by the forum chosen by the parties - there are no contemporaneous document complaining of the non-receipt of FOSFA Form 54. On the contrary, the executed contracts contain a clause stating that the parties admit knowledge and notice of contract Form 54 of FOSFA. In this context, it is noteworthy that reciprocal obligations were fulfilled by the buyer and seller as regards some of the executed contracts, all of which used the same template, and the allegation that contract Form 54 was not received did not surface then. Therefore, the material on record does not prima facie support the contention that the respective Plaintiff did not have a copy of the contract Form 54 of FOSFA. However, in order to not prejudice the contesting parties in proceedings before the appropriate forum, I do not propose to enter conclusive findings.
As regards the contention that the contract is unconscionable because it permits termination by the seller but not by the buyer; prima facie, such contention appears to be untenable in view of the incorporation of contract Form 54 in the executed contracts with the consequential recourse to the termination clause contained therein - The distinction between an arbitration clause and the other provisions of the contract becomes material in this context, and both severance and the Kompetenz-kompetenz principle are firmly entrenched in Indian jurisprudence, as is evident from Sasan and MSM.
The respective Plaintiff also contended that the arbitral institution is not neutral inasmuch as it is controlled by oil seed producers. In effect, the respective Plaintiff appeared to contend that any arbitral institution which is set up by a trade organisation is not neutral - The material on record does not support a conclusion that the FOSFA arbitral institution is ex facie not neutral and I see no reason to draw such conclusion merely because FOSFA is an organisation representing the interest of traders in oil seeds and fats.
The next contention that should be dealt with relates to the alleged lack of neutrality on the part of the arbitrators. Although such allegation is levelled by the respective Plaintiff, no actionable material has been placed before this Court to substantiate the contention that all the panel arbitrators of FOSFA or the specific arbitrators in the present case are not neutral. Indeed, the facts on record disclose that the respective Plaintiff proceeded to nominate its arbitrator upon receiving a notice of arbitration from ADM. The decision to abandon the arbitral process and institute proceedings before this Court was taken subsequently. In any event, any grievance on this score should be canvassed before the arbitral tribunal and/or the courts in the UK in accordance with applicable law.
The respective Plaintiff has failed to demonstrate that the arbitration agreement is null and void, inoperative or incapable of being performed. In light of the above discussion and analysis, there are no reason to continue the anti-arbitration injunction. Consequently, the order of injunction granted originally on 05.07.2019 and extended periodically stands vacated.
Plaintiff has failed to make out a case for an anti-arbitration injunction and that this Court does not have jurisdiction - the arbitral process need not be interfered with - application disposed off.
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2021 (4) TMI 1320
Validity of seniority list of Inspectors - promotion of Inspectors to the post of Superintendents - the petitioners who had joined the department after the joining of the private respondents cannot be placed above them in the seniority list - HELD THAT:- It is a matter of fact that the seniority position in the present case was not finally settled when the judgment in the case of K. MEGHACHANDRA SINGH AND ORS. VERSUS NINGAM SIRO AND ORS. [2019 (11) TMI 1733 - SUPREME COURT] was delivered by the Hon’ble Supreme Court on 13th November, 2019. The impugned seniority list was issued on 15th March, 2018 and immediately thereafter, various representations were filed on behalf of the private respondents against the said seniority list. When no response was received on the said representations, the private respondents filed the OA before the CAT, challenging the said seniority list, from which the present petition arises.
The CAT has correctly applied the dicta in K. Meghachandra Singh case in the present case and has proceeded to quash the seniority list to the extent it placed the petitioners above the private respondents. The fact that the CAT decision would impact the inter se seniority between the promotees and direct recruits (petitioners), is not the subject matter of the present petition, and therefore, need not be examined. It is also an admitted position that in the present case requisitions for the appointment of the petitioners were sent to SSC the recruiting authority on 11th February, 2015, after the private respondents had already joined the Delhi Commissionerate. Therefore, even in terms of OM dated 4th March, 2014, the petitioners cannot be placed above the private respondents.
Petition dismissed.
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2021 (4) TMI 1318
Seeking grant of Bail - allegation against the persons named in the FIR is that they were operatives/functionaries of a terrorist gang TPC and they were extorting levy from coal traders, transporters and contractors - Sections 414, 384, 386, 387, 120B Indian Penal Code, Sections 25(1B)(a)/ 26/35 of the Arms Act and Section 17(1)(2) of the CLA Act - HELD THAT:- While considering the grant of bail Under Section 43D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the Accused or not.
A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy/extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other Accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary charge-sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.
It is not satisfying that a prima facie case has been made out against the Appellant relating to the offences alleged against him - these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.
Appeal allowed.
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