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Indian Laws - Case Laws
Showing 261 to 280 of 25688 Records
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2023 (11) TMI 670 - KERALA HIGH COURT
Condonation of delay in filing review petitions - whether the petitioners have established sufficient cause for not preferring the review petitions within the statutory period? - ground for the exercise of the discretion in condoning the delay, established or not - HELD THAT:- The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different. For example, in the case of beneficial legislations a liberal interpretation must be given to the expression “sufficient cause” to serve its object. The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds.
In Basawaraj [2013 (12) TMI 274 - SUPREME COURT], the Supreme Court held that ‘sufficient cause’ means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The Supreme Court further held that the applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose, the Supreme Court added.
The review petitions have been filed by the power of attorney holder of the petitioners. No materials have been placed before the Court to show that the review petitioners had any inconvenience or difficulty in prosecuting the matter. The power of attorney holder of the review petitioners pleaded that he was suffering from asthmatic complaints. No materials have been produced to explain the delay of 288 days in preferring the review petitions. The claim of the review petitioners lacks bona fides.
Application dismissed.
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2023 (11) TMI 669 - KERALA HIGH COURT
Dishonour of Cheque - insufficient funds - discharge of legally enforceable cheque or not - vehicle covered by the hire purchase loan agreement was already seized by the complainant/1st respondent and it was sold out for profit - HELD THAT:- The case of the 1st respondent is that the cheque was issued after seizure and sale of the vehicle, and after adjusting the sale price towards the loan amount. But PW1 admitted that Rs. 57,000/- was already repaid in ten installments and the vehicle was seized and sold, and to his memory, the sale price was Rs. 25,000/-. But he has not produced any scrap of paper to show that the balance amount was calculated as Rs. 1,24,500/-. No notice was seen issued to the revision petitioner intimating the balance due, and asking him to remit that amount. The vehicle was seized and sold in the year 1998. The cheque is dated 06.02.2002. There is nothing to show that in the year 2002, the revision petitioner reached the office of the 1st respondent to issue Ext.P3 cheque. No evidence is there to prove that Ext.P3 cheque was issued towards the balance amount due, after adjusting the sale price.
The conviction and sentence imposed on the revision petitioner under Section 138 of the Negotiable Instruments Act is set aside - Revision petition is allowed.
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2023 (11) TMI 668 - KARNATAKA HIGH COURT
Dishonour of Cheque - insufficient funds - It is alleged that illegality has been committed by the Trial Court in passing hasty judgment depriving the rights of the accused to cross-examine PW1 - HELD THAT:- On reading Indian Bank Association case [2014 (5) TMI 750 - SUPREME COURT], there is no observation or the law laid down by the Hon'ble Apex Court that the statement of accused under Section 313 of Cr.P.C., has to be recorded on the date of the appearance before the Trial Court. In the said judgment, the Hon'ble Apex Court has issued guidelines to the Trial Courts dealing with N.I. Act cases to expedite the Trial. The Trial Court is duty bound to follow the mandates of the Apex Court in expediting the trial of the cases by following the provisions of N.I. Act. The hasty procedure adopted by the Trial Court is unknown to law. Thereby, it has affected the principles of natural justice. When lis is pending, either civil or criminal, it is the duty of the Court to afford sufficient opportunity to the parties to prove their respective cases. Unless opportunity is given to the parties to the litigation, it cannot be said that justice is being given to the parties to the lis. It is submitted that the accused has got good defence to defend himself.
The Trial Court hurriedly passed the judgment of conviction. Therefore, in view of these factual features coupled with non-following of proper procedure by the Trial Court, the impugned judgments are required to be interfered with and are liable to be set aside - The criminal revision petition filed by the petitioner-accused is hereby allowed.
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2023 (11) TMI 667 - THE COURT OF SPECIAL JUDGE, MPID FOR GR. BOMBAY AT BOMBAY
Seeking grant of Bail - applicant was not arrested during the investigation - cheating 13000 investors to the tune of Rs.5600 crores - HELD THAT:- The FIR, for the offences u/s 409, 465, 467, 468, 471, 474, 477- A, 120-B of IPC, u/s 3 of the MPID Act and sections 21(a), 21(b), 21(c) and 21(g) of the FCR Act, 1952 was registered way back in the year 2013. According to applicant, he has furnished all record and documents in the form of electronic data in soft copies, hard-disk, server and e-mails to the investigation agency. Today the applicant is present before the court pursuant to the fact he was served with the summons issued by this court. The investigation machinery choose not to arrest the applicant, for 10 long years, inspite of the fact that, the applicant was available. Rather, it can be gathered that the I.O. did not want his custody. The offences u/s 467 is punishable for imprisonment for life.
The prosecution has not placed any criminal antecedents on record except for the present case. There are no allegations that the applicant has not co-operated with the investigation agency. There will be no point in sending the accused in jail as investigation is completed and charge-sheet is filed.
It is directed that Applicant/accused Sunil Gupta, be released on execution P.R. bond of Rs.50,000/- with one or two sureties in the like amount - Today the applicant/accused Sunil Gupta, be released on furnishing Provisional cash bail of Rs.50,000/- - bail application allowed.
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2023 (11) TMI 606 - SUPREME COURT
Seeking compliance with the Memorandum of Understanding - exercise of power under Rule 1 of Order XL of the Code of Civil Procedure, 1908 - HELD THAT:- The order passed by the Civil Court in Bihar was appealable under Order XLIII of the CPC. Instead of availing the remedy of the appeal, the first respondent took the extraordinary step of invoking the jurisdiction of the Bombay High Court under Article 226 of the Constitution of India by specifically challenging the order of appointment of the Receiver passed by the Civil Court in Bihar - the first respondent ought not to have filed such a petition when a statutory remedy was available. Moreover, the High Court ought not to have entertained the Writ Petition. The jurisdiction of the High Court under Article 226 is no doubt very wide. But the propriety and judicial discipline required the High Court not to entertain such a petition. The High Court ought to have relegated the first respondent to the statutory remedy while possibly granting a limited protection.
A statutory remedy was available to the first respondent before the concerned Court in Bihar. If the High Courts start entertaining Article 226 petitions for challenging the orders passed by the Civil Courts in other states, it will lead to a chaotic situation. Therefore, there are no manner of doubt that the impugned order will have to be set aside.
Also, the appellant has indulged in the suppression of material facts while persuading the Trial Court to pass a drastic order for appointing a Court Receiver. There is another feature of the case. In the written statement filed by the defendants in the suit filed by the appellant, an issue of maintainability was raised. The order of the Trial Court noted that the first respondent had mortgaged the properties. The Trial Court did not pay attention to the issue of maintainability as well as the issue of territorial jurisdiction. An order appointing a Court Receiver has very drastic consequences. As noted earlier, such a drastic order was casually passed by the Civil Court.
The impugned order dated 27th September 2023 passed by the Bombay High Court set aside - Writ Petition No.7064 of 2023 dismissed on the ground that a statutory remedy was available to the first respondent and therefore, the Bombay High Court ought not to have entertained the Writ Petition under Article 226 of the Constitution of India for challenging the order passed by a Civil Court in another State - appeal allowed in part.
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2023 (11) TMI 605 - KARNATAKA HIGH COURT
Dishonour of Cheque - accused is before this Court contending that the findings of both orders are contrary to the well settled principles of law and is liable to be set aside - rebuttal of presumption - HELD THAT:- Having regard to the fact that accused admit that the cheque in question is drawn on his account maintained with his banker and it bears his signature, presumption under Sections 118 and 139 of N.I. Act is attracted to the effect that the cheque was issued towards legally recoverable debt or liability. Therefore, the initial burden is on the accused to prove that no consideration has passed i.e, the cheque was not issued towards repayment of any legally recoverable debt or liability and the circumstances in which the cheque has reached the hands of the complainant. Only after the accused rebut the presumption, the burden shifts on the complainant to prove his case, including passing of consideration and his financial capacity to lend such huge sum of money at the relevant point of time.
The accused has stepped into the witness box and deposed that the cheque in question as well as the demand Promissory note were given to the son of complainant in connection with the chit fund business run by him and misusing the same, the complainant has filed this complaint. Of course the cross-examination of accused establish the fact that during 2013, he had taken loan of Rs. 16 lakhs from Vijaya Bank and he is repaying the same.
Though the demand Promissory Note state and also it is pleaded by the complainant that accused had agreed to repay the said sum along with interest at 2% p.m., there is no explanation for not making any attempts to recover the interest. Both trial Court as well as the Sessions Court has failed to appreciate the oral and documentary evidence placed on record by the complainant in the light of specific defence taken by the accused. Simply on the basis that presumption under Sections 118 and 139 of N.I. Act, they proceeded to convict the accused. The findings of the trial Court as well as the Sessions Court are contrary to the evidence placed on record and as such perverse. It is erroneous and calls for interference by this Court.
The Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C is allowed.
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2023 (11) TMI 568 - KARNATAKA HIGH COURT
Dishonour of Cheque - acquittal of the accused - cheque issued towards legally enforceable debt - Whether the judgment of acquittal passed by the trial Court is perverse and arbitrary so as to call for any interference by this Court? - HELD THAT:- In the instant case, the accused has raised a defence of financial capacity. No doubt, accused has not raised this defence by replying to the notice. However, in TEDHI SINGH VERSUS NARAYAN DASS MAHANT [2022 (3) TMI 797 - SUPREME COURT], the Hon'ble Apex Court has clearly observed that the accused inspite of non-issuance of reply notice can raise a defence of financial status by leading cogent evidence, on the basis of cross-examination of complainant or pleadings made in the complaint itself. In the instant case, the complainant nowhere asserted that she mobilized such a huge amount of Rs. 1,50,000/- in 2007. As rightly observed by the trial Court she has not even examined her husband to prove the financial status of her husband or the financial assistance made by her husband.
Further, accused is not required to prove his defence on the same standard as that of complainant by proving the same beyond all reasonable doubt. He can prove his defence only on the basis of the preponderance of probability. The view taken by the learned Magistrate in view of challenging the financial status of the complainant is a possible view and in view of the full bench decision of Apex Court in M/S. KALAMANI TEX & ANR VERSUS P. BALASUBRAMANIAN [2021 (2) TMI 505 - SUPREME COURT] case the view taken by the learned Magistrate cannot be disturbed. Further, when two conclusions are possible, the view favourable to the accused shall prevail.
The point under consideration is answered in the negative - the appeal being devoid of any merits, does not survive for consideration - Appeal dismissed.
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2023 (11) TMI 518 - BOMBAY HIGH COURT
Dishonour of Cheque - discharge of legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - HELD THAT:- It is a settled position in law that for the purpose of the prosecution under section 138 of the NI Act, an instrument must be entered into by the person who owes a legally enforceable debt to another and such person who takes over the liability of the former to discharge such debt in favour of the latter. The party to whom such debt is owed must either be made a party to such instrument or must be informed of such assignment/transfer of liability. A mere statement that the cheque was issued by a person to discharge the liability of another is not sufficient to set the wheels of criminal prosecution under section 138 of the NI Act in motion.
The presumption under section 139 of the NI Act is rebuttable. The benefit under this section cannot be availed if the accused raises a plausible defence, which creates doubts about the existence of a legally enforceable debt or liability. To create such doubt, the accused can rely on the materials submitted by the complainant in order to raise such a defence, and it is conceivable that in some cases, the accused may not need to adduce evidence of his/her own.
In the present case, the cheque was not issued by the accused towards the discharge of liability of the debt of Mr Dhaval Bhatt owed by him to the complainant. If the cheque had been issued by Mr Dhaval Bhatt for the outstanding amount of Rs. 10,02,980/-, the accused could have availed the benefit of section 139 of the NI Act. However, in the absence of the assignment of liability of Mr Dhaval Bhatt unto the accused and there being no nexus between the issuance of the said cheque and the liability of the accused to repay the outstanding amount to the complainant, the trial Court rightly concluded that the complainant failed to prove that the dishonoured cheque was issued by the accused for discharge of liability.
The trial Court has rightly acquitted the accused for the offence punishable under section 138 of the NI Act - Appeal dismissed.
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2023 (11) TMI 461 - SUPREME COURT
Refund of amount being the fair charges for the consignments - Failure to deliver the export goods within stipulated time frame - Export Consignment through Air - direction for payment for compensation for loss of business and reputation - requirement to pay for value of the goods short delivered - payment for interest and well as cost of litigation - HELD THAT:- The NCDRC has not committed any illegality or perversity in recording the finding that there was delay in delivery of consignment. As a matter of fact, it is an admitted position that the consignment which was booked on 24.07.1996, was delivered after one and a half month i.e. from 03.09.1996 to 12.09.1996 - The NCDRC has rightly noted that the appellant has paid air freight which is ten times more than the sea freight only to ensure that the consignment reaches its destination within a week because sea cargo would have taken 25 to 30 days for delivery and the appellant has paid such huge freight charges for ensuring early delivery, hence, the delay in delivery of consignment has necessarily inflicted damage to the appellant which is liable to be satisfied by the respondent No.1 as provided under Section 19 and 13(3) of the Carriage by Air Act 1972.
Section 186 of the Contract Act, 1872 provides that authority of an agent may be expressed or implied. Similarly, Section 188 of the Contract Act, 1872 prescribes that an agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act - In the case at hand, in the absence of a plea by the respondent No.1, that the respondent no. 2 was not its agent or that he had no authority to give schedule of delivery of consignment, the onus has not been discharged. Therefore, the respondent No.1 is bound by the promise held by its agent, respondent No.2, that the goods shall be delivered within one week and when the time schedule expired and the goods were, in fact, delivered after one and a half month, there was negligent delay in delivery of consignment.
The grievance of the appellant in this appeal is mainly on account of the NCDRC not allowing the entire claim for compensation by calculating the total weight of the subject consignment at 2507.5 Kg. multiplied by US $ 20 per Kg. According to the appellant, in view of Rule 22 (2) of Schedule-III of the Carriage by Air Act, 1972 (as amended by the Hague Protocol) the amount thus calculated would exceed the sum of Rs. 20 lakhs. The appellant would thus claim the entire amount equivalent to US $ 50070 without limiting it to Rs. 20 lakhs - the Order passed by the NCDRC need not be interfered with - appeal dismissed.
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2023 (11) TMI 460 - DELHI HIGH COURT
Dishonour of Cheque - postponement of issue of process - mandatory inquiry in terms of Section 202 of the CrPC can be conducted on the basis of pre summoning evidence or not - HELD THAT:- It is clear that in cases under Section 138 of the NI Act, the mandatory inquiry as contemplated by Section 202 of the CrPC can be conducted by taking evidence of the complainant on affidavit. The inquiry need not be necessarily conducted by taking evidence on oath. Further, documents may be examined by the Trial Court for satisfaction as to the sufficiency of grounds for proceeding under Section 202 of the CrPC.
Whether the learned MM in the present cases has conducted an inquiry under Section 202 of the CrPC before issuance of summons to the Accused? - HELD THAT:- In light of the presumption under Section 139 of the NI Act, a cheque given under Section 138 of the NI Act is presumed to be in discharge of a legally enforceable debt or other liability. The aforesaid presumption is rebuttable and the accused can rebut this presumption by leading evidence in this regard. Therefore, the contention of the Accused that a legally enforceable debt has not accrued in favour of the Complainant on account of non-fulfilment of the conditions in the Agreement would have to be proved by leading evidence at the time of trial. The learned MM is not required to go into this evidence while conducting an inquiry under Section 202 of the CrPC - At the stage of issuance of summons, for the purpose of Section 202 of the CrPC read with section 145 of the NI Act, the learned MM is only required to examine whether the basic ingredients of an offence under Section 138 of the NI Act have been prima facie made out by the complainant and supported by the pre-summoning evidence led on behalf of the complainant.
Upon dishonour, statutory notice under Section 138 of the NI Act had been duly issued by the Complainant to the Accused and the Accused failed to make the payment within fifteen days of the receipt of the notice - both the summoning orders issued by the learned MM in the present cases satisfy the requirements of Section 202 of the CrPC read with Section 145 of the NI Act.
In both the complaint cases, the learned MM has duly conducted the necessary inquiry under Section 202 of the CrPC before issuance of summons to the Accused.
If the contention of the Accused is accepted that the MM has to conduct an inquiry by appreciating the terms and conditions of the Agreement entered into between the parties to ascertain if a legally enforceable debt has arisen, it would result in a full trial being conducted even before the issuance of summons. Clearly, such an exercise would be in teeth of the directions passed by the Supreme Court in Re: Expeditious Trial of Cases Under Section 138 of NI Act 1881 (2021 (4) TMI 702 - SUPREME COURT).
Application allowed.
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2023 (11) TMI 459 - HIMACHAL PRADESH HIGH COURT
Appointment of an Arbitrator for decision on entitlement of the applicant to receive the amount claimed towards GST - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Notice in this application had been given to the respondents and they have filed a reply opposing the entitlement of the applicant for GST on merits, but no pleading has been taken in reply filed by the respondents as to why an Arbitrator cannot be appointed. Admittedly, there is an Arbitration Clause 25 in the agreement between the parties providing for arbitration in the event of a dispute arising between them. The existence of dispute is clear from the pleadings of both the parties and admittedly the applicant had issued Annexure P-3 notice dt. 9th December, 2021 for appointment of arbitrator.
Having regard to the fact that in the reply filed by the respondents there is no objection raised as to the appointment of Arbitrator, this application is allowed and Mr. L.N. Sharma, District & Sessions Judge (retired), R/o Laxmi Niwas, near Girls Senior Secondary School, The Mall Solan, H.P. is therefore appointed as Arbitrator to adjudicate the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.
Application disposed off.
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2023 (11) TMI 458 - PUNJAB & HARYANA HIGH COURT
Dishonour of Cheque - acquittal of the accused - rebuttal of presumption - conviction of the accused under Section 138 of the NI Act - preponderance of probabilities - HELD THAT:- It is required to be seen that whether accused has been able to probabilise his defence. Here itself, it may be noted that the accused is not required to prove his defence on the standard of proof ‘beyond reasonable doubt’ and rather, is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held by the Hon’ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal, [2020 (2) TMI 1584 - SUPREME COURT].
In order to rebut the presumption available to complainant under Section 139 of the NI Act, accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement, he must support it with evidence - simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55,000/- only and that blank cheque was given as a security, it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized.
It is no doubt true that when accused entered the witness box as DW1, he repeated this stand by way of his affidavit Ex.DW1/A to the effect that he had taken Rs. 55,000/- on 10.11.2008, in lieu of which accused had taken his signature on blank papers and had also taken a blank signed cheque as security. However, most importantly, when complainant-Girraj Sharma entered the witness box as CW1, this stand was not confronted by the accused to the complainant at all - There is no suggestion that complainant had taken any blank signed cheque as security from the complainant.
Despite receipt of the legal notice much prior to the filing of the complaint as evident from AD card Ex.C5 and as also candidly admitted by the accused, he did not respond to the legal notice and rather gave reply much after filing of the complaint and so said factor could not have been taken into consideration. Once the signature on the cheque were admitted by the accused in so many words, not only by making positive suggestion to the complainant, but also in his statement under Section 313 CrPC and then in his defence evidence, the existence of legal liability remained not in dispute at all, in view of presumption under Section 139 of the NI Act.
In the present case, the aforesaid provision was not at all attracted simply because signature on the cheque was made complete by the accused by overwriting on it. It was never the case of the accused that any material alteration was made in the cheque against his consent by the complainant or anybody else. Rather, he admitted his signature on the cheque in so many words at various stages of the trial, as already noticed - the impugned judgment of acquittal dated 26.02.2016 as passed by ld. Appellate Court is hereby set aside; and the judgment of conviction as recorded by the trial Court on 16.01.2014 is hereby restored.
Having regard to the overall conduct of the accused-respondent, he does not deserve any leniency. As such, the order dated 16.01.2014 qua the quantum of sentence, as recorded by Ld. JMIC, is also hereby restored. Respondent-accused is directed to surrender before the concerned trial Court/ld. CJM Faridabad within a period of 15 days from today, failing which the concerned Court will procure his presence by taking coercive steps, in accordance with law, and send him to jail for carrying out the sentence.
Appeal disposed off.
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2023 (11) TMI 406 - SUPREME COURT (LB)
Seeking appointment of an arbitrator for the adjudication of disputes - Section 11(6) of the Arbitration and Conciliation Act, 1996 - It is the case of the petitioner that instead of appropriately responding to the notice of arbitration, the respondent issued a letter dated 09.05.2022, terminating the Contract alleging non-compliance of work and nonfulfilment of the contractual obligation.
Whether the dictum as laid down in ICOMM TELE LTD. VERSUS PUNJAB STATE WATER SUPPLY AND SEWERAGE BOARD AND ORS. [2019 (3) TMI 600 - SUPREME COURT] can be made applicable to the case in hand more particularly when Clause 55 of the General Conditions of Contract provides for a pre-deposit of 7% of the total claim for the purpose of invoking the arbitration clause? - Whether there is any direct conflict between the decisions of this Court in S.K. Jain [2009 (2) TMI 926 - SUPREME COURT] and ICOMM Tele Limited? - HELD THAT:- The principles of law discernible from the aforesaid observations made by this Court in ICOMM Tele Limited are as under: (a) That the pre-deposit condition in an arbitration clause is violative of Article 14 of the Constitution of India being arbitrary. (b) Unless it is first found or prima facie established that the litigation that has been embarked upon is frivolous, the exemplary costs or punitive damages cannot follow. (c) Deterring a party to an arbitration from invoking the Alternative Dispute Resolution Process by pre-deposit of certain percentage would discourage arbitration. This would run contrary to the object of de-clogging the court system and would render the arbitral process ineffective and expensive.
In the decision of the Calcutta High Court in M/S AMAZING INDIA CONTRACTORS PVT. LTD. VERSUS THE AIRPORT AUTHORITY OF INDIA AND ORS. [2023 (6) TMI 1331 - CALCUTTA HIGH COURT], ICOMM Tele Limited and PERKINS EASTMAN ARCHITECTS DPC & ANOTHER VERSUS HSCC (INDIA) LTD. [2019 (11) TMI 1154 - SUPREME COURT] were relied upon and ultimately, it was held that Clause 33 of the agreement therein between the parties providing for constitution of a “Dispute Resolution Committee” with a stipulation that before availing of dispute resolution clause, the disputed amount has to be deposited, was held to be invalid and contrary to law.
As such there is no conflict between S.K. Jain and ICOMM Tele Limited, as the relevant arbitration clauses that fell for the consideration of this Court in both the cases stood completely on a different footing. What is relevant to note are the points of law on which S.K. Jain [2009 (2) TMI 926 - SUPREME COURT] was distinguished and explained in ICOMM Tele Limited.
Keeping the aforesaid in mind, on looking into the 7% pre-deposit condition in the case on hand, as contained in Clause 55 of the GCC it is evident that nothing has been provided as to how this amount of 7% is to be ultimately adjusted at the end of the arbitral proceedings. With a view to salvage this situation, the learned counsel appearing for the respondent invited the attention of this Court to Clause 3 of the GCC, which relates to the security deposit for performance.
Whether this Court while deciding a petition filed under Section 11(6) of the Act 1996 for appointment of a sole arbitrator can hold that the condition of pre-deposit stipulated in the arbitration clause as provided in the Contract is violative of the Article 14 of the Constitution of India being manifestly arbitrary? - HELD THAT:- Kelson’s pure theory of law has its pyramidical structure of hierarchy based on the basic norm of Grundnorm. The word ‘Grundnorm’ is a German word meaning fundamental norm. He has defined it as ‘the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity’. It is the Grundnorm which determines the content and validates the other norms derived from it. But from where it derives its validity, was a question which Kelson did not answer, stating it to be a metaphysical question. Grundnorm is a fiction, rather than a hypothesis as proposed by the jurist - The argument canvassed on behalf of the respondent that the petitioner having consented to the pre-deposit clause at the time of execution of the agreement, cannot turn around and tell the court in a Section 11(6) petition that the same is arbitrary and falling foul of Article 14 of the Constitution is without any merit.
It is a settled position of law that there can be no consent against the law and there can be no waiver of fundamental rights.
Whether the arbitration Clause No. 55 of the Contract empowering the Principal Secretary/Secretary (Irrigation), State of Uttarakhand to appoint an arbitrator of his choice is in conflict with the decision of this Court in the case of Perkins Eastman [2019 (11) TMI 1154 - SUPREME COURT]? - HELD THAT:- There are a plethora of judgments of this Court even prior to the amendment of Section 12, where courts have appointed the arbitrators, giving a go-by to the agreed arbitration clause in certain contingencies and situations, having regard to the provisions of unamended Section 11(8) of the Act which, inter alia, provided that while appointing the arbitrator, Chief Justice, or the person or the institution designated by him, shall have regard to the other conditions as are likely to secure the appointment of an independent and impartial arbitrator.
The courts in the United States of America have also deliberated upon the doctrine of unconscionability on numerous occasions. The Court of Appeal of California in the case of Patterson v. ITT Consumer Financial Corporation, had the occasion to consider whether the requirement for the claimants to pay a filing fee along with hearing fees for the purpose of resolving the matter could be said to be unconscionable. The Court of Appeals held that such a condition was “incomprehensible” and discouraged the borrowers from pursuing their claims.
The two conditions contained in Clause 55 of the GCC, one relating to 7% deposit of the total amount claimed and the second one relating to the stipulation empowering the Principal Secretary (Irrigation) Government of Uttarakhand to appoint a sole arbitrator should be ignored and it is proceeded to appoint an independent arbitrator.
Application allowed.
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2023 (11) TMI 362 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - insufficiency of funds - rebuttal of presumption - it is alleged that the learned trial Court has not considered the law and facts involved in the present case as the complainant could not plead and prove, in this case, that there was any subsisting liability at the time of issuance of cheque in question - quantum of sentence - HELD THAT:- The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act - In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under Section 313 Cr.P.C, then, the said stand has rightly been discarded by the learned trial Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act.
Quantum of sentence - HELD THAT:- In the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice is better. Considering the said fact, while deciding the quantum, it was incumbent upon the learned trial Court to consider the fact about the benefit which had drawn by the accused for committing the offence alleged against the complainant - The learned trial Court has awarded the compensation of Rs.3,50,000/- and the said order of quantum of sentence has not been assailed by the complainant before the learned Appellate Court or before this Court.
Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of imprisonment till ‘rising of Court’ - Revision disposed off.
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2023 (11) TMI 361 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - amicable settlement of matter - compounding of offence - HELD THAT:- In view of the fact that the complainant has received Rs.1,30,000/- from the applicant/convict, as full and final settlement of the complaint filed by the appellant-complainant under Section 138 of the NI Act and the parties have amicably settled the matter, coupled with the fact that the complainant has no objection in case the accused-respondent is acquitted of the offence under Section 138 of the Negotiable Instruments Act, therefore, this Court sees no impediment in accepting the prayer made on behalf of the parties for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held that Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that ‘No offence shall be compounded except as provided by this Section’.
In K. SUBRAMANIAN VERSUS R. RAJATHI REP. BY P.O.A.P. KALIAPPAN [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has paid Rs.1,30,000/-, as full and final settlement amount to the appellant-complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
The present matter is ordered to be compounded and the judgment is quashed and set-aside and the petitioner accused is acquitted of the charge framed against him under Section 138 of the Act - taking into consideration the law laid down by the Hon’ble Apex Court (supra) and the financial condition of the petitioner, as he is a poor person, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs.2,500/- (rupees two thousand five hundred) only with H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.
Application disposed off.
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2023 (11) TMI 360 - GUJARAT HIGH COURT
Dishonour of Cheque - legally enforceable debt or not - acquittal of accused - non-joinder of drawer of the disputed cheque - fatal to the proceedings under Section 138 of the Negotiable Instruments Act or not - HELD THAT:- The issue whether the learned Magistrate committed any error in dismissing the complaint by holding that non-joinder of drawer of the disputed cheque i.e. Company is fatal to the proceedings under Section 138 of the Negotiable Instruments Act is no longer res integra - The similar had question arose for consideration before three Judges Bench of the Hon'ble Supreme Court in the case of Anita Handa [2012 (5) TMI 83 - SUPREME COURT] as to whether the complaint under Section 138 of the Negotiable Instruments Act and Section 141 thereto against the Director or authorized signatory of the cheque without arraigning the company as accused, was maintainable? Initially, the matter was notified before two Judges Bench, which due to diversion of opinion, was referred to the three Judges bench. The Hon’ble Supreme Court had upon analysis of relevant provisions of the Negotiable Instruments Act, held that Section 141 uses terms ``person” and refers it to a company. The Company is treated as a juristic person in the eyes of law and the concept of corporate criminal liability is attracted to a corporation and company. The said provisions of the Act invariably held in offences by the Company, certain categories of officers in certain circumstances are deemed to be guilty of the offence under Section 138 of the Negotiable Instruments Act.
In view of the aforesaid analysis drawn by the Hon’ble Supreme Court, this Court is of the view that non-joinder of the Company as accused, which otherwise is treated as principal offender being drawer of the cheque, the Director of the Company joined as sole accused representing the company as well as authorised signatory, would not served the provisions of Section 141 of the Act. Thus, no arguable case is made out to grant this application seeking special leave to appeal.
Appeal disposed off.
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2023 (11) TMI 250 - BOMBAY HIGH COURT
Dishonour of Cheque - documentary evidence not produced - admissions elicited during cross-examination - HELD THAT:- The cross-examination of the complainant shows that the cheque amount exceeded the outstanding amount. The complainant stated that it was subsequently decided in the agreement that 90% of the amount would be paid at the time of dispatching machinery from his premises. However, this agreement was not placed on record - The evidence of the complainant further revealed that the total cost agreed between the complainant and the accused for dairy equipment was Rs. 10,25,000/-. The invoice (Exh.42) also establishes this fact. It is not in dispute that Rs. 7,40,000/-was paid by the accused to the complainant, and only Rs. 2,85,000/-was due from the accused. The cheque (Exh.39) is Rs. 4,95,000/-which is more than the outstanding amount from the accused. The complainant admitted this fact in his cross-examination.
The complainant's case is not substantiated by documentary evidence. The total amount due of Rs. 12,93,875/-could not be proven by any bill on record. The complainant's admission during cross-examination that the cheque amount exceeded the outstanding amount was also to be taken into consideration. Given the circumstances, the observations of the Magistrate cannot be considered erroneous, especially when there is no documentary evidence and the admissions were elicited during cross-examination.
Appeal dismissed.
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2023 (11) TMI 249 - MADHYA PRADESH HIGH COURT
Dishonour of settlement - amicable settlement between the parties - compromise also arrived at - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case where it was held that In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act.
In view of the aforesaid judgement, and considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs. 36,000/-by way of cost to be deposited with the "State Legal Services Authority" Indore - Subject to payment of cost at the rate of 2% of the cheque amount with the "State Legal Services Authority" Indore, within a period of 15 days from today, the applicant be released from the jail and if not in jail, the applicant shall be treated as acquitted from the charges under Section 138 of N.I. Act on the basis of compromise.
Revision disposed off.
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2023 (11) TMI 143 - SC ORDER
Grant of Interim Relief - denial of of interim relief on the ground that there is an alternate remedy available - HELD THAT:- If the High Court has found that the matter was worth admitting then there was no question of non-considering the issue with regard to grant or refusal of interim relief, on the ground that there is an alternate remedy - When the High Court finds that there is merit in the matter and admits it, then it was also bound to consider as to whether the interim relief should have been granted or not.
Non-granting of interim relief on the ground that there is an alternate remedy available is totally contradictory to the earlier part of the order admitting the matter - Non-consideration of the question of grant or refusal of interim relief, in our considered view, would be a failure to exercise the jurisdiction vested in the High Court.
The impugned order set aside - matter remitted back to the High Court - appeal allowed.
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2023 (11) TMI 142 - DELHI HIGH COURT
Dishonour of Cheque - noncompliance of certain terms of the settlement agreement, has been settled - compounding of offences - HELD THAT:- As per the judgment delivered by a learned Division Bench of this Court in Dayawati v. Yogesh Kumar Gosain, [2017 (10) TMI 1063 - DELHI HIGH COURT] once the offence under Section 138 of the NI Act is compounded in terms of Section 147 of the said Act, the recovery of the agreed upon amount, has to be realized in terms of Section 431 read with Section 421 of the CrPC. It is pertinent to note that the only thing which the Court in terms of the aforesaid provisions can do is attach the properties of the accused persons. Powers to issue non-bailable warrants with the learned Metropolitan Magistrate at the stage when the proceedings in the complaint case are over has not been provided for. A bare reading of the said provisions reflects that the mandatory presence of accused persons has not been provided for. The warrant will only be issued for attachment and not for arrest.
In view of the scheme of the CrPC and the observations made in Dayawati (supra), this Court is of the considered opinion that once a compromise has been arrived at and an offence under Section 138 of the NI Act is compounded, the concerned Court, after passing an order compounding the offence can only proceed for attachment in terms of Sections 421 and 431 of the CrPC. Thus, the non-bailable warrants issued were without jurisdiction and therefore, the consequent proceedings under Section 82 of the CrPC were also invalid.
This Court is of the opinion that in the present case, no useful purpose will be served by continuing with the proceedings in the subject FIR and it is an appropriate case for quashing the same in order to secure the ends of justice - Petition allowed.
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