The appellant (husband) filed for divorce, citing an irretrievable breakdown of the marriage. After reviewing the evidence, the family court […]
Case Studys
An e-contract is a contract made online between two or more parties. These contracts are formed through emails or online […]
Background: In this case, a suit was filed involving multiple parties and claims, some of which fell within the scope […]
In India specific protections for public servants is provided under various laws. One such law is Section 353 of the […]
Document is defined as an official piece of writing which gives information, proof or evidence. Document can be created for […]
The facts giving rise in the present case that Co-operative Bank owns property admeasuring approximately 30000 square feet with construction. […]
The present is the criminal application for quashing of proceedings in relation to case registered regarding publication of objectionable article […]
Real estate sector is one of the important pillars of the economy. The sector has grown significantly however it has […]
The petitioner’s contention in the present case is that Clause 68 of the Contract executed between petitioner and respondent provides […]
a) The cheque has to be presented to the bank within a period of six months from the date of […]
The respondent no. 2 urged that, the building was meant for persons from the lower income group therefore permission from […]
The petitioner is the co-founder of ALT News, a facts checking portal. The petitioner was arrested and remanded to police […]
Complainant herein has filed case u/s. 138 of Negotiable Instruments Act against the accused. Accused was served with notice of […]
The plaintiff no. 1 and 2 and defendant no. 1 and 2 are issues of deceased father. Parties are Hindus. […]
In the present case wife contended that, appellant husband and respondent wife were staying together since 2 years. The appellant […]
It is case of the complainant that, he supplied material to the accused and for the repayment of dues accused […]
The appellant husband filed Divorce petition on the ground that, respondent wife had concealed her previous marriage. Husband alleged that, […]
The case of the prosecution is that, Mr.Vinit Gupta (accused no.1) Accounts Executive, supposed to examine dockets, monthly bills and verify […]
In Arnesh Kumar vs. State of Bihar, Supreme Court stated that, arrest should be exception, in cases where punishment is […]
Appellant who was the original complainant is challenging the judgement of acquittal of accused in cheque bouncing case. Accused for […]
The respondent bank, as a secured creditor, put a property for e-auction. The property located at Maker Tower, Cuffe Parade, […]
The applicant was aggrieved by the order of framing charges u/s. 306 IPC. The FIR was registered against the applicant […]
Brief facts of the present appeal is that, barely after a short period of marriage life the respondent husband preferred […]
By way of present application, the applicant prayed for granting the opportunity to the Applicant to prove his innocence on […]
The applicant prefers the appeal against the conviction in cheque bouncing case before High Court. His earlier appeal before Sessions […]
Plaintiffs are land developers. As per joint development agreement dated 24.09.2014 plaintiffs acquired rights to develop the suit lands from […]
Case Studys
1.
INJUNCTION GRANTED WHEN PLAINTIFF PROVED POSSESSION OVER LAND AND PROVED RIGHT TO DEVELOP SUIT PROPERTY
Plaintiffs are land developers. As per joint development agreement dated 24.09.2014 plaintiffs acquired rights to develop the suit lands from Defendants. In joint development agreement it was agreed that after development 60% of land would be claimed by the Defendants of their choice and 40% would be retained by plaintiff and defendant would exercise the option to claim land within 30 days of sanctioned plan.
After layout sanction plaintiff has repeatedly called defendants to exercise the option for retaining 60% of the developed plot. However, contention of defendant that, they have not executed the joint development agreement dated 24.09.2004. The inclusion of land in township project was by misleading the government.
The learned judge upon appreciating the pleadings and documents on record held that, the plaintiffs have prima facie shown their possession over the suit land. Court takes note that various sanctions, permissions by local authorities in project issued on the basis of said agreement. Defendant have invested huge amount in the project. Flats in project were sold to purchasers. Further, despite the knowledge of development agreement defendants never challenged it nor tried to protect their interest in suit land.
On these considerations, learned trial court restrained defendants from obstructing the plaintiff’s possession over the suit land.
Chandraprabha Babasaheb Tupe vs. City Corporate Ltd., Mumbai
2.
DEFENCE THAT CHEQUE ISSUED IN EARLIER TRANSACTION – NO INTERFERENCE – CONVICTION OF ACCUSED
The applicant prefers the appeal against the conviction in cheque bouncing case before High Court. His earlier appeal before Sessions Court was dismissed.
Facts leading to case are that the complainant was doing the transaction of sale and purchase of shares through accused since last thirteen years. On instruction the applicant sold the shares and received the amount of Rs. 1,10,00,000/-. But applicant did not pay the amount to respondent. However, after negotiations MOU was executed and post-dated cheques were issued by the applicant. Cheques bounced when presented, complainant filed the complaint under Negotiable Instruments Act.
Counsel for the applicant submits that, learned magistrate and Sessions Judge failed to appreciate that, MOU was executed for the sale proceeds of earlier transactions. He took court through entire evidence and submits that, there was no debt. These cheques were issued for security.
Court observed that, applicant failed to take objection to MOU at the appropriate stage. Therefore the objection was rejected by both lower courts. Further, respondent no. 1 and his witnesses have been extensively cross examined by the applicant however witnesses were unshaken. The court finds that, MOU have no relevance with earlier transactions. Therefore there is no perversity in findings of trial court and 1st appellate court in recording conviction of accused. Hence revision dismissed.
Shri Radhyeshyam Dhoot vs. Vishnukumar Kalantri, Aurangabad
3.
PLEA OF ALIBI FIRST TIME BEFORE HIGH COURT
By way of present application, the applicant prayed for granting the opportunity to the Applicant to prove his innocence on the ground of alibi before High Court and also ask for cross examine/re-examine prosecution.
Learned Counsel for the applicant submitted that, there is sufficient material to show that the applicant was performing his duty on the day of incident. Further applicant could have established this defence if proper opportunity would have been granted at trial stage.
Learned APP submitted that, this application is nothing but afterthought theory raised by the applicant. Further submitted that, applicant would have raised the facts which were in the knowledge of the applicant during trial, hence raising this plea now is doubtful.
On-going through the records, court was unable to see such ground is raised in replying the queries in 313 statement. This was stage in trial where applicant /accused would have produced the attendance sheet etc. Therefore application seeking reasonable opportunity of innocence before high court on the ground of alibi is not tenable. Further plea that, advocate appointed in trial court did not adduce any evidence or take any steps so as to prove defence of alibi also not tenable. Court observed that, counsel engaged of his choice and said counsel was not shown to be junior counsel or was having less experience. Hence plea of alibi rejected.
Umesh Chalwadi vs. State, Cr.A.no.156/2017, Mumbai
4.
DIVORCE ON THE GROUND THAT, WIFE CONCEALED THE FACT OF BEING DIVORCEE
Brief facts of the present appeal is that, barely after a short period of marriage life the respondent husband preferred an application u/s. 12(1) of Hindu Marriage Act seeking for annulment of marriage. The sole ground for annulment of marriage was wife was already married and divorced and this fact was not disclosed to husband. Therefore the consent to the marriage was obtained by fraud.
For annulment of marriage there has to strict proof of grounds alleged. Husband claiming that, in declaration before Gayatri Shakti Peeth wife does not disclosed her second marriage. Court observed that, declaration was a formality maintained at temple and it is for their protection so as to avoid the subsequent complications. The respondent husband has also not disclosed as to whether his marriage was the first marriage or second. He left the column blank, which bring the two parties on same level about the concealment of facts. So husband is not permitted to base his claim on such declaration.
Also marriage of parties was not performed in haste. There was gap of 6 months from date when parties decided to go for marriage. Parties and their families met on several occasions. It can be inferred that, aspect of wife being divorcee was discussed and considered prior to marriage and accepted. Application for annulment of marriage rejected.
Amrita Agrawal vs. Nitin Agrawal, FAM no.136/2017, Chattisgarh
5.
ABATEMENT OF SUICIDE OR DEPRESSION AND DISTURBANCE IN LOVE AFFAIR
The applicant was aggrieved by the order of framing charges u/s. 306 IPC. The FIR was registered against the applicant u/s. 306 IPC for having abetted the suicide of the victim. The sister of victim has registered the FIR claiming that, the applicant was in relation with the victim and since he ditched her and married another girl, the victim committed suicide.
Applicant alleged that from the material on record through investigation, it can be seen that, ingredients of the offence under section 306 of the I.P.C. were not made out and therefore, the applicant deserved to be discharged. Court held that there was no substance in the contentions raised by the applicant and directed him to answer charge under section 306 of the I.P.C.
Aggrieved by the same, the applicant filed the present application.
The advocate appearing for applicant submitted that, applicant was having an affair and he was in relation with the victim, but due to fact that, she was divorcee and from another caste, it was difficult to marry her. Applicant has stopped contacting victim about four months before the date of incident. Applicant meets the victim day before the incident however this could not be a reason for framing a charge u/s. 306 of Indian Penal Code.
In the present case, it emerges that when the question of marriage between the two arose, applicant faced difficulties due to the fact that the victim was a divorcee and belongs to a different caste. The applicant chose not to keep contact with the victim. The statements of the witnesses clearly indicate that for about four months prior to the incident, the applicant did not contact the victim. The statements also indicate that one day prior to the incident, the victim herself had visited the residence of the applicant and upon ascertaining that he had got married to another girl, there was some exchange of words, after which the victim left the place.
The question is whether such conduct on the part of the applicant could be said to be, even prima facie, with the intention to instigate, goad, provoke, incite or encourage the victim to commit suicide. Even if the alleged incident a day prior to the incident is to be accepted, it does not show a positive act on the part of the applicant with mens rea and intention to drive the victim to suicide. It is the victim who visited the house of the applicant and upon confirming that he had married another girl, perhaps felt disturbed and depressed.
In the present case, the court is of the opinion that, ingredients of offence of section 306 IPC is not made out. Hence the revision is allowed.
Yuvraj Shinde vs. State, Cr.R.A.no. 337/2021,
6.
MAINTAINABILITY OF MISLEADING AUCTION NOTICE OF PROPERTY
The respondent bank, as a secured creditor, put a property for e-auction. The property located at Maker Tower, Cuffe Parade, Colaba, Mumbai to be sold on “AS IS WHERE IS, AS IS WHAT IS AND WHATEVER THERE IS BASIS”. Encumbrance on the property as per notice is “Property is free from encumbrances”.
After paying 25% auction money petitioner comes to know that, collector NOC not obtained as property is situated on collector land. Petitioner contended that, auction notice was misleading as auction was proposed to be held without obtaining Collector NOC. Respondent ignoring the petitioner’s demand for NOC forfeited the 25% amount paid. Hence present writ petition is filed.
Advocate for respondent bank alleged that, present Writ is not maintainable as petitioner has to approach DRT under SARFAESI Act. Further the transfer charges required to be paid for collector NOC by purchaser as the property is auctioned on “as is where is” basis. Since the transfer charges not paid the bank has rightly forfeited the 25% auction money paid.
Court observed that, petitioner did not pleaded alleging infringement of specific fundaments rights of the petitioner. However nature of the pleaded case and arguments advanced making out a case of illegal, arbitrary and high handed action on the part of bank offending Art. 14 of the Constitution. About forfeiture of auction money, court held that, auction could not be initiated without prior permission of Collector. The process of sale having commenced without NOC of collector is breach of law. Action of the bank in forfeiture of auction money is absolutely illegal, arbitrary, highhanded and ultra vires to Art. 14. Hence court order respondent to refund the forfeited amount.
Pravin Patil vs. State Bank of India, W.P.no.867/2020, Mumbai
7.
ACCUSED ACQUITTED IN CHEQUE BOUCNING CASE
Appellant who was the original complainant is challenging the judgement of acquittal of accused in cheque bouncing case. Accused for payment of outstanding issued a cheque, which was dishonoured for want of sufficient fund. The complainant issued legal notice and later on filed complaint u/s. 138 of N. I. Act.
Complainant asserts that, outstanding sum is reflecting in balance sheet and he is tax payer. However it is revealed that, complainant has no license to supply coal. Complainant admits that, he is not in a position to disclose when and what quantity of coal he supplied to the accused. Complainant denied that, he misused the cheques.
Court held that, burden is on the accused to make out probable defence. Accused need not step into witness box or adduce direct evidence. It would suffice if the accused is in a position to create reasonable doubt that, the version of complainant is false.
In the present case, there is no disclosure as to when coal is supplied, when and what quantity of coal supplied and what the balance was to be paid. Further balance sheet showing the outstanding is also not produced. In cases where the allegation is that certain goods were supplied and the cheque was issued, it would be hazardous to convict only on the basis of the presumption under section 139 of the Act. Hence accused acquitted.
Industrial Fuel Consultant, Cr.A.no.289/2007, Nagpur
8.
ARREST OF THE ACCUSED IS AN EXCEPTION IN 498A AND IN CASES WHERE PUNISHMENT IS LESS THAN 7 YEARS
In Arnesh Kumar vs. State of Bihar, Supreme Court stated that, arrest should be exception, in cases where punishment is less than seven years. The Supreme Court issued guidelines to determine the police whether arrest is necessary under the provisions of section 41 of Code of Criminal Procedure Code. Since the guidelines were issued by Supreme Court the legal proceedings can be initiated against the police officer and judicial officer if procedure for arrest under section 41 A Crpc. and Arnesh Kumar violated.
The facts of Arnesh Kumar vs. State of Bihar case in sum and substance that, wife levelled allegations against her husband are, demand of rupees eight lakhs, a Maruti car, an air conditioner, television set etc. was made by mother in law and father in law and when this fact is brought to the knowledge to husband he supported mother and threatens for second marriage.
Article 498A was enacted in 1983 to prohibit rising dowry deaths and violence against the married woman. Years later misuse of 498A was increasing. The woman used to allege crores of rupees as dowry without any valid proof and since offence is cognizable there were mechanical arrest.
In the present case court held that, no arrest should be made only because the offence is non bailable and cognizable and lawful for police officer to do so. The arrest by police has to justify the reason thereof. No arrest to be made on routine manner on a mere compliant against the person. The Court’s endeavour in the judgement that, police officer do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. The court has issued following guidelines.
- All the State Government to instruct its police officers not to automatically arrest when a case u/s. 498A is registered but to satisfy themselves about the necessity for arrest under the parameters of section 41 of Crpc.
- All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
- The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest; The Magistrate while authorising detention of the accused shall peruse the report of police officer and only after recording its satisfaction, the Magistrate will authorise detention
- The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case;
- Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case;
- Failure to comply with the directions aforesaid shall render the police officer and judicial officers liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court.
- These directions shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Hence court granted bail to husband on certain conditions.
Arnesh Kumar vs. State of Bihar, Cr.A.no.1277/2014, Supreme Court
9.
ANTICIPATORY BAIL GRANTED IN OFFENCE OF FORGERY OF DOCUMENT AND FRAUD WHEN DISPUTES BETWEEN THE PARTIES RESOLVED AMICABLY
The case of the prosecution is that, Mr.Vinit Gupta (accused no.1) Accounts Executive, supposed to examine dockets, monthly bills and verify them. The Director of Complainant Company noticed increase in transport expenditure and required scrutiny to be carried out in that regard. It was revealed that accused no.1in connivance with the transport companies prepared false bills and thereafter diverted amount into the accounts of acquainted persons. Hence, FIR filed against Vinit Gupta and transport companies alleging huge loss of Rs.9,01,64,249/-.
The applicant is wife of accused no. 1. The allegation against the applicant is that, amount has been transferred to her bank account at the instance of accused no. 1. Two FIRs were registered. While granting bail to accused no. 1, it was observed by the Magistrate that, other accused who played major role have settled the matter with informant and were released on bail. The accused no. 1 was employee, probably acting on the orders of superiors.
Court observed that, prosecution has not come out with the facts disclosing the involvement of applicant. The complainant has resolved the disputes with accused hence not proceeding with investigation in respect of FIR. Court considering the facts held that custodial interrogation of the applicant is not necessary and allowed anticipatory bail of applicant.
Nisha Vinit Gupta vs. State, ABA no. 754/2021, Mumbai
10.
VALIDITY OF CUSTOMARY DIVORCE
The appellant husband filed Divorce petition on the ground that, respondent wife had concealed her previous marriage. Husband alleged that, in wife’s previous marriage, relationship was so deteriorated that, both have filed FIR against each other. The respondent did not get divorce decree from court which implied that their marriage was void ab initio.
The respondent claimed that, she has never hidden her previous marriage. Also claimed that, appellant himself had helped her obtain customary divorce from previous marriage.
Court observed that, appellant’s earlier marriage was also dissolved by customs prevalent in Jaat Community. Customs of obtaining the panchayati divorce in Jaat community in Jalandhar is duly recognised by Supreme Court. She claimed that, documents of customary divorce for her case was prepared by the same advocate who had done it previously for appellant. Moreover the ex-husband of wife neither disputed divorce nor claimed restitution of conjugal rights. Further, parties having a daughter and petition seeking nullity filed after 6 years after marriage. It is also revealed that, appellant was closely involved in the mediation for respondent with her husband before Allahabad High Court. Delay itself exposed the gaps in appellant’s plea that, he was neither aware respondent’s earlier marriage nor of her customary divorce from her former husband. Hence, Court rejected petition.
Prahlad Singh vs. Seema, MAT.APP.no.45/2021, Delhi
11.
CHEQUE AMOUNT IS MUCH LESS THAN THE ACTUAL OUTSTANDING HENCE CONVICTION U/S. 138 OF NEGOTIABLE INSTRUMENTS ACT NOT PROPER
It is case of the complainant that, he supplied material to the accused and for the repayment of dues accused issued cheques of Rs. 16,36,400/-. The said cheques returned dishonoured. Complainant issued demand notice and later on filed complaint u/s. 138 of NI Act.
Complainant contended that, total amount payable is Rs. 32,36,200/-. Accused paid Rs. 16,00,000/- hence there is liability of Rs. 16,36,200/-.
It is pertinent to note that, averments in complaint as well as witness does not indicate the total outstanding of Rs. 32,36,200/-. There is not reference of settlement and payment of Rs. 16,00,000/-. The averments in the complaint and evidence also does not indicate that the cheques for Rs. 16,36,200/- were issued for balance amount but mentioned that it is issued for price of goods purchase of Rs. 16,36,200/-.
As per cross examination actual liability according to the complainant was Rs. 12,80,000/- which is less than amount mentioned in the cheque. Despite which complainant presented the cheque for payment of Rs. 16,36,200/-. Upon dishonoured of said cheque complainant issued demand notice without indicating actual liability of Rs. 12,80,000/-. Thus court concluded that, the demand notice is not valid and legal as per law. The accused is not legally liable to pay the said amount.
R. J. Plastic vs. Amplas Polymers, Cr.A.no.124/2019, Mumbai
12.
FILING FALSE CRIMINAL COMPLAINT IS MENTAL CURELTY
In the present case wife contended that, appellant husband and respondent wife were staying together since 2 years. The appellant has refused the proposal of respondent of marry her. As appellant was not marrying the respondent she has filed cases u/s. 323, 504 and 506 of IPC and also filed another case under Dowry Prohibition Act. Later on after 4 years appellant married her.
It is the case of appellant that, he did not wish to marry the respondent, however he was pressurise that he will be killed and respondent will withdraw the cases if appellant marries her. In view of such pressure appellant marries respondent.
Respondent has again filed FIR u/s. 498A against the appellant. Appellant and his parents arrested and release on bail. Later on appellant husband filed divorce petition. During divorce petition 498A case disposed off.
Court held that, case u/s. 498A of IPC and other related provisions was dismissed on merits and husband and family members acquitted, it was clear that the complaint was false. The Supreme Court has consistently held that, false criminal complaint preferred by either spouse constitute mental cruelty, which entitle the other spouse to claim divorce. It is mental trauma on husband and cruelty committed by wife upon the husband. Hence appellant was entitled to seek divorce on ground of cruelty.
Mangesh Bhoir vs. Leena Bhoir, S.A.no.634/2013, Mumbai
13.
RETROSPECIVE EFFECT OF HINDU SUCCESSION ACT
The plaintiff no. 1 and 2 and defendant no. 1 and 2 are issues of deceased father. Parties are Hindus. It is the case of the plaintiffs that, deceased had left behind ancestral and joint family properties and no partition took place in the life time of father and after the death of father. Some properties were purchased from the income of joint family properties. It is alleged that, defendant no. 1 and 2 were creating some revenue records and not ready to give share of plaintiff in the suit properties. Due to this suit for partition was filed.
Defendants admitted the relationship but they contended that properties were partitioned amongst the plaintiffs and defendants. They also admitted that, some properties were purchased from joint family properties. They contended that, in 1967 husband of plaintiffs demanded the partition and that time share given so there is no right to claim partition now. It was also submitted that, plaintiffs had no right to file suit for partition as they are the female members of joint family and the suit is filed even in respect of house properties.
Court held that, in view of amendment act 1994 plaintiff daughters of deceased are held as coparceners and so equal share is given to them. Contention that no retrospective effect can be given, not acceptable.
Bhausaheb Waghaskar vs. Gangubai Lahare, S.A.no. 469/2012, Aurangabad
14.
APPLICATION TO DETERMINE AGE OF INK AND WRITING ON CHEQUE BY FORENSIC SCIENCE LABORATORY
Complainant herein has filed case u/s. 138 of Negotiable Instruments Act against the accused. Accused was served with notice of accusation. During the course of evidence accused contended that, complaint is based upon manipulated cheque which was never issued rather it was misappropriated by complainant from the office of accused. Accused filed application for examination to determine/ ascertain the age of ink and writing of cheque.
The application was resisted by complainant that, application has been filed as a dilatory tactics. Complainant pointed out that, accused has already taken plea that, cheque has been obtained as security.
In the present matter court is of the view that, application sans merits. The application was not maintainable at this stage as the case is fixed for cross-examination of complainant and accused cannot adduce the evidence through forensic lab report. The defence counsel has not put up case in cross-examination that he misappropriated the cheque by taking it from possession of accused. The accused did not deny his signature on cheque. Accused neither stated about the date or period when cheque was stolen nor he made any complaint to police.
Accused did not give any plausible reason for sending the cheque for chemical test to determine the age of ink and cheque writing, therefore application dismissed.
Deepak Walia vs. State, CRR-396-2021, Punjab
15.
RELIEF BY SUPREME COURT WHEN SEVERAL FIRs REGISTERED AT DIFFERENT PLACES
The petitioner is the co-founder of ALT News, a facts checking portal. The petitioner was arrested and remanded to police custody in the offence punishable u/s. 153-A, 295-A, 202 and 120-B of IPC and u/s. 35 of FCRA in the diverse police station. Offences registered pertain to the various Tweets put out by him.
Above proceedings invoked jurisdiction under Article 32 of Constitution of India. The relief sought is for quashing of FIRs and alternative relief seeking the direction clubbing various FIRs with FIR in which Special Cell of Delhi Police is investigating.
Records shows investigation conducted by Special Cell Delhi Police is comprehensive in nature. As all the FIRs forms same subject matter, the investigation in all the FIRs should be consolidated and entrusted to one investigating agency. Therefore FIRs against petitioner transferred for investigation to Delhi Police. Court held that, blanket order preventing petitioner tweeting would amounts to unjustified violation of freedom of speech and expression and freedom to practice profession. The allegation in FIRs arises out of tweets which are already subject matter of investigation of Delhi Police. In the present case, absolutely no justification offered to keep the petitioner in continued custody and endless round of proceedings before diverse courts. Hence court grants interim bail relating to FIRs registered.
Mohammed Zubair vs. Delhi, W.P.Cr.no. 279/2022
16.
USUAL STORY OF A SOLITARY MEMBER OF A SOCIETY OBSTRUCTING THE REDEVELOPMENT OF THE SOCIETY BUILDING AND COURT RELIEF FOR REDEVELOPMENT
The respondent no. 2 urged that, the building was meant for persons from the lower income group therefore permission from Social Welfare Department (SWD) was necessary. Since permission is not obtained the whole project is illegal. However he fails to show to court that, how the SWD has authority over the redevelopment project under Maharashtra Town Planning Act. Court observed that, till date no less than 13 cases were filed, against public officers, however he have not challenged the Development Agreement or the society’s resolution.
The developer has already spend Rs. 6.20 Crores and yet building is not demolished. Hence the developer invoked arbitration and then filed present petition.
The society’s General Body resolution is the foundation document. Without that resolution and assent of 70% members of the society could never have come into being. Decision taken by majority binds all. The said decision is not challenged and it is in force. All members are bound by agreement that was entered into by society with developer. Hence mandatory order passed to vacate the flat and deliver the possession to society. However, court ensures that he will be afforded all the benefits including transit rent, transit accommodation, shifting and corpus charges.
Chirag Infra vs. Vijay Jwala Co. Op. Hsg., Arb.P.(L)no. 108/2021, Mumbai
17.
TIME FRAME IN RESPECT TO FILING OFFENCE UNDER 138 OF NEGOTIABLE INSTRUMENTS ACT AND PERIOD OF LIMITATION
a) The cheque has to be presented to the bank within a period of six months from the date of the cheque and within the period of its validity, whichever is earlier as per Sec. 138 proviso (a) of Negotiable Instruments Act. However, The Reserve Bank of India vide Notification No, DBOD.AML BC.No.47/14.01.001/2011-12 has made the period of validity of a cheque for three months. Hence, the cheque has to be presented within three months from the date of cheque.
b) As per section 138 the cheque holder / payee or holders have to give notice in writing to the drawer of cheque within 30 days from the dishonour of cheque information received from the bank.
c) If the drawer of the cheque fails to make the payment as per demand of notice within 15 days from the receipt of the notice in that case the complaint has to be filed within one month. The expiry of 15 days is the cause of action which enables the complainant to file complaint in the court.
d) The complaint can be filed within one month from the date of cause of action. The section 142 prescribed the outer limit to file complaint in the court.
The law is discuss in the following judgments
Saketh India Ltd. v. Indian Securities Ltd.:, In this case Supreme Court held that for computing time, the rule is to exclude the first day and to include the last, and the period of one month will be reckoned from the day immediately following the day on which the period of 15 days from the date of receipt of notice by the drawer expires. The 15th day is to be excluded for counting the period of one month. As per Sec. 3 (35) of the General Clauses Act a month means only a period of 30 days.
In Econ Antri Ltd. v. Rom Industries reported in AIR 2013 SC 3283 the Supreme Court affirmed the judgment in Saketh India Ltd. (supra) by holding that for the purpose of calculating the period of one month which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose.
For computing the period of limitation, one has to consider the date of filing of the complaint or initiation of criminal proceedings and not the date of taking cognizance by the Magistrate.
18.
POWER OF COURT FOR REVOCATION OF ARBITRATION AGREEMENT
The petitioner’s contention in the present case is that Clause 68 of the Contract executed between petitioner and respondent provides for appointment of an arbitrator. In the present case petitioner has legally Invoked Clause 68 and issued notice to the respondent. So the respondent was duty bound to appoint an arbitrator. The respondent fails and therefore it is open to him to approach the Court for appropriate remedy under S. 8 of the Act for appointment of an arbitrator. He further contented that Section 5 has no application to the facts of this case.
The question before Supreme Court for consideration is whether the High Court was justified in permitting the respondent to rescind the contract of arbitration provided in Clause 68 of the Contract. Undoubtedly, Clause 68 provides reference to arbitration of all or any of the disputes or differences between the parties, at the instance of either party to the contract. It empowers either party to issue notice calling upon the Engineer to refer the dispute or difference for arbitration. In this case, claim was made however the petitioner had not taken follow up action thereafter for 10 years. It was open to him to avail Clause 68 of the Contract seek the reference to the arbitration. No such action was taken for past 10 years. Immediately on receipt of the notice, the respondent approached court.
As per Ss. 5 and 12(2)(b) of Arbitration Act it is clear that the court has been given power for appointment of the arbitrator or umpire removed and the arbitration agreement entered into can be revoked. Where the Court passes such order arbitration agreement shall cease to have effect with respect to the difference or dispute. It flows therefrom that there exists implied power vested in the court permitting a party to avail the remedy under Ss.5 and 12 to rescind the arbitration agreement. In all cases it is not a condition precedent that there should in the first instance be an order appointing an arbitrator or he should enter upon reference for adjudication. In given circumstances and the factual background the court may be justified to exercise the power under Ss. 5 and 12.
The question then is under what circumstances such power would be exercised. It could be seen that the court has the power and jurisdiction under Ss. 5 and 12 to grant leave to the applicant in exceptional circumstances to revoke the contract of arbitration. The instant case is clearly, and undoubtedly hopelessly barred claim as the petitioner by his conduct slept over his right for more than 10 years. In these circumstances it is an exceptional case and the courts below have justifiably exercised their discretionary power and jurisdiction under Sections 5 and 12 (2)(b) to permit the respondent to rescind the arbitration agreement and declared that the arbitration agreement shall cease to have effect with respect to the difference or dispute referred to in the notice of the petitioner and relieved the parties from the arbitration agreement.
Panchu Gopal Bose, Spl. Leave Petition, 4304-06 of 1993
19.
RERA – TRANSPARENCY AND ACCOUNTABILITY IN REAL ESTATE SECTOR
Real estate sector is one of the important pillars of the economy. The sector has grown significantly however it has no regulator like of other sectors in telecom, insurance, stock market etc. There was need to provide the transparency and accountability in real estate sector. The act provides protection to home buyers and boost investments in real estate sector. The lack of standardisation has been a constraint to the healthy and orderly growth of industry. Therefore there was need for regulating the sector since long time.
The act was enacted with the aim at protecting the rights and interests of consumers. It also aims for promotion of uniformity and standardization of business practices and transactions in the real estate sector. It attempts to balance the interests of consumer and promoters by farming the certain responsibility on both.
REGISTRATION OF REAL ESTATE PROJECT
Many buyers of real estate rush for the opportunity to book in the pre-launch project as they get discounted prices. Earlier these pre-launching a project was without securing requisite approvals for the project from local authorities. But if pre-launch project is from a developer who is unscrupulous or a fly by night operator then it carries a great risk. The RERA provides the transparency and accountability in the real estate sector. Its main objective is to provide the information regarding the status of building approvals to enable customers to make accurate decisions.
The act provides that a promoter shall not advertise, market, book, sell or offer for sale in any manner any real estate product in any real estate project without registering the real estate project with Real Estate Regulatory Authority i.e. RERA.
The act provides that on-going projects on the commencement of this act shall make an application for registration of the project. Further authority may also in the interest of the allottees direct the project to be registered with the authority.
EXEMPTION FOR REGISTRATION OF PROJECT
The following projects do not require to be registered under the Act:
- Area of land does not exceed 500 Sq. Meters
- Number of apartments does not exceed 8
In case of Renovation/ Repair/Re-development
(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight, inclusive of all phases;
(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;
(c) renovation or repair or re-development projects which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
FEATURES AND ADVANTAGES
Every promoter has to make an application for registration of project to the authority as per prescribed form. The promoter has to provide the information about the enterprises, details about the past projects, an authenticate copy of approvals, sanctioned plan, details about the facilities / amenities of the project, location details, proforma of agreements and allotment letters etc., area details and carpet area etc.
The promoter has to keep about 70% of the received amount in escrow account. The promoter can withdraw the amount as per certificate of engineer or architect. The account has to be audited within six months. The authority shall provide the web based online system for submitting the applications.
On receipt of the application the authority shall decide the application within 30 days from the receipt of the application. The registration granted shall be valid for a period declared by the promoter for completion of the project or phase. Delay in handing over the project within stipulated time frame is a great misfortune of the buyer. Hence at the time of registration a developer has to specify a time line during which the project will be complete and handover to the buyer. The section 6 provides that, an extension of registration shall be granted at the sole discretion of regulator due to force majeure condition.
As per the provisions of RERA the developer cannot change the plan. And if a builder is found guilty of this he /she will be penalized with 10% of the project costs or face jail up to three years.
The act provides that, if buyer found that there is structural deficiency in the development of the building then the buyer can contact the builder after the purchase of the flat. However the buyer has to approach the developer within one year of purchase for rectification of defect.
DISADVANTAGES
The main disadvantage of the law is it does not cover the past projects. The projects which are on-going / completed or stuck due to clearance or financial issues are not covered under the RERA. Therefore many buyers may not get the protection under the RERA.
Registration with the regulator will not be mandatory for projects less than 500 sq. meters or has less than 8 apartments. So small developers will not be bound to register with the regulator.
As the project will not be allowed to launch without the requisite clearances from the government departments therefore there is apprehension that project will automatically get delayed.
CONCLUSION
Hence the RERA is offering the greatest protection to the real estate buyer. It provides the platform where all the information about the real estate project is provided. The buyer can rely upon this information and take decision for buying. It also provides the protection to the existing buyers of existing projects by imposing penalties and imprisonment.
20.
QUASHING OF F.I.R. IN PUBLISHING OBJECTIONAL ARTICLE IN SOCIAL MEDIA
The present is the criminal application for quashing of proceedings in relation to case registered regarding publication of objectionable article in social media. The applicant no. 1 is journalist and applicant no. 2 is agriculturist and social worker. The FIR has been launched by the PSI attached to cyber cell of police department. In FIR it has been stated that, while going through the social media he found an objectionable article on facebook account. It was published by applicant no. 1 and it was liked and published by applicant no. 2 on his facebook account.
The informant states that, in each para of article the District Superintendent of Police is objectionably referred and question was raised on as to why action was not taken on the incident of assault on journalist and what is the source of amount donated by police. The informant says that, District Superintendent of Police is the highest post in police department and in order to defame the said post and malign the status of police the said article was published. It has created disaffection in general public and police, therefore complaint has been filed.
In investigation most of the statements were recorded are of police constable and not a single general public statement was recorded as to what they felt about the article. It is to be noted that, entire post was not reproduced in the FIR and the copy of same was not given to the accused along with charge sheet. The FIR only highlights those things which informant wanted to highlight. The article is said to be stating the incident took place. The police officer who gave their statements was found that some of them have not even read the article alleged to be defamatory. Court observed that, reading of the post does not found to be creating dissatisfaction among the police and general public. Therefore continuation of the proceedings would amounts to abuse of process of law. Hence FIR quashed.
Sunil Dephe vs. State, Cr.A.no. 437/2015, Aurangabad
21.
TENDER BIDDING BELOW THE UPSET PRICE
The facts giving rise in the present case that Co-operative Bank owns property admeasuring approximately 30000 square feet with construction. The Bank was under liquidation and the District Deputy Registrar was functioning as the Liquidator. In liquidation proceedings it was proposed to sell the said land. The Bank through the Liquidator issued a tender notice on 19/09/2017. The upset price fixed at Rs. 15,01,58,000/-. The tender notice issued for two times but there were no response. Third time again tender notice was issued for same upset price. One society indicated willingness to purchase the aforesaid property and accordingly submitted its bid for an amount of Rs.5,51,11,111/- less than the upset price.
Since no decision was being taken on the bid it had approached Hon’ble High Court in Writ Petition No.8450/2018. Court on 21/01/2019 directed to take a decision on the proposal submitted by the petitioner in that regard. Liquidator by the letter dated 16/02/2019 stated that the offer for Rs.5,51,11,111/- was accepted subject to certain conditions. Two intervention applications were filed challenging the bid process.
As per clause 22 of the tender notice Bids cannot be submitted below base/upset price which is fixed for Rs.1501.58 lacs. Obviously, bid of Society was not a valid bid at all in view of the condition imposed by Clause 22. It is thus clear that pursuant to the third tender notice dated 16/12/2017 no valid bid quoting at least the upset price was received. Liquidator pleaded that, acceptance of bid for a reason that valuation of property was not correctly made and after correcting mistake bid was found to be proper. In the present case, after obtaining revised value of property, fresh auction notice ought to have been published indicating reduced upset price than what was indicated in earlier notice. It was not done. If Liquidator intended to accept bid lower than upset price quoted in tender notice the notice to public at large ought to have been given. All further action taken after the bid of the Society was unnecessary and not permissible in terms of the tender notice itself. So present acceptance of bid not sustainable in law. Hence, bid liable to be set aside.
Jitendra Jain vs. State, W.P.no.2975/2019, Mumbai
22.
DOCUMENTATION IN MODERN SOCIETY
Document is defined as an official piece of writing which gives information, proof or evidence. Document can be created for borrowing money, determining the terms and conditions of contract, creating security, creating charge, to present in court as a piece of evidence and for counting limitation for particular claim. Document can be executed by an individual for himself, jointly, representing firm / company / trust / HUF etc.
SELECTION OF DOCUMENT
Document has to be selected as per purpose (e.g. loan, contract, security, charge etc.) and by whom it will be executed (e.g. individual, company, trust etc.).
STAMP DUTY AND REGISTRATION
The document requires stamp duty and registration, however some of the documents i.e. will / transaction below Rs. 100/- are exempted from registration. Documents if unstamped or under stamped are inadmissible in court of law. The unstamped or under stamped documents before submission into court the documents can be adjudicated and proper stamp duty can be paid by paying the penalty. There are two types of stamps i.e. judicial or non-judicial stamps. Documents relating to court are required to paid judicial stamp duty and all other are required to be paid non-judicial stamp duty.
EXECUTION OF DOCUMENTS
The documents are executed by signing all the parties to the documents. All the alterations, amendments, insertion, deletion must be authenticated under full signature of executant. If a illiterate person has executed the document in that case, the thumb impression can be affixed instead of signature. The declaration of third party has to annex witnessing the thumb impression. If the executant does not understand the language of the document then the separate declaration in the language of the executant can be attached stating that the contents of the documents were explained to him in his language and he has signed the document after having understood the same. If the document is executed by a company, partnership firm, trust, HUF etc. in that case authorisation by way of resolution have to be annexed to the document.
WITNESSING A DOCUMENT
Attestation of document by witness is also important. Document which requires witnessing, if not witness will not be considered as duly executed document.
From the above discussion it can be averred that, documentation is very important aspect of modern society. It determines the rights and liabilities of the parties to the documents. However, proper execution of the documents is very important in modern society.
23.
Acquittal in a Case under Section 353 of IPC: Deterring a Public Servant from Discharging Duty
In India specific protections for public servants is provided under various laws. One such law is Section 353 of the Indian Penal Code (IPC), which aims to safeguard public servants from any assault or criminal force while they are carrying out their official duties. However, not every case results in a conviction, as seen in a present case involving a Patwari accused of bribery.
The Case at Hand: A Patwari’s Bribe and the Trap Proceedings
In this case, the appellant, a Patwari, was accused of demanding a bribe of Rs. 500 from the complainant. The complainant, unwilling to pay, lodged a formal complaint with the Superintendent of Police under the Prevention of Corruption Act. Following this, a trap was organized to catch the Patwari in the act of accepting the bribe. The trap team waited near his residence, and when the appellant returned home, the complainant approached him and handed over the money.
Upon receiving the signal from the complainant, the trap team moved in to arrest the Patwari. However, in an attempt to escape, the appellant allegedly resisted arrest, leading to a physical struggle between him, the trap party, and his wife. The prosecution accused the Patwari of using criminal force under Section 353 of the IPC to deter the public servants from carrying out their duty.
Section 353 of IPC: What Does the Law Say?
According to Section 353 of the IPC, whoever assaults or uses criminal force against a public servant while they are executing their duty can be punished. The section is designed to prevent obstruction and harm to public servants who are performing their roles. Importantly, the term “criminal force” refers to the intentional use of physical force without consent and with an unlawful purpose. However, for a conviction under Section 353, the prosecution must prove that there was a clear intent to use force to deter the public servant from performing their lawful duties.
Thus none of ingredients of S.353, attracted and Appellant acquitted for offence u/S.353.
Mahendra Kumar Sonkar, Supreme Court