Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 700 SC (SC)(DB) - Judgment Date: 17-10-2014 - Quashing of complaint against one director upheld for others remand back

GUNMALA SALES PRIVATE LTD. Vs. ANU MEHTA & ORS.

In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

Arbitration – Appointment of arbitrator

2014 STPL(Web) 699 SC (SC)(DB) - Judgment Date: 22-9-2014 - Arbitration award valid

ASHOKA TUBEWELL & ENGINEERING CORPORATION ETC. ETC. Vs. UNION OF INDIA ETC. ETC.

It is a term of this contract that no person other than a Gazetted Railway Officer should act as an arbitrator/umpire and if for any reason, that is not possible, the matter is not to be referred to the arbitration at all…. In our opinion, after having given consent at the time when a former High Court Judge was being appointed as an Arbitrator, the respondent could not have challenged the validity of the Award on the ground that the Arbitrator was not validly appointed. …. Except appointment of an Arbitrator, no other issue is involved in the appeals and no other argument has been advanced. In the circumstances, we quash and set aside the impugned order passed by the High Court and hold that the Award made by the Arbitrator is just, legal and proper

Land Acquisition – Compensation, Cost, Interest

2014 STPL(Web) 698 SC (SC)(DB) - Judgment Date: 17-10-2014 - No reduction in compensation for land acquisition

MAJ. GEN. KAPIL MEHRA & ORS. Vs. UNION OF INDIA & ANR.

The High Court has taken average of sale price of Exs A7 to A10 and deducted 40% towards smallness of the plot taken for comparison, further deducted one third towards development. Though we may finally affirm the rate fixed by the High Court, for the reasons stated infra we fix the market value in accordance with the well settled principles laid down by this Court. …. We have referred to various decisions of this Court on deduction towards development to stress upon the point that deduction towards development depends upon the nature and location of the acquired land. …. we are not inclined to further reduce the value of the acquired land from Rs.14,974/- per sq. yard as determined by the High Court and the compensation awarded by the High Court at Rs.14974/- per sq. yard is maintained. …. Since the statutory interest under Section 34 and also the interest in terms of Section 28 of Act had been awarded to the appellants, we find no merit in the grievance of the appellants as to the payment of interest….. When considering the appellants’ claim in C.M. No. 735 of 2011, in exercise of its discretion, the High Court rightly awarded proportionate costs and accordingly directed payment of such proportionate costs of over and above Rs.20,000/- as originally ordered. Merely because the appellants claimed compensation at the rate of Rs.50,000/- per sq.yard, the respondents cannot be saddled with the liability of paying the entire costs and the court fees paid by the appellants.

Service Law – Similarly situated persons

2014 STPL(Web) 697 SC (SC)(DB) - Judgment Date: 17-10-2014 - Delay and laches takes away the right of similarly situated persons

STATE OF UTTAR PRADESH & ORS. Vs. ARVIND KUMAR SRIVASTAVA & ORS.

High Court has given the respondents herein benefit of the order passed by the Court in earlier round of litigation filed by similarly situated persons. …. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India….. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence….. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.

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Injunction – Case not made out

2014 STPL(Web) 1696 P&H (P&H)(DB) - Injunction set aside

ADARSH P.JAUHAR Vs. GULSHAN JAIN & ORS.

Specific Relief Act, 1963 – Section 39 – Injunction – Case not made out – Appellant /defendant No. 2 was not even a party to lease deed – Mandatory Injunction not maintainable – Prayer made in suit for mandatory injunction could not be said to be a collateral purpose by any stretch of imagination, particularly against defendant No. 2 who was not even a party to lease deed & had no obligation towards plaintiff – Therefore, no injunction could have been granted until and unless defendant No.2 was alleged and proved to be licensee – Once tenancy of plaintiff/respondent on account of said lease deed which was the sole basis for filing suit, is terminated and plaintiff/respondent is evicted from suit property, no cause of action survives in his favour – Held that Courts below have committed serious error of law, while going beyond pleadings and evidence on record, as well as illegally ignoring relevant provisions of law – Impugned judgments and decrees are suffering from patent illegality, cannot be sustained and the same are set aside – Suit of plaintiff/respondent is dismissed – Regular Second Appeal allowed.

Evidence – Unregistered Lease Deed

2014 STPL(Web) 1696 P&H (P&H))(DB) - Non registration of lease which required Compulsory registration, not admissible in evidence

ADARSH P.JAUHAR Vs. GULSHAN JAIN & ORS.

Registration Act, 1908 – Section 17 – Stamp Act, 1899 – Section 35 – Transfer of Property Act, 1882 – Section 107 – Evidence – Unregistered Lease Deed – Payment of eleven times penalty under Stamp Act – Lease Deed not admissible in evidence – Challenged – Lease deed between defendants/respondents No. 3 to 5 being owners and landlords on one hand and plaintiff as well as defendant No.1 being co-lessees on other hand, was unregistered one – Lease deed signed by both parties required compulsory registration – If any document, despite being compulsorily registrable, was not a registered document, the same would not be admissible in evidence – So as to overcome serious and legal difficulty, plaintiff/respondent paid eleven times penalty on said lease deed in compliance of order, whereby plaintiff was directed to pay stamp duty and penalty – Held that merely by paying stamp duty and penalty under the Act, basic defect of non-registration of lease deed would not stand cured – Thus in spite of paying stamp duty and penalty under Section 35 of the Stamp Act, requirement of law under Section 17 of the Registration Act and Section 107 of the TP Act would not automatically stand complied with – Thus, even plaintiff had paid stamp duty and penalty, said lease deed not admissible in evidence, despite being an unregistered document – Decree of mandatory injunction not granted.

Burden of proof on issue of limitation

2014 STPL(Web) 1695 RAJASTHAN (RAJ)(DB) - Burden of proof that suit is within limitation is on plaintiff

CHATAR SINGH Vs. ADDITIONAL DISTRICT JUDGE (F.T.) NO.L, JAIPUR CITY, JAIPUR & ANR.

Civil Procedure Code, 1908 – Order XIV Rule 1 and 5 – Limitation Act, 1963 – Section 3 – Civil Burden of proof on issue of limitation – Placing burden of proving the same upon defendant-petitioner – Improperly framed – S.3 of the Limitation Act makes it obligatory on Court to dismiss a suit barred by limitation, although limitation has not been set up as a defence, indicating thereby that it is duty of a plaintiff to establish, at any rate prima facie, that suit is within time – It is obligation of plaintiff to satisfy the court that his action is not barred by lapse of time – Plaint must contain necessary averments, which, when taken in totality, amply demonstrates that suit is within limitation – A mere general statement will not suffice mandatory requirements – Thus, Trial Court has committed an error in framing additional issue No.5, additional issue on limitation – Impugned order is set aside – Trial Court is directed to frame additional issue as referred in Para 18 and proceed further in accordance with law – Writ Petition partly allowed.

Maintenance – Enhanced

2014 STPL(Web) 1694 AP (AP)(DB) - Maintenance enhanced

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Adoption and Maintenance Act, 1956 – Section 18 – Criminal Procedure Code, 1973 – Section 125 – Maintenance – Enhanced – Maintenance granted is not adequate – Enhancement of maintenance – It is not in dispute that appellant/husband is employed in B.S.N.L and drawing fairly good amount as salary – Respondent/wife has no income whatsoever – Appellant/husband is under obligation to maintain her – By any standard, Rs.1500/ – per month is insufficient for an individual to lead life with basic necessities – Hence, enhanced maintenance from Rs.1500/- per month to Rs.4000/- per month – A.S.No.3433 of 2003 is dismissed and F.C.A.Nos.179 of 2008 and 306 of 2012 are allowed – Appeals disposed of.

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Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 700 SC (SC)(DB) - Judgment Date: 17-10-2014 - Quashing of complaint against one director upheld for others remand back

GUNMALA SALES PRIVATE LTD. Vs. ANU MEHTA & ORS.

In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

Abetment of Suicide – Conviction set aside

2014 STPL(Web) 695 SC (SC)(DB) - Judgment Date: 17-10-2014 - Acquittal

KULDEEP KAUR Vs. STATE OF UTTARAKHAND

PW1, father of the deceased, in his cross examination stated that no dowry was demanded by the accused persons from the day of alliance till solemnization of marriage. Whatever stridhan was given was as per the custom and as per his will in the form of gift to his daughter….. Witness himself stated that only God knows why her daughter committed suicide without any reason. This witness has stated that it is true to say that neither the accused persons abetted his daughter to commit suicide nor they harassed her. …. In our considered opinion, the evidence adduced as against the appellant does not establish the case under Section 306 of the Code. On the basis of evidence of the prosecution witnesses, conviction of the appellant only cannot be sustained. Having regard to the fact of the case and the evidence of the prosecution witnesses, the trial court acquitted all the accused persons except the present appellant and the said judgment was affirmed by the High Court. We do not find any strong reason to agree with the judgment of conviction passed by the trial court and affirmed by the High Court as against the appellant.

Quashing of Summoning – additional accused – Quash set aside

2014 STPL(Web) 687 SC (SC)(DB) - Judgment Date: 14-10-2014 - Quashing of summoning set aside

R.N.AGARWAL Vs. R.C. BANSAL AND OTHERS

The order passed by the Special Judge would show that while issuing summons against the respondents the Court has considered in detail the material brought on record during investigation….. Prima facie, therefore, the impugned order passed by the High Court quashing issuance of summons by the Special Judge against the respondents is erroneous in law and cannot be sustained. However, at this stage it was not necessary for the Special Judge to issue directions to CBI to get a case registered against the guilty officers who have investigated the case.

Dowry Death – Conviction by High Court upheld

2014 STPL(Web) 686 SC (SC)(DB) - Judgment Date: 14-10-2014 - Conviction

A.K. DEVAIAH Vs. STATE OF KARNATAKA

Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother and sister’s husband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.

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MACT – Compensation enhanced

2014 STPL(Web) 669 SC (SC)(DB) - Compensation enhanced in MACT appeal

BASAPPA S/O SANGANABASAPPA BAHVIKATTI Vs. T RAMESH S/O TANGAVELU & ANR.

The learned counsel for the appellant made grievance only on three counts. In the first instance, he pleaded for increasing the amount of physical and mental pain and suffering. His vehement submission was that loss of future income is not assessed appropriately by the High Court. He pointed out that when the permanent disability was 58%, for the purposes of calculating the loss of future income, it had to be taken at 100%. Another plea of the appellant was that interest should have been granted at the rate of 9% instead of 6%. We find force in the submissions of the learned counsel on all these aspects. …. In this manner, the total compensation which would be payable to the appellant comes to Rs.6,72,000/- as against Rs.2,59,500/-, awarded by the High Court. We enhance the compensation accordingly

MACT – Compensation enhanced

2014 STPL(Web) 643 SC (SC)(DB) - Compensation Enhanced

ASHVINBHAI JAYANTILAL MODI Vs. RAMKARAN RAMCHANDRA SHARMA & ANR.

the deceased was 19 years old and was pursuing his medical degree with good marks at the time of the accident….. The Tribunal and the High Court have not taken into proper consideration that the deceased was a student of medicine at the time of the accident while determining his future income. The courts below have wrongly ascertained the future income of the deceased at only Rs.18,000/- per month, which in our view is too less for a medical graduate these days. …. Further, the Tribunal and the High Court have erred in not following the principles laid down by this Court in M. Mansoor & Anr v. United India Insurance Co. Ltd.[2013 (12) SCALE 324] in awarding a meagre sum of just Rs.15,000/- under the heads of loss of love and affection. Accordingly, we award Rs.1,00,000/- to the appellant towards the same. …. With regard to the apportionment made by the Tribunal and the High Court, we are of the view, after considering the facts, evidence produced on record and circumstances of the case on hand, that there was no negligence on the part of the deceased….. Thus, the total compensation payable to the appellant by the respondent- Insurance Company will be Rs.27,25,000/- with interest at the rate of 9% p.a. from the date of filing of the application till the date of payment.

MACT – Compensation enhanced

2014 STPL(Web) 607 SC (SC)(DB) - Compensation Enhanced

KUMARI KIRAN THR. HER FATHER HARINARAYAN Vs. SAJJAN SINGH & ORS.

we are of the view that the courts below have failed to follow the principles as laid down by this Court in the case of Subulaxmi (supra) in awarding compensation under a singular head towards permanent disability and loss of future earning to the appellant-minors and appellant-father. …. It is extremely essential for the courts to consider the two main components of damages i.e. both pecuniary and non-pecuniary damages as per the guidelines laid down by this Court in the above case so that the just and reasonable compensation is awarded to the injured. …. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above referred case.

MACT – Compensation Enhanced

2014 STPL(Web) 564 SC MACT (SC)(DB) - Compensation Enhanced

YERRAMMA & ORS. Vs. G. KRISHNAMURTHY & ANR.

we are of the view that the Tribunal and the High Court have erred in the apportionment of negligence at 25% on the part of the deceased and 75% on the part of the driver of the respondent-Corporation bus without evidence adduced in this regard by the respondent. …. We are of the view, that on the facts and circumstances of this case, the net salary of the deceased taken by the Tribunal and the High Court for determination of loss of dependency is erroneous as it is not in accordance with the principles laid down by this Court in this regard….. Further, the High Court has erred in not following the rules as laid down by this Court in awarding compensation under other conventional heads as mentioned hereunder. We are of the view that the appellants are entitled to Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for loss of love and affection as per the rule laid down by this Court …. In the result, the appellants shall be entitled to compensation under the following heads: Loss of Life Rs.23,16,600/- Funeral Expenses Rs. 10,000/- Loss of love and affection Rs. 1,00,000/- Loss of estate Rs. 1,00,000/- Loss of consortium Rs. 1,00,000/- Total : Rs.26,26,600/-…. Thus, the total compensation payable to the appellants by the respondent- Transport Corporation will be Rs.26,26,600/- with interest @ 9% from the date of filing of the application till the date of payment.

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Maintenance – Enhanced

2014 STPL(Web) 1694 AP (AP)(DB) - Maintenance enhanced

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Adoption and Maintenance Act, 1956 – Section 18 – Criminal Procedure Code, 1973 – Section 125 – Maintenance – Enhanced – Maintenance granted is not adequate – Enhancement of maintenance – It is not in dispute that appellant/husband is employed in B.S.N.L and drawing fairly good amount as salary – Respondent/wife has no income whatsoever – Appellant/husband is under obligation to maintain her – By any standard, Rs.1500/ – per month is insufficient for an individual to lead life with basic necessities – Hence, enhanced maintenance from Rs.1500/- per month to Rs.4000/- per month – A.S.No.3433 of 2003 is dismissed and F.C.A.Nos.179 of 2008 and 306 of 2012 are allowed – Appeals disposed of.

Divorce – Cruelty and Desertion

2014 STPL(Web) 1694 AP (AP)(DB) - Divorce set aside

P.ILLESH YADAV Vs. P.SUVARNA

Hindu Marriage Act, 1955 – Section 13(l)(ib) – Divorce – Cruelty and Desertion – Challenged – Found that ground of cruelty is not established – Though appellant/husband made an attempt to deny allegation pertaining to his relationship with another woman, he is not successful in this regard – Appellant did not dispute that person named in birth certificate of a child as father of said child is himself – When appellant is leading life with another woman, he just cannot expect respondent to join him – It cannot be said that respondent deserted appellant – On other hand, it is appellant, who created an unfavourable atmosphere for respondent to leave and even when latter expressed her willingness to live with him, appellant did not show any inclination – Impugned finding of Trial Court to that effect cannot be sustained in law – Decree of divorce is set aside.

Family Settlement – Oral settlement recorded in unregistered instrument

2014 STPL(Web) 1686 P&H (P&H)(DB) - Oral settlement recorded in unregistered instrument not valid

SUKHDEVI Vs. RAM PIARI

Family Settlement – Oral settlement recorded in unregistered instrument – Compromise offends registration, stamp and contract laws – In plaint filed by mother that gave rise to a compromise decree, she was seeking for a 1/2 share – It was 1/4th share each which daughters obtained in 551 of 1976 that was again sought to be taken back by mother through a transfer made in alleged family settlement – There could have been no valid oral settlement or otherwise that can extinguish plaintiff 1/4th share which she would inherit through her father and whose right was recognized by her father during his lifetime – Plaintiff could not have transferred right to property by an oral admission in favour of mother – A decree that purported to record such a fact also cannot be valid to take away her interest in property.

Will – Exclusion of some of natural heirs

2014 STPL(Web) 1663 DELHI (DEL)(DB) - Probate granted

RAJINDRA MOTWANI Vs. STATE & ORS.

Will – Exclusion of some of natural heirs – Testator himself in his Will has given reasons for exclusion of some of natural legal heirs as beneficiaries of his Will – From cross-examination of R6W1, found no merit in contention that there is a factual inaccuracy describing assets of respondents No.6 – Respondents failed to show that statement made in Will dated 29.08.1997 by testator for exclusion of three brothers from estate, is incorrect – In fact, evidence on record shows that defendants Nos.6 to 8 though enjoying cordial relationship with their father, were not intimately in touch with their father in as much as they had settled abroad long back – Respondent No.6 has no knowledge about condition of his father – Held that it would not be possible to conclude that there are any suspicious circumstances on account of fact that said three brothers have been excluded from Will and estate of testator by said Will.

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Redemption of Mortgage – Mortgagees tenant

2014 STPL(Web) 680 SC (SC)(DB) - Mortgagee tenants are not Mortgager tenants

DR. THAKAR SINGH (D) BY LRS.& ANR. Vs. SH. MULA SINGH (D) THR. LR. & ORS.

It held on a reading of a clause in the first mortgage deed that since the mortgagors would be entitled to future rent after redemption, it is clear that the mortgagors recognized all tenants created by the mortgagees during the subsistence of the mortgage. Issue No.4 was answered accordingly and the suit for vacant possession of the suit property from defendants was held not to be maintainable in law. …. It is clear that taking of possession from the mortgagees and his tenants is completely antithetical to recognizing the mortgagees’ tenants as the mortgagors’ tenants. If the clause is to be read in the manner that the High Court has read it, the mortgagors would not be able to get back possession on redemption which would in fact be a serious interference with their right to redeem the property inasmuch as the mortgagors would have to evict such tenants after making out a ground for eviction under the Rent Act. …. It has already been seen that a mortgagee continuing in possession after redemption as tenant of the mortgagor is regarded as a clog on redemption. The position is not different if the mortgagee’s tenants continue in possession after redemption. This would necessarily have to be disregarded as a clog on redemption as the right to redeem would in substance be rendered illusory.

Eviction – Leave to defend

2014 STPL(Web) 661 SC (SC)(DB) - Eviction - Leave to defend granted

SHANTI DEVI Vs. RAJESH KUMAR JAIN & ANR.

Learned counsel for respondents contended that the landlords needed the property in question to expand their business, as the space currently available to them is insufficient. It was submitted that the appellant-tenant owned another property, along with her husband in the same locality, where she could shift her business. The appellant-tenant denied the issues raised by the respondents-landlords with respect to having alternative accommodations. …. we are of the view, that the appellant has raised a triable issue, in the sense, that there is a fair dispute to be tried in the eviction petition and the appellant be granted leave to defend. However, leave to defend could be granted to the appellant only conditionally. When the revision petition was pending before the High Court, the appellant agreed to pay to the landlords rent at the rate of Rs.3,000/- per month and the same could be continued.

Eviction – NRI Landlord

2014 STPL(Web) 559 SC Eviction (SC)(DB) - Eviction allowed

KAMALJIT SINGH Vs. SARABJIT SINGH

An eviction petition under Section 13-B of the East Punjab Urban Land Restriction Act, 1949 was filed by the appellant on the ground that as a Non Resident Indian in need of the shop for his own use, he was entitled to have the same vacated from the respondent-tenant….. The inevitable inference flowing from the above proposition would be that (viz-a-viz the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949….. The upshot of the above discussion is that the Courts below fell in manifest error in holding that the appellant-landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the Courts below and in decreeing the eviction petition.

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Service Law – Retiral Benefits

2014 STPL(Web) 1680 P&H (P&H)(DB) - Retiral Benefits allowed with interest

DAYA SINGH Vs. STATE OF HARYANA & ANR.

Pension Rules – Rule 2.2.(b) – Indian Penal Code, 1860 – Sections 406, 408, 420, 467, 468, 471 & 120-B – Prevention of Corruption Act, 1988 – Section 13(1)(d) – Service Law – Retiral Benefits – Cannot be stopped or withheld on basis of registration of FIR – Writ Petition – Simply on basis of registration of FIR, retiral benefits cannot be stopped or withheld as it has been held in Manohar Singh Vs. Punjab State Electricity Board and others 2006(2) RSJ 316 – Continuation of criminal case cannot deprive petitioner of death-cum-retirement gratuity – Thereafter, he served Board for four years till he retired on superannuation on 31.05.2003 – Petitioner is entitled to receive entire retiral benefits along with interest on delayed payment after expiry of two months from date of retirement at rate of 9% per annum till date of payment – Writ Petition allowed.

Service Law – Similarly situated persons

2014 STPL(Web) 697 SC (SC)(DB) - Judgment Date: 17-10-2014 - Delay and laches takes away the right of similarly situated persons

STATE OF UTTAR PRADESH & ORS. Vs. ARVIND KUMAR SRIVASTAVA & ORS.

High Court has given the respondents herein benefit of the order passed by the Court in earlier round of litigation filed by similarly situated persons. …. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India….. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence….. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.

Service Law – Departmental proceedings after retirement

2014 STPL(Web) 694 SC (SC)(DB) - Judgment Date: 15-10-2014 - Departmental proceedings after retirement valid even if no pecuniary loss to govt.

STATE OF WEST BENGAL & ORS. Vs. PRONAB CHAKRABORTY

The High Court, having interpreted Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as ‘the 1971 Rules’), arrived at the conclusion, that departmental proceedings being conducted against an individual employee, could proceed further after the employee’s retirement, only when the allegations contained in the charges levelled against him, depict pecuniary loss to the State Government. The High Court further arrived at the conclusion, that since the charges levelled against the respondent herein, did not depict any pecuniary loss to the State Government, proceedings against the respondent could not continue after 31.01.2008. …. It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings can continue after the date of superannuation. An employee can be proceeded against, after the date of his retirement, on account of “… grave misconduct or negligence …”. Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service….. In view of the above, we hereby set aside the impugned order passed by the High Court.

Service Law – Appointment – Qualification

2014 STPL(Web) 693 SC (SC)(DB) - Judgment Date: 24-9-2014 - Non possessing of required qualification. Appointment not valid

STATE OF PUNJAB AND OTHERS Vs. ANITA AND OTHERS

A perusal of the speaking order passed by the DEO, inter alia, reveals, that the private respondents had been appointed in violation of the statutory rules regulating appointments to privately managed recognised schools….. we are of the view, that the private respondents do not satisfy the pre-condition of valid appointment expressed therein, inasmuch as, it was imperative for the Selection Committee, in the first instance, to consider only those candidates who possessed the qualification of JBT/ETT, and thereupon, posts that remained unfilled could be filled up with persons possessing higher qualifications, i.e., graduate/post graduate qualifications along with B.Ed. …. The Management had required the private respondents to discharge their duties, without the prior approval of the State Government. The Management should therefore bear the responsibility of shouldering the emoluments payable to the private respondents.

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Dishonour of Cheque – Vicarious liability

2014 STPL(Web) 700 SC (SC)(DB) - Judgment Date: 17-10-2014 - Quashing of complaint against one director upheld for others remand back

GUNMALA SALES PRIVATE LTD. Vs. ANU MEHTA & ORS.

In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed.

Dishonour of cheque – Complainant

2014 STPL(Web) 1624 BOMBAY (BOM)(DB) - Acquittal

HINDUSTAN COMPUTERS, MALEGAON Vs. DART COMPUTERS LTD.

Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Sections 258 and 353 – Dishonour of cheque – Complainant – Cheque issued in favor of Proprietorship Firm – Complainant was not owner or proprietor of firm – Doubt on genuineness of power of attorney – Criminal Appeal against dismissal of complaint and acquittal of accused – Accused had entered into agreement with complainant on a bona fide belief that he happens to be proprietor of said firm – Cheques in question were issued in the name of firm – Complainant was a power of attorney holder, there was no reason for him to prove the same and file complaint in his own name or admit before Court that he is proprietor of firm – Therefore, complainant cannot be held as a holder in due course – Impugned findings are in consonance with oral and documentary evidence on record and do not call for any interference – Appeals dismissed.

Dishonour of Cheque – Premature Complaint

2014 STPL(Web) 621 SC (SC)(FB) - Premature complaint of dishonour of cheque not maintainable

YOGENDRA PRATAP SINGH Vs. SAVITRI PANDEY & ANR.

The Court formulated the following two questions for consideration: (i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? And, (ii) If answer to question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?…. We approve the decision of this Court in Sarav Investment & Financial Consultancy2 and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated on such complaint are liable to be quashed. …. As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly.

Dishonour of Cheque – Complaint by Power of attorney holder

2014 STPL(Web) 614 SC (SC)(DB) - Dishonour of cheque complaint by Power of attorney holder maintainable

VINITA S. RAO Vs. ESSEN CORPORATE SERVICES PVT. LTD. & ANR.

Karnataka High Court overturned the concurrent judgments of the courts below and acquitted the respondents only on the ground that the complaint had been presented by the appellant’s husband as her power of attorney holder but the power of attorney was not produced and that in strict compliance with Section 200 of the Code, the appellant must be examined before cognizance can be taken of the complaint, which was not done. …. Hence, while holding in favour of the appellant that the complaint can be filed by a power of attorney holder and on that ground complaint cannot be held not maintainable and that the power of attorney was very much on record, we remand the matter to the High Court with a request that the High Court should hear both sides and decide whether the cheques in question were issued as a security or for the purpose of repayment of legally recoverable debt.

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Consumer – Punitive Damages

2014 STPL(Web) 671 SC (SC)(DB) - Punitive damages set aside

GENERAL MOTORS (INDIA) PRIVATE LIMITED Vs. ASHOK RAMNIK LAL TOLAT & ANR.

whether in the absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages was permissible. …. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. …. Accordingly we allow these appeals and set aside the order of the National Commission to the extent of award of punitive damages.

Consumer – Drowning in Lake – Negligence of Public authority

2014 STPL(Web) 595 SC Consumer (SC)(DB) - Compensation Upheld

VADODARA MUNICIPAL CORPORATION Vs. PURSHOTTAM V. MURJANI AND ORS.

against the award of compensation for the death of 22 persons by drowning in Sursagar Lake at Vadodara while riding the boat, on account of negligence in plying the boat…. The Insurance Company contested the case and submitted that as per the insurance policy given, the liability was limited to Rs.1 lakh per person. Stand of the Corporation was that complainants were not consumers and had remedy under the Indian Vessels Act, 1917…. The State Commission allowed the claims. It held that even a public authority exercising statutory power was not exempt from liability for negligent actions. When the Corporation exercised control over the Contractor, it was vicariously responsible for the negligence of the Contractor…. As regards liability of the Insurance Company, it was held that its liability under the policy was Rs.20 lakhs for one incident…. Accordingly, the State Commission held the Aqua Sports and the Corporation to be jointly and severely liable…. The decision of the State Commission has been upheld by the NCDRC with the enhancement in quantum of compensation in some of the cases keeping in mind principles for determining compensation under the Motor Vehicles Act, 1988…. while upholding the liability of the Corporation, we reiterate that not only Constitutional Courts have to, in suitable cases, uphold claims arising out of loss of life or liberty on account of violation of statutory duties of public authorities, in private law remedies, just and fair claims of citizens against public bodies have to be upheld and compensation awarded in Tort. Where activity of a public body is hazardous, highest degree of care is expected and breach of such duty is actionable. This obligation is also referable to Article 21.

Consumer – Insurance – Breach of Policy

2014 STPL(Web) 567 SC Consumer (SC)(DB) - Insurer not liable because of Breach of Policy

NARINDER SINGH Vs. NEW INDIA ASSURANCE COMPANY LTD. AND OTHERS

A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. …. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract.

Condonation of delay – Not allowed

2014 STPL(CL) 2208 NC Consumer Law(CC)

COMMISSIONER, CITY CORPORATION, BELGAUM, KARNATAKA Vs. SRI NAMADEV KRISHNA HIREMANI

Revision Petition – Delay of 1535 days – No satisfactory explanation for inordinate delay – State Commission, while dismissing appeal, order of District Forum allowing complaint, was upheld – Found that in application for...

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