In the case of a valid nomination, a Cooperative Society is liable to transfer the share or interest of a member in the name of the nominee #indianlaws

May
9
2016


Where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. The rights of others on account of an inheritance or succession is a subservient right. Only if a member had not exercised the right of nomination under Section 79, then and then alone, the existing share or interest of the member would devolve by way of succession or inheritance.




For quashing of proceedings against a Director u/s 138/141 of the Act it must be shown that no offence is made out against him and quashing is not to be granted merely on asking #indianlaws

May
9
2016


When in view of the basic averment process is issued, the complaint must proceed against the Directors. But, if any Director of a company wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial.




Partial amount deposited as precondition for entertaining appeal U/s 18 of SARFAESI Act neither secured asset nor a lien #indianlaws

May
9
2016


The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. Therefore,on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues. It is also not a bailment with the bank as provided under Section 148 of The Indian Contract Act, 1872.




Income from tips is income from other sources, received from customers and not employer; Section 192 of IT Act, does not apply #indianlaws

May
9
2016


The amount of tip paid by the employer to the employees has no reference to the contract of employment at all. Tips are received by the employer in a fiduciary capacity as trustee for payments that are received from customers which they disburse to their employees for service rendered to the customer. There is, therefore, no reference to the contract of employment when these amounts are paid by the employer to the employee. It was accordingly held that payments of collected tips would not be payments made “by or on behalf of” an employer and therefore section 192 of the IT Act is not attracted.




Judicial review, not an appeal from a decision, but a review of the manner in which decision was made #indianlaws

Apr
19
2016


Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. In connection with issue falling under service law, power of judicial review, as held, is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. Power of judicial review is not to act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence.




Transaction in minor’s name contravening Guardianship Act, 1956 and also without any legal necessity is voidable #indianlaws

Apr
19
2016


Section 7 of the Limitation Act makes it clear that when one of several persons who are jointly entitled to institute a suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge. Further, as per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mitakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In the present case, Plaintiffs 3 to 5 though majors as on the date of institution of suit would not fall under Explanation 2 of Section 7 of the Limitation Act as they were not the manager or Karta of the joint family. The suit was held to be as instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act.




As long tenancy continues to be effective, tenanted premises remains a shared household under Domestic Violence Act #indianlaws

Apr
19
2016


The tenanted premises where a woman lives with her husband would definitely come within the category of shared household but as long as the tenancy survives. A deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant she  would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as by availing the benefit of the provisions of the Transfer of Property Act and rent control legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end. 




Rule of estoppel does not apply to proceedings under Section 13-B of Hindu Marriage Act #indianlaws

Apr
19
2016


When a decree of divorce is sought under Section 13 of the Act, in view of compromise between the petitioner and the respondent, estoppel cannot operate against the Respondent. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. Parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.




A person has a right to protect his possession against any person who cannot prove a better title by seeking a prohibitory injunction #indianlaws

Apr
3
2016


Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied]. 




Consequences of non- compliance of an order, cannot be avoided on the ground that order was void or a nullity unless declared so #indianlaws

Apr
3
2016


In the context of breach of an interim order, the order can be void or nullity but, the consequences flowing from its non­ compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity. In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground. In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not lose its efficacy only on that ground. The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal. Void order has to be so declared. The party has to approach the Court for seeking such declaration 








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