Defamation in Civil Courts-An analysis #indianlaws

Feb
13
2017


Defamation may be committed two ways viz; (i)speech, or ii) by writing and equivalent modes. The English common law describes the former as Slander and the latter as Libel. The claim of slander and libel are private legal remedies, the object of which is to vindicate the claimant’s reputation.



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HC to apply its mind while granting or non granting of appeal u/s 378 of CrPC #indianlaws

May
22
2016


 

In deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. In an appeal against acquittal, the High Court has full power to re- appreciate, review and reweigh at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court. If, on the basis of the entire evidence on record, the order of acquittal is illegal, unwarranted or contrary to law such an order can be set aside by an appellate Court. Various expressions, such as, 'substantial and compelling reasons', 'very strong circumstances' etc. do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court.

 




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.




Principles of Res Judicata #indianlaws

Mar
3
2016


Supreme Court has held that for a defence of res judicata to succeed, it is necessary to show that the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, which should be taken to be the same thing as if the matter had been actually controverted and decided. The object of Explanation IV of Section 11 is to compel the plaintiff or the defendant to take all the grounds of attack or defence in one and the same suit. 



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Continuing guarantee by the Guarantor cannot be revoked as he is bound by the terms of guarantee #indianlaws

Jan
3
2016


When the guarantor had clearly agreed that the guarantee he had entered into with the Bank was a continuing one, which was to continue and remain in operation for all subsequent transactions,it then was not open to guarantor to turn around and say that in view of Section 130 of the Act, since the guarantee was revoked before the loan was advanced to borrowers, he isnot liable to pay the decretal amount.




Doctrine of promissory estoppel not enforceable when claimant himself is at fault #indianlaws

Jan
2
2016


The principle of promissory estoppel cannot be invoked in cases of any misrepresentation, in a case of where a candidate not eligible for appointment is selected by mistake contrary to the terms of the advertisement and the rules, when such mistake is detected the authorities are bound to correct the mistake and recall the order of selection. 




Consent in divorce by mutual consent must be valid subsisting consent when case is heard #indianlaws

Dec
9
2015


Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. If the Court is held to have the power to make a decree solely based on the initial (first) petition, it negates the whole idea of mutuality and consent for divorce.



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Limitations on scope of Judicial Review of Administrative decisions #indianlaws

Dec
1
2015


The Supreme held that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.




Highlights of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015

Nov
20
2015


President of India on 23rd October 2015 promulgated ordinance  providing for constitution of Commercial Courts, Commercial Division and Commercial Appellate Division in the High Courts for adjudicating commercial disputes of specified value and for matters connected therewith or incidental thereto. 




Key highlights of Arbitration and Conciliation (Amendment) Ordinance, 2015 #indianlaws

Nov
20
2015


President of India on 23rd October 2015 promulgated ordinance namely, Arbitration and Conciliation (Amendment) Ordinance, 2015 bringing significant changes to the Arbitration and Conciliation Act, 1996 




Drawer of the cheque, whether a human being or a body corporate or even firm liable for prosecution under S. 138 of N.I. Act

Sep
25
2015


The Supreme Court has held that when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. 



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Before awarding relief of Specific Performance, Court first needs to satisfy on existence of valid and enforceable contract

Sep
15
2015


The burden of showing the stipulations and terms of the contract and that the minds were in consensus lies on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all.



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The Personal Bankruptcy (Declaration and Rehabilitation) Bill, 2015 #indianlaws

Aug
27
2015


The proposed legislation focuses upon the Declaration of bankruptcy and the process of Rehabilitation of such person in the backdrop of the term “Willful defaulter”. The major importance of this word is that a person cannot file for bankruptcy if he is a willful defaulter, which as defined in Clause 2 (f) means any debtor who do not repay the debt despite adequate liquidity. Such person accordingly would not be entitled for Rehabilitation. 



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Benami Transactions(Prohibition) (Amendment) Bill, 2015, an amendment which will kill the existing law #indianlaws

Aug
27
2015


An amendment to amend Benami Transaction Prohibition Act is in offing, which will have large impact on the Benami law



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For computing period of limitation U/s. 468, Cr.P.C. the relevant date is that of filing of the complaint and not when cognizance is taken #indianlaws

Aug
1
2015


For computing period of limitation U/s. 468, Cr.P.C. the relevant date is that of filing of the complaint and not the date when cognizance is taken.



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The court should not go beyond what is pleaded in pleadings for adjudication

Jul
23
2015


When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. 



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Earlier decision of the coordinate bench binding upon any later coordinate bench deciding same or similar issues #Indianlaws

Jul
9
2015


Precedents which enunciate rules of law form the foundation of administration of Justice and it has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of the same Court and of the Supreme Court.



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Bifurcation of cause of action not permissible to bring in applicability of Section 8 of the Arbitration & Conciliation Act, 1996

Jul
2
2015


Cause of action in one matter cannot be bifurcated,  one to be decided by the arbitral tribunal and other to be decided by the civil court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.



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Position of law in arbitral reference in case of multiple, multi-party agreements with interlinked causes of action

Jul
2
2015


 A non-signatory or third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The Court will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute.



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Cruelty has to be seen in relation to the conduct of parties to a marriage #indianlaws

Jun
21
2015


Supreme Court in the case namely Shobha Rani vs. Madhukar Reddi, decided on 12.11.1987 (MANU / SC / 0419 / 1987 = [1988] 1 SCR 1010) dealt with the extent of “cruelty” as provided in the Section 13(1)(ia) of the Hindu Marriage Act (Act). In the instant matter a decree of divorce was sought by the wife from her husband on the ground of cruelty caused as a result of dowry demands.




The law of obscenity under Section 292 of the Indian Penal Code, 1860

Jun
2
2015


The Indian Penal Code does not define the word "obscene" and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts. The test to be evolved must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not.



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Law on exercise of Inherent Powers by the High Court under Section 482 Cr P C #indianlaws

May
21
2015


The power of quashing criminal proceedings has to be exercised very sparingly and carefully in exceptional cases to prevent miscarriage of justice.



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Proposed amendment in Negotiable Instruments Act 1881 in some way would create further chaos

May
21
2015


Amendment in Negotiable Instrument Act 1881 may bring some positive changes, while it will create chaos for the existing cases.




What is the true legal position in the matter of proof of Will #indianlaws

May
11
2015


The presence of suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. 



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When can a presumption of marriage raised between parties who are not married to each other

Apr
20
2015


In the case of A. Dinohamy vs. W.L. Balahamy (AIR 1927 PC 185), the privy council had held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.



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Power to quash criminal proceedings in an offence under Section 141 N I Act must be exercised carefully

Mar
29
2015


Supreme Court in the case namely Rallis India Ltd. vs. Poduru Vidya Bhusan and Ors., decided on 13.04.2011 (MANU/SC/0422/2011), dealt with the issue of exercise of power by High Court under Section 482 of the Code of Criminal Procedure while discharging persons arrayed as accused in the capacity of directors or partners in the company and firm respectively.



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Legality of charging and claiming interest by Banks/Financial Institutions #indianlaws

Mar
18
2015


Supreme Court in the case namely Central Bank of India vs. Ravindra and Ors., decided On: 18.10.2001 (MANU/SC/0663/2001 = AIR2001SC3095), dealt with the question as to what is the meaning to be assigned to the phrases "the principal sum adjudged" and "such principal sum" as occurring in Section 34 of the Code of Civil Procedure, 1908 [as amended by the Code of Civil Procedure (Amendment) Act (66 of 1956) w.e.f.



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Interpreting “Consideration Paid or Consideration Provided” in reference to Benami Transaction

Mar
5
2015


The Court in the case namely Pawan Kumar Gupta vs. Rochiram Nagdeo, decided on 20.04.1999(Civil Appeal No. 2369 of 1999) (MANU/SC/1187/1999: AIR1999SC1823), besides other issues dealt with the issue relating to Benami Transaction. As per Section 3(1) of the Benami Act no person shall enter into any benami transaction. This prohibition, as noted and also as judicially pronounced is prospective only.




Compensation for damage payable even if no damage proved

Feb
23
2015


Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases: 
(i) Where the contract names a sum to be paid in case of breach; and (ii) where the contract contains any other stipulation by way of penalty.



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Granting of unconditional leave to defend in summary trial – Legal Propositions

Jan
20
2015


Whether leave to defend in a summary suit can be granted to a Defendant unconditionally or upon such terms as may appear to the Court or Judge to be just to put the defendant on terms? The Supreme Court in M/s. Mechelec Engineers & Manufacturers vs. M/s. Basic Equipment Corporation, decided on 01.11.1976 (reported as AIR 1977 SC 577) enlisted propositions as to when an unconditional leave can be granted or the defendant can be put on terms to defend a summary suit (Order 34 Rule 3(5) of the Code of Civil Procedure, 1908).



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