Court auction sale cannot be set aside just for asking

May
11
2017


The Supreme Court Chilamkurti Bala Subrahmanyam
vs. Samanthapudi Vijaya Lakshmi; Civil Appeal No. 5988 of 2007 has held that for setting aside a court auction sale a charge of fraud or material irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars.  Before a sale can be set aside merely establishing a material irregularity or fraud will not do.



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Magistrates have to be vigilant before issuing summons or taking cognizance of an offence

May
2
2017


Supreme Court in the matter of Mahender Singh Dhoni Vs. Yerraguntla Shyamsundar; Transfer Petition (Criminal) no. 23 of 2016 cautioned the magistrates who have been conferred with the power of taking cognizance and issuing summons are required to carefully scrutinize whether the allegations made in the complaint meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and whether the accused is really required to be summoned.




Complaints by a spouse to public authorities do not per se constitute Cruelty

May
2
2017


Supreme Court in the matter of Raj Talreja Vs Kavita Talreja; Civil Appeal no. 10719/2013 held that mere filing of complaints against the spouse is not cruelty, if there are justifiable reasons to file the Complaint. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of Hindu Marriage Act 1955.




Parties by an Agreement can confer jurisdiction upon a Court in Arbitration matters

May
2
2017


Supreme Court in the matter of Indus Mobile Vs. Datawind Innovations; Civil appeal no. 5370-5371/2017 in a landmark judgment has modified the understanding of law with regard to jurisdiction of Court. Age old law that parties cannot confer jurisdiction on a Court by an agreement between the parties is no longer applicable to arbitration proceedings.




Continuance in service for long time no right to seek regularisation

Mar
17
2017


Supreme Court in the matter of Secretary to Govt Vs. A Singamuthu Civil Appeal no. 3770/2017 decided on 7th March, 2017 held Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment.



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Trust not entitled to invoke jurisdiction of Consumer Courts

Mar
17
2017


Supreme Court in the matter of Pratibha Pratisthan Vs Manager, Canara Bank; Civil Appeal no. 3560/2008 vide judgement dated 7th March, 2017 held A reading of the definition of the words 'complaint', 'complainant' and 'consumer' makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. 




Litigants abusing the process of law should be dealt with harshly

Mar
17
2017


Hon’ble Supreme Court in the matter of Dnyandeo Sabaji Naik Vs Pradnya Prakash Khadekar; SLP(C) no. 25331-33 of 2015 vide judgement dated 1st March, 2017 held that this Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow.




After acquisition of land, an allottee cannot be taken as necessary or proper party #legalupdates

Mar
2
2017


Acquisition may either be for a “public purpose” or for a company. When land has been acquired for public purpose, land vests in State after the Collector has made an award and the possession is taken. Once the land vests in State, acquisition is complete. An allottee from the State is not concerned with the process of acquisition. State may transfer land by public auction or by allotment at any price with which the person whose land is acquired has no concern. The fact that Government chooses to determine the allotment price with reference to compensation price determined by the Court does not provide any locus to an allottee to contest the claim for enhancement of compensation. Post-acquisition, an allottee cannot be treated at par with beneficiary for whom the land was acquired and therefore is neither necessary nor a proper party in award proceedings.

Satish Kumar Gupta v. State of Haryana & Ors. 21.02.2017 Civil Appeal Nos. 1587-1636 Of 2017




Relief u/s Section 20 of the Specific Relief Act is discretionary #legalupdates

Mar
2
2017


In a case decided by Supreme Court, the Court has held that Section 20(1) of Specific Relief Act, 1963 indicates that, jurisdiction to decree specific performance is discretionary. Yet, discretion of Court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”. Sub-section 2 of Section 20 of Act contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance.

Material placed on record indicates that the terms of contract, conduct of parties at time of entering into agreement and circumstances under which contract was entered into gave Plaintiff an unfair advantage over defendants. These circumstances make it inequitable to enforce specific performance.

Supreme Court Jayakantham & Others v. Abaykumar Civil Appeal No. 3049 of 2017 21.02.2017 




Custody of minor child to be determined by the welfare of the minor #indianlaws

Feb
19
2017


The Supreme Court in the matter titled as Vivek Singh Vs. Romani Singh, Civil Appeal no. 3962/2016 decided on 13th February, 2017 was determining the issue of custody of a minor child. The Court reiterated the old principle that welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the Court rests on its own inherent equality powers where the Court acts as 'Parens Patriae'.




Industrial lease deed to be renewed as per the terms of lease #indianlaws

Feb
19
2017


The Hon’ble Supreme Court in the matter of Orissa Industrial Infrastructure Development Corporation Vs. MESCO Kalinga Steel Limited; Civil Appeal no. 2545/2017, decided on 14th February, 2017 held that renewal of lease is a privilege and if a tenant wishes to claim the privilege, he must do so strictly within the time limited for the purpose. Where however, there is no time limit, an application may be made within a reasonable time.




What is "Permanent disability" in Motor Accident cases #indianlaws

Feb
13
2017


Supreme Court in the matter of Sandeep Khanuja Vs. Atul Dande; Civil Appeal no. 1329/2017 decided on 2nd Feb, 2017 held that the crucial factor which has to be taken into consideration, in a motor accident case, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured.




Courts can consider subsequent events in adjudication of disputes #indianlaws

Feb
13
2017


The Supreme Court in the matter of Nidhi Vs Ram Kirpal Sharma Civil Appeal no. 1008 of 2017 decided on 2nd Feb, 2017 that ordinarily, rights of the parties stand crystallized on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly.



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Judicial interference in commercial matters of the government not warranted unless illegal/irrational #legalupdates

Jan
11
2017


Supreme Court has cautioned that in commercial matters, judicial interference is warranted only when an administrative action of the Government is illegal, irrational or the process through which such action is taken is beyond procedural propriety. A court of law ought to limit itself in only assessing infirmities in “decisions making process” on touchstone of reasonableness and rationality and should ensure that it is not arbitrary or violative of Article 14 of Constitution of India.




Allegation of fraud without proof does not render a decree fraudulent #legalupdates

Jan
10
2017


When there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent.




HC does not have the power to punish for contempt of Supreme Court #legalupdates

Jan
10
2017


There is, nothing in Contempt of Courts Act, 1971 or in Article 215 of Constitution which can be said to empower High Court to initiate proceedings suo-motu or otherwise for contempt of a superior Court like the Supreme Court of India. As a matter of fact, Supreme Court under Article 129 and High Court under Article 215 of Constitution are both declared to be Courts of Record. One of recognised attributes of a Court of record is power to punish for its contempt and contempt of courts subordinate to it. Use of expression "including" in said provisions is explanatory in character.




Parties to an arbitration agreement are free to decide both procedural and substantive law #indianlaws

Jan
1
2017


Parties (to the contract) in the present case intended to provide for two opportunities at resolving their disputes or differences. First was a settlement by arbitration in India ('arbitration result') and second was by arbitration in London, with intention to treat the second one as an appeal against 'arbitration result' in India. The Apex Court had to decide whether this was permissible under the Arbitration & Conciliation Act




Court cannot decide disputed questions of fact under Art. 226 of the Constitution of India, #indianlaws

Dec
14
2016


The Supreme Court has held that the bank guarantee is an independent contract between the guarantor-bank and the guarantee-appellant. The guarantee is unconditional. Though the performance guarantee is against the breach by the lead promoter, viz., the first Respondent, but between the bank and the Appellant, the specific condition incorporated in the bank guarantee is that the decision of the Appellant as to the breach is binding on the bank.




Cheque given as ‘Security’ is covered within the ambit of Section 138 of N.I Act #indianlaws

Dec
14
2016


The Supreme Court in a judgment delivered in September has held that the dishonour of a post-dated cheque given for repayment of loan installment which is also described as "security" in the loan agreement is covered by Section 138 of the Negotiable Instruments Act. Contention of the Appellant in support of his case was that the cheques were given by way of security as mentioned in the agreement and that on the date the cheques were issued, no debt or liability was due.




True scope and ambit of the term Judgment #indianlaws

Jun
6
2016


Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.




Apex Court interprets applicability of Sector 3 of the Sports Act, 2007 #indianlaws

Jun
6
2016


Section 3(1), mandates sharing of live broadcasting signals with Prasar Bharati has to be 'without its advertisements'. Exception is, however, made in sub-section (2) of Section 3 which enables the broadcasting service provider to even share the contents along with advertisements, but subject to the condition that there has to be a sharing of revenue in the proportion prescribed in sub-section (2) of Section 3. When live broadcasting signal is shared containing advertisements, those advertisements have much larger viewership because of its telecast/broadcast on Prasar Bharati. The benefit of advertisement in such a case would accrue to those who have booked the advertisements and the service provider, in such an eventuality would definitely be in a position to charge much more from the advertisers. The rates of advertisement go up when circulation thereof is enhanced. 




Order of the Magistrate refusing to take cognizance revisable by Sessions Court #indianlaws

Jun
6
2016


The order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions is, thus, not powerless to pass an order in its revisionary jurisdiction. 




Mere disregard of some code or procedure is not enough to establish guilt under Prevention of Corruption Act #indianlaws

Jun
6
2016


Where the attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter, prosecution under Prevention of Corruption Act is not warranted.

Mere disregard of relevant provisions of some Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused




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.

 




Conviction cannot be based on the only circumstance of 'last seen together' #indianlaws

May
20
2016


A conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible.




Right to life include right to live with dignity; Human dignity is a constitutional value and a goal #indianlaws

May
20
2016


The rights that are guaranteed to differently abled persons under the Equal Opportunities, Protection of Rights and Full Participation Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has its roots in Article 21 of the Constitution. Article 21 provides for right to life and liberty. Right to life include right to live with dignity. Human dignity is a constitutional value and a constitutional goal.




Application of Part I of the Arbitration Act, 1996 is excluded where seat of Arbitration is outside India #indianlaws

May
20
2016


Where the parties choose a juridical seat of Arbitration outside India and provide that the law which governs Arbitration will be a law other than Indian law, part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections under Section 34 before a Court in India. A Court in India could not have jurisdiction to entertain such objections under Section 34 in such a case.




Power to release land from acquisition cannot be exercised arbitrarily and has be consistent with the doctrine of public trust #indianlaws

May
20
2016


Use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounted to transfer of resources of poor for the benefit of the rich; permitting profiteering at the cost of livelihood and existence of a farmer.




Waiting period in divorce by mutual consent waived after considering educational background of parties #indianlaws

May
16
2016


In this case, the Court after considering the educational background of the parties, and the entire facts and circumstances, held that the situation posed was peculiar where the Court should invoke its jurisdiction under Article 142 of the Constitution in order to ensure justice to the parties. With the above observation, the statutory period of six months was waived and the marriage between the parties was dissolved.




Family Court empowered to give declaration – no matter whether relief is affirmative or negative #indianlaws

May
16
2016


Supreme Court observed that under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view as the Family Courts Act, 1984, has an overriding effect on other laws.








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